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How to lose the culture wars

The real division is in people's heads. Just ask Tony Soprano
BACK in 1992 Pat Buchanan worked the Republican convention into a frenzy by declaring that America was engaged in a “cultural war” for the “soul of America”. Mr Buchanan was right that America is particularly prone to battles over culture. But he was wrong to imply that these are all-out wars in which victory goes to the most uncompromising.

Take one of the thorniest subjects of all, gay marriage. Next week Bill Frist, the Senate majority leader, plans to bring to the Senate floor the Federal Marriage Amendment (FMA), a measure that will amend the constitution to forbid gay couples from marrying. Mr Frist can count on plenty of support. A huge coalition of religious traditionalists, from Roman Catholics to Southern Baptists, has been assembled to help push the amendment through; Republican activists across the country are up in arms; George Bush promises to hold a pep rally in the White House Rose Garden. And yet Mr Frist will almost certainly do harm to the cause of protecting traditional marriage.

This is because culture warriors ignore one important point: for the most part the culture wars take place inside individuals rather than between committed ideologies. They are as much struggles between the left and right side of the brain as they are struggles between the left and right side of politics. Consider that great American everyman, Tony Soprano. He has been horribly vexed in the current series because one of his best captains, Vito Spatafore, has been spotted in a gay night club dressed in full regalia. His mob colleagues soon beat him to death, but Tony is caught between sympathy for his friend and his macho instincts, and inevitably winds up talking to his therapist. He starts off by saying that he does not give a damn about what people do in the privacy of their own bedrooms. He then changes tune entirely; he is a “strict Catholic”, he says, and he agrees with “Senator Sanitorum” that “if you let this stuff go too far” everybody will soon be doing unmentionable things with dogs.

There is no sure way to win the marriage wars. But there is one sure way to lose them: ignore the fact that most people are ambivalent about gay rights, and come across as ideological bully-boys. This is exactly what the right of the Republican Party is doing at the moment. Mr Frist et al are not only trying to amend a document that most Americans believe should be amended only in the most dire circumstances; they are trying to inject the federal government into an issue that has traditionally been decided by state governments.

This overreach is doubly foolish. Opponents of gay marriage have already chalked up a string of victories where it counts, at state level. Thirty-seven states have now passed laws to ban gay marriage, either by referendums (19), or by statute. Supporters of the FMA argue that you need a federal ban on gay marriage to prevent marriages contracted in one state from “leaking” into another. But the 1996 Defence of Marriage Act has already solved this problem by providing that no state has an obligation to recognise gay marriages contracted in another state.

Overreach is also foolish because it exposes conservatives as fair-weather federalists. The strongest conservative argument against abortion is that the Supreme Court overstepped the mark by imposing a single solution on a diverse country; but since then the Republicans have used their temporary dominance in Washington to trample on states' rights.

Such overbearing behaviour is not a monopoly of the right. The American left has long imposed its values on a divided country through the courts—from the abolition of school prayer to civil rights for blacks to the legalisation of abortion. And many gay activists regard themselves as exactly like blacks—oppressed citizens who are being denied their full constitutional rights because of social prejudice. One Californian same-sex couple has a marriage-rights case pending before the Ninth Circuit Court of Appeals. In May 2005 a federal court in Nebraska overturned the state's constitutional amendment banning gay marriage, an amendment that passed with more than 70% of the vote.

The strategy of using federal courts is a disaster in the making—a guarantee that America will be divided over gay marriage just as deeply as it is over abortion. Some gay activists argue that the best way to get around this problem is to focus on state courts, introducing gay marriage in liberal states like Massachusetts and avoiding conservative ones. But an even better way is to focus on legislatures. The best model for gay-rights activists should be California, where both houses approved a gay-rights bill without pressure from the courts, rather than Massachusetts, where marriage rights were conjured up by a handful of judges. Activists may complain that the legislative road is strewn with landmines: Arnold Schwarzenegger vetoed the California law. But surely these mines are less lethal than those on the judicial road, as supporters of abortion rights have discovered. Activists may also complain that majorities of people are against marriage rights. But opinion is moving in their direction: the proportion of people who support gay marriage has risen by 12 points to 39% since 1996, according to Gallup.

A country as big and diverse as the United States is wise to leave as many intimate moral questions as possible, from the regulation of marijuana to the regulation of marriage, to the states and to their legislatures. Relying on judges rather than democratic debate risks creating a permanent culture war. The good news for America is that it has the constitutional machinery to keep the marriage wars under control—and enough people on both sides who realise that the best way to lose the argument is to overplay their hands. The FMA will certainly not get the two-thirds majority in the Senate that it needs to have a chance of passing.

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