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 Friday, February 20, 2004
GAY MARRIAGE AND AMBIVALENT CONSERVATIVES: Nick Schulz
A curious thing happens when talking to younger conservatives about gay marriage. While many of them think same-sex marriage is in some ways an incoherent notion, I haven't come across any who think that gay marriage will not at some point be permitted. What's more, many of them are not particularly distraught at the prospect. ... To many of them, one argument advanced by the non-partisan writer Jonathan Rauch in his forthcoming book "Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America" is likely to prove attractive. Rauch says that, if an amendment is to be pushed by conservatives, it needn't be the FMA that defines marriage as a union of one man and one woman. In an email exchange, Rauch explains: "I don't think any amendment is necessary or desirable. The Defense of Marriage Act (DOMA) is certainly constitutional, and amending the Constitution unnecessarily is a bad idea. "But I grant that some federal judge might disagree with me and set off a national panic before being clobbered by the U.S. Supreme Court. "So if the problem is the worry that federal judges will impose Massachusetts's gay marriages on the entire country, the way to take care of that would be to constitutionalize DOMA. The sample wording I give in my book is: "'Nothing in this Constitution requires any state or the federal government to recognize anything other than the union of one man and one woman as a marriage.'" more posted by Eve at 4:51 PM | link 0 comments 
ENOUGH ALREADY: Jonah Goldberg on SSM and federalism and not-federalism
...I also suspect that millions of Americans share my attitude toward the subject of gay marriage: Enough already. Whether you're for it or against it, many of us just don't want to hear about it anymore -- like those commercials featuring mothers and daughters walking on the beach having conversations nobody ever wanted to overhear. ... But while I would normally applaud such bipartisan do-nothing-ism as the height of statesmanship, gay marriage seems to be the 10th problem in Coolidge's axiom, because the facts on the ground are changing fast. In San Francisco, Mayor Gavin Newsom decided to issue marriage licenses to gay couples, defying a state law (and presumably his own mayoral oath), passed by referendum in 2000, which defines marriage as the union of a man and a woman. And in Massachusetts, judges have told the legislature that the state constitution requires gay marriage whether the people want it or not. Fortunately, I have another tool in my utility belt for just such occasions: federalism. This is the brilliant system conceived by our founders that guarantees more happiness than any other political system. ... But the events of San Francisco have made things worse. First, Mayor Newsom is giving marriage licenses not only to San Franciscans -- which, again, is illegal -- but out-of-state couples as well. So much for each community minding its own business. ... The trouble with all of this is that a federalism-based compromise only works if you trust that the other side is acting in good faith. If Frank & Co. have no respect for the law of California, why should we expect them to respect the laws anywhere? more posted by Eve at 4:48 PM | link 0 comments
BOOK RECOMMENDATION: Rod Dreher
I have on my desk two books I find indispensable in thinking (and writing) about what the court fight over gay marriage means: the two-volume collection of essays published as "The End of Democracy?" -- published by Spence, and available really cheaply (less than $15 for both volumes) from their website. These are the essays and responses first published in First Things magazine, in which the matter of whether or not the "judicial usurpation of politics" meant that we were approaching a point at which ours had become a "tyrant state" devoid of legitimacy. There are lots of great arguments on both sides from contributors like Robert Bork, Robbie George, Hadley Arkes, Russ Hittinger, Bill Kristol, Gertrude Himmelfarb, Ramesh Ponnuru, the editors of NR, and others. The heart of this debate was Roe v. Wade, but everything said here applies to the gay marriage issue squarely before us now. Very, very timely, these collections. link links to First Things essays online: start here; continue here; use the search function here for more. posted by Eve at 4:46 PM | link 0 comments
POUNDING THE TABLE POSTSCRIPT
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean--neither more nor less." "The question is", said Alice, "whether you can make words mean so many different things." "The question is", said Humpty Dumpty, "which is to be master--that's all." --Through the Looking-Glass posted by Eve at 4:40 PM | link 0 comments
POUNDING THE TABLE: Yale Law Prof. Jack Balkin on San Francisco
[Eve snarks: I'm reminded of that well-known lawyer's maxim: "When the law is against you, argue the facts. When the facts are against you, argue the law. When the law and the facts are against you... it's time for a 'Constitutional moment.'"] How Constitutional Meanings Change Not by courts, but through political action. Courts are often the last to get involved. What is remarkable about Mayor Daley's recent statement that he would have "no problem" with the Cook County clerk issuing same sex marriage licenses is that a number of prominent politicians are now standing up and saying that this is what fairness and equality means. Such statements in the context of larger social movement activism are quite important in reshaping public opinion, and, in turn, reshaping constitutional norms. It's important to understand that politicians can do this for good or for ill, in ways we like and in ways we don't like. The Civil Rights Movement and the Civil Rights Act of 1964 reshaped the meaning of the Equal Protection Clause, but so too did massive resistance in the South, George Wallace standing in the school house door, and Richard Nixon's running against busing and in favor of "law and order" in the 1968 election. The point is not that politicians always do good when they promote constitutional norms through political action. The point is that the meaning of the Constitution is driven and produced by political activism, and later confirmed by judicial decision. People often complain that courts are writing their political beliefs into the Constitution. But if we look at the way the system actually works, its not just the courts, or even primarily the courts. It's all of us. This is the most important lesson about how constitutional change actually occurs. link posted by Eve at 4:39 PM | link 0 comments
ITALY BARS ARTIFICIAL PROCREATION... ESPECIALLY FOR SINGLES AND SAME-SEX COUPLES: The Washington Blade
A law virtually banning the freezing of embryos and the use of sperm and egg donors and surrogate mothers, as well as barring gays and singles from receiving artificial procreation assistance, won final approval in Parliament last week. Catholics and lawmakers from both the right and left joined forces, and the bill was passed in the Chamber of Deputies in secret voting by 277 to 222, with three deputies abstaining. The Senate approved it in December. After the law is signed by Italy's president and its text published in the government gazette, the legislation will go into force, effectively spelling the end of the country’s long-held reputation of the "Wild West" for artificial procreation. The Chamber president, Pier Ferdinando Casini, hailed the bill's passage, saying lawmakers "courageously took up the responsibility of making a law on such delicate issue." Fertility treatments will only be allowed for heterosexual couples -- both married and couples who have been living together for some time. Doctors face sanctions for assisting single women to conceive as well as for helping gay couples. link (top item) posted by Eve at 4:36 PM | link 0 comments
UTAH SENATE DEFINES LEGAL PARENTAGE, EXCLUDES UNMARRIED COUPLES FROM SURROGACY: The Washington Blade
The Utah Senate last week unanimously passed a 48-page bill that would amend, repeal or enact 121 different sections in the Utah Code redefining the legal rights of a mother, father and child. The Uniform Parentage Act’s sponsor Sen. Lyle Hillyard (R-Logan) said the bill is needed to replace parts of a 14-year-old surrogacy law struck down by a federal judge last year. Under current law, it is a class B misdemeanor to contract with a woman to carry a child for profit. The law also requires the name of the surrogate be listed on a birth certificate as the legal mother. Hillyard's bill would change that to allow married couples that are unable to have a child to pay a surrogate and be recorded as the legal parents. But couples arranging a surrogate pregnancy must be married, excluding cohabiting and gay couples. link (scroll down) posted by Eve at 4:34 PM | link 0 comments
Thursday, February 19, 2004
THREE- AND FOUR-PERSON MARRIAGES: Stanley Kurtz
...Judith Stacey, the Barbra Streisand Professor in Contemporary Gender Studies at USC, describes a three parent family--a lesbian couple and an inseminating gay man--that she would like to see get legal recognition. (There wasn't enough time for Stacey to present her example of a four parent family.) There's no real difference between Stacey's plea for recognition of triple or quadruple parent marriages and the pleas for recognition of same-sex marriage. ... Judith Stacey’s plea for recognition of three and four person marriages is important, because she makes it in conjunction with a group of powerful professors of family law. But there's another sense in which Stacey’s campaign is not isolated. Check out this article from the Village Voice. Once gay marriage is safely in place, we'll be seeing a lot more articles like that. And the pleas for fairness and compassion for multi-parent gay families will be every bit as heartfelt as the pleas for two person gay marriage are now. more posted by Eve at 4:23 PM | link 0 comments
THAT STANFORD PANEL: The Stanford daily paper reports.
