|
 |
 |
 Thursday, July 29, 2004
RELIGIOUS LIBERTY: Maggie Gallagher
I too think it is unlikely that churches will be forced to marry same-sex couples. What is almost certain is that religious organizations such as Catholic Charities and the Salvation Army will be forced to treat same-sex couples as married. Schools that teach marriage is the union of a man and a woman may find their accrediation and tax exempt status at risk. This is precisely because marriage is a public not a private act, which laws enforce. And this result is most likely in a legal environment in which courts are striking down marriage laws because they are discriminatory, irrational, and based therefore on "animus." posted by Eve at 6:34 PM | link 0 comments 
OTHER RIGHTS AT STAKE?: Joshua Jasper replies to Anthony R. Picarello, Jr.
The fears of churches being forced to perform same-sex marriages that Anthony R. Picarello, Jr. seeks to play on are simply untrue. Churches can perform whatever marriages they want. If a church wants to restrict marriages to existing between churchgoers only, it's within its rights to do that today, even though the law prohibits discrimination in terms of benefits based on who you're married to if you're heterosexual. Canadian and European laws about hate speech are nonexistent in the US. If we had them here, they long would have been used against antisemitic or racist hate speech that's perfectly legal in the US. Mr. Picarello states, "It is, of course, exceedingly unlikely that local governments could ever force religious ministers to perform same-sex marriages. It is likely, however, that government could force a choice: Either agree (like all others who hold state authority to solemnize marriages legally) to perform gay marriages, or relinquish that authority." But why would this be the case if they aren't stripped of their rights for refusing to marry nonbelievers? A Justice of the Peace is a public servant. He'd have had his license granting status removed if he had objections to marrying mixed race or mixed religion couples of the opposite sex. As for removing state tax funding to groups that discriminate, he may have a valid fear there. We'd remove state funding from a group that refused to grant benefits to Jews or blacks, so why not from one that refused to grant benefits from someone who happens to be gay? posted by Eve at 6:21 PM | link 0 comments
OTHER RIGHTS AT STAKE?: Barry Deutsch replies to Anthony R. Picarello, Jr.
Over on Marriage Debate.com (and in a slightly longer pdf version on his organization's website) Anthony R. Picarello, Jr. argues that same-sex marriage might be bad for free speech. He makes four points. "First, as employers, educators and service providers, religious institutions often provide special benefits to married couples. But if those benefits aren't now extended to legally married gay couples, discrimination claims will soon follow." So what? Under current law, if a Catholic Church hires a divorced and remarried woman to be a teacher, they cannot legally choose to refuse her spouse the medical plan they extend to the spouses of all the other teachers. Religious employers have a right to not be discriminated against because of their religion. They don't have a right to ignore the same laws that all businesses, religious or not, have to obey. "Second, resisting churches may face targeted exclusion from public facilities, public funding streams and other government benefits. [...] For example, religious groups have already been excluded from public contracts. New York City has passed a law requiring any contractor doing more than $100,000 in business with the city to extend health benefits to same-sex domestic partners. Groups such as the Salvation Army--which has provided the city with millions in contract services for the needy--will be excluded from participation in those contracts because of their religious convictions." Again, so what? No one is denying the Salvation Army the right to their religious convictions. However, neither the Salvation Army, nor anyone else, has a right to be free of all consequences for their decisions. Voters are free, through their elected representatives, to set up rules regarding who the government will and won't sign contracts with (within Constitutional limits; voters are not free to make a "this city will never contract with Jews" law). All employers--religious or otherwise--can set their hiring rules so that they qualify for government contracts, or not. But when the Salvation Army or any other employer freely chooses hiring rules which exclude them from government contracts, then that's their own decision, and they've freely chosen to suffer the consequences. In this point and his previous point, Mr. Picarello isn't calling for free speech for the Salvation Army. In effect, he's calling for religious employers to be given an absolute pass from employment law. But enforcing the law exclusively against atheist and secular employers isn't non-discrimination; it's discrimination against secularists and athiests, which is just as wrong as discrimination against the religious. "Pennsylvania's hate crimes law has been amended to add the crime of 'harassment by communication' and the impermissible motive of 'sexual orientation.' As a result, hate crime prosecutions could be based on speech alone, and could include speech reflecting perceived 'animus' against homosexuality--such as preaching against gay marriage. This isn't as far off as it may seem: Following similar cases in Europe, Canadian officials have recently used similar laws to target religious preaching against homosexual conduct as 'hate speech.'" It would certainly be wrong if anyone was found guilty of a hate crime just for preaching against gay marriage. But that will never happen in the United States, which--unlike Canada and Europe--has a strong First Amendment guarantee of free speech. ... "Finally, objecting religious groups could be stripped of the marriage licensing function. A Massachusetts justice of the peace was forced to resign because she could not in good conscience perform same-sex marriages. What are the implications for priests, rabbis or other religious ministers who are also authorized by the state to witness legal marriages, but who object to performing gay marriages? It is, of course, exceedingly unlikely that local governments could ever force religious ministers to perform same-sex marriages. It is likely, however, that government could force a choice: Either agree (like all others who hold state authority to solemnize marriages legally) to perform gay marriages, or relinquish that authority." In Massachusetts, Justices of the Peace don't have a legal right to turn down legal marriages, any more than county clerks have the right to refuse to issue legal marriage licenses. That's because they're government functionaries; their job is administrating marriage policy, not picking and choosing who can legally be married. In contrast, a member of the clergy is free to refuse to solemnize any marriage for any reason. That's because a rabbi or minister or whatever is not a government employee administering the law; they're primarily acting as a representative of their religion, which is not a governmental organization. To bring a real-world example in, Justices of the Peace in Massachusetts can't legally refuse to perform an interfaith wedding just because they personally disapprove. In contrast, many Rabbis refuse to officiate at weddings between Jews and non-Jews. If Mr. Picarello's legal theory were correct--if clergy didn’t have more freedom to discriminate than Justices of the Peace (and county clerks)--then Rabbis would have long ago been stripped of the right to solemnize marriages in Massachusetts. Unsurprisingly, Mr. Picarello's theory is wrong, and Rabbis continue to have the right to choose. more posted by Eve at 6:14 PM | link 0 comments
NAME THAT MARRIAGE: Sarah Woods and David Blankenhorn
[In response to Blankenhorn's earlier post on the term "traditional marriage"--"Like we are busily crusading for 1950s-style gender roles, or favor trying to go back to marriage forms that existed in earlier eras. That is pretty much the opposite of what I and I think the great majority of my colleagues actually favor."] Regarding the problems connected with the new usage and meaning of the term "traditional marriage," Sarah Woods writes in to suggest taking the offensive and finding an adjective that works. She offers and critiques some possible alternatives: Healthy marriage ("I know you don't like it.") Authentic marriage ("I don't like it") Historic marriage ("too close to 'traditional'") Stable marriage ("nah, healthy is better than that") Robust marriage ("implies gays are anemic") Evocative marriage ("can live with it ... captures the sense of high calling, sensuality, and ancient connection of heterosexual marriages while affirming the progressive movement towards gender equality") She concludes: "I just think you've got to go on the offense here. Put something out that you can live with. Define it, justify it and push for it. Or live with the frustration of having editors do it for you." I take her point, and maybe her suggestion is a good one. But to me, any time we have to put an adjective in front of it, a qualifier of some kind, we lose. Big, old, primary institutions have simple noun-names that everyone knows. Having to stick even a nice adjective in front of it in order to make yourself understood is a sign that something is not right. Sincerely yours -- the friendly, non-threatening David Blankenhorn link posted by Eve at 6:10 PM | link 0 comments
AMERICAN PSYCHOLOGICAL ASSOCIATION BACKS GAY MARRIAGE: From the Associated Press
The nation's largest association of psychologists is backing same-sex marriage. The American Psychological Association's Council of Representatives made its support official Wednesday, the first day of the group's annual convention in Waikiki. The council also expressed opposition to discrimination against lesbian and gay parents. It also found same-sex and heterosexual couples remarkably similar, and parenting effectiveness and children's psychological well-being unrelated to parental sexual orientation. The positions, drawn up by the APA Working Group on Same-Sex Families and Relationships, are meant to guide psychologists in the public debate over civil marriage for same-sex couples. "In the context of the huge social and political debate that is currently going on, APA and psychologists had to grapple with the issue of what psychology believes is in the public interest in this controversy,'' said Armand R. Cerbone, a Chicago psychologist who chaired the working group. The seven-member working group based its recommendations on research into same-sex relationships and families. The Washington-based APA has more than 150,000 members, including researchers, educators, clinicians, consultants and students. link posted by Eve at 6:08 PM | link 0 comments
GAY GROUPS URGE ACTION AGAINST ATLANTA GOLF CLUB: From the Atlanta Journal-Constitution
National and state gay rights advocates say they think Atlanta Mayor Shirley Franklin is dragging her feet on punishing an Atlanta golf club for discrimination. After months of silence, the groups are publicly pressing Franklin about Druid Hills Golf Club, which a city commission found in violation of Atlanta's anti-discrimination ordinance on Jan. 12. The club was cited for not providing spousal benefits to partners of gay club members. ... Gay rights groups such as the Human Rights Campaign, the Lambda Legal Defense and Education Fund and the Gay & Lesbian Alliance Against Defamation have sent letters urging the mayor to act. Georgia Equality, the state's largest gay rights organization, also has sent a letter. ... Under the city ordinance, which has not been tested in court since its passage in 2000, the mayor can revoke business and liquor licenses if "public accommodations" are found to be violating the ordinance. ... The dispute between the club board and the two members went public when the Atlanta Human Relations Commission found the club in violation.The club argued that it accepts gay members, but extends spousal benefits only to married couples legally recognized by the state. Benefits include allowing spouses to visit the club without the member and to bring guests of their own. Georgia law forbids gay marriage, but Atlanta allows gays to register with the city as domestic partners. more posted by Eve at 5:58 PM | link 0 comments
Wednesday, July 28, 2004
OTHER RIGHTS ARE AT STAKE: Anthony R. Picarello, Jr.
