00:00:52.680And I'm Adrian Daub. I'm a professor of literature and cultural history at Stanford. I direct the
00:00:57.320Clayman Institute. I've become super interested in the way conservative ideas persist and how
00:01:01.380they end up influencing public discourse that doesn't necessarily understand itself as conservative.
00:01:06.000Before we get into it, we'd like to thank the Michelle R. Clayman Institute for Gender Research
00:01:09.460for their generous support. We'd like to thank Jennifer Portillo for setting up our studio.
00:01:15.100And our theme music is by Katie Lau and our producer is Megan Kalfas.
00:01:19.600Maybe we should start off by saying a little bit about how we got interested in this topic. Maybe
00:01:23.300it doesn't require too much explanation after like Dobbs, after the, you know, Supreme Court
00:01:29.480just took a nice time machine back to separate but equal last week. Maybe it's obvious to everyone
00:01:35.060why these ideas are worth engaging with, but maybe we'll say a little bit more about the way
00:01:38.680their persistence has kind of made us interested in like, well, given that we're stuck living with0.96
00:01:43.780this shit, like might make sense to understand where it comes from. Yeah. You know, I think0.99
00:01:47.920the more i see the rise of the right in america and the more they turn towards this like
00:01:53.520pseudo-populist authoritarian turn the more they lean into a regressive hierarchical understanding
00:02:01.620of gender of femininity and masculinity of the ways that the sex body at birth can or should or
00:02:08.120does influence somebody's life outcomes and you know we're seeing that more and more in our policy
00:02:12.840in our law and in our culture so i think this is as good a time as any maybe the best time
00:02:17.760to look at conservative ideas about sex and gender, because they're becoming really obviously
00:02:22.000present in our lives. Yeah, I agree. And people have been sort of pointing out that in a lot of
00:02:26.520these moral panics, we revisit these ideas from the 70s and 80s, you know, the anti-drag ban,
00:02:32.100I mean, the words female impersonations that have showed up again, like this is how in the 60s or
00:02:36.82050s, you were, you were charged if you were gender nonconforming in public, these are deep cuts,
00:02:42.440people are really playing, you know, not the hits from 20 years ago, they're playing them from 70
00:02:46.500years ago. And I think it's really worth thinking about both what makes these ideas so virulent,
00:02:51.280but also how on earth they're still with us. Our very first episode, we are going to take a little
00:02:58.880look at something that is maybe more relevant and more tenuous now than we thought it was going to
00:03:05.300be. And that is... Gay marriage. Marriage. Marriage. Yeah, 2013's hottest topic. Yeah,
00:03:14.060and it's back baby it's got everything nuptials two men bound by the law websites websites
00:03:21.640yeah cakes yeah but just don't ask that lady from colorado to make it
00:03:26.120uh so it's hard to remember that before freaking out about 12 year old shop putters
00:03:33.040kids allegedly pooping in litter boxes at school and the woke mind virus tearing down statues to
00:03:39.720your local slave owner. Serious conservative voices were worried about how two dudes in San
00:03:45.580Francisco tying the knot at City Hall might lead to a licentious all-out fuckfest in your local0.98
00:03:50.780cul-de-sac. Especially for younger listeners, I think this is going to be a pretty strange0.98
00:03:54.560conversation. I have a good friend who teaches LGBT history, and he once tweeted that he was
00:03:59.840looking at a bunch of interesting documents from the 1970s. And one of the kids was like, oh,
00:04:04.760was gay marriage legal then? And it's just like how quickly we forget.
00:04:08.720Yeah, I think it's weird. I mean, Adrienne and I are a smidge older than our students, but we've got, what, like 10 years between us or something like that? And when gay marriage became legal, I was kind of like newly an adult, like had just started dating. And it was this whole abrupt reversal of what the terms of adult life were going to look like just kind of as soon as I got there.
00:04:30.480You know, there were suddenly all these avenues for assimilation and acceptance that have been like very foreclosed when I was a kid.
00:04:36.240And now they're kind of, you know, maybe in danger of being foreclosed again.
00:04:40.460So why talk about marriage for our first episode?
00:04:43.720Well, for one thing, it's been 10 years.
00:04:46.840Since the federal government began recognizing gay marriages after the Supreme Court, United States v. Windsor, it's just the right amount of distance, I think, to have kind of sufficiently estranged ourselves from the discourses.1.00
00:04:57.160and to kind of notice how freaking weird they were to begin with.0.99
00:05:00.980Yeah, there was all of the rhetoric about what a family really meant
00:05:05.900and how to raise children and why the word marriage
00:05:11.940could or could not be extended to these lifelong unions
00:05:26.040Michael Moore made a song it was rough it was a dark time I mean the weddings were great but
00:05:31.780yeah there was a lot of um a lot of joy a lot of hope a lot of like sort of moral determination
00:05:37.720and also a lot of compromises and sort of strange political position taking and how we got there
00:05:44.840and I think maybe we are at enough of a remove and hopefully uh knock wood secure enough in our
00:05:51.760To be able to look back at that era with a little more honesty or a little more critical foresight and see how history shaped this conversation about this institution and how it was going to change going into the new century.
00:06:07.140Yeah. I also think that there's an element here where there was a lot of worry about it being the wrong issue, about being too soon or being kind of pointless. Part of that was, and I think this is why it's an interesting topic to start a podcast about conservatism off on, is that conservatives were not all in the predictable positions here.
00:06:27.480You got these, like, you know, God created Adam and Eve, not Adam and Steve kind of people, but like, we'll meet some conservatives who we'll meet later and like, dunk on like heartily being kind of on an interesting side of this, like either outwardly pro gay marriage, or even leading the conversation. And so it's an interesting moment where sort of like the very obvious camps into which everyone fell at the end, weren't always so obvious. And I think that makes it interesting, too.
00:06:52.460Yeah, gay marriage was, and I think to some extent remains a little bit of a weird issue, because it's a combination of something that the left likes, which is gay people, and something the right likes, which is marriage, with something the left often doesn't like marriage, with something the right really doesn't like gay people.
00:07:10.300So it's not an intuitive issue. It was not an intuitive place for the gay rights movement to go. It was not an intuitive goal for the conservative movement to oppose. All of these things were very contingent. And the way it worked out is not exactly the way I had remembered from my own life before I went back and investigated this.
00:07:26.840Well, the other thing to think about, and this is something that's going to sound maybe a little strange to people who haven't sort of delved deep into queer history, but we'll get back to this point later on if it doesn't make sense right now.
00:07:37.220But the idea that queerness in some way opposed itself to these kinds of institutions was kind of foundational, right?
00:07:43.860I was reading this essay by the German novelist Thomas Mann, which is from 1925, so quite old, Marriage in Transition.
00:07:50.460Probably gay man, as far as we know, married to a woman.
00:07:53.680And it's ultimately the essence of marriage.0.98
00:07:55.040and he's like the whole point of non-reproductive sex and love is that it's like it's momentary
00:08:01.780it's irresponsible and like he means that both like the essay is both like oh that's horrible
00:08:08.180and that's why you probably should get married but also he's saying but also it's kind of awesome
00:08:12.320right so this is like the the worry that you're kind of throwing out the you know well not the
00:08:17.860baby with the bath water but really not the baby very emphatically not the baby yeah but like that0.76
00:08:22.240you are uh there was a worry among some like more radical queers this is like the left-wing critique0.74
00:08:27.660of gay marriage is that it like kind of gets rid of everything that is cool and promising about0.58
00:08:32.300gay people like alternative visions of kinship challenges to hierarchical patriarchal property
00:08:40.380relations and things like marriage these ideas that you know we have this community that's0.93
00:08:45.960actually really challenging the way we organize family, sex, love, kinship, and why would we just
00:08:54.260reintegrate that into the status quo? Doesn't that kind of burn up all its potential?
