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 Friday, March 26, 2004
NEW QUESTION: SHOULD WE LEAVE IT TO THE STATES?
Both supporters and opponents of same-sex marriage have argued that each state can and should decide whether or not to legalize same-sex marriage. They argue that a federal solution is unnecessary and would make fruitful experimentation with differing marriage forms impossible. Others argue that America would be damaged if we had such radically different definitions of marriage from one state to the next. In the Weekly Standard, Maggie Gallagher writes, "'[L]eaving it to the states' will advance the process of educating the American people in the idea that there is nothing special or important about marriage as we have always defined it--about preferring husbands and wives who can become fathers and mothers. It will further the process of persuading Americans that we don't need a shared marriage culture." Do you agree? Click below to join the debate! (If you would like us to post your comment, please include a brief, one-line biographical statement.)
COMMUNITARIAN PERSPECTIVES ON SSM: From Amitai Etzioni's weblog
[So apparently I managed to miss this series of posts, even though I have specifically looked for Etzioni's take on SSM. So apparently I'm slightly inept. Anyway, the series is well worth your time. Click the links to read the entire posts.--Eve] first: What is a communitarian position on gay marriage? Marriage is not merely a two person affair, but coming before a community to make a commitment, in terms of its values. But gay couples could do the same, right? Should a community ask homosexuals to accept 97% of their demands in order to have the same rights of inheritance, visitation, social security, etc..? Should this community call their institutionalized relationship a Civil Union rather than a marriage, out of respect for millions of others, just as they wish for these to respect their core value of equal rights? Could Civil Unions also be available to heterosexuals, to further remove any sense of differentiating the commitments that homosexual couples make to one another from those made by heterosexual couples? second: [excerpts from emails to Etzioni:] "...Bottom line. Get government out of the religious marriage business and into what a government should do, provide a legal system to uphold contracts between people. In the eyes of the law we should change the name for everyone. The government should leave the religious ceremony, called marriage, for the religions." "While I understand the feelings of those heterosexuals who want to privilege their marriages by denying lesbians and gays the same status, civil union is basically a separate-but-unequal proposal. ...In any event, legally, civil union is poor second best, since many federal and state benefits are tied into marriage (e.g. Social Security), and several state courts have already refused to recognize Vermont civil unions in other states." third: [more email excerpts:] "A communitarian position on gay marriage? Communitarians assume that humans are communal by nature--social, political, interdependent. Our relationships constitute the center of life. A meaningful and good life becomes possible only through relationships. Indeed the best things in life arise out of love. If that be so, such lives--including their social and legal endorsement--ought to be accessible to all. That includes those whose sexuality inclines them differently, so that what is natural to most would be unnatural to them. The blessings and virtues of marriage--attested by one who has just celebrated his 40th wedding anniversary--ought not to be denied to some who are different. To flourish and be sustained we simply need more than a liaison or a contract. We need a covenant of unconditional loyalty and solidarity affirmed publicly and legally. To be sure, the language needs adjusting. 'Husband/wife' are not adaptable. And leaving 'marriage' to its traditional meaning would not only serve clarity but be a conciliating nod to the more conservative among us. But adapting and extending the goodness of this covenant, while startling some, will neither harm this timeless institution nor deprive anyone of its blessings." fourth: [final email excerpt] "Since it is in the interest of society to regulate sexual relationships (to limit promiscuity that leads to disease, and to protect the upbringing of children) I think domestic partnerships should be allowed. Indeed, there is a need to make the breaking up of such contracts more difficult than how we allow divorce nowadays.. "However, the problem with gay marriage is not really homosexuality per se but the false idea that gender does not matter, that gender is a social construct not a reality. ... "A third problem is that male gay marriage (as opposed to lesbian marriage) are 'open marriages' which rarely include sexual fidelity. Society 'rewards' marriage with perks because even today's weakened idea of marriage is understood to include the idea of sexual fidelity. Unless male gays who marry agree to fidelity, it means such a law allows marriage to be whatever the two people say it means..."
UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA SUPPORTS FMA: Press release
Today, the Union of Orthodox Jewish Congregations of America--the nation’s largest Orthodox Jewish umbrella organization representing nearly 1,000 congregations--expressed its opposition to the legal recognition of same sex marriage and its support for a federal constitutional amendment as a recourse for addressing this issue. The UOJCA issued the following statement: The Jewish tradition has always recognized the sanctity and special nature of the institution of marriage, and that only the relationship between a man and a woman can be considered marriage. Moreover, Judaism teaches that the institution of marriage is central to the formation of a healthy society and the raising of children. The recent decision by the Supreme Judicial Court of Massachusetts and the declared intentions of certain activist organizations clearly indicate that the definition of marriage will be increasingly subjected to court challenges in the coming months. The Union of Orthodox Jewish Congregations of America supports a constitutional amendment limiting marriage to the union of a man and a woman. We believe that this proposal is an appropriate response to recent decisions by America’s courts and unauthorized actions by elected officials in a critical arena of social policy. The current amendment pending in Congress does not sanction discrimination against homosexuals and it will not deprive them of certain civil benefits that state or local legislatures might afford to homosexuals. It will, however, enshrine in law the traditional and normative definition of the institution of marriage. link
ORTHODOX JEWISH RESPONSE TO SSM: From The Jewish Week
