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 Friday, January 09, 2004
IS MARRIAGE A RIGHT?: Mike Pignatello replies to David Benkof
David seems to believe that families and kids can still turn out okay even if one of the parents is gay and the other straight, as he shows with the example of Gene Robinson. And yet we are also told by other SSM opponents that gendered role models are important in the home. So, to throw the question out at the group, would anyone support the notion that, for example, an efffeminate gay man married to a woman could still be an adequate gender role model for the children? Does that the sort of family adhere sufficiently to the norms of society? Does that sort of family still make straight men feel needed and wanted? I am having an impossible time reconciling all the "requirements" that SSM opponents seem to keep heaping onto the idea of "family." I find it fascinating that, with all the emphasis on gender and marriage and mother and father, no one seems to pay any attention to how gay men and women do not fit neatly into these prescribed gender roles that we keep reading about. Declaring things like "Everyone in the country, gay and straight, has the right to marry" really ignores these gender realities. Gay people often can't and/or won't live up to society's ideals of gender. To presume then that gay parents would provide the best environment for kids if they simply marry the opposite sex seems to ignore how different the idea of "gender" is for different people. So now the anti-SSM camp seems to be saying, "That's okay, you can be who you are, you can be a gay daddy, as long as your child has his/her biological parents in the home." But no one has stopped to ask the question: is a family with an "out" gay parent and straight parent (both biological) really the best environment for a child? Does THAT relationship provide a good example for the child of what real marriage is supposed to be? These are just a few of the questions that I think challenge the notion that "opposite sex parents + biological parents in the home = the best family for children, always." I think it's folly to presume that gay/straight marriages would automatically result in the ideal relationship for raising children, simply because the parents are (1) of opposites sexes and (2) both related to the child. It's one thing to promote strong families for children, but it's another thing entirely to suggest that gay/straight men and women should build marital relationships that are fundamentally contrary to their nature.
IS MARRIAGE A RIGHT? Matt Taylor replies to Mark Tardiff
I agree with Mark that traditional societies often attribute their code of conduct to an external source, such as the gods or their ancestors. In this he has uncovered a serious problem with the way I formulated the so-called "communitarian" view of rights. While I think there are many people today who feel that rights are properly defined by society itself, this is not the traditional view. Perhaps it would be more accurate to enumerate a third, "authoritarian" moral framework, in which the rights and responsibilities of individuals are set down by an unimpeachable authority, such as a deity or an ancient oral tradition. As Mark has argued, the authoritarian framework does not allow for marriage to be redefined. This is certainly true of Christianity, the traditional authority most historically relevant to the United States. Here, then, is a revised attempt at connecting moral frameworks to the question, "is marriage a right?": authoritarians would say "no", libertarians "yes", and communitarians "maybe" (depending whether you think SSM is good or bad for society). Mark then raises some objections to the notion of "inventing rights", from which I infer that he considers rights best defined by a traditional authority: "I could insist on being allowed to do something, but unless I can appeal to something beyond society itself the only reason I can give is that I want to be able to do something." I could be very wrong, but I sense that this line of discussion is headed toward a debate over the authority of Christian scriptures. That may be where we need to go in order for SSM opponents and advocates to understand each other, but is it really what we want to talk about? I've heard that kind of debate many, many times, and I've yet to see it end with anything but anger and frustration on both sides. On the other hand, if Mark and others have some other authority in mind when speaking of individual rights, please enlighten us ... that would be a truly fresh perspective.
ANTI-SSM GROUP ACCUSED OF HIDING POLL RESULTS: From the Boston Herald
Gay marriage foes are under fire for releasing only those portions of a new Zogby poll that supported their position--and hiding other results that showed public opposition to their drive to ban gay marriage with a constitutional amendment. The Massachusetts Family Institute, which released the poll at a Wednesday rally, had heavily promoted results showing 69 percent of respondents wanted to have a chance to vote on the amendment. But what the group didn't say is that a narrow majority of respondents opposed the amendment, by a split of 49-48 percent, according to a copy of the poll's results released by the Zogby organization. Opponents also failed to mention that citizens, by a margin of 48-46, did not want lawmakers to prevent marriage licenses from being issued to homosexual couples in May, when the Supreme Judicial Court decision legalizing gay marriage takes effect. more [Eve: Well, that's a lousy thing for MFI to do. If you ask a question, you should be prepared to get an answer....]
