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 Thursday, November 20, 2003
GOODRIDGE: Two Links I Forgot
Matthew Yglesias, in The American Prospect: Bucks the conventional wisdom and argues that "Republicans, not Democrats, will pay a political price for the gay-marriage ruling." University of Minnesota law professor Dale Carpenter answers readers' questions at the USA Today site. Kinda random (somebody asks whether it's true that Asian cultures don't support homosexuality and whether that's good), but functions as a quickie FAQ from a pro-SSM perspective.
FEDERAL MARRIAGE AMENDMENT: Mark Miller riffs on a post by Matt Taylor
Finally, Matt Taylor's point about the FMA struck me. If it were extended to address issues that are not only about excluding gays, then the so-called "pro-marriage" movement could truly say that the concern for the institution goes beyond excluding gays. As it is now, I agree with Matt that the FMA supporters seem to think that while the current state of marriage is in shambles, yet the solution is the continued exclusion of those who haven't contributed to the shambles.
DO CHILDREN NEED A MOTHER AND A FATHER? Mark Miller replies to David Bianco
David Bianco identifies and replies to four common objections to the claim that children need a mother and a father; here are my replies to his replies. 1. "But there are plenty of loveless and even cruel mother-father families." I agree with David that this is a separate issue. But his response is logical but not "legal." It may not poor judgment to raise kids indoors or with vitamins instead of vegetables but it is not and should not be prevented by law. 2. "Children need parents who love them. It doesn't matter if they are gay or straight." Does he feel that a child with one parent who dies should be taken away and given to a two-parent (opposite-sex, of course) home. Or should the remaining parent be allowed to keep his/her child? In other words, should having two opposite-sex parents be the law in all cases? 3. "All the studies show that the children of gay parents are no more or less likely to be gay themselves." I agree with David that these studies are irrelevant to this debate. Just as irrelevant as the studies that gay relationships are less stable than heterosexual relationships. 4. "Lots of lesbian couples make sure their kids have male role models, and gay couples have women around for the same reason." We agree on this. It is a sad argument. An aunt/neighbor/friend can hardly fill the role of a "mother" or "father." But this isn't the "tragedy" you say it is.
"BAIT AND SWITCH"? Mark Miller replies to Eve
I agree that it is unfortunate that it is "only" the court system that is protecting equal rights, but the argument that this is legislating from the bench is just not accurate. This is what the court system is supposed to do--rule on the constitutionality of laws made by the legislature. All the whining is simply due to the fact that the decision is not on the side of public opinion. But neither was Loving v. Virginia or Brown v. Board of Education. Do you really want to live in a country where all laws and decisions are based on public opinion?
GOODRIDGE IS GOOD: Mark Miller
Here comes all the hand-wringing about the pending disaster of this decision. I'll give a brief response to the most common objections: 1) It sends a message that "children do not need both a mother and father." There are already many legal "marriages" that send that message: for example, prisoners and illegal immigrants. The argument that same-sex relationships should be denied legal acknowledgment because they do not provide a "mother" and a "father" is pretty weak when 1) single people can adopt and 2) marriages are allowed for people regardless of their past/present actions (i.e.: rapists, murderers, abusers). If marriage were truly the institution that anti-SSM advocates are trying to paint, there should be some qualifications to get "in the club." Your point is simply that opposite-sex is the only relevant criteria to maintaining this "crucial social institution." 2) Slippery slope argument: Justice Scalia was correct. If you begin to accept homosexuals as people who have the same rights and responsibilities as heterosexuals, then the slippery slope does lead to the right to have your relationship acknowledges the same way heterosexuals do. Just like the slippery slope for race--first, the slaves were freed, then they got the right to eat anywhere, then the right to vote, then the right to marry anyone they chose. The fear is the same--that "this group of people" will become accepted into the mainstream. 3) The next step is legalized polygamy or incest. This is totally different. This was excluding an entire group of people the right to marry the person they love. Polygamy does not exclude an entire group of people. I'll concede that if one believes that polygamy/incest is the moral equivalent to a relationship between people of the same sex--then I can understand how that person would be against same-sex marriage. But that belief is not based on any legal foundation deeper or more intellectual than the "ick factor."
GOODRIDGE IS GOOD: Mike Pignatello
I have no doubt that those who want to keep the marriage club closed really believe they are "protecting" the institution. However, as we've all learned in history, laws are created by a ruling class to define the terms of living for others. Civil marriage in the turn-of-the-century U.S. was designed to enforce the religious morality of the majority and to codify (in the law) racial and civilizational superiority. Thankfully, we have as a nation succeeded in decodifying moral requirements for marriage. There are no longer state-run litmus tests by race, ethnicity, or national origin for determining who can create a civil marriage. Preventing same-sex marriage by law is all about re-codifying morals--something the state has moved away from for the past 50 years. Whose morals will we codify? Why should the rest of society be beholden to others' narrow list of "fundamentals" that define marriage? Society shouldn't be required to adhere to limited value systems, especially when the introduction of SSM does not prevent or change opposite-sex marriage while its prohibition severely restricts the rights of another group. Granting civil rights is not a zero-sum game. And again, as Mark Tardiff shows, the real issue here is that many opponents of SSM disapprove of homosexuality: "They want society, through its laws, to teach that homosexual relationships are as acceptable as heterosexual relationships." Not accepting gay relationships (in any form) is a real hindrance to finding a compromise on this issue, if one exists!