...The position of traditional Judaism on homosexual behavior is clear and unambiguous, terse and absolute. Homosexual behavior between males or between females is absolutely forbidden by Jewish law, beginning with the biblical imperative, alluded to numerous times in the Talmud and codified in the Shulchan Aruch. The position of Judaism on marriage is equally clear. Judaism recognizes marriage as a fundamental human institution, and affirms marriage only between a man and woman. Judaism recognizes the central role of the two-parent, mother-father led family as the vital institution in shaping the entire human race. Within the Jewish people, the two-parent marriage is a model not only for human relations but for relations with the Divine. The Almighty Himself is seen as being a third partner to the father-mother configuration, and the central role of the family, unless circumstances make it impossible, is to conceive and raise children, thereby perpetuating the human race and for Jews, ensuring the continuity of the Jewish people. ... Observant Jews must have an attitude of empathy and understanding for individuals who say, "I have these urges, I can't help them." But we cannot accept those who would say, "I have these urges, they are God-given and therefore it is a mitzvah [good deed] to follow them." Another complex issue that needs to be addressed is the degree to which this clear Jewish position should be translated into public policy in a pluralistic democratic society. Here, people of good will can debate the merits of whether any religion can urge its values upon the greater society. Here we can disagree, although I personally believe that all religions have the responsibility of educating the public to core values that we believe have universal, as well as particular, religious import. In this connection we ought to consider a Talmudic passage (Chullin 92a) that says that the nations of the world, however sinful, corrupt or perverse, still have the merit of at least three behaviors, one of which is "they do not write a ketubah [wedding contract] for males." We can also debate the wisdom of a constitutional amendment defining marriage. It can be argued that any tampering with the U.S. Constitution, a document that arguably has done more for the Jewish people than any other secular document in historical memory, is a risky proposition. However, whatever your position on the constitutional amendment, the inclusion of same-sex relationships in the definition of marriage is something that any Jew of conscience should oppose. more
ORE. COUNTY HOLDS HEARING ON SSM: From 365Gay.com
Multnomah County, under pressure from residents opposed to same-sex marriage, held its first public hearings on the issue today. More than 50 people testified before the commissioners. Much of the opposition focused on moral grounds, and several people objected to the commission reaching agreement to issue marriage licenses to same-sex couples without public consultation. One person told commissioners that they had acted "covertly" to avoid taxpayer scrutiny. But, Portland's business community said it supported the measure. "There's no question that this has had a positive impact (economically)," Joe D'Alessandro, the head of the Portland Oregon Visitors Association told the gathering. "We have seen a definite uptick" in hotels, restaurants and retail spending, he said. D'Alessandro said that marketing studies had shown that gays and lesbians have above average incomes and spend hundreds of millions of dollars each year. D'Alessandro said POVA has received tons of calls and emails inquiring about Portland since the decision to issue gay marriage licenses was made. He indicated those inquiries were running about 8 to 1 in support of Multnomah County's decision. Jeri Riggs, the general manager of Portland's Hotel Vintage Plaza agreed that gay marriage has been good for business. She said the gay market is a very affluent one, looking for gay friendly destinations and Portland has become one in recent weeks. Multnomah County has been issuing marriage licenses to same-sex couples since March 3. The ACLU filed a lawsuit Wednesday that is expected to send the legal dispute over gay marriage on a fast track to the Oregon Supreme Court. link
MASS. TOWN CLERKS NOTIFIED OF SSM LICENSE TRAINING: From the Boston Globe
In the state's first official acknowledgment that gay and lesbian couples can legally marry in May, town and city clerks were notified this week that they will be trained to issue marriage licenses for same-sex couples. The clerks were given few details about the training, scheduled for early May, just days before same-sex couples can legally wed on May 17. It is the first signal that state officials are planning for gay marriage, despite Governor Mitt Romney's assertion that he is considering asking the Supreme Judicial Court to stay its decision allowing same-sex couples to marry. ... But a spokeswoman for Romney, who as head of the executive branch of government controls the Department of Public Health, declined yesterday to acknowledge that the training was scheduled. "I have no knowledge of training being scheduled," said Nicole St. Peter. "At the appropriate time, the administration will communicate with city and town clerks. Currently, it's premature to do that." ... If the convention passes an amendment, Romney could make the argument that the SJC ruling should be stayed until the amendment goes before voters in 2006. Opponents of gay marriage have argued that allowing gay couples to marry could create legal chaos if voters eventually approve a ban. ... State officials also are preparing forms, scheduled to be available by May 17, with gender-appropriate language for same-sex couples who request marriage licenses, Hutchenrider said. "The attorneys are going over them," she said. And the registry is working on other new vital records forms, such as birth records, where language may need to be changed to reflect same-sex couples, she said. more
CALIF. ATTORNEY GENERAL ARGUES SAN FRANCISCO EXCEEDED LEGAL RIGHTS: From the Los Angeles Times
Atty. Gen. Bill Lockyer told the California Supreme Court on Thursday that San Francisco exceeded its legal authority when it issued more than 4,000 marriage licenses to same-sex couples. In written arguments filed with the state high court, Lockyer said the state Constitution requires local authorities to obey state laws unless a court has found them unconstitutional. "This proceeding is not about the constitutionality of same-sex marriage," Lockyer said. "It is not a litmus test on marriage or societal values. This case is about the proper role of public officials in carrying out their governmental duties." On March 11, the California Supreme Court ordered San Francisco to stop issuing marriage licenses to same-sex couples, and announced it would review whether the city had violated state law by marrying gays. The court declined to decide on the constitutionality of the state's marriage laws until lower courts had reviewed them. Lawyers for San Francisco have asked the court to rescind its order and permit more gay couples to marry. The city also wants the court to refrain from ruling in the case until the constitutionality of the state's marriage laws is resolved in the lower courts. In a brief submitted to the court last week, city officials also argued that the courts long had "recognized the right, and indeed the duty, of public officials, both at the state and local levels," to follow the Constitution, even if that means "declining to enforce a statute." Lockyer, in his brief, responded that, because no state or federal court has yet found California's marriage laws to be unconstitutional, the city has a duty to comply with them. He added that San Francisco had claimed for itself "broad and unprecedented powers to unilaterally take action." ... The Alliance Defense Fund, a group opposed to gay marriage, joined the state in filing arguments Thursday against San Francisco. The fund, which represents traditional religious values, told the court that "there would be no uniform system of law" if mayors could choose to disobey laws they considered unconstitutional. more
FOUR NEW BOOKS FOR SSM: From the Atlanta Journal-Constitution
