ROUNDUP OF SSM DEVELOPMENTS ACROSS THE NATION: From the Associated Press

Developments on the issue of gay marriage: --The Wisconsin Assembly on Friday approved a proposed amendment to the state constitution to prohibit same-sex marriages or civil unions after an all-night debate. The proposal must pass both houses of the Legislature twice and be approved by voters before it can take effect. --The Kansas House backed a proposed amendment banning gay marriages and benefits that associate marriage to other relationships. The measure now goes to the Senate, which could put it before voters in November. --The Idaho Senate killed a proposed constitutional amendment that would ban gay marriages. A state law banning gay marriage passed in 1996. --New Paltz, N.Y., Mayor Jason West postponed a second round of same-sex weddings planned for Saturday so he can consult with state Attorney General Eliot Spitzer next week. --Lawyers for San Francisco planned to file legal briefs Friday with the California Supreme Court in defense of gay marriage. The state and a traditional marriage group have tried to invalidate thousands of same-sex marriages sanctioned in San Francisco during the last three weeks.

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posted by Eve at 10:05 AM | link 0 comments

MARRIAGE AND BIGOTRY: Richard Heyduck

[Richard Heyduck is pastor of First United Methodist Church in Pittsburg, Texas.]

Mark Tardiff wrote: "The antimiscegenation laws which are often invoked are a much later addition to the common law tradition introduced because of increased contacts between the races. When the common law tradition of marriage as the union of a man and a woman was formulated no one had the foggiest idea that two people of the same sex would ever want to marry. How can marriage have been defined out of an alleged bigoted desire to keep certain people out when the supposed object of the bigotry was unimaginable?"

Our challenge seems to be that there has been a dual movement in our culture. First, the State has been crowding out (or swallowing up) the Public. Second, the Law has been doing the same thing to the customary. Some might say this is an inevitable consequence of our multicultral reality, but I'm not convinced. I'm more inclined to see it as an example of the reduction of our lives to two poles--the Individual and the State. Given the total Individualism which is the natural consequence of modernity, a strong and "neutral" state is required to level the playing ground and keep things fair. Any institutions that stand between these two poles (marriage, family, church, school, etc.) are seen as completely arbitrary and thus maleable to the ends chosen by Individuals. Those desired ends, now becoming enshrined as "Civil rights," lack any strong conception of a civitas for their coherence.
posted by Eve at 3:59 PM | link 0 comments

CONSTITUTIONAL RESTRAINT: Matt Taylor

In his reply to Ben Bateman, Mark Barton writes:

"Making marriage opposite-sex-only is a perfectly straightforward violation of the letter of the law: 'Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.' A man in Massachusetts can't marry a man because of his own sex--he is not equal under the law to a woman in that respect."

I agree with Mark that current Massachusetts law violates the state's constitution, since it offers no legal institution for same-sex couples. The proposed civil union statute, however, should have been recognized as constitutional by the court. Consider this sentence from the same article in the MA Constitution that Mark cited in his post:

"All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness."

Use of the term "civil union" rather than "marriage" does not infringe on anyone's pursuit of life, liberty, property, safety or happiness. The SJC, it seems, believes that unenumerated "natural, essential and unalienable rights" require use of their preferred vocabulary. This is the height of political correctness -- treating a good-faith use of certain terminology for one's social group as a terrible injury. I myself am gay, half of a same-sex couple of 9 years, and we couldn't care less whether our relationship is called "marriage," "civil union," or "chopped liver," so long as the substance of marriage is available to us under the law. I understand that many gay and lesbian couples feel passionately about this choice of words, but that feeling is not shared by all, and therefore the question must be resolved democratically.
posted by Eve at 3:56 PM | link 0 comments

CASE FOR A CONSTITUTIONAL AMENDMENT: John LeSueur

[John LeSueur is an environmental and natural resources attorney in Phoenix, Arizona.]

Here, as I see it, is our case for amending the constitution. (This is not, however, an argument that the FMA is the right amendment.)

Premise 1: Either the Massachussets Supreme Court and the mayors of several prominent cities accross the United States are right (the equal protection clause in their respective State constitutions requires them to recognize gay marriage) or they are wrong.

Premise 2: If a person thinks they are right, then that person should support gay marriage (at least in those states). (Note: it is at least theoretically possible for a person to argue believe that gay marriage is a constitutional right-by way of the equal protection clause-and yet believe that it shouldn't be a constitutional right. Such a person, will be an advocate for state or federal constitutional amendments.)

Premise 3: Almost all Democratic Politicians say they are opposed to same-sex marriage.

Preliminary Conclusion: Therefore, almost all democratic politicians must believe that the equal protection clause (both state and federal) does not create a right to same sex marriage.


Premise 4: If the MSJC and the mayors in several states are wrong, they are taking the law into their own hands instead of leaving the issue to the legislature.

Premise 5: If this state supreme court and these executive officials are taking the law into their own hands, they are depriving the people of their State of a Republican form of government.

Premise 6: The US Constitution guarantees the states a Republican form of government.

Therefore: The US Constitution should be amended in order to effectuate that guarantee.

Thus, I think it is inconsistent for a person to say that they don't support gay marriage, and yet say that they don't support amending the US Constitution in face of our current situation.
posted by Eve at 3:50 PM | link 0 comments

ORRIN HATCH'S FMA: Matt Taylor

I was just reading the text of the FMA proposal offered by Orrin Hatch:

"Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman."

It's not perfect, but it looks pretty darn good to me. States can still institute same-sex marriage (or civil unions) democratically, but cannot be required to do so by the actions of judges or other states. The second sentence could be improved by replacing "Nothing in this Constitution" with specific references to equal protection and full faith and credit, since the current language could be absurdly interpreted to refer to the previous sentence of the same amendment, or even to future amendments. Also, I still think it would be better to make a structural change to our system of judicial decision-making, to avoid future struggles over court-imposed "social issue" decisions.

But overall, Sen. Hatch's proposal seems livable, and much more democratic and flexible than the Musgrave amendment.
posted by Eve at 3:49 PM | link 0 comments

CBS POLL: MOST OPPOSE GAY WEDDINGS

According to a CBS News poll, most Americans oppose gay marriage--and opposition appears to be increasing.

However, support for a constitutional amendment rises and falls with the way that the amendment is worded. The issue seems likely to play a role in the fall presidential election, particularly for those who are opposed to same-sex marriages.

In a CBS News poll conducted immediately after President Bush endorsed a constitutional ban on gay marriage, 59% of Americans said they would favor an amendment to the Constitution that would "allow marriage only between a man and a woman," up slightly from 55% last December. ...

When a question is asked without reference to a possible constitutional amendment, even more oppose legalizing gay marriage. Sixty-two percent of Americans oppose a law that would allow homosexual couples to marry and obtain the same legal rights as other married couples; just 30% favor gay marriage.

The public seems to have become even less receptive toward gay marriage in the past seven months. ...

Opponents of the constitutional amendment include liberals (62%) and those who have a college degree or higher education (51%). Northeasterners are slightly more likely to oppose the amendment than support it, 49% to 45%. Young Americans under age 30 are more likely than older people to oppose the amendment, but a majority of them still favors it.

Voters do not cite gay marriage as the main issue they want to hear about this year. Far more name the economy, jobs and the war--but the issue may still have an impact on voting. ...

Just over half of voters, 52%, say they would consider voting for a candidate who does not share their views on gay marriage.

Opponents of the legalization of gay marriage are less willing than those who favor it to look beyond a candidate's position on the issue. Fifty-three percent of voters who oppose gay marriage would not consider voting for a candidate who doesn't share their view. ...

One potential Democratic loss could come from black voters, 58% of whom say they would not consider voting for a candidate who doesn't share their views on the issue of gay marriage.

Nearly all of those black voters who would not consider such a candidate are opposed to legalizing gay marriage. However, as of now, black voters would overwhelmingly vote Democratic in November. Three-quarters disapprove of Mr. Bush's job performance as president, and 82% now say they would vote Democratic in the November presidential election.

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posted by Eve at 3:46 PM | link 0 comments

SSM AND POLYGAMY: Cathy Young

...To a large extent, the debate is now less about homosexuality than it is about marriage. Except on the far right, objections to same-sex marriage are rarely couched in terms of moral objections to homosexual relationships. Historically in our culture, the argument goes, marriage has meant the union of one man and one woman. Change it to include a union of two men, and who’s to say that it shouldn't be redefined further to include one man and two women, two women and three men, or any other possible combination? ...

In the recent book Same-Sex Marriage and the Constitution, political scientist and lawyer Evan Gerstmann argues that polygamy is different since the would-be polygamist can still marry the person of his first choice. Yet one may counter that having multiple spouses is the polygamist's first choice -- or that, as Posner notes in his review of Gerstmann's book in The New Republic, the woman who wants to be the polygamist's second wife is barred from marrying the person of her first choice. (Most commentators seem to equate polygamy with polygyny.) ...

Yet a polygamy rights movement could certainly gather cultural and political momentum in the future. ...

Would that be such a terrible thing? If someone has two, three, or six spouses of either sex, they are presumably all consenting adults; if they are harming anyone, it is only themselves. My own belief is that polygamous relationships are likely to involve imbalances of power and even psychological abuse, and that they carry a high risk of instability and stress. ...But if that's what some people want, should the state restrict their choices for their own good?

On the other hand, legalizing polygamy would alter the state of marriage in general far more than gay marriage could. Allowing Jane to marry Ann does not in any tangible way change Sally's marriage to Bill; allowing Sally and Bill to marry other people while remaining married to each other changes it drastically. Even if they never exercise this option, the mere possibility of it could cause enough anxiety to destabilize a marriage subtly. ...

Then again, the potentially harmful consequences of polygamy could exist without legalized plural marriage. Open marriages and de facto plural marriages already exist. Such relationships may even receive a measure of legal recognition: In 2000 the longtime mistress of married television correspondent Charles Kuralt won a court dispute with his widow over a property he owned in Montana.

The primary issue is not the legal benefits for multiple spouses but the perception that the state, and by implication we as a people, will be giving sanction to something a majority of Americans regard as morally objectionable -- which, of course, is also at stake in the debate over gay marriage.

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posted by Eve at 3:26 PM | link 0 comments

SSM AND RELIGIOUS LIBERTY: Maggie replies to Andrew Sullivan

It's not of course that I am against any compromise. I have been attacked in some quarters for being too willing to compromise. I am against using the Constitution to ban civil unions and I am against using the Constitution to establish them.

On the religious liberty point, Andrew is skirting some serious realities here. If you don't believe me, believe Mary Ann Glendon, Harvard law professor, who wrote in the WSJ:

"Religious freedom, too, is at stake. As much as one may wish to live and let live, the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination the likes of which we have rarely seen before. Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles."
posted by Eve at 3:20 PM | link 0 comments

MASSACHUSETTS, SSM, RELIGIOUS LIBERTY: Andrew Sullivan replies to Maggie Gallagher

Maggie Gallagher shows her cards today. She is not only opposed to civil marriage for gay couples but is also opposed to Massachusetts' deciding to have civil unions as a separate but equal category in their Constitution. Fair enough. But it behooves the social right to be clear about where they stand: against all benefits and protections for gay couples and against any notion that gay and straight relationships are equal. Then she raises various bogeymen:

"It will be open season on the Catholic Church and other religious groups and organizations that sustain a different vision of human sexual ethics. Hate-speech codes, yanking of broadcasting licenses, and termination of the tax-exempt status of traditional organizations--just a few of the legal threats looming. Far-fetched? In Europe and Canada it is already happening."

Puh-lease. There is something called the First Amendment in this country; and it protects freedom of speech and freedom of religious expression. If Fred Phelps' constitutional rights are protected, then the much milder public doctrines of the Catholic hierarchy will be as well. And that is only right and proper. I have no interest in persuading people to approve of my life and relationship. To be honest, I couldn't care less what others think about it. As long as I am treated equally under the law, I'm happy to be described as a pervert, an instrument of Satan, or even a Democrat. Bring it on! But don't confuse your constitutional right to condemn me with your constitutional right to deny me equal protection of the laws.

