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 Friday, June 25, 2004
MARRIAGE AND STRIPPING: Ramesh Ponnuru
In recent weeks, House Republicans have gotten behind a "two-vote strategy" on same-sex marriage. They want to vote on a bill before voting on a constitutional amendment. "Which bill?" has been the main subject of debate. Some Republicans want to vote on a bill that would block same-sex marriage in the District of Columbia. Others are seeking a vote on Indiana congressman John Hostettler's bill to remove the federal courts' jurisdiction over the Defense of Marriage Act. Majority leader Tom DeLay is said to fall in the latter camp. But the Family Research Council, one of the strongest social-conservative organizations, is opposed to DeLay's apparent strategy. ... Tony Perkins, the president of the Family Research Council, has two objections to the Texan's two-step. The first sounds like an objection to any two-vote strategy. "We're not in favor of having two measures moving because we feel like it will give some people a way to take cover," he tells me. "They can vote for one and say that they've done what they can do to protect marriage--and not do what needs to be done, an amendment." Second, Perkins says that the Hostettler court-stripping bill would accomplish very little. It would block the federal courts from striking down the Defense of Marriage Act. But it would not block state courts from imposing same-sex marriage, as in Massachusetts. Nor would it block federal courts from imposing same-sex marriage: Any federal court could find that current state marriage laws amount to unconstitutional discrimination without touching the federal Defense of Marriage Act. Nor would the Hostettler bill stop federal or state courts from unbundling the elements of marriage and providing them to same-sex couples one benefit at a time. ... There's another strategic problem with the Hostettler strategy. Let's assume that Perkins, DeLay, and Schlafly are right and that the political branches should assert their power to regulate the federal courts' jurisdiction. (I certainly believe that they are right about this specific point.) The propriety of this kind of court-stripping is nonetheless very controversial. Building the respectability of the idea is a long-term project. It would make sense to start with an issue where the public is very strongly on conservatives' side: Todd Akin's bill to strip the lower federal courts of jurisdiction over challenges to the Pledge of Allegiance, for example. In the case of the Hostettler bill, on the other hand, both the controversy over marriage and the controversy over court-stripping would combine to sink the bill. Many conservatives who oppose same-sex marriage but are conventional in their view of the relationship between the courts and the legislature would vote against it. Conservatives whose main concern is to amend the Constitution to prohibit same-sex marriage would not have furthered their goal. Neither would those conservatives whose main concern is reining in the courts. more
IN DEFENSE OF THE FAMILY: Maggie Gallagher
Mitt Romney is a brave man. While the GOP glitterocracy attended the first gay wedding of one of their own, Gov. Romney was in Washington, D.C., making the single most eloquent and articulate defense of our traditional understanding of marriage I have heard from an American politician. ... Then he asked the question we should all be asking: "Given the decision of the Massachusetts Supreme Judicial Court. . . Should we abandon marriage as we know it and as it was known by the framers of our Constitution? Has America been wrong about marriage for 200 plus years? Were generations that spanned thousands of years from all the civilizations of the world wrong about marriage? Are the philosophies and teachings of all the world's major religions simply wrong? Or is it more likely that four people among the seven that sat in a court in Massachusetts have erred? I believe that is the case." Then Mitt Romney put his finger on where the error comes from: the limited perspectives of lawyers and judges. "They viewed marriage as an institution principally designed for adults. Adults are who they saw. Adults stood before them in the courtroom. And so they thought of adult rights, equal rights for adults. If heterosexual adults can marry, then homosexual adults must also marry to have equal rights." But, he went on, marriage is not solely for adults. "Marriage is also for children. In fact, marriage is principally for the nurturing and development of children. The children of America have the right to have a father and a mother." The advocates tell us the skies have not fallen in Massachusetts; nothing has changed, they assure us. Romney points out that small things have already begun to change, foretelling the bigger, sadder changes to come. First, the marriage licenses change so they no longer read husband and wife but "Party A" and "Party B." The Department of Health insists that birth certificates also change. The line for mother and father becomes "Parent A" and "Parent B." So far the governor has resisted, but ultimately the same court that could see no reason why marriage involves a husband and wife other than "animus" will decide whether or not we still think the language of mothers and fathers is appropriate. ... The transformation of mother and father into "Parent A" and "Parent B" is the model of the paradigm shift now underway in Massachusetts. The distinctive features of the union of male and female are going to have to be removed from our notions of marriage and family. The experience of same-sex couples will become the new norm for family life, because the "unisex" idea that gender has no public significance is the only model that can be construed as "inclusive" of both opposite-sex and same-sex unions. The result is not neutrality but the active promotion of a new unisex ideal, in which the distinctive features of opposite-sex relations will be submerged, marginalized, cast to one side, and redefined as discrimination in order to protect the new court-ordered public moral standard of the equality of same-sex and opposite-sex couples. Here's Gov. Romney's estimate of the future: "[C]hanging the definition of marriage to include same-sex unions will lead to further far-reaching changes that also would influence the development of our children. For example, school textbooks and classroom instruction may be required to assert absolute societal indifference between traditional marriage and same-sex practice." The gap between civil and religious marriage will widen to a chasm, just at the time the state more than ever needs the help of faith communities in strengthening marriage. "Among the structures that would be affected would be religious and certain charitable institutions. Those with scriptural or other immutable founding principles will be castigated. Ultimately, some may founder. We need more from these institutions, not less, and particularly so to support and strengthen those in greatest need." The change has begun: The needs and desires of a tiny fraction of adults in alternative families are becoming the basis of a new moral norm. Anyone who departs from it risks thundering denunciation from self-righteous elites who are no longer satisfied with tolerance and civility--living with our deepest differences--but wish to impose their vision of morality on the majority. more
FOR SOCIETY, MARRIAGE IS MORE THAN A "LIFESTYLE": Jennifer Marshall