As the battle over same-sex unions heats up in Congress and state legislatures, including Georgia's, four books are hitting the stores with surprisingly timely information and articulate arguments for the rights of gays to marry. Three of the books are from major, mainstream publishing houses --- Times Books, Simon & Schuster and Harcourt. The fourth is being published by Alyson Publications, which specializes in gay and lesbian titles. No books presenting the opposing view are on the horizon yet, but given the passion and the politics surrounding the issue, it may be only a matter of time. ... Three of the best-selling books at Outwrite are David Moats' "Civil Wars" (Harcourt, $25), Jonathan Rauch's "Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America" (Times Books, $22) and Davina Kotulski's "Why You Should Give a Damn About Gay Marriage" (Alyson Publications, $12.95 paperback). Kotulski, who describes her book as "an idiot's guide to gay marriage," focuses on the 1,138 federal and state rights same-sex couples are denied. "There are things you don't think about," Kotulski says. "Seventy-five percent of all marriage rights are federal. If I died . . . my wife of eight years would not receive the $1,800 a month in Social Security that someone in a heterosexual marriage would receive. Neither would someone in a civil union." Allowing states to decide the issue creates problems, too, Kotulski says. "In California, I have rights in a domestic partnership, but when I go back to Oregon, where I was born, I have zero rights. This won't work until you have them in all states." ... Evan Wolfson, an activist lawyer who played a major role in the Hawaii suit, presents his argument for same-sex marriage in "Why Marriage Matters" (Simon & Schuster, $23), a much-anticipated book being launched in July with a 50,000-copy printing and a six-city publicity tour. ... How a state considered a bedrock of conservatism became a pioneer in gay rights is the subject of Moats' book, "Civil Wars." The Pulitzer Prize-winning editorial page editor of the Rutland [Vt.] Herald focuses on the personal aspects of the battle by telling the stories of the couples who filed the suit, the lawyers who spent years pursuing the case and the one openly gay legislator in Vermont whose impassioned speech won victory for the legislation. ... "Society wants people to have caretakers, someone who is waiting for you at home and who will look after you," Rauch says. "If we've learned anything from the AIDS crisis, it's that there's no substitute for a caring partner. The community has a stake in that and that's why it gives marriage a special standing." more
GAYS ARE PARENTS TOO: Gabriel Rosenberg replies to Stanley Kurtz
...I don't know how to explain Stanley Kurtz's latest article which claims we must "draw the line" at preventing gay marriage in order to avoid severing the link between marriage and parenting. Kurtz argues at length, yet fails to make even a single attempt to deal with the fact that gay parents are currently being denied the ability to marry. It's stunning. He even has a section entitled "Parenting means Marrying." The section begins... "Here is what [Rev. Donald] Sensing misses: In America, parenthood still means marriage. Despite the problems of the underclass, and despite the prevalence of premarital cohabitation, the vast majority of Americans believe that parents ought to be married. True, divorce has seriously disrupted the connection between marriage and parenthood. Yet a comparison to Scandinavia and the rest of Europe immediately reveals that Americans who wish to become parents marry." Do y'all see the same syllogism jumping out at you that I do? Parents ought to be married. Gays are parents. Therefore, gays ought to be married. ... I don't know what Professor Polikoff wants, but it is Kurtz that is arguing for required parental cohabitation. And as I noted here, even if one bought the unsubstantiated argument that Scandinavia's registered partnerships "severed the link" between marriage and parenting, the fact that couples in RP's were originally not allowed access to adoption or reproductive technology seems critical to the analysis. In America, gays are allowed (and do) adopt and use reproductive technology but are denied access to marriage. If Kurtz wants to strengthen the link between parenting and marriage, he should be pushing for the ability of gay couples to marry, not fighting it. more Thursday, March 25, 2004
RELIGIOUS LIBERTY AND SSM: Maggie Gallagher
Is it only Catholics who aren't allowed to influence democracy, or does the Boston Phoenix condemn the Unitarians who are trying to creatre same-sex marriage with equal fervor? Silly question. Serious question: Is this just a media blitz? Or can we expect more efforts to marginalize, disenfranchise and delegitimate people of faith who oppose same-sex marriage? "The Catholic War Against Gay Marriage"
WITHOUT THE CONSENT OF THE GOVERNED: Hugh Hewitt
...Never in the 228 years since the Declaration has any legislative body at the federal or state level passed any law with the intent of establishing the proposition that two people of the same sex could marry. Not once. The principle of equality between religions was consented to in the First Amendment; between races, in the 14th Amendment; between genders, in the 19th Amendment. Each of these principles had long and difficult passages to majoritarian and statutory status. Courts could not and did not impose them because courts cannot will majorities into being--they can only articulate the implications of previously established legislative actions. Had the proponents of gay marriage taken their cause to state legislatures, they would have been rebuffed, at least today and in the foreseeable future. Across the country, even in the liberal precincts of California, supermajorities continue to believe that marriage is the union of a man and a woman, and presented with the question on ballots, have continually affirmed the millennia-old standard. And off course the Congress has already passed, by supermajorities in both houses, the Defense of Marriage Act. ... THE MARRIAGE AMENDMENT is a necessary, indeed urgently required antidote to such a radical assault on the bedrock of the American experience. If imposition of new norms can be accomplished without even one law anywhere ever having being passed, then it can happen again and again whenever willful minorities can persuade robed elites to act without conscience against the idea that all law proceeds from the people. more
NATIONAL DEFINITION OF MARRIAGE: Justin Katz replies to Ramesh Ponnuru
...In short, even as they are blocked from mandating same-sex marriages, federal and/or state courts would have ample room to find pretext to strike down laws that explicitly forbid it. Here's the Hatch amendment, once again: "Marriage and its benefits in each state shall be defined by the legislature or the people 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." Ponnuru has argued that this would still forbid anti-miscegenation laws because 1) the first sentence doesn't limit federal courts, and 2) the legislatures would not be "free to ignore other parts of the Constitution." In other words, despite the first sentence, the state legislature cannot define marriage as a union of two people of the same race, because the second sentence only limits the federal judiciary inasmuch as it cannot find that marriage must be "extended" beyond opposite-sex boundaries. This opens an important crack in Ponnuru's response to Gallagher about what each sentence does. Most obviously, the word "extended" could be construed as allowing the Supreme Court to find that the rights can't be "restricted" to opposite-sex couples. Such reasoning might seem foolish, but as I noted in my earlier post, the Nebraska marriage amendment is already coming under attack on due process grounds--grounds that a U.S. District court thought strong enough to allow the case to go forward. And without further legislation, the courts would decide what the amendment restricts the courts from doing. It they judge themselves only narrowly restricted, the Hatch amendment would protect the marriage precedent as passed along from common law and as inferable from various statutes and rulings, but courts might bestow the right of activists to perpetually lobby for marriage rights free of explicit discrimination in the law. Maybe. more
CONFESSIONS OF A LIBERTARIAN POLYGAMIST: Anonymous
