DEATH BY ADJECTIVE: David Blankenhorn

ADJECTIVES REQUIRED? "Traditional marriage sure to survive."

I think it's official. When referring to marriage, the implicit, unstated understanding of "heterosexual" has been replaced by the word "traditional." So now we have another adjective that we have to insert before the word "marriage" in order to specify our meaning.

Good grief. Here is my rule: Every time marriage nuts are forced to stick an adjective in front of the word marriage, we lose. Marriage is a big, old, strong word that has gotten along fine for 4,000 years without any adjectives. Now, adjectives are suddenly required. They are used with apparent approval even among people who wish the institution well.

Take an example: "healthy" marriage. I understand where this comes from. But it troubles me. Are you for marriage? Well, not really. I am for "healthy" marriage. Regular old marriage, you see, might be full of all kinds of problems, like domestic violence, unhappiness, patriarchy, and rigid sex roles. (Do you like to play tennis? Not really. But I do from time to time enjoy "healthy tennis." You know, tennis that's not ... unhealthy.)

And now, as of about five minutes ago, we have something called "civil marriage," which, we are told, is something quite different from "religious marriage." Funny. That thought had never occurred to me until ... about five minutes ago. And now we have "traditional" marriage, for those who think that marriage is ... between a man and a woman.

If there is a better indicator of the frailty of marriage today this trend of font-loading adjectives, I am not aware of it.

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posted by Eve at 4:58 PM | link 0 comments

SCANDINAVIAMANIA: Stanley Kurtz testifies; reporting by the San Francisco Chronicle

A Hoover Institution scholar told a House committee Thursday that same-sex marriages destroy heterosexual marriages, citing a coincidence of out-of-wedlock births in Scandinavia and the Netherlands after acceptance of homosexual unions.

But some lawmakers criticized his contention, suggesting the scholar was attributing cause-and-effect to separate, coincidental trends.

Stanley Kurtz, who holds a doctorate in social anthropology from Harvard University and is a research fellow at Stanford University's Hoover Institution think tank, said the Dutch example is particularly striking because Holland had an ample stock of "cultural capital," or conservative social tradition, before it legalized same-sex marriage in 2000.

The increasingly widespread European practice -- which Kurtz said took root in Scandinavia -- of heterosexual cohabitation and out-of-wedlock childbearing was still fairly rare in Holland, Kurtz said, until the debate over same-sex marriage began in 1996.

"The movement for same-sex marriage picked up steam after the election of a socially liberal government in 1994, a government that for the first time included no representatives of the socially conservative Christian Democratic Party," Kurtz said.

The result, Kurtz asserted, is that the Dutch out-of-wedlock birthrate doubled.

Kurtz testified before the Constitution panel of the House Judiciary Committee, holding its second hearing on a federal constitutional amendment to prohibit same-sex marriage. ...

Rep. Jerrold Nadler, D-N.Y., accused Kurtz of adopting the elementary statistical fallacy of confusing correlation with cause and effect.

"You show no causality whatsoever," Nadler said, adding that he may attempt to amend the Federal Marriage Amendment, assuming it comes to the floor, with prohibitions on divorce, birth control, adultery, female employment and other social trends believed to undermine traditional marriage.

Kurtz replied that he can't prove causation but is making a systematic argument, and there is no better explanation for the sudden doubling in the out-of-wedlock birthrate in the Netherlands. To disprove him, he said, same-sex marriage advocates would have to come up with a better explanation.

Rep. Robert Scott, D-Va., asked Kurtz several times if what he was arguing was that heterosexual couples will not marry if homosexual couples do. "Are you saying that men and women are less likely to get married because two men get married?"

When Kurtz said yes, Scott laughed.

Kurtz agreed with Nadler that banning such things as divorce and female employment would strengthen traditional marriages, and he said there is a tradeoff between changing social mores and strengthening traditional marriage.

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

SCANDINAVIAMANIA: Justin Katz

The legalization of same-sex marriage does not of itself cause some cosmic shift in people's attitudes about marriage. The day after the ink dries on legislation or a judicial ruling, divorce lawyers' phones won't ring off the hook and unmarried couples won't give birth to vast broods. However, the legalization of same-sex marriage is a definitive marker--the bottom line of how a society defines marriage and its purposes.

Therefore, it necessarily arrives as part of a progression, not as a bolt from the cultural blue. This is not to say that the "yes" vote doesn't bring a significant shift; accepting marriages between two men or two women establishes a manifest illustration that, whatever the essence of marriage is, it doesn't follow from the unique complement of man and woman. ...

This biological and psychological reality holds no matter the culture in question. Therefore, it would be a waste of time to argue with Andrew Sullivan's assertion that "the legal and cultural norms around coupling and family are very, very different in Scandinavia than in the U.S." Even letting slide his perennial attempts to use that region as a model and example in his advocacy for SSM in the United States, one can suggest that damage to the institution of marriage would only be more profoundly harmful on our shores, where (Sullivan admits) "civil marriage remains... the privileged organizing unit for coupling and rearing children." ...

Note not only that there are more married two-child households than one-child, but also that the distance increases as described above. The outlined boxes give some historical perspective, as the relevant numbers for 1991. It isn't clear that the trend is of families with children remaining the same, only dispensing with the marital formality, as Spedale suggests. If that were the case, losses in the married category would be made up more directly in the unmarried couple category.

Although there may have been some degree of this in the '90s, comparing the percentage change of the total numbers suggests that the arrangement could be culturally and individually fleeting. Larger families are likely to be older, with a cultural view formed during an earlier period, and larger unmarried families would seem likely to include more reshuffled children. ...

I'm not sufficiently familiar with what's going on in [Norway] to know why it's so, but the marriage numbers have been volatile this decade, up to 25,356 in 2000 and down to 22,967 in 2001. That blip was in large part due to fluctuations in the number of church weddings, which might be consistent with my boost hypothesis. However, the 2002 increase was more evenly divided between religious and civil. Whatever the case, one can discern how susceptible the relatively tiny totals are to distortion of trends by the fact that one could pick five-year gaps during which marriages increased by 25% or by 0%. ...

What's peculiar, here, is that Spedale opens his essay proclaiming that "15 years after the first of these countries (Denmark) legalized gay marriage in the form of registered partnerships, the results are in." He ends suggesting that this "15-year history with gay marriage" allows us to "close the door on Stanley Kurtz's supposed argument that gay marriage in Scandinavia has had a negative impact on the institution of marriage." If that's the case, why offer only data from the first six of those fifteen years?

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posted by Eve at 4:52 PM | link 0 comments

SCANDINAVIAMANIA: An anonymous Norwegian reader of Andrew Sullivan's weblog

Let me just say that some of Kurtz' assertions, i.e. "Nord-Troendelag is like Massachusetts--a socially liberal state influenced by left-leaning institutions of higher learning," are simply not true.

Nord-Troendelag does not distinguish itself as more "socially liberal" than any other part of Norway, and if the NTNU is having any influence at all, it's in the conservative/realist direction -- after all, it's a school primarily of Science and Technology, not Sociology and Film Theory, or what have you.

Also, the differences between the geographical entities within Norway aren't anywhere near big enough to warrant comparisons with states in the US. Nord-Troendelag and neighbouring Soer-Troendelag are absolutely indistinguishable, and most people just lump them together as "Troendelag" (calling their inhabitants "Troenders") for simplicity.

On another note, I'd say that yes, more than half of my friends were probably born "out of wedlock," and more than half of my friends' parents are certainly divorced or separated at this point. The question is: who cares? As you say, there aren't really any significant practical benefits (i.e. from the government) of getting married in the first place, and couples are very serious on raising their children in a decent manner no matter what their civil status. It's not like we're a country of "crack babies" and abandoned orphans, we probably have some of the best statistics in the entire world despite low marriage rates!

I myself was born by unmarried parents. They married a year or two after I was born (civil marriage, not in a church), and divorced when I was 16. Now (six years later), they're back living together, but still haven't gotten "re-married" officially -- and why should they, as long as they're happy living together? Also, I'm happy to say I turned out okay despite all this which for Americans probably seems a bit stormy.

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posted by Eve at 4:45 PM | link 0 comments

SCANDINAVIAMANIA: Darren Spedale

Since 1989, gay marriage has been a reality in Scandinavia. And in Scandinavia, just as is happening now in the U.S., many members of the religious right predicted 'terrible consequences' for the institution of marriage, and for society in general, as a result.

Yet now, 15 years after the first of these countries (Denmark) legalized gay marriage in the form of registered partnerships, the results are in: not only has gay marriage worked flawlessly in Scandinavia, the institution of marriage may have benefited as a result. Indeed, we now see that the main “consequences” of allowing gays and lesbians to marry have been to create safety and security for same-sex couples who have chosen to live their lives together. ...

It borders on the ironic that Kurtz should choose to attack the social culture of the Scandinavian countries, which have the lowest poverty rates in the world, the highest education rates, and a greater level of equality for women than any other set of countries. ...

During my two years conducting research in Scandinavia, while on a Fulbright Fellowship, for the specific purpose of analyzing the impact that passage of gay marriage has had on these countries, it became clear to me that this legislation has had many positive effects, and no negative ones. Mr. Kurtz’s study, conducted through reports and research he read, as compared to empirical research, is severely flawed. Nevertheless, it is worth analyzing the points he has attempted to make, in order to demonstrate how he has failed to understand the positive impact that gay marriage has had in Scandinavia. ...

Why might this continuous growth be the case in Scandinavia? Research suggests that many Nordic couples don't feel that they need the approval of the state to certify the validity of their permanent relationships. For many Scandinavians, once they have chosen their life partner, moved in together, and made plans for a family, it isn't clear what positive impact a marriage certificate from the government would have on their relationship. ...

In Scandinavia, on the other hand, legislative respect for diverse family structures means that this reward and punishment system is not attached to a marriage certificate. Individuals are entitled to most benefits regardless of their possession of such a certificate, as almost all government benefits accrue to the individual rather than to couples based on their marriage status. Even when long-term unmarried domestic partnerships break up, the state has provisions in place to protect the needs of the weaker (i.e., financially dependent) party in such a relationship. Thus, many couples have decided that a state sanction in the form of a marriage certificate is not necessary for them to live their lives together. ...

...There is absolutely no evidence to suggest that gay marriage is somehow a cause of increasing rates of permanent heterosexual relationships without a marriage certificate. Rather, the acceptance of gay marriage is an effect of the increasing respect for diverse family structures that has taken place in Scandinavia.

In Iceland, for example, gay marriage was introduced in 1996. However, even before the registered partnership law was introduced, approximately 50% of heterosexual couples in Iceland with children were already living together as permanent partners without a marriage certificate. It can hardly be said that the extension of marriage rights to gay couples played a 'causative' role. ...

Nevertheless, in discussing family life in Scandinavia, Kurtz is using this term in an inappropriate context. Couples in Scandinavia who have chosen to spend their lives together without a marriage certificate often plan for an otherwise traditional family structure, including children. Thus, the 'out-of-wedlock births' that Kurtz refers to in Scandinavia are children who are wanted by their parents. These children have the same rights and privileges as any child in society born to a married couple, and there is no social stigma for children attached to a parent’s marriage status in the Scandinavian countries. ...

It is interesting to note that, in Scandinavia, just as in the U.S., those on the right predicted that passage of gay marriage legislation would lead to the downfall of the institution of marriage. However, in looking at statistics from the 1990s, we see that in the years after the passage of gay marriage legislation in Denmark, the rates of heterosexual marriage went up, and the rates of heterosexual divorce went down, completely contrary to the predictions of conservatives. ...

Most illuminating is the respect, and appreciation, that gay couples in Scandinavia who have chosen to marry have for the institution of marriage. As discussed before, developing social trends in Scandinavia have allowed couples to live together without a marriage certificate and still receive most of the benefits that accrue to married couples. Thus, there is no social pressure to acquire government approval of one’s relationship in order to start a family.