Those are not the quotes of mine that I would have chosen; but whatever. posted by Eve at 4:20 PM | link 0 comments
SF BRIEFS from both sides (both links are PDF)
The city government's brief The Alliance Defense Fund's brief posted by Eve at 4:10 PM | link 0 comments
SSM AND EX POST FACTO CLAUSES: Eugene Volokh
A reader asks: If Massachusetts passes a state constitutional amendment banning gay marriages, and retroactively canceling all marriages created under the Massachusetts Supreme Judicial Court's Goodridge decision, would that violate the Ex Post Facto Clause? The answer is "no." Though the Ex Post Facto Clause restricts state as well as federal decisions -- it's one of the few federal constitutional rights that bound the states even before the Civil War Amendments -- it has consistently been interpreted as barring only retroactive criminal laws. See Calder v. Bull, 3 U.S. 386 (1798). Justice Thomas suggested in his concurrence in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) that Calder might be mistaken, but it's a pretty firmly entrenched precedent, and I doubt that courts will reverse it. What about the Contracts Clause, which bars states from impairing the obligation of contracts? Say that the Massachusetts voters cancel existing gay marriages, and don't substitute civil unions for them, thus essentially abrogating the existing marriage contracts. Would this violate the Contracts Clause? I suspect the answer is still "no"; the Contracts Clause has generally not been seen as applying to marriage contracts, which, I take it, is why states have been allowed to relax their divorce laws. See, e.g., Adams v. Palmer, 51 Me. 480 (1863); White v. White, 4 How.Pr. 102 (N.Y. Sup. 1849). (If a state used to forbid divorces, or allow them only in rare circumstances, it was essentially treating the marriage contract as very strongly binding; the enactment of a permissive marriage law would thus diminish the legal force of the marriage contract.) But if anyone has more specific legal authority for me on this, I'd love to see it and cite it. link posted by Eve at 4:03 PM | link 0 comments
SF MAYOR: Barry Deutsch
...Really, Al's question boils down to "is it right to flout an unjust law"? While I agree the issues aren't simple, in the end, I side with the mayor (and also with Rosa Parks). There are times when breaking the law is justified social protest. more posted by Eve at 4:01 PM | link 0 comments
TYRANNY OF THE MAJORITY? Barry Deutsch replies to David Benkof
...It comes down to whether you think constitutional rights are important in all circumstances, or only important in those circumstances in which you approve of the outcome. If you believe in the 14th amendment, providing equal protection of the law to all citizens, then you must believe that the 14th amendment is still valid even when it leads to an outcome you disagree with, or that the majority of voters disagree with. David's position is that the 14th Amendment (and the Massachusetts equivalent) is invalid if it leads to a court decision that he doesn't like, or that the majority wouldn't vote for. That's no different from saying that there shouldn't be a 14th Amendment at all. more posted by Eve at 4:00 PM | link 0 comments
SACRIFICE: Barry Deutsch replies to Eve
[I don't think we've yet "achieved disagreement," as they say; I'll reply briefly possibly tonight, definitely by tomorrow night.--Eve] ...There's an enormous difference in the sacrifice Eve wants same-sexers to make, versus the sacrifices she wants from others. In the examples Eve mentions, she's generally asking people to make sacrifices for the benefit of their own children. Married parents should not divorce because divorce hurts their own children; pregnant women should be forced to give birth for the sake of their own (unborn) children; fathers should be forced to pay child support for the benefit of their own children; etc. In contrast, lesbians and gays are being asked to sacrifice their own well-being to help other people's families--which is not the same thing at all. Even worse, Eve wants same-sex couples to sacrifice their own children's well-being to (allegedly) help other people's children. (I've posted before--here and here--on the benefits of same-sex marriage to the children of same-sex couples). ... Eve doesn't really address the question of discrimination. ... I don't believe that Eve's argument can justify legal discrimination against a minority. To see why, imagine that a social scientist put together reams of evidence proving that it doesn't benefit society when Jews get married. Even if the social scientist were factually correct, would anyone say that Jews should consequently be "treated differently," that is, banned from marrying? Finally, I object to the implication that people are objects for society's benefit and nothing more. Certainly, society’s benefit is a legitimate factor to consider, but it's not the only factor. If a person benefits society should not determine if they have equal protection of the law. Homeless people, for instance, probably don't benefit society much, but that wouldn't justify taking away their right to vote, or speak freely--or, for that matter, to get married. Human beings are more than instruments to be used to benefit society, but Eve's argument doesn't seem to acknowledge that. more posted by Eve at 3:59 PM | link 0 comments
JACOB T. LEVY AND JUSTIN KATZ DEBATE FMA
...If "incidents of marriage" really has nothing to do with civil unions, then it has nothing to do with them for either the legislature or the judiciary. And the judiciary, empowered to construe the Civil Unions Act as granting some privileges to gay couples because those privileges are not incidents of marriage, must also be empowered to construe other sources of law as granting, or requiring the grant, of those privileges. Sources such as a nondiscrimination or equal protection clause in a state constitution. On what I think is Justin's argument, the FMA would not limit the judiciary from doing so, because those privileges aren't incidents of marriage. more posted by Eve at 3:56 PM | link 0 comments
SF MAYOR: Reactions roundup, part one--different perspectives from what may broadly be called "the Right"
[More soon.] Stanley Kurtz: And again I say to conservatives, accept what is happening in San Francisco without concerted opposition and abandon hope of ever curbing activist judges or officials on any other issue. Write your representatives in support of the Federal Marriage Amendment and/or in protest of what is happening in San Francisco. Kurtz also has a sharp-tongued rebuke for Andrew Sullivan in re SF. Jonah Goldberg: ...But, I should also point out that from the stories I've seen, a great many (I don't know if it's a majority or not) of the couples getting "married" in San Francisco are from out of town and out of state. So when Andrew [Sullivan] says their love and commitment are being solemnized by their own government he's factually wrong. These couples are having their love and commitment solemnized by "a government" -- illegally. This isn't a trivial point, since Andrew and others -- including me -- place so much importance on Federalism and the ability of people to determine the rules for their own communities. Well, the couples from North Carolina aren't moving to San Francisco. They're grabbing some paperwork to press their case in Raleigh or Durham. That's a different scenario. Eugene Volokh: ...I agree that generally government officials ought to obey the law, even when they rightly believe that the law is wrong; that is part of what we think of as the Rule of Law. ... But part of American law is the principle that unconstitutional laws are not laws at all. ...As I understand it, Mayor Newsom's position is that California's male-female-only marriage law -- which is only a statute, albeit one that was implemented by a voter initiative -- violates the California Constitution. If he's right, then refusing to marry same-sex couples (thus complying with the invalid state statute) would be violating the law, because it would be denying people the equal treatment that the constitution allows them; agreeing to marry same-sex couples (thus violating the invalid state statute) would be upholding the law, because it would be complying with the constitutional command. His actions are, I suspect, partly calculated to create a test case that would lead the California Supreme Court to decide the matter. It seems to me that this sort of conduct is permissible, and is in fact the way constitutional law is often developed. more Jacob Levy: ...I am, as I've said a number of times, strongly in support of gay marriage. That said, the decision by San Francisco's city government to start issuing same-sex marriage licenses doesn't at all please me the way it does Andrew Sullivan. San Francisco officials are obligated to implement California state law. The California mini-DOMA was put into the state constitution by initiative [SEE UPDATE BELOW; I was mistaken about this part]; the SF officials can't claim to be upholding California's equal-protection clause against a statute that violates it. So their claim must be that they're upholding the federal equal-protection clause against a state constitution that violates it. In this, they are making up an interpretation of the Constitution to suit their needs, and acting in defiance of the rule of law. Their offices are creatures of the California constitution; they're not free to disregard that constitution at their convenience. more posted by Eve at 3:53 PM | link 0 comments
JUDICIAL OVERREACH: The American Prospect vs. the Goodridge court
...The contrasting developments in Massachusetts and New Jersey illustrate the risks of turning to the courts to leapfrog public opinion in a democracy. Even though courts may be called "supreme," the people can overrule them, and on same-sex marriage they already have. After supreme courts in Alaska and Hawaii approved gay marriage, constitutional amendments in those states overturned their decisions. In contrast, Vermont's highest court gave the legislature the option of authorizing civil unions, and that legislation -- signed by Howard Dean -- seems likely to survive. What was wrong with the Massachusetts decision, however, was not simply that it was blind to the likely political reaction. It was also unpersuasive. In its February "Answer" to the legislature, the court determined that civil unions would carry a stigma of inferiority -- a judgment about their symbolic meaning -- without any evidence about how civil unions would have developed in practice. States create legal rights and obligations, and civil unions would have equalized those. The administrative categories of government, however, are only one of many elements -- and not necessarily the most powerful -- in shaping social understandings. People create their own symbolism through ceremonies such as weddings and other practices, and nothing in the law authorizing civil unions would have prevented gays from investing the unions with all the symbolism of a marriage. The Massachusetts judges and religious conservatives are joined in a kind of antagonistic cooperation. They agree that constitutional law ought to settle the question of same-sex marriage and are forcing Americans to deal with the issue in those terms. But the case for leaving controversies to politics and legislation, rather than fixing them in constitutional principle, is especially strong where public sentiment is fluid and highly charged. Legislation has the virtue of allowing for negotiation among elected representatives; a legislative compromise may be incremental, the losing side is more likely to accept the outcome, and the result may be both more stable and legitimate in the eyes of the public. The wide acceptance of New Jersey's domestic-partnership law exemplifies these advantages. When reformers get into the habit of relying on lawyers and judges, they not only risk a self-defeating political reaction but may also lose the facility for building a majoritarian politics. That is surely one of the things that went wrong with American liberalism in the mid-20th century, and it would be a disaster to repeat that mistake. ... more The afterword, on the FMA, is also quite interesting. posted by Eve at 12:46 PM | link 0 comments
SAN FRANCISCO: WHO'S NEXT?