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posted by Eve at 3:14 PM | link 0 comments

SSM MOMENTUM STUNS BOTH BACKERS AND FOES: From the San Francisco Chronicle

Same-sex marriage -- considered so radical that mainstream gay rights leaders feared its emergence in an election year -- has gained a level of visibility that even its most ardent proponents did not imagine just two months ago.

Whether intentional or not, President Bush's pledge in his State of the Union address in late January to defend traditional marriage touched off a reaction that began in San Francisco and now is rippling across the country. These marriage licenses -- whether acts of civil disobedience or interpretations of law by local officials -- are fueling countless television images that put a mainstream face on lesbian and gay couples. They are laying the groundwork for legal challenges to marriage laws across the nation. And they are infusing gay and lesbian rights with the consciousness of a major civil rights movement. ...

Few expected things to move as fast as they have, or to spread so far. Just four years ago, Vermont was embroiled in a fierce debate over whether to permit civil unions, a parallel institution short of marriage that many considered radical. Today, Bush's position is that civil unions are acceptable if that is what a state wants. ...

Opponents of same-sex marriage contend it was the November ruling by the Massachusetts high court that triggered the current storm. In fact, the debate began with June's U.S. Supreme Court ruling in Lawrence vs. Texas, which struck down state sodomy laws and, for the first time, ruled that gays and lesbians have a constitutional right to private sexual relationships.

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posted by Eve at 3:02 PM | link 0 comments

NYC TURNS DOWN SAME-SEX COUPLES, NYACK MAYOR PLANS TO SUE: From the New York Times

["Like suffragettes a century ago at the polling place"--I love it. Spin, little analogy! spin!--Eve of course.]

The growing fight over same-sex unions reached New York City yesterday as dozens of gay and lesbian couples seeking marriage licenses were turned away at the City Clerk's office in Manhattan and hundreds of protesters demanding same-sex marriage rights rallied outside City Hall.

The rebuffs at the marriage-license counter were not confrontational, just a genteel turning away, two by two, like suffragettes a century ago at the polling place. The protest demonstration was also peaceful, if noisy; Mayor Michael R. Bloomberg urged the supplicants to take their cause to Albany.

But it was the opening salvo of New York's gay and lesbian community for equal marriage rights. A day after the New York Attorney General, Eliot Spitzer, declared that current laws prohibited same-sex weddings, but suggested--in a kind of blueprint for gay advocates--that the courts would ultimately resolve the issue, the first constitutional challenge appeared to be taking shape in Nyack, N.Y., where a gay mayor was denied a marriage license yesterday and vowed to sue the state.

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posted by Eve at 2:59 PM | link 0 comments

LAWSUITS TARGET OREGON SSM: From The Oregonian

A group opposed to same-sex marriages said it will file a lawsuit today in Multnomah County to stop the county from issuing marriage licenses to gay and lesbian couples.

The announcement by the Oregon Defense of Marriage Coalition came Thursday as Multnomah County commissioners responded to thousands of telephone calls and e-mails regarding the licenses and debate raged round the state as other counties examined the issue. In Portland, hundreds of gay and lesbian couples took out marriage licenses Thursday, the second day same-sex marriages were allowed in Oregon, bringing the total number of licenses issued for the two days to 786.

It's unclear how many of those couples have married, though most signed waivers of the usual three-day waiting period and held their ceremonies immediately. Kelly Clark, an attorney representing the Defense of Marriage
Coalition, said he planned to file for an injunction to stop the issuance of licenses. Mathew Staver, president and general counsel of Liberty Counsel, said he also planned to file a lawsuit today. Clark said his suit will seek a reversal of the county's decision to allow same-sex marriages and will ask the court to define marriage as a union "between a man and a woman."

The suit will claim that four members of the county Board of Commissioners violated open meetings laws by approving the new policy without notifying the fifth member of the board or holding public hearings. Multnomah County Chairwoman Diane Linn said the board did not violate open meetings laws. While a majority of the board supported the policy change, she said she alone gave the order to begin issuing licenses to same-sex couples.

Attorney General Hardy Myers is expected to complete his analysis of state law and the Oregon Constitution by Monday and then will decide whether to go to court to stop the county from issuing more licenses, said his spokesman, Kevin Neely.

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posted by Eve at 2:55 PM | link 0 comments

SSM IN A BRAZILIAN STATE: From the BBC

[Or is it? Weird equivocation re SSM vs. civil unions. Sigh.]

A panel of judges in a Brazilian state has ruled in favour of authorising same-sex marriages.

The southern state of Rio Grande do Sul is the first state to do so.

The ruling gives same-sex couples broad rights in areas like inheritance, child custody, insurance benefits and pensions. ...

Civil unions between homosexual couples are not recognised officially in Brazil. ...

"Technically, this is not going to be called 'gay marriage' by the justice of the peace, but it is the equivalent," Tania Bampi, a spokeswoman for the state court administration, said.

The ruling binds all judges and justices-of-the-peace in the state to approve civil unions "between persons of sound mind and independent of sexual orientation".

As yet no gay couples have sought permission for a union but court officials expect requests to start within days.

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posted by Eve at 12:11 PM | link 0 comments

CONSTITUTIONAL SELF-RESTRAINT: Mark Barton replies to Ben Bateman

Ben Bateman: But self-imposed constitutional restraints must mean what the people who voted for them intended them to mean.

Mark B.: On the contrary, constitutional provisions, like lesser laws, must mean what they say, except where they're ambiguously worded or in conflict with other laws. No one to my knowledge has suggested a conflict
with another part of the constitution, and I'm afraid I can't take seriously the suggestion that there's any ambiguity. Making marriage opposite-sex-only is a perfectly straightforward violation of the letter of the law: "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." A man in Massachusetts can't marry a man because of his own sex--he is not equal under the law to a woman in that respect.

Now of course, it's a well-established part of the context of any constitutional provision that the applicable high court can grant limited
exceptions in the case of a compelling government interest. And Massachusetts voters may have been told that the MSJC would assuredly grant an exception for opposite-sex marriage if it were ever challenged. But the voters knew, or at least had no excuse for not knowing, that no one could possibly give a actual guarantee to that effect, at best a good faith assessment of probabilities. If they thought they were voting for an ERA with the implicit rider "except that the MSJC will always grant an exception for opposite-sex marriage", they were kidding themselves. They were trusting the MSJC not to keep SSM outlawed specifically but to do the sensible thing generally. And surely that's the whole point--if your self-imposed restraint has the implicit caveat "except that the person or institution we're trusting to shall always make an exception when we think it's important" then there's no actual restraint.
posted by Eve at 10:52 AM | link 0 comments

SSM AND INTERRACIAL MARRIAGE: Barry Deutsch replies to Eugene Volokh

...The problem with this analysis, as I see it, is that it fails to acknowlege that men and women are individuals, and should be given the opportunity to live their lives as individuals, not just as representatives of their sex.

Suppose for the sake of argument that Eugene is correct that behaviorial differences between women and men (such as they are) are rooted in biology. So what? When Jane Roe marries Joan Doe, the two individuals are the ones getting married, not a statistical average. Even if it is true that "mom and dad" make better parents on average than "dad and dad" and "mom and mom" (a dubious proposition, which is not supported by any social science evidence), that doesn't tell us that anything about what Jane Roe and Joan Doe will be like as parents. Forbidding Jane and Joan to marry based on the (alleged) insufficientcies of mom-mom parenting, on average, is pure sex discrimination.

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posted by Eve at 10:30 AM | link 0 comments

SSM AND INTERRACIAL MARRIAGE: Gabriel Rosenberg replies to Eugene Volokh

Eugene Volokh has written an interesting post on why refusals to recognize same-sex marriage [are not the same as] refusals to recognize interracial marriage. He first distinguishes between race and sex by noting that race is only skin deep while there are deep biological and social differences between men and women. Eve Tushnet has recently made the same claim, and for the most part I agree with both of them on that matter. That still doesn't answer whether one should be able to use these differences as a basis to refuse to recognize one's marriage. For example, consider the case of religious faith. One's religion can certainly affect one's parenting style. Would Professor Volokh think it was legitimate for society to set up same-faith couples as the preferred, most legally and socially sanctioned mode and refuse to recognize interfaith marriages?

Professor Volokh also details the problems he has with the legal comparison. He notes that while "separate but equal" is not allowed in racial contexts, it is acceptable in some gender contexts. He notes that when there has been a problem with sex-based segregation it was because the schools or teams were viewed as unequal. Again I agree with this for the most part, but that does not end the matter. Volokh refers quite a bit to Loving v. Virginia, but I would be very interested in his views on Perez v. Sharp. Unlike Loving, Perez was decided in 1948 while "separate but equal" was still permitted for race. Yes, it was only a California Supreme Court decision, but I'm more interested in how persuasive Volokh finds the court's reasoning. The court reasoned that while two train cars could be equal, to a person desiring to marry their loved one no other person could serve as an equal replacement. Why wouldn't this logic carry over to gender?

In fact, the idea that what is "equal" should be viewed in terms of the person seeking equality and not as group judgments is quite important when it comes to sex discrimination. ...I find it hard to reconcile the belief that it's unacceptable to dictate one's professional opportunities based on sex with the view that it's somehow all right to dictate one's most intimate choice of spouse on this basis.

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posted by Eve at 10:29 AM | link 0 comments

SSM AND INTERRACIAL MARRIAGE: Eugene Volokh

...I oppose bans on interracial marriage because I think that race is literally only skin deep (with a very few exceptions, such as certain hereditary diseases that are more common in certain racial situations). A black-white couple is no different, morally or practically, from a white-white couple or a black-black couple. There is no inherent, either biological or very deeply rooted social, difference between a black parent and a white parent.

This is why almost all the possible justifications for bans on interracial marriage have to do with claims of racial superiority, or the felt need to maintain racial purity, which is impossible to justify without some judgments of racial superiority. The one potentially decent justification for such bans is that children of interracial marriage might be ostracized or even attacked by racist outsiders. But fortunately, over time this effect has substantially diminished, and in any event I think that usually (with some narrow exceptions that I might blog about in another context) the way the law should deal with the risk of racist reaction is to fight against it, not to give in to it.

But people's sex is not skin deep. Men and women are different biologically. To my knowledge, this difference reflects itself in substantial biologically driven differences in parenting styles, behaviors, emotional interactions, and the like; certainly there are at least some very deeply rooted social differences there, but I suspect that they're biological, too. Certainly given the current state of biological knowledge, the claim that there's a biological difference in men's and women's parenting styles is much more plausible than there's any such difference in blacks' and whites' parenting styles. ...

...I do think that it will probably be good for society to allow same-sex marriage; and I'm pretty sure it will be good for gays and lesbians. But the real differences between men and women (differences that aren't duplicated as to race) give me pause. So does the fact that the male-female marriage model has been broad, deep, and longstanding in our legal system in a way that bans of interracial marriage were not (see this post by Clayton Cramer; I often disagree strongly with him on issues related to homosexuality, but on the historical point I think he makes a lot of sense).

Constitutional: But, people say, what about Loving v. Virginia, the 1967 case in which the Supreme Court struck down bans on interracial marriage? Loving held that a law which considers a partner's race in deciding whether a marriage is allowed is a form of unconstitutional race discrimination (even if both whites and nonwhites are equally covered by the law). Later Supreme Court cases held that sex classifications are similar to race classifications. Therefore, a law which considers a partner's sex in deciding whether a marriage is allowed is a form of unconstitutional sex discrimination (even if both men and women are equally covered by the law). QED.

Not so fast: Analogies between race discrimination and sex discrimination are sometimes helpful, but often not. This is one case where I think they aren't.

To begin with, let me just make some observations that should remind us that race and sex discrimination are not the same. Consider these pairs of case: * Racially segregated restrooms; Men's rooms and women's rooms
* Racially segregated schools; Boys' schools and girls' schools
* Whites-only basketball teams; Girls-only basketball teams ...

What's more, though Loving did rest partly on the formal race-consciousness of bans on interracial marriage, it also stressed what was obvious to all the participants in the case: Bans on interracial marriage, like segregated restrooms or segregated schools, were part of an attempt to maintain white social and legal supremacy. Limitation of marriage to male-female couples is not an attempt to maintain the supremacy of any one sex.