Gay couples who have entered into marriage in Scandinavia (or officially, 'registered partnerships'), therefore, take the institution of marriage very seriously. In interview after interview with gay couples, partners told of how much getting married meant to them, both in terms of demonstrating to others how important their relationship with their partner was to them, as well as to demonstrate to their life partner how important their commitment was to each other.
posted by Eve at 4:44 PM | link 0 comments

SCANDINAVIAMANIA: The New Republic

The TNR piece is not online; here are excerpts: ...[Stanley] Kurtz offers statistics showing that rising proportions of children in Sweden, Norway, and Denmark are now born out of wedlock. Although he concedes that many factors have contributed to this development, he insists that the creation of "same-sex registered partnerships" has "locked in and reinforced the separation between the ideas of marriage and parenthood, thereby accelerating marital decline" by weakening the cultural imperative to wed before giving birth. Kurtz's argument is not that gay marriages would prompt existing straight couples to end their marriages, just that the symbolic damage done to the institution by letting gays join it would deter younger couples from bothering to wed: "By getting Americans used to a strong separation between marriage and parenthood, gay marriage would draw out these trends and put us firmly on the path to the Scandinavian system."

Alas, Kurtz's conclusions are suspect on their face--for the simple reason that Scandinavia does not have gay marriage, merely a marriage alternative available only to gays. (Kurtz clearly knows this, because at times he correctly calls them "registered partnerships." But, then, inexplicably and inaccurately, he slips into calling them gay marriages.) That complication aside, he offers zero evidence suggesting that gay partnerships have driven down marriage rates among heterosexuals in Scandinavia. At best, Kurtz struggles to show a correlation, much less a causative effect, between gay partnerships and the "disappearance" of marriage. Co-habitation and out-of-wedlock births, we are told, "closely track the movement for [what Kurtz calls] gay marriage." In one liberal county in Norway where "gay marriage has achieved a high degree of acceptance" (never mind that it remains illegal), marriage rates are in decline.

But to suggest these correlations prove that recognizing gay unions has hurt marriage is simply shoddy social science. If gays are to blame for Scandinavia's marital decline, how do we explain another trend closer to home: In the United States, the number of unmarried, co-habiting couples increased tenfold from 1960 to 2000. And all of this with no gay marriage, no registered partnerships, not even civil unions, which only came into existence in a handful of states after the 40 years of data in question. If anything, the emergence in the West of both registered partnerships for gays and the possibility of gay marriage itself are more likely a result, not a cause, of liberalizing attitudes toward marriage, themselves a product of evolving views toward women, divorce, and contraception, along with a host of social issues (including a vibrant social safety net) that have made being single a more attractive option. But, however you feel about that proposition, Kurtz's claim that he can now "answer the key empirical question underlying the gay marriage debate" is utter nonsense.

Worse, Kurtz's conflation of gay partnerships and gay marriages is hardly a trivial mistake. Kurtz begins from the premise that co-habitation undermines marriage by offering an alternative arrangement for child-rearing, thus removing the social stigma of out-of-wedlock birth and severing the link between marriage and parenthood. He then argues that "gay marriage" further erodes the link between marriage and parenthood, making a bad situation even worse: "Scandinavian gay marriage," we are told, has sent the message that "virtually any family form, including out-of-wedlock parenthood, is acceptable."

But, once again, there is no gay marriage in Scandinavia, only registered partnerships. And these arrangements by definition sever the link between marriage and parenthood, not because gays don't have children--they do--but because they are denied the right to marry and are thus consigned to co-habitation. If they have kids, this means they're sentenced to unmarried parenthood. By contrast, if gays could marry, many of the children living with out-of-wedlock gay parents would instead be living in married households, and the link between marriage and parenthood would be restored. The only thing Kurtz's data really show is that formalizing a new arrangement of co-habitation is correlated with increased co-habitation rates. ...

...One of the most commonly cited studies actually assessing the effect on children was published in 2001 by University of Southern California Professors Judith Stacey and Timothy Biblarz, who favor same-sex marriage but nonetheless set out to critique studies suggesting there were no differences between children raised in gay and straight families. Their research concluded that children of gay couples did exhibit moderate differences from children of heterosexual parents in that they appeared "less traditionally gender-typed and more likely to be open to homoerotic relationships."

In the hands of conservative scholars like Kmiec, who begin with the assumption that homosexuality is pathological, this turns into children being "confused sexually." But Stacey and Biblarz's conclusions decisively rebut the idea that growing up with gay parents is harmful: Such children "display no differences from heterosexual counterparts in psychological well-being or cognitive functioning," they write. In addition, Stacey and Biblarz find that gay parenting "has no measurable effect on the quality of parent-child relationships or on children's mental health or social adjustment." This, as it happens, was also the determination of the American Psychological Association (APA) after an extensive 1995 review of the literature on gay families. Children raised by gay parents, the APA concluded, are not "disadvantaged in any significant respect relative to the children of heterosexual parents." The American Academy of Child and Adolescent Psychiatry echoed this finding in its 1999 statement opposing discrimination against gay parents. Ditto the American Academy of Pediatrics in a 2002 policy statement, saying children of gay parents have "the same advantages and the same expectations for health, adjustment, and development" as those of heterosexual parents. Indeed, not a single reputable study shows any harm whatsoever to children living in same-sex-headed households. ...
posted by Eve at 4:44 PM | link 0 comments

MAGAZINE FOR GAY PARENTS: From the New York Times

WHEN Michelle Darne and her partner set out to start a family, they found few answers to their many, many questions.

"We had so many questions about how a lesbian couple can become parents," Ms. Darne said in an interview in her Brooklyn office. "Should we adopt? Should one of us carry the baby? What are our legal rights? Where is the best sperm bank?"

Ms. Darne said she could find no publication to address those questions, apart from an eight-page newsletter with an irregular publishing schedule.

So they started their own. ...

The gamble may pay off. Three years later, Ms. Darne and her partner, Kathleen T. Weiss, now run And Baby, published every two months dealing with issues unique to gay, lesbian, bisexual and transgender parents.

Recent articles include: "Doll Shopping With Gay Dads" (let your child choose), "Will My Kids Be Gay?" (offer support if they are) and "Transgender Transition: Talking to Your Kids" (younger children accept transgender parents more readily).

The women, who first met five years ago through a mutual friend, now also have 1-year old twin daughters, London and Morisot. ...

Prepared by Witeck-Combs Communications, a Washington marketing and public relations firm, the study estimated that 2.6 million gay or lesbian couples live in households with children under age 18.

The research company said the market for gay parents remains unrecognized and untapped.

The magazine prints nearly 100,000 copies, and now has 11,000 paying subscribers, they say. They also say they sell about 3,000 copies on the newsstand. Its growth has come largely through a strategy that has the magazine given away at all the country's major gay parades, carnivals and same-sex parent clubs. "We knew that 90 percent of the people at gay pride events are target readers," Ms. Darne said. "We did not realize how hungry they would be for our magazine."

At the first event she attended, the 2001 gay pride festival in Long Beach, Calif., nearly 20,000 copies were gone in a matter of hours. ...

"One potential investor was not comfortable with us including bisexuals and transgender so we did not take their money," Ms. Darne said. "We must look out for our whole community."

Perhaps the greatest single political issue facing her and her readership, however, is that of marriage, Ms. Darne said.

She said she and Ms. Weiss had spent nearly $30,000 on setting up a legal framework to protect their family. Nonetheless, she said, the rights of her family fall well short of those of a heterosexual couple that has adopted a child.

"We look at the same-sex marriage issue from the point of view of families and children's rights," she said. "We cannot deny children of two same-sex partners the right to have parents."

Reflecting her concerns and the current political climate, And Baby produced a special issue: "My Big Fab Gay Wedding! 3,000 Years of Same-Sex Unions."

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posted by Eve at 4:05 PM | link 0 comments

SSM BAN APPROVED BY MISSOURI HOUSE: From the Kansas City Star

The Missouri House on Thursday overwhelmingly approved a proposed constitutional amendment banning gay marriage after a bitter debate in which bill supporters were accused of bigotry.

The proposal, approved 124-19, would ask voters to amend the state constitution to define marriage as the union of a man and a woman. State law already defines marriage that way, but supporters want to put the ban in the constitution to strengthen the argument that Missouri would not have to recognize gay marriages performed in other states.

Supporters of the ban argued that gay marriage is deviant, debases American culture and violates natural law. They said issuing marriage licenses to gay couples would be morally wrong and would call into question other licenses the state issues, including licenses to practice medicine.

"It is an oxymoron to talk about same-sex marriages," said Ed Emery, a Lamar Republican. "But we no longer live in a society where an absurdity is recognized as an absurdity."

Emery, who last year held a ceremony to consecrate his Capitol office, said God determines what is right and wrong. Same-sex marriage, he said, is wrong.

Opponents said the ban would endorse bigotry and deny basic rights to a whole segment of society. Rep. Vicky Riback Wilson, a Columbia Democrat, said the legislature devalues marriage when it refuses to allow couples in committed relationships to marry and assume the emotional, financial and civic responsibilities that go with marriage.

Rep. Mike Sager, a Raytown Democrat, said supporters of the ban are hiding their bigotry against gays under the guise of preserving marriage.

"I heard Republican representatives call me a fag-lover," Sager said. "…I'm not offended by being called a fag-lover. I'll wear it like a badge of honor. People who vote for this bill ought to be ashamed."

Rep. Curt Dougherty, an Independence Democrat, said he opposed the ban because a law already on the books defines marriage as between a man and a woman. The legislature should not be clogging the constitution with issues that can be handled in statutes.

"We shouldn't meddle in the constitution because someone perceives that our law isn't good enough," Dougherty said. "Some things really should be left in the closet."

Rep. Barbara Fraser, a St. Louis County Democrat, said arguments about the need to preserve traditional marriage aren't valid because the definition of marriage has evolved over time. In the past, marriage has been limited to people of the same faith or the same race, and women were considered property of their husbands, she said.

"Today, we recognize that marriage is up to the people involved," Fraser said. "This is about equal rights, not religion. This is an 'I hate gay people' amendment."

But those views were in a decided minority. ...

The measure now goes to the Senate, which has approved its own version of a ban on gay marriage.

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posted by Eve at 4:02 PM | link 0 comments

IMPAIRMENT OF CONTRACTS: Dave Tepper

Let's talk about Virgina's Affirmation of Marriage Act, shall we? It passed today, after all, and so the Virginia Code is going to get a new S20-45.3. Here's the text:

"A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable."

Taken literally, to its extreme, that means I could give my medical power of attorney to my mother but not my father. Or as Gov. Mark Warner noted (scroll halfway down the page), it could unintentionally forbid business partnerships between people of the same gender.

Is this really necessary? Look, social conservatives, you already have what you want. Same-sex marriages are already illegal in Virginia. I could even understand--not approve of, or condone, but understand--prohibiting civil unions. My question, which no one is answering, is: How does it affirm marriage to prevent some people but not others from entering into contracts?

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[Eve says: I don't know enough about this law to tell you if it does what Tepper fears it does, and would welcome helpful emails on that point. I've written several times on this site about my support for increased freedom of contract--not sure why, to take one of the easiest examples, I shouldn't be able to designate my best friend to make medical decisions for me.]
posted by Eve at 3:04 PM | link 0 comments

KURTZ AND SULLIVAN ON SCANDINAVIAN SSM: An exchange

Andrew Sullivan writes: ...For Kurtz, allowing gays to marry essentially killed civil marriage in the Nordic countries. In his eyes, it has increased out-of-wedlock births. It has led to the end of marriage as we know it. All gripping stuff, except that Kurtz failed, as many pointed out, to prove anything but a correlation between rising rates of non-marital cohabitation and gay marriage. ...But Kurtz also dismisses the research of others who have actually spent months on the ground in Scandinavia resarching this topic, namely one Darren Spedale, a young Fulbright scholar who has dedicated himself to the subject and has produced an as-yet unpublished book. Kurtz has dismissed Spedale's on-the-ground research as the work of "a kid barely out of college." Now he is moving on to the Netherlands. I sent Kurtz's pieces to Spedale and he has some cogent points to make in response.