...Remember the flap over Vice President Dan Quayle's criticism of TV's Murphy Brown? Unwed births had reached a new high in the early '90s, and Quayle lamented the nonchalant way the show's producers treated single motherhood. Social science has since vindicated his argument: Decisions about sex, marriage and childbearing aren't merely personal. They have profound social consequences, especially for children. ... Social science indicates the intact family -- defined as a man and a woman who marry and raise their children together -- best ensures the welfare of children and society. Adolescents in intact families are healthier, less likely to be depressed, less likely to repeat a grade and have fewer developmental problems. By contrast, children in other family forms, as a group, are likelier to experience poverty, abuse, behavioral and emotional problems and lower academic achievement. A free society requires a critical mass of individuals living in stable households independent of the state. The most secure household, available research shows, is the intact family. No other family form has been able to provide the same level of social security. In all other common arrangements, the risk of negative individual outcomes and family disintegration is much greater, increasing the risk of dependence on state services. This explains government's interest in marriage, and why marriage has always had a special legal status, as the foundation of the intact family. A serious policy debate about reinforcing and restoring marriage emerged in the '90s on the basis of social-science data. Policies such as welfare reform were grounded in such data. We have seen some of the fruit of those efforts in declining rates of teen sex and childbearing. The debate over same-sex marriage hasn't been adequately framed in social-welfare terms. The interest of children and general social stability are largely neglected. Back is the discredited Murphy Brown rationale: Personal fulfillment and individual rights trump all other considerations. Overhauling marriage is not anchored in sound research. We know little about long-term effects of homosexual relationships on partners -- even less on children raised in such households. This lack of data should give us pause before reconfiguring the basic institution of society. Advocates of same-sex marriage want us to institutionalize a social experiment, i.e., same-sex coupling and parenting, by elevating it in law to the status of the oldest of institutions: marriage. To do so would be a mistake. Americans have become more tolerant of other types of experimentation -- extramarital sex, cohabitation, single parenting -- but don't equate them with marriage. None of these experiments has been regarded in law as the equivalent of the intact family. Yet this is precisely what we're being asked to do with same-sex marriage. more
LAWSUIT TO INVALIDATE NY TOWN'S SSM: From the Associated Press
A judge was asked Thursday to invalidate roughly 180 gay marriages performed in New Paltz this year and bar any village official from performing more same-sex unions. The lawsuit from the conservative legal group Liberty Counsel is the broadest legal challenge yet to same-sex weddings that have been performed in New Paltz since Village Mayor Jason West first officiated over marriages on Feb. 27. The group has successfully argued for an injunction keeping West from performing more weddings, inspiring other officials and ministers to take his place. Last weekend, village board member Julia Walsh joined a group of ministers in marrying 19 same-sex couples. Another board member, Rebecca Rotzler, married gay couples a week ago. Besides West and the village, the Liberty Counsel suit asks the judge to bar Walsh, Rotzler and their fellow board member, Michael Zierler, from performing gay weddings. The suit also asks Supreme Court Judge Michael Kavanagh to declare invalid the appointment of Rotzler and Walsh as marriage officers. In Thursday's filing, the Liberty Counsel again argued that performing the marriage knowing the couples did not have marriage licenses violated New York law. Earlier this month, Kavanagh permanently barred West from marrying gay couples. ... Kavanagh on Thursday signed a temporary restraining order blocking more weddings and set a July 19 court date. Rotzler said she would honor the restraining order and not marry any more gay couples but would continue to press to make same-sex marriage legal in New York. She likens the struggle to that of biracial couples like her parents who fought for the right to marry. ... About two dozens ministers have taken turns and performed gay weddings in the Hudson Valley college community since West was sidelined by legal troubles. The weddings are now held at bed and breakfast in the village on alternating Saturdays. Lindevaldsen said the group does not have the ability to seek injunctions against clergy. There have been several lawsuits filed this year on behalf of gay couples claiming they have the right to marry under New York's constitution. In addition, West and the first two ministers to take his place were charged with misdemeanor counts of marrying couples who lacked licenses. The charges against West were dismissed. A hearing on the ministers' case is scheduled for Friday in New Paltz Town Court. more
AMICUS BRIEFS FILED IN WA SSM CASE: Lambda Legal press release
Six state legislators and a wide variety of religious organizations, civil rights groups and bar associations filed friend-of-the-court briefs today in support of marriage for same-sex couples in Washington State. Lambda Legal and the Northwest Women's Law Center filed a lawsuit in state court in March seeking the right to marry for same-sex couples. The briefs filed today urge the court to rule in favor of treating all couples equally. ... Arguing that the state law excluding same-sex couples from marriage should be struck down, six state legislators -- including one Republican -- filed a brief saying that the "heterosexuals only" rule violates the protections guaranteed by the Washington State Constitution. State Representatives Fred Jarrett (R), Jim Moeller (D), Ed Murray (D) and Sandra Romero (D), as well as State Senators Debbie Regala (D) and Pat Thibaudeau (D) all signed onto the friend-of-the-court brief. "Building families, expanding civil rights, and limiting the government's reach into our private affairs are among my core beliefs as a Republican. All families should be encouraged and supported, and I cannot think of a better way to support all families than to allow loving, committed couples the right to marry, and that includes same-sex couples," Representative Jarrett said. Multifaith Works, with numerous other religious organizations, argued in its brief that the state should not adopt one definition of marriage and that religious freedom is not affected by recognizing the importance of civil marriage for same-sex couples. The brief says, "promoting 'moral and religious' grounds as the basis for the legislature's adoption of [the state's Defense of Marriage Act] is not a legitimate government purpose--let alone a compelling state interest." Another brief filed today was signed by a coalition of civil rights groups and bar associations, including Loren Miller Bar Association, a largely African-American legal group. The brief argues that preventing same-sex couples from marrying is fundamentally wrong and violates the Washington State Constitution. The brief says, "Our nation has a troubled history of imposing restrictions on the most private and most important choice of who one will marry. Ultimately, the judiciary has righted such wrongs..." more
GOP EYES TAKING MARRIAGE FROM COURTS: From the Washington Times
