THE CASE FOR GAY MARRIAGE: The Economist

SO AT last it is official: George Bush is in favour of unequal rights, big-government intrusiveness and federal power rather than devolution to the states. ...

The case for allowing gays to marry begins with equality, pure and simple. Why should one set of loving, consenting adults be denied a right that other such adults have and which, if exercised, will do no damage to anyone else? ...If homosexuals want to make such marital commitments to one another, and to society, then why should they be prevented from doing so while other adults, equivalent in all other ways, are allowed to do so?

The reason, according to Mr Bush, is that this would damage an important social institution. Yet the reverse is surely true. Gays want to marry precisely because they see marriage as important: they want the symbolism that marriage brings, the extra sense of obligation and commitment, as well as the social recognition. Allowing gays to marry would, if anything, add to social stability, for it would increase the number of couples that take on real, rather than simply passing, commitments. The weakening of marriage has been heterosexuals' doing, not gays', for it is their infidelity, divorce rates and single-parent families that have wrought social damage.

But marriage is about children, say some: to which the answer is, it often is, but not always, and permitting gay marriage would not alter that. ...

...Moreover, to establish something short of real marriage for some adults would tend to undermine the notion for all. Why shouldn't everyone, in time, downgrade to civil unions? Now that really would threaten a fundamental institution of civilisation.

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posted by Eve at 2:19 AM | link 0 comments

SSM AND DIVORCE: Elizabeth Marquardt

My friend told me about an elevator conversation yesterday. A colleague started a conversation about Bush's endorsement of a constitutional ammendment and asked my friend what he thought. He told him. The colleague replied that he didn't see why people were getting so upset about SSM; if they wanted to save marriage, he said, they should worry about divorce.

Similarly, my mayor, Richard Daley, said last week in support of SSM that those who are bothered by it should "look in the mirror" and look at the divorce rate.

To all of them I say, welcome to the marriage movement. Interestingly, some of those who just months ago would have feared saying something negative about our divorce rate (who wants to look like a right wing conservative, after all?) suddenly are willing to bash divorce when the topic of SSM comes up. Great. If they're concerned about divorce I have many suggestions about what they can do to help out. In the meantime, they might consider that at least some and perhaps many of us who are worried about SSM have *also* been worried about and working on the problem of divorce long before these family issues hit their own radar screen.

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also here
posted by Eve at 2:17 AM | link 0 comments

MORE VOLOKH ON FMA (that would be Prof. Eugene Volokh.)

I've argued before that the FMA might end up being interpreted even to ban legislatively or popularly enacted state civil union statutes. (I also have some other objections, but the democratically created civil unions point is the one that seems to have interested the most people.) Someone asked what I would think of a modified version that would strike "state or federal law," and would thus read:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any State shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

As I mentioned in a related post on Monday, such a change would largely take care of that particular objection. State legislatures and state voters would thus be allowed to enact a state civil unions statute, and state courts and executive officials would then be free to construe the law to require that certain benefits be conferred upon unmarried couples (which is what the law would by its terms command). That's good: State voters and legislators should be free to make their own decisions about civil unions, unconstrained by a federal constitutional mandate.

Courts might still strike down any hypothetical future state constitutional amendments that explicitly call for civil unions (for the same reasons that I originally gave as to state statutes), and that's a legitimate theoretical objection even to the revised version. But since statutory civil unions are politically much more likely, and would be allowed under the revised version, it's not that much of a practical objection.

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posted by Eve at 2:14 AM | link 0 comments

EIGHT QUESTIONS FOR ANDREW SULLIVAN: David Frum

On his website today, Andrew Sullivan proclaims his support for the concept that a same-sex marriage license issued in Massachusetts could be void in the other 49 states. That would be a welcome compromise, especially if the Massachusetts courts ever managed to persuade the voters of Massachusetts to approve their judicially imposed social experiment--but let’s first test Andrew with some practical questions that follow from his idea.

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posted by Eve at 2:12 AM | link 0 comments

SULLIVAN, ROUSSEAU, AND SSM: John Coumarianos

...Second, what is so interesting about Sullivan's defense of gay marriage is the romantic or Rousseauian view of marriage in which it is grounded. This is a view of love and marriage based on sexuality out of which more serious or "spiritual" things grow. This view has arguably failed the institution it sought to sustain, and Burke basically called it pornographic. Rousseau did his best to prevent the breakdown of marriage in the wake of the individualism of Hobbes and Locke. He was right to notice their neglect or thin discussions of marriage and the potential for the disintegration of the family. But he approached the subject (as he did all others) from the same "ontological" basis that Hobbes and Locke did (the state of nature teaching), and it is doubtful that this approach, leading to the modern notion of romantic love, ultimately succeeded in supporting marriage. Romantic love, by itself, may be just to weak to support marriage.

When Sullivan isn't trying to wax poetic on romantic love and the pleasures of domestic life, he relies on a kind of liberal argument that homosexuality is the same as heterosexuality and should be treated as such politically. Sullivan unfairly compares racist bigotry and the opposition to interracial marriage to an unwillingness to elevate homosexual relationships to the same or equal status as heterosexual marriage -- as if an aversion to a certain skin color is the same as trying to distinguish between and rank serious activities, some of which produce children. To seek to distinguish between the two acts and the meanings implied by them is to risk incurring the brand of bigot from Sullivan. But we should resist this kind of terror tactic seeking to stifle thought and promote closed-mindedness.

...As long as children need their fathers, both economically and otherwise, the heterosexual family remains a special institution. ...

Obviously, there is too much here to include in a blog post. But one wonders why Sullivan argues so strenuously that heterosexuality and homosexuality are simply the same. His is a willful attempt to deny inquiry into the larger meanings of the acts. We live in an amazingly tolerant country. To push tolerance of homosexuality, however, to "sameness" as heterosexual marriage in the eyes of the political community is both utopian and corrosive of honest discussion around the meanings of man's deepest longings.

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posted by Eve at 2:06 AM | link 0 comments

REVOLUTION BY FIAT: Charles Krauthammer

Not again. We are the only Western country to have legalized abortion by judicial fiat rather than by democratic approval of the people or the legislature. Are we going to do it again with gay marriage?

We know what short-circuiting democracy does. Thirty years after Roe v. Wade, abortion still brings masses of demonstrators into the streets. Roe v. Wade, Ruth Bader Ginsburg once said, "halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue."

A similar "reform direction" on homosexuality has been underway for years. There is no doubt that increasing tolerance of homosexuality, reappraisal of marriage and common sympathy for fellow citizens would have led inexorably to the spread of civil unions (which I favor) -- and, as they became customary and were evaluated in the light of experience, perhaps to broad acceptance of gay marriage as well.

Instead, the courts have once again been commandeered to impose a revolution from on high. ...

Wedge? Marriage has been around for, oh, 5,000 years. In every society, in every place, in every time it has been defined as an opposite-sex union. Then four robed eminences in Boston decree otherwise. With the stroke of a pen, they radically redefine the most ancient of all social institutions. And then those not quite prepared to accept this undebated, unlegislated, unvoted, unnegotiated revolution are the ones accused of creating a political wedge! ...

I welcome the debate on the constitutional amendment because it will shift the locus of this issue from unelected judges to where it belongs: the House and the Senate and the 50 state legislatures. In the end, however, I would probably vote against the amendment because for me the sanctity of the Constitution trumps everything, even marriage. Moreover, I would be loath to see some future democratic consensus in favor of gay marriage (were that to come to pass) blocked by such an amendment.

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posted by Eve at 4:56 PM | link 0 comments

NEW PALTZ MAYOR CONDUCTS SSM's: From the Associated Press

NEW PALTZ, N.Y. -- Twenty-one gay couples exchanged wedding vows on the steps of village hall Friday in a spirited ceremony that opened another front on the growing national debate over gay marriage.

As the ceremonies by 26-year-old Mayor Jason West were ending, the state Health Department asked the attorney general to seek an injunction "to prevent further illegal conduct by the mayor," a department spokesman said. ...

The ceremonies came a day after the state Health Department said New York's domestic relations law does not allow marriage licenses for same-sex couples. It said a clerk issuing such a license or anyone solemnizing such a marriage would be violating state law.

Department spokesman William Van Slyke said the department was requesting the injunction and also wants the attorney general's office to find the same-sex marriages in New Paltz "null and void."

West and some legal experts said they read the law differently.

"For a marriage to be legal in this state all that's required is for it to be properly solemnized by someone with authority to do so," West told the CNN cable network early Friday. "I'm fully able to do that." ...

Plattsburgh Mayor Daniel Stewart -- New York state's first and only openly gay mayor -- said he will not perform same-sex marriages.

"I believe in changing the law, but I don't believe in breaking the law in order to change it," said Stewart, a Republican.

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posted by Eve at 4:30 PM | link 0 comments

LEGAL CONFUSION OVER GAY MARRIAGE: From the Washington Post

Not since the 19th-century fight over polygamy in the Utah Territory and the mid-20th-century struggle over interracial marriages has there been so much legal confusion and contention over who is married and who is not in the United States.

The thousands of same-sex couples married in San Francisco in recent days are lawfully wedded in the eyes of the mayor but not in the eyes of the governor. The courts still have not decided.

The same-sex couples married last week in Sandoval County, N.M., cannot cross into any bordering state and be recognized as wed.

