EVE AT STANFORD

[When I get my notes, I'll post a skeleton of my talk at Notre Dame.]

Bursting the Bubble: Discuss Current Events
Panel 7:30pm Tuesday February 3rd
Tresidder Student Union
2nd Floor - Oak Room
Stanford University

Panelists: EVE TUSHNET [that's me!]

Rev. SCOTTY MCLENNAN
Dean for Religious Life at Stanford
Former lawyer from Massachussetts

RON SANDERS
Head of Campus Crusade for Christ

ASSEMBLYMAN MARK LENO
California State Assemblyman representing San Francisco (D)
Introducing Same-Sex Marriage Legislation

Moderator: MORRIS P. FIORINA
Senior Fellow at the Hoover Institution
Wendt Family Professor of Political Science at Stanford
(Has a forthcoming book on American attitudes towards homosexuality)
posted by Eve at 3:12 AM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Eve (sorry for length)

A recurring theme in some of the pro-SSM posts replying to this question has been: Okay, we know you guys don't like SSM, but what's your alternative? What is your "official policy toward gay people"? Here's a somewhat scattershot reply to that query.

1) I admit I'm unsure of what SSM opponents are being asked to provide. We differ among ourselves about what we'd advise homosexual couples to do, but, just for a couple examples, some SSM opponents (like Elizabeth Marquardt) support civil unions. Others, like me, support expanding and strengthening freedom of contract to allow homosexual couples--and single people--to allocate certain benefits and responsibilities to people they trust, on a case-by-case basis. (SSM supporters have achieved a lot of success convincing people that the denial of these rights and responsibilities is wrong--the most popular example here is hospital visitation--but the arguments in favor of letting a homosexual partner make medical decisions for an incapacitated beloved apply just as well to a sister or a best friend.)

At any rate, supporters of SSM have rejected these alternatives for the perfectly valid reason that... they're not marriage. That's fine--it's pretty much the definition of "supporter of SSM"! But it does leave me a bit in the dark about what kind of "positive policy" SSM supporters are asking opponents to offer.

2) Perhaps cultural support of and honor for homosexual relationships are what's being asked for. That's a question better addressed by the people whom David Barnes and Mark Barton have dubbed "liberals," but I do have two comments on it. First, Patrick Hart argues that opposition to SSM "regards [gay couples'] relationships as 'other,' interchangeable with friendships, family ties, etc." I've ranted enough about my desire to get Americans to take friendship more seriously, so I'll just say that I don't think our culture denigrates ties to close family members. I think homosexual relationships could be treated as equal in cultural honor to (not the same as) sisterhood, or a more accurate and exalted understanding of best-friendship, without SSM. I'm not a Barnesian liberal, but this seems to me to be the cultural approach such liberals should prefer.

3) Second, I strongly take issue with the belief that marriage exists so the government can bless and praise your romantic relationships. Supporters of limited government and/or extensive privacy rights really shouldn't approve this intrusive understanding of marriage. If marriage is about whether two adults are sweet on, or loyal to, each other, it is none of the government's business. That is, obviously, some of what marriage as a cultural institution is for; but it's insufficient to justify government intervention, just as the fact of committed, loving friendship is not enough to justify government licensing of friendships. Civil marriage exists precisely because society needs children raised well, and children--the unconsenting third parties who often result from the intimate fun and fumblings of men and women--need mom and dad.

(Supporters of SSM often argue that this creepy "Uncle Sam likes your personal life!" view of marriage is the one held by many or most heterosexual couples. I don't see how that's an argument for SSM rather than an argument for renewing a more embodied, lush understanding of the human person and a more limited understanding of government.)
posted by Eve at 2:19 AM | link 0 comments

MARRIAGE RIGHTS, JUDGING, AND GENDER: Matt Taylor replies to Mark Tardiff

Mark Tardiff writes:

"Let us imagine that the Goodridge case had come before justices who shared the founders' vision of reality and, as far as I can see, the vision still held by most Americans today. According to this vision, which underlies our Constitution, there is a natural law and a natural order guaranteed by the Creator. In this worldview gender is a natural reality ... If gender and marriage are natural realities, then SSM is not a right; it is an oxymoron."

I agree with Mark's critique of Goodridge, if I understand him right: The state has a rational basis for using the traditional, male-female definition of marriage, simply as a historical and biological fact. I also agree that the law and social institutions must fit human nature if they are to succeed; the colossal failure of communism proves the point quite well.