House Republicans yesterday emphasized their eagerness to reassert congressional authority over the judicial branch, holding a hearing on stripping federal courts of their jurisdiction to hear cases pertaining to same-sex "marriage." Republicans and conservative activists have contemplated restricting the jurisdiction of "out-of-control" courts on other issues, such as the Pledge of Allegiance and public acknowledgment of God. But some think same-sex "marriage" presents the strongest combination so far of interest and opportunity. "The marriage issue gives us a great political window of opportunity into what Congress can do to limit the courts," said Rep. John Hostettler, Indiana Republican. Mr. Hostettler has crafted a bill that would strip the federal courts and the Supreme Court of their ability to hear cases pertaining to the 1996 federal Defense of Marriage Act (DOMA), which said states don't have to recognize same-sex "marriages" from other states. ... Opponents say court-stripping would deny a particular group of people--in this case, homosexuals--the ability to have their grievances heard at the federal level. "It's very dangerous, and it should not be done," said Rep. Jerrold Nadler, New York Democrat and House Judiciary Committee member. Mr. Nadler said a particular decision could be overturned either by passing a law or a constitutional amendment. Court-stripping is "depriving citizens of their right to go to court," he said. The federal DOMA also defined marriage as the union of a man and a woman for purposes of federal law. Mr. Hostettler's bill would strip jurisdiction over this from federal appeals courts and the Supreme Court, but would leave federal district courts alone. The Senate is set to vote the week of July 12 on a constitutional amendment defining marriage as the union of a man and a woman, but the House is moving more cautiously. House leaders are considering holding votes on other types of legislation related to marriage--such as the court-stripping bill--before bringing an amendment to the House floor. Some House Republicans see a court-stripping bill as a better first step. ... During a House Judiciary constitution subcommittee hearing yesterday, most of the legal scholars agreed the Constitution grants Congress the right to strip jurisdiction from the Supreme Court and lower federal courts. "Congress possesses broad constitutional authority to control the jurisdiction of both the lower federal courts and the U.S. Supreme Court," said Martin H. Redish, a law professor from Northwestern University School of Law. But Michael J. Gerhardt, a law professor from William and Mary Law School, said Congress cannot strip jurisdiction if it violates people's right to equal protection or infringes on separation of powers. He said Congress repeatedly has resisted the temptation to strip court jurisdiction. ... Mr. Redish also advised against court-stripping because "we'd be left with 50 state-court interpretations of a federal law." But bill supporters noted that Congress has stripped courts before, including in 2002, when it passed legislation pushed by Senate Minority Leader Tom Daschle, South Dakota Democrat, that prohibited federal courts from hearing lawsuits challenging brush clearing in the Black Hills of South Dakota. more
GAY COUPLES FACE ADOPTION HURDLES: From the Houston Chronicle
...[A] month before, Parker wasn't sure she would be allowed to adopt the girls, who had been in and out of foster care for years. On the day the adoptions were to be finalized, Parker said, the juvenile judge refused to allow anyone in his court to preside over them. Children's Protective Services had already approved placing the girls with the lesbian couple. "(The judge) didn't think gays should adopt and that I ought to find another judge," Parker said. She did. Whether other openly gay Harris County residents have gone through a similar experience is difficult to gauge because adoption records are sealed. But while Texas law neither prohibits nor protects homosexual adoption--leaving the matter to local courts--gay rights activists say juvenile judges here have interpreted the law conservatively, giving the perception they discriminate against gays and lesbians. "Gays and lesbians have to jump through more hoops than heterosexuals, despite no proven scientific study that says (they) have any negative consequence on children," said Randall Ellis, executive director of the Lesbian/Gay Rights Lobby of Texas. Opponents of gay adoption say homosexuals are incorrectly portraying the legitimate concerns of judges as discrimination. "We exercise judgments in being concerned about giving adoptive children to single (heterosexual) parents for the same reason we do for gays," said S. Michael Craven with the Dallas-based National Coalition for the Protection of Children and Families. ... Schumacher and Miller, 44, an engineer who manages space-walking operations for a NASA contractor, have lived together for 16 years. Their openness may have worked against them, said Connie Moore, a Houston family lawyer. She encourages her gay and lesbian clients to not disclose their orientation in Harris County Juvenile Court or adopt in cities like San Antonio and Austin. When Schumacher and Hubbard take their turn to adopt, in a process known as second-parent adoption, each plans to go outside of Harris County. Gays and lesbians who adopt local foster children, however, must work through Harris County's juvenile court. Victor Flatt, a University of Houston family law professor, said Miller's account of his experience in Ellis' court shows some possible violations of the Texas Code of Judicial Conduct. The code states, in part, that: "A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion . . . sexual orientation." ... Flatt and other experts also say such treatment of gay adoptive parents walks a fine line between judicial discretion and discrimination yet to be tested in Texas' appeals courts or settled in the Legislature. "They're sort of indirectly doing what they can't do directly," said Flatt. Texas lawmakers have tried to ban homosexuals and same-sex couples from adopting or serving as foster parents. In recent Texas legislative sessions, the proposals never left committee. Florida is the only state that bans gay adoption; Mississippi and Utah prevent same-sex couples from adopting children but allow single gays or lesbians to adopt. Richard Carlson, a South Texas College of Law professor, said gay adoption is so complicated because homosexuality is an issue "so laden with personal values." "We discriminate all the time in deciding what makes a good parent," he said. "Can there be a rational basis for discrimination on the extent of sexual orientation? That's something not even the Supreme Court is ready to tackle." Carlson also said local judges have not actually denied gay adoptions, because "such a denial would set up an opportunity for an appeal and ultimately a ruling." And in the past, appeals courts and other state supreme courts have tended to side with homosexual parents. "You have to look at the U.S. and Texas Constitutions," Carlson said. "Regardless of the case law or statutes. You must grant equal protection under the law." more
CA STATE ASSEMBLY VOTES TO OPPOSE FMA: From the Associated Press
California's state Assembly voted yesterday to oppose a proposed amendment to the U.S. Constitution, which is backed by President Bush, that would ban gay marriage. Through a 42-27 vote, the Assembly also said it also opposed other federal moves to restrict rights of same-gender couples. The vote comes in the wake of thousands of gay weddings in several states in recent months, including California, and followed fierce debates yesterday between Democrats and Republicans over the institution of marriage and the role of the U.S. Constitution. ... The resolution goes now to the Senate, where it must pass by the end of August to become the Legislature's official position. It does not need the signature of Gov. Arnold Schwarzenegger, who said during a March 1 appearance on the "Tonight Show with Jay Leno," that he had "no use" for the proposed amendment. Bush endorsed it in February, saying a constitutional change would prevent activist judges from allowing same-sex weddings. To become law, the amendment requires two-thirds majorities in both houses of Congress and ratification from 38 states. Some Assembly Republicans called the resolution an attack on California's March 2000 ballot initiative, Proposition 22, in which a two-thirds majority of voters defined marriage as between a man and woman. ... In a related move, the Assembly passed 41-31 a companion resolution supporting congressional proposals to let gay and lesbian residents sponsor their partners for U.S. citizenship. more