...To see supposed libertarians saying that polygamy is bad and, well, just too much freedom, is disappointing. Watching all the news over that Fresno guy is sickening, because that's all people see, that's all they think of, when they think of polygamy. It isn't all like that. Not even close. I know because I'm part of a polygamous family. Actually, because none of us is married in the legal sense (no church or state papers, just our own personal ceremonies), we use the term polyamory, which means "many loves." My family is a triad, one woman and two men. None of us is gay, so its really more like she has two husbands, but we're all very good friends. We also have some kids. (Yes, we all know which man is the dad of which kid.) Our family looks a lot like any family you'd like to have as your neighbors. We're quiet, decent people, and we mind our own business. We don't party, our kids are all well behaved, and even if you tried, you wouldn't catch either of us so much as holding our wife's hand outside. ...The only difference between our family and others is that we have an "Uncle Steve" that lives with us. Yes, one of us pretends to be our wife's brother so that we can all live together and be left alone. Some of the kids pretend that their dad is really "Uncle Steve" when they're out in public. This isn't all that important because we all raise the children equally, and treat them all like they are our own kids. Because they are--all of us are one family. ... Second, how many of you have heard of April Divilbiss? She was on an MTV show in 1998 talking about her poly family (like ours, but with less kids--you can see a report), and after it, her daughter's grandmother got the government involved. She ended up losing her daughter permanently. April's situation wasn't the best, but the daughter wasn't being hurt and the state decided to take her away anyway. That's why I'm not putting my name on this article. If my family was identified, the state could steal our kids and force our family to breakup just because some people think what we're doing is wrong. They do it to "normal" families for less reasons everyday. Even some libertarians like Young and Boaz apparently think it's okay for the state to do that to families like mine. We'd like to be more public about our life but our family is way more important than being a good example. Third, it's nobody else's business. Our marriage was chosen by each of us because it's the relationship that works for us. We've been together for over ten years because we keep choosing to be together. In a lot of ways we're just like any family, except that ours has one more dad. So our kids get more time and attention from grownups that love them. We're a lot better off financially, because of the extra adult that gives us all more time for stuff we need or want to do. Who has the right to tell us that what we're doing is sick, or less moral than some of the crap we see nonpoly kids go through, with divorce, after divorce, after divorce? more
CLERICS DEMONSTRATE FOR SSM: From the Seattle Times
They stood shoulder to shoulder, men and women, gay and straight, their robes blending to represent the colors of the rainbow. Dozens of religious leaders from various faiths and denominations gathered yesterday in downtown Seattle in a show of support for gay marriage. At Plymouth Congregational Church they sang "We Shall Overcome" and later marched, placards bobbing through the streets, to the King County Administration Building. There they presented a statement of support for same-sex marriage that was signed by 158 religious leaders from across the state. ... The actions of yesterday's religious leaders--Christian, Jewish, Buddhist--were in contrast to a demonstration more than a week ago by another group of clergy, who gathered downtown to denounce gay marriage. ... David Strong, a pastor at Community Church of Joy in Seattle, said those who oppose gay unions echo ghostly reminders of a past era. As a black man, he said, he remembers the searing images from the civil-rights movement, "bigots on TV talking about the destruction of the social fabric, the destruction of society, destruction of the country as we know it." "Historically, people have used the Bible as a weapon of oppression," he said. "I read the Bible and I see my freedom." more Wednesday, March 24, 2004
GAY UNIONS MAY AFFECT BENEFITS: From USA Today
The gay marriage debate could mean first-of-a-kind changes to employee benefit plans. In some states, change is already afoot, with some companies being required by law to offer health benefits to employees' same-sex spouses. ... The possible impact: * Benefits for married gay couples. Companies that don't offer domestic partner benefits might be required to provide health benefits to spouses of gay, married employees. Currently, more than 7,000 employers offer domestic partner benefits, according to Human Rights Campaign, a gay political group. * Fewer domestic partner benefits. If companies are legally required to provide health benefits to married gay couples, they might no longer provide them to same-sex couples who live together but aren't married. ... * More access to leave, other benefits. In some cases, employers might have to allow employees in gay marriages to take leave to care for an ill spouse. Health insurance costs also could increase as more people are covered. And companies also will face questions about what to do when a gay employee gets married in a state where such unions are legal, then returns and requests benefit coverage. ...Twenty-three percent of companies in 2003 offered domestic partner benefits for same-sex couples, unchanged from the year before, according to the Society for Human Resource Management. More than 30% offered domestic partner benefits to opposite-sex partners. more
SAN DIEGO COUNTY REFUSES BENEFITS FOR MARRIED GAY COUPLE: From the Associated Press
San Diego County has denied marriage benefits to a gay couple who received their marriage license in San Francisco last month because the state does not recognize same-sex marriage, it said. Sarah Hubbard and Barbara Herrera were the first gay couple to be turned down for benefits the county provides to heterosexual married couples. After their Feb. 16 marriage, Hubbard, a 39-year-old San Diego County deputy sheriff, applied for married benefits, and her application was approved. But the county revoked it on Monday, citing an administrative error for the original approval. Hubbard said her marriage should be considered valid until the California Supreme Court rules otherwise. The county will continue to follow state law, which defines marriage as a contract between a man and a woman until a ruling is made, County Counsel John Sansone said. Action taken by the mayor of San Francisco cannot supersede state law, he said. The county provides domestic partnership benefits to Herrera and the couple's children, but those benefits are not comparable to the benefits that are given to married couples. Hubbard and Herrera, who have been a couple 18 years and have raised four children, live in Santee and have a holistic health-care business in Encinitas. "All we want are the same human rights everyone else is afforded. They are afforded the protections and privileges of marriage," Hubbard said. link
NOT MARRIAGE, BUT GAY COUPLES BENEFIT FROM REGISTRIES: From the Associated Press
...While the fast-spreading gay marriage debate has agitated communities from Portland, Ore. to New Paltz, N.Y., many places have quietly taken baby steps toward expanding gay rights in recent years through so-called domestic registries. Domestic registries allow unmarried couples in long-term relationships to receive a certificate affirming they live together. A number of cities, towns and counties offer them to straight or gay couples who can offer proof they live under the same roof. The certificates amount to far less than a state-sanctioned marriage, are typically not binding on courts, governments or employers and they don't automatically confer benefits. But gay rights advocates say they can be useful documents nonetheless. Employers will use the documents to determine who is eligible for domestic partner benefits, for example, and funeral homes will sometimes accept them to allow surviving partners to make burial arrangements. Westchester County entitles registered partners to spouse-like visitation rights at area hospitals and jails. more
