WHY NOT CIVIL UNIONS? Washington Post editorial

...We support gay marriage. It is, in our view, wrong to deny to people in loving, lifelong relationships the benefits and rights that normally attach to being married. At the same time, we are skeptical that American society will come to formally recognize gay relationships as a result of judicial fiats, and we felt that the 4 to 3 majority on the Massachusetts court had stretched to find a right to gay marriage in that commonwealth's 224-year-old constitution.

Now the same majority has stretched still further, finding that the state constitution not only grants to same-sex couples a substantive right to marry but also dictates the nomenclature of the unions. When moral certainty bleeds into judicial arrogance in this fashion, it deprives the legislature of any ability to balance the interests of the different constituencies that care passionately about the question. Given the moral and religious anxiety many people feel on the subject and the absence of clear constitutional mandates for gay marriage, judges ought to be showing more respect for elected officials trying to make this work through a political process.
The judges' action has increased the likelihood of a state constitutional amendment that could ban gay unions under any name. Politicians at the federal level now more than ever will trip over one another to swear allegiance to traditional marriage and push a federal constitutional amendment to ban gay unions in all states. The case for this noxious proposal rests on the claim that judges are forcing gay marriage down people's throats in an anti-democratic fashion. In refusing to allow the people of Massachusetts to choose civil unions as an alternative, the court seems bent on playing to this caricature.

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DOMANIA: MASS. DECISION LEADS MD LEGISLATORS TO INTRODUCE DOMA: From the Washington Post

Maryland could be forced to recognize same-sex marriages performed in other states unless the General Assembly steps in this year, a key state lawmaker said yesterday, setting up a battle over gay rights that
Democratic leaders said they were hoping to avoid.

With the Massachusetts Supreme Court clearing the way for same-sex marriages in that state as soon as May 17, there is growing concern among some lawmakers that Maryland could be vulnerable to court challenges if a married gay couple moves to the state expecting similar rights. ...

Since 1973, Maryland law has defined marriage as being between a man and woman. But Maryland is one of 13 states that has yet to pass a "defense of marriage bill" designed to explicitly deny recognition to gay couples' marriages or civil unions performed in other jurisdictions. Vallario said he expects to schedule a hearing as soon as possible on
legislation that would amend the state law to make it clear that gay couples married in Massachusetts or elsewhere will not be entitled to marital benefits in Maryland. ...

The two openly gay delegates in the General Assembly -- Maggie L. McIntosh (D-Baltimore) and Richard S. Madaleno Jr. (D-Montgomery) -- said Burns's legislation is not necessary because gay marriage is already prohibited in Maryland.

"Have you ever seen the movie 'Animal House'?" Madaleno asked. "I feel like these proposals are akin to double secret probation. It is already against the law, but we feel a need to make it double against the law."

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posted by Eve at 9:40 PM | link 0 comments

DOMANIA: MASS. DECISION LEADS N.H. LEGISLATORS TO INTRODUCE DOMA: From WMUR

The issue of gay marriage was not on the docket for New Hampshire this year until the Massachusetts Supreme Judicial Court
cleared the way for legalized gay marriage starting this May.

The decision triggered bills that would block gay marriage in the Granite State. Sen. Joe Kenney, R-Union, is co-sponsoring a bill to legally define marriage in a traditional sense.
"The bill defines marriage as a union between a man and a woman," Kenney said. The bill also includes language refusing to recognize gay marriages from other states. The federal Defense of Marriage Act already gives states the ability to refuse to recognize gay marriages made in other states, although no state currently allows gay marriage. ...

It's not clear whether the bill will pass. Many senators said they want to study the Massachusetts ruling and its implications. Some believe society isn't ready to accept gay marriage but is ready to support civil unions, which afford certain specific legal rights. ...

"I think we need to take a look at some measures -- the right to visit, inheritance," said Sen. Clifton Below, D-Lebanon. "We need to address those issues in New Hampshire."

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posted by Eve at 9:37 PM | link 0 comments

MARRIAGE CLERKS GETTING PRE-WEDDING JITTERS: From the Boston Herald

While lawmakers scratch their heads after the Supreme Judicial Court's opinion shooting down civil unions as a possible resolution to the gay marriage debate, city and town clerks are patiently waiting for someone to tell them what to do after May 17.

"We know nothing,'' said Barnstable Town Clerk Linda Hutchenrider, president of the Massachusetts Town Clerks Association. "We're in a holding pattern. We just have to wait and see.' ...

...[Massachusetts Department of Public Health] Spokeswoman Roseanne Pawelec declined to say whether town clerks should issue marriage
licenses to same-sex couples after the deadline, citing the possibility of unspecified political "twists and turns.''

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posted by Eve at 9:35 PM | link 0 comments

SSM BATTLE HEATING UP: Washington Post

...The public reaction has been mixed. Talk-radio lines have been jammed with those threatening mayhem over the court ruling. And half the state's 6 million residents are at least nominal Catholics.

But polls taken in Massachusetts before the court's latest ruling consistently found residents divided, with a slim majority favoring gay marriage. The same polls found that only 5 percent of voters say that gay marriage is the most important issue for them. ...

It is not yet clear what effect the Massachusetts ruling -- and the ensuing legislative battles -- will have on national politics. ...Majority Leader Bill Frist (R-Tenn.)
said it appears "increasingly likely" that Congress will need to pass a marriage amendment.

"We must protect, preserve and strengthen the institution of marriage against activist judges," Frist told the Senate. "If that means we must amend the Constitution, as it seems increasingly likely, then we will do just that."
Minority Leader Thomas A. Daschle (D-S.D.) said he is "very much opposed" to the Massachusetts decision but sees no need for a constitutional amendment.

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posted by Eve at 6:06 PM | link 0 comments

MASS. MANEUVERS: From the Boston Globe

...One option under consideration by lawmakers yesterday was to ask the SJC for a delay of its May deadline. Another possibility would be to pass a law describing the rational basis for banning gay marriage, and then hope the law would be challenged and the court would determine that gay marriage is unconstitutional. ...

