GOING DUTCH?: Stanley Kurtz

ONLY A FEW YEARS AGO, two prominent demographers hailed the Dutch family as a model for Europe. Somehow the Dutch had managed to combine liberal family law and a robust welfare state with a surprisingly traditional attitude toward marriage. Even as a new pattern of highly unstable parental cohabitation was sweeping out of Scandinavia and across northern Europe, the Dutch were unswayed. To be sure, premarital cohabitation was widespread, but when Dutch couples decided to have children, they got married. At least they used to.

Today, marriage is in trouble in the Netherlands. In the mid-1990s, out-of-wedlock births, already rising, began a steeper increase, nearly doubling to 31 percent of births in 2003. These were the very years when the debate over the legal recognition of gay relationships came to the fore in the Netherlands, culminating in the legalization of full same-sex marriage in 2000. The conjunction is no coincidence.

A careful look at the decade-long campaign for same-sex marriage in the Netherlands shows that one of its principal themes was the effort to dislodge the conviction that parenthood and marriage are intrinsically linked. Even as proponents of gay marriage argued vigorously--and ultimately successfully--that marriage should be just one of many relationship options, fewer Dutch parents were choosing marriage over cohabitation. No longer a marked exception on the European scene, the Dutch are now traveling down the Scandinavian path.

Call it the end of the Dutch paradox, the distinctive combination of liberal social policies and traditional behavior. On euthanasia, prostitution, drug use, and now gay marriage, Dutch law is the cutting edge of Western liberalism. Yet among Dutch people, drug use and sexual license are far from rampant. Many have asked whether this balance of tolerance and tradition, with its deep roots in Dutch culture and history, is sustainable over the long term. At least for marriage, the answer appears to be no. ...

Van der Staaij pointed out a critical problem in the government's proposal for same-sex marriage. Would the law recognize the usual ties of descent between children and married couples? Would, say, the female spouse of a mother who conceived a child automatically become the parent of the biologically unrelated child? If so, the implication was, might such a child have three simultaneous legal parents? And if so, would this not set off a cascade of legal pressures to repudiate the two-parent standard (a process that is playing itself out right now in Sweden)?

The government opted to avoid the issue by denying automatic parental rights to same-sex spouses. But, as Van der Staaij noted, that decision opened up a dangerous gap between the traditionally conjoined notions of marriage and parenthood. The dilemma itself stood as stark proof that in a matter heretofore central to marriage, homosexual and heterosexual couples are indeed differently situated. ...

To appreciate gay marriage's role in encouraging the recent upsurge of Dutch parental cohabitation, we need only take seriously what participants in the Dutch debate said. Spend a decade telling people that marriage is not about parenthood and they just might begin to believe you. Make relationship equality a rallying cry, and people might decide that all forms of relationship are equal--especially young people, of family-forming age, most of whom have left religion behind. Dutch conservatives made a valiant stand for procreation and parenting as of the essence of marriage, and they were soundly beaten. Having duly considered and rejected the essential tie between marriage and parenthood, the Dutch started to abandon their inertial traditionalism and began to experiment with parental cohabitation in record numbers.

Again and again, voices from across the political spectrum argued that gay marriage signifies the demotion or abolition of marriage as the socially preferred setting for parenthood. It should come as no surprise when Dutch parents act accordingly.

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posted by Eve at 8:38 PM | link 0 comments

FOR GAY COUPLES, DIVORCE IS SOUGHT-AFTER PERK OF MARRIAGE: From the Associated Press

One of the messiest breakups family law lawyer Cheryl Sena has witnessed had all the hallmarks of a bitter, "who-gets-what" divorce -- charges of infidelity, competing restraining orders and drawn-out conflict over a multimillion dollar home.

What made the case especially difficult, even as ugly splits go, was that the feuding partners were men. As an unmarried couple, community property laws didn't apply to them -- so every last bit of jewelry was up for grabs. ...

The ability to recieve alimony, guaranteed parental rights and an assumed stake in the financial fruits of the relationship are just a few of the divorce benefits long denied same-sex couples.

"The single most important thing you get with marriage is divorce, a predictable process by which property is divided, debt is apportioned and arrangements are made for custody and visitation of children," said Jo Ann Citron, a Boston lawyer who is researching a book on same-sex breakups called "The Gay Divorcee." ...

Especially when children are involved, judges in liberal-leaning states like Massachusetts, California and Washington have been increasingly willing to apply the principles of their respective divorce laws, if not the laws themselves, to same-sex breakups that wind up in court as contract or property disputes.

But courts in more conservative states like Texas and Virginia have been loath to do anything that would confer marital-like standing on same-sex unions, even when both parties have had lawyers draw up detailed contracts. ...

Vermont, which since 2000 has granted spousal rights to gay couples with civil unions, is the only state other than Massachusetts where gays and lesbians are now treated the same as married couples for the purposes of divorce. In California, a law scheduled to take effect on Jan. 1 would give the state's 25,000 couples registered as domestic partners access to family court proceedings when their relationships end. ...

San Francisco residents Julian Chang, 42, and Wade Estey, 38, avoided such acrimony when they split up last year after more than 14 years together. Both lawyers with equal earnings, the men had drawn up elaborate agreements or filed papers governing everything from home ownership and hospital visitation rights to frequent flier miles and funeral arrangements. They handled their dissolution proceedings themselves, splitting everything down the middle.

With so many separate contracts to undo, they still haven't reached the end of it. "We put everything in our lives together piece by piece, and now the worst part of it is we have to undo everything piece by piece," Chang said.

Both agree that had marriage been an option, their "divorce" would have been easier -- and they might not have broken up at all. "There is something different about being married than in an unmarried relationship -- it would make me more committed to working things out," Estey said.

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posted by Eve at 8:34 PM | link 0 comments

NEWYLWED GAYS' SUIT COULD MAKE LAW HISTORY: From the Boston Herald

The arrival of legal gay marriage in Massachusetts cleared the way for a milestone medical negligence lawsuit filed yesterday in Worcester Superior Court.

Michelle Charron and Cynthia Kalish, who married Thursday and have a 6-year-old daughter, sued Worcester's Fallon Clinic and two of its doctors, claiming they misdiagnosed Charron's now-incurable breast cancer.

The legalization of gay marriage allows Kalish to sue for loss of companionship, grounds not allowed to gay couples before Monday's historic change.

Charron's cancer has spread to her liver and sternum, bringing "substantial risk of premature death," according to the lawsuit.

"It was hard (in Thursday's wedding ceremony) when they got to the 'in sickness and in health, for as long as you both shall live,'" said Kalish, 39, who works in human resources.

The couple met 18 years ago while working at battered womens' shelters. They have lived together for 12 years.

"Cynthia and I aren't going to grow old together," Charron said. "I think a lot about Hannah (their daughter) and the things in her life I may miss . . . her first date, the prom, her Bat Mitzvah." ...

"The (companionship) claim brought by a spouse is not new, but the fact that this is a claim brought by a same-sex spouse is what makes this unique," said Paul Martinek, editor of Lawyers Weekly USA. "This shows one of the major benefits for same-sex couples to say, 'I am married.'"

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posted by Eve at 8:32 PM | link 0 comments

GAYS VOW TO PRESS MARRIAGE FIGHT NATIONWIDE: Reuters

Gay rights advocates vowed on Tuesday to press for full marriage rights for same-sex couples across the nation even as conservatives campaigned to undo the legal gay unions that just began in Massachusetts. ...

Kevin Cathcart, executive director of gay rights group Lambda Legal, called the legalization of same-sex marriage in Massachusetts "an incredible breakthrough" but noted the state is only one of 50 in the nation.

"No one should have to go to another state or another country in order to get their marriage recognized," he said. "So we can't and we won't stop until we have equality in marriage nationwide."

Cathcart noted that courts in California, New Jersey, New York and Washington are considering lawsuits seeking same-sex marriage rights, and he predicted more state supreme court rulings similar to the landmark one by Massachusetts' highest court that ordered the state to begin marrying gay couples.

The Massachusetts ruling that allowed gay marriage said anything less would make gays second-class citizens.

"I don't think Massachusetts is going to be out there on its own for terribly long," he said.

Legal challenges are also expected to arise from same-sex couples who marry in Massachusetts and try to have their unions recognized in other states.

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

DISESTABLISH MARRIAGE?: Joel Bruhn replies to Eve

I read your reply to Ryan's and my postings. You have soundly answered Ryan's arguments, but you haven't addressed mine. I never advocated disestablishing marriage--I said that we should entirely separate civil marriage from religious marriage. All
but one of your points (the exception is the second one) are irrelevant to my argument.

Your second point--that society benefits from codifying heterosexual marriage--well, I agree with you, but good luck making that argument in a secular forum. Try something just for me: go find someone with a rainbow bumber sticker on their car, and explain your point to them. Let me know how they respond.

I'm not being facetious, but acknowledging a practical reality. Gays in this country mostly do NOT agree with us here, and being citizens, taxpayers, and voters, are fully entitled to lobby accordingly. And they've been far more effective in persuading the public on this issue than have the conservatives who oppose them.

Others have correctly noted that it is mostly judges, and not voters, who have been giving gay-marriage advocates their latest victories, but I see that point as basically irrelevant here. Gay marriage has seen popular support rising steadily for many years now, and this trend isn't going to reverse. We're already past the point where a federal marriage amendment could find sufficient support to be passed, and momentum is on their side, so we'd better make a contingency plan.

Which is why I advocate separating civil marriage from religious marriage. What are your thoughts?

[Eve replies: First, I do think the rest of my post is relevant, at least in terms of laying out the stakes of our disagreement. But really I just think this is an over-dark reading of the political situation. Now is not the time to come up with "throw the supplies overboard, we're sinking!" contingency plans; now is the time to make better public arguments. I suppose I am more sanguine about the future than Joel because a) until quite recently (about a year or so ago) I hadn't heard strong, cogent, secular arguments against same-sex marriage--I think opponents of SSM were largely caught unawares, have been scrambling to understand the issue, and are doing much, much better now than we were a year ago, so slowly our message is getting out; b) I do spend a lot of time talking to rainbow-bumper-sticker-people, and I've seen minds change; and c) the political situation here is really volatile, with people being pressured to take sides, and coming down in ways that are still quite unexpected. So... I don't think focusing on a "contingency plan" is really a good idea right now.]
posted by Eve at 4:23 AM | link 0 comments

DISESTABLISH MARRIAGE? Jim Downard

[Jim Downard teaches American history and studies Robert Nozick.]

C.S. Lewis (in Mere Christianity, I think) advocated two kinds of marriage: one solemnized by the state that could be ended at any time for any reason and acknowledged as such and a church marriage that could not be broken under any circumstances or conditions. He was addressing the question of divorce which, before his death in 1963, was nowhere near the problem it has since become with the advent of dissolution laws.

The demand that churches accept same-sex unions arises from the desire to normalize what has hitherto been regarded as abnormal: same-sex relations. It is not simply a civil rights issue, a matter of granting the same special financial and legal privileges to homosexuals that states have always accorded to heterosexuals.

Even if "society" were to endorse Lewis's suggestion from long ago, militant homosexuals and leftists who desire to break down any traditional canons of morality would still be knocking at the door of the church, hoping to revolutionize it. No revolutionary can let any part of a given society remain unrevolutionized. The inner logic of revolution cannot abide it.

Traditionalists may have lost this struggle in the cultural and legal spheres of American life. A counter-revolution would demand a counter-cultural revolution which "tolerance" and "diversity" will never permit. Everyone except for a handful of traditionalists are afraid of being labeled "bigots," which is another legacy of the 60's.
posted by Eve at 4:21 AM | link 0 comments

DISESTABLISH MARRIAGE?: Lucia Liljegren

Recently, Eve Tushnet at MD.com asked people to comment on the Abolition of marriage; many people have. Reading the responses, I was struck by something posted by Ryan Janus. It was this: "It doesn't matter to me if people believe I'm married--I know I am."

Evidently, Ryan believes that as long as he, his wife and God know they are married, that's enough.

I have been married for 20 years. It does matter to me whether people believe my husband and I are married.

It mattered whether the bank believed us when we applied for a mortgage. It mattered whether our employers believed us when they paid to move spouses across country. It mattered when my husband requested personal leave to stay with me while I was hospitalized.

What people believed about my marriage would matter if:

* either of us were in an life threatening accident and we wanted the hospital to inform our next of kin.

* the IRS disputed our marital status during an audit.

* we wished to leave our assets tax free to each other when we died.

* either of us decided to violate our marriage vows and run off with someone else.

I could probably make this list nearly endless just including reasons why it matters whether people recognize my legal marriage. Some religions also take the point of view that it matters if people know you are share a sacramental bond. The Catholic Church has long thought it mattered whether other people know you are married; secret marriages are not permitted.

So, what do you think? Does it matter?

link, including some very interesting comments from readers
posted by Eve at 4:15 AM | link 0 comments

SSM, NONTRADITIONAL MARRIAGES, AND POLYGAMY: Mark Miller replies to R.K. Becker

Just to clarify, R.K. believes that the effort to legalize polygamy will be unsuccessful in the next 5 years due to the fact that the people who make these decisions want to prevent those who opposed SSM from saying "I told you so." But once SSM opponents are relegated to political irrelevance, since the logic behind the support of SSM is the same as for polygamy, polygamy will eventually become legal.

This does not hold for the reason that there are significant differences between the arguments (both legal and moral) for SSM and the arguments for polygamy.

In R.K.'s first example, he says that one of the pro-SSM rguments is based on the fact that denying gays to marry denies them the opportunity to marry the person they love in the same way straights can marry the person they love. I agree. He goes on to suggest that this same logic can then be applied to bisexuals who have attractions to both sexes and therefore, allowing them to marry who they are attracted to leads to polygamy.

The problem with this for me is that my argument for SSM is to allow people to marry ONE person whom they love. While I'm sure there are some who support unlimited marriage laws with no rules or lines drawn, I am not among them. There should be lines drawn with regard to marriage but I am not sure why that line should drawn based on gender. I am sure why that line should drawn at involving two people. The reasoning behind each is different. Therefore, my argument for SSM is not simply about "allowing everyone to be happy in life." I do believe there are other considerations. Obviously, I see a moral distinction between homosexual behavior and having multiple partners, where apparently R.K. does not.

In R.K.'s second example, he says that one of the pro-SSM arguments is based on the fact that denying gays to marry denies them the opportunity to marry the person they are sleeping with and, in many cases, raising children with. Again, I agree. He goes on to suggest that this same logic can be applied to same-sex couples who wish to add the other "biological" parent to the family so that the child can have both the legal mother and father, which is one of traditionalist positions.

I am not arguing that the laws of marriage should be based solely on the child having both a mother and father. There are already laws in place for which both the biological mother and father have legal responsibilities to their offspring. Those responsibilities are not affected by the laws of "marriage." In this example, I would argue that a choice has to be made by the parties involved which two partners should be legally married. In response to an argument made as to why not allow all three people to enjoy the benefits of marriage and raising the child, I would say that marriage is between two people. And that I believe that aspect of what we call marriage is central to the institution as opposed to it being opposite-sex.
posted by Eve at 4:06 AM | link 0 comments

NATIONAL JOURNAL: SSM--"THE EXPERTS"

Quick guide for journalists and others seeking expert opinion on same-sex marriage. Includes phone numbers, brief background, representative quotes, and comments from allies, opponents, and "we disagree but this person is really good" types. Experts are: Maggie Gallagher, Robert George, Mary Ann Glendon, Andrew Koppelman, Stanley Kurtz, Rep. Marilyn Musgrave, Gavin Newsom, Donna Payne, Tony Perkins, Andrew Sullivan, and Evan Wolfson.

The whole thing is here.
posted by Eve at 4:00 AM | link 0 comments

MORE SLOPING: Tom Sylvester replies to Eugene Volokh

Law professor Eugene Volokh makes the the point I tried to make earlier, but he does so much more clearly:

"The gay rights movement has succeeded, both legally and in many situations politically, because of a confluence of reasons. Homosexuals are only about 2-3% of the population; but they also have many more nonhomosexual friends, family members, and colleagues. They have the natural political sympathy of much of the liberal movement, that tends to take a broadly egalitarian and sexually libertarian view.

"Homosexuals are generally not very socially insular, at least by choice; while there are some mostly homosexual organizations and social circles, homosexuals tend to work, play, and socialize with heterosexuals. This means that, once there's enough tolerance for homosexuality that homosexuals are willing to identify themselves, many people -- even many conservatives -- find that quite a few of the people they like are homosexual. And this has been especially so in elite circles that have a disproportional impact on law, policy, culture, and even public opinion."

He goes on to write that possible supporters of polygamy--Mormons and Muslims--are far more insular and don't have support on the left. While that's true, he overlooks "polyamorists" who appear to be hippie lefty types, as well as support for polyamory among Unitarians and radical left-wing legal scholars such as Judith Stacey, Martha Ertman, and Martha Fineman.

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posted by Eve at 3:53 AM | link 0 comments

MORE SLOPING: Eugene Volokh on SSM and polygamy

I've mentioned below (and in many past posts) that legalizing or constitutionalizing same-sex marriages might indeed eventually lead to the same for polygamous marriages -- the slippery slope argument is plausible, though of course far from certain.

I suspect, though, that this won't in fact happen. The gay rights movement has succeeded, both legally and in many situations politically, because of a confluence of reasons. Homosexuals are only about 2-3% of the population; but they also have many more nonhomosexual friends, family members, and colleagues. They have the natural political sympathy of much of the liberal movement, that tends to take a broadly egalitarian and sexually libertarian view.

Homosexuals are generally not very socially insular, at least by choice; while there are some mostly homosexual organizations and social circles, homosexuals tend to work, play, and socialize with heterosexuals. This means that, once there's enough tolerance for homosexuality that homosexuals are willing to identify themselves, many people -- even many conservatives -- find that quite a few of the people they like are homosexual. And this has been especially so in elite circles that have a disproportional impact on law, policy, culture, and even public opinion.

The chief sources of polygamy in America, as I understand it, are likely to be Muslim immigrants and some Mormon sects. (These wouldn't be the only sources, but I suspect they'd be the main ones.) These are relatively socially insular. Few people outside the group are likely to have close friends who are polygamists.

What's more, these groups don't have a natural political home in the Left, because they tend to be highly socially conservative in many ways (setting aside polygamy itself, of course), and because they tend to be devoutly religious. I'm not saying that many people on the Left will deliberately refuse to endorse polygamy because they don't like the politics and religions of polygamists. But I doubt that many of the Left would be eager to go to bat politically for people with whom they have so little in common. And people on the Right aren't likely to back these groups, either, simply because most people on the Right are morally averse to polygamy.

Finally, it doesn't seem likely that polygamy will attract many ordinary people who are better integrated socially, and who do have natural allies on the Left or the Right. I suspect that few American women, for instance, would be that inclined to enter into polygynous (one man, many women) marriages. I suspect that even fewer American men would be inclined to enter into polyandrous (one woman, many men) marriages. I suspect that many American men who might want multiple sexual partners wouldn't be that inclined to actually marry, and in some measure have to support, multiple wives. (Men of course might marry women who are at the same income level as they are, but I suspect that those are the very women who would least want to enter into polygynous relationships.) ...

Now all this might change. I suspect that in 1965, many people doubted that the homosexual rights movement would ever get off the ground. Perhaps I'm missing some other political force that would be able to successfully push -- both in court and in legislatures -- for allowing polygamous marriages. (For instance, perhaps there'll be some massive influx of immigration of religious Muslims who are polygamous or at least culturally open to polygamy, though if the influx is huge enough, then that might lead to a legalization of polygamy whether or not same-sex marriages are legalized.)

But it still seems to me that, as a practical matter, even if same-sex marriage is legalized, we're unlikely to in fact slip down to allowing polygamy.

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posted by Eve at 3:51 AM | link 0 comments

SLIPPERY SLOP?: Eugene Volokh replies to Dahlia Lithwick

When we've had forty years of slipping, it becomes harder to condemn the slippery slope argument as patently unsound. Dahlia Lithwick does make some apt criticisms of some "today, gay marriage, tomorrow . . ." arguments; and, as blog readers know, I tentatively support same-sex marriage and suspect that it probably will not lead even to a recognition of polygamous marriages (though I don't have the confidence in this that Dahlia does). But some of her arguments strike me as not entirely persuasive. ...

So the Court has been willing to depart from the very core of Griswold's argument (the limitation to marriage) and from the express assurances by the concurrence that the decision in no way affects homosexuality. Why should we have any confidence that the Court--or lower courts or other influential bodies--will feel limited by Griswold's supposed stress on the inherent "binar[iness]" of "intimacy," something that is much less expressly dwelt on by the Griswold opinions? (To the extent the opinions suggest anything about the binariness of intimacy, that comes from their focus on the married couple--a focus that the Court has long abandoned, see Eisenstadt.)

The changes in sexual attitudes -- and in the law surrounding sex -- over the last 40 years are one long slippery slope. Some may think it's a slope to a good result, others to a bad result. But we have seen growing legalization and social normalization of contraception, premarital sex, abortion, and homosexuality, and a growing constitutionalization of such changes, so that communities where a majority still opposes those changes are nonetheless required to accept them. The legalization or constitutionalization of same-sex marriages would be yet another step.

It's conceivable, of course, that there is simply a temporal relationship here and not a causal one -- perhaps the first changes didn't help cause the subsequent ones, in which case we should worry less about the legalization or constitutionalization of same-sex marriage helping cause other things. It's also conceivable (perhaps even likely) that there are powerful political reasons why things will stop short of legalizing polygamous marriages.

But given this past history, the slippery slope arguments related to same-sex marriage aren't that easy to dismiss. And they're especially hard to dismiss by an appeal to the supposed inherent limits of Griswold, limits away from which we have already dramatically slipped.

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

SLIPPERY SLOP: Dahlia Lithwick

Anyone else bored to tears with the "slippery slope" arguments against gay marriage? Since few opponents of homosexual unions are brave enough to admit that gay weddings just freak them out, they hide behind the claim that it's an inexorable slide from legalizing gay marriage to having sex with penguins outside JC Penney's. The problem is it's virtually impossible to debate against a slippery slope. Before you know it you fall down, break your crown, and Rick Santorum comes tumbling after. ...

The real problem is that there are really only three arguments against gay marriage: One is rooted in entirely God's preferences--which have little bearing on Equal Protection or Due Process doctrine, as far as I can tell. The second cites inconclusive research on its negative effects on children. The backup is the slippery slope jeremiad, which seems to pass for a legal argument, at least on cable TV. But fear of the slippery slope alone is not a sufficient justification for doing the wrong thing in any individual case. In a superb dialogue on gay marriage in Slate, Andrew Sullivan, responding to David Frum, makes this point eloquently: "The precise challenge for morally serious people is to make rational distinctions between what is arbitrary and what is essential in important social institutions. ... If you want to argue that a lifetime of loving, faithful commitment between two women is equivalent to incest or child abuse, then please argue it. It would make for fascinating reading. But spare us this bizarre point that no new line can be drawn in access to marriage--or else everything is up for grabs and, before we know where we are, men will be marrying their dogs."

Now, slippery slopes are not to be sneezed at. Professor Eugene Volokh of UCLA law school has done some extremely serious thinking on the subject and, while he does not himself oppose gay marriage, he cautions that one ignores slippery slope effects at one's peril. But he also reminds us that slippery slopes are only metaphors. They are not intrinsic principles of law. Each step in the slope must be analyzed, critiqued, and evaluated on its merits. And that is happening only at the very margins of the gay marriage debate.