ACLU, GAY COUPLES SUE TO UPHOLD SSM IN OREGON: From the Associated Press
Disputes in Oregon over the legality of gay marriages were put on the fast track to the state Supreme Court Wednesday under a lawsuit filed by the American Civil Liberties Union. The civil rights group filed the suit shortly before noon in Multnomah County Circuit Court on behalf of gay couples whose marriages were not recognized by the state's Office of Vital Statistics. The lawsuit consolidates several other legal challenges to gay marriage brought by conservative leaders and Christian pastors, after Multnomah County commissioners decided three weeks ago to grant the licenses. Opponents and supporters of gay marriage alike agreed that the ACLU's case would most directly address the constitutional issues raised by gay marriage. more
SPLIT GAY COUPLES FACE CUSTODY HURDLES: From the New York Times
The case might be called Uterus v. Ovum. E and K were a lesbian couple in Marin County, Calif., who wanted children. K provided the eggs, E the womb, and a fertility clinic supplied the sperm and the technical help. When twin girls were born, the women exchanged rings and raised the children together, sharing everything from feeding and diapering to signing school forms. But five years later, they split up. E moved to Massachusetts with the girls, and K went to court to obtain shared custody. "The world had known us as Mom and Mom," said K, an executive with a nonprofit educational organization, who like E asked to be identified by an initial. "I'm asking that my daughters have access to both moms." E, a medical administrator who declined to be interviewed, said in a statement, "I made it clear to her from the beginning that I wanted to be a single parent, and that I would accept her ovum donation only if it was truly a donation and I would be the sole legal parent." The judge agreed, reluctantly, that although K was the genetic mother, E, the birth mother, was entitled to sole custody. As tens of thousands of same-sex couples become parents, they are increasingly confronting what heterosexual parents have long dealt with: remaking their lives and those of their children after a breakup. But for gays and lesbians, the legal landscape surrounding such breakups is often uncertain or uncharted. Laws, ill fitting and varying by state, were not written to anticipate same-sex situations, and judges often take interpretative license as they struggle to navigate a rocky path. ... Many cases of breakups by same-sex couples involve adoption laws, since often, at least one parent has adopted the child. But the status of the second parent is less clear. Only nine states have explicitly allowed so-called second-parent adoptions for gay couples in decisions of their highest courts, four states prohibit them, and many others have not definitively addressed the issue. ... In Massachusetts, a court is considering another issue: Can a former same-sex partner who does not want responsibility for a child be compelled to pay child support? The case involves a woman, B. L., who participated in having her partner artificially inseminated, but broke up with her partner, T. F., before the child was born. more
EXPERTS, LAWMAKERS CLASH OVER IMPACT OF GAY MARRIAGE: From the Los Angeles Times
Experts and lawmakers differed sharply in testimony Tuesday before the Senate Judiciary Committee over whether the institution of marriage is under judicial assault and can only be preserved through a constitutional amendment banning gay marriage. In an opening statement, presiding Sen. John Cornyn (R-Texas), chairman of the subcommittee on constitutional law, decried what he said was a "judicial onslaught'' against traditional marriage. But Rep. Barney Frank (D-Mass.), who is openly gay, made the issue personal in emotional, unscripted testimony to his Senate colleagues. "I have to ask, senators, who are we hurting? How is the fact that I or someone else wants to express love to another human being ... how does that hurt you? Why is this considered an infringement?" Frank said. ... "The issue of marriage," said Sen. Dianne Feinstein (D-Calif.), "is the purview of the states, not of the federal government." Throughout U.S. history, she said, "the states have proved entirely capable of dealing with this issue." In testimony before the committee, University of Chicago law professor Cass R. Sunstein said "those who endorse the amendment fear that if one state recognizes same-sex marriages, others will be compelled to do so as well." That fear, Sunstein said, "is unrealistic; the federal system permits states to refuse to recognize marriages that violate their own policies." ... Whatever text is ultimately adopted by the committee, both Republicans and Democrats say the chances of Congress passing any marriage amendment in this election year are slim. more Tuesday, March 23, 2004
NATIONAL DEFINITION OF MARRIAGE: Ramesh Ponnuru replies to Maggie Gallagher
Start here and scroll up (or here and scroll down to get the series in reverse): "I agree with several of Gallagher’s subordinate arguments, and in particular with her refutation of the claim that the definition of marriage has historically been a matter for the states. But I think her criticism of Hatch is largely mistaken." "Part of the problem is that, like several defenders and opponents of the Hatch amendment, she regards it as a 'federalist' approach. It is more federalist than the Federal Marriage Amendment, because it leaves state legislatures with the legal authority to create same-sex marriage. But it is not a purely federalist amendment, because it restricts state courts. The thrust of the amendment is not to grant power to the states rather than the federal government so much as it is to grant it to (state) legislatures rather than (state or federal) judges." ... "Now any case for a constitutional amendment on marriage has to begin with a suspicion of judges, or at least some important subsets of them. But this suspicion cannot become paranoia. If you are willing to assume that judges can do anything they want with any constitutional text, then there is no point to passing any amendment. Willful judges will be able to read Gallagher's preferred FMA in abstraction from its clear intent, too." "...Alleged problem three: 'It won't protect defense-of-marriage laws from being overturned by a Supreme Court already signaling its interest in affirming same-sex marriage as a civil right.' Since Gallagher does not expand on this point, I’m not sure why we are supposed to believe it. As far as I can tell, she's wrong. ... "Alleged problem four: 'Leaving the matter to the states amounts to conceding that marriage is not a key social institution.' I don't see this at all. Gallagher knows perfectly well that the failure to include a definition of marriage in the Constitution up until now was not a matter of Americans’ not understanding that marriage is a key social institution. It is necessary to include it now, on her account, because the institution faces a particular threat. But what is the nature of that threat? The reason advocates of an FMA have always given for why a constitutional amendment is necessary is that it is the only way to stop state and federal courts from redefining marriage. If an amendment other than the FMA can accomplish that goal, and indeed accomplish it better because it can actually be enacted, what’s the argument for asking an amendment to do more? ..." "Finally, Gallagher says that there is no reason to switch amendments because support for the FMA is 'growing fast.' Maybe it's growing in the polls. But it is not growing much among senators. ...The 34 most liberal senators can stop any amendment they want to stop." "...And if her political judgment is wrong, the question before her is this: Does she so desire a national definition of marriage that she is willing to fight a losing battle that lets the courts impose what she regards as the wrong one?"