Representative Eugene L. O'Flaherty, a Finneran ally who is House chairman of the Joint Judiciary Committee, has said he hopes to produce a bill that would insert into law a rationale for keeping marriage a heterosexual institution, in a bid to demonstrate to the SJC why excluding same-sex couples is warranted. The strategy has been outlined by Harvard
law scholar Mary Ann Glendon, who has also been consulted by Governor Mitt Romney.
But legal specialists say the effort to block implementation of the ruling is futile. Rosemary Salomone, a constitutional law scholar at St.
John's University, said the Legislature has two options: "Change the constitution or eat crow." ...

Several legal scholars said they could not envision a scenario that would enable Finneran and other gay marriage opponents to block the issuance of marriage licenses to same-sex couples on May 17.

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

A CITIZEN'S GUIDE TO PROTECTING MARRIAGE: MA Gov. Mitt Romney in the Wall Street Journal

* Act now to protect marriage in your state. Thirty-seven states--38 with recent actions by Ohio--have a Defense of Marriage Act. Twelve
states, including Massachusetts, do not. I urge my fellow governors and all state legislators to review and, if necessary, strengthen the laws
concerning marriage. ...Explore, as well, amendments to the state constitution. In Massachusetts, gay rights advocates in years past successfully thwarted attempts to call a vote on a proposed constitutional amendment banning gay marriage. This cannot happen again. ...

* Beware of activist judges. ...With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." ...

* Act at the federal level. ...It would be disruptive and confusing to have a patchwork of inconsistent marriage laws between states. Amending the Constitution may be the best and most reliable way to prevent such confusion and preserve the institution of marriage.

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WA APPEALS COURT UPHOLDS "MARRIAGELIKE DISTRIBUTION OF PROPERTY: From the Associated Press

A ruling that same-sex couples are subject to the same principles as married couples in disputes over joint assets when they separate has been upheld by the state Court of Appeals.

Legal marriage rights are irrelevant in the case arising from the breakup of a 10-year relationship between Julia Robertson and Linda Gormley, a three-judge panel of the court's Division III in Spokane ruled Tuesday.
"Whether same-sex couples can legally marry is for the Legislature to decide," Judge Kenneth H. Kato wrote, "but the rule that courts must 'examine the (meretricious) relationship and the property accumulations and make a just and equitable disposition of the property' is a judicial, not a legislative, extension of the rights and protections of marriage to an intimate, unmarried couple."
Concurring in the decision was Judge John A. Schultheis.

The third member of the panel, Judge Stephen M. Brown, concurred in the outcome but asserted that the case should have been considered "a property dispute filed as a civil suit ... not a domestic relations case." The majority ruling, Brown wrote, strayed "into policy making best left to the Legislature."
Lawyers on both sides said it was the first time a Washington state appellate court had ruled directly on whether property division rules that cover divorces also apply in the breakup of same-sex couples.

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posted by Eve at 5:53 PM | link 0 comments

SSM STUFF AT MARRIAGEMOVEMENT

As always, a must-read. Go there! Some samples:

Court's civility and collegiality failing under pressure?

Matt Taylor writes in: "...and so on, and so on, as if [the MA court was saying], 'those poor homosexuals, if only they were allowed to get married, they could aspire to be as good as we are.' How patronizing! Since when are unmarried people second-class citizens? I rather like the idea of a new social institution, made expressly and exclusively for gays, i.e. civil union. For that matter, why does it have to be legally identical to marriage? Same-sex couples have different dynamics and different legal needs than married couples; heck, why do we even need to treat lesbian couples the same as gay men?..."
posted by Eve at 5:23 PM | link 0 comments

I CAN'T BELIEVE I HAVEN'T POSTED THE TEXT OF THE MASS. ADVISORY OPINION YET.

Sorry. Maybe air travel fried my brain?

Here!
posted by Eve at 5:13 PM | link 0 comments

DEATHBLOW TO MARRIAGE: Stanley Kurtz

[Includes bonus reply to Andrew Sullivan.]

...Yet, out of understandable compassion for the sorrows and difficulties of gays, many Americans want to offer marriage as a kind of consolation or remedy for the challenges inherent in the gay situation. The increased social tolerance for gays in America is largely a good thing, as far as I'm concerned. But using marriage to accomplish a purpose for which it was not intended--and which it cannot fulfill--will not fundamentally alter the situation of gays. It will, however, spell the end of marriage, and of the protection marriage offers to vulnerable children who cannot vote or articulate their interests. ...

In short, current data on same-sex registered partnerships in Scandinavia suggest that the effect of marriage on gay monogamy will be minimal. Exceedingly few couples marry. Those few who do marry are significantly older. And in Sweden at least, same-sex couples divorce at a significantly higher rate. ...

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

...On one simple point: Kurtz now argues that I'm having it both ways, since I once called registered partnerships in Scandinavia "de facto marriage" and now claim that there is a small distinction--in what they are called, adoption rights, and how they would be perceived in the U.S. We're into very fine distinctions here, as I have said before. But my previous piece was in part designed to argue that, despite predictions that gays cannot hack marriage, the evidence from Scandinavia was that same-sex partnerships had a far lower divorce rate than heterosexual marriages. That strikes me as an interesting fact--and it stands on its own. ...In fact, if such relationships last longer than straight ones, even while being consigned to second-class status, why wouldn't they be even stronger if included within marriage? So my point is strengthened, not weakened. As to Stanley's further arguments, they still amount to correlations, not causes. ...So let's do the same thing in America. Take two states with very different cultural attitudes toward gay equality, Massachusetts and Texas. In anti-gay Texas, the divorce rate is 4.1 per thousand people; and the percent of people unmarried is 32.4 percent. In pro-gay Massachusetts, the divorce rate is 2.4 per thousand and the percent unmarried is 26.8 percent. By Kurtz's Norwegian logic, if you want to save marriage, adopt Massachusetts values, not Texan ones. I think it's more complicated than that.

...According to the Census, 52.1 percent of married couples are in households with no children present. Now many of these may be because the kids have grown up. Many are also because the couple has decided not to have children; or are re-married with no kids; or are infertile; or any other range of possibilities. ...If coupling isn't the de facto meaning of that relationship, what else is? That's the living, breathing reality of civil marriage in America. Given that reality, how can civil marriage be denied gay couples?