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posted by Eve at 10:25 AM | link 0 comments

ELECTION RAISED SSM/JUDICIARY QUESTIONS: From the Associated Press

Gov. Mitt Romney touted an apparent Republican victory in Tuesday's special state Senate election as a vote for GOP reform on Beacon Hill. Democrats downplayed it as one seat among 200 in the Legislature.

Republican state Rep. Scott Brown pulled out a narrow victory over Democrat Angus McQuilken by about 345 votes according to a tally released Wednesday by the Secretary of State's office. The numbers haven't been certified and McQuilken has said he may seek a re-count.

Still, Republican leaders were quick to herald the apparent win. ...

The election was held to replace former Democratic state Sen. Cheryl Jacques, a proponent of same-sex weddings who resigned to head the Human Rights Campaign, a national gay-rights organization.

The contest was seen in part as a referendum on gay marriage.

The Republican candidate, state Rep. Scott Brown, 44, opposes gay marriage but says he would support same-sex civil unions. The Democrat, Angus McQuilken, 34, is a strong supporter of marriage rights for gay couples and served as Jacques' chief of staff for 10 years.

McQuilken received campaign donations from gay rights activists while a Catholic group opposed to gay marriage sent out a flyer in the district, backing Brown.

But McQuilken said the contest had less to do with high-profile issues like gay marriage and more to do with bread and butter issues like schools and jobs.

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

ARE YOU A BIGOT?: Mark Miller replies to Maggie Gallagher

Of course, there are some same-sex marriage advocates who resort to simplifying the issue by referring to all foes as 'bigots'.

But the comments in your article are not much different when it comes to fairness or understanding of the real issue.

The debate is not about whether there is a difference between the sexes, in terms of 'intimacy' and raising children. Of course there are. The debate is whether those differences are relevant. There are numerous analogies:

Children are better off being raised by two opposite-sex parents. Right? Then why not legally prevent (or at least discourage) any other result? There are cases where a single parent is left to raise children. Do you feel that the government should take those children away and give them to a married couple? If not, then your argument that 'children should live with mothers and fathers' is not very consistent. It seems to appear only when 'gays' are involved.

The law currently recognizes children of single parents as a form of 'family'. Do you support changing that? If not, why not? Because if you do not, that is more evidence of the arbitrary use of the 'mothers and fathers' argument.

I know the drill--if gay relationships, which are biologically prevented from creating offspring, are legitimized then that will further lead to world where marriage and procreation are not linked--and therefore, illegitimacy rates will increase. But, in addition to not seeing a causal relationship between gay relationships and illegitimacy (as opposed to the obvious relationship between divorce and illegitimacy), I have not seen any statistical proof of this fear. The illegitimacy rate has been increasing despite any legitimacy of gay relationships in this country.

While it is true that many same-sex advocates use the 'b-word' unfairly, your commentary, which seems to suggest that anyone who supports the legitimization of same-sex relationships must have been raised by wolves, is every bit as simplistic, exaggerated and wholly unfair.
posted by Eve at 9:54 AM | link 0 comments

THE FUTURE OF GAY COUPLES MARRIED IN THE MEANTIME: From the Christian Science Monitor

More than 3,500 gay couples have now been married in the United States, and numbers are rising fast--two dozen in New York last Friday, 26 in New Mexico Feb. 20, over 200 per day in San Francisco since Feb. 12, and more to come in Massachusetts after the state Supreme Judicial Court's May 17 deadline. ...

Today they--along with lawmakers, legal and constitutional scholars, and citizens nationwide--are asking: What will happen to these marriages if gay unions are made unconstitutional at the state or federal level?

Nobody really knows. ...

Still, legal experts can't help speculating. Though constitutional amendments of the kinds being proposed in Boston and Washington are without precedent, state marriage law has shifted many times over the years as state legislatures have raised the age of consent from 14 to 18, forbidden first cousins to wed, banned interracial marriage, and repealed that ban.

"Marriage law changes, but it's always been held that people validly married when the law was broader are still married when the qualifications to marry are narrowed," says Duke University law professor William Reppy. Cousins married before those bans were not unwed in their aftermath, nor were young or interracial couples.

What that suggests for same-sex couples married in the coming months, Dr. Reppy says, is that though their unions may not be recognized across state lines, and the 1996 Defense of Marriage Act means they would not have been at the federal level in any case, "there could not be a retroactive unmarrying of these people."

Others disagree. Some of the proposed amendments considered by the Massachusetts legislature last month included provisions to retroactively turn same-sex marriages into civil unions with the same state benefits. Others would have outlawed such unions, making no provisions for couples married in the meantime.

But even were a same-sex marriage ban to retroactively cancel these unions, experts say the measure would be largely symbolic for questions of child custody and property ownership. Florida is now the only state that prohibits gays from adopting, and gay couples (or any two unmarried people) can own property jointly in every state.

Still, such a ban, says Lynne Gold-Bikin, former chair of the American Bar Association's family law section, would prevent couples from seeking the federal marriage benefits afforded heterosexual couples--social security, the ability to make medical decisions for one another, and the right to inherit as spouses--unless the amendment made provisions for the creation of civil unions that included those benefits. Civil unions in Vermont do not include the nearly 1,400 federal protections.

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posted by Eve at 9:39 AM | link 0 comments

MORE SENATE TESTIMONY: EVERYBODY!

[I don't know that you all want me to do separate posts for each of the speakers, so I will just pluck representative chunks from their statements and give you the links.]

Rev. Richard Richardson: "The dilution of the ideal--of procreation and child-rearing within the marriage of one man and one woman--has already had a devastating effect on our community. ...This discussion about marriage is not about adult love. It is about finding the best arrangement for raising children, and as history, tradition, biology, sociology, and just plain common sense tells us, children are raised best by their biological mother and father. ...The defense of marriage is not about discrimination. As an African-American, I know something about discrimination. ...The traditional institution of marriage is not discrimination. And I find it offensive to call it that. Marriage was not created to oppress people. It was created for children."

Pastor Daniel de Leon, Sr.: "I live everyday in the front-lines of Urban America, where the ills of society are magnified greatly. People like myself, who provide a service to our community, are often the ones that have to 'pick up the pieces' when marriages and families fall. In my 30 years of counseling, I have often dealt with grown children that still harbor hurts and deep seated frustrations because they did not have a mother and a father."

Hilary Shelton: "At a time when our nation has many important problems affecting the lives of millions of Americans, the Congress and this Subcommittee should waste no more time or energy on divisive and discriminatory constitutional amendments. The NAACP strongly urges you to reject the so-called Federal Marriage Amendment and all other proposed constitutional amendments that would permanently deprive any person in our great nation of his or her civil rights."

Chuck Muth: "I am here today not as a lawyer, a theologian or a constitutional scholar but as a simple conservative grassroots political activist who shares former Sen. Barry Goldwater’s penchant for limited government. It is in that spirit that I come here today urging this Congress to reject a constitutional amendment banning same-sex marriages. This is not to say that conservatives such as myself necessarily favor gay marriage, but rather that we strongly oppose the notion of addressing this issue of social policy in our nation’s governing document. ...Further, I believe this effort could be the first step toward the federalization of family law. Throughout history, government has used a 'crisis' to expand their encroachment on liberty. In this case, under the guise of a homosexual crisis, can we expect a Federal Department of Family Affairs at the cabinet level by decades' end?"

Prof. Lea Brilmayer: "The issues we face today concerning the interstate consequences of a marriage are not much different from those faced in previous generations, and the Clause has ample flexibility to handle them. For more than two centuries the Clause has stood as written, with only occasional legislative elaboration to bring it up to date. A constitutional amendment would put an end to the possibility of legislative innovation, state or federal. There was nothing the matter with the Full Faith and Credit Clause when it was written and there is nothing the matter with it now."

Hon. John Bruning: "I am not here to debate with you the moral issue of whether same sex marriage is right or wrong. I am here because of the reality that four judges in Massachusetts could eventually invalidate Nebraska’s ban on same sex marriages.... The ultimate question for you, as members of the United States Senate, is whether you believe this issue should be resolved by judges or by the American people through you, their elected representatives."

Then the senators have their say: John Cornyn, Orrin Hatch, Patrick Leahy, Russ Feingold.
posted by Eve at 9:35 AM | link 0 comments

MAGGIE GALLAGHER'S SENATE TESTIMONY

This testimony addresses three core concerns: Is marriage worth a Constitutional amendment? Is defining marriage "writing discrimination" into the Constitution? Is a federal marriage amendment necessary? ...

Yes marriage is worth it. Marriage is our most basic social institution for protecting children. It is the relationship that every known human society depends on for raising the next generation and insuring the future well-being of the society. Cross-culturally, marriage is a universal human institution and in every known society brings together men and women into a public, not private union so that the children they create have both mothers and fathers.

Does marriage matter? The social science evidence has built a consensus across partisan and ideological lines. The answer is: yes. As a recent Child Trends brief put it, "Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two-biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes. . . . There is thus value for children in promoting strong, stable marriages between biological parents."

What are these benefits of marriage? Are they special legal protections that only marital children get? No. Legal protections for children are no longer tied to marital status of parents. How then does marriage protect children? Primarily by affirming a social ideal: children have a right to know and love both their mother and their father. Marriage is the word for the way our culture, and every known culture, transmits to the next generation this ideal in ways that really do make it more likely that moms and dads raise their children together Of course many children don’t have that protection. Many single moms struggle heroically to raise kids on their own. Some kids have no parents and need adoption to get a loving home. Everyone knows the ideal doesn't always happen. Every child is a child of God, and every human being has a dignity we are called to respect.

But when we lose the ideal, the chances of making that dream come true for more children diminish, and the likelihood of deprivation, poverty and suffering for children dramatically increase.

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posted by Eve at 9:22 AM | link 0 comments

SENATE HEARS TESTIMONY ON A GAY MARRIAGE AMENDMENT: The New York Times

Senate Republican leaders said Wednesday that they would aggressively pursue a constitutional amendment banning gay marriages despite Democratic arguments that the proposal is divisive, unnecessary and a distraction from more pressing issues. ...

But the obstacles facing an amendment quickly became clear at a Senate hearing on the issue, the first since President Bush endorsed the concept last week. ...

Maggie Gallagher, an author and president of the Institute for Marriage and Public Policy, in her testimony said, "Marriage is a national issue because marriage is a key social institution." She added, "Without a common, national definition of marriage, our marriage culture will be fragmented as judges and public officials impose their own definition of marriage."

But Hilary Shelton, director of the Washington Bureau of the N.A.A.C.P., said his organization was "greatly disappointed that President George Bush and others have decided to enter this election cycle by endorsing an amendment that would forever write discrimination into the U.S. Constitution, rather than focusing on the crucial problems and challenges that affect the lives of all of us."

A professor from Yale Law School, Lea Brilmayer, undermined a main rationale offered for an amendment, that the "full faith and credit" clause of the Constitution could force states that do not allow gay marriages to recognize those from states where they are legal. Ms. Brilmayer said there had not been a single case of a state being put in that position, noting that states had long been able to refuse recognition of marriages between cousins and even recently divorced individuals.

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posted by Eve at 9:19 AM | link 0 comments

STACKED HEARING? PFLAG press release

[Eve notes: Actually, there were at least three anti-FMA speakers (Hilary Shelton of the NAACP, Chuck Muth of Citizen Outreach, and Lea Brilmayer of Yale Law School). And you'll find that the "quote" from IMAPP appears nowhere on our website--try here for what I expect PFLAG is attempting to cite. CTRL-C CTRL-V: not just another lifestyle choice! But whatever....]

Parents, Families and Friends of Lesbians and Gays (PFLAG), the nation's largest grassroots family organization, denounces the Senate Committee on the Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights for holding a hearing designed to showcase Sen. John Cornyn's (R-Texas) homophobic views. The hearing, entitled "Judicial Activism vs. Democracy: What are the National Implications of the Massachusetts Goodridge Decision and the Judicial Invalidation of Traditional Marriage Laws?" is scheduled for Wednesday, March 3, at 10 a.m. in Room 226 of the Senate Dirksen Office Building.