...Asking proponents of gay marriage to prove that these marriages won't be bad for kids or families is asking that they prove a negative. The law cannot know the long-term future social effects of legalizing gay marriage (Stanley Kurtz, who has quite fixed views on gay men and their philandering ways, notwithstanding). We can only determine whether it is fundamentally unfair to bar one whole class of citizens from a privilege constitutionally afforded the rest of us. ...

Bracket all the hysterical and irrelevant stops along the slippery slope (some of which are there only to trivialize homosexuality) and we are left to try to draw principled lines between gay marriage, in which no one is harmed, and adult incest, adultery, bigamy, or polyamory. This is where the debate should begin. Not at child molesting. My colleague Will Saletan has argued that there is in fact no principled reason for legally prohibiting sex between cousins and I am, I think, persuaded that he is correct. But one can plausibly argue that there is a rational basis for states to ban polygamous and polyamorous marriages in which there has been historical evidence of an imbalance of power, coercion (particularly of young girls), and an enormous financial burden placed on the state. None of these arguments can be made against gay marriage. And as my colleague Ann Hulbert has shown, the data about the effects of gay marriage on child rearing are too ambiguous to support any legal assertions about harm to children.

...But beyond just the policy differences between the two, there is also a legal bulwark between Justice Kennedy's reasoning in Lawrence v. Texas (and the Massachusetts decision in Goodridge v. Department of Public Health, which borrowed heavily from the reasoning of Lawrence) and the invasion of the polygamists: The right to sexual privacy Kennedy finds in the line of cases starting with Griswold v. Connecticut, the Connecticut birth-control case from 1965, is an intimate right, between two consenting partners. The court calls these "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." The desire of a group of seven people to marry simply does not intuitively fit into that binary sphere of intimacy.

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posted by Eve at 2:18 AM | link 0 comments

DIVORCE ANALOGIES: Gabriel Rosenberg replies to Eve replying to Gabriel...

[The first post in this sequence is here.]

Eve Tushnet responds with an additional difference and a dispute. Her difference is that divorce is not viewed as an ideal, whereas same-sex marriage is. I agree with this difference, but I see SSM as upholding marriage itself as an ideal. For it is allowing marriage over the alternative of cohabitation. I don't see it changing whom the ideal spouse is. For most Jewish mothers the ideal will still be a doctor.

She disputes the claim that divorce is a bigger change in definition, since many societies have had rules for divorce whereas viewing one's spouse without regards to gender is a late twentieth century innovation. I agree that the latter is more novel, but marriage has been progressing in that direction since the early nineteenth century. Which is a bigger change in definition depends on what specific change we are referring to. In general I'd say the exit requirements of marriage are more fundamental to its definition than the entrance requirements. As for the specifics I do see certain changes in divorce laws as greater alterations than the change from egalitarian marriage to allowing same-sex marriage. In regards to Jewish divorce, I would note that even that was rather a novel concept from my understanding. I don't believe other cultures at that time allowed a woman to remarry after divorce. (A man could of course remarry, but then a man could remarry even without a divorce). But much of this dispute I think comes down to what changes are "definitional" and what is a variation within that definition, a topic about which I hope to write soon.

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posted by Eve at 2:15 AM | link 0 comments

MARRIAGE IN SCANDINAVIA: Stanley Kurtz replies to M.V. Lee Badgett

...Badgett's claim that marriage in Scandinavia is pretty healthy right now is not credible. Whether on the left or right, demographers acknowledge that marriage in Scandinavia is on the way out. Badgett gives the same tired statistics that supposedly prove that Scandinavian marriage is going through a renaissance, completely ignoring my detailed critique of those figures. Badgett also overlooks a key element of my argument--that the practice of marrying after the first child is falling by the wayside and couples are increasingly not marrying after even second and third children. This is the core change that has taken place since gay marriage. The rate of out-of-wedlock births may have increased more rapidly prior to gay marriage, but those were first births, when the custom was still to marry sometime after the arrival of the first child. That was the "easy" part of the growth in the out-of-wedlock birthrate. What's happened since gay marriage is that couples are increasingly waiting till after two and three children have been born before marrying--or not marrying at all. That is a much deeper and more disturbing change. Comparing that to the earlier rise in what were essentially first child out-of-wedlock birthrates is comparing apples and oranges. There's more to be said here, but the main point is that the Netherlands example proves what Badgett denies--that when you bring gay marriage into a country where there had not previously been a high rate of parental cohabitation, the rate of out-of-wedlock births does in fact shoot up quite sharply. I'll have much more on the Netherlands soon.

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posted by Eve at 1:54 AM | link 0 comments

MARRIAGE IN SCANDINAVIA: Gabriel Rosenberg replies to M.V. Lee Badgett and Stanley Kurtz

...[Badgett's] analysis looks more closely at the demographic evidence, which is certainly important, but I think some of her most important points lie elsewhere, towards the end of the article.

First of all there are some key differences between the United States and Scandinavia. As she writes: "And all the conservative hand-wringing seems especially unnecessary when you consider the various incentives that encourage American heterosexual couples to marry. By marrying, U.S. couples obtain health-insurance coverage, pensions, and Social Security survivor benefits. Plus, in the United States we are required by law to be financially responsible for our spouses in bad times, since we don't have Scandinavian-style welfare programs to fall back on."

Whereas allowing same-sex couples to marry does not change any of these incentives, not allowing same-sex marriage has been causing a change. For example, because same-sex couples are excluded from marriage many private employers have started offering health coverage and pension benefits to unmarried partners. The number of such companies has been rising dramatically every year. These programs are generally also available to opposite sex couples as well (often because of legal concerns about discriminating against such couples). Without same-sex marriage these programs will continue to proliferate and the situation will become more like Scandinavia in this regard. ...

...In the political arena not allowing same-sex marriage must lead to a second debate over what should be done to protect same-sex couples and their children. If we are not going to have SSM, then what are we going to do? Domestic partnerships? If so, what should they look like? How should they be treated in another state? What should guide the courts in dealing with them? Should they be open to opposite-sex couples? I don't believe that a Constitutional Amendment is going to put gays back in the closet. One way or another this issue must be faced.

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posted by Eve at 1:51 AM | link 0 comments

MARRIAGE IN SCANDINAVIA: M.V. Lee Badgett replies to Stanley Kurtz

...Reports of the death of marriage in Scandinavia are greatly exaggerated; giving gay couples the right to wed did not lead to massive matrimonial flight by heterosexuals.

Currently there are nine European countries that give marital rights to gay couples. In Scandinavia, Denmark (1989), Norway (1993), Sweden (1994), and Iceland (1996) pioneered a separate-and-not-quite-equal status for same-sex couples called "registered partnership." (When they register, same-sex couples receive most of the financial and legal rights of marriage, other than the right to marry in a state church and the right to adopt children.) Since 2001, the Netherlands and Belgium have opened marriage to same-sex couples.

Despite what Kurtz might say, the apocalypse has not yet arrived. In fact, the numbers show that heterosexual marriage looks pretty healthy in Scandinavia, where same-sex couples have had rights the longest. In Denmark, for example, the marriage rate had been declining for a half-century but turned around in the early 1980s. After the 1989 passage of the registered-partner law, the marriage rate continued to climb; Danish heterosexual marriage rates are now the highest they've been since the early 1970's. And the most recent marriage rates in Sweden, Norway, and Iceland are all higher than the rates for the years before the partner laws were passed. Furthermore, in the 1990s, divorce rates in Scandinavia remained basically unchanged.

Of course, the good news about marriage rates is bad news for Kurtz's sky-is-falling argument. So, Kurtz instead focuses on the increasing tendency in Europe for couples to have children out of wedlock. Gay marriage, he argues, is a wedge that is prying marriage and parenthood apart.

The main evidence Kurtz points to is the increase in cohabitation rates among unmarried heterosexual couples and the increase in births to unmarried mothers. Roughly half of all children in Norway, Sweden, and Denmark are now born to unmarried parents. In Denmark, the number of cohabiting couples with children rose by 25 percent in the 1990s. From these statistics Kurtz concludes that "...married parenthood has become a minority phenomenon," and--surprise--he blames gay marriage.

But Kurtz's interpretation of the statistics is incorrect. Parenthood within marriage is still the norm--most cohabitating couples marry after they start having children. In Sweden, for instance, 70 percent of cohabiters wed after their first child is born. Indeed, in Scandinavia the majority of families with children are headed by married parents. In Denmark and Norway, roughly four out of five couples with children were married in 2003. In the Netherlands, a bit south of Scandinavia, 90 percent of heterosexual couples with kids are married.

Kurtz is also mistaken in maintaining that gay unions are to blame for changes in heterosexual marriage patterns. In truth, the shift occurred in the opposite direction: Changes in heterosexual marriage made the recognition of gay couples more likely. In my own recent study conducted in the Netherlands, I found that the nine countries with partnership laws had higher rates of unmarried cohabitation than other European and North American countries before passage of the partner-registration laws. In other words, high cohabitation rates came first, gay partnership laws followed.

A subtler version of Kurtz's argument states that the advent of registered partnership caused an increase in cohabitation rates and children born outside of marriage (nonmarital births). If that were true, then we would expect to see two patterns: Cohabitation rates and the nonmarital birth rate would rise more quickly within a country after it passed partner registration laws; and the rise in the nonmarital birth rate would be greater in countries that had such laws than in countries that do not recognize same-sex partnerships.

Kurtz's argument fails both tests. From 1970 to 1980, the Danish nonmarital birth rate tripled, from 11 percent to 33 percent. Over the next 10 years, it rose again to 46 percent and then stopped rising in 1990s after the passage of the 1989 partnership law. Norway's big surge occurred in the 1980's, with an increase from 16 percent to 39 percent. In the decade after Norway recognized same-sex couples (in 1993), the nonmarital birth rate first rose slightly, then, after a couple of years, leveled off at 50 percent.

Cohabitation rates tell a similar story. In Denmark, from 1980 to 1989, the number of unmarried, cohabiting couples with children rose by 70 percent, but the same figure rose by only 28 percent from 1989 to 2000—the decade after Denmark introduced its partner-registration laws—and then stopped rising. From 2000 to 2004, the number has increased by a barely perceptible 0.3 percent. The fact that rates of cohabitation and nonmarital births either slowed down or completely stopped rising after the passage of partnership laws shows that the laws had no effect on heterosexual behavior.

Furthermore, the change in nonmarital births was exactly the same in countries with partnership laws as it was in countries without. The eight countries that recognized registered partners at some point in the decade from 1989 to 2000 saw an increase in the average nonmarital birth rate from 36 percent in 1991 to 44 percent in 2000, an eight percentage point increase. Among the EU countries that didn't recognize partners (plus Switzerland), the average rate of nonmarital births rose from 15 percent to 23 percent—also an eight-point increase.

No matter how you slice the demographic data, rates of nonmarital births and cohabitation do not increase as a result of the passage of laws that give same-sex partners the right to registered partnership. To put it simply: Giving gay couples rights does not inexplicably cause heterosexuals to flee marriage, as Kurtz would have us believe. Looking at the long-term statistical trends, it seems clear that the changes in heterosexuals' marriage and parenting decisions would have occurred anyway, even in the absence of gay marriage.

And all the conservative hand-wringing seems especially unnecessary when you consider the various incentives that encourage American heterosexual couples to marry. By marrying, U.S. couples obtain health-insurance coverage, pensions, and Social Security survivor benefits. Plus, in the United States we are required by law to be financially responsible for our spouses in bad times, since we don't have Scandinavian-style welfare programs to fall back on.

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posted by Eve at 1:46 AM | link 0 comments

SSM AND FEDERALISM: Stanley Kurtz

Defiance of the law is rapidly becoming the leitmotif of the gay-marriage movement. It's not that gay-marriage supporters are generally less law-abiding than others. The root of the problem is that proponents of gay marriage see their cause as parallel to the civil-rights movement of the early 1960s. That analogy is badly flawed. But if you buy it, then it's perfectly alright to disobey the law in order to nationalize gay marriage.

This is why it's foolish to put faith in laws that supposedly prevent gay marriage in Massachusetts from spilling over into other states. When it comes to same-sex marriage, it barely matters how the law is written. Again and again, gay-marriage advocates have shown themselves eager to disobey any law that would prevent the spread of gay marriage from state to state. If you believe this process can be ended by anything short of a federal constitutional amendment, you are dreaming.

It took only a single day of legal gay marriage to reveal the worthlessness of assurances about this experiment's confinement to Massachusetts. Let's review the curious history of Chapter 207: Section 11, the provision of Massachusetts law that supposedly prevents the marriage of out-of-state residents whose marriages would not be legal in their home state.

When the Goodridge decision was handed down last November, Justice Greaney, who was in the majority, issued a concurring opinion containing the following claim:

"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 by the provision of G.L. c. 207, 11, 12, and 13."

That law states that if your marriage would not be valid in your home state (but would be valid in Massachusetts), you can't get married in Massachusetts without actually moving to Massachusetts. Justice Greaney is clearly assuming that this law is valid, and that it should and will be enforced by state officials.

That was in November of 2003. Three months later, journalist and gay-marriage advocate Andrew Sullivan touted the same law cited by Justice Greaney as proof that "federalism works." According to Sullivan, true conservatives--those who believe in states' rights--can see that there is no need for a Federal Marriage Amendment. The residency law will prevent same-sex marriages contracted in Massachusetts from being exported to other states. ...

A few weeks later, a group of Massachusetts state legislators announced an effort to repeal the residency law. That, at least, was an attempt to work through democratic and legal channels. But one of the reasons given by Representative Robert Spellane for repealing the residency requirement is telling. Spellane claimed that the law ought to go because it is discriminatory--and because it violates the Goodridge decision. So in just four months time, the residency requirement had morphed from something actually relied on in Goodridge to an outrageous piece of discrimination supposedly voided by Goodridge.

Next came the plans for civil disobedience. Why wait for liberal legislators to repeal the residency law when you can simply defy it? Town clerks in Provincetown, Worcester, and several other Massachusetts cities announced that they would issue marriage licenses to out-of-state couples. Then district attorneys in several localities said they would not prosecute clerks who violated the law. Norfolk County District Attorney William R. Keating said that because the original law was enacted in part to enforce prohibitions on interracial marriage, it was now effectively void. Keating made this claim, despite the fact that the original law was not about interracial marriage alone, and despite the fact that Goodridge itself actually relied upon the validity of the residency law.

And on the very first day that gay marriage was legal in Massachusetts, the residency law was in fact violated. In at least four communities, marriage licenses were issued to couples even if they said they had no intention of moving to Massachusetts. The mayor of Sommerville explicitly welcomed out-of-state couples. More than a third of applications in Provincetown were from out-of-state couples. Some made it clear on their applications that they had no intention of moving to Massachusetts. Others admitted later to the New York Times that they'd lied about their intentions. ...

Attorney General Spitzer's position is devious and contradictory. Spitzer acknowledges that same-sex marriages cannot be legally performed in New York. So under the Massachusetts residency law, the marriage of a same-sex couple from New York must be illegal in Massachusetts as well. But Spitzer suggested that Romney should marry same-sex couples from New York in Massachusetts (so that Spitzer can then recognize their marriages in New York). In effect, Spitzer is using Massachusetts marriages to make an end-run around his own state's laws. So with the connivance of New York State's own attorney general, same-sex marriage is in fact being "used as a tool" to obtain recognition of a marriage that would "otherwise be unlawful." (For more on Spitzer's strategy, see my "Courts vs. the People.")

In other words, the very thing that Justice Greaney assured us would not happen is in fact happening.

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posted by Eve at 12:48 AM | link 0 comments

KANSAS CITY STAR POINT/COUNTERPOINT ON DOMA

PRO--Sarah Steelman: Marriage is mankind's most enduring covenant. To protect this institution, I sponsored the Defense of Marriage Act to allow citizens to amend our state constitution to define marriage as a union only between one man and one woman.

The concept seems simple, but that's not so in government.

Missouri and other states define marriage as a union of one man and one woman in statutes. Yet courts are striking down these statutory definitions in states that lack a constitutional definition approved by the people themselves.

Based solely on California's failure to define marriage in its state constitution, a San Francisco judge refused to uphold that state's prohibition on same-sex marriage.

In another state that lacks a constitutional definition of marriage, Massachusetts judges are now required to perform same-sex marriages. The Massachusetts Supreme Court struck down that state's statutory gay marriage ban based on a civil-rights argument -- a precedent immediately denounced by recognized civil rights groups.

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ANTI--Star editorial: Democrats and Republicans in Missouri are squabbling over the timing of a statewide vote on banning gay marriages. That alone shows why the state legislature was wrong to place the constitutional amendment on the ballot.

Missouri law already states that marriage is between a man and a woman. The language of the proposed amendment is very similar to the wording of the existing statute. A public vote on gay marriage will serve only to divide citizens when unity is needed to tackle common problems.

The controversy over the election date illustrates the effectiveness of gay marriage as a wedge issue. Democratic Gov. Bob Holden ordered the question to be on the Aug. 3 ballot. Republicans, including Secretary of State Matt Blunt, want the referendum in November, at the same time Missouri voters elect a governor and president. Blunt, the state's chief election official, has refused to follow the governor's order.

The GOP strategy is transparent: Whipping up fears about gay marriage would mean a bigger conservative turnout, which would benefit George Bush's presidential campaign and Republican ambitions to elect Blunt governor. ...

In addition, Missouri has more pressing problems that the legislature should spend its time on -- issues such as education, health care, Medicaid, prescription help for seniors and improving the state's highways. Those issues affect larger numbers of Missourians.

The state constitution should protect the rights of citizens, not expressly deny rights to any minority group. Unlike a statute, which can be changed to reflect shifts in public thinking, an amendment would be inflexible. The legislature was wrong to put it to a referendum. Voters should protect the constitution by turning down an unnecessary alteration -- whenever the election is.

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posted by Eve at 12:43 AM | link 0 comments

WILL "I DO"S END THE SSM DEBATE?: From the Christian Science Monitor

...For gays and lesbians across Massachusetts, this dawning of official state recognition of their relationships has produced a week of sheer euphoria. Amid the streamers and confetti, the flowers and well-wishers, it is almost possible to overlook the fact that the status of gay marriage in the state will not be fully settled until voters cast ballots in 2006. It also remains to be seen whether the Massachusetts law will have the domino effect gay-rights advocates hope it will, or whether it will harden resistance of opponents and stir a major backlash.

If US history is any guide, either scenario is possible. History shows that big legal milestones in social movements--from voting rights to interracial marriage to school desegregation to women's rights--often engender resistance, sometimes violent resistance, when they are first enacted. But over time, they do tend to shift the status quo in favor of the minority group, and so, many social historians predict that gay marriage is here to stay.

Legalization of same-sex marriage is a defining moment, and regarded as such by the gay community. But legal experts and activists are thinking beyond the present euphoria to possible ramifications.

Looking back at social movements such as feminism and civil rights, whose progress has been more like the tortoise than the hare, Cheryl Jacques, president of Human Rights Coalition, a gay rights advocacy group, emphasizes the need for time and patience.

"Fifty years after Brown [v. Board of Education], we are still grappling with equal treatment in its true meaning for African-Americans," she says. "Racism didn't go away just because the laws changed, and homophobia won't go away just because the laws change. But it's an important place to start."

Steven Mintz, a professor of history at the University of Houston, cites the legalization of interracial marriage in 1967 as another example of how once-controversial social issues can gain public acceptance.

"To most of my students, it is just inconceivable that there was ever a time when interracial marriages were forbidden," Professor Mintz says. "My suspicion is that in 25 years, gay marriage will be viewed as one of those fundamental turning points in much the same way." ...

Stephanie Coontz, a historian at Evergreen State College in Olympia, Wash., views same-sex marriage as part of a dramatic redefinition of marriage over the past 30 years that affects both heterosexuals and homosexuals.

She calls this shift, which has taken place over the past 30 years, "only one symptom of a new openness of society to a whole set of untraditional ways of living your life and organizing your obligations to others."

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posted by Eve at 12:31 AM | link 0 comments

FRANCE FEUDS OVER GAY VOWS: From the New York Times

...After all, the French were the inventors of the Civil Solidarity Pact, a creative legal mechanism introduced in 1999 that gives all adult couples -- regardless of gender or sexual orientation -- many of the same fiscal and social rights as those who are formally wedded.

But that was before Noel Mamere, the leader of France's tiny leftist Green Party and a member of Parliament, announced last month that he would defy tradition (and some would say the law) by officiating at the country's first gay wedding ceremony.

Like many French politicians, Mr. Mamère holds multiple offices. So he is using his perch as mayor of an obscure southwest town named Begles to conduct his social experiment, joining two thirty-something men, a supermarket clerk and a health-care worker, in marriage on June 5.

"France is a hypocritical country," said Mr. Mamère in explaining his decision. "Marriage here is traditionally considered a Judeo-Christian value, a very strong symbol organized around heterosexuality. For many, the validity of marriage is procreation. It's an extremely archaic vision in my opinion, an idea encased in glass. The Americans are much more advanced in the fight against discrimination despite their puritanical and their slightly Protestant bent."

Mr. Mamere argues that nothing in the Napoleonic Code, the vast compilation of civil laws that has governed since 1804, specifies that marriage has to be between a man and a woman. He has also threatened to take any challenge of his action to the European Court of Human Rights, a European Union court based in Strasbourg.

His crusade has enraged the center-right French government, riven the Socialist Party and touched off a fierce intellectual battle in newspaper opinion columns and television talk shows over the rights of homosexuals in France. ...

Justice Minister Dominique Perben has served notice that Mr. Mamere's gay marriage will be null and void in the eyes of the French state. "To argue that sexual difference between spouses is not written into the civil code is to lie," Mr. Perben told the right-leaning daily Le Figaro. ...

Today, for the majority of the French, even homosexual marriage is no big deal. According to a poll released this week by the Ipsos polling agency, 57 percent of all Frenchmen and 75 percent of those under 35 believe that gay couples should be allowed to marry. That compares with only 24 percent in the United States, other polls show.

Still, France is more conservative than much of the rest of Europe, far behind Denmark (82 percent) and the Netherlands (80 percent), for example, as well as Luxembourg, Sweden, Spain, Belgium. Norway, Switzerland and Germany.

The Civil Solidarity Pact initative gives couples housing rights, health and welfare benefits, the right to file a joint tax return and to inheritance.

But proponents of gay marriage insist that it is marriage-lite, an unsatisfying compromise that does not go far enough. It does not allow couples to adopt children, for example. Couples have to wait three years before they can file joint tax returns. It is sometimes difficult for a non-French partner in a civil pact to receive a residence permit or French citizenship, especially for foreigners from places like North Africa.

Lynne Petrovic, a 38-year-old American therapist, and Ségolène Rubin, a 36-year-old Frenchwoman, were joined by a civil solidary pact at the French consulate in San Francisco in 2001 and married on Valentine's Day at San Francisco's city hall. But they want to be married under French law largely so that they can share custody over Ms. Rubin's biological son.

"It's not gay marriage in the end that worries the French," says Ms. Rubin. "It's homosexuals raising kids." But, she adds: "We're not militants. We're talking about a little family unit. It's our reality."

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posted by Eve at 12:27 AM | link 0 comments

SUPREME COURT OF CALIFORNIA WEB PAGE DEDICATED TO SAN FRANCISCO SAME-SEX MARRIAGE CASES...

...here.

