ALTAR EGO: Michael Bronski
 
...But even though winning Goodridge v. Department of Public Health--and defeating various challenges to it so far--has redeemed the American Way of Life for many gay men and lesbians, some queer political activists are raising questions about the limits and long-term worth of same-sex marriage. It's not that these activists don't believe that same-sex couples should have the same rights as heterosexual couples. Rather, the vital questions they pose are, "What might we lose, and who might be harmed by same-sex marriage?"

Such questions stem from a longstanding division among queer activists dating back to the '60s. One side has stood firmly for gaining equal rights, while the other, "liberationist" side has celebrated a politics of difference, arguing that gay culture has its own ethos from which straight people could learn a thing or two about justice and love. Not surprisingly, this debate has resurfaced in what many in the gay community are calling "the great divide" over the fight for same-sex marriage.

What's interesting this time around, however, is that alongside the well-worn plea for gay cultural liberation is emerging a critique of gay marriage based on class rather than culture. Indeed, the push to legalize same-sex marriage has been so rushed and emotionally heady--no one, not even the litigators who fought so hard for it, thought we'd win anytime soon--that complicated legal issues with particular implications for the working poor and people of color were quite simply ignored. Couple that with the desire among many gay and lesbian people to be "normal," and the result has been that a lot of thinking has taken place inside the box--and a very small box, at that.

WHAT'S NOW called the great divide over same-sex marriage was anticipated by lesbian legal theorist and activist Paula Ettelbrick in her fall 1989 article "Since When Is Marriage a Path to Liberation?", published in Out/Look: National Gay and Lesbian Quarterly, when she wrote that "marriage defines certain relationships as more valid than all others." These days, a running joke among gay men and lesbians is that, with marriage as an option, parents are hounding them to the altar just as avidly as they do their heterosexual siblings. Ettelbrick went on to say that the creation of this new, "more valid" relationship for gay people "runs contrary to [one of] the primary goals of the gay and lesbian movement: ... the validation of many forms of relationships." In the absence of legal civil marriage, lesbians and gay men gleefully invented their own panoply of romantic and household configurations that worked--at least as well, if not better in many instances, than the traditional mom and dad and kids at home.

But more-recent critics of same-sex marriage are not simply worried that the antic good old days of lesbian communes and gay-male extended families of [censored!--Eve] buddies (which, of course, still exist) will become endangered. In a cogent and important article, "Speak Now: Progressive Considerations on the Advent of Civil Marriage for Same-Sex Couples," just published in the Boston College Law Review, lawyers Kara S. Suffredini and Madeleine V. Findley argue persuasively that while same-sex marriage will provide advantages to some people--those with incomes that are middle class or higher--it could have deleterious effects on other groups. Suffredini and Findley examine a myriad of commonly accepted myths about the benefits of same-sex marriage and discover that, often, they deliver far less than they promise, especially if you are poor.

The most obvious example, perhaps, concerns health care. One of the most compelling arguments same-sex-marriage advocates make is that civil marriage will give partners, and any children involved, access to one partner’s health insurance. Yet as Suffredini and Findley point out, this is true only if one partner has health-care benefits--and most people working low-paying, hourly jobs do not.

But there are more overt economic drawbacks to being poor and getting married, the authors argue, which gay men and lesbians from the lower classes will have to suffer if they wed. For example, the aptly named "marriage penalty," which kicks in when a married couple who both work and earn similar incomes end up paying more in taxes than if they were single, tends to affect same-sex couples more egregiously than different-sex couples. That’s because the tax laws assume the traditional arrangement in which one spouse (usually the husband) will be the primary wage earner and that the ancillary wage earner will make considerably less. In that case, a married couple’s joint tax rate equals out; but when incomes are comparable, as is more often the case with gay and lesbian couples, they end up paying more taxes. ...

A more draconian "marriage penalty"--and one that affects women on the lowest level of the economic scale--results from the Bush administration’s so-called welfare-reform policy, designed to discourage out-of-wedlock births. ...All of this is intended to induce--or coerce--poor women to get married. But for many low-income households, getting hitched may also mean losing the earned-income tax credit that many single mothers depend on, thus putting them in an even more vulnerable economic position. So the idea that marriage helps solve the economic problems of poor women--heterosexual or lesbian--is simply myth.
 
The situation worsens when you consider some of the social-policy changes engendered by same-sex marriage. Over the past 15 years, various private companies and some municipalities have instituted domestic-partnership (DP) programs for gay couples who do not have the right to marry, which granted an array of economic and health-care benefits to the unmarried domestic partners of their employees. This alternative system of benefit sharing was, for the most part, an effort to extend fairness to gay and lesbian people. But since the advent of same-sex marriage in Massachusetts, both private and public-sector DP programs in the state have undergone erosion. Because they were instituted out of a sense of fairness to gay men and lesbians, and not to promote viable economic and ethical alternatives to traditional marriage, it makes perfect sense (to some) that they will disappear as legal civil marriage becomes available across the country. The result is that marriage will not be simply a choice for some gay people, but compulsory if the couple needs any of these benefits, even if they are not inclined to marry.
 
But the other reality is that DP programs--where and when they exist--are not only a boon to gay couples who participate in them, but mark a shift toward recognizing alternatives to traditional marriage. Realistically, many, many GLBT relationships, for a wide variety of reasons, do not fit the traditional-marriage template--and yet they need health care and other benefits, too. Many choose to form what Suffredini and Findley call "diverse forms of partnership and households." They cite the example of a lesbian co-parenting couple who wish to include the child’s biological father in their family configuration. But there are many others as well: a gay male couple caring for a former partner of one of its members who is ill from AIDS, say, or a gay or lesbian couple who takes on the care of an aged parent. (Who cares if these examples play into that anti-gay right-wing stereotype--gay or lesbian people who form ethical and sustained romantic relationships with more then two people?) ...

THERE IS NOTHING wrong with fighting for same-sex marriage as long as it is part of a larger package, a larger scheme in which all the myriad issues affecting GLBT families are addressed. ... 

Evan Wolfson, executive director of Freedom To Marry, and one of the prime movers in the struggle for marriage equality, says that although he has not yet read Suffredini and Findley’s article, he is wary of their arguments: "The denial of marriage harms all gay people but falls harshest on people of lesser means, immigrants, people who are ill, children, and in general people who are vulnerable. They need a safety net, however imperfectly our society accords these things through marriage," he says. "Although I believe marriage should not be the only way that people should access protections--I believe in universal health care--it is an important way that people can access them. Many of these protections--Social Security, immigration regulations, qualifying for public assistance--cannot be replaced by private agreement or with the help of an expensive lawyer, which many people cannot do. Marriage gives that protection with the words 'I do.' It is a choice and an option that the vast majority of people who have it, exercise."
 
Further, Wolfson thinks that, like it or not, no matter how one feels about marriage equality, this is the fight we are having now, and it is essentially about the larger place of gay people in America. ... 

Same-sex-marriage advocates have argued that marriage is nothing more than a personal choice, that what gay people were denied is the "freedom to marry." But marriage--or any legal or social contact [sic, possibly "contract"?--Eve]--never concerns only one or two people. It concerns the entire fabric of the society in which they live. ... The fight should not simply be for same-sex marriage equality, but for reforming marriage laws to make them equitable to meet the needs of all families.
 
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posted by Eve at 8:22 PM | link 0 comments

WHO WILL STAND FOR MARRIAGE?: Washington Blade editorial
 
...The idea of using our lives as political footballs was originally the brainchild of Republicans, of course. First the president backed the Federal Marriage Amendment in a cynical ploy to energize his conservative base. Then the Republicans in the Senate rushed a vote on the measure to put moderate Democrats on the defensive just before their convention. ...

But on the whole, Republicans were cleverly outmaneuvered on the issue by Democrats, who devoted almost all their time during what was supposed to be a debate on marriage equality instead asking why the Senate was even discussing the question, since there are so many other issues out there of greater importance. ...

To the contrary, we were treated to a procession of Democrats who took to the podium to note for their record that they, too, believed marriage ought to be limited to that sacred union of a man and a woman. But not to worry--the Defense of Marriage Act would protect the country from the scourge of married homosexuals.

For some reason, these same Democrats, whose voices rose in indignation as they shamed their Republican colleagues for wanting to "write bigotry into the Constitution," never stopped to explain how it is that their beloved DOMA wasn't writing that same bigotry into federal law. ...

It’s hard to say when we will actually witness our full equality--including marriage equality--be defended in Congress by the men and women who are elected with our dollars and our votes. But it will certainly come later rather than sooner if we don’t actually ask it of them.

The Democrats certainly won Round 1 of the great gay marriage debate, but what about Round 2?

If "pro-gay" senators won't defend our equality or our dignity even when they have the votes in the bag, what can we expect when their arguments about the Defense of Marriage Act don’t work anymore? Because someday soon, DOMA will be struck down; or marriage laws will be opened up to gay couples in other states on their own. ...

We will not trick our way to equality, while everyone is looking the other way. The case for our freedom to marry is a strong one, and it’s way past time we started making it.
 
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posted by Eve at 8:16 PM | link 1 comments

FMA AND LIBERTARIANISM: Josh Claybourn
 
...The 600 pound gorilla in the whole discussion is one's view of government. There isn't a lot of writing that I'm aware of explaining or defending "Christian libertarianism," but it's more prevalent than you probably realize. At the root of Christian libertarianism is the biblical conviction that God grants men the freedom (never the permission) to sin. It allows Christians to transform the culture through the church and the family. This transformation is no business of the state's. The early Christian church, and America's Founders, saw this and kept the church and state in two different spheres, permitting the church to influence the populace (and the state) freely. The church best flourishes in that sort of environment. The virtuous life cannot be brought about by government.
The state should not be called upon to bring about the virtuous life. The price is subservience to the state.
 
Many will view this as a cop-out or shirking from God's wishes, but I am a libertarian precisely because I wish to protect traditional values and culture from the state. San Fransisco's mayor Gavin Newsom is a wonderful example of the problems that can befall a church that so closely ties its precepts to a secular state. It's time for the church to consider its own marriages apart from a secular state.
 
more, plus a big ol' comments-box discussion
 
Ramesh Ponnuru responds here, basically asking, Okay, so why have marriage licenses at all?
 
Josh replies here but doesn't, IMO (this is Eve speaking), really answer Ramesh.

posted by Eve at 8:05 PM | link 0 comments

NOW STATES CAN FOCUS ON TRUE THREATS TO MARRIAGE: Jane R. Eisner
 
...I agree that the traditional institution of marriage is under an assault more ferocious than the 1,000-year storm we just saw in New Jersey, and that this assault is not a welcome development. Since the finest research -- and every bit of common sense -- tells us that children do best when raised in happy, stable, two-parent marriages, civil society has a vested interest in promoting an institution that helps create a good outcome for the next generation. But we don't know whether gay marriage will wreck the institution with all the force of a terrorist attack, as the good senator implies, or strengthen it beyond our imagination.
 
So now that the push for the amendment is yesterday's news, here's what we can do to really defend marriage: Follow the advice of such radicals as, oh, Lynne Cheney and leave it up to the states to decide what constitutes a marriage, a civil union, a domestic partnership, whatever. Massachusetts will go its way, Vermont will try another approach, and surely in Texas there'll be something else again. States have long been the laboratory for social experimentation and can best weave the crazy quilt of regional and demographic differences that shape Americans' attitudes on this complicated issue. ...
 
While they're at it, states should examine their divorce laws and procedures, because nothing has chipped away at the notion that marriage is forever as much as the social acceptability and legal ease of leaving it. How marriage defenders can harp on gay unions and ignore no-fault divorce is one of the great mysteries of this debate.
 
Just as important is to encourage couples to marry before they have children and dismantle the barriers that stop them from doing so. Gay people are a fraction of the population, probably in the single digits. But the number of children born out of wedlock in 2002 was 34 percent -- up from 5.3 percent in 1960 -- and among black children the percentage was a disastrous 68.2 percent.
 
These trends are devastating marriage. So is the increasingly prevalent notion that it exists on a separate planet from child-rearing, as if a child's need for the commitment, stability, support and love of two bonded parents is as easily discarded as an old TV.
 
We can blame popular culture for some of this, but only some. For decades, everything from welfare regulations to economic policies have made it harder and less attractive for people, especially men, to marry, especially in poor communities. That's possible to turn around: Minnesota, for instance, found that offering income supplements to poor, working families stabilized marriage and reduced domestic violence.
 
Defend marriage? Help dad get a job.
 
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posted by Eve at 7:08 PM | link 0 comments

MARRIAGE CASE MOVES CLOSER TO HIGH COURT: From The Oregonian
 
The Oregon Court of Appeals on Thursday agreed to step aside and allow a lawsuit challenging the state's marriage law to go directly to the state Supreme Court.

The move, which still needs Supreme Court approval, would significantly speed up a lawsuit that seeks to force the state to allow same-sex couples to marry.
A spokeswoman for Basic Rights Oregon, which brought the suit, said her group had wanted the Court of Appeals to hear the case.

"We felt that the Court of Appeals would likely rule in our favor," said Rebekah Kassell. But the legal and political picture is far from clear.

A member of the Defense of Marriage Coalition, which opposes extending marriage to same-sex couples, said he wasn't surprised. But Tim Nashif, whose group sponsored a constitutional amendment defining marriage as being between a man and a woman, said he did not want to see the Supreme Court rush and try to rule before the November election. ...
 
The legal and political fight over marriage in Oregon started in March when Multnomah County began issuing marriage licenses to same-sex couples after determining that state marriage law violated the rights of gays and lesbians.
Gay rights groups and the American Civil Liberties Union sued the state, which had refused to recognize the Multnomah County marriage licenses issued to same-sex couples.

Multnomah County Circuit Judge Frank L. Bearden ruled that state marriage law violated the constitutional rights of gays and lesbians, but said the Legislature should have a chance to fix the problem, possibly by passing a civil unions law.

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posted by Eve at 6:52 PM | link 0 comments

ATTEMPT TO BAN SSM BRINGS ATTENTION TO ALLARD: From the Scripps Howard News Service
 
Time was running out, defeat was never in doubt, but Sen. Wayne Allard was still scribbling out arguments to defend his proposed constitutional amendment banning same-sex marriage. ...

Allard would later read those words Wednesday on the floor of the Senate, but in the end that argument wouldn't matter. The Senate voted 48-50 against a procedural motion, effectively keeping Allard's amendment on the Senate shelf.
Opponents called the vote a clear defeat for President Bush's agenda. An upbeat Allard said it was a first step in a process that could take years. If nothing else, it officially signaled the beginning of what could be a long, hot summer of partisan rhetoric from all sides.

Suddenly, Allard has stepped out of the shadows of national obscurity and into that heated limelight.

By the time Allard's marathon day was done Wednesday, the mild-mannered man from Fort Collins, Colo., was facing the biggest national media throng of his career. For better or worse, the gay marriage issue has made him a lightning rod in one of the most emotional debates of his times.

Until now, his biggest national profile has been on defense issues or his widely publicized push for anti-cock fighting legislation. ...

Roger Brown, Allard's senior legislative assistant, said that a Democratic senator from a Western state had told Allard, "I'd like to vote with you, but then I wouldn't get a Finance Committee seat."
 
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posted by Eve at 6:49 PM | link 0 comments

SENATORS GET AN EARFUL ON GAY MARRIAGE BAN: From the Cincinnati Post
 
U.S. Sen. Mike DeWine's offices logged more than 6,500 calls Monday and close to another 4,000 Tuesday urging the senator from Ohio to support a constitutional amendment banning gay marriage. The offices of Ohio's other senator, George Voinovich, received 15,000 phone calls about the amendment this week alone, roughly 30 times the number it gets during a typical week and the largest volume it has ever gotten on a single issue. "Our phones are still going off," Voinovich spokeswoman Marcie Ridgway said Wednesday, just as the Senate was preparing for a procedural vote on the amendment. ...
 
Senators' offices reported that they were deluged with calls, letters and e-mails from constituents weighing in on the amendment. DeWine's offices in Washington and Ohio got so many calls that an extra person had to be assigned to answer the phones, said the senator's spokeswoman, Amanda Flaig. Of the more than 11,000 calls received this week, only 659 were from people who opposed the amendment. Voinovich's office did not have a tally on calls it received, but Ridgway said they were overwhelmingly in favor of the amendment. Both DeWine, of Cedarville, and Voinovich, of Cleveland, were targeted by groups pushing for the amendment. The Family Research Council included the two Republicans on its "high priority" list of 25 senators to contact. The Alliance for Marriage also contacted groups in Ohio and asked them to call or write to the senators and urge them to support the amendment. ...
 
Though DeWine and Voinovich had been undecided about the need for a constitutional amendment, both voted in favor of the measure on Wednesday. ...
 
Both of Kentucky's Republican senators, Jim Bunning of Southgate and MitchMcConnell of Louisville, announced their support for the amendment early on and were not among the senators targeted by the lobbying groups. Even so, Bunning's office said it received more than 3,000 calls on the amendment this week, running overwhelmingly in favor of the amendment.
 
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posted by Eve at 6:44 PM | link 0 comments

LESBIAN COUPLE FIRST ON BIRTH CERTIFICATE: From the Boston Herald
 
In a milestone for same-sex parents, a married lesbian couple from Jamaica Plain is believed to be the first homosexual pair recognized as parents on their child's birth certificate.      
 
Cora Roelofs and Liz Steinhauser are named as mother and "second parent'' on a certificate issued by the town of Wellesley and approved by the state Department of Public Health.      
 
"We hope people realize this is both justice and a joy, and we hope they support our family,'' said Roelofs, who gave birth June 4 to a boy who was conceived through artificial insemination. The birth certificate was issued June 29.      
 
The milestone became possible when same-sex couples gained the right to marry in Massachusetts on May 17. Under state law, married couples that have a child through artifical insemination are automatically recognized as parents.      
Officials with the state Department of Public Health said yesterday no final decisions have been made on whether to change the wording on birth certificates, which currently have spaces for a mother and father.      
 