"The title for the hearing is a cynical rhetorical set-up that calls into question the legitimate role of our judiciary. And to make matters worse, the committee's effort is also to plant the idea that basic civil rights should be reduced to a popularity contest and call that democracy. This is shameful," said David Tseng, executive director of PFLAG. "To discuss 'judicial activism' in this way is offensive. It is a way to attack judges who demonstrate courage and principle in matters of civil rights. The same was said of Chief Justice Earl Warren when he wrote the Supreme Court decision in Brown v. the Board of Education. What we take for granted to day as clearly the right decision was derided in its time as 'judicial activism.' "

Republican representatives have stacked the witness list with speakers like Maggie Gallagher, President of the Institute for Marriage and Public Policy (IMPP). IMPP regularly launches attacks against gay and lesbian families, such as their incomprehensible statement this week, "Same-sex marriage may downgrade the importance of fathers and delink marriage and parenthood, threatening the black community's attempt to deal with the problems of unmarried parenting and father absence." No witnesses scheduled to testify in support of marriage equality were announced on the subcommittee's Web site.

link
posted by Eve at 9:17 AM | link 0 comments

SSM IN NYACK, NY: From the New York Journal News

Nyack Mayor John Shields jumped into the national same-sex marriage debate yesterday, vowing to help gay and lesbian couples go to court to get marriage licenses and offering to join the fight alongside his partner.

Shields had earlier in the day promised to marry same-sex couples in Nyack as early as today, as New Paltz Mayor Jason West has done.

Shields altered his plans, however, after talking to his attorneys and hearing state Attorney General Eliot Spitzer's opinion against certifying or solemnizing gay and lesbian marriages.

By the time he returned from testifying at a hearing regarding a gay marriage bill, Shields had also learned that Rockland County District Attorney Michael Bongiorno would prosecute him or any local elected officials who married a couple without a valid marriage license.

"We're going to handle them a little differently," Shields said of same-sex marriages late yesterday. "We're going to ask the couples to apply for a valid marriage license, and if that license is denied, we'll challenge that denial in the court system."

Shields said Spitzer's opinion all but asked for a test case. The mayor said he hoped a class-action suit would grow from his and others' efforts to obtain marriage licenses as early as today.

After conferring with Norman Siegel, executive director of the New York affiliate of the American Civil Liberties Union and other lawyers, Shields said he wanted to pursue a pro-active strategy rather than a defensive one.

Shields, who was besieged by national media organizations after his initial promise, said he and partner Bob Streams would consider adding their names to the list of couples applying for licenses in Orangetown.

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posted by Eve at 8:48 AM | link 0 comments

A BATTLE JOINED: National Review editorial

...We are sure that the president, like most people, does not wish to dwell on the subject of same-sex marriage. Yet he will have to talk about it more. If he does not, the press and the Democrats will be able to tell their side of the story--Bush as panderer to bigots--unrebutted. Other Republicans will also have to learn to discuss the issue with at least the same amount of knowledge, confidence, and ease that they bring to medical malpractice reform. Reporters flummoxed Scott McClellan, Bush's press secretary, by asking whether the president considered gay couples a bigger threat to marriage than no-fault divorce. It should not have been a tough question. The answer he should have given? "The president believes that the divorce rate is too high. But we have the divorce laws we have because of a democratic process. This situation is different: We have the courts imposing a radical change that the public opposes. It is that difference that justifies an amendment."

It would also be wise for the president to prevail upon legislators to change the wording of the proposed marriage amendment. ...

...Supporters of the amendment claim that if Congress balks, they will be able to elect new congressmen to pass it. But this strategy, even assuming that it proved successful, would take time. During that time, we can expect the courts to keep changing the marriage laws. Massachusetts was the start. Indiana could well be next.

We are therefore pleased to learn that Sen. Orrin Hatch is introducing his own constitutional amendment. His version reads as follows: "Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman." This amendment would not only clearly allow civil unions to be enacted by legislatures; it would even allow legislatures to enact full-fledged same-sex marriage. But it would bar federal or state courts from imposing either.

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posted by Eve at 8:46 AM | link 0 comments

MEDIA BIAS OVER GAY MARRIAGE: Jonathan Chait

I think most claims of liberal media bias are overblown. At the same time, I do think that reporters often let their cultural predilections drive their coverage of social issues, and the coverage of the gay marriage amendment offers a perfect example. ...

...The operating premise of these articles, and most reporting on this topic, is that only the most partisan element of Bush's base supports the amendment. Now, I should say right here that I believe that gays should have the right to marry and I find the amendment morally abhorrent. But I'm far less confident than the press that most people share my view.

First of all, the public rejects gay marriage by a pretty wide margin. Last month the Annenberg Center conducted a poll asking, "Would you favor or oppose a law in your state that would allow gays and lesbians to marry a partner of the same sex?" 31 percent said they favored it, 60 percent opposed it.

Of course, supporting a constitutional amendment is a trickier question. Polls have found contradictory results on the amendment, ranging from around 49-42 opposed to 53-44 in favor. Most polls seem to be clustered in the center. You can find a good collection here. The point is not that people overwhelmingly support an amendment, but that they're evenly divided. It's hardly the case that support is confined to Bush's base. Most polls show support for the amendment in the high forties, which is well into swing voter territory.

And, indeed, the debate is still young, and unfortunately, public opinion is probably more likely to swing toward Bush's position than against. People are naturally reluctant to support constitutional amendments. But, given the intense opposition to gay marriage, people may be persuaded by Bush's argument that an amendment is necessary. Bush's support for the amendment hurts him among libertarians. But it helps him among cultural traditionalists -- giving the president a way to lure blue-collar Democrats alienated by his unpopular economic policies. My understanding of the current political landscape suggests that more of the available swing voters fall into the latter category than the former. (A good guide to the composition of the electorate can be found in Democratic pollster Stan Greenberg's new book, The Two Americas.)

Why do reporters assume that the amendment is a fringe concern? Perhaps because nearly all live in big cities, among educated, relatively affluent peers, who hold liberal views on social matters. In Washington and New York, gay marriage is an utterly mainstream proposition. Unfortunately, in most of the country, it's not.

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posted by Eve at 8:42 AM | link 0 comments

ARE YOU A BIGOT?: Maggie Gallagher

...Take a moment and listen: Same-sex marriage advocates are saying there is no difference between two men being intimate and a husband and wife, even when it comes to raising children. They are saying that the opposite idea, that mothers and fathers both matter, is a form of hate, ignorance, animus, bias. That's why they claim that the normal definition of marriage is "discrimination."

Do you need more evidence that accepting same-sex marriage is not a small add-on to our marriage laws but a radical transformation of them? If preferring husbands and wives who can become mothers and fathers together is "bias" or "discrimination," then people like me who hold such views are bigots. In the America that Gay and Lesbian Advocates and Defenders (GLAD) dreams of, the idea that children deserve mothers and fathers will become the legal and moral equivalent of racism. Their logic leads not to live-and-let-live tolerance, but to an ugly culture war, using the law to root out public expression of such "prejudices." Public school curriculums will be changed to teach the new social norms to your kids (they are already being developed). Tax-exempt status for faith-based organizations that fail to adhere to the new religion will be at risk.

What about laws against interracial marriage? Racist marriage laws had nothing to do with the great, historic, cross-cultural purposes of marriage. They were about keeping the races separate so that one race could oppress the other. By contrast, it is simply ludicrous to imagine that marriage was dreamed up in order to express animus toward anyone. Today, one-third of babies are born outside of marriage and end up fatherless; the deep, ongoing need for an institution that points men and women to the only kind of sexual union that protects both them and their children could not be clearer.

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posted by Eve at 9:56 AM | link 0 comments

NEW PALTZ MAYOR CHARGED: From Newsday

Four days after presiding over a slew of same-sex marriages in his quaint Hudson Valley village, the mayor of New Paltz was charged Tuesday with 19 criminal violations and faces a court hearing Wednesday night, injecting the state's debate over gay marriages with increasing drama and urgency.

Mayor Jason West, 26, of the Green Party, is scheduled to respond in town court to charges that he broke the state's domestic relations law by solemnizing 25 marriages without a license, a misdemeanor punishable by up to a $500 fine or up to a year in jail.

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posted by Eve at 9:51 AM | link 0 comments

THE NEXT STATE TO DROP: Stanley Kurtz

Gay marriage may soon be recognized in two American states: Massachusetts and.... Can you guess? No, I'm not thinking of California, although mayor Gavin Newsom's defiance of the law could easily bring court imposed gay marriage there. Nor am I thinking of New Jersey, although a Goodridge copycat case is working its way through the liberal New Jersey courts. Surprisingly, New Mexico could be the next state to recognize gay marriage. I'll explain why in a moment. First let's trace the big picture.

When gay marriage comes to Massachusetts in May, immense complications will follow. David Frum describes the coming legal chaos. Things like hospital visitation rights and divorce settlements in non-recognizing states are going to generate a continuous series of lawsuits. Advocates of same-sex marriage will use those suits to bolster support for nationalization. ...

New Mexico statute 40-1-4 states: "All marriages celebrated beyond the limits of this state, which are valid according to the laws of the country wherein they were celebrated or contracted, shall be likewise valid in this state, and shall have the same force as if they had been celebrated in accordance with the laws in force in this state." As a result of this statute, gay marriages contracted in Massachusetts may soon be recognized in New Mexico. ...

New Mexico governor, Bill Richardson, mentioned as a possible Democratic vice-presidential candidate, takes the usual Democratic position on this issue. He claims to be against gay marriage, yet is also against doing anything to prevent gay marriage. Richardson says that no state constitutional amendment, and no new statutes, are necessary to protect marriage in New Mexico. Richardson wants to see the whole matter resolved by the courts. State Republican-party chair, Senator Ramsay Gorham, on the other hand, wants the legislature to put the issue on the November ballot in the form of a constitutional amendment. ...

Once the chaotic process kicked off by Massachusetts--and New Mexico--begins, it will become clear that it's going to be all or nothing. We will have either judicially imposed national gay marriage, or a Federal Marriage Amendment. And when the full legal and social implications play out, you will see support for the FMA dramatically climb. Give it time.

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posted by Eve at 9:48 AM | link 0 comments

LOTS OF GOOD STUFF AT THE FAMILY SCHOLARS BLOG.

Just go there and scroll.

Highlights reel: Tom Sylvester: "If legalizing same-sex marriage precluded people from arguing that children need mothers and fathers, I'd oppose it, too. But legalizing same-sex marriage doesn't take away free speech. It doesn't require us to burn the thousands of pages of research that indicate that kids benefit from growing up with their own mothers and fathers."

More Tom: "Earlier this year, my constitutional law professor suggested at the end of one class that perhaps all marriage laws violate the separation of church and state. At his office hours, I made the case that there is clearly a rational, purely secular argument for the state's interest in marriage: stability and the well-being of children. He then agreed and admitted that he went too far. Obviously, he didn't retract his earlier position because of any unique argument on my part--it's just that he didn't think about the institution of marriage beyond legal disputes over religious freedom and equal protection. This view of marriage as little more than a narrow legal category (and one that's probably improperly religious, too) is far too common in law schools today."

David Blankenhorn on "our marriage laws impose religion": "Let's follow the logic. The marriage amendment would violate church-state separation by imposing a particular religious view of marriage. Since that view is also the exact view of all current marriage law in the nation, it must be true that those laws, too, violate the constitution. Meanwhile, some religions favor same-sex marriage. Some people want to change current law in favor of new laws that legalize SSM. This change, in the view of the author of this article, would be a very good thing. That is, it would be a very good thing to replace one 'religious' view of marriage (and 'religious' definitions of marriage, remember, violate the constitution) with ... another 'religious' view of marriage. Does that clear everything up?"
posted by Eve at 9:42 AM | link 0 comments

WHY GAY MARRIAGE WON'T BE LIKE ABORTION: Josh Chafetz

...As social tolerance of gays and lesbians has increased, more and more gays are open about their sexual orientation. More and more people know someone who's openly gay. And once a significant number of gay marriages happen, people will know gay married couples, gay families. Just as the opposition to interracial marriage fell away once interracial marriage was a fait accompli, so too, I think, will opposition to gay marriage.