IN THE DEBATE over same-sex marriage, only those in favor have been able to claim the civil rights mantle--so far. Now that same-sex marriage has become the law in some jurisdictions, religious people and groups that refuse to recognize or perform gay marriages will run afoul of those laws. And these conscientious objectors will assert their First Amendment rights to free speech, freedom of association and free exercise of religion in support of their resistance. The result will be lawsuits marked by competing claims of civil liberty: the right to same-sex marriage v. the right to religious freedom. The disputes, already emerging, fall into four categories. First, as employers, educators and service providers, religious institutions often provide special benefits to married couples. But if those benefits aren't now extended to legally married gay couples, discrimination claims will soon follow. In Massachusetts, for example, which has had court-ordered same-sex marriage since May 17, Catholic colleges are examining whether the schools must now provide married-student housing to legally married gay couples. ... Second, resisting churches may face targeted exclusion from public facilities, public funding streams and other government benefits. The Boy Scouts' experience is illustrative. In Boy Scouts v. Dale, the U.S. Supreme Court upheld the Boy Scouts' First Amendment right to exclude openly gay men from leadership. That decision prompted gay rights advocates to change tack by pressuring state and local governments to exclude the scouts from public benefits they have long enjoyed. As a result, scouts have been excluded from a charitable-giving payroll-deduction program in Connecticut, and from free access to a public mooring in Berkeley, Calif. Similar measures to exclude churches and other religious institutions are close behind. For example, religious groups have already been excluded from public contracts. New York City has passed a law requiring any contractor doing more than $100,000 in business with the city to extend health benefits to same-sex domestic partners. Groups such as the Salvation Army--which has provided the city with millions in contract services for the needy--will be excluded from participation in those contracts because of their religious convictions. ... Pennsylvania's hate crimes law has been amended to add the crime of "harassment by communication" and the impermissible motive of "sexual orientation." As a result, hate crime prosecutions could be based on speech alone, and could include speech reflecting perceived "animus" against homosexuality--such as preaching against gay marriage. This isn't as far off as it may seem: Following similar cases in Europe, Canadian officials have recently used similar laws to target religious preaching against homosexual conduct as "hate speech." Finally, objecting religious groups could be stripped of the marriage licensing function. A Massachusetts justice of the peace was forced to resign because she could not in good conscience perform same-sex marriages. What are the implications for priests, rabbis or other religious ministers who are also authorized by the state to witness legal marriages, but who object to performing gay marriages? It is, of course, exceedingly unlikely that local governments could ever force religious ministers to perform same-sex marriages. It is likely, however, that government could force a choice: Either agree (like all others who hold state authority to solemnize marriages legally) to perform gay marriages, or relinquish that authority. more (PDF) posted by Eve at 10:12 PM | link 0 comments
MARRIAGE PROTECTION ACT: Maggie Gallagher
As far as I can tell the Marriage Protection Act, even if Constitutional (which I doubt the Court will accept, regardless of what we here on MarriageDebate.com think) isn't efficacious in any way. It forbids the Court from reviewing any cases arising under the second sentence of DOMA. It doesn't forbid the court from reviewing cases arising from the 14th Amendment. If federal courts were to intervene in marriage law, they would be reviewing whether the state's marriage law conforms with the U.S. Constitution. DOMA would not enter into the legal reasoning as a "cause of action." (It could be used by prosecutors as evidence of Congressional policy on marriage, but how could that trump the 14th amendment's equal protection concerns.) It doesn't even attempt to protect the federal definition of marriage in DOMA as the union of one man and one woman. It's not clear what the statutory force of the second sentence of DOMA is anyway, since it restates general conflicts of law principles. One state may not "force" another state to recognize gay marraige. How could it possibly do so? Yet New Yorkers will still get gay marriage via Massachusetts, since its attorney general has provisionally ruled New York law requires it to do so. The people's will is irrelevant to this process of legal elites. The Marriage Protection Act attempts to do less than most people think. I think it succeeds in doing nothing while pretending to do something. A good definition of much political activity. posted by Eve at 6:17 PM | link 0 comments
MARRIAGE PROTECTION ACT AND JURISDICTION-STRIPPING: Eugene Volokh
...Legal scholars have spent decades and volumes discussing the question of when Congress may strip federal courts of jurisdiction over certain matters. I'm not an expert on the subject, so I was reluctant to weigh in; and a brief conversation with my colleague Gary Rowe, who does know the literature, reinforced my reluctance. So I can offer only a few observations: 1) As I noted here, such a bill may do more harm than good even from its proponents' viewpoint: Even if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). If people are worried that the U.S. Supreme Court may strike down the Defense of Marriage Act, then they should be worried that state supreme courts may do the same; and even those state supreme courts that might not take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts. What's more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there'll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution -- such as the Goodridge gay marriage decision in the Massachusetts -- will do nothing to change the state court's interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won't be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.) True, the jurisdiction-stripping would at least confine the DOMA invalidations to those states where the supreme courts rendered such decisions; that's something DOMA supporters might appreciate. But my sense is that they won't be wild even about this result, especially since the alternative might be the Supreme Court's upholding DOMA on a nationwide basis. It seems to me that if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment (not the currently talked-about Musgrave draft Federal Marriage Amendment, which would go far beyond protecting DOMA) is indeed the first-best alternative, especially when it seems like it could well be politically plausible. 2) Such a jurisdiction-stripping statute would nonetheless probably be constitutional, because of article III, section 2, clause 2 of the Constitution (emphasis added): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." ... People would still be able to assert their federal constitutional rights -- just in state courts, which are also required to follow the U.S. Constitution, rather than in federal courts. (Recall that the Constitution doesn't even require Congress to create subordinate federal courts at all, and, as the quote above shows, specifically authorizes Congress to limit even the Supreme Court's appellate authority.) My understanding, from what Gary said, is that this is the majority view among leading federal courts scholars. However, as I mentioned, some highly respected scholars argue otherwise; and Gary very kindly let me put on the Web his summary of the debate that he distributes to his students. It's aimed at law students, and refers to other readings that they were assigned, so it will likely be quite cryptic; but I pass it along in case some of you find it interesting. Please note that Gary is doing me a favor by letting me distribute this; please don't bother him with any questions, counterarguments, or corrections. Please also note that, as I said, I myself am not an expert on the subject, and my view in item 2 above is based on a casual analysis, not any serious learning on the matter. I don't expect to blog much more on the subject, but I thought I'd pass along what I had. more posted by Eve at 6:12 PM | link 0 comments
NEW QUESTION: IS THE MARRIAGE PROTECTION ACT CONSTITUTIONAL?
The Act, which recently passed the House of Representatives, reads: "No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section." (That refers to the second section of the Defense of Marriage Act, which says states can't be forced to recognize same-sex marriages made in other states: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe, respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession or tribe, or a right or claim arising from such relationship.") Many people have argued that Congress cannot remove an issue from federal court jurisdiction. Some say that restricting the courts in this particular area would be unconstitutional because it would violate gays' and lesbians' equal-protection rights. Others argue that the Constitution gives Congress the power to limit lower federal courts. What's your view of the Marriage Protection Act? Click below to join the debate! posted by Eve at 5:50 PM | link 0 comments
HOW WE BEAT THE FMA: Cheryl Jacques
...Given just a few months to defeat an amendment that would lock in discrimination against our families for generations, HRC needed to find the best strategies to convince U.S. senators to oppose a constitutional amendment that bans gay marriage when only a small handful of them actually support gay marriage. HRC began with focus groups among moderate voters in Orlando, Fla., Philadelphia, and Las Vegas. The results were unambiguous: While voters opposed gay marriage, the majority also opposed writing discrimination into the Constitution. We tested all kinds of messages, including those that promote marriage equality, and found that three were the silver bullet to defeating the Federal Marriage Amendment: 1. The FMA is discriminatory. It would deny same-sex couples crucial benefits such as hospital visitation rights and survivor benefits. Even with "compromise" language, there is no compromise: The FMA is about denying benefits. 2. The FMA is unnecessary. There are more important issues: a war in Iraq and a struggling economy. Besides, there's already a federal law that bans gay marriage. 3. The FMA undermines the Constitution. The Constitution has always been a vessel for freedom and the expansion of rights and liberties. The FMA would undermine the purpose of the Constitution by adding an amendment designed to enforce discrimination and the denial of equal benefits. These three main messages were used over and over by our spokespeople, in our advertising, by senators on the floor of Congress, and in messages sent by GLBT Americans and our allies to wavering senators. more posted by Eve at 5:45 PM | link 0 comments
PARENTHOOD AND CHOICE: Maggie Gallagher and David Blankenhorn
Maggie Gallagher writes: Think about this statement from Peggy Ornstein's NYT mag piece: "The idea that parenthood is a cultural creation conferred not by biology but by choice isn't new. It's the premise behind adoption. 'Once you have legalized adoption, that's the end of the picture in terms of genetics,' says Leonard Glantz, professor of health law at the Boston University School of Public Health. 'It's a very broad statement of social policy by legislature that genetics and parenthood are different issues.'" If this is the case, why are we hounding single fathers for child support? Did they intend or choose to create a child? Why is it uniquely men who are bound by biology while everyone else's parenthood is based on choice, not biology? Are we really going to be able to hang onto the idea that biology creates obligations under the new regime? I note that when the Dept. of Health suggested changing Mass. birth certificates so they no longer read mother and fathers, it was Child Support Enforcement that objected. David Blankenhorn adds: I [David] would add that it's simply ridiculous to assert, as Leonard Glantz does, that the practice of adoption in human societies means "the end of the picture in terms of genetics" -- that is, adoption means that being a parent has nothing to do with biological ties to the child. What utter nonsense! Adoption as a social institution is almost as old as marriage itself, and like marriage, adoption is a nearly universal human institution, intended to provide a child with a married mother father in those cases in which one or more of the biological parents is either dead or unable to function as a parent. And in the long, largely impressive history of this human institution, no one has ever -- until Leonard Glantz, about two minutes ago -- seriously suggested that adoption negates or "means the end" of the concept that parenthood in human societies is fundamentally connected to biology. link posted by Eve at 5:41 PM | link 0 comments
BULGARIA AND MARRIAGE: Stanley Kurtz replies to Lucia Liljegren