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TRAVAGLINI PROMISES MASS. VOTE ON MARRIAGE AS ROMNEY MEETS WITH PLAINTIFFS: Excerpted from State House News, which apparently requires registration to read

Senate President Robert Travaglini said
Friday he won't block the Legislature from voting on a constitutional amendment banning gay marriage.

The announcement is significant because the last time the marriage amendment surfaced, in 2002, then-Senate President Thomas Birmingham refused to allow the measure to come to a vote by orchestrating a vote to abruptly adjourn the Constitutional Convention, a joint meeting of the House and Senate. The tactic pleased gay rights advocates but angered supporters of traditional marriage.

The announcement by Travaglini that "there will be a vote on the marriage issue" came on the same day Gov. Mitt Romney met face-to-face in his office with several of the gay and lesbian couples who first brought the marriage
suit to the state's high court. Romney, a staunch opponent of gay marriage, said after the 20-minute meeting in his office that he would continue to push for a constitutional
ban on same-sex marriages. The plaintiffs left Romney's office shaken, telling reporters that Romney was trying to "write discrimination" into the founding document.
posted by Eve at 4:54 PM | link 0 comments

CIVIL UNIONS: Andrew Sullivan and Hadley Arkes converge

Andrew: "...The Justices in the majority mercilessly home in on the central meaning behind so-called 'civil unions'--the only defense of them is that they are a device to maintain exclusion, especially when they are substantively identical to civil marriage. In that sense--same thing, different department--they're a text-book case of 'separate but equal.' If you're going to give gay couples the same rights as straight couples, why are you calling it something different? If both can drink the same water, why a different water fountain?" more

Hadley: "But the judges also wrought better than even they knew, for they also delivered themselves here of the most searing criticism that has yet been made of the whole scheme for contriving 'civil unions' as a surrogate for marriage. The argument might be condensed in this way: If the legislature is willing to grant every legal benefit and attribute of marriage to a couple, but simply holds back the name of 'marriage' for couples of the same sex, the implication should be clear: There is something in that class of persons not exactly worthy of the name of marriage. Consider how the same legislation would have appeared if the substance of marriage were given to couples, but only 'civil unions' given to dwarves. Or people with disabilities. Or Jews and blacks. In other words, it is precisely the scheme of creating the parallel substance of marriage, and withholding the title, that picks out classes of people in a demeaning way. And the truth that comes crashing through in this clumsy opinion is this: that the scheme of 'civil unions' is simply geared to keep generating invidious distinctions, in the way that the traditional laws on marriage do not." more
posted by Eve at 4:50 PM | link 0 comments

SSM THROUGH COURTS OR THROUGH LEGISLATURES? Ramesh Ponnuru and Andrew Sullivan

Ramesh: "Everyone knows he's for gay marriage. How should we get there? Sullivan has said that he would prefer for the decision to be made by legislatures, not courts. He regularly says that it should be made state by state, not nationally. So, in short, the ideal decisionmakers would be state legislatures and the least ideal one would be the federal Supreme Court. What I'm wondering is whether he is actually against a Supreme Court resolution of the issue--and if so, on what grounds.

"Sullivan writes today: 'Courts are supposed to interpret the Constitution. If the Constitution guarantees equal rights for all, and marriage is one of the most basic civil rights there is, and gay couples can and do fulfill every requirement that straight couples can, what leeway does any Court have? I'm constantly amazed by these claims of judicial "tyranny." Was Brown v Board of Education tyranny? It's exactly the same principle as operates here: separate but equal won't do.'

"If Sullivan's argument is correct, what possible reason could there be for the Supreme Court not to rule in favor of gay marriage? What reason could he have for not wanting it to?"

Andrew replies: "...I do believe in the process of debate, winning over the public, and doing this legislatively if at all possible--because it makes the reform more stable. ...I don't believe courts should never do anything but rubber-stamp majority decisions. I think the argument for equal marriage rights is so constitutionally strong it will take a federal constitutional amendment to deny gays their rights. I suspect the religious right agrees." more
posted by Eve at 4:42 PM | link 0 comments

A RULING WITH RESONANCE: Washington Post on political fallout from MA court

By refusing to accept a Vermont-style "civil union" compromise in the fight over same-sex marriage, the Massachusetts Supreme Judicial Court has virtually guaranteed that the issue will be a wedge in this year's political campaigns.

Washington political veterans generally believe this could be a plus for President Bush, whose homespun philosophy that "marriage is between a man and a woman" manages to please his conservative base voters even as it reflects the opinion of a majority of Americans. ...

Just how tricky the issue may be can be seen in the nuanced rumba Bush and his leading Democratic challengers have performed around the explosive subject for the past year. Bush has denounced same-sex marriage while resisting demands from some conservatives that he push aggressively for a constitutional ban. ...

His challengers have, in most cases, extolled equal protection as a principle while stopping short of actual marriage rights.

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posted by Eve at 4:36 PM | link 0 comments

DEMS' RESPONSES TO MA DECISION: National Review guys

Ramesh Ponnuru asks: "Yesterday in this space, you [= Jonah Goldberg] criticized Kerry for being against gay marriage but also against doing anything about it. But his position--against gay marriage and also against the Federal Marriage Amendment--is yours, too. What would you have politicians do to prevent the judicial imposition of gay marriage? ...Have a constitutional amendment that allowed civil unions and not gay marriage? Or what?"

Goldberg replies: "...Dean and Kerry both pay lipservice to being against gay marriage but they are clearly delighted that the courts are running with this issue and they have nary a word of criticism for the activist judges responsible. If they had more integrity on the issue they would at least criticize the judges who are trying to do by judicial fiat what they oppose as a matter of law and policy. ...