What was a theoretical debate over same-sex marriage is simply because of the introduction of actual same-sex married couples. Even if state courts void the weddings performed in San Francisco and Bernalillo, a wave of unquestionably valid marriages is expected beginning in May, when Massachusetts will comply with an order from the state's highest court to recognize same-sex unions.

As a result, the proposed constitutional amendment to ban same-sex marriage would not only prevent future weddings -- it would dissolve marriages that already exist.

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posted by Eve at 4:28 PM | link 0 comments

THE NEXT CIVIL RIGHTS MOVEMENT? Jonathan Rauch

[Eve notes: Rauch wrote this a few weeks ago, in reply not to our question here but to this piece in the Massachusetts Patriot-Ledger. Just FYI.]

I agree that the black civil rights struggle will always be the civil rights struggle in America, in the sense that it was unique: a more comprehensive fight to eradicate a greater evil than any other movement for full civic inclusion. Thank goodness there is no exact parallel. And, yes, being gay, like being Jewish or Catholic, has behavioral elements, which being black or female does not.

But is it offensive to see important resemblances, as well as important differences, between black and gay civil-rights efforts? That's going too far.

Gay people are forbidden by law to serve our country in the military. Even many military personnel these day will tell you that the ban isn't necessary or even particularly useful. It's about dislike of gay people and an aversion to serving next to them. Sound familiar?

Gay people are forbidden by law to marry anyone we love. Many people believe that this ban is crucial to keeping marriage in one piece, but I don't think it is. Here the parallel to black civil rights is admittedly more strained, because no one ever thought that integration would redefine the schools. But it's a very severe hardship to be deprived of marriage and of any reasonable legal substitute for marriage (which would not entail "redefining" marriage, by anyone's lights). Indeed, after abolition, African Americans could always marry at least each other.

Until a few months ago, in many states gay people were forbidden by law to carry on loving sexual relationships in their own homes. What could be more far-reaching or more demeaning? No one ever tried saddling any other group with that prohibition.

And then there is the terrorism. Thugs routinely commit assault to keep homosexuals in their place. For many years, this was taken lightly by the police--whom the victims were often afraid to seek help from. Who else, in America, has known the fear that a broken skull might be the price of casting a "wrong" look or kissing the "wrong" person on the street?

So clearly gay people's efforts to bear adult burdens and enjoy adult prerogatives--marriage above all but not only--is a civil rights struggle: one comparable to earlier struggles for religious toleration (remember what happened to the Mormons in America?) or for women's right to vote and own property independent of their husbands.
posted by Eve at 3:55 PM | link 0 comments

THE NEXT CIVIL RIGHTS MOVEMENT? Michael Triplett

I am not conviced that gay marriage is "the" civil rights issue of our times, nor do I find the protests of African American ministers very impressive. So count me as a neither.

You are correct that the civil rights movement provides the "language" for describing social change over the last 50 years. That language, however, often fails to really capture present-day situations and I think the battle for SSM is not really a civil rights battle akin to Dr. King. I believe it is a complex equality issue but it is not built on the remnants of slavery and true oppression. That's not to underplay the levels of homophobia or intolerance in our society, but instead to say that they are different with one
not necessarily "more oppressive" than the other. They are just different.

On the other hand, I am not terribly impressed or surprised that African American churches have joined the "amen choir" against SSM along with other social conservatives. African American churches come from the same fundamentalist, evangelical, and charismatic traditions that produced Pat
Robertson, Jerry Falwell, and most of the social conservative movement. While their social politics may have been different, the messages have been very similar. Therefore, it is no surprise that white social conservatives
have co-opted African American ministers into their social agenda because they have shared the same social agenda for decades. They just don't share the same pews.

The relationship between African American churches and the gay community has always been strained. African American ministers have long preached that homosexuality would destroy the Black family and that homosexuality is a sin. This line of biblical preaching is best understood in the context of the AIDS epidemic in the African American community. While African American ministers were preaching gays would destroy the Black family, AIDS ravaged the African American community. Barely a word was spoken about compassion and tolerance and AIDS while the disease moved from African American men to African American women. Like Nero fiddling while Rome burned, African American churches continued to preach about the sins of homosexuality while their congregations dwindled because of AIDS. In the late 90s, I spent a number of years working in AIDS services. I saw a parade of African American men who proudly declared they got AIDS from drug addiction and not from being gay, even though their medical histories showed that sexual transmission from infected men was clearly the mode of
transmission. These men, who were also having sex with women, were unwilling to acknowledge their AIDS because of the messages they received from their own churches. Being gay was a "white" thing that they could never discuss with their ministers, who preferred to ignore the existance of
African American gays.

So no one should be surprised by the fact that African American ministers have jumped on the bandwagon against SSM. As for their moral authority, that's another deeper, more complex question.
posted by Eve at 3:51 PM | link 0 comments

THE NEXT CIVIL RIGHTS MOVEMENT? Gabriel Rosenberg

Eve Tushnet asks whether the fight for equal marriage rights is "the new civil rights struggle." No, it's the same struggle. It's a struggle to ensure that one's legal rights do not depend on race or sex. It's a struggle to recognize that we are all first and foremost human beings. Representative John Lewis, a true civil rights leader who spoke at the 1963 March on Washington, recognizes this. Last October he wrote in the Boston Globe:

"We hurt our fellow citizens and our community when we deny gay people civil marriage and its protections and responsibilities. Rather than divide and discriminate, let us come together and create one nation. We are all one people. We all live in the American house. We are all the American family. Let us recognize that the gay people living in our house share the same hopes, troubles, and dreams. It's time we treated them as equals, as family."

This recognition of common hopes, troubles, and dreams lies at the core of the civil rights movement. In 1969 Representative Shirley Chisholm, another great leader in the civil rights struggle, gave a speech on the floor of the US House introducing the Equal Rights Amendment. She explained why discrimination against women persisted:

"The unspoken assumption is that women are different... The fact is that a woman who aspires to be chairman of the board, or a Member of the House, does so for exactly the same reasons as any man. Basically, these are that she thinks she can do the job and she wants to try."

Today we see the same argument used to try to prevent same-sex marriage. People claim same-sex couples are different than opposite-sex couples. They say marriage is designed only for straight couples and that gays and lesbians are trying to marry for the wrong reasons. They see gays and lesbians as something different, something other. Their relationships are not worth the same amount of respect or dignity. People should and will realize, though, that same-sex couples share the same dreams. They want to get marrried for the same mix of reasons. They too want to protect their families. They too could use some help in caring for them.

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posted by Eve at 3:48 PM | link 0 comments

CALIFORNIA AND ALTERED MARRIAGE FORMS: Lynn Gazis-Sax

'"California has a standard application form for marriage licenses, and if
it has been altered in any way, then it will not be registered and recorded. It will be sent back to the county of origin,' said Nicole Evans, spokeswoman for Kim Belshe, the California Health and Human Services secretary."

I should have thought of this. Quakers were actually running into this altered marriage license issue, at the time I got married (in a Quaker wedding), because some Meetings were submitting marriage licenses altered to not say that anyone was performing the wedding (because we believe that is done by God). There was an alternative to a marriage license, which could be used by Quakers, but a lot of the local recording offices didn't know about it (we had to get our state senator's office involved to convince our local office that, yes, we really could legally marry the way we intended, and there was even a special form for it). The law got simplified (as far as Quakers are concerned) that year, shortly after we married.
posted by Eve at 3:42 PM | link 0 comments

CONSTITUTION-AMENDING: Marty Keller

[Marty Keller is a former president of the California Log Cabin organization.]

David Benkof writes: "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 disingenuous and unfair. Had SSM proponents turned to legislatures or the initiative process rather than courts, we would have had a much more democratic process."

One of the maddening ironies of democratic discourse is the predictable interchangeability of arguments among proponents of various debate outcomes. Is there any sentient being out there who doesn't think that the Gore and Bush people would easily have swapped arguments if Gore had had a 427-vote lead at the end of the first Florida canvass instead of the President?

So, too, with the SSM debate. "Conservatives" who would scream and holler if SSM supporters were proposing to amend the constitution to permit same-sex marriage are unironically attacking "liberals" for opposing their campaign! Mr. Benkoff finds this "disingenuous and unfair."

But, come on, friends. Minorities have always turned to the courts to seek redress against what they have perceived to be the tyranny of the majority. That's part of what they're there for! The Founding Fathers spent a lot of time at the constitutional convention worrying about this precise problem; the courts were established as an independent third branch of government precisely to deal with case like SSM where minorities allege deprivation of equal protection of the law. Is there any doubt that, had the Supreme Court not overturned Plessy v. Ferguson in the Brown decision, blacks in Arkansas would still be waiting for the majority to "approve" their rights to equal educational opportunities in the state government school system? Was the actual decision not truly, in the largest sense, the result of a "democratic process," one that reaches across centuries and binds us Americans together in a powerful philosophy of limited government that has served us, with one major exception in the mid-nineteenth century, well?

Opponents of SSM like Maggie Gallagher and Stanley Kurtz argue that the long-term consequence of permitting SSM (by any venue, by the way, judicial or legislative) will be the destruction of the deeply beneficial value that marriage has had for human society, with all the attendant horrors such unraveling would engender. But when proponents argue that solving this problem by constitutional amendment will have the long-term consequence of destroying the value and purpose of the Constitution, they are being "disingenuous and unfair."