View briefs in the case here.
posted by Eve at 12:20 AM | link 0 comments

OPPOSING BILLS IN MAINE: From the Portland Press Herald, Thursday

Same-sex marriage could emerge as a key post-election issue in Maine next year.

State lawmakers apparently will take up competing bills supporting and opposing same-sex marriage when they return to the State House in January.

One day after a Republican lawmaker announced a push to strengthen the state's existing ban on such marriages, a Democratic legislator said Wednesday that he will ask the Legislature to lift the ban.

Sen. Ethan Strimling, D-Portland, said he has put legislative staffers on notice that he will introduce legislation, if he is re-elected, to repeal the prohibition so Maine can recognize same-sex marriages that are performed elsewhere.

Strimling announced his plans a day after Rep. Brian Duprey, R-Hampden, said that if he wins another term he will propose a constitutional amendment to prohibit same-sex marriages in Maine. The existing ban is in state law, rather than the Constitution. The ban has been on the books since 1997.

Both lawmakers, who face opposition in their re-election bids, say they decided to act now because city and town clerks in Massachusetts began licensing same-sex marriages this week under a ruling by that state's Supreme Judicial Court.

Strimling's Republican opponent, Robert Fisk Jr. of Portland, has taken no position on the issue. Duprey's Democratic opponent, Mary Poulin of Hampden, says other issues are higher priorities in Maine. ...

Strimling said his goal is to lift the ban so same-sex couples from Maine who marry elsewhere, as well as married same-sex couples who move to Maine, will be treated as legally married here.

He said he would support making it legal for same-sex couples to marry in Maine, but his legislation will not go that far because he's not certain if that issue should be addressed by the Legislature or the courts.

The reaction to Strimling's move was not entirely predictable. That's because supporters of gay rights are not united behind him.

Some, such as Democratic Gov. John Baldacci, say the state should first pass a civil-rights law banning discrimination based on sexual orientation and allow events in Massachusetts and elsewhere to unfold before tackling the repeal of this state's ban on same-sex marriages. ...

Umphrey said Baldacci will introduce a gay-rights bill in the 2005 legislative session, resurrecting a contentious issue. The Legislature backed a gay-rights bill in 1998 and again in 2000, but voters rejected it both times and the issue has not resurfaced since. ...

Supporters of Duprey's marriage ban say the fact that Strimling is trying to lift the statutory ban shows that action is needed to make that ban tougher by placing it in the Constitution, which is harder to change than is a state law.

The Legislature can repeal any state law, but the Legislature and the voters must agree on any changes in the Constitution.

Duprey "is not operating under some kind of false concern," said Marc Mutty of the Roman Catholic Diocese of Portland, because Strimling has made it clear that an effort will be made next year to have Maine recognize same-sex marriages that are performed elsewhere.

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posted by Eve at 12:17 AM | link 0 comments

MASS. SENATE VOTES TO REPEAL LAW ON OUT-OF-STATE MARRIAGES: From the Washington Times on Thursday

The Massachusetts state Senate yesterday voted overwhelmingly to repeal the 1913 law that Gov. Mitt Romney says forbids out-of-state homosexual couples from "marrying" in Massachusetts.

The repeal was approved 28-3 as part of the Senate version of the state budget. To take effect, however, the repeal must pass the more conservative House and then both chambers would have to override the veto that Mr. Romney has promised. ...

As lawyers scoured Massachusetts' marriage laws in light of Goodridge, questions soon arose about a 1913 residency law, which says: "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."

Mr. Romney and Massachusetts Attorney General Tom Reilly both say the law forbids out-of-state homosexuals from getting a marriage license in Massachusetts because no other state recognizes same-sex "marriage."

Mr. Romney also has said that licenses issued to out-of-state homosexual couples will be annulled and that legal action might be taken against officials who issued them.

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posted by Eve at 12:14 AM | link 0 comments

BLACK GAY ACTIVISTS RALLY FOR SSM: From the Chicago Tribune

At 12 years old, Desiree Jones isn't afraid to stand up for her family.

The 6th-grader and her five younger siblings held up a banner reading "Our Moms R People Too! Gay Marriage Now!" on Thursday at a black gay rights activists rally in support of same-sex marriages held outside the Cook County building, 118 N. Clark St.

Desiree said she doesn't understand why some people want to keep her mothers, who have been together four years, from getting married.

"It makes me sad that they can't get married like they want to," Desiree said. "I just want people to know it's our life, and we should be able to live the way we want to."

The dozen or so black gay rights activists who showed up at the rally scolded black pastors who have spoken out against gays having the right to marry.

"Just because Bishop [Larry] Trotter, Rev. [James] Meeks and other black preachers believe that gay folks are second-class citizens in their churches, it does not mean that they can make us second-class citizens in this city, state or country," said Rev. Karen Hutt, pastor of Church of the Open Door/United Church of Christ. ...

Hutt, who displayed photos of gay couples' civil union ceremonies performed at her church, said a large number of gay couples are already in married relationships, even if they aren't recognized by the government. She said the couples are contributing members of communities throughout Chicago. ...

Paul Robeson Ford, a heterosexual University of Chicago graduate student who supports gay rights, said the black church shouldn't discourage gays from forming stable, healthy families.

"For too long now the black church has ignored the gay community as if it didn't exist," he said.

Desiree's mother, LaKeesha Harris, 29, said she wished the government would recognize her and her partner's commitment to each other and the family they've built.

"It poses such a huge financial burden for us," she said. "We have jobs. We have a regular family, and we just want to be treated as such."

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posted by Eve at 11:35 PM | link 0 comments

SCHOOLS EXAMINE LESSONS OF MASS. SSM: From the Associated Press

...Massachusetts schools have long broken ground in the area of gay rights.

Cambridge Rindge and Latin School became the first public high school in the Northeast to create a gay-straight student alliance more than 15 years ago. Today, there's one in nearly every district. And the state Department of Education has long provided grants to teach acceptance of gay, lesbian, and bisexual students.

"Schools have been way ahead of everyone else," said Paul Schlictman, president of the Massachusetts Association of School Committees. "We've always had gay parents. The only thing that's changed is their legal status."

Whether textbooks or lesson plans will change to reflect the events of the past week remains to be seen. Until the state's highest court ruled in November that same-sex marriage should be legal, effective Monday, the issue was abstract.

Now, it's a reality. In a history class at Newton South this week, teacher Michael Kozuch raised gay marriage as part of a discussion of the cultural differences between nations. ...

"Marriage isn't about kids," a boy added. "It's about two people who love each other."

Another girl recalled that in "Romeo and Julius"--a Shakespeare parody she and other classmates performed recently--the unmarried couple had no hospital visitation rights, one of the benefits married gay couples now enjoy in Massachusetts.

Outside liberal bastions like Newton and Cambridge, however, the discussion is decidedly different.

Michael Barth, a 30-year-old psychology and history teacher at Melrose High School, 10 miles north of Boston, said it's more common for his students to favor traditional marriage. Gay marriage comes up "all the time" in lessons on the history of discrimination, he said. ...

For now, gay marriage discussion in the classroom depends on who's teaching.

Barth said he's heard no directives from his superiors in Melrose on how to handle the issue. Schlictman, of the school committee association, said there's been "no chatter" among school boards around the state, and the Department of Education is staying out of it.

"We don't tell schools what they can and can't teach," DOE spokeswoman Heidi Perlman said. "The only guidance we give is if it's going to be discussed, it needs to be done in an education setting, not in a way that teachers are lobbying one way or another."

Supporters of traditional marriage say they're concerned that pro-gay marriage teachers will push their views on students. Ray Flynn, the former U.S. ambassador to the Vatican and Boston mayor turned Catholic activist, is among them. ...

The issue should be discussed in classrooms as part of current events, he said, but not alongside the civil rights struggle for blacks.

"To be politically correct, people will be incorporating this in history books, as if it was civil rights," Flynn said.

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posted by Eve at 11:31 PM | link 0 comments

MASS. ATTY. GENERAL SAYS HE'LL ENFORCE LAW AGAINST REBELLIOUS CLERKS: From the Associated Press

Attorney General Thomas Reilly said Friday that his office has contacted four rebellious clerks and instructed them to stop issuing marriage licenses to out-of-state gay couples, agreeing to a request from Gov. Mitt Romney.

Officials in Provincetown, Somerville, Springfield, and Worcester have openly defied Romney's edict forbidding clerks from marrying out-of-state couples. ...

Reilly declined to say what enforcement action he would take, but said he hoped that it would not be necessary.

"We expect the clerks to respect the law," he said.

Springfield clerk William Metzger said Thursday that he would stop issuing licenses if Reilly, the state's chief law enforcement officer, agreed with Romney's interpretation of the 1913 law.

Officials in Provincetown, Somerville and Worcester did not immediately return calls Friday seeking comment on whether Reilly's request for compliance would sway them to stop issuing licenses. ...

Reilly had previously said only residents of the 39 states that have passed Defense of Marriage Acts would be forbidden from marrying in Massachusetts.

On Friday, however, he agreed with Romney's interpretation that the 1913 law bars all out-of-state unions.

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posted by Eve at 11:27 PM | link 0 comments

MASS. GOVERNOR WANTS ATTY. GENERAL TO PROBE OUT-OF-STATE SSM: From the Boston Herald

Gov. Mitt Romney is moving, as promised, to prevent out-of-state gays from marrying in Massachusetts.

He's asking Attorney General Thomas F. Reilly to investigate 10 cases where local clerks allowed same-sex couples from other states to apply for marriage licenses.

Coming fast on the historic onset of gay marriage last Monday, Romney's crackdown is in response to public defiance by Provincetown, Somerville, Worcester and Springfield, which ignored his orders to refuse licenses to such couples. ...

The governor said the applications identified as illegal would not be recorded at the Registry of Vital Statistics.

Romney has insisted on enforcement of a 1913 law that bans people from marrying here if it would not be legal in their home states.

The targeted couples are from Connecticut, New York, Rhode Island, Maine, Vermont, New Jersey, California and Ohio--and said so on their applications. None returned messages yesterday. ...

Gay activists threatened a legal challenge.

"(Romney) keeps acting more and more like not just a religious zealot, but a big brother religious zealot," said lobbyist Arline Isaacson. ...

Springfield Clerk William Metzger said he would feel "bound" to stop issuing licenses to out-of-state couples if Reilly insists.

But, Somerville Mayor Joseph Curtatone pursued open defiance--saying his lawyers would fight any cease-and-desist order. ...

Provincetown officials said they expected to follow suit. Worcester officials did not return calls.

Romney said he did not expect Reilly to take "punitive" actions against the couples--only "corrective" measures against clerks.

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

SORRY FOR POSTLESSNESS--I was and am on the road. We will return to full and timely coverage on Monday. --Eve
posted by Eve at 11:18 PM | link 0 comments

CATHOLIC SCHOOLS STUDYING GAY UNIONS: From the Boston Globe

[Awkward headline--they mean that Catholic colleges are trying to figure out how SSM will affect them, not that Catholic elementary and secondary schoolchildren will be studying SSM as part of the curriculum. --Eve]

With a landmark court ruling allowing same-sex marriage set to take effect tomorrow, officials at area Catholic colleges say that while the ruling conflicts with church teachings, they are prepared to follow it.

"Right now, Regis policy provides that anyone who is married gets health benefits for themselves and their dependents," said Marjorie Arons-Barron, a spokeswoman for Regis College. "The college is studying the implications of the pending gay marriage law." ...

"From my point of view, I see same-sex marriage as a step in a long historical development," [Regis College sociology professor Alex Liazos] said. "Which is not to say it's not a momentous change. It is. But basically the history of marriage is that it's always changing."

Avila, associate director for policy and research for the Catholic Conference, said same-sex weddings raise questions about what gender and marriage mean.

He said he appreciated the tough questions he got from Regis students at the forum, which reinforced why the school was a good venue for such a discussion.

"What I see in this debate is a process by which we're coming to grips with, Does it mean anything to be a man or a woman? What would we be losing if marriage becomes an institution indifferent to the presence of both sexes?" Avila said.

Jack Dunn, a spokesman for Boston College, said that although the church opposes same-sex marriage, the university plans to abide by the law. He also said he "couldn't speculate" on how the college might handle a request from gay or lesbian graduates who might want to marry in one of the Catholic chapels on the campus of their alma mater.

"As a Catholic university, we are committed to upholding church teaching. However, the court's ruling makes it clear that all institutions are expected to abide by the new law effective May 17," he said. "The SJC decision does not provide exemptions for religious institutions. As a result, we expect to comply with the court ruling regarding same-sex marriage benefits." ...

Boston College law professor Scott FitzGibbon said that while he could not speak for the law school or the university, student housing is one area of potential concern.

"It seems to me that one acute area of potential moral conflict for a Catholic university would arise if it was asked or pressured to provide married student housing for gay couples," he wrote in an e-mail. "It seems to me that no Catholic university should do such a thing."

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

GAY, LESBIAN, AND STRAIGHT EDUCATORS' NETWORK CURRICULUM GUIDE ON SSM

Interesting stuff. Certainly relevant to the discussion of how SSM will change what schools teach about marriage. (You can read reports from the Institute on American Values on high-school textbooks' approach to marriage and "relationships education" here and here. They're totally fascinating.)
posted by Eve at 3:25 PM | link 0 comments

NEW QUESTION: LOOKING TOWARD THE FUTURE

Let's talk about what comes next. What's the next step for opponents of same-sex marriage? For supporters? Are there ideas and proposals out there that deserve a broader hearing? Let's brainstorm here.

Will Massachusetts be a "test case" for a federalist experiment with same-sex marriage? Should it be? In five years, or ten, how will the marriage debate look?

And, most of all, what will marriage be in Massachusetts in five years? In ten? How will our marriage culture change (for better, or for worse) in response to Monday's events?

Click below to join the debate!
posted by Eve at 3:09 PM | link 0 comments

THINGS TO DO IN D.C.: Marriage Law Project conference tomorrow!

Below is information regarding a special program being held at The Catholic University of America tomorrow, May 20, 2004, from 9:00am - 5:00pm. at the Edward J. Pryzbyla Center on CUA campus--located behind the Law School building.

The program is free and open to the public......Applications for 7 hours of CLE credit have been submitted to Virginia, Ohio and Utah....(Upon payment of $100.00 processing fee, attendees needing CLE credit will receive a certificate of attendance.)....For additional information, please contact Margaret Nell at (202) 319-6215.
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May 20, 2004

The Interjurisdictional Implications of Lawrence and Goodridge

Are the States Obligated to Recognize Foreign Same-Sex "Marriages"?

Is the "Defense of Marriage Act" Constitutional?

Co-Sponsors:

The Marriage Law Project of the Columbus School of Law, The Catholic University of America

Creighton University Law School

J. Reuben Clark Law School, Brigham Young University


9:00-10:40 a.m. Panel 1: State and Federal Issues

Lincoln C. Oliphant, The Catholic University of America, Moderator

Bill Duncan, Brigham Young University: "Revisiting State Marriage Recognition Provisions"

Bill Casto, Texas Tech University: "Our Unwritten--'Ancient'--Constitution and Proposals for a Same-Sex Marriage Amendment"

Julie Greenberg, Thomas Jefferson School of Law: "Transgender, Transsexuals and Same-Sex Marriage"

John Eastman, Chapman University: "Full Faith and Republican Guarantees: Gay Marriage, DOMA, and the Courts"

10:40-10:50 Break

10:50-12:30 Panel 2: Choice of Law

Joshua Baker, Institute for Marriage and Public Policy, Moderator

Jeffrey Rensberger, South Texas College of Law: "Federalism, Uniformity, and Same-Sex Marriage: The Case for a Pluralism of Communities"

Larry Ribstein, University of Illinois: "A Standard Form Approach to Marriage"

Stanley Cox, New England School of Law: "Revisiting DOMA and Conflicts of Law Principles"

Brian Bix, University of Minnesota: "State Interests in Marriage, Interstate Recognition, and Choice of Law"

12:30-1:10 Lunch

1:10-1:30

Patrick Borchers, Creighton University: "The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate"

1:30-3:10 Panel 3: The Constitutionality of DOMA

Helen Alvaré, The Catholic University of America, Moderator

Lynn Wardle, Brigham Young University: "Judgments, the Public Policy Exception, and DOMA"

Mark Strasser, Capital University: "DOMA's Constitutionality in Light of Moreno and Lawrence"

Mark D. Rosen, Chicago-Kent College of Law, "Why the DOMA is Still Constitutional: Lawrence, Goodridge, and Constitutional Culture"

Robert A. Destro, The Catholic University of America: "Federalism, Full Faith and Credit, and the Constitutionality of DOMA"

3:10-3:20 Break

3:20-5:00 Panel 4: Full Faith and Credit

Richard Myers, Ave Maria Law School, Moderator

Lynn Hogue, Georgia State University: "State Law Issues Regarding the Recognition of Out-of-State Marriages: A Contemporary Reassessment of the 'Public Policy' Doctrine"

Ralph Whitten, Creighton University: "Full Faith and Credit for Dummies"

John Culhane, Widener Law School: "Writing On, Around, and Over Lawrence v. Texas."

Emily Sack, Roger Williams University: "The Retreat from DOMA: The Public Policy of Same-Sex Marriage and a Theory of Congressional Power Under the Full Faith and Credit Clause"

Earl Maltz, Rutgers University: "Same Sex Marriage and the Politicization of Conflicts Scholarship: Larry Kramer and the Full Faith and Credit Clause."
posted by Eve at 3:07 PM | link 0 comments

SSM, NONTRADITIONAL FAMILIES, AND POLYGAMY: R.K. Becker

From the AP article posted here:

"'In most of these decisions, the court has delivered a consistent message, and that is that the definition of the family is changing and the idea of the nuclear family is no longer the rock-solid norm," said David Yas, an attorney and editor of Massachusetts Lawyers Weekly. "The court has seemed to go out of its way to recognize that nontraditional families deserve the same recognition as traditional families.'"

That is certainly true. While the exact legal arguments given may relate specifically to the issue of same-sex marriage, the "penumbra," if you will, is that it is not sufficient to appeal to tradition in arguing why such marriages--or any other nontraditional marriages--should not be recognized.

Many have made interesting legal arguments as to why they believe the pro-SSM ruling in Goodridge (or any similarly reasoned rulings which may come from other states) will be of no precedent value for any future litigants hoping to overturn a ban on polygamy. And while that may or may not be true in regard to the specific legal arguments, I don't think it is true of the overall penumbra, which is what will really count in the future.

I don't doubt that for at least five years or so after SSM becomes widespread in America, lawsuits to overturn anti-polygamy laws will be unsuccessful, if only to prevent SSM opponents from saying "I told you so" while they have any hope of turning the tide. But this will not last once SSM opponents are relegated to political irrelevance.

Two scenarios by which I can see the argument for polygamy taking root, both relating directly to the arguments that were used in the SSM debate:

1. One argument often given for SSM is that its denial relegates gays to live in a situation where they can never have the only type of marriage that could truly be meaningful to them in the same way that opposite-sex marriage is to straights. This is related, of course, to the premise that gays cannot change or find satisfaction in an opposite-sex marriage (which I won't dispute here).

But where does this leave bisexuals? Can it not be argued that they likewise can never be truly satisfied in a marriage that limited them to only one gender, because they need sex with both to be happy in life? Even though the vast majority of bisexuals would not feel this way, I think there would at least be a small minority (especially among those whose attraction to each gender was almost equal) who might well argue, down the line, that limiting them for life to a marriage with only one gender was untrue to their natures and an obstacle to their happiness. It wouldn't matter if most bisexuals disagreed; it would only take a small number to get the argument moving throughout the country. Similarly, many proponents of "polyamory" already argue that they feel stifled and unfulfilled in monogamous relationships--they've tried monogamy, and it may be right for most people, but, they argue, it's horribly unsatisfying to a minority. And after a while will this be any less persuasive to the public than the arguments for SSM?

2. A favorite technique of SSM proponents in this debate has been to take traditionalist positions and turn them to use against SSM opponents. The most common example, of course, is to take note of the traditionalist's position that those having sex (and particularly raising families) should not be unmarried, and then accuse them of hypocrisy for wanting to keep gays unmarried even when they are together and raising children.

Now let's take a same-sex marriage; in this instance, between two women. They have a child. The child knows who his father is, and both women have a close relationship with the father as well (whether sexual or not may not matter). They want the man included in their marriage, so that the child can have his father as part of his family. To traditionalists who object, supporters of the idea will note that one of the arguments these same traditionalists used against SSM a few years ago was that children needed both fathers and mothers. Well, now, here they are, arguing that this child should not have a father in his family! Oh, the hypocrisy! Or so it will be portrayed. Will this argument be any less effective with the public than the above argument for SSM?
posted by Eve at 2:54 PM | link 0 comments

DISESTABLISH MARRIAGE?: Eve replies to Ryan Janus and Joel Bruhn

I think many Christian conservatives sympathize with Ryan and Joel's posts. Let me try to lay out some of the reasons I disagree with them.

First, marriage is a natural reality as well as (I believe as a Christian) a sacred reality. That's why societies long before the birth of Christ, societies that had never heard the Gospel and never met a Jew, have always had marriage.

Second, there are a host of compelling reasons for societies to honor and codify marriage, without reference to religion. Marriage binds families together, protects children, ties fathers and children together, etc. etc. It is perhaps easiest to see this social role of marriage in its absence--in the devastated communities that make up "fatherless America." All the ways marriage strengthens families and society would still be true in societies without a single Christian. It's a matter of justice, I think--doing what is best for children, among the most vulnerable members of society--to uphold marriage.

Third, it really does matter whether other people can tell that you're married! Just a few ways--this could really be an almost infinite list: i) You are tempted to leave your spouse. You know it's wrong, but people do wrong stuff all the time. Does your culture (laws, expectations, cultural messages) make doing the right thing easier or harder?
ii) Your children's beliefs are strongly colored by cultural messages about sex, marriage, adultery, and divorce. In order for those messages to make sense, there must be some sense of who is actually married and who is not. (Obviously, in a culture as divided as ours, these messages will always be mixed. But that's no reason to think that the division between your beliefs and the prevailing messages of the culture doesn't matter.)
iii) Your child is in public school or secular private school. What is she learning about marriage? What are her potential future spouses learning?
iv) You want to place a child for adoption. Will the adoption agency attempt to place your child with a married couple? How will it know which couples are married?

Fourth, I think the fond hope that "disestablishment" will let us all stop talking about same-sex marriage and homosexuality and other topics that make many people uncomfortable is wishful thinking. I don't think we get to avoid this debate; and so there's no advantage in ceding the field.

Finally (sorry this is longer than I intended), there seems to be a kind of doomy glamour associated with lost causes. Conservatives love them. I'm not sure why. I don't mean that Ryan and Joel take the position they do because of this glamour, but I do think it's one reason their position is attractive to so many Christian conservatives. We like to think of ourselves as the remnant, the Last Homely House, etc. And this tendency often causes us to declare causes lost when they're just not. As I wrote here, "This is a genuine clash of worldviews, not a rout by one and surrender by the other." The game ain't over so you don't need to take your marbles and go home....
posted by Eve at 2:18 PM | link 0 comments

DISESTABLISH MARRIAGE?: Ryan Janus

[Ryan Janus is a college music professor in southwestern Michigan.]

Just a quick comment--I know a very simple way to know that I'm married. My wife and I were married in the eyes of God. Of course, I could never prove that, in the emperical sense, to anyone else. But, I really don't need to. It doesn't matter to me if people believe I'm married--I know I am.