SPEDALE RESPONDS: First, the legal and cultural norms around coupling and family are very, very different in Scandinavia than in the U.S. Civil marriage doesn't have the kind of privileges that it has in the U.S. and marriage laws ensure that there is little, if any, incentive to get formally married, rather than simply cohabitate or live under partnership arrangements. Put this down to an egalitarian welfare state or a different culture, but that makes it strikingly different than the U.S., where civil marriage remains (in my view, rightly) the privileged organizing unit for coupling and rearing children. As Spedale explains: "Norwegian individuals are entitled to most benefits regardless of their possession of such a certificate, as almost all government benefits accrue to the individual rather than to couples based on their marriage status. Even when long-term unmarried domestic partnerships break up, the state has provisions in place to protect the needs of the weaker (i.e., financially dependent) party in such a relationship. Thus, many couples have decided that a state sanction in the form of a marriage certificate is not necessary for them to live their lives together."

This is a far, far more central cause for the decline of formal marriage in Scandinavia, which, as Kurtz concedes, has been going on for decades. To attribute it to the rise of same-sex registered partnerships is an almighty stretch. And it doesn't mean what it might mean in America. Scandinavia tends to be a very socially conservative and culturally heterogeneous place. By that I mean that, although marriage is in decline, there's little evidence that this has led to family dissolution. Over to Spedale again: "Couples in Scandinavia who have chosen to spend their lives together without a marriage certificate often plan for an otherwise traditional family structure, including children. Thus, the 'out-of-wedlock births' that Kurtz refers to in Scandinavia are children who are wanted by their parents... Probably the most telling proof of this is the incredibly low number of Scandinavian children available for adoption each year. In Denmark, for example, only about 25 Danish children are available for adoption each year in the entire country. (The vast majority of adopted children, over 90%, come from poorer countries.) Kurtz's claim that 'rising rates of cohabitation and out-of-wedlock births stand as proxy for rising rates of family dissolution' is therefore misleading. The only thing that such statistics demonstrate is a continuing shift in the Scandinavian countries to permanent relationships of families in a traditional family structure (i.e., with children), who don't hold a marriage license. Kurtz fails to prove any connection whatsoever between unmarried couples and family dissolution." ...

KURTZ'S DISTORTIONS: Kurtz also wants to argue that same-sex marriage advocates are cultural radicals who wish to destroy the traditional family. He has barely acknowledged the long battle that gay conservatives have waged against some gay radicals in the U.S. and elsewhere in promoting civil marriage rights. And he wants to describe the low numbers of same-sex marriages in Scandinavia as a function of gays protesting marriage. Spedale believes otherwise: "The reason that marriage rates among gay couples in Scandinavia is so low reflects the seriousness with which gays and lesbians have taken the institution of marriage. Most gay couples wait many years into their relationship before choosing to marry, specifically for the reason that they want to be sure that their chosen partner is truly their life partner. This solemn approach towards, and respect for, entering into the institution of marriage also explains why divorce rates among gay and lesbian couples is so much lower than rates of divorce among their heterosexual counterparts." ...

...Between 1994 and 1999, there were a total of five registered same-sex partnerships in the county Kurtz cites. Kurtz wants to explain the shift in that county's heterosexual conduct by citing a mere ten people? It's also true that in the period Kurtz is concerned about the number of marriages in Norway increased by almost 25 percent from 20,161 in 1993 to 26,425 in 1999. How does that square with the "death of marriage"? Kurtz is now preparing to do the same job on Holland. Since real marriage rights have been legal for all citizens in the Netherlands, the Boston Globe reports, there is no "evidence of damage to the institution. For example, divorce rates are no higher, and there is no sign that conventional couples are shunning marriage." Can't wait to see how Kurtz manages to reverse that.

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Kurtz responds briefly here and here: One quick further note about Sullivan and Scandinavia--more detail next week. Sullivan denies the link between high Scandinavian out-of-wedlock birthrates and high rates of family dissolution. This is just wrong. One of the most widely accepted facts in comparative family sociology is the higher breakup rate of cohabiting parents--two to three times higher than among married couples. This is emphatically the case even when we are not talking about teen single mothers but about middle class couples who are together, yet unmarried, at the time of their child’s birth. This fact is widely accepted both by radical sociologists who would like to see marriage replaced by cohabitation, and by more conservative scholars who think the Scandinavian trends are deeply disturbing. And the link between parental cohabitation and family dissolution has been shown by numerous observers to apply to Scandinavia just as much as to the rest of the West.

[Eve notes: There're some good points here. But two things in Spedale's discussion really seemed off to me. 1) Low rates of babies placed for adoption = strong family culture??? Has Spedale ever spent any time in an American inner city? Many, many American communities have exceptionally low marriage rates and a strong stigma against placing your baby for adoption. Those are the families of "fatherless America," not models of marriageless bliss. 2) Scandinavian same-sex marriages are lasting and wonderful etc. because there's a long shacking-up period before marriage? In my view, this understanding of what makes marriage work and how sex and marriage are connected a) springs out of and b) reinforces the heterosexual culture of cohabitation and widespread premarital sex. Which I thought was one of Kurtz's points....]
posted by Eve at 2:40 PM | link 0 comments

S.F. ARGUES SAME-SEX COUPLES HAVE RIGHT TO STAY MARRIED: From the Boston Globe

The City of San Francisco argued yesterday that same-sex couples who already have been married have a limited constitutional right to stay married that cannot be nullified without giving them a chance to defend that right.

Making legal arguments that could be applied in the future in other states, like Massachusetts which is scheduled to permit gay marriages next month, City Attorney Dennis J. Herrera told the California Supreme Court that a couple, once married, has a "property right" in that relationship.

That right, he argued, carries with it a guarantee of due process before a gay marriage can be ended by a court. The state, he said, must "afford notice and an opportunity to be heard" in the same way that an opposite-sex couple would be allowed to defend their right to stay married.

If the state Supreme Court wiped out the more than 4,000 same-sex marriages that have already been performed, under licenses granted by San Francisco's city clerk on Mayor Gavin Newsom's orders, that would be "a green light for discrimination" against gay and lesbian couples across the state, Herrera contended.

The issue of the continuing validity of gay marriages, once performed, could arise in Massachusetts after such marriages are entered, beginning May 17. Should the Legislature and the state's voters adopt a constitutional amendment to outlaw such marriages, the fate of those already married would become a legal issue, as it now is in California.

The State of California was expected to argue, in a brief due last night, that the state's highest court should undo the same-sex marriages already performed, because state law bans such marriages and thus San Francisco had no legal authority to authorize them with licenses.

That same argument was made yesterday in a brief by the Alliance Defense Fund, a coalition of challengers to gay marriage in the state. If the state court were to leave those marriages intact, the Fund said, that "would have the deleterious effect of encouraging local officials to disregard the law wherever a local official's view conflicts with long-established state law."

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posted by Eve at 2:21 PM | link 0 comments

LAW CURBING OUT-OF-STATE COUPLES FACES A CHALLENGE: From the Boston Globe

State lawmakers will fire the latest salvo in the battle over gay marriage today, as Representative Robert P. Spellane of Worcester files a bill to undo a 1913 law that forbids out-of-state couples from marrying in Massachusetts if their union would be illegal in their home jurisdiction.

The law has garnered unprecedented attention in recent weeks, as the days wind down before a landmark Supreme Judicial Court ruling that legalized gay marriages goes into effect May 17. ...

Spellane hopes to sidestep that work, saying that the 1913 law is not only discriminatory, but violates the SJC's Nov. 18 ruling that banned the exclusion of gay and lesbian couples from the rights and benefits of civil marriage. ...

The law, which was adopted in only five states (Louisiana, which later repealed it, Massachusetts, Vermont, Illinois, and Wisconsin), was in part intended to uphold laws in other states that barred interracial marriages. ...

In a footnote in one of the opinions written by the four SJC justices who formed the majority in the gay marriage ruling, Justice John M. Greaney suggested that out-of-staters will not be able to get married in Massachusetts.

"The argument, made by some in the case, that legalization of same-sex marriage in Massachusetts will be used by persons in other states as a tool to obtain recognition of a marriage in their state that is otherwise unlawful is precluded," the footnote said.

Earlier this year, Attorney General Thomas F. Reilly said he, too, read the 1913 law as precluding same-sex couples from marrying in the Commonwealth if they reside in one of the 38 states that has passed a ban on gay marriage.

It remains unclear what chances Spellane's bill has of passage, especially since the Legislature is about to take on the task of passing a budget during a fiscal crisis.

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

COURT IS TOLD OF CHAOS ON MARRIAGE: From the Boston Globe

Predicting legal chaos in Massachusetts if gay and lesbian couples marry starting May 17, same-sex marriage opponents asked a single justice of the state Supreme Judicial Court yesterday to delay allowing such marriages for 2 1/2 years, until after voters consider a constitutional ban in late 2006.

C.J. Doyle, the executive director of the Catholic Action League of Massachusetts, said the court should postpone implementation of its landmark ruling until Massachusetts residents vote on a constitutional amendment that would prohibit gay marriage and establish civil unions.

"Legal chaos will be created by the issuance of same-sex 'marriage' licenses before the issue goes to the citizens for a vote in 2006," Doyle said in an eight-page petition filed with the SJC yesterday. The court, he added, "has a duty to avoid this inevitable conflict and confusion by simply staying the entry of its judgment pending the outcome of the amendment process."

Mary Bonauto, a lawyer for Gay and Lesbian Advocates and Defenders, decried the petition as a "desperate move and a publicity stunt."

"This is an end run around the constitutional process; it's an end run around the court decision," she said.

So far, the SJC has given opponents of gay marriage no wiggle room to prohibit such weddings, ruling in November that limiting marriage to heterosexuals violated the state constitution and declaring in February that civil unions would create second-class citizenship for gays and lesbians.

Doyle is hoping that one of the seven justices sitting alone will grant a stay on the narrower issue of whether granting same-sex marriage licenses should be delayed until voters decide the proposed referendum. Each month, one of the justices holds a single justice session to hear cases. This month, the justice is Roderick L. Ireland, who was one of the four who agreed last fall that it is unconstitutional to bar same-sex couples from the rights and benefits of civil marriage. ...

Laurence Tribe, a constitutional scholar at Harvard Law School and author of a friend-of-the-court brief supporting gay marriage, dismissed Doyle's petition as a "completely pointless exercise."

He said Doyle was unlikely to meet the two fundamental requirements for securing a stay: First, that a constitutional ban will probably pass -- which he said only a soothsayer could predict -- and, second, that irreparable harm will result if the request for a stay is rebuffed.

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posted by Eve at 2:16 PM | link 0 comments

CULTURAL COLLAPSE: Mark Miller replies to R.K. Becker

R.K. has certainly defined what he means by 'cultural collapse' but what I think he has failed to do is clearly state how SSM would result in those scenarios. In other words, how would SSM weaken the resolve of the public to the point that it is no longer able or willing to work to overcome challenges either from inside or outside the society? Does R.K. base this on the fact that the majority of Americans are against SSM? Is R.K. saying that SSM could cause such divisions within the society that it no longer holds together and partitions into a number of smaller and more poorly organized states? Why does that apply to this issue as opposed to other issues where there are deep divisions?

R.K. writes, "If this is what Mark is willing to gamble on it's a very risky gamble, considering all of the fine examples of collective human nature that we have seen over the last century alone." and "... I see no evidence of great improvement of human nature as a whole." My belief is that "human nature" has not changed much over the centuries. It is the culture around us which has changed, and that affects how we, as human beings, adapt to that culture. I guess our definitions of "human nature" are different.