The logical conclusion seems to be that society should only recognize male-female relationships, since that fits the natural order of human gender. But if we really want natural law to guide us, we need to remove our cultural lens and take a closer look at nature itself, i.e. apply the scientific method. Empirical evidence refutes the radical feminist notion that gender is entirely cultural, but it also refutes the orthodox religious view that gender is an eternal, absolute dichotomy. Homosexuality, transgender identity, intersex and other variations on gender were not invented by a few university intellectuals; they are natural reality for real people. This is unambiguous, for example, in the case of "true hermaphrodites" (46XX,46XY/mosaic); people in this category are born with both male and female reproductive tissue, and have a mixture of male and female chromosomes.

As a general rule, Mark is right that people are male and female, marriage is heterosexual and children are raised by their mother and father; the existing institution of marriage fits this pattern quite well. However, the rule has exceptions, and people who happen to be exceptions shouldn't be entirely written off in our social and legal institutions. Doing so denies the complexity of gender inherent in the natural order.
posted by Eve at 1:50 AM | link 0 comments

ANNOYED AT POLITICIANS: David Benkof

In the last few days we've seen some of the worst examples of political talk about SSM since last August, when Arnold Schwarzenegger said "I think that gay marriage should be between a man and a woman."

First we had the State of the Union, with its vague reference to "the constitutional process" rather than a firm indication of what President Bush thinks should happen in the wake of Goodridge. But the sentence that rankled me most was: "I believe we should respect individuals as we take a principled stand for one of the most fundamental, enduring institutions of our civilization." I'm pretty sure that W. meant "I believe we should respect gay and lesbian individuals as we nonetheless..." If that's what he meant, then on that point I agree with him wholeheartedly. I just wish he had been "big tent" enough to actually say the G and L words.

Then last night we had the Democratic debate with John Edwards misinforming the nation, repeatedly, about what the Defense of Marriage Act did, and none of the journalists or other candidates bothering to correct him.

I know this issue is complicated and seems to have political death written all over it for both Republicans and Democrats. And not every discussion can be as reasoned as the ones we have here. But can't our politicians do at least a little better?
posted by Eve at 1:41 AM | link 0 comments

FORCED DIVORCE FOR SCOTTISH TRANSSEXUALS?

I agree with Elizabeth.
posted by Eve at 1:01 AM | link 0 comments

MARRIAGE RIGHTS, JUDGING, AND GENDER: Mark Tardiff replies to Mark Barton

I am not surprised by Mark Barton's assertion that he sees "nowhere in the [Massachusetts SSM] ruling where they rely on any assumption about gender as a social construct." In my original post I stated that it is an unmentioned assumption. One of the problems in this debate is that there are unexpressed assumptions at work that each side does not even recognize as assumptions, leading to a failure even to achieve
disagreement.

A thought experiment may be the easiest way to understand my point. Let us imagine that the Goodridge case had come before justices who shared the founders' vision of reality and, as far as I can see, the vision still held by most Americans today. According to this vision, which underlies our Constitution, there is a natural law and a natural order guaranteed by the Creator. In this worldview gender is a natural reality. Men and women are different in significant ways that must be taken into account in the structure of society. The foundational place for this 'taking into account' is marriage, itself a natural institution for the union of the sexes and the propagation of the species. If Goodridge had come before judges sharing the founders' vision, the plaintiffs' case would have been dismissed without even the need for the state to justify its policies. If gender and marriage are natural realities, then SSM is not a right; it is an oxymoron.

The actual conclusion of the justices shows that they did not share this assumption.

What assumption did they use? I argued that it was the radical feminist assumption that gender is a social construct. The modern feminist and gay rights
movements both started in the 60's, developed together, and even now share many contacts. Historically it is reasonable to see a connection. Logically, it is necessary. Some conception of gender as somehow fundamentally plastic, subject in a basic way to human choices and social arrangements, must logically underlie any assertion that it is possible to marry someone of the same sex.

My contention is that the justices did not have the right to make such a fundamental change in the founders' assumptions about reality. I reject the claim that the ruling was necessary to defend against a 'tyranny of the majority' because I flatly deny that SSM is a right at all. I see this ruling as an expression of a 'tyranny of the minority' in which four justices imposed on the
people of the state an alien view of reality.
posted by Eve at 6:18 PM | link 0 comments

JUDICIAL ACTIVISM: David Barnes replies to Mike Pignatello

Mike's post seems to remove any possibility of the existence of judicial activism:

"The president even suggests resorting to the national 'constitutional process' in order to 'defend' marriage, presumably from gay people. It sounds like Bush is actually trying to create the situation under which a Constitutional amendment could be justified. We didn't do it, SSM opponents will say, it was the activist judges that made us do it. There is no recognition in the SOTU, of course, that the Massachusetts judges were interpreting the law according to their state constitution, as is their job. One can't help but wonder what lack of respect for the separation of powers is hiding in some of the SOTU comments."