Gay rights advocates said they know of a few same-sex parents that are both listed on a birth certificate, but Roelofs and Steinhauser, who were married June 3 and gave birth the next day, are believed to be the first.      
 
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posted by Eve at 6:41 PM | link 0 comments

CONGRESS WEIGHS D.C. DOMA: From the Washington Blade
 
A Republican congresswoman from Virginia introduced a bill on July 7 that would prohibit the District of Columbia from legalizing same-sex marriage or recognizing such marriages from other states. Rep. Jo Ann Davis, whose district includes the cities of Fredericksburg and Williamsburg, dropped her bill into the legislative hopper without any co-sponsors and without releasing a statement elaborating on her reasons for introducing the legislation.
 
Davis' bill, H.R. 4773, is just one sentence long. It states, "In the District of Columbia, for all legal purposes, 'marriage' means the union of one man and one woman." ...
 
District Mayor Anthony Williams and a majority of the members of the D.C. Council have said they strongly oppose such laws, saying they favor, in principle, the legalization of same-sex marriage.
 
Norton said she would enlist the help of House Democratic leaders to oppose Davis' bill.
 
Norton and other Capitol Hill observers said the lack of co-sponsors and the apparent decision not to draw immediate attention to her bill suggests that Davis may be seeking to lay the groundwork for attaching the measure in the form of an amendment to the D.C. appropriations bill.
 
The influential House Appropriations Committee was scheduled to mark up the city's fiscal year 2005 appropriations measure this week. ...
 
The bill to ban gay marriage in the District comes as D.C. Mayor Anthony Williams still holds back a legal opinion by the city's chief attorney on whether D.C. laws permit the city to recognize same-sex marriages issued in Massachusetts or other states. Sources close to the city government have said the opinion by D.C. Attorney General Robert Spagnoletti, who is gay, holds that same-sex marriages from others states could be legally recognized in the District. ...
 
The Gay & Lesbian Activists Alliance, a small D.C. group of veteran activists, has cautioned Williams against releasing the opinion and against recognizing same-sex marriages from Massachusetts for the foreseeable future, fearing congressional intervention to bar gay marriage in D.C.
 
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posted by Eve at 6:32 PM | link 0 comments

THESE KANSAS CITY-AREA MINISTERS CALL FOR DEFEAT OF SSM BAN: From the Kansas City Star
 
A group of Kansas City area ministers said Thursday that a proposed ban on gay marriages in Missouri is unfair and should be defeated.
 
The Aug. 3 constitutional amendment is "unnecessary and mean-spirited," said the Rev. Jim Eller, minister at the All Souls Unitarian Universalist Church in Kansas City, where the forum was held. About a dozen ministers attended.Gays are entitled to the same legal rights as other couples, Eller said.
 
"As a religious leader, I am called to stand for justice, equity and human dignity, as God as is my witness," Eller said at the forum sponsored by the Constitution Defense League, formed to oppose the proposed marriage ban.
 
The group circulated at the forum a list of 92 ministers from a range of faiths, including Baptists, Episcopalians, Lutherans, Jews and Methodists, who are opposed to the ban.
 
The ministers argue that Scripture embraces loving, committed relationships and denounces discrimination, which is what they believe the gay marriage ban amounts to. ...
 
Supporters of the gay marriage ban were not invited to the forum, but Vicky Hartzler, spokeswoman for the Coalition to Protect Marriage in Missouri, said there are thousands of clergy in the state who favor the amendment.
 
Hartzler said the Bible says God created men and women with the intent they be together.
 
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posted by Eve at 6:28 PM | link 0 comments

RENEWED STATE EFFORTS MADE AGAINST SSM: From the New York Times
 
...Legislatures in seven states have already approved amendments that will be put before voters this year, starting with Missouri on Aug. 3 and Louisiana on Sept. 18, according to the Human Rights Campaign, a gay rights group. Georgia, Kentucky, Mississippi, Oklahoma and Utah will follow in November. Supporters of amendments have also collected enough signatures in Arkansas, Michigan, Montana and Oregon to place proposed amendments on ballots this fall. Those signatures are being reviewed, but experts believe most, and probably all, will succeed. In Ohio and North Dakota, signatures are still being collected. Organizers in both states say they are confident they will gather more than enough signatures to get on the ballot in November, an assessment opponents do not dispute. Amendment supporters said that although the federal amendment was soundly defeated in the Senate on Wednesday, the setback would energize conservatives to go to the polls for state amendments. ...
 
Opponents of the Ohio amendment said they hoped to recruit support from Ohio businesses, saying that the measure would discourage highly qualified gay and lesbian employees from coming to Ohio.
 
Alan Melamed, campaign manager for Ohioans Protecting Our Constitution, which is fighting the amendment, said it included broad language that could make domestic partner benefits for opposite-sex couples unconstitutional. Many major corporations and several colleges in Ohio offer such benefits to their employees.
 
But proponents of the Ohio amendment said it would not prohibit private companies from offering domestic-partner benefits. Missouri, which will vote on its constitutional amendment during an Aug. 3 primary, is being watched as a bellwether for how other states may vote. The Legislature approved the amendment with overwhelming support. But opponents contend that many voters remain open to arguments that it is discriminatory.
 
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posted by Eve at 6:22 PM | link 0 comments

RULING IN CHILE FORCES GAYS TO CHOOSE BETWEEN CLOSET, PARENTING RIGHTS: From Knight Ridder
 
[I note that the father in this case is also unable or unwilling to raise his children within marriage, and is also sending messages about sex, parenting, and marriage that conflict with "the Roman Catholic Church's definition of traditional families." --Eve]
 
Judge Karen Atala had the love of her three daughters and commanded the respect of Chilean lawyers arguing cases in her courtroom. Now, all across the deeply conservative Andean nation, she's known simply as "the lesbian judge."
 
Atala became an unwitting public figure and international gay-rights symbol when Chile's Supreme Court, in a controversial 3-2 decision May 31, overruled two lower courts and awarded custody of her children to her ex-husband, Jaime Lopez.
 
The small-town judge wasn't an alcoholic, promiscuous or a negligent mother--reasons Chilean courts usually place children in the custody of their fathers. Atala's "grave" mothering mistake was admitting she's a lesbian who took a partner. In South America's most conservative nation, the court ruling sought to bolster the Roman Catholic Church's definition of traditional families. Monsignor Cristian Contreras, an auxiliary bishop in Santiago, praised the "commonsense" approach of the judges.
 
Gay rights groups have been galvanized by the decision, and Chile is seeing a debate like the one under way in the United States over state-sanctioned marriage and the inheritance rights of same-sex couples. How it plays out in Chile might affect gay rights throughout Latin America. ...
 
De Ramon said her partner was seeking treatment for a deep depression that followed the loss of her daughters. Atala's girls--aged 9, 5 and 4--now are living with Lopez. Lopez, a lawyer, has since had his new girlfriend move in.
 
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posted by Eve at 6:12 PM | link 0 comments

THE UNBEATABLE INFERTILITY ARGUMENT: Maggie responds to Michael Triplett

[Sorry for the delay--this got buried in my inbox--but I think the issue is well worth revisiting. --Eve]

The heart of the problem (or disagreement) is what I consider an impoverished image of the relationship between law and marriage.

Marriage is a pre-liberal institution. It was not and cannot be created merely by law and cannot be reduced to its legal incidents. Lawyers have a hard time with this concept.

For a discussion of how and why family law became inarticulate about the relationship between marriage and children--and alternatives to a punitive/incentives view of how marriage law protects children, seem my law review article (PDF) in the Notre Dame Journal of Law and Public Policy.

To say that law works solely by directly punishing or creating disincentives (or incentives) is to misunderstand the law's role in many things, but especially marriage.

To imagine that punishing infertility or requiring couples to make fertility oaths would strengthen the capacity of marriage to protect children is also to misunderstand in just a big core way, how social institutions function. Especially one like marriage.
posted by Eve at 3:49 PM | link 0 comments

FAMILY STRUCTURE: Mark Barton replies to Chairm Ohn

Chairm Ohn: These three speculative points are subject to assumptions about marriage. First, that sexual preference is not fluid; [...]

Mark B.: I don't claim to speak for lesbians or bisexual men, but the fairly standard experience of self-identified gay men is that their orientation (in the sense of who they're attracted to) is not at all fluid. Same-sex attraction starts full strength at puberty and doesn't waver.

Chairm Ohn: [...] that the experience of mixed-orientation marriages is more spectacularly pointless and unstable than the average marriage.

Mark B.: Which is only to be expected given that one major form of glue holding together an average marriage, namely sexual intimacy, is likely to be largely absent or unsatisfactory.

Chairm Ohn: Second, that gay men who marry women in order to, e.g., have their own children are generally prone to unsavory sexual behavior;

Mark B.: Note that I don't claim that gay men who marry women specifically in order to have children are particularly prone to dangerous sexual behaviour. On the contrary, I doubt that happens very much in the first place. Nowadays there are better ways of having the opportunity to raise children than marrying someone you're not at all sexually attracted to. What I claim is that gay men who marry women in order to be thought heterosexual are prone to dangerous sexual behaviour.

But this is uncontroversial--it's why for example that HIV is coming to be a disproportionate problem for the African-American community. Indeed the first guy I ever slept with couldn't have been a sorrier case study: he was African-American, he had a girlfriend on the side to keep up
appearances, but he was also very resistant to using condoms because he didn't identify with the gay community that all the safe-sex advertising was pitched at. I hope he and his girlfriend are still alive.

Note further that I only mention any of this to underline the fact that merely disallowing SSM will have a negligible effect on whether gay men get traditionally married. The only thing that will have an effect is severely punishing, legally and socially, any other option. But not
only has this been found to be unconstitutional, it would also have the major adverse consequences I point out.

Chairm Ohn: [...] that may or may not be so within or without marriage--as per the common view among gay activists that monogamy need not mean sexual exclusivity in SSM.

Mark B.: Note that even gay activists who think that open relationships are often good also think that these have to be negotiated, and that dangerous sexual practices engaged in unilaterally are inexcusable.

Chairm Ohn: If SSM would have the influence on gay domesticity that its advocates predict, we might expect more same-sex couples would be attracted to SSM (if enacted); and fewer would start mixed-orientation marriages to have children.

Mark B.: I think any suggested influence of SSM on gay domesticity is probably oversold. Gay domesticity arises naturally as soon as homophobia is checked.

Chairm Ohn: There'd be a reduction in the volume of children migrating from man-woman couples to same-sex couples through divorce. It is difficult to imagine that assisted reproduction and adoption could make up the difference. The tiny volume of same-sex households raising children might be expected to diminish below current levels.

Mark B.: My point exactly. Withholding SSM is unlikely to have much effect but to the extent it does it's likely to be counterproductive.
posted by Eve at 3:07 PM | link 0 comments

CHURCHES LEARN IRS DO'S, DON'TS: From the Kansas City Star

Dennis Slavens thinks he now has a better understanding of how far he and his fellow clergy can go when talking politics.

"I think we have more rights than what we recognize," the pastor of the Antioch Family Worship Center said after a meeting Wednesday in Overland Park.

The issue has been contentious in Johnson County, where some ministers are calling on churches to participate more in politics and a political group has begun monitoring church services to look for possible legal missteps.

And it has been contentious across the nation, amid reports that Bush-Cheney re-election workers are seeking campaign help from religious groups. ...

But for the most part, according to the IRS, churches and other tax-exempt organizations cannot participate in any campaign on behalf of, or in opposition to, any candidate for public office. Those organizations cannot endorse candidates, make donations to their campaigns, engage in fund raising or become involved in any other activities that may be beneficial or detrimental to any candidate, the IRS says.

But, as Miller pointed out, the law doesn't prohibit ministers from speaking out. They can address political issues from the pulpit, he said. And, as individuals, they can endorse candidates away from their church, such as in advertisements, he said.

Here are some examples of what churches can and cannot do, according to the IRS:

Speaking from the pulpit about issues such as same-sex marriage is acceptable. But during a church service, a religious leader cannot urge the congregation to vote for a specific political candidate.

Inviting a candidate to speak at a church is OK. But the church must provide an equal opportunity to other candidates seeking the same office.

Holding a forum at church and asking candidates to speak is fine, but not if the forum is operated to show a bias for or against any candidate.

Tax laws lie behind the IRS standards. Organizations such as churches that benefit from their tax-free status face certain rules that do not apply to taxable groups. One of the laws, about a half-century old, pertains to politicking.

Several weeks ago the Internal Revenue Service sent a letter to major political parties, including the Democratic and Republican national committees, advising them of the law and the role groups such as churches can play in political debate.

"Organizations may encourage people to participate in the electoral process by sponsoring debates or forums to educate voters, distributing voter guides, or conducting voter registration or get-out-the-vote drives," the letter said.

If those activities show a preference for or against a certain candidate or party, however, "it becomes a prohibited activity."

Churches that violate the law face penalties, including the potential loss of their tax-exempt status. That happened several years ago to a church in New York.

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CHRISTIAN GROUPS SAY THEY WON'T GIVE UP: From the Washington Post

Despite a defeat in the Senate yesterday, evangelical Christian groups said they would continue to push for a constitutional amendment to ban same-sex marriage, but some predicted that it would be a 10-year battle.

In the short term, the amendment's religious backers said they would turn their sights toward referendums at the state level. At least nine states, and possibly as many as 12, will have state constitutional amendments against same-sex marriage on the ballot in elections this summer and fall. ...

Colson and other evangelical leaders said the Senate vote achieved several objectives, including energizing grass-roots conservatives, forcing senators to take a stand and forging bonds between the Republican Party and socially conservative black churchgoers who have traditionally been steadfast Democrats.

They acknowledged, however, that their failure to win a simple majority on a procedural vote to cut off Senate debate starkly revealed the obstacles before them. In addition to opposition in Congress, they face strong public reservations about amending the Constitution as well as disagreements among social conservatives over what the amendment should say.

Polls show that support for such an amendment varies greatly, from as low as 36 percent to as high as 60 percent, depending on how the issue is framed, according to an analysis by the nonpartisan Pew Research Center.

Support is higher if the proposed amendment is worded positively -- defining marriage only as a union of a man and a woman -- than if it is worded negatively, as prohibiting same-sex marriage. Support also drops substantially if the public is presented with an alternative to amending the Constitution, such as leaving the issue to the states to decide. ...

In a last-minute bid to increase support for the amendment, some Republican senators on Monday proposed to reduce it to a single sentence: "Marriage in the United States shall consist only of a man and a woman." They suggested eliminating the second sentence, which would prohibit courts from interpreting either the federal or state constitutions to require that "the legal incidents" of marriage be given to same-sex couples.

The wrestling over the text stemmed, in part, from disagreements over the meaning of the second sentence. Some constitutional scholars contend that it would block Vermont-style civil unions, which confer state-level benefits of marriage but not federal protections, such as Social Security. Other scholars say it would allow them.

The wrangling also reflected divisions among the amendment's religious backers. Some members of the Arlington Group, such as the Christian Coalition, favor an amendment that would ban same-sex marriage but not civil unions. Others, such as the Traditional Values Coalition and Concerned Women for America, want to ban both.

Minnery said the refusal of Senate Democrats to allow a vote on an abbreviated text showed that "liberals are scared to death of a one-sentence amendment because they know it would be popular." But he said conservatives also are worried about a single sentence, because they are not sure how courts would interpret it.

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ACCEPT US AS PARENTS, PAIR ASK IN APPEAL: From the Cincinnati Enquirer

Ohio's legal system has yet to recognize a Mason lesbian couple as parents with equal responsibilities.

But their 31/2-year-old son, Joshua, does.

"When we left him this morning with the child-care provider, he said, 'I love you, Mommies!'" said Cheryl McKettrick as she and her partner, Jennifer McKettrick, stood outside an Ohio appeals court Tuesday after a hearing over the women's legal parental status.

The Ohio 12th District Court of Appeals in Middletown is considering whether the women's shared-custody agreement for "Baby J" should be legally accepted, giving both women legal authority to make important decisions for the child. ...

The McKettricks publicly declared their lifelong commitment to each other in a 2000 ceremony, which has no legal standing because Ohio does not recognize same-sex marriages. Jennifer gave birth to Joshua, the product of an egg that Cheryl donated and was borne by her partner. The women began preparing for a shared-custody agreement even before Joshua was born. But as of now, "the law hasn't really made a declaration as to either parent at this point," Sawyer said.

Because of the legal uncertainty, the women have hit snags.

When Joshua was an infant, he was running a fever and the McKettricks decided he needed to go to the hospital. While he was in distress, the women spent precious minutes helping a hospital employee "figure out how to put our names in the (computer), and who is his parent and who has his insurance," Jennifer McKettrick said.

He got the care he needed. But the women fear a hospital administrator might balk someday.

"If someone challenges either parent's authority, what do they do?" Sawyer said.

The agreement would avoid that--and would ensure that the child would continue to receive financial and other support if one of the women would die or if the couple would separate.

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NEW GOP SSM BAN TACTICS: From The Hill

Realizing that a constitutional amendment banning gay marriage faces little chance of passing soon, if ever, House Republicans yesterday discussed alternative approaches, including stripping federal courts of jurisdiction over the issue, passing a federal law to define marriage and using the appropriations process to ban gay marriage in Washington.

All the legislative action on gay marriage is currently in the Senate, but the House GOP is rapidly developing its own tactics. Leaders will take their first step next week when they take up Rep. John Hostettler’s (R-Ind.) "jurisdiction stripping" bill. This would bar federal courts from hearing lawsuits related to gay sex and marriage.

While the House will not debate a constitutional amendment before the summer recess, it might take it up when Congress resumes in September.

Majority Leader Tom DeLay (R-Texas) told reporters yesterday that he plans to use "jurisdiction stripping" measures to achieve other social policy goals as well.

For example, he will push legislation to stop federal courts from hearing lawsuits related to the words "under God" in the Pledge of Allegiance.