Ultimately, this thread seems to come down to the differences between how R.K. and I view homosexuality. I believe there is a significant difference between homosexual behavior and the other examples R.K. provided, such as allowing 14-year-olds to vote or drive. I agree with R.K. that sometimes concern for the social order does override individual rights. Where we disagree is that I don't believe that the legitimization of homosexual behavior, and thus, same-sex relationships, is cause for "cultural" concern--unlike allowing 14-year-olds to drive.
posted by Eve at 12:21 AM | link 0 comments

ROOMMATES: Lucia Liljegren replies to Justin Katz

Joe's admission evoked a curious look from the woman at the bar. "So you and your friend are married?"

"Yup."

Her eyebrows lowered as she laughed nervously. "Do you...," she said, as she finished her sentence, she performed a rude pantomime of a certain act.

"Nope." In a tone of practiced nonchalance, he explained that they just hadn't wanted his employment benefits to go to waste while Jane was partially unemployed and working toward her graduate degree. Joe sipped his beer and added, with a broad smile, "And our bedrooms are on opposite ends of the house."

She tittered again, but this time, the lowered eyebrows gave way to a deep blush.

Imagine the same scene if the man had been the one attempting to explain that he was married to his "roommate" Jane for convenience.

Oh, wait. I just imagined it!

The reality of this situation is that most people would disapprove of Joe. Many would consider the woman unladylike. In Justin Katz’s original story, Joe was married to a man. In mine, Joe is married to a woman. Mr. Katz is correct that people make assumptions based on the marital status. If the fictional Joe is
concerned that people will think he has sex with his spouse, he should not marry. If he does decide to enter a marriage of convenience, I assume he thinks he can live with the social confusion and disapproval his choice might entail. I assume he has also chosen to deal with later legal complications should he decide to divorce.
posted by Eve at 12:17 AM | link 0 comments

SSM AND PARENTING: Lucia Liljegren replies to Mary Catelli

I responded to Mary Catelli's initial comment on my post with the question, "So, my only real question is: ...Do you think parents who take on the legal responsibility to care for children ought not to be married?"

Ms. Catelli responds with, in her words, a passel of questions: "1. Why do you refer to those people as 'parents' and not as 'people'?"

I use the term "parent" to denote a person who is a parent of some sort. I add modifiers when I wish to refer to a specific sub-group. For example: My sister is my niece and nephew's parent. My sister's husband is my nephew's step-father.

"2. Are you using the word 'legal' to mean biological and adoptive parents?"

By legal parent, I mean "one whom the law holds responsible to care for and raise a child." My sister is her son's legal parent. My brother-in-law is not his legal parent. Biological parents who give up their legal rights are not legal parents.

"3. Do you think that your argument means that homosexuals should not be allowed to marry in states where they are not allowed to adopt?"

I prefer such states to allow homosexuals to marry. A lesbian can give birth to a child in any state. Her child could benefit should its mother form a stable monogamous relationship and marry. Significant benefits would accrue to the child, even if the state blocked full benefits by forbidding adoption. My sister's case presents a heterosexual analog. My nephew benefited when my sister married even though her husband did not adopt the three-year-old boy. My nephew would have been barred from these benefits had the law prohibited my sister's marriage.

"4. Do you think that marriage laws should be changed whenever a judge orders an adoption so that a child is legally adopted by two people who are not allowed to marry?"

I'm not sure what you are asking. I think children benefit when their parent finds a suitable partner and marries. I prefer that the law not block these marriages.

"5. Do you think that 'legal responsibility' trumps all consideration of who is actually raising the child?"

I am not certain what you are asking. Generally, at least one of the parents who is legally responsible for raising their children has physical custody and raises them. Adoptive parents gain legal responsibility, take custody and raise their child. I think it best when adoptive parents are married. In my sister's case, she had legal responsibility and physical custody. Her second marriage provided a more stable environment than single motherhood, and I thought it
wonderful that she married.

"6. That adoption law should not be altered to fit the realities of who is actually caring for the children?"

Don't adoption laws already take this into account? My understanding is that people who wish to adopt file for adoption. A judge reviews the case. My impression is that judges generally grant adoptions to people who intend to care for the children after the adoption. Often, those people are already caring for the child.

"7. And if so, why is adoption law so sacred when marriage law is so malleable?"

Adoption law has changed dramatically in my lifetime; you pointed this out in an earlier post.

I have answered your seven questions and ask again: Do you think parents who take on the legal responsibility to care for children ought not to be married?
posted by Eve at 12:16 AM | link 0 comments

SSM AND SOCIAL RELATIONSHIPS: Mark Miller replies to R.K. Becker

Before I address R.K.'s specific points, I'd like to clarify something.

Many SSM opponents argue that SSM advocates believe that there should be no limits to civil marriage or sexual freedom. The argument is something like, "If SSM is allowed then why not allow polygamy, bestiality or incestuous relationships." For me, the question is not whether any lines should be drawn. They should be. This debate is about where the line should be drawn.

R.K. writes: With SSM causing more and more people to be open to the idea of homosexuality or bisexuality, could SSM not result in increasingly strong misgivings from heterosexuals regarding their spouses SAME-gender friendships?

I do not accept his premise that SSM will cause more people to become homosexual or bisexual. The only way in which his 'logic' holds is if one assumes that SSM will create new relationships among same-gender people that previously did not exist. I agree that the legitimization and legal acceptance of same sex relationships may result in increased worrying about spouses behavior with same-gender friendships. But to use that as an argument against the legitimization of gay relationships is no different from arguing against the legitimization of interracial relationships because spouses may have misgivings about friendships with members of a different race.

Romantic and intimate relationships already exist among same-sex couples. R.K. may argue that the same logic also applies to polygamous and incestuous relationships. It is true that regardless of the legal and moral consequences, those types of relationships do presently exist. So why don't I support the "legitimization" of those? Because that would send the wrong message to society about the types of relationships which are condoned. I don't believe there is a societal (or as R.K. calls it, 'cultural') interest in discouraging homosexuality, while I do think those interests exist for discouraging polygamy and incest.

The gist of R.K.'s argument seems to be that legitimizing same-sex relationships would invite more of them. I agree. Where we disagree is that I do not believe that is the cultural disaster that he does.

Finally, regarding my comment that SSM does change the definition of marriage and that will affect those growing up in the future, and R.K.'s reply, "[I]n his earlier reply, he disputed my contention that SSM was 'radical,' and stated that all it did was extend marriage": SSM does change the definition of marriage; marriage has historically referred to opposite sex relationships. But I still dispute the accuracy of the word "radical." All changes in definition are not necessarily "radical." For example, the word "governor" has historically referred to a male. Yet, as we know, there are women governors; they are not referred to as "governesses." Is this change of definition "radical," by R.K.'s definition?
posted by Eve at 12:04 AM | link 0 comments

THINGS TO DO IN D.C.: (I'll try to attend)

The Ties That Divide: A Conversation on Gay Marriage with Andrew Sullivan and Gerard Bradley

Wednesday, April 28
10:00 - 11:30 a.m.
J.W. Marriott Hotel, Salon 3
1331 Pennsylvania Avenue, NW, Washington, D.C.
Register Now

On May 17, the state of Massachusetts will begin granting marriage licenses to same-sex couples. In reaction to the Massachusetts Supreme Judicial Court's legalization of gay marriage last November, state lawmakers approved a constitutional amendment that would ban gay marriage but permit civil unions. Lawmakers in numerous other states also are seeking to amend their state constitutions to legally enshrine traditional conceptions of marriage. Meanwhile, Congress is considering a federal constitutional amendment that would define marriage as a union between a man and a woman.

The actions of public officials in all three branches of government have galvanized Americans on both sides of this debate, and not surprisingly, religious communities have joined the fray. What are the religious convictions at the root of deeply held beliefs regarding the definition of marriage? Should theologically based arguments inform the public debate, and if so, how? In our increasingly pluralistic society, should marriage laws stay as they are, should we separate the civil from the religious dimension of marriage, or should we broaden the right to marriage?

The Pew Forum invites you to a discussion of the legal and policy implications of religiously informed arguments for and against gay marriage. More information and event registration are available online.
posted by Eve at 11:55 PM | link 0 comments

SOUTH AFRICAN BISHOP DESMOND TUTU ON SSM: From the Calgary Sun

Former South African Archbishop Desmond Tutu spoke of equality for gays and lesbians yesterday, but stopped short of endorsing same-sex marriage. At an honourary degree ceremony held in one of Vancouver's oldest churches, the Nobel laureate told the crowd that God draws in all races and groups, including "gay, lesbian, so-called straight."

Asked outside the church on his position on same-sex marriage, Tutu, an Anglican, said he "would prefer we didn't call it marriage.

"It just causes a lot of hassles. If you say you are blessing a union, I would prefer that. You just raise unnecessary hassles."

The issue is a particularly sensitive in the Vancouver area, where the local Anglican diocese has been at the heart of an international religious debate over same-sex blessings.

Michael Ingham, the bishop of New Westminster, accepted a diocese vote in 2002 to allow its churches to bless same-sex unions.

The issue has divided the diocese, prompting some conservative parishes to ask for a bishop other than Ingham to oversee their congregations.

Four top Anglican leaders from Africa and Asia have lent their support to the conservatives.

Outside the church, Ingham said Tutu is "very familiar with the situation here and he has expressed his support to me on a number of occasions."

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posted by Eve at 4:18 PM | link 0 comments

OREGONIAN EDITORIAL

In the coldest possible terms, Multnomah County Circuit Court Judge Frank L. Bearden will probably be remembered as the guy who halted the honeymoon. The same-sex wedding voyage took off abruptly on March 3, when Multnomah County started issuing marriage licenses to gay couples. The journey ended just as abruptly Tuesday, after Bearden's ruling.

While Bearden disappointed same-sex couples waiting for their marriage licenses this week, those who read his ruling may decide to cancel the flowers but not the champagne. In the long run, Bearden has given same-sex couples in Oregon far more reasons to toast the future than to despair.

The ruling is a masterful compromise that miraculously manages to be respectful of Oregonians on all sides of the gay marriage question. But Bearden left no doubt that he thinks the Oregon Constitution demands equal treatment of gay and straight couples.

Beginning with this: Bearden ordered the state to register the more than 3,000 marriage licenses issued thus far in Multnomah County to same-sex couples. The state had refused to do so, treating them as if they were written in pencil. Bearden, in a stroke, recognized that equal treatment of these married individuals under the Oregon Constitution demands that their marriage licenses not be treated as erasable.

That's an important principle in itself. Bearden's ruling holds out hope that the Oregon Constitution will allow our state to craft a Vermont-style compromise on gay marriage, granting civil unions to gays and lesbians.

Clearly, Bearden is not eager to see a court-imposed answer on gay marriage, like the one enforced in Massachusetts. There, gay weddings will begin in May, on the strength of a 4-3 state supreme court ruling. Bearden's ruling suggests that the Oregon Legislature could craft a legislative solution that would give partners in gay unions both their constitutional rights and more widespread public acceptance.

But Bearden also imposed a deadline. If the Legislature does not come up with a solution within 90 days of convening in special or regular session, then the judge's order would require Multnomah County -- require it -- to resume issuing marriage licenses to same-sex couples.

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posted by Eve at 3:59 PM | link 0 comments

OREGON DECISION: SAME-SEX WEDDINGS HALTED FOR NOW, ONES ALREADY DONE RECOGNIZED, LEGISLATURE TOLD TO INSTITUTE SSM OR VT-STYLE CIVIL UNIONS: From the San Francisco Chronicle

An Oregon judge ordered a halt Tuesday to same-sex weddings in the state's most populous county but also ordered official recognition of marriages already held there -- putting Oregon on track to join Massachusetts next month as the first states to validate gay and lesbian matrimony.

The ruling by Multnomah County Circuit Judge Frank Bearden offered something to both sides in the debate, shutting down same-sex marriages in the only county in the nation still performing them while declaring unconstitutional a state law that denied equal benefits to same-sex couples. The judge said equal benefits could be provided in civil unions similar to those in Vermont.