"As for me, you know I've wrestled with this. Intellectually, I don't have a problem with saying that judges who make up the law should be impeached. If they're elected, they should be recalled or thrown out of office. But I know that on a practical level that's not all that helpful. Neither is launching a public campaign to solve this problem through the state legislatures. Though certainly Kerry & Co. could say some things on that front too. My public policy solution, 'civil unions si, marriage no' is only a political solution if politicians show some leadership on the issue -- which means first and foremost taking a stance against gay marriage if that's actually your position. My objection to the FMA was never based upon the substance of the policy it represents (depending on which FMA we're talking about of course), but on my reluctance to make this a constitutional issue rather than a state issue...."
posted by Eve at 4:32 PM | link 0 comments

MASS. MARRIAGE AND FEDERALISM: National Review Online blog

Mark R. Levin writes: "The Full Faith and Credit Clause makes the Massachusetts gay marriage decision a federal constitutional issue -- or will at some point when some federal judge rules that some other state must recognize gay marriages performed in Massachusetts. This is not a federalism issue. The issue is whether one state's supreme court can impose a policy on the rest of the states. The amendment process is perfectly legitimate, and extremely difficult, as it should be (of course, the courts amend the Constitution everyday, but that's a subject for another time). This is exactly the kind of conflict -- which upsets the balance of power between the states -- that merits federal constitutional consideration. An amendment might define marriage, but it might also limit the reach of the Full Faith and Credit Clause. But it is a perfectly legitimate use of the Constitution's amendment mechanism."

Jonathan H. Adler replies here.
posted by Eve at 4:26 PM | link 0 comments

FMA AND BUSH: Ramesh Ponnuru

So it looks pretty clear that President Bush is going to endorse the Federal Marriage Amendment. When, nobody is quite sure. Which version, we have a better sense of. It will be the two-sentence amendment that Rep. Marilyn Musgrave has introduced and the Alliance for Marriage has championed. The amendment will ban gay marriage, whether instituted by courts or legislatures, and will ban the judicial imposition of civil unions but allow legislatures to institute them. Many conservative groups, notably the Home School Legal Defense Fund and Concerned Women for America, seem to have switched back to the position that civil unions should not be even an option for legislatures. They think their proposed amendment text would ban civil unions; I have my doubts. I'm more certain that they are not going to get their way.

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posted by Eve at 4:12 PM | link 0 comments

GAY WED FURY: SPEAKER FEARS "CHAOS": From the Boston Herald

With gay marriages suddenly a looming reality, House Speaker Thomas M. Finneran says lawmakers are seeking ways to delay implementation of the state's high court ruling until after the Legislature and voters have had their say.

Finneran warned of impending "chaos'' if same-sex couples start getting married in May, as the Supreme Judicial Court has ordered, only to have voters add a gay marriage ban to the state constitution at the November 2006 ballot box. "You could have a period of time . . . of complete legal chaos and confusion,'' Finneran said. "There are some thoughts being given as to what we might do and how we might prevent some of the legal chaos that would inevitably result.''

The speaker, an avowed gay marriage foe, pointed to several possible delay tactics--including asking the Supreme Judicial Court to stay its marriage decision beyond the original 180 days--until after the proposed constitutional amendment works through the process.

House lawmakers are also forging ahead with a bill that would create civil unions but ban gay marriage, citing reasons like procreation and family stability--seizing on the SJC's finding of a lack of a "rational basis'' for excluding gays from marriage. ...

The amendment seemed to be gathering support yesterday, after sponsor Rep. Philip Travis dropped wording that some lawmakers feared precluded civil unions--an option they want to preserve.

Travis claimed to already have more than the 101 votes needed to pass the amendment--saying the court's insistence this week on full gay marriage has pushed lawmakers over the edge.

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MASS. HIGH COURT GRANTS MARRIAGE BENEFITS TO SINGLES: From Scrappleface

Starting May 18, single people in Massachusetts can be granted a marriage license allowing them to enjoy all of the legal and social benefits that come with the term "married," even though they remain alone.

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posted by Eve at 11:55 AM | link 0 comments

POLITICS OF SSM--WHAT WILL DEMS DO? From National Review Online's blog

Each of the major Democratic candidates say they are against gay marriage. They are all, I believe, against a Federal Marriage Amendment. Fine, so am I. But what exactly will Democrats do to oppose gay marriage? As I've noted before -- when Dean was the frontrunner -- none of these guys seem willing to do anything to back up their positions. They want the courts to simply take the issue away from them while they insist they are firm on the issue. Dean was the most cynical and dishonest on the subject. But I can't see how Kerry's much better. There might still be room for Bush to get on the right side of the issue politically if he can force Democrats to answer the question "Would you do anything to stop gay marriage?"

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posted by Eve at 11:15 AM | link 0 comments

NATIONAL BLACK JUSTICE COALITION AMASSES SUPPORT FOR SSM: From the Sacramento Observer

The National Black Justice Coalition has announced the support of civil rights leader Julian Bond. Bond joins with Coretta Scott King, Carol Moseley Braun, Al Sharpton, John Lewis, Henry Louis Gates and other African American leaders who publicly support marriage equality. Julian Bond, chairman of the board of directors of the NAACP, has announced his personal support of legitimizing gay marriage. "I see this as a civil rights issue," said Julian Bond. "That means I support gay civil marriage." Bond, the chairman of the board of directors of the National Association for the Advancement of Colored People, was speaking in his personal capacity and not for the NAACP. "We are very pleased that Julian Bond has spoken out affirmatively on this issue," said Keith Boykin, president of the board of the National Black Justice Coalition. "His statement helps to clarify two important points. First, marriage is a basic human right, and second, outlawing discrimination in civil marriage does not change the rules for religious marriage."

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Via Marriage Movement, where David Blankenhorn comments, "Ordinary people don't wander around saying 'civil marriage.' They just say 'marriage.' Whether we as a society do or do not adopt SSM, I suspect that this situation will not change substantially -- whatever we do, it's ultimately going to be done to 'marriage,' in both its civic and religious dimensions, not simply to some largely made-up, sort-of thing called "civil marriage.'" more
posted by Eve at 11:14 AM | link 0 comments

SOCIAL HISTORY AND SSM: Justin Katz replies to George McAllister

A few points on your question about the "social history" of marriage. For one thing, you might consider reading this from Peter Wood.