Chicago? Santa Cruz? Austin? Sea to shining sea? posted by Eve at 12:43 PM | link 0 comments
FMA IS A BAD COMPROMISE: Jacob T. Levy in the New Republic
Many of the conservative supporters of the Federal Marriage Amendment (FMA) argue that their efforts are intended to limit judicial overreach of the sort they perceive in Massachusetts' Goodridge decision. They suggest that the FMA bans gay marriage altogether, but bans civil unions only if they're created by state or federal judges--suggesting that legislatively created civil unions would be acceptable. As Ramesh Ponnuru recently wrote, "[T]he amendment would not bar a state legislature from enacting civil unions, but only block any future replays of Vermont, in which a court essentially ordered a legislature to enact them." This is of a piece with a longstanding argument on the right that social conservative positions can best be presented as defenses of democratic decision-making against an imperial, culturally-left judiciary. And it seems to underlie the Bush administration's political strategy of embracing a marriage amendment while fudging on the issue of civil unions. As written, though, the FMA would make it impossible to create the type of civil unions FMA boosters like Ponnuru suggest they're open to. More broadly, it's unlikely that any amendment preventing courts from creating civil unions would make it possible for legislatures to do the same. Worse, not only would the FMA deny state legislatures the authority proponents claim it would leave intact; it would also constitute the kind of unprecedented assault on state autonomy conservatives reject in almost every other circumstance. more posted by Eve at 3:49 AM | link 0 comments
SF JUDGE WON'T HALT MARRIAGES: From the Los Angeles Times
As the number of same-sex marriages climbed to more than 2,600 here Tuesday, a San Francisco Superior Court judge refused to order an immediate stop to the unions, instead allowing city officials until March 29 to return to court to argue the merits of their case. Mayor Gavin Newsom last week ordered city officials to begin marrying gays and lesbians despite state statutes that limit marriage to "a man and a woman." The mayor vowed Tuesday to continue performing the marriages until he was ordered to stop, raising the prospect that thousands more same-sex couples will hold marriage licenses by the time the legal battle returns to court. "We are more resolved than ever," Newsom said. "I took an oath literally to support the Constitution, and that's what I'm doing. The issue here is simple: The state's Constitution does not permit discrimination at all, anywhere, period. We are in full compliance with our state's equal protection clause prohibiting discrimination in any form." Judge James L. Warren's late-afternoon order came in response to a request by the Arizona-based Alliance Defense Fund for an immediate halt to the government-sanctioned marriages. Attorneys for the group--which represents a California taxpayers organization that supported a 2000 ballot initiative against gay marriage--argued that Newsom's move to provide marriage licenses to gays and lesbians constituted "municipal anarchy." But after a three-hour hearing packed with media and couples who had tied the knot in recent days, Warren ruled that there was not enough evidence of harm to the plaintiffs to justify immediate action. Instead, he issued an order to the city to either "cease and desist ... solemnizing the same-sex marriages" or return to court to lay out the reasons why they should be allowed to continue. Warren indicated that he may ultimately have to consider whether the state's family code violates the equal protection clause of the California Constitution, as Newsom asserts. more posted by Eve at 3:44 AM | link 0 comments
TRANSGENDER MARRIAGE: From the Houston Chronicle
A lawsuit seeking to end the marriage of two women could put a Houston judge in the awkward position of recognizing a same-sex union, an attorney in the case said Tuesday. "Yes, two females married," said Elsie Martin-Simon, attorney for Linda Gail Carter. "My client's Texas driver's license says 'female.' " Legal experts say the possible long-term impact is murky in a case in which a transgender man, whom a Texas court declared to be a woman, married another woman in Nevada. Carter is asking state Family Court Judge Lisa Millard to void her marriage to Constance Gonzales, reasoning that Texas law doesn't recognize same-sex marriages. A hearing in Millard's court is set for March 2. Carter, a 60-year-old Houston native, said she first realized she was a female when she was 6 years old and known as James H. Murphey. Still, she said, she was attracted to women and eventually got married. Even during the marriage, Carter said, she took female hormones that caused changes in her body "so that my outside would look like what I felt on the inside." ... They flew to Las Vegas, she said, where they obtained a marriage license in Clark County and were married by a minister on Oct. 31, 1998. But Carter said the couple had a falling-out over who controlled a funeral home she had started. In an attempt to regain control of the property, Carter filed the lawsuit to void the marriage. ... Lawyer Jerry Simoneaux, president of the Stonewall Law Association of Greater Houston, said he believes Millard will abide by an earlier ruling by the 4th State Court of Appeals in a San Antonio case. That court ruled that sex is determined by chromosomes, not by birth certificate or court order. more posted by Eve at 3:32 AM | link 0 comments
PRESIDENT BUSH "TROUBLED" BY SSM DEVELOPMENTS: Press release
[That's nice. I'm "troubled," too. If you don't like the news, make some of your own, Mr. President...--ungrateful Eve.] PRESIDENT BUSH: I strongly believe that marriage should be defined as between a man and a woman. I am troubled by activist judges who are defining marriage. I have watched carefully what's happened in San Francisco, where licenses were being issued even though the law states otherwise. I have consistently stated that if -- I'll support law to protect marriage between a man and a woman. And obviously these events are influencing my decision. Q Are you close to a decision? PRESIDENT BUSH: I'm watching very carefully. But I'm troubled by what I've seen. People need to be involved with this decision. Marriage ought to be defined by the people, not by the courts. And I'm watching it carefully. more posted by Eve at 3:30 AM | link 0 comments
Wednesday, February 18, 2004
SF vs. CA: David Benkof
Al Rantel made a good point on his KABC radio show in Los Angeles yesterday, which he repeated on the O'Reilly Factor on Fox News: What if the mayor of San Diego, not liking California gun laws, started handing out concealed weapons licenses left and right? How is that different from the mayor of San Francisco flouting the California constitution by handing out same-sex marriage licenses? It's true that San Francisco and the Bay Area voted overwhelmingly against Prop. 22 (which said marriage is between a man and a woman) while the rest of the state voted overwhelmingly for it. But the constituional definition of marriage was a state matter, and San Francisco is now acting the sore loser. When South Carolina didn't like the results of a national debate in the 19th century, it seceded and the North invaded to keep the country together. What SF is doing is no small matter. posted by Eve at 11:10 AM | link 0 comments
WHY THE CONSTITUTION? David Benkof
SSM advocates have been talking a lot about the sanctity of constitutions lately: "Don't enshrine discrimination in the Constitution!" "This is the first time a Constitution would be used to take away rights, rather than confer them." "This is too small an issue to amend the Constitution over." The problem is, the current political situation gives SSM opponents no choice other than what our president calls "the Constitutional process." Believe me, right-of-center politicians (and especially the White House) haven't been eager to deal with same-sex marriage at all. But gays sued in court, won in Massachusetts, and now the only way those of us who don't want same-sex marriage can do anything politically is to amend a constitution - the Massachusetts one or the federal one. The people who say "Do what you will but don't touch the Constitution" are really saying "Have your opinion but don't do anything about it." It's disingenous and unfair. Had SSM proponents turned to legislatures or the initiative process rather than courts, we would have had a much more democratic process. Since gays chose the courts instead, they have to be prepared for the consequences: those of us who disagree with SSM are going to respond without apology by using the only political option we have left: amending a Constitution or two. posted by Eve at 11:09 AM | link 0 comments
SOCIAL HISTORY AND SSM: Mark Barton replies to David Kuner
David concedes that history is far from a reliable guide to what's optimum, but still wants to point to a core concept of marriage that has endured. I agree that marriage of some description has always been a historical reality, and that the enduring theme has always been bonding together people involved in acts of procreation. At the same time, there are several ways for this to be true, and it's far from obvious that history lends much support to the one that is most commonly mentioned on marriagedebate.com and that David probably has in mind: marriage as a supposedly optimum child-rearing environment for kids. There are at least two other main ways that marriage can be "meant" to bond together people involved in procreation: as an expression of male property rights over women and children, and as an expression of religious notions of sexual purity. Of course, all these purposes are entangled, and some aspects of marriage serve all three at once, but you can still get an idea of what the ancients thought was primary by looking at what they emphasize, especially where there's tension between the goals. For example, the author of the marriage laws in Deuteronomy (e.g., 22:13ff) clearly considered women to be property, first of fathers, then of fiancees and husbands, and apparently considered marriage mostly as a scheme for ensuring that the property remained untampered with. In this view, marriage is less about ensuring that kids are raised by fathers than ensuring that men don't have to raise kids fathered by others. One must seriously consider the possibility that institutions have been skewed towards the interests of the individuals with the power, i.e., the men, at the expense of those who need the protection, i.e., the children. Even to the extent marriage may have arisen for less than admirable reasons, it could still be true that it was a much better child-rearing environment than anything else. My point is that all one can conclude from its historical persistence is that it benefited somebody. If David wants to argue that it benefited children primarily, he needs to supplement his argument. posted by Eve at 11:08 AM | link 0 comments
SSM AND POLYGAMY: Ben Bateman