Bearden's order that the state validate Multnomah County's 3,000 same-sex marriage licenses, the first ruling of its kind in the nation, is scheduled to take effect May 20 -- three days after same-sex weddings are to start in Massachusetts by order of that state's highest court. Tuesday's ruling is certain to be appealed, and the state's attorney general indicated he would seek immediate review by the Oregon Supreme Court. ...

As for the 3,000 marriages already performed, Bearden said, Oregon officials' refusal to recognize them violates a state law that requires official registration of all weddings in which licenses have been issued, fees paid and ceremonies conducted.

Attorney General Hardy Myers hasn't decided whether to ask a higher court to block that portion of the ruling during the state's appeal, said Kevin Neely, a spokesman for Myers. He said Bearden's decision largely followed the attorney general's position in the case, including his view that the state law was unconstitutional.

[Eve's emphasis.]

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Read the decision here (PDF).
posted by Eve at 3:19 PM | link 0 comments

PROFILE OF MASS. CHIEF JUSTICE: From Legal Affairs

At the close of a dinner in her honor in February, Margaret Marshall, the chief justice of the Massachusetts Supreme Judicial Court, stood in front of the podium in a well-appointed dining room at New York University Law School, her white hair adding inches and style. She wore a tailored black pantsuit, black heels, and double strands of pearls around her neck and one wrist. Her offer to take a few questions was greeted by a moment of shy silence. "My recipe for lobster?" she asked with a smile.

A young NYU law professor, Doni Gewirtzman, tentatively raised his hand. "What's happening now in Massachusetts is a fascinating study in law and politics," he said. "I'm interested in your thoughts about the political consequences of your decision."

Gewirtzman was referring to Goodridge v. Department of Health, the decision handed down the previous November by Marshall and a bare majority of her court ordering Massachusetts to perform gay marriages beginning in May. ...

"The very first case heard by the Massachusetts Supreme Judicial Court involved slavery," she said. "A man by the name of Quock Walker came to the court in 1780." Walker was a slave who had run away to work for a neighbor. When his master recaptured him and beat him, he sued for assault. To win his case and hold the master accountable, Walker had to convince the court to declare him free. "He said, 'Look, it says here in your state declaration of rights: "All men are created equal," ' " Marshall said. "So the question for the court was: What are you going to do with slavery in 1780? 'Excuse me, Judge, it says equal.' " Marshall was miming Quock Walker by pointing to her palm as if the words were written there. "Judge Cushing said, 'You have curly hair and thick lips, but you look like a man to me.' " Marshall paused and her voice shook a bit. "Do I think that was a political decision? I think it was a constitutional decision." ...

But the story as Marshall tells it is well suited to justifying her court's decision to require gay marriage. The myth of Quock Walker celebrates a court that led the public to a watershed conclusion that it should have, but hadn't, reached on its own. And it stands on the old and hallowed ground of ending slavery--safer territory than more recent activist decisions like Roe v. Wade or the Massachusetts court's 1980 decision to abolish the death penalty. Safe ground is the kind that Marshall prefers to stand on. "I'm a conservative judge, in the sense of conserving institutions and being extremely cautious in every decision I make," she told me. ...

In the wake of Goodridge, then, neither side of the aisle thinks of Marshall as careful and restrained. Up until the gay marriage decision, however, she had been just that. For most of her life, Marshall played by the rules of the establishment. She made her reputation as a lawyer with strong corporate ties and a deft political touch.

Now, though, Marshall's reputation--and the reputation of her court--will turn on a principle, though she's not eager to say which one. She speaks passionately about "the right to be who you are," but she doesn't connect that evolving right directly to gay marriage. Like many judges, she tries to separate the "constitutional" from the "political" by claiming to wall off her judicial decisions from her personal convictions.

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posted by Eve at 3:44 PM | link 0 comments

FOES OF SSM TRY LONG-SHOT REMOVAL OF JUSTICES: From the Boston Globe

Twenty-eight days before the Supreme Judicial Court decision legalizing same-sex marriage goes into effect, diehard opponents will turn today to a radical, long-shot strategy: a bill to remove the four justices who penned the historic ruling.

The lone sponsor of the measure--Representative Emile J. Goguen, Democrat of Fitchburg--said he sees the "bill of address" as a tool to pressure members of the court to reconsider their landmark 4-3 decision or risk losing their judgeships. ...

The filing of the bill marks the most unusual expression yet of outrage with the SJC's ruling, which was derided as judicial activism by conservatives nationwide, including President Bush. Proponents of expanded rights for same-sex couples hailed the decision as the equivalent of other watershed decisions made during the civil rights movement. ...

While rarely exercised, the power to remove sitting judges is outlined in the state's 224-year-old constitution, which states that "the governor, with consent of the council, may remove [judges] upon the address of both houses of the legislature."

According to Camenker, who has researched bills of address, lawmakers have successfully removed judges six times since 1787, most recently in 1973, when the Legislature, governor, and governor's council voted to remove Dorchester Municipal Court Judge Jerome P. Troy. However, Troy was first disbarred and removed by the SJC.

Attempts to bring down SJC justices have been rare. The last time lawmakers successfully removed an SJC judge was 1803, Camenker said. The only other attempt made by the Legislature was in 1922, and it failed.

Richard C. Van Nostrand, president of the Massachusetts Bar Association, said that the bill of address route has been invoked rarely for a reason.

"We don't want to go down a path that would cause judges to fear removal from their position for making unpopular decisions," Nostrand said.

Goguen said the stakes in the case of gay marriage are so high that they should override such concerns.

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, dismissed the bill as "absolute insanity."

"I can understand if our opponents don't like the decision, but our opponents have no rational basis for removing any of these judges," Isaacson said. "They were clearly doing their job and, quite frankly, doing it well. Their job, after all, is to determine what's constitutional or not. Our opponents are acting like sore losers."

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

POLYAMORY IN THE SAN FRANCISCO CHRONICLE

Unitarians from Boston to Berkeley have opened another front in the liberal crusade to expand the definition of marriage and family in America.

It's the new polygamy, and according to the Unitarian Universalists for Polyamory Awareness, their relationships are at least as ethical as other marriages -- gay or straight.

"Polyamory is never having to say you've broken up," said Sally Amsbury of Oakland, whose sex and love life openly includes her husband and two "other significant others," known in polyamory parlance as "OSOs."

Amsbury serves on the national board of directors of the Unitarian Universalist organization, which defines polyamory as "the philosophy and practice of loving or relating intimately to more than one other person at a time with honesty and integrity."

"Polyamory is not an alternative to monogamy. It's an alternative to cheating," said Jasmine Walston, who lives in Louisville, Ky., and is president of the Unitarian Universalists for Polyamory Awareness.

"For some of us, monogamy doesn't work, and cheating was just abhorrent to me," she said. ...

John Hurley, a Boston spokesman for the 183,000-member Association of Unitarian Universalists, says the views of polyamorists are not necessarily endorsed by the denomination's board of trustees.

Polyamorists themselves are divided over whether to push for more formal recognition from the Unitarians, or to begin public lobbying for some of the same rights granted to heterosexual couples. "We're where the gay rights movement was 30 years ago," Walston said.

Amsbury says she favors expanding the legal definition of marriage to include three or more people, but she doesn't expect to see it anytime soon. ...

Other polyamorists are concerned that their cause will be used by opponents of same-sex marriage.

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posted by Eve at 3:37 PM | link 0 comments

TRANSSEXUALS A NEW TEST OF MARRIAGE: From the San Jose Mercury News

Depending on how you see things, Fran Bennett and Erika Taylor are a heterosexual or lesbian couple.

Either way, under California law, they're married.

That's because the couple tied the knot before Bennett, once a popular Bay Area disc jockey known as ''Weird Old Uncle Frank,'' had what is commonly called a sex change.

Their marriage -- and possibly thousands like it involving transsexual women and men across the Bay Area and country -- is already testing the boundaries of marriage as the nation wrangles over the rights of same-sex couples to wed. ...

''I am concerned that if there's a federal change defining marriage only between a man and woman, and I no longer qualify as a man, then could they try to dissolve my marriage?'' said Fairfax resident Dani-Marie Kleist, 54, a transsexual woman who married as a man 12 years ago.

Transsexuals -- people who have an innate sense they were born the wrong sex -- have a legal right in California to change their gender on various forms of identification. Those who elect to have sex-reassignment surgery can also apply for a new birth certificate that reflects their corrected sex. There are an estimated 35,000 to 60,000 transsexuals living in California.

Transsexuals have long been able to marry in California and many other states under a variety of circumstances, including marriages entered into before a person makes the transition to the opposite gender, and those that would be considered heterosexual after a person changes gender.

''It's a precious right that we already have,'' said Shannon Minter, a transsexual man and legal director at the National Center for Lesbian Rights, one of three organizations that filed a lawsuit in March for six same-sex couples arguing that denying them the right to marry violates California's constitution.

While Minter believes marriages like Bennett and Taylor's can't be undone, she said they underscore the arbitrariness of using gender as a basis to restrict marriage. ...

She cited recent family court decisions regarding transgender marriages, including one involving attorney Mathew Staver, whose Liberty Counsel is representing the conservative Campaign for California Families in suits filed to outlaw gay unions. ...

''I think the whole gay marriage debate, although it may not always be phrased this way, is a debate about gender,'' [Staver] said.

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posted by Eve at 3:32 PM | link 0 comments

SHOULD MOST GAYS AND LESBIANS MARRY?: Matt Taylor

Andrew Sullivan, David Brooks, and other self-described "pro-SSM conservatives" have suggested that gays and lesbians are morally obliged to marry their same-sex partners. Take this bit from David Brooks, for example: "It's going to be up to conservatives to make the important, moral case for marriage, including gay marriage. Not making it means drifting further into the culture of contingency, which, when it comes to intimate and sacred relations, is an abomination."

Sure, most people are better off in committed, monogamous relationships, but to "insist" on such relationships in any tangible way would do more harm than good. David Brooks seems stuck in the recurring fantasy of social conservatives -- that the root of all evil is people having sex in whatever way they don't approve of at the time. They would replace today's "culture of contingency", with a "culture of conformity", where they, the self-appointed guardians of morality, decide what is expected of the rest of us. Haven't we learned anything from centuries of war, persecution, genocide, etc.? The most horrific evil is always committed in the name of righteusness, against those outcasts who are labeled "abominations" ... we would do well to stop this labeling altogether and learn the value of tolerance.

So in reply to the question "should gays and lesbians get married?" ... I say, let each couple answer the question themselves. We should all be too busy keeping our own relationships healthy to go nosing into someone else's.
posted by Eve at 7:08 PM | link 0 comments

SHOULD MOST GAYS AND LESBIANS MARRY?: David Benkof

No, they shouldn't, even if they're Kinsey Sixes and totally in love:

(Note that the following comes from an Orthodox Jew who accepts the Torah's prescription for opposite-sex coupling and prohibition against same-sex relations. I realize that those with different backgrounds will think about these matters differently.)

1) People's sexualities change. If one partner starts to feel attracted to the opposite sex, he or she would already be publicly committed to a relationship that by definition cannot be holy.

2) Judaism particularly rejects one m4m act--penetrative anal intercourse. It would actually be better, Jewishly speaking, to trade backrubs and sloppy kisses with a different guy every week than to be monogamously MA-rried to another man and have intercourse with him on a regular basis.

3) All of us have temptations--and behaviors--that are illicit. Society--including religion--can be very patient and even forgiving of the private struggles of individuals who find themselves same-sex-attracted. But don't ask us to throw you a party or "solemnize" your transgression.
posted by Eve at 7:07 PM | link 0 comments

ADOPTION LAWS: Lucia Liljegren replies to Mary Catelli

Mary Catelli asks: Why should adoption law be treated with such reverence and marriage law with such contempt?

First, I would not say adoptions have been treated with reverence, and marriage laws with contempt. As you yourself point out, adoption laws, like marriage laws have evolved with the times.

I believe the reason we insist on flexible adoption laws is that we seek to find the best possible solution for the specific child to be adopted. Suppose for example we have the following specific case: a lesbian mother gives birth to a child; she wishes her female partner to adopt. The genetic father is unknown.

