US Supreme Court takes up gay marriage case – but whose common sense will prevail?

More than a year has passed since same-sex marriage came into effect in England and Wales, but the fight for marriage equality continues to rumble on in the US. While more than 70% of US citizens now live in jurisdictions where same-sex couples can legally marry, over a dozen states still have same-sex marriage bans in place.

Now in the US, the Supreme Court is starting to review previous rulings that upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee. If it rules that the US constitution’s guarantee of equal protection under law gives gay and lesbian Americans the right to marry, it could establish same-sex marriage as a nationwide right in the US once and for all.

The court will soon decide if same-sex marriage bans are unconstitutional. But the question isn’t whether common sense will prevail, but rather whose common sense.

Battle lines

The gay marriage debate is often thought of as a battle in a “culture war” between liberals, who argue for gay marriage on the basis of equality and human rights, and conservatives, who see it as a threat to traditional moral (often religious) values.

But if you examine the arguments used in public debate, both supporters and opponents tend to frame their arguments in relation to cultural values that most of us share.

This is a well-established strategy. Social psychologist Michael Billig has noted that classical rhetoricians advised orators to advance their arguments using “cultural commonplaces”. By building their arguments on values that are supposedly shared by all, speakers can appeal to the common sense of their audience.

In both the UK and US, both sides of the gay marriage debate have managed to stake out stances against discrimination – albeit discrimination of different kinds.

Advocates of marriage equality are likely to argue that same-sex marriage bans are discriminatory against lesbians and gay men as a minority group. On the other hand, opponents often frame this as an issue of “religious freedom” and present gay marriage as precipitating discrimination against those with religious beliefs. These principles are not inherently incompatible; people on both sides of the debate claim to believe in the principles of equality and religious freedom – and yet they are being used to make opposing arguments.

We saw this in the UK in the public opposition of the 2013 Marriage (Same Sex couples) Act that surfaced in the right-wing British press. Opponents argued that if the government allowed same-sex marriage, it would only be a matter of time before churches were forced to marry same-sex couples, supposedly making the bill a serious threat to religious freedom.

But the same opponents also positioned themselves as being for equality by claiming that lesbians and gay men already had equal rights under civil partnerships, despite popular perception that civil partnerships were in some way inferior.

Seems like common sense, doesn’t it?Fibonacci Blue/Flickr, CC BY

Arguments explicitly based on religious moral condemnation were comparatively few and far between. Why? Perhaps because, in the UK, the “religious right” know they are increasingly becoming the minority in their moral views on homosexuality. In 2013 the British attitudes survey found that only 22% of the British population believe that homosexuality is always wrong, compared with 50% in 1983.

On sexuality, as on various other things, moral pronouncements are more likely to provoke accusations of prejudice than to influence public policy. That means opposition arguments based on religion were more likely to be dressed up as appeals to tradition or human rights arguments about religious freedom, rather than as moral condemnation of homosexuality.

The will of the people

On both sides of the Atlantic, both sides of the gay marriage debate also put a lot of energy into appeals to democracy.

Equal marriage opponents in the UK argued that the bill was undemocratic because a “silent majority” of the population was apparently against gay marriage and because the legislation was not in any of the political parties’ pre-election manifestos. Same-sex marriage advocates, on the other hand, emphasised the bill’s democratic credentials by citing opinion polls indicating majority support for the bill and emphasising that there was both cross-party consensus and majority support among our elected representatives.

Likewise, American opponents of marriage equality are arguing that a decision allowing it would overturn public ballots and the will of the people, while supporters argue that equal protection before the law for minority groups is a core value of American constitutional democracy – and that it must extend to same-sex couples.

Given that religion still plays a more prominent role in political debate in the US, we will naturally see explicitly religious and moral arguments given a more open airing in the coming weeks – not least given the ongoing furore over various states' “religious freedom laws”.

But the most effective opposition arguments are likely to be based on common values and “common sense” – and it is these that equal marriage advocates most need to address if they are to win this battle once and for all.

Adam Jowett does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.