The U.S. Constitution establishes only the Supreme Court but leaves it to Congress to "ordain and establish" the lower federal courts. Arguably, therefore, Congress has the right determine the federal courts' jurisdiction. ...

DeLay said the time is "not quite ripe" to apply the GOP's new legislative tactics to the issue of abortion.

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posted by Eve at 1:31 PM | link 0 comments

COURT ALLOWS GAYS IN YUKON TO MARRY: From CBC News

The Yukon has become the fourth jurisdiction in the country to legalize gay marriages.

Justice Peter McIntyre ordered the Yukon government Wednesday to change its definition of marriage to, "the voluntary union for life of two persons, to the exclusion of all others".

The Yukon Supreme Court also ruled that two gay men, Stephene Dunbar and Rob Edge, should be able to marry, and they will, this Saturday.

A lawyer for the two men said his clients were discriminated against when the territory turned down their request for a marriage licence.

Jim Tucker likened their situation to a famous American civil rights case.

"Telling [them] that they could get married by the use of banns in their church is analogous to telling Rosa Parks that she could take a cab," he said.

Yukon Premier Dennis Fentie praised the court, saying the judge's decision demonstrates how courts can be used to extend freedoms to all Canadians.

"I think it's great when due process can reach these conclusions on behalf of any particular group of citizens in this country. It shows this country is very open to all views and I think that's a good thing and the Yukon is no different," Fentie added.

The premier did not comment on the judge's criticism of the territorial government for not issuing the marriage license in the first place.

Quebec, Ontario and British Columbia also allow same-sex marriages.

The federal government has asked the Supreme Court of Canada for an opinion on proposed federal legislation to legalize gay marriages.

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posted by Eve at 2:33 AM | link 0 comments

GAY MARRIAGE VS. AMERICAN MARRIAGE: Kay S. Hymowitz

These days everyone has a strong opinion about marriage, but no one seems to be sure what it is, exactly. Is it a sacramental union? Is it a public recognition of a committed love relationship? Is it a state scheme for distributing health insurance and tax breaks? Or given what two eminent anthropologists writing recently in support of gay marriage in the Washington Post describe as a "startling diversity of socially approved forms of marriage," is the institution too varied to fit into a single, dictionary-neat meaning?

The anthropologists are right about one thing: human beings have come up with almost as many ways of getting hitched as they have languages to tell mother-in-law jokes. ...

But beneath all the diversity, marriage has always had a fundamental, universal core that makes gay marriage a non sequitur: it has always governed property and inheritance rights; it has always been the means of establishing paternity, legitimacy, and the rights and responsibilities of parenthood; and because these goals involve bearing and raising children, it has always involved (at least one) man and woman. What's more, among the "startling diversity" of variations that different cultures have elaborated on this fundamental core, our own culture has produced a specifically American ideal of marriage that is inseparable from our vision of free citizenship and is deeply embedded in our history, politics, economics, and culture. Advocates for gay marriage cite the historical evolution of that ideal--which we might call republican marriage--to bolster their case, arguing that gay unions are a natural extension of America's dedication to civil rights and to individual freedom. But a look at that history is enough to cast serious doubt on the advocates' case.

Strange as it seems, America's founding thinkers were as interested in the subject of marriage as any of Fox TV's bachelorettes. Given the political experiment that they were designing, they had good reason, for they understood the basic sociological truth that familial relations both echo and shape the political order. "To the institution of marriage the true origin of society must be traced," James Wilson, a member of the Continental Congress and later a Supreme Court justice, wrote in 1790. Before the Revolutionary War, legal philosophers and statesmen like Wilson filled magazines and speeches with discussions of what kind of marriage would best live up to the principles of the new country. It's not surprising that they zeroed in on one quality in particular: self-government.

...Given that marriage was originally a religious sacrament, the Founders understood that the institution retained, even in their secular republic, an element of spirituality, an assertion that man is something higher than the beasts and more than a merely material being. The ceremony confers a special, human dignity upon our relations. In addition, they understood that marriage is a contract, regulated by the laws and ultimately enforceable by the state, that spells out property relations between the spouses, as well as their inheritance rights and those of their children. Therefore, marriage is intrinsically a government concern.

In addition to these time-honored beliefs, the Founders brought a more modern idea to the matrimonial drafting table. Like many of their educated contemporaries in Western Europe, they had come to think of marriage in a way congruent with emerging ideals of individual liberty and democratic equality. In the old world, marriage was originally a matter of caste, class, or clan. Courtship was closer in spirit to bartering than romance; young people were to be traded off by elders intent on solidifying family ties and merging family fortunes and acres.

By the late eighteenth century, however, Western Europeans were increasingly emphasizing marriage as a love-match between two self-determining individuals. Young people were free to choose for themselves with whom to spend their lives, and love could transcend class barriers to recognize the intrinsic personal worth of the beloved. ...

Most important, republican marriage provided the edifice in which couples would care for and socialize their children to meet the demands of the new political order. If republican marriage celebrated self-government, it also had to pass down its principles to the young; it was supposed to perpetuate as well as to embody the habits of freedom. So whereas in all Western societies, the state concerns itself with fostering the institution of the family because it is the mechanism by which the society reproduces itself, in America that state concern takes on a special urgency, because of child rearing's unique momentousness to the national project. ...

..."Throughout the history of Massachusetts, marriage has been in a state of change," a group of historians of marriage, family, and the law asserted in an amicus brief in the case that legalized gay marriage in [Massachusetts]. Gay marriage "represents the logical next step in this court's long tradition of reforming marriage to fit the evolving nature of committed intimate relationships and the rights of the individuals in those relationships." But detaching the "tradition of reforming marriage" from the multifaceted tradition of republican marriage not only starts history around 1968, but it also presents a seriously distorted picture of why the American government is in the marriage business at all. ...

In fact, gay-marriage proponents generally treat children as a distraction from the state's interest in marriage rather than crucial to it. They impatiently insist that history has settled the matter: it has definitively separated child rearing and marriage, demonstrating conclusively that marriage is a changing and elastic institution that can easily accommodate homosexuals. "When a third of children are born out of wedlock, when contraception and abortion are available on demand, when you have single-parent adoption legal in every state," Jonathan Rauch, the author of the recent Gay Marriage, has opined, "the debate is over about detaching marriage from parenthood--indeed was over years ago." Andrew Sullivan, along with Rauch one of the most thoughtful and eloquent advocates writing today, agrees: the argument that marriage has anything to do with children, he says, "fails socially and culturally because in our culture at this time, procreation is not understood to be an essential part of what it is to be married."

But it's worth considering just how recently--and how haphazardly--Americans closed "the debate . . . about detaching marriage from parenthood." For most of American history, republican marriage remained the reigning paradigm: a self-reliant and child-centered couple, who had freely chosen each other in a spirit of equality and mutual affection and who would pass on to their young not just property but also the qualities needed to live in freedom. That reign only came to an end in the late 1960s as divorce laws loosened and Americans began pulling off their wedding rings at record rates.

Divorce is such a conundrum for the nation because it follows directly from American principles even while threatening to subvert them. During the Revolutionary era, marriage theorists understood that a nation that loves liberty had to tolerate some divorce; if it was a matter of principle that you chose to enter into wedlock, it was also a matter of principle that you had to have some way of choosing to get out, at least under some circumstances. A number of early writers--including Thomas Paine, whose problems with Mrs. Paine gave him a personal stake in the issue--urged Americans to take a tolerant approach toward the practice. Still, even though divorce was more accepted in this country than in many parts of the world, it remained rare, a last resort and one that worried people deeply. That was no longer the case by the late 1960s, when squeamishness on the subject evaporated, the marital exit door flew open, and not only the battered and the miserable but also the merely unfulfilled came pouring out.

...The soaring rates of divorce signaled a fundamental transformation in the American idea of marriage. As Americans crowded into the divorce courts, they were casting aside the complex--and demanding--vision of the Founders. Marriage was becoming a minimalist institution; people now thought of it as an intimate relationship between two adults, having little to do with children and nothing to do with propagating the political and moral culture. ...

So what are we to make of the fact that these mom-and-apple-pie young people tend to be more in favor of gay marriage than their parents and grandparents are? The great irony is that their traditionalism enlarges their sympathy for gays' hunger for 'til-death-do-us-part commitment; after all, that's what's they want, too. Odd as it sounds, gays and the children who grew up in single-parent homes share the experience of standing outside and looking longingly through the window at the peaceful, Norman Rockwell family reading or playing Scrabble in front of the fireplace. Rauch and Sullivan, in particular, have written touchingly of marriage as a solemn, even spiritual, union, a momentous public vow to another person that comes with profound responsibilities and aspires to transcendence. If you add together young people's earnest devotion to marriage and their interest in the civil rights movement (insofar as they have studied any American history at all, it's likely to begin with Rosa Parks and end with Martin Luther King), you have a generation for which gay marriage seems merely commonsensical.

But what the young neo-traditionalists have trouble understanding is that their embrace of the next civil rights revolution, as many of them are inclined to see the fight for gay marriage, is actually at war with their longing for a more stable domestic life. Gay marriage gives an enfeebled institution another injection of the toxin that got it sick in the first place: it reinforces the definition of marriage as a loving, self-determining couple engaging in an ordinary civil contract that has nothing to do with children. That's no way for marriage to get its gravitas back. It is marriage's dedication to child rearing, to a future that projects far beyond the passing feelings of a couple, that has the potential to discipline adult passion. "The gravity of marriage as an institution comes from its demand that love be negotiated through these larger responsibilities [surrounding procreation]," Shelby Steele has written in response to Andrew Sullivan. Ignore those responsibilities and you get, well, you get the marital meltdown that this generation was hoping to transform.

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posted by Eve at 7:50 PM | link 0 comments

CATS AND DOGS STILL NOT LIVING TOGETHER: David Blankenhorn

From today's editorial in the Salem, Oregon Statesman Journal:
"We have yet to hear of a happily married straight couple who called it quits because marriage licenses have been issued to gay couples in Oregon ... If gay marriage threatens the underpinnings of traditional marriage anywhere in the country, we should be seeing evidence in Oregon by now. In fact, life has pretty much gone on as usual for heterosexual couples in the months since Multnomah County issued more than 3,000 marriage licenses to gay and lesbian couples. Those licenses did not entice straight people to suddenly 'turn gay.'"

Well, now that we know that the civil-disobedience same-sex marriage ceremonies in Oregon a couple of months ago haven't caused straight people all over that state to "turn gay," that pretty much settles the issue, doesn't it? After all, hasn't everyone who opposes SSM been predicting that that would happen? Imagine, weeks and weeks have gone by, and no outbreak of "turning gay" yet! And no rush (yet!) of straight married couples suddenly filing for divorce, saying that same-sex couples tying the knot caused them to do it.

The fact that people of good will can make these statements -- the fact that they apparently sincerely believe that opposition to SSM is actually grounded in the expectation that marriages will collapse overnight and in fears about people "turning gay" -- tells me that opponents of SSM have simply not yet successfully explained the ways in which SSM is likely over time to weaken marriage as an institution. If we are going to argue about this, shouldn't the argument at least be a serious one?

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posted by Eve at 7:44 PM | link 0 comments

ADULT CHILDREN OF SAME-SEX COUPLES: Stacey Simon

[Stacey Simon is an attorney in New York City.]

I felt compelled to reply to Cassidy and say you are the exception NOT the rule. I am the daughter of two moms. I am now 30 years old. I am an attorney in New York City, with a successful career and am married -- to a man. I have always felt nothing but love and joy in my household with my two moms.

I grew up without any complexes about my mothers' sexuality, but instead grew up with an open mind and without the prejudices most kids have. My dating and sexual relationships with men and my friendships with women have always been fulfilling, perfectly normal and comfortable.

I also grew up knowing several other families like mine, with gay parents. All of those children, including myself, were (and are) happy humans and all grew up to be straight (heterosexual), married with children and successful careers.

I am a firm believer that anyone with love and compasssion to share with a child shoud be a parent and thier sexuality should be irrelevant to their capacity to love a child. There are enough heterosexual couples who have children who should NOT be parents. A heterosexual couple is no better equipped to be parents just because the household it is comprised of a man and a woman. And maybe some gay couples shouldn't be parents, but not because they are gay, for the same reasons that some heterosexual couples shouldn't be parents -- not everyone is cut out for parenthood. We shouldn't be so quick to draw lines -- homosexuals make bad parents and heterosexuals make good parents -- that's preposterous and narrow minded!

Maybe Cassidy's parents wouldn't have made good parents if they were a part of a heterosexual couple either. Maybe they weren't capable of the love and support that is necessary to be a parent. On the other hand - if Cassidy grew up with love and support and that just wasn't enough, I seriously doubt that any heterosexual couple could have given her what she needed to make her happy. Another note to Cassidy -- instead of feeling like a science experiment -- you should have the mentality of an adopted child . . . your parents wanted you enough to find a way to have you instead of other couples who go "oops -- the condom broke so I guess we're having a baby".

I and many other children I have come to know who were raised in gay households are very happy and well adjusted humans and do not feel cheated in any way. In fact, I have a greater capacity for tolerance so that I feel better off than other people I know.

And I do not say this out of fear for speaking the truth--it is the truth!
posted by Eve at 7:38 PM | link 0 comments

GOP STRATEGY LIKELY TO BACKFIRE: R.K. Becker

If gay marriage spreads rapidly throughout the United States within the next few years with increasingly meek opposition, the Republican leadership and strategy will bear a significant part of the blame.

Not that the Democratic leadership wasn't disingenuous in their early claims that Republicans were just using the SSM as a partisan "wedge issue." They knew full well that the issue had been thrust on the country by SSM activists and judges, not the GOP.

But it didn't take long for the Republicans to start acting very much as if they only saw this issue as the Democrats described it. Hence the plan to introduce the FMA this week, when it clearly doesn't have the votes, only for the purposes of getting Democrats on the record against it, in the hope that this will lead to a gain of Republican seats in November's elections.

In other words, politics trumps saving marriage, and (in my opinion) saving America from ultimate cultural collapse.

If politicians really care about an issue, they will try to maximize the number of supporters on both sides of the political aisle, not hope to maximize the opposing votes across the aisle. When it comes to voting on an issue which you truly care about, play to win (on the issue, not the party), or don't play at all.

I'm afraid that this ploy is going to look like politics to most voters, and won't have the results that the GOP is hoping for. The tragedy is that it may well cause a further eroding in the public's opposition to SSM.

Why is it so hard to get moderate and conservative Democrats to support some measure that will at least contain the rush toward SSM? Especially when over two-thirds of Dems supported DOMA. I can't help getting the distinct impression that Republicans don't really want any substantial number of Democrats to support any measure which may prevent or contain SSM. Though I realize that Democratic special interest groups are putting the pressure on their party to hold firm, most Dems know full well that a wide perception that the party has come to represent the values of the Hollywood/college campus culture has been the main factor in their loss of Congressional seats, not only in the South, but in the more rural and old blue-collar parts of the North as well. Dems can't afford to enforce discipline on representatives from these areas.

Thirty years ago, it was Democrats like Sam Ervin and Emanuel Celler that led the opposition to the ERA. Those who really want to stop SSM should be working with conservative Democrats, not ignoring them.

But this is so typical of the strategic blunders of the Republicans in recent years, and it is one reason why I still consider myself a culturally conservative Democrat, as much as that species has been disappearing.
posted by Eve at 7:34 PM | link 0 comments

FAMILY STRUCTURE: Chairm Ohn replies to Joshua Jasper and Mark Barton

[Chairm is a retired educator "currently traveling in the American Heartland."]

Josh Jasper said:

"The main difference in a child having two parents of the same sex is going to be in growing up with a hostile culture, and probably with the GLBT (gay lesbian bisexual and transgendered) culture as a support for the parents. I don't think that's comparable to having one's parents divorce and re-marry, and I'd be interested in hearing any ideas on why that might be."

By far most of the children living with same-sex couples are the offspring of previously procreative marriages with the opposite sex. They have the same potential legal protections as other children of divorce. And they do have both moms and dads. The second adults in these same-sex relationships are more like social (rather than adoptive) stepparents who must cope with a blended family; but with the added complication of standing in for the opposite-sex parent. And doing so in a supposedly gender-neutral manner as companion of the custodial parent.

On that score it is worth considering the emerging trend of state legislatures enacting the presumption of joint custody. This seems to dampen the rate of divorce. It also increases the involvement of both parents in the lives of their children after divorce. That is a good thing for the children. So where would that place most of the second adults in same-sex households that raise children if not in the realm of something like social stepparents?

Mark Barton wrote that "On the one hand you won't succeed in getting gay men into opposite-sex marriages simply by making same-sex marriage unavailable."

Mr. Barton concludes that gay men in opposite-sex marriages would "be spectacularly pointless or even counterproductive because (i) such marriages are not particularly stable, (ii) men in such marriages are likely to be cheating with other men in unsavory circumstances that promote STDs, and (iii) gay men are not particularly likely to father children except in such marriages."

These three speculative points are subject to assumptions about marriage. First, that sexual preference is not fluid; that the experience of mixed-orientation marriages is more spectacularly pointless and unstable than the average marriage. Second, that gay men who marry women in order to, e.g., have their own children are generally prone to unsavory sexual behavior; that may or may not be so within or without marriage -- as per the common view among gay activists that monogamy need not mean sexual exclusivity in SSM. The third point is evidently accurate as relatively few children live with homosexual men; and few of this subset of children have been acquired through means other than marriages with women.

If SSM would have the influence on gay domesticity that its advocates predict, we might expect more same-sex couples would be attracted to SSM (if enacted); and fewer would start mixed-orientation marriages to have children. There'd be a reduction in the volume of children migrating from man-woman couples to same-sex couples through divorce. It is difficult to imagine that assisted reproduction and adoption could make-up the difference. The tiny volume of same-sex households raising children might be expected to diminish below current levels.

There are related questions that are by-products of the SSM debate. First, will society be pushed to establish a right to unrestricted access to assisted reproduction; and will society give up any option of restricting such access to man-woman marriages? Second, will society relinquish the lawful authority to prioritize who may adopt needy children?