This begs the question. Mike is claiming that when Bush was accusing activist judges of imposing their will instead of interpreting the law, Bush didn't acknowledge the fact that they were interpreting the law, when that is the very point that Bush is taking issue with. In other words: There are right and wrong interpretations of the law. The law does not mean whatever a bunch of judges decide it means. To reply to the charge that a court interpreted the law wrongly by saying, "But they were interpreting the law--that's their job!" misunderstands the criticism.
posted by Eve at 6:12 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Matt Taylor replies to David Benkof

David Benkof writes:

"For me, the same-sex marriage debate is indeed about homosexuality, and about the government preferring opposite-sex partnering over same-sex, because that encourages the best environment for the raising of children, as society has learned over the centuries."

Over the last few thousand years, the taboo against homosexual relationships may well have been necessary in order to ensure a proper environment for raising children, and to enforce the division of labor by gender on which traditional, agrarian societies depend. But, in this country at least, that period of human history is over, with the rest of the world soon to follow. It is no coincidence that gender roles and family structures have become more fluid, since most forms of economic activity today are as easily performed by women as men. Old gender norms, such as the taboo against homosexuality, no longer serve their original purpose and have largely been cast aside.

During the next few thousand years, civilization will change in ways we can barely imagine. We must learn flexibility and tolerance in all areas of social life, sexuality and reproduction included, in order to adapt to our rapidly changing technological environment. Extending civil marriage to all couples, regardless of gender, is one small step in this direction. If the institution of marriage is defined too rigidly, it will eventually be abandoned as a cultural anachronism.
posted by Eve at 6:08 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Mark Barton replies to David Barnes

David Barnes makes me realize I have been unclear. When I said, "There are three main camps in this debate," I intended, and should have said, the gay rights debate in general. And I agree there is no necessary connection between my categories "liberal" and "libertarian" and views on
SSM in particular. On the other hand, based on talking to a lot of people about the issue, I continue to think that there is a significant correlation, and that the discrepancy between polls on gay rights generally and SSM generally is mostly due to the split that I
identified among the "libertarians." I'm sure there are some "liberals" with respect to gay relationships who oppose SSM for the sorts of reasons that Maggie and Eve put forth, but I continue to doubt it's common. My impression is that across the debate as a whole, most "liberal" arguments against SSM are actually being put by people who are merely trying to argue from a
"liberal" point of view for (legitimate) tactical reasons (to better convince liberals).
posted by Eve at 6:06 PM | link 0 comments

NEW YORK/VERMONT CIVIL UNION CASE: Justin Katz

"In the first case in the nation that recognized a couple who entered into a Vermont civil union as spouses outside that state, Lambda Legal today asked an appeals court to uphold an earlier ruling that a gay man in New York is a legal spouse and able to sue St. Vincent's Hospital for medical negligence leading to his longtime partner's death."

I've given this story a bit of extra consideration not only because it is rooted in a pain with which anybody who cares about anybody can easily empathize, but also because multiple angles of the gay marriage debate and larger judicial problems come into play. ...

In one emotionally charged case--with an ideal plaintiff and particularly unforeseeable tragedy catalyzing the lawsuit--lie myriad angles through which gay marriage can become law by way of the judiciary. That this is so is a prima facie consequence of the magnitude of what the judge's logic has accomplished: not only is Vermont's civil union law imported to New York, but it is equated with marriage--all in one swoop.

The most direct way in which this case will become legal inclusion of homosexuals in marriage is that the court's reasoning will simply be copied as precedent for a less emotional issue. The court called a homosexual partner a "spouse"; therefore, the law says that such partners count as spouses, whatever the circumstances. ...

Another implication of this backward approach to requiring gay marriage to be portable is, obviously, that the Defense of Marriage Act was a waste of time and paper.