00:09:00.020Here's another reason I think this is kind of worth revisiting now. I think a marriage reveals
00:09:05.060that while most of us would say that we're kind of a little suspicious of the idea that, oh,
00:09:09.840we're always making progress. Is it all getting better? I mean, I think it's a really hard thing
00:09:12.960to claim in the 2020s. But when it comes to social issues, we actually do have this kind of
00:09:17.840knee-jerk instinct that says like, well, we're moving forwards, not backwards. We think we're
00:09:23.260done talking about a certain social issue. We've moved on. And gay marriage is a great case of that
00:09:28.460for like, I think for you and me having lived through it, it's a lot more obvious maybe than
00:09:32.020for folks who haven't, but like it was a hotly contested issue until the decision came down
00:09:36.7002015. And then like everyone kind of just moved on. It was just Zippo, right? It was an election
00:09:41.400turnout issue was something that George Bush probably won in 2004, partly because of this,
00:09:47.000like people made a point to go to the polls for this. And then in 2016, it was like, who gives a
00:09:52.180shit, right? And in some way, we would like that to happen, but it has two corollaries, right?0.99
00:09:57.680When it became legal, everyone kind of just memory-holed the substantial opposition that
00:10:02.760existed. Everyone just kind of memory-holed just that 50% of the country had been dead set against
00:10:07.640it. Kind of the same way that conservatives who love quoting MLK, including last week when
00:10:12.820affirmative action was abolished, right? Probably, sorry, but would have held the club that hit him0.54
00:10:17.700over the head back in the 1960s, right? People now are like, oh, let's just move on. But there
00:10:22.940was substantial buy-in on the anti-gay marriage position that we all kind of memory hold. And
00:10:27.560here's the thing. Memory holding things is fine, but the thing is these ideas have a way of
00:10:32.120persisting. The moment the gay marriage issue was mooted by the Supreme Court's decision in
00:10:36.480Obergefell v. Hodges in 2015, the right pivoted to a different issue. I remember thinking at the
00:10:41.480time, God, this is so desperate. Like, if this is the best you can do, I'm not that worried for the
00:10:46.340future, shows what I know. And it was basically trans people and their rights to use bathrooms,
00:10:51.140right? And the thing is, historians, I think, agree that it didn't work then very well. But
00:10:57.720the thing is, it's back with a vengeance, right? So like... A month after Obergefell,
00:11:01.320these questions were back, but they needed to marinate for another seven years. And then,
00:11:05.760boom they're back and like and we're having the same freakouts we had about gay marriage about0.83
00:11:10.540trans kids using the bathroom of their gender and i think that that's really interesting part of what
00:11:15.940i'm really excited about to talk with you about adrian is tracing the common sort of intellectual
00:11:20.620foundations of these moral panics of these beliefs about sex and gender because you know we see a lot
00:11:27.620as you mentioned a lot of the same arguments that were used in the 2010s against gay marriage now
00:11:32.260being used against trans rights but then you know also it's not like gay marriage has actually gone
00:11:38.160away you mentioned that like after i would say the end was actually in 2015 with overgefell like
00:11:42.780windsor was the decision in 2013 right that struck down section three of the defensive marriage act
00:11:49.920and made the federal government for the first time recognize same-sex marriages right and at
00:11:56.320that point the writing was kind of on the wall but two years later is when gay marriage actually
00:12:01.960became legal nationwide and overheld v. Hodges in 2015. And at that point, states lost the ability
00:12:10.320to ban gay marriage within their borders the way they had lost the ability to ban abortion with
00:12:14.340Roe. But then, you know, in Dobbs, which overturned Roe in 2022, Clarence Thomas wrote a dissent that
00:12:22.200really kind of outlined his gender reaction program, right? And he says, now that we've
00:12:28.300overturned Roe and Casey, and we've given states an ability to ban abortion. Next up, we're going
00:12:36.340to overturn Ogre Befell. We're going to overturn Lawrence, which made gay sex legal nationwide.0.97
00:15:09.360And if you look through, and this is why I sort of singled out Windsor as opposed to Obergefell,
00:15:14.760because for Obergefell, like they barely even bother to marshal any more experts, I remember,0.63
00:15:19.060because it's like, it was so fucking embarrassing, right? Like, it's just like all this stuff sort
00:15:23.040of collapsed in on itself. Now, we're not looking at that stuff. We're not really looking at the
00:15:27.680witness box. We're talking about all this stuff that you could just sort of talk about out there
00:15:31.700in the public sphere. A lot of that went very, very silent once you were in court and people
00:15:35.980were like, do you actually have data for this? And they're like, well, no, no, not so much. It's
00:15:40.800just, I don't like them. And they're like, yeah, well, that's, I'm sorry, but that's not going to
00:15:44.400be good enough. But we're really interested in the kind of ways that like, you know, in media
00:15:47.740it was talked about, in the way it was talked about on college campuses, the way it was talked
00:15:51.300about in sort of emerging social media, et cetera, et cetera. Yeah. And I think that's interesting
00:15:55.720because the reality is that gay marriage had been since really the Stonewall era, it had been
00:16:01.060something that came up periodically, mostly as a thought experiment. It would be a challenge for
00:16:07.340philosophers or for sort of like the fringes of the legal academy or occasionally like theologists,
00:16:16.020right? But it was not a central demand of the gay rights movement. What it was, was a sporadic
00:16:22.760demand of individual couples who didn't really have a ton of institutional support.
00:16:27.480And then very much like the moral panics of our day, with these sporadic moments that then get whipped up into right wing reactions to it, right? People who are sort of my age, so, you know, my 40s, I can recall the big debates where you can sort of tell, again, 2004 is one example of this.
00:16:42.680But apparently, I found out in researching this episode that it went way back further, that Republicans would turn to this if they needed an interesting get out the vote thing.
00:16:52.660Like Vermont would do a thing and like 20 marriage licenses would be issued or some dude in Hawaii sued.
00:16:59.440And then you do another one of these freak outs.
00:17:02.900I think that the mainstream gay rights movement for a long time thought like we're being forced into this.0.97
00:17:07.840and i think that distraction sideshow note sort of always clung to it at least on the left if you
00:17:13.460were like this isn't actually the thing we want to be talking about i think that's sort of the
00:17:16.820thing the way people sort of came around it was to say you're using this as a metonymy for attacking
00:17:21.520our dignity in general and that's worth defending not sure this piece of paper is like the hill i
00:17:27.760want to die on but like my dignity is important to me and so like i guess we'll do battle on this0.98
00:17:32.740battlefield of your choosing but it was always kind of like it was not an area that the gay
00:17:36.940rights movement in any way kind of proactively pushed into, it was really much more something
00:17:42.380that they usually felt they got forced into, if I recall correctly.
00:17:45.380Right. The big gay rights organizations, the legal fundraising, lobbying juggernauts,
00:17:53.500so places like Lambda in the Northeast, the GLAAD group, and then the human rights campaign,
00:18:00.560they really were not interested in marriage. They thought it was symbolic, marginal,
00:18:06.940Not very important. Their focus, especially sort of after the AIDS crisis or their non-AIDS focus, was around civil rights litigation, right?
00:18:19.280So things like lobbying states or suing to get sexual orientation included in the list of protected statuses in a public accommodations law,
00:18:30.500which, you know, as we're talking, the Supreme Court just drove a truck through, or employment
00:18:35.960non-discrimination, housing non-discrimination. And what had sort of emerged in that effort was
00:18:42.240sporadic bits of legal recognition or corporate recognition for gay relationships. So in the 1980s,
00:18:52.560I believe there was one of a number of post-AIDS litigations was this ruling by a judge in New York City that a man whose partner had died was entitled to remain in his rent control department.
00:19:07.320And it was things like that that sort of slowly gave little marginal bits of legal acknowledgement to, you know, the legitimacy of these relationships, their cognizability before the law, the ability of gay partners to sort of claim benefits.
00:19:23.520But it was a lot of things that were sort of in these tragic moments.