In short, I don't think the weight of the evidence supports the suggestion that you're making. Often specifics are blown into generalities and exceptions are blown into rules to support the notion that a society's family structure was radically different from ours. Moreover, there are two overriding considerations. First, it is quite a different thing to lay "the groundwork for Western civilization," as you say, than to exist within it (was the sexual behavior of ancient Greece indicative of the old barbarity or the coming civilization?). Second, restricting ourselves to a sociological context, one must see the various family forms within their times to make any assumptions about what was essential to them and what they required.

Andrew Sullivan's "reader" on same-sex marriage, for example, includes accounts of the practice in China. But considering the essence of the relationships, on the female side, they amounted more to sisterhoods that sometimes paired off, and on the male side, they seem most frequently to have been the equivalent of temporary boy prostitution. It mustn't be forgotten that these weren't, apparently, common family forms, and it is more important not to forget what *were* common family forms. The standard marriage at that time, as I understand, was such that marrying a male slave (one account calls the male groom a "buyer") wasn't but so different from marrying a wife; moreover, that being the case, one can understand the appeal of sisterhoods.

This all goes to say that, to the extent such innovations don't hurt the society, it is required that other attributes compensate. American Indian tribes also had some form of gay marriage, but they were considered to be a man marrying something that wasn't exactly a man or a woman. In other cases, same-sex arrangements were one of a variety of "marriages" in a man's polygamous family. I don't think today's homosexuals want to be slaves, non-men or non-women, or the black sheep in a harem. In our society, traditional marriage is one of the bricks through which we've built the modern era, giving us some of the very ideals the absence of which was required in such other societies.
posted by Eve at 11:08 AM | link 0 comments

SOCIAL HISTORY AND SSM: Elizabeth Marquardt replies to George McAllister

As someone with an aspiring, "hobby-level" interest in the history of the family, George McAllister should avoid accepting as truth whatever he reads in intro to sociology textbooks.

For a great examination of the incredible bias against the married, intact family found in most mainstream intro to sociology textbooks, see this report.

Sociology professors who write these textbooks too often have an agenda of their own, such as advocating for family diversity and playing down the documented, harmful effects of family fragmentation for children. Thus they recoil at the term "the family." However, these same professors would probably not hesitate to use the word "the" before other primary social institutions, such as "the state." In the latter case, they recognize there are many forms that "the state" may take and saying "the state" is only a convenient way of explaining what exactly one is trying to analyze. To go even further, I would bet these same professors would have no trouble saying that, based on history and current social science, some versions of "the state" support the flourishing of human life better than others, and that as a society we should work to achieve those better models.

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posted by Eve at 11:06 AM | link 0 comments

"TRADITIONAL MARRIAGE"?

I agree with Elizabeth on the problems with this retronym.
posted by Eve at 11:04 AM | link 0 comments

AUSTRALIAN COUPLE SUES FOR RECOGNITION OF THEIR CANADIAN SSM: From The Age

In a legal first, two Melbourne gay men who married in Canada are planning to apply to the Australian courts to have their union recognised at home.

Jason McCheyne and Adrian Tuazon, both Australian citizens, flew to Canada last month and exchanged wedding rings and vows in a civil ceremony at Toronto's city hall.

Mr McCheyne, 33, and Mr Tuazon, 30, are now preparing to mount a court challenge, probably in the Family Court, to have their same-sex
marriage validated in Australia.

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posted by Eve at 10:57 AM | link 0 comments

DOMANIA: INDIANA SENATE PASSES CONSTITUTIONAL AMENDMENT

The Senate backed a constitutional amendment Tuesday that would ban same-sex marriage, along with a proposal that would add convicted murderers to public lists of sexual and violent offenders.

Although the amendment banning same-sex marriage will likely struggle in the Democrat-controlled House, the Republican-dominated Senate approved the resolution 42-7.

Indiana already has a defense of marriage act which defines marriage as a union between man and a woman. A case challenging that law in under review by the Indiana Court of Appeals.

Supporters of the amendment say the General Assembly needs to specifically outlaw same-sex marriage in its constitution to prevent courts from labeling current law as unconstitutional.

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posted by Eve at 10:56 AM | link 0 comments

MORE ON THE IOWA "CIVIL UNION DIVORCE" CASE: From the Des Moines Register

The Iowa Supreme Court will decide whether a group of conservative lawmakers can sue to throw out a Sioux City judge's decree that ended a civil union between a lesbian couple.
The court Tuesday ordered Judge Jeffrey Neary's decree be put on hold and said opponents must show legal standing to have the decree overturned. ...

The legislators contend Neary's decree could open the way for Iowa courts to recognize same-sex civil unions and, eventually, same-sex marriages.

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posted by Eve at 10:54 AM | link 0 comments

DOMANIA: OH DOMA PASSES HOUSE, HEADS TO GOVERNOR: From the New York Times

The Ohio Legislature gave final approval on Tuesday to one of the most sweeping bans on same-sex unions in the country, galvanized by court rulings in Canada and Massachusetts that have declared gay marriage to be legal.
The Ohio measure, which also would bar state agencies from giving benefits to both gay and heterosexual domestic partners, would make Ohio the 38th state to prohibit the recognition of same-sex unions. Gov. Bob Taft, a Republican, planned to sign it in the coming week, his office said.

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posted by Eve at 10:52 AM | link 0 comments

MASS. HIGH COURT RULES THAT ONLY SSM (NOT CIVIL UNIONS) WILL BE ACCEPTABLE TO IT.

The state Supreme Judicial Court Wednesday clarified its ruling on gay marriage, telling the state Senate that civil unions are not an acceptable alternative in Massachusetts.

Responding to state lawmakers, the high court ruled that only full, equal marriage rights for gay couples will satisfy its landmark decision issued last fall.

The White House called the court's latest opinion "deeply troubling," again raising the possibility of a U.S. constitutional amendment that would bar same-sex marriages. At the same time, supporters of gay marriage hailed the ruling.

...Gov. Mitt Romney said the state has heard from the court, but not from the people.

"The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage," Romney said. ...

In its advisory opinion issued Wednesday, the court said no, writing, "For no rational reason the marriage laws of the commonwealth discriminate against a defined class. No amount of tinkering with language will eradicate that stain." ...

But Romney said the issue is too important to leave to a one-vote majority of the SJC.