Is there consensus on the liberal view on these fundamental issues? Is access to adoption and assisted reproduction being decided in the courts, legislatures, or outside of either?
posted by Eve at 7:18 PM | link 0 comments

ACCOUNTABILITY AND REDEFINING MARRIAGE: Matt Taylor

Opponents of SSM seem to have settled on a common argument. Robert George's recent piece in National Review, as well as past writing by Maggie Gallagher, Elizabeth Marquardt, and others, follow a similar line of reasoning:

1) The traditional definition of marriage encourages responsible behavior in adults.

2) Legalizing SSM changes the definition of marriage.

3) Therefore, SSM will result in less responsible behavior from adults.

4) The irresponsible behavior of adults is detrimental to children.

5) Therefore SSM is detrimental to children.

6) SSM improves the personal freedom of adults.

7) However, the welfare of children is more important than the freedom
of adults.

8) Therefore, SSM should not be legalized.

Some of these propositions are questionable, especially (2) and (3), as seen recently in the debate over Stanley Kurtz's research, but let's assume for the moment that Kurtz is right ... SSM would ultimately be to the detriment of children. The logical conclusion, then, is that SSM
is an undesirable policy.

That would appear to be the end of the debate, except that it misses a fundamental issue of accountability; the (heterosexual) parent is treated as a mere statistical effect, rather than a conscious adult with responsibilities of their own. Redefining marriage doesn't change
adult behavior by magic; such causation requires a moral lapse on the part of parents. Somewhere in this argument, the decisions made by
heterosexual adults should also be treated as "policy choices," even though the choices are individual and not social.
posted by Eve at 7:05 PM | link 0 comments

ADULT CHILDREN OF SAME-SEX COUPLES: Maggie clarifies

In the last year of mainstream press, I have never seen such a personal account, i.e. a child of same-sex parents who is against gay marriage. Before the last year, I would not have been looking.

Would be very happy to be corrected. If you have seen such accounts in mainstream media, pass them along.

However, I should add, since publishing the column I've heard from a number of children raised by same-sex couples, some of whom share Bronagh's opinions and some of whom do not.

The fact that whole organizations exist to promote the idea that only homophobia explains why children might long for a mom and dad is more of a reason to allow another view into print. The situation is, to me, eerily reminiscent of the divorce debate in the 70s when adults (who wanted freer divorce) argued that divorce is good for kids, and the only reason some kids felt otherwise is social stigma. Get rid of those social prejudices and the kids will be fine.

My views on the state of the social science evidence are available in the policy brief on MarriageDebate.com "Do Mothers and Fathers Matter? Evidence from the Social Sciences" (PDF).
posted by Eve at 6:59 PM | link 0 comments

IN PRIVATE HANDS: Deroy Murdock

...One could assert that marriage licenses are appropriate to government, since couples affect third parties (primarily their own children). The state, this argument goes, essentially protects children and the public from the havoc that unlicensed couples could wreak. And yet numerous family affairs exist in which people may operate without government's green light, even when they influence third parties, for good or ill. To wit:

*No one needs a government license to reproduce. One of the most profound things two humans can do is bring children onto this planet. Most parents are loving and caring. Others are not. In 2002, the federal Administration for Children and Families estimates, 896,000 boys and girls suffered neglect or abuse, 1,400 of them fatally. Among the perpetrators of these deaths, 79 percent were the victims' parents. ...

*There are no licenses for baptisms, first communions, Bat Mitzvahs, or even participation in unusual cults (such as deadly "rebirthing" ceremonies) that have been known to warp kids' minds -- or worse.

*Licenses are not required for parents to serve their offspring junk food, even though 15.3 percent of 6 - 11-year-olds are obese, the American Obesity Association reports. Parents also need no government permits to smoke around their kids, despite tobacco's health hazards.

*An estimated 2.1 million seniors endure physical mistreatment, financial exploitation, and otherwise are abused annually. Two-thirds of their tormentors are relatives, including adult children. Most, but not all, grown kids treat live-in parents with love, valor, and compassion. Despite these risks, moms and dads move into their adult kids' homes without applying for government licenses. How safe is that?

Why on Earth are Americans free to conceive children, feed them as they please, involve them in exotic religious rites, and tend to elderly parents, even though these activities sometimes go tragically awry? Why not license such behavior?

On second thought, these are just four more of life's spheres that government should avoid. Marriage is another.

If two adults want to wed, let them. If they find a cleric to grace their nuptials, hallelujah, although signing a contract should suffice. Clergy and laity should decide who may and may not marry in America's religious institutions. ...

When the religious Right embraces civil unions as "marriage lite" for gay couples, I hear a voice with a deep drawl purr to Rosa Parks: "Don't worry, ma'am. You'll find the seats in the back of the bus perfectly comfortable." Ironically, while churches that perform gay weddings at least do so in the private sector, civil unions would grant the state's approval on same-sex relationships that bedevil social conservatives. Civil unions should induce night sweats among the cultural Right: government-blessed homosexual unions absent ecclesiastical oversight. Is this truly what socio-cons want?

Consider also the slammed door that repels gay couples who seek marriage licenses versus the fast lane that greets straights.

"Virtually any different-sex couple can walk in and get a marriage license," says Evan Wolfson, Executive Director, Freedom to Marry, and author of the forthcoming Why Marriage Matters: America, Equality and Gay People's Right to Marry (Simon and Schuster). "Deadbeat dads, people on their eighth marriage, convicted felons, people in prison, even people in prison for killing their wives can get marriage licenses. But committed same-sex couples cannot. I can sum this up in one word: Britney."

To secure equal justice under law, the public rights and responsibilities that pertain to husbands and wives also should adhere to same-sex spouses. Government should license drivers, not couples. Marriage belongs precisely where we find wedding rings: In private hands.

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posted by Eve at 6:56 PM | link 0 comments

IS MARRIAGE A FORM OF DISCRIMINATION?: R.M.T. Schmid

Justice requires that equals be treated equally and unequals unequally. Discrimination is a distinction or the differential treatment based on such a distinction. Whether discrimination is justified depends on the answer to what Aristotle calls "the difficult question": equals and unequals in what? Unjust discrimination either fails to ask the right question or fails to act on the right answer.

In contemporary political discourse the term discrimination itself has come to signify injustice. While this reflects the truth that all human beings have equal dignity simply in virtue of belonging to the human species, it can obscure the fact that human dignity also requires recognition of the truth that, though equal, not everyone is the same.

To deny driving licenses to the blind does not assume that they do not deserve equal respect and consideration as persons, but that they are different from other persons in respects relevant to driving.

Some countries have introduced, and others are considering, the extension of the legal recognition and social benefits of marriage to persons in homosexual relationships, in order to "put an end to discrimination."

Are homosexual relationships equal to marital relationships?

The first and most ambitious argument from discrimination proposes that homosexual relationships are equal to marital relationships in those respects that justify the privileged treatment of marriage.

Exclusivity, dependence, duration and sexual nature are not the relevant aspects why marriage is privileged by the State. They are only the conditions of those aspects that make marriage unique: the vital function of procreation and the socializing functions of bridging the male-female divide and raising children.

When the State uniquely privileges marriage it takes the position that it is in the best interest of society for children to be born and raised in a community where they experience the cause of their biological and historical identity as a loving union preserved by each parent placing the needs of others over their own. By promoting marriage to be the exclusive union between one man and one woman, the State not only protects the rights of children but encourages the values of commitment, restraint and diversity that are needed to preserve community at large.

One objection to this is that not all marriages lead to children. Of course, the State cannot anticipate whether or not couples will have children, but it is clear that only one man and one woman together can be the biological parents of a child and can raise it with the complementarity of motherly and fatherly love. Marital acts are procreative in character, even if non-behavioural conditions do not allow for conception. ...

Are legal recognition and governmental support justifiable?

When the State uniquely privileges marriage, homosexual relationships are in no way singled out for "unequal treatment." There are any number of relationships that do not qualify for the benefits of marriage. The question then is why homosexual relationships should be treated as uniquely analogous to marriage.

The aspect that differentiates homosexual unions from other non-marital relationships of dependence and duration is their particular sexual nature, and it is not clear why this should single them out for governmental support. Preferential treatment of this sort would discriminate against all those in dependent relationships of a non-sexual nature: an unmarried woman who cares for her aging mother or two widowed sisters who share a household could not claim privileges and protection from the State.

In France the perception of this problem has led to a more liberal model of civil unions, open to any two citizens. Even this model discriminates against some, as it provides no justification why groups or singles should be financially and socially disadvantaged.

Crucially, in an open-to-all policy marriage loses the uniquely privileged position it deserves for practical and symbolical reasons. The extension of marriage privileges to non-marital unions inevitably diverts resources, dilutes meaning and diminishes status of marriage as traditionally understood. Rhetorical efforts to maintain some distance between marriage and homosexual unions cannot hide this fact. ...

Already the appeal to conscience in any matter pertaining to homosexuality risks being dismissed as "homophobia." Understood as a pathological fear, this disqualifies the position of opponents as an entirely irrational stance.

Beyond that, it has also come to imply an indifferent or even hostile attitude. Because the condemnation of homosexual behaviour objects to acts, not to persons, the conclusion that any opposition to homosexual unions indicates lack of respect and care for people is a blatant non sequitur.

If the line of reasoning is that homosexuality is so central to the human person that it is impossible to morally disapprove of homosexual acts and not thereby discriminate against the person, then by the same token conscientious beliefs central to the human person could not be contradicted without discriminating against the person.

The exhortation that "religious belief must not lead to the discrimination of homosexual persons by refusing them the right to marry" sets up a false problem. Not all arguments made by religious believers can be reduced to their religious beliefs or are justified on the basis of their beliefs alone, and not all the reasons why the State should uniquely privilege marriage depend on the immorality of homosexual acts.

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posted by Eve at 6:43 PM | link 0 comments

MARRIAGE MATTERS: Maggie replies to Tom Sylvester

Tom, I take your point. I avoid, and will continue to avoid, taking up gay issues directly because a) I don't think I have any particular expertise or credibility on the subject and b) I don't think the SSM debate depends on what you think about homosexuality.

Marriage is what I know, what I care about, and what I focus on. If you rummage through anthroplogy, many societies have not shared our own historic Judeo-Christian negative judgments on same-sex relations. But they have never heretofore confused these relationships with marriage. Growing support for SSM reflects a weakining of our understanding of and commitment to marriage as a social institution, at least as much as it is a product of changing attitudes towards homosexuality.

Before I lapse back into silence on gay issues, let me say this: I think the hard framing of sexual orientation as an issue of "discrimination" rather than civility and respect in the public square raises deep questions, to which I don't know all the answers. I see this as a disagreement about the nature, meaning and purpose of human sexuality. Certainly people who are gay and lesbian who disagree on these questions are entitled to civil rights and civility.

I'd like to say vice versa, too. But people who see this as a question of "bigotry" very often do not feel obliged to show civility or tolerance towards people they are trying to stigmatize as bigots. Often they feel morally obliged to show the opposite. Not that I am complaining. I rather like moral zealots, even when I disagree with them.

This is what I said earlier in response to Andrew Sullivan when the subject of "conservatives" lack of social policy towards gays and lesbians came up:

"I don't think I should do anything with gay people, except treat you with the dignity of a) a child of God b) a fellow citizen c) a potential friend and neighbor, brother etc. d) sometimes an ally and sometimes an opponent on things about which we agree or disagree."

I don't expect it to satisfy anyone.

But it is what I actually think, for what it's worth.
posted by Eve at 5:14 PM | link 0 comments

FMA VOTE THOUGHTS: Ramesh Ponnuru

1. You may have noticed that the editors of the Wall Street Journal came out against it this morning. They don't think the Constitution should block same-sex marriage. But they came out for a constitutional amendment that would take the issue away from judges. Their position is very close to my own, and it entails their opposition to most of the specious arguments made against the FMA. Most of the editorial is taken up with refuting those arguments.

2. Proponents of the FMA, including several on this site, keep saying that we are going to have a national policy, and the only question is whether that policy includes or excludes same-sex marriage. Either there will be a national no same-sex-marriage policy through FMA, or the judges will impose same-sex marriage everywhere. But this set of alternatives assumes that we don't make a national decision not to have a national policy: by passing an amendment that leaves the decision to state legislatures. It is unlikely that we will pass such an amendment, of course, because it is unlikely that any amendment will pass--but that is obviously true of the FMA too. (It is, indeed, one of the strengths of the litigative campaign for same-sex marriage that it backed opponents into the position where their only hope of prevailing was to go the extremely difficult route of amending the Constitution.)

3. How bad has Senator Frist's choreography of this debate been? In Roll Call, Mark Preston reported that Democrats were willing to allow an up-or-down vote on FMA, blocking both amendments and filibusters. Republicans decided to reject the offer, and so what we had was a vote on whether to vote on the FMA. From what I can gather, Republicans had three reasons for this: (1) They thought that it would be easier to prevail on future FMA votes if senators didn't compile a record of voting against it. But that means that they have to get senators who thought that the FMA was not even worth voting on to vote for it. It's not obvious that this will be easier than switching a vote. (2) They thought they could make the Democrats look obstructionist, since they were voting against a vote. But that assumed that the media would not tell the full story of the rejected offer. That strategy has thus already failed. (3) They thought a defeat on the FMA would be more demoralizing to social conservatives than a procedural defeat. How does that make sense? Is it better for social conservatives to see that most senators don't think their priorities are even worth a vote? When Republicans try to be clever, the results are rarely what they would wish.

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posted by Eve at 5:09 PM | link 0 comments

BATTLE HAS ONLY JUST BEGUN OVER MARRIAGE AMENDMENT: Maggie Gallagher

...Republicans expected Democrats to filibuster the marriage amendment. But the sudden flood of phone calls, faxes and letters this week from supporters must have made an impression. Senate Minority Leader Tom Daschle, D-S.D., is in a tough fight for his seat against a GOP opponent who opposes same-sex marriage. Dems also clearly worry about how this issue might affect the Kerry campaign.

So on Monday the Dem leadership offered Senate Majority Leader Bill Frist, R-Tenn., a surprising deal: They'd stop the planned filibuster and allow a vote on the marriage amendment, but in return they wanted a promise from Sen. Frist: No changes to the language allowed.

Why that stipulation? Democrats are afraid the Republicans will propose a streamlined, simplified marriage amendment: "Marriage in the United States shall consist solely of the union of a man and a woman." Such a straight vote on the meaning of marriage would leave them nowhere to hide. And hiding is the essential strategy of Democrats on this issue.

Democrats complain the marriage issue is divisive. By that they mean it divides the majority of Democratic voters from some key special interests of their party, who provide money and manpower. If Democrats would do what the majority of their constituents tell pollsters they want -- protect the normal definition of marriage as the union of husband and wife -- marriage would not be a divisive issue; it would unite the great majority of Americans from both parties, and all races and ethnic groups. (The majority of African-Americans are particularly upset at the framing of same-sex marriage as a civil rights issue.) ...

Meanwhile, Republicans are facing the same political reality in a different direction. Almost 80 percent of Republicans oppose same-sex marriage. But major donors (and their wives) are not nearly as unanimous. Strong support for marriage raises friction at cocktail fund-raisers back home. The libertarian wing of the party, with so little electoral clout and so much intellectual influence, is deeply resentful about this issue. So, privately, a number of GOP senators express dismay at being forced to vote on same-sex marriage.

Why not just give up? Because marriage isn't simply a "values" issue; it really is a key social institution. And radical legal experiments on marriage can do serious damage.

Five Dutch scholars just issued a letter warning that the lengthy and successful campaign to legitimate same-sex marriage in the Netherlands appears to have had "serious social consequences": plunging marriage rates, a "spectacular rise" in illegitimacy. Good scholars, they note the social science evidence isn't yet in on the causes. You can't lay the blame solely on same-sex marriage. "There are undoubtedly other factors which have contributed to the decline of the institution of marriage in our country." But "at the same time, we wish to note that enough evidence of marital decline already exists to raise serious concerns about the wisdom of the efforts to deconstruct marriage in its traditional form." (For a copy of the letter, e-mail info@imapp.org.)

This week's vote on the marriage amendment is the first effort -- but not the last-- to take the meaning of marriage away from a handful of judges and put it back where it belongs: in the hands of the American people.

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posted by Eve at 5:03 PM | link 0 comments

THE MEANING OF MARRIAGE: Los Angeles Times editorial

...So President Bush's decision to make gay marriage a political issue, and to endorse a constitutional amendment banning it, might be a miscalculation. Politicians contemplating a strong stand on any issue must balance the benefit of pleasing their core supporters against the cost of alienating swing voters (or, on other issues, vice versa). But how many voters are actually pleased at the thought of a big fuss over gay marriage? Some folks who were horrified when they first heard of the idea have decided, Why should I care? If it makes two other people happy, what's it to me? Some have noted that conservatives are supposed to believe that marriage is good for society, and most of the reasons for that belief apply to gay marriage as well. Among those who remain horrified, many find the subject so distasteful that they wish it would go away. They do not want it shoved in their faces.

Politics aside, a constitutional amendment banning gay marriage is a terrible idea. It is a terrible idea because banning gay marriage is a terrible idea. Opponents of this amendment try to make the case against it without getting to this central question. They say an amendment is unnecessary or the subject is beneath the dignity of the Constitution. But this won't do. For those who oppose gay marriage, a constitutional amendment is their only choice. One state, Massachusetts, has legalized gay marriage, by order of the state supreme court. It is not clear whether the U.S. Constitution requires other states to give "full faith and credit" to Massachusetts marriages. But there is no guarantee that it doesn't. A law cannot override the Constitution. Only a constitutional amendment can do that.

