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 Saturday, May 08, 2004
EXPERTS LEERY OF NEW VA. ANTI-CIVIL UNIONS LAW: From the Washington Blade
By adding the words "civil union" to its Defense of Marriage Act, Virginia joined the ranks of two other states officially and specifically banning the legal alternative to same-sex marriage. But additional language in the Virginia legislation far surpassed even Texas and Nebraska--as well as the other 47 states--in the limitations it placed on legal recognition of same-sex couples, according to national advocacy groups. The Marriage Affirmation Act, passed by the Virginia General Assembly late last month and set to become law in July, outlaws "any partnership contract or other arrangements that purport to provide the benefits of marriage," in addition to prohibiting the state from recognizing civil unions. Both gay rights advocates and independent legal scholars agreed the nation’s now most strongly worded anti-marriage statute could have considerable impact on the ability of same-sex couples to enter into legal agreements with each other. ... The new law will abolish the rights of same-sex couples to execute a will, sign medical directives or craft custodial agreements, according to Dyana Mason of Equality Virginia. But while acknowledging the damage to legal recognition for gay couples, Robert Lombardo, a professor of bioethics and law at the University of Virginia, said the law violates the "contract clause" in the U.S. Constitution, and would probably not withstand any legal test outside of its civil union ban. Lombardo also argued that the law's reach might be limited by other legislation more specific to the types of contracts gay couples might enter into. "The usual rule judges follow in these instances is that laws with specific language usually overcome laws with more general language," Lombardo said. "For example, the state's advance medical directive says you can designate anyone you want to make medical decisions on your behalf, regardless of your relationship. That would clearly outweigh a law prohibiting a general contract between persons of the same-sex as long as it doesn’t specifically mirror a civil union." ... With the legislative session effectively over for the year, the question over the legality of the Marriage Affirmation Act will now go to the courts. Equality Virginia, located next door to the Virginia chapter of the American Civil Liberties Union, is expected to announce a lawsuit by early summer. ... The Virginia DOMA law and Marriage Affirmation Act might also be challenged under the U.S. Constitution's "full faith and credit law," which generally requires states to recognize legal documents like marriage licenses issued by other states. more Also, here's an article about a boycott campaign against VA due to this law.
SWEDISH STUDY--DO SAME-SEX DIVORCE RATES MATTER?: Gabriel Rosenberg
So are gay marriages more likely to end up in divorce than straight marriages? I don't know, but I don't see how it matters in determining whether or not same-sex couples should be able to marry. Social scientists love to try to determine what variables increase the risk of divorce. I have never heard it argued that we should use such information to prevent couples from marrying, though. I can hardly imagine telling two children of divorce that they shouldn't marry because their marriage is more likely to end in divorce. Much less can I imagine them being told that they cannot marry because of it. The studies should rather be used to help discover ways that we might strengthen these marriages. The studies might help in developing more effective methods of marriage counseling. Part of the reason we would never advise a couple to avoid marriage in these circumstances is because we believe that no matter what the risk of divorce, marriage is more stable than cohabitation. ...Now some might claim that marriage has only been shown to decrease the chance of dissolution in opposite-sex couples, it doesn't necessarily follow that it would have the same effect for same-sex couples. While we can't be certain the degree to which marriage might make same-sex relationships more stable, I find it hard to believe that it would not have at least some stabilizing effect. We can see this by looking at how marriage is better at stabilizing than cohabitation. One way is that marriage both encourages and allows a couple to become more economically interdependent. The details on how marriage does this vary from state to state, but marriage always does this. In part it is done by how married couples may own property and by rules for determining who owns the property acquired into the marriage. In part this is done by making spouses legally obligated for certain debts incurred by the other. In part this is done by making it easier for one spouse to financially rely on the other. In fact it seems like a good deal of family law deals with these economic matters. The laws of marriage also encourage more emotional interdependence. A good example of this is spousal privelege which ecourages free communication within the marital relationship. One overlooked way in which marriage acts as a stabilizing force, though, is divorce itself. While many family advocates complain about the ease of divorce today, it is still more difficult, time-consuming, and expensive than merely walking out on somebody. ...Now nobody gets married in order to get divorced, so we don't hear a lot about gays and lesbians demanding the right to divorce. It is a serious protection, though, that they are being denied. I have focused in this post on the effects of the laws of marriage in promoting stability, but there is also a very important cultural component. In addition to our legal obligations to care for our spouses, there are also social expectations as well. People are expected to care for their spouses and stick with them in difficult times. Some of this comes though in the law, for example in the Family and Medical Leave Act, but much more comes across in how we act. We ask people how their families are doing. We are understanding when family obligations arise. We offer to help. We congratulate one another on a marriage, but express sympathy upon hearing of a divorce. ...As with all marriages, same-sex marriages will be more successful with the more support we give them. more Friday, May 07, 2004
MASSACHUSETTS SSM: CONFLICTS W/OTHER STATES?: Eugene Volokh replies to David Frum