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posted by Eve at 6:03 PM | link 0 comments

THE END OF MARRIAGE IN SCANDINAVIA? Sara Butler replies to Stanley Kurtz

...Gay marriage wouldn't even have occurred to us if our understanding of marriage hadn't already changed dramatically. The logical conclusion of this diagnosis, I had thought, is that merely preventing gay marriage really won't do all that much to fix what's already broken, although it might slow down the process of deterioration slightly. Unfortunately, that's not the conclusion that Mr. Kurtz draws:

"The death of marriage is not inevitable. In a given country, public policy decisions and cultural values could slow, and perhaps halt, the process of marital decline. Nor are we faced with an all-or-nothing choice between the marital system of, say, the 1950s and marriage's disappearance. Kiernan's model posits stopping points. So repealing no-fault divorce, or even eliminating premarital cohabitation, are not what's at issue. With no-fault divorce, Americans traded away some of the marital stability that protects children to gain more freedom for adults. Yet we can accept that trade-off, while still drawing a line against descent into a Nordic-style system. And cohabitation as a premarital testing phase is not the same as unmarried parenting. Potentially, a line between the two can hold."

Oh, sad, after such a great article, why does Mr. Kurtz have to go here? I think it seriously undermines everything he has written up to this point, making it appear that all he really cares about is excluding gays, not trying to do anything to fix marriage. Or, less cynically, that he's just seizing on gay marriage because it's a politically expedient "solution," which can utilize a lot of anti-gay sentiment that I'm afraid motivates the average voter's opposition to gay marriage. This is problematic first of all because it's not much of a long-term solution. Younger people are far more accepting of homosexuality than their elders, and so as they grow up, the anti-gay marriage sentiment that banning gay marriage relies on will disappear.

But even beyond that, it seems foolishly optimistic to me to think that if we allow our culture to continue as it is and just stop gay marriage from happening, somehow marriage and the family will survive the way we want it to. Look at our divorce rate already, Mr. Kurtz! Look at the number of children born out of wedlock! The status quo is not just fine, even if we could preserve it, which I seriously doubt. I really don't think we can ultimately afford to accept the "trade-off" of no-fault divorce. It has already contributed greatly to the delinking of child-raising and marriage. Premarital cohabition has also already had an enormous impact on the way we think about commitment and family. ...The Federal Marriage Amendment would not be a magic cure for our social problems; it's a band-aid for a gaping wound in our culture.

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posted by Eve at 5:46 PM | link 0 comments

THE END OF MARRIAGE IN SCANDINAVIA? Gabriel Rosenberg replies to Stanley Kurtz

Stanley Kurtz has a new article in the Weekly Standard entitled "The End of Marriage in Scandinavia: The `conservative case' for same-sex marriage collapses.". In it he claims to have evidence to eviscerate the "conservative case" for same-sex marriage as advanced by Andrew Sullivan and William Eskridge, Jr. In truth, though, he makes their case for them. The whole premise of Kurtz's article is that marriage has been destroyed in Scandinavia by same-sex marriage. Well, actually he claims it has been destroyed by other causes which also led to same-sex marriage, but SSM didn't help reverse this trend. Well, actually no Scandinavian country has same-sex marriage, but they have "Registered Partnerships" which resemble marriages in some ways. Significantly, in Denmark these partnerships are open to same-sex or opposite-sex couples. Still, Kurtz somehow believes this shows how same-sex marriage will destroy the institution. In fact, though, he's making Eskridge's case for him. Almost four years ago Eskridge wrote a column at FindLaw arguing that Vermont's new civil unions and other "quasi-marriage" arrangements would end up weakening the institution of marriage. Eskridge wrote:

Ironically, however, experimental laws like Vermont's will undermine the institution of marriage -- much more so than simply legalizing same-sex marriage would. Such laws not only cut down on the total number of married couples by continuing to exclude same-sex couples, but they also encourage many different-sex couples to opt for unions similar to, but short of, marriage. In the long run, they threaten to make marriage obsolete....Accordingly, people who seriously value long-term, mutually committed relationships as the best situs of human flourishing and childrearing ought to be concerned that these new institutions make it easier for couples to enjoy many state benefits without as much state-supported obligation. These laws not only make marriage less special, but they lessen the difficulty of divorce. That should trouble the religious traditionalist and the gay marriage proponent alike. Thus, if traditionalists truly want to preserve marriage -- not just homophobia -- it's time for them to join forces with the gay-marriage activists in a common cause.

Andrew Sullivan has made a similar case (as far back as 1989) that domestic partnership arrangements will end up harming marriage. If Scandinavian partnership arrangements did indeed cause the destruction of marriage, as Kurtz claims, he is only strengthening the case of Sullivan and Eskridge, not undermining it.