00:19:27.540There was a case in, I believe, Pennsylvania, where a young woman, she was like 24 or 25, was in a car crash that paralyzed her and gave her permanent brain damage.
00:19:38.720And the woman's parents took custody of her and forbid her live-in girlfriend for many years from taking any part in her care.
00:19:48.180And that partner sued and was eventually able to take custody. And that was in the, I believe, early 1990s. But it was things like that. It was at the margins, tragedy, extreme cases, often involving debilitation or death in the aftermath.
00:20:03.840Yeah. And we should mention also maybe, so going way back, so I discovered that there were like attempts to get marriage licenses as early as 1970. There's Jack Baker and Michael McConnell in Minneapolis. What that drove home to me was that basically marriage is, of course, one of those places where we intersect with, and there is the little product of a gay marriage in the background, where basically, we interact with our government at the most local level.
00:20:29.000That is to say, right, there were also after gay marriage became legal, there was a famous case in Kentucky, I believe, of the woman who refused to issue marriage licenses.0.99
00:20:39.300Kim Davis, the fundamentalist with hair down to her ankles.0.98
00:20:41.920Yeah, yeah, with like super long hair.1.00
00:20:43.680That's the only thing I remember about her, and I forgot her name, but she's the hair lady.0.98
00:20:46.940She had a meeting with the Pope, but she was an individual county clerk who refused, after Obergefell, I believe, to issue marriage licenses to same-sex couples as was required of her job.
00:21:01.680303 creative, yeah. And that will be how gay marriage rights are begun to be eliminated through these individual religious liberty partitions, I bet you money.0.91
00:21:10.900But, you know, it does mean that also there were sporadic cases where there happened to be a sympathetic county clerk official, such as in Minnesota, when Baker and McConnell applied for that license.0.70
00:21:23.760I mean, there's famously, we're sitting here in San Francisco, Gavin Newsom issued a bunch in 2004, right?
00:21:28.700When he was mayor. Yeah, he decided to, you know, it was very Gavin Newsom. But in 2004, as this had become a national crisis, he went to George Bush's State of the Union and heard, you know, some homophobic aside and said, I'm going to make a point and get a lot of attention.
00:21:45.900And he instructed his city clerk to begin issuing same-sex marriage licenses.
00:21:51.260And the first one was issued to this couple, Del Martin and Phyllis Lyon, who were old women.
00:21:58.540They had been the founders of a pre-Stonewall lesbian rights group called the Daughters of Bilitis back in the 1950s.
00:22:05.460And they were these two tiny old women who got married at City Hall in 2004.
00:22:10.060and then they got married again and they had to get married again in 2008 because their marriage
00:22:15.340was eventually voided as were all of the same-sex marriages issued but you know there were
00:22:19.560same-sex marriages issued in san francisco under gavin newsom's leadership for like two weeks and
00:22:25.480it was like a very festive atmosphere and there was a lot of little moments like that like vermont
00:22:29.160had that massachusetts formally legalized gay marriage there was a lawsuit in boston and those
00:22:35.140couples went and got married hawaii they didn't actually get married in hawaii because that was
00:22:40.480hawaii was the first oh yeah that's right um because they sued and in 1993 the hawaii supreme
00:22:47.340court there are three couples that uh sued for marriage licenses in honolulu and the hawaii
00:22:52.340supreme court said you know what i think there's an equal protection claim here and you guys have
00:22:56.640to go back down to trial court you can't just throw this case out and while they were waiting
00:23:00.740for a trial. Hawaii, with the aid of a massive opportunistic effort by Republicans, particularly
00:23:08.680the Mormon Church, which I think we'll have to talk about again, they went in and passed a
00:23:13.600constitutional amendment, I believe in 1993. But there was so much worry that a state, one of
00:23:19.640these liberal blue coastal, you know, decadent states was going to legalize gay marriage, that
00:23:27.580that would create a obligation for other states to recognize licenses given in one of these legal0.87
00:23:37.040states under the full faith and credit clause of the constitution right and this became a fundraising
00:23:41.520juggernaut for the republican party for the religious right they scaremongered about this
00:23:47.320forever yeah so in 1973 maryland becomes the first state to ban same-sex marriage and then there's
00:23:54.660basically this trickle that you know it's very interested in that like gay marriage then becomes
00:23:58.360as you say because of the full faith and credit clause of the constitution comes kind of a state
00:24:02.380issue it's to say you know it's state supreme courts and it is uh state constitutions that
00:24:06.680get amended to ban this practice get operationalized in this way so right you have these
00:24:10.940like local clerks sometimes bucking the trend but then you have like with the exception of
00:24:15.700massachusetts like usually the states kind of by mid-90s everyone had essentially banned gay
00:24:21.180marriage and then we get actually this is a question you maybe you can explain it to me like
00:24:25.880so doma is signed by bill clinton in 1996 like if there were all these state constitutions that
00:24:32.560were had been amended was there a real fear that the federal government would be the one
00:24:36.840to contravene that because like clearly no one was going to flip 50 states no what they were
00:24:41.880afraid of was a domino effect because here's the thing the full faith and credit clause of the
00:24:46.080constitution requires that states recognize the laws and legal orders of other states right so if
00:24:54.080i get a marriage license in hawaii the fear was that i could then take that back to my house in
00:24:59.960kansas yeah well and go to my government well that was what ultimately did happen all about that yeah
00:25:05.880i could take that license and go no kansas you have to recognize this and doma was the defensive
00:25:13.360Marriage Act was put forth by the Republicans directly in response to this Hawaii Supreme
00:25:20.660Court ruling that said, you know, gay couples might have an equal protection claim to a
00:25:37.320And then, you know, these other states will have to recognize gay marriages.
00:25:43.360And so DOMA was an attempt to, A, sort of carve out a loophole to the full faith and credit clause so that other states wouldn't have to recognize gay marriages that were performed in Hawaii or Vermont or Massachusetts or whatever, and also shield the federal government from recognizing gay marriages.
00:26:02.880So you can't take your, you know, Hawaii didn't actually wind up legalizing gay marriage. They wound up amending their constitution to prevent that. But the idea was nobody would be able to take a hypothetical Hawaii marriage license that was valid in Hawaii and, you know, cash it in for a legally cognizable marriage in Kansas or Minnesota or Arkansas.
00:26:24.060and also the federal government would not acknowledge those marriages as legitimate for
00:26:31.440taxation purposes mostly you can already hear so the rumblings of like capitalism in the background
00:26:37.380here right like one reason why we have the full faith and credit clause as far as i understand
00:26:41.140is that like imagine you and i incorporate a company in california and then like kentucky
00:26:47.800says like yeah it's not a company under our law or something like that or like you know you don't
00:26:51.480own this, right? Like if you purchase a car and drive it over a state line, I don't forfeit this
00:26:56.860car, right? The kind of carve out that DOMA created in some way was saying, oh, this isn't
00:27:04.340just any other contract because any other contract, you really can't do that. You know, now Dobbs is
00:27:09.660creating kind of similar things, but that's a pretty new thing. The only other, I mean, I'm sure
00:27:14.000there are other antecedents that I think of because I'm not a lawyer, but the famous one are fugitive
00:27:18.020of slave laws, right? Where basically, you know, there were questions of like recognition and
00:27:22.360non-recognition of people's individuality and people's status as property, basically, right?