I know many Christians are up in arms about the SSM issue, but in the long run, it really won't matter, because all we need to worry about is what God recognizes. From God's point of view, there's no debate over whether SSM is right or wrong--it's neither, because it simply doesn't exist. Marriage is defined in the bible as the union between a man and a woman. That's how Christians marry. Let the rest of the world "marry" how they will.
posted by Eve at 2:16 PM | link 0 comments

DOES GAY MARRIAGE LEAD TO HIGHER ABORTION RATES?: Barry Deutsch replies to Justin Katz

[If you follow the link at the bottom of this post, you'll find a brief discussion of the data between Deutsch and Katz.]

On his own blog and reprinted on Marriage Debate, Justin Katz suggests that gay-friendly laws are associated with high abortion rates:

"Countries that are further along in the liberalization of family structure provide evidence of the folly of its pursuit. In Sweden and Norway, for example, children are more likely to be born out of wedlock than within. Sweden's abortion rate is higher than that of the United States, and ours is dropping while theirs climbs."

Justin doesn't give his source, so perhaps I'm missing something. But as far as I can tell the USA only has a lower abortion rate than Sweden's using the CDC's numbers, which undercount abortions significantly. The Alan Guttmacher Institute (which surveys abortion providers directly, for a more accurate count) reports that the USA had an abortion rate of 21 abortions per 1,000 women aged 15-44 in 2000. In contrast, Sweden's abortion rate in 1999 was 18 abortions per 1,000 women aged 15-44.

So unless we use a statistical source known for undercounting US abortions, Sweden has a lower abortion rate than the USA.

Even if Justin were correct about Sweden (perhaps he has a more recent data source that I don't know about), that would only make Sweden the exception to the rule. The Netherlands--which are also very gay-friendly--has the lowest abortion rate of any country in the world (6.5 per 1,000)--much, much lower than in the USA. Belgium has extremely pro-gay laws and an abortion rate nearly as low as The Netherlands (6.8 per 1,000). The other countries in the world with gay-marriage or marriage-lite laws--Germany (7.6), Denmark (16.1), Norway (15.6), France (12.4), and Canada (15.5)--all have significantly lower abortion rates than the USA (and also lower than most countries in the world).

Meanwhile, Eastern Europe--the least gay-friendly place in the developed world--has an incredibly high abortion rate: 90 abortions per 1,000 women age 15-44. Overall, it's clear that gay-friendly countries have fewer abortions.

Of course, correlation is not causation; it seems unlikely that gay-friendly laws cause lower abortion rates. My theory is that more sexually liberal attitudes are associated with both gay-friendly laws and widespread use of contraceptives, which would account for the correlation. (A relatively generous safety net for unwed mothers probably also lowers demand for abortion in Belgium, Germany, France and the Netherlands.)

It's also notable that in recent years, as the laws in the USA have become significantly more gay-friendly, abortion rates here have declined.

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

DIVORCE ANALOGIES: Eve replies to Gabriel Rosenberg

Gabriel makes several good points about the differences between instituting no-fault divorce and instituting same-sex marriage. For the moment I have one additional difference to note, and one point to dispute.

Difference: No-fault divorce, and divorce laws generally, are viewed by society as response to marriage failure. I definitely agree that divorce laws, and changes to those laws, shape how we view marriage, and can make marriage easier or harder. But it is worth pointing out that no one views no-fault divorce as the ideal--its supporters view it as making the best of a bad situation. Supporters of SSM, by contrast, do want to change the ideal of marriage, by making it gender-neutral; SSM is not being presented as "second-best" or "oh, look, some people have to, it's tragic but necessary." So in that respect the change SSM represents is far deeper.

Dispute: Gabriel writes, "Later in the forum (1:11:20) Wood was asked whether she would support an amendment for a uniform national policy on divorce. She said no, because divorce did not alter the definition of marriage. I disagree. Whether marriage is a lifetime commitment, or just a temporary arrangement seems to me to be a much bigger difference in the definition of marriage than viewing one's spouse as a human being without reference to gender."

But this is ahistorical. Many, many societies that get to the point of having cities and codified laws have provisions for divorce. (I find it odd that Gabriel, as a practicing Jew, believes that divorce is a greater alteration than SSM--I mean, debates about whether and how to procure a get are all over the Jewish world.) Thus these societies' understandings of marriage had divorce built in; Catholicism is unusual in its insistence that marriage is for life. "Viewing one's spouse as a human being without reference to gender" is by far the greater innovation; I can't think of a single society that held this position prior to the very late twentieth century. Jesus answers questions on divorce because everyone at the time knew what it was; he doesn't answer questions on same-sex marriage, and I sincerely doubt anyone at the time would have known what it was.
posted by Eve at 1:48 PM | link 0 comments

DISPUTING THE DIVORCE ANALOGY: Gabriel Rosenberg

One of the things Genevieve Wood brought up at the [Cato Institute] forum was the analogy of the movement for same-sex marriage to the movement for no-fault divorce. (Her comments on this matter occur at 31:30 in the recording) While the movement to eliminate prohibitions on interracial marriage is the favorite parallel of many advocates for same-sex marriage, the no-fault divorce parallel seems to be a favorite among many of those opposed. In both cases the parallel is generally brought up as a response to particular claims. In this case it was brought up by Wood as a response to the common claim of "How does same-sex marriage affect opposite-sex marriages?" She says that the same question was asked about no-fault divorce, namely "How does the no-fault divorce of an unhappy couple affect the marriage of somebody else?" And yet no-fault divorce has had a great impact on other marriages with divorce and cohabitation rising. She says marriage is a public institution, and that's why there can and will be a broader effect. I certainly agree that marriage is a public institution, but that doesn't really answer either question as to specifically how the other marriages are affected. So let us look at the comparison a little more closely to see how each change in marriage might have some broader effect.

The first difference I see is at the more direct level. Many of the harms from no-fault divorce come immediately from the divorce itself. That is, the children of the marriage, in some if not many instances, would be better off if the couple remains married instead of the parents getting a divorce. I have yet to see anyone argue that the children of same-sex couples would be better off if the couple remains cohabiting instead of getting married. ...

Part of how no-fault divorce impacted other marriages was through an imitation effect. As divorce became more common, people went into marriages without as much certainty that the marriage would last. This could become a self-fulfilling prophecy in at least two ways. One, people might be more reluctant to make personal sacrifices for the sake of the marriage with the knowledge that the marriage could end and they would have to be prepared to fend for themselves. Secondly, when times got rough, divorce was seen as a more realistic alternative. And then you have those that became reluctant to marry in the first place because of the rising divorce rate. Why marry just to divorce later? Especially vulnerable to this imitation effect are children of divorce themselves. If same-sex marriage has an imitation effect it would mean more people deciding to marry instead of cohabit. The demand for marriage is certainly a testament to its worth. Again this imitation effect is especially true for children of same-sex couples who could now grow up with marriage as a model instead of cohabitation. Furthermore, withholding same-sex marriage would continue to lead to a proliferation of marriage alternatives like domestic partnership plans that are open to oppposite-sex couples as well. Just as divorce became a more realistic alternative to remaining married, these programs as well provide opposite-sex couples many realistic alternatives to marriage in the first place.

This leads us back to another direct effect of no-fault divorce. No-fault divorce changed the rules of every marriage. Even for a couple that did not divorce there was always a chance of it occurring. Every marriage has at least a chance of going through some rough times. No-fault divorce made it at least a little more difficult to remain married through those times. With same-sex marriage, though, the same rules still apply to opposite-sex marriages. They just apply to other couples as well.

Later in the forum (1:11:20) Wood was asked whether she would support an amendment for a uniform national policy on divorce. She said no, because divorce did not alter the definition of marriage. I disagree. Whether marriage is a lifetime commitment, or just a temporary arrangement seems to me to be a much bigger difference in the definition of marriage than viewing one's spouse as a human being without reference to gender.

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posted by Eve at 1:40 PM | link 0 comments

REASONS FOR MARRIAGE: William Raspberry interviews David Blankenhorn

[Weirdly, this turned up in today's Nexis search, even though it's from February. It's so good I'm passing it along to you anyway. --Eve]

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

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

So does Blankenhorn favor gay marriage or oppose it? "I don't have a dog in that fight," he says. "What got me into this whole field some 15 years ago was the disturbing phenomenon of father absence. Thirty-five percent of our children are living without their fathers, a fact that exacerbates a whole range of social problems--and almost the entire problem of father absence is due to heterosexual behavior. But that doesn't make the opponents of gay marriage wrong.

"As Isaiah Berlin taught us, in a liberal society, a lot of difficult choices are between two goods. That's the case here. Equal dignity for all people. I support that. On the other hand, if there is one thing in this life I know, it's that children need mothers and fathers." ...

"The first thing that would happen if we legalized same-sex marriage is that we would find ourselves talking about parents, not fathers and mothers. Even the term 'parent' would be changed to something like 'the person in the home caring for the child.' That is not a definition in the long-term interest of children.

"And finally, if I say, as I deeply believe, that every child needs a mother and father, I will be venturing dangerously close to hate speech."

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

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posted by Eve at 1:34 PM | link 0 comments

HOW IS MARRIAGE DOING?: From FoxNews.com

[Published early Monday, hence the outdated first paragraph.]

Barring a last-minute court order, Massachusetts on Monday will become the nation's first state where same-sex marriage is legal. It's the latest twist in the evolution of an institution that has seen many changes in the last 30 years.

More people are getting divorced, more kids are living with single parents and more grandparents are playing a mother or father role for their grandkids. Following are statistics and facts about marriage that use the most recent available data.

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posted by Eve at 1:32 PM | link 0 comments

ARIZONA CAPITOL RALLY PROTESTS SSM: From the Arizona Republic

Thousands of protesters of all ages stood in the Arizona sun Monday to rally against same-sex marriages.

They made their statement on the first day gays and lesbians were permitted to marry in Massachusetts.

Protesters also voiced their concerns about the likelihood of same-sex marriage in Arizona.

They wore white shirts that stood "for the purity of marriage," according to one organizer, and carried signs that said, "One man one woman," and, "Protect marriage," as they marched around the state Senate and House of Representatives and the Arizona Supreme Court building.

The hourlong rally was organized by the Center for Arizona Policy, a conservative lobbying group that has taken a stand against same-sex marriage, and it featured speeches by "family values" activists and representatives of several religious denominations, denouncing the ruling by the Massachusetts Supreme Judicial Court that allows gays and lesbians to marry.

"This was not sought by the people of Massachusetts or the people of Arizona or the people of the United States," Len Munsil, that organization's director, said to the enthusiastic crowd. Rather, it was a judgment of "black-robed officials in court."

And when he referred to a same-sex marriage case to be discussed in the Arizona Supreme Court later this month, that of a gay Arizona couple denied a marriage license by a Superior Court decision and by the Arizona Court of Appeals, he said, "We will be over there praying that the Supreme Court lets that decision stand on May 25." ...

Supporters of same-sex marriages, some of whom participated in this weekend's multiple gay marriages at a Phoenix hotel, turned out to counterprotest. Rainbow flags were scattered in the crowd, though they were greatly outnumbered by white shirts.

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posted by Eve at 1:30 PM | link 0 comments

SSM SUPPORTERS SCORE WINS IN OREGON: From the Associated Press

Oregon voters did not punish gay candidates or those supporting gay marriage in Tuesday's primary, in spite of an aggressive challenge from the Christian Coalition.

Conservatives had targeted supporters of gay marriage in response to Oregon's brief legalization of gay matrimony earlier this year--apparently with little effect.

Maria Rojo de Steffey, a Multnomah County commissioner who helped clear the way for gay nuptials, sailed back into office in a field of five opponents, all opposed to same-sex marriages.

Her colleague Lisa Naito, one of the most vocal proponents of gay marriage, won 47 percent of the vote with two-thirds of the vote counted. But because she did not clinch 51 percent of the vote, she will have to face second-place finisher Ron McCarty, who received 31 percent of the vote, in November's election.

More than 3,000 same-sex couples tied the knot between March 3 and April 20, when a judge halted the weddings. The matter is likely to end up before the state Supreme Court--where proponents of gay marriages won another victory.

Supreme Court Justice Rives Kistler, the only openly gay state Supreme Court judge in the country, won with 62 percent of the tally to 38 percent for Lake Oswego lawyer James Leuenberger.

Leuenberger, who has represented the anti-gay Oregon Citizens Alliance, didn't directly make Kistler's sexual orientation an issue in the race. But the Oregon Christian Coalition did in mass mailings to its members.

In the heated mayoral race for Portland, Oregon's largest city, former Police Chief and gay rights champion Tom Potter won with 42 percent of the vote, upsetting heavily favored City Commissioner Jim Francesconi, who won 38 percent. The two are headed for a run-off election in November. ...

Multnomah County Commissioner Lonnie Roberts--the only commissioner on the previous board who staunchly opposed gay marriage--trounced his opponent, securing 82 percent of the vote. His district, encompassing the rural outskirts of Multnomah County, is largely Republican. ...

The Christian Coalition is forging ahead with a campaign to recall both Rojo de Steffey and Naito. Petitions can be downloaded off the group's Web site.

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posted by Eve at 1:23 PM | link 0 comments

IRS SUIT TACKLES GAY MARRIAGE: From the Saint Paul Pioneer Press

Thirty-four years after they first applied for a marriage license, Jack Baker and L. Michael McConnell are suing the IRS because they weren't allowed to file a joint tax return.

Baker, a Minneapolis corporate attorney and a local pioneer in gay activism, is representing McConnell, his partner, in the lawsuit that was filed Tuesday in U.S. District Court.

Not surprisingly, the lawsuit is about more than a tax refund. It also asks the federal court for an order "declaring plaintiff to be a full citizen who is lawfully married and, by that fact, entitled to be treated the same as every other married Minnesotan, similarly situated."

Baker and McConnell claim a unique situation as a gay married couple. In 1971, they obtained a marriage license in Mankato, Minn., and subsequently were married before a Methodist minister in the Twin Cities.

At the time, "no state or federal statute, no opinion of the Minnesota Attorney General, and no decision of the Minnesota Supreme Court specifically disenfranchised marriages between two persons of the same sex," the lawsuit claims.

The suit, however, arises from a tax return McConnell filed in 2000 and tried to amend in 2003. In 2000, he had filed as an unmarried individual and three years later filed an amended return that changed his status to married -- thus claiming a refund of $793.28.

The IRS didn't respond to the request until March, when McConnell received a letter saying his claim was rejected because "the Federal Government does not recognize same-sex marriages."

"They are claiming that the government is violating due process," said attorney Larry Leventhal, who is assisting Baker in the suit. "More recent laws, such as the Defense of Marriage Act, cannot be applied retroactively."

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posted by Eve at 1:19 PM | link 0 comments

MARRIAGE LICENSE IS JUST A START: From the Washington Post

Cambridge City Clerk Margaret Drury processed more requests for marriage licenses from same-sex couples Monday than any other official in Massachusetts: more than 220. But she said she turned one couple away, two women from Florida who said they did not intend to move to Massachusetts.

A rejection like that could lead to a challenge of a 1913 state law that Gov. Mitt Romney (R) invoked to say that out-of-state couples cannot marry here, gay rights advocates and legal experts said Tuesday.

That issue is one of many legal vagaries that exist, now that Massachusetts has become the first state to grant marriage licenses to gay couples. The hundreds of same-sex couples marrying here this week will be navigating an uncharted legal landscape.

Out-of-state couples were a small minority of couples married here Monday, but clerks in four municipalities defied Romney's direction to turn them away. On Tuesday, the governor's office requested copies of all marriage licenses issued by clerks in Provincetown, Somerville, Worcester and Springfield. He has said repeatedly that marriages of out-of-state couples would be "null and void." ...

For example, same-sex married couples will probably be able to file joint state tax returns in Massachusetts in 2005. But some may attempt to file joint federal income tax returns as well, in an attempt to challenge the 1996 Defense of Marriage Act, which defines marriage for federal purposes as the union of one man and one woman.

"They would probably be rejected, but I would take the battle to the Supreme Court on equal-protection grounds; the arguments are quite cogent," said Howard Medwed, chairman of the tax practice at the Boston firm Burns & Levinson. He said he has identified penalties in the tax code that could add up to more than $1 million for an average gay couple over their lifetimes. "I think tax will be one of the battleground areas," he said. ...

The denial of certain federal employment benefits could also provoke litigation. Benefits provided under the Employee Retirement Income Security Act, such as insurance and retirement plans, are regulated by federal law, which would not require companies to offer such benefits to gay couples.

Peter Ebb, a partner in the employment and labor practice at the Boston law firm Ropes & Gray, said that companies might decide to scale back domestic partnership benefits currently given to unmarried gay couples. "Up until now they've been able to say we are offering this to gay couples because they can't get married. They can't say that anymore," Ebb said. "If they are challenged, legally, those programs would be very tough to sustain."

The Boston Globe reported in April that the Beth Israel Deaconess Medical Center, which currently provides benefits to the domestic partners of gay employees, will offer benefits only to married couples, beginning next year.

Adoption may also be an area of contention.

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posted by Eve at 1:16 PM | link 0 comments

ATTEMPT TO REPEAL MASS. OUT-OF-STATE LAW HITS SNAG: From the Boston Globe

House Speaker Thomas M. Finneran said yesterday that he would block the Legislature from immediately repealing the 1913 law that Governor Mitt Romney wants to use to prevent out-of-state gay couples from marrying in Massachusetts.

Citing procedural grounds, Finneran said he does not want lawmakers to include such a controversial issue in the proposed state budget. Though he opposes gay marriage, Finneran did not take a position on the merits of repealing or keeping the 1913 law.

The Senate is expected to take up the proposed repeal as early as today when it considers the budget. If the Senate approves the amendment, Finneran said, he will instruct the House members on the conference committee to strip the measure from the compromise budget bill.

"If we put something in that the Senate hasn't done, that's not fair to the Senate. The Senate members deserve their debate," Finneran said in an interview with the Globe.

The 1913 law bars out-of-state couples from marrying in Massachusetts if their marriage would be void in their home state. Massachusetts is the only state that currently allows same-sex marriage.

Finneran, who keeps a tight rein on the House, said such a controversial issue should be debated on its own, not as part of the overall spending plan. House members, who have already approved their own budget blueprint, will have to vote up or down on the compromise budget produced by a House-Senate conference committee, and wouldn't be able to reject a Senate-approved repeal of the 1913 law while approving the rest of the budget.

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posted by Eve at 1:11 PM | link 0 comments

LATEST POLLING BY WIRTHLIN WORLDWIDE

[Available at the Alliance for Marriage site]

The question: "There has been some discussion, recently, about how marriage should be defined in the U.S. I am going to read you the wording of a possible amendment to the U.S. Constitution and then ask you for whether you would favor or oppose such an amendment. The amendment says . . . 'Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution, nor the constitution of any state, shall be construed to require that marriage be conferred upon any union other than the union of a man and a woman.'"


67% favor (57% strongly; 10% somewhat)
30% oppose (23% strongly; 7% somewhat)
3% undecided

Method: 1000 U.S. adults, April 2-5, 2004. Margin plus/minus 3.1%

67% of Whites favor FMA
67% of Blacks favor FMA
67% of Hispanics favor FMA
45% of "Other" favor FMA

Base: 734 White, 116 Black, 105 Hispanic, 32 Other

79% of Republicans favor FMA
56% of Democrats favor FMA
63% of Independents favor FMA

Base: 384 GOP; 440 Democrat; 176 Independent

66% of men favor FMA
66% of women favor FMA
posted by Eve at 10:27 PM | link 0 comments

REPORT FROM A CONNECTICUT RALLY AND COUNTER-RALLY: Peter Wolfgang

[Peter Wolfgang, of New Hartford, is a district deputy for the Connecticut State Council of the Knights of Columbus.]

[Eve notes: I'm interested in reading these personal descriptions of events, from any perspective. Please do send them along. I can't guarantee that I will post them in whole or part, but I am always trying to find the telling details that individuals on the ground notice even when reporters might miss them. I should note, of course, that I have no way of verifying any such accounts, since the whole point is that I'm not there--if I were there I'd just post my own impressions! Anyway--here are excerpts from Peter's account:]

On Sunday, pro-gay marriage forces held a rally at the state capitol in anticipation of their victory in our neighboring state. Borrowing a page from their book, the Family Institute of Connecticut held a counter-rally on the opposite side of the capitol an hour before the pro-gay event. Brian Brown gave a forceful presentation on the need for a federal marriage amendment. Bishop Gonzalez, a leader of Hartford's Hispanic Protestant community, spoke with compassion and sensitivity--but also with honesty--about the Christian teaching on homosexuality found in Romans 1.

As usual, we had a diverse, multicultural crowd, which included some new faces. Mormons, dressed in their Sunday best, seemed more visible than they had been in the past. Among Catholics, there was a strong contingent from Regnum Christi. As each side continues to hold dueling rallies I am left with the impression that the other side has reached the limit of its support while our side continues to gain new adherents.

During our counter-rally we were surrounded by pro-gay marriage protesters, who heckled us and tried to shout down our speakers. Were it not for the capitol police I think they would have dived into the crowd or rushed the stage. One held a sign that read "The Family Institute of Connecticut Uses the Bible the Way Hitler Uses Gas." After our rally we were heckled by a man dressed in a priest's outfit holding a sign advertising his Web site: www.shameoncatholics.org .

So far as I could tell, none of this made the press. Instead, the media focused on a phony scare caused at the pro-gay marriage rally by one man who left a vial of holy water there. The area was cordoned off as police checked to see if it was something hazardous. Last I heard, the man was arrested for felony breach of peace and was being held on a $10,000 bond.
posted by Eve at 10:06 PM | link 0 comments

DISESTABLISHING MARRIAGE?: Joel Bruhn

[Joel Bruhn is an engineer living in Lafayette, IN.]

I see no reason for Christians or conservatives to draw a line
in the sand because of gay marriage. Hearing the term "sanctity of marriage" makes me ponder the state of marriage as it exists in America today:

1) We have church denominations in this country which don't actually have any churches. They exist for the sole purpose of certifying people to preside at weddings, and mostly do business in Las Vegas.

2) No-fault divorce is now standard practice pretty much everywhere in the US.

3) People can get married and divorced, as many times as they want, in any state.

4) Michael Jackson and Lisa Marie Presley. Dennis Rodman and Carmen Electra. Donald Trump and [all of them].

I could go on. The battle for the sanctity of marriage was lost decades ago. Gay marriage is just the latest evidence of it. Separating civil marriage from religious marriage would resolve the issue that some churches already have, of whether to recognize as married those couples who walk in with marriage licenses but problematic backgrounds. (e.g., couples on their second or third marriages who walk into Catholic churches and want to be recognized. Some dioceses resolve this by making annulment a rubber stamp. But some don't.)

Separating civil marriage from religious marriage would also resolve the church-state entanglement that now exists, whereby the state gives tangible benefits (tax breaks) to couples who have performed a religious ceremony (marriage).