Reader Michael Greenspan passes along this item that David Frum at National Review Online wrote a few months ago. I'm not a conflicts of law scholar (that's the field that deals with these issues); I'm also not Andrew Sullivan, to whom the questions are addressed (and who dealt with them briefly here). But I know a bit about the subject, and thought I'd put my two cents in, and give the answer as a matter of current law. Basic summary: These are interesting issues, but not that different from other issues that the legal system has had to deal with before, and not tremendously hard to resolve. The existence of the issues doesn't show that somehow Massachusetts law would interfere with the public policy of other states, nor does it show that somehow the resulting system would be unworkable. To the extent that it disserves anyone, it would disserve the Massachusetts same-sex couples -- but it wouldn't make them any worse off than they are now, without any marriage rights at all. more
JUDGE SAYS GAY PAIR CAN SUE ADOPTION WEB SITE: From the San Francisco Chronicle
A gay San Jose couple has won the first round of a legal battle with an Internet adoption agency that refused to post the two men's profiles on a Web site where they could be seen by prospective birth mothers. U.S. District Judge Phyllis Hamilton of San Francisco ruled this week that Rich and Michael Butler could sue adoption.com, an Arizona company, under a California law that prohibits discrimination by businesses based on sexual orientation. The company argued that it should be judged by Arizona law, which contains no such prohibition. But Hamilton, in a ruling dated Monday, said adoption.com was subject to California law because it solicited business in the state from adoption agencies as well as would-be parents. Rich Butler, a patent lawyer, said the ruling allowed the company to be held accountable for discrimination. Glen Lavy, an Alliance Defense Fund lawyer representing the company, said Wednesday he would ask Hamilton to allow an appeal before the case proceeded further. link View the ruling (in PDF form) here
MASS. HIGH COURT REJECTS APPEAL: From the Associated Press
The state's highest court Friday unanimously rejected an appeal by 13 state lawmakers to reverse its November decision legalizing gay marriage in Massachusetts as of May 17. The lawmakers had argued that the Supreme Judicial Court lacked jurisdiction in the case under the state Constitution. Instead, they argued, the Legislature and governor are empowered to determine marriage laws. The court ruled Friday that the motion was untimely, because the case had already been decided; that the same arguments had been raised by others and rejected during the court process; and that the assertion that the court had no jurisdiction was erroneous. "It was within the court's jurisdiction to resolve an adversary case requiring interpretation of the Constitution and a determination of the validity or our laws," the court wrote. A similar claim, filed by former Boston Mayor and Vatican Ambassador Ray Flynn, will be heard in Suffolk Superior Court next week. In a case filed by seven gay couples, the Supreme Judicial Court ruled, 4-3, in November that it was unconstitutional to bar same-sex couples from marriage. The Legislature recently approved a constitutional ban on gay marriage, which would simultaneously legalize civil unions if approved by voters in November 2006. The lawmakers included House Ways and Means Vice Chairman Peter Larkin, D-Pittsfield, and House Rules Chairman Angelo Scaccia, D-Boston. The others were: Reps. Christopher Asselin, D-Springfield, Mark Carron, D-Southbridge, Robert Correia, D-Fall River, Viriato deMacedo, R-Plymouth, Robert Hargraves, R-Groton, William Lantigua, I-Lawrence, John Lepper, R-Attleboro, James Miceli, D-Wilmington, Elizabeth Poirier, R-North Attleboro, Joyce Spiliotis, D-Peabody, and Philip Travis, D-Rehoboth. The American Center for Law & Justice, a law firm founded by televangelist Pat Robertson, filed the lawsuit on the lawmakers' behalf. link
SSM IN SCHOOLS: From the San Jose Mercury News
...As the national debate over same-sex marriage ricochets from California to Massachusetts, students, teachers, administrators and parents are scrambling to define how to discuss the issue on campus -- and whether to incorporate the subject into lesson plans. Educators walk a fine line: Their role is to educate students about the world around them and to help those students arrive at opinions of their own, whatever the teacher's views might be. But when a topic is as highly charged as same-sex marriage, they run the risk of politicizing the classroom, and offending parents who would prefer the subject not be discussed. Most Bay Area districts have not formally adopted gay marriage as part of their curriculum, in part because the debate is evolving so swiftly. The California Department of Education has not taken a position. ... ''Are there any teachers who think homosexual marriage is wrong who are leading the discussion? I doubt it,'' said Randy Thomasson, founder and executive director of the Campaign for California Families, a statewide organization that opposes gay marriage. ''Children are being indoctrinated to support gay marriage behind parents' backs.'' In Palo Alto last month, the Palo Alto Council of Parent Teacher Associations passed a resolution opposing any laws or amendments to the U.S. Constitution that would define marriage as a union between a man and a woman. It became perhaps the first PTA board in the country to support gay marriage and urge the national organization to follow suit. At many Bay Area high schools, teenagers are driving the conversation on their own. In a poll conducted by the Woodside World, the student newspaper of Woodside High, 65 percent of 223 students surveyed believe that same-sex marriages should be legalized in the United States. Other high school newspapers have run editorials pro and con. ... The San Francisco Unified School District is thought to be the first public school system in the country to develop a Civil Marriage Debate Teacher's Guide. The classroom exercise, developed in recent weeks, asks students to argue both sides of the issue, regardless of personal opinion. The district celebrates Gay Pride Month in April. more Thursday, May 06, 2004
NEW QUESTION: ABOLISH MARRIAGE--CIVIL UNIONS FOR ALL?
Some advocates across the political spectrum are making the radical case for separating the civil and religious dimensions of marriage entirely. Let religions keep the word "marriage," they say; the state should merely provide civil unions for all. Lawmakers in New York and Massachusetts have already proposed this move. This radical proposal has won a surprising amount of support from religious believers who think the definition of marriage should be left to the churches; gay-rights supporters who want all couples to be treated equally; and some who believe it's the best way to prevent alternative family forms from being enshrined in law. What's your view? Click the link below to join the debate!
