DEFENDING MARRIAGE, AFTER MASSACHUSETTS: Eve in the National Catholic Register

It's not every day a court gets to stand against all of recorded history.

That's what the Massachusetts Supreme Judicial Court did Nov. 18 when, in Goodridge v. Department of Health, it ruled that marriage in Massachusetts is no longer the union of a man and a woman but the union of "two persons." The court argued that forbidding a man to marry another man constituted unlawful and irrational sex discrimination.

...The Massachusetts court is saying to citizens, "You all go ahead and vote for the laws. Then we'll tell you what you really voted for. Don't expect it to look much like what you thought you agreed to." The rule of law requires that laws be predictable and stable--that laws not be yanked out from under citizens like a carpet in a Tom and Jerry cartoon. The Massachusetts court (like the Supreme Court in Roe v. Wade) has ignored this principle.

The funny thing is, this bait-and-switch approach to judging may be turned against the Goodridge decision itself in the future.

...Marriage--civil marriage, not just sacramental marriage--is essentially a procreative union in two ways.

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posted by Eve at 3:47 PM | link 0 comments

WEDDING BELL BLUES: Mark Miller replies to Richard Posner's New Republic review of Evan Gerstmann's Same-Sex Marriage and the Constitution

[Was that convoluted enough for you? Don't worry, the actual post is not hard to follow.--Eve]

Many of Gerstmann's arguments do make sense.

The law against same-sex marriage is not gender discrimination for the obvious reason that it does not discriminate against either men or women. Also, the argument that "homosexual marriage is prohibited as a way of keeping women down" is silly; but I've also never heard that argument from any same-sex marriage supporter. Gerstmann is also correct that labeling a group of people as victims who deserve the special solicitude of the courts demeans them. The difference here is that homosexuals are not asking for "special solicitude" (on this issue anyway). They are asking for the same right that others have--the right to be with the one person they love and to have the government recognize that.

Then Gerstmann uses the analogy of the law forbidding non-citizens to vote in our elections without insisting that citizens demonstrate that they are in fact loyal to the United States in order to be allowed to vote--as an example of a "crude line" of laws drawn for similar reasons--in this case, in order to distinguishing heterosexual marriage from homosexual marriage. But in order for that analogy to work at all, one must compare citizens/non-citizens to heterosexuals/homosexuals. One can go from non-citizen to citizen simply by filling out forms. The difference between citizen and non-citizen is solely for legal purposes. How does that compare with one's sexual preference?

Next is the argument that "society can oppose homosexuality as a moral matter without engaging in unconstitutional animus." I agree that government and society do have the right to oppose certain behavior on moral grounds. But there must be clear evidence that said behavior is immoral and dangerous in some way. The problem is that there is no evidence that homosexuality is immoral (besides biblical grounds). This is not true of other "private" behaviors such as polygamy or drug use. This argument also gives support to my case that this debate is not about defending the institution of marriage--it is about the legitimization of homosexuality.
posted by Eve at 3:01 PM | link 0 comments

SLIPPERY SLOPERY: Gabriel Rosenberg replies to Mark Tardiff

Mark Tardiff expressed two concerns with my explanation for how the Goodridge decision does not open the way to legalized polygamy. First, he says that I miss the novelty of the court's changing the definition of marriage.

We must consider, though, how the court changed the definition. It did so by removing gender classifications. It construed man to be
person, which is not novel at all. What classification would polygamists be asking to be removed?

The second concern with my explanation is that Goodridge was not based on disappearing legal differences, but on the expansion of constitutional rights. Goodridge was actually decided based on a long standing principle that while the state may classify, it may not do so arbitrarily. Many people opposed to this decision have wondered how a classification that has always been in marriage could suddenly be considered arbitrary. Justice
Shenk dissenting in Perez had a similar concern when the California Supreme
Court was the first court to rule racial classifications as arbitrary. He wrote:

"It is difficult to see why such laws, valid when enacted and constitutionally enforceable in this state for nearly 100 years and elsewhere for a much longer period of time, are now unconstitutional under the same Constitution and with no change in the factual situation."