Finally, separating civil marriage from religious marriage would bring our noisy and rancorous debate/fight over gay marriage to a quick end. Let the state marry whoever they want, and let churches set their own rules about their own marriages. The one crucial rule here is that the separation needs to be absolute: no government entity must ever be required to recognize a church-performed marriage, and vice versa.
posted by Eve at 6:05 PM | link 0 comments

DISESTABLISHING MARRIAGE?: Lynn Gazis-Sax

Well, I suppose David Blankenhorn's version sounds better than Michael Kinsley's did (if I understood both of them properly). Michael Kinsley, back in that article in Slate, sounded as if he wanted government out of the marriage business altogether, replacing civil marriage with private contracts. David Blankenhorn sounds as if he wants all the same laws, but to change the name to "civil union." That at least wouldn't disrupt the rules governing existing marriages, and I suppose people might well just ignore the change of name, go on calling it marriage, and talking about husbands and wives, no matter whether the forms said civil unions and partners. All the same, it's hard for me to see how anything is *gained* by giving civil marriage a new and less emotionally resonant name. And that passage you quoted from Jonathan Rauch also caught my eye, as I was reading the book, and seems a strong argument for not consigning the word marriage only to the religious variety.
posted by Eve at 3:19 PM | link 0 comments

WHY NOT WAIT THIRTY YEARS?: R.K. Becker

I don't know how this might be approached legally, but I still believe that the idea should be publicly raised: encapsulating SSM to those states (or countries) where it has already been legalized, and agreeing to wait thirty years before legalizing it elsewhere, by which time it can be determined through experience what effect the unprescedented idea really has on the next generation (not just the current one).

After all, wouldn't we all like to know the answer to this before we just jump onto the bandwagon? Or are some afraid of what the answers might be? Presented this way, the public is far more likely to support banning SSM only until we know the answers than it is to support banning it forever when we don't know the answers.

And there are still many questions to which we don't know the answers.

We don't know how far SSM will lead us down a slippery slope toward legalization of polygamy, or sibling marriage, or other things. And to say we draw the line now does not preclude others from moving that line later.

We don't know whether, or to what extent SSM will result in an increase in homosexuality or (more importantly) bisexuality in the young. I feel the answer is that there will almost certainly be a major increase, but again, only time will tell. Whether this is a good or bad thing is another question. We are not just talking about changes in current relationships. We're talking about whether children in the future, with an androgynized definition of marriage, will engage in bisexuality where they would otherwise not have.

We don't know how SSM will affect friendship for future generations by depriving that relationship of the presumption that it has no sexual component, or whether it will make married heterosexuals increasingly suspicious and jealous of their spouse's same-gender friendships.

And these are not the only questions we need to answer.

To those who insist that the benefit of the doubt should be on SSM proponents unless I or other opponents provide detail as to exactly how we think it will damage society, I would ask them--if they still believes that sibling marriage or polygamy are harmful to society, can they explain in detail exactly how they think they are going to harm it? I agree that they will be harmful, but I can't give a detailed description of how they will be that will sound any better than my speculation regarding SSM. Can SSM proponents?

As Maggie points out, as much as SSM proponents have tried to make it look otherwise, this is a radical change which fundamentally affects far, far more that just the extension of a "right" to a group previously denied it.
posted by Eve at 3:15 PM | link 0 comments

WHITE, EDUCATED ELITES: Daniel Henrie replies to Maggie Gallagher

[Daniel Henrie is an attorney in Washington, DC.]

It's always rich when white, educated elites like Maggie Gallagher try to tell African Americans how to interpret our civil rights struggle. I don't really need to be told by a white conservative how my civil rights struggle is being used by the gay community; I am perfectly capable of making those interpretations on my own.

Brown v. Board of Education was not embraced by white, educated conservative elites like Ms. Gallagher when it was ruled upon 50 years ago. In fact, a look at history would point out that cries similar to "judicial activism" were heard from segregationists and conservatives in this country when the decision was announced. It is only in hindsight that white, educated elites like Ms. Gallagher have seen the importance of the decision and its place in history.

While I don't necessarily see gay marriage as a civil rights struggle, I understand why it is an important issue for gays and lesbians. I also realize that my community's fatherhood and marriage crisis is completely unrelated to whether two men or two women can get married. If we are to solve the crises in our community, it can't be done by preventing others from enjoying the riches of marriage and family. It can't be done by being coopted and used by white, educated elites within the conservative movement who use our struggle to score political points but then ignore our community when it really matters. It can only be done by introspection and community change.
posted by Eve at 2:39 PM | link 0 comments

LEGAL SCHOLARS ASK IF MARRIAGE IS THE ONLY WAY TO FORM A FAMILY: From the Boston Globe

WHEN SAME-SEX COUPLES across the state are finally allowed to take their wedding vows tomorrow, some advocates say, the law will at last be catching up with the long-standing social transformation that has made committed gay couples, and gay families, an undeniable part of American life.

But amid the celebrations, some legal scholars are pointing out that when it comes to reconciling the law with the complexities of family life, the law still has a long way to go. In an era of frequent divorce and remarriage, not to mention adoption, surrogacy, and artificial insemination, people increasingly organize their personal lives outside traditional matrimony. But almost no legal means exist for formalizing these alternate relationships.

California, Vermont, Hawaii, and New Jersey do currently offer various "marriage lite" alternatives -- partnerships with only some of the benefits of marriage. But these options are open almost exclusively to same-sex couples who cannot legally marry, or in some cases to seniors who want a legally recognized union without complicating existing inheritance and pension arrangements.

What about the younger heterosexual couple who also want intertwined lives without the full economic entanglements of marriage? Or the widowed mother who is economically dependent on the son who is also her sole caregiver? Or the two friends who decide to raise a child together but who aren't, and don't want to be, married? Or the lesbian couple who want their child's biological father to be a recognized part of their family? When is the law going to catch up with them?

Nancy D. Polikoff of American University voices the concern of many family law scholars who support full gay rights but are skeptical of our society's exclusive focus on marriage. "I am in favor of equality and I believe that as long as marriage exists for heterosexuals it should exist for gays and lesbians," she says. "What I don't want to have happen is the eclipsing of a more just reform of how the law deals with families -- all sorts of families."

When it comes to the dizzyingly complicated task of accommodating all possible family arrangements, scholars have long pointed out that one simple mechanism already exists: contract law. Marriage itself, after all, is a contract -- a basic one-size-fits-all arrangement, with some room for customization through prenuptial agreements and the like. Under existing law, couples or larger groups who are unable or unwilling to marry are perfectly free to draw up contracts outlining their mutual rights and responsibilities.

The contract model, however, does have some clear drawbacks. No contract can force employers, the state, or other third parties to provide benefits or recognize the relationship. And most people lack the knowledge and resources to craft a contract that fully protects their interests.

University of Utah law professor Martha Ertman thinks that instead we should look to another area of business law: the rules and regulations governing the formation of corporations and other business enterprises. In the business world partnerships, corporations, and limited liability companies all coexist amicably, with no limits on how many parties enter each association -- and no moral judgment made that one is better than the other. Personal relationships could be similarly codified, Ertman posits, with family law borrowing the rules that govern company models.

Cohabitation, for example, is something like a business partnership. "A partnership exists when two or more people operate a business together for a profit," Ertman said in a recent interview. "This to me seems like cohabitation, in that you don't make any formal registration with the state."

Instead, two cohabitants could become partners under oral or written agreement. Tax law would treat them as it does business partners -- as related but still distinct entities. And when the relationship ended, something like partnership dissolution rules would apply.

"That would be more fair than assuming cohabitants who are in a committed relationship are [legal] strangers, which is often what happens today when people live together and split up," says Ertman.

Marriage, on the other hand, is more like a corporation, says Ertman. Both are intended to be ongoing and long-lasting, and both are formulated and dissolved through state action. The analogy "doesn't work perfectly, but you could adjust for the kinds of rules you would want to have," she says.

Ertman's system would even allow for partnerships of more than two people, an arrangement she compares to a limited liability corporations. Under this scheme, she argues, larger groups -- two lesbian parents and their sperm donor, for example, or a "Golden Girls"-like group of retirees sharing a household -- could tailor their partnership contractually, with different members assuming different degrees of responsibility, and receiving different degrees of state recognition and benefits.

American University's Polikoff agrees that today's family law is ill-equipped to deal with the real complexities of today's relationships. But instead of Ertman's different categories of all-in-one relationships, she suggests a more flexible system that would allow people to designate different "partners" for different purposes. ...

For example, many states now allow two-parent adoption by unmarried couples. (Polikoff successfully argued the 1991 case establishing the right in the District of Columbia.) If the state can recognize the function of a parenting relationship between two unmarried adults, she asks, why couldn't it also recognize the functional value of other sorts of unmarried relationships?

Martha Fineman of Emory University law school takes this idea even farther. She proposes a wholesale reconception of the family as a caregiving unit defined by the presence of children or other dependents, rather than by the romantic relationship between two adults.

"If we are concerned with having care provided for people in need -- children, the elderly -- then we should subsidize the caretaker/dependent relationship," she said in a recent interview. "I would take all those subsidies that apply to marriage and apply them instead to the caretaker relationship." ...

The state would be required to recognize those relationships based on their functionality. For example, the tax deductions currently available to married couples would also be available to other groupings of people who have assumed financial responsibility for each other. And instead of being limited to children and spouses, the Family and Medical Leave Act would also cover employees who need to take care of a sick dependent roommate, friend or other partner.

These kinds of alternative relationships obviously raise enormous practical -- not to mention fiscal -- difficulties. One of the good things about old-fashioned marriage, after all, is that it provides default rules governing what the two parties owe each other, as well as what the state and other third parties owe them. And in a country that leaves marriage law to the states, a patchwork of traditional marriage here, alternative unions there, could lead to chaos beyond anything following on Goodridge. ...

Still, Halley envisions a revolution in social organization that reaches way beyond marriage or today's various domestic partnership schemes. "People's basic social safety should not depend on whether they can be in a couple," she says. Civil unions and domestic partnership, in her view, should not become "the next way we fail" to provide basic security to all citizens.

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

UNSOLICITED TESTIMONY TO THE R.I. LEGISLATURE ON SSM: Justin Katz

In researching the issue of same-sex marriage, one comes across many accounts of homosexual parents who wish to raise their children in the most normal environment possible. Other cases involve people who want primarily to procure assistance in caring for each other. Because these arguments draw so directly from the pool of reasons that society supports and encourages marriage, they are the most powerful for their cause. Our hearts rightly ache in response to such pleas, sincerely put forward, and were the institution of marriage healthier, we might move to make exceptions.

The unfortunate reality is, however, that marriage and the family structure that ensues are in a weakened condition. We've all heard the statistic that half of marriages end in divorce. Less well known is that only fifty percent of children conceived in the United States are born to parents who are married, with the remainder evenly split between abortion and birth out of wedlock.

Countries that are further along in the liberalization of family structure provide evidence of the folly of its pursuit. In Sweden and Norway, for example, children are more likely to be born out of wedlock than within. Sweden's abortion rate is higher than that of the United States, and ours is dropping while theirs climbs. Children's odds of being born into wedlock--of being born at all--are plummeting throughout Europe. It is crucial for the United States, which is much larger, encompasses greater demographic diversity, and drives more of the global economy to avoid the further erosion of marriage.

The hopeful news is that the domestic tide may already be turning. Abortions are back down to the rates of the 1970s. Out-of-wedlock births seem to be reaching the crest of their curve. Shifting the institution on which family issues hinge, therefore, would shake ground on which we've only just begun to get our balance. The particular innovation of same-sex marriage would not have minimal repercussions.

Compelling arguments can be made for the extension of certain benefits to homosexuals for their roles as parents and as mutual caregivers, and that is an area of legislation that is surely worthy of debate, at both the state and federal levels. One question that such proceedings would have to address is the bottom-line purpose of the laws and to whom benefits ought to be granted. If a brother and sister, for example, are committed to raising her child from a previous marriage, why should the argument for assisting children's guardians exclude them? Perhaps a daughter should be able to ensure that her Social Security extends to her mother, for whom she cares, should anything happen to the younger woman. But if these questions, and countless variations, are asked and answered within the context of marriage, the institution would quickly lose its legal and cultural meaning and, therefore, its power to shape our society.

Dilution is only one of the routes toward marriage's decline should we extend it to same-sex couples at this time. Every statement about marriage ever made in law, philosophy, sociology, and so on has been premised on its definition's being opposite-sex. It is difficult to think of an institution more susceptible to unintended consequences. Marriage lies at exactly the intersection between government and culture, public and private, secular and religious.

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

CAN THIS MARRIAGE BE SAVED?: Jonathan Rauch

...Gay marriage is risky. But not trying gay marriage is riskier.

To many of its supporters, gay marriage is a civil-rights issue: Marriage is a right, and every couple should have it. To many of its opponents, gay marriage is a moral issue: Homosexuality is wrong, and society should not condone it. Well, gay marriage is a civil-rights issue and a moral issue, but it is also, perhaps most importantly, a family policy issue. Right now, Americans are deciding the shape of marriage—the basic legal and social framework of family—for years to come. Risk, therefore, is just as relevant as rights or as right and wrong. What, then, is the balance of risks?

Begin with what we know for a fact: Something like 3 to 5 percent of the population--all gay and lesbian Americans--are locked out of marriage, which is life's most stabilizing and enriching institution. Even after accounting for differences between the married and unmarried populations, married people are healthier, happier, more prosperous, more secure; they even live longer. To shut millions of Americans off from those benefits is to inflict a very real harm. Moreover, many same-sex couples are raising children: several hundred thousand, at least, and possibly more (there are no firm figures). Presumably, those children would be better off with married parents.

So same-sex marriage would benefit gay people and the children they are raising. That much meets with little dispute. But what about the rest of society? Here the debate turns to what economists call "externalities": harms or benefits to society at large that flow from private decisions.

Opponents of same-sex marriage insist it will bring grave, perhaps catastrophic, negative externalities that will hurt millions of American families. They have yet to explain, however, precisely how allowing same-sex couples to marry would damage anyone else's marriage or family. More plausible is a second common view, which is that same-sex marriage will have little or no impact on straight families. No-fault divorce changed the terms of marriage for heterosexual couples, which was plainly a big deal. The only thing that same-sex marriage does, by contrast, is to expand by a few percentage points the number of people who are eligible to marry their partner.

Less often noticed is a third possibility: positive externalities. Today, a third of all American children are born out of wedlock, cohabitation is soaring, and nearly half of marriages end in divorce. Marriage's problem is not that gay couples want to get married but that straight couples don't want to get married or don't manage to stay married. At long last, gay marriage provides an opportunity to climb back up the slippery slope by reaffirming marriage's status as a norm—not just as a right but as a rite, the gold standard for committed relationships. Gay marriage dramatically affirms that love, sex, and marriage go together—that if you really care, you marry. No exclusions, no excuses.

So gay marriage entails potential social benefits as well as potential risks, even apart from the unquestioned benefits for gay couples. And there is a further element, as important as it is overlooked. Banning gay marriage entails its own risks to marriage. And those are not small risks.

Because society has an interest in seeing same-sex couples settle down and look after one another, and because gay couples' friends and family care about their well-being, committed gay couples are winning increasing social support. One way or another, legal support will follow. Banning gay marriage guarantees that the country will busy itself creating gay-inclusive alternatives to marriage (which will be tempting to heterosexuals) and bestowing legal rights and social recognition on cohabitation (which is open to heterosexuals by definition). The result will be to diminish marriage's special status among a plethora of "lifestyle alternatives"--the last thing marriage needs.

Moreover, the gay exclusion risks marginalizing marriage by tainting it as discriminatory. A March Los Angeles Times poll finds that more than 80 percent of young people (ages 18 to 29) favor anti-discrimination protections for gay people. More than 70 percent believe gays should receive the same kinds of civil-rights protections that are afforded to racial minorities and women. More than half favor gay adoption, three-fourths believe that "a gay person can be a good role model for a child," and more than 70 percent can "accept two men or two women living together like a married couple." Seventy percent describe themselves as sympathetic to the gay community (versus 43 percent of people 65 and older). And three-fourths support gay marriage or civil unions--with the plurality favoring marriage. ...

"We are genuinely running the risk of making marriage uncool," Frank Furstenburg, a University of Pennsylvania sociologist, said last month, in an Associated Press article about straight couples who are boycotting marriage to protest discrimination. Today, such couples are rare. But in 10 years? Twenty? ...

...There ought to be a way to try same-sex marriage without betting the whole country one way or the other. And there is. Try gay marriage in a state or two. Say, Massachusetts.

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

CATO FORUM ON SSM

Video or audio presentation of a forum the Cato Institute held yesterday, featuring Jonathan Rauch, Michael Greve, and Genevieve Wood.
posted by Eve at 1:31 PM | link 0 comments

NO NEW CULTURE WAR?: E.J. Graff and Nick Confessore

Prospect contributor E.J. Graff argues in The New Republic that Goodridge v. Department of Public Health, the Massachusetts court decision that opened the way for same-sex marriage in that state, will produce the opposite effect of Roe v. Wade -- that is, it will not produce an entrenched and bitter culture war. Here's the key bit:

"Before Roe, abortion-rights supporters could trigger waves of emotion by waving coat hangers, thus evoking painful memories of women dead or maimed in botched back-alley abortions. With abortion legal for more than 30 years, those bloody memories are gone, leaving pro-choice arguments to sound like abstractions. No abortion-rights supporter, of course, laments the fact that American women no longer die from illegal abortions; but it does make the pro-choice side a bit more difficult to illustrate on television, where so much national policy discussion is shaped. We're now left to debate the inner lives of quivering ultrasound images. As a result, national opinion has remained basically deadlocked for 30 years: About 25 percent think abortion should always be legal, about 55 percent believe it should sometimes be legal, and about 20 percent think it should always be banned.

"Goodridge will have the opposite effect on public opinion: Unlike Roe, it will give the progressive side more visual aids, not fewer. Until Roe, the abortion debate was about real damage to real women's lives; afterwards, it was about the moral abstraction of whether fetuses are people. Until Goodridge, the same-sex marriage debate was entirely about abstractions; now it will be about real couples' sorrows and joys. The conservative argument that 'marriage has always been this way'--except in Canada, the Netherlands, and Belgium, which have had same-sex marriages for between one and three years--was an effective argument for caution. But once those two nice girls down the street get their marriage license and the Earth doesn't rumble, opponents will have to play on very different political terrain. From now on, what we talk about when we talk about same-sex marriage will be real live coworkers, cousins, and friends. The debate will no longer be about abstract cultural values; it will be about people. Newlyweds make great B-roll footage, as we saw this past winter in San Francisco. Once same-sex marriage is no longer abstract but particular, its opponents will start to seem really cranky--and really, really mean."

I share Graff's view. When San Franciso first allowed gay marriage, I wrote that I thought it would be "the political equivalent of looking under one's bed in the light of day, and realizing that monster was just an old sweatshirt covered in dust bunnies," and that "as the notion of gays being married becomes a banal reality and not a worriesome hypothetical, the discomfort will begin to fade among many people." It's too early to tell whether that instinct is correct -- but we can hope.

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posted by Eve at 1:28 PM | link 0 comments

VIRGINIA'S MARRIAGE AFFIRMATION ACT: Ramesh Ponnuru

A while ago, I said I would look into a bill underlying a dispute between Jonah and Andrew Sullivan. The latter said that Virginia had passed a law that made it impossible for gay couples to make certain contractual arrangements. He said that conservatives should denounce the bill, especially since many conservatives had suggested the use of contracts as a substitute for the practical benefits of same-sex marriage.

Here's the Virginia law in question: "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."

So let's say two men purchase property jointly and sign a contract stipulating that if one of them dies, the other gets the property to the exclusion of any other heirs. That would be a private contract that mimicked an arrangement that married couples have as a matter of course. On Sullivan's reading of the law, the contract would be void and unenforceable because it would be "purporting to bestow the privileges or obligations of marriage." If that's right, such a contract would have to be unenforceable even for two brothers--which is such a weird result that it ought to raise a question about the reasonableness of the interpretation.

The alternative view is that the law is a way for Virginia to block recognition of civil unions from other states without blocking purely private arrangements. The first sentence restates that Virginia does not have civil unions under any name, and the second blocks the courts from importing them from Vermont. Two people of the same sex would be able, then, to reach any contractual arrangements unless Virginia had reserved them to married couples. So, for example, if Virginia had a law saying that only married couples could have joint adoption rights, it would be impossible for same-sex couples to arrange joint adoption in Vermont and have that arrangement recognized in Virginia. Nor could two men enforce an out-of-state "contract" saying, "We two enter a relation that has all the privileges or obligations of marriage," where enforcement would require the government to grant them something the law reserves to married couples.

If, on the other hand, the law allowed any two people to do something--create durable powers of attorney, living wills, etc.--then the law would not prevent a same-sex couple (or two brothers) from doing the same thing just because they were of the same sex.

The narrower reading seems to me much more plausible. ...

What are the implications of this reading for what we should think about the law? If you support same-sex civil unions or marriage, you will of course object to the Virginia law. But if you accept its decision in the matter, it seems reasonable also to accept its decision to ensure that other states do not override that decision. And if you oppose civil unions but favor same-sex couples' having all the rights that any two unmarried people have, then you will support the law.

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posted by Eve at 1:24 PM | link 0 comments

LOOK AT GAY MARRIAGE AS AN EXPERIMENT: James Pinkerton

...The Bay State, in its wisdom--or foolishness, depending on one's point of view--has legalized gay marriage. Thousands of couples have already rushed to get hitched, and so a new social experiment has been launched.

Beyond the Christian Coalition, others of similar leanings predict disaster, too. Tony Perkins, president of the Family Research Council, asserts that "the so-called 'gay agenda' is far-reaching, and it encompasses much more than the fight for marriage rights." The risk, he continues, is that America will "lose the institution of marriage."

Continuing in a mode both apoplectic and apocalyptic, Perkins adds, "Churches will be muted, schools will be forced to promote homosexuality as a consequence-free alternative lifestyle, and our nation will find itself embroiled in a cultural, legal and moral quagmire." Yikes. If any of those prophesies come about, Combs and Perkins will have major "I told you so" rights.

But, in the meantime, Americans across the rest of the country are insulated from any such disaster. Some 39 states have enacted "defense of marriage acts," all of which guarantee that their state will not have to recognize a gay marriage from another state, such as Massachusetts. And this, too, was part of the plan of the Founders; they intended the states to be separate, like compartments in a ship, so that if one, say, sprung a leak, the ship of the nation-state would be protected.

It's also possible, of course, that the Massachusetts experiment will be deemed successful. "It is one of the happy incidents of the federal system," wrote Justice Louis Brandeis in 1932, "that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

It is this notion of the states as decentralized "laboratories of democracy" that has enabled much progress in recent decades. A good example is welfare reform. ...

Thanks to the genius of the Constitution, America as a whole can study the Massachusetts experiment, just as it studied the Wisconsin experiment. If, as the Christian Right predicts, gay marriage takes the wheels off Western Civilization, well, the damage will be confined to just one state.

But if, on the other hand, gay marriage is regarded as merely another step in the upward evolution of human rights, the experiment is likely to spread slowly across the country, state by state, in the deliberate and prudential manner that the Founders intended.

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posted by Eve at 1:20 PM | link 0 comments

WOMEN IN MAJORITY OF MASS. SAME-SEX WEDDINGS: From the Boston Globe

Two-thirds of the gays who applied for marriage licenses yesterday were women, half of the couples had been together for at least a decade, and an enormous majority were Massachusetts residents, a Globe survey of 752 couples in 11 cities and towns found.

The survey of the men and women who waited in line from Provincetown to Springfield and many towns in between found that one-third of the applicants had children living with them. Forty percent of female couples said they had children in their households, compared with 12 percent of the male couples.