SWEDISH LESBIANS: Justin Katz
[Now there's a headline that should rake in the Google hits.... Anyway, there are all kinds of fascinating nuggets in that study of Swedish same-sex unions (PDF), and although I need to spend a lot more time with the data before I can comment, I do hope others will also take a look. Justin offers some highly speculative thoughts about gender and relationships, but also writes the following paragraph, w/which I agree. --Eve] In contrast (apparently) to Vermont, 62% of same-sex marriages in Sweden were between men. That near-reversal points to the first obvious disclaimer to any analysis in the context of the American debate: cultural differences likely exist even between the corresponding subcultures of the Sweden and the United States. The second obvious disclaimer, at least for me, is that suggestions, at this point, are purely speculative, and in-depth research for such factors as couples' attitudes and practices will be necessary. more
WHERE ARE DEMOCRATS ON THE FMA?: Nat'l Gay & Lesbian Task Force press release
...So what are the Democrats doing to protect and energize a critical part of their base, namely the gay, lesbian, bisexual and transgender community? After all, our people consistently and overwhelmingly vote Democratic. (In light of the GOP's lousy positions on so many key gay issues, it's not hard to understand why.) In fact, we are the party's third most loyal bloc of support--just behind the African American and Jewish communities. We've remained loyal in spite of slaps like "Don't Ask/Don't Tell," the federal Defense of Marriage Act, and the lack of a single federal law acknowledging our existence, even when the Democrats controlled the White House and one or both houses of Congress. Just as important in this day and age, our community raises a ton of money for the party--far outstripping our proportion of the vote. Given all of this, one would think the party would be willing--rhetorically and legislatively--to stand up for us. ... Last July 17, Senate Minority Leader Tom Daschle pledged that Senate Democrats would kill the federal marriage amendment if it ever came to a vote. We were all grateful and relieved to hear that pledge. But, it didn't feel like such a big lift to me because killing the amendment requires only 34 votes, and there are 48 Democrats, five of whom are retiring at the end of this year. In other words, every single Democratic Senator considered "at risk" this fall could be "let off the hook" on this vote, if necessary, and the amendment would still be defeated. In a classic display of Washington legalese--we've since discovered that last July's pledge is in question. You see, it apparently applied only to "the" Federal Marriage Amendment as written last year. If the amendment is re-worded so it still outlaws same-sex marriage anywhere in the country but leaves the door open to state-based domestic partnerships or civil unions, all bets are off. As a result, LGBT organizations--including my own--are making desperate appeals to their members asking them to press their representatives in Washington to oppose the amendment. Our allies at the Human Rights Campaign, for example, have raised $6 million to fight it. Log Cabin Republicans and their principled new leader Patrick Guerriero are spending $1 million on anti-amendment advertising. Ironically, even the Democratic Party has jumped on the bandwagon, seeking 500,000 signatures on petitions opposing the amendment to be circulated during gay pride events this summer. ... We thought we could help head this off and give some cover to those now getting squishy on us by getting a few senators from safe (let me say SAFE) seats not up for election this year to say unambiguously that they would oppose any amendment seeking to restrict marriage rights. (There's no shortage of ways to say this without--god forbid--having to endorse marriage equality.) Turns out not even THEY would come through. One response I got from a SAFE seat was, "You can't ask us to say we'll oppose any amendment... what if the amendment is reworded to specifically authorize civil unions?" Like that could happen--when hell freezes over. Sorry, I can't buy this. We're not even asking Senate Democrats to take a stand for full equality or asking them to vote against a popular measure. (In fact, no poll shows majority support for the amendment.) No, this is about amending the U.S. Constitution to take away rights from a minority, something that has never occurred in the history of our nation. If Bob Barr, the anti-gay author of the 1996 Defense of Marriage Act, is against amending the constitution this way, how hard should this be for our "friends?" more
ADOPTION.COM SUED FOR DISCRIMINATING AGAINST SAME-SEX COUPLES: From 365Gay.com
A San Jose gay couple is suing an Internet-based adoption service after it refused them service. In a decision issued Wednesday, federal district court judge Phyllis Hamilton ruled that a lawsuit against Adoption.com for discriminating against same-sex couples can proceed to trial. Adoption.com is the largest adoption-related internet business in the United States. Among other for-profit services, it permits prospective adoptive parents to post their personal profiles in hopes of connecting with potential birth mothers. They will not, however, permit same-sex couples to post their profiles. In 2002, the company refused to accept an application from San Jose residents Rich and Michael Butler, a same-sex couple who have been together eight years and who sought to post their profiles on one of Adoption.com's websites. Dale Gwilliam, a spokesperson for the company, allegedly told the Butlers that Adoption.com does not allow gay and lesbian couples to use their services. Represented by the National Center for Lesbian Rights the Butlers filed a lawsuit challenging this discriminatory policy under California law, which prohibits businesses from discriminating on the basis of sexual orientation. In his ruling allowing the suit to move forward Judge Hamilton rejected the company's argument that it does not have to comply with California’s non-discrimination laws. "We are relieved that we will have a chance to hold Adoption.com accountable for violating California law by discriminating against gay and lesbian couples," said Rich Butler. "Same-sex couples are just as capable of providing good homes for children as different-sex couples." "Judge Hamilton’s ruling is a victory for all children in this state," said Kate Kendell, the Executive Director of the National Center for Lesbian Rights. "We are long past the day when adoption agencies or businesses can exclude loving, competent parents simply because they are lesbian or gay." The National Center for Lesbian Rights argued on behalf of an Idaho man who has been denied access to his children because he is gay. (story) It is also one of the groups representing same-sex couples in lawsuits over marriage in California. link
MASS. SENATORS SEEK TO DITCH RESIDENCY RULE: From the Boston Globe