RALLY FOR SSM IN BOSTON; DEMS SPLIT: From the Boston Globe
Democratic state Senator Jarrett T. Barrios, addressing more than 1,000 gay marriage supporters at a State House rally yesterday, pointed to Massachusetts Democratic Party Chairman Philip W. Johnston and said, "Discrimination in any form will not be tolerated in his party." The line drew loud cheers from the crowd, which included a dozen Democratic lawmakers. But if the rally made it seem the state's Democratic Party is united in its support of gay marriage, looks are deceiving. In fact, the Supreme Judicial Court's Nov. 18 ruling declaring same-sex marriage constitutional has opened a fissure in the state's dominant party. Some of the state's most prominent Democrats -- such as House Speaker Thomas M. Finneran, Senate President Robert E. Travaglini and Attorney General Thomas F. Reilly -- do not support gay marriage. Reilly, who is considered a potential gubernatorial candidate in 2006, has suggested that civil unions would comply with the SJC's ruling. Travaglini and the state Senate have asked the SJC for its opinion of a Senate civil unions bill. Finneran has supported a constitutional amendment that would ban gay marriage, a measure that is being pushed this year by Representative Philip Travis, a Democrat. And yet gay marriage is backed by other Democrats, many in leadership positions, such as House Majority Leader Salvatore F. DiMasi, who attended yesterday's pro-gay marriage rally. more
CIVIL UNION BILL INTRODUCED IN COLORADO: From the Associated Press
A bill that would allow civil unions for 10,000 gay couples in Colorado will not hurt traditional marriages, the sponsor of the measure said Thursday. Rep. Tom Plant, D-Nederland, said his bill (House Bill 1085) only applies to people prohibited from being married. The bill was introduced Thursday. The measure would authorize county clerks to issue licenses for civil unions between eligible same-sex couples. It would give them most of the same benefits, protections and responsibilities granted to married spouses, including the ability to transfer property, survivor benefits, coverage under health plans, and the ability to refuse to testify against partners. more
NEW JERSEY DOMESTIC PARTNERSHIP LAW PASSES: From New Jersey's Star-Ledger
Steven Goldstein watched from a state Senate gallery in Trenton yesterday as lawmakers passed the Domestic Partnership Act, a provision granting broad new protections to gay couples as well as opposite-sex couples over age 62. Today, an elated Goldstein said, he will begin the process of moving to New Jersey. The Brooklyn resident predicted he will not be alone. ... Heterosexual couples who fall under the law's purview were more muted in their response, in part because there has been little, if anything, in the way of a rallying cry for the measure within that constituency. ... Once in effect, the law will grant partners many of the legal rights now afforded to spouses. They include hospital visitation, permission to make emergency medical decisions and the ability to claim each other as exemptions on state income tax filings. The law also allows domestic partners to qualify for exemptions from inheritance taxes. ... more
WHY I SUPPORT GAY MARRIAGE, AND WHY I WILL NEVER BE ANGRY AT THOSE WHO DO NOT: "Armed Liberal"
...What is marriage about? It's about a deep commitment between two people who promise to care about and for each other. Historically, it has been tied to sex and procreation--which means heterosexual sex--but that tie is eroding, in the face of the increasing sexualization of society. ... What it is that matters in a marriage? Commitment. Duration. Primacy. It is a commitment--which means that in the face of conflicting desires, you have to anyway. It has duration--meaning it gains in value over time. An old good relationship is better than a new one. ...And it has primacy over your other relationships. The act of saying to this person "You are the most important person in my life. Not my children, not my boss, not my pastor or anyone else matters more to me than you do," fundamentally changes both one's life and one's relationships to others. ... ...When [Steve, a friend] came out, he was fired by his parents from the family-owned firm that he was a partner at; when he got AIDS, he was fired from his job at Drexel. As he got sicker, he couldn't always manage his medical affairs, and his parents--who had fired and rejected him, became conservators of his estate over his objections. He didn't want them to take control of his medical care, so he asked me to. He'd been in a committed relationship for six years at this point, and his parents undid much the estate planning he'd done to ensure his partner's financial security; his partner couldn't do anything about it--after all, in the eyes of the law at the time, he was a nonentity. His partner couldn't legally control Steve's health care without a document; and because of the legal conflicts over the financial matters, Steve was concerned that it would be invalidated. So I took the legal responsibility. His partner made the decisions; I was the formal authority that the hospitals could use to validate it. Because his partner was, after all, a legal nonentity when it came to the legal authority over Steve's care. more [Eve adds that the comments to that post are also well worth your time.]
GAY-RELATED SPEECH AND CHILD CUSTODY DISPUTES: Eugene Volokh
In November, I posted about a Colorado judge restricting one parent's anti-gay speech as part of a child custody order: ... "Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to 'make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic.' . . ." ... ...Well, here's a case from earlier this week [PDF link] that likewise involves a restriction on pro-gay speech: ..."A Temporary Restraining Order was entered the day the Complaint was filed, which reads in pertinent part: "IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Husband, Joseph Randolph Hogue, Jr., shall be and he hereby is RESTRAINED, pending a final hearing in this cause, from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle." more
LIFE WITHOUT FATHER: MarriageMovement on NYTimes
Affecting posts at MarriageMovement on this New York Times piece on single motherhood. Start here and scroll as desired. Thursday, January 08, 2004
GOODRIDGE CASE HAS ALTERNATIVE TO GAY MARRIAGE: Hadley Arkes and Mary Ann Glendon in the Boston Herald
...There is, however, an immediate alternative to legally recognizing "same-sex marriages"--an alternative that is provided for in the Goodridge decision. The alternative, roughly stated, is this: Reaffirm and clarify the current marriage statute to define marriage as between one man and one woman. Include within the re-enactment express legislative findings, stating clearly the rational bases for reserving the status of marriage to one man and one woman. We believe that the SJC, by its own language and the limited nature of its reasoning in Goodridge, invites just this response as an alternative to recognizing same-sex marriages. Here is why we think so.... more
IS MARRIAGE A RIGHT? David Benkof
Same-sex marriage is not about equality, it's about whether we should (without much society-wide reflection) change the definition of a key building block of our civilization. Marriage already has a firm definition--a union between a man and a woman--and talk of equality seems aimed at detracting from that fact. Women, by definition, cannot be sperm donors and men of course cannot be surrogate mothers. Nobody can reasonably complain that those facts are "unfair" or "unequal." Further--hear me out, now--gays and lesbians already have the equal right to marry members of the opposite sex, and many have done so. Both prominent gay Christian Rev. Mel White and Episcopalian Archbishope Gene Robinson married and parented before they came out as gay. Countless other men and women with same-sex desires never come out but instead marry and raise children. The typical gay-activist response to such decisions is that "they weren't being honest with themselves" or "they're living a lie." I've never understood why, when the libido is at oods with the mind, the heart, and the conscience, it's the libido that's supposed to be "true" and the rest of us that's charlatan. Everyone in the country, gay and straight, has the right to marry, as that term has been defined for centuries. The fact that a small but growing segment of society might want to say that an apple is also an orange doesn't stop them from being separate fruit.