Actually, there is very little in Kurtz's article to support even the claim that Registered Partnerships contributed to any decline in marriage in Scandinavia. Kurtz himself attributes the decline to many other factors and attitudes that he admits were already present before RP's, but he claims that RP's only reinforced these dangerous attitudes. Of course he also attributes the change to women working outside the home and social welfare. Apparently, though, same-sex marriage will just reinforce the idea that women should be allowed to work outside the home. Kurtz belives that the biggest problem in Scandinavia is couples who raise children without marrying. Yet, in the United States, Kurtz is trying to prevent same-sex couples raising children from marrying. Maybe that's the attitude that is truly harming marriage.

link
posted by Eve at 5:40 PM | link 0 comments

THE END OF MARRIAGE IN SCANDINAVIA? Andrew Sullivan replies to Stanley Kurtz

Stanley Kurtz has written a long article about changing family structure in Scandinavia. It's a not unfamiliar tale. In countries with high levels of secularism, a vast welfare state, and the option of registered partnerships rather than marriage, you would indeed expect traditional marriage to be in decline. There are other factors as well, as Kurtz details them: "Contraception, abortion, women in the workforce, spreading secularism, ascendant individualism..." All of this is not exactly staggering news. What is staggering is Kurtz's attempt to show that gay marriage in these countries is somehow responsible for this shift. First off: the entire premise of the piece--that marriage for gays is legal in Norway, Denmark and Sweden--is factually untrue. There are no marriage rights for gays in the countries he cites. There are, instead, what are called "registered partnerships." These partnerships are open to heteros as well as homos. So the entire premise of the piece is false. Even if Kurtz were able to prove in any way a linkage between the emergence of "registered partnerships" and the decline of marriage, it would have no relevance to the debate on equal marriage rights for gays in the U.S. In fact, it shows what many of us have been arguing for over a decade. The emergence of gay couples in society is a fact. Sane conservatives need to acknowledge this rather than run away from it. Given that such a presence is here: what should we do to respond to it? My answer is: co-opt gays into the existing and paramount institution for coupling, i.e. marriage. Oppose all counterfeits--like civil unions--which, because they are also open to straights, obviously do undermine marriage. ...

Then Kurtz tries to argue that there is a causation effect between registered partnerships for gays and the decline of traditional marriage. He proves nothing. There are so many independent variables--from secularism to contraception to cultural gender roles and on and on--that such a conclusion is intellectually preposterous. ...The truth is that for several decades, revolutions in contraception, feminism, the economy have all severed the linkage between marriage and procreation. If you want to take the institution back, go ahead and try. Or go visit Saudi Arabia (or Muslim enclaves in Scandinavia) where those connections are still tightly bound. But to pin all the change in marriage on gay couples--the only group that has had nothing to do with marriage decline in this century--is grotesque.

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update to that post here.
posted by Eve at 5:37 PM | link 0 comments

CONCERNED WOMEN FOR AMERICA: NO FMA THIS CONGRESS?

[Human Events interviews Sandy Rios of CWA. Much kung fu FMA fighting.]

What issues are at the top of the agenda for Concerned Women for America this year?

RIOS: If you mean issues, rather than legislative items, that's a little different. But I would say about issues, on top of the heap would have to be homosexual marriage. ...

There is a lot of talk around Washington about where conservatives are going to go in terms of promoting the Federal Marriage Amendment. Different language is being proposed. Where does Concerned Women for America come down on that? Do you want to see a marriage amendment that would prohibit so-called civil unions in the states or would you accept a Federal Marriage Amendment that basically just denies the word "marriage" to homosexual unions but allows them to be legalized by the states?

RIOS: We are not satisfied with a weak amendment. The case I continue to make is what it would be like if we were sitting here, 150 years ago, and we said that we wanted an amendment to outlaw slavery, but if states want to have "owned people," they just have to call it chattel. Just don't call it marriage, or don't call it slavery. An amendment that protects marriage in name only is troublesome to us and does not go far enough. . . . I would also like to say that we don't think an amendment has a chance of passing at all in this Congress. And so we prefer holding back a little bit until we have a different Congress, different people sitting there before this issue's even raised. ...

Your position, and the Concerned Women for America's position, was that if you are actually going to go forward and actually amend the Constitution of the United States on this issue, it should ban civil unions, which are in fact, as Howard Dean pointed out, marriage in another name?

RIOS: California just granted civil unions and they said they're granting all the same privileges and benefits of marriage. The only difference is the name. ...

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posted by Eve at 5:32 PM | link 0 comments

BETTER LINK TO STANLEY KURTZ ON MARRIAGE IN SCANDINAVIA is here.