Why hasn't this happened with abortion? Abortion is different in two relevant respects: (1) It is intensely private, whereas marriage is inherently public. People know who is married and who isn't -- people don't know who has had an abortion and who hasn't. It might be harder to think that people who have abortions are bad people if you know that someone you know and respect had an abortion. But you're unlikely to know that, since it isn't something people talk about. (2) Abortion is a one-time action. Someone can have an abortion and yet later decide that abortions are wrong. If an anti-abortion activist finds out that a friend had an abortion, she can talk to her friend, try to convince her that what she did was wrong, and maybe convince her that, no matter what, she should never have an abortion again. Marriage, on the other hand, is a continuing bond. To tell your married gay friend that you oppose gay marriage is to tell him that you disapprove of the way he is living now and has made a commitment to live for the rest of his life. That's a very different, and much harder, thing to tell someone. In other words, political decisions on abortion are reversible with only prospective consequences. But once there are married gay couples, any change in the law will also have retrospective consequences -- that is, it will invalidate existing marriages. That's a really, really hard thing to do, especially when so many people know and like the gay couple down the street.

That's why I think gay marriage will come to be, not only a legal reality, but also a socially accepted institution. The culture wars may continue, with new issues flaring up all the time, but some issues basically get settled for good, the way interracial marriage did. I think the same will, ultimately, be true of gay marriage.

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posted by Eve at 9:38 AM | link 0 comments

BUSH ADVANCES GAY RIGHTS: Steven Waldman

President Bush's endorsement of a constitutional amendment banning gay marriage could prove to be a great moment for gay rights.

This may seem an absurd statement, both to gay rights activists who have roundly denounced the decision and to religious conservatives who have cheered it.

But in explaining the president's position, White House spokesman Scott McClellan insisted that while Bush backed the amendment, he would also support the rights of states to provide various partnership benefits, including civil unions. Though the news emphasis has been on the former, the practical consequences of the latter are huge.

Until recently, that position -- that states should allow partnership benefits such as insurance and health care -- was considered extreme. It wasn't too long ago that Howard Dean was thought unelectable because he signed Vermont's civil union law, which in effect provided a full slate of partnership benefits.

Amazingly, Bush has now said he can live with that, which means his position is not all that different from that of John Kerry or John Edwards. All three say states should be allowed to have civil unions. All three say they oppose gay marriage. The main difference is that the Democrats want to ban gay marriage by statute and Bush wants to ban it by constitutional amendment.

True, saying states may allow for civil unions is not the same as saying they should. McClellan added that while Bush believes states should be allowed to permit civil unions, he wouldn't support such legislation if he were still governor of Texas. But he isn't a governor anymore, and as a matter of federal law, Bush has adopted the same states' rights approach to civil unions as the Democrats. ...

In other words, Bush will have retreated to defend a more fortified position -- and will then lose anyway.

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posted by Eve at 9:02 AM | link 0 comments

SSM IN ITHACA, NY: From the New York Times

The national debate on same-sex marriage spread to another college town in upstate New York on Monday, with city officials in Ithaca challenging the state Health Department to refuse marriage applications submitted by gay couples.

Carolyn K. Peterson, the mayor of Ithaca, told a packed news conference at City Hall that the clerk would accept marriage applications by same-sex couples and forward them to the state's Department of Health for a ruling on whether they could be granted. In doing so, she said, she would force the issue into the courts. ...

The issue of same-sex marriage came to New York on Friday when the mayor of the village of New Paltz solemnized the weddings of 25 same-sex couples.

None of the couples had obtained a marriage license, which may open the mayor, Jason West, to prosecution. State law says it is a misdemeanor crime to perform a marriage for couples who do not have a license. It is far less clear on whether those marriages are legal.

Yesterday, Donald A. Williams, the District Attorney of Ulster County, said he would likely act against Mr. West.

"I cannot ignore charges that an elected official may have broken the law,'' Mr. Williams said, "We will carefully study the legal and factual issues before proceeding, but we have so far found no impediment to prosecution.'' If convicted, Mr. Williams said, the maximum penalty would be a $500 fine or one year in jail.

The marriage process in New York requires couples to obtain a license before undergoing a solemnization ceremony. Ms. Peterson said she had considered following in Mr. West's steps and solemnizing marriages for couples who had not gotten a license, but decided against it. "I can perform a ceremony without a license, but, though very meaningful to the couples, it would just be symbolic,'' she said.

Instead, the Ithaca officials intend to forward unsigned marriage applications to the state Health Department as a way to force a decision. Should the Health Department decline the license applications, Ms. Peterson said, the city would coordinate with students from Cornell University to give legal advice for couples to file suit. Ithaca is home to Cornell and Ithaca College. By mid-afternoon, five same-sex couples in Ithaca had requested
applications for licenses.

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posted by Eve at 8:51 AM | link 0 comments

OREGON COUNTY TO ISSUE SSM LICENSES: From KATU and Associated Press

It has happened in Massachusetts, San Francisco and now it is happening in Portland.

The Multnomah County Clerk's office plans to issue marriage licenses for same-sex couples starting tomorrow at 10:00 a.m. at their office located at 501 S.E. Hawthorne.

Can The County Do This?

Oregon's marriage law states that marriage is a civil contract entered between males who are at least 17 years old and females who are at least 17 years old.

The law does not specify whether the marriage has to be between a man and a woman.

A statement issued by the county said simply: "Based on a legal opinion released today by the County Attorney, a majority of the Board of County Commissioners supports a policy change to allow the county to issue marriage licenses to same sex couples."

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posted by Eve at 8:47 AM | link 0 comments

I'M ON THE ROAD. Back late tomorrow.
posted by Eve at 11:28 PM | link 0 comments

LOST IN THE COSMOS? Bill Dillinger on the universality of male and female

My second grade daughter was looking at a book about space exploration last night and said "Dad, do you want to see a picture of an outer space toilet?" She presented me the book opened to a picture of a toilet on a space station. Being eight years old, she thought that was very funny. On the opposing page I saw another picture that was interesting and profound. It was of a plaque installed on the Pioneer 10 space probe launched in 1973 that has since left the solar system. It depicted a schematic of the location of our home in the galaxy. It also included a drawing of a naked man and woman. I looked at the picture for a few moments. Here was a message we were sending to whoever might find it, about where our home is and who we are. It was a simple statement we made to the universe. Today, make that same simple statement and you risk public condemnation. The radio signals from Pioneer have fallen silent and the probe is lost. But perhaps it is we who are lost instead.
posted by Eve at 11:28 PM | link 0 comments

SSM AND WORLDVIEWS: Matt Taylor replies to Mark Tardiff

Mark Tardiff writes: "SSM is not a civil rights issue; what is at issue is what Princeton professor Robert George aptly calls 'a clash of orthodoxies' in the book by the same name. That is, it is a clash of worldviews, of ways of understanding reality. The ultimate question of this debate is: which of these views is true and so a sound basis for ordering society?"

Mark suggests we ask ourselves which worldview is true, the "Judeo-Christian tradition" (a la Robert George), or a "secularist orthodoxy" of left-wing political correctness. My answer would be, "what else is on the menu?". Why must we swallow whole either doctrinaire secularism or religious conservatism; both contain some truths and some falsehoods, but neither could possibly have the best answer to every question. A complex issue such as SSM is best solved by synthesizing the most convincing, relevant parts of these (and other) philosophical frameworks, along with our own, original ideas. Orthodoxy of any sort is a bad way to make public policy.
posted by Eve at 11:26 PM | link 0 comments

CONSTITUTIONAL SELF-RESTRAINT: Ben Bateman replies to Mark Barton

Mark Barton eloquently summarizes the pro-SSM argument based on equal rights. He uses an analogy of a smoker who, in a calm and reflective moment, asks someone to take away his tobacco. Later, the smoker changes his mind and demands to have it returned. Along those lines, I think of the story of Odysseus lashed to the mast of his ship so that he can hear sirens' song in safety.

That's a view of constitutional law that Mark and I can agree on. Call it the self-restraint theory: A constitution is a way to restrain the mob's passions of the moment. Some principles--such as freedom of speech--are too important to be decided by a bare majority vote, so the constitution allows a supermajority of the people to protect key principles from shifting political winds. (I'm assuming here that Mark doesn't mean it literally when he writes, "no matter how many votes of like-minded people you may be able to muster, you may not have the government discriminate on certain criteria." Enough votes for a constitutional amendment will do the trick, won't it?)

The Goodridge decision doesn’t jibe with two parts of this self-restraint theory: the self part and the restraint part.

First, Goodridge was not self-imposed; the people did not consent to it. Mark points to the 1976 amendment to the Mass. constitution prohibiting sex discrimination to imply that the people of Mass. committed themselves to the principles that lead to SSM. But self-imposed constitutional restraints must mean what the people who voted for them intended them to mean. There is copious evidence that the people of Mass. did not intend to demand SSM in 1976. Exhibit one is the fact that they didn't change their statutes to legalize it at the time. Twenty-seven years later, the MSJC concluded that the people demanded SSM without realizing it. IMHO, no one honestly believes that the people of Mass. have yet consented to SSM. Goodridge merely demonstrates the truism that, with enough dishonesty and chutzpah, a clever lawyer can twist anyone’s words to mean anything at all.

Second, Goodridge isn't a restraint. It doesn't invalidate an action of the people or their representatives. The people simply want the same law they've always had. Goodridge is indeed a matter of constitutional law, but not one in which a calm judiciary must restrain the passionate mob. Instead, the court is taking action to change the law, and the people are struggling to assert their right of self-government.
posted by Eve at 11:23 PM | link 0 comments

HOLY MATRIMONY!: Lisa Duggan in The Nation

...The right wing's fear of a "slippery slope" suggests some ways that this eclectic array of statuses might move us in a progressive direction. Kurtz himself, citing Brigham Young University professor Alan Hawkins, sketches out what is to him a distasteful scenario:

"Consider the plight of an underemployed and uninsured single mother in her early 30s who sees little real prospect of marriage (to a man) in her future. Suppose she has a good friend, also female and heterosexual, who is single and childless but employed with good spousal benefits. Sooner or later, friends like this are going to start contracting same-sex marriages of convenience. The single mom will get medical and governmental benefits, will share her friend's paycheck, and will gain an additional caretaker for the kids besides. Her friend will gain companionship and a family life. The marriage would obviously be sexually open. And if lightning struck and the right man came along for one of the women, they could always divorce and marry heterosexually.

"In a narrow sense, the women and children in this arrangement would be better off. Yet the larger effects of such unions on the institution of marriage would be devastating. At a stroke, marriage would be severed not only from the complementarity of the sexes but also from its connection to romance and sexual exclusivity--and even from the hope of permanence."

Gee. Sounds good. Then consider how such arrangements might benefit women, children and others even more substantially. What if there were a way to separate the tax advantages of joint household recognition, or the responsibilities of joint parenting, from the next-of-kin recognition so that such rights might go to a non-co-resident relative, a friend or a lover? And what if many benefits, such as health insurance, could be available to all without regard for household or partnership status? The moral conservative's nightmare vision of a flexible menu of options might become a route to progressive equality! That could happen--if all statuses could be opened to all without exclusions, allowing different kinds of households to fit state benefits to their changing needs; if no status conferred any invidious privilege or advantage over any other, or over none at all; and if material benefits such as health insurance were detached from partnership or household form altogether (federally guaranteed universal healthcare, for instance, would be far more democratic and egalitarian than health insurance as a partnership benefit). Meanwhile, the "sanctity" of traditional marriages could be retained and honored by religious groups and families, according to their own values and definitions. ...

...The "Roadmap to Equality: A Freedom to Marry Educational Guide," published by Lambda Legal Defense and Education Fund and Marriage Equality California, begins with the kind of banal American Dream rhetoric that appeals to some gay people, but misdescribes, annoys and even stigmatizes many others:

"Gay people are very much like everyone else. They grow up, fall in love, form families and have children. They mow their lawns, shop for groceries and worry about making ends meet. They want good schools for their children, and security for their families as a whole."