Many proponents of SSM have argued that there is no slippery slope whatsoever from gay marriage to polygamy. But then a leading liberal publication like the Village Voice prints a story celebrating a true polygamous (polyandrous) family, and regretting that their arrangement "remains legally fragile." The discussion of polygamy is no longer an abstract debate. If this Village Voice article is any indication, those leading the charge on SSM fully understand that once marriage is redefined to include any pairing of people, there will be no reason to leave out threesomes or larger groups. No doubt many in the middle of the SSM debate sincerely believe that it would be possible to have SSM without polygamy. But the rank and file of those who fervently support SSM have little to say against polygamy, and now some of them openly support it. It really doesn’t matter whether we can imagine a world that permits SSM but not polygamy. In the real world, many of those who support SSM also support polygamy. If they get their way on the first issue, they will get their way on the second. posted by Eve at 11:04 AM | link 0 comments
WHY IS BIGAMY ILLEGAL? David Benkof
With the various comparisons between SSM and polygamy, there's one difference that I think needs more attention: while (virtually) nobody is advocating outlawing private gay weddings, it's illegal for a man to privately marry more than one wife. That leads to the following situation: If a man has sex with several women and promises to take care of them and their children forever, we call him a bigamist and put him in jail, yet... If a man has sex with several women and ignores them all, we call him a professional athlete and put him on the cover of Sports Illustrated. I think opponents of SSM should also support repealing anti-(private) bigamy laws, the idea being that in a free society anybody can have whatever private ceremonies and living arrangements they see fit, but only one-man-one-woman relationships get the special government sanction we call marriage. posted by Eve at 10:37 AM | link 0 comments
BUSH'S STANCE PROMPTED SAN FRANCISCO MAYOR'S ACTIONS: From the SF Chronicle
It was only his 12th day as mayor of San Francisco, but Gavin Newsom decided that night -- the very night he attended President Bush's State of the Union address in Washington, D.C. -- that he was going to defy California law. And turn the nation on its ear. Attending the president's Jan. 20 speech as a guest of House Minority Leader Nancy Pelosi, Newsom listened closely as Bush voiced his strong support for outlawing same-sex marriage -- with a constitutional amendment, if necessary. Not long after the speech, Newsom called his chief of staff, Steve Kawa, a gay man who was at home with his partner and their two children. "He told me that he wanted to do something,'' Kawa said. Two weeks later, during a staff meeting, Newsom dropped the bombshell on his top aides: He wanted them to explore how the city could start issuing marriage licenses to gay and lesbian couples. Kawa said the mayor asked staff to gather as many legal briefs, news articles and other background information as they could. Added his communications chief, Peter Ragone, "He also wanted it done quietly.'' Within 24 hours, Kawa was on the phone with Kate Kendell, executive director of the National Center for Lesbian Rights, a San Francisco-based public interest legal organization. Her reaction: "Oh, my God, you're kidding me,'' Kendell said in an interview Saturday. "It was a mixture of 'wow,' and 'oh s -- .' " It was the first time, Kendell said, that a mayor of an American city wanted to take such an initiative. And Newsom, a straight Irish Catholic man married for two years, was the perfect politician to take on the fight, she said. more posted by Eve at 10:34 AM | link 0 comments
POLYGAMY AND SSM: Debate at National Review Online blog
Jonah Goldberg: ... I don't want to get into the philosophy of mathematics -- not my expertise -- but aren't numbers more abstract than the actual flesh and blood typologies of man and woman? How is confining marriage to one man and one woman more arbitrary or irrational than confining it to two people?... A reader: ...I lived for three years in a very small village in Sierra Leone in the late 1970's and can attest--as can many of NRO readers who have similar experiences--that polygamy has a rational basis in poor, agrarian and autonomous regions of the world, where only half of all offspring live to their 5th birthday, where there is a strong need for children to work the fields and, in later years, to care for dying parents, and where there is no social safety net, let along opportunities for employment for young women, to cushion the blows of illness and old age. The point is, Polygamy does have a rational basis, even if on occasion the multiple wives may bicker among themselves and with the husband. So if the proponents of Same-Sex Marriage consider stability a virtue, then they should also be in favor of polygamy. The only reason for Rep. Frank et al. to oppose it is to suggest that monogamy is culturally superior. But they wouldn't want to say THAT, would they? A reader: ...W/ all due respect, it seems to me that man and woman, as "typologies" go, (besides being arbitrary at conception) are a couple surgeries and some hormone therapy away from changing in to one another, whereas two is simply two. And we have a habit here of accepting limits set to specific numbers or percentages that are otherwise somewhat arbitrary. ... Goldberg: I think it's clear that if you read my post, my point was that two-ness is as arbitrary as man/woman. Moreover I disagree that sex is as malleable as this reader suggests. Surgery can help change gender but I'm unaware of any surgery that can make a man into a woman capable of having children or a woman into a man capable of producing viable sperm. In fact, it seems to me it's a lot easier to make 2 into 3 -- just add one! -- than it is to make a man into a mother. As for the rest of his points about the other problems marriage is facing, I think he makes fine points. Goldberg: While certainly, you're correct that neither restriction is logically more obvious or less arbitrary than the other, in legal terms, one is significantly easier than the other. Allowing same-sex marriage only requires dropping the requirement that the two participants be of opposite sexes. All of the law surrounding marriage assumes two people, and in the more difficult cases like death of one person, or dissolution of the marriage, there is no logical difference whether there's a man and a woman, or two women. However, if you extend the law to more than two, things get complicated. ...What happens when a marriage of 4 or more splits into two groups? Is there still a presumption of paternity? How does one write income tax schedules for marriages of 3, 4, or n? Plural marriage requires same-sex marriage, because any marriage of n>2 will have at least two people of the same sex involved, but same-sex marriage does not automatically imply plural marriage. While it does seem to be the politically logical next step, there is strong antipathy to polyamory among some segments of the gay/lesbian community, so that next step may be a long time in coming. posted by Eve at 6:44 AM | link 0 comments
FMA: The Washington Post
[Eugene Volokh points out this section of a WP article, and comments afterward:] "But surely it is right to ask not only what are the intended consequences of the proposal, but the unintended ones, as well," said Eugene Volokh of the University of California at Los Angeles Law School. Volokh, a libertarian who has often sided with Christian conservatives in legal disputes, argues that the amendment might not prevent legislatures from enacting civil unions but would make them unenforceable. He poses the hypothetical case of a gay man trying to add his partner to an insurance policy. The insurance administrator turns him down. The man argues that, under the state's civil union law, he and his partner must be treated as a married couple. "Not so," the administrator replies. "The Federal Marriage Amendment specifically says that no state law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples." If the gay couple went to court, Volokh said, judges might well agree with the administrator. Bork, a former federal judge, called Volokh's argument "unrealistic." "This whole thing," he said, "is really in response to courts that are running away" in favor of homosexual partnerships, not against them. "If there were any ambiguities," he said, "courts that are inclined toward civil unions would resolve them in that direction." -------------------------------------------------------------------------------------------- I actually agree with Judge Bork that courts that are inclined toward civil unions would resolve ambiguities in favor of validating legislatively enacted civil unions. But my question is: What about courts that are inclined against civil unions? link posted by Eve at 6:37 AM | link 0 comments
EVERYBODY HURTS, SOMETIMES: Eve replies to Barry Deutsch
Wildly, horribly brief reply: I won't speak for Elizabeth. But I think I'm an equal opportunity sacrifice-demander. I am a bit surprised, actually, that Barry (in an eloquent post) speaks as if I am asking more of homosexual couples than I would ask of, e.g., women with unwanted pregnancies, or married couples who want to divorce but are not at the "high-conflict" stage, or unmarried people who want to have sex outside of wedlock, or men who father children when they wish they hadn't. Just about every adult has to sacrifice for the interests of children, although the sacrifices asked of people in different situations are very different. I am not asking people in homosexual relationships to forgo something they want while saying people in heterosexual relationships should get everything they want. My email from people in or seeking heterosexual relationships strongly suggests that they understand how much is being asked of them.... The response is, of course, not to wallow in sorrow for oneself, but to try as best one can to love one's responsibilities; to find joy in the necessary sacrifices and solace in the rest of life. I will also say, again overbriefly, that I think Barry is conflating equality and happiness. Marriage is treated differently by law and society because it does more for society. Other relationships, no matter how much they do for the couple, do less for the rest of us, and consequently are treated differently. Possibly more later if people express interest. posted by Eve at 12:51 AM | link 0 comments
WHY ARE GAY INTERESTS SO EASILY SACRIFICED? Barry Deutsch