DO CHILDREN NEED A MOTHER AND A FATHER? Mike Pignatello replies to Mark Tardiff
If we compare the "best with the best" and the "worst with the worst," as Mark suggests, we end up with the fact that opposite sex AND same-sex parents can all be great parents, or they can be awful parents. But then when he and others then insist on opposite-sex role models to prove that some good parents are better than others, they have to resort to value-laden language to promote their preferred vision of marriage, such as the phrase "...importance of modeling man-woman relationships." Why can I call this "value-laden language?" Because if having one male and one female parent are so vital to marriage, then a gay man could marry a lesbian and raise a kid and could satisfy the anti-SSM need of having an opposite sex role models in the home. But would those two really be sufficient role models? How about two opposite-sex bisexuals? The anti-SSM list of "marriage fundamentals" falls apart because no one can control the presentation of gender in the home. That a father and a mother have different genitalia or genders doesn't predict that they will be representative of all the hopes that the anti-SSM camp has for opposite-sex parents as gender role models. And, ultimately, restricting SSM cannot control gender variations in the home.
"PARENTS" VS. "MOTHER AND FATHER": Elizabeth Marquardt
Writing at the MarriageMovement blog, Elizabeth Marquardt has two posts on parenthood: One: "Some, like the opponent I argued against below, say that those concerned about SSM object because the 'two parents' are 'of the same gender.' That's not why I object. I really don't give a fiddle about homosexuality. I grew up surrounded by it in my culture, it's fine with me. "However, because of my experience as a child of divorce and because of the years I've spent studying children of divorce, I do get very angry when people lie about children's experiences. 'Parents' is a frighteningly malleable word in today's culture. Adults like to suggest that almost anybody can be thrown into the mix and called a child's parent. Children don't feel that way." more Two, replying to Mike Pignatello's post here: "...The point is that children need and yearn for the mother and father who *created* them, unless that mother or father proves unfit and loses parenting rights. Children need their mother and their father, not just any two 'parents.' ... "When a same sex couple has a baby the baby comes from *somewhere* but the child's two biological parents are not and will never be married to one another. The child begins life as a de facto child of divorce. Gays and lesbians are as good or bad at parenting as the rest of us, but same sex parenting of necessity takes a less satisfactory child raising model--divorce or single parenting--and makes that the starting point of the child's life." more
GOODRIDGE LINK ROUNDUP
Will Saletan offers rhetorical advice on "selling" SSM by focusing on commitment: "Marriage is a broadly shared American value. You don't have to support homosexuality to support marriage. A politician can say, 'I'm pro-marriage. The issue isn't whether you're straight or gay. The issue is whether you support marriage.'" National Review editorial: "...The erosion of marriage in our law and culture helped carry the Massachusetts court to its conclusion. The court recognizes that we have severed many of the links among marriage, sex, and the raising of children. But it does not follow from that indisputable premise that our law and culture do not link these things at all, or that they should not link them. A court could just as easily conclude that to the extent that the courts themselves have broken these links, they should go back and re-create them. It could just as easily conclude that the people of Massachusetts have conflicting and sometimes inconsistent views about the nature of marriage, and that the law may reflect that muddle without needing judicial correction. ..." Plus stuff on Democratic presidential candidates' fence-straddling, and federalism issues. Ninomania, the blog of Regent University law professor David Wagner: Lawrence (US Supreme Court sodomy law decision) didn't play much of a role in the decision; benefits vs. obligations; do single parents need marital benefits too? Sed Contra, the blog of Beyond Gay author David Morrison: "Third, there is all this stuff on benefits which are alleged to only be available to married couples. My former partner have been living together for well nigh on 17 years now. We jointly own our home and if, heaven forefend, one of us got hit by a bus and killed the ownership of the property would go automatically to the surviving partner. We each have substantial life insurance policies designed to insure, should anything happen, the money carefully invested can replace each of our incomes. We have medical power of attorney for each other which, among other things, guarantee or place at the bedside should it come to that. As for taxes, we would actually do worse, for tax purposes, if we filed jointly. Not to mention that he overall has better credit than I do and I can't imagine he would willingly (nor would I wish him to do so) take on my debts in the way that marriage provides. I suppose there is the issue of Social Security, but neither one of us is counting on that for our retirements. We each have each other covered in our wills." Plus stuff on childrearing and male-male couples' rates of/demands for sexual fidelity. University of Chicago political science professor Jacob Levy, blogging at The Volokh Conspiracy, poses a hypothetical question: "Suppose that a state legislature forbade recognition of, or even (on the model of the polygamy statutes) criminalized, marriages between persons at least one of whom was known to be infertile. Suppose that it did so for the stated purpose of affirming the societal commitment to marriage's cerntral function as the primary site of childrearing. "Would such a statute be constitutional (under the federal or most state constitutions), according to the jurisprudential theories of those most strongly opposed to the Massachusetts case?" (Eve adds that you can get a pretty good sense of what a response to this question might look like here.)