The guide goes on to recycle some of the more noxious views routinely spouted by conservative moralists:

"Denying marriage rights to lesbian and gay couples keeps them in a state of permanent adolescence.... Both legally and socially, married couples are held in greater esteem than unmarried couples because of the commitment they have made in a serious, public, legally enforceable manner. For lesbian and gay couples who wish to make that very same commitment, the very same option must be available. There is no other way for gay people to be fully equal to non-gay people."

No other way? How about abolishing state endorsement of the sanctified religious wedding or ending the use of the term "marriage" altogether (as lesbian and gay progressives and queer leftists have advocated for decades)? In a bid for equality, some gay groups are producing rhetoric that insults and marginalizes unmarried people, while promoting marriage in much the same terms as the welfare reformers use to stigmatize single-parent households, divorce and "out of wedlock" births. If pursued in this way, the drive for gay-marriage equality can undermine rather than support the broader movement for social justice and democratic diversity.

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

ITHACA MAYOR SUPPORTS SSM: From News10 Now

Ithaca's mayor spoke out on the issue of gay marriages Monday.

Mayor Carolyn Peterson says gay marriages will be recognized in Ithaca, they just won't be performed.

Mayor Peterson said any application for a marriage license from a same-sex couple will be accepted and then passed on to the State.

The State Health Department says same-sex marriages are illegal.

Mayor Peterson says if those applications are denied in Albany, the city of Ithaca and its attorney will fight the decision.

"Same-sex couples deserve the equal protection of the law, the same as any other couple. They deserve to be able to bring their families out of the status of second-class citizenship and into the full array of rights and responsibilities that are available to married couples," she said.

Two couples applied for licenses Monday morning and those licenses are already being forwarded to the Health Department.

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posted by Eve at 11:12 PM | link 0 comments

CHANGING THE CONSTITUTION: Jonah Goldberg

I'm still ambivalent about the FMA, but I'm confused by one of the main arguments of its opponents. I keep hearing that it's terrible to "change" or "tinker" with the Constitution. I'm sympathetic, but the gist of these arguments makes it sound like the Constitution currently has a fixed meaning. I wish! In fact, the folks fretting over changing the Constitution are largely -- though not entirely -- the same people who celebrate the pernicious doctrine of a "living Constitution." There are conservative opponents of the FMA who are consistent in their opposition to both an amendment judicial activism.

Which brings me to my confusion.

What I don't understand is why it's a great thing for unaccountable judges to change the meaning of the Constitution without a public debate while it is some form of tyranny for the House, Senate and fifty states to debate the issue over the course of months or years under the glaring spotlight of the media.

Before you answer that an amendment is more permanent, let me pre-emptively say: Not so fast. Amendments can be, and have been, repealed or superceded. Meanwhile, I'm hardly convinced that decades of activist jurisprudence could be rolled back -- and I'm certainly not persuaded that it could be done more quickly than the repeal of a Constitutional amendment. For example, tell me exactly what could be done under our regime to reverse the Supreme Court's banning of sodomy laws under Lawrence. I'm against sodomy laws, but I don't think they're necessarily unconstitutional. In effect, the Supreme Court amended the constitution just last year and the pro-gay marriage folks cheered.

Of course, there are other arguments against an FMA, but particularly since so many advocates of gay marriage openly celebrated the flagrantly illegal weddings in San Francisco and elsewhere as well as the flagrantly activist re-writing (i.e. "tinkering" "changing" etc) of the Mass. State constitution, it's increasingly difficult to take their arguments as good faith efforts. Indeed, my guess is if there was hope it passing we'd be hearing how we need an FMA to require all states to recognize gay marriages, the sanctity of the Constitution notwithstanding.

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posted by Eve at 11:10 PM | link 0 comments

ANTI-DISCRIMINATION AND EQUALITY: Elizabeth Marquardt replies to Tom Sylvester

Tom's post on anti-discrimination and equality raises a very good point. Of course if we find that biracial young people do worse on child outcomes that doesn't mean we should prohibit interracial marriages. But the problem with the SSM debate in contained within Tom's post. At the beginning he notes what I see as the major problem, that the cheerleading advocates for SSM continually say that children of SS couples do great, just great, on every outcome, and this has been shown by countless studies. They're wrong. The studies are limited, almost none of them are representative, and most of them focus on very specific questions such as whether these children are more likely to become gay and lesbian themselves. The question of how growing up in a SS couple family might shape their identity formation overall isn't even entertained.

So, at the moment we're willing to say that biracial children have a more complicated identity formation process. My own forthcoming book will argue similarly that children of divorce have a more complicated identity formation process. But who's willing to ask the questions, fund the large-scale projects, conduct the research and, if the data bears it out, make the case widely that children of SS couples have a more complicated identity quest?

OK, so what if all that happens and at some point our society is miraculously willing to acknowledge the possibility that SS couple kids have a rougher time? What do we do then? One radio host suggested to me recently that maybe we could just marshal resources to help those kids -- if we understand them better then we can get the psychologists on board to help out. But I find that depressing and insufficient. All we've done then is further supported the encroachment of the therapeutic culture into childhood. That's our society's answer to every childhood problem nowadays. Don't bother looking at how adult choices are impacting children's lives. Just bring in the school counselor, some self-help books, and a bunch of Prozac.

Is this a powerful argument against SSM? Maybe not. But I've said all along that I'd like this debate a lot better if advocates for SSM would be even willing to acknowledge the possibilty that growing up the kid of a SS couple could be hard -- and hard not just because of social stigma but for reasons internal to the family structure as well. Moreover, the experience of SS couple kids is only the small part of my argument. The big part is that legally redefining marriage, making it gender neutral, makes us unable to say that children need their *mother* and their *father*. The active public silencing of the importance of mothers and fathers that will be necessary to sustain legal and normative SSM will impact many, many kids of straights in negative ways, all in order to satisfy the desires of that minority of the gay and lesbian community who want to marry, who themselves are a very small minority of the population. Civil unions can accord legal rights and obligations to their relationships and give that apparently all important mark of social approval. Why redefine marriage?

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posted by Eve at 11:07 PM | link 0 comments

EVAN WOLFSON AND GLENN STANTON DEBATE SSM: From the Denver Post

YES: Marriage is a civil right for all

...Opponents claim marriage and civilization itself will be destroyed if discrimination ends. But this is not the first time our country has struggled over exclusion from marriage. Previous chapters in U.S. history have seen race discrimination in marriage, laws making wives legally inferior to husbands, resistance to allowing people to end failed or abusive marriages through divorce, and even a refusal to allow married and unmarried people to make their own decisions about whether to use contraception or raise children.

In each of these civil-rights struggles, opponents claimed that the proposed change was "against the definition of marriage" or "against God's will." Fortunately, our country rejected the sky-is-falling claims of opponents and made marriage a more inclusive and fair commitment of equals. As the Massachusetts court and others have made clear, government simply has no good reason for continuing to deny same-sex couples marriage licenses.

By contrast, there are many reasons to support marriage equality. From tax treatment to cheaper "family membership" rates, from the ability to ensure a spouse's health care in times of crisis to the right to inherit hard-earned pension or Social Security, older couples like Del and Phyllis as well as the children raised by same-sex couples need and deserve the protections and security marriage can bring to their families. There is no good reason for shoving any group of Americans outside the legal protections and responsibilities their taxes pay for, or to deny gay people the dream of building a life together with a partner in marriage.

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NO: Majority of Americans are against it

...Gay activists have gained their ground through emotional manipulation and by diverting the public's attention away from the thousands of scientific studies that tell us how healthy child-development requires mothers and fathers. They have manipulated us by hijacking civil-rights language. As a result, millions of boys and girls will be subjected to intentionally motherless and fatherless families for no other reason than to fulfill the desires of adults who want such families....

The real reason the overwhelming majority of African-Americans and two-thirds of all Americans oppose same-sex marriage is because they understand that it fundamentally redefines the family and says mothers and fathers don't matter for children. And the black community, more than any other, has suffered under the ravages of this. The Rev. Walter Fauntroy, coordinator of the 1963 March on Washington and president of the National Black Leadership Roundtable, recently warned, "Don't confuse my people who have been the victims of deliberate family destruction by giving them another definition of marriage."

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

RACE AND SEX: Eve Tushnet

The comparison between same-sex marriage and interracial marriage rests on a lot of different factors. But in order for the comparison to be valid, race and sex have to be equally irrelevant in family and marriage. Here are a few reasons to think that when it comes to family and marriage, not all differences are the same kind of difference--the difference between men and women doesn't work like the difference between the various races or ethnicities.

1) Sexual difference is a human universal. Read Homer; you won't find anything we'd recognize as racial difference, but you will find men and women--not just "people." Our modern conceptions of race vary radically from culture to culture (ask Brazilians who are surprised to learn that Americans consider them "black," or African-Americans who are surprised to learn that Nigerians consider them "white"). They're historical inventions--innovations. Conversely, sexual difference has been noticed and addressed by cultures as far back as we can tell. And Americans can recognize Brazilian men, while Nigerians can recognize American women. I'm working on a longer piece on why those who love poetry and those who believe in a creator God should be especially attuned to the reality and importance of gender; but for the moment I'll point you to an older piece, here.

2) The differences between men and women matter in families. Men look to their fathers first and foremost when they seek to learn what it means to be a man. Women often view their mothers as almost "another self"; the identification is so strong that it's often necessary for women with troubled relationships to their mothers to do deep soul-searching so that they can forgive their mothers, because without that forgiveness they find it exceptionally hard to forgive and come to terms with themselves. Women look to their fathers first and foremost to learn what they can expect from a man.

Both sons and daughters look to their fathers to learn what a man's role in the family is. Women whose fathers were not present or only intermittently present have a much lesser sense that they can demand loyalty and commitment from the men they love. You see this again and again working with people whose fathers never married their mothers: There's a real struggle, for both sons and daughters, to understand that fathers have a real and necessary role to play in their children's lives. It's really hard for the sons to figure out how to be men and how to relate to the mothers of their children; it's really hard for the daughters to learn that they can demand more commitment from the men they sleep with than their own fathers provided.

Same-sex marriage says, among many other things, that fathers are not a necessary part of an ideal family. And when you tell fathers that they're not necessary... sometimes they believe you.

3) Finally, let me riff on something Maggie Gallagher said the other day: Anti-miscegenation laws were designed to keep the races apart so that one could oppress the other. I'd add: Marriage--husband-and-wife marriage--is designed to bring and keep the sexes together so that the differing risks they run in intercourse don't lead to one sex getting jerked around by the other.

Sorry this is so rushed--I have to be on the road in thirty minutes. More soon.
posted by Eve at 10:02 AM | link 0 comments

IS THIS THE NEXT CIVIL-RIGHTS STRUGGLE? Mark Tardiff

Is SSM a civil rights issue? My response is: no, definitely not.

As I argued in my exchange with Mark Barton, the only way that the Massachusetts justices arrived at their decision was by illegitimately substituting their philosophical understanding of the nature of marriage for that of the legislators. Without this substitution, SSM is not a civil right; it is an oxymoron.

Negatively, the charge of bigotry cannot stand. The antimiscegenation laws which are often invoked are a much later addition to the common law tradition introduced because of increased contacts between the races. When the common law tradition of marriage as the union of a man and a woman was formulated no one had the foggiest idea that two people of the same sex would ever want to marry. How can marriage have been defined out of an alleged bigoted desire to keep certain people out when the supposed object of the bigotry was unimaginable?

Positively, the traditional understanding of marriage is the natural result of an entire worldview concerning reality, human nature, human sexuality, society, etc. As has been noted, it is one of the few universals of human society in all times and places. This worldview has a breadth and a depth that has imparted meaning to millions, if not billions of people's lives. By contrast, the antimiscegenation laws have no positive content and so reveal their origin in bigotry.

The charge that the anti-SSM position is a result of bigotry is, at best, a sign of an inability to understand another point of view. It is, at worst, the use of the tactic of "jamming" described in the book After the Ball, by which opponents are to silenced through a smear campaign without trying to answer their arguments.