What Justice Shenk failed to understand in 1948 and many fail to understand today is that there have been changes in the factual situation. The less gender and racial classifications are used throughout the law, the less relevant they become elsewhere in the law. The Goodridge decision was not based on legal equality between men and women, but because of that equality
the state was left with no reason to justify the classification. For example, when married women were forbidden from owning property or having any separate legal identity it made some sense to prohibit two women or two
men from marrying. You could not expect to allow a married couple with no legal identity or two legal identities. To understand the Goodridge decision it is essential to recognize how the legal roles of husband, wife, and spouse have evolved.
posted by Eve at 2:51 PM | link 0 comments

PROFILE OF DAVID BENKOF (ne Bianco): From the Washington Blade, DC's main gay paper

As David Bianco, he created a syndication service that provides articles to dozens of gay media outlets, including this newspaper.

As David Benkof, he will soon appear on national television to oppose gay marriage.

...Later this month, he will defend his stance during an appearance on "Ricki Lake" dedicated to the gay marriage debate, he said.

..."I have tremendous respect for the relationship choices and integrity of my gay friends, but I also have to say that I think opposite-sex relationships are in some way better than same-sex relationships, especially when it comes to raising of children," he said.

"I don't hate the sin, and I don't hate who I was 10 years ago," Benkof said. "Gay sex is just inconsistent with traditional religious life."

But others disagree with Benkof's interpretation of the requirements of Jewish faith. ...

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[Only indirectly relevant, but as Benkof's posted to this site in the past, I figured you all might be interested. An excellent, no-punches-pulled interview with Benkof is here for those who must! have! more!]
posted by Eve at 2:01 PM | link 0 comments

MASSACHUSETTS GETS IT RIGHT ON GAY MARRIAGE: Cass R. Sunstein in The New Republic

[Also not online; also snipped off Nexis]

...The Massachusetts court's most important conclusion in Goodridge was that the state had failed to produce a "rational basis" for its refusal to allow same-sex couples to marry. The state had defended its prohibition of gay marriage principally by arguing that it sought to maintain a "favorable setting for procreation." But, given Massachusetts law, that is a ludicrous explanation. For well over a century, Massachusetts has held that a marriage need not be consummated to be valid. It even allows same-sex couples to have insurance coverage for assisted reproductive technology. In the court's words, the "Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried ... and whether the parent or her parent is heterosexual, homosexual, or bisexual."

The state also defended its ban by claiming that it sought an "optimal setting for child rearing," which it defined as "a two-parent family with one parent of each sex." But this rationale is equally difficult to square with Massachusetts's laws and precedents, which recognize and attempt to protect many families that do not fit the traditional mold. For example, in 1983 the court ruled that homosexual orientation is not sufficient grounds for denying child custody in a divorce case; a 1999 decision, also involving child custody, emphasized that the child's best interests should take full account of the child's relationship with "de facto same-sex parents." Furthermore, Massachusetts ensures that adoption is available to married couples and same-sex couples alike. ...And, in any case, "the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws," not least because of the significant economic and social benefits of marriage under state law.

...Moreover, should the state wish to reject Goodridge in its entirety, it could amend the Massachusetts constitution fairly easily. The process is time-consuming but less arduous than changing many state constitutions. To get on the ballot, it is enough for an amendment to be approved by merely one-quarter of state legislators in two successive legislative sessions and then to be ratified by a bare majority of Massachusetts voters in a statewide election. Such amendments are not unusual in Massachusetts, where the constitution has been changed 55 times since 1919--sometimes in response to actual or anticipated decisions of the state supreme court. ...

The reasonableness of the Massachusetts court's decision does not, however, mean the U.S. Supreme Court should follow suit now or in the near future. Quite the contrary. At the national level, judges ought to show caution in ruling on gay rights. ...