MA LEGISLATURE IS NOT SURE WHAT TO DO NEXT: From the New York Times
The Massachusetts legislature was awash in turmoil and indecision on Wednesday as lawmakers struggled to come to terms with the meaning of the court ruling that legalized gay marriage in the state. The ruling, issued on Tuesday by the Supreme Judicial Court, the state's highest judicial body, gave the legislature 180 days to conform. But it left to the 200 lawmakers the choice of what steps to take, if any, to allow gays to obtain marriage licenses.... Wednesday was the last day of the legislative session--the lawmakers do not formally reconvene until Jan. 7--and the Statehouse was buzzing with exasperated confusion, carefully honed no-comments and the determination of many lawmakers to wait and see what constituents wanted. "In my seven years in the legislature, this has been the most difficult issue I've had in front of me," said State Representative Gene L. O'Flaherty, a Democrat who is chairman of the House Judiciary Committee and supports civil unions. Mr. O'Flaherty said many constituents had contacted his office to oppose the decision. That has caused him to think about supporting what seems to be the only long-term option to counteract it: a state constitutional amendment to bar gay marriage. more
GROUPS MUSTER TO FIGHT SSM IN MASS.: From the Boston Globe
Conservative groups from across the state and nation, outraged by a court decision allowing gay marriages, have begun devising a legal strategy to delay the effective date of the ruling until after lawmakers and voters have acted on a proposed constitutional amendment that would define marriage as a heterosexual institution. The bid to try to block the Supreme Judicial Court's 4-3 ruling took place as an unprecedented deluge of telephone calls and e-mails denouncing the decision flooded Beacon Hill offices, apparently the orchestrated campaign of gay marriage opposition groups from coast to coast. ...Although they are still working out a strategy, Crews said the lawyers will probably explore submitting a motion to the Supreme Judicial Court seeking an indefinite delay, allowing the Legislature to vote on a constitutional amendment defining marriage as the union between one man and one woman. The court has given the Legislature 180 days before its ruling takes effect, but amending the constitution would take at least until 2006. more
MA DEPT. OF HEALTH WARNS CLERKS AGAINST ISSUING SSM MARRIAGE LICENSES EARLY...
From the Newton Daily News Tribune Issuing marriage licenses to same-sex couples before mid-May would violate Tuesday's Supreme Judicial Court ruling that gay and lesbian couples have the constitutional right to wed, the Romney administration warned city and town clerks yesterday. The SJC, the state's highest court, gave the Legislature 180 days to act on its ruling on same-sex marriage. In the meantime, State Registrar Stanley Nyberg has sent a memo instructing city and town clerks to "maintain the status quo for the next 180 days" and refrain from issuing marriage licenses to same-sex couples. more ...BUT CAMBRIDGE PLANS TO DO IT ANYWAY From the Boston Globe Defying warnings from the Romney administration, Cambridge appears ready to sanction gay marriages, opening the door for same-sex marriage licenses as early as Tuesday. ... Other cities and towns heeded the warning, saying they will wait for the end of the 180-day period. In Provincetown, where 701 gay couples have registered in a town database since 1993, 25 gay residents have asked to marry since Tuesday. Assistant Town Clerk Aaron Leventman said same-sex couples remain ineligible for marriage licenses. ...Cambridge officials said that if the council approves the measure as expected, they will proceed, immediately granting local marriage benefits to gay couples. ... Romney said that if Cambridge moves ahead, the state Department of Public Health would refuse to "recognize a marriage that was performed without being done within the bounds of the law." more
WOULD CIVIL UNIONS SATISFY THE MA COURT? From the Boston Globe
Under pressure to respond to the Supreme Judicial Court's decision on gay marriage, Governor Mitt Romney and a top House lawmaker said yesterday that they believe the justices would be satisfied if lawmakers craft a civil union statute that grants many of the benefits of marriage but does not legally sanction same-sex marriage. Romney and state Representative Eugene L. O'Flaherty, the House chairman of the Committee on the Judiciary, said separately that they do not support legislation to allow gays to marry and believe the justices signaled that a parallel system of civil unions for gays would meet state constitutional muster. ... Outside legal specialists, including Laurence H. Tribe, professor of constitutional law at Harvard Law School, sharply dismissed any notion that the court was leaving Romney or the Legislature any option other than to accept gay marriage and implement its ruling. more
CANCEL THE RESERVATIONS: Non-resident marriages in Massachusetts
Joshua Baker writes: "Essentially, any non-resident couple coming to Massachusetts to marry is ineligible, and even if the marriage license is granted, the marriage is null and void. Wouldn't affect Massachusetts residents who later move to another state." Mass. Gen. Laws ch. 207, sec. 11 11. Non-residents; marriages contrary to laws of domiciled state No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.
