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Gay marriage in, abortion rights out? | Hunter of Justice

Gay marriage in, abortion rights out?

by on May 13, 2009  •  In Marriage, Religion, Reproductive rights

I know that's a glib headline, but it's hard not to read the current social issues buzz like those  perennial and glib new years features about trends. Gay marriage is hot; abortion rights, stale. The empirical basis for this sensibility is opinion data: in the midst of a flurry of polls finding rapidly growing acceptance of same-sex marriage, the Pew Foundation poll found slipping support for a woman's right to decide to have an abortion. 

The new NY Times conservative columnist – Ross Douthat – has joined the chatter with a column attributing the gains by gay marriage advocates to their claim of rights and liberty, in contrast to a conservative argument built on tradition, custom and religion. Citing what he calls "a prescient essay" in 2005 by Peter Berkowitz, a senior fellow at the Hoover Institution at Stanford, Douthat seems ready to concede the marriage issue because [this is Douthat quoting Berkowitz], "the expansion of rights 'steadily erodes the limits on individual choice established by law and custom.' Our legal and political debates … are won by whichever side can argue for the expansion of freedom, and combatants who can’t argue in these terms will 'almost certainly see their cause go down to defeat.'” Douthat sees hope for the anti-choice groups because, he says, they have grown more articulate in arguing for the rights of fetal life.

What Douthat misses (aside from a mountain of other scholarship on rights discourse) is that any side can deploy the power of rights talk on moral questions,with a little savvy and the right historical moment. Whether an argument gains traction is almost always a question of framing, of whose rights and whose freedom are at stake. Rights discourse itself is highly malleable, wildly indeterminate. Witness the very smart political offensive being mounted now by advocates for religious freedom, ie for the rights of the conservative religious minority to be protected from overbearing demands of the new norm of gay marriage equality now in the process of instantiation. 

The traditionalist die-hards, who will decry gay marriage and other rights to the bitter end, are not going away.  But the smart conservatives are those who, like Professor Robin Fretwell Wilson of Washington and Lee Law School, argue that gay marriage is inevitable, and so the focus should be on carving out breathing space for the religious objectors, who represent dissent.

This is the future of the debate over gay marriage, which is taking shape this spring with the string of victories in New England and in Iowa. These questions merit serious consideration, and I'll be writing more about them (as soon as I finish grading).

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