The female partner requests an adoption; the genetic mother supports her in this request. What are the alternatives to permitting the woman's female partner to adopt? Forbid the adoption and leave the child with one parent? How does this benefit the specific child under consideration? Our adoption laws change to permit judges to make decisions in the interests of the child.

The argument that SSM might harm OSM is more remote. Let us say the judge permitted the adoption. Now, the issue becomes: should we permit the two women to marry? If they did, this could result in some tangible advantages to their child. It is somewhat difficult to demonstrate that it damages any existing OSM.
posted by Eve at 7:05 PM | link 0 comments

ROOMMATES: Justin Katz replies to Gabriel Rosenberg

...Joe's admission evoked a curious look from the woman at the bar. "So you and your friend are married?"

"Yup."

Her eyebrows lowered as she laughed nervously. "Are you...," she said, finishing her sentence with the pantomime of a limp wrist.

"Nope." In a tone of practiced nonchalance, he explained that they just hadn't wanted his employment benefits to go to waste while John was partially unemployed and working toward his graduate degree. Joe sipped his beer and added, with a broad smile, "And our bedrooms are on opposite ends of the house."

She tittered again, but this time, the lowered eyebrows gave way to a deep blush.


Imagine the same scene if the woman had been the one attempting to explain that she was married to her "roommate" John for convenience. Professor Rosenberg may not see any reason that society shouldn't move toward gender-neutral cultural subtext, but to advocate as much is to dismiss notions of human nature and to discard endlessly subtle and integral roles that have developed over millennia.

The only way for a pair's marital pronouncements to become the only relevant indication of their relationship is for cultural comprehension and expectations between men and women (or any combination) to be drained completely from society. That is simply not possible among human beings, even if it weren't undesirable. Universities may be pushing their campuses toward the androgyny represented by unisex bathrooms, but the country at large is much less amenable to such social engineering.

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Lots of interesting discussion in the comments section, as well.
posted by Eve at 7:00 PM | link 0 comments

SSM AND PARENTING: Mary Catelli replies to Lucia Liljegren

Lucia writes: "So, my only real question is: Do you disagree with my statement 1? That is: Do you think parents who take on the legal responsibility to care for children ought not to be married?"

To which my answer is a passel of questions: Why do you refer to those people as "parents" and not as "people"? Are you using the word "legal" to mean biological and adoptive parents? Do you think that your argument means that homosexuals should not be allowed to marry in states where they are not allowed to adopt? Do you think that marriage laws should be changed whenever a judge orders an adoption so that a child is legally adopted by two people who are not allowed to marry? Do you think that "legal responsibility" trumps all consideration of who is actually raising the child? That adoption law should not be altered to fit the realities of who is actually caring for the children? And if so, why is adoption law so sacred when marriage law is so malleable?
posted by Eve at 6:39 PM | link 0 comments

ROOMMATES: Mary Catelli replies to Gabriel Rosenberg

I may tackle the rest later, but may I point out that Mr. Rosenberg's statement about roommates marrying, "So if roommates decide to marry they need to understand that they can't be dating other people, or expect to end the marriage when it no longer suits them." would require a radical overhaul of the law. "Open marriages" may not be approved of, but marriages can not be annuled on that account, and many homosexuals arguing for homosexual marriage have said that infidelilty would not matter as long as the couple agreed on it. Mere "dating" could not possibly void the marriage. As for expecting to end the marriage when it no longer suits them -- no-fault divorce means that the marriage can be ended when it no longer suits one of them.
posted by Eve at 6:32 PM | link 0 comments

SPAIN'S NEW GOVT TO LEGALIZE SSM: From Reuters

Spain will legalize homosexual marriages and grant equal rights to gay couples, incoming Prime Minister Jose Luis Rodriguez Zapatero said Thursday. The move is likely to stir controversy in one of Europe's most Catholic countries as the Vatican condemns same-sex unions and homosexuality was banned under Spanish dictator Francisco Franco.

Spain's Catholic bishops have already spoken out strongly against the adoption of children by homosexual couples.

"The moment has finally arrived to end once and for all the intolerable discrimination which many Spaniards suffer because of their sexual preferences," Zapatero told parliament during a debate which will end with a vote to confirm him in office.

"Homosexuals and transsexuals deserve the same public consideration as heterosexuals," he said. "As a result we will modify the Civil Code to recognize their equal right to marriage with the resulting effects over inheritance, labor rights and social security protection."

Nine other European Union countries already have some provision for recognizing those in committed same-sex relationships. Last month, Britain said it would give legal recognition to gay partnerships.

Homosexuality was banned during Franco's 1939-1975 dictatorship. Spain's liberal 1978 constitution outlawed sexual discrimination and homosexuality was legalized shortly afterwards.

In the United States, the fight over gay marriage has become an election-year issue after officials in several states used ambiguities in the law to begin marrying gay couples. President Bush is backing an amendment to the U.S. Constitution to ban same-sex marriages.

Zapatero, whose Socialist party swept to a surprise victory in general elections last month just three days after train bombs which killed 191 people, made legalizing gay unions one of his campaign pledges.

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posted by Eve at 6:22 PM | link 0 comments

CONSTITUTIONAL RESTRAINT: Matt Taylor replies to Mark Barton

Mark Barton makes a convincing argument that most MA legislators who voted for the civil union proposal were motivated by anti-gay bias, as demonstrated by their previous voting record. This is enough to cast doubt on the state's argument in favor of the proposal, but which side of the case bears the burden of proof? If the state must prove beyond a reasonable doubt that the law's intent is unbiased, then the MSJC's ruling makes more sense. On the other hand, if the burden of proof is on those trying to overturn the law, it would seem the court has overreached.

In response to arguments for civil union that do not rely on bias, Mark goes on to say: "But it won't do for the arguments simply not to rely on anti-gay bias. The conclusions can't have anti-gay bias either. ... the intent will be to value opposite-sex unions more highly than same-sex unions. That's prima facie unconstitutional."

I'm not sure if Mark means that civil union inherently contains anti-gay bias (I disagree), or that unbiased arguments for civil union are overshadowed by biased arguments (I tentatively agree). This too may depend on where the burden of proof lies in finding a law unconstitutional.
posted by Eve at 6:20 PM | link 0 comments

SSM AND SOCIAL RELATIONSHIPS: R.K. Becker replies to Mark Miller

Mark says that I misunderstood Gabriel Rosenberg's analogy about sibling marriage and SSM. He misunderstands my argument, but that's understandable as I was quite vague. But I think he's misunderstanding Gabriel's analogy more than I am.

Here are Gabriel's words: "Permitting homosexuality does similarly affect the relationships between men (and those between women). The effect is not so significant, though, because unlike adultery and incest it's not interfering with the more important family relationships. It only affects general social relationships like business contacts". My argument is that friendships are more important social relationships than business contracts, and I think Gabriel, by not examining the effect of SSM on friendship, is leaving out a major question that might undermine his contention that the effect of SSM will not be as great as would that of sibling marriage.

For now, I'm just going to give a couple examples of what I mean. I don't think it needs to be said that to this day, it is very difficult for a married heterosexual to have a close friendship with someone else of the opposite gender without arousing strong misgivings from their spouse. With SSM causing more and more people to be open to the idea of homosexuality or bisexuality, could SSM not result in increasingly strong misgivings from heterosexuals regarding their spouses SAME-gender friendships? In other words, will husbands become increasingly jealous of their wives' (female) best friends (and wives of their husbands' male friends)? How will this affect marriages? Married people still need other friends---will this lead to an increased sense of isolation which could cause more marital tension and eventual breakup? And will children and adolescents feel less secure in their same-gender friendships, seriously damaging the "latency period" in which children need to develop their non-sexual relations? And what will be the ripple effects? Please don't respond to this question as if there was a neat dividing line between gay and straight with no degrees of bisexuality, something we all know is not true.

Mark: "I agree. SSM does change the definition of marriage and that will affect those growing up in the future".

I'm glad Mark agrees with me now. But in his earlier reply, he disputed my contention that SSM was "radical," and stated that all it did was extend marriage. To me, if it changes the definition, it's radical, if it merely extends it (as the end of anti-miscegenation laws did), it is not. So, by Mark's own words, I stand by my contention that SSM is a radical change. And the more radical (and unprescedented) a proposed change is, the more I would argue that we should not jump into the change without testing it first.
posted by Eve at 4:16 PM | link 0 comments

WHAT IS CULTURAL COLLAPSE?: R.K. Becker replies to Mark Miller

In regard to what cultural collapse entails, Mark replies: "..my first thought came up with absolute lawlessness. For example, if all criminals were set free and all laws were no longer enforced."

Mark's defining official anarchy. Cultural collapse does not necessarily imply anarchy, although that can be one result. It can also mean that the society has developed such serious cultural problems that the public has no idea how to fix it through democratic means, and therefore turns to an authoritarian figure to fix it for them. It can mean that the problems cause such divisions within the society that it no longer holds together and partitions into a number of smaller and more poorly organized states. It can mean that the resolve of the public is weakened to the point that it is no longer able or willing to work to overcome challenges either from inside or outside the society.

That the idea of cultural collapse seems such a chimera or red herring to so many today says less about its possibility than it does about the sorry states of anthropology and sociology as they are currently taught. To teach about culture without dealing with the possibility of and possible causes of cultural collapse makes as much sense as teaching about medicine or anatomy without dealing with the subject of death.

Mark also states: "Of course I have doubts about the cultural collapse of even that chaos since I believe that through faith, human nature (as a whole) is guided towards good."

If this is what Mark is willing to gamble on it's a very risky gamble, considering all of the fine examples of collective human nature that we have seen over the last century alone. I make no apologies about being a pessimist here. Humanity makes constant progress in knowledge and in technology (which, of course, can improve our lives or create new problems, or even make them worse), but I see no evidence of great improvement of human nature as a whole. Certainly not enough to justify putting faith in human adaptability before the idea of testing a new idea before implementing it.

Mark: "R.K. may argue that there is no 'rights' issue just as there are those who would argue that there will be no negative effects."

Believe it or not, I do see the rights issue involved in SSM. Just as I see it involved in sibling or parent-child marriage, or in polygamy, or in the 'right' of a highly intelligent 14-year-old to vote or hold a driver's license. I see the 'rights issue' in any case where any person can feel that the current law or social custom is unfair to them, even if the right they see is not legally recognized as such. This doesn't mean that I believe that anything anybody sees as a right should be granted to them. Sure, I agree that a rights issue is involved, but sometimes concern for the social order does override individual rights. Those who argue that it NEVER does (although Mark, to his credit, does not appear to be one of them) should stand by their convictions and advocate the legalization of polygamy, and sibling marriage, and allow drivers' licenses at any age if the person passes the test.
posted by Eve at 4:14 PM | link 0 comments

NZ COURT GIVES TODDLER THREE PARENTS: From 365Gay.com

In what is believed to be a world first, a two-year-old boy will have three gay parents: a gay dad who donated his sperm, a lesbian mom who bore him, and
her same-sex partner following a court ruling in Auckland, New Zealand.

The decision ends a tug of war between two sets of same-sex couples that
began before the baby was born. The names involved in the case are protected by New Zealand family law and cannot be printed, but court documents made available to New Zealand's Star-Times newspaper show the complexity of the case.

The two-year-old boy was conceived after a contract was drawn up for joint
custody between the lesbian couple and their friends, a Sydney gay couple.

The women, originally from Auckland, were living in Sydney, Australia at the
time.

But after the baby was born, the couples had a falling out and the women
moved back to Auckland, refusing the men access. The birth mother's partner
then made an application in the court to be named the boy's legal co-parent.

The men sued, citing the contract the two couples signed which stated that, although the child would live with the women, the sperm donor would be named
as father on the birth certificate, that the men would be consulted on parenting decisions and have at least 14 days' access to the boy every year.

Justice John Priestley warned that the case had the "potential to spark both emotion and prejudice in the community," but added that "it is undesirable that fathers and children in the situation of this father and child should be left legally marooned."