IS MARRIAGE A RIGHT? Gabriel Rosenberg replies to Mary Catelli, Maureen Mullarkey, and Ogre
Mary Catelli writes, "[Jim Henley] simply assumes that we can limit the recognition to sexual relationships." In fact, nowhere in his post does he state this. A man and a woman cannot be denied a marriage license simply because they refuse to engage in sex. Maureen Mullarkey writes, "Every institution has requirements for membership. Homosexuals already have the freedom to marry." The question here is what requirements may be used. Can the government forbid interracial marriages or interfaith marriages? Everyone would still have the freedom to marry. Ogre goes so far as to say "Jim's arguments makes no sense." He points out "food stamps are issued to people according to a set of criteria based on income and family size." Sure, but even then the government must justify using those criteria. The question here is, Can the government come up with a justification for using criteria based on sex? He then writes with respect to marriage, "[the government is] making a set of rules that are applied to all individuals who wish to participate in the institution regardless of sex, color, or religion." The rules, though, are not regardless of sex. If the government were sex-blind, SSM would not be an issue. Finally Ogre says that equal protection arguments fall flat because rights apply to individuals not groups. It is precisely for this reason, though, that the argument is quite strong. Look at the situation on an individual basis. John wants to marry Chuck. Why is he denied? Because of his sex. There must be some--and probably a great deal of--justification for this. It doesn't matter that as groups men and women face parallel restrictions.
IS MARRIAGE A RIGHT? John Mack
[John Mack is an attorney in the general practice of law in New London, Minnesota.] A better way of conceptualizing this question is, to what extent are impositions on the right to marry unconstitutional? The word "right" is simply too vast -- moral right? Legal right? De facto right? Natural right? Furthermore, putting the issue in legal/constitutional terms allows us to tap into a long line of cases which discuss the issue in various contexts. First, there is no general constitutional right to marry. The states are free to prohibit polygamous marriages. See Reynolds. Second, states are free to prohibit underage marriages. Third, states are free to prohibit consanguineous marriages. Fourth, states are free to prohibit certain classes of persons from marrying--some prisoners, probationers, mental defectives, etc. Only very late was it determined that it was unconstitutional to prohibit miscegenation, and then the case was decided on equal protection grounds. The question then will become whether the prohibitions are discriminatory and, if so, whether the discrimination is rational. Probably most restrictions on marriage would be subject to strict scrutiny. If we look upon questions relating to the right to marry the person you love in this context, things become clearer. Yes, the state can prohibit persons from marrying the one they love if that person falls into certain categories--underage, mentally defective, consanguineous, polygamous, abusive. Maybe, the state can prohibit some people from marrying the persons they love--homosexuals, prisoners, probationers, persons infected with certain diseases, or foreigners, for instance. No, the state cannot prohibit some classes of people otherwise qualified to marry from marrying because of the property in question--miscegenous, divorced, illiterate, etc. If we look at the list of classes and properties for which it is constitutionally permissible to forbid marriage, we must agree with Tina Turner -- "What's love got to do with it?" It is difficult to think of a single case where the right to marry would be litigated would it make any legal difference whether the parties loved each other (INS cases where the government wants to claim that the marriage is a sham comes the closest). If marriage is to be an institution governed by statutes and judge-made rules, the rights and prohibitions it creates must be determinable without reference to the subjective attitudes of potential marriage partners, or marriage laws would be impossible to administer. Since this is so, there can hardly be a general right to marry the only kind of person you could desire sexually, because the State has a right to prohibit marriage with respect to certain classes of people regardless of the existence of love or desire. Suppose the only person you can desire sexually is a child. Suppose the only person you can desire sexually is one who is already married. The State can prohibit all such marriages. Conversely, suppose a gay man wishes to marry a lesbian and the clerk knows of their sexual orientation. The clerk could not constitutionally deny them a marriage license based upon the fact that they do not desire each other sexually. The existence or non-existence of sexual attraction may, of course, be a consideration in determining which classes of people may marry each other. The frustration of the desires or large classes of people, particularly people who vote, is bound to weigh upon legislators and judges. But this is not the same thing as saying that sexual attraction is either a necessary or a sufficient condition for a right to marry. Clearly, it is not.
IS MARRIAGE A RIGHT? Matt Taylor replies to Ogre and Maureen Mullarkey
A question in response to Ogre's post: "... The Constitution and laws of this country apply to individuals and groups of people, not to couples. ..." and to Maureen Mullarkey's post: "... Homosexuals already have the freedom to marry. They choose not to exercise that freedom in order to live as they choose ..." How then would you explain that laws against interracial marriage are unjust? By your logic, such laws don't violate anyone's individual rights, since white people can marry white people, black people can marry black people, etc. In your view, what is the crucial difference between interracial marriage and same-sex marriage?