WOMAN WHO LOST CHRISTIAN SCIENCE TEACHING JOB AFTER LESBIAN MARRIAGE CONSIDERS LAWSUIT: From the Boston Herald
The spiritual teacher stripped of her Christian Science affiliation after refusing to repent for marrying her lesbian partner of 10 years is now considering suing. "I have three names of attorneys that were recommended and I just feel like that maybe I should call one of them," Kathleen Clementson, 62, said from her Florida home yesterday. Clementson married Suzanne Nightingale, 49, in a private morning ceremony May 20 on a beach in Brewster, three days after state law granted gay and lesbian couples the right to apply for licenses. When a wire service picture of their vows circulated through the country, Clementson was soon reprimanded by the church board who ordered her to repent. When she refused, she was stripped of her teaching credentials and her membership. The First Church of Christ Scientist in Boston declined comment yesterday. Church officials have told Clementson that her students have been deemed to have had no primary instruction. Both Clementson and Nightingale said they believe the church should update its laws and support the gay community. "They're governed by a little thin book of rules and the rules haven't been changed," said Nightingale. "One of those rules is that people should be legally married. There was opportunity to legally marry. We went to Massachusetts to be legally married. We are now legally married. So what rule did we break?" more
COMPANIES RESIST GAY BENEFITS: From the Boston Herald
Most of corporate America hasn't embraced the idea of extending health benefits to same-sex spouses in the wake of Massachusetts' historic legalization of gay marriages, a survey released yesterday shows. About 40 percent of human resources officials at 216 companies nationwide said they would reject any request by employees if they requested health benefits for same-sex spouses, said a survey by consulting firm Aon Corp. Another 28 percent said they don't know what they would do if asked. But a third said their companies would extend health benefits to same-sex spouses. ... Peter Marathas, an employee-benefits lawyer with Boston's Mintz Levin Cohn Ferris Glovsky & Popeo PC, said Massachusetts-based corporations that deny health benefits to same-sex spouses would run afoul of state anti-discrimination laws. But it's more complex for out-of-state corporations with operations in Massachusetts, he said. Vickie Henry, co-chairwoman of the Massachusetts Gay and Lesbian Bar Association, said she believes out-of-state firms would legally have to provide health benefits to same-sex spouses, based on state laws. But she agreed that the day may come when a firm refuses to do so, triggering a legal confrontation. "It's waiting to be tested," she said. more
GOP SEEKS TO BUILD SUPPORT FOR SSM BAN: From the San Francisco Chronicle
House Republican leaders who fear they don't have the votes to pass a constitutional amendment to ban same-sex marriage -- are considering a test vote in July to gauge support for the measure. Republican Majority Leader Tom DeLay of Texas said this week he did not want to bring up the proposed amendment unless it can pass, and he doesn't think the Senate should do so, either. That was a jab at Senate GOP leaders who have scheduled debate on the Federal Marriage Amendment for the week of July 12, even though the measure's most ardent supporters think it will fall far short of the required two-thirds majority there and may not even get the 60 votes needed to overcome a likely filibuster. "I personally think that the Senate really should vote on this when they have the votes to pass it," DeLay said. "That's what we are trying to do. We are looking at other alternatives, other kinds of votes that we might have on this to generate debate and generate support out in the nation." DeLay said Republicans have not yet decided what the test measure will be, but that it would provide "some sort of vote in July in anticipation of growing the vote so that we can actually pass a constitutional amendment." He added that if the Senate votes on the amendment and it fails, "it is incumbent on the House to pass an amendment to put pressure back on the Senate to have a vote again." A contender for the House test vote is a bill that would use an obscure clause in the Constitution to strip federal courts of any jurisdiction over the 1996 Defense of Marriage Act, which permits states to refuse to recognize same-sex marriages in other states and denies to lesbian and gay couples any federal benefits tied to marriage. The measure has also struggled for support. Some social conservatives have argued that Indiana Rep. John Hostettler's proposal, the Marriage Protection Act, provides an alternative for the many Republicans who oppose same-sex marriage but do not want to amend the Constitution and deprive states of their long-standing authority over marriage laws. The act invokes the Constitution's "exceptions clause" in Article 3, which states that the lower federal courts have jurisdiction over federal laws "with such exceptions, and under such regulations as the Congress shall make." The clause is seldom invoked, but it was used by Senate Minority Leader Tom Daschle, D-S.D., in 2002 to prohibit federal courts from hearing environmental challenges to timber clearing in South Dakota's Black Hills. ... But Martin Redish, a Northwestern University law professor, testified that while the Constitution does give Congress such authority, using it is dangerous. "This is a very powerful authority," carrying potentially "very negative consequences," Redish warned. Christopher Anders, legislative counsel for the American Civil Liberties Union, said GOP leaders might also attach a same-sex marriage ban to the spending bill for the District of Columbia, a measure often used as a testing ground for social issues because its scope is limited to the city of Washington. more Thursday, June 24, 2004
A LIBERAL CASE AGAINST GAY MARRIAGE?: Matt Taylor replies to Susan Shell
Susan Shell's argument against gay marriage is interesting and well-considered, but it doesn't strike me as "liberal." Take this passage: "A suitable account of marriage might begin as follows: Most human societies have honored the notion that special responsibility for children lies with the biological parents. This has also been the view of almost all influential thinkers on the subject--including 'liberal' ones. ..." To start an argument from existing social traditions and the thoughts of past thinkers is fundamentally conservative. I would expect a liberal argument to begin "how should we define marriage" rather than "how has marriage already been defined". That said, I think Ms. Shell is correct that both pro-SSM and anti-SSM activists have taken illiberal positions. To insist that same-sex unions be labeled "marriages" imposes a particular cultural view on the population at large, just as a ban on all legal recognition for same-sex couples imposes an opposite view. I agree with Susan Shell that, at present, civil union or domestic partnership is the policy most consistent with liberal principles, since it accommodates the widest range of views on marriage and same-sex relationships.