Senate Democrats are launching an effort to repeal a 1913 law that Governor Mitt Romney is using to block out-of-state gay couples from marrying in Massachusetts, and the lawmakers hope to stage a floor debate next week, as the state prepares to legalize same-sex marriages. Senators Jarrett T. Barrios of Cambridge and Stanley C. Rosenberg of Amherst are filing an amendment to the state budget that would effectively eliminate the residency requirement for same-sex couples seeking marriage licenses. It was unclear yesterday whether the bid would pass the Senate, but the effort would focus attention on the controversial law before same-sex couples can legally marry on May 17. "I believe that my colleagues in the Senate will agree that there is no place for race discrimination, or sexual-orientation discrimination, in our statutes, and the time has come to eliminate the 1913 discriminatory law," Barrios said. The 1913 law, adopted in part to block interracial couples from other states marrying in Massachusetts, prohibits out-of-state couples from marrying if the marriages would be void in their home states. Romney has said that the law prohibits residents of all 49 other states from entering a same-sex marriage, since none of those states specifically allows gay marriage. His critics have said Romney's interpretation of the law is too broad, and that the law is archaic and unevenly applied. Because the move to repeal the law is an amendment to the state budget, the proposal will almost certainly make it to the Senate floor, senators said. ... Lees added that he did not think out-of-state couples had much to gain from the law's repeal, since they would be returning to states where their marriage "isn't recognized or sanctioned or where any benefit would come of it." ... Gay-marriage supporters have accused Romney of dusting off an anachronistic law with a shameful past. But the administration points out that Justice John M. Greaney of the Supreme Judicial Court referred to the law in his opinion concurring with the majority's gay-marriage ruling. Greaney wrote that the existence of the law rebuts "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." more
A GAY FILMMAKER LOOKS AT GAY MARRIAGE: From the New York Times
To anyone who thought that the fight for same-sex marriage rights started this year around Valentine's Day at San Francisco's City Hall, the grainy scenes from 1971 that open the documentary film "Tying the Knot" will be a revelation. Longhaired protesters in bell bottoms, armed with a guitar and bearing a wedding cake, force their way into the clerk's office in New York's City Hall demanding marriage rights for homosexuals. After one answers the clerk's phone to decline a request for a heterosexual wedding license, the protesters dance, do a singalong and finally peacefully file out. "Seeing that people already started fighting for these same rights 30 years ago will surprise many people," said Jim de Seve, the film's director. "I think people will also be surprised by the power of marriage in a legal sense." News clippings from more recent events in the movement for same-sex marriage rights--including the legalization of gay marriage in Canada and the Netherlands--appear throughout the documentary, which had its premiere this week at the TriBeCa Film Festival, where it will be shown again on Saturday afternoon at 2 at Regal Entertainment's UA Battery Park Stadium 11. Tying the film together is the trail of troubles faced by the surviving partners of two long-term homosexual relationships. One is a lesbian police officer whose partner, also a policewoman in Tampa, Fla., was gunned down in the line of duty by a robber. Although the two had been married in a ceremony a decade earlier and were openly acknowledged as a couple at the funeral, Mickie, the surviving partner, faces difficulty getting Lois's pension. The other story involves an Oklahoma farmer, Sam, whose partner of 22 years, Earl, died, leaving him the ranch in his will. A distant relative contests the will and forces Sam into a court battle in which same-sex partners have no legal standing. Started more than three years ago with a grant from the Jerome Foundation in St. Paul, the documentary was originally intended to highlight the personal struggle faced by Mr. de Seve and his partner of five years, Kian Tjong, over whether to marry. "My point of reference for marriage has always been my parents," said Mr. Tjong, who was a producer on the film. "In doing the film I learned about the risks that a couple faces without marriage." The filmmakers appear in the final cut only as off-camera voices asking occasional interview questions, and the film itself studies the meaning of marriage. "We still wanted to answer the initial question 'Should we marry?' " Mr. de Seve said. "Yes, we should marry, and we want to marry because that would be society's acceptance of the reality of our lives." more
SSM FOE WILL RUN FOR MASS. HOUSE: From the Boston Globe
The former Georgia state lawmaker who is spearheading the opposition to gay marriage in Massachusetts was one of six Republicans who filed papers yesterday to take on the state's 10 Democratic congressmen -- a sizable crop given the GOP's longstanding trouble recruiting strong congressional competitors. Ronald A. Crews, a US Army chaplain who runs the Massachusetts Family Institute, said yesterday he will almost certainly run for the US House against Representative James P. McGovern, Democrat of Worcester, virtually ensuring a major role for the hot-button issue of same-sex marriage in the fall election. Crews said he will make a formal announcement of his candidacy at some point after municipal and state officials certify the signatures he filed yesterday at town halls in the Third Congressional District. "I think that my candidacy will give a vehicle to continue to speak to this [same-sex marriage] issue, although I will not be a single issue candidate," said Crews, who lives in Ashland. Crews said he will step down from his position running the Family Institute upon officially declaring his candidacy. Democrats yesterday labeled Crews, a believer in creationism, a "right wing extremist." Crews "came up here from Georgia to spread his divisive message in this state, and I don't think he will succeed," said Philip Johnston, chairman of the state Democratic Party. Aides to Governor Mitt Romney did not return calls seeking comment on the candidacy, but Dominick Ianno, executive director of the state Republican Party, said party officials were "strongly encouraged" by Crews's ability to gather support so quickly. "That was an impressive grassroots effort that Ron's campaign put in," Ianno said. "We think he will make a very strong candidate for Congress." McGovern, a native of the district in his fourth term, supports extending marriage rights to same-sex couples, but said yesterday that his appeal to voters in the Third District extends far beyond that issue. "It's not a single-issue district," McGovern said. Jobs, health care, education, environment, and prescription drugs, "those are the issues people care about. . . . This, to me, is about my record, and I'm proud of what I've done." more
MORE COMPANIES OK DOMESTIC PARTNERSHIP BENEFITS: From the Associated Press (but it's basically a Human Rights Campaign press release)
Private employers are introducing domestic-partner health insurance benefits to gays at the rate of three companies a day, according to a study by the educational arm of a gay rights advocacy group. The analysis by the Human Rights Campaign Foundation found more than 1,000 private employers and colleges and universities added domestic-partner benefits in 2003, 18 percent more than the year before. Some 40 percent of the Fortune 500 companies now offer domestic-partner benefits, including nearly 70 percent of the 50 top businesses. Employers in all states should soon expect to see an effect from the Massachusetts Supreme Court decision legalizing marriage for same-sex couples, according to the report being released Thursday. Same-sex marriage becomes legal in Massachusetts on May 17. Once marriage licenses are available to same-sex couples in that state, employers elsewhere may face more pressure from workers to match the benefits available in Massachusetts, the report said. ... The study focused on health insurance at work because that is the most sensitive to company policy and state law. Pension arrangements such as 401(k) plans are governed by federal law. The report said 7,149 private employers and colleges and universities provided health coverage to employees' domestic-partners in 2003, though that was less than 1 percent of the total number of such employers. ... The report says a "significant proportion of corporate America is already well positioned to deal with changes in the law that will result from the advent of legal marriage for same-sex couples." more Wednesday, May 05, 2004
HEY LOOK, IT'S AN ONLINE CHAT WITH JONATHAN RAUCH!