I have one question for Mr. Benkof: Are you truly prepared to jettison the role of the courts in determining whether minority rights have been unconstitutionally abrogated by an unthinking or even prejudiced majority?
posted by Eve at 3:39 PM | link 0 comments

SSM AND CONSTITUTIONAL LAW: Matt Taylor replies to Ben Bateman

Ben Bateman writes: "Most of those who support SSM like the idea that a constitution is an amorphous super-law that trumps the will of the people and that can only be understood by liberal judges. On this view, constitutional issues are the ones that are so important that the hoi polloi can't be trusted with them."

Sadly, this statement is correct. Could it be that liberals support judical power only because the current batch of judges tend toward liberal views, and that conservatives oppose judicial power for the same reason? It would be interesting to see how liberals and conservatives alike would react if the shoe were on the other foot. What if, for example, an "activist" conservative judge ruled that abortion is capital murder (since unborn babies are entitled to constitutional equal protection)?

The current state of SSM, abortion, and other "social issue" controversies shows that our system of government is in need of repair. American democracy is not well-equipped to answer fundamental questions of law to the satisfaction of its citizens, perhaps because our system of checks and balances has not kept pace with the social changes of the last 200+ years. In the more socially stable era of the founders, it was possible to craft broad constitutional principles with a clear understanding of their ramifications, thus it made sense to give courts the last word in the fairly straightforward task of constitutional interpretation. This is no longer the case.

Today, the social landscape is changing so quickly that the law is frequently confronted with problems never envisioned by its authors. In these cases, no obvious resolution is offered in existing law -- any conclusive decision requires courts to go beyond mere interpretation, and is therefore an act of policy-making. No wonder that judges appear to be "legislating from the bench"; they are in a catch-22, forced to interpet the law's intention in unforseen situations where the law had no intention at all.

One solution is to give the people, or their elected representatives, a direct voice in resolving cases that challenge the assumptions implicit in law. Not all cases brought to court need this kind of intervention, probably only a very tiny minority, and such decisions should require large supermajorities, so that legitimate minority interests cannot be trampled by a malicious majority. We do have two such instruments already, constitutional amendments (or conventions) and judicial impeachment, but both are too unwieldy to resolve difficult cases in a practical, timely manner. We need a more flexible, streamlined process by which cases of fundamental importance can be decided democratically.
posted by Eve at 3:34 PM | link 0 comments

DEMOCRATIC SSM? Ben Bateman replies to Mark Barton

Mark Barton claims that SSM opponents have "completely lost the battle for public opinion among the younger generation," and that the move to constitutionalize marriage is a devious conservative plot to retard democracy by making it harder for future legislatures to democratically enact SSM.

It's good to hear that an ardent SSM supporter is also a big supporter of democracy. Will he will join the majority of Americans in opposing the flagrantly anti-democratic pro-SSM maneuvers of the Massachusetts Supreme Court and the mayor of San Francisco? Will he support democracy today and confidently wait for the supposedly pro-SSM youngsters to mature and choose SSM democratically? Or is legalizing SSM more important to him than democracy and rule of law?
posted by Eve at 3:32 PM | link 0 comments

CHANGING THE DEFINITION OF MARRIAGE: Frank Elliott

[Frank Elliott is a scientist from San Diego.]

In fact, heterosexuals have changed the definition of marriage over the past 200 years. Far from being a social obligation connected to reproduction, marriage became conditioned on romantic and erotic love of two opposite sex partners. This change was a both a cause and effect of the elevation of the status of women.

Once the change in marriage happened it was no longer ethical for a (predominant) homosexual to marry a heterosexual partner of the opposite sex.

The change to love marriage inevitably created a class of people defined by their lack of suitability to marriage, namely those who are exclusively homosexual in orientation. Orientation became an identity.

Ultimately, the marriage debate is about civil rights, particularly the rights of women to be treated as equals rather than chattel.

Presumably, you have no problem with this change in the definition of marriage.
posted by Eve at 3:31 PM | link 0 comments

ADOPTIVE SIBLINGS IN AUSTRALIAN COURT BATTLE TO MARRY: From Yahoo! News

A West Australian couple who are brother and sister by adoption but unrelated by blood are battling a federal law preventing them from marrying.

Kevin and Deborah Jefferies have been in love for at least 10 years and wish to get married, but under the Federal Marriage Act 1961--which prevents brothers and sisters from marrying--their relationship is taboo.

The couple became siblings on paper when their parents married and Kevin's father adopted Deborah and her sisters.

"There's so many people who can get divorced so easily--we can't even get married to start with," Kevin told Channel Seven.

"If you love somebody you marry them ... it's more than just a piece of paper." ...

Although Deborah, at 17, refused Kevin's first proposal fearing it would upset their parents, the couple only formally discovered they were forbidden from marrying one another after Deborah fell pregnant with their first child.

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posted by Eve at 3:21 PM | link 0 comments

MARRIAGE-NOMINALISM: Donald Sensing

...What the two sides of the same-sex marriage are doing is arguing from two different understandings of what make a thing a thing, or what makes marriage marriage. The "pro" side seems to me to be arguing from the nominalist side, that marriage has no reality in the abstract apart from married couples themselves. Hence, objections from traditionalists that calling the same-sex couples in San Francisco married does not make them so is met with derision from the pro side. In their view, calling them married is exactly what does make them married.

OTOH, most traditionalist arguments I've seen seem to cleave to the Universalist line, that marriage has a definition--that is, a reality--independent of persons who are married. Marriage, truly to be marriage, must conform to this Universal. If not, it is not even a decent imitation and does not share in the Universal reality of marriage.

I tend toward a Conceptualist position. "Marriage" is not simply the name given to any relationship between adults, but only to certain kinds of them. As ordained by God or evolved through millennia (take your pick) there are certain characteristics and behaviors that marriage partners have always exhibited in common.

The Conceptualist advantage is that it does not require every example to conform to the abstraction in every detail, as the Universalist position does (its real weakness as an argument), and as the Nominalist position holds as irrelevant. ...

All of which is to say that the accidental characteristics of marriage--love, affection, property and other rights--spring from what marriage is rather than define what marriage is. Therefore, whatever relationship homosexuals may have with one another, and whatever legal rights civil authority may confer upon them, marriage is inherently--indeed, metaphysically--the province only of men and women united in matrimony.

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posted by Eve at 3:20 PM | link 0 comments

CONSTITUTIONALITY OF ADULTERY LAWS: Dappled Things blog

In the Commonwealth of Virginia, if a person enters into a state-sanctioned marriage and then violates the fidelity pledged in that state-sanctioned marriage, it is a crime. There's a consistency to this: if the marriage institution is so fragile and vital to society that the state must regulate it and establish all sorts of laws to protect it and to benefit those who enter into this contract (a point which remains to be proved), then it is also in the interest of the state to punish people who violate the contract. A naughty Virginia attorney was convicted of just such a crime last year and now is contesting the constitutionality of adultery laws.

"A Luray, Va., attorney who was convicted of adultery last year believes that Virginia's criminal adultery statute is unconstitutional and has turned to the American Civil Liberties Union for help in appealing his case.

"John R. Bushey Jr. will argue that the U.S. Supreme Court's ruling last year striking down anti-sodomy laws also should apply to adultery, said Kent Willis, executive director of the ACLU in Virginia. ..."

This will be an interesting case to watch. It's really about much more than Bushey's private right to sleep around: he has publicly asked the government to recognize a life-long marriage between him and his wife, has made promises before a representative of the government to remain faithful to his wife, and has accepted tax perks and legal benefits from the government because of his status as a married man. It seems as if he wants to have his cake and eat it, too.

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posted by Eve at 2:19 PM | link 0 comments

THE PRESIDENT'S MARRIAGE VOW: Chicago Tribune editorial

...The shame in all this is that the U.S. has been on a course toward greater acceptance and legal recognition of gays and lesbians. That process has been all but tossed aside as the country erupts in a cultural war that most Americans don't particularly want and certainly don't need.

Gays and lesbians have the right to equal protection under the law, as all citizens do, and should not be denied legal rights and protections offered to other citizens. How to define and protect those rights, though, should be a matter for the state legislatures.

The view here is that the legislatures should be encouraged to provide those rights and protections by adopting laws that recognize civil unions. ...

This page firmly opposes a constitutional amendment to define marriage as the union of a man and a woman. Were such an amendment to be adopted, it would render moot a process of debate and decision-making that the American public, through their legislatures, must be permitted to have in the years ahead. The U.S. Constitution is a precious document that sets out the rights of its citizens; it is designed to retain power in the hands of its citizens. It has not been and should not be used to block a public debate over how to define those rights and exercise that power.

Yet those who were outraged by Bush's announcement on Tuesday must remember this: The president wasn't spoiling for this fight. Until now he had avoided an endorsement of the campaign for a constitutional amendment on marriage. The events of recent weeks have forced the issue.

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posted by Eve at 2:11 PM | link 0 comments

FMA WOULD STRIKE A BLOW FOR FREEDOM: Mary Ann Glendon

...There is a real problem of distributive justice here. How can one justify treating same-sex households like married couples when such benefits are denied to all the people in our society who are caring for elderly or disabled relatives whom they cannot claim as family members for tax or insurance purposes? Shouldn't citizens have a chance to vote on whether they want to give homosexual unions, most of which are childless, the same benefits that society gives to married couples, most of whom have raised or are raising children?