IS MARRIAGE A RIGHT? George McAllister
I think that there are two questions contained in the one, the first simple to answer, the second not so much. First, is marriage, in fact, a legal right? This is the easy one. Then, is marriage a right on some grander scale, a "natural right," "moral right," etc.? This is the hard one, and in fact I'm not even going to approach it because I am, philosophically, uncomfortable with rights talk. I nonetheless have something to say about it, but let's take the questions in order. First, there clearly is a legal right to marriage. The case law is, as usual, long and dull, but you can Lexis-ize 52 Am Jur 2d MARRIAGE 3 for a mercifully brief overview. It is clearly a right to marry the person you want to (not just a generic marriage right), and polygamy is excluded. Easy as can be, though with some creative lawyering it could certainly go either way in actual practice. But what about the more general right? I said I'm not comfortable with rights talk, so I won't argue about whether a general right to marriage exists or not. I do think, however, that once the legal institution of marriage has been created, it is possible and useful to apply other rights to it--so we can ask, for example, what implications the right to privacy has for the government's control over marriage, or the more vaguely defined right not to be discriminated against on the basis of sex, race, and so on. That's obviously a whole 'nother question, though, so I leave it for some other time.
IS MARRIAGE A RIGHT? Mark Tardiff replies to Matt Taylor
Matt Taylor is correct in pointing out that the answer to the question will depend on one's view of rights in general. However, his description of the differences misses some important distinctions and his assertion that what he calls the "communitarian view" is the more traditional model for society is problematic. When I studied cultural anthropology in college it was impressed upon us that the nature of a traditional society is to enforce conformity to an accepted code of conduct that was established by the "gods" the "ancestors" the "order of the cosmos" or whatever. It is most definitively not conceived by members of a traditional society as having been established by society itself, but rather by something or someone beyond the present members of society. Hence a truly traditional approach to our question would state that marriage is a natural institution that society does not create but rather is bound to protect and support. Thus there can be no right to SSM since no one has the authority to change the nature of marriage. Another problem with the approach that "we invent rights" is that it effectively abolishes rights. If it were true, rights would be whatever society made them to be, and there would be no grounds for protest. I could insist on being allowed to do something, but unless I can appeal to something beyond society itself the only reason I can give is that I want to be able to do something. The implication for our present discussion of the idea that we invent rights is that the court in Massachusetts just invented a new right to SSM, something that didn't exist before and something that was not, in any objective sense, due to the plaintiffs.
THE MESSAGE OF SSM: Mark Miller replies to Maggie
According to you, the 'message' of same-sex marriage is that the other sex is optional in family life. So advancing that logic, one must also say that: - the message of allowing loveless marriages to continue is that 'love' is optional in family life. - or the message of having only one child is that 'siblings' are optional in family life. - or the message of marriage where the couple does not have living parents is that 'grandparents' are optional in family life. - or the message of marriages that do not result in children are that 'children' are optional in family life. The real message being sent by this argument is that the only single feature of 'family life' is having two opposite-sex parents. That is the message being sent here. And of course that children raised in families without two opposite-sex parents cannot be expected to become good family adults. Or does that apply only to children raised with same-sex parents?
"TAMING JUDICIAL ACTIVISM": Eve
I am pretty sketched by Parisi's proposal below, actually. Although I probably often sound like him, I certainly don't believe that justices should always rule in ways that make the majority happy--I'm mostly a textualist, not a majoritarian. But I do think it's important to note how many people believe the ability to make law has been effectively taken out of their hands by the courts. My mother recently said that she didn't think people should vote when they didn't understand the issues--you should be a responsible voter. I agree, of course. And I wonder how one can be a responsible voter when the courts can interpret the laws for which we and our representatives vote in ways that diverge so radically from both what we did (the text) and what we thought we were doing (intent). How can we even attempt to know what we're voting for?
