MARC GELLMAN REPLIES TO ANDREW SULLIVAN: part three

AS: "Neither the federal government nor any state shall predicate benefits, privileges, rights, or immunities on the existence, recognition, or presumption of sexual conduct or relationships."

This final clause was inserted by evangelical activist, Charles Colson, according to several reports. It would be the first time that the word "sexual" is inserted into the Constitution of the United States. And what it is apparently designed to do is to reassure people that the second sentence of the amendment does not indeed do what it seems to do, i.e. ban all forms of civil union or domestic partnership. The religious right would, it appears, be willing to allow civil unions between brothers, or an aunt and uncle, or a son and mother, or two college roommates--as long as it was assumed that no sexual activity was implied in the relationship. By this deft move, the amendment would apparently allow gay couples to get civil unions--but only if they pretended that they were not gay couples. Call it the Bert and Ernie amendment.

What it amounts to, however, is a constitutional acceptance of any number of social arrangements short of marriage, as long as those relationships are asexual. How would a state legislature or the official granting civil union licenses know that? Short of putting videocams in people's bedrooms, they surely couldn't. So this is a kind of veil of ignorance, a pretense, that affirms the public appearance of a non-sexual relationship, while allowing it in reality. It's "Don't Ask, Don't Tell" applied to the Constitution. It seems, on the face of it, to contradict the second sentence. But it doesn't. It merely underlines the fact that no sexual activity between two people can be a basis for a civilly recognized relationship except heterosexual marriage. It would make civil unions for straight people void as well, if those straight couples had the temerity to be in love or want to have sex.

But it reveals something else about the real motives of those pushing this amendment. They claim to be defending marriage. But in fact the upshot of their Bert and Ernie provision would be effectively condoning all sorts of marriage-lite alternatives (under the pretense that they're not sexual) and expanding their reach and number to an extraordinary degree. If the fundamentalist right actually cared about marriage as such, they wouldn't want to open up any number of alternatives to marriage to heterosexuals. Multiplying "asexual" civil unions is exactly what marriage advocates have feared for years--an easy alternative to marriage that will, in fact, undermine the institution.

But the beauty--indeed the only rationale--of this contraption is that it alone ensures that gay couples get no recognition as gay couples. It's an attempt to push gay people back into civic nothingness, a place where they are invisible, where their emotional and sexual needs are deemed as worthy as the financial arrangements of two asexual roommates. It's a desire to recreate the fantasy that gay people do not exist--in the Constitution itself.

In this sense, it's a perfect product from the religious right. They do indeed want gay people to disappear. They cannot achieve this in reality in a free society. But they can in their own words. Theirs is an America where gay citizens are actually straight citizens in need of either jail or therapy, where gay citizens' loves are a form of sickness, and their relationships a threat. And they want to assert this image of an ideal 1950s-style society up by rewriting the Constitution to reflect it.

Gellman: Here is some really big news for AS. Bert and Ernie are not real and neither is this third sentence of the FMA. This was a proposed third sentence by a group of 29 conservative groups called the Arlington Group that wanted the FMA to be more conservative than it is and to in fact prohibit civil unions and domestic partnerships as AS correctly intuits. However, the FMA is a centrist and moderate and wise compromise only created to blunt the effect of judicial activism and the weakness of DOMA. Therefore this sentence was rejected! It does not appear in the version of the FMA introduced in the Senate which just has within it the first two sentences of the original formulation of the FMA. The rejection of this addition, suggested by powerful Christian conservatives, by the leadership of the FMA, more than any other single fact, ought to make it clear that the FMA is not some bigoted putsch but a sober and reasoned defense of marriage as well as the rights of the people to enact any other legislation that opens the protections and the dialogue with the gay community that will not be settled or ended either by the Massachusetts Supreme court nor the Federal Marriage Amendment. That dialogue will continue to challenge both sides of our divided souls.

AS: This amendment has therefore very little to do with marriage as such; and everything to do with homosexuality. If the social right wanted to shore up marriage, they could propose an amendment tightening divorce laws. They could unveil any number of proposals for ensuring that children have stable two-parent homes, that marriage-lite versions of marriage are prevented or discouraged. But they haven't. The amendment is simply--and baldly--an attempt to ostracize a minority of Americans for good. It is an attempt to write them out of their own country. It is an attempt to say that the meaning of America is heterosexual and heterosexual only. It is one of the most divisive amendments ever proposed--an attempt to bring the culture war into the fabric of the very founding document, to create division where we need unity, exclusion where we need inclusion, rigidity where we need flexibility. And you only have to read it to see why.

Gellman: You only have to read it to see why not. The notion that gay couples cannot visit in the hospitals or inherit property or sue for child support is morally wrong and can, and has been, addressed by the laws of over forty states already. However, the notion that the traditional definition of marriage must be altered to address problems that for the most part have already been solved is obviously an act of bad faith. The real intent is to gain legal sanction for gay marriage that neither the people of America nor the state legislatures of America will support. Given the Constitutional weakness of DOMA and the aggressive legal activism of those seeking to legalize same sex marriages, the FMA is the only defense available to both prohibit and permit what the public wants prohibited and what many also want permitted.
posted by Eve at 6:01 PM | link

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