...There's an interesting parallel here. Elizabeth asks why it's acceptable to exploit thousands of women to increase the chance of curing deadly diseases. There are two premises implicit in Elizabeth's anti-cloning argument--one, that there are potentially fruitful avenues of research aside from cloning, and two, that cloning harms women's interests--but if you accept Elizabeth's premises, her conclusion is reasonable. All else held equal, it is better to try to cure diseases without harming women in the process. Well, then: Isn't it also better to try to help heterosexual families without harming lesbian and gay families in the process? Why is it acceptable to deprive thousands of same-sex couples and their children of marriage--of the rights to having socially recognized families, with the dignity and security that, for many, only marriage can confer--just because there's a chance that depriving same-sex families of equal rights will reduce heterosexual divorce? The two situations are very similar. There's a valuable goal being sought (stronger het marriages/cures for diseases). There are multiple policies we could pursue to reach the goal. However, one of the policies treats a particular group of people (women/same-sex families) as if their well-being doesn't count. When the group being sacrificed is women, Elizabeth says "let's find an alternative route." But when the group being sacrificed is same-sex families, suddenly a group sacrifice is appropriate. Why? more posted by Eve at 12:45 AM | link 0 comments
INCEST, POLYGAMY, SSM: Gabriel Rosenberg replies to Justin Katz and (sort of) Eve
[Eve says: I will only note that Rosenberg is phrasing things in a way I would not, when he says, "[T]he major concern of both Katz and Tushnet is that my arguments are too abstract for the courts." I would say, rather, that his reasons, however compelling to people already driven by "macro" social concerns and questions of societal benefit, assume that marriage is about social capital and societal benefit rather than being about the adult individuals who make up the union. And this societal vs. individual divide is one of the biggest factors in the SSM debate! So it is not so much "abstract vs. concrete" but a deeper conflict of visions--what, or whom, is civil marriage about? The people who want their union to be considered a marriage, or the citizenry at large, and most particularly the children? Anyway....] ...If I had to predict, though, I would say that courts would reject arguments for incestuous or polygamous marriage. Polygamy actually has the weakest case of them all. There is no equal protection concern. ... Incestuous marriage actually has a stonger case, in my mind. In the polygamy case, a person seeking to marry another was allowed to do so provided he obtained a divorce from his first marriage. In the incestuous case, as in the same-sex case, a couple is not allowed to marry no matter what they do. And, as Katz points out, the existing familial relationship between the potential couple is not close to the status of the marital relationship in the law. Still if one accepts that the state may prohibit marriage based on certain kinship relations, then the question becomes where to draw the line. Despite what some critics have said about "activist" judges, I think the courts do leave such line drawing to the legislatures. They only have objections when those lines are drawn based on sex, race, religion, or a few other factors. This is not to say that there aren't good policy arguments for trying to help two relatives struggling to raise a child of one of them, or two widowed sisters relying on each other for mutual support in their old age. When Vermont established civil unions, they also established a reciprocal beneficiary relationship for individuals too closely related to enter into a civil union or a marriage. I think this was a good idea, but do not think such a relationship would suffice for same-sex couples. I will examine this RP relationship in more detail and try to explain my views on this subject in a subsequent post. more posted by Eve at 12:37 AM | link 0 comments
SAME-SEX MARRIAGE, 1975: From the Associated Press
Clela Rorex smiles as she watches the national debate unfold over same-sex marriage, knowing she's seen it all before. After all, the former Boulder County clerk and recorder issued marriage licenses to same-sex couples back in 1975. San Francisco's mayor may be provoking a national debate by issuing marriage licenses to hundreds of gay and lesbian couples, but Rorex knows they are not the first such licenses ever issued. ... As a newly elected political rookie in 1975, Rorex was approached by a same-sex couple who asked if she would issue a marriage license. After securing a legal opinion from the Boulder County district attorney at the time, who said state law did not preclude issuing marriage licenses to same-sex couples, Rorex issued the license. "I issued licenses because I didn't want to be legislating morality," Rorex said, adding she knew little about homosexuality at the time and did not know many gay people. Once the media latched onto the issue, though, hate mail and calls from state politicians started pouring in, Rorex said. As word spread, more gay couples came to her asking for licenses, and she would grant them. She said she issued licenses to about a half dozen gay couples in early 1975. Legislators asked for a legal opinion from the state attorney general at the time, J.D. MacFarlane. He said Sunday that his office drafted an opinion that state law was clear on the issue, and that marriage is a union between a man and a woman. Soon after, Rorex stopped issuing licenses, especially after a man came in trying to get a license for himself and his horse, Dolly. Rorex told him the horse was too young to get married without parental consent. more posted by Eve at 12:26 AM | link 0 comments
THE WORD "MARRIAGE": USA Today
..."Our coalition is not opposed to domestic partnership laws, like those in California, that are decided by the legislatures," says Matt Daniels, president of the Alliance for Marriage, one of several groups behind the constitutional amendment. But the California law, which will extend most marital rights to same-sex couples next year, is not enough, gay activists say. On Sunday, San Francisco officials continued to issue marriage permits to gay couples in defiance of a state law barring same-sex marriage. Like almost every state, California defines marriage as between a man and a woman. Legal efforts to stop San Francisco's actions are to be heard in court on Tuesday. David Sang, president of Parents, Families and Friends of Lesbians and Gays, said domestic partnership laws like California's offer little protection for couples who move to other states. "We need more than a series of state laws" he said. "It comes down to how we as a nation define marriage and define families." ... Others suspect that definition may change in the coming years. But change comes slowly, says Sanford Katz, a Boston College law professor and former chairman of the American Bar Association's Family Law committee. "The word marriage has been with us for thousands of years," Katz says. "For much of the population, it doesn't quite fit the definition for same-sex couples." more posted by Eve at 12:24 AM | link 0 comments
MARRIAGE MOVEMENT BLOG SHIFT: They've moved here.
Change your bookmarks accordingly! Current posts include: discussion of the "equality/discrimination" aspects of the SSM debate; and this: "Does it ever give you pause that, as a general rule, the strongest critics of marriage as an institution are also the strongest advocates of SSM?" posted by Eve at 12:23 AM | link 0 comments
WHAT'S SO CIVIL ABOUT CIVIL UNIONS? Peter Wood
...Should the state constitutional convention strike for the compromise? I am edging the other way. I don't think enacting civil-unions laws will prevent the kinds of damage that gay marriage itself would inflict on our society. The unhappy social consequences would be the same either way. ... ..To offer civil unions as the compromise position is, in effect, to concede that the debate really is about civil rights rather than an aggressive campaign to transform the culture by replacing the traditional family as the cornerstone of social order with an amorphous category of sexual liaisons. Eliminate the normative family in the U.S., and who benefits? The Scandinavian situation offers a pretty good clue. Junk the family and its functions will necessarily be transferred to the state: to state day-care centers, welfare bureaucracies, and government agencies. But as long as we continue to debate gay marriage on the grounds preferred by the Left -- as a civil-rights issue -- the larger assault on the traditional family anchored on the sexual, emotional, and practical complementarity of one man and one woman will remain invisible. Conservatives at this juncture seem faced with a choice of strategies: whether to emphasize the recklessness of the proponents of gay marriage in their willingness to jeopardize traditional marriage for what appears to be, at best, a modest social gain; or whether to emphasize the much larger cultural question of the place of homosexuality in our society. The public and political debate, though limited, has been carried on by people like Maggie Gallagher and Stanley Kurtz, almost entirely within the frame of the former position, i.e., "We need to defend marriage." I agree, we do, and Gallagher and Kurtz have made excellent arguments. But I somehow doubt that their arguments are connecting with as a large a public as they hope. Can the other argument ("We should not allow marriage to be used to give full legitimacy to homosexuality.") do better? Can we make both arguments? more posted by Eve at 12:19 AM | link 0 comments
EARLY CRITIC NOW SUPPORTS FMA: National Review
...The same-sex marriage movement therefore threatens the core institution of marriage, challenges these essential constitutional principles, and imperils our very system of government. ... These rulings violate the consent-of-the-governed principle. Those judges seized the people's right to govern themselves by redefining the fundamental institution of marriage, and imposed their own radical policy preferences upon the people under the guise of interpreting the state constitution. (These courts also tried to coerce compliant legislatures to endorse their ruling.) These decisions demean the institution of marriage, and disregard the basic right of the people to define their own basic social institutions. The time has come to take effective legal action before these accelerating trends and pressures grow so large and acquire so much influence that they do irreparable damage to marriage, to federalism, and to self-government. While I am reluctant to advocate amending the Constitution of the United States, especially in an area dealing with family law I am now convinced that such an amendment may be the only effective remedy to head off renegade judges who are using their judicial power to impose their personal pro-same-sex-unions preferences, to restrain irresponsible politicians willing to pander to gay activists, to reestablish the principles of federalism and self-government, and to revive public respect for the unparalleled benefits that conjugal marriage provides to individuals, families, and society. The issue is not partisan or ideological. It is only about protecting our children, our families, the institution of marriage, and our core national principles. The Federal Marriage Amendment introduced in Congress takes a prudent and reasonable approach to the problem. It abolishes same-sex marriage in the United States, and prohibits judges from legalizing other forms of same-sex unions, while preserving both federalism in family law and local self-government by protecting the authority of the legislatures to establish state policy regarding whether (and to what extent) to give some legal benefits to unmarried--including same-sex--couples. more posted by Eve at 12:12 AM | link 0 comments