...Of course, such state-level experimentation will lead to different laws, raising one obvious question: Must other states recognize same-sex marriages conducted in Massachusetts? If so, Massachusetts would be effectively setting marriage policy for the nation. ...In any case, Congress foresaw the ramifications of a Goodridge-like ruling in 1997 when it passed the federal Defense of Marriage Act, which expressly authorizes states to refuse to recognize same-sex marriages even if they are valid in the state where they were performed. ...
posted by Eve at 3:53 AM | link 0 comments

MASSACHUSETTS GETS IT WRONG ON GAY MARRIAGE: Jeffrey Rosen in The New Republic

[I don't think this piece is online, so I'm snipping a few chunks from Nexis, and you should get the Dead Tree version and read the whole thing.]

...Although the Alaska and Hawaii courts both declared a right to gay marriage, they offered different reasons for their conclusions. The Alaska court said that the right to marry was fundamental and concluded that, if a right is fundamental, it must be extended to everyone on equal terms. This conclusion is less obvious than it appears: The U.S. Supreme Court opinions in the 1920s that called marriage a fundamental right referred to the fact that the right of men and women to marry was recognized by state common law. But state common law also imposed (and continues to impose) all sorts of restrictions on the right, prohibiting not only same-sex unions but also polygamous and incestuous ones. These restrictions suggest that, even if marriage is a fundamental right, the state can refuse to extend it to unions of which it disapproves. ...

The Hawaii Supreme Court took a different tack, arguing that the ban on gay marriage amounts to sex discrimination, because it declares that Ms. X is allowed to marry Mr. Y but is prohibited from marrying Ms. Z. In fact, both genders are being treated alike--men and women are both forbidden from marrying members of the same sex. And, unlike laws that prohibited blacks and whites from marrying each other, the laws banning same-sex marriage aren't designed to stigmatize or subordinate one gender or the other.

While the Goodridge ruling cites the fundamental rights and sex-discrimination arguments offered by Alaska and Hawaii, it endorses neither. ...Instead, the majority says that it doesn't have to decide whether the state has compelling reasons for restricting marriage, because none of the reasons the state offers are rational. ...

As a constitutional matter, this is a bold and unprecedented conclusion. Ordinarily, rational basis review is a very relaxed standard of scrutiny: If any reasonable legislator could believe that there are plausible and legitimate reasons for the law, judges will uphold it.

...Armed with this more modest reading of Lawrence, the Massachusetts Supreme Judicial Court might have produced an opinion that followed the Vermont Supreme Court's reasoning along the following lines: Massachusetts is free to reserve the label "marriage" for heterosexuals simply because it thinks that maintaining the traditional definition will preserve its social prestige at a time when heterosexual marriage needs all the help it can get. But it can't do so in a way that is designed to degrade or stigmatize gay and lesbian unions or to grant them unequal benefits under law. Therefore, the restriction of marriage to heterosexual couples can't be justified unless the Massachusetts legislature immediately creates civil unions or its equivalent for gays and lesbians. ...
posted by Eve at 3:47 AM | link 0 comments

CRITICISM OF THAT NYT "POLL FINDS SSM OPPOSITION" STORY from a blogger

...I wasn't aware that 55% support constituted "strong support," given previous discussions about support for a flag-burning amendment. The Times article, however, doesn't announce that important fact until the fifth paragraph of the article, preceding it with the idea that there is "widespread support," cutting across "a wide swath of the public." This support, according to the Times includes "a majority of people traditionally viewed as supportive of gay rights, including Democrats, women and people who live on the East Coast."

The actual results of the poll tell a much closer story. Of those groups who "favor" the amendment, those in the Northeast, Democrats, Independents, and Catholics only just barely constitute a majority of the groups' respondents (at 51 or 52 percent). Those in the West support the amendment but only at 48% to 46%, and those from 18-29 years of age oppose the amendment 52% to 48%

...So, that Democratic support for the marriage ban, pushed forward by the Times in the second paragraph as a majority of the party, was based on a very slim majority that was within the margin of error of the poll. The same goes for the East Coast.

Never mentioned in the story is the support for marriage equality by young people 18-29.

...Finally, the reporters -- meaning outside of others' quotes -- use the phrase "gay marriage" 12 times and "same-sex marriage" thrice, but never discuss "ending marriage discrimination" or "marriage equality." ...