TAMING JUDICIAL ACTIVISM: Peter Parisi in Washington Times
...What is less clear is whether the Massachusetts citizenry will rise up against a latter-day judicial oligarchy--four members of the state's Supreme Judicial Court--that makes King George III look positively benign by comparison. Led by state Supreme Court Chief Justice Margaret Marshall, the robed rogues on a 4-3 vote on Nov. 18 found a heretofore undiscovered right to homosexual "marriage" in the Massachusetts Constitution. ... ...On the federal bench and among most state judiciaries, there are no similar constraints on radical activists like Mrs. Marshall--and as such, no accountability. ... And therein lies the larger issue at stake--beyond gay "marriage" or even the proposed Federal Marriage Amendment, needed since the 1996 Defense of Marriage Act is unlikely to withstand a legal challenge before a U.S. Supreme Court that in June discovered sodomy is a constitutional right. ... At the federal level, Republican senators on the Judiciary Committee should bring up for hearings and a vote a constitutional amendment that has been around since at least the time of Vermont's Supreme Court same-sex civil unions ruling in 1999. It would end federal judges' lifetime appointments, making them instead subject to presidential renomination and Senate reconfirmation every 10 years. (Ten years was chosen specifically to outlast a two-term presidency.) Massachusetts and other states without elected judges would do well to consider following suit with respect to state judges. ... more
COALITION FOR MARRIAGE RALLY IN BOSTON: From the Boston Globe
A new coalition of conservative political and religious groups that oppose same-sex marriage said yesterday that it hopes to tilt the scales in its favor by arguing that Bay State voters should be allowed to settle the divisive issue, not the Supreme Judicial Court. The group, called the Coalition for Marriage, staged a rally in the State House yesterday, promising to advertise on television and radio, knock on doors, and stage public meetings to generate outrage among Massachusetts voters that they have been denied a chance to weigh in on the gay marriage issue. The goal, they said, is to persuade lawmakers to vote in favor of a proposed constitutional amendment to ban gay marriage at a constitutional convention Feb. 11. ... ...Today, a group of gay marriage supporters plans to hold a rally at the State House to support the ruling and argue against the proposed constitutional amendment that would declare marriage the union of a man and a woman. more
WHAT SHOULD A MARRIAGE AMENDMENT SAY? National Review editorial
...We have defended an amendment that would accomplish three things. First, it would reserve the word "marriage" for the union of one man and one woman: No court or legislature would be able to create "gay marriage." Second, it would ban the federal or state governments--again, whether directed by a court or a legislature--from granting benefits that are conditioned on non-marital sexual relationships. ... Third, the amendment would block the courts, at both the federal and state levels, from second-guessing a legislature's decision to reserve a benefit for married couples. If the legislature has said that only married couples have joint adoption rights, for example, no court may grant that benefit to unmarried couples. Some supporters of an amendment have wanted it to do more, and others less. The maximalists have wanted to ban all civil unions and other forms of marriage lite, and to deny certain benefits to homosexual couples. To accomplish these goals, however, would require the amendment to list in detail what benefits must be reserved to marriage. That would be unwise. The precise set of benefits that should attend marriage is not something that can be deduced from first principles. ... Most of the maximalists have now come around. The greater danger now comes from the minimalists. They want the amendment only to reserve the word "marriage" for the union of a man and a woman. ... ...As important as it is to prevent gay marriage, it is not the most important goal that an amendment should have. That goal is the end of judicial meddling with the institution. more
DOES IT INSULT KIDS TO SAY THEY NEED PARENTS? Ashley Doherty and Elizabeth Marquardt
Ashley writes: Might some of the divergence between Ms. Gallagher's point of view, and that of her airplane seatmate, be due to different interpretations of the word "need"? More specifically, what is Ms. Gallagher saying when she says that children "need" a father, or "need" a mother-and-father? The young man on the plane may interpret that as meaning "is irrevocably screwed up without." Since he's the child of divorced parents, to accept that definition would be to accept that he's a mess and will never be put right. If that's the way he interpreted it, it's hardly surprising that he rejected the notion. (In fact, his restraint in the face of what could be perceived as a colossal insult is admirable.) If, on the other way, Ms. Gallagher means only "would be a lot better off with, or at least happier, at least for so long as one is a child," then her contention is not insulting. And it might, if phrased that way, have received an assent. Take yourself, for example. You mention from time to time that you found (and maybe still find) it painful to have been a child of divorce. But you don't seem irrevocably screwed up to me, and I doubt that you'd describe yourself that way. (It'd be a sure way to undermine pundit authority!) So did you "need" your biological father (or mother) in your home? Or would it have just been a lot better for you if they'd both been there? Elizabeth replies here.
MORE ON MASSACHUSETTS DECISION: Eve replies to Barry Deutsch, part one
'Way back in the days of auld lang syne, Barry Deutsch sharply took issue with my National Catholic Register column on the Massachusetts Supreme Judicial Court's Goodridge decision. ("How many premises of Eve's argument are wrong?") Some of his sharpness was warranted--the column has a couple major blunders, for which I apologize. I choose to blame deadline pressure rather than basic incompetence, but you all of course can make your own diagnoses.... The central claim I sought to illustrate is that the court, by arrogating to itself the power to redefine marriage in spite of Massachusetts law and all recorded history that I know of, was acting as a group of philosopher-kings, yanking the law out from under the citizenry. I stand by that claim. Barry points out that the examples I focused on--several pieces of legislation cited by the court as showing pro-SSM tendencies in the law, even though those same pieces of legislation had passed amid constant reassurances that they would not lead to SSM--were in no way central to the court's opinion. He's right. I shouldn't have focused on that stuff. That's one of my two major mistakes in the column. (There's one mistake for each half!) However, the arguments that are central to the opinion are no better. There are basically two: an argument about marriage rights, and an argument about rationality. One is circular and the other is contemptuous. Both exemplify the arrogant approach to the law that I (ineptly) attacked in my column. The court's opinion begins by rejecting one pro-SSM argument: that SSM is already legal in Massachusetts because the relevant statutes do not formally state that each couple coming to be married must consist of a bride and a groom. The court, rightly, points out that the statutes don't say that because everybody knew it. As the majority opinion states, "We interpret statutes to carry out the Legislature's intent, determined by the words of a statute interpreted according to 'the ordinary and approved usage of the language.' Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The everyday meaning of 'marriage' is '[t]he legal union of a man and woman as husband and wife,' Black's Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term 'marriage' has ever had a different meaning under Massachusetts law. ...This definition of marriage, as both the department and the Superior Court judge point out, derives from the common law. ...See also Commonwealth v. Lane, 113 Mass. 458, 462-463 (1873) ('when the statutes are silent, questions of the validity of marriages are to be determined by the jus gentium, the common law of nations'); C.P. Kindregan, Jr., & M.L. Inker, Family Law and Practice § 1.2 (3d ed.2002). Far from being ambiguous, the undefined word 'marriage,' as used in G.L. c. 207, confirms the General Court's intent to hew to the term's common-law and quotidian meaning concerning the genders of the marriage partners." (I note that this is one way in which laws against interracial marriage are strikingly different from laws against SSM: Because the common-law definition of marriage did not bar interracial marriage, the color bar had to be written into statutory law.) Oddly, though, the court forgets what it just said as soon as it turns to the question of whether barring same-sex marriage violates a right to marry. The court cites a number of cases about the right to marry--and yet never tells us what this is a right to. It can't tell us that, because--as it just pointed out--"marriage" in the law rests on common-law definitions that would not include same-sex unions. (Justice Robert J. Cordy points this out in his dissent: "The same semantic sleight of hand could transform every other restriction on marriage into an infringement of a right of fundamental importance. For example, if one assumes that a group of mature, consenting, committed adults can form a 'marriage,' the prohibition on polygamy (G.L. c. 207, § 4), infringes on their 'right' to 'marry.' In legal analysis as in mathematics, it is fundamentally erroneous to assume the truth of the very thing that is to be proved.") The court pretends that it has found a restriction of the right to marry, when by the logic of its own previous statements it has actually invented a right to redefine marriage.