Apparently the old link had some significant garbling due to problems with the Weekly Standard's server.
posted by Eve at 5:25 PM | link 0 comments

MASS. LABOR UNIONS BACK SSM: From the Boston Globe

Labor unions representing nearly 200,000 workers across Massachusetts have endorsed same-sex civil marriage in recent weeks, as the organizations lobby to expand workplace benefits for their gay and lesbian
members.

With just over two weeks to go before the Legislature is scheduled to vote on a constitutional amendment that would ban same-sex marriage, the unions' stance adds a potent political force to the fractious debate,
especially because roughly half of the state's 200 lawmakers have not taken a public position on the issue. "There are legislators that every year ask for our support, and there's a reciprocity there," said John J.
Templeton, president of Service Employees International Union, Local 509, which includes about 7,000 state workers. ...

Labor officials, hoping to consolidate their influence, have begun hashing out a strategy for the Feb. 11 vote on the proposed constitutional amendment, when activist groups from around the state and nation are
expected to converge on the State House. Union officials say that, in addition to lobbying lawmakers beforehand, many of their members will probably go to the State House for the vote, and the unions may also highlight lawmakers' stand on the gay marriage issue in their candidate report cards distributed before Election Day.

...On Sunday, rallies involving about 2,000 people
took place across central and western Massachusetts decrying the Supreme Judicial Court decision and calling on lawmakers to vote in favor of the constitutional amendment, which was sponsored by Representative
Philip Travis, a Rehoboth Democrat.

The list of unions supporting gay marriage includes the Massachusetts Teachers Association, with 96,000 members; the National Association of Government Employees, with 10,000 Bay State members; the Massachusetts Nurses Association, with 22,000 members; the SEIU, Local 509 and 2020, with about 21,000 members; and several smaller local and regional labor councils, such as the United Auto Workers of Massachusetts and the International Brotherhood of Electrical Workers, Local 1505.

Other major labor organizations -- such as the AFL-CIO of Massachusetts, an umbrella group with about 400,000 members statewide -- have not taken a position on gay marriage, but oppose the constitutional amendment that would ban gay marriage. In their view, the amendment could hamper collective bargaining efforts over wages and benefits.

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posted by Eve at 5:25 PM | link 0 comments

USA TODAY AND MATT DANIELS DEBATE MARRIAGE AMENDMENT

USAT editorial: ...The explosive issue could be better addressed by honoring the conservative principle of states' rights. After all, states competently have handled marriage law since before the Revolutionary War.

While state-based solutions offer no guarantees to either side of the debate, 50 legislatures are more likely to reflect the range of regional differences that surround the issue than a single legal fiat imposed by
the federal government. The nation's diverse views on legalizing gay marriage are borne out by a USA TODAY/CNN/Gallup Poll this month that found 53% opposed to it, 24% in favor and 23% with no opinion.
...

Backers of a constitutional amendment ignore the fact that most states already prohibit same-sex unions. A constitutional amendment also would perpetuate the inequities faced by same-sex couples who are denied the same privileges and protections accorded heterosexual couples, including property and inheritance rights, survivor pension benefits and even
the ability to make hospital visits to or funeral arrangements for a loved one.

The federal government does have a role to play in the issue, but it is not to sanctify particular forms of marriage. Nor is it to deny basic constitutional protections. Rather, the government has an obligation to enforce the nation's promise of equality before the law for all.

...Defenders of a constitutional ban against gay marriages say it is the only way to block the courts from eventually legalizing same-sex marriage against the wishes of the majority of the U.S. public. Yet such a ban would override the rights of state legislatures and
courts to handle the issue their own way. And it would create an inferior legal status for a class of Americans for the first time since the end of slavery.
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Matt Daniels replies: President Bush spoke for the overwhelming majority of the American people when he said in his State of the Union address that we must protect our marriage laws from being destroyed in court.

Marriage is the most multicultural social institution in the world. It transcends every racial, cultural and religious boundary. ...

Americans believe that gays and lesbians have a right to live as they choose, but they don't have a right to redefine marriage for our entire society. This is because Americans want our laws to send a positive message to children about marriage and family. ...