GAY MARRIAGE IN US SUPREME COURT'S FUTURE?: SCOTUSblog
No one following the gay marriage issue in the courts of a number of states doubts that the issue will one day go to the Supreme Court, in some form--unless, of course, Congress and the States take the unlikely step of wiping out the idea altogether by constitutional amendment. But a curious thing seems to be developing: the first issue the Justices may have to face might not be whether same-sex couples have a right to get married, but rather whether they have a right to stay married. In the flurry of lawsuits filed this year in state courts, most seeking to get other states to imitate Massachusetts in allowing gay marriage, one legal tactic leaps out: they are based primarily if not exclusively on state constitutions, not the federal Constitution. For example, the City of San Francisco's lawsuit in state Superior Court (San Francisco v. California, docket CPF-04 504038) challenging a state law restricting marriage to opposite-sex couples relies on a state constitutional clause that says "A person may not be denied equal protection of the laws." That, of course, is the tactic that worked last year in the Massachusetts Supreme Judicial Court (Goodridge v. Department of Public Health). That appears to be the result of a very specific strategy among gay rights advocates: do not press the issue of a federal constitutional right to marry, because that may be premature and perhaps unnecessary; instead, seek to establish a right to marry under state law, and give the country a chance to see over a period of years that American society will not crumble if gay marriages occur. This is a strategy of intentional gradualism, somewhat akin to what the civil rights and women's rights movements used successfully. Behind the strategy, in part, is the realization that the Supreme Court as presently constituted very likely would not find a basis in the Constitution to recognize gay marriage as a right. In the Court's most sweeping decision yet on gay rights, the ruling last year in Lawrence v. Texas recognizing a due process "liberty" right to engage in sexual intimacy with a homosexual partner, Justice Anthony Kennedy wrote for the Court that the case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." The Court studiously avoided basing its decision on federal equal protection grounds (although Justice Sandra Day O'Connor would have done so, she said in an opinion for herself). But, recently, federal constitutional issues of a different sort have begun to make their way into the cases in state courts, raising the prospect that appeals would come within the Supreme Court's jurisdiction. Those issues have been arising out of the simple fact that, in California and Massachusetts, same-sex couples have already obtained marriage licenses, and were married. In response to efforts to undo those already accomplished marriages, federal arguments are being deployed. The California Supreme Court is now moving toward a decision, due by late August, on the legal status of more than 4,000 marriages performed in that state after the city of San Francisco began issuing marriage licenses. ... The city of San Francisco has argued, in its brief before that court, that couples who already have married have a due process right under the Fifth Amendment not to have their marriages nullified, at least without giving them notice and a hearing. Relying in part on the Supreme Court's 1967 ruling in Loving v. Virginia, striking down a state ban on interracial marriage, the city contends: "Marriage status, and its license and certification, constitute property rights that trigger due process protection...At a minimum, due process requires that the State afford notice and an opportunity to be heard to same-gender couples whose rights will be affected by a determination as to the validity of their marriages and marriage licenses." Last week, another federal constitutional question made its way into the state court cases. In the case of Cote-Whitacre, et al., v. Department of Public Health, in Suffolk County Superior Court in Massachusetts, a group of already-married same-sex couples challenged the efforts of the state's governor to wipe out all marriages in Massachusetts of out-of-state couples who don't plan to live there. The governor has the reluctant support of the state attorney general. The governor is relying on a 1913 law that, according to the governor's legal staff, bars marriage in Massachusetts for those who could not marry in their home state; the governor says none of the other 49 states would allow such marriages. ... The Massachusetts case, of course, is just beginning, so the California Supreme Court case for now appears to have a better chance of producing sooner an appeal to the U.S. Supreme Court. more
ROMNEY'S MARRIAGE VOWS: Boston Globe editorial
...Governor Romney's prepared remarks were heartfelt but repeated the old arguments opponents have raised ever since the Massachusetts Supreme Judicial Court found that homosexual couples have the same rights to civil marriage as others. It was all there: the supposed ill effects on children; the dangers of judicial overreach; the undermining of civilization's defining pillar. Yet more than a month since the first gay marriages, and after thousands of same-sex couples have committed their lives to one another, Romney couldn't point to any concrete damage to the Commonwealth or its institutions, and he was honest enough to tell the committee that "same-sex marriage doesn't hurt my marriage, or yours." Romney does worry about harm to children, however, which is puzzling since Massachusetts has allowed unmarried same-sex couples to adopt and raise children for over a decade. Would he want to tear these children from loving homes? Yesterday, Romney tried to say that the constitutional gay-marriage ban under consideration in Washington is not more restrictive than the Massachusetts amendment the Legislature narrowly advanced in March. But the Massachusetts amendment would explicitly establish civil unions, while the federal amendment says no state constitution can be construed as conferring marriage rights "or the legal incidents thereof" upon any union other than a heterosexual one. ... Romney argued against bigotry yesterday but fretted over a society "indifferent about having fathers and mothers." Only when society indeed becomes indifferent to the everyday reality of gay couples living among us will Romney's call for "tolerance and understanding" be realized. more
FLORIDA WOMAN WHO MARRIED LESBIAN PARTNER BARRED FROM TEACHING IN CHURCH: From the Associated Press
A 62-year-old Cape Coral woman who married her lesbian partner in Massachusetts was banned from teaching in the Church of Christ, Scientist, after she refused to "repent" for her actions. Kathleen Clementson returned her teaching credentials and left the church. Her former students are now considered by the Christian Science board of directors to have had no primary instruction. Clementson married Suzanne Nightingale, 49, also of Cape Coral, on a public beach on May 20, before Massachusetts started banning out-of-state same-sex couples from obtaining marriage licenses. The women have since bought a townhouse in that state, and said they plan to move there. An Associated Press photo taken at the service was sent to newspapers around the world, and many people recognized Clementson's name in connection with the church, she said. The church sent Clementson a letter in early June saying she had abused her role as a teacher, but did not define the abuse. The letter directed her to cut ties with former students, and said she could teach again only if she repented and served a three-year probation. "They were not specific," Clementson said. "I don't feel I have anything to repent for more than anyone else." Representatives from the Boston-based church did not return phone calls Wednesday. A local governing board member said the Christian Science Church of Cape Coral will abide by the Mother Church's decision. Clementson's former students who are now church-approved practitioners can no longer advertise their services in the Christian Science Journal, or take annual refresher courses. more
DOOR-TO-DOOR FOR SSM: From the Washington Post