MORE ON MASSACHUSETTS DECISION: Eve replies to Barry Deutsch, part two
Because the court thinks it has found a restriction of the right to marry, it now considers whether this restriction rests on a "rational basis." What does that mean? The court tells us, "For due process claims, rational basis analysis requires that statutes 'bear[ ] a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.' ...For equal protection challenges, the rational basis test requires that 'an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.'" The "due process" test is one of two things. Either it is an invitation to rampant philosopher-kingship, by which courts can strike down any law they think is wrong (because after all, the justices have personally decided that the law has no "real and substantial relation to the public health, safety, morals" etc.); or it is a fairly low-bar test similar to the "equal protection" one. In order to come to the conclusion the court majority draws--that SSM or maybe something almost exactly like it must be instituted--you have to believe that everyone who disagrees with you is blinded by irrational prejudice. That would include a majority of likely Massachusetts voters; almost certainly a majority of Massachusetts legislators; every major presidential candidate from both main parties; Maggie Gallagher, Elizabeth Marquardt, and, well, me! You not only have to believe that Maggie's, Elizabeth's, and my arguments are wrong; you have to believe that no one could think they were right for reasons other than irrational anti-gay animus. And you also have to believe that making that judgment of our rationality and bias-level is an appropriate task for the court--a court which, I suppose we are meant to believe, is itself fully objective and in no way slave to the biases of the judging class.... The second half of my piece is an attempt to delineate a "rational basis" for the position that marriage is essentially procreative, in order to prove that you could buy this claim without reference or appeal to opposition to homosexual acts. The point of that section would probably have been clearer if I had, you know, mentioned it or something. That would be my second mistake. I know that I haven't addressed several of Barry's specific criticisms. One reason this reply is so late is that I tried to reply briefly to Barry's second and third points, but realized that a) it was probably more important, and more interesting for the reader, to talk about my substantive problems with the Goodridge decision, and b) replying fully would entail laying out an entire theory of jurisprudence, addressing the complexities of textualism and the tensions between text and intent--and I can't imagine that you all really want me to do that here! Just as Barry is right that the Goodridge decision doesn't rest on the legislation I discussed, so my opposition to that decision doesn't rest on my account of that legislation either. If anyone wants a more specific or in-depth reply on unanswered jurisprudential questions, email me and I will post something on my own website, not here.
DEAN SAYS FAITH SWAYED DECISION ON GAY UNIONS: From the Washington Post
Democratic front-runner Howard Dean said Wednesday that his decision as governor to sign the bill legalizing civil unions for gays in Vermont was influenced by his Christian views, as he waded deeper into the growing political, religious and cultural debate over homosexuality and the Bible's view of it. "The overwhelming evidence is that there is very significant, substantial genetic component to it," Dean said in an interview Wednesday. "From a religious point of view, if God had thought homosexuality is a sin, he would not have created gay people." ... Dean said he does not often turn to his faith when making policy decisions but cited the civil union bill as a time he did. "My view of Christianity . . . is that the hallmark of being a Christian is to reach out to people who have been left behind," he told reporters Tuesday. "So I think there was a religious aspect to my decision to support civil unions." ... Dean has been expanding on his religious views in a series of conversations with reporters, but his remarks Tuesday and Wednesday were the first time he has talked about how faith has influenced his policy making. Dean said he does not consider homosexuality a sin but nonetheless opposes gay marriage. ... more
GIRLS' SEXUAL PREFERENCE: David Morrison
[Commenting on the Post piece] ...I am merely observing that even back when I was a gay activist, which is over a decade ago now, women were always understood to be a bit more flexible about their sexual identities than men were. For example it was possible, particularly in academic circles, to meet women who would self-define as lesbian for openly feminist or political motives whereas I never ran into a guy who self-define as gay to make a political or social point. ... ...Am I surprised that a little more common sense would have prevailed before [the Edmund Burke School] asked students, some as young as 13 or 14 if the entire school was involved, to self-identify as gay or lesbian or bisexual? Absolutely. In my opinion doing something like this is a terrible thing, bordering on destructive. ... A while back I remember I was looking after a neighbor's nine-year-old boy while they were caught in a bad traffic jam and couldn't get back in time to let them in from school. In the course of our hanging out conversation he blurted out Mr. Morrison I think I am gay. When I asked him why he thought that he said it was because he and his best friend wanted to be together all the time and do all the same things and, when I asked further, would even be brothers if they could. That experience, which I think should be part of every little boy's experience of being a boy, had been characterized in his understanding as "gay." more Wednesday, January 07, 2004
FOR SOME TEEN GIRLS, SEXUAL PREFERENCE IS A SHIFTING CONCEPT: From the Washington Post