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posted by Eve at 3:40 AM | link 0 comments

LAMENESS TO END SOON: Eve

Hi everyone. I've been under the weather and took longer than I expected to recover. If you've been wondering why this site has not been firing on all pistons lately, that's why. I'm fine now, though. I apologize for the lameness and promise that it will cease by midnight tonight. By then this fine site will be offering: more linkly goodness; your mail; prisoners getting married; a new question!; and more.

I'll be posting through Wednesday (Christmas Eve) and then back on Monday, December 29. This shop will be open throughout the New Year's proceedings but I expect things might be kind of slow until January 3rd.
posted by Eve at 4:40 PM | link 0 comments

COMPARING DIVORCED PARENTS AND SAME-SEX PARENTS: Elizabeth Marquardt and Michael Triplett

Interesting exchange at MarriageMovement.org. Unsurprisingly, I think Elizabeth is downplaying the importance of gender here. "Mother" and "father" are just about the most gendered roles I can think of--much more so than soldier or childcare worker, for example--and can't be collapsed into a generic, genderless "parent" role. So my position is closer to David Blankenhorn's, here. But anyway, both Elizabeth and Michael make good points. Here's an excerpt from Michael:

...Same-sex parents are not like divorced parents or single parents because there is an intact, two-parent family. Do children yearn for the biological parent to the same degree in adoptive situations or when born to infertile couples? THAT's where I think the best comparison is: to adoptive parents and infertile parents who use reproductive technology.

...As a "family law" attorney, I've handled divorces and custody issues created by divorce; I've also handled adoptions by same-sex parents. Comparing the joy of an intact, loving couple choosing to adopt children (or have them through reproductive technology) with the horror show of divorce is like comparing day and night. ...

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posted by Eve at 4:35 PM | link 0 comments

DOES THAT APPLY TO THE E.R.A.?

[Eve: It's not like this is an especially important point--I just wanted to growl at this particular silly argument against a marriage amendment. Let's keep girly "social" issues out of the Constitution! From the NYTimes:]

"The Republican House leadership is having its own internal fight to determine what to do," said Winnie Stachelberg, political director of the Human Rights Campaign.

"There is no consensus among conservatives, libertarians and Republicans," she said. "Many of them say they don't support marriage for same-sex couples, but to amend the Constitution for social issues is a very bad idea."

The last time the Constitution was amended for social purposes was in 1920, when alcohol was outlawed, but that prohibition was repealed in 1933.
posted by Eve at 4:10 PM | link 0 comments

STRONG SUPPORT IS FOUND FOR BAN ON GAY MARRIAGE: From the New York Times

The latest New York Times/CBS News poll has found widespread support for an amendment to the United States Constitution to ban gay marriage. It also found unease about homosexual relations in general, making the issue a potentially divisive one for the Democrats and an opportunity for the Republicans in the 2004 election.

Support for a constitutional amendment extends across a wide swath of the public and includes a majority of people traditionally viewed as supportive of gay rights, including Democrats, women and people who live on the East Coast.

Attitudes on the subject seem to be inextricably linked to how people view marriage itself. For a majority of Americans--53 percent--marriage is largely a religious matter. Seventy-one percent of those people oppose gay marriage. Similarly, 33 percent of Americans say marriage is largely a legal matter and a majority of those people--55 percent--say they support gay marriage.

The most positive feelings toward gay people were registered among respondents under 30, and among those who knew gay people.

The nationwide poll found that 55 percent of Americans favored an amendment to the constitution that would allow marriage only between a man and a woman, while 40 percent opposed the idea. ...

The Times/CBS News poll was conducted from Dec. 10 through Dec. 13 in telephone interviews with 1,057 people. It carries a margin of sampling error of plus or minus three percentage points. Responses about gay rights tend to be influenced somewhat by the wording of the questions. ...

The poll also found that by a 61-34 margin, Americans oppose gay marriage. They are slightly more accepting of civil unions to give gays some of the same legal rights as married couples, with 54 percent opposed to civil unions and 39 percent supportive.

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posted by Eve at 4:06 PM | link 0 comments