00:27:27.700So it's this really, really central thing. And DOMA was basically creating this absolute,
00:27:32.700you know, it's like, oh, this contract is not really a contract. And of course, that becomes,
00:27:36.040I think, even more interesting after the year 2000, when Vermont became the first state in the
00:27:42.100country to legalize civil unions between same-sex partners so suddenly you had these unions that
00:27:48.540were saying it's not a sacrament it's just purely contractual a lot of countries went this way like
00:27:54.020in french the pucks things like that right like civil unions were very hot for a moment there
00:27:59.320at the same time right it just kind of recreated the recognition problem on another level right
00:28:04.960well civil unions were an attempt to square the circle because vermont was one of a few of these
00:28:11.520states after hawaii there was also massachusetts there was vermont there were a couple of very
00:28:17.180carefully planned lawsuits that were orchestrated i believe in vermont by glad and these were
00:28:25.640full of couples who were you know like paragons of bourgeois marriage like people who were raising
00:28:33.220kids together people who owned homes together people who had been in sort of monogamous
00:28:39.260long-term committed partnerships and were like visibly partnered in their communities
00:28:44.620who sued for marriage licenses and were often making sort of similar equal protection
00:28:50.740claims or anti-sex discrimination claims on the basis that sexual orientation discrimination is
00:28:56.720sex discrimination. And Vermont's Supreme Court did what a lot of these state Supreme Courts wound
00:29:03.060of doing which is saying yeah the law as it is written does not actually allow the state of
00:29:10.280vermont to deny gay couples marriage licenses this is all in 2000 and what we're going to do
00:29:16.060is we're going to suspend that decision and make it not go into effect to allow the state legislature
00:29:23.380to ban it because obviously you know the logical conclusion here cannot be um cannot be what
00:29:31.700happens so there was this kind of legal recognition that the couples were entitled
00:29:38.600to some kind of state cognizability of their relationships right and a ton of pressure
00:29:47.000from outside groups from in-state republicans there's a huge backlash to this in basically
00:29:53.220every state where it happened to uh not give acknowledgement to gay couples right so there was
00:29:59.880sort of the legal equality doctrine emerging and then there was widespread popular homophobia so
00:30:05.520this is actually one of these areas where you know the law was sort of ahead of popular social
00:30:10.640progress we're now like you know talk about whiplash but we're now in an era where the law
00:30:14.660is being dragged very far behind popular opinion but at the time in like the very early 2000s
00:30:21.060the law was kind of in at least a few of these states was kind of getting ahead of it and so
00:30:24.980the way that these legislators tried to square the circle to both comply with the court order
00:30:29.460and keep their jobs was they invented this novel formulation called civil unions which is basically
00:30:36.600in most states it was marriage without the name uh all the legal protections of marriage all the
00:30:42.780entitlements of and obligations of marriage uh they like rewrote the rules around dissolving
00:30:48.580this to just basically mimic a divorce you know um but it wasn't called marriage it was called
00:30:53.940something else so and i kind of am fascinated it was a separate thing but but it was equal oh yeah
00:30:58.680you know it was it was just it's all of the material benefits of marriage without the
00:31:05.120dignity right yeah yeah and this is sort of the moment when we get into it becoming this kind of
00:31:09.060big national issue the federal marriage amendment is introduced in the house of representatives in
00:31:13.5402003 becomes a big election issue in 2004 between 2004 and 2006 i think like something like 23 states
00:31:19.900ban same-sex marriage 2008 is when proposition 8 bans same-sex marriage in california also the
00:31:27.280mormon church big involved in that like i was here for that campaign i saw it yeah jesus how was that
00:31:32.720it was frightening i mean it was and just to give you a sense of how unsettled that territory was
00:31:39.340right california resoundingly delivered all the states electors to barack obama and that same
00:31:45.660night it became very clear that by a small but definitive margin i think it was something like
00:31:51.70051-49 or 52-48, Proposition 8 had passed. Yeah. And the churches were, of course, extremely
00:31:59.000instrumental in that. And it turned out that a lot of the statements made pushing for Proposition 8
00:32:05.720became an issue later on. I remember there being rampant misinformation. And yeah, this is, I think,
00:32:10.580where David Boies then comes in with that statement about there's no lonelier place than
00:32:15.300the witness stand, because a lot of these people then got asked about, like, where did you get your0.99
00:32:19.320data here and it's like well no i'm out of my ass i you know i just don't like gay people0.97
00:32:24.140and so vibe based data yeah yeah going on vibes but it gives you a sense right like so barack0.99
00:32:31.220obama comes into the white house basically with the biggest state in the union determining that
00:32:35.940even in you know already pretty blue california it's not quite what it is today but it was pretty
00:32:41.100liberal even then in very diverse california there is no majority for gay marriage at least
00:32:47.380you know if you if you lie to people about it enough you know and i think it's worth pausing
00:32:51.760there to reflect on the democratic party right because bill clinton signed doma without blinking
00:32:59.400he was willing to do it and his you know quite prominent funders in the gay community especially
00:33:07.560in california didn't push back they were like don't be a martyr on this is the line i heard
00:33:13.760And, you know, Elena Kagan in his White House counsel's office at the time was trying to get this signed as quickly as possible. They wanted it done. And, you know, Barack Obama in his 2008 Yes We Can inspirational, oppressively saccharine campaign that now I think I look back on with a little bit of bitterness because of what came after. But in all of his hopefulness and sort of unapologetic progressivism, he didn't favor gay marriage.
00:33:39.260No, no. That took, you know, the thing that seems to solve all our problems these days, a gaffe by Joe Biden, as one of the many things that he seems to sort of blunder into that, like, end up kind of going his way in interesting ways. He just kind of...
00:33:54.560Joe Biden falling up. It's a recurring theme in American history.
00:33:58.720Yeah. He just kind of talked out of turn, apparently, and got the ball rolling, I think, in 2011.
00:34:03.840It was 2012. It was during the re-election campaign. Yeah. And it was a time of, I guess, some vulnerability. But between 2008 and 2012, the politics has shifted enough that it had gone from being a vulnerability for Barack Obama to support gay marriage in 2008 to being a liability for him not to.
00:34:22.400Right. So he had told the Justice Department to stop defending DOMA in 2011, saying that he believed it to be unconstitutional.
00:34:32.0402013 is Windsor. It's when DOMA gets struck down, or Section 3, which kind of made sure that the federal government had to recognize same-sex marriages that were performed in states where they're legal.
00:34:44.680Then there's Hollingsworth v. Perry, which was formerly known as Hollingsworth v. Schwarzenegger, which is where the governor briefly enters our story, where SCOTUS ruled that there is no legal standing to defend Prop 8, effectively allowing same-sex couples to marry in California.
00:35:00.280And then that's when the first seven states legalized same sex marriage that very year. So after 2013, like that's when the dominoes really fall. And also when I think kind of public opinion shifts in this really big way that basically it becomes this partisan issue. The number of Democrats that are openly against gay marriage just dwindles really quite substantially. Whereas, you know, when Biden took that position, still kind of a minoritarian position, officially within the Democratic Party, everyone knew where they really stood, but they didn't want to say it on camera, basically.