He's everywhere you want to be. Some excerpts: Grand Rapids, Mich.: My only hesitation toward gay marriage is something I never hear discussed. That is the possible negative effect it might have on a heterosexual child being raised by two homosexuals. Have there been any studies that address this issue? Jonathan Rauch: Well, one thing to remember is that marriage and adoption/child custody, though related, are separate issues. I believe all states allow single-parent adoption, for instance. You don't have to be married at all, much less straight-married, to adopt kids. But to address the question...It's controversial. There's a fair amount of research, but it's a long way from definitive. Some people say it shows that children raised by same-sex couples do just as well, other people say there are some questions outstanding. My take is that we don't yet know whether a same-sex couple can be considered optimal parents. But: 1) We'd certainly know by now if they were rotten parents, because we have lots of grown kids raised by gay couples. And any problems they have are hard to find. Which tells you that if being raised by a same-sex couple is a disadvantage, it's only a small one. (Unlike being raised by a single parent, where, statistically speaking and just on average, disadvantages are not hard to find.) 2) We don't require straight couples to be optimal in order to marry or raise kids. And we shouldn't require that of gay couples. I think adoption/custody decisions should be made case-by-case, with the interest of the child (not the parents) foremost. Which means that neither gay couples nor single parents nor less-than-optimal straight couples nor anyone else should be automatically ruled in or out. Washington, D.C.: In my own personal opinion, allowing gays to marry would send a terrible message to the children of America. First, it is already hard enough to explain, much less guide or direct "sexuality" amongst kids today, mostly because of media imagery. Now you want to confuse them even more with "Mommy, why does Johnny have two daddies?" While I defend the right of gays to "be gay," I beleive that this "alternative" (notice I don't say "deviant" or some other negative term) sexuality should not be "promoted". Surely you recognize that heterosexuality is the natural order of humanity, so how can you not see that it would be detremental and confusing to children for gays to be allowed to marry (and for that matter, to adopt), forcing the issue to have to be explained to kids who aren't likely to be able to comprehend. I've always been a liberal Democrat -- perhaps you would call me conservative on this issue. However, I do not hate, or discriminate against gays -- I just have a problem with the wholesale "promotion" of homosexuality, homosexual "rights," and such. Your thoughts on this would be appreciated. Thanks. Jonathan Rauch: I don't think it's a question of "promotion." I think it's a question of civil and legal equality. I believe that homosexuality is perfectly natural for homosexuals, just as heterosexuality is perfectly natural for heterosexuals. It's not like millions of people wake up at age 13 and decide to be gay for the fun of it. Homosexuality is statistically rare--like left-handedness--but it is natural. Here we are, after all. It is something of a disadvantage that gay couples are infertile. But no one draws a perfect hand in life. And we don't go around denouncing other people who face particular disadvantages in life. We don't denounce diabetics for needing insulin, and say that giving it to them "promotes diabetes." (No direct equation of diabetes and homosexuality intended. Illustrative purposes only.) The only result of denying marriage to gay people will be to make many of them miserable. How can that be in anyone's interest? And, ending where I began...I believe in the golden rule. I don't know of any straight people who'd impose upon themselves or other straight people the burden of going through life without any prospect of marriage. They wouldn't tolerate that for a minute. So that burden shouldn't be imposed upon gays. ... Springfield, Va.: I agree with you that in America marriage is a combination of legal status and socital perception. For most of society that percenption includes a religious connotation. Every day people all over the country are looking for the perfect church to get married in. And for the most part will never see the inside of one again. For myself, I considered the legal aspect over when we went to the courthouse to get our license. But didn't consider us married until the service in our everyday church. The easiest answer is if we could somehow go back in time and change so the legal union did not, and could not, involve a church, taking away a minister's ability to preform a legally binding ceremony. Then everyone would get married at the courthouse and then go to their church if they wanted their union "blessed". Unfortunately we can't do that so the issue is complicated and not easily solved. Jonathan Rauch: Marriage is a hybrid. It combines social and legal elements in a way that nothing else does. Marriage would lose much of its bonding power--the power that fortifies rather than merely ratifies relationships--if it became a government license and nothing more than that. So it's better to keep the social and legal elements in harmony to the extent we can. Which will mean starting out with gay marriage in places where it enjoys substantial social support. I.e., Massachusetts, Oregon, or California--not Texas or Virginia. Takes time, but there are no shortcuts. As Frost (?) said: The only way out is through. more
NEW PALTZ: BACKER OF SSM IS ELECTED: From the New York Times
A candidate running on a platform in support of Mayor Jason West, who has officiated at same-sex marriages, won a seat on the village board in a special election yesterday. The electee, Michael K. Zierler, received 444 votes, and his opponent, Rick J. Remsnyder, received 306, according to the village clerk and treasurer, Jean P. Gallucci. "Remsnyder got his answer to a campaign he ran as a referendum for New Paltz on the job I was doing as mayor," Mr. West said. link (scroll down)
JUDGE AFFIRMS PORTLAND DOMESTIC PARTNERSHIPS: From the Portland Press Herald
One of the nation's leading opponents of same-sex marriage has lost a bid to overturn Portland's domestic partnership ordinance in Cumberland County Superior Court. Justice Thomas Humphrey rejected a complaint filed in August by several married couples in Portland who claimed the ordinance violated the state's Defense of Marriage Act, which the Legislature passed in 1997. The couples were recruited by the American Center for Law & Justice, a conservative public interest law firm specializing in constitutional law. The firm, based in Washington, D.C., is fighting same-sex marriage legislation in Congress and in states from Massachusetts to California. Portland officials view Humphrey's decision as a victory, while opponents of same-sex unions see it as lost ground in the battle to preserve marriage as a heterosexual institution. ... "The ordinance applies to the extension of limited municipal rights and benefits to domestic partners, not to the regulation of marriage per se," Humphrey wrote. "It does not conflict with any of the state's provisions regarding the licensing or recognition of marriage." ... The city of Portland, which is self-insured, began offering health benefits to employees' domestic partners in 1999. Two years later, the domestic partnership ordinance established a registry for committed, unmarried couples. To register, domestic partners must fill out a form at City Hall verifying that they have a relationship "of mutual support, caring and commitment," and that they "intend to remain in such a relationship in the immediate future." The ordinance extended certain spousal rights, such as bereavement leave and health insurance, to domestic partners of city employees and employees of agencies that receive federal grant money through the city. It also gave registered domestic partners the same rights as spouses to access school information or pick up children at city-funded schools and child-care agencies. Humphrey pointed out that Maine already had several state laws that recognized the validity of domestic partnerships, including one that gives a domestic partner of a licensed commercial fisherman the same right as a spouse to sit on the Commercial Fishing Safety Council. Humphrey further noted that Portland's ordinance gained ground when the Legislature adopted a bill three weeks ago to provide domestic partners with automatic inheritance rights and the right to control the remains of their partners. more