SSM is not a civil rights issue; what is at issue is what Princeton professor Robert George aptly calls "a clash of orthodoxies" in the book by the same name. That is, it is a clash of worldviews, of ways of understanding reality. The ultimate question of this debate is: which of these views is true and so a sound basis for ordering society?
posted by Eve at 9:41 AM | link 0 comments

ANTI-DISCRIMINATION AND EQUALITY: Tom Sylvester

...Yes, the analogy to interracial marriage is flawed in significant ways. Yet I think it holds here, in part. Even if children from interracial relationships don't do as well, we should fight discrimination and racial essentialism, not discourage men and women with differing skin colors from loving each other. Similarly, even if children with same-sex parents face more challenges, so what? Gays and lesbians face widespread disapproval, discrimination, and hatred. We should focus on fighting anti-gay attitudes, not on preventing same-sex couples from adopting children. It's likely that some of the challenges that go with same-sex parenting stem from these anti-gay attitudes. (And, so far, available research--limited as it may be--doesn't reveal any red flags for concern about same-sex parenting.)

One valid objection to this argument is that children from interracial marriages live with both of their biological parents, whereas children from same-sex marriages automatically live in de facto stepfamilies. It's certainly true that children in stepfamilies don't do as well as children from intact families. But most children with same-sex parents are adopted or are children of divorce. For these children, the ideal family structure--the intact, married mother-father family--is not an option. Furthermore, the law doesn't prohibit heterosexual couples from marrying if either spouse has children from another relationship. Indeed, it's probably better for the children involved if a single parent remarries instead of just cohabits with his or her new partner. Many children are being raised by same-sex couples; marriage would offer these families legal protections and social legitimacy.

There's one key question that I, as pro-marriage advocate, struggle with continuously: At what point does promoting the intact, married mother-father ideal hurt the interests of children overall by neglecting those in other family types? An extreme pro-marriage position--e.g., cutting off all welfare payments to single parents to discourage out-of-wedlock childbearing--would hurt children far more than it would help them. The ideal is not to be promoted at any cost. So, would gay marriage weaken the normative ideal of children growing up with both their mother and father? Though the actual negative impact is likely to be small, yes, gay marriage would weaken that ideal. But the fight against discrimination, and the fight for equal human dignity, is worth it.

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

BOTH SIDES COURT BLACK CHURCHES IN DEBATE OVER GAY MARRIAGE: From the New York Times

Speaking recently to a group of black evangelical ministers and lay people here, Genevieve Wood of the conservative Family Research Council made an impassioned plea. Black Christians, she said, must speak out against advocates of gay marriage.

"They are wrapping themselves in the flag of civil rights," said Ms. Wood, who is white, as visitors from across the country shook their heads in dismay. "I can make arguments against that. But not nearly like you all can."

As Ms. Wood has been brokering alliances to oppose gay marriage, Donna Payne, a board member with the National Black Justice Coalition, a black gay and lesbian organization formed to increase acceptance of gay rights among African-Americans, has been appealing to liberal black clergy members. Reaching out to potential supporters, like the Rev. Abena McCray of the Unity Fellowship Church in Washington, Ms. Payne argued that recognizing gay marriage was a matter of equal rights.

"We have to find ministers who will stand with us," Ms. Payne said, while going through her list of contacts. "We have to at least try to bring some balance to the discussion." ...

But the aggressive outreach is rife with complications. Neither white conservatives nor gay-rights advocates have had great success in sustaining broad alliances with black churches in the past. ...

And the prize often generically referred to as "the black church" is actually a diverse collection of historically black denominations and congregations that covers a wide range of theological and social beliefs.

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posted by Eve at 9:39 AM | link 0 comments

COURTS COULD MAKE PARALLELS WITH OLD RACIAL LAWS: From the San Francisco Chronicle

More than a half-century ago, the California Supreme Court became the first in the nation to overturn a law banning interracial marriage, a prohibition that was then widespread and had strong public support.

The current battle over same-sex marriage, now before the state's high court, may depend on how the court compares present-day, opposite-sex-only marriage laws with the racially discriminatory laws of an earlier day. It's a point on which the opposing sides disagree sharply.

The ban on interracial marriage was based on the asserted "superiority of the white race,'' said attorney Jon Davidson of the Lambda Legal Defense and Education Fund, which has joined in the defense of same-sex weddings in San Francisco. At the heart of the current marriage prohibition, he said, is "an attempt to keep gay people inferior.''

John Eastman, a professor at Chapman University School of Law in the city of Orange, countered that the case against same-sex marriage "is grounded in human nature,'' the recognition "that men and women are different genders.'' The old racial laws, he said, derived from "a failure to recognize the equal humanity of blacks and whites.''

But during most of the nation's history, defenders of laws against interracial marriage also offered arguments based on human nature: that certain races were physically and mentally inferior, that mixed-race couples and their children would arouse antagonism and social tension, and that only the "dregs of society,'' as lawyers in the California case put it, were likely to marry outside their race. ...

Laws against same-sex marriage are even more widespread than the former racial laws and enjoy equally strong public and political support. The same- sex bans are mostly newer -- California's statute was passed by the Legislature in 1977 and reinforced by the voters in 2000 -- but they're based on much older policies that were rarely if ever challenged. Most important, both types of prohibitions were imposed on politically weak minorities with a history of persecution, the grounds traditionally cited by U. S. courts for intervening to curb oppression by the majority.

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

MULTICULTURAL MARRIAGE: From the Boston Globe

ON WEDNESDAY, the day after President Bush claimed that "ages of experience" support a ban on same-sex marriage, the world's largest organization of anthropologists -- "the people who study culture," as they put it -- responded by challenging the president's support for a constitutional amendment defining marriage as between a man and a woman.

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According to a statement from the executive board of the 11,000-member American Anthropological Association, more than a century of cross-cultural anthropological research provides "no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution." Instead, anthropologists have concluded that "a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies."

Reached at her office at Albion College, in Michigan, AAA president Elizabeth M. Brumfiel cited the "widespread" Native American berdache tradition (in which males assumed female roles and married other males) and the existence of "sociological males" (women who assume male roles) among the Nuer of Sudan as examples of ways that societies have condoned same-sex marriage without collapsing. "People tend to rank their own culture as best, but anthropologists try to take a broader view," said Brumfiel.

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posted by Eve at 9:34 AM | link 0 comments

CLONING AND SSM: Elizabeth Marquardt replies to Barry Deutsch

Barry Deutsch compares my arguments against cloning and SSM. (I posted this previously but messed up the link; apologies.)

He takes my arguments seriously, and I appreciate that. But I don't think excluding SS couples from marriage is "sacrificing" them, as he repeats many times. If anything, I think legally including them so that our entire language of marriage would have to be gender neutral -- husbands and wives, mothers and fathers, become "spouses" and "parents" -- would be sacrificing the needs of straight people and particularly their children to satisfy the desire of a very small number of gay and lesbian people. In public schools, the public square, and polite conversation, all we will be able to say is children need "parents." Saying they need mothers and fathers will be offensive and possibly ruled discriminatory. How do I make my case that family structure matters to children when I'm not allowed to name the specific parts of the structure?

Besides, I don't deny that SS couples and their children need the legal benefits and obligations of marriage, which is why I support civil unions.

Gee, remember when just a few months ago it put one comfortably on the left to say you supported civil unions?

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posted by Eve at 9:33 AM | link 0 comments

POLYGAMY AND INCEST: Matt Taylor

It is somewhat surprising that conservatives cite future legalization of polygamy and incest as reasons to oppose SSM, i.e. the "slippery slope" argument. The most convincing arguments offered against SSM, in my view, are based on its potential to disconnect marriage from child-rearing, and to separate children from their biological parents. Polygamous and incestuous marriages would do neither, assuming that they are heterosexual.

Of course, there are other reasons one might oppose polygamy or incest, and everyone agrees that exploitation of children should be prohibited under any circumstances. Between consenting adults of the opposite sex, however, I would expect conservatives to oppose polygamy or incest less strenuously than SSM, not more.

Equally puzzling are liberal attempts to embrace SSM while opposing polygamy and incest. If one belives that individuals are entitled to live as they please as long as they do no harm to others, then it makes no sense to prohibit consenting adults from marrying multiple spouses, their first cousin, etc. Attempts that I've seen to reconcile these positions seem contrived.
posted by Eve at 9:27 AM | link 0 comments

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

[Tardiff in bold, Barton in plain text.]

Mark Tardiff: If I understand him correctly, Mark Barton at least agrees that the Massachusetts justices treated marriage as a social construct.

Mark B.: No. I claim (i) that there is more than one concept of marriage in play, (ii) that it is therefore meaningless to state that "marriage" (without qualification) is a social construct and (iii) that the MSJC clearly thought civil marriage was a social construct, which it clearly is. The individual justices may or may not have thought that there was substance to a conception of marriage as a "natural reality" but we cannot draw any conclusions from the judgment because, I think quite rightly, they specifically consider only civil marriage.

Mark Tardiff: 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.

Mark B.: Not at all. It is certainly very likely that the founders thought there was a natural reality of marriage, ordained by God. At the same time, they knew, or had every reason to know that in trying to regulate it they were inevitably going to create a parallel institution.

First, they could hardly expect to get the entry and exit conditions to coincide. Let's assume that the founders envisaged a "natural reality" according to traditional Christian doctrine: that a marriage is made by an exchange of promises plus the intent to consummate. (The involvement of Christian clergy is recommended but not mandatory, and government officials are entirely surplus to requirements.) Legislators can demand that vows be made in front of government officials or that paperwork be filled out, but if people choose to disregard the law and make the promises anyway, then by hypothesis, they're married as a matter of natural reality, even though not civilly married. Conversely, if they complete the paperwork without the intention to consummate, they're civilly married without being married as a matter of natural reality. Thus even under the most generous acknowledgment of the natural reality idea, there are inevitably two separate institutions, philosophically and practically distinct, one of which is totally a social construct.

Now of course, it was also very likely the founders' intent to have civil marriage approximate their conception of marriage as natural reality, and in particular some opposite-sex version. But quite properly, the court is only required to consider intent when settling the meaning of disputed language. The MSJC already paid plenty of deference to intent when it rejected the plaintiffs' argument that nowhere was it made explicit that
marriages were to be opposite-sex only. The court allowed that simply by
using the word "marriage" the legislature was making clear its intent to
have Massachusetts civil marriage conform, if not to a "natural reality,"
then at least to a much older and unambiguous opposite-sex legal tradition. The issue is not what the legislature intended, the issue is whether they have the power under the constitution to do it. One would hope that mere clear intent to do something that violates the constitution was never accepted as licence to do so.

Mark Tardiff: 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.

Mark B.: But civil marriage has always been a "toy of fashion." It's wholly the creation of a sovereign legislature, subject only to the state and federal constitutions. The legislature has almost total freedom to make civil marriage approximate some natural-reality conception, but equal freedom to do the opposite, as it sees fit. Indeed as the court noted, the legislature has actively backed away from trying to make marriage the supposedly "favorable setting for procreation" that was part of the traditional conception and the proffered rationale for the status quo (p23-25). It really would be judicial activism for the court to try to reinstate whatever model the founders had in mind (by, say, rejecting no-fault divorce) if the modern legislature had moved away from it. Why then, in a case where we have a perfectly clear prima facie violation of the equal rights and due protection clauses, should the courts grant an exception based on a rationale that an earlier legislature might have used, when the modern legislature, despite what its lawyers say, has clearly been working to a different conception?
posted by Eve at 9:24 AM | link 0 comments

DEMOCRATIC SSM?: Mark Barton replies to Ben Bateman

[Ben in bold, Mark in plain text.]

Ben Bateman: It's good to hear that an ardent SSM supporter is also a big supporter of democracy.

Mark B.: Note that by no means am I a supporter of unfettered democracy and neither did I mean to criticize anyone for not making it their paramount concern. I was criticizing the hypocrisy of espousing such a concern and then supporting an FMA of the Musgrave type, especially at a time where it is overwhelmingly likely that public opinion will reverse in the next 10-20 years.

Ben Bateman: 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?