00:35:28.880like you know the way that democrats were about choice for a long long time until they end up
00:35:34.440winning elections on it and then the dominance sort of fall very very quickly and then it kind
00:35:38.900of goes down the memory hole and maybe maybe we pick it pick it up there i mean something i want
00:35:44.140to dwell on about this era of very rapid change is that there were you know something very um
00:35:50.900kind of unique to gay marriage is that it had so many sympathetic mascots right like these couples
00:35:58.460who wanted to get married or like very frequently widows who had been you know in these long
00:36:04.540devoted relationships and sort of ed windsor like becomes this like great case study yeah how the
00:36:11.260like narrative politics of gay marriage work she was with this woman thea spire since they were
00:36:16.100very young i think they were in like their 20s that's right thea spire was a clinical psychologist
00:36:21.400in New York and E. Windsor worked for IBM. They were together for 40 years before marrying in
00:36:29.1802007. And Thea, who had by that time been sick for a while, died in 2009. But they had been
00:36:37.600together for a very long time. They considered themselves sort of informally engaged for a long
00:36:41.480time. Like famously, Thea had given E.D. a diamond pin instead of a ring so that they could have a
00:36:46.920symbol of their union and edie could stay in the closet at work and they were so rich dude they had
00:36:52.440a if you're ever in new york city on fifth avenue like right just like a block north of the washington
00:36:58.520square park arch is their building it was a huge beautiful apartment i think they had a place in
00:37:04.100like provincetown like they were richer than god and thea you know when they got older had this long
00:37:12.660illness that required a lot of like years of intimate patient care and edie did it and she
00:37:19.520did years of very difficult emotionally and physically taxing caretaking for her partner
00:37:26.020they had been married in new york i believe in 2011 when new york city new york legalized gay
00:37:31.640marriage but the defensive marriage act was still in effect which meant that when edie went to go
00:37:38.460file her taxes she got slammed with all these inheritance taxes that would not have been
00:37:45.300applied to her if her marriage had been recognized by the federal government right so like on the one1.00
00:37:50.220hand this is an heiress who doesn't want to pay her taxes right on the other hand why doesn't the0.99
00:37:56.060other heiress whose dead spouse is male have to pay those taxes and you know she became a very
00:38:01.740sympathetic figure she's also kind of like good on camera in this way that i also wonder if there's
00:38:06.500like a little bit of like not all of these plaintiffs were so good at being in the media
00:38:10.200and edie windsor was very media savvy very comfortable being interviewed kind of like
00:38:16.640sassy in this way that i think was like non-threatening maybe especially because it0.54
00:38:20.840was coming from a woman yeah i think there's a bunch that that's shifting there right republicans0.99
00:38:25.000were trying to make this about hey gay sex is gross but what it ended up being is about a lot0.98
00:38:30.080of end-of-life decisions about care about what kind of a legacy you leave and i i think these0.94
00:38:35.740that's sort of how it was universalized right like basically the question of shifts away from
00:38:40.780you know what sets these couples apart to like what makes these couples kind of universal and
00:38:46.120one of the interesting things is like i think you're right that it came with these really
00:38:48.440interesting narratives what's interesting about it too though is that they weren't actually like
00:38:52.780culturally that influential or powerful there was like one it wasn't the it wasn't windsor right
00:38:57.660it was a movie starring elliott page and julianne moore about this issue i believe right where also
00:39:03.540about like dementia older and it was yeah there was a lot of in a way there's nothing less sexy
00:39:08.920than marriage right um and there's a way in which marriage sort of desexualized the gay rights
00:39:16.620movement that's right and you know that like i think it's really worth thinking about we're in
00:39:21.1002023 2013 are the events we're talking about this big tipping point for marriage equality in that
00:39:28.680movement but we're only 10 years out in 2013 from 2003 which is lawrence versus texas the end of
00:39:35.440sodomy yeah laws and that had been moment sodomy stopped being fun jump the shark well you know
00:39:42.680states had these laws on the books that were kind of sporadically and like really cynically enforced
00:39:49.220it was often something they got you on when they really wanted to get you for something else right
00:39:53.000states retained the right to criminalize gay sex and non-productive kinds of straight sex also0.77
00:39:58.400And then once that was over, it sort of freed up a space in the straight mind, I think, to stop thinking about like the terror of anal sex so much and to start sort of seeing this other side of gay life, which is very domestic, very imbued with these kinds of values that I think are kind of sex neutral or asexual, like, you know, devotion, loyalty, sacrifice, these kind of unfun.0.91
00:57:29.660I looked it up on Yelp and I was like, man, two and a half stars.
00:57:34.140So like, there was a syndicated columnist named Maggie Gallagher, who's like kind of an interesting C-list celebrity of the marriage debate, but she was a social conservative. And her backstory, a lot of them have these kind of like tragic origins, like Maggie Gallagher's backstory is that she was able to come from like pretty humble origins and got her way into Yale.
00:57:57.500And then at Yale, right as she was about to graduate, she found herself pregnant.
00:58:02.100She had met the guy who knocked her up through like a conservative debate club.
00:58:07.000And she was a Catholic opposed to abortion, decided to have the baby.
00:58:11.460As her pregnancy progressed, decided to keep the baby.
00:58:14.180And the guy who got her pregnant kind of just disappeared.
00:58:24.640And, you know, she became a crusader against birth control, against abortion, and for marriage, because she, you know, thought that it was very important to sort of secure men's obligations to fulfill, you know, to support women in their vulnerabilities.
00:58:40.940Why are women so vulnerable and dependent on men is not a question these women ask themselves. But her line, when she sort of became really kind of fixated on gay marriage and opposing it, her line was, sex between men and women is weighted with the knowledge that this is the act that produces new human life.
00:59:01.200and you know you kind of need that distinction right to make marriage only for straight people
00:59:07.300in a way that like really encompasses all straight people uh because otherwise it's only for
00:59:11.880young fertile people but then like some of the fixations on straight sex kind of lead to even
00:59:18.220more like like obsequious pronouncements there's this guy robert george from princeton who's one
00:59:24.260of the intellectual leaders of the anti-gay marriage movement he's a legal philosopher
00:59:27.580also the uh best friend of cornell west oh and like an obsessive uh gender conservative he's at
00:59:34.660this place called the witherspoon institute which i'm sure we're gonna have to yeah like this nasty
00:59:38.920little think tank that's just like sex obsessed at princeton and he goes the bodily union made
00:59:46.400possible by sexual reproductive complementarity for reasons we explain in detail in our book he
00:59:52.200wrote a book against gay marriage, is no mere mutual stimulation, is indeed personal union,
00:59:58.860personal union of the sort that can enable spouses to unite in all dimension of their being as
01:00:04.280persons, becoming truly and not merely metaphorically, quote, one flesh. What does that
01:00:10.800mean? Nobody can tell you. I mean, I think that, you know, the opposing terms here are really
01:00:16.760interesting, right? Like, so mutual stimulation is basically, right, what George clearly thinks
01:00:21.160gay relationships are about i also think that you know when the risk that you might produce life
01:00:26.360right that you mentioned has to be heard in the first years of the 21st century against this idea0.99
01:00:31.740that you know that gay sex unusually conservatives when they think of gay sex they think of anal sex0.98
01:00:36.620between two men two cis men right carries the germ of death right like which in the in the aids era0.99
01:00:42.880still sort of like you know has only this opposing possibility of like actually being able to cause0.80
01:00:48.600death and i think that that's that's so key here the way we move from like this complementarity
01:00:54.420argument that george is making here that used to be about like oh you know like there's the there's
01:00:58.720the famous clip from the daily show with this ex-gay preacher who's like you know this doesn't
01:01:03.080fit and he's like you can't see it but i'm pointing my two fingers at each other right he's like you0.71
01:01:07.900can't you can't do that but you know this and then he'll make a hole with one finger and stick his
01:01:11.840other finger through it like this fits right that's what complementarity is on some level
01:01:15.480But then, of course, it's like, and of course, which leads, I think, is Ed Helms interviewing him, like, I'm no expert, but I don't think that's how they do it, which I think is the perfect response. Anyway, it combines that with the far loftier idea that, like, people are complementary in these, like, existential ways. And we're going to encounter that again later on.
01:01:32.440This is like the moderating influence of the woman versus the strong, impetuous way of the man, right? Like all this shit gets packed into this idea of complementarity. And the trick is that you never have to mean any one thing because any one thing by itself is like, obviously inane. But like the ability to kind of hop from one to the other is extremely important to making these kinds of claims plausible.0.99
01:01:54.300Yeah, the very slippery metaphor between like the physical mechanics of straight intercourse to the supposed essential nature of men and women as like, quote unquote, complimentary is very insidious. And they do just sort of slide without denoting when they're talking about the body and when they're talking about the character.