LESBIAN COUPLE SUES ORANGE COUNTY, CA: Via the Los Angeles Times
Although Carmen and Dorothy Apodoca would like to marry with the government's blessing, going to San Francisco over the weekend never crossed their minds. The Garden Grove couple think a government-sanctioned union would be only temporary because a court hearing today could nullify the more than 2,400 unions granted since Thursday. "What's happening in San Francisco is not legal," said Dorothy Apodoca, 50. "They're just pacifying the people and can yank the license at any time." The couple filed a claim against Orange County seeking $25 million in damages for violating their civil rights and inflicting emotional distress after the county clerk's office denied their marriage license application Jan. 7. ... Dorothy has adopted Carmen's two daughters, ages 13 and 14, as a stepmother, and continues to work while her partner stays at home with the children. All have taken Dorothy's last name. The women are active in their daughters' schools, working with the Parent Teacher Assns. and School Site Council. The couple and their daughters are involved in their church and say their pastor is eager to marry them as soon as it's legal. more posted by Eve at 12:09 AM | link 0 comments
SF: JUDGE DELAYS GAY MARRIAGE HEARING: From 365Gay.com
In the first of two separate court challenges to the city of San Francisco's granting marriage licenses to same-sex couples, a judge has put over the hearing until Friday at the earliest. San Francisco County Superior Court Judge Ronald Quidachay said that Campaign for California Families had amended its complaint against the city this morning, and failed to give lawyers for San Francisco the required 24 hours to study the amended filing. The hearing was put off until Friday at 2 pm PT, but the judge said he might not hear the case Friday, depending on what happens in another courtroom this afternoon. That court will hear a separate challenge brought by lawyers for the Alliance Defense Fund. Although the specific arguments in each case is slightly different, both seek to have a court order barring the city from issuing any additional marriage licenses and nullify those already granted. Across the street, at City Hall, a lineup of same-sex couples seeking marriage licenses continued, and city officials were still processing the documents. "[We will continue] until I personally hear from City Atty. Dennis Hererra" that an injunction has been issued, said Mabel Teng, the city and county assessor in charge of issuing marriage licenses. Since Thursday, when the city began issuing them 2,500 same-sex couples have received marriage licenses. link posted by Eve at 12:07 AM | link 0 comments
Sunday, February 15, 2004
SOCIAL HISTORY AND SSM: David Kuner
Even if one allows that the Sumerians invented civilization while allowing a man to sell his wives and children into slavery, and that ancient Athenians zestily engaged in pedophilia, it certainly does not follow that "history and anthropology prove that there is no single best family arrangement." The existence in history of a wide variety of "family arrangements" tells us nothing about whether those arrangements were good or bad. This is just the same old relativist cant: since it has been otherwise, at other times and among other people, who are we to judge? One thing that has not changed in all these family arrangements--the one thing that is not an "arrangement", or at least not an arrangement that we had any part in creating--is the pesky, nagging, unavoidable fact that when men and women engage in sexual relations, the result is frequently a new human life. Marriage, it seems to me, is meant to deal with this by bonding together, hopefully in love, those who are involved in this act of creation. It is why marriage has endured, and why it is considered a bond not to be broken. Many of the apparently learned people who so gladly and carefully deconstruct marriage bring to mind what CS Lewis said of modern-day biblical critics (I'm paraphrasing): I may respect their learning, but I distrust their judgement. posted by Eve at 2:31 AM | link 0 comments
SOCIAL HISTORY AND SSM: George McAllister
I should start by saying that I'm delighted to see such quick responses to my question, and I thank you all for your ideas and references. That said, in my opinion the articles referred to were a bit of a mixed bag. First, I hope it is unnecessary for me to say that I don't get my ideas about the history of the family from freshman sociology textbooks. The article on that topic, which I hadn't seen before, was a bit unhelpful. Many of the quotations it cites are certainly objectionable (or at least debatable) based on the data, but they are short, few in number, and lack context. They don't prove pervasive bias, in my opinion. Odder is a lack of data on the influence of these textbooks, which should be important if there is concern about their pernicious influence on youth. The only information on the topic is that "Each semester, these books are used in approximately 8,000 college courses across the country and read by hundreds of thousands of college students..." There are, by the latest statistics I know, about 5,700 two- and four-year institutions in the US, including those that don't grant degrees (see the Directory of Postsecondary Institutions, published by the National Center for Education Statistics). For the books surveyed to be used in about 8,000 courses per semester would require both an astonishing interest in family research on the part of colleges and an extraordinary level of popularity for the textbooks surveyed. I am skeptical. The "Sex & Consequences" article seemed to get its facts right, but was a bit weak on the logic. Restricting the discussion to the sections on homosexuality, there is at least one notable oddity: After pointing out that the Native American berdache "did not represent anything like normalized homosexuality" -- presumably he means as gay marriage proponents seek it -- he finds the proper analogy in a culture where same-sex sex is restricted to ritual functions exclusively involving adult and adolescent males. This is no more analogous to what SSM advocate seek than the berdache is. Indeed, therein lies a major problem for historical and cross-cultural comparisons: No society, excepting certain contemporary Scandinavian nations, has had an institution of same-sex family relations like that sought by SSM advocates. This is why we have the assertion, absurd for contemporary gay men, that where male same-sex relationships have "cultural elaboration they almost always fit into a pattern of initiation into secrets, male exclusivity, and a low status for women." Ignoring the problem of causation (does the fact that there are male same-sex relationships cause low status for women, or do the two simply coincide because most societies give women a low status?), that pattern clearly doesn't apply to contemporary male same-sex relationships: While women are excluded (a logical necessity), there is no sex-segregated mystery cult of gayness and indeed gay men in the US and Europe stereotypically idolize certain successful women and have mostly female friends. The same fate awaits the assertion that the results of increased acceptance of homosexuality "are predictable on the basis of the ethnography." They simply are not, because there is no data on anything sufficiently similar to the arrangement sought. As you can see, I quite agree with the mass of Justin Katz's post, as I read it. The intertwining between a society's family structures and its other features is extraordinarily complex; indeed, one of the major tasks of family researchers is to understand that relationship. The family structures that have existed during the rise of the modern era have been an integral part of that rise, but that is of little help. The world is radically different now than it was forty years ago, not to mention four hundred, and so too is the family. Perhaps that is the one sure lesson we can draw from the history of the family: Family structures inevitably change as society does, and vice versa, and the world is not necessarily worse off therefore. posted by Eve at 2:20 AM | link 0 comments
INCEST, POLYGAMY, SSM: Justin Katz replies to Gabriel Rosenberg
[Eve says: I agree with all of the arguments Rosenberg musters against incestuous and polygamous marriage. I'm especially sympathetic to claims about "role conflict." But I agree with Katz that these claims may well not be strong enough to resist the tide of an understanding of marriage based solely on mutual affection and care--I mean, c'mon, does anything sound more abstract than "role conflict"? Rosenberg is still assuming that cultural "prejudices" will remain on his side even when confronted with photographs of happy "poly families" and appealing claims about rights and love and Whose Business Is It Anyway? In other words, Rosenberg is right about everything except the potential for a slippery slope--the crux of the contemporary argument. Anyway, never mind me: Here are excerpts from Katz's piece:] ...Moreover, the arguments put forward for same sex marriage -- issues of privacy, consensuality, discrimination, civil rights, personal love and humanity, practical necessity for mutual care -- easily overcome the vague principles suggested as barriers to such things as incest and polygamy. This is true for the simple reason that almost none of the barriers -- with the exception of parent/child incest -- has self-evidently, or even arguably (in some cases), better foundation than maintaining the link between marriage, procreation, and child rearing. Sure, a marital relationship would violate a sibling relationship, and even just the possibility of the former would have detrimental effects on the latter. But if marriage is only a public concern because it encourages stability and takes on some of the responsibility for mutual care -- and if it is not the homosexual sex act, itself, that the government is encouraging via SSM -- then it is difficult to see why a sibling relationship, in which the government currently expresses no, or minimal, public interest, couldn't simply be strengthened into a marital relationship. Dr. Rosenberg writes: "I should also note that it is possible to view the right to marry as a right as more of a right to designate someone as kin. Under this view a person wishing to marry kin is not being unjustly denied this right since they are already related." As it happens, more rights and responsibilities accrue to "marital kin" than do to biological kin. The right being denied, therefore, is the right to designate a person as a kin of primary mutual responsibility. In short, while "role conflict" may be sociological and anthropological concern, the gay marriage debate, by its very approach, has stressed the public policy and legality concerns. ... My objective with this post is not to argue that, if gay marriage is allowed, then polygamous or incestuous marriages ought to follow. It is also not to suggest that I disagree with Dr. Rosenberg's reasoning. However, the bottom line is that, if I can find these legal holes -- without recourse to bookshelves of laws and legal precedent from which to pick and choose quotations -- then some lawyer, somewhere, certainly can do much better. more posted by Eve at 2:01 AM | link 0 comments