MASS. WILL NOT CHECK PROOF OF RESIDENCY: From the Washington Post
A top legal adviser to Gov. Mitt Romney (R) told a gathering of city and town clerks Tuesday that marriage licenses issued in Massachusetts to same-sex couples from other states will be "null and void" and could have serious legal consequences for the couples involved. But Daniel B. Winslow also said that couples need not provide evidence of residency and that those who "intend to reside" in the state are eligible to receive marriage licenses, opening the door for some out-of-state gay couples to marry here when such unions become legal on May 17. A sworn statement at the bottom of marriage forms is sufficient evidence, and no further proof is necessary, Winslow said. "What this means is it is not up to us to be the police for this whole particular process," said Linda E. Hutchenrider, president of the Massachusetts Town Clerks Association, who said the meeting had cleared up confusion over how the controversial law would be enforced. "It will be up to couples to make honest statements." A landmark ruling by the state's Supreme Judicial Court last November made Massachusetts the only state in the country where same-sex marriage is legal. Romney, who strongly opposes gay marriage, said last week that same-sex couples from elsewhere would be denied marriage licenses under a 1913 law that prohibits people from marrying in Massachusetts if their home state would not allow them to marry legally. In recent weeks, a growing number of local officials had said that they would not seek to verify where couples applying for marriage licenses lived. The 1913 law, which was enacted in part to preserve other states' bans against interracial marriage, has not been enforced in decades, several clerks said. "I think it was increasingly clear that the governor was facing a rebellion and local elected officials were unwilling to act as instruments of unjust laws and policies," said Joshua Friedes, advocacy director of the Freedom to Marry Coalition of Massachusetts. "To some extent, the governor has backed down." more
LAWSUIT FILED AGAINST MASS. SSM: Alliance Defense Fund press release
A Boston attorney, the Alliance Defense Fund, and the Law and Liberty Institute plan to file a motion to intervene Tuesday on behalf of two noted Massachusetts citizens in Goodridge v. Department of Public Health. They are asking a Superior Court judge to dismiss the case. The intervenors are Ray Flynn, former U.S. Ambassador to the Vatican and mayor of Boston from 1984 to 1993; and Thomas A. Shields, a North Shore businessman. They are represented by Boston attorney Phil Moran, David R. Langdon of Law & Liberty Institute, and the Alliance Defense Fund. According to the motion, the November 18, 2003 Goodridge opinion of the Supreme Judicial Court (SJC), "effectively amended the (Massachusetts) Constitution." Goodridge, decided last fall by the Massachusetts Supreme Judicial Court, redefined the term "marriage." The high court returned the case to Superior Court December 16, 2003. In the Goodridge opinion the SJC called its construction of marriage a "reformulation" of marriage. However, the term "marriage" is in the Massachusetts Constitution, and the authority to amend the Constitution resides only in the people of Massachusetts, not in the courts or any other branch of government. "No party in this lawsuit discussed the issue of jurisdiction before the court. Only the people, not the courts can amend the state Constitution. It's certainly not too late to raise it now," said Benjamin Bull, chief counsel for the Alliance Defense Fund. "At no point during the progress of litigation is it too late to consider whether there is absence of authority to proceed." Because the Goodridge decision is tantamount to an amendment to the Massachusetts Constitution, the Superior Court judge may grant the motion, dismiss the case, and make the Goodridge opinion inoperative. As the motion points out, backdoor constitutional amendments such as the Goodridge decision have been condemned in other opinions by the SJC. "If the court rules against the motion to dismiss, the Massachusetts Constitution will have become the instrument of judicial whim and tyranny, and not the democratic bulwark it once was," Bull said. "This is one of the many reasons that the people who wrote the Constitution of Massachusetts placed the power to amend the Constitution in the hands of the people, and not in the hands of judges." link
KANSAS LAWMAKERS REJECT SSM BAN: From the Associated Press
A proposed constitutional amendment declaring that Kansas recognizes marriage as only between one man and one woman failed Tuesday to win enough House support to submit it to voters. The vote was 79-45--five favorable votes fewer than the two-thirds majority needed to approve a proposed change in the Kansas Constitution. The Senate adopted the proposal Saturday on a 27-13 vote. The proposal would have also denied legal benefits associated with marriage to other domestic arrangements, such as civil unions. In March, the House adopted a similar proposal on an 88-36 vote, but supporters and proponents said some members had reconsidered their positions before Tuesday's vote. link Tuesday, May 04, 2004
SCANDINAVIAMANIA: Stanley Kurtz replies to critics
webcast of Kurtz's testimony before the Constitution Subcommittee of the House Judiciary Committee testimony here ...Meantime, Andrew Sullivan has posted entries here and here attempting to rebut my Scandinavia argument. Sullivan draws on the work of Darren Spedale, a lawyer who studied gay marriage in Denmark on a Fulbright scholarship. Nathaniel Frank, who wrote the critique of my work for The New Republic, is an expert on sexual minorities in the military. Here's my response to the critics. MUTUAL REINFORCEMENT The critics say I show only correlation--not a causal connection--between Scandinavian registered partnerships and marital decline. Supposedly, I confuse cause and effect. But it's the folks who say gay marriage could be only an effect of marital decline--without also being a cause--who are confused. Gay marriage, and other contributors to marital decline, are mutually reinforcing. ... The critics ignore my core claims about how gay marriage undermines marriage. I show that registered partnerships are not understood in a "conservative" light by the public. Instead of treating de facto gay marriage as an affirmation of the importance of marriage, the public sees this change as proof that traditional marriage is no better than any other family form. And this culturally radical interpretation of gay marriage is as prevalent in the Netherlands (where we now have formal gay marriage) as in Scandinavia. Since the public sees gay marriage as powerful proof that all family forms are equal, gay marriage reinforces marital decline. A NEW STAGE OF MARITAL DECLINE The