01:02:14.400yeah i mean like right down to like i'm sorry like this is like where i'm the literary scholar
01:02:18.340comes up it's like george is saying becoming truly and not merely metaphorically one flesh
01:02:22.660i'm sorry but you are only metaphorically becoming one flesh if your literal flesh is contained in0.83
01:02:27.240your child like what the fuck did you do right like you you definitely provided important genetic0.74
01:02:33.560information but like i don't know like it seems like how did this flesh transfer happen like i'm0.97
01:02:41.280sorry that is a metaphor yeah like these are also the same people who will go like the body inside
01:02:45.380your body is not your body as a retort to any kind of like bodily autonomy argument for yeah
01:02:50.540abortion rights so like either the child belongs to you when you can assert argument over it then
01:02:57.540it's an extension of yourself and when you want to uh like exercise some kind of autonomy uh suddenly
01:03:03.480the child is its own being with its own rights yeah and i don't want to be like glib about this
01:03:07.900There's something mysterious about the act of and something amazing about the act of reproduction, obviously. There is human autonomy and our way of thinking about ourselves hits a certain limit. But if anything, that moment complicates our thinking, should complicate our thinking rather than making it obvious.
01:03:25.140And something like they become truly and not metaphorically one flesh is like, well, congratulations, you took something that's actually highly ambiguous and interesting. And you made it this like, supposedly straightforward thing when it is no such thing, right? Like, anyone who's undergoing the experience of pregnancy or birth will probably confirm that like, yeah, certain self conceptions hit a limit. But like, at the same time, like identity and difference are really poor ways of thinking about this.
01:03:52.000i don't know that gay sex needs a like a thorough uh defense i think it's got a lot of fans you0.83
01:03:58.960know um the idea that straight sex is like emotionally transcendent and that gay sex is0.99
01:04:05.800merely mutual stimulation it's like so incurious and like tawdry and just myopic and dumb uh like0.99
01:04:13.860sex comes only its meaning its potential its joy comes only from this like free zone of the0.73
01:04:19.920potential to create life it's just it's not true and it also frankly overlooks what was in like
01:04:26.4602000 2012 not at all true of heterosexuality either right you know heterosexuality is actually
01:04:32.600something that most of it does not produce babies and uh that's you know something these guys also
01:04:38.460want to take away which is also the subtext beneath all of this yeah and i mean do we think
01:04:42.760that a straight couple's marriage is negatively impacted if they are really do butt stuff or just
01:04:48.620like if the husband has a vasectomy you know it's like it's all kinds of non-procreative sex
01:04:53.120exists under the heterosexual right umbrella and like there's also kind of a disparaging of those
01:05:00.960unions as well sort of implicit in this idea that sex is only meaningful or most meaningful
01:05:07.660when it's potentially reproductive yeah it's like such a weird understanding of what sex is and how
01:05:14.700like do you not have any sexual joy in your life this is how you're thinking of it well i mean
01:05:18.580And I think that in some way, it suggests that you mentioned earlier, you quip that
01:05:23.480this was no longer conservatism standing astride the freight train of history yelling0.99
01:05:27.160stop, but rather, you know, beep, beep, beep, back that shit up.0.98
01:05:30.600Like this is refusing to ask the kinds of questions that the sexual revolution and advances0.99
01:05:38.620in medicine really kind of put differentiations within human relationships and human reproduction
01:05:44.040that like, you know, it's kind of impossible to turn the clock back on.
01:05:48.180And I think part of why some of these attacks on gay marriage could feel so overdetermined was precisely that they could pretend one last time that a bunch of things were the same, that everyone, if they delved into their own lives and their own existence, could sort of see had slid apart, had come apart really rather decisively.
01:06:07.960Yeah. So in this book that Robert George mentions, he wrote it along with a couple other little chodes, Sharif Gergis, who's a Catholic activist lawyer and a former clerk to San Alito, and Ryan T. Anderson, who's a one-time Heritage Foundation fellow and affiliate at that same Witherspoon Institute.
01:06:29.940They, along with Robert George, wrote this book called What is Marriage? Man and Woman, A Defense. It came out in 2012. And it was sort of the big intellectual contribution to the natural law argument against gay marriage. And it relied really heavily on this idea that there were two kinds of marriage.0.99
01:06:52.480There was what was called a conjugal marriage.
01:06:56.300And then there was what was called a revisionist marriage.
01:08:26.260So, you know, they were like kind of very alert to this reality that marriage had changed.
01:08:31.320I want to read briefly from this Robert George post-Windsor interview, like right after the
01:08:36.920Windsor decision, he gave his interview to the National Review.
01:08:40.400I know that Alito quoted their book in his dissent in Obergefell.
01:08:44.760I think he probably also quoted it in his dissent in Windsor.
01:08:47.140George says, for a long time, the idea of marriage as a conjugal union was, of course, simply taken for granted.
01:08:54.180It was established in culture and then in law long before the development of the modern concept or construct of, quote, sexual orientation, and quite apart from debates about same-sex conduct and relationships.
01:09:06.000Now, of course, it is under severe attack from people whose attitudes and beliefs have been shaped by a culture whose influences include Sanger and Reich, Kinsey and Hefner, value-free sex education and me-generation liberalism.
01:09:19.480We think those influences have been baleful in large measure because they have tended to obscure nature of marriage as a conjugal union.
01:09:28.080Our goal is to make what has become obscure vivid again.
01:09:31.620This gives away the anti-marriage equality game, doesn't it?
01:09:34.720the effort to retain marriage as exclusively heterosexual due to its natural law function
01:09:39.440can't really coexist with tolerance for divorce, contraception, or abortion.
01:09:44.160And we should say also without thinking hierarchically, right?
01:09:48.420Like the idea of what made marriage socially significant to conservatives, and this is
01:09:53.740true for Joseph de Maistre in the 19th century as much as it is for Robert P. George, clearly,
01:09:58.220to enter a marriage is to say we enter into hierarchies, to enter into societies, to enter
01:10:03.820into hierarchies where some people are quote-unquote naturally on top and other people are quote-unquote
01:10:07.900naturally not. And so anything that takes that away is anathema to these kinds of constructions.
01:10:33.820But there's another argument about gay marriage that kind of sees those hierarchies,
01:10:43.200those disciplining functions, those like sort of severe elements of the old conjugal style
01:10:49.900of marriage and goes, no, no, no, I want that for gay people too.0.95
01:11:00.560You want to introduce Andrew Sullivan?
01:11:01.740I mean, I'll say this about Andrew Sullivan. He will be a frequent subject of dunking on this podcast, although not today. I feel like this is an interesting, a genuinely interesting text, a genuinely kind of pathbreaking text that he wrote in 1989.
01:11:19.560Andrew Sullivan was born in England. He is of Irish extraction. He was raised Catholic and is still Catholic and he's gay and he's a conservative.0.57
01:11:28.360He was for many years the editor of The New Republic, probably at the peak of The New Republic's influence, I would say. He's most famous for his quite passionate embrace of race science. So, you know, you don't have to hand it to him.
01:11:44.840You know, Andrew Sullivan is not a good guy, and he has made his career sort of subsequent to his departure from the New Republic, being a racist, anti-feminist, you know, really inexplicably passionate in transphobia.
01:11:59.660You know, he's on the wrong side of basically every item of social progress that doesn't stand to benefit him personally.