"This is why it's imperative that we proceed with the legitimate process of amending our state constitution," he said, which would define exactly what legal marriage is in the state.

Rep. Phil Travis, a Rehoboth, Mass., Democrat said that process would begin next week at the state's Constitutional Convention, where the Legislature will consider an amendment that would legally define marriage as the union of one man and one woman.

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posted by Eve at 10:49 AM | link 0 comments

SITE NEWS: I (Eve) will be traveling all day tomorrow and a decent chunk of Wednesday. If you're in the Stanford University area, come see me speak on SSM! (Info here.) There's pretty much no chance I will post anything Tuesday. I will try to post Wednesday, but scheduling and jet lag may prevent that. Anyway, expect the site to come roaring back on Thursday; and there should be a new question then-ish as well.
posted by Eve at 10:33 PM | link 0 comments

SOCIAL HISTORY AND SSM: George McAllister

Here's a question that I haven't seen discussed a lot in "official" sources; forgive me if I take advantage of a
concentration of informed readers to ask it.

I have a hobby-level interest in social history, particularly the history of the family and sexuality. In any even casual reading on the topic, the first thing one notices is that families have varied wildly over time and geography, with sometimes astonishing variations in structure, extramarital relationships, ease of marriage and divorce, incest, and so on. To borrow a phrase found in many intro to sociology textbooks, there is no "the family."

My question is, does this have significant implications for the problem of SSM? To get started: Opponents of SSM frequently cite contemporary research that indicates that our current ideal nuclear family is quite good for both children and adults. Be that as it may, it is also true that other family structures, often radically different, have served quite well in other cultures. The Sumerians invented civilization while allowing a man to sell his wives and children into slavery to pay off debts; ancient Athens laid the groundwork for Western civilization while zestily engaging in extramarital sex (including, by our standards, homosexual pedophilia); China is one of the grandest civilizations on Earth despite a variety of family arrangements in its history. In short, it seems that humans can prosper gloriously under an array of family arrangements and despite changes in those arrangements.

So I'll provide the point, and hope for the counterpoint:
History and anthropology prove that there is no single best family arrangement. Any account of the possible effects of SSM has to deal with the demonstrated fact that as society changes families change with it, and vice versa, usually without grandly evil effects. Opponents of SSM need to demonstrate that SSM is an exception to this rule. Ideas?
posted by Eve at 10:31 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? George McAllister

Obviously the debate exists only when same-sex--which is to say, homosexual--couples exist. No homosexuality, no debate. But the debate hasn't always existed, while same-sex attraction, it seems, has. Which leads to a deeper sense: The debate exists because of the historical facts about homosexuality right now. Because a large number of homosexual
couples are capable of speaking openly about themselves, because they tend to construct their relationships in about the same way that heterosexual couples do, because there are same-sex couples with children--the debate exists because of these and related facts and is therefore about homosexuality.
Finally, the debate exists because people are concerned on a personal level about homosexuality. I would probably be uninvolved in this forum if not for the fact that I am homosexual. The folks at the Family Research Council would probably see it as a minor issue if not for their distinctive religious views. And so on. So yes, it is about homosexuality.

But of course, on a purely logical level it's not. There is no necessary connection between one's position on same-sex genital activity and SSM. The proof that this is true is in the existence of those (a la Stanley Kurtz) whose approval of romantic same-sex relationships exists alongside a disapproval of SSM, and vice versa. So no, it's not about homosexuality.

Where does that leave us? Moving into purely opinion mode, I think a major theme is (forgive the pejorative term) irrationality. For example, I think it is certainly true that in practice there is a strong connection between opinions about homosexuality and opinions about SSM. Polls have consistently shown that conservative Protestants, for example, overwhelmingly disapprove of SSM. With all due respect to conservative Protestants, I doubt that's because they all have a shelf full of books on homosexuality alongside their subscription to the Journal of Social History. More likely, their pastor says that homosexuality is bad, there are those passages in Leviticus, and so it follows that same-sex marriage must be bad too. An analogous point can be made about the great mass of Green Party members who support SSM; most likely they're of the opinion that
homosexuals are just fine, and why would you be opposed to SSM anyway? So, while there is no logical connection between opinions of homosexuality and opinions of SSM, practically there most certainly is. (This explains why a highly successful political strategy for supporters of SSM has been simply exposing heterosexuals to homosexuals.)

Of course, there's the phenomenon of broad(-ish) social tolerance for homosexuality along with lower support for same-sex marriage. This is, though, the exception that proves the rule. I suspect that for most people whose opinion is divided on the two issues, the cause of this divide is again not introspection but knee-jerk thinking: That gay guy at work is funny, but marriage is about a man and a woman, dammit. So, as in everything in politics, we must divide the political elites (read: the people on this board) from the mass of folks (read: the people on the street).
posted by Eve at 10:30 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Mark Barton replies to Eve, part one: alternatives to SSM

[Eve's in bold, Mark in plain text.]

Eve: I admit I'm unsure of what SSM opponents are being asked to provide.

Mark B.: It's simple enough: to the extent that SSM opponents are "liberals" or arguing from a "liberal" perspective (i.e., one that doesn't assume that gay relationships are intrinsically immoral or defective), we're hoping for some display of comprehension of the needs and aspirations of gay and lesbian couples (or at least of those who want to marry), and either some realistic proposal for addressing them, or some pretty good reason why they can't be.

Eve: [...] but, just for a couple examples, some SSM opponents (like Elizabeth Marquardt) support civil unions.

Mark B.: Indeed, Elizabeth Marquardt is quite "liberal" for an anti-SSM campaigner, and she takes the needs and aspirations of gay and lesbian people more seriously than most, for which I'm genuinely appreciative.

Mind you, I still find it hard to regard her as a true "liberal"--she's more "social conservative"-lite. Although she's a tenderhearted soul who can't bring herself to say it outright, she does devalue gay relationships, because they're not her precious "norm," and "civil union" is the ever so tiny badge of shame that she wants to pin on them to
make that clear.