After a rancorous back-and-forth over whether out-of-state COUPLES SHOULD BE ALLOWED TO WED HERE, 90 PERCENT OF THE COUPLES SURVEYED SAID THEY LIVED IN MASSACHUSETTS. BUT THAT VARIED BY COMMUNITY. ...

The median age of those surveyed was 43, and they ranged in age from 19 to 75. The median length of their relationships was 10 years, with the longest being 49 years and the shortest only a few months. Thirty percent of the women, compared with 19 percent of the men, said they had once been in a heterosexual marriage. Twelve percent of the couples said they had been in a civil union together. ...

...Only 33 percent of those surveyed said they planned a religious ceremony, a figure that largely reflects the fact that many denominations have said they will not recognize same-sex unions. Of those, the largest group was headed to a Unitarian Universalist service. ...

Though 70 percent said they did not have children living with them, 30 percent said they did. That is a higher number than the 22 percent of Massachusetts same-sex couples who reported having children in the 2000 US Census. ...

While in New York and California about 54 percent of same-sex couples are male, the reverse is true in Massachusetts, a statistic that probably contributed to the relatively high number of female couples seeking licenses yesterday. Gates also noted that 29 percent of Bay State lesbian couples have children, compared with 18.6 percent of same-sex male couples. ...

But in explaining yesterday's male-female disparity, Gates also cited another statistic: According to national surveys, 43 percent of lesbians are "coupled" at any one time, compared with 23 percent of men.

To conduct the survey, the Globe sent reporters to 11 cities and towns: Boston, Northampton, Cambridge, Somerville, Springfield, Arlington, Newton, Worcester, Brookline, Barnstable, and Provincetown. They asked 11 questions of couples who waited in lines, beginning after midnight in Cambridge and continuing to the closure of clerks' offices in the afternoon.

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posted by Eve at 1:16 PM | link 0 comments

BLACK MINISTERS SLAM GAY UNIONS: From the New Orleans Times-Picayune

As Massachusetts began issuing marriage licenses to gay and lesbian couples Monday, a group of African-American ministers called on the Congressional Black Caucus to support a constitutional amendment banning same-sex marriages.

The ministers, including Bishop Paul Morton Sr. of the Greater St. Stephen Full Gospel Baptist Church, said they are deeply troubled by the unions, which they consider a violation of God’s will.

The issue could cause some discomfort for some Democrats who support same-sex marriage while also depending on historically strong support from African-Americans. That is especially true for black elected officials. ...

Morton said he delivered a similar message during his sermon Sunday, and noticed Rep. William Jefferson, D-New Orleans, a Black Caucus member, in the congregation. ...

David Bositis of the Joint Center for Political and Economic Studies, a think tank that specializes in African-American political issues, said opposition to gay marriage is probably stronger in the black community than among white communities, reflecting the importance of the church in African-American communities. But, he said, it won't be enough to swing black voters against members of the Black Caucus or to the support of Republicans like President Bush, who, unlike presumptive Democratic nominee John Kerry, supports a constitutional amendment.

Black voters, Bositis said, may support Bush on gay marriage, but by and large remain skeptical about the war in Iraq and the president's economic policies. Bush got only 9 percent of the black vote in 2000. ...

But Bishop Charles E. Brown, pastor of the Full Gospel Church of God in New Orleans, said that for members of some denominations, including his own, the issue of gay marriage may turn some traditional Democratic voters to the GOP and Bush.

"I think they may well take the position that same-sex marriage is one of moral turpitude and that it even outweighs the economy," Brown said in a telephone interview from New Orleans.

At an emotional news conference Monday on Capitol Hill, Morton was joined by more than 25 other ministers from black churches. He said it is a sad irony that Massachusetts began issuing marriage licenses on the same day "one of the most important civil rights cases in our country's history," striking down segregated schools, was decided in Brown v. Board of Education 50 years ago. ...

There are other views among African-American clergy on same-sex marriage. During his run for the Democratic presidential nomination, the Rev. Al Sharpton, a New York City African-American minister, said, "All human beings should have equal access to civil rights and institutions, including the right to marry."

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posted by Eve at 1:12 PM | link 0 comments

INTEGRATION DAY: Andrew Sullivan

Today is the day that gay citizens in this country cross a milestone of equality. Gay couples will be married in Massachusetts--their love and commitment and responsibility fully cherished for the first time by the society they belong to. It is also, amazingly enough, the day of the 50th anniversary of Brown v. Board of Education, the Supreme Court ruling that ended racial segregation in schools across America. We should be wary of facile comparisons. The long march of African-Americans to civil equality was and is deeply different from the experience and legacy of gay Americans. But in one respect, the date is fitting, for both Brown and this new day revolve around a single, simple and yet deeply elusive idea: integration.

It is, first, a human integration. Marriage, after all, is perhaps the chief mechanism for integrating new families into old ones. The ceremony is a unifying ritual, one in which peers and grandparents meet, best friends and distant relatives chatter. It's hard for heterosexuals to imagine being denied this moment. It is, after all, regarded in our civil religion as the "happiest day of your life." And that is why the denial of such a moment to gay family members is so jarring and cruel. It rends people from their own families; it builds an invisible but unscalable wall between them and the people they love and need. ...

I remember the moment I figured out I was gay. Right then, I realized starkly what it meant: there would never be a time when my own family would get together to celebrate a new, future family. I would never have a relationship as valid as my parents' or my brother's or my sister's. It's hard to describe what this realization does to a young psyche, but it is profound. At that moment, the emotional segregation starts, and all that goes with it: the low self-esteem, the notion of sex as always alien to a stable relationship, the pain of having to choose between the family you were born into and the love you feel. ...

It is, second, a civil integration. That is why the term gay marriage is a misnomer. Today is not the day "gay marriage" arrives in America. Today is the first time that civil marriage has stopped excluding homosexual members of our own families. These are not "gay marriages." They are marriages. What these couples are affirming is not something new; it is as old as humanity itself. What has ended--in one state, at least--is separatism. We have taken a step toward making homosexuality a non-issue; toward making gay citizens merely and supremely citizens.

This is why I am so surprised by the resistance of many conservatives to this reform. It is the most pro-family measure imaginable--keeping families together, building new ones, strengthening the ties between generations. And it is a profound rebuke to identity politics of a reductionist kind, to the separatism that divides our society into categories of gender and color and faith. This is why some elements of the old left once opposed such a measure, after all. How much more striking, then, that the left has been able to shed its prejudices more successfully than the right.

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posted by Eve at 10:36 PM | link 0 comments

TODAY MASSACHUSETTS, TOMORROW...?: William C. Duncan

...[The Goodridge] decision, however, is not the whole story. Indeed, without the complicity of the Massachusetts legislature, Massachusetts might not now be issuing marriage licenses to same-sex couples. Or if it had, the effort might have been short lived.

In 2001, a citizen coalition gathered 76,607 certified signatures (57,100 were needed) to place before the Massachusetts legislature a proposed constitutional amendment that, if passed, would have defined marriage as the union of a man and a woman and prevented the creation of a marriage equivalent. In order to be placed on the ballot, the measure needed to gain the support of 25 percent of legislators in two successive sessions. Evidencing a fear of the popular vote that bordered on "democraphobia," the Goodridge lawyers lobbied the attorney general and filed suit to prevent the legislature from considering the proposed amendment.

They need not have made the effort. The senate president ensured that the bill would not get a vote by simply ending the constitutional convention before such a vote could be taken. (The Supreme Judicial Court ruled that this violated the Massachusetts constitution, which calls for "final action" on initiative proposals.) If the legislature had voted at that time, the measure could have been on the November 2004 ballot.

After Goodridge, the legislature could no longer duck responsibility, but their response was far from robust. Seizing on perceived ambiguity in the opinion, the new senate president proposed a civil-union law, but dutifully sent his proposal to the court for input before allowing legislators to vote on the idea. The court promptly rejected the proposal, invoking the specter of "separate but equal."

Almost three months after the Goodridge opinion was issued, the legislature finally met in constitutional convention to consider a proposed amendment (introduced more than a year before) that would have forcefully responded to the court by defining marriage and preventing civil unions. Alas, the people of Massachusetts were not to be given an opportunity to weigh in on the court's dictate. After much wrangling, a substitute proposal offered by the senate leadership was approved. While defining marriage as the union of a man and a woman, the proposal also contained a poison pill: the simultaneous creation of an identical civil-union status for same-sex couples. The court's challenge went unanswered.

Governor Mitt Romney made some efforts to counteract the court. When the legislature approved an amendment, he asked the attorney general to petition the court to stay its decision until the amendment could be submitted to the popular vote. The attorney general refused, and the legislature would not act on the governor's subsequent request for the appointment of a special counsel to pursue the option. ...

This year, the legislatures of five states have approved proposed marriage amendments for the November 2004 ballot. This will circumvent the attempts of courts in those states to follow the Massachusetts Supreme Judicial Court's lead. Ultimately their most important contribution may be to bolster a federal marriage amendment that would prevent any court, state or federal, from redefining marriage in the future. Whether such an amendment will be successful may very well depend on how the people of the United States respond to today's events in Massachusetts.

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posted by Eve at 10:34 PM | link 0 comments

THE MISSING GOVERNOR: Hadley Arkes

...To review this short history is to put to the side the dramatic abuse of power by the Supreme Court of Massachusetts, and put in the foreground the fecklessness of the political class in Massachusetts, which showed, at every turn, either a want of conviction or a want of nerve. That the legislature would prove bumbling, and too crippled by its own divisions to work out a coherent response, is to say that a plural body reflected the deep divisions of opinion in a liberal state. The deeper failure must go to the man who stood as governor, holding the levers of the executive. And if it is countdown for marriage in Massachusetts, it is countdown also for Mitt Romney, whose political demise may be measured along the scale of moves he could have taken and the record of his receding, step by step, until he finally talked himself into doing nothing, or nothing much. ...

The most dramatic and consequential move was to follow the compelling argument set forth by Abraham Lincoln as he resisted the opinion of the Supreme Court in the Dred Scott case. Lincoln insisted that he and his party would not form a mob to set Dred Scott free once the Court had confirmed him to remain in slavery. Lincoln would respect the decision of the Court with regard to the litigants in that case. But he would not allow the public policy of the whole country to be formed, as he said, by two parties "in ordinary litigation...in personal actions," combined with just a bare majority of the Court. Lincoln would accept the holding for the parties in the case, but he would not accept the principle articulated by the Court unless he was finally persuaded of the rightness of that principle. In the Goodridge case in Massachusetts, Romney could have announced that he would respect the decision for the plaintiffs allied in the case, but he might have pointed out that the case was not a "class action." He could have insisted then that clerks should issue licenses of marriage only to couples who have come through comparable litigation and received a comparable order from a court. ...

Romney could have pointed out here that the Supreme Judicial Court had actually violated the constitution by taking jurisdiction in a class of cases that the constitution had explicitly withheld from the courts. But as Romney contemplated his moves here, he could feel the drag even on the part of conservative lawyers. Lincoln's argument, they thought, was no longer widely understood, and any challenge to the court in this way was likely to set off tremors, even in their own circles. In that moment of holding back, it became clear that even conservative lawyers had come to incorporate, and accept, the premises that gave to the courts a position of supremacy in our constitutional schemes. ...

Jonathan Rauch, a proponent of gay marriage, has argued that the federalist solution should be tried seriously here, with gay and lesbian marriage confined to Massachusetts or a few other states. But the news already brings word of couples from New York planning their marriages in Massachusetts, and one couple from Massachusetts about to transfer residence to Arizona. It is virtually certain that some of these couples will move then into a federal court, invoking the Full Faith and Credit Clause and claiming that their marriage should be accredited. They will pose a challenge to the Defense of Marriage Act (1996), which sought to shore up the authority of the states to refuse to accept these marriages. Rauch is entirely sincere, but it should be clear that the sole purpose of these couples, visiting from other states, is to bring the issue into a federal court and invoke, for their cause, the federal Constitution. As soon as that move takes place, the "federalist" solution has clearly ended. Whatever Jonathan Rauch's own prescription here, it is clear that the activists are not governed by his plea for "federalism." ...

On the other hand, if the constitutional authority was really with the governor, to act for himself and the legislature, then it made the most profound difference that the governor flex that authority now himself: He could invoke his powers under the constitution; cite the error of the court in seizing jurisdiction wrongfully for itself; and order all licenses of marriage to be sent on to Boston, to his office, until the legislature, in the fullness of time, settled its policy on marriage. By an act of that kind he would have forced a change in the focus of the litigation: The task would fall then to the court to entertain challenges to the actions of the governor. If the judges summoned the governor to appear before them, there would no longer be any quibble over the question of whether the governor has standing before the court, or whether he would appear. And the court could be compelled now to face precisely the issue that the judges had skirted: whether the majority of four had themselves violated the constitution of Massachusetts. Faced with a tension of that kind, it was even conceivable that one of the wavering judges of the four might peel away, and in peeling away, leave the issue back where it belonged--in the political arena, with the governor and the legislators.

Is it now too late? That isn't altogether clear. Today has become the decisive date only because of the holding of the Supreme Judicial Court. But this argument over the error of the court, or the wrongful taking of jurisdiction, does not expire on May 17. That argument is still open, which means that it could be plausible for the governor to make that move at any time. ...If he were going to open himself to controversy and litigation, why not finally take his stand on the constitution itself, where his own authority on matters of marriage is clearly spelled out?

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posted by Eve at 10:26 PM | link 0 comments

NATIONAL REVIEW EDITORIAL

...Our hope is that the public reaction to Massachusetts will force the passage of a constitutional amendment blocking the courts from imposing same-sex marriage or civil unions. As we wait to see what happens, it may be a good time to restate our reasons for supporting an amendment.

We support an amendment for two basic reasons: We oppose both judicial lawlessness and same-sex marriage. Many conservatives seem tongue-tied on both points at the moment. It is sometimes supposed that opposition to same-sex marriage is legitimate only if it can be shown that it would have negative consequences that social scientists can measure: if it would reduce rates of marital stability, or by some chain of causes prove bad for children. We do not doubt that same-sex marriage would have substantial negative social consequences. But these consequences would derive from a more fundamental moral flaw. The law would now be teaching that marriage is not what it is, and is what it is not; it would be teaching that same-sex relationships have the same moral status, and should have the same social status, as marriages.

Marriage would not exist in the first place if the conceiving of children were not a regular consequence of heterosexual sex, and it would not have any legal importance if the law were held to have no role in shaping a society's morality. Marriage regulates and ennobles the natural truth of heterosexual coupling, making that coupling the biological foundation of a complete sharing of life. Our culture and law have moved away from this idea of marriage in many ways, but not entirely. We do not need legal changes that move marriage, and thus society, even further away from an orientation toward the rearing of children by their parents.

One common confusion can be dispelled here. We are not saying that we oppose same-sex marriage because homosexuality is immoral. It's more the other way around. An adverse judgment of homosexuality rests on the prior judgments that sex properly belongs to marriage and that homosexual unions cannot be marriages.

If same-sex marriage were triumphing as a result of popular support, it would be pointless to try to stop it by constitutional amendment. But that is not what is happening. Judges are imposing it on the theory that constitutional guarantees of equality and due process entail it. But the law discriminates against no person by maintaining marriage as what it is. The law makes no inquiries into sexual desire: A gay man and a lesbian can get married in any state, if they so choose. The question here is one of definition, not eligibility.

Judges have the power, indeed the duty, to vindicate individual rights that the people, acting through legislatures and the formal amendment process, have decided the government should recognize. It cannot plausibly be said that the people ever decided that two persons of the same sex have a right to marry each other. That judges nonetheless are capable of reaching this result is a testament to the way we have become used to their seizing certain constitutional terms as a warrant for freewheeling political philosophizing. That kind of amendment from the bench now threatens to take another important subject from the people's jurisdiction. We should say no, and the only way to do that is by a constitutional amendment.

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posted by Eve at 10:24 PM | link 0 comments

THE END OF THE GAY MARRIAGE DEBATE?: Jeff Jacoby

THIS IS THE week that same-sex marriage comes to Massachusetts, and thus to the United States. The fundamental building block of civilization is about to undergo a radical change -- a change opposed by a majority of American adults. How did this happen? The joining of gay and lesbian couples in marriage may turn out to be the most consequential development of our lifetimes. How did we get here? The answer to that question has several parts. ...

The Goodridge judges knew they would have the support of the cultural elites, for whom individual autonomy and the pursuit of happiness often seem to be the highest social values. In the allegedly "progressive" mindset, which dominates what you read in the paper and see on TV, social traditions exist to be challenged, family structure is highly flexible, and the mainstreaming of homosexuality is something only haters or fanatics could oppose. ...

But still another part of the answer to "How did we get here?" is that those who defend the traditional definition of marriage have been woefully ineffective in making their case.

Preaching to the converted has its uses, but gay and lesbian advocates didn't move the cause of homosexual marriage from the fringe to the liberal mainstream by speaking only to those who already agreed with them. They made their case in terms that the unconvinced could understand too, and framed their radical proposal as an issue of civil rights and family love. Those are appealing arguments -- especially if they are infrequently rebutted. With so few leaders on the other side making an equally articulate case, it's not surprising that same-sex marriage advanced so far so fast.

Those of us who think this week's revolution is a terrible mistake need to do a much better job of explaining that the core question is not "Why shouldn't any couple in love be able to marry?" but something more essential: "What is marriage for?" We need to convey that the fundamental purpose of marriage is to unite men and women so that any children they may create or adopt will have a mom and a dad.

Marriage expresses a public judgment that every child deserves a mom and a dad. Same-sex marriage, by contrast, says that the sexual and emotional desires of adults count for more than the needs of children. Which message do we want the next generation to receive?

The marriage debate doesn't end this week. Indeed, it may only now be starting in earnest. As Massachusetts goes, so goes the nation? That may depend on whether those who understand what marriage is for, and why its central meaning has endured for millennia, can finally find the words to explain themselves to their countrymen.

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posted by Eve at 10:18 PM | link 0 comments

NO PRIVATE AFFAIR: Colleen Carroll Campbell

...But behind these highly publicized marriages lies a very privatized understanding of marriage. That understanding emerged long before gay activists and activist judges paired up to remake matrimony in their own image. It came to fruition amid the sexual revolution, and manifested itself in rising rates of illegitimacy, divorce, single parenthood, and cohabitation. Today, we are seeing yet another logical consequence of our illogical decision to make marriage a private affair.

Not so long ago--before the birth-control pill, the sexual revolution, and no-fault divorce--couples who chose to marry assumed that procreation and lifelong fidelity were part of the deal. Their families, faith communities, and the courts assumed the same. When men and women vowed to love and honor each other for life--for better or worse, for richer or poorer, in sickness and in health--they did so publicly, in the context of a culture that expected them to make good on their contract and covenant.

Today, that expectation is gone. Traditional marriage, once generally considered the only socially acceptable way for American men and women to share sexual intimacy and a household, is now just one option among many. Serial marriages, "trial" marriages, intentionally childless marriages, common-law marriages, and same-sex marriages are now regarded by many Americans as equally valid options--and equally deserving of public support.

Consider the severed link between marriage and the baby carriage. America's birth rate now hovers around two births per woman, slightly less than the number needed to replace our population. A third of those births are to unmarried women, and nearly a third of American children live with only one parent. Married couples with children--a group that constituted 40 percent of the population just three decades ago--now make up only a quarter of American households.

The marital promise of lifelong fidelity is no longer a norm either. With every other marriage ending in divorce, some 5.5 million Americans are choosing cohabitation instead. That's an increase of 72 percent from the number of couples living together in 1990. ...

...After all, if marriage is only a temporary union of people who share a sexual relationship, how can its benefits be denied to homosexual couples or to heterosexual couples who live as if they are married? And if the meaning of marriage is defined exclusively by individual couples, how can its benefits even be confined to those in a sexual relationship? If marriage is truly a private affair, then any couple or group of people could lay claim to its benefits, and it could benefit anyone.

Except, of course, for those whose welfare has always depended on the special support society gives to traditional marriage, those whose interests are so rarely heard above the din of adults clamoring for their rights. Statistics consistently show that children raised by married mothers and fathers are less likely to be poor, less likely to engage in risky behaviors like premarital sex and drug abuse, and more likely to succeed in school.

Perhaps the children of America should flock to our courthouse doors and demand that we start respecting their rights.

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

THE RISE OF THE GAY FAMILY: From US News and World Report

...Gay families have arrived in suburban America, in small-town America, in Bible Belt America--in all corners of the country. According to the latest census data, there are now more than 160,000 families with two gay parents and roughly a quarter of a million children spread across some 96 percent of U.S. counties. That's not counting the kids being raised by single gay parents, whose numbers are likely much higher--upwards of a million, by most estimates, though such households aren't tracked.

This week, the commonwealth of Massachusetts will recharge the gay-marriage debate by becoming the first state to offer marriage licenses to same-sex couples. The move has raised the ire of conservatives who believe gay marriage tears at the fabric of society--and earned support from progressives who think gay men and lesbians deserve the same rights as heterosexuals. But the controversy is not simply over the bond between two men or two women; it's about the very nature of the American family.

Gay parents say their families are much like those led by their straight counterparts. "I just say I have two moms," says Madison, explaining how she tells friends about her parents (whom she refers to as "Mom" and "Mamma Sheri" ). "They're no different from other parents except that they're two girls. It's not like comparing two parents with two trees. It's comparing two parents with two other parents."

Many of today's gay parents, who grew up with few gay-parent role models, say their efforts have helped introduce a culture of family to the gay community. "In the straight community, adoption is a secondary choice," says Rob Calhoun, 35, who adopted a newborn daughter with his partner 20 months ago. "But in the gay community, it's like, 'Wow, you've achieved the ultimate American dream.'"

The dream has not been without cost, though. Gay parents and their kids in many parts of the country frequently meet with friction from the outside world, in the form of scornful family members, insensitive classmates, and laws that treat same-sex parents differently from straight parents. In general, Americans are split on the subject. A national poll this winter found that 45 percent believe gays should have the right to adopt; 47 percent do not.

Many traditional-marriage advocates argue that marriage is first and foremost about procreation. "It is the reason for marriage," Pennsylvania Sen. Rick Santorum said last summer. "Marriage is not about affirming somebody's love for somebody else. It's about uniting together to be open to children." Other critics call gay and lesbian couples who are raising kids--whether from previous marriages, adoption, or artificial insemination--dangerously self-centered. "It's putting adult desires above the interest of children," says Bill Maier, psychologist in residence at Focus on the Family and coauthor of the forthcoming Marriage on Trial: The Case Against Same-Sex Marriage and Parenting. "For the first time in history, we're talking about intentionally creating permanently motherless and fatherless families."

Evidence? Three decades of social science research has supplied some ammunition for both sides of the gay-parent debate. Many researchers say that while children do best with two parents, the stability of the parents' relationship is much more important than their gender. The American Psychological Association, the American Academy of Pediatrics, the National Association of Social Workers, and the American Bar Association have all released statements condoning gay parenting. "Not a single study has found a difference [between children of gay and straight parents] that you can construe as harmful," says Judith Stacey, a professor of sociology, gender, and sexuality at New York University and a gay-rights advocate.

Stacey and other researchers even suggest that gay and lesbian parents who form families through adoption, artificial insemination, or surrogacy may offer some advantages over straight parents. "In the lesbian and gay community, parents are a self-selecting group whose motivation for parenthood is high," says Charlotte Patterson, a psychologist and researcher at the University of Virginia. But studies on the subject have so far examined relatively few children (fewer than 600, by some counts) and virtually no kids of gay dads.