...[The Human Rights Campaign], the nation's largest organization advocating the rights of gay, lesbian, bisexual and transgender(GLBT) people, announced what its president, Cheryl Jacques, called a "massive and unprecedented effort to elect fair-minded leaders in November." "This year's election is the most important in our members' history," Jacques said at a morning news conference in HRC's office here. The issue of same-sex marriage, in particular President Bush's endorsement of a constitutional amendment to ban same-sex marriage, Jacques said, has motivated the HRC to commit a record $10 million on election-related activity. That includes $1.3 million in political action committee funds for candidates the HRC endorses, untold millions more on a soft-money campaign "to educate our community about what is at stake in this election" and a knock-on-the-door campaign with volunteers and staff dispatched to four battleground states: Missouri, Nevada, New Mexico and Wisconsin. Like other political groups, the HRC is using sophisticated computer databases to identify prospective voters. Its target includes not only GLBT voters but also their friends and relatives who oppose the proposed constitutional amendment against same-gender marriage. "The president is playing with fire," Jacques said, "and he's going to get burned." more
FRENCH GAY-MARRIAGE FLAP: From Newsweek
[Is this a news piece? There's a pretty thick larding of opinionation. C'est la culture guerre, I suppose. --Eve] ...The first gay marriage in French history, earlier this month, has highlighted a cultural chasm, revealing that touchstone religious and social issues can still flare up in strikingly secular France. Since announcing that he would oversee the wedding, [Begles mayor] Mamere has been condemned by angry churchgoers, been sent a package of feces and received so many death threats that the Interior Ministry assigned him a bodyguard. Serge Dassault, owner of the conservative French daily Le Figaro, penned an op-ed piece accusing people like Mamere of trying to "destroy the basis of our society" and the concept of family. The Justice Ministry launched efforts to nullify the marriage, and last week Interior Minister Dominique de Villepin signed a disciplinary measure suspending Mamere from his mayoral duties for one month. While even some socialist leaders have come out against gay marriage, they see the government's sanctioning of Mamere as extreme. The respected center-left daily Le Monde, which has expressed reservations about gay marriage, last week called the suspension a "government blunder" and mocked Villepin for using such measures against a man who has not taken bribes, pilfered state money or been linked to financial scandals--as have a number of top government officials. And by progressive European standards, Mamere is hardly pushing the envelope. Belgium and the Netherlands already celebrate gay marriages. Sweden and Spain are expected to do so by the end of the year. A Gallup poll of the 15 European Union nations last year found 57 percent support, with virtually identical numbers in France. The bottom line is that it's France's government which is out of step with society, not gays who wish to marry, says Mamere, who received 5 percent of France's presidential vote as the Green Party candidate in 2002. ... ...The year before civil unions became law, in 1999, just 49 percent of French people were supportive. Two years later, with French civilization still on its feet, 70 percent backed them. Today even conservative French leaders who once lambasted the unions have discovered their merits, though chiefly as a bulwark against gay marriage. ... If Mamere wins, other mayors may follow his leap into civil disobedience. If he loses, he promises to bypass France's conservative leaders and take the gay-marriage issue to the European Court of Human Rights. The goal would be a decision by 2007, the year France elects a successor to its aging President Chirac. The socialists, aware of overwhelming support for gay marriage among young people, are likely to choose an advocate. Either way, by a change of government or a ruling from the European court, Mamere awaits the day when all French people can marry freely--and when they have a government more in tune with the times. more
HATCH DROPS PLANS FOR OWN AMENDMENT, SUPPORTS FMA: From the Salt Lake Tribune
Sen. Orrin Hatch of Utah has dropped plans to write his own constitutional amendment to allow state legislatures to decide if they will legally honor gay marriages performed in another state, throwing his full support behind a version drafted by Republican colleagues that forbids states from recognizing any same-sex marriage. Democrats seized on the difference between the two approaches during a hearing of Hatch's Senate Judiciary Committee on Tuesday, saying a blanket federal prohibition on gay marriage tramples states' rights. But the hearing's star witness, Massachusetts Gov. Mitt Romney, cited Utah's territorial battle with the federal government over polygamy as an example of when federal intervention in state marriage policy is warranted and necessary. "There was a long time ago a state that considered the practice of polygamy [legal] and as I recall the federal government correctly stepped in and said, 'That is not something the state should decide,' " Romney told the committee. "We have a federal view on marriage; this should not be left to an individual state." Later in the hearing, responding to Democratic skepticism that marriage faces an imminent threat demanding prompt constitutional countermeasures, Romney again drew a parallel with polygamy, saying if Massachusetts suddenly legalized plural marriage, he suspected Congress would recognize the need for an immediate constitutional amendment. The Republican governor who shepherded Utah's 2002 Olympics said due to his state's supreme court ruling that legalized gay marriage beginning last month, Massachusetts is "exporting" legally wed same-sex couples around the nation. When gay couples who wed in Massachusetts move elsewhere, "the definition of marriage will be applied in the state [where they live] as it is in Massachusetts," he said. ... Hatch didn't specify why he shelved a plan he announced in March to write an amendment that did not include a definition of marriage as "a union of a man and woman" into the Constitution, as the Allard bill does. He had said it would be easier to win Senate passage of a resolution that did not include the definition but gave states the right to buck the "full faith and credit clause" of the Constitution and refuse to recognize marriages that may be deemed legal in other states. Allard opposed Hatch's approach, saying it could actually allow states to legalize polygamy, and Republican leadership has been working to present the image of GOP members united behind Allard's Federal Marriage Amendment. "It's coming down to this one amendment and I'm willing to -- I'm co-sponsor of this amendment and I will vote for it," Hatch said. more
NEW QUESTION: IS THERE A "LIBERAL CASE AGAINST GAY MARRIAGE"?
Susan Shell has a flawed but fascinating piece in the current Public Interest arguing that it is the push for same-sex marriage, rather than the opposition to it, that is illiberal. Shell argues, "That children can be 'illegitimate' suggests that the biological facts of parenthood are not enough for social purposes. Disputes over fatherhood, for example, or variations in parental attachment to their children, make it reasonable for societies to supplement and sometimes override the natural bonds established by and through the processes of human generation. Marriage is, before all else, the practice by which human societies mark, modify, and occasionally mask these bonds. Like death, and the funereal rites that universally accompany it in one form or another, human generation has a significance that is more than arbitrary, if less than obvious. Marriage is the primary way societies interpret that significance, and it is doubtful whether any other custom could substitute for it adequately." She adds, "The requirement that homosexual attachments be publicly recognized as no different from, and equally necessary to society as, heterosexual attachments is a fundamentally illiberal demand. Gays cannot be guaranteed all of the experiences open to heterosexuals any more than tall people can be guaranteed all of the experiences open to short people. Least of all can gays be guaranteed all of the experiences that stem from the facts of human sexual reproduction and its accompanying penumbra of pleasures and cares. To insist otherwise is not only psychologically and culturally implausible; it imposes a sectarian moral view on fellow citizens who disagree and who may hold moral beliefs that are diametrically opposed to it." Agree? Disagree? As always, click the email link below to join the debate!