WHY WE NEED A NATIONAL DEFINITION OF MARRIAGE: Maggie Gallagher
...What will happen if we fail to affirm a national definition of marriage? Sex, love, and intimacy are private things. Marriage is a public act. A person who marries undergoes a change in status that others must acknowledge. That's why the advocates of single-sex marriage won't settle for civil unions. They hope and intend for their vision of marriage to become the new norm. If the marriages of same-sex couples are to be publicly acknowledged as the full equivalent of marriages uniting husband and wife, everyone's ideas about marriage will have to change. THIS IS A GOOD THING, say the same-sex-marriage advocates, who take great comfort from the analogy to interracial marriage. In 1967, when the Supreme Court unanimously overturned laws barring miscegenation in Loving v. Virginia, a majority of Americans supported those laws. A decade later, under the tutelage of the courts, public opinion had changed dramatically. Advocates believe the same thing will happen with same-sex marriage. After a period of initial opposition, a reeducated public will come to embrace this new vision of marriage. ... If favoring the traditional understanding of marriage is analogous to favoring racism, then churches, faith-based organizations, and schools that continue to teach that marriage is exclusively the union of a man and a woman will eventually face penalties in the public square. Yes, the First Amendment will protect their right to sit in a corner and preach what they like. But, as a group of five legal scholars recently noted in an opinion for the Massachusetts Catholic Conference, if the courts actually equate laws defining marriage as the union of husband and wife with laws barring interracial marriage, then single-sex marriage statutes seriously threaten the ability of organizations adhering to traditional marriage to hold broadcasting licenses, have their colleges accredited by public bodies, or secure tax-exempt status for their schools and charities. The Massachusetts court that decided the Goodridge case last November, of course, has already held that the traditional view of marriage is irrational and therefore must be based on animus. But suppose the courts pull back. Suppose they develop a surprising new tolerance for traditional views. The result will still be a quite devastating fragmentation of our marriage culture. In post-Goodridge America, people will be viewed and treated as married in some states (or counties, or small suburban hamlets) but not in others. And the gap between religious marriage and civil marriage will widen to a chasm. ... And yet, in the midst of the utter fragmentation of our marriage culture, a growing number of Republican political leaders appear poised to abandon altogether the idea of a common marriage culture. Rather than defend marriage, they propose a procedural fight. Drawing in part on federalist and libertarian principles, they sally forth crying, "Leave it to the states!" Thus, Senator Orrin Hatch has proposed a constitutional amendment that is said to be fast gaining ground among GOP senators. It reads: "Civil marriage in each state shall be defined by the legislature or the people 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." There are many problems with this language. Courts that have discovered a right to same-sex marriage in general commitments to due process or equal protection are no doubt capable of discovering that "the people" have a right to same-sex marriage. On its face, the Hatch language appears to overturn the federal Defense of Marriage Act, which defines marriage as the union of a man and woman for the purposes of federal law. Some Republican support for "leaving it to the states" stems from the mistaken view that a procedural issue is a better political issue than marriage itself. But as the nationwide push for gay marriage becomes unavoidably obvious, Americans' support for a federal marriage amendment that defines marriage as the union of a man and a woman is growing fast. ... More fundamentally, "leaving it to the states" will advance the process of educating the American people in the idea that there is nothing special or important about marriage as we have always defined it--about preferring husbands and wives who can become fathers and mothers. It will further the process of persuading Americans that we don't need a shared marriage culture. more
MARRIAGE AND MONOGAMY: Lynn Gazis-Sax replies to Mark Barton
[Lots of good points here; I feel like a jerk excerpting at all. Read the whole thing!] ...Now, as it happens I am on Mark's side, and not Eve's, on the issue of whether same sex couples should be legally accepted into civil marriage. That seems, though, to be the limit of how far I am on Mark's side of the debate; as I read his and Eve's views about sexual relations in general, and, in particular, about the degree to which heterosexual sex can reasonably be expected to be separated from pregnancy, I find myself far more sympathetic to Eve's side of the debate. So, let me count the ways in which I disagree with Mark. ... Now, it is true that the overwhelming majority of married couples in the US these days (myself and my husband included) have, in fact, lived together before marriage. And it is true that, in a culture in which people who don't live together before marriage are distinctive in their social views, a lower divorce rate might be expected in those who don't live together. But, I really have to doubt the rationality of an argument that waiting till marriage is some kind of reckless willingness to marry in ignorance, when there is no evidence whatsoever that marriages where people didn't have premarital sex fare worse than those where people did, and some evidence that their divorce rate is lower. I'd say that, under those circumstances, sticking by your religious beliefs in premarital chastity is a rational choice. Second, Mark argues that acceptance of some extramarital sexual activity makes for a more stable relationship. Since I am not a gay man, but rather a bisexual woman, I can't comment on the experience of gay men in this regard. I can say that I've seen no evidence in either the lesbian or the straight world that this is the case. On the contrary, the evidence I see around me is that, hard and "unrealistic" though it may be to expect to stay sexually faithful to one person, it seems to be even more unrealistic to expect to tolerate your spouse sleeping with another person. I do encounter some heterosexually married couples who tolerate fantasy activity (porn, and to a lesser extent cybersex) that other heterosexually married couples consider infidelity. And I once knew what appeared to be a