Blogger Lucia Liljegren looks to Eastern Europe--especially Bulgaria--for countries where out-of-wedlock births are rising as swiftly as they are in Holland. Supposedly, this proves that gay marriage has nothing to do with marital decline in The Netherlands. Yet as I showed in "Dutch Debate," you cannot compare the causes of out-of-wedlock birth in Holland with a place like Bulgaria. In Bulgaria, out-of-wedlock births occur overwhelmingly among poor, single, teens--with especially high rates among the Roma (Gypsies). And most of the increase in Bulgarian out-of-wedlock births since 1989 has taken place among these poor single mothers. By contrast, single teen moms are rare in The Netherlands. Holland’s out-of-wedlock birthrate is being pushed up by Scandinavian-style, middle class, parental cohabitation. That is what gay marriage is most closely associated with. On contraception, Liljegren thinks she's contradicted me by pointing to statistics that show high rates of contraception among married Bulgarian women. Yet this sidesteps the question--which is skyrocketing out-of-wedlock birthrates among unmarried Bulgarian women. These young, unmarried Bulgarian women--girls, really--have relatively little knowledge of contraception, and find contraception difficult to afford, even when they want it. Of course, contraception is by no means the only way to control out-of-wedlock births. Under communism, contraception was, if anything, discouraged. Yet out-of-wedlock births remained low because every communist government offered a panoply of incentives designed to encourage early marriage and child-bearing. These included everything from access to high quality housing for young married couples, to an actual "bachelor's tax" levied on single people in their mid-twenties. You can't compare the rapid collapse of this vast system of marital incentives--and the severe and ongoing economic dislocation in post-communist Europe--with minor economic blips in vastly more prosperous Holland. The fact that Liljegren has to reach as far as Bulgaria to find a case that is (supposedly) comparable to a prosperous and socially liberal Western European country like The Netherlands bespeaks the weakness of her argument. For a truer picture of Bulgarian unwed motherhood, go here (esp. P.17), and here. The contrast with Holland (and with Liljegren's claims) is striking. What really calls for explanation is why a country like Holland--with so much contraception and so little single teen mothering--should have such a rapidly rising out-of-wedlock birthrate. [ADDENDUM: There seems to be a problem with the link in my Bulgaria post. The link is to "Youth of Bulgaria: Some Problems and Risks During the Transition Period." It's by Jaklina Tzvetkova, and you can find it easily via google. (See esp. page 17.) Here's another try at the PDF.] link posted by Eve at 5:23 PM | link 0 comments
PULLING STRINGS FROM THE PULPIT?: From the Kansas City Star
Which of the following pastors may cost his congregation its tax-exempt status? In the pulpit, Pastor Smith reminds his congregation that a church member is running for political office. "He's a good man; let's support him. You can pick up campaign literature in the vestibule." At another church, Pastor Brown delivers a blistering sermon opposing gay marriages. "Get a voter guide after service. It shows how candidates voted on this and other issues of concern to us." If you've picked Pastor Smith, you're right. Pastor Smith strayed by endorsing a candidate from the pulpit. Pastor Brown stuck to the law by just sticking to the issues. The involvement of clergy, churches and synagogues in politics is not new. One example is the role they played during the civil rights era.Just how clergy become involved varies. Ways have included shaping congregational opinion on issues or actions to solve social problems, said Laura Olson, political science professor at Clemson University and an expert in religion and politics. "Many clergy perceive their involvement in programs, such as sheltering the homeless, feeding the hungry and helping women with unplanned pregnancies, as being political in nature." ... What's not allowed seems pretty straightforward, according to guidelines published by the IRS: Tax-exempt organizations, including houses of worship, "are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or opposition to) any candidate for elective public office." Contributions to political campaign funds or public statements of position (verbal or written) made by or on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violation can mean the loss of tax-exempt status.... What is permitted, however, is more than most people may think. According to the IRS tax guide for religious organizations, federal tax laws allow houses of worship to engage in nonpartisan voter education activities and activities that encourage people to register and vote and to participate in the electoral process. Despite the rules, there appear to be ways around some of them. For example, in many black churches it is not uncommon for a candidate to speak but not his or her opponent, said professor Fredrick Harris, director of the Center for the Study of African-American Politics at the University of Rochester. "They get around this by inviting candidates they prefer to be their 'men's day' or 'women's day' speaker or speaker on some other program," he said. "They may choose to have a candidate forum during the week, or the minister may recognize a candidate as a 'friend' of his or hers. These are ways that ministers avoid being explicitly partisan." Many clergy have been misinformed and think they are not allowed to talk about politics in the pulpit, Theriot said. "They are scared to death of losing their tax-exempt status," he said. "And if there is any chance that the IRS might get interested in them, then they don't want to do anything." Speaking and teaching on moral issues is not illegal but the work of the church, said the Rev. Jerry Johnston of First Family Church in Overland Park, Kan. He has been leading the effort for evangelical and conservative congregations to register new voters, hold candidate forums and distribute the voting records of politicians on the marriage amendment and abortion issues. McKnight, whose Mainstream Coalition has started monitoring political activity in Johnson County, Kan., churches, said, "Jerry Johnston's voter guide goes right up to the law." "But it cannot be disallowed just because it is against the spirit of the law. Narrowly focused voter guides become real touchy, and this guide doesn't tell the basis on which the votes were given." Pastor Mike Anderson, congregational life pastor at Olathe (Kan.) Bible Church, said he recently preached on God's definition of marriage. He urged members to read the Bible and, in light of God's definition of marriage, vote their conscience. He was careful not to recommend specific candidates. Anderson said he is grateful for the meetings sponsored by First Family Church to mobilize church leaders who support the marriage amendment. "They really convicted me of my own inclination to avoid issues that would be confrontational," he said. "But sometimes we need to confront issues, because Jesus did not sidestep the issues of his day. He did it in a loving way." more posted by Eve at 5:00 PM | link 0 comments
N.D. MAY VOTE ON MARRIAGE AMENDMENT: From the Associated Press
Supporters of a North Dakota constitutional amendment to limit marriage to heterosexual couples say they have collected more than enough petition signatures for their campaign to put the issue to a November vote. Only 25,688 signatures are needed to put the amendment on the statewide ballot this fall, but the North Dakota Family Alliance's Web site, which posts updated signature totals daily, said the petition had 38,457 signatures as of The petition may have more than 40,000 names by the time it is submitted to Secretary of State Al Jaeger's office on Aug. 3, said Christina Kindel, director of the alliance. ... The amendment says: "Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage, or given the same or substantially equivalent legal effect.'' It is intended to block North Dakota recognition of same-sex marriages. North Dakota law already bars state recognition of any same-sex marriage performed outside the state, and opponents of the amendment say that makes the amendment unnecessary. Similar items with be on ballots this summer and fall in Oregon, Arkansas, Georgia, Kentucky, Mississippi, Montana, Oklahoma, Missouri, Louisiana and Utah. more posted by Eve at 4:57 PM | link 0 comments
ARGUMENTS HEARD IN WASHINGTON CASE: From the Seattle Post-Intelligencer
...In a packed Seattle courtroom Tuesday, attorneys for eight couples urged a King County Superior Court judge to allow same-sex couples to marry in Washington even though a 6-year-old law forbids it. "It's hollow indeed to say a person has the right to marry and exclude the person with whom they are in love," Bradley Bagshaw, one of several lawyers for the couples, said. "There are lots of different ways to create families." But attorneys for the state, King County and same-sex marriage opponents, including Washington Evangelicals for Responsible Government -- said Washington law is clear: Marriage is between a man and a woman. They said Judge William Downing can't simply toss out previous court rulings and the Defense of Marriage Act, passed by state lawmakers over Gov. Gary Locke's veto in 1998. "The issue today isn't whether the Legislature was right," said Deputy Prosecutor Darren Carnell, who represents King County. "The issue is whether it was the Legislature's right to decide." Downing said he would hand down a comprehensive written ruling next week, possibly as early as Tuesday. No matter what he decides, attorneys expect to ask the state Supreme Court to take on the issue, which has proved to be both contentious, emotional and, in recent months, a focus of national political debate. Washington was swept into the controversy in March, when six gay and lesbian couples made a symbolic trip to King County offices to apply for marriage licenses and, when they were turned down, sued county officials. Two other couples later joined the lawsuit, and the state Attorney General's Office is now defending Washington's current law. Janet Helson and Betty Lundquist, a Seattle couple who are raising two kids and have been together for more than 12 years, said they hope that Downing finds as unconstitutional the 1998 law that defines marriage as involving a man and a woman. ... In court, Bagshaw argued marriage is a fundamental right that the state can't simply deny to certain people, contending that "equal rights" means lawmakers can't "draw a line along sex lines." He said same-sex couples are unfairly being denied many of approximately 360 benefits and burdens that come with marriage, from community-property rights to being able to make critical medical decisions for each other. more posted by Eve at 4:54 PM | link 0 comments
Tuesday, July 27, 2004
CONCEPTS AND CONCEPTION: Sara Butler
This week in the New York Times Magazine there is a longish article about a lesbian couple's custody battle and the limitations of the current legal definitions of mother, father, and parent. As the author, Peggy Orenstein notes, "In this age of conceptions that can be simultaneously multipartied and immaculate--using egg donors, sperm donors, embryo donors, surrogates, even posthumous sperm--defining parenthood has become dizzyingly complex." In fact, the article itself does very little to explore just what makes a parent a parent (the idea that it might have something to do with blood relation is quickly dismissed), and certainly doesn't touch the issue of what makes a mother a mother or a father a father. The closest we seem to get is that parenthood, at least when reproductive technologies are involved, is created "by choice" or "intent." If you mean to be a parent, then you are, regardless of your actual biological relationship to the child in question. Of course, one of the many problems with that is that a person's intentions can change over time. How do we decide which point in time counts? Is it at conception? Well, on the one hand, my understanding is that fetal homicide laws rely on that rationale, but on the other hand, women can choose not to be a parent up until birth (and there are men out there who would like to have the same choice). Maybe it's birth, then, although I can imagine some problems with that, too. A person's intent at any time in the past can be pretty difficult to determine, as in the case of the lesbian couple whose story the piece revolves around. E. wanted to have a baby, but was infertile, so K. donated an egg, which was fertilized by an anonymous sperm donor. When she donated the eggs, K. had to sign a standard consent form which waived her rights to any children that resulted from them. Six years later, E. leaves with the kids and K. is left with very little legal ground on which to enforce what she sees as her parental rights. Now, E. argues that her intent all along was to be a single parent, while K. insists that they both intended to be the mothers of the child. Who knows, maybe we'll start seeing more pre-nats in addition to all those pre-nups so that everyone knows where everyone stands. Orenstein also notes "the evolving notion of 'psychological parenthood,'" which some states will award to "a second mom or dad who wiped runny noses and helped with homework--who had a clear parental role regardless of the actual legal relationships." How exactly we can decide who has played a "parental role" (or even what that role might look like) without knowing what a parent is beyond me. Orenstein acknowledges the problems with this: "Some courts consider psychological parenthood a fuzzy, potentially dangerous concept. What would stop a stepparent, or even multiple stepparents, from suing for custody? Should anyone who is deeply involved in the day-to-day workings of a child's life be able to lay legal claim? Nancy Polikoff, a professor of law at American University and an expert on laws relating to gay parenting, argues that that won't happen. 