THE MARRYING KIND: Bronwen McShea
[Bronwen is an intern at the Institute on Marriage and Public Policy, a.k.a. Our Sponsors.] Here's an interesting study from Barbara Dafoe Whitehead and David Popenoe at the National Marriage Project, saying that most young American men are "the marrying kind." 56.3 percent of young heterosexual men in the 25-34 age group report they are not only married but happy to be so. A whopping 94 percent of them "say that they are happier being married than being single. ...Seventy-three percent say that their sex life is better since getting married, and 68 percent say that marriage has helped them become more financially stable." Troubling, though, are some of the numbers regarding men's ideas about the meaning of marriage. A majority of married men don't "regard marriage as closely connected to 'building a family'," and they don't even view children "as an important reason for marriage." Also, most marry "according to a set of personal calculations rather than to a set of social expectations." Does this point to a culturally encouraged self-centeredness or lack of social-mindedness about marriage? Such attitudes are of little help to, say, the marriage crisis among young African Americans and the low numbers of high school kids who consider marriage as a road to happiness, things which are also indicated by the study. See what you think.
FINANCIAL IMPACT OF SSM: Congressional Budget Office
...In some cases, recognizing same-sex marriages would increase outlays and revenues; in other cases, it would have the opposite effect. The Congressional Budget Office (CBO) estimates that on net, those impacts would improve the budget's bottom line to a small extent: by less than $1 billion in each of the next 10 years (CBO's usual estimating period). That result assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government. The number of same-sex couples who would marry if they had the opportunity is unknown, but the 2000 census offers some insights. The census does not ask about sexual orientation, but it allows people living with a nonrelative to identify themselves as "partners" instead of "housemates/roommates." Almost 600,000 households (or 1.2 million people) identified themselves as same-sex partners in 2000, roughly half in male couples and half in female couples. They represented about 0.6 percent of the total adult population and almost 1 percent of people between the ages of 30 and 50.(2) By several common measures of stability--age, home ownership, and length of residence--those 600,000 same-sex couples resemble married couples more than they resemble other cohabiting households, so it seems reasonable to assume that many of them would marry if given the chance.(3) Some would not, of course; but other same-sex couples who did not live together, or who labeled themselves "roommates" rather than "partners" in the census, might choose to marry. The census also contained limited data about the income, earnings, and assets of those 600,000 couples--clues that CBO used to gauge budgetary impacts. For the purposes of this analysis, CBO assumed that about 0.6 percent of adults would enter into same-sex marriages if they had the opportunity. (That proportion is equivalent to nearly 600,000 couples in 2000, with adjustment for subsequent population growth of about 1 percent a year.) CBO's estimates reflect significant uncertainty because predicting how many same-sex couples would marry is difficult and because data on their incomes, assets, and participation in federal benefit programs are sparse. ... On balance, legalization of same-sex marriages would have only a small impact on federal tax revenues, CBO estimates. Revenues would be slightly higher: by less than $400 million a year from 2005 through 2010 and by $500 million to $700 million annually from 2011 through 2014. Those amounts represent less than 0.1 percent of total federal revenues. more Wednesday, June 23, 2004
2014: WILL THE ARGUMENTS HAVE CHANGED?: Eve replies to Jonathan Rauch and about fifty other people
One of the key arguments for a federalist (state-by-state) implementation of same-sex marriage is that the states can serve as experimental labs. Let Massachusetts institute SSM, the argument runs, and then let's wait. We'll see (the pro-SSM side predicts) that everything goes just fine, and in a few years we can start taking these lessons into other states and instituting SSM there. The less-serious version of this argument is, "The sky didn't fall!" Massachusetts has had SSM for over a month now, and lookit! The divorce rate hasn't skyrocketed, children are not abandoned on streetcorners, cats and dogs are not living together. The standard response to this claim is to point out that cultural changes in the meaning of marriage--including deeply damaging cultural changes--probably take a little longer than a month to take effect in measurable ways. Opponents of SSM have not argued that SSM is magic that will instantly transform preexisting marriages into dark, sparkling Folger's crystals. We've argued that when you tell people that children don't need mothers and fathers, and that marriage is preeminently about the couple with children as optional extras at best, people do in fact start to believe you. That's not a light-switch, on-or-off event; it's a process of corrosion. But you know, that's not even what I want to talk about right now. I want to ask whether we think that time will actually resolve the SSM argument; and, if so, how much time is needed. Here are some reasons I think ten years (to pick a fairly arbitrary date that is nonetheless much longer than most supporters of SSM would give it) won't be enough: 1) Would we ever accept this reasoning for redefinitions of marriage that we believe are absolutely wrong or inappropriate? Would federalism-as-experiment SSM supporters agree that New Hampshire should try out polygamy to see how that goes, or that Minnesota should try out brother-sister marriages? Or would we say, No, thanks, philosophy does just fine here, we don't need social-science data? 2) Everyone involved in the SSM debate who is heartily sick of hearing that correlation does not necessarily imply causation, please raise your hands. Expect to hear it repeated another couple thousand times in any discussion of federalist SSM "experiments," if in fact such experiments are undertaken. 3) Relatedly: You can't escape philosophy anyway. Look at the debate over those European countries that have instituted SSM or something like it. Everyone offers a host of social changes that took place within roughly the same period (secularization... SSM... the growth of the welfare state... women entering the workforce... whatever) and must then argue why their particular explanations are best. Those arguments rest on underlying theories of marriage, law's effect on society, and human nature. Why not just lay out the theories, then, and skip the social-statistics number-juggling? Basically, time and federalism are not "get out of philosophy free" cards. We have to figure this out now.
HOW IT WON'T HAPPEN: Eve replies to Jonathan Rauch
(Third in a random and disorganized series of posts commenting on Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.) In the post below, I talked about places where I think SSM will cause major rifts between the legal and the cultural understandings of marriage--in other words, the law will recognize, honor, and promote unions that a majority of Americans strongly reject. Rauch offers federalism and legislature-based strategies (rather than judiciary-based ones) as the solutions here: By requiring that SSM be instituted by legislative vote in one state at a time, rather than imposed by judges or imposed on the nation as a whole, he hopes to ensure that SSM is only legalized in the places where it is closest to the majority's understanding of marriage. Rauch thinks a rift between legal and cultural understandings of marriage would have serious negative consequences: "In a community which looked on same-sex marriage with bafflement or outright hostility, a gay couple's marriage license would help solve some of their legal problems but would leave the social supports missing. Both the couple and the community would be shortchanged." Later, he writes, "Nationwide imposition of same-sex marriage by a federal court might discredit both gay marriage and the courts, as well as starting a long-lasting culture war like the one over abortion--only, perhaps, bigger." So federalism and legislature-over-judiciary are not solely procedural preferences for him: They're really important to securing the substantive value of same-sex marriage. The thing is, SSM is just not going to happen that way. I have no idea how Rauch thinks his slow, majoritarian approach is going to prevail when legislatures have always rejected SSM whenever they've been allowed to vote on it, when instituting SSM has already become the province of the judicial and executive branches, and when SSM is presented in civil-rights language that calls for court intervention against the will of the majority. Rauch is not going to get SSM the way he wants it. If he gets it at all, he will get a damaged, politicized version, rejected by most of the people around him. Given his strong (and well-argued) belief that social support, embedding the couple in a community that reinforces their marriage, is one of the key ways marriage strengthens couples, this is a pretty big problem for him. SSM in this respect is not like abortion, and Goodridge is not like Roe. Someone who supports abortion rights can say, "Well, yes, Roe caused a backlash, and there are lots of people who think abortion is abhorrent, but at least you can still get one." But with (civil) marriage, social support is a big part of how you "get one." I'd be interested to know how important Rauch ultimately thinks social support is--is it worth it to actively fight against judicial or national imposition of SSM, or is it worth it to gamble on Goodridge-like decisions, figuring that after a period of instability eventually society will come 'round and most Americans will give up their opposition to SSM? For other MD.com readers who agree with Rauch's procedural points (get SSM state-by-state and legislatively rather than nationally or judicially), how important do you all think the procedual approach is? Would you give up Massachusetts court-ordered SSM now in order to get legislative marriage later, or is the bird in the hand worth two in the bush?