If these social experiments go forward, moreover, the rights of children will be impaired. Same-sex marriage will constitute a public, official endorsement of the following extraordinary claims made by the Massachusetts judges in the Goodridge case: that marriage is mainly an arrangement for the benefit of adults; that children do not need both a mother and a father; and that alternative family forms are just as good as a husband and wife raising kids together. It would be tragic if, just when the country is beginning to take stock of the havoc those erroneous ideas have already wrought in the lives of American children, we should now freeze them into constitutional law.

That philosophy of marriage, moreover, is what our children and grandchildren will be taught in school. They will be required to discuss marriage in those terms. Ordinary words like husband and wife will be replaced by partner and spouse. In marriage-preparation and sex-education classes, children will have to be taught about homosexual sex. Parents who complain will be branded as homophobes and their children will suffer.

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posted by Eve at 2:09 PM | link 0 comments

NEW MEXICO CLERK REBUKED FOR ISSUING SSM LICENSES: From 365Gay.com

The clerk of rural Sandoval County was hauled onto the carpet Monday and publicly chastised by the Country Commission for giving marriage licenses to same-sex couples last week.

Victoria Dunlap, acting on the advice of the county lawyer, issued 66 licenses to gay couples before the Sheriff's department on orders from New Mexico's Attorney General moved in and shut down the office.

As reported first by 365Gay.com Friday Attorney General Patricia Madrid, a Democrat, said the licenses "would be invalid under current law." Dunlap was ordered to appear before the commission to explain her actions. Dunlap initially had said she would not attend the commission meeting. But changed her mind to tell commissioners she had agreed not to issue any more same-sex marriage licenses and would offer refunds to those who received licenses. Dunlop said the whole issue of same-sex marriage and New Mexico law needs to be addressed by a court.

But, about three minutes into the meeting Commissioner Jack E. Thomas accused her of flaunting her power and of having "trampled the emotions of everyone in Sandoval County." With that Dunlap walked out.

After she left commission chairman Daymon Ely apologized to the county's citizens for the pain she allegedly caused. "I'm sorry this county clerk so trivialized this issue and hurt so many people," he said. Commissioners refused to hear from dozens of gay and lesbian couples showed up to tell commissioners how grateful they were for the chance to get a marriage certificate--even if it wasn't legal.

But Dunlop is unrepentant. After walking out of the meeting she recorded five of the marriage licenses that had been stopped by the Sheriff on Friday, but did not issue any new licenses.

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posted by Eve at 2:05 PM | link 0 comments

GROWING NUMBER OF GAY COUPLES SUE FLORIDA: From 365Gay.com

A lawsuit challenging Florida's ban on same-sex marriage has grown to include 175 gay couples. The suit was officially filed today in Fort Lauderdale court.

As reported first by 365Gay.com on Monday, the suit was announced by attorney Ellis Rubin on behalf of a Fort Lauderdale couple who were denied a marriage license Since then the number has grown steadily and today, when Rubin filed the suit many of the couples accompanied him to Broward County Court.

Florida's Defense of Marriage Act not only forbids gay marriage but also prevents the state from recognizing civil unions.

A spokesperson for Gov. Jeb Bush said he doubted the validity of the suit, suggesting it was little more than a publicity stunt. "The governor believes marriage should be between a man and a woman," spokesperson Jacob DiPietre said. "We've had a law on the books in Florida since 1977 banning gay marriage and the governor took an oath of office to uphold the laws of the state."

Several Florida cities and counties, including Broward, recognize certain aspects of domestic partnerships. The partners of civil servants in Broward are eligible for health insurance.

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posted by Eve at 2:03 PM | link 0 comments

CALIFORNIA'S ATTY. GENERAL SEEKS STATE SUPREME COURT RULING: From the Associated Press

Facing increased pressure to intervene in San Francisco's same-sex marriage debate, California Attorney General Bill Lockyer said he'll go directly to the state Supreme Court to try to resolve the deeply divisive issue.

"The people of California who have enacted laws that recognize marriage only between a man and a woman, and the same-sex couples who were provided marriage licenses in San Francisco deserve a speedy resolution to the question of the legality of these licenses," Lockyer said late Monday.

Lockyer said he would ask the state's highest court on Friday whether San Francisco's issuing of same-sex marriage licenses violates state law, which designates marriage as only between heterosexual couples. The announcement from Lockyer, a leading Democrat and potential rival to Gov. Arnold Schwarzenegger in the 2006 election, also was an attempt to stave off criticism from Republicans, who have been upset at the reluctance of the state's top lawyer to enter the debate. Schwarzenegger ordered Lockyer on Friday to "take immediate steps" to get a court ruling to make the city stop the gay weddings. More than 3,200 same-sex couples have been married since San Francisco Mayor Gavin Newsom decided to give out the licenses Feb. 12.

San Francisco officials had already filed their own lawsuit with the state Supreme Court, arguing that California's prohibitions on same-sex marriages are unconstitutional.

The Supreme Court is not required to take either case, and could decide to wait until the issues get worked out in the lower courts before they are ripe for a hearing.

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posted by Eve at 1:59 PM | link 0 comments

MORE ON JURISDICTION-STRIPPING, a.k.a. Can't we just say the Supreme Court doesn't get to impose same-sex marriage?: Sasha Volokh

A note on jurisdiction-stripping: About Eugene's post below, whether a statute can deprive the Supreme Court of jurisdiction is actually not clear. ...

But various commentators (see Hart, 66 Harv. L. Rev. 1362 (1953); Ratner, 109 U. Pa. L. Rev. 157 (1960)) argue that there's an implied condition in the Constitution that Congress can't negate the Court's "essential constitutional functions of maintaining the uniformity and supremacy of federal law" -- a theory that could deny Congress power to strip the Court of jurisdiction in a particular class of cases like abortion cases, Pledge cases, DOMA cases, and so on. ...

So, the Constitution says Congress can make "exceptions" to the Supreme Court's jurisdiction, perhaps suggestion that any exceptions are O.K.? The Supreme Court's last word is either "anything goes" (1869) or "some jurisdiction stripping is unacceptable" (1871), and aside from that, all we're left with are some reasonable-sounding arguments from academics.

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posted by Eve at 1:44 PM | link 0 comments

NEW QUESTION: THE NEW CIVIL RIGHTS STRUGGLE?

San Francisco mayor Gavin Newsom is today's Rosa Parks. Same-sex marriage is this generation's interracial marriage. Opponents of SSM are fighting the same kind of bigoted battle as the opponents of desegregation--and will be viewed, by their descendants, with the same shock and disdain.

That's one story of the relationship between the SSM movement and the black civil rights movement. Mark Riordan makes that case here: "When bigotry-based lawmaking was all the rage during the earlier part of last century, race mixing, at least for marital purposes, was seen as being so immoral that 31 of 48 states criminalized it to protect, you got it, the sanctity of marriage."

Adrian Walker writes: "It's sad that the black clergy, such a powerful voice in the civil rights movements, cannot view gay marriage as part of that movement."

But there's another story, a counternarrative. Debra J Saunders calls Newsom "Rosa Parks--not."

Dick Richardson, political affairs director of the Black Ministerial Alliance of Boston, writes: "We have found that every child has an innate need to connect with a mother and father. Children instinctively seek a connection to both halves of the human race."

The reasons for these two clashing narratives aren't hard to discern. Racism has always been the American trauma--the founding sin--and so there's a tendency to map every kind of human difference onto race. The civil rights movement has one of the most honored legacies in American political life. We are trained to view restrictions based on difference with deep suspicion.

But at the same time, the black community is struggling to deal with an enormous problem of father absence. Black leaders, especially clergy and family groups, see the recovery of black fatherhood and the black family--mom and dad married with kids--as one of the most pressing issues facing the community. Many view SSM as a change that would destabilize that norm, downgrading the importance of fathers and delinking marriage and parenthood; and so, far from being the next civil rights battle, the push for SSM appears as a grave threat.

Who is right?

Click the link below to join the debate! Please include a brief, one-line bio (or let us know if you find it necessary to post under a pseudonym).
posted by Eve at 5:49 PM | link 0 comments

THE TRAUMA OF MONOGAMY: David Kuner replies to Jonathan Katz

I am intrigued by the idea of "de-centering the notion of monogamy" inherent in marriage. But of course, being a man, it's in my nature to hope for such things to be possible. It is the perennial dream of men to have their cake and eat it too. It is my wife who is sensible enough to remind me that I can't do this...which is one of the many, many reasons that men need women. Monogamy may indeed be a great struggle in many respects--I agree with Jonathan Katz there. But it is a struggle toward a greater purpose which has its own unique rewards. It would be a terrible mistake, a grave error, to do away with it in the context of marriage.
posted by Eve at 5:28 PM | link 0 comments

SSM AND CONSTITUTIONAL LAW: Ben Bateman

Most of those who support SSM like the idea that a constitution is an amorphous super-law that trumps the will of the people and that can only be understood by liberal judges. On this view, constitutional issues are the ones that are so important that the hoi polloi can’t be trusted with them.

To most SSM opponents, that idea is not merely wrong, but absurd. A constitution--understood as a literal written document--must be voted on by the people's representatives just like any other law, and it must be interpreted in accordance with the intentions of those who voted for it, just like every other law.

Blaming an SSM diktat on a constitution is pure deception. The Massachusetts Constitution has nothing to say about SSM, and those who voted for it certainly didn’t intend it to say anything about SSM. The issue only becomes constitutional in the minds of those who use the phrase "constitutional law" to mean "imposing law against the will of the people."