GOODRIDGE: ENERGIZER?--Joshua Baker
[Joshua Baker is the vice president of the Institute for Marriage and Public Policy a.k.a. your friendly weblog providers.] I have to tell you how energized I was reading the Sosman and Cordy dissents yesterday. Even though we lost the battle, I read the dissents as a sign that the tide in the war is beginning to turn. There was a time when the best we could hope for was a judge who would stake his/her claim on the rather dry idea of separation of powers. Now, we're actually getting judges to say that marriage is important to our society. If the justices are willing to make these arguments, perhaps state AG's will be more willing to argue that way as well.
SAME-SEX PARENTING: Michael Triplett
Do children need a mother and a father? This is one of those difficult questions to answer because it requires us to view both a utopian fantasy and then an actual reality. In a utopian fantasy, every child would have a mother and a father. In this same fantasy, parents would have government-paid family leave, a secure social safety net, no poverty, no racism, no sexism and no war. In the real world, however, none of these fantasies will ever come true. Divorce will happen, poverty exists, racism exisits, little family leave is available, and war occurs throughout the world. If the choice is children living in orphanages, horrific foster care situations, utter poverty, and homes fraught with violence and neglect, then a child raised in a happy home with a single parent or two parents of the same sex is a wonderful alternative. The family advocates on the right who talk about the ideal family are as idealistic and unrealistic as the family advocates on the left who talk about eliminating marriage as the core legal relationship in family law. Does this mean that one gives up hoping for this utopian fantasy that the social conservative elites have created for what families should look like? Probably not. But since same-sex parents are the least of the worries for American families, time would probably be better spent resolving how families have fallen apart and children discarded, not the impact of having two, loving parents who happen to be of the same gender.
SAME-SEX PARENTING: Mike Pignatello replies to Eve
Let's clarify what's at stake with Goodridge by taking a look at another family arrangement that the anti-SSM camp finds unacceptable: the single parent home. First, let's acknowledge that single parent households exist. Okay? Point #1: If a single, non-married straight parent can raise a child, and a gay, single parent can raise a child, and if we assume that these two children are similary disadvantaged because there is a second parent "missing," then isn't more GAINED by adding one parent--of EITHER sex--to the arrangement? The child now has two parents, not one! Point #2: Anti-SSM'ers imply that the sexual orientation of a parent doesn't matter in single parenting (-- I assume no one has a problem with gay parents?) -- but, when it comes to TWO parents in a home, sexual orientation suddenly matters. It is, after all, the sexual orientation of the original parent that determines the sex of the additional partner. And because the new parent "role model" in the same sex household is not of the preferred sex, the relationship is therefore undesirable and not worthy of state sanction. So now we're going to penalize the child for the sex of the additional parent (or the sexual orientation of the original parent) by witholding marriage benefits from the family and making it harder (or impossible) for that child to become the legal dependent of the second parent. How can the anti-SSM camp pretend that this debate is largely about what's best for children? Their arguments always finish with the conclusion that same sex parents will never be sufficient role models for children--and, by extension, cannot be adequate parents--because one of the spouses is of the wrong sex. So because same sex couples can't adhere to the "ideal" that others have established, those couples don't deserve the benefits of marriage that would make their lives, and the lives of their children, more secure.
SAME-SEX PARENTING: Mark Tardiff
Some of the arguments for SSM use the fallacy of contrasting the worst heterosexual situation with the best homosexual situation: e.g. abusive heterosexual parents as opposed to loving homosexual parents. The reasonable approach is to compare the best with the best, and the worst with the worst. Anything else is not argument but manipulative rhetoric. Along this line, I worry about children being raised by same-sex parents. The lack of relation to the opposite sex has been noted, and some reply by saying how two men (for example) raising children seek to involve more sisters, aunts, etc. What was missed was the importance of modeling man-woman relationships by a mother and father. To point out that abusive marriages don't model it well either or that single parents don't model it at all is to commit the fallacy pointed out above. What concerns me even more is the effect of changing the law. The fact is: the law is a teacher. Many proponents want the introduction of legal SSM precisely for its teaching value. They want society, through its laws, to teach that homosexual relationships are as acceptable as heterosexual relationships. The problem is that it would teach much more than that. It would teach that marriage: (1) is an intimate sexual relationship with no intrinsic relation to procreation; (2) has no intrinsic relation to gender. It would enshrine in law an untenable mind-body dualism in which my body is instrumental to my conscious self, instead of a more holistic understanding that I am my body and my mind and my consciousness etc.
GENDER AND MARRIAGE: Mary Catelli replies to Eve
[Mary Catelli is a computer programmer who lives in Connecticut.] I will point out that men suffer one risk that you can't even imagine women having: short a DNA test, a man is never entirely certain that a child is his. And marriage helps bind the man and woman together to produce more trust. This is hypothesized to be one of the reasons why married couples have so much less domestic violence. One biologist was testing bluebird couple's offspring and found that 5% of the chicks were not related to the "father" bird -- and 15% were not related to the "mother." Surprising results, but it helped explain why female bluebirds had more fights, and more violent fight (even to lethal), than the males.