Compare and contrast: abortion and gay marriage. In the case of abortion, liberals (to generalize) are happy to see the federal courts overruling state laws and invoking the Constitution to guarantee an important right. Conservatives (to generalize) believe just as strongly that abortion has no place in the Constitution, that state legislatures should make the law regarding abortion and that federal courts should butt out. In the case of gay marriage, conservatives want to use the Constitution as a bulldozer to flatten a dangerous social experiment. Meanwhile, liberals wax lyrical about the rights of individual states to make their own laws and deplore trashing up the Constitution with issues like gay marriage.

The gay rights movement has protected and expanded freedom for all by getting the government out of our bedrooms. A tempting solution to the gay marriage controversy would be to extend that triumph one more step and get the government out of our marriages. Let churches and other private institutions define marriage however they wish. Gay marriage and traditional marriage would have the same legal status, and yet there would be no official sanction or approval of gay marriage. Both sides would have what they say they want. And what principled conservative could object to this major retrenchment of government authority in our lives?

Unfortunately for this notion, the concept of marriage is enmeshed in the details of government -- in the tax code, in inheritance and child custody laws and so on. In practice, it cannot be extracted. And even in theory, what lawyers call a "bright line" -- speeding means more than 55 mph; you're either married or you're not -- is often needed to keep the rules from becoming impossibly complicated.

But the notion of "privatizing" marriage remains a good one. And the concept of civil union may be a promising approach. Right now, civil union is just an evasion for politicians trying to sidestep the gay marriage controversy. But it could be a model for a different official attitude toward marriage. You could imagine trying to separate the various aspects of marriage into those that are primarily administrative and those that reflect primarily some kind of moral approval. ...

Gay marriage advocates tell tragic stories of, for example, gay men and women banned from a longtime partner's hospital room by vindictive parents. How many opponents of gay marriage actually want to keep a dying man away from the person he loves the most? Probably not many. It is the implied approval that bothers them.

We support gay marriage. Redefining the state's role in marriage might dampen the doubts of others.

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

HOW FRIST FUMBLED ON FMA: Howard Fineman

...Republicans think they have an advantage in the "mainstream" war on the issue of gay marriage. But they may have tossed it away this week. In proposing a constitutional amendment to define marriage only as "the union of a man and a woman," the GOP's goal was to put Democrats on the cultural defensive and to inspire religious conservatives who form the core of modern the party today. Instead, the White House and Senate Majority Leader Bill Frist have exposed divisions among Republicans and, through a well-meaning procedural mistake, allowed the Democratic ticket to wriggle free of the need to cast a potentially harmful vote on the matter.

According to the polls, most Americans oppose the idea of sanctifying the unions of gay or lesbian couples by calling it "marriage." In other words, they generally disagree with the recent ruling of the Massachusetts Supreme Court. Seeking to capitalize on that sentiment, GOP leaders have been pushing an amendment that would apply not only to federal law--which could affect federal benefits and rights of various kinds--but to all the states.

But, from the beginning, Senate GOP leaders have faced hurdles, mathematical and political. For one, they needed two-thirds of the Senate--67 votes if everyone is present--to send the amendment to the states for ratification. Then, they needed 60 votes (no matter how many senators were present) to shut off the kind of endless "filibuster" debates foes can use to delay any Senate action. They got just 48 on Wednesday.

Frist faced further problems: A handful of "moderate" GOP senators, most from New England, who are more socially tolerant of gays and lesbians, and other Republicans, who are cultural conservatives, but who nevertheless loathe the idea of amending the constitution for any reason.

In the end, Frist and White House strategist Karl Rove couldn't decide whether they really wanted to pass the measure or merely have a vote they could campaign on. The result is that they got neither.

Rather than seek an up-or-down vote on a toughly worded version of the amendment, Frist and his allies (led by Sen. Rick Santorum of Pennsylvania) allowed discussion of a second, milder one. But since that one (which would leave latitude to the states) might actually pass, Democrats opted to mount a filibuster. As a result, the central (and only) vote turned out to be on a motion to shut off debate--a harder vote to use in an attack TV ad.

The procedural posture also allowed Sens. John Kerry and John Edwards to slip the noose. Since the motion to shut off debate requires 60 votes, the John-John ticket can pay homage to gay rights by merely not showing up--but can claim neutrality of a sort on the core issue by not having to vote on it.

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

LIBERTARIANS, STATE INTEREST IN MARRIAGE, AND SSM: Various

[Interesting blogospherical debate, sort of based on stuff I've said on this site about the greater difficulty of making a case for state regulation of marriage of same-sex vs. opposite-sex couples. You might want to start here and scroll up for discussion; a quote from me: "Maybe it's just my lurking libertarian tendencies, but I find it almost eerie to have the government tell me how to run my relationships. When it comes to heterosexual sex I definitely see the need for government and society to promote one ideal structure, because the third party benefits of marriage and harms of unmarriage are so great. These third party concerns are mostly but not entirely to do with children."

[Anyway, here are two more entrants in the debate. --Eve]

Diana Feygin argues that libertarians should support the FMA.

Fabio Periera replies.
posted by Eve at 4:36 PM | link 0 comments

RULING LOOMING ON YUKON SSM: From CBC North

A Yukon gay couple will find out tomorrow if their weekend wedding will be legally recognized by the government.

Visiting Supreme Court Justice Peter McIntyre says he will give his decision Wednesday morning. Despite pleas from the Crown, McIntyre refused to dismiss the case.

The government says the men can marry legally through church proclamations, or banns. Lawyers for the two men argued the governments refusal to license their marriage is discriminatory.

Jim Tucker likened their situation to a famous American civil rights case. "Telling [them] that they could get married by the use of banns in their church is analogous to telling Rosa Parks that she could take a cab," he says.

"It would ignore the discrimination that is going on now. Saying that there is an alternative means available ignores the fact that they requested a marriage license and were denied it solely because they are a same-sex couple."

Stephen Dunbar and Robb Edge have a big wedding party set for Saturday. Federal and territorial lawyers say the issue should wait until it's decided for all of Canada this fall by the Supreme Court of Canada.

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

SENATE SCUTTLES FMA: From the Washington Post

The Senate voted today to block a White House-backed constitutional amendment to bar same-sex marriages, dooming its prospects for approval by Congress this year but ensuring it an emotionally-charged role during campaigns this fall.

The move to cut off debate on the bill got the support of only 48 senators -- 12 short of the 60 needed and 19 short of the two-thirds majority that it would take to amend the Constitution. Fifty senators voted against the proposal.

Republicans had hoped to win at least a simple majority in favor of proceeding with the amendment but were thwarted when six of their own colleagues joined all but three Democrats in voting to scuttle the measure without a vote on its substance. Several senators had said there would have been even more "no" votes if the showdown had occurred on substance rather than procedure.

The vote by the Republican-controlled Senate amounted to an embarrassing defeat for President Bush and conservative leaders who had pushed hard for approval of the amendment as a way of protecting traditional marriage. But Senate GOP leaders vowed to continue pushing for the amendment, hoping it will galvanize conservatives in the November election and help elect more supporters of the amendment.

"This issue is not going away," Majority Leader Bill Frist (R-Tenn.) said.

The House of Representatives still may consider the issue. Majority Leader Tom DeLay said again today he plans to have the House vote this year on the amendment.

The Senate debate ended as it began, on a sharply partisan note, with Republicans contending that the institution of marriage was in jeopardy if opened to gays, and Democrats accusing Republicans of using a divisive issue to mobilize their conservative base. ...

Republicans who voted to block the amendment were Susan M. Collins (Maine), Olympia J. Snowe (Maine), John E. Sununu (N.H.), Lincoln D. Chafee (R-I.), Ben Nighthorse Campbell (Colo.) and John McCain (Ariz.). Democrats who voted to bring up the amendment were Zell Miller (Ga.), Ben Nelson (Neb.) and Robert C. Byrd (W.Va.).

While most senators are on the record against same-sex marriage, many in both parties are reluctant to amend the Constitution for anything, especially to override state prerogatives on a divisive social issue. Some also worried that the amendment would be viewed as gay bashing by middle-of-the-road swing voters. Still others said voters want Congress to deal with issues such as the economy, health care and Iraq, rather than to spend time in a losing battle over marriage. ...

Under this win-by-losing strategy, GOP leaders hope to reassure conservatives that the party stands with them without angering moderates who are reluctant to amend the Constitution or target gays. Use of the issue would be confined to areas where it would do the most good.

"This is just the beginning of the process," said Gary Cass, of the Center for Reclaiming America, an advocacy group founded by the Rev. D. James Kennedy, a Florida evangelist. "We need to know who's with us and who's against us."

Republicans appeared to be laying down a political marker in scheduling the vote to occur less than two weeks before the Democratic National Convention, casting a spotlight on the Democratic presidential ticket's opposition to the amendment. Sen. John F. Kerry (Mass.) and his running mate, Sen. John Edwards (N.C.), said earlier they planned to return if there were an up-or-down vote on the amendment. But after it became clear that the showdown would be over a procedural issue on cutting off debate, the two Democrats canceled out.

Plans for a vote on the amendment itself collapsed after Republicans insisted on offering a scaled-back alternative, limited to defining marriage, and Democrats balked.

The proposed amendment, which defines marriage as existing only between a man and a woman, also includes language that some have interpreted to cast legal doubt on civil unions. ...

But opinion polls generally show that most Americans agree with Kerry and Edwards in opposing same-sex marriage and a constitutional amendment to bar it, and some strategists question whether Bush and other Republicans are taking a risk in pushing the amendment.

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posted by Eve at 4:32 PM | link 0 comments

EUROPEAN GAY UNION TRENDS INFLUENCE U.S.: From USA Today

The Netherlands, known for its picturesque windmills and its picture-window red-light district, was the first country to legalize gay marriage in 2001. Two years later, Belgium followed.

Spain, Sweden, Switzerland and Luxembourg, which all offer some form of civil partnership rights, are expected to pass laws allowing same-sex marriages this year or early in 2005. And Britain is discussing civil partnership rights for gay and lesbian couples, including the right to inherit property, take over an apartment lease and make decisions for a loved one in the hospital.

Europe's experience with gay marriage and civil partnerships is influencing this week's debate in Washington about amending the U.S. Constitution to forbid gay marriage. On Capitol Hill, members of the Senate are expected to vote as early as today on the Federal Marriage Amendment. ...

Marriage trend data, however, are controversial. When the Dutch approved same-sex marriage, hundreds of gay and lesbian couples rushed down the aisle, as have many in Massachusetts since May, when the state became the first to legalize same-sex marriage. But since the law went into effect, the number of gay couples tying the knot in the Netherlands has dropped 40% to 1,500 last year. The number of gay marriages this year is lower still. Roughly one in 10 of the Netherlands' estimated 55,000 same-sex couples are married.

Advocates say the small numbers show the heated debate over gay marriage in the USA is overblown. "In Holland and Belgium, there's no news about gay marriage at all; nobody talks about it," says Lluis Prats, a lawyer working in the European Union headquarters here. Prats recently married his partner in Brussels. "Once Americans realize there is not a big monster coming to strike in our society, then people may change their views about how gay marriage is dealt with in the States."

Opponents of gay marriage say the drop in gay marriages in the Netherlands is only half the picture: The number of heterosexual couples getting married also is declining, while the number of illegitimate children has almost tripled since 1989. Last year, almost one in three children in the Netherlands were born out of wedlock. In the USA, a third of births were out of wedlock in 2002, and the divorce rate was among the highest in the Western world.

Gay marriage is only one of the factors changing the structure of families in the Netherlands, anthropologist Stanley Kurtz says. To this, he adds the decline of religion, the rise in the number of couples living together and their almost-equal legal status as married couples under Dutch law. "They are all part of a way of thinking about marriage, where the idea of marriage becomes detached from thinking about parenthood," says Kurtz, a research fellow at the Hoover Institution who testified on the issue before the House Judiciary Committee in April. ...

Britain is among a few countries in Western Europe that have yet to grant such rights to same-sex couples. Others include Ireland and Italy. The British House of Lords introduced a civil partnership bill, which the House of Commons is expected to take up this fall.

Elizabeth Allum and Tilly Clarke of Reading, England, want full marriage rights. Two years ago, they had a Humanist wedding ceremony (Humanism is a faith based on respect for human life), but that doesn't give them any legal rights. That could be an issue one day because they want to have a family.

While marriage seems to be losing its significance for many heterosexual couples in Europe, couples such as Allum and Clarke say marriage is a special status, a symbol of equality, and worth fighting for. "We want the respect that marriage brings," Allum says, "because all of the reasons people get married are the reasons we got married. We want some kind of recognition that it's one of the most important things we'll ever do in our lives."

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posted by Eve at 4:22 PM | link 0 comments

SAYING "I DO" TO MARRIAGE: Edwin Meese III and Matthew Spaulding

...It's not clear what several key senators will do. They say marriage should be between one man and one woman. But they're reluctant to amend the Constitution. They probably think the 1996 Defense of Marriage Act, or DOMA, is enough to protect marriage.

That argument made sense eight years ago. ...

But two U.S. Supreme Court cases changed all that. In Romer vs. Evans, the court declared a state constitutional amendment unconstitutional because it was "born of animosity" toward homosexuals and violated equal protection under the U.S. Constitution. And in Lawrence vs. Texas, the court declared that all individuals have a due process right to "seek autonomy" in their private relationships, including "personal decisions relating to marriage."

Last November, the Massachusetts Supreme Court ran with these ideas when it ruled traditional marriage "is rooted in persistent prejudices" and that homosexual couples are legally entitled to marriage under the state constitution. Massachusetts now has issued more than 2,500 "marriage" licenses to same-sex couples from 27 states and the District of Columbia, creating legal standing to challenge DOMA nationwide. ...

"You'd have to be tone deaf," says Harvard law professor Lawrence Tribe, "not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect."

Just read the latest issue of the prestigious Harvard Law Review, the journal of record in elite legal circles: "Now the time is ripe for a constitutional challenge to DOMA." Why? Allegedly DOMA was motivated by animus, violates equal protection principles and is incompatible with substantive due process.

The first challenge to the constitutionality of DOMA has been filed in a Florida federal court, arguing DOMA not only abuses full faith and credit but, more importantly, violates the equal protection guarantee of the U.S. Constitution. ...

This doesn't mean marriage must be completely nationalized or regulated by the federal government. The Framers rightly left marriage policy with the states. But we can protect the states' liberty to regulate marriage, in accord with the principles of federalism, only by acting to prevent the institution itself from being redefined out of existence or abolished altogether.

This is a time for choosing.

One option is to allow a few radical judges to redefine marriage by legal fiat, according to their notions of social progress. By circumventing the legislative process and excluding the people from so fundamental a decision, these judges threaten our democracy and the rule of law.

The other option--this week in the hands of the U.S. Senate--is to proceed with the democratic process of amending the Constitution to reflect the settled will of the people.

Nothing less than the future of our society, and the course of constitutional government in the United States, are at stake.

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posted by Eve at 8:01 PM | link 0 comments

MASS. LAW THAT CURRENTLY RESTRICTS SSM TO IN-STATE COUPLES IN COURT TODAY: From the Associated Press

A 1913 Massachusetts law being used to prevent out-of-state gays from getting married here is discriminatory and should be struck down, a lawyer for eight same-sex couples told a judge Tuesday.

Attorney Michele Granda asked Superior Court Judge Carol Ball to block the state from enforcing the 91-year-old law, which prohibits marriages that would be illegal in a couple's home state. She said the statute violates both the U.S. Constitution and Massachusetts law.

"We're asking the court to tear down the fence of discrimination that's been erected around (the state's) borders," she said.

But an attorney for the state countered that the law protects other states' right to define marriage as they see fit, a principle repeatedly cited by the Massachusetts high court in its landmark November ruling legalizing gay marriage.

Assistant Attorney General Peter Sacks said that ruling defines marriage as "two willing spouses and an approving state." Since no other state allows gay marriages, that standard is not met anywhere but Massachusetts, he said.

Judge Ball did not indicate when she would rule on the request to block enforcement of the 1913 law. She gave plaintiffs until July 23 to file additional briefs, and the state until Aug. 2 to respond.

However, Ball did say in court, "From what I've read so far, it appears the state is applying the law in a procedurally non-discriminatory manner." ...

Legal experts have said the law was passed to prevent interracial couples from getting married. But the attorney general has said there is no evidence that lawmakers were motivated by race in passing the law.

At any rate, the law was ignored for decades before the high court cleared the way for the nation's first state-sanctioned gay weddings to begin this spring, Granda said.

"The commonwealth is clearly over-enforcing the statute," she said.

Sacks did not dispute that assertion. "Certainly enforcement has been increased because there's much more reason than there was before to expect violations," he said. ...

The eight couples who filed the lawsuit are all from states bordering Massachusetts -- two from Connecticut, two from Rhode Island, and one each from New Hampshire, Vermont, Maine and New York.

Five of the couples were married in Massachusetts by clerks who ignored the 1913 law, while the three others were turned away when they tried to get marriage licenses.

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posted by Eve at 7:57 PM | link 0 comments

MARRIAGE MATTERS: Tom Sylvester replies to Maggie Gallagher

A GREAT MARRIAGE FAQ by Maggie Gallagher at NRO. Though I disagree with her on same-sex marriage, she nails it when writing, "If medical proxies aren't working, let's fix that problem. If people need health care, let's get them health care." (Indeed, let's get everyone health care!) The argument about "benefits" is like the tip of an iceberg. It's the most visible aspect of the public debate about gay marriage, and some people's understanding of marriage seems restricted to those 1,049 "benefits" (PDF). But the "benefits" debate ignores the vast, deep social meaning of the institution.

She also writes: "People who really cared about marriage and the suffering of fatherless children would not rewrite our marriage law to say that kids don't need fathers, and that alternative family forms are just as good as a husband and wife raising children together."

Yes, the ideal is for children to grow up with their own mother and father. But remarriage with stepchildren is legal. Current marriage laws don't state that kids need fathers. It's legal for single women to buy sperm and have radically fatherless children. Many same-sex couples raise kids and will continue to do so. Yet it is illegal for them to make the Big Commitment of marriage. Gender is important, it's not some little social construction we can ignore or do away with. But neither should it be of overriding importance.