'The courts that have ruled that way have tried to be very careful about how they fashion a test, so that, for instance, a grandmother wouldn't be able to claim parental rights,' she says. 'You have to show that you have a parental relationship to the child and that the person with the legal rights intended for you to be a real parent.'" So, "psychological parenthood" actually just goes back to using a parent's intent not just to determine whether or not he or she is a parent, but also who else might be parents. This just can't be right; children's needs should be coming first, not adults' preferences. Orenstein does finally note that, unlike other things that couples fight over when they break up, kids actually have independent rights and needs, but she offers a solution, gay marriage, that is less than complete: "It is, of course, the children's voices that are missing from this debate. What are their wishes, their feelings, their needs? As with heterosexual couples, gay partners in a hostile split will say and do hurtful things. They will use children as weapons. With no legal recognition of their families, however, without the possibility of marriage or, in some states, second-parent adoption, doing so is just that much easier. Ultimately, it is the children who suffer." Now, I happen to find some version of this argument (that gay marriage is good for kids because gays and lesbians have kids, too) the most compelling one out there for gay marriage, but it is by no means a total answer to this problem of defining parenthood, which is brought about by the use of reproductive technology just as much as it is by same-sex couples. It's been possible for the baby of a heterosexual couple to have two "mothers" for a while now, and several of the bizarre senarios Orenstein suggests do not necessitate a same-sex couple: "How do we legally categorize a woman who gives birth to her own sibling? Or mothers who are akin to fathers, providing gametes but not gestating their offspring? What happens in divorce when a man denies paternity of a child his wife conceived, with his consent, using donor sperm? In one mind-bending California case (most of the significant cases have emerged from that state), a couple used a donor egg and donor sperm to create an embryo that was then gestated by a surrogate. One month before the baby was born, the couple split up, and the husband refused responsibility for the child. A lower court found that the girl--whose creation involved five separate adults - had no parents whatsoever. (The decision was later overturned, and the divorcing couple were declared her mother and father. The mother got custody, and the father was ordered to pay child support.)" Eek. I certainly don't have any great solutions here, but legalizing gay marriage wouldn't totally solve this problem and changing our legal definitions of parenthood to suit adults' not-so-constant wants rather than childrens' rights and needs seems pretty unwise. link posted by Eve at 11:20 PM | link 0 comments
JURISDICTION, CONFIDENCE, AND EXCEPTIONS: Justin Katz replies to Josh Chafetz on Marriage Protection Act Josh Chafetz declares--with a bit more confidence than circumstances (or the law) merit--that the Marriage Protection Act, already passed by the House, is unconstitutional:
To come to the objective conclusion that the Marriage Protection Act is constitutional, one must clear the highest hurdle that Chafetz notes: "People who disagree with my analysis above have, I think, an obligation to explain why Art. III, sec. 2's statement that the federal judicial power 'shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority' doesn't actually mean that the federal judicial power shall extend to all such cases."
posted by Eve at 4:46 PM | link 0 comments
CHILDREN OF SAME-SEX UNIONS: Maggie Gallagher
Several people have written to ask me if I've heard from other children of same-sex unions since publishing Bronagh's story. For whatever it's worth, here's a summary of personal experiences from my readers: Three children raised by same-sex parents wrote to me, one of whom felt the experience was negative, two of whom viewed the experience favorably. (We published one of the "positives" here.) Four people wrote to me about children they know (family members mostly) raised by same-sex parents: 3 said the children had negative experiences and one said the children had positive expeirences. Seven adult children with a gay parent wrote to me; most of these were children of divorce whose mother or father left the marriage as part of the coming out process. None of these had favorable experiences. posted by Eve at 4:30 PM | link 0 comments
THE CHANGING FACES OF GAY LEGAL ISSUES: From the American Bar Association's journal
...Confusion continues even in Massachusetts, which on May 17 became the first state to recognize same-sex marriages following the Massachusetts Supreme Court’s ruling in Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003), that interprets marriage under state law to be the "voluntary union of two persons as spouses." But even as gay marriages are being performed in Massachusetts, the state legislature has initiated a three-step process that will put a constitutional amendment banning gay marriages before the voters in 2006, while recognizing same-sex civil unions. The growing uncertainty about the direction of the law on this issue is making it increasingly difficult for lawyers to advise clients in same-sex domestic partnerships on just what their rights are and what steps they should take to protect them. "Counseling clients is very difficult," says Hertz. "Part of the problem is that they do not want to hear me saying that I do not know. I can explain with great elaboration and detail all the things that I do not know, but fundamentally what I am doing is telling them that I do not know." Compounding these difficulties is the fact that many homosexual couples simply haven't given much thought to how legal issues might arise in the course of their relationships, according to Richard Wilson, a domestic relations lawyer in Chicago. "Given the history and the social opprobrium they have had to deal with, same-sex couples often set up relationships with no legal protections," says Wilson. "So often--and this always surprises me--they do not consider what happens if things fall apart. They've bought real estate together and all other kinds of things without a thought about what they might be getting into. They have this assumption that they will have their day in court or some sort of legal recourse and are shocked to find out that they have none." The current push for recognition of unions between same-sex couples has emphasized the disparity in how the law treats them in comparison to heterosexual married couples. By some counts, marriage carries with it 1,049 distinct rights, benefits and responsibilities under federal law alone. Together, federal and state laws touch on nearly every aspect of a marital relationship by addressing such matters as Social Security survivor's benefits, preferential tax treatment, standing to sue for certain torts, access to health care insurance, support obligations for children, access to divorce courts, intestacy rights, decision-making authority for an incapacitated spouse and parental rights. There is no legal recognition of same-sex couples under federal law, and only a few states extend coverage of their laws to same-sex couples. But there has been gradual acknowledgement of the contention that at least some of the legal rights enjoyed by married persons should be extended in effect, if not in name, to persons in committed same-sex partnerships. more posted by Eve at 4:24 PM | link 0 comments
MORE ON JURISDICTION STRIPPING (MARRIAGE PROTECTION ACT): Josh Chafetz
MORE ON JURISDICTION STRIPPING. In response to this post, some people have taken issue with my constitutional reasoning. An articulate example is T.M. Lutas' post. He writes: "If a court is created by statute, the Congress is the body granting jurisdiction, no? And Whatsoever Congress grants, Congress can take away. A court created by Congress, could even be closed up and done away with entirely so what makes this lesser reduction of authority somehow illegitimate? ...The reality is that the judicial power of a subsidiary court to take up a question is either based in the Congressional authorizing statute which lays out their jurisdiction (and thus amendable by act of Congress, like HR 3313) or it flows from the Supreme Court itself, which can only grant to its subordinate bodies what powers it already has. If it can't do something, what Constitutional power does a lesser court have that is denied to the highest judicial body in the US?" Lutas' reasoning is flawed. Here's why. Article III of the Constitution says the following:(1) The judicial power of the United States shall extend to all cases presenting federal questions. (Art. III, sec. 2, cl. 1). Shall is not the same as may -- "shall" is non-discretionary. It would be unconstitutional for the judicial power of the United States not to extend to these cases. (2) The federal judiciary must consist of a Supreme Court. It may also consist of inferior courts, as Congress shall direct. (Art. III, sec. 1). (3) The Supreme Court must have original jurisdiction over certain enumerated classes of cases. Congress may make exceptions as to the appellate jurisdiction of the Supreme Court over other types of cases. (Art. III, sec. 2, cl. 2). Here's what we can conclude from this. Combining (1) and (2): If Congress does not create any inferior courts, then the Supreme Court, as the entirety of the federal judiciary, must exercise all of the functions of the federal judiciary. This means that it must have jurisdiction over all federal questions. This would be original jurisdiction (it couldn't be appellate -- there are no lower court from which to appeal). In this case, (3) would be irrelevant -- Congress' power to limit the Supreme Court's appellate jurisdiction wouldn't come into play because the Supreme Court would be exercising original jurisdiction, not appellate. Result: the Supreme Court would have to be able to exercise jurisdiction over federal questions cases. Now, what if Congress does create inferior courts? Then the federal judiciary (i.e., that branch which exercises the judicial power of the United States) would consist of a Supreme Court and some inferior courts. Again, combining (1) and (2), we see that this branch must have jurisdiction over federal questions cases. Congress, however, can determine how this jurisdiction is to be exercised within the federal judiciary. That is, it can choose not to grant jurisdiction over these cases to the inferior courts -- but in that case, since someone in the federal judiciary has to have jurisdiction (according to (1)), the Supreme Court would have to exercise original jurisdiction, which, again, would not be subject to Congress' ability to strip the Supreme Court's appellate jurisdiction. Alternatively, Congress can choose to grant jurisdiction to the lower courts but to strip appellate jurisdiction from the Supreme Court. That's fine, because it leaves the inferior federal courts with jurisdiction. Finally, it can give jurisdiction to the lower federal courts and leave appellate jurisdiction with the Supreme Court (that's the current state of the law.) Lutas is thus right that, "If a court is created by statute, the Congress is the body granting jurisdiction, no? And Whatsoever Congress grants, Congress can take away." Congress can take away the jurisdiction of those courts that it creates -- i.e., the inferior federal courts. But in no circumstances can Congress strip the entire federal judiciary of jurisdiction over federal questions. That's the meaning of (1) above. So all that Congress' stripping the federal question jurisdiction of the lower courts would do is give the Supreme Court original jurisdiction over the federal question presented. And Congress could not, then, take that away -- at least, not without giving it to some other (inferior) federal court. And that's why H.R. 3313 is unconstitutional. UPDATE: Two further thoughts: (1) People who disagree with my analysis above have, I think, an obligation to explain why Art. III, sec. 2's statement that the federal judicial power "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" doesn't actually mean that the federal judicial power shall extend to all such cases. (2) People who disagree with me also need to explain the Eleventh Amendment. After all, the Eleventh Amendment is just a jurisdiction stripping measure. (It strips diversity jurisdiction rather than federal question jurisdiction, but I can't see why that would be relevant.) If Congress can constitutionally strip jurisdiction at any time, then why go to all the trouble of passing a constitutional amendment for the purpose? To put it differently, if you disagree with my analysis above, then, assuming the Eleventh Amendment hadn't passed, why, on your theory of Article III, couldn't Congress simply have passed the Eleventh Amendment as an ordinary statute? And if they could have, why didn't they in the first place? link posted by Eve at 4:19 PM | link 0 comments
DUTCH DEBATE: Lucia Liljegren replies to Stanley Kurtz...