Mark B.: Not at all. The MSJC was simply doing its job of interpreting the Massachusetts constitution, and in particular the equal rights clause. Like the provisions for freedom of religion and freedom of the press in the federal constitution, an equal rights clause is a cheerfully anti-democratic thing. It says in effect that no matter how many votes of like-minded people you may be able to muster, you may not have the government discriminate on certain criteria. The ERA was inserted in the first place because people recognized, quite properly, that discrimination with respect to sex, race and the like was too tempting and too subject to abuse. Thus I think Ben's criticism of the MSJC is about as reasonable as the smoker in withdrawal who's abusing me today for not returning the tobacco of his that he told me to hide yesterday.
posted by Eve at 9:18 AM | link 0 comments

THE MASSACHUSETTS "COMPROMISE": Maggie Gallagher

...The first "constitutional convention" met February 11, voted down several versions, and adjourned to March 11. Now influential opponents of gay marriage appear to be ready to sign on to a truly disastrous "compromise," a constitutional amendment that would a) declare "married" to be a unique status consisting of a man and a woman and b) simultaneously declare civil unions to be, now and forever, the exact legal and constitutional equivalent.

Some legislators are even quoting me in defense of this bill. "Civil unions," I wrote in the Weekly Standard, are "one bad step" away from a marriage culture, while gay marriage is "the end of the road."

Yes, that's true -- I wrote that. I did not, and do not, think a federal marriage amendment should try to ban civil unions. But constitutionalizing civil unions as the eternal equivalent of marriage is a wholly different, and much worse, proposition. It will not overturn Goodridge, it will ultimately affirm it. Here's why.

First, there is an obvious contradiction between the first statement and the second. If marriage is a unique status, why are civil unions given the equivalent status in the state constitution? Where legislation or wordings are self-contradictory, courts must step in to rationalize the meaning. And the Goodridge court has already declared that it sees no rational reason at all for treating marriage between men and women as special. (In fact, the court is so indifferent to marriage that, in a footnote, it suggested that while normal marriage is utterly irrational, abolishing marriage as a legal category "might well be rational and permissible...")

...Expect most of the negative consequences of gay marriage to issue from it immediately: Public schools will be forced to teach in sex-ed, home-economics classes, and abstinence education that same-sex unions are the legal equivalent of marriage; religious organizations will be forced to either treat same-sex unions as marriages or get out of the public square.

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posted by Eve at 9:13 AM | link 0 comments

ANDREW SULLIVAN ANSWERS FRUM

David Frum cites several examples of potential legal thickets over marriage rights and asks me to say what I think of them. He asks whether the federal government would be required to recognize Massachusetts marriages. Right now, DOMA says no. For the feds, same-sex couples don't exist. The rest are all versions of the same hypothetical: that some legal challenge might occur that involves the legal standing of a Massachusetts civil marriage of a gay couple in another state. ...Legally, the most apposite statute is the following one from Massachusetts, delineating the scope of a civil marriage from that state:

"No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void."

So deliberate attempts to bypass other states' laws on the matter would seem to me to be fruitless. But what about when one spouse of a Massachusetts marriage is inadvertently traveling elsewhere, and something happens, as in Frum's vacation example? I'd hope, for humane reasons, that a spouse would not be denied access to a hospital room elsewhere or ruled out of a precious medical decision. But I'm afraid, given DOMA, given the public policy exception of most states, such a cruel decision would be fully legal in other states. ...In other words, I would reluctantly acquiesce in a married couple being torn apart if they traveled across state borders. That happened often when anti-miscegenation laws were valid in some states but not others (a full treatment of the miscegenation precedents can be found in my anthology, "Same-Sex Marriage: Pro and Con.") I'm resigned to it happening again.

TURNING IT AROUND: But let's turn the question around. In every instance Frum cites, he wouldn't only be happy to prevent such basic protections from being recognized in other states. He would ban them outright in Massachusetts--or any other state--as well. Frum also opposes all civil unions laws and domestic partnership laws for gays. ...So my question back to Frum is simple: which of your 1,049 civil marital privileges would you be willing to grant a married gay couple?

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posted by Eve at 8:30 AM | link 0 comments

CULTURE WAR BEING RESHAPED; CONSERVATIVES LOWER EXPECTATIONS: From the San Francisco Chronicle

...Yet in a subtle if critical way, the terms of engagement have changed sharply from the bitter clashes of a decade ago. Even many who embrace so-called traditional values admit that the culture wars have been kept alive only because, in many instances, conservatives have lowered their expectations significantly. Based on the standards of even five years ago, the war would seem to be over. ...

Zogby said some elements of the battle are "mind-boggling, but telling."

"Here we are on the verge of cloning humans," he said, "and on the other hand, we're still debating whether we should be teaching kids about evolution."

What most conservatives do concede is that the "wars" being fought are far different now. Activists are being forced to narrow their targets, while giving up entirely on some issues.

"As far as adults are concerned, there is no culture war anymore," said David Horowitz, a conservative commentator and director of the Center for the Study of Popular Culture. "You get to see anything you want anytime. It's all there. I mean, who talks about the V-chip anymore?"

Yet, he added, "There is an argument conservatives can make now, and it is about process. That's the real battle. We just want to make sure that liberals don't destroy the institutions that mediate these cultural conflicts. " ...

Conservative activist William Donohue, the president of the Catholic League for Religious and Civil Rights, says he believes Bush's proposal for a constitutional amendment is a "cultural tipping point" that will restore a "culture of restraint and decency."

The ban will not prevent the acceptance of gay culture, he acknowledges, nor will it prevent same-sex civil unions, which he now supports. What it will do, he says, is prevent those couples from actually saying they are married, even if they enjoy virtually the same rights.

"I don't like all-or-nothing approaches anymore," Donohue said.

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posted by Eve at 8:27 AM | link 0 comments

JOINING THE DEBATE BUT MISSING THE POINT: Nathaniel Frank

...For a productive dialogue, we should be asking the question this way: is giving gays the right to marry good for society? And to answer that, we must ask what larger social purpose marriage serves.

The main reason marriage is considered good for society is that committed relationships help settle individuals into stable homes and families. Marriage does this by establishing collective rules of conduct that strengthen obligations to a spouse and often to children. ...

The argument is not so much that individual straight couples are threatened by gay marriage, but that the collective rules that define marriage are being undermined. Instead of feeling part of a greater social project that demands respect, people will feel that breaking their vows offends only their spouse, not the whole community. Knowing that their friends and neighbors no longer hold marriage sacred can make it easier for people to wander.

Thus it is inadequate to argue that marriage is a basic civil right because it cannot be extended to all unions -- to the brother who wants to marry his sister, to the man who wants two wives, to the 10-year-old who wants to marry her teacher. Marriage could indeed lose some of its current meaning and power if society legalized unions between relatives, groups or children.

What about gays? While marriage may not be a universal civil right, it is a social institution that gays deserve to join. The best argument for gay marriage is that it serves the same social function as all other marriages.

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posted by Eve at 8:23 AM | link 0 comments

PROFILE OF SF MAYOR GAVIN NEWSOM: From the San Francisco Chronicle

To the few who paid him any attention outside the Bay Area, Gavin Newsom seemed like a most un-San Francisco sort of mayor.

Clean-cut, well-heeled and relatively moderate, he hardly fit the caricature of a man who would preside over the free-spirited capital of the Left Coast. Conservative Democrats praised him and even Republicans looked with wonder to the mainstream product emerging from the Golden Gate.

Then, on his 36th day in office, Newsom ordered the city to begin issuing marriage licenses to same-sex couples. Immediately, the whole world began to pay attention. The stereotype was fulfilled. And today, the 36-year-old Newsom ranks, perhaps after Chicago's Richard Daley and New York City's Michael Bloomberg, as America's best known mayor. ...

Some speculate that after a closer-than-anticipated election, Newsom was searching for a way to endear himself to his San Francisco constituents or make a national name for himself. Others believe Newsom has taken a political risk that could mar his once-vaunted political future.

Newsom insisted in an interview Friday at his City Hall office that he's not paying attention to his political future and suggested the newfound national attention will fade. ...

Yet Newsom is seen as someone who might have a long future in the Democratic Party. The Democratic Leadership Council, which helped launch the presidential campaigns of Bill Clinton and Al Gore, has twice hailed Newsom as one of the top 100 "New Democrats to watch.'' ...

"If Newsom was looking for some way to distinguish himself from the run of young up-and-coming major pols, he certainly found it,'' said Cragg Hines, a columnist for the Houston Chronicle who recently praised Newsom in a piece titled: "A joyous, well-placed thumb in the eye.''

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posted by Eve at 8:18 AM | link 0 comments

HOW THE JUDGES FORCED THE PRESIDENT'S HAND: Lisa Schiffren

...Amending the Constitution is a big deal, and as a conservative, President Bush wouldn't seek to do so if there were other political or legal options. But his hand was forced. The mayor of San Francisco, in contravention of all existing state and federal law, started handing out marriage licenses to same-sex couples as if they were political placards. More ominously, four Massachusetts judges, looking to bring about radical social change from the bench, decided that their commonwealth must begin performing same-sex marriages this spring. Undoubtedly, there are more judges across the country waiting for their chance to be creative, too. Whether you favor gay marriage or not, it should be a concern when judges and officials decide to circumvent the democratic process on a core issue. ...

[Marriage] is society's basic institution for raising children. It expresses the unique relationship between men and women, an ideal based on love and care that is harnessed to the future: the next generation. It is how we protect children from the pain and frequent poverty of fatherlessness and family breakdown. Like private property and the rule of law, marriage is one of a few institution that hold up democracy. The ultimate benefit of an amendment is that it would ensure a uniform national definition of this vital institution.

What marriage most certainly is not is a benefits grab. It does not exist for the sake of providing health benefits or minimizing estate taxes. To the extent that those are the issues at stake for gay men and women, they can and should be rectified in state and local law.

And that's exactly what's been happening. Consider the widespread changes in adoption laws, nondiscrimination policies and corporate benefit plans favoring same-sex couples. In terms of social attitudes, there is now greater acceptance of gay people than anyone could have imagined a few decades ago. This is a good thing. And it will likely continue. Evolution is preferable to judicial fiat.

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posted by Eve at 8:12 AM | link 0 comments

IN WASHINGTON, THE EMPATHY THAT DARE NOT SPEAK ITS NAME: Sally Quinn

[I have a weakness for these "inside the minds of the elite" pieces.--Eve]

Shortly before Christmas, after the Massachusetts Supreme Court ruling that same-sex couples had the right to marry, a group of friends were having dinner here and the subject came up. We were six heterosexual couples -- Catholics, Protestants, agnostics, one Jew and one atheist. There were journalists, a teacher, a gourmet cook and a businesswoman, and we were from all four corners of the nation.

We decided on a show of hands. Everyone was in favor of same-sex civil unions. But marriage? Only one couple agreed with each other on the issue. The rest of us looked at our spouses as though we were suddenly married to strangers. ...

I did an informal poll this week of our December dinner group, and now the ones who were against gay marriage have softened their positions. "At first," said one, "I had a problem with the notion of the tradition of marriage, the difference between the civil and the religious aspects of marriage. But then I realized that religion was not to be considered as a requirement. That was the tipping point for me. We have these traditions, but we shouldn't mess with equality."

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posted by Eve at 8:08 AM | link 0 comments

SAME-SEX WEDDINGS BRING DIVISION TO AN UPSTATE VILLAGE: The New York Times

Until the past few days, this Hudson Valley hamlet was the kind of place where residents often waved to strangers across Main Street and where diverse views on social issues were tolerated, if not downright encouraged. But since last week, when the mayor, Jason West, thrust it into the national debate over same-sex marriage, New Paltz has become a village divided.

"I must have overheard more than one hundred discussions about gay marriage in the last few days," said Paul D. Schembri, a waiter serving Sunday breakfast at the Main Street Bistro. "The numbers for and against are pretty much split down the middle, but there is a clear divide between the young people who support the marriages and the older residents who really hate what the mayor did."

On Friday, Mayor West, 26, a Green Party member, performed 25 same-sex marriages in the Village Hall parking lot. Since then, more than 800 people from across the country have signed onto a waiting list to wed in the village. The mayor has said he will resume performing same-sex marriages on Saturday.

Whether those same-sex couples will be considered legally wed under state law -- and entitled to the same benefits as married couples of the opposite sex -- is likely to be decided by the courts.

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posted by Eve at 8:00 AM | link 0 comments