01:12:07.500uh but on gay marriage he uh was a very early very outspoken advocate for gay marriage at a time when
01:12:13.980it was not a priority of the gay movement when it was not uh you know really even thinkable to other
01:12:20.480conservatives and he did use his platform at the new republic to really advance this and try and
01:12:26.600put it in the national conversation before anybody else was yes i say it's called here comes the groom
01:12:31.820it was a cover story wasn't it a cover story of the new republic that's wild 1989 so this is even
01:12:36.860before the hawaii yeah middle of the aids crisis i mean like holy cow yeah and so here comes a
01:12:43.320groom is a conservative case for gay marriage and basically andrew sullivan makes this case
01:12:48.880that you know the domesticating disciplining features of that old style marriage are something
01:12:55.780that he wants for gay couples he argues against legal recognition for gay couples outside of
01:13:03.420marriage he sees the emergence of these sort of like domestic partnership recognitions in sort of
01:13:10.280municipal governments and like on the fringes of state law as actually a threat to the order of
01:13:17.880marriage he's like this consecrating these relationships outside of the like nuclear
01:13:22.540family and marriage structure is what the threat is not concentrating them at all and he also kind0.91
01:13:27.000of at other points throughout his career makes this argument that gay men are promiscuous they're
01:13:33.780undisciplined they are like undomesticated they're having too much fun and that marriage will sort of0.87
01:13:40.780bring them into the home quiet their sexual lives and you know kind of get the gay male community to0.94
01:13:47.540like straighten up and fly right yeah i think that that's exactly right he thinks basically
01:13:51.760everything that like lefties and queer theorists were like scared of for gay marriage like this0.94
01:13:55.920I'll take everything exciting away from same-sex relationships he's like yeah more of that please0.99
01:14:01.080like time to calm that shit down a little bit and canalize it or usher it into the safer waters0.98
01:14:06.380safer shoals of matrimony basically you know Sullivan was definitely the most visible conservative0.99
01:14:12.900proponent of gay marriage but this idea that you know marriage will stop gay people from doing all
01:14:20.160the cool things that we don't like them doing this was like it had a few proponents on the right
01:14:24.740There was a gay opinion writer at the Wall Street Journal who advanced this idea. There was a paper from two University of Chicago economists at the height of the AIDS crisis that basically argued that, you know, we should start acknowledging gay marriages and sort of domesticating gay men's impulses so that when they die of AIDS, that will be the financial burden that falls on their husbands and not on the state.0.89
01:14:51.740uh very dark very cynical uh idea of gay marriage that you know we can exploit these people's
01:14:58.680affection for them to sort of outsource their care and privatize it uh and then there's this
01:15:03.100weird guy called david blankenhorn who was a heterosexual pro-marriage thinker there was a
01:15:11.340there was what was called like the pro-marriage movement in the 90s and aughts that was not uh
01:15:16.520really initially concerned with gay marriage they were just concerned with promoting straight
01:15:20.740marriage. David Blankenhorn actually started on the new left. He's a boomer. He got like a
01:15:26.720labor history degree. He was like a lefty, but had this bee in his bonnet that he thought the
01:15:31.640feminists had gone too far. And so he devoted his life to trying to roll back. Oh, I know. So
01:15:36.840atypical. But he devoted much of his life to trying to roll back no-fault divorce because
01:15:41.300he thought it was bad for the working class. And he created this organization called the
01:15:47.940Institute for American Values is that not the most fascist name you've ever heard beautiful
01:15:53.020that existed basically to try and encourage marriage deny benefits to people who weren't
01:15:58.120married discourage divorce and he kind of had this come to Jesus moment where he started thinking
01:16:04.120like no actually I believe in marriage even more than I believe in heterosexuality and you know
01:16:10.160started making a conservative case for gay marriage so this was sort of an idea that was
01:16:14.460in the ether. But Andrew Sullivan really became its poster child. And we might point to a couple
01:16:19.860of things here, right? On the one hand, first of all, this is not just a libertarian case for gay
01:16:23.460marriage. Oh, that existed too. These are to some extent kind of communitarian conservatives.
01:16:28.620And this idea that basically there is this individualistic or anarchic energy contained0.93
01:16:34.080in queer sexuality, and that the best way to basically rein it in is to institutionalize it0.87
01:16:38.660somehow is there. The other thing we should point out, of course, is that like, as you're hearing,0.99
01:16:42.540The idea that social ills might be attributed to decaying family structures was so incredibly influential when it came to, especially the, as you say, the working class, especially the non-white working class or non-white poor.
01:16:59.140or I think of things like the Moynihan report about the African American family. And in some
01:17:04.440way, a certain number of conservatives kind of got so caught up in that logic that basically
01:17:08.660they realized like, oh, we actually may have to make that same argument about queer people,
01:17:13.760right? Like the fact that these are not families in the way that we would recognize is actually0.99
01:17:18.740a problem. This is where like, this is dangerous to the body politic and people need to start
01:17:23.820getting married. And it's like, well, you're two ladies. It's like, well, I don't like it any more1.00
01:17:27.880than you do but we're gonna have to we're gonna have to swallow that beer pill right like so we'll
01:17:33.120come back to this question of family values again and again but like there is this kind of split
01:17:37.100personality to a lot of the opposition to gay marriage that the same people who hold up marriage
01:17:42.240as this panacea to everything it's like oh could this be structural racism nope it's just that
01:17:48.440people are getting divorced right then are like well but we got to exclude people from that right
01:17:53.680it's really interesting and then the other thing that i would say about andrew sullivan of course
01:17:57.360This is where capitalism comes back into it. Marriage is, of course, one way in which we keep the state out of our finances. It's one of the ways in which we make sure, as we've already talked about with Edie Windsor, that our massive capital gains redound easily down to our spouse.
01:18:17.920Back in the day, of course, you had gay adoption, where basically partner adoption, where gay people would adopt their partners in order to make that happen.
01:18:26.120But that was essentially a deference to the fact that capitalism in the United States knows one place where its rules sort of stop working, and it is a legally recognized family.
01:18:38.720And the idea that it has an important domesticating function, but also that it is how we build clout, influence, how we build political power in this country.
01:18:49.460So in addition to there being some conservative cases for gay marriage, there were a few lefty cases against it.
01:18:57.400A lot of this came from the places where the queer movement had really overlapped and been influenced by feminist thought.
01:19:03.580Yeah. So when gay marriage became initially a legal struggle, it was actually kind of a unique legal specialty because gay rights litigation outfits had been all about, you know, civil rights protections, non-discrimination law and family law had been all about trying to extricate women from abusive marriages.
01:19:25.180is right um so there was this big sort of like cleave and expertise and also a big difference
01:19:31.020in the perspective of marriage from something that the gay sporadic fits in the gay movement
01:19:36.060we're really seeing as aspirational and as this like moral claim and then the feminist movement0.58
01:19:41.420was seeing as patriarchal retrograde a you know perfect container to insulate abuse from the law
01:19:48.740basically just a capitalist trap right i mean oh and a sexist trap you know this is uh like let's
01:19:53.980put you in private with somebody a lot bigger and stronger who makes more money than you
01:19:58.080in a place where the law kind of can't reach you and you know hope he's nice because if he's not1.00
01:20:05.120you've got like basically no recourse so like there had had to be a feminist effort to make0.97
01:20:09.700marriages more dissolvable which simultaneously made gay marriage more thinkable as we're like0.74
01:20:16.260talking about this transition in the institutional marriage but also made marriage like kind of
01:20:20.340unpopular to the feminist intellectuals who are looking at this long history of marriage as a tool0.78
01:20:26.260of the oppression of women so you know there were some queers who were saying you know not just
01:20:34.360gay marriage will take everything away that we like about gay life but also gay marriage will
01:20:40.500like bring us into you know purchase into this institution that has been terrible for gender0.85
01:20:47.020freedom historically and like why would we want to sign on right to this anti-feminist claptrap0.97
01:20:52.100yeah exactly and i think that that it's noticeable that like people like judith butler like weighed
01:20:56.460in very very late and very hesitantly on this topic and it was people like martha nussbaum
01:21:01.340who basically kind of were the experts cited in court this was a liberal project this was not a
01:21:06.820left-wing project and queer theory for instance had an extremely difficult time with it i mean
01:21:11.420for one thing right like the idea you mentioned earlier kinship networks right like the easiest
01:21:15.640basic distinction was always, and since Foucault had been in queer theory, that there are kinship
01:21:20.200systems here that are chosen, that are elective, and that are non-hierarchical, right? Well, now
01:21:25.980we're entering an institution that's limited to two people that at least historically has always
01:21:31.400been about submitting to some kind of hierarchy. And again, as you say, makes things unintelligible
01:21:36.380and non-negotiable. You sort of take all these things for richer or for poorer, you take all
01:21:41.620that on right at that moment when you say, I do. And there were a lot of people in queer organizing
01:21:47.240who were like, why on earth would we fight for this? I think the answer that kind of won the day1.00
01:21:53.140was it's money. The straight people get money, they get material benefits, they get these
01:21:59.000practical protections. The law has the ability to hurt us if we are not under the protective
01:22:05.500shield of its recognition and you know we want to be able to live safer more comfortable lives
01:22:13.520and this is the way to do it so it's definitely a ends justify the means kind of an argument that
01:22:18.560I think eventually brought over the radicals to a begrudging acceptance of the gay marriage project
01:22:24.400if not of marriage per se exactly so but then there's also a handful of kind of eccentric
01:22:31.260weird arguments against gay marriage from the punitive left. Do you want to tell us about
01:22:35.780Sylvain Agassinsky? Syvian, I think it's pronounced. Oh, my God. I have no friend.