THE NEW REPUBLIC'S GLENN EASTERBROOK ON SSM
...Though Easterblogg favors gay marriage, it's hard to see why the citizens of Massachusetts should not be allowed to vote yea or nay on the subject. Judges should not make law; for gay-marriage supporters to oppose a Massachusetts popular vote on the question is anti-democratic. And so far essentially all commentary about the Massachusetts gay marriage ruling has concerned the benefits of marriage. The decision of the Massachusetts Supreme Judicial Court (granted its name, apparently, by the Department of Redundancy Department) focuses on benefits, asserting that the denial to gays of the credit, Social Security, and other benefits granted to married heterosexuals constitutes unequal protection under the law. But marriage also conveys the reverse of benefits: financial and personal obligations to children, legal involvement in the debts of spouses, restrictions on freedom. In Massachusetts the gay-marriage argument sounds distressingly like an entitlements spat--we demand more benefits! There should be equal emphasis on the commitments and duties gays would accept by marrying. more posted by Eve at 1:35 AM | link 0 comments
WHAT IS MARRIAGE FOR? David Blankenhorn replies to Andrew Sullivan
...Andrew Sullivan wants to redefine marriage to include gays and lesbians because he wants to feel differently about himself -- he wants to know deep down, and to have society confirm to him, that he has equal dignity. That's it. That's the point. In fact, that's the only point. It's an argument worthy of attention and respect. Maybe changing marriage in the way he demands would give him the feelings of dignity that he seeks, maybe it wouldn't. I don't know. But at the same time, human societies did not create the social institution of marriage -- did not create marriage laws or build marriage-supportive cultures -- so that everyone can feel that they have dignity. That's just not why have the thing. In order to figure out why it exists and why we have it, we simply have to deal with Andrew never deals with -- we have to deal with what he here dismissively calls "theories of marriage." Theories of marriage? That's another way of saying, "marriage." But Andrew does not know, or even care or even pretend to know, anything about that subject. To him, clearly, it's not even the issue. To me, it's the main issue. Not the only one, but the main one. more posted by Eve at 1:32 AM | link 0 comments
THE NEW QUEER FAMILY: The Village Voice
[This was printed a while ago. Sorry for the delay...--Eve] ...In her late twenties, Beth decided she was ready to have kids. She met Phillip Hernandez and discovered that he and his partner, James Slayton, longed to have children, too. They joked about doing it together, and one day the conversation turned serious. The three drew up a formal agreement that was not legally binding but would serve as a framework for this family for the next 18-plus years. They now have two sons, 3 1/2-year-old Zander and 17-month-old Nicholas, and another son on the way. The boys are each biologically related to one of their dads, but Beth thinks the distinction isn't important and balks when people ask her to clarify. Part of their agreement was that the three would live together and find a house with enough space to accommodate a future partner for Beth. She would stay home and take care of the children while Phil and Jim, both psychiatrists, would continue to work, providing most of the financial support. ... Parents who are not lovers often raise their kids together, but it's rare to find them doing it in the same household and even rarer for this kind of living situation to be planned before a baby is conceived. While it's easy to describe a child as a son or a daughter, no language exists to explain the relationships between Beth and her sons' fathers. She is not a surrogate; they are not sperm donors. They are a family, and their relationship lies at the intersection of friendship, kinship, and partnership. ... Co-parenting while cohabiting may be the exception to the rule in the LGBT community. It took me months to find just three of these families. But the men and women I spoke to said there were innumerable benefits to this kind of living arrangement. Sharing a household can create more financial resources and give children more time with adults who are deeply invested in their well-being. It also creates a unique bond between gay men and lesbians who, because of their kids, make a long-term commitment to one another. "They're not people I have intimate relationships with," Beth says of Phil and Jim. "But my relationship with them is as intimate as anyone with a significant other who is raising children together. I absolutely consider them family." ... While none of the families I spoke to have been involved in a legal squabble, their structure remains legally fragile. In New York State, second-parent adoption by a same-sex partner is possible but complicated. A non-biological parent in a three- or four-adult family would experience difficulty if his or her relationship to the child were challenged. more posted by Eve at 1:29 AM | link 0 comments
THE NEW CASE FOR MARRIAGE: The American Prospect
...Yet heterosexual marriage, and the gender divisions it seems to promote, is by no means entirely revolutionized. Indeed, with "welfare reform" and its penalizing of single mothers, pressure on "deadbeat dads," and the Bush administration's heterosexual-marriage promotions, the U.S. government tries to force women and men back into traditional matrimony. What needs explaining is why, under such circumstances, women of various ages and sexualities are finding more to say in defense of marriage -- and why some feminists, like me, are even fighting for it. ... Then one day over lunch, a friend made a shocking list of the benefits that "straight marrieds" like me automatically get and do not appreciate -- which she could not get and would have valued properly. She hurled them forth almost as if they were my fault. Spousal and child support. Joint tax benefits. Joint property ownership. Her midlife list emphasized medical and bereavement leave, and the right to inherit a spouse's pension. Her rage at the system -- or maybe at my insouciant ignorance -- was simply overflowing. Her list was dramatically long, and could have been a lot longer still. According to the Freedom to Marry Coalition of Massachusetts, marriage provides more than a thousand legal rights and responsibilities to heterosexuals. A few years later, a niece of mine who had exchanged pretty gold rings with her female partner in a private ceremony became a mother when her partner gave birth to twins. My niece had to adopt her children to become their legal guardian. (My husband would not have had to do that if I had been artificially inseminated.) ... ...Like my niece, I like having a fixed starting date in order to be able to say "39 years" meaningfully. I think people who want a little sentimentality deserve access to it. Like various lesbian and gay friends, I enjoy the resonant language of the past, which is far more poignant now that it has been shorn of its patriarchal enforcements and hypocrisies. ... Meanwhile, sighing over these troubles, I sometimes think, OK. Gay, lesbian, bisexual, transgender, and straight women in midlife or old age, younger women who do not want to have children, all those likelier to achieve equality for themselves with their partners -- let them marry if they wish. But as for young straight women who want to live with men and who care about equality and who also want children -- until the revolution comes, they would do well to be a little wary. more posted by Eve at 1:24 AM | link 0 comments
FRISCO'S RAY MOORE: Best of the Web Today
Wall Street Journal editorial blog: "Gavin Newsom, the new mayor of San Francisco, is defying the California Constitution, which voters amended in 2000 to codify the definition of marriage. At Newsom's order, the Associated Press reports, 'city authorities officiated at the marriage of a lesbian couple Thursday and said they will issue more gay marriage licenses.' "Well, this sort of thing has happened before, most recently when Roy Moore, then chief justice of Alabama's Supreme Court, refused to remove a Ten Commandments monument from the courthouse grounds despite judicial rulings that the monument's presence was unconstitutional. Moore was removed from office for defying the law. What will happen to Newsom?" here posted by Eve at 1:16 AM | link 0 comments
WEEKLY STANDARD PRO-FMA EDITORIAL
IN AN ACT OF ASTONISHING SELF-RIGHTEOUSNESS and self-congratulation, the Massachusetts Supreme Judicial Court has forced the question of marriage upon the entire United States. A dozen legal battles stand between the Massachusetts court's dictate for one state and the legal redefinition of marriage in the rest of the nation. Each of these battles is important, and each must be fought. But they are, to a large degree, merely holding actions and last-ditch attempts to use some courts to limit other courts. Short of an all-out balance-of-powers fight between the branches of the Massachusetts state government, there will be legal same-sex marriages in the United States in three months--and directly afterward, we will have court cases in every other state demanding recognition of Massachusetts's licenses. Judicially ordered homosexual marriage has arrived for the entire nation, however much Americans might have hoped to avoid the question, and immediate intervention at the highest level of national law is necessary if we want to stop it. ... Some opponents of homosexual marriage have objected that the amendment is too weak and the first sentence purely verbal, doing nothing to preserve the actual institution of marriage. But when the assault on marriage is definitional in its essence--when courts are forcing legal recognition of homosexual unions by redefining the word "marriage," as though by calling a cat a bird they could make it fly--the correct response is, in fact, a definition. The framers of the Constitution did not envision that the nation's judges would need instruction in the meaning of the word "marriage," but since they do, an amendment is necessary to give it to them. Meanwhile, some supporters of homosexual marriage have argued that the amendment's second sentence bans civil unions and prohibits state legislatures from granting privileges to any human relation other than marriage. This is manifestly wrong: Every sponsor of the bill is on record as denying it--and conservative critics are vociferating against the amendment precisely because it doesn't outlaw civil unions. The second sentence is directed at courts, stripping from them the power to compel homosexual marriage by appeal to other constitutional provisions. Insofar as the amendment affects legislatures, it merely requires them to specify the benefits they wish to give to relationships outside marriage--which is what civil-union legislation ought to do in the first place. more posted by Eve at 1:14 AM | link 0 comments