Gallagher is also too dismissive of the lives of gays and lesbians when she describes them as "a small fraction of adults who have personal needs and problems." We all have personal needs and problems. I'm not aware of her ever sympathetically acknowledging the discrimination and ostracism gays and lesbians encounter. It's always just a dismissive reference to "personal needs and problems" of adults.

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posted by Eve at 7:22 PM | link 0 comments

"THE LIBERAL CASE AGAINST GAY MARRIAGE": Nick Kiddle replies to Susan Shell

[...in a long series that starts here. I'm just quoting from the first segment. --Eve]

...The liberal case against gay marriage opens with descriptions of the two main factions in the debate over same-sex marriage. The first, according to Ms Shell, is largely a traditional Christian one, promoting an ideal of the monogamous heterosexual familial relationship; the second a "liberationist" one, seeking freedom from all rules in order to pursue happiness.

I find this division unhelpful because of what it excludes. Although it's true that both factions have a voice in the debate, there's a third faction, ignored by this model, that is at least as vocal as either of the first two: those who believe that marriage is and should be the cornerstone of family and society and go on to reason that it shouldn't be denied to committed same-sex couples, especially those raising children together. We--I count myself among this faction--consider the marriage of a same-sex couple on the same terms as the marriage of an opposite-sex couple: a public declaration of the bond between them to strengthen that relationship in the eyes of society and the law.

The debate can better be considered in terms of a conflict between those who believe that biological sex determines or should determine a person's role in life and those who reject that contention. Opposition to same-sex marriage frequently includes an overt or implied appeal to the importance of traditional gender roles: that children need mothers and fathers, for example, or that sterile heterosexual couples are promoting the ideal of sexual complementarity.

This classification, much more than Ms Shell's model, includes most of the main voices in the debate. Someone who believes gender roles should be fixed is unlikely to see SSM as anything more than a politically correct word trick; someone who subscribes to the traditional Christian ideal of the family may well concede that a gay couple should have their family recognised.

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posted by Eve at 7:17 PM | link 0 comments

ADULT CHILDREN RAISED BY SAME-SEX COUPLES: Trey replies to Maggie Gallagher

As Lucia [at] Alas, a Blog has alerted me in an earlier comment, Maggie Gallagher responded to Andrew Sullivan as to 'why' she posted the story of one woman who had a not-so-good experience being raised by lesbian mothers. Her response (in part):

"But hers is a viewpoint I have NEVER seen represented in print. Not once. She wanted a voice. I gave it to her.

I am sure not every child raised by same-sex parents feels this way. I am sure she is not the only one either."

As Lucia questioned, out of the decade or more about gay adoption, parenting, and marriage, Ms. Gallagher has NEVER seen a story like this represented in print? Out of the (I assume) thousands of words she has written and read on the topic, she has NEVER seen such a story?

So, a couple questions I would pose to Ms. Gallagher (I don't expect an answer. I am just a small voice in a huge conversation.. just rhetorically):

Isn't that telling? There are entire organizations set up and books written by children of gay parents lauding and praising and supporting their parents. And she has NEVER heard one story in print from a child who had a miserable life with gay parents?

The thing is, I too believe there are many other children with similar stories to the one she 'gave a voice'. I have heard a couple. But for the couple, I've heard hundreds more with a different, very different, view. Why does she not find it telling that given the decade of discussion she only found one story, yet THOUSANDS of other children have told opposite stories?

That given that the research so far is inconclusive if not positive,

what is her motive for 'giving a voice' to this one woman? What purpose was she supposed to be serving?

If it is to argue that gay parenting is harmful, she has presented an extremely poor, in fact downright laughable, argument. The research suggests (does not prove) that children do as well (or slightly better) with 2 gay parents as they do with 2 straight parents (at worst, it is inconclusive). Thousands of children have set up organizations and written books and essays praising their childhoods being raised by gay parents, yet she... on the forefront of the argument... has found no more than ONE opposite story.

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posted by Eve at 7:12 PM | link 0 comments

SCANDINAVIA AND NETHERLANDS: M.V. Lee Badgett replies to Stanley Kurtz

[I'm cutting the footnotes but you can find them at the link at the bottom of this post, where it says "more." There's a summary here. --Eve]

...Marriage and child-bearing have become less directly connected over time in many European countries, including Scandinavia. But as we shall see, this separation hardly qualifies as the death of marriage, and it cannot be blamed on the passage of same-sex partner laws.

In fact, Denmark's longterm decline in marriage rates turned around in the early 1980's, and the upward trend has continued since the 1989 passage of the registered partner law. Now the Danish heterosexual marriage rates are now the highest they have been since the early 1970's. The most recent marriage rates in Sweden, Norway, and Iceland are also higher today than they were in the years before the partnership laws were passed. The slight dip in marriage rates in the Netherlands since 2001 is the result of a recession-induced cutback on weddings, according to Dutch demographers, and the actual number of marriages has gone up and down in the last few years, even before the legalization of same-sex marriage.

No research suggests that recognizing same-sex couples' relationships caused the increase in marriage rates. But heterosexual couples in those countries were clearly not deterred from marrying by the legalization of same-sex couples' rights.

Divorce rates also show no evidence of harm to heterosexual marriage from partnership laws. Scandinavian divorce rates have not changed much in Scandinavia in the last two decades. Danish demographers have even found that marriages in the early 1990's appear to be more stable than those in the 1980's.

Cohabitation rates are indeed on the rise, though, as is the likelihood that an unmarried cohabiting couple will have children. In Denmark, the number of cohabiting couples with children rose by 25% in the 1990s. Roughly half of all births in Norway, Sweden, and Denmark, and almost 2/3 in Iceland, are to parents who are not married. From these figures, Kurtz concludes that "married parenthood has become a minority phenomenon."

In fact, however, the majority of families with children in Scandinavia and the Netherlands are still headed by married parents. In 2000, for instance, 78% of Danish couples with children were married couples. If we also include single parent families in the calculation, almost two-thirds of families with children were headed by a married couple. In Norway, 77% of couples with children are married, and 61% of all families with children are headed by married parents. And 75% of Dutch families with children include married couples. By comparison, 72% of families with children are headed by married couples in the United States.

How can this fact coexist with high nonmarital birth rates and cohabitation rates? The main reason is that in Scandinavia and the Netherlands most cohabiting couples marry after they start having children. In Sweden, for instance, 70% of cohabiters marry after the birth of the first child, most of them within five years. In the Netherlands, while 30% of children are born outside of marriage, only 21% of children under one live with unmarried parents, and by age five, only 11% live with unmarried parents. As a result, high rates of married couple parenting and rising marriage rates in Scandinavia are not incompatible with high nonmarital birth rates.

Kurtz claims that the rise in nonmarital births will hurt children since unmarried couples are more likely to break-up than married couples. And it is true that unmarried cohabiters' unions are more likely to dissolve in Scandinavia than are marriages, even when children are present. But when cohabiting parents marry in Scandinavian countries, as most eventually do, they are not more likely to divorce than are couples who were married when they had their children.

As a result, children in Scandinavia countries still spend most of their lives with their parents living together. In fact, they spend more time than kids in the U.S. do! Gunnar Andersson has calculated how much time the average child spent living with both parents in the same household in the 1980's, the most recent period that allows comparisons across countries. Of the countries he examines, the lowest average is in the United States, where the time spent with both parents is 67%. The highest is in Italy, where it is 97%. In Sweden the average is 81%, in Norway it is 89%, and in Finland it is 88%. In other words, combining the time that parents are cohabiting and married demonstrates that children are spending the vast majority of their young lives with their parents in the Scandinavian countries.

Did gay marriage widen the split between parenthood and marriage? ...

In a recent study, I compared the cohabitation rates (and other variables) in the nine countries that recognize same-sex partners with other European and North American countries that do not. Cohabitation rates were higher in the partner recognition countries before the passage of same-sex partner laws. Since higher cohabitation rates came first, it would be inappropriate to blame partnership laws for more cohabitation. ...

...[T]he nonmarital birth rate began rising in the 1970's, long before any legal recognition of same-sex couples, and it has actually slowed down in Scandinavia in recent years. From 1970 to 1980,the Danish nonmarital birth rate tripled, rising from 11% to 33%. It rose again in the following decade, but by a much smaller amount, to 46% in 1990, before ending its climb. Denmark's nonmarital birth rate did not increase at all when the Danish partnership law was passed in 1989. In fact, it actually decreased a bit after that date!

Norway's big surge in non-marital births also occurred well before the passage of its registered partnership law in 1993. In the 1980's, the percentage of births to unmarried parents rose from 16% to 39%. In first half of the 1990's, the nonmarital birth rate rose more slowly, leveling off at 50% in the mid-1990s.

Kurtz argues that the main impact of partner registration laws in Norway was to discourage couples from marrying after the birth of their first child. But the data on second, third, and later babies born to unmarried parents tell the same story as the overall trend. In 1985, 10% of second and later babies had unmarried parents, a number that tripled to 31% by 1993. From 1994 to 2003, though, the number only rose to 41% where it appears to be leveling off. If the partnership law had "further" encouraged nonmarital births of first or later children, these rates should have increased faster after 1993, but in fact the increase slowed down (for second and later births) or stopped (for first births).

The Netherlands show a slightly different pattern, but here, too, there is no correlation between recognition of same-sex partnerships and rising rates of non-marital births. Despite high rates of cohabitation, the Dutch have traditionally been much less likely than Scandinavians to have babies before marriage, with fewer than one in ten births to unmarried parents until 1988. Kurtz argues that legal recognition for same-sex couples kicked Holland into the Scandinavian league with respect to nonmarital parenting. It is true that the Dutch nonmarital birth rate has been rising steadily since the 1980's, and sometime in the early 1990's the nonmarital birth rate started increasing at a somewhat faster rate. But that acceleration began well before the Netherlands implemented registered partnerships in 1998 and gave same-sex couples the right to marry in 2001.

Another helpful perspective is to compare the trends of countries that have a partner registration law with those that do not. If recognizing gay couples contributed to the increase in nonmarital births, then we should see a bigger change in countries with those laws than in countries without them. Data from Eurostat shows that in the 1990's, the eight countries that recognized registered partners at some point in that decade saw an increase in the average nonmarital birth rate from 36% in 1991 to 44% in 2000, for an eight percentage point increase. In the EU countries (plus Switzerland) that didn't recognize partners, the average rate rose from 15% to 23% -- also an eight percentage point increase. The change in rates was exactly the same, demonstrating that partner registration laws did not cause the nonmarital birth rate trends.

...Nonmarital birth rates have soared in in Ireland, Luxembourg, Hungary, Lithuania, and several other eastern European countries--all countries that do not allow same-sex couples to marry or register.

Only one piece of evidence supports Kurtz's argument that partnership created a new wedge between parenthood and marriage, and that piece of evidence directly contradicts Kurtz's ideas about the cause of such a separation. Contrary to what many observers believe, Scandinavian parliaments did not give same-sex couples the exact same rights as heterosexual couples. Quite deliberately, the various Scandinavian parliaments chose to provide legal ties for same-sex couples through a special new legal relationship, not by the simpler path of extending the right to marry to same-sex couples. And the parliaments denied same-sex couples the right to adopt children (including their nonbiological children raised from birth) or to gain access to reproductive technologies. Thus Scandinavian governments did create a wedge between marriage and reproduction, but they did so by design and they did so only for same-sex couples. Despite some loosening of those prohibitions over time, registered partners who want to have children still face legal hurdles that heterosexual married couples do not.

In the end, the Scandinavian and Dutch experience suggests that there is little reason to worry that heterosexual people will flee marriage if gay and lesbian couples get the same rights. This conclusion is even stronger when looking at the United States, where couples have many more tangible incentives to marry. Scholars of social welfare programs have noted that the U.S. relies heavily on the labor market and families to provide income and support for individuals. In the United States, unlike Scandinavia, marriage is often the only route to survivor coverage in pensions and social security, and many people have access to health care only through their spouse's employment. Scandinavian states, on the other hand, are much more financially supportive of families and individuals, regardless of their family or marital status.

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posted by Eve at 7:01 PM | link 0 comments

SCANDINAVIA AND SAM BROWNBACK: Lucia Liljegren replies to Sen. Brownback

...Marriage does diminish public expenditures on welfare, government revenues and produces a more engaged responsible citizenry. These cost savings are precisely those reflected in the nearly $1 billion a year savings the Congressional Budget Office predicts will occur if we enact same-sex marriage.

More over, Senator Brownback adds to the list of benefits of marriage, and he suggests these benefits are reasons the government encourages marriage:

"Traditional marriage is a boon to society in a variety of ways, and government has a vital interest in encouraging and providing the conditions to maintain as many traditional marriages as possible. Marriage has economic benefits not only for the spouses but for the economy at large. Even in advanced industrial societies such as ours, economists tell us that the uncounted but real value of home activities such as child care, senior care, home carpentry, and food preparation is still almost as large as the 'official' economy. Not least of the reasons heterosexual marriage is a positive social good is the fact that, in a married state, adults of both sexes are vastly healthier, happier, safer, and wealthier, and live longer lives."

These benefits are real, and represent reasons why we should enact same-sex marriage. Clearly those involved in same sex marriages would also engage in child care, senior care, home carpentry, and food preparation. Heck, I suspect some might even engage in interior decoration and vegetable gardening leading to even greater benefits! If engaging in these activities benefits society when heterosexual couples marry, society would benefit even more if we extend marriage to same sex couples.

And wouldn't permitting same-sex couples to marry and becoming vastly healthier, happier safer, and wealthier, and live longer lives be a social good as well? Or is that a bad thing? ...

Now to address the individual questions: Who thinks marriage is about procreation, Americans or Europeans? Senator Brownback thinks we Americans do. However, if we read a recent article published by The National Marriage Project we learn it is Europeans, not Americans, who think marriage is about procreation! Their report reflects results from a University of Chicago Study survey of 30 nations conducted in 1999. The result? Of people 30 nations, the US was the second least likely to believe marriage is "about having children". Only 31.5% of Americans believed marriage is about procreation. The only country where people are less likely to think main reason to marry is to have children is New Zealand, which, last time I checked, was not in Europe. Respondents in every one of the 13 European nations surveyed were more likely to believe marriage is about procreation than are we Americans.

Or course, Senator Brownback's mistaken impression would be harmless except for the fact that he also tells us that believing marriage is about procreation reduces the illegitimacy rate. He provides no basis for this oft repeated theory, which is contradicted by the available data.

If we examine the list of countries surveyed in the University of Chicago study, we find Bulgarian respondents were most likely to believe marriage is about procreation. The fact that 85.7% of Bulgarian respondents believed marriage is primarily about procreation did not prevent explosive growth in the Bulgarian non-marital birth ratio, which rocketed from 15.6% to 42.8% between 1991 and 2002. This 27% rise is the by far largest increase in the out of wedlock birth ratio in the EU during that period.

Who else was likely to think marriage is about procreation? We find 63.8% of survey respondents in Slovenia believe it is, as do 73.2% and 84% of respondents in The Czech Republic and Hungary respectively. Click here to open a new window and see how the non-Marital birth ratios in Bulgaria, Slovenia, The Czech Republic and Hungary increased during the 1990s. (When examining the graph, bear in mind that The University of Chicago survey did not include Latvia, Lithuania or Estonia. The results suggests that believing that marriage is about procreation is entirely consistent with exceptionally high growth in the out of wedlock birth ratio.) ...

The data suggest that the American idea that marriage is not about procreation may protect somewhat against explosions in out-of-wedlock births. Why shouldn't thinking marriage is about love, devotion, commitment and companionship make people enthusiastic about marriage? Maybe, just as free market economies work efficiently as a result of individual selfishness, young couples are more eager to marry when they believe there is there is something in it for them. For all we know, convincing American's that marriage is primarily about procreation could lead to the explosion in out-of-wedlock births we saw in Bulgaria. ...

Having read "Going Dutch", my understanding is Dr. Kurtz diagnoses marital decline primarily through increases in the non-marital birth ratio. Others, like Joshua Livestro, mention the marriage rate. By those two measures, marriage is declining in European countries that have not enacted same-sex marriage or civil unions; it's doing perfectly fine in countries that have enacted same-sex marriage or civil unions.

Marriage rates are is declining all over Europe. As I discussed in my recent article "Yes, Stanley..", the major portion of the the decline in the marriage rate can be attributed to the aging population, which has reduced the fraction of young adults in Europe. That is to say, it the decline in the number of marriages per 1000 people is not primarily due to lessened enthusiasm for marriage, but due to there being fewer young people. This shift in population is due in large part to the "birth dearth" which Senator Brownback laments in his point 4 (which I will discuss later in this article). For now, I will simply point out the very real birth dearth was not caused by enacting same-sex marriage or civil unions!

If we examine the graph in my article "Dutch Decline?", (click to see graph), we see that the marriage rate has declined in Europe. However, despite the reduction in young adults, we see marriage rates are increasing in Scandinavian countries, bucking the downward trend. Far from dying, marriage is re-emerging in precisely the countries that are permitting same-sex marriage and civil unions.

If we turn to the out of wedlock birth ratio, which Dr. Kurtz uses as a proxy for the health of marriage, we find it has increased at a much lower rate in countries with SSM or civil unions than in other European countries. (Click for graph from my article "Tired"). The only European country whose illegitimacy rate actually declined during the 1990's is Denmark, which legalized same-sex unions in 1989. If we actually calculate a correlation coefficient, we see that, during the 90's, increases in the non-Marital birth ratio in Europe are correlated with failure to enact SSM or same-sex civil unions.

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posted by Eve at 6:42 PM | link 0 comments

UNCIVIL: Andrew Sullivan replies to George W. Bush

...Then there is his second premise: that allowing gay people to enter into civil marriage would "fundamentally redefine" marriage. In fact, of course, gay couples want to enter marriage as it is currently defined. And the fundamental redefinition of civil marriage to which the president refers occurred decades ago--when contraception became widely available, severing the link between procreation and civil marriage; and with the advent of women's equality, ending the notion that civil marriage was a way in which men affirmed domestic control of women. If civil marriage is therefore not procreative and not based on distinct gender roles, on what grounds is the admission of gay people a "redefinition"? In fact, under the current definition of civil marriage, the exclusion of gay couples is a blinding anomaly.