contented lesbian threesome. But in general, I see less stability and happiness in sexually open heterosexual relationships than in monogamous ones, and few lesbian takers for non-monogamy, so I have to doubt Mark's psychology here. Moreover, a cultural shift toward polyamory in marriage would harm regular old monogamous marriages, in a way that same sex marriage itself does not. The benefit of marriage isn't just in the privileges it grants; it is also in the expectations that it places on you. If sexual fidelity isn't something expected of marriage, but rather a mere private arrangement--something as optional as avoiding premarital sex is now--then I no longer benefit from the general expectation that my husband and I are no longer open to sexual propositions. Third, Mark argues that the availability of reliable birth control, with abortion as a backup, has transformed sexual relationships to such an extent that pregnancy need no longer be seen as a reason to constrain sexual behavior, even when it comes to arrangements permitting husbands and wives to have sex outside of marriage. ... ...But let's look at Alan Guttmacher Institute figures on contraception and abortion (PDF). More than 90% of American couples use contraception in any given month; nevertheless, almost half of all pregnancies are unintended. 53% of all women who have unintended pregnancies were using a contraceptive method during the month in which they got pregnant, though usually not correctly every time. ...Being sexually responsible, in heterosexual terms, can't just mean taking precautions; it has to include thinking ahead to what you and your partner will do if contraception fails. This brings me to my fourth disagreement with Mark: Mark is way too glib about abortion. ... And, remember, this whole argument comes up in the context of whether straight married couples can benefit from allowing some sex outside of their marriage. So, if a husband's mistress' birth control fails, what is the wife to expect? That she'll get an abortion to suit the wife's convenience? That she'll forgo her right to support from the father of her child because she doesn't want to trouble his wife? It's just wildly unrealistic to advocate marital "arrangements" without considering the fact that pregnancies will result. more
MINISTERS WHO OFFICIATED AT SAME-SEX MARRIAGES GO TO COURT: From the New York Times
A solemn crowd of more than 150 Unitarian congregants and gay rights advocates gathered on the steps of the New Paltz courthouse on Monday afternoon to support two ministers facing charges for officiating at same-sex marriages. Singing the Unitarian hymn "Spirit of Life'' from photocopied sheets that flapped in a cold breeze, the crowd cheered in support of the ministers, Kay A. Greenleaf and Dawn Sangrey, as they walked into their hearing in the low brick building. Placards of support included one marked "Let Our Reverend Go," a rainbow-captioned "Freedom to Love" and a sandwich board worn by a 79-year old congregant from Ms. Greenleaf's church marked "Straight, but not narrow." No one demonstrated against the ministers. ... Ms. Greenleaf, minister at the Unitarian Universalist Fellowship of Poughkeepsie, and Ms. Sangrey, minister at the Fourth Unitarian Society of Westchester in Mohegan Lake, are charged with multiple counts of solemnizing marriages without a license. The prosecutor, District Attorney Donald A. Williams of Ulster County, had earlier filed identical charges against Jason West, 26, the mayor of the village of New Paltz. Mr. Williams has repeatedly said that he intends to focus prosecution on the narrow issue of officials solemnizing marriages without a license. Clergy members and mayors in New York State may solemnize marriages, but they must confirm that the couple has obtained a license. The failure to check for a license is a misdemeanor punishable by up to a year in prison or a $500 fine, the district attorney said. ... The lawyer defending the two ministers, Robert C. Gottlieb, said he would ask that all charges be dismissed on several grounds, including that any block against same-sex marriage denies equal protection guaranteed by the State Constitution. In addition, he said he would argue that prosecution in relation to a marriage violates the constitutional separation of church and state. ... Same-sex marriages are scheduled to continue in New Paltz on Saturday, with 20 ceremonies planned by the New Paltz Equality Initiative, according to Charles I. Clement, a spokesman for the group. more
SKY FALLEN?: Stanley Kurtz replies to Donald Sensing and Andrew Sullivan
[Eve notes: Kurtz says some stuff I disagree with. But this bit was quite interesting:] ...There is something deeply damaging to marriage in the all-or-nothing approaches of both Sensing and Sullivan. I certainly respect the efforts--especially their intellectual consistency--of religious traditionalists to work toward a full restoration of the family system of the '50s, even if I don't happen to share that policy. In truth, American marriage would be long gone if not for the efforts of Christian traditionalists, and for that we are all in their debt. Yet the all-or-nothing position can also slip into despair and defeatism in the wake of the innovations Sensing describes. That is the weakness of the traditionalists. And the all-or-nothing polemic of gay-marriage advocates plays all too easily on the ambivalence of those Americans in the moderate middle ground on family issues. Increasingly, gay-marriage advocates are trying to set up an equation by which acceptance of contraception, no-fault divorce, and premarital cohabitation must inevitably entail acceptance of gay marriage. Logically, that does not follow: We can, and should, draw a line between them. more
FMA 2.0: Eugene Volokh
Eugene Volokh: "For reasons I mentioned last month, I think this is much better, because it clearly lets state voters and legislatures enact civil unions by statute (though not by a constitutional amendment). I still have some objections. First, I don't see why states that do want to set up gay marriages should be barred from doing so. Second, I don't think the U.S. Constitution ought to protect state citizens and legislators from the overreaching of their own state courts interpreting state constitutions (at least where no individual constitutional right is violated by this). State courts' misconduct should be dealt with by the state voters and legislators through the state constitutional amendment process. Third, this proposal would probably block voters and legislatures from expressly enacting civil unions by constitutional amendment (though it will leave them free to enact them by statute, either legislatively or by initiative.)"