01:22:41.040Yeah. So Sylvain Agassinsky is kind of a deep cut, but I thought this is kind of interesting.
01:22:45.660We looked at a conservative who made a case that can feel pretty liberal, and we
01:22:49.320showed what it's sort of the classic conservative case is like. And I wanted to look at something
01:22:53.800that might seem a little strange, but maybe not that strange, which is a feminist case against
01:22:57.720gay marriage not quite from the left i think this is not about like oh this is a bad institution
01:23:03.180you shouldn't buy into it it's saying this institution is worth protecting and gay people
01:23:08.000shouldn't have access to it right so a little bit about about agasinski she's an exponent of what's0.98
01:23:13.500you know called a difference feminism so she's she's really interested in basically starting not1.00
01:23:19.740from a general human standpoint but from a standpoint of sexed humans meaning they fall we1.00
01:23:25.340fall into two camps to her. Today, this position may remind you of like TERFs. I think that's where1.00
01:23:32.300it often comes from. But it also had a really hard time with gay marriage, as it turns out.
01:23:36.300So Sylvia Nagasinski was born in 1945 and teaches or taught, I don't really know,
01:23:40.740at the École des Hautes Etudes en Sciences Sociales, the School for Advanced Studies and
01:23:45.900Social Sciences in Paris. And her boss there was none other than Jacques Derrida. She was the
01:31:13.520We choose with reference to certain givens, that we all die, that we cannot answer the
01:31:18.540question why we exist, stuff like that.
01:31:20.500And Agassinsky is saying that being sexed is one of those horizons.
01:31:24.060We enter the world being this, not that, and we find ourselves in that condition of not
01:31:28.620of being human, but being a particular kind of human.
01:31:31.440Now, and basically, there is no point trying to transcend that. Now, I can see why in when she wrote this 2007 or 2008, like people somehow think this is okay to say about the sexist, but imagine the same said about race. It's like, oh, my Lord.
01:31:48.020It's an argument against the feminist project, right? Because if sex is an all-encompassing existential condition, then changing the terms of inhabiting a sex body is futile, kind of unworthy. I could be completely misunderstanding this.
01:32:30.680So I guess she's saying any form of transcendence, basically, would essentially just be another androcentrism, right?
01:32:38.180She writes, quote, homosexual marriage, in quotation marks, would symbolically make individuals of the same-sex parental couples.
01:32:45.280And that would call into question the bilateral affiliation of their children, the maternal side and the paternal side.
01:32:51.040The homosexual parental couple would abolish the man-woman distinction in favor of a distinction between homosexuals and heterosexuals, right?0.59
01:32:58.500So she's saying really what this is, is it occludes the fundamental difference amongst human beings. And it tarries or it kind of gets caught up in this nice, but ultimately illusory idea that like, we can all be the same. We are not and we shouldn't be, I think is her idea here.
01:33:17.800But I mean, I think your reaction to this is totally right. In the end, Agassinsky's feminism, and this is kind of why I wanted to dwell on this and quote from it in such extended way, is that it sounds an awful lot like conservative natural law theorizing, just with a little bit more French existentialism thrown in.
01:33:35.700And I think reading Agassinsky, I think you do get an inkling why people today can consider themselves feminists, but be against the liberation of trans people. You can get an inkling as to why transgender identities became almost by necessity the next issue once the gay marriage fight was over.
01:33:53.520right i'll quote one more time from her and i'm sorry i'm like doing all these block quotes but
01:33:57.460she's not she's not exactly short in these but it's exactly this thing where like the changing
01:34:01.920family dynamic that you were talking about is like her topic today i'm quoting blinded by the
01:34:06.780mirages of technical power we would like to defeat old age and death even surmount our condition
01:34:11.360by changing our sex or by making embryos in the laboratory with genetic material withdrawn from
01:34:16.840individuals right those who on both sides of the atlantic advocate the effacement of sexual
01:34:22.300difference no doubt congratulate themselves for this progress and for the new liberties that such
01:34:26.760progress offers individuals that each person can give life on one's own and become at the same
01:34:32.540time father and mother thanks to the techniques of medically assisted procreation seems to them
01:34:37.460to mark progress towards individual autonomy right i think she's responding to the exact
01:34:42.680same pressure that you are identifying in the natural law philosophers from the witherspoon
01:34:49.140institute i remember it because it's like reese oh yeah that makes sense yeah you know the sense
01:34:54.700of the uh nobleness of resigning to the inevitability of sex right and what follows
01:34:59.740from that is also a kind of particular special superior place for heterosexuality is like a very
01:35:06.620insidious turn but i also think that there was a degree to which some of this reliance on nature
01:35:13.160as an authority also bubbled up in the pro-gay marriage debate. I think we should talk about
01:35:19.880the insistence on the pro-gay marriage side as a legal necessity to say that homosexuality was0.81
01:35:26.840an unchangeable identity, which is mirrored now also in campaigns for trans rights.0.71
01:35:32.060Born this way, I didn't choose this. And the subtext of that claim is that you're conceding0.93
01:35:39.320that it would be a wrong thing to choose right yeah and this is like partly a side effect of
01:35:43.840just how civil rights law works in the united states is that like unchangeable characteristics
01:35:48.940are the ones that tend to get protected yeah and changeable characteristics it's like well you know
01:35:53.660you have to deal with the uh outcomes of your choices and that sort of obfuscates just a lot
01:35:59.040of the reality of people's experience around sex and gender and that there is a wide variety of
01:36:04.080such experiences and all kinds of different contingencies that shape them but it also sort
01:36:07.980of seeds the idea of nature as like something real and legitimate and also something authoritative0.94
01:36:14.200yeah something legible above all right do you like do you remember my wife calls it the gay0.79
01:36:19.800penguin industrial complex yeah like the tango makes three yeah the but like also just like all
01:36:25.700these almost desperate news stories about like two male penguins yeah the cincinnati zoo stole an egg
01:36:32.900from a female penguin and now they're raising the chick and they're doing a good job you know it's0.62
01:36:36.960like the searching out of homosexual behavior in animals or in some like pre-modern society0.60
01:36:43.880the idea that it has to exist either in the animal world or in the past to be legitimate
01:36:49.680it's an attempt to shoehorn homosexuality into the natural law order into like this kind of0.98
01:36:55.580inevitability structure that like agosinski is looking at and i just wish that we had0.99
01:37:00.820the political wiggle room to say nature is fake yeah fuck this well i mean you can believe about0.96
01:37:07.800what you'd like as you can with your religious convictions but as agasinski kind of correctly0.99
01:37:14.000says even though she then moves away from it faster than you can say existentialism like
01:37:19.700basically you could just say you can have your beliefs about nature but like you can't
01:37:24.780if you can't fucking prove it and you can't then maybe don't legislate on the basis of it right
01:37:29.640Like maybe we legislate on the basis of our values, we legislate on questions of logic,0.97
01:37:34.540but we maybe shouldn't legislate on what is quote unquote natural.