SAN FRANCISCO SSM: Clashing perspectives from two supporters of SSM
Prof. Jack Balkin: "Given that the mayor's stunt will almost certainly fail legally in the short run, is it a wise strategy in the long run? Yes, because the push is coming from an elected official and not from a court. Even if courts guarantee same sex couples the right to marry, that right won't be fully secure until lots of public officials support the practice. Right now a significant number of national politicians support civil unions, but not very many are on record as supporting same sex marriage. To be sure, one might expect that the Mayor of San Francisco would be among the first politicians to push hard for same sex marriage. But even if his action doesn't sway lots of people in California, or the nation as a whole, it's an important start." Eolianbeck: "This is not civil disobedience. It's government organized lawbreaking. The government organized is key here--if the mayor of San Francisco has taken it upon himself to issue licenses against state law, what's to stop the Mayor of Chickensfeet, Iowa from not issuing them when, someday, he has the legal right to? This whole thing stinks of municipal rebellion, something that *never* ends well. The SF thing is not a Rosa Parks-esque stand for recognition, it's a figurative power challenge to state authority, something that gives me *hives*. Something remarkably similar happened after the civil war, and it was for that exact reason that it took African-Americans over a century to get things like the vote and actual legal recognition, even though they'd been promised those things by states and the federal government alike. ... "Like I said, it is cool. It has become a rallying point and a source of hope for many. And partly my lack of wholehearted pleasure at this stems from the fact that I genuinely believe full legal rights is inevitable at this point. It will happen, it's just a matter of when and how long and ugly the fight will be. ...But the precedent, and the way it was done? *shakes head*... "Bottom line: It's illegal, and it really isn't the mayor of San Francisco's job to do this, and there's a really good reason for that. And everyone who is trumpetting the glory of civil disobedience and American individual power would also be screaming about illegality and fucking power mad mayors if this were a case of a mayor refusing to issue licenses. This sort of thing is only glorious, is only justified, when it's done for the side you agree with, and that right there is the heart of my problem." posted by Eve at 1:12 AM | link 0 comments
FMA DRAFTING ISSUES: Prof. Jack Balkin
[Not exactly an unbiased source, but these posts are very much worth your time--Eve.] The Washington Post reports that the proposed Federal Marriage Amendment, which I have discussed here, is so poorly drafted that even the people who wrote it disagree about its meaning. What is particularly remarkable is that some fairly prestigious legal talent-- including Judge Robert Bork, Professor Robert George of Princeton and Professor Gerald Bradley of Notre Dame-- was involved in drafting the FMA. Yet the language is so shoddy and confusing that I would probably flunk a student who submitted it in a final exam question. (And if you know anything about Yale Law School's grading system, that's saying a lot!). The Post story explains that the drafting was done by a committee rather casually, without much concern for precision, and in order to satisfy various conservative constituencies. Some of the drafters believed that the language banned both same sex marriages and civil unions, others believed that it banned only same sex marriages, and still others believed that it prevented courts from holding that civil unions were required by federal or state constitutional law but did not prevent legislatures from creating such unions by statute. In 1987 the Senate didn't think that Bork could be trusted to interpret the Constitution as a Supreme Court Justice. I must say that this episode does not speak well for his skills at drafting a constitution either. here posted by Eve at 1:07 AM | link 0 comments
OHIO GOVERNOR'S STATEMENT ON SIGNING STATE DOMA
I signed House Bill (HB) 272, the Defense of Marriage Act, into law today. Because the effects of this Act have been misunderstood and inaccurately portrayed in the media, it is important for me to state my reasons and to explain what the Act does and does not do. First and foremost, this is not a law of intolerance. I do not endorse, nor does this law provide for, discrimination against any Ohio citizen. The singular purpose of HB 272 is to reaffirm existing Ohio law with respect to our most basic, rooted, and time-honored institution: marriage between a man and a woman. Marriage is an essential building block of our society, an institution we must reaffirm. At a time when parents and families are under constant attack within our social culture, it is important to confirm and protect those environments that offer our children, and ultimately our society, the best opportunity to thrive. One child welfare organization has concluded that "research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage. … There is thus value for children in promoting strong, stable marriages between biological parents." Moore, Kristin A., Jekielek, S.M., Emig, C., "Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do About It?" Child Trends Research Brief, June 2002, p. 6. It is necessary for us to act now to safeguard Ohio's marriage laws because the Massachusetts Supreme Court, by a 4-3 vote, redefined marriage in that state, holding that a denial of marriage licenses to same-sex couples was a violation of the Massachusetts Constitution. Just this week, that court affirmed its decision, requiring the Massachusetts legislature to allow "marriages," not civil unions, between same-sex partners. As a result, Ohio could have same-sex couples who were "married" in Massachusetts taking legal action in Ohio to recognize that marriage and to obtain the resulting benefits. ... Even as HB 272 reaffirms Ohio's marriage laws, it does nothing to diminish benefits or rights currently enjoyed by non-married domestic partners in our state. Specifically... [list follows] ... more posted by Eve at 1:01 AM | link 0 comments
REPUBLICAN POLICY COMMITTEE PAPER ON SSM
Maggie Gallagher writes: I thought, with the Washington Post reporting that Bush is just about to endorse an FMA, some of you might be interested in this as a windows into ideas circulating among GOP elites on this. If anyone wants to send me the Democatic equivalent, I will post. (Funny, the Dems don't send their strategy memos to me!) ------------------------------------------------------------------------------------------ Here is the new RPC Paper, Judicial Activism Forces Same-Sex Marriage on Nation -- Same-Sex Marriages Legal in Massachusetts on May 17. This brief paper provides highlights the two recent opinions of the Massachusetts high court and how the reality of same-sex marriage in Massachusetts will affect other states. For more information on this issue, see the RPC's earlier paper, The Threat to Marriage from the Courts. posted by Eve at 12:53 AM | link 0 comments
HUNDREDS OF GAYS RUSH TO WED IN S.F.: From Reuters
A judge on Friday refused to stop hundreds of gay couples from getting married at San Francisco's City Hall in defiance of California state law, thus guaranteeing that the weddings would continue into the Valentine's Day weekend. State Superior Court Judge James Warren said he could not issue a temporary restraining order to halt the same-sex marriages because there was not enough evidence presented showing that immediate damage would be done by allowing them. He added that the lawsuit brought by the anti-gay-marriage Alliance Defense Fund required a 24-hour notice to the San Francisco attorney's office, which was not given. Warren emphasized he did not rule on the merits of the case, which ADF attorney Robert Tyler called an example of "municipal anarchy." The court is scheduled to meet again on Tuesday. ... "We found out from our friends yesterday afternoon and flew up from Los Angeles last night as soon as we could. We've waited 13 years for this," said Wendy Higgins-Goodell, 45, holding the daughter her partner Tristan, 34, gave birth to last fall via artificial insemination. more posted by Eve at 12:49 AM | link 0 comments
ANTI-SSM SUITS IN SAN FRANCISCO: From the Associated Press
Opponents of gay marriage filed suit Friday to stop an extraordinary act of ongoing civil disobedience in San Francisco, where under the direction of newly elected Mayor Gavin Newsom, the city has begun issuing marriage licenses to gay couples in defiance of state law. Weddings appeared likely to continue through the long holiday weekend despite efforts by the Campaign for California Families and the Alliance Defense Fund to obtain a temporary restraining order that would prevent the city from granting more licenses. A Superior Court hearing was being held Friday afternoon on an injunction request filed by the Arizona-based Alliance Defense Fund. The organization represents state Sen. William Knight, author of a ballot initiative approved by voters in 2000 that defined marriage in California as a union between a man and a woman. Around the country, gays and lesbians emboldened by San Francisco's move and by the constitutional debate over gay marriage in Massachusetts went to courthouses Thursday and Friday demanding their own marriage licenses -- and getting summarily rejected, since every state in the nation bans gay marriage. The "National Freedom to Marry Day" protests have been held every Feb. 12 since 1998. But in San Francisco, with the mayor's blessing, the county clerk has issued more than 150 marriage licenses to same-sex couples, and counting. Many of the weddings have taken place in quick civil ceremonies inside the ornate City Hall, with their marriages recorded immediately thereafter in the city assessor's office. City Hall planned to remain open for more marriages Saturday in observance of Valentine's Day. ... The opposition groups want a Superior Court judge to order the county clerk not to issue any more licenses to same-sex couples, to void any licenses that have been granted, and to require city officials to abide by the rules that govern changes in law. ... Around the country, other gay and lesbian couples were turned away by court clerks as Thursday's National Freedom to Marry Day protests continued into Friday. more posted by Eve at 12:47 AM | link 0 comments
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