One study coauthored by Stacey and widely cited by both supporters and opponents of gay parenting found that children of lesbians are more likely to consider homosexual relationships themselves (though no more likely to identify as homosexuals as adults) and less likely to exhibit gender-stereotyped behavior. "If we could break down some of society's gender stereotypes, that would be a good thing," says Ellen Perrin, professor of pediatrics at the Floating Hospital for Children at Tufts-New England Medical Center. Focus on the Family's Maier disagrees: "They don't have rigid gender stereotypes? That's gender identity confusion."

While the debate continues, the number of kids with gay parents keeps growing. According to Gary Gates, an Urban Institute demographer, 1 in 3 lesbian couples was raising children in 2000, up from 1 in 5 in 1990, while the number of male couples raising kids jumped from 1 in 20 to 1 in 5 during the same period. The uptick is partly due to changes in the census itself, which in 1990 tabulated most same-sex couples that identified themselves as married on census forms as straight married couples. In the 2000 census, though, those couples were tabulated as gay and lesbian partners. But the leap in such couples with children is large enough to suggest a real spike. And because gay and lesbian couples are sometimes reluctant to identify themselves as such on census forms, actual figures could be much higher.

Moving in. What's perhaps most surprising is that gay- and lesbian-headed families are settling in some of the most culturally conservative parts of the country. ...States where gay and lesbian couples are most likely to have children (relative to the state's total number of gay couples) are Mississippi, South Dakota, Alaska, South Carolina, and Louisiana, in that order. ...

Most of these children are the products of previous heterosexual relationships. Madison, for one, is Caraway's daughter by a former boyfriend. Caraway says the pregnancy forced her to come to terms with her homosexuality; she started dating Ciancia soon after her daughter's birth. "If you stay in a relationship but you're not in love or committed to the person, children sense that," says Caraway, now 31. "What kind of message does that send?" ...

Support. In recent years, support networks for children of gay parents and for parents themselves have expanded dramatically. Children of Lesbians and Gays Everywhere, or COLAGE, has chapters in 28 states. The Family Pride Coalition, whose dozens of local affiliate organizations attract gay parents who want their kids to meet other children of gays and lesbians, has doubled its member and volunteer base in the past five years, to 17,000. ...

Still, neither COLAGE nor Family Pride Coalition has affiliate groups in Mississippi, South Dakota, or Alaska, the states where gay and lesbian couples are most likely to have kids. ("The way you manage in a more hostile environment," says Gates, "is to go about your business and not draw much attention to yourself." ) Many such states also present the highest legal hurdles for those families. Roughly two thirds of children with same-sex parents live in states where second-parent or joint adoptions--which allow the partner of a child's biological or adoptive parent to adopt that child without stripping the first parent of his or her rights, much like stepparent adoption--has been granted only in certain counties or not at all.

Absent such arrangements, a biological or adoptive parent's partner could be powerless to authorize emergency medical treatment or denied custody if the other parent dies. When Voss and her partner were planning to have their first child, they decided Voss wouldn't carry the baby because her parents--who disapprove of Voss's homosexuality--would have likely claimed custody in the event that their daughter died during childbirth.

Gay-rights advocates argue that it's often children who end up suffering from laws restricting gay parenting--and same-sex marriage. If a parent without a legal relationship with his or her partner's child dies, a 10-year-old child whose nonlegal parent was earning $ 60,000 at the time of death, for example, would forgo nearly $ 140,000 in Social Security survivor benefits paid to children of married couples, according to the Urban Institute and the Human Rights Campaign. That's on top of the more than $ 100,000 in Social Security paid to a widow--but not a gay partner--whose spouse earned $ 60,000. And without laws recognizing them as legitimate parents, nonlegal parents are unlikely to be required to pay child support if they leave their partner.

Recently, some states have further restricted adoption. Earlier this year, a federal appeals court upheld Florida's ban on homosexuals' adopting children, the only one of its kind in the nation. Arkansas now bans gay foster parenting, Mississippi bans same-sex couples from adopting, and Utah bans adoptions by all unmarried couples. "State legislatures that opposed gay marriage are going to push to replicate what Florida has done," says lawyer John Mayoue, author of Balancing Competing Interests in Family Law. "We'll see more of this as part of the backlash against gay marriage."

Even so, more gay couples--especially male couples--are adopting than ever before. A study last year found that 60 percent of adoption agencies accept applications from homosexuals, up from just a few a decade ago. The 2000 census showed that 26 percent of gay male couples with children designate a stay- at-home parent, compared with 25 percent of straight parents.

more, including a chart showing the states' positions on second-parent and same-sex couple adoption
posted by Eve at 5:53 PM | link 0 comments

GAY COUPLES ENTER GOLDEN YEARS WITH MORE RISK: From USA Today

...Older gay couples face a much greater risk of spending the end of their lives in poverty because they're ineligible for a host of federal protections, ranging from Social Security survivor benefits to estate tax exemptions, gay rights advocates say. Couples who have lived together for decades may be barred from sharing a room in a nursing home or an assisted living facility. Many gay seniors fear they'll lose their homes if their partner needs government-subsidized long-term care.

The Human Rights Campaign, a gay rights group, estimates that more than 23% of same-sex couples include a partner 55 or older, and 12% include one who is 65 or older. Their ranks are expected to balloon as 77 million baby boomers -- including millions who are in long-term gay relationships -- reach retirement age.

Some of those couples plan to be at the front of the line today when Massachusetts is expected to become the first state to hand out marriage licenses to same-sex couples. Among them: Gloria Bailey, 63, and Linda Davies, 58, of Orleans, Mass. Both were plaintiffs in the lawsuit that led the Massachusetts Supreme Judicial Court to order the state to issue same-sex marriage licenses. They've been together for 33 years.

Davies recently had a double-hip replacement, and the couple spent many hours looking for a health care facility that would allow Bailey to stay with her during her hospitalization.

"If we hadn't done that legwork, we could have been excluded from each other because we don't have any next-of-kin privileges," Bailey says. "Linda was more worried about whether I was able to be with her than she was about the surgery."

Opponents of gay marriage say couples can protect their interests through joint-ownership agreements, health care proxies and other legal contracts. But more broadly, they argue that marriage shouldn't be defined in terms of the financial benefits it provides.

"We feel that same-sex couples are entitled to the same rights as heterosexual couples," says Ray McNulty, spokesman for the Coalition for Marriage. "However, they do not have a right to overturn and redefine marriage as it has been known for generations in this country."

Same-sex marriage supporters counter that it's impossible to replicate with contracts all the protections marriage provides, which become increasingly important as couples get older.

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posted by Eve at 5:45 PM | link 0 comments

GOODRIDGE = BROWN V. BOARD: From the San Francisco Chronicle

[This is a very bizarre description of the relationship between Brown and e.g. Roe v. Wade. Oh, but there's a familiar face later on in the article.... --Eve]

Fifty years to the day after the U.S. Supreme Court outlawed school segregation, another court ruling will allow same-sex couples to marry in Massachusetts today.

There are many differences between Brown vs. Board of Education and Goodridge vs. Department of Health Services--for one, gays and lesbians have not faced the same historic level of discrimination as African Americans--but the two cases have more in common than a date.

Both the nation's high court and the Massachusetts Supreme Judicial Court used their constitutional power to protect a politically weak minority from state laws that the justices considered discriminatory, directing legal and societal changes from the bench that would not have happened in a state legislature.

In the intervening decades, the U.S. Supreme Court has followed much the same path in rulings that legalized abortion and interracial marriages, outlawed organized school prayer, suspended the death penalty nationwide from 1972 to 1976 and required police to tell suspects of their right to remain silent and consult a lawyer. Last year, the court overturned state laws against consensual sodomy, a ruling that laid the groundwork for the Massachusetts decision on same-sex marriage.

Following the Supreme Court's lead, lower courts have taken control of prisons and mental hospitals after finding that the state was failing to protect inmates, another vulnerable group, from abuse.

The model for each case was Brown, which set a modern precedent for the judiciary as the guardian of rights--some constitutionally specified, some not--for the outcast, the downtrodden and the unpopular. The extent to which courts can, and should, perform that role remains a topic of hot debate.

"When the court advances liberty or equality in a way that the legislature won't, I think the court's performing its highest mission," said University of Southern California Law Professor Erwin Chemerinsky. "I believe that the courts make a positive difference in society."

To take two prominent examples, he said, abortion was illegal in 46 states on the day before Roe vs. Wade was decided in 1973, and legal in all 50 states the day after; private homosexual conduct was illegal in 13 states before the Supreme Court struck down those laws last year.

But John Eastman, law professor at Chapman University in Orange, said courts raise questions about judicial legitimacy when they second-guess elected lawmakers--particularly on subjects that are not mentioned in the Constitution, like abortion and gay rights.

Even in the Brown case, whose equal-protection rationale he supports, Eastman said the court should have confined its ruling to individual students and districts and left broader changes to the democratic process, where they would have been "longer lasting and more stable."

Such critiques are not limited to conservatives like Eastman. Liberal scholar Mark Tushnet's 1999 book, "Taking the Constitution Away From the Courts," advocated relying on political rather than judicial action to protect individual rights. And University of Virginia Law Professor Michael Klarman argues that rulings like Brown and the Goodridge decision in Massachusetts often backfire. ...

The court laid the groundwork for the modern era with a famous footnote in a 1938 case suggesting that minorities who were not protected by the political process were entitled to special constitutional status. It took another 16 years, a procession of new justices and a wave of social changes to turn the judicial theory into dramatic reality.

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posted by Eve at 5:38 PM | link 0 comments

VERMONT'S LESSONS ON GAY MARRIAGE: Howard Dean

IN THE SPRING OF 2000, VERMONT BECAME THE FIRST STATE IN THE UNION NOT ONLY TO RECOGNIZE SAME-SEX PARTNERSHIPS, BUT TO MAKE SURE THAT EVERY SINGLE RIGHT OUTLINED IN THE VERMONT CONSTITUTION AND VERMONT LAWS APPLIED EQUALLY TO HETEROSEXUAL AND HOMOSEXUAL VERMONTERS. EVERY RIGHT BUT ONE. GAY AND LESBIAN VERMONTERS DO NOT HAVE THE RIGHT TO CALL THEIR UNIONS MARRIAGE.

The fallout was the least civil public debate in the state in over a century, since the "wets" and "dries" battled in the middle of the 1800s. Death threats were made, epithets were used, not only on the streets and in the general stores but on the floors of both the Senate and the House, as the bill was being debated. Otherwise respectable church leaders railed against homosexuals and not so respectable ones organized political action committees vowing to oust any legislator who voted for the bill. Five Republican members of the House lost their seats in primaries. In the general election, Democrats lost control of the House for the first time in 14 years, as the Republicans piled up nearly a 20-vote majority. My own race, for a sixth term, was the most difficult in my career.

Four years later, we wonder what the fuss was all about.

Civil unions were never an issue in Vermont in the 2002 election and will not be this fall. The intensity of anger and hate has disappeared, replaced by an understanding that equal rights for groups previously denied them has no negative effect on those of us who have always enjoyed those rights. My marriage has not become weaker.

In fact, the gay and lesbian community has had to undergo a significant adjustment. Couples who have been together for many years have had to reexamine their commitments not only in the light of the full legal rights that married couples enjoy, but in light of the full legal responsibilities that also bind married couples. Same-sex couples in Vermont pay the marriage penalty when filing taxes, and are entitled to equal division of property under Vermont law if they split up. The state and other major employers no longer recognize domestic partnerships for health and other benefits since those benefits are available for those in civil unions or those in marriages, no longer for those of either sexual orientation who are simply living together. Although a majority of Vermonters opposed the bill when I signed it, that is no longer true today.

Is there a lesson here for Massachusetts? Perhaps. The Commonwealth will not collapse today, and the prognosis, based on Vermont's experience, is good.

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posted by Eve at 5:33 PM | link 0 comments

PROVINCETOWN READY FOR THE BIG DAY: From the Boston Herald

The couple who expect to be the first to receive a marriage application here on this landmark day is from Minnesota, and despite legal obstacles the governor has tried to enforce, they plan to marry around noon.

"I don't care about what the governor has to say," said Jonathan Yarbrough, 30, who will reaffirm his legal Canadian marriage to his partner of seven years, Cody Rogahn, 55. The couple called in January to reserve the top spot. "What the governor is doing is shameful in itself." ...

Unitarian Universalist Rev. Alison Hyder said she has no trouble marrying Rogahn and Yarbrough in their Crown and Anchor hotel room once they make the trip back from Barnstable District Court, where they hope to obtain a waiver from the legally required three-day wait. ...

Yarbrough, a part-time bartender who plans to wear leather pants, tuxedo shirt, and leather vest during the half-hour ceremony, has gotten hitched to Rogahn, a retired school superintendent, first in a civil commitment in Minnesota, then in Canada, and now in Massachusetts, the first U.S. state to recognize gay marriage.

But he says the concept of forever is "overrated" and that he, as a bisexual, and Rogahn, who is gay, have chosen to enjoy an open marriage. "I think it's possible to love more than one person and have more than one partner, not in the polygamist sense," he said. "In our case, it is, we have, an open marriage."

Jennifer Germack and Cheryl Andrews, a selectman and local dentist, have an 8:30 a.m. appointment for a marriage license. The couple of three years will plan to tie the knot in a ceremony Thursday.

"It's my big day that I thought I would never have," said an excited Germack, 44, who will wear a black leather mini and stilettos to her wedding. "In my heart of hearts, I felt like I was married to her. But they always talk about how a wedding is such a big day for a woman and I'm finding that it is."

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posted by Eve at 5:21 PM | link 0 comments

BALLOT BANS BENEFIT BUSH?: From the San Francisco Chronicle

Whether or not President Bush ever utters the words "same-sex marriage," strategists from both parties believe the topic is a potent weapon that could contribute significantly to his re-election.

It hardly matters that most voters say the issue will not be a factor in whom they support, or that Bush and Sen. John Kerry, his Democratic rival, oppose the sorts of marriages that begin today in Massachusetts.

With as many as 14 states placing same-sex marriage bans on their ballot this November, some strategists believe hundreds of thousands of voters who might otherwise have stayed home will show up at the polls. And they expect those voters -- many of them religious conservatives -- to vote overwhelmingly for Bush.

"You don't have to squint very hard to see that if this is on the ballot in November, this will be a huge get-out-the-vote boost for conservatives and Republicans," said Jeff Wunrow, executive director of PROMO, a gay rights group in Missouri, where the Republican legislature placed a constitutional ban Friday on gay marriages on the November ballot.

In places like San Francisco and Boston, the politics of gay marriage look awfully risky for Republicans, who could alienate the estimated 1 million gay Americans who voted for Bush in 2000, and millions of moderates who may be turned off by Bush's call for a constitutional ban on same-sex marriage.

But in states such as Missouri, where Bush beat Democratic Vice President Al Gore by 79,000 votes out of more than 2.3 million cast in 2000, or Ohio, where Bush won by just 165,000 out of 5.5 million votes, a heavy turnout among religious conservatives could determine the outcome of the Nov. 2 election.

About 69 million Americans live in the 14 states where opponents of same-sex marriage have strong prospects for placing measures on the ballot. Most of those states already ban gay marriage. But the images of same-sex weddings in San Francisco and now in Massachusetts are prompting opponents to seek state constitutional bans or other stronger legislative language.

Polls suggest that such measures are popular, and some gay leaders fear that if the elections were held today, they would lose by more than a 2-1 ratio. That's good news for Bush -- who is the strong favorite among the 40 percent of the electorate that identify themselves as born-again Christians -- especially if such bans serve as a rallying cry for that group of voters to get to the polls.

"I don't think there's any question that this could effect the outcome" said Phil Burress, chair of the Ohio Campaign to Protect Marriage, the group trying to collect 325,000 signatures to place a state constitutional ban on same-sex marriages on Ohio's November ballot.

Burress cited private polls that show that among those who say they will be drawn to the polls if such a measure is on the ballot, Bush is favored by more than a 5-1 ratio. ...

Some analysts cast doubt that, in the end, the ballot measures will have much effect.

Michigan pollster Ed Sarpolous said interest is already so high in this presidential race, that a ballot measure is unlikely to increase turnout. And he said in states such as Michigan and Ohio, the large number of Catholic Democrats make it difficult for Republicans to boost their numbers simply by turning out the religious vote. He said a 1998 physician-assisted suicide measure placed on the ballot by religious conservatives was one of the reasons that Jennifer Granholm, a Democrat, won the governorship.

"In Michigan, every time the conservative right, funded by the GOP, tries to use conservative issues to generate voter turnout, it costs them votes. In Michigan, as you turn out conservative voters, a lot of them are Catholic and a lot of them are Democrats."

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posted by Eve at 5:14 PM | link 0 comments

YEARS OF LEGAL MUDDLE AHEAD IN OTHER STATES: From the Pittsburgh Post-Gazette

...Among the dozens of questions that will face gay couples who get legally married in coming weeks:

Will they file state taxes jointly but not their federal taxes? Could one spouse sponsor another for permanent residency in the United States? Most states do not recognize gay marriages, but will they check to see if a married couple from Massachusetts is gay after they take up residence and apply for family health insurance from one spouse's employer? How will courts in other states handle divorces, property transfers, inheritance or child support? If one spouse is disabled in another state, will the other spouse be blocked from making medical decisions on his or her behalf?

"I think the common misperception out there is that there is going to be some big, grand constitutionally based marriage decision that's going to resolve all of this patchwork quickly. That's not going to happen," said Matt Foreman, executive director of the National Gay and Lesbian Task Force.

"There is no clear legal picture. It's going to be a patchwork. Some states are going to honor same-sex marriages, some states are not, and some states are going to fall somewhere in between."

Glenn T. Stanton, senior analyst for marriage and sexuality for Focus on the Family, a main opponent of gay marriage, agrees.

"There are potentially 49 other judicial time bombs ready to go off," he said. "We're not talking about just Massachusetts. We are talking about these battles, these fights, being brought to every one of the states and that is why [some state legislatures] are pushing so hard to get constitutional amendments [to ban gay marriage]."

The one legal arena where things seem clear, at least for now, is federal law.

Under the 1996 Defense of Marriage Act signed by President Clinton, marriage is defined as a union between a man and woman and the word "spouse" refers only to a person of the opposite sex. That means same-sex couples who marry in Massachusetts will not be able to file joint federal tax returns or receive federal benefits, such as Social Security survivor benefits.

The Defense of Marriage Act also holds that no state is required to recognize same-sex marriages performed in other states. ...

There also are likely to be legal challenges to the constitutionality of the federal Defense of Marriage Act. Foreman expects the first lawsuits to be filed by the end of the year. ...

Laurence H. Tribe, a professor of constitutional law at Harvard Law School who supports the legalization of gay marriage, thinks the most vulnerable provision of the Defense of Marriage Act is the license it gives states to ignore same-sex marriages from other states. ...

Cheryl L. Andrews, a selectman in Provincetown, Mass., is planning to marry her partner Thursday, the first day that same-sex marriages can take place after the mandatory three-day waiting period.

One thing she thought a lot about is how to handle her income tax forms. Asked whether she plans to check the married box, she answered: "You bet."

"Whether or not the federal government is going to find that they have the free time and money to spend taking gay couples to court to challenge their tax returns is going to be a rather awkward situation for them," Andrews said. "I'm going to be hard-pressed as a married woman to lie and perjure myself on a federal document and say I'm single."

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posted by Eve at 5:07 PM | link 0 comments

CT ATTORNEY GENERAL'S STATEMENT

[Emphasis added. -Eve]

Attorney General Richard Blumenthal today released a legal opinion saying same-sex couples cannot marry in Connecticut, because our statutes do not allow or authorize issuance of marriage licenses to same-sex couples.

Blumenthal issued his opinion in response to written inquiries by municipal officials on how to respond to same-sex couples seeking marriage licenses in Connecticut towns and cities.

"Under current law enacted by the General Assembly, same-sex couples cannot legally marry in Connecticut," Blumenthal said. "The legislature has provided no legal authority to issue a marriage license to a same-sex couple. Whatever our own personal beliefs, we are bound by the laws adopted by our legislature and interpreted by our courts. Our law can be altered--and is developing--but that is the responsibility of our General Assembly."

"We decline to answer another legal question: To what extent will Connecticut recognize same-sex marriages performed out of state? An answer would require me to make law, not interpret it. Neither the legislature nor the courts have addressed the issue sufficiently for me to reach a definitive conclusion. Ultimately, it is their role and responsibility to provide clearer direction through statute or judicial ruling. Equally important, the issue may be raised in various forms, such as cases of inheritance, tax, divorce, adoption, workers compensation or health care benefits. The outcome may depend on the specific purpose or context, and may not involve the State at all. An abstract blanket answer would be ill advised and inappropriate."

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

NEW YORK MAY HONOR OUT-OF-STATE MARRIAGES: From the New York Times

As car after car of gay New Yorkers hoping to marry head toward the Massachusetts border, Attorney General Eliot Spitzer has not closed the door to the possibility that New York will recognize same-sex marriages performed in that state.

In a letter to Gov. Mitt Romney of Massachusetts, Mr. Spitzer disagreed on Thursday with Mr. Romney's assessment that marriages performed in Massachusetts would not be considered valid in New York.

In his letter, Mr. Spitzer referred Massachusetts officials to the advisory opinion he wrote shortly after the mayor of a small upstate town began marrying gay couples in March.

In that opinion, which was not legally binding, Mr. Spitzer said New York's marital laws did not permit same-sex marriage because the topic was not addressed in the state's statutes. But, he asserted that New York law would require the state to recognize marriages legally performed in other states.

Though Governor Romney has directed otherwise, some Massachusetts communities, like Springfield and Provincetown, say they plan to marry out-of-state applicants.

Thirty-nine states have passed so-called defense-of-marriage acts, which shield them from recognizing gay marriages performed elsewhere, and three states have laws prohibiting same-sex marriage. Seven states, including New York, New Jersey and Connecticut, make no mention of the subject in their Constitutions.

Mr. Spitzer's correspondence with Mr. Romney was in response to letters sent to all states by the attorney general of Massachusetts saying that the state would not perform weddings for gay couples coming from states where the marriages would be considered void.

Attorneys general for Connecticut and Rhode Island said yesterday that they would issue opinions on Monday. ...

Ultimately, aides to Mr. Spitzer said, all of the issues regarding gay marriage will have to be resolved in the courts.

The office of Gov. George E. Pataki of New York issued a statement through a spokesman discouraging gays from going to Massachusetts to marry. "The governor of Massachusetts indicates in his letter that it is their view that New York law does not permit the marriage of same-sex couples," the statement said. "We share that opinion."

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posted by Eve at 4:53 PM | link 0 comments

IN MIDDLE AMERICA, A MIX OF HOPE AND ANXIETY: From the Boston Globe

In the American heartland, where billboards reading "Jesus Saves" loom beside highways and where many people proudly count themselves as Christian conservatives, the communities of gays and lesbians are awaiting the dawn of same-sex marriage in Massachusetts with a mixture of elation and apprehension.

Some say they have already booked tickets to Boston and onward to Provincetown, where they hope to exchange vows with beloved partners -- even though marriages between out-of-staters may be illegal in Massachusetts and have zero chance of being recognized under laws back home.

Meanwhile, gays and lesbians across the Midwest are bracing for a political backlash over the controversial ruling of the Massachusetts Supreme Judicial Court.