"This difficult debate was forced upon our country by a few activist judges and local officials, who have taken it on themselves to change the meaning of marriage."

There is a missing element here. And that element is the emergence of the gay community in the last two decades--the growing presence of gay people in American public life, their travails during a scarring epidemic, their experiences mothering and fathering children, their growing self-confidence and integration into society. You cannot understand the arrival of the marriage debate without this context, but since the president cannot even mention gay people by name, let alone understand or think about their social reality, he cannot see what is really going on. It remains a fact of the marriage movement that it was not pioneered by activists or judges. Leaders of the gay establishment resisted the grass roots push for equal marriage rights for years until they could avoid it no longer. This movement came from below; and the judges and elected officials were simply recognizing that society has changed. Bush, by contrast, is still acting as if we lived in the 1950s.

"In Massachusetts, four judges on the state's highest court have ordered the issuance of marriage licenses to applicants of the same gender. In San Francisco, city officials issued thousands of marriage licenses to people of the same gender, contrary to the California family code. Lawsuits in several states, including New Jersey, Florida, Nebraska, and Oregon, are also attempting to overturn the traditional definition of marriage by court order."

But in all of these cases, the states involved are grappling with the consequences, with no need for federal intervention. In Massachusetts, the people will get a chance to vote via a state constitutional amendment on whether gay relationships should be codified as civil marriages or civil unions. In California, the state court system is also adjudicating the legality of the San Francisco marriage licenses. Thirty-eight states have already passed bans on marriage rights for gays. The system is working--just not fast enough to rally the fundamentalist base for Bush's reelection campaign....

This is a huge leap of logic. No state court could demolish the Defense of Marriage Act (DOMA). Only the U.S. Supreme Court could do such a thing. And no serious legal scholar thinks such a case will arrive for the foreseeable future. Moreover, most legal scholars believe that the legal precedents all allow for non-recognition of out-of-state marriages. One other thing: The "activist" court in Massachusetts did not strike down traditional marriage. It simply argued that excluding gay couples from civil marriage violated the Commonwealth's guarantee of equal protection. Given the criteria for civil marriage--criteria that gay couples meet in every respect, save for being gay--it is hard to see how the court could have done otherwise. ...

No one is proposing that only gay people should be allowed to marry or that straight couples should not have the right. The law will still teach that "marriage is the sacred commitment of a man and a woman, the basis of an orderly society, and the defining promise of a life." But it would also teach that other human beings exist and that they too are worth including in our civil order, our society, and our families. How does that hurt anyone?

"The Massachusetts court, for example, has called marriage 'an evolving paradigm.' That sends a message to the next generation that marriage has no enduring meaning, and that ages of moral teaching and human experience have nothing to teach us about this institution."

But it is simply a fact that marriage is "an evolving paradigm." For the first millennium after Christ, Christianity didn't even recognize marriage as a sacrament. It was regarded as a purely secular matter of property ownership. Marriage also once meant the ownership of women by men. It was once permanent, and no divorce was possible. It was once restricted to couples of the same race. The notion that it has never changed is simply untrue. The only relevant question is whether the current change is a good one. The president doesn't answer that question. He simply asserts it, based on nothing but bad history and ignorance....

"The process has now begun in the Congress. I urge members of the House and Senate to pass, and send to the states for ratification, an amendment that defines marriage in the United States as a union of a man and woman as husband and wife."

But this, of course, is not the amendment that Bush favors. He backs an amendment that would not simply keep civil marriage as an exclusively heterosexual privilege. He backs one that would make unenforceable all "the legal incidents" of civil marriage for gay couples--that is, civil unions and domestic partnerships. An amendment simply stating that heterosexuals alone can get married has been rejected by Bush and his allies, in favor of a far more sweeping attack on the basic protections of gay people across the country. In this respect, the president is simply lying. And anyone who takes a minute to read the amendment will see this beyond the shadow of a doubt.

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posted by Eve at 3:36 PM | link 0 comments

NEW DOMA CHALLENGE IN FEDERAL BANKRUPTCY COURT: Joshua Baker

There's a challenge to DOMA pending in federal bankruptcy court (Western District of Washington) in which two women seek to file a joint bankruptcy petition as a married couple. The lawsuit, in which the petitioner is apparently representing herself, argues that DOMA (the first section -- definition of marriage/spouse in federal law) shouldn't be construed to apply to the word "spouse" in the Bankruptcy Code, and that to apply it that way would violate the 10th Amendment's reservation of unenumerated powers to the states. The pleadings also contend that DOMA violates the Constitution's guarantees of due process (fundamental right to marry) and equal protection (sex and sexual orientation). Finally, the petitioner argues that there is not even a rational justification for DOMA, relying on the Massachusetts Court's decision in Goodridge.

The petitioner's reply in response to a show cause order, filed June 4, 2004, is online here.
posted by Eve at 3:33 PM | link 0 comments

"MY DADDY'S NAME IS DONOR": Dawn Eden

t-shirt

website

fierce response
posted by Eve at 3:31 PM | link 0 comments

MARRIAGE MATTERS: Why? and FAQ: Maggie Gallagher

...Marriage is not created by government. It is older than the Constitution, older than America, older even than the church. It exists in every known human society and it always has something to do with bringing men and women together so that society has the next generation it needs and children have both mothers and fathers, as they need.

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posted by Eve at 3:27 PM | link 0 comments

SSM ISSUE BELONGS TO COURTS: From Newsday

The gay marriage issue will be reduced to political theater in the Senate this week. A constitutional amendment that says marriage shall consist only of the union of a man and a woman will be hotly debated.

Senators will posture and pontificate, though it's all but certain the amendment won't gather enough support to pass. Nor should it: The Constitution shouldn't be amended to enshrine discrimination.

What will happen this week is that President George W. Bush and other Republicans will curry favor with their party's right wing. They will get the presumptive Democratic presidential ticket, Sens. John Kerry (D-Mass.) and John Edwards (D-N.C.), on the record against the amendment. And they will use that vote to seek partisan political advantage, even though both Democrats also oppose gay marriage.

This editorial board believes that same-sex couples should be allowed to form civil unions with all the rights of traditional marriage. Still, it's hard to see how a smattering of same-sex marriages would jeopardize traditional unions.

Amendment supporters say activist judges on Massachusetts' top court forced their hand when they ruled that denying same-sex couples the right to marry violated that state's constitution. Because the U.S. Constitution requires that each state give full faith and credit to the laws of all others, they fret that Massachusetts law will become the national norm and that judges, not the people, will define marriage.

But basic rights, such as the right to equal protection of the law, should not be subject to the vagaries of majority rule. That won't change, no matter what the Senate does.

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posted by Eve at 3:24 PM | link 0 comments

THE WRONG DEFENSE OF MARRIAGE: Chicago Tribune editorial

...The Senate should reject the amendment.

Politics aside, there is no particular urgency about the issue. Due to a decision by the Massachusetts Supreme Court, the Bay State now allows marriages to be contracted by gay and lesbian couples. But other states remain free to decide for themselves whether to sanction same-sex unions--and whether to recognize those from Massachusetts.

Most legal scholars think the Constitution safeguards state discretion here. But if there were any doubt, it was put to rest by the 1996 Defense of Marriage Act, which bars federal recognition of same-sex marriages and guarantees states the right to make their own choices.

...There is no compelling reason to think the Supreme Court will invalidate the Defense of Marriage Act or the power of state governments to make their own choices about same-sex unions. State courts in one place or another may insist on recognizing gay marriage, but their writ stops at the state line.

Not only that, but activist state courts may be overruled by legislators and voters. That's what happened in Hawaii, where the state Supreme Court ruled the ban on same-sex marriage was a violation of the state constitution. The legislature then passed an amendment banning same-sex marriage, and voters approved it. Several states will have measures to block gay marriage on their November ballots.

"When judges insist on imposing their arbitrary will on the people," said the president, "the only alternative left to the people is an amendment to the Constitution." But that sentence should have begun with the word "if." It hasn't happened yet, and most likely won't happen.

The regulation of marriage has long been a province of the states, and that's where it should stay. Amending the Constitution would be a terrible mistake.

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posted by Eve at 3:21 PM | link 0 comments

GOP MAY REVISE MARRIAGE AMENDMENT: From the Washington Post

Senate Republicans yesterday weighed a proposal to scale back their constitutional amendment to ban same-sex marriages in hopes of picking up some votes, although they conceded that passage is still beyond their reach.

Democrats objected to the move and derided it as a desperation effort to avoid the embarrassment of a huge defeat when the Senate votes on the issue tomorrow.

The maneuvering came as the Senate entered its second day of debate on the amendment. Senate offices were deluged with phone calls and e-mails prompted by heavy grass-roots mobilizations over the weekend, topped off by two appeals for passage by President Bush.

Faced with the likelihood of falling far short of the two-thirds majority needed to amend the Constitution, some Senate Republicans were pushing for a chance to vote on an alternative that stated simply that marriage exists only between a man and a woman.

As currently drafted, the amendment consists of two sentences: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

Some Republicans argued that proposed language on other legal arrangements, such as civil unions, was confusing and could be interpreted as either sanctioning or banning such unions.

According to a GOP leadership aide, the Senate would vote first on the two-sentence amendment and then on an alternative limited to the first sentence. But Democrats, who earlier agreed to drop procedural objections and allow an up-or-down vote on the amendment itself, objected to the Republicans' new strategy and threatened to renew their procedural objections. ...

The Family Research Council and other conservative Christian groups said they had collected 1.1 million new signatures on a petition for preserving "traditional marriage," on top of 1.4 million signatures they delivered to Congress on Friday.

On the other side, the Internet-based liberal group MoveOn.org began a television ad campaign suggesting Bush is using the marriage issue to try to turn voters' attention away from the war in Iraq and the economy. A spokesman for the group said it had spent $147,000 to run the spots on CNN nationally and on cable channels in Washington and New York.

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posted by Eve at 3:17 PM | link 0 comments

KERRY'S CONTRADICTIONS: Hadley Arkes

...Whether he likes it or not, John Kerry owns this issue. He will soon be the head of the Democratic party, and it is entirely apt that he be pressed to explain the position he has embroidered in his typical style--with nuances, inventive and implausible, covering brute facts. ...

On one hand Kerry aligns himself with a majority of the public, in Massachusetts and the public, by affirming that marriage should involve only a man and a woman. But on the other hand he finds a dark political purpose in President Bush's support for a constitutional amendment on marriage. Kerry has insisted that the question of marriage be reserved for the states. The people of Massachusetts may amend their constitution to preserve traditional marriage, but in good "federalist" form the country should not act to foreclose the freedom of people in any given state to be more accepting of gay marriage. ...

For Kerry, the straddle leads to even deeper contradictions. After all, the main device right now in preventing couples from carrying a same-sex marriage into other states is the Defense of Marriage Act, passed in 1996. That act came about when the courts in Hawaii were about to impose same-sex marriage there, giving rise to the prospect that couples would invoke the full-faith-and-credit clause of the Constitution to have their marriages recognized elsewhere as well. Under that clause, there is the presumption that a driver's license granted in Maine will be honored in Illinois, or that a marriage contracted in Kentucky will be honored in Connecticut. A state could refuse, say, to honor an incestuous marriage if the public policy of the state showed a clear rejection of such marriage. But when it came to homosexual marriage, the courts were gradually denying the authority of the states to regard homosexual sex as standing on any lesser plane of legitimacy than the "sexuality imprinted in our natures," the sexuality of relations between a man and a woman.

That trend was taken to its next phase last year when the Supreme Court struck down a Texas law on sodomy in Lawrence v. Texas. On the strength of that case, there is likely to be a challenge now to the Defense of Marriage Act. But even before it came to a challenge in the courts, John Kerry had voted against that act, denouncing it as a species of "gay bashing." It becomes reasonable then to ask: Has he changed his mind on the Defense of Marriage Act? If so, isn't this the time for the Republicans to compel him to acknowledge as much? If not, how will he hold to the position he has professed in favor of letting each state decide the matter of gay marriage for itself?

We must suspect that Kerry declared himself strongly in favor of this "federalist" position as a means of avoiding any concurrence with President Bush in favoring a constitutional amendment on marriage. But it should be clear that his position would be rendered hollow if the judges in the separate states could simply install same-sex marriage by judicial fiat. And that could be done quite easily if those judges merely employed the same reasoning used by the Supreme Judicial Court of Massachusetts: The court had invoked Lawrence v. Texas in arguing that the law could draw no adverse inference based on "sexual orientation." Any federal court could invoke that case and reason in the same way. The court had also invoked the theme of equality before the law, in arguing that it was a matter of invidious discrimination to refuse equal access to marriage on the part of gay and lesbian couples. The notion of equality before the law could be found as implicit in the constitution of any state, or in any constitutional order.

Kerry has proclaimed himself in opposition to same-sex marriage, but no reporter has thought to ask him whether he rejected the reasoning of the court in Massachusetts in any of its holdings on this matter. For if he does not reject the reasoning of the court, it is hard to see what objection he would have to courts in any state using the same reasoning to produce the same result. ...

Again, we ought to be clear: When people go into federal court and try to bring their marriage from Massachusetts into their own home state, they are nationalizing the issue; they are bringing in the federal Constitution. Senator Kerry reflects the curious contradiction of many public figures: He opposes the appeal to the federal Constitution for the sake of preserving marriage as we know it, but he would allow activists to appeal to the Constitution for the sake of extending gay and lesbian marriage to the states.

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posted by Eve at 2:59 PM | link 0 comments

SAME-SEX COUPLES SUE FOR WEDLOCK: From the Orlando Sentinel

...On Monday, Merritt and Leach returned to the courthouse with a lawsuit and Miami attorney Ellis Rubin. Merritt and Leach, along with another gay couple, sued Orange County Clerk of Courts Lydia Gardner for denying them marriage licenses.

"It's the right thing to do, and it's worth it," Merritt said after filing the lawsuit. "Discrimination in any form is wrong, period. Until the rights for us are the same as perhaps you and your spouse or partner, it won't be good enough."

Rubin, who has filed similar suits for gay couples in Tampa Monday, and in Miami-Dade, Broward and Palm Beach counties, is arguing that the state law banning same-sex marriages violates the state's constitution.

"Marriage is a fundamental right. No one has a right to interfere with the ritual of marriage or who someone chooses to marry," Rubin said. "If it's a fundamental right that Florida wants to take away, then they have to come into court with the burden to show that a union between a man and a woman is the only way you can define marriage. Well, we say, 'No.' " ...

Merritt, 41, and Leach, 40, have been together for nearly 10 years. Merritt is a minister at the Joy Metropolitan Community Church in Orlando. The church has a predominantly gay congregation. Leach is a property manager from Sarasota.

The couple arrived at the courthouse with activists opposed to the constitutional amendment. They argue that gay couples should be entitled to the same legal rights, such as tax deductions and inheritance benefits, that are guaranteed to heterosexual couples through marriage.

The other couple suing -- Alvie E. Beckham and Mack D. Wright, both of Orlando -- did not appear at the courthouse Monday.

Mathew Staver, president and general counsel of the Longwood-based Liberty Counsel, a conservative group opposed to same-sex marriages, argued that their attempts to legalize gay marriages in Florida won't be successful. ...

"The state is not required to license every conceivable human relationship," Staver said. "I don't think the challenge that Mr. Rubin has put forth has a snowball's chance of winning."

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posted by Eve at 2:46 PM | link 0 comments

UNITARIANS AND POLYAMORY AND SUCH: From the Religion News Service

Some 4,700 people attended this year's Unitarian Universalist Association's annual convention in Long Beach, Calif. Gay marriage was strongly endorsed by representatives of the 225,000-member, Boston-based religious organization. Delegates also flocked to two workshops on polyamory, the controversial notion it is morally acceptable to have multiple love partners.

"Say yes to the transforming power of love," said Doug Walters of Portland, Ore., one of four polyamorists leading the workshops. "Is it safe to be openly supportive of polyamory in your congregation?"

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posted by Eve at 2:42 PM | link 0 comments

HATCH DRAWS THE LINE: From the Deseret News

Senate Judiciary Committee Chairman Orrin Hatch told the Senate on Monday that same-sex couples should be able to live together like married people, should have insurance and estate benefits like married people, and should be able to visit and care for each other in hospitals like married people.

But Hatch, R-Utah, said he draws the line at actually declaring them married.

"We ought to be able to solve those inadequacies in the law without changing a 5,000-year-plus definition of marriage," Hatch said during continuing debate on whether to pass a constitutional amendment to protect traditional marriage. ...

The proposed amendment would define marriage as between a man and a woman but would permit states to allow "civil unions" or other arrangements to outline legal rights for gay couples. ...

In a Senate speech Monday, Hatch--who is helping guide the debate for Republicans on the proposed federal amendment--decried problems in laws that sometimes prevent gays from visiting or determining care of partners in hospitals or that prevent them from gaining insurance or estate benefits for partners.

Hatch said he is willing to work with liberals to help prevent discrimination against gays and to expand rights and privileges for them. "But I simply draw the line when it comes to traditional marriage," he said.

"Gay people have a right to be free . . . and to live within relationships within their own homes, but that doesn't give them or anyone else the right to define marriage," he said. ...

Hatch also made some interesting comments about polygamy on Monday--at a time when polygamy has become part of the current debate, sometimes because opponents worry an amendment might make it more likely or because others use the federal outlawing of polygamy as an example of previous federal action on marriage.

Hatch noted that an ancestor, Jeremiah Hatch, had three wives and 30 children. He said they practiced polygamy "because they believed it to be a spiritual principle." But he said The Church of Jesus Christ of Latter-day Saints dropped the practice--after Supreme Court decisions upheld federal laws against it.