...in a vast long post I haven't had a chance to read yet. posted by Eve at 4:17 PM | link 0 comments
MARRIAGE PROTECTION ACT MAY BE UNCONSTITUTIONAL: Joanna Grossman
[Am I misreading this, or does the way Romer v. Evans is invoked here, especially toward the end, strongly imply that under Grossman's view same-sex marriage is constitutionally required?--Eve] Last week, by a vote of 233 to 194, the House passed the Marriage Protection Act (MPA) of 2004. The Act is a rare attempt at "jurisdiction stripping." Typically, federal courts have the power to hear any case raising "federal questions." (They have other jurisdiction over other categories of cases as well.) But the MPA would strip these courts--including the Supreme Court--of part of that power. Specifically, if the MPA were to become law, the federal courts would be divested of the powers to hear two kinds of "federal question" cases: Cases relating to the MPA itself, and certain cases relating to the Defense of Marriage Act (DOMA). (DOMA attempts to prevent the states from being forced to recognized out-of-state same-sex marriages. The cases the MPA tries to preempt relate to the Constitution's Full Faith and Credit Clause, which requires the states to respect each others' public acts, records, and judgments.) The MPA is not predicted to make it through the Senate. Still, it is worth considering, for it raises a number of interesting and as-yet-unresolved constitutional questions. Ironically, the persistence of these very questions underlines the need for the federal courts to weigh in--rather than being silenced, as the MPA would have it. ... Why might DOMA be struck down? There are two basic arguments--but only one concerns us here. First, DOMA defines marriage for purposes of federal law as a union between a man and a woman. That could mean, for instance, that federal benefits need not be given to a same-sex spouse of a Massachusetts government employee. This part of DOMA may be an Equal Protection or Due Process violation--based on two key Supreme Court precedents. The Court held in Lawrence v. Texas that a state may not criminalize same-sex sodomy. And it held in Romer v. Evans that a law borne solely of animosity toward a particular group (there, homosexuals) will not survive even the lowest level of constitutional scrutiny. But this part of DOMA, while severely disabling to a same-sex couple losing out on multiple federal marriage benefits, is not at issue here. Second, and relevant for our purposes, is that DOMA says that no state need give recognition to a same-sex marriage from a sister state. Specifically, it says no state must give effect to any "public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage". This second part of DOMA may violate the Full Faith and Credit Clause contained in Article IV of the U.S. Constitution. And the question of whether it does is the very question the MPA tries to prevent the federal courts from resolving. That Clause provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." On its face, that would seem to compel states to recognize each others' marriages--if marriages qualify as public acts. Granted, some states have carved out public policy exceptions--refusing to recognize other states' incestuous marriages, for instance--that are seen as consistent with Full Faith and Credit. Thus, some commentators maintain that the "public policy exception" itself allows states to refuse recognition to same-sex marriage--at least in the many states that have adopted a statute or amended their own constitution to declare such unions impermissible--and thus moots the need for DOMA in the first place. But others disagree whether such an exception is consistent with the Clause at all. ... The Clause exists because the Republic could not function if states did not recognize each others' laws, and the judgments enforcing them. It is about state comity and cooperation, and mutual respect. Thus, to interpret the Clause to allow Congress to entirely undermine that comity by targeting certain states' acts and rendering them ineffective out-of-state, seems somewhat perverse. After all, through the doctrine of federal pre-emption, Congress can pre-empt state laws already--but only in areas that are properly federal. If Congress is not empowered to dictate standards for marriage in the first instance, then it shouldn't be able to make an "end run" around the limits of that power by simply rendering them ineffective in other states via laws like DOMA. ... All these questions are ripe for federal courts to consider. But the MPA would deny them the opportunity to do so. Would the MPA's jurisdiction-stripping itself be unconstitutional? Certainly, it would seem to be unprecedented: No prior law has ever completely removed an issue from the Supreme Court's reach. Indeed, according to the non-partisan Congressional Research Service, there is no precedent "for a law that would deny the inferior federal courts original jurisdiction or the Supreme Court of appellate jurisdiction to review the constitutionality of a law of Congress." But just because a law is unprecedented, doesn't mean it's unconstitutional. It is well-settled that under the Constitution, Congress can control lower federal court jurisdiction. And the Constitution says that Congress can make "exceptions" to even the Supreme Court's appellate jurisdiction, under which DOMA cases would fall. (The Court's "original" jurisdiction over cases such as interstate territorial disputes, however, is set in stone.) Again, though, there is an interpretive problem: What does the power to make "exceptions" mean, exactly? And, is that power limited by constitutional separation of powers principles? After all, jurisdiction-stripping takes power from the Courts, and leaves it with Congress (or here, the States). Suppose issue-based jurisdiction-stripping like the MPA's is permissible. Then whenever the controlling party in Congress does not like the way courts were handling an issue, it can pass a new law stripping courts of the right to review that law. That just doesn't seem right--at an extreme, it would render the courts toothless, and give Congress fangs. ... Finally, what if the MPA itself is discriminatory against gays and lesbians--stripping the Court of the ability to consider an issue that so deeply affects their fates? Could it be unconstitutional under Equal Protection and Due Process precedents--again, including Lawrence and Romer? Romer, in particular, seems on point: It struck down an amendment to Colorado's constitution that would have precluded any governmental action designed to prohibit or alleviate discrimination against gays and lesbians. Like that amendment, the MPA seems to directly and intentionally target and impede the effectiveness of pro-gay-and-lesbian actions by a state. For all these reasons, the MPA is likely unconstitutional. more posted by Eve at 4:04 PM | link 0 comments
DOCUMENTARY TRIBUTE TO GAY-WEDDING GIFT: From the San Francisco Chronicle
He helped make the feather float in the opening scene of "Forrest Gump" and cows fly through the tornadoes of "Twister." But for Peter Daulton, a special effects guru at Industrial Light and Magic, it was a simple, sweet, no-tech gesture of kindness that inspired him to return to independent, documentary filmmaking. It was Feb. 21 when Daulton first read about Flowers From the Heartland, a grassroots movement begun by gay co-workers in Minneapolis who had the idea to phone a florist in San Francisco, order a wedding bouquet and have it delivered to any random same-sex couple waiting to be married at City Hall. Those co-workers wrote an e-mail encouraging others to do the same and forwarded it to friends who forwarded it some more. It soon bloomed into a nationwide bouquet bonanza with more than half of the 4,037 same-sex couples who were married receiving bouquets. Daulton, who is straight and lives in Novato with his wife, may seem an unlikely person to be so touched by the gift of flowers. But determined to document the people behind the bouquets, he spent six days filming weddings at City Hall and then took off on a two-week, 6,000-mile road trip around the country to interview those who sent flowers. The result, a 25-minute movie, titled "Flowers From the Heartland," will premiere at the Castro Theatre next month. ... Daulton had long been itching to get back into documentary films, and he decided Flowers From the Heartland was the perfect topic. He telephoned Michael Ritz of Church Street Flowers in the Castro on Feb. 24 to see if he could tag along on his many jaunts to City Hall and wound up spending six days filming the flower deliveries. The film shows many couples tearing up and becoming speechless as Ritz gives them flowers and they read the accompanying notes with greetings such as "Best wishes for a long and happy life together. From, Bill and Kelly in Dallas." ... Ritz also connected Daulton to those who had sent the flowers and on March 10, Daulton set off for his road trip, visiting 16 people in towns in Texas, Kansas, Nebraska and Minnesota. One of them was Greg Scanlan, who dreamed up Flowers From the Heartland in his office in Minneapolis. more posted by Eve at 3:55 PM | link 0 comments
GAY-MARRIAGE OPPONENTS WARY IN OHIO: From the Cincinnati Enquirer
The potential for legal challenges by an opposition group has backers of a constitutional amendment to ban gay marriage questioning whether to try for the November ballot. Phil Burress, chairman of Cincinnati-based Ohioans to Protect Marriages, said that even if the group collects the 323,000 required signatures by Aug. 4, that doesn't guarantee the issue will go forward. He is concerned the petition effort could be in vain if a group formed by Ohioans for Growth and Equality, a coalition of mainly gay organizations, files legal challenges that delay final certification of the signatures. ... The opposition group, Ohioans Protecting the Constitution, has not said specifically what it will do to stop the ballot initiative. But Donald McTigue, a top Ohio election attorney hired by the group, said, "I think they should be concerned about challenges." McTigue's challenges recently stopped an effort to put a repeal of the penny sales tax increase on the November ballot. In 2003, he represented a group attempting to require Ohio to form a pool to purchase prescription drugs. Court filings from the pharmaceutical industry stalled the effort. Challenges can be filed in each individual county where petitions are certified, leading to potentially dozens of court cases all over the state. With ballot initiatives often working under tight deadlines, challenges don't have to be successful as long as they run out the clock. "This is becoming a blood sport for lawyers and a travesty for citizens who want to even the playing field with institutional staff and lobbyists," said Secretary of State Ken Blackwell, Ohio's top election official and leader in trying to get the sales-tax repeal on the November ballot. "Without question, it is too easy to discourage citizens from petitioning the government and participating in the political process." McTigue agreed with Blackwell that the system of challenging petitions should be centralized in one court, instead of dozens--a move that would require legislative action. But he's prepared to work within the system in place today. Alan Melamed, campaign manager for Ohioans Protecting the Constitution, said one potential challenge could stem from the way petitioners are describing the amendment to others. He doesn't think they're being truthful. "We are not opposed to them putting it on the ballot," Melamed said. "We just want them to follow the same rules as everybody else." Burress questions that sincerity. "If I am leaning, I'm leaning more toward moving forward and taking this to court because of the injustice of the other side's anti-democracy campaign," he said. With just over a week before the deadline, Burress said his group is very close to the required number of signatures. more posted by Eve at 3:39 PM | link 0 comments