SSM is not about constitutional law. It's about the extent to which our courts view our laws as based on the consent of the governed instead of the wisdom of the self-anointed. It's an issue as old as government: A powerful minority tries to impose its laws on the people against their will. In most times and places, this has resulted in revolutions every few generations, because government without the consent of the governed is inherently unstable.

We've been lucky in this country that American government has been quite stable by historical standards because its fundamental principle has been that the people ultimately determine their own laws. But we've seen that principle erode rapidly in the past few decades, with Roe v. Wade and forced school busing as notable milestones. With SSM, the people are again told that the government isn't interested in their opinions. Their moral betters will decide the issue.

That approach to government has a long and bloody history. Many a monarch has used the same anti-democratic arguments as the pro-SSM crowd to justify ignoring what the majority of the people want. The people are ignorant, insensitive, and morally suspect! This issue is too important for them to vote on! There lies the path to despotism.

Let's hope that our judges learn history’s lesson: No short-term policy victory is worth jeopardizing the government’s long-term stability.
posted by Eve at 5:25 PM | link 0 comments

WHY THE CONSTITUTION? Patrick Hart replies to David Benkof

David Benkof writes that those of us who support SSM should have "turned to legislatures or the initiative process rather than the courts" and that, given that gay rights supporters did use the courts to win marriage rights, anti-SSM activists have no choice but to amend the Constitution.

Fair enough. I'm a strong supporter of SSM and while I'd love to see it adopted by a popular majority, I also believe it to be a fundamental right that the courts ought to enforce if the majority won't. I'm sure anti-SSM activists feel just as strongly about their position and so I cannot blame them if they want to amend the Constitution (though I believe the proposed amendment to be wrongheaded and discriminatory).

Here's a question for Benkof, though: if you want the SSM issue to be decided through the legislative process, why not just support an amendment that would ban only the judicial imposition of SSM and leave marriage decisions entirely to legislatures? I believe Ramesh Ponnuru proposed something like this recently. The proposed FMA denies state legislatures the right to make their own decisions about marriage, which is just what Benkof accuses SSM supporters of doing! Would Benkof or any other SSM opponent support a constitutional amendment denying courts the ability to impose SSM but letting legislatures do what they want about SSM (and/or civil unions)? For the record, I'd oppose such an amendment, but if your concern is that the issue be decided by the legislative process, wouldn't such an amendment do the trick?
posted by Eve at 5:18 PM | link 0 comments

CALIFORNIA WILL REJECT ALTERED MARRIAGE FORMS: From the Washington Times

The California state agency that records marriages said yesterday that forms that have been altered, which San Francisco has done on its homosexual "marriage" licenses, will not be registered.

California has a standard application form for marriage licenses, "and if it has been altered in any way, then it will not be registered and recorded. It will be sent back to the county of origin," said Nicole Evans, spokeswoman for Kim Belshe, the California Health and Human Services secretary.

The more than 2,600 homosexual couples who have been "married" since last week with the help of San Francisco city and county officials have been crossing out "groom" and "bride" as printed on the standard application and writing in phrases such as "Applicant #1" and "Applicant #2" or "spouses for life."

None of these forms will be accepted, Ms. Evans said yesterday.

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posted by Eve at 5:17 PM | link 0 comments

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

If I understand him correctly, Mark Barton at least agrees that the Massachusetts justices treated marriage as a social construct. Far from rendering my argument irrelevant, the assertion of the justices that "the government creates civil marriage" illustrates a key element of my argument. It is highly anachronistic to think that the drafters of the marriage statues from 1639 to 1834 (that are referred to in the decision) thought of themselves as making a social construct. Given the mentality of the time, they could only have thought of themselves as regulating the natural reality of marriage. By what right do the justices substitute their philosophical view of the nature of marriage for that of the legislators?

Mark Barton asserts that "it's readily conceivable that marriage could be a social construct without gender also being one." For myself, I can't see how. However, if we allow his assertion for the sake of argument, it follows that there is no intrinsic connection between gender and marriage. In that case, what is the purpose of the gender difference among humans? Rather that trying to answer this question, I would like to make a few comments on it.

First, let readers note that this is a philosophical question. My original contention, which I reaffirm, is that the Massachusetts decision depended more on philosophy than on law. No "plain reading" of Massachusetts law could arrive at SSM without first substituting one philosophical worldview with another.

Second, note what happens to marriage. Marriage, disconnected from gender and from children, becomes a toy of fashion, rearranged to fit the mood of the moment or, as in this case, the whim of four justices. If marriage is a social construct, then there are literally no limits to the ways it can be changed. The philosophical shift necessary to the introduction of SSM is also necessarily a tremendous weakening of the institution of civil marriage.
posted by Eve at 5:15 PM | link 0 comments

DEFINED BY OPPOSITES: Craig A. Cardon

Not long ago, I saw a young boy learning to ride a bike. His parents watched proudly, as he peddled for a moment, then lost control, careening off the sidewalk into the adjacent gravel and collapsed, crying, with a scraped knee. What happened next you've probably seen a hundred times: Mom rushed to his side and took him in her arms to comfort him. His father bent down and with a steady voice said, "OK, son. Now get up and try again."

Compassion and courage. Femininity and masculinity. Human beings need both. What the boy learned that day goes far beyond the riding of a bike. He learned something about men and women by the way a mother and a father demonstrate love. The very core of his human identity was being shaped as he experienced different gender interactions with his mom and dad.

Human beings learn who they are by experiencing themselves in relation to others who are the same sex and those who are the opposite sex. Children's young minds are in particular shaped to understand the world this way, in black and white first, before they learn of the possibilities for shades of grey. The particular sex roles of a culture may vary (although women do more of the care of young children than men, and men are warriors, in every known culture). But human beings are born with an innate longing to experience their gender as socially significant. Which means children long to know themselves not just as people, but as boys and girls who will grow to be men and women.

Why is marriage in every known culture the union of opposite sexes? The need to reproduce the next generation plays a big role, obviously. But within the first few years of life another deep social need surfaces: "For the child searching for the meaning of his embodiment, both the same-sex-as-me parent and the opposite-sex-from-me parent play vital roles." [1] Attempts to create a sexless, androgynous or unisex culture are at war with the deepest need of the child. Single mothers learn that at a very tender age, a young child begins to ask, "Who is my Daddy?" Research suggests that children deprived of a satisfactory answer carry a longing to know with them far into adult life with statistically heightened risks for poorer consequences.

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posted by Eve at 5:10 PM | link 0 comments

IS MARRIAGE A RIGHT?: Sarah Bates

An earlier posting of mine claimed that same sex marriage necessarily either allows for incestous marriages or questions the validity of the entire question of marriage. Some responses were posted in reply, and I would like to reply to them.

FIrst of all, let me clarify that I do not actually want to marry my sister. I brought up the point partially because I was asked whether my sister was my lesbian partner when I asked whether I could insure her through my company's domestic partnership policy. (There is now a posted policy that prohibits blood relatives from bring claimed as domestic partners. Civil unions do not benefit individuals taking care of family members. Rather, they simply allow me to insure anybody but my family.)

Secondly, I would like to respond to accusations that I have insulted people with same-sex partners by claiming that my relationship with my sister is just as deserving of the same rights and responsibilities as a same-sex partnership. I'm not sure how this claim could be taken as an insult, since another person could not possibly know the depth of my love or committment for my sister. I'm forced to guess that my claim was perceived to be an insult because there is a feeling that a committed sexual relationship between two people is somehow inherently different than a commited, unsexual relationship between two people. (Could somebody let me know whether this statement is accurate?)

This confuses me. After all, the entire same-sex marriage movement is based on the argument that child-procreation is completely irrelevant to the question of marriage. How can a distinction be maintained so that sex is relevant, but child-procreation is not? I can understand setting aside my own interests in deference to relationships that create and nurture life. This makes sense from a societal perspective. However, I honestly don't feel that I have an obligation to set aside my interests (and those of my sister) simply so that other people can be sexually fulfilled.
posted by Eve at 5:08 PM | link 0 comments

WHY THE CONSTITUTION?: Mark Barton replies to David Benkof

David Benkof: 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.

Mark B.: To the extent that it's addressed to true believers on the anti-SSM side, it's certainly very presumptuous. There's no reason at all why anti-SSM advocates should unilaterally disarm if they think it's that important. On the other hand, it's still a perfectly legitimate political
argument, because the professed concern for democracy on the anti-SSM side is itself partly disingenuous. Individual anti-SSM advocates such as David may well be oblivious, but we know that key strategists for the
anti-SSM movement are only too well aware of the significance of the fact that they have completely lost the battle for public opinion among the
younger generation. We know that although no one will say it publicly, a constitutional amendment is being promoted as much or more to retard democracy in the future than to promote it now. Thus it's perfectly reasonable to remind people for whom democracy really is a paramount concern that, if they go along with this, the judgment of history on them
is going to be damning.
posted by Eve at 4:59 PM | link 0 comments

WHY THE CONSTITUTION? Matt Taylor replies to David Benkof

It is true that a constitutional change is the only realistic recourse to an unpopular Supreme Court decision (impeachment of justices is probably not palatable to most legislators); however, there are many constitutional solutions that could avoid the current dilemma (court-imposed SSM). Consider just a few possibilities:

- exclude marriage from the "full faith and credit" clause
- make defining marriage a sole power of state legislatures
or my own favorite...
- allow Supreme Court decisions to be appealed to Congress, and decided through an impeachment-like process.