The case then returned to Family Court.

On the strength of Justice Priestley's decision, Auckland Family Court judge Sarah Fleming awarded joint custody to the lesbians, but also the biological father shared guardianship. Going beyond the initial agreement that the men
have 14 days' access a year, she awarded monthly access, increasing to seven
days a month.

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posted by Eve at 4:05 PM | link 0 comments

CHANGING THE LANGUAGE OF MARRIAGE: Gabriel Rosenberg

Elizabeth Marquardt gives what I believe is one of the better arguments against same-sex marriage in a response to me. She writes: "With SSM our language of marriage has to become gender neutral. We can't say that children need mothers and fathers, only 'parents.' Once we do that, the idea that when a man and a woman have a baby it's a good idea for them to attempt to get married and stay married will be greatly weakened. That weakened norm of marriage, resulting from legalized SSM, will lead to more children of heteros growing up without their married mother and father, and suffering the consequences."

Before responding, let me explain why I find it to be better than many typical SSM arguments. First of all, it refers specifically to gender. ...Secondly, the theory doesn't simply allege cultural changes, but explains in more detail how those changes will come about. ...

Now I will explain why I disagree with Elizabeth about these consequences. The key link is that she and others won't be able to say children need mothers and fathers, only "parents." I've had similar discussion with Eve Tushnet concerning this idea, as part of a larger discussion here, so some of what I say might seem familiar. There are several things that Elizabeth could mean by this statement. Here are some I can think of, in order of what I think she likely means.

1. As culture changes, language changes as well. In particular, we have seen lately more gender-neutral substitutions for previously gendered language. ...So the words "mother" and "father" might become outdated in place of "parent." Likewise husband or wife might become outdated in place of "spouse." Thus when Elizabeth says children need "mothers" and "fathers" she will sound awkward and old. ...

2. Maggie Gallagher has said that if SSM were legal, when she said children need mothers and fathers the law would contradict her. It is possible Elizabeth meant this as well [especially in light of some past conversations which I will detail below], although I distinguish this from case one because the problem is not one of evolving language but rather perceived public policy preferences pertaining to parenting. [I'm sorry I couldn't resist the alliteration.] ...

Now let me turn to the change in language argument. First of all I don't think we will do away with the words "mother" and "father." Even in same-sex couples I believe each parent is generally referred to with the gendered language. It is not that Heather has two "parents," she has two "mommies." I frequently read (and enjoy) Daddy, Papa, & Me. As the title indicates, there is still gendered language in same-sex parenting. I doubt that Father's Day and Mother's Day will ever be combined into one "Parent's Day." I can't imagine there will be a time when the common saying becomes "Do you kiss your parent with that mouth?" Even in other areas gendered language has still managed to persist. My wife hates the word "actress" (she feels it carries connotations of just being a pretty face), but the reality is the word remains quite prevalent. Even the law itself is likely to continue to use gendered language only allowing it to be interpreted in a gender-neutral fashion. Actually this is already the case.

In so far as Elizabeth is stressing the need of a child for its mother and father (and not just a mother and father), I believe the language will not change, nor is it problematic if it does. People are not going to somehow forget that a baby is born of a man and a woman. Thus it makes perfect sense to refer to "the mother and the father" when talking about this reality. On the other hand, even if one said a child needs the parents who created it, this would convey the same idea. I have mentioned earlier that we need to promote the idea of people taking responsibility for their actions in society. That includes the need of people to take repsonsiblity for the consequences of their sexual actions. I believe same-sex marriage actually futhers the goal of individual responsibility. Since marriage is about taking responsibility (including but not limited to taking resonsbility for sexual actions), allowing and even encouraging same-sex marriage helps in this matter. Nor do I believe gendered language is necessary to promote the concept of personal responsibility. We all must take responsibility for our actions regardless of our gender. Nor do I believe the responsibilities are themselves defined by one's gender, rather they are defined by one's actions.

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posted by Eve at 2:32 AM | link 0 comments

CHANGING THE LAWS OF MARRIAGE: Gabriel Rosenberg

Lately, I've been thinking about two seemingly unrelated arguments against same-sex marriage. One is that we shouldn't change the laws of marriage, which apply to the heterosexual majority, for the sake of accomodating the homosexual minority. The other is that if we are going to allow same-sex couples to marry, why not allow polygamy or incestuous marriage. My most detailed response to the latter argument came last February in a series of two posts and a follow-up. I just wanted to emphasize one point that might have gotten lost in all of that. And it relates to the first argument above.

Same-sex marriage, at least in Massachusetts and several other states, would not change the laws which govern the marital relationship. Same-sex couples would be subjected to the exact same laws that currently apply to opposite-sex couples. Likewise opposite-sex couples who marry would continue to have the exact same laws apply. For example, should same-sex marriage become legal in Connecticut, the laws which govern my marriage to my wife will not change. One can argue--and we certainly do--about the cultural impact of allowing SSM, but in terms of the law the only change would be which couples may enter into marriage, not the legal consequences of marriage. Polygamy, on the other hand, changes a law which governs marriage and it changes it for everybody. Whereas the law now says a married person may not remarry without obtaining a divorce, it would no longer require that. Although this is not the only problem with polygamy, it is a serious one. I believe it would have a significant detrimental impact on the marital relationship. Likewise no-fault divorce changed the laws which govern the marriage relationship itself. The rules for what may end the marriage changed, and this quite naturally had an impact on the marital relationship. Again since the laws changed for everybody, its potential effect reached everybody. Even those that don't get a divorce are aware that divorce could happen even if they do nothing wrong.

In some sense, changing the prohibitions with regards to incestuous marriage is more like the change in same-sex prohibitions in that, with regards to marriage, it is a change of who may enter into the relationship and not a change of the laws which govern the consequences of marriage. But such a move does indeed change the laws which govern those other kinship relations. So just as legalized polygamy and no-fault divorce could impact the marital relationship, legalized incestuous marriage could impact other family relationships. In this respect alone I see a huge difference between same-sex marriage on the one hand and no-fault divorce, polgyamy, or incestuous marriage on the other. And, of course, there are other differences as well.

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posted by Eve at 2:21 AM | link 0 comments

JUSTICES OF THE PEACE CONFRONT DILEMMAS ON SSM: From the Boston Globe

John Vozzella is not a fan of gay marriage. He calls the decision from the state's highest court allowing same-sex couples to wed "ridiculous" and hopes voters eventually amend the state constitution to ban it.

But starting May 17, Vozzella may be required to marry gay couples who request his services. As a justice of the peace, a gubernatorially appointed position, he has the authority to perform wedding ceremonies.

Although there has been no definitive legal ruling, many observers believe that justices of the peace cannot refuse to marry couples because they are gay. And so, a month before the first gay couples may legally marry in Massachusetts, some justices of the peace who oppose same-sex marriage may simply resign.

"There is a possibility I would just turn in my appointment," said Vozzella, who owns an insurance agency and lives in Walpole. "From what I've heard, there's a lot of people who feel that way."

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posted by Eve at 1:36 AM | link 0 comments

SOME GAY GROUPS TO PROTEST GOP CONVENTION: From the Associated Press

President Bush's efforts to ban gay marriage are driving gay rights activists to plan protests and other attention-grabbing events in New York City this summer during the Republican convention. ...

"We're definitely going to use the convention as an opportunity to get our message across, and as an opportunity to convey what this election means to gay families," said John Marble, a spokesman for the National Stonewall Democrats, a gay political group.

Gay rights groups say the push for a constitutional ban on gay marriage is not only drawing activists to New York, but inspiring young gay Americans to get involved in politics. ...

Some gay organizations are also planning to go to Boston during the Democratic convention, which begins July 26.

Sen. John Kerry, likely the Democratic presidential nominee, says he opposes gay marriages, but is also against a federal constitutional amendment to ban them. Kerry says he supports civil unions and rejects legislation that could be used to eliminate equal protections for gays.

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posted by Eve at 10:53 PM | link 0 comments

REVIEW OF NEW BOOKS FROM RAUCH AND MOATS: David Garrow

...Rauch is thus no lefty-liberal, nor is he a gay cheerleader. For gays, he says, "marriage will give us the opportunity to become better people, by bestowing upon us the full responsibilities of adulthood." Marriage, he asserts, "will ennoble and dignify gay love and sex" and make gay life "more relationship-oriented" by hastening "the decline of the same-sex underworld." Declaring that "much of what is unique about gay culture . . . is an artifact of marginalization and infantilization," he predicts that "marriage will change homosexual culture more than homosexual culture will change marriage."

Gay Marriage is unfailingly polite and respectful toward opponents, notwithstanding many foes' proclivity for overheated warnings about how same-sex marriages will mean "losing American civilization." Yet Rauch astutely notes how "peculiar" it is that adversaries energetically denounce "the 'homosexual lifestyle' -- meaning, to a large extent, the gay sexual underworld -- while fighting tooth and nail against letting gays participate in the institution which would do the most to change that lifestyle." Rauch is too courteous to observe that this discrepancy suggests that a racist-like loathing of gay people as innately inferior, rather than just a desire to "defend" marriage, may motivate many outspoken opponents. ...

Civil Wars, by David Moats, the editorial page editor of the Rutland Herald, recounts the "political, social, and cultural war" that took place in Vermont during 2000. Moats won a Pulitzer Prize for his editorials on the issue, and Civil Wars tells a compelling, emotionally moving story. Moats viewed the Vermont conflict as "the latest tumultuous chapter in a decades-long struggle for civil rights in America," and he compares it to "Birmingham and Selma as landmarks of our growth toward a more complete democracy." Just as in Alabama four decades ago, Moats stresses, hateful behavior by civil rights opponents proved decisive in "touching the conscience" of Vermonters who did not start out as gay rights supporters. ...

...Foul-mouthed homophobles took over a community forum attended by one crucial undecided senator, and the effect was decisive. "The bigots of St. Albans should know we have them to thank for civil unions," another senator explained once the bill passed and was signed into law.

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posted by Eve at 10:17 PM | link 0 comments

LACK OF LEGAL PROTECTION LEADS TO HARDSHIPS FOR GAY COUPLES: From the South Florida Sun-Sentinel

Gay couples are more strangers than spouses in the eyes of the law.

Morality and tradition are at the heart of the national debate over whether to allow gays to marry, but marriage is more than rings and till-death-do-us-part vows. Marriage provides a safety net that weaves through almost every aspect of life and death in ways that cannot be replicated through even the most complex legal maneuvering. ...

Wills, power of attorney papers and cohabitation agreements can create some protections of marriage. For $1,500 to $3,500 in legal bills, gay couples can guarantee they have the right to visit each other in the hospital, that property is split equitably if they break up and that the surviving partner inherits when the other dies.

Attorneys say such legal documents, which can be challenged in court, provide only the bare bones of the security that comes with marriage.

"Lawyers can only fashion remedies in haphazard ways," said Dean Trantalis, a Fort Lauderdale city commissioner and gay rights activist who draws up such documents as part of his law practice. "The law uses marriage as a guideline to provide rights and impose responsibilities. There is an undue burden on same-sex couples." ...

When immigration or children are involved, matters are even more complicated. About 100,000 same-sex, bi-national couples are living in the United States and at least 1 million children being raised in gay households, according to the Human Rights Campaign and the Lesbian and Gay Immigration Rights Task Force.

Allan Barsky teaches social work at Florida Atlantic University in Boca Raton and has been with his partner, Greg Moore, for six years. They are raising a 10-month-old daughter, Adelle, but worry about Barsky's ability to remain in the United States because he is a Canadian citizen.

Florida's ban on gay adoption means that only one of Adelle's dads is legally viewed as her father. Legal agreements between Barsky and Moore spell out who will be Adelle's guardian if one of them died, but are susceptible to a court challenge. ...

Nonbiological parents have no assurance they'll see a child they helped raise. Nothing requires child support or alimony even if someone gives up a career for the relationship or to raise a child. ...