critics ignore another key aspect of my causal argument. Gay marriage is part and parcel of a whole new stage of marital decline--a stage still relatively unfamiliar in the United States. In this new stage of marital decline, couples don't just cohabit before they become parents. Couples cohabit even after they become parents. Because gay marriage helps to break apart the ideas of marriage and parenthood, it is closely associated with this advanced stage of marital decline. ... CONTRADICTORY CLAIMS Not only do Sullivan, Spedale, and Frank completely ignore this aspect of my causal framework, the three of them take utterly contradictory positions on a supposedly fatal flaw in my case. Writing in The New Republic, Frank says that since Scandinavia has only "registered partnerships," the Scandinavian case "has literally nothing to do with same-sex marriage." Trouble is, Sullivan himself, writing in the same magazine in 2001, touted Spedale's work on "de facto gay marriage" in Denmark as proof that gay marriage is harmless. The first sentence of Spedale's current reply to me reads, "Since 1989, gay marriage has been a reality in Scandinavia." ... The remarkable thing about Darren Spedale's reply to my work is that, without realizing it, he actually makes my causal case. Overtly, Spedale denies that Scandinavian gay marriage has had any negative impact on "the sanctity of marriage." If anything, says Spedale, gay marriage has actually strengthened Scandinavian marriage. Trouble is, Spedale's work is a celebration of the decline of Scandinavian marriage. Spedale doesn't deny that Scandinavian parents have stopped getting married. His real point is that parental cohabitation is just great. ... THE MENTALITY OF MARITAL DECLINE But the truly remarkable thing about Spedale's "rebuttal" is that it actually makes my causal argument. According to Spedale, Scandinavian gay marriage is a product of "increasing respect for diverse family structures." Sure. But doesn't gay marriage then breed further acceptance of "diverse family structures"--like the parental cohabitation of which Spedale is so enamored? Apparently so, since Spedale himself keeps saying that the approval of gay marriage has garnered ever increasing public support for the idea of family change. ... ...While advocates like Sullivan argue that marriage isn't about children, Nathaniel Frank takes the opposite approach. Since some gays have children, says Frank, formal gay marriage would unite--not separate--the ideas of marriage and parenthood. ... You can see the process playing out now in Sweden, which is on the verge of turning its system of registered partnerships into formal gay marriage. The big step on that road came in 2002, when Sweden removed that last real difference between registered partnerships and marriage by allowing gay partners to adopt. Has that move brought the ideas of marriage and parenthood closer together? Not at all. The National Swedish Social Insurance Board recently convened a panel in which two legal experts recommended changes in Swedish family law. One invoked same-sex parenting to argue for legal recognition of three- and even four-parent families. According to this scholar, the antiquated two-parent standard virtually forces lesbian couples to find anonymous sperm donors, rather than form a more complex family with, say, gay sperm donors to whom they feel close. more
A MARRIAGE DEBATE
I am too lazy to hook up my computer speakers, but if you are not, you can listen to a debate on SSM here. Participants: former congressman Bob Barr, Phil Munoz of the American Enterprise Institute, Matthew Spaulding of the Heritage Foundation, and Andrew Sullivan.
MASS. MARRIAGE RESIDENCY LAW: Gabriel Rosenberg
So there are a lot of questions lately about a Massachusetts law dating from 1913 that reads: "No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void." One question is whether said law is constitutional, but another question is what does it mean even if it is. Gov. Romney believes that it means that Massachusetts may not marry non-resident same-sex couples from any other state, and any such marriages performed are null and void under Massachusetts law. He believes this follows since, to his knowledge, same-sex marriage is not legal in any other state of the union. He even sent out letters to the govenors and attorneys general of the other states asking them to inform him if his assumption about their laws was incorrect. Based on this reading, Gov. Romney is asking town clerks to ask for proof of residency and to deny licenses to out-of-state gay couples (except those from Ontario, etc.). There are other interpretations of the law, though. Attorney General Reilly expressed the opinion that the 1913 law only applies to couples from the 38 states that have passed DOMA legislation expressly prohibiting same-sex marriage. That is his opinion would still allow same-sex couples from New York, Connecticut, and the like to marry in Massachusetts. This is quite an important distinction, because for example, New York's Attorney General Spitzer has issued an opinion that while local New York officials should not issue licenses to same-sex couples, they should recognize those marriages lawfully entered into elsewhere. We see here a rather dizzying scenario for determining whether the same-sex marriage of New York couples entered into in Massachusetts is valid. It's valid in NY if it was lawful in MA, and it's lawful in MA as long as it would not be void if contracted in NY. ... And what about the underlying arguments about the law's constitutionality? ...So far I have seen two concerns raised. One is that Massachusetts has no business enforcing the discriminatory laws of other states, and the second is that such a law would unfairly treat non-residents differently than residents in violation of the privileges and immunities clause. My initial reaction, though, is that both concerns are rather weak. The SJC found there was no rational basis for prohibiting SSM under Massachusetts law. That does not mean that another state might not have a rational basis to prohibit it under their own laws. Nor is it the place of the SJC to rule on how other states should interpret their own laws. As for the P&I clause, while it has been applied to limit the ability of states to discriminate against non-residents in matters to applying their trade, or in medical or welfare matters, it has explicitly not applied to areas of domestic relations. It seems to me that the Supreme Court case of Sosna v. Iowa (1975) is quite relevant. That case held that Iowa could require a one-year residency period before a person could seek a divorce. more
MORE MASS. CLERKS PLAN TO IGNORE RESIDENCY RULE: From the Boston Globe
[Sorry I didn't keep all the residency-rule stories together! There's another one a few posts down. --Eve] With the issuance of marriage licenses to gay couples just 12 days away, more Massachusetts communities say they will probably defy Governor Mitt Romney's directive to ask same-sex couples for proof of residency when they apply for permission to marry. Clerks in Northampton and Lowell said yesterday they hope to ignore Romney's instructions. Other clerks said yesterday that they were also considering refusing to ask for proof of residency, but will decide after they attend training sessions on the new procedures, the first of which is slated in Barnstable today. "I'm pretty angry over the whole thing, that we have to be the residency police," said Northampton Clerk Wendy Mazza, who is seeking an opinion from her city's attorney on the legality of ignoring the governor's directive. "This has never been an issue before. Now all of a sudden, it's an issue. When a couple comes in here, they sign an [oath] that there is no impediment to their marriage, and that's as far as any city clerk should have to take it." Lowell Clerk Richard C. Johnson said that once gay marriage is legal in the state, beginning May 17, he will not ask gay couples for proof of their Massachusetts residency because he is "trying to treat everyone equally, and presently, we do not ask heterosexual couples whether or not they are residents of Massachusetts." ... Mayor Thomas M. Menino of Boston said last weekend that he wishes to defy the new requirement. And Worcester Clerk David J. Rushford has said he will refuse to ask for proof of residency and intends to leave that part of the new marriage license forms blank. ... Legislation has been filed to repeal the 1913 law. Clerks said yesterday that they expect the residency law to be challenged in court almost immediately. more