THE FEDERAL MARRIAGE AMENDMENT WON'T WORK; TRY THIS INSTEAD: From the Weekly Standard
...But trying to change the Constitution to resolve a fundamental social conflict is a deeply mistaken strategy. Not only will it almost certainly fail to be ratified; it will end up enshrining these "marriages." ...With firm leadership, the Republican majority in Congress could enact legislation right now to close the door on unisex marriages before the Supreme Court rules. ...Compared to the lengthy process of ratifying the FMA, they would have taken immediate action to protect traditional marriage. ... ...Those who favor a constitutional amendment to protect marriage object to ordinary legislation, claiming the Supreme Court will certainly strike down a federal statute. President Franklin Roosevelt gave this classic response to such arguments.... more Ramesh Ponnuru responds here.
USA TODAY IN FAVOR OF SSM
Eight years ago, Julie Goodridge's newborn baby girl was rushed into intensive care at a Boston hospital while the mother was recovering from cesarean surgery. But when Goodridge's lesbian partner of nine years tried to visit, hospital officials barred her because she wasn't considered a "family" member under Massachusetts law. more
MA LAWMAKERS' RESPONSE TO GOODRIDGE: From the Boston Globe
The Supreme Judicial Court's decision approving gay marriage threw Beacon Hill into a frenzy yesterday, with Governor Mitt Romney and Democratic leaders in the Legislature considering a flurry of options--ranging from fully backing the court's ruling, to advancing a constitutional amendment banning gay marriage, to something in between. Romney reiterated his opposition to gay marriage, declaring he had "3,000 years of recorded history" on his side, while still offering support for a handful of domestic partner benefits to gay couples. The Senate's Democratic leader, meanwhile, said the court left the Legislature little choice but to accept gay marriage. more
CAMBRIDGE MAY GRANT SSM LICENSES NEXT WEEK: From the Boston Globe
While other cities and towns appear prepared to wait, the liberal-leaning Cambridge City Council will consider a proposal Monday night that would immediately authorize the city clerk to issue marriage licenses to gay couples. more Wednesday, November 19, 2003
HUMOR BREAK: Bill O'Reilly
Eve says: I really can't stand Bill O'Reilly's show. But the absurdity of the last line of this exchange makes me burst out laughing. Truly, this is "found art." (I'll post serious stuff in a moment, I promise.) O'REILLY: ...If you're going to open the floodgate that marriage is no longer between a man and a woman, which is what this court did, found a way to do it, then you have to let everybody get married. The commune people can get married. The people who want to marry a duck can come in, all right. You can't... MURPHY: That's so absurd. O'REILLY: No. If I want to marry a duck... MURPHY: No, Bill. O'REILLY: ... I have a right to... MURPHY: Bill, the... O'REILLY: ... marry the duck, all right? MURPHY: No, the basis for the... O'REILLY: ... and leave my house to the duck. found here
GOODRIDGE: Andrew Sullivan, on his weblog
...Once you have accepted the idea that gay people are no less people than heterosexuals--that gay sexual orientation is no more and no less chosen than straight sexual orientation--then the principle of equality in marriage is simply unanswerable. ...Here is a challenge to the many married heterosexual readers of this site: did you ever believe that your fundamental right to the pursuit of happiness did not include the right to marry the person you love? ... ...The court dispenses with the only real argument from the other side: that civil marriage is reserved for procreation. Of course it isn't--either as a matter of fact (there are millions of childless married couples and they are no less married than couples with children) or as a matter of law. ... ...Tomorrow, a random single man could meet a random single woman on the street, go down to a civil registry office, and immediately have hundreds of rights, benefits, privileges, and civil protections under the law. No one would ask how long they'd been together; whether they loved each other, lived together, cared for each other, etc etc. ... ...So does this open the door to polyamory? Of course not. Heterosexual polyamorists or polygamists already have a meaningful right to marry someone. Gay citizens cannot meaningfully marry anyone. ... ...I would much much prefer a legislative solution to a judicial one. But it remains a fact that marriage has long been fought over in the courts. How it is administered, whom it includes, the relationship between the parties, has been resolved in courts in this country for centuries. Why should that suddenly change now? And the rights of minorities--those that might never be able to command majority support--have also always resided in courts in a constitutional republic. ... more
GOODRIDGE: LINKALICIOUS (posted by Eve)
The New Republic is starting a debate on Goodridge between SSM proponent Jonathan Rauch and I-think-also-SSM-proponent (?) Jeffrey Rosen. Rauch is one of the best people on his side of the argument, so this is a must-read. Excerpt, from Jeffrey Rosen: "We do indeed agree that the Massachusetts Supreme Court decision was unwise policy and will provoke a political backlash. So I'd like to focus on what you correctly imagined would be our area of disagreement. You think the legal reasoning of the majority was 'solid' and its decision was 'sound.' I think it was unusually weak, and so cavalierly executed that it is likely to anger opponents even more than necessary. Whether the Constitution requires gay marriage has always struck me as one of the hardest legal questions, and although I've never been persuaded by the leading arguments, I can imagine any number of opinions that would have been more convincing than the Massachusetts Supreme Court's long awaited but disappointingly superficial effort." Maggie Gallagher's column on Goodridge: "By rewriting the laws of marriage, the courts have essentially carried this logic to the ultimate conclusion: Marriage is whatever the adults want. ... "...What happens if after 180 days, the state legislature hasn't passed a new unisex marriage law? In Vermont, the high court made its threat clear: Pass civil unions or else we will create gay marriage in Vermont. What is the 'or else' here?" Also, Maggie