Unlike a husband and wife, a partner in a gay relationship can lose a jointly owned home if the other person needs nursing home care through Medicaid. Businesses don't have to give gay employees time off to care for sick partners; the federal medical leave law applies only to legal spouses and family members. ...

Death and illness are among the few areas where good legal planning can benefit gay couples. But minor oversights or mistakes can have serious consequences.

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posted by Eve at 10:15 PM | link 0 comments

AUTHOR: GAYS COULD STRENGTHEN MARRIAGE: From FoxNews

How do you bolster the institution of marriage? Let homosexuals take part in it.

That's the argument of one gay-marriage advocate, who says allowing homosexuals to marry instead of cohabiting or partnering in civil unions will create one "gold standard" of relationships. He says to do otherwise would weaken the institution of marriage by creating a menu of relationships.

"Same-sex marriage is the first attempt in many years to move back toward the expectation of marriage as a universal norm and the gold standard. With gay marriage, you say that marriage is for everybody," said Jonathan Rauch, author of the new book "Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America."

"When you get same-sex marriage, you eliminate the marriage-light alternative of civil unions and partnerships. You send the signal that if you want the benefits of same-sex marriage, get married," he said.

But opponents argue that the same people who support allowing gay marriage are the very ones who oppose marriage as a basic building block of society.

Rauch's vision is part of "a dream world that isn't engaging the correlation of forces in society ... taking us in the direction of de-institutionalizing marriage in such a way that will put many more children at risk," said David Blankenhorn, founder and president of the Institute for American Values. ...

By not legalizing gay marriage, society "would validate cohabitation" and turn "every successful gay couple into a good example," he added. Marriage "will become one of many lifestyles; an item on a menu."

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posted by Eve at 10:06 PM | link 0 comments

"NO POLITICS IS LOCAL": Christopher Caldwell

Why else should the enthusiasm of Massachusetts judges and a San Francisco mayor for same-sex marriage be such a big deal to the rest of the country? It is not because the issue pits libertarians against moralists, dionysiacs against prudes. (On the contrary, what worries the skeptical global villager is not that gay marriage will bring moral laxity but that it imposes a rigorous notion of tolerance on those who may not want it.) Two moral orders that worked fine in isolation -- human rights and traditional values -- wind up locked in a death struggle when, thanks to the Internet, television and the pressures of law and politics, each cannot get out of the other's hair. And it is in the national arena that it will be decided which of those orders emerges as the new uniform morality.

Many gay-marriage advocates claim that same-sex marriage should remain a local issue. They argue that once one state recognizes gay marriage, there is little danger that the Constitution's full-faith-and-credit clause will compel other states to follow suit. But this is little more than the signature debating trick of our time: trying to advance one's own effort to enforce national standards in the guise of a modest localism.

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

ANTHROPOLOGISTS DEBUNK "TRADITIONAL MARRIAGE": From the Washington Blade

[IMO, one of the fluffiest of these pieces I've seen. I certainly hope Prof. Palacios was misquoted or quoted out of context, since his point is especially irrelevant. ...Oh, if you want a really interesting piece on John Boswell and adelphopoeisis (which I think would intrigue even those who disagree with its author's conclusions), try this. --Eve]

...It's folklore that appeals to many Americans--one that the media facilitate and many politicians moralize, according to many anthropologists. They say this timeless tale has one significant problem: In a great many civilizations, at least until the present era, marriages were arranged in the interests of kinship networks, not at the whim of lovers. And, throughout history, they have taken on a wide variety of forms, including same-sex partnerships. ...

In a statement released last month, the 11,000-member American Anthropological Association gave Bush failing marks on his understanding of world societies and criticized his proposed ban on same-sex marriage.

"The results of more than a century of anthropological research on households, kinship relationships and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution," the association's executive board said.

"Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies."

Scholars of both texts and worldwide cultures agree that it is nearly impossible to formulate a precise and generally acceptable way to define the flexible nature of marriage, according to the AAA. ...

Other academics didn't consider Boswell controversial for his inferences on early marriage, but for his assertions that liturgical ceremonies in the Catholic and Eastern Orthodox churches sanctioned gay unions. For a period of more than 1,000 years, between A.D. 500 and 1500, these churches in Europe performed the Adelphopoiesis, or "the making of brothers," he determined in his 1994 book, "Same-Sex Unions in Premodern Europe." ...

Centuries after the Greeks and early Christians sanctified same-sex unions, Native Americans still practice a widespread same-sex tradition known as the berdache, in which two spirit males--men who are not tied to one gender--marry, provided they undergo a social and spiritual transformation, Lancaster said. One spouse might identify as female, but both remain biologically male.

Many modern societies don't even draw a distinction between homosexual and heterosexual in their pairings, Lancaster said, choosing a more free association regarding sexual or kinship ties. The Nuer of Sudan, as well as other African societies, institutionalized female same-sex marriages to preserve the lineage of one woman's family. These same-sex unions also exist in the form of cohabitation after an occasional "ghost marriage" of a woman to a dead man.

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posted by Eve at 10:04 PM | link 0 comments

FRENCH CIVIL UNIONS SEEN AS "MARRIAGE LITE": From ABCnews.com

France resolved its debate over same-sex marriage several years ago by creating civil unions. But the law has had unexpected effects.

What began as a way to provide some legal protection for people in homosexual relationships has become a real alternative for heterosexual couples in France, thousands of whom come to municipal offices to sign "civil pacts of solidarity," or PACS, rather than get married. ...

Under the civil pact, each partner is eligible for the other's work benefits. And after three years, they can get the same tax breaks as married couples. Ending the PACS can be as quick and easy as signing one.

"It is not necessary to divorce," says Daniel Borrillo, a legal specialist. "It is only necessary to inform the authorities that you decided to terminate the contract."

If there's a dispute, one party gives notice, and three months later, it's over.

The PACS law was hugely controversial when it was going through the French parliament in the late 1990s. Opponents of the law clashed with its supporters.

The law passed, but only after it was expanded to make heterosexuals eligible for civil unions as well. Otherwise, some argued, the law would be discriminatory. ...

So, a law initially written for gay couples has evolved into a sort of marriage light for straight couples.

"It was the need of the gay community," says Pascal De Bodard of the Gay and Lesbian Center of Paris. "But at the end of the day, it was to the benefit of the whole French population."

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

"gay CIVIL UNIONS FOR ALL: MASS. PROPOSAL: From Reuters

[Click here for a similar proposal in the New York state assembly.]

Get the government out of the business of "marriage" and have "civil unions" for all.

That is the gist of a new proposal that could resolve the raucous debate over gay marriage, according to Paul Loscocco, a Massachusetts state representative who is presenting the idea to colleagues. ...

For Loscocco, the controversy boils down to the language used to describe civil and religious unions, which is why he wants to formally distinguish the two -- as do certain European countries like France. ...

"My approach puts forth a reasonable, rational way to take the heat out of the situation," Loscocco said. "You're keeping the institution the same; you're just changing its name."

Among the idea's proponents are Harvard Law Professor Alan Dershowitz, who raised it in a newspaper column last year after the Massachusetts court issued its landmark ruling.

"Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control," Dershowitz wrote. ...

Loscocco, some of whose ancestors were French, says a bill he is proposing in the Massachusetts Legislature would partly emulate the marriage system in France.

Under French law, the only marriages recognized by the state are those performed by the state. Religious wedding ceremonies are done according to religious custom but merely reflect a couple's spiritual beliefs and have no real legal standing.

The practical effect is that a French couple must go to local city hall to get their marriage license and participate in a brief ceremony performed by a governmental official, typically the local mayor.

It's too soon to say how Loscocco's approach will be greeted by Massachusetts politicians -- let alone those nationwide -- but already both sides of the issue are frowning.

Maria Parker, a lobbyist for the Massachusetts Catholic Conference, said she does not distinguish religious marriage from civil marriage because she feels marriage is a civil institution.

"The general understanding of marriage in every culture in the world has been based on the idea it is between one man and one woman," she said. "His distinction is not helpful."

And Massachusetts gay rights lobbyist Arline Isaacson said that while she appreciates Loscocco's "noble" intentions, she doubts straight people would pick civil unions over marriage.

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

GAY DEBATE CHALLENGES ORE. MARRIAGE LAWS: From the Oregonian

Supporters and opponents of same-sex marriage squared off in a Portland courtroom Friday over the constitutionality of Oregon's marriage laws, debating everything from the intent of the state's founding fathers to studies examining the effect on children raised by gay and lesbian parents.

A lawyer for the state, meanwhile, focused on what will happen if the court strikes down the state's marriage law, arguing that the Oregon Legislature should get the opportunity to pass a compromise civil union law as Vermont lawmakers did under similar circumstances.

"We're asking for a Vermont-style remedy," said Stephen K. Bushong, an Oregon Department of Justice attorney. "We think that the Legislature should have that opportunity." ...

Kenneth Choe, an ACLU attorney from New York, led off the arguments by saying if the privilege of marriage is denied to a class of people such as gays and lesbians, the constitution requires the state to justify why.

It is not enough, Choe argued, that gay and lesbian couples might be biologically different from heterosexual couples.

"That difference has to matter in order for that discrimination to be justified," he said.

Choe attacked the Defense of Marriage Coalition's claim that the state was justified in encouraging traditional procreation, saying that allowing gays and lesbians to marry and have children would have "no effect whatsoever" on heterosexual couples getting married and having children.

He also said that contrary to the coalition's claim that marriage between a man and a woman was better for children, the result of Oregon's marriage law is the opposite because under it the "children of gays and lesbians are left unprotected." ...

When the Supreme Court in 1983 said the language of the state constitution plainly prohibited any restrictions on free speech, for example, the court said laws against perjury and fraud were okay because they were on the books when the constitution was adopted and qualified as "historic exceptions," Clark said.

Thus, marriage, which the framers knew at the time was defined as being between a man and a woman, should be considered a "historical exception" to a broad reading of the "privileges and immunities" clause.

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posted by Eve at 9:20 PM | link 0 comments

SSM BATTLE HITS ORE. COURT: From the Salem, Oregon Statesman-Journal

Foes and supporters of gay marriage squared off Friday in Multnomah County Circuit Court, in the first airing of a landmark lawsuit designed to test the constitutionality of same-sex marriage in Oregon.

Attorneys for nine gay and lesbian couples argued their clients should have the same rights to wed as other couples, and that such unions would encourage stabler relationships and children’s needs.

An attorney for a coalition of fundamentalist Christian pastors argued there are legitimate reasons for the state to only sanction weddings between men and women, and that only the Legislature or Oregon voters could decide to change the marriage law.

A state attorney, taking a middle ground, said Multnomah County needs to follow the state law banning gay marriage. However, he said the Legislature could explore "civil unions" that grant gays and lesbians many of the benefits of marriage.

Multnomah Circuit Judge Frank Bearden said that he hopes to decide the case within a week.

"This is going to be a very, very difficult decision," Bearden said. He also acknowledged that his will be only the first legal ruling about the issue. ...

Multnomah County has been granting marriage licenses to gay and lesbian couples since March 3. But the state has refused to certify those licenses, and Attorney General Hardy Myers warned other counties not to follow in Multnomah County’s footsteps. ...

Kenneth Choe, attorney for the nine couples, said Article 1, Section 20 of the Oregon Constitution guarantees equal privileges to all Oregonians.

"Marriage is the gateway to hundreds of rights and benefits. For this significant reason alone, marriage constitutes a privilege," said Choe, staff attorney for the Lesbian and Gay Rights Project of the American Civil Liberties Union Foundation in New York. ...

State attorney Steve Bushong said gays and lesbians could get many of the public benefits they desire through legislative action. He proposed a solution along the lines of Vermont's civil-union statute, where gays and lesbians gain what he termed "public" benefits via an alternative to marriage.

However, Bushong acknowledged there are "private" benefits from marriage not granted by civil unions. He described those as "social recognition, respect and acceptance."

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posted by Eve at 9:14 PM | link 0 comments