Few observers now believe that the definition of marriage in America will be left to the states. Instead, activist groups intend to use the courts to force a uniform definition of marriage upon every state. There is little doubt that marriage in America soon will be defined in constitutional terms. The only question is: Will the Constitution be distorted by unelected judges to destroy the common-sense definition of marriage, or will it be amended by the American people to protect
marriage for our children and grandchildren?
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posted by Eve at 5:20 PM | link 0 comments

DOMANIA: ARIZONA, from 365Gay.com

A bid to amend Arizona's constitution to deny any
rights to same-sex couples is dead in the water the head of a powerful legislative committee has declared.
Sen. Mark Anderson (R-Mesa), who chairs the Senate Family Services Committee, has refused to hold hearings on the bill that would have defined marriage as a union between a man and woman and prohibit state courts from interpreting the constitution to require that any unmarried couples be granted "the privileges and legal incidents of marital status."

The state already has legislation on the books barring same-sex marriage, "so I don't see that this is going to necessarily bring any great benefit," Anderson said.
If the bill, authored by fellow Republican Sen. Jack Harper (R-Surprise), had passed the legislature it would have been included on the November ballot.

But, both Anderson and Harper say they will join forces to push for a legislative resolution asking Congress to adopt a federal constitutional amendment.

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posted by Eve at 5:12 PM | link 0 comments

TEXT OF OHIO DOMA AS PASSED BY THE STATE SENATE: Joshua Baker of IMAPP

Below is the actual text of the Ohio DOMA as passed by the Senate. There are some slight differences between the House and Senate versions needing to be worked out in committee. As far as I can tell, however, none of the differences involve any of the provisions below. The omitted text changes language regarding marriage by a "child" to marriage by a "minor," and clarifies dates with respect to the validity of common law marriages entered into before Ohio law prohibited such marriages.

It's being referred to as a "super-DOMA" because of the language discussing the benefits of marriage. In reality, the benefits language may be more symbolic than anything else. It seems this language would prevent administrative agencies of the State from offering DP benefits absent specific statutory authority. On the other hand, such action would likely require statutory authorization anyway, and this statute wouldn't prevent a subsequent benefits statute from being adopted, regardless of what the statute might say about such acts being void ab initio. I'm not entirely clear as to how this bill will impact state universities and local subdivisions of the state (cities/counties), but believe that the testimony indicated that local government would not be affected by the measure.

JKB

**************

Ohio H.B. 272

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3101.01 and 3105.12 of the Revised Code be amended to read as follows:
Sec. 3101.01. (A) Male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage. A marriage may only be entered into by one man and one woman. . . .

* * *
(C)(1) Any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state.
(2) Any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.
(3) The recognition or extension by the state of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state. Any public act, record, or judicial proceeding of this state, as defined in section 9.82 of the Revised Code, that extends the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes is void ab initio. Nothing in division (C)(3) of this section shall be construed to do either of the following:
(a) Prohibit the extension of specific benefits otherwise enjoyed by all persons, married or unmarried, to nonmarital relationships between persons of the same sex or different sexes, including the extension of benefits conferred by any statute that is not expressly limited to married persons, which includes but is not limited to benefits available under Chapter 4117. of the Revised Code;
(b) Affect the validity of private agreements that are otherwise valid under the laws of this state.
(4) Any public act, record, or judicial proceeding of any other state, country, or other jurisdiction outside this state that extends the specific benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.
* * *
Section 3. In enacting new division (C) of section 3101.01 of the Revised Code in this act, all the following apply:
(A) The General Assembly declares and reaffirms the state of Ohio's historical commitment to the institution of marriage as a union between a man and a woman as husband and wife.
(B) The General Assembly declares its intent to define marriage and clarify that relationships that are intended as substitutes for marriage, including but not limited to "civil unions" as provided for in Vt. Stat. Ann. tit. 15, §1202 (2003), will not be recognized in this state. It is not the intent of the General Assembly to prohibit the extension of specific benefits otherwise enjoyed by all persons, married or unmarried, to relationships between persons of the same sex or different sexes.
(C) The General Assembly declares its intent not to make substantive changes in the law of this state that is in effect on the day prior to the effective date of this act with respect to the validity of marriages heretofore occurring within this state.
posted by Eve at 5:01 PM | link 0 comments

Posting may be sporadic Tuesday as I jet around to Notre Dame (where I'm speaking! come see!) and then to sunny New Haven. Lots of backlogged email to post once I arrive in CT though, so Wednesday should be a big day on the site. Do stop in.
-Eve
posted by Eve at 3:40 AM | link 0 comments

GENDER BENDING MARRIAGE RIGHTS: From the Washington Blade

...MY PARTNER AND I are legally married, and we are both women. We married back in a time, nearly 12 years ago, when we still looked like a nice heterosexual couple.

Unfortunately, things get sticky now that we are a legal same-sex couple, existing on the fringes of matrimony during the great marriage war of ’04.