Why haven't there been a greater variety of constitutional choices discussed? So far, the proposals floated by SSM opponents have all been
variations of the Federal Marriage Amendment -- an overly narrow and rigid approach for a document as fundamental as the US Constitution. If the underlying problem is unchecked judicial activism, then FMA is just treating the symptom ... it will prove useless when the next hot button social issue comes along, e.g. human cloning, legalized drug use, prosititution, etc. Wouldn't it be better to fix the legal process than just this one result of that process? For me the question isn't "Why the Constitution?" ... I get that part. The question is "Why the FMA?"
posted by Eve at 4:56 PM | link 0 comments

CAN'T WE JUST SAY "THE SUPREME COURT DOESN'T GET TO DECIDE THIS ONE"?: Eugene Volokh

JURISDICTION-STRIPPING: A reader mentioned to me that this issue has come up again -- some people are arguing that Congress should preserve certain statutes (this time, the Defense of Marriage Act, but in the past this has been suggested as to the Pledge, anti-abortion legislation, and so on) against Supreme Court invalidation by stripping the U.S. Supreme Court of jurisdiction to hear appeals in such cases. Is this constitutional, a reader asks? ...

True, the jurisdiction-stripping would at least confine the DOMA invalidations to those states where the supreme courts rendered such decisions; that's something DOMA supporters might appreciate. But my sense is that they won't be wild even about this result, especially since the alternative might be the Supreme Court's upholding DOMA on a nationwide basis. It seems to me that if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment (not the currently talked-about Musgrave draft Federal Marriage Amendment, which would go far beyond protecting DOMA) is indeed the first-best alternative, especially when it seems like it could well be politically plausible.

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posted by Eve at 4:44 PM | link 0 comments

CALIFORNIA CONTACT INFO

(San Francisco mayor Gavin Newsom; Governor Arnold Schwarzenegger; etc. For those so moved.)
posted by Eve at 4:32 PM | link 0 comments

FMA VOTE COUNT (to be updated)
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SF MAYOR REACTION: David Blankenhorn replies to critics

Here's an essay defending the mayor of San Francisco, who is issuing marriage licenses to SS couples in violation of state law. Here's an article from Slate ("San Francisco chooses the wrong way to flout the state") taking a different point of view.

Responding to an earlier post, several people have written in, saying that Mayor Newsom has a valid legal point, since he argues that the state constitution, which guarantees equal protection, is on his side. But this argument is invalid. The state constitution is silent on the issue, and existing state law on the matter could not be clearer. So, Newsom arguing that the state constitution supports his flouting of existing state law could literally be used by any official to justify any unlawful action. Want to arrest someone who you don't like? Want to disband the city council? Just say that in your personal opinion, what you are doing is supported by the constitution. It's a way of pretending to say something, when in fact all you are really saying is, "I am going to break this law."

The only valid way to contest the constitutionality of a state law is through the courts or through a referendum, not through selective acts of officially sanctioned law-breaking. And again, if Newsom is morally unwilling to enforce existing law while campaigning politically to have it changed, he should resign and fight for the change he seeks from outside the system, including through civil disobedience. If people of good will cannot agree that officials sworn to uphold the law should uphold it -- sorry, it won't work simply to shout, "the constitution let's me do it!" -- then we are in trouble.

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posted by Eve at 4:26 PM | link 0 comments

GAY DEMOCRATS ASK: EVER BEEN DIVORCED? From the Indianapolis Star

Claiming divorce -- not same-sex unions -- is undermining the sanctity of marriage, a group of gay Democrats on Monday asked state GOP Chairman Jim Kittle to identify Republican legislators who have been divorced.

The request comes as House Republicans are attempting to force a vote on a proposed constitutional amendment banning same-sex marriage. The amendment -- which Republicans last week called "the most important issue we're dealing with this session" -- was approved by the Senate but has been stalled in the House by Democratic leadership.

"We think it is fair to ask during this debate how many legislators who are demonizing gay marriage have actually committed the most grievous possible injury to the institution they claim to want to protect," said Linda Perdue, president of the Indiana Stonewall Democrats. ...

"Divorce is tragic, but it does not destroy the institution of marriage," said Miller, who noted he is divorced and has remarried.

"Legalizing same-sex marriage will destroy the institution of marriage."

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posted by Eve at 4:24 PM | link 0 comments

SSM AND RELIGION: David Blankenhorn

...Almost all leading advocates of SSM, including Andrew Sullivan and others who argue that SSM is just like Mom and Apple Pie and will in fact be a conservatizing influence on the society, seem to agree on this point: one of the main priorities must be, at least in some respects, to "break the grip" of religion on our society. That's part of the thesis. That is part of what is necessary to win this fight. The proposition is that we as a society, especially when we think about marriage, suffer from too much religious belief -- too much piety, too much faith, too much Bible-believing, and entirely too many I-take-religion-seriously people running around out there in "our secular democracy."

That attitude toward the role of religion in public life, and the resulting desire to "break" and diminish the public influence of religion, is clearly a part of the movement for SSM, both tactically and more deeply, at the philosophical level. I get it. It's just that, back to Andrew Sullivan and company, I find it hard to see what's so Apple Pie and conservative about this way of arguing and acting. And I know that I personally disagree with the thesis that one of the things wrong with the U.S. is that its citizens are too religious.

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posted by Eve at 4:22 PM | link 0 comments

GAY MARRIAGE, SAN FRANCISCO STYLE: Maggie Gallagher

Today President Bush announced his support for a constitutional amendment to protect marriage in the strongest possible terms. Meanwhile, in California, a majority of San Franciscans support gay marriage. And so, despite the fact that a few short years ago, a majority of Californians voted to define marriage in state law as the union of a man and a woman, the mayor of San Francisco decided he was above the law and ordered clerks to issue putative marriage licenses to same-sex couples.

Americans have a tradition of civil disobedience, in which ordinary citizens risk jail in order to affirm a higher moral law. But last week, for the first time, Americans were treated to the spectacle of a powerful politician charged with enforcing the law instead publicly flouting it for political gain.

And advocates for same-sex marriage patted him on the back for it. ...

Do you, the first applicant, take the second applicant to be a lawfully wedded applicant for 1049 federal benefits for the rest of your life?

It is a harbinger of things to come. All of the time-honored assumptions of marriage -- bride and groom, husband and wife, mother and father -- must be rewritten to accommodate a tiny fraction of the population who wants to form alternative families. When I suggested in a recent exchange with gay civil rights advocate Evan Wolfson that marriage was about affirming the ideal that both mothers and fathers matter to children, he denounced the idea as an "offensive proposition."

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

MY LESBIAN WEDDING in San Francisco.
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"EVEN LESS POPULAR GROUPS": Julian Sanchez

I tend to watch Crossfire for laughs, but right now I'm livid. Tucker Carlson just asked Human Rights Campaign president Cheryl Jacques why, for all the reasons she advances to support gay marriage, polyamorous groupings of three or more men or women shouldn't be recognized. Her brilliant, principled answer?

"Because I don't approve of that."

Oh. Because you don't approve of that. So then why, again, is a majority's nonsensical disapproval of your lifestyle supposed to be trumped by a principle of fairness? Why should anyone now take your fine language about equality and human rights seriously?

Look, I understand that for political reasons it might be prudent, right now, anyway, for defenders of gay marriage not to publicly acknowledge what a real principle of fairness here entails. I could've even, reluctantly, swallowed a dodge like: "Well, that's not at issue right now, and it'd be have to be considered independently." But this kind of BS answer takes the wind out of your sails pretty badly. If you're going to demand the equal treatment that is your right, then you ought to have both the empathy and the cojones not to buckle when the rights of even less popular groups are at stake.

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posted by Eve at 5:34 AM | link 0 comments

SULLIMANIA

As you might guess, Andrew Sullivan has been blogging up a storm on SSM today. Rather than give you fifteen posts from him, I will tell you what is there and say that you should really mosey on over to his main site. The main items are:

1) Selections from the over a thousand emails Sullivan has received since the President's announcement of support for the FMA. Start here and scroll.

2) "War is declared": "The president launched a war today against the civil rights of gay citizens and their families. And just as importantly, he launched a war to defile the most sacred document in the land. Rather than allow the contentious and difficult issue of equal marriage rights to be fought over in the states, rather than let politics and the law take their course, rather than keep the Constitution out of the culture wars, this president wants to drag the very founding document into his re-election campaign. He is proposing to remove civil rights from one group of American citizens--and do so in the Constitution itself. The message could not be plainer: these citizens do not fully belong in America."
posted by Eve at 9:01 PM | link 0 comments

SF REACTIONS: Stanley Kurtz

...Does anyone believe that the framers of California's constitution intended these provisions to have this effect? Could there possibly be a more blatant effort to override democratically expressed public opinion? If the public stands for this, there will never be limits to judicial activism again. ...

There's been a lot of commentary on how San Francisco mayor Gavin Newsom's flouting of the law is not nearly so bad as the conduct of former Alabama chief justice Roy Moore. Moore disobeyed a court order. But Newsom is still making his case, and has not been definitively ordered to cease by a judge. Yet Moore's defiance resulted only in a bit more time during which a memorial to the Ten Commandments remained where it was not supposed to be.

What Mayor Newsom is doing has much deeper social and legal consequences -- and is meant to have those consequences. Newsom is intentionally creating legal, political, and cultural facts on the ground designed to overturn current law -- both in California and beyond. Newsom is purposely trying to initiate legal challenges to state and federal defense of marriage acts. And he is doing this is two ways -- by encouraging copycat civil disobedience in other parts of the country, and by generating "married" couples who can file lawsuits, in California and beyond. Especially because he is creating couples who can file suits, Newsom's actions are far more disruptive and consequential than Judge Moore's. And the judges who have refused to swiftly shut down this obviously lawless action are equally to blame.