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posted by Eve at 2:38 PM | link 0 comments

TEACH YOUR CHILDREN: Gabriel Rosenberg replies to Eve

...Next Eve claims that SSM must do one of two things. The first option is that it makes marriage no longer the place where it is good to have kids. Suppose SSM does not do this. What follows? Only the negation of that statement. That is, SSM continues to present marriage as the place where it is good to have kids. But Eve claims this implies that children do not need mothers and fathers. That only follows from the former if we assume that every marriage provides everything children need. But that is certainly not true. When a couple gets married it does not necessarily follow that the child will thus be raised in some perfect sitaution. This is not what we mean--at least not what I mean--when I claim marriage is the place where it is good to have kids. I mean, rather, that it is generally better for the kids to be raised within a marriage than outside of one. Across married couples there will be a wide variety of living situations for children. They are not all equally ideal. So one can hold that a child would generally do better with a mother and a father and at the same time believe that a child, whether he has a mother and father or two unisex parents, would generally do better if those parents were married. As an example, I think a child would generally do better with two parents of the same faith. That does not mean that I think interfaith marriages should be illegal out of some concern about it misleading people about the importance of religion in child rearing. In fact, if an interfaith couple is going to raise a child I still think it should be done within marriage. Whatever one's views with regards to interfaith or same-sex marriages, the second alternative Eve provides does not follow from rejecting the first.

Then Eve seems to claim that allowing same-sex couples to wed but denying them the ability to adopt is taking option #1. That is, such a path makes marriage no longer the place where it is good to have kids. Once again that does not follow. "All child rearing should be done in marriage" does not imply "all marriages should engage in child rearing". Therefore saying some marriages should not engage in child rearing does not imply some child rearing should not be done in marriage. Compare this with the situation in many US states where same-sex couples are allowed to raise children, but denied the ability to wed. We have child rearing where marriage is actively discouraged. That does deny marriage is the place where it is good to have kids. It is the current situation that really separates marriage from child rearing.

Finally Eve claims that SSM will intentionally create legally fatherless and legally motherless children. That is also false. Some children are legally fatherless or legally motherless. Some of these children have two parents of the same sex. SSM does not create these families, it only offers them more protection. Same-sex marriage would hold out marriage as the normative family form. Prohibiting same-sex marriage, on the other hand, would create a wide variety of legal structures for families and say that which structure is right for which family depends on the characteristics of the individuals in the family.

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posted by Eve at 12:52 PM | link 0 comments

IS DOMA ENOUGH?: Joshua Baker and Maggie Gallagher

...For people who define the problem as the seemingly unstoppable spread of same-sex marriage from one state to others, a key question becomes: Is the federal DOMA enough?

The answer is clear: no. The federal DOMA is unlikely to prevent the spread of same-sex marriage from one state to another, for the following reasons:

1. The intellectual groundwork for striking down the federal DOMA has already been laid in the scholarly literature. The legal threat to that law is now imminent, because Massachusetts has for the first time given plaintiffs standing to challenge it. As a note in the June issue of the Harvard Law Review points out, prior to Goodridge, "no potential plaintiff had suffered an injury sufficiently 'concrete and particularized' to establish standing to challenge either provision of DOMA." Now that some same-sex couples have received marriage licenses, "the time is ripe for a constitutional challenge to DOMA."

According to newspaper accounts, same-sex couples in at least 46 states who have received marriage licenses in Massachusetts, California, or Oregon now have standing to challenge DOMA in the federal courts.

2. Even if upheld, DOMA won't keep legal elites from creating same-sex marriage in many states. Attorneys general and local officials in California, New York, and elsewhere have refused to defend state marriage laws, or are insisting that their state recognize same-sex marriages performed elsewhere. ...

3. Radically different marriage laws in different states are difficult to sustain over time. A federal definition of marriage that is different from state definitions produces immediate conflicts in many areas of law that the Supreme Court will be tempted to harmonize by ordering the recognition of same-sex marriage on equal-protection grounds. One way or another, we will soon have a national definition of marriage. If we pass a marriage amendment, we will retain our shared understanding of marriage as the union of man and woman, ratified by the people of the United States. If we accept judicial supremacy on the marriage question, we will probably end up with a judicially created and approved national marriage definition that redefines the institution in unisex terms.

4. Legal scholars from both sides agree: Federal courts are now poised to strike down state marriage laws. Speaking about the recent Supreme Court decision Lawrence v. Texas (2003), Harvard law professor Lawrence Tribe commented, "You'd have to be tone deaf not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect." Bill Eskridge, a law professor at Yale, said, "Justice Scalia is right" that Lawrence signals the end of traditional marriage laws. Jon Bruning, attorney general of Nebraska, testified before the Senate in March that a federal judge is likely to soon declare Nebraska's marriage amendment unconstitutional: "This is the first federal court challenge to a state's DOMA law. My office moved to dismiss the suit, but last November, the Court denied our motion to dismiss. The language in the Court's order signals that Nebraska will very likely lose the case at trial." ...

Scholars who have testified that the DOMA is constitutional under the Full Faith and Credit Clause of Article IV miss the point; the greatest federal judicial threat to the DOMAs springs not from the relatively settled world of full-faith-and-credit jurisprudence, but from the Supreme Court's evolving view of equal protection and personal liberty, as evidenced by such recent cases as Lawrence and Romer v. Evans (1996). As Justice Scalia noted in his Lawrence dissent, this evolving jurisprudence not only threatens DOMA, but also poses a substantive threat to individual state marriage laws.

A federal injunction to strike down DOMA will take only minutes. A constitutional amendment takes months or years to pass. DOMA is unlikely to survive in the current judicial climate. Even if it does, it is not designed to prevent--and will not prevent--the spread of court-created same-sex marriage. If we want to protect marriage as the union of husband and wife, the time to act is now.

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

THE 28TH AMENDMENT: An old Robert P. George column, reprinted at Nat'l Review Online

...At the core of the traditional understanding of marriage in our society is a principled commitment to monogamy and fidelity. Marriage, as embodied in our customs, laws, and public policies, is intelligible and defensible as a one-flesh union whose character and value give a man and a woman moral reasons (going beyond mere subjective preferences or sentimental motivations) to pledge sexual exclusivity, fidelity, and permanence of commitment. Yet any argument for revising our law to treat homosexual relations as marital will implicitly do what clearheaded and honest proponents of "same-sex marriage" explicitly acknowledge: It will deny that there are such moral reasons. Any such argument would have to treat marriage as a purely private matter designed solely to satisfy the desires of the "married" parties. If that is the case, there is no principled reason marriage need imply exclusivity, fidelity, permanence, or even a limit of two people. ...

The only sure safeguard against this assault is to use the ultimate democratic tool available to the American people: a constitutional amendment. Pro-marriage activists are inclined to back an amendment that would read: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The first sentence simply states that marriage anywhere in the United States consists only of male-female couples. This would prevent any state from introducing same-sex marriage by, for example, recognizing a Dutch same-sex marriage. The name and substance of "marriage" is reserved to husband and wife alone.

The second sentence seeks to prevent the judicial abuse of statutory or constitutional law to force the extension of marriage to include non-marital relationships. The word "construed" indicates that the intention is to preclude a judge or executive-branch official from inferring a requirement of same-sex marriage, or something similar, from a state or federal law.

The expression "legal incidents" is intended to convey the consequences "either usually or naturally and inseparably" dependent upon marriage. The Supreme Court has called "incidents of marriage" those "government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimization of children born out of wedlock)" that follow upon marital status. Another example would be the marital privilege against being forced to testify against one's spouse.

The amendment would not prevent private corporations from treating same-sex couples as married couples for purposes of health-care benefits, nor the extension of hospital visitation privileges to same-sex partners. If a benefit is not made to depend on marriage, it can be applied more generally. What the amendment prevents is the automatic, across-the-board qualification of same-sex partners for whatever marital benefits happen to exist.

The Federal Marriage Amendment has a very narrow purpose. It seeks to prevent one very specific abuse of power by the courts, to make sure that on an issue of this importance, they don't confer a victory on the Left that it has not won in a fair contest in the forum of democratic deliberation. The amendment is intended to return the debate over the legal status of marriage to the American people-where it belongs. This amendment would have prevented the Vermont supreme court from ordering the legislature to grant the benefits of marriage to same-sex couples, but would not prevent a fair democratic struggle to decide the question of civil unions one way or the other in Vermont or any other state.

Why, some will ask, should we not go further, and use constitutional amendment to settle the issue of civil unions once and for all at the national level? While the legal recognition of non-marital sexual acts and relationships undermines the institution of marriage and should be opposed, the actual threat of the imposition of same-sex marriage and civil unions comes from the courts, not the legislatures. The amendment is thus tailored to the threat at hand. Moreover, it does not depart from principles of federalism, under which family law is, for the most part, a state matter. State autonomy on family-law matters is preserved.

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posted by Eve at 12:40 PM | link 0 comments

IN DEFENSE OF MARRIAGE: Sen. John Cornyn on FMA

...Why do we need a federal constitutional amendment, when we already have DOMA?

...Legal scholars are a notoriously argumentative bunch. So it is particularly remarkable that the nation's most recognized constitutional experts--including several liberal legal scholars, like Laurence Tribe, Cass Sunstein, Erwin Chemerinsky, and William Eskridge--are in remarkable harmony on this issue. They predict that, like it or not, DOMA or other traditional marriage laws across the country will be struck down as unconstitutional by courts across the country.

Indeed, the process of invalidating and eradicating traditional marriage laws nationwide has already begun. Most notably, four justices of the Massachusetts Supreme Judicial Court invalidated that state's marriage law in its Goodridge decision issued last November, which it reaffirmed in February.

Those decisions were breathtaking, not just in their ultimate conclusion, but in their rhetoric as well. The court concluded that the "deep-seated religious, moral, and ethical convictions" that underlie traditional marriage are "no rational reason" for the institution's continued existence. It argued that traditional marriage is a "stain" on our laws that must be "eradicated." It contended that traditional marriage is "rooted in persistent prejudices" and "invidious discrimination," rather than in the best interest of children. Amazingly, it even suggested abolishing the institution of marriage outright, stating that "if the Legislature were to jettison the term 'marriage' altogether, it might well be rational and permissible." And for good measure, the court went out of its way to characterize DOMA itself as unconstitutionally discriminatory.

Without a federal constitutional amendment, activist courts, and judges will only continue striking down traditional marriage laws across the country--including DOMA itself. Lawsuits challenging traditional marriage laws are now pending in courtrooms across America--including four lawsuits in federal court. ...

Why can't the states handle this? After all, isn't marriage traditionally a state issue?

This argument borders on the fraudulent. There is nothing that a state can do to fully protect itself against federal courts hostile to its laws except a federal constitutional amendment. Nebraska has already done everything it can, on its own, to defend marriage--up to and including a state constitutional amendment. Yet its amendment has already been challenged in federal court, where it is expected to be struck down. As state and local officials across the country have repeatedly urged, when it comes to defending marriage, the real threat to states' rights is judicial activism--not Congress, and certainly not the democratic process.

Moreover, the Constitution cannot be amended without the consent of three-fourths of the state legislatures. States can protect marriage against judicial activism--but only if Congress provides them the opportunity to consider a federal constitutional amendment protecting marriage.

Isn't our Constitution too sacred for such a political issue as defending marriage?

...Our Founding Fathers specifically insisted on including an amendment process in the Constitution, because they humbly believed that no man-made document could ever be perfect. The constitutional amendment process was deliberatively considered and wisely crafted, and we have no reason to fear it.

We have amended the Constitution no fewer than 27 times--most recently in 1992 to regulate Congressional pay increases. The sky will not fall if Americans exercise their democratic rights to amend it again. Surely, the protection of marriage is at least as important to our nation as the regulation of Congressional pay, the specific manner in which we coin our money, or the countless other matters that can be found in our nation's charter.

Moreover, there is a robust tradition of constitutional amendments to reverse constitutional decisions by the courts with which the American people disagree--including the 11th, 14th, 16th, 19th, 24th, and 26th Amendments.

Opponents of the marriage amendment apparently have no objection to the courts amending the Constitution. Yet the power to amend the Constitution belongs to the American people, through the democratic process — not the courts. The courts alter the Constitution--under the guise of interpretation--far more often than the people have. Because of Lawrence, it is inevitable that the Constitution will be amended on the issue of marriage--the only question is how, and by whom. Legal scholars across the political spectrum agree that a constitutional amendment by the people is the only way to fully protect marriage against the courts. ...

Just last week, representatives of Sens. John Kerry and John Edwards said that the marriage amendment would "roll back rights." If you believe that traditional marriage is only about discrimination and about violating the rights of adults--as Sens. Kerry and Edwards apparently believe--then you have no choice but to oppose all traditional marriage laws. Any other position is incoherent at best--and deceptive at worst.

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

BUSH RADIO ADDRESS ON FMA

This is the text of President George W. Bush's July 10, 2004, radio address.

Good morning. The United States Senate this past week began an important discussion about the meaning of marriage. Senators are considering a constitutional amendment to protect the most fundamental institution of civilization, and to prevent it from being fundamentally redefined.

This difficult debate was forced upon our country by a few activist judges and local officials, who have taken it on themselves to change the meaning of marriage. In Massachusetts, four judges on the state's highest court have ordered the issuance of marriage licenses to applicants of the same gender. In San Francisco, city officials issued thousands of marriage licenses to people of the same gender, contrary to the California family code. Lawsuits in several states, including New Jersey, Florida, Nebraska, and Oregon, are also attempting to overturn the traditional definition of marriage by court order.

In 1996, Congress overwhelmingly passed the Defense of Marriage Act, and President Clinton signed it into law. That legislation defines marriage, for purposes of federal law, as a union between a man and a woman, and declares that no state is required to accept another state's definition of marriage. Yet an activist court that strikes down traditional marriage would have little problem striking down the Defense of Marriage Act. Overreaching judges could declare that all marriages recognized in Massachusetts or San Francisco be recognized as marriages everywhere else.

When judges insist on imposing their arbitrary will on the people, the only alternative left to the people is an amendment to the Constitution--the only law a court cannot overturn. A constitutional amendment should never be undertaken lightly--yet to defend marriage, our nation has no other choice.

A great deal is at stake in this matter. The union of a man and woman in marriage is the most enduring and important human institution, and the law can teach respect or disrespect for that institution. If our laws teach that marriage is the sacred commitment of a man and a woman, the basis of an orderly society, and the defining promise of a life, that strengthens the institution of marriage. If courts create their own arbitrary definition of marriage as a mere legal contract, and cut marriage off from its cultural, religious and natural roots, then the meaning of marriage is lost, and the institution is weakened. The Massachusetts court, for example, has called marriage "an evolving paradigm." That sends a message to the next generation that marriage has no enduring meaning, and that ages of moral teaching and human experience have nothing to teach us about this institution.

For ages, in every culture, human beings have understood that traditional marriage is critical to the well-being of families. And because families pass along values and shape character, traditional marriage is also critical to the health of society. Our policies should aim to strengthen families, not undermine them. And changing the definition of traditional marriage will undermine the family structure.

On an issue of this great significance, opinions are strong and emotions run deep. All of us have a duty to conduct this discussion with civility and decency toward one another. All people deserve to have their voices heard. And that is exactly the purpose behind the constitutional amendment process. American democracy, not court orders, should decide the future of marriage in America.

The process has now begun in the Congress. I urge members of the House and Senate to pass, and send to the states for ratification, an amendment that defines marriage in the United States as a union of a man and woman as husband and wife.

Thank you for listening.

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posted by Eve at 12:28 PM | link 0 comments

"ACTIVIST JUDGES" DIFFICULT TO DEFINE: From the Denver Post

As the debate on a gay-marriage ban heats up, legal experts say the term is, at best, imprecise and, at worst, used by people who simply disagree with a ruling.

Ban supporters will be blaming these black-robed rogues for pushing gay marriage onto the American stage, requiring them to push back with a constitutional amendment.

"I do feel the courts are out of hand, and they've gone too far on this particular issue," Sen. Wayne Allard, R-Loveland and the Senate author of the ban, said at a forum last week.

At the same event, Sen. Sam Brownback, R-Kan., talked of "rogue judges," and one questioner asked how such judges can be impeached.

President Bush, too, has lashed out at "activist judges." But confusion reigns over just what is an "activist" judge.

Even legal scholars who rail against them say the term suffers from imprecision. Some legal scholars say an "activist" judge is simply one who made a decision someone didn't like.

"I think it's more of an insult than a philosophy," said University of Colorado constitutional law professor Richard Collins.

Others say "activist judges" are simply convenient scapegoats for gay-marriage opponents who don't want to attack gay people directly.

"We heard this about 'activist courts' during civil rights," said Wayne Fields, an English professor at Washington University who studies political rhetoric. "Instead of saying, 'We don't want black people going to our schools,' we say, 'We don't want the courts making that decision."'

Conservative legal scholars, however, say activist judges are out there, eroding the Constitution and the ability of people to make decisions through their elected officials. The Massachusetts Supreme Court decision allowing gay marriage, they say, is a textbook example.

"Massachusetts is a clear case of judicial activism," said lawyer and Princeton University professor Robert George. "Whether or not an activist decision is good or bad policy, it always is an unconstitutional action. The proper forum to raise these kind of issues is the legislative forum." ...

In recent years, liberals charged that conservative jurists developed their own brand of activism, a complaint that reached its zenith when the Supreme Court handed the 2000 presidential election to Bush.

Critics of judicial activism like Princeton's George say there are plenty of examples to offend liberal sensibilities. In the first part of the 20th century, the Supreme Court was tossing worker protections. And he said the 1857 Dred Scott case, which struck down a ban on slavery in the territories, was a case of judicial activism.

"The very institution that was on the right side of racial justice in Brown vs. Board was on the wrong side of Dred Scott vs. Sanford," George said. "The power to do good is also the power to do evil."

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posted by Eve at 12:18 PM | link 0 comments