COURT ANNULS FRANCE'S FIRST SSM: From Reuters
A French court annulled France's first gay marriage on Tuesday, setting a legal precedent for outlawing same-sex marriages that came down on the side of the conservative government. The government had already declared the marriage invalid and suspended the mayor who conducted it on June 5 in the Bordeaux suburb of Begles. The court ruling was a blow for opposition politicians who want to make gay marriages legal. "The tribunal declared null and void the marriage between Mr. Stephane Chapin and Mr. Bertrand Charpentier,'' the court in Bordeaux, the main city near Begles, said in its ruling. Chapin, a 33-year-old home care worker, and Charpentier, a 31-year-old shop worker, said they would appeal against the ruling and take their fight to the European Court of Human Rights if necessary. ... The couple's lawyer, Emmanuel Pierrat, said the court had based its ruling on the argument that marriage is traditionally considered the foundation of the family and that one of its main functions is to have children. He said the couple remained legally married pending their appeal. Justice Minister Dominique Perben had said immediately after the marriage that it was null and void. The Interior Ministry suspended local Mayor Noele Mamere for conducting the ceremony following warnings by Prime Minister Jean-Pierre Raffarin. ... The marriage stirred controversy in France, where the law allows civil unions between homosexuals although gays say this puts them at a disadvantage in terms of tax, inheritance and adoption rights. more posted by Eve at 3:36 PM | link 0 comments
GAY MAN HAS TROUBLE GETTING PASSPORT UNDER NEW MARRIED NAME: From the Associated Press
Getting married to his partner of 23 years is proving easier for a Springfield man than obtaining a passport. Donald Henneberger recently received a letter from the National Passport Center in Portsmouth, N.H., denying his request for a name change on his passport. The center said it would not recognize a marriage license for a same-sex couple as proof of a name change. Ironically, the center addressed the letter to "Mr. Henneberger." Henneberger, formerly Donald Smith, married his partner Arthur Henneberger in May, when same-sex marriages became legal in the Bay State. On the marriage license the couple checked a box that automatically changes the last names of the partners to whatever they request. The name change occurs at the cost of the marriage license, which in the case of the Hennebergers was $15. The letter from the National Passport Center cites the federal Defense of Marriage Act, which states a marriage can only be between a man and a woman, and a spouse can only refer to a person of the opposite sex. Donald Henneberger said he had no trouble with the Social Security Administration, another federal agency, when he requested a card in his new name, reported The Republican of Springfield. The couple now has gone to Probate Court to get further proof of Henneberger's name change. more posted by Eve at 3:33 PM | link 0 comments
Monday, July 26, 2004
LESBIAN MOTHERHOOD: A SPIKE LEE JOINT: From the New York Blade
When Spike Lee's new film "She Hate Me" opens on Wednesday, July 28, viewers will have the chance to see 19 self-identified lesbians, most of them women of color, on the big screen. This is a huge step, certainly, but is it a positive one? Already causing a stir within the queer community, the film is sure to provoke viewers of all persuasions--but especially lesbians--with its over-the-top queer plotline. "She Hate Me" tells the story of John Henry "Jack" Armstrong (Anthony Mackie), a buppie ruined by an Enron-type scandal, who agrees to inseminate his ex-girlfriend, Fatima (Kerry Washington), now a lesbian, and her partner, Alex (Dania Ramirez), in exchange for cold hard cash. Soon, Jack finds himself in the enviable position of servicing wealthy (and gorgeous) lesbians. The film follows Jack as he impregnates 17 other women, while getting more deeply entangled in the lives of the glamorous-looking Fatima and Alex. Viewers, meanwhile, are treated to two lesbian sex scenes and a montage of Jack having sex with several women, which is played up for laughs as they navigate this unfamiliar territory. ... Cavanah does praise the film's ending, which shows a reconciliation among the major characters, including Jack's father. She said the last shot "was one of those instances when a film refuses to bend to the director’s will and instead is true to life. Jack, his father and the two lesbians on the beach with their babies looked so much like what many alternative families look like, it could have been an ad for lesbian families." Taormino agrees with this more progressive take. "At the very end of the film, Spike purposely leaves the Jack-Fatima-Alex relationship ambiguous," she said. "It's clear that the three are all co-parenting the kids, and Fatima and Alex are very much a couple. But it's not clear what their relationship to Jack is. To me, the end is a radical vision of our future, a future where the heterosexual nuclear two-parent family is not the dominant model." more posted by Eve at 5:00 PM | link 0 comments
IS THE NY TIMES A LIBERAL NEWSPAPER?: Daniel Okrent, NYT ombudsman
...I'll get to the politics-and-policy issues this fall (I want to watch the campaign coverage before I conclude anything), but for now my concern is the flammable stuff that ignites the right. These are the social issues: gay rights, gun control, abortion and environmental regulation, among others. And if you think The Times plays it down the middle on any of them, you've been reading the paper with your eyes closed. ... The gay marriage issue provides a perfect example. Set aside the editorial page, the columnists or the lengthy article in the magazine ("Toward a More Perfect Union," by David J. Garrow, May 9) that compared the lawyers who won the Massachusetts same-sex marriage lawsuit to Thurgood Marshall and Martin Luther King. That's all fine, especially for those of us who believe that homosexual couples should have precisely the same civil rights as heterosexuals. But for those who also believe the news pages cannot retain their credibility unless all aspects of an issue are subject to robust examination, it's disappointing to see The Times present the social and cultural aspects of same-sex marriage in a tone that approaches cheerleading. So far this year, front-page headlines have told me that "For Children of Gays, Marriage Brings Joy," (March 19, 2004); that the family of "Two Fathers, With One Happy to Stay at Home," (Jan. 12, 2004) is a new archetype; and that "Gay Couples Seek Unions in God's Eyes," (Jan. 30, 2004). I've learned where gay couples go to celebrate their marriages; I've met gay couples picking out bridal dresses; I've been introduced to couples who have been together for decades and have now sanctified their vows in Canada, couples who have successfully integrated the world of competitive ballroom dancing, couples whose lives are the platonic model of suburban stability. Every one of these articles was perfectly legitimate. Cumulatively, though, they would make a very effective ad campaign for the gay marriage cause. You wouldn't even need the articles: run the headlines over the invariably sunny pictures of invariably happy people that ran with most of these pieces, and you'd have the makings of a life insurance commercial. This implicit advocacy is underscored by what hasn't appeared. Apart from one excursion into the legal ramifications of custody battles ("Split Gay Couples Face Custody Hurdles," by Adam Liptak and Pam Belluck, March 24), potentially nettlesome effects of gay marriage have been virtually absent from The Times since the issue exploded last winter. The San Francisco Chronicle runs an uninflected article about Congressional testimony from a Stanford scholar making the case that gay marriage in the Netherlands has had a deleterious effect on heterosexual marriage. The Boston Globe explores the potential impact of same-sex marriage on tax revenues, and the paucity of reliable research on child-rearing in gay families. But in The Times, I have learned next to nothing about these issues, nor about partner abuse in the gay community, about any social difficulties that might be encountered by children of gay couples or about divorce rates (or causes, or consequences) among the 7,000 couples legally joined in Vermont since civil union was established there four years ago. more posted by Eve at 4:54 PM | link 0 comments
DEMS TO VOTE ON PRO-GAY PLATFORM; DOES NOT ENDORSE SSM: From 365Gay.com
Delegates to the Democratic National Convention this week will be asked to endorse the party's most pro-gay platform ever, but one which stops short of supporting gay marriage. But, while it does not call for equal marriage rights, it does not oppose the idea either. "We support full inclusion of gay and lesbian families in the life of our nation and seek equal responsibilities, benefits, and protections for these families," the draft platform that was worked out earlier this month. The draft also condemns amending the US Constitution to ban gay marriage. "In our country, marriage has been defined at the state level for 200 years, and we believe it should continue to be defined there." ... But some gay activists disagree, accusing the party of cowardice in its go softly approach to same-sex marriage. Don't Amend, the group created to fight the Federal Marriage Amendment will demonstrate at a gala being held tonight by a number of LGBT civil rights groups including the Stonewall Democrats in a Boston club. ... "Rather than forthrightly saying that the civil rights of millions of Americans should be defended, most Democratic politicians have treated our equal marriage rights as at best, an unfortunate 'diversion' in their election campaigns," said Andy Thayer, National Action Coordinator for Don't Amend. more posted by Eve at 4:49 PM | link 0 comments
THE OTHER MOTHER: From the New York Times Magazine