When we tried to get insurance coverage for me on her company benefits, we faced a merry-go-round. You see, for spousal coverage, they require a man and a woman. The company does provide coverage for domestic partners, which is great--except for us to take advantage, we had to file DP paperwork that we cannot legally fill out. There is no third option.

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posted by Eve at 3:37 AM | link 0 comments

HETEROSEXUAL PARTNER RIGHTS RAISE QUESTIONS: From the Yale Daily News

[Eve: Yeah, I'm still obsessed with alma mater. Humor me.]

...Practical effects aside, however, the bigger issue is that of civil rights. By extending homosexual domestic partners the same rights as married couples, the University is levelling an unequal playing field. It attempts to equalize opportunity in an unequal society. And yet, the University, by its highly laudable decision to offer privileges to homosexual domestic partners, makes itself vulnerable to attacks of civil rights violations from the other side, from students who argue that failing to recognize their long-term heterosexual relationships devalues them -- the same way not allowing homosexual couples to marry can devalue those relationships.

Indeed, the reality in today's society is that many couples are choosing to forgo the traditional ceremonies and rites of marriage. There are long-term relationships that may mean more than a marriage certificate. And yet, there needs to be some criteria for defining relationships. Perhaps there is a common ground amid all these contradictions. The University could, for example, offer reduced-rate gym memberships to significant others of graduate and professional students. Whatever the decision, the University must be aware of the fine line that it walks when trying to be fair to all its students.

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posted by Eve at 3:35 AM | link 0 comments

THE END OF MARRIAGE IN SCANDINAVIA: Stanley Kurtz in the Weekly Standard

MARRIAGE IS SLOWLY DYING IN SCANDINAVIA. A majority of children in Sweden and Norway are born out of wedlock. Sixty percent of first-born children in Denmark have unmarried parents. Not coincidentally, these countries have had something close to full gay marriage for a decade or more. ...Will same-sex marriage undermine the institution of marriage? It already has.

...This is not how the situation has been portrayed by prominent gay marriage advocates journalist Andrew Sullivan and Yale law professor William Eskridge Jr. Sullivan and Eskridge have made much of an unpublished study of Danish same-sex registered partnerships by Darren Spedale, an independent researcher with an undergraduate degree who visited Denmark in 1996 on a Fulbright scholarship. In 1989, Denmark had legalized de facto gay marriage (Norway followed in 1993 and Sweden in 1994). Drawing on Spedale, Sullivan and Eskridge cite evidence that since then, marriage has strengthened. Spedale reported that in the six years following the establishment of registered partnerships in Denmark (1990-1996), heterosexual marriage rates climbed by 10 percent, while heterosexual divorce rates declined by 12 percent. Writing in the McGeorge Law Review, Eskridge claimed that Spedale's study had exposed the "hysteria and irresponsibility" of those who predicted gay marriage would undermine marriage. Andrew Sullivan's Spedale-inspired piece was subtitled, "The case against same-sex marriage crumbles."

Yet the half-page statistical analysis of heterosexual marriage in Darren Spedale's unpublished paper doesn't begin to get at the truth about the decline of marriage in Scandinavia during the nineties. Scandinavian marriage is now so weak that statistics on marriage and divorce no longer mean what they used to.

Take divorce. ...

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posted by Eve at 3:33 AM | link 0 comments

STATE OF GAY UNIONS: Washington Post editorial

...Even in an election year, it shouldn't be asking too much to expect the president to firmly reject a step as radical as rewriting the Constitution to stop states from adopting laws that recognize gay relationships.

Mr. Bush's pandering is particularly upsetting because the reality in the states is not as he portrays it: a picture of liberal judges itching to overturn centuries of settled understanding of the meaning of marriage. So far, anyway, in exactly one state -- Massachusetts -- have judges ruled that gays and lesbians have a right to marry under state law. ...

Even in Massachusetts, the public is hardly powerless, since it ultimately has the power to amend the state constitution and overturn the high court's decision. Realistically, what Mr. Bush calls the "sanctity of marriage" -- that is, heterosexual marriage's monopoly on state recognition -- is only threatened to the extent that democratic polities in each state consent to expand their vision of it.

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posted by Eve at 3:31 AM | link 0 comments

SSM ROUNDUP: From the Associated Press

Despite laws on the books already barring gay marriage, legislators in at least nine states are pushing for new, more sweeping measures in hopes of preventing any ripple effect from laws and court rulings elsewhere.

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posted by Eve at 3:29 AM | link 0 comments