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posted by Eve at 8:40 PM | link 0 comments

SNARK: David Morrison

Second letter to the Corinthians, Chapter 11, Verse 2: I feel a divine jealousy for you, for I betrothed you to the Co-Applicant to present you as a pure Applicant to the unmarried person's one Co-Applicant.

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posted by Eve at 5:05 PM | link 0 comments

SURNAMES IN THE NEWS: Jack Balkin on FMA and civil unions... with a guest star

Bush Throws In The Towel, Says States May Enact Civil Unions

Here's the text of the President's endorsement of a constitutional amendment to ban same sex marriage.

Note carefully the following passage:

"The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage."

My friend Mark Tushnet who teaches at Georgetown University, remarked to me the other day that what is most remarkable about the debate over same sex marriage is that within a few year's time the moderate conservative position has now shifted from opposing all recognition of same sex partnerships to conceding that states may pass civil unions, as long as these are not called marriages.

Bush's statement confirms this. He is attempting to shape the issue in terms of what states may officially term "marriage," as opposed to preventing states from effectively giving same sex couples the bundle of rights enjoyed by married couples. This means that he cannot endorse the proposed FMA in its current form, because, as I have noted previously, it would also prevent states from passing civil unions or domestic partnership legislation. His strategy is to make the fight about semantics and symbolism rather than substance.

Because Bush wants to appeal both to his base and to moderate voters, this semantic strategy makes perfect sense. But it is well worth considering what he and other conservatives have given up in the process. The fact that Bush appears to have given up trying to prevent states from passing civil unions laws signals that the fight over same sex marriage has shifted ground decisively in favor of civil rights advocates and against the Christian right. The best that the Christian right can hope for now is a world in which some states have civil unions and others do not.

I suspect that some pundits will declare this to be a major offensive in culture wars. To me it looks like an admission of defeat.

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posted by Eve at 4:48 PM | link 0 comments

FMA ENDORSEMENT REACTIONS: Ramesh Ponnuru

uno: Andrew Sullivan asks me whether the FMA voids Vermont's civil unions or would void Massachusetts's civil unions if those are enacted. Those were (or will be) enacted by the legislature after a judicial edict. I'm afraid I can't give a fully satisfying answer. more

dos: Three things I found notable. 1) Supporters of an amendment have wondered whether the president wanted to use this as a base-rallier rather than to get it passed this year. He didn't have to say he wanted Congress to pass this amendment "promptly," and he did. 2) He is not trying in any serious way to make the case against same-sex marriage. He is trying to persuade people who share his opposition to it that a constitutional amendment is now required. 3) The don't-demonize-gays language will, we can expect, accompany every presidential statement on this topic. Most gays will not take much solace from it, and understandably so. I do think it is sincere. The president will not say, in public, something like hate the sin, love the sinner, but this is the same-sex marriage policy-debate equivalent. link
posted by Eve at 4:36 PM | link 0 comments

BEYOND POLITICS: Michael Graham

...When I asked the caller point blank if one had to be a "bigot" to oppose changing the definition of marriage, he said "yes" and that was that.

This, to me, is the atomic bomb of the pro-same-sex marriage forces, that there are no legitimate social or biological or historic reasons to keep marriage as it is. I get a sense from these advocates that they believe every fact and argument presented in opposition is mere euphemism for "hatin' them homos."

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posted by Eve at 4:32 PM | link 0 comments

FMA: CONVENTIONS OR LEGISLATURES? Eugene Volokh

[I don't know about the rest of you, but this stuff fascinates me.]

There are two ways that constitutional amendments can be sent to the states -- by a 2/3 vote in both houses of Congress, or by a convention called on the demand of 2/3 of the states. But there are also two ways that states can vote on the amendments: by a vote of the legislature or by a vote of a specially called state convention. Under the U.S. Constitution's article V, Congress gets to choose whether to call for ratification by legislatures or conventions.

What are the pluses and minuses of Congress asking that any proposed Federal Marriage Amendment be voted on by state conventions? As I understand it, only the Twenty-First Amendment (the repeal of Prohibition) was ratified that way. ...

So my very first, extraordinarily tentative thought is that if the polls show broad public support for the particular proposed Federal Marriage Amendment, then calling for ratification by conventions would probably increase the chances of the Amendment being enacted. The majority popular support should translate fairly well into a convention majority (subject to the complexities caused by the delegates being chosen on a district-by-district basis); and it should be harder for the minority to block this majority support. (You may well ask: If this is so, why haven't more amendments been submitted this way? I answer: I have no idea, which is why this is an extraordinarily tentative thought of mine; I might be completely wrong.)

On the other hand, if the polls show broad public support for the FMA, then calling for ratification by legislators would probably increase the political benefit to the party that most supports the FMA (likely the Republicans). If a pro-gay-marriage minority has enough power in, say, California to block the anti-gay-marriage majority's preferences, then it will do so by getting some Democratic legislators to vote against the views of their constituents (or at least in getting them to acquiesce in blocking any vote). This would be bad for the FMA's chances of passage, but good for Republicans' prospects of getting elected. (Possible caveat: If the Republicans generally benefit from talk about the FMA, and if a convention vote is more likely than a legislative vote to happen right around the general election, then conventions might be politically better for the Republicans.)

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posted by Eve at 4:25 PM | link 0 comments

BUSH ENDORSES FMA: Associated Press

Jumping into a volatile election-year debate on same-sex weddings, President Bush on Tuesday backed a constitutional amendment banning gay marriage -- a move he said was needed to stop judges from changing the definition of the "most enduring human institution."

"After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization," the president said in urging Congress to approve such an amendment. "Their action has created confusion on an issue that requires clarity." ...

Democrats accused Bush of tinkering with a document that is the bedrock of American democracy to divert election-year attention from his record — an allegation the White House denied. Sen. John Kerry, D-Mass., who hopes to run against Bush in this year's presidential election, said: "I believe President Bush is wrong." ...

Campaigning in Georgia, where the state legislature is debating its own ban on gay marriage, Sen. John Edwards, D-N.C., said he was against the president's idea of a constitutional amendment. "I don't personally support gay marriage myself," he said. "My position has always been that it's for the states to decide." ...

House Majority Leader Tom DeLay, R-Texas, said he appreciated Bush's "moral leadership" on the issue, but expressed caution about moving too quickly toward a constitutional solution, and never directly supported one. ...

However, California Republican Reps. David Dreier and Jerry Lewis said a constitutional amendment might not be necessary.

"I will say that I'm not supportive of amending the Constitution on this issue," said Dreier, a co-chairman of Bush's campaign in California in 2000. "I believe that this should go through the courts, and I think that we're at a point where it's not necessary." ...

...White House press secretary Scott McClellan said Bush believes that legislation for such an amendment, submitted by Rep. Marilyn Musgrave, R-Colo., meets his principles in protecting the "sanctity of marriage" between men and women. But Bush did not specifically embrace any particular piece of legislation in his announcement. White House officials have said that support for Musgrave's proposed amendment has been unraveling in the Senate.

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posted by Eve at 4:04 PM | link 0 comments

PROFILE OF MATT DANIELS: In the Atlantic Monthly

...Daniels often waxes lyrical about the virtues of traditional marriage--marriages of men and women, who become fathers and mothers--but he is describing a model that he himself experienced only briefly. ...

Intent on escape by his own means, Daniels won a scholarship to Dartmouth. But after graduation he found himself back in his old environment: his mother was dying of congestive heart failure, and he returned home to care for her. During this time he began searching for a spiritual mooring. He worked in a homeless shelter and in three soup kitchens, all run by black churches. The ministers welcomed him into their congregations, and it gradually dawned on Daniels that he had been born again. "That became a foundation for the rest of my life," he says.

Daniels had found not only religion but also a professional calling: helping the urban poor. In 1993 he entered the University of Pennsylvania law school on a scholarship conditional on his commitment to a public-interest career. For most people the public-interest path leads to liberal organizations. But Daniels grew increasingly averse to the liberal values of his professors. (On the first day of a family-law class a feminist instructor declared, "I would challenge anyone to show how the absence of men from families has any adverse effect on children.") After graduating, in 1996, he became the director of the Massachusetts Family Institute, the Boston outpost of the evangelical broadcaster James Dobson's growing empire.

At the institute one issue consumed Daniels: the importance of fathers. ...

Daniels's prescience about the re-emergence of the gay-marriage issue stemmed from his years in Boston, where, in addition to running the institute, he had earned a doctorate in politics at Brandeis University. In his dissertation he castigated the courts for, he contended, usurping the legislatures as the most important authors of social policy. In the course of his research he pored over countless law reviews, in which, he noticed, liberal professors had painstakingly built a jurisprudential case for gay marriage. He believed it would be only a matter of time before courts gave gay marriage their imprimatur. ...

But for all the obvious political virtues of the Daniels approach, it has one major flaw: conservative activists hate it. ...The leaders of nearly every major conservative activist group--James Dobson, the Reverend Jerry Falwell, and the former drug czar William J. Bennett among them--have banded together to create an anti-gay-marriage front: the Arlington Group. They have written their own constitutional amendment, which would ban both gay marriage and civil unions. Given this group's political heft, congressional backers of the FMA may shift their support.