"In the long run, I feel gay marriage is inevitable everywhere, even conservative places like Missouri," said Michael G. Getty, 34, a linguist in St. Louis who is gay. "But in the short term, there's going to be a lot of fear and hate-mongering. Just because you see some gays portrayed positively on TV doesn't mean Joe and Jill America are ready to have us raising kids next door." ...

"Massachusetts is very much on the minds of ordinary Missourians," said Vicky Hartlzer, spokeswoman for the Coalition to Protect Marriage in Missouri, the political organization behind the push to amend the state constitution. ...

Jeff Wunrow, executive director of PROMO, a Missouri gay and lesbian group, called the advent of single-sex marriage in Massachusetts a significant triumph -- but probably not the sort of world-turned-upside-down victory that some heady Bay State activists have proclaimed. "At best, the day that Massachusetts makes history will mark the day that the real uphill battle begins for gays and lesbians in the rest of America," he said. "We're thrilled for our brothers and sisters in Boston. But we also recognize that Massachusetts is going to become a powerful rallying cry for opponents. A triumph in one place will inevitably mean a kick in the head for gays and lesbians elsewhere, in states where we are still vulnerable."

He was referring to the recent impetus given to opponents of single-sex marriage nationwide -- in at least 24 states, including Missouri, legislators are pushing for state constitutional amendments banning single-sex unions. Such amendments may be more difficult to overturn than simple statute laws.

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posted by Eve at 4:47 PM | link 0 comments

CHEROKEES RUSH TO CLARIFY MARRIAGE LAWS: From the Boston Globe

Cherokee Nation officials are scrambling to clarify their marriage laws after a lesbian couple obtained an application for marriage. Gay-rights activists hoped the tribe's sovereign status would force recognition of gay marriages in Oklahoma, which bans same-sex weddings but honors Cherokee marriage applications. But tribal leaders said they have no intention of allowing such marriages.

A day after the application was issued Thursday, a tribal judge issued a moratorium on same-sex marriage applications while tribal officials work to clarify their marriage laws.

"We believe the definition of marriage is only between a man and woman," Principal Chief Chad Smith said. "Any other marriage application would not be valid."

Marriage applications are issued by the tribe instead of licenses. After the ceremony, the person conducting the wedding signs the application, and the couple returns it to the tribal court for certification, said tribal spokesman Mike Miller. ...

The marriage application was obtained by two Tulsa-area women who are planning a wedding, said David Cornsilk, a Cherokee activist who encouraged the couple to get the document. The women's names have not been released.

"They want it to be private. They don't want to be crusaders," Cornsilk said. "They're just wanting to enjoy the benefits of the tribe to which they belong."

State Attorney General Drew Edmondson has said that federal law does not require Oklahoma to recognize same-sex marriages from other states, but some gay-rights advocates contend tribal marriages may not be rejected as easily.

"The fact remains that the Cherokee Nation is rightfully a sovereign nation and their decision on their sovereign property takes precedent," said Jim Craig, coordinator of the Interfaith Diversity and Equality Association.

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

A WEDDING TOAST: Boston Globe editorial

...The question of gay marriage has always been, simply and fundamentally, about people--their dreams, their rights, and their love. Remembering this amid the inevitable media carnival that will greet the first same-sex marriages performed under the law in Massachusetts will do a lot to help keep everybody grounded.

This day is for Hillary and Amy Goodridge, who have been in a committed relationship for 13 years and have together raised a 5-year-old daughter. It is for David Wilson and Robert Compton, men in their 50s who cared for David's mother at their home until she died. It is for Michael Horgan and Ed Balmelli, each from large Boston-area families, who host Thanksgiving dinners and dote on their many nieces and nephews.

It is for thousands of other same-sex couples who will now be able to declare their devotion legally: a basic civil right to a vital social institution.

It is also a day for Massachusetts citizens to take pride in once again being at the forefront of revolution. Family law has been slowly changing to accommodate the facts of today's relationships: adoptions, blended families, stepparents, multiracial families. Today confirms one more truth.

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posted by Eve at 4:43 PM | link 0 comments

CLERKS IN POLITICAL TIGHT SPOT: From the Boston Globe

...These are trying times for the state's 351 city and town clerks. Threatened with legal action by the governor, hounded by journalists, and summoned to training sessions with the Romney administration, clerks from the Berkshires to Cape Cod find themselves thrust into the center of the legal and political struggle that is same-sex marriage in Massachusetts.

It is an unusual position for a group of modestly paid public servants accustomed to working behind the scenes of local government, issuing dog and fishing licenses, publishing annual street lists, keeping the minutes of local meetings, and performing the other largely thankless tasks that keep municipalities running.

Ron Fucile, 66, never anticipated handling a gay-marriage controversy when he was appointed Walpole town clerk a decade ago after a friend left the position.

"I don't know if I would have taken the job," the former engineer said. "It would have been a difficult decision at the time."

Clerks in Massachusetts are either elected or appointed. They serve two- or four-year terms, depending on the municipality. They are paid on average about $40,000 a year, although the Springfield clerk earns $100,000 and the clerk in the tiny Western Massachusetts town of Mount Washington earns $765, said Linda E. Hutchenrider, president of the Massachusetts Town Clerks' Association.

Despite such modest salaries, they are facing potentially big penalties today. Governor Mitt Romney, a gay-marriage opponent, warned last week that he would strictly enforce a 1913 law that he says forbids out-of-state gay couples from marrying in Massachusetts.

"I expect local officials to follow this law regardless of their personal views," Romney said.

Under state law, knowingly violating the 1913 statute could carry a fine of between $100 and $500 or up to a year in prison or both.

"This has definitely been a first for the clerks," said Hutchenrider, the Barnstable town clerk, who said she could not recall a clerk in Massachusetts ever going to jail. "From the small town to the big city, we've just been in a state of flux."

Clerks in at least three communities--Provincetown, Somerville and Worcester--have challenged Romney's directive, saying they plan to issue licenses to same-sex couples who live in other states.

To stop the clerks, Romney appears to have two options, said Paul W. Johnson, a former chief legal counsel in the Weld and Cellucci administrations. The governor could ask Massachusetts Attorney General Thomas F. Reilly to seek a court injunction barring clerks from issuing marriage licenses or ask Reilly or district attorneys to prosecute clerks for violating the 1913 law, Johnson said.

The governor's threat of legal action against clerks has made them uneasy. On the Massachusetts Town Clerks' Association online discussion group, clerks have been venting their frustrations about the legal hassles.

The run-up to gay marriages has also been exciting for many clerks. ...

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posted by Eve at 4:40 PM | link 0 comments

REACTION IN MASS. CHURCHES: From the Boston Globe

The clergy and congregation at New Covenant Christian Church in Mattapan have been persistent, determined critics of same-sex marriage, but yesterday, on the eve of today's start to legal same-sex weddings in Massachusetts, the church's senior minister, Bishop Gilbert A. Thompson Sr., acknowledged defeat, at least for the moment.

"We recognize some things are going to change," he told about 1,200 worshipers gathered at the state's largest Protestant church, a nondenominational evangelical congregation.

At churches throughout Eastern Massachusetts yesterday, the fiery rhetoric of battle gave way to an acceptance--grudging in some cases, celebratory in others--that today men are going to marry men and women are going to marry women in the Commonwealth of Massachusetts. ...

Asked later why same-sex marriage was not discussed at greater length, an associate pastor, Troy Goode, said, "At this stage of the game, we don't know what to do." Goode said the legalization of same-sex marriage is "an attack" on traditional marriage and he called the debate "insulting" to African-Americans because it has been compared to the civil rights movement."We've done all we know how to do, and now it's in the Lord's hands."

At Union Baptist Church in Cambridge, another church whose leader has been an outspoken critic of same-sex marriage, the pastor focused on cautioning parishioners not to get involved with any groups that foment violent or inflammatory protests. ...

Parishioners said they were still concerned. "Further down the road for generations, this is going to affect us and our families," said Anna Dreher of Medford. But like the clergy, she emphasized tolerance, saying of same-sex couples, "We're going to love them, we're going to accept them. They're human and we're human and just have different views. And God has his eye on the whole situation, anyway." ...

A handful of congregations yesterday held celebrations of the state's plans to grant marriage licenses to same-sex couples starting today. In Littleton, for example, First Church Unitarian held a special service to congratulate its gay and lesbian members.

"Why is a church celebrating a court decision? We celebrate when law makes justice, because justice is essential to religion," said the Rev. Fred Small, the minister of the Unitarian Universalist congregation. "When it is not, religion has slipped its moorings and drifted from the divine."

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posted by Eve at 4:35 PM | link 0 comments

PRESIDENT BUSH'S STATEMENT TODAY

The sacred institution of marriage should not be redefined by a few activist judges. All Americans have a right to be heard in this debate. I called on the Congress to pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of a man and a woman as husband and wife. The need for that amendment is still urgent, and I repeat that call today.

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posted by Eve at 4:19 PM | link 0 comments

SSM OPPONENTS IN MASS. KEEP LOW PROFILE: From the New York Times

To some parishioners attending the Trinity Evangelical Church near here, the advent of same-sex marriage called to mind the biblical cities of Sodom and Gomorrah.

Over coffee and doughnuts after the 8:30 a.m. service, Anthony Radzikowski predicted "confusion." He contended that opponents of same-sex marriage would ultimately prevail in passing an amendment to the State Constitution banning the practice.

"What do you tell the people who were married?" he asked.

Peter Grasso, another parishioner, interrupted. "It makes me ashamed," he said. "This used to be the most moral state in the union. You couldn't even have a dirty picture in the state until the liberals got into it."

"Until they can prove that two men or two women can have children," Mr. Grasso added, "to me it is not marriage. It is filth."

The main opponents of same-sex marriage in Massachusetts, most of them conservative Christians, said they planned to keep quiet and stay out of the way as gay people began celebrating their first marriages, in part to distance themselves from any unseemly or violent protests that might take place. In a statement, Archbishop Sean P. O'Malley of Boston reminded Catholics that "our sadness at what has happened should not lead us into anger against or vilification of any group of people, especially our homosexual brothers and sisters."

But the foes of same-sex marriage also vowed to keep up the fight for amendments to both the state and federal constitutions banning the practice. Some said they were worried that the sight of gay weddings would make people more tolerant of homosexuality. Several pastors involved in the fight said they planned to use sermons and church events to rally their congregations around the positive idea of supporting marriage--meaning heterosexual unions--without deprecating gay people directly.

The battle has already had an effect on the pastors involved, pulling some into political involvement for the first time, leading one to run for Congress and forging new alliances between white conservatives and black and Hispanic pastors. (Some Protestant churches, most notably the United Church of Christ, support same-sex marriage.) ...

Roberto Miranda, pastor of the Lion of Judah, a largely Hispanic church here, said he indeed worried that the advent of same-sex marriages would "desensitize" people to homosexuality. ...

Still, Mr. Miranda too said opponents of same-sex marriage should take a positive tone, emphasizing support for heterosexual marriage. "We need to clean up our own act as well as challenge the acts of others," he said. "We need to preach more about the sacredness of marriage. Even in our own church, divorce is more common than we want."

"We need to go beyond being against something," Mr. Miranda added. "We need to be for something, that marriage needs to be strengthened." ...

Like Mr. Miranda, Bishop Gilbert A. Thompson, pastor of the predominantly black New Covenant Christian Church and president-elect of the Black Ministers Alliance here, finds himself in an unusual collaboration with white conservatives, although some of his stances may differ from theirs.

In his sermon on Sunday, for example, he told the congregation that he would support gay people "in giving them the freedom to live the way they want to be" before reiterating his position that they "do not have the right to redefine marriage and family." He added: "It is a biblical position. It is not a conservative position."

In an interview, Bishop Thompson clarified his stance, saying that as a matter of biblical principle he viewed homosexuality as "moral pollution." But he said that his main concern was with the public's definition of the institution of marriage, and that he did not mind the creation of same-sex civil unions with similar rights. "Hospital visitation rights--why wouldn't I want that?" he said.

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posted by Eve at 4:11 PM | link 0 comments

WHAT I SAW (OR DIDN'T SEE) AT THE SEXUAL REVOLUTION: Gabriel Rosenberg replies to Maggie Gallagher

As promised earlier, I wanted to explore the following eye-catching paragraph from Maggie Gallagher's latest op-ed, "Traditional Marriage Will Always Prevail". She writes:

"Advocates of same-sex marriage try to make it sound as bourgeois as possible, but gay marriage is really the triumph of the most radical ideas of the sexual revolution: that gender doesn't matter, children are secondary, expressing your authentic sexual self is more important than, well, practically anything else."

I want to examine the specific charges one by one, but first I want to note how surprised I was that somebody would consider gay marriage a triumph of the sexual revolution. When I think sexual revolution I think sex outside of marriage, casual sex with multiple partners, in short sex without responsibility. Gay marriage seems to me to be the opposite of that. ...

Those, however, are just my views when I hear the words "sexual revolution". Gallagher does give us the specific ideas she had in mind. Ideas which she associates with the sexual revolution. Let us examine them one by one.

Gender doesn't matter. ...If gender didn't matter, there wouldn't really be such a thing as "gay". People would think nothing of saying gays should just marry people of the opposite sex. What difference does it make, if gender doesn't matter? On the contrary I would say that to most gays and lesbians, gender matters a great deal. But gay marriage does champion the idea that the individual is more important than the gender. Those seeking marriage licenses are not looking to marry some guy or some girl. They want to marry the particular individual with whom they fell in love and with whom they want to live their lives. Gender is part of who that loved one is, but that person is more than just his or her gender. Relatedly, the idea of gay marriage is not that gender doesn't matter, but rather that the goverment should not base one's rights on one's gender. I would be appalled at a law which forbade interfaith marriages. That does not mean I don't think faith matters. I think it matters a great deal, especially in marriage. I just think it should be up to the individual, and not the government, to make that decision.

Children are secondary. This is an issue I've discussed quite frequently on these pages so I will be brief here. Denying same-sex couples and their families from marriage hurts children. Regardless of how one feels about same-sex parenting, withholding marriage from a child's parents is not going to change who the parents are. It only denies the child the protections that marriage could offer his or her family.

Expressing your authentic sexual self is more important than, well, practically anything else. I think Gallagher is referring here to coming out. I have gotten the impression that Gallagher believes the proper course for gays and lesbians is to remain closeted and to marry someone of the opposite sex. I do not believe this course is good for the health of the closeted individual or his or her spouse. ...It is simply a matter of disagreement about the effects of "coming out," not its worth. And legalizing gay marriage doesn't even take sides on that issue as much it is says it is for the individual to make that decision. ...

So I do not see gay marriage as a triumph for the ideas of the sexual revolution, or even for the ideas Gallagher associates with the sexual revolution. Rather I see it as a triumph for the ideas of the American Revolution: that all men are created equal, and that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

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posted by Eve at 2:15 AM | link 0 comments

"THE SAME-SEX MARRIAGE ARGUMENT JUSTICE SCALIA FEARS": Emily Bazelon

[I do wonder how one gets a fishing license--that is, a license to determine which laws "appear fishy." Because I totally want one. I promise I wouldn't spend it all in one place. --Eve. PS: Scalia is wrong, here.]

...The opinion in Goodridge v. Department of Public Health drew moral force from an historical analogy between gay marriage and interracial unions, but its legal analysis was simple. The four justices in the majority flatly said that Massachusetts had no rational basis for reserving marriage for opposite-sex couples.

There's another, stronger line of reasoning they could have used, however, one that's become a topic of intense conversation in law school circles in the past year and a half. It was developed by Pamela S. Karlan and William B. Rubenstein, law professors from Stanford and UCLA respectively, and it has a nickname: "rational basis-plus." Karlan and Rubenstein wanted to ease the way for the Supreme Court's moderates to expand equal protection law, both for gay rights and more generally. And even Justice Antonin Scalia, no friend of the concept, has signaled that their approach may be the smoothest path to winning gay marriage throughout the country.. . .

The basic question in cases like Goodridge is whether the 14th Amendment's guarantee of equal protection under the law means that gay couples have the same right to civil marriage that straight couples do. In federal court and in many state courts, equal protection cases are accorded one of two kinds of review. When people challenge a law that treats them differently because of their race, religion, or national origin, courts apply a "strict scrutiny" standard, meaning they give the law a close and skeptical look. Laws that treat people differently on the basis of gender get "intermediate scrutiny," which often amounts to the same thing.

Laws that treat other groups differently, however, receive greater deference. When reviewing a law that distinguishes between people on the basis of age, for example, courts ask only whether the state has any conceivable rational basis to justify the distinction. That bodes ill for gay marriage claims, since states can easily come up with some halfway plausible reason -- encouraging procreation, say, or preserving government resources -- for maintaining the status quo.

But there have been a few key exceptions to that definition of rational basis, and they are the starting point for Karlan and Rubenstein's alternate test. In the 1985 case City of Cleburne v. Cleburne Living Center, the city of Cleburne, Texas, denied a zoning permit to a group home for the mentally retarded by imposing construction requirements not required for other group residences. When the case arrived at the US Supreme Court, the justices rejected a lower court's decision to apply strict scrutiny, but noted that rational basis review did not leave the mentally retarded "entirely unprotected from invidious discrimination." The denial of the zoning permit still had to be "rationally related to a legitimate government purpose," Justice Byron White wrote. After reviewing the facts of the case, the court found no such purpose -- only "an irrational prejudice against the mentally retarded."

The case came up again in 1996 when the Supreme Court heard Romer v. Evans, which involved a challenge to an amendment to the Colorado constitution that ordered cities to exclude gay people from anti-discrimination legislation. Drawing on Cleburne, the Court said the Colorado amendment failed the rational basis test, because it subjected gays to "disfavored legal status" out of prejudice.

Cleburne and Romer exemplify "rational basis-plus," Karlan and Rubenstein argue. When politically vulnerable groups like gays and the mentally retarded challenged a law for discriminating against them, the Court's analysis began with the question: Does the state have a legitimate purpose for treating these people differently from others? In addition, Karlan and Rubenstein argue based on other precedents, courts should be especially careful about equal-protection challenges to laws that involve fundamental rights, like marriage. In other words, rational basis review shouldn't be a free pass for the state when the reasons for a law appear fishy, and when an important right is on the line. ...

But O'Connor may be overconfident in thinking that rational basis-plus stops exactly where she says it does. Or at least that's what Justice Scalia thinks. "'Preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples," Scalia pointed out in his dissent. O'Connor's reasoning, he continued, left state marriage laws "on pretty shaky grounds."

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posted by Eve at 2:08 AM | link 0 comments

WEDDINGS HELD TO DEFY STATE: From the Arizona Republic

"I present to you, as spouses, Tom and Karl," the pastor said to the wedding guests.

"You may seal your vows with a kiss."

That's how the Rev. Brad Wishon ended the wedding he solemnized for Tom Mischnick and Karl Monical in one of 40 same-sex nuptials he and three other pastors performed illegally Saturday in Phoenix.

The ministers intend to take signed and notarized affidavits confirming the weddings to the Superior Court clerk Tuesday as a protest and act of civil disobedience timed to coincide with the first legal same-sex marriage licenses that will be issued Monday in Massachusetts.

"I'm having a blast," said the Rev. Charlotte Strayhorne, one of the ministers performing the services. "The special part is when I get to say, 'By the power vested in me by the state of Arizona.' " ...

"For us it's a renewal of our vows as well as a statement of protest," Mischnick said of Saturday's wedding. "We love each other just like a heterosexual couple: We should be allowed to marry just like a heterosexual couple." ...

Same-sex marriage will be discussed by the Arizona Supreme Court May 25, when it decides whether to hear arguments in the case of Don Standhardt and Tod Keltner, who applied for a marriage license last July and were denied. Standhardt and Keltner were at Saturday's services but did not get married.

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

MASSACHUSETTS: THE NATIONAL EFFECT: From the Christian Science Monitor

...As out-of-state couples return home, they will force new clarifications and confrontations over everything from hospital visitation rights to spousal benefits on the job.

Even in Massachusetts--with one of the nation's strongest Catholic as well as gay communities--the debate may deepen as public officials, churches, and families sort through their own personal and institutional responses to the new reality.

"There's an emulation effect that will take place here," says Gerald Benjamin, a political science professor at the State University of New York, New Paltz. "What's happening in Massachusetts will overtake and force the agendas of other states." ...

New York's attorney general has said his state--which has no defense of marriage act (DOMA) prohibiting gay unions--will recognize the Massachusetts licenses.

Attorneys general for Connecticut and Rhode Island, neither of which has a DOMA law, said they would decide Monday how to treat the licenses.

These liberal states with close proximity to Massachusetts are among those where government action affirming gay marriage could come soon.

"The most vocal people--or even governments--in an area pull others toward them," says James Gimpel, a political science professor at the University of Maryland, College Park.

Yet in states like New York, where Republicans hold the governor's mansion as well as a majority in the Senate, a law legalizing gay marriage likely will not be passed any time soon.

In such states, most observers believe the ripple effects from Massachusetts will first be felt at the grass-roots. Goldman, for one, plans to demand that her partner be covered under her healthcare plan. Others will test the granting of power of attorney and hospital visitation rights. ...

Darin Moore and Trey Watts, a gay couple in Oklahoma City, do not intend to go to a court house immediately after they return from getting married in Massachusetts next week. But Mr. Watts says he is not afraid of testing his Massachusetts license in court if the need arises.

Watts is currently lobbying against a constitutional referendum vote in Oklahoma banning gay marriage. He adds that if their joint tax return is rejected next spring, "we've got a lawsuit."

About 10 states are likely to vote on similar constitutional amendments this fall. These laws, along with the DOMA laws in 36 states, could prove virtually impossible to overturn.

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posted by Eve at 1:54 AM | link 0 comments

MASSACHUSETTS ROUNDUP

Lots of scene pieces. Here are some good ones.

NY Times

Out-of-state couples

MA Youth Pride reactions. Wow. I am thinking about when I was 17 and could have said, like one 17-year-old girl here, "I came out of the closet a while ago." (Hey man, four years is a long time when you're 17!) Life is much more simple when you're young, as they say.

"'That kind of ketubah, we don't have them here,' he said politely. ...Now, she realized, there was something bigger to worry about: the possibility that being allowed to marry would not change anything anyway."

Clergy divided: "Just as the political shock waves of the Massachusetts court decision reverberated across the nation, many religious leaders think the theological ripples will spread outward."
posted by Eve at 1:34 AM | link 0 comments

DAVID MORRISON COMMENTS ON INTERVIEW WITH MASS. JUSTICE OF THE PEACE WHO RESIGNED RATHER THAN PERFORM SSM

[Everything that follows is from Morrison:]

This link is to an audio file of an interview on NPR this morning with Linda Gray Kelly, a Justice of the Peace in Massaschusetts who resigned her position as a JP rather than marry same sex couples. I have to follow the law of God and my Catholic faith, Gray said in her letter, if my memory serves.

A couple of things stood out for me in this story:

First that, according to Gray, Massachusetts' JPs had been assured that there would be a conscience clause in the policy that would have served to direct same sex couples to JPs who would marry them and away from JPs would could not do so in good conscience. That never materialized.

Second, unlike public officials like the Mayor of San Francisco who have gotten a lot of press of late because they decided to break their state's laws rather than comply with those with which they disagreed, here is a public official who put her job where her convictions are and resigned rather than do what the believed would be wrong. I salute Ms. Kelly's integrity and committment to the rule of law, even as a feel badly with her for the loss of a job she clearly enjoyed.

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posted by Eve at 12:21 AM | link 0 comments