A WAVE OF INITIATIVES TO PROMOTE MARRIAGE: From the Christian Science Monitor
...From a proposed constitutional amendment to outlaw same-sex marriage to new funding for programs to promote "healthy" marriage at the state level, Washington is making an unprecedented move into one of the most private and pivotal institutions in American life. "In a remarkably short period of time, we have moved past the question of whether government ought to be involved in supporting healthy marriages to the question of how government should be involved," said Wade Horn, assistant Secretary for children and families in the Department of Health and Human Services, before a Senate panel last week. So far, many of the new moves are modest--and in their infancy. But critics say that such programs could involve government in a relationship where it does not belong, and produce misguided policy, including encouraging women and children to stay in a possibly violent household. New federal moves are wide-ranging. Among them: eliminating barriers to marriage--such as the permanent repeal of the so-called "marriage penalty" in the US tax code, which the House passed last week, and a pending rewrite of national welfare laws to provide $ 300 million in incentives for programs to promote "healthy" married families. Meanwhile, several states have also launched a spate of new initiatives, with the most detailed legislation coming out of the conservative South and Southwest. Since the mid-1990s, all states have made at least one policy change to promote marriage or reduce divorce. Forty now fund couples- and marriage-related services. And 36 have revised their welfare eligibility rules to include two-parent families. Nine states now offer bonuses for marriage. "It is worth noting that there is little marriage-related policy activity in the northeastern states, and two of the three most populous states [California and New York] have no appreciable state marriage initiatives," according to a new report by the Center for Law and Social Policy in Washington. In Senate hearings last week, lawmakers also discussed whether Washington should make it harder for couples to end a marriage, by challenging several states' "no-fault" divorce laws. "Tell me the wisdom of a system where it is easier to get a marriage license than a hunting license, or where it is easier to get out of a marriage than a Tupperware contract," said former Gov. Frank Keating (R) of Oklahoma before a Senate panel on "Healthy Marriage" last week. Oklahoma is one of seven states where government action addressing the institution of marriage is most pervasive. Others include Arizona, Florida, Louisiana, Michigan, Utah, and Virginia, according to the CLSP study. States are scrutinizing everything from the cost of a marriage license to incentives (or disincentives) for marriage built into state poverty programs. Florida has reduced marriage license fees for those who take a premarital education course. Arizona drafted a "marriage handbook," and funds marriage-skills courses for low-income couples. Michigan developed a family formation curriculum, tailored mainly at single mothers. ... "This is one of the rare circumstances when you find Cato and NOW on the same page," says Michael Tanner, CATO director of health and welfare studies. "If the federal government can get involved in directing marriage, [are] there any limits to what government can get involved in?" Critics caution that some of the legislation could have unintended, and dire, consequences. Course materials being developed in some states, they say, encourage women to accept the dominance of men in marriage--and even to stay in abusive relationships. ... "For political and ideological reasons, Republicans claim that what it takes to create a good home for children is marriage, when it's really economic and emotional stability," says Terry O'Neill, vice president of the National Organization of Women. more
A FOCUS ON GAY MARRIAGE STIRS UP NEW PALTZ ELECTION: From the New York Times
[Hmmm... headline has changed since this story ran on Nexis. Now it's "New Paltz Trustee Election a Test of Views on Mayor." Story seems otherwise unchanged though. --Eve] Outsiders may see Tuesday's special election to fill one village trustee seat as politics at a microscopic level, but to residents of New Paltz the race has become a referendum on their 27-year-old mayor and the national attention he brought by conducting New York's first same-sex marriages here. The mayor, Jason West, was prosecuted for solemnizing marriages without a license and ordered to stop by a judge. He stopped performing the ceremonies, but has been replaced by a series of ministers who now officiate same-sex marriage ceremonies for about 20 couples almost every week. Two ministers have also been charged by the Ulster County district attorney's office. While the validity of the marriages will probably be determined when a series of related lawsuits work their way through the New York courts, the special election on Tuesday -- between Rick J. Remsnyder, who opposes the mayor and his policies, and Michael K. Zierler, who supports Mr. West -- will give voters in New Paltz the chance to weigh in on their mayor and the effect his civil disobedience has had on their village. Although it is only a special election to fill a vacancy created by a resignation, the campaign has created more buzz in the village than larger elections in previous years. "There are more signs up for this election than I can remember for a long, long time," said Thomas E. Nyquist, who was the mayor for 16 years before Mr. West defeated him last May. "You can also see the level of interest through the large number of letters to the editor." The election pits Mr. Remsnyder, a former mayor's son, using "Take Back the Village" as a slogan, against Mr. Zierler, a bearded freelance book editor whose answering machine plays "Give Peace a Chance." The candidates disagree about whether the mayor should have taken action on the same-sex marriage issue, and both say the election has exacerbated simmering friction between long-term residents and the politically active students of the State University of New York campus that dominates the village. more
FOR BLACK MINISTERS, POLITICAL TONE SHIFTS: From the Christian Science Monitor
A recent conference on black leadership in Massachusetts moved from candid to heated only after the last question of the weekend. By the time Ken Reeves sat down, he had released a wellspring of frustration. Mr. Reeves, a former mayor of Cambridge, was distressed not over relations with other races, but with fellow blacks--specifically those who occupy local pulpits. When he voiced concern that black ministers were associating with conservative interest groups, he was met with loud applause and waves of approval. The conference organizer, state Sen. Dianne Wilkerson (D), was prompted to admit that she had purposely left the subject off the agenda because emotions were r | ||||||||||