debates Kevin Cathcart on the Jim Lehrer News Hour, here. "Same-Sex Dilemma": Howard Kurtz, Washington Post media critic, on the Democrats' responses to the MA court decision: "They are all strong supporters of gay rights. They want gay votes and gay contributions. But with some exceptions (Kucinich, Sharpton and Braun), they do not endorse gay marriage, the notion of which would alienate a large chunk of the electorate. "That straddle has been relatively easy to accomplish -- until now. ... "George Bush faces a related problem...." MarriageMovement, the Family Scholars Blog: Elizabeth Marquardt responds to Goodridge: "[The majority's] lack of curiosity about where the ideal of marital commitment might have come from in the first place is quite surprising. The short answer is that commitment exists first to protect children, and only secondarily brings benefits to adults. ...Do we do these children, or any others, a service by washing 'mother' and 'father' out of our language and arguing only that children need two 'parents' instead? If we are truly concerned about the best interests of children, and really listening to the pain that children express when they are parted from a biological parent, the answer is no." "How Radical Is the Gay-Marriage Ruling? Why the Massachusetts decision breaks new ground." SSM from a libertarian perspective at Reason's blog here. (There're a couple earlier posts but they strike me as less substantive.) Stanley Kurtz: "It's going to take some time for the full implications of Goodridge vs. Massachusetts to play out. The most likely outcome is legal gay marriage in Massachusetts within six months; gay marriage as the key domestic issue in the upcoming presidential campaign; and a huge jumpstart for the drive to pass a Federal Marriage Amendment. Far from being a great victory, Goodridge is a serious tactical error on the part of the gay-marriage movement." Andrew Sullivan: Interracial marriage comparison (we'll be debating this here on the blog soon); his basic take on the decision, which is long enough that I'll excerpt it in a separate post. Christianity Today's weblog has a link roundup focusing on religious conservatives' reactions. Professor Stephen Bainbridge: Goodridge will increase political polarization and "the culture wars," as Roe v. Wade did before it. Sursum Corda, a Catholic blog, echoes my "bait-and-switch" concerns but is a bit less fervent about it. If you all see particularly important or interesting links, send them my way....
SLOPE NOT THAT SLIPPERY? Mark Barton on Goodridge
[Mark Barton is a physicist and registered domestic partner in Pasadena, CA.] [Eve, riffing on points made by Eugene Volokh, writes:] "In other words, at the time that these various anti-discrimination statutes were passed, everybody who supported them said that they would not form a slippery slope to same-sex marriage. But when the court wanted to justify SSM, guess what it drew on? So the court basically pulled us down the slope." [Mark replies:] While Eugene's general point can hardly fail to apply at some level, the anti-discrimination law is a remarkably feeble example. The anti-discrimination law contributed almost no slipperiness to the overall trend. It is invoked in a single brief paragraph which is the last, and presumably least important, before the summing up. Moreover, it's in response to an objection which had to be made by one of the amici, presumably because the state as the defendant judged it too weak to bother with. The state's case collapsed because on a wide variety of fronts its prior legislative actions belied the motivations that it claimed for keeping marriage opposite-sex. Moreover, many of these hypocrisies had nothing to do with same-sex couples. For decades before the gay rights movement gained traction, marriage had been on a quite different slippery slope created by the advent of reliable contraception, which largely eliminated the state's leverage in tying procreation to marriage, to the point where the state had pretty much given up trying, and the court could correctly say, "Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family."
GOODRIDGE SUMMARY
Gives you a quickie version of both the decision and the dissents. At InstaPundit's blog.
DO CHILDREN NEED A MOTHER AND A FATHER?--PART ONE: Eve
This question boils down to three mini-questions: 1) Are we men and women, or just people?; 2) How important is the family in teaching us what it means to be a man or a woman?; and 3) Is it enough to have male or female role models who are available when we need them, but not part of the family? 1) We--especially those of us in the intellectual trades--are encouraged to think of ourselves as basically non-gendered, minds with bodies accidentally attached. But both introspection and reading prove that sex differences deeply color our personalities and our worldviews. Introspection will show us how often our formative experiences were gendered. I've written on my blog about how much I identified with male characters in the books I read, but you know, that was misleading. In the real world, no matter how much I wanted to be Grantaire or Pepe Le Pew, I experienced menarche; I knew I was more likely to be targeted for sexual assault; I knew people like me were the people who got pregnant. My friendships with both girls and boys were shaped by the fact that I was a girl. And reading will show us how deeply all the great characters are gendered. Even pop culture will tell you this--throwaway pop and ageless art agree here. Artemis, Antigone, Rosalind, Molly Bloom; Loki, Kronos, Hektor, the Redcrosse Knight, Mickey Sabbath. And also Scarlett O'Hara, Roseanne, Captain Kirk, and Tony Soprano. Could these characters ever exist in a genderless world, where whether we were men or women was purely incidental to our True Identities? I hope these lists make clear that I'm not advocating for rigid, cliched gender roles--just pointing out that gender is real and we want it. When we make up images of who we should be, those images are gendered, because gender is something almost all of us seek out. Men and women aren't really "opposite sexes." But our differing experiences strongly color our worldviews, and our differing biologies strongly influence our needs and desires. ("It's a wise child that knows his own father"...) The modern, genderless view of human nature is weirdly antiseptic and anti-literary.