...Social scientists say that 5 percent to 7 percent of young people are gay or lesbian, and that teenagers are starting at younger ages to have same-sex sexual experiences: 13 for boys, 15 for girls. But those figures don't begin to tell the full story about today's girls because girls, more often than boys, experiment with their sexuality and resist being placed in any particular group. ... [Prep-school head David] Shapiro says he was "astounded" at the number of kids who stepped into the bisexual group [at a "Diversity Day" exercise]. As he thought about it, he concluded that "kids today know the difference between behavior and orientation. They say, 'I may be behaving in this certain way, but I'll make up my own mind about who I am in my own time.' " He searches for a comparison. "It's like saying, 'Mom, Dad, I'm going to take some courses in science but I'm not sure I want to be a doctor." ...Outside of conservative religious circles, the common understanding for years has been that homosexuality is largely genetic, based on physical attraction, and unchanging. Though an easy model to understand, if not accept, it has a major flaw: It is derived almost exclusively from male subjects. more
GAY GROUP SUES AFTER SERMON: From the Washington Post
A Spanish homosexual organization is suing the country's Roman Catholic primate for suggesting that same-sex marriages would bring down the country's social security system. The Popular Gay Platform, an association of politically conservative homosexuals, filed the action a day after a sermon about the Holy Family by Cardinal Antonio Maria Rouco Varela at Madrid's Almudena Cathedral. The association's president, Carlos Biendicho, told El Mundo newspaper that the primate's words constitute "slander and an incitement to discrimination" on the basis of sexual orientation. ... In his sermon, Rouco Varela said that if families based on marriage between a man and a woman are put on an equal footing with "all types of unions, including those by nature unable to have children, it will result in the systematic destruction of the social security system." He suggested same-sex couples would overburden the state pension system by drawing retirement benefits without having had children whose incomes would keep the system going. Rouco Varela's comments come as Spain and other European countries face collapse of their state pension systems mainly because of low birthrates. The primate argued that it is "the fecund love of the Christian family" that is best for the survival of the welfare system, even though large families are rejected as a thing of the past by many young Spaniards. more
MORE POLL INFO: Zogby/FRC
According to a new Zogby International poll, 69% of likely voters in Massachusetts want to vote on a constitutional amendment to keep Massachusetts a traditional marriage state, the Coalition for Marriage announced today. These findings indicate a trend in favor of one man, one woman marriage since the United State Supreme Court's July decision legalizing sodomy, and since the Massachusetts Supreme Judicial Court decision on November 18 redefining marriage. ...According to the Zogby poll, 69% of respondents wanted to vote on an amendment to keep Massachusetts a traditional marriage state and 52% vs. 42% agreed that only marriage between one man and one woman should be legal and binding in America. ... Half of all respondents believed that the Massachusetts Supreme Judicial Court overstepped its bounds in its decision to redefine marriage. ... When asked if they would be more or less likely to vote for a candidate who supports homosexual marriage, more than twice the number of voters [33%] would be less rather than more likely [16%] to vote for a pro-homosexual marriage candidate. Forty-eight percent of voters said it made no difference. ... The Zogby International poll of 601 likely Massachusetts voters, chosen at random, carries a margin of error +/- 4.1 percentage points. It was conducted from December 16-18, 2003 more
THE MESSAGE OF SSM: Maggie Gallagher
...But then I pulled out my big gun: "What about you?" I asked him. "Do you think you'll matter to your kids?" Matthew seemed taken aback by the question. Obviously he had never looked at it from that perspective. He thought for a moment and then followed his train of thought to the only logical conclusion -- a train wreck: "No," he said. "Not really." ...This has been, of course, the big message of the family diversity crowd since the dawn of the sexual revolution: Adults have awesome intimacy needs that must be met. Family forms, social norms, household arrangements all must be wound, unwound and rewound so the adults get what they need. Kids? Oh, they adjust. ... ...Do not expect boys to become good family men in a society of Matthews who believe, as they have been taught, that men are optional in family life. more
NOT DEBATING THE SAME ISSUE: Michael Triplett at MarriageMovement
[David Blankenhorn's] comments about Britney and the fight over SSM actually clarified a major problem with the "debate:" the two sides are not debating the same issue. Your discussion of redefining marriage and weakening the culture is the debate being had by SSM opponents. The loss of important legal rights and legal recognition is what is being debated by SSM proponents. As long as the two sides continue to debate entirely different issues, there is never going to be a resolution. In watching, and participating, in the debate, it is becoming clear that the two sides have picked the most comfortable battle they believe they can win and have chosen not to engage the other side. SSM opponents want to talk about the culture and the meaning of marriage because it becomes uncomfortable to talk about denying a significant bundle of legal rights to a group of people while impetuous Britney can have these same legal rights after a 5-minute Las Vegas marriage. Proponents want to talk about legal rights because of the discomfort in dealing with the possiblity that gay marriage could result in the parade of horribles pro-marriage advocates predict. more
TWO POLLS SHOW OPPOSITION TO SSM: Family Research Council
In Boston today, The Coalition for Marriage, of which Family Research Council is a member, released a new poll conducted by Zogby International which shows that a majority of Massachusetts residents oppose the recent court decision mandating same-sex "marriage," and they favor a constitutional amendment which would protect marriage as the union of one man and one woman. Additionally, National Public Radio is readying the release of a new poll which will show that if President Bush stands firm in the defense of marriage and he is matched against a Democratic opponent who favors civil unions, the President will enjoy a sharp increase in support. more Tuesday, January 06, 2004