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posted by Eve at 12:40 AM | link 0 comments

FMA: Ramesh Ponnuru

Let's, as the president would say, review the bidding on this. I favor a constitutional amendment that would block both the federal and the state courts from instituting same-sex marriage, civil unions, or from leaving marriage eligibility alone but extending some of its benefits to the unmarried. Such an amendment, I believe, would deserve the support not only of opponents of same-sex marriage but even of some supporters of it: supporters who believe that same-sex marriage would have greater acceptance in the long run if it were achieved legislatively rather than judicially, or who believe that it is wrong in principle for the courts to impose same-sex marriage however good an idea it might be, or who believe both things.

The great defect of this amendment is that, as far as I know, nobody but me has proposed it. What has been proposed is a constitutional amendment reading as follows: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." ...

...Almost all supporters of the amendment believe it allows the legislative creation of civil unions; all supporters believe that the second sentence of the amendment does (or would if the first sentence were rewritten).

This is precisely the assertion that opponents of the amendment have chosen to contest. In recent weeks, bloggers Andrew Sullivan, Eugene Volokh, and Jacob Levy have all argued, against me, that the "legal incidents" sentence blocks even legislatures from creating civil unions. Evan Wolfson, a leading activist for same-sex marriage, has adopted this argument. So has law professor Andrew Koppelman. ...

Levy accepts Volokh's points about the meaning of the amendment, but goes on to suggest that no possible amendment language could allow legislatures, but not courts, to create civil unions.

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Jacob T. Levy and Eugene Volokh reply.
posted by Eve at 11:28 PM | link 0 comments

LOOKS LIKE LIBERATION? Matt Taylor

I agree that the SF mayor is on the wrong side of the law; the recently passed CA ballot proposition on marriage is unambiguous. The mayor may lose his job over this, and that's probably what should happen to preserve the rule of law. On the surface, it looks like yet another elitist government official ignoring the people's will, much as the MA justices did in Goodridge. Mayor Newsom has even been compared to former AL Chief Justice Ray Moore (ugh!), the guy who wouldn't move the Ten Commandments monument.

But beneath the legal wrangling, in the realm of human relations that underlies the formalities of government, something seems very different. Seeing people line up for hours, even days to get married, hearing that drivers honk their horns in support as they pass SF City Hall, and musicians spontaneously serenade the couples as they wait in line, it has such a different feel than the activist-led events we've seen so far in the SSM controversy. The mood reminds me a little bit of the late-80's revolutions in Eastern Europe; OK, on a much, much smaller scale ...gay marriage isn't the Berlin Wall for crying out loud.

That's I guess what bothers me so much. What's transpiring now looks, smells and feels like liberation from an oppressor; here are ordinary people, long denied the freedom to go about the business of their lives, and celebrating now that they are finally free to do so. It's kind of a scary thought; if the people of San Francisco are oppressed, at least on this one question, then their oppressors are the people of the rest of California, and the rest of the US. People aren't supposed to be oppressed in a democracy, are they?

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posted by Eve at 11:20 PM | link 0 comments

MARRIAGE IN THE WESTERN WORLD: John Witte

...For nearly two millennia, the Western legal tradition has defined marriage as a heterosexual, monogamous union, designed for the procreation and nurture of children, the mutual help and companionship of husband and wife and the mutual protection of both parties from sexual sin. This definition of marriage has been woven deeply into the fabric of Western law, and is still reflected today in thousands of American laws.

The Western tradition has long taught that heterosexual monogamous marriage is good and does good both for the couple and for their children. Hebrew, Greek, Roman, Catholic, Protestant and Enlightenment writers alike have recognized the natural drive toward the institution of marriage because of the individual survival, flourishing, happiness and even perfectibility that it provides; and the natural longing for the unique combination of sexual, physical, economical, emotional, charitable, moral and spiritual bonds that become marriage.

The Western tradition has also long taught that stable marriages are good for the broader society. The ancient Greek and Roman Stoics called marriage "the private font of public virtue." The early church fathers called marital love "the seedbed of the city."

Catholics called the family a "domestic church, a kind of school of deeper humanity." Protestants called it a "little church," "a little state" and a "little seminary" in which one learns the norms and habits of proper citizenship.

American jurists and theologians taught that marriage is both public and private, individual and social, temporal and transcendent in quality -- a natural if not a spiritual estate, a useful if not an essential association, a pillar if not the foundation of civil society. At the core of all these metaphors is the enduring conviction that stable marriages and families are essential to the survival and happiness of the greater commonwealth.

History alone is not reason enough to maintain traditional marriage laws. But history must be an essential part of any serious arguments for the maintenance of traditional marriage. And the enduring traditional arguments about the origin, nature and purpose of marriage must be the starting point for any serious debate about the propriety of legalizing same-sex marriages. ...

Roe v. Wade taught us that on vital social issues, a rush to legal change without ample democratic ventilation will bring savage cultural and legal backlash. It is far too early in the debate to resort to constitutional brinkmanship to force change on a reluctant majority or to close doors to a resilient minority.

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posted by Eve at 11:18 PM | link 0 comments

REASONS FOR MARRIAGE: William Raspberry

It's all over the news: gay and lesbian couples lining up for marriage licenses; jubilant celebrations that homosexuals have shed another unfair disadvantage; opponents fearing the diminishing of the very concept of marriage and proposing to amend the Constitution to make same-sex marriages unlawful.

And this wry observation from David Blankenhorn: "The only way anybody is talking about marriage these days is in the context of same-sex marriage."

Blankenhorn heads the Institute for American Values, whose all-encompassing theme for the past decade has been the importance of marriage to the well-being of children. The irony of the present situation, he says from his Manhattan headquarters, is that most of the current debate hasn't really been about marriage at all.

"The debate is mostly between those who want [to legalize same-sex marriage] because they see it as part of their demand for equal dignity for gays, and those who don't for a host of philosophical and religious reasons," he said. "But for all the intensity of the debate, it doesn't take you very far down the road of discussing marriage." ...

But as Blankenhorn notes, much of the discussion has been a referendum not on marriage but on our attitudes toward homosexuality. He's hoping somehow to get the discussion back where it needs to be -- on marriage. He's even writing a book on the subject -- going back to the earliest anthropological studies of marriage.

"I'm all for the principle of establishing equal social justice," he said. "But that's not the reason human beings came up with marriage. I think we'd better review the reasons for marriage -- and ask ourselves which of those reasons are still relevant for the 21st century."

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posted by Eve at 11:11 PM | link 0 comments

THE TRAUMA OF MONOGAMY: Jonathan Katz on NPR

I'm also perhaps Pollyannaish enough to believe that we may, in fact, help move the state perspective on marriage by virtue of our inclusion towards a much broader, much more capacious view. I'm thinking even of the fact of monogamy, which is both one of the pillars of heterosexual marriage and perhaps its key source of trauma. Could it be that the inclusion of lesbian and gay same-sex marriage may, in fact, sort of de-center the notion of monogamy and allow the prospect that marriage need not be an exclusive sexual relationship among people? I think it's possible....I would never five years ago have defined myself as an advocate of marriage. In fact, the very institution smacked of precisely that which I lived my life in opposition to. But because it has cohered as perhaps the litmus test of civil rights now, because it carries real social benefits, and because I think it perhaps furthers the uncoupling of the state and the church in this country, which I thought was promised in our Constitution, then I'm all for it.

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I couldn't find a transcript, but you can get audio here if, unlike me, you have speakers connected to your computer.
posted by Eve at 11:05 PM | link 0 comments

NEW MEXICO COUNTY BEGINS ISSUING SSM LICENSES: From the Associated Press

A county clerk issued marriage licenses Friday to at least 15 gay couples, some of whom then exchanged vows outside the courthouse, and dozens more same-sex couples lined up for a chance to tie the knot.

A sign-up list at Sandoval County courthouse grew to 38 couples after county clerk Victoria Dunlap announced she would issue marriage licenses to same-sex couples.

Dunlap said she made the decision after county attorney David Mathews said New Mexico law is unclear: New Mexico law defines marriage as a contract between contracting parties but does not mention gender.

"This has nothing to do with politics or morals," she said. "If there are no legal grounds that say this should be prohibited, I can't withhold it. This office won't say no until shown it's not permissible."

Outside the courthouse, two preachers conducted marriage ceremonies.

"When we heard the news this morning, we knew we couldn't wait. We had to come down here," said Jenifer Albright of Albuquerque, who exchanged vows with partner Anne Shultz.

The move came just over a week after San Francisco began issuing marriage licenses to thousands of gay couples in a direct challenge to California law.

A spokeswoman said Democratic Gov. Bill Richardson was opposed to same-sex marriage.

"The governor has always been a champion for human rights. He supports equal rights and opposes all forms of discrimination. However, he is opposed to same sex marriage," said Marsha Catron.

Two New Mexico state senators -- one Democrat and one Republican -- asked Friday for an opinion from New Mexico Attorney General Patricia Madrid. A spokeswoman for Madrid said an opinion could be issued next week.

Republican state Sen. Steve Komadina criticized the county clerk and called for a prompt opinion from the attorney general.

"I feel badly that action was taken before an answer was obtained," Komadina said. "That was very irresponsible and will cause heartache to people on all sides of the question."

Bernalillo is a few miles north of Albuquerque, New Mexico's largest city.

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posted by Eve at 5:02 PM | link 0 comments