...Something in the eyes of one twin, in the curve of her smile, resembles K. The dark curls on the other are identical to K.'s brother's. And no wonder: K. provided the eggs for their conception. Those eggs were fertilized with anonymous donor sperm in vitro and implanted into her partner's uterus. On that much the two women agree. They also agree that they were in love at the time and for nearly six years were immersed together in the sweet banality of child-rearing. They even agree that on the day K. began injections to stimulate her ovaries at a San Francisco infertility clinic, she signed a consent form, which, among other things, waived her parental rights. Where they differ is over the meaning of that document, whether it trumps both genetics and K.'s personal relationship with the girls. E. says that her daughters have just one mother. K. insists that they have two; she has gone to court to prove it. When I met K., a county judge had ruled against her petition to be recognized as a parent, and she was waiting for a decision from the state court of appeals. She hadn't seen the twins, who were living in Massachusetts, in a month, and then only for eight hours. For her, the issue was simple: she wanted her daughters back. But in this age of conceptions that can be simultaneously multipartied and immaculate -- using egg donors, sperm donors, embryo donors, surrogates, even posthumous sperm -- defining parenthood has become dizzyingly complex. For gay parents, who don't have the same legal protections as heterosexuals, the issue is even more complicated. Cases like K.'s will decide their future, determining what rights, if any, they and their children will have. ... Every month they went through a cycle of hope and despair. By December 1994, they were exhausted. E. began a round of in vitro fertilization, but she didn't produce any viable eggs. Meanwhile, K.'s fibroids had become excruciating; she needed to have her uterus removed. Her ova were fine, but it was unlikely that she would ever bear a child; E.'s eggs were failing, but her womb was healthy. The director of the clinic sat them down. ''Have you ever considered taking K.'s eggs and using E.'s uterus?'' she asked. Egg donation was still rare; neither woman had considered it. ''Suddenly we thought, Oh, my gosh, this could really happen!'' K. says. ''It was like a miracle. It was like two miracles.'' E. says that she was nervous about using K.'s eggs -- she agreed to do it only if she would clearly be the sole legal mother. The couple's relationship was still new, and she didn't want to end up in a custody battle. If their love held, she told K., she would consider a second-parent adoption in five years. E. says that K. agreed to that. K. denies that she accepted those terms. ''Our only agreement,'' she says, ''was that we were domestic partners, we were going to have children together and we were a great team.'' K. says she believed that her partner's only hesitation was that their child might resemble K., forcing E. to confront her mother with her sexuality. E.'s mother knew that her daughter was gay, but she didn't acknowledge it, and E. didn't press the issue. K. started injections of Perganol in the spring of 1995. Before the first shot, however, a clinic employee gave her a four-page consent form on a clipboard. E. says that they had gone over it weeks before. K. says that it was the first time she had seen it and that she was given only a few minutes to scan it. The form explained the drugs she would be given and the egg-retrieval surgery. It listed the ways the cycle might go wrong and the risks to her at every stage. All things she already knew. It also, in three places, waived her rights to the eggs or to any children resulting from them. K. says it seemed obvious that the form was meant for anonymous donors, not for a live-in lover. (The clinic later stopped requiring lesbian couples to sign it.) One section included the phrase ''I agree not to attempt to discover the identity of the recipient.'' Could K. have challenged the language? Could she have crossed sections out? If so, it didn't occur to her at the time. ''I believed I had to sign the form to do the procedure,'' she says now. ''It was something for the clinic -- it wasn't anything between my partner and me. We were having a family. I look back on that now, and I think, Oh, my God.'' The idea that parenthood is a cultural creation conferred not by biology but by choice isn't new. It's the premise behind adoption. ''Once you have legalized adoption, that's the end of the picture in terms of genetics,'' says Leonard Glantz, professor of health law at the Boston University School of Public Health. ''It's a very broad statement of social policy by legislature that genetics and parenthood are different issues.'' The decline in marriage and the rise of divorce have transformed the family crucible into a melting pot of half-siblings, stepsiblings, parents and stepparents. Still, even in the most mix-and-match household, there have been three essential categories of parent: biological, adoptive and step. But reproductive technology is upending those rules, creating real-life versions of the old novelty song ''I'm My Own Grandpa.'' How do we legally categorize a woman who gives birth to her own sibling? Or mothers who are akin to fathers, providing gametes but not gestating their offspring? What happens in divorce when a man denies paternity of a child his wife conceived, with his consent, using donor sperm? In one mind-bending California case (most of the significant cases have emerged from that state), a couple used a donor egg and donor sperm to create an embryo that was then gestated by a surrogate. One month before the baby was born, the couple split up, and the husband refused responsibility for the child. A lower court found that the girl -- whose creation involved five separate adults -- had no parents whatsoever. (The decision was later overturned, and the divorcing couple were declared her mother and father. The mother got custody, and the father was ordered to pay child support.) As cases involving third-party reproductive technology have grown more common, courts have come to rely on the intent of the parties as a tiebreaker. In another landmark California case, a couple used the wife's eggs and the husband's sperm to create an embryo that was gestated by a surrogate who signed away her parental rights. The surrogate later sued to be named the mother of the child. Each woman claimed to be the baby's biological mother, and strictly speaking each was, but the court found that the woman who intended to create a child -- in this case the one who provided the egg -- was the true parent under the law. The trouble is that, as with K. and E., by the time a couple gets to court, acrimony and regret can obscure intent. In that way, K. and E.'s case is like those of hundreds of gay couples who did not or could not pursue second-parent adoption. Typically, however, only one partner is the biological (or adoptive) parent; the other relies on the evolving notion of ''psychological parenthood.'' Some states, like New Jersey, recognize a second mom or dad who wiped runny noses and helped with homework -- who had a clear parental role regardless of the actual legal relationships. In those places, K. might have had an easy case. Other states, like New York, side with birth mothers regardless of what a gay couple's intent may have been. Unfortunately for K., she lives in California, which in a 1991 court decision held that acting as a child's parent -- even from birth -- doesn't make you one. In that case, a lesbian couple had brought up two children together, though only one woman was the biological mother. When they broke up, each took a child. That informal arrangement fell apart three years later when the nonbiological mother asked that they share custody of both. The biological mother objected, and they landed in court. Although they had initially intended to bring up the children together and the child who had lived with the nonbiological mother wished to remain with her, the nonbiological mother was barred from seeing either child again. In a final, freakish twist, the biological mother later died in a car crash, and the nonbiological mother was named the children's guardian. Some courts consider psychological parenthood a fuzzy, potentially dangerous concept. What would stop a stepparent, or even multiple stepparents, from suing for custody? Should anyone who is deeply involved in the day-to-day workings of a child's life be able to lay legal claim? Nancy Polikoff, a professor of law at American University and an expert on laws relating to gay parenting, argues that that won't happen. ''The courts that have ruled that way have tried to be very careful about how they fashion a test, so that, for instance, a grandmother wouldn't be able to claim parental rights,'' she says. ''You have to show that you have a parental relationship to the child and that the person with the legal rights intended for you to be a real parent.'' What's more, Polikoff adds, that relationship is usually obvious. ''The children are fully incorporated into the extended family,'' she says. ''They look to the entire world, and most especially to themselves, like they have two parents.'' ... During the pregnancy, E. seemed troubled by K.'s role in the conception. ''These children really aren't mine,'' she would tell K., who says that that's why she agreed to keep her role in the girls' conception secret, at least until they were born and the couple saw a therapist. Still, K. wasn't concerned. She says that she had no reason to be: when they broke the news to K.'s father, E. told him, ''You'll be lucky -- you're going to be a grandfather twice.'' ... Increasingly, K. lived in fear; her core connection to her children was in jeopardy. She pressed -- even begged -- her partner to come clean about the childrens' conception and to pursue a second-parent adoption if necessary. E. resisted. Their relationship became defined by, and ultimately reduced to, the struggle to stake out their motherhood. When the girls were 5, K. says, E. disappeared with them for three days. K. was so upset when they came home that she defied her partner: that night at bath time she revealed to the girls how they were related to her. ... Nancy Polikoff, the law professor, agrees. If K. had been a man ''donating'' sperm to his live-in lover, she says, and they had brought up the resulting child together for six years, ''the court would have had no trouble saying that child has one mother and one father, regardless of what the couple initially decided. Courts are very focused on that model and go to great lengths to enforce it.'' If K. could have discreetly stepped into the bathroom and come back with a dozen turkey-baster-ready eggs in a jar, any prenatal agreement between her and E. would also have been invalid. While men who donate through medical facilities in most states are not considered fathers (a practice that was established to protect infertile married men), a guy who offers his sperm to a friend can later claim paternity regardless of what he may have signed. In one Minnesota case, a lesbian couple drew up an exquisitely detailed contract for a sperm-donating acquaintance, which relinquished his paternity but allowed visitation. Several years later, the man changed his mind and sued to become the child's legal father; the court allowed it, declaring the nonbiological mother's adoption of the child fraudulent in the process. Men, it turns out, cannot sign away their paternal rights and obligations based solely on the delivery method of their semen. ... In May, an appeals court upheld the lower court's ruling. Under California law, the judges wrote, the natural mother is the woman who intended to procreate. They ruled that the form K. signed was binding and agreed with E.'s view that she was the intended parent. Had K. adopted the children, it would have been different. They also ruled that K.'s psychological relationship to the girls was immaterial: to recognize it would threaten the rights of any parent who encouraged a bond between her child and a new lover. Like the lower court, the judges presented their findings with some regret, acknowledging that their decision on who was the parent could not be based on the best interests of the children. In fact, they wrote, ''the interests of the children will be 'disserved' by the loss of a loving mother figure.'' more posted by Eve at 4:32 PM | link 0 comments