DSS POLICY DRAWS FIRE: More on North Carolina adoption case
[Eve: Can't tell what this newspaper is, except that it seems to oppose same-sex couples' adopting. It offers more details and quotes than the article cited below, so here you go.] ...The controversy that started brewing nearly two years ago came to a head last week when the Mecklenburg Board of County Commissioners, after being informed of the allegations, sent a letter to Raleigh asking for clarification on state laws and/or policies regarding adoptions by homosexual or unmarried couples. Commissioner Bill James wants a local policy that would prohibit gay adoptions; and if commissioners don’t have the authority to set that level of local policy, he wants legislative changes made that would. If it reaches that stage, the legal and moral battle that could ensue has the potential to be epic. That's what happened in Florida two years ago, when a federal judge upheld a Florida law that prohibits gay adoptions. That ruling has been appealed by the American Civil Liberties Union. Two other states--Mississippi and Utah--have laws that prohibit gay adoptions. North Carolina law neither expressly prohibits nor permits gay adoptions, which is one of the factors that led to the Mecklenburg DSS and board of commissioners becoming embroiled, again, in a potential storm of heightened controversy. more
CAN HEATHER HAVE TWO MOMMIES IN CHARLOTTE? From The Charlotte World
[Eve: I couldn't find this article online, but here are excerpts from a North Carolina Christian newspaper.] ...And closer to home, Mecklenburg County officials will be pressing the state for answers on whether or not homosexuals should be allowed to adopt children in North Carolina. That question was the subject of a recent closed session meeting of the Mecklenburg County Board of Commissioners. The meeting was prompted by a letter to Commissioner Bill James from an Asheville woman protesting the adoption of two Charlotte children by a homosexual couple. ... Susan Esbenshade and her husband became parents several years ago when they adopted a little girl. The Esbenshades had hopes of enlarging their family again two-and-a-half years ago when they learned that the birth mother of their adopted daughter had given birth to twins at Carolinas Medical Center in Charlotte. The twins' aunt, Rebecca Lawrence, called the Esbenshades to tell them about the birth because she says the babies' mother wanted the couple to adopt the children. The twins, a boy and a girl, were born prematurely in 2001 to a mother who had used crack cocaine during her pregnancy. The babies weighed less than three pounds at birth and had serious medical needs. Esbenshade, a nurse, says she and her husband were up to the challenge. They pursued adopting the twins through the Mecklenburg County Department of Social Services (DSS). What happened next is still unclear. Esbenshade says that she spoke numerous times to a DSS case worker who said she and her husband could not adopt the children because the Esbenshades were not Mecklenburg County residents. The Esbenshades stopped pursuing the adoption in February 2002 when they were told the twins had been placed in a good home. "We were advised by another case worker," Esbenshade says, "that the children were in a wonderful foster home with great parents who not only wanted to adopt the twins but who were eager to establish a relationship with our daughter and were open to visitation." Esbenshade also says DSS told her that the foster parents had a medical background and "in fact the wife was a doctor." Six months later, the Esbenshades learned news that stunned them. The twins' foster parents were in fact two homosexual men. There was no "wife" as they had been told by DSS. Within the month, the Esbenshades hired an attorney to intervene for custody of the children. But despite being the adoptive parents of the twins' sister, and despite the birth mother's wishes that the babies be placed with the Esbenshades, their request was denied. Since then, one of the foster parents, a pharmacist who lives in Raleigh, has legally adopted the children. His homosexual partner is a stay-at-home caregiver to the twins. The two men say that they were told by DSS that the Esbenshades didn't want the children because of their health problems. The Esbenshades say they never made such statements to case workers. What really happened may never be known. The case file is closed to the public. But the Esbenshades' call for an investigation has accomplished at least one thing: The ambiguity surrounding their case has drawn attention to the ambiguity surrounding North Carolina's state policy on homosexual adoption. According to Suzanne Jeffries, a spokeswoman for the Mecklenburg County Department of Health and Human Services, the county allows only single-parent adoptions and adoptions by married couples. That means only one person in a homosexual couple can legally adopt a child. But state policy is less clear on whether case workers could or should consider a person's sexual orientation when determining his suitability to be an adoptive parent. And state policy is also unclear on whether county agencies could or should be allowed to establish their own standards apart from the state for evaluating potential adoptive parents. ... Monday, January 05, 2004
MOTHERS... FATHERS... MARRIAGE: Matt Taylor replies to Elizabeth Marquardt
...I was just pointing out that the spillover effect you predict (SSM leads straights to have kids outside marriage) may be an unintended consequence of labeling SSM anti-marriage. Lumping gay couples in with stepfamilies, single mothers and unwed straight couples means that eventual legalization of SSM might be interpreted as social approval of other alternate family forms. If we were to make clear that SSM is a unique case that should be debated only on its own merits, the "collateral damage" might be greatly reduced. more | ||||||||||