DO CHILDREN NEED A MOTHER AND A FATHER?--PART TWO: Eve
2) The family is the preeminent place where we learn what it means to be a man or a woman. You can see this by looking at the gratitude of people whose parents (like mine) provided excellent models of manhood and womanhood. You can see it in how terribly hard people have to work to get over bad models of manhood and womanhood provided by their parents. And you can see this by asking people who grew up without a mother or without a father what they missed out on. Take people who were raised by their mother and grandmother. Here are two loving women, trying hard to do their best. And yet the children almost always talk about something missing: daddy. Notice that although there are obvious other reasons mother/grandmother households aren't optimal, those aren't the only problems the kids notice. In fact, those aren't the main problems the kids notice. People raised in these households will sometimes say, "Yeah, we were poor, it was lousy," or, "Yeah, my mom and my grandma fought a lot, kind of a power struggle within the family." But a lot more often, you'll hear the very simple statement, "I didn't have anyone to teach me how to be a man" or "I didn't have anyone to teach me what men were supposed to do for their families." A lot more often, you'll hear, "I wanted a daddy." Same-sex couples raising children may not live in poverty. They may not experience the intergenerational power struggles of a mom/grandma/kid household. But they definitely will experience the fatherlessness or motherlessness that children notice and suffer from. We don't snatch kids from their mothers because the mothers aren't married; but neither do we encourage unwed motherhood or mom/grandma households. So too we should not encourage fatherless or motherless same-sex parenting arrangements.
DO CHILDREN NEED A MOTHER AND A FATHER? PART 3: Eve
3) But can't a same-sex couple have a male or female role model on hand for the kids? Like a friend of the family or an aunt or uncle? My strong reaction against this idea comes from two experiences. First, I read Jennifer L. Hamer's important book What It Means to Be Daddy: Fatherhood for Black Men Living Away from Their Children. Hamer wants her book to be an argument for "alternative family forms." But to someone like me, who grew up with your basic, reliable, in-the-armchair married father, the men she described had frighteningly intermittent, unreliable, patchwork relationships with their kids. And she studied the most committed unmarried fathers, men who really wanted to be with their kids but didn't want to marry the mothers. I sympathized with the dads, but honestly, they just weren't there. They shivered in and out of their kids' lives like shadows in firelight. And a friend of mine made a terrific point. Speaking from personal experience, she pointed out that even if you make a commitment to be there whenever you're needed, you just can't know when children will need you. They don't need you to be "on call" like a doctor (although that's better than nothing...), they need you to be reliable, familiar (look at the root of the word), there even when they don't know they need you. They shouldn't need a reason to need you. They shouldn't need to petition for an audience with a father or mother. They should get to know both a man and a woman closely, familiarly, in all different contexts, caught off-guard, not just on Sunday zoo trips and special family dinners.
DO CHILDREN NEED MOTHERS AND FATHERS? David Bianco
[David Bianco is the author of Modern Jewish History for Everyone and Gay Essentials: Facts for Your Queer Brain.] I vigorously support same-sex adoption, particularly with hard-to-place children who would have no families at all if it weren't for gay parents. At the same time, I support preference being given to opposite-sex parents, and I have publicly urged same-sex couples to resist the urge to make new babies, because I think whenever possible children deserve both a mother and a father. Let me respond to four common objections: 1. "But there are plenty of loveless and even cruel mother-father families." Separate issue. Let's look at two other things--besides mothers and fathers--that children deserve: fresh air and vegetables. There are families who give their children fresh air and vegetables but also beat them and deny them a good education. That doesn't mean it's OK to raise kids indoors or with vitamins instead of greens as long as you love them. 2. "Children need parents who love them. It doesn't matter if they are gay or straight." I agree. I have no complaint with a lesbian who marries a man in order to raise children with him, for example. But having both a mother and a father is important. Ask yourself: If a child's parents were killed in an accident, all other things being equal, would it be better for that child to be raised by an aunt and an uncle, or by two aunts? If a little boy's mother died in childbirth, would it be better for him to be raised by his father and aunt or by his father and uncle? 3. "All the studies show that the children of gay parents are no more or less likely to be gay themselves." Irrelevant, and ridiculous. Irrelevant because those studies (and there are also studies that say the opposite) focus on the sexual orientation of the parents, not the gender of the parents. And ridiculous because it just doesn't make sense. Given the number of people raised in repressive environments where coming out is less likely, doesn't it make sense that there would be some measurable difference just because gay parents aren't homophobic? Finally, my concern about same-sex parenting is not that it will make the kids gay, but that it will deny the kids a mother or a father. 4. "Lots of lesbian couples make sure their kids have male role models, and gay couples have women around for the same reason." How sad. A father is much more than a "role model," and an aunt or neighbor can hardly fill the "mother" hole for children. There are lots of cases where children grow up without a mother or without a father, and those cases are tragedies--just ask anybody who's lost a parent at a young age (and the repercussions are often gender-specific). We shouldn't be in the business of manufacturing tragedies when we have other options. Tuesday, November 18, 2003
DO CHILDREN NEED MOTHERS AND FATHERS? DaleA
Reader DaleA writes: Sometime visit an old cemetery, one with graves going back 200 years. What is clear in such a place is that for most of human history children have had no expectation of a parent of each sex. Instead there will be grave after grave of women who died in childbirth. Of men surrounded by wife after wife who succumbed. So this idea of the right of children to parents of both sexes really relies upon very modern innovations in medicine and hygiene. In my family, a great-grandmother died in childbirth. The children were sent to a combination old people's home and orphanage. The old people, overwhelmingly male, cared for the children until some cousin could be brought from Sweden. This may be a Scandinavian arrangement, but does argue that the idea of a Noah's Ark type requirement for parents is not universal. And if it is not universal, then what is the point of using it in the context we deal with here?