REVIEW OF JONATHAN RAUCH'S NEW BOOK: Gabriel Rosenberg on Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America
...Too often I hear that advocates of same-sex marriage think marriage is only about love, and that we don't realize the importance of marriage as a social norm. Rauch's book makes the case that SSM is necessary in order for marriage to maintain its role as a social norm. To exclude gays and lesbians from marriage harms the institution in a couple of vital ways. First of all, it defines marriage by whom it excludes as opposed to what it does. Instead of the essence of marriage being about "two people's lifelong commitment, recognized by law and by society, to care for each other," it becomes about some vague magical quality that only straight couples possess. Most of Rauch's book explains the importance of this commitment to the couple, their children, and all of society. For those who claim that it is SSM which would change the essence of marriage, Rauch devotes a chapter to dealing with the variety of arguments made that same-sex marriage somehow undermines the connection between marriage and children. In fact, as I've written about frequently here, if we want to send the message that marriage is important for raising children we should be encouraging same-sex couples (many of whom are raising children) to marry. Forbidding such marriages sends the message that marriage isn't all that important. After all, I have been told, the parents can just make certain legal arrangements. The exclusion of gays and lesbians also undermines marriage in another fundamental way. It creates alternatives to marriage like civil unions, domestic partnerships, and cohabitation. Okay, it doesn't create cohabitation, but it has the effect of making it even more socially acceptable. As long as gays and lesbians are denied the right to marry, more and more states and private companies will offer at least some "marital benefits" to them. Some places the rules will require the couple to "register," other places (especially private companies) the couple will just need to cohabit. Sometimes these programs will require the couple to take on certain responsibilities, and other times not. And many times these programs will be available to opposite-sex couples as well. Why should couples bother to get married, when they can get the benefits of it without the obligations? This proliferation of alternatives, which is inevitable without same-sex marriage, violates what Rauch believes is the cardinal rule for marriage to remain normative, "If you want the benefits of marriage, get married." more
GAY MARRIAGE: SIDESTEP ON FREEDOM'S PATH: Alexander Cockburn
[Never mind, I found a link.] I'm for anything that terrifies Democrats, outrages Republicans, upsets the apple cart. But exultation about the gay marriages cemented in San Francisco, counties in Oregon and New Mexico, and some cities in New York is misplaced. Why rejoice when state and church extend their grip, which is what marriage is all about? Assimilation is not liberation, and the invocation of "equality" as the great attainment of these gay marriages should be challenged. Peter Tatchell, the British gay leader, put it well a couple of years ago: "Equality is a good start, but it is not sufficient. Equality for queers inevitably means equal rights on straight terms, since they are the ones who dominate and determine the existing legal framework. We conform--albeit equally--with their screwed-up system. That is not liberation. It is capitulation." So the good news, as that excellent paper, UltraViolet (newsletter of LAGAI, Lesbian and Gay Insurrection), recently put it, is not that 400 gay couples are now legally married in San Francisco but that 69,201 in the city (UltraViolet's number) are still living in sin. Marriage diverts us from the path of necessary reform. Civil union, today lawful only in Vermont, is what makes sense as a national cause. Unmarried couples, straight or gay, need to be able to secure joint property, make safe wills, have hassle-free hospital visits and so forth. But issues of hospital visits or healthcare should have nothing to do with marriage, and marriage as a rite should have nothing to do with legal rights. "Marriage" should be separated from legal recognition of a bond, of a kinship. more
FMA BEING RETOOLED: From the Washington Post
Key backers of a constitutional amendment to ban gay marriage said yesterday that they are rewording the two-sentence text to clarify that it would allow states to establish civil unions or other partnership arrangements for same-sex couples. ... The amendment's congressional sponsors, Sen. Wayne Allard (R-Colo.) and Rep. Marilyn Musgrave (R-Colo.), unveiled the revised text at a news conference in the Capitol. They were accompanied by Matt Daniels, president of the Alliance for Marriage, an ecumenical group of religious leaders that is pushing for the amendment, and were surrounded by adults and children from local African American churches. Allard, Musgrave and Daniels described the changes as purely "technical" and said the amendment's intent remains what it has always been: to prohibit same-sex marriages and prevent "activist judges" from requiring states to create civil unions. Some legal scholars had argued that the original wording could tie the hands of legislatures as well as judges. The changes are designed to make clear that states "truly have the option of dealing with civil unions," as long as they are established legislatively and not by judicial fiat, Allard said. So far, Vermont is the only state to enact civil unions, which provide gay couples with all the state benefits of marriage but confer no federal benefits, such as Social Security payments, federal tax advantages and immigration rights for spouses. Several other states, including California and Oregon, have established same-sex partnership arrangements that are similar to civil unions. White House deputy press secretary Trent Duffy said Bush, who endorsed the amendment last month, "still supports the amendment because it meets his principles. The president has said he was open to revisions if necessary." The new text says: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." more
BLACK CLERGY RALLY IN ATLANTA AGAINST GAY MARRIAGE: From the Associated Press
More than two dozen black pastors added their voice to the critics of same-sex marriage, attempting to distance the civil rights struggle from the gay rights movement and defending marriage as a union between a man and a woman. "When the homosexual compares himself to the black community, he doesn't know what suffering is," said the Rev. Clarence James, an African-American studies professor at Temple University. Jones and 29 pastors rallied late Monday with their supporters at an Atlanta-area church where they signed a declaration outlining their beliefs on marriage and religion. The declaration is meant to pressure state representatives to approve a constitutional ban on gay marriages, which will be considered again by the Georgia House as soon as this week. The declaration, to be presented to state leaders Tuesday, says same-sex marriage is not a civil right, and marriage between a man and a woman is important because it's necessary for the upbringing of children. "To equate a lifestyle choice to racism demeans the work of the entire civil rights movement," the statement said. "People are free in our nation to pursue relationships as they choose. To redefine marriage, however, to suit the preference of those choosing alternative lifestyles is wrong." Same-sex marriage is already illegal in Georgia, but supporters of the ban say the constitution needs to be changed to make sure a judge does not direct Georgia to recognize gay marriages performed in other states. "It is a threat to who we are and what we stand for," said Bishop William Shields of Hopewell Baptist Church. "If nothing else gets us out of the pews, this ought to." But the Rev. Paul Turner, a gay pastor from Atlanta who helped organize a pro-gay marriage rally last month outside the Georgia Capitol, disagreed: "How do they figure that it's not a civil rights issue?" "This is just a way for those conservative leadership in the black community to say, 'Look, this isn't a matter of civil rights because we're black and we didn't have a choice in being black.' And they think gays do, and that's not true," Turner said. link | ||||||||