MARRIAGE PROMOTION: Eve replies to Jonathan Rauch
(Second in a somewhat random, disorganized series of comments on Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.) In chapter five, Rauch tells people who are concerned with civil rights, but who believe homosexual activity is wrong, that same-sex marriage does not constitute governmental promotion of homosexuality: "I am only reminding you that the question is not whether same-sex marriages should be approved of but whether they should be legal. The government may disapprove of many things, but it should ban them only if they harm other people, harm society, or violate somebody's rights; not simply as a gesture of contempt." (A long section immediately prior was dedicated to arguing that when government and society give special honor and legal status to plain old husband-wife marriage, that is necessarily a sign of contempt for homosexual relationships. I disagree with that--not everything is either singled out for honor or singled out for disdain, cf. friendship, sibling relationships, godparenthood, &c--but that's not what I want to talk about right now.) On a somewhat similar note, Alisa Solomon, in a Nation piece expressing her caveats about the gay-marriage movement, says, "The marriage demonstrators make no demands, for example, that school curriculums include queer material or that gay, lesbian, bisexual and transgender teachers be protected from job discrimination." I think the claim that same-sex marriage does not constitute government promotion of homosexual activity and homosexual relationships is conceptually wrong: Marriage is an honor. People get honored for doing good stuff, stuff they ought to do. The honor people get for marrying and the strong cultural affirmation of marriage are two major ways societies subtly push people into taking on the responsibilities of marriage. (I would bet a lot of money that more people get married to obtain this social honor than to get Social Security benefits.) But even if we grant for the sake of argument that SSM does not necessarily, inherently entail governmental praise for homosexual relationships, both Rauch's and Solomon's claims are still unlikely to prove true in the contemporary political climate. Public schools teach courses on "relationships" and on marriage. Schools in states with SSM will have to reshape their curricula to either a) say all relationship types are equal or b) SSM is equal to marriage. (Most parents believe neither of these things.) There's simply no chance that we will "compromise" such that SSM is permitted but is treated by the public-school system as a lesser kind of marriage. It's doubtful, for the same reasons, that public school curricula will be able to teach that children need mothers and fathers (rather than gender-neutral "parents"). The Healthy Marriage Initiative encompasses all kinds of marriage-strengthening and marriage-promoting programs that have been instituted at the state and local levels. These programs, too, will not be able to promote a "two-tier" understanding of marriage, in which SSM is permitted but not given the special honor and promotion conferred on marriage. Efforts to institute and strengthen marital preferences in adoption laws (rules that say married couples should move to the head of the line for adoptions) will also not be able to distinguish between married couples who can provide adopted children with a mother and a father, and same-sex couples who cannot. So SSM will promote homosexual relationships and give them the honor we have until now reserved for marriage between a man and a woman. Will the majority of the country, which disagrees with this view of homosexuality, accept that? Or will it become (even more) suspicious of all marriage-promotion programs, unwilling to support or participate in programs that push a worldview it believes is immoral and false?
SUNRISE, SUNSET: Eve Tushnet replies to Jonathan Rauch
(This is the first in a short, disorganized, and impressionistic series of comments on Jonathan Rauch's Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America. I should say at the outset that Rauch's book is very much worth your time; it presents some of the best arguments for SSM that I've seen. I'll be starting with the places where I take issue with Rauch's stance, but I'll end the series--today or tomorrow--with what I thought was his strongest argument. OK, let's go.) Gay Marriage begins and ends with references to the very sweet duet, "Do You Love Me?", from "Fiddler on the Roof." Tevye, the main character, persists in asking his wife, "Do you love me?", even though she finds the question bizarre: "I'm your wife." But he keeps asking: "Do you love me?" And finally she replies: Do I love him? For twenty-five years I've lived with him, Fought with him, starved with him, For twenty-five years, my bed is his. If that's not love, what is? The song nicely captures Rauch's view (and mine) that love, in the context of marriage, is not some wash of emotions and hormones, in the face of which we are powerless. Married love is an action. It's a stance of care and partnership, in which each spouse works for the good of both the other spouse and the family as a whole. Rauch writes about this active, willed love very well; he's mentioned that several heterosexual couples have told him that his book helped them to better understand their own marriages, and I'm not surprised. (Although there are big problems with his conception of the nature of the marriage partnership, of which more presently.) "Fiddler on the Roof" also has a recurring theme of change, of a traditional culture shifting away from arranged marriages. So FOTR would seem to be a perfect exemplar of Rauch's view of marriage. Except that I randomly happened to see a medley of FOTR songs recently, and (in between indulging my sentimental side) I couldn't help but notice the primary way in which the FOTR worldview is radically different from the Rauch view. Because Tevye's isn't the only marriage in FOTR. Tevye's daughter Tzeitl also marries (in fact, she's the one who doesn't get an arranged marriage). And the song at Tzeitl and Motel's wedding, "Sunrise, Sunset," gains its emotional intensity from the aspect of marriage that Rauch downplays and often simply ignores: the way marriage links the generations, not only past and present, but future as well. Marriage, in "Sunrise," is inextricably linked to childbearing and childrearing, because marriage is about a future beyond the lives of the people gathered around the chuppa that day. Marriage is about a sense of continuity despite time and change, and a sense that the couple getting married is part of something much bigger than themselves--something bigger, ev | ||||||||||