GOODRIDGE AND THE BAIT AND SWITCH: Eve
It took me a while to figure out where I stood on same-sex marriage. But well before that, I knew this wasn't the way I wanted it to happen--with courts telling us what the laws our representatives voted for "really meant." This strikes me as a classic bait-and-switch: The people who vote for the legislation are reassured over and over that SSM (or whatever--this is hardly an issue unique to marriage) will not result. They vote, trusting in the people who have reassured them as to what their votes mean. Then, years later, the robed watchmen of the court system tell them what they really voted for--something they likely never would have approved, if they'd had the chance. How empowering!
THREE LINES FROM THE PRESIDENT ON MARRIAGE
"Marriage is a sacred institution between a man and a woman. Today's decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage."
GOODRIDGE REACTIONS: MARRIAGEMOVEMENT.ORG
There's an interesting debate going on at the Marriage Movement blog, between Tom Sylvester and Elizabeth Marquardt: Sylvester: ...It seems that civil unions won't suffice, so Massachusetts has three options: 1) amend their state constitution to prohibit same-sex marriage, 2) get the state out of the marriage business, or 3) allow same-sex marriage. I like option 3. Option 1 offends both liberty and equality. It's just not a good idea to put discriminatory writing in a Constitution. ... Option 2 closes the swimming pool, so to speak. After civil rights rulings that prohibited racial segregation at public pools, some towns in the South closed the pools because racist whites would rather have no pools than share them with blacks. I doubt the vast majority of heterosexuals are so hateful towards gays that they'd start refusing to marry. Gay marriage won't "destroy" marriage, but getting the state out of the marriage business would powerfully weaken the institution. Option 3 allows gays and lesbians in committed relationships to make a state-recognized lifetime commitment to the person they love. There is a lot to celebrate there. This decision could turn out to be one of the great civil rights moments in my lifetime. Also, Option 3 bypasses the whole civil unions morass. ... more Marquardt: I disagree with Tom's suggestion that civil unions will lead to a marriage menu. Actually, I think it is gay marriage that will more likely lead to a marriage menu, for this reason. Gay marriage is much more controversial than civil unions and is unlikely to be made the law of the land in one fell swoop. It is much more likely, as many have argued before me, to arrive piecemeal, first in Massachusetts, then gradually in other states that Massachusetts-married couples challenge to recognize their marriages, or in states where advocates are pursuing same-sex marriage. It will be a battle in each state and states will vary in how they handle it. Some may create same-sex marriage, some civil unions, some more stringent domestic partnership laws, some may ban some or all of the above. ...In various ways a patchwork quilt of marriage law will spring up. more Eve says: Eh, I think the state-by-state battles Marquardt fears are coming no matter what happens with same-sex marriage. Wish I didn't think that, but I do.
THE CONSEQUENCES OF GOODRIDGE: Eugene Volokh
More from Prof. Volokh (who, again, supports SSM): The Massachusetts court may have spurred the Federal Marriage Amendment, thus ultimately setting back the push for same-sex marriage. Incest and polygamy: They're next: "By the way, concerns that the Massachusetts homosexual marriage decision may lead to legalization of adult incestuous marriages and even polygamous marriages seem to me quite plausible. The court says that the parties 'do not attack the binary nature of marriage' or 'the consanguinity provisions.' (See also footnote 34, 'Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamous prohibitions of our marriage laws.') But the court's reasoning seems to apply equally to those, too." Eve adds: Given that Prof. Volokh has already detailed how the court ignored what people said about what prior legislative acts were doing--going by what you might call the internal logic of the acts rather than the statements made by the acts' proponents--I should think the court would be more worried about whether future courts would take the same "internal logic or trend of the case, not what they said they were trying to do" attitude toward Goodridge. | ||||||||||