Now as repellent as I find the idea of wearing a pink "civil union" triangle, I'd at least consider it if I thought it was in a good cause. After all, it's not as if I don't sympathize with some of Elizabeth's goals. I agree that one should not lightly depart from the ideal of children being raised by their biological parents. I would not personally, for example, father a child for a lesbian couple unless, at least, it were an open-adoption arrangement.

The trouble is that I don't find Elizabeth any more coherent than other anti-SSM campaigners as to how precisely my wearing a pink triangle is supposed to further such a goal. She says transparently false things
like, "Massachusetts last week redefined marriage in a way that makes you unable to say that children need mothers and fathers." What I take her to mean is, "Massachusetts made it impossible for me to make that point by mindlessly recycling old sermons about 'marriage,'" an attitude for which I have zero sympathy.

Eve: 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.)

Mark B.: By contrast, this, no matter how well-intentioned, is a slap in the face. Mentioning my sister in the same breath as my partner--how breathtakingly gauche! If my sister becomes ill and I'm in a position
to help, I'll try to look after her. But if my partner becomes ill, then I will nurse him--end of story. If I can't manage both, my partner is, hands-down, my first priority. My degree of emotional, legal and financial entanglement with my partner is in a whole different ballpark from that any other person in my life. In particular, it's squarely in the "marriage" ballpark.
posted by Eve at 10:25 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Mark Barton replies to Eve, part two: culture, government, and honor

Eve: 2) Perhaps cultural support of and honor for homosexual relationships are what's being asked for.

Mark B.: Indeed, legal conveniences are only part of it.

Eve: 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.

Mark B.: Obviously a particular "liberal" could decide to award that amount of cultural honor after weighing various considerations, but it makes no sense as a point of departure. Because of the conspicuous analogy with marriage, especially from the participants' point of view, the natural amount of honor to start with is the same as that for marriage. If some good cause would be served by downgrading that, then
fair enough, but parity with best-friendship is already a considerable come-down which would have to be justified.

Eve: 3) Second, I strongly take issue with the belief that marriage exists so the government can bless and praise your romantic relationships.

Mark B.: But historically in the US, this is exactly what civil marriage was for. The social consensus was that no romantic relationship other than marriage (in a religious sense) was acceptable, and government
was given the bookkeeping role. The understanding
was that people would do their best to destroy any romantic relationship not having the government stamp.

The goal of ensuring that children were properly cared for was part of the reason government blessing came to be required. But in the days before reliable contraception, such a heavy-handed scheme had a lot going for it. The only reason we can take more libertarian alternatives seriously now is that times and circumstances have changed.

In the long term, I'd like to get even further away from a blessing model and towards a faciliation model. But this is not the long term. This is a period in history where most of the opposition to SSM is not from "liberals" like Elizabeth or faux-"liberals" like Eve. It's from unabashed "social conservatives" for whom
an even more fundamental reason for civil marriage law was to enforce religious conceptions of sexual purity, of which well-brought up children were only one spinoff. In the traditional picture, gay relationships not being classified as marriage was cheerfully intended as licence for people at large to use social coercion (shaming, shunning and the like) to break them up. And the reason social conservatives are quite so beside
themselves is precisely because they keenly appreciate that, between Lawrence and Goodridge, their implicit licence to act against gay relationships is under direct attack. Eve is kidding herself if she thinks that she can invoke one set of more traditional ideas about marriage without dredging up these monsters as well. And thus paradoxically, she's helping to make being able to get a government "marriage" stamp on my relationship all the more important to me.
posted by Eve at 10:25 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Matt Taylor replies to Eve

Eve writes: "...some SSM opponents (like Elizabeth Marquardt) support civil unions. Others, like me, support expanding and strengthening freedom of contract ... 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."

Matt replies: For me at least, either civil unions or Eve's "freedom of contract" concept would be a sensible and positive policy. It's not vital that a same-sex relationship be called "marriage", or even that it be legally identical to marriage, so long as the law delivers two things 1) a practical vehicle for same-sex couples to manage their affairs jointly, and 2) acknowledgement of the existence and value of same-sex relationships.

Of the two, the second goal (acknowledging same-sex relationships) is likely to be the more controversial. It is reasonable to argue that the government is not well suited to judging personal relationships, but the legal status quo does just that. Today's law bends over backward to ignore homosexual relationships, even where common sense suggests same-sex couples should be recognized (hospital visitation, inheritance, etc.) Even collecting data on same-sex households for the census was criticized by some conservatives for "condoning homosexuality." Same-sex couples needn't be held any higher than other close relations, such as siblings or best friends as Eve suggests; the government just needs to stop pretending we aren't here.
posted by Eve at 10:13 PM | link 0 comments

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

In "The End of Marriage in Scandinavia," I show that gay marriage has helped hasten the decline of marriage. Andrew Sullivan dismisses my argument, claiming I fail to show causality, and draw impermissible inferences about gay marriage from Scandinavian registered partnerships. ...To see why Sullivan is wrong, let's take a look at marriage in Norway. ...

When we look at Nordland and Nord-Troendelag--the Vermont and Massachusetts of Norway--we are peering as far as we can into the future of marriage in a world where gay marriage is almost totally accepted. What we see is a place where marriage itself has almost totally disappeared. ...

...If the mere existence of prior causes of marital decline makes it impossible to isolate new factors, then the offer of state-by-state "experiments" in gay marriage is bogus. No matter how bad things get--and no matter how clearly we show a cultural connection between attitudes toward gay marriage and marital decline--Sullivan will deny that gay marriage makes any contribution to the problem.

Of course, when Sullivan thought he had statistical proof that heterosexual marriage was doing well in post-gay marriage Scandinavia, he was eager to play social scientist. ...

Sullivan is wrong to say that Scandinavian registered partnerships are open to heterosexuals. They're not. ... (I see Sullivan has now corrected his error. But he's avoided acknowledging that his mistake sinks his explanation for the link between gay marriage and the decline of marriage in Scandinavia.) ...

And note that "The End of Marriage in Scandinavia" refutes the "conservative case" for gay marriage on several matters that have nothing to do with the causal question. Scandinavian gays have not taken to monogamous marriage, and they openly reject the "conservative case" for gay marriage. Sullivan says nothing in response to these points.

The mechanism by which gay marriage undermines marriage is easy to grasp. We see it at work in Sullivan's own writings--including his reply to me. Sullivan claims that "coupling--not procreation--is what civil marriage now is." That is false. Just because we can find cases in which infertile couples marry, Sullivan thinks he's proven that marriage has nothing to do with parenthood. But marriage and parenthood are still deeply linked. That is why Scandinavia's practice of unmarried parenthood shocks us. ...

But every time Andrew Sullivan claims that marriage is about coupling, not procreation, he helps weaken the connection between marriage and parenting in America. The gay-marriage debate is eroding the cultural connection between marriage and parenthood. Despite all the changes in marriage since the Sixties, Americans have a long way to go before marriage and parenthood are decoupled to the degree that they are now in Nordland and Nord-Troendelag. There is more than enough scope for a new factor to intervene and heighten that separation. This is exactly what gay marriage has done in Scandinavia--and is doing right now in America, especially through the work of Andrew Sullivan.

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posted by Eve at 10:02 PM | link 0 comments

SSM DEBATE AT TULANE U: From the New Orleans Times-Picayune

...To several conservatives, like Katherine Spaht, a family law expert at Louisiana State University Law Center, and Jeffrey Ventrella of the Alliance Defense Fund, a Christian legal advocacy group, the emergence of same-sex marriage threatens to further undermine traditional marriage, which is already in crisis.

But to liberals on the question, like David Gelfand, a constitutional law expert at Tulane, same-sex marriage is both a fundamental human right and a pragmatic acknowledgment that increasing numbers of gay and lesbian couples are living and often rearing children together. ...

Spaht, who helped draft Louisiana's covenant marriage law, found in the Supreme Court's sodomy ruling "an almost unbridled concept of personal autonomy" that seemed to her to undermine the law's customary view of family life, which expects fidelity and mutual duties from married couples.

Ventrella, another conservative, repeatedly argued that the same judicial respect for personal autonomy that opens marriage to gay men and lesbians now also leaves courts powerless to limit marriage to only two people.

For him and several others, marriage is a human institution that predates the law, that has benefits for society such that society has always regulated it to some extent.

But Gelfand saw the issue more in terms of fundamental human rights that the government cannot reduce without compelling reason, and as an emerging civil right. He compared the emergence of gay rights to the civil-rights movement of the 1960s, saying it will necessarily create a period of social turbulence before it is settled.

Moreover, the courts are only recognizing the reality of changing social structures, he said. Several panelists said most states long ago permitted gay and lesbian couples to adopt. And in vitro fertilization and surrogate motherhood gives same-sex couples another technique for having children. ...

Indeed, marriage is but a human institution and needs to evolve with people's needs, said Isabel Medina, a Loyola Law School professor.

Calling for more debate, she said she is so far unpersuaded that the emergence of same-sex marriage will damage traditional marriage, or that traditional, two-parent marriage particularly benefits children.

More important than that traditional family structure is the availability of good health care, good education and other social goods, she said.

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posted by Eve at 9:53 PM | link 0 comments

SSM BILL INTRODUCED IN VERMONT: From the Rutland Herald

Partners in a civil union would be able to convert their union to a marriage by filling out a simple application under the provisions of a bill introduced in the Vermont House on Friday.

And while the measure has little chance of becoming law, its key sponsor said same-sex partnerships should be afforded the same level of legal recognition as marriage.

"There are many instances of separate but not equal in the past," said Rep. David Zuckerman, a Burlington Progressive who has said Vermont's first-in-the-nation civil unions law doesn't go far enough.

"And while I know this issue is going nowhere in either direction," he said, "I've never been one to settle for partial accomplishment."

In addition to allowing civil union partners the option of marriage, the bill would permit same-sex marriage outright, ending the need for future civil unions.

The bill would also require the state to recognize same-sex marriages and civil unions conducted in other states and countries.

The bill, Zuckerman said, is meant to contrast with a proposed amendment to the Vermont Constitution that was introduced earlier this year in the Senate.

That amendment, sponsored chiefly by Sen. Mark Shepard, R-Bennington, would ban same-sex marriage, affirm the "critical role of the married family as a fundamental building block of a stable society." It would also "help ensure that the democratic process is not overrun by judicial activism."

The amendment--which, like Zuckerman's bill, has little chance of advancing--says defining marriage as an institution between men and women is necessary for children. It says children need to be raised in "a married family with both a mother's and a father's care, reinforcing for men the importance of fulfilling their responsibilities to children and to women and by offering both male and female role models."

Civil unions were mandated by the Vermont Supreme Court in 1999; they were signed into law by former Gov. Howard Dean in 2000. Since the law's passage, more than 5,800 same-sex couples have entered into the agreements.

Vermont's measure was the first in the country to give any marriage benefits to gay and lesbian partnerships. But in the last year a Canadian court ruled that same-sex couples must be allowed to marry. And the Massachusetts Supreme Judicial Court ordered that state's legislature to come up with same-sex marriage provisions within the next couple of months.

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posted by Eve at 9:49 PM | link 0 comments

WISCONSIN DOMA INTRODUCED: From the Wisconsin State Journal

Republican lawmakers are again seeking to prevent gay and lesbian marriages from becoming legal in Wisconsin, pushing for an amendment to the state constitution to recognize only unions between one man and one woman.

The move comes three months after Democratic Gov. Jim Doyle vetoed legislation that would have done the same thing. By seeking to make the provision part of the constitution, legislators can go around the governor if the measure is approved in two successive sessions of the Legislature and in a statewide referendum.

If approved, the amendment could go to voters as early as spring 2005.

A constitutional amendment also carries more weight than state law, which already limits marriage to "a husband and wife."

Supporters say the change is needed to prevent "activist judges" from ruling that the constitution's guarantee of equal rights for all trumps state law and gives gays and lesbians the right to marry. The Massachusetts high court made such a finding late last year.

"With just one or two Doyle appointments to the Wisconsin Supreme Court, the Massachusetts decision will be the Wisconsin decision within just a few years," said state Sen. Scott Fitzgerald, R-Juneau, one of
the amendment's authors.

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posted by Eve at 9:45 PM | link 0 comments