SSM AND WASHINGTON GAY POLITICAL COMMUNITY: From the New York Times
...The election-year fight over gay marriage has altered the gay scene here in ways that have left some in the community--most notably gay Republicans--stunned and even fearful. Under intense pressure to separate their gay consciousness from their broader political identity, gay and lesbian conservatives are facing stinging ridicule in the very neighborhoods, bars and restaurants that were once unquestioned safe zones. In recent weeks Lynden C. Armstrong, administrative director for Senator Pete V. Domenici, Republican of New Mexico, an opponent of gay marriage, has been called "a Jew working for Nazis," and "a gay Uncle Tom." During a recent dinner at a Washington restaurant, a friend loudly berated Mr. Armstrong in front of other patrons. He was even confronted about his political allegiance during a weekend getaway in Rehoboth Beach, Del., again, by people he considered friends. "I don't feel like I'm being attacked by anyone in my office," said Mr. Armstrong, 33, who is also co-chairman of the Gay, Lesbian and Allies Senate Staff Caucus. "The attacks have come from other gays and lesbians, and that's hard. It's very hard for me to understand how they can do that. Most people know how difficult this all is for all of us." The tension experienced by Mr. Armstrong and others has been ratcheting up since February when President Bush formally endorsed a constitutional amendment banning same-sex marriage. But it has reached fever pitch in the past two weeks, since Mike Rogers, a gay activist in Washington, began posting on the Internet the names of gays who work for lawmakers supporting the amendment. "It's about exposing hypocrisy wherever we find it," Mr. Rogers said. Mr. Rogers said his targets are bipartisan. But so far only the names of Republican staff members have been posted. In coming days, he said, he plans to add the names of gays who hold senior positions within the administration and the Bush presidential campaign. The outing campaign, as it has been dubbed, has taken on a life of its own. John Aravosis, a political consultant who has encouraged the campaign, said he recently received a call from someone offering to secretly photograph the gay son of a prominent Republican woman. On Friday, The Washington Blade, a gay newspaper which had run articles about Mr. Rogers's Web site, ran an independently reported article detailing the gay life of a Republican political consultant in Florida who was not openly gay in his professional life. The article defied an unofficial but generally accepted journalistic practice of not disclosing a person's sexuality against his or her wishes. Chris Crain, executive editor of The Washington Blade, said there were heated exchanges among editors and reporters over running the article. "Some of the people involved in all of this are friends," Mr. Crain said. "But we wouldn't stop to think about whose feelings we were hurting in almost any other area of journalism. And in most cases, these aren't people who are struggling with being gay. These are people who are leading double lives. I don't think it's the obligation of any media to protect double lives." ... The debate within the wider gay political community splits even more finely among gay Republicans, many of whom are struggling with how to stay true to their beliefs. Chris Barron, political director for the Log Cabin Republicans, a national gay conservative group, condemns the outing campaign. But he is also adamantly opposed to the push against gay marriage by prominent figures within his party. He said that his organization may not endorse Mr. Bush for re-election and that he has qualms about how to vote in November. He has a responsibility to stick with the party, he said, to influence change from the inside. "I plan on having the Gary Bauers and Pat Robertsons leave the party before I do," said Mr. Barron, 30, speaking about two prominent figures from the party's most conservative branch. more posted by Eve at 3:21 PM | link 0 comments
TWO BATTLES OVER GAY MARRIAGE, TWO DIFFERENT OUTCOMES: From the Boston Globe
As the gay marriage issue erupted nationally this spring, elected officials favoring same-sex marriage in Oregon and Washington adopted contrasting strategies in the pursuit of their goal so far with sharply different political consequences. In Oregon, where in March supporters of gay marriage pushed forward aggressively by issuing licenses to same-sex couples in the state's largest and most liberal county, a powerful political backlash has developed that could lead to the adoption of a constitutional amendment barring same-sex marriage. In Washington, proponents moved more cautiously, inviting gay advocacy groups to sue to overturn existing marriage laws, and the resulting political fallout has been far more muted. ... But the political reaction [in Oregon] has been strong. Supporters of traditional marriage, working through a network of churches, submitted on June 30 a record 244,587 signatures backing a constitutional amendment barring same-sex marriage, well over twice the number required to put the issue before voters on the November ballot. "It's been quite a reaction," said Tim Nashif, spokesman for the Defense of Marriage Coalition, which collected the signatures in only five weeks. "We went from zero to marriage in an hour," he said, ascribing the intensity of support for a constitutional amendment to the lack of public debate before the commissioners pressed forward. "They tried to bully the process." A majority of Oregon voters disapprove of gay marriage, according to a March poll conducted by Portland-based independent pollster Tim Hibbitts. "I found a 3-to-2 majority against," he said. "We're not radically different from the rest of the country. There was no huge groundswell of support for gay marriage outside Multnomah County." Even Oregon gay-marriage advocates acknowledged they were taken aback by the level of support for a constitutional amendment. "We were really surprised at the number of signatures they turned in," said Rebekah Kassell, spokeswoman for Basic Rights Oregon, which pressed the commissioners to begin issuing licenses and which plans to raise $3 million to fight the proposed amendment. "This is the fight of our lives here." ... In Washington, by contrast, where state law clearly forbids gay marriage--the Legislature passed the Defense of Marriage Act in 1998--proponents have moved incrementally, crafting two lawsuits they hope eventually will result in a state Supreme Court judgment supporting gay marriage. In early March, as gay couples lined up to marry in Portland, Ron Sims, the executive of King County, which includes the liberal enclave of Seattle and its suburbs, responded to intense pressure by constituents who support same-sex marriage by publicly refusing to issue marriage licenses while privately inviting gay-marriage advocates to sue the county in an effort to overturn the law. In a meticulously planned exercise in political theater designed to invoke, and reverse, the imagery of the civil rights movement, Sims, an African-American, on March 8 briefly barred the way of six carefully selected couples approaching the licensing office door before inviting them into the building. Inside, each asked for and was denied a marriage license. Sims then joined gay-marriage advocates at a news conference afterward, where representatives from the Northwest Women's Law Center and Lambda Legal, a gay rights group, announced that they were suing Sims and the county on behalf of the couples. "When I was a kid, I remember Governor [George] Wallace [of Alabama] standing at the door with his arms folded. It was important to me to open the door to these couples seeking to be married," Sims said in an interview. "We felt our strategy in the long run was the most sensible strategy. We were able to say, 'Let the courts interpret the constitution in the state of Washington.'" more posted by Eve at 3:11 PM | link 0 comments
CHRISTIANS DEMONSTRATE OUTSIDE CITY HALL AGAINST GAY RITES: From the New York Sun
Hundreds of members of Christian churches from the New York metropolitan area gathered yesterday at City Hall to rally against what their leaders say is a growing assault on traditional marriage. Some even said "I do"--again. The rally, which included members of Chinese and Latino congregations, was held partly as a show of strength by Christian pastors who strongly oppose same-sex marriage and who say they can mobilize ten of thousands of voters in New York, Connecticut, and New Jersey. ... Rev. Mattera said the coalition was forming a political action group led by bishops, pastors, and others. He vowed to fight against "redefining marriages or watering down [marriage] with domestic partnerships." The event was a broad follow-up to a similar event held in March at City Hall during which the coalition called for protecting "biblical" marriage, defined as the union between a man and a woman. Yesterday, a much larger crowd stood for hours at a stage set up on Broadway to pray, cheer, and listen to revival-style music. Dozens of married couples also came to renew their vows on a day dubbed "Traditional Marriage Renewal Sunday." ... Meanwhile, Rev. Mattera urged the crowd to protect marriage by resisting adultery and divorce, and the gathered clergy to provide premarital counseling to their congregations. He also repeated his call for political activism, saying that the Constitution does not provide for separation of church and state. "The church is out of the closet with regard to society," he said. "Our focus will also be on earth." [I don't understand how their online edition works, so this is all you get, folks. --Eve] posted by Eve at 3:07 PM | link 0 comments
SSM LAWSUIT IS A LONG SHOT, LEGAL EXPERTS SAY: From the St. Petersburg Times
Two women married in Massachusetts want their union recognized elsewhere. Paula Schoenwether and Nancy Wilson have been together for 27 years, through job changes and parents dying. On July 2, they married in Massachusetts. Last week, the two Bradenton women filed a federal lawsuit in Tampa asking a judge to force the state of Florida and the federal government to legally recognize their marriage. The lawsuit, the first of its kind in the nation, hurls Schoenwether and Wilson into an impassioned and polarized debate. President Bush, most members of Congress and state legislatures, and most Americans oppose same-sex marriages. And the law, at least in this case, does not appear to be on the women's side. Andrew Koppelman, a professor of law and political science at Northwestern University in Chicago, said the suit "does not have a leg to stand on." "I am a defender of same-sex marriage," he said. "I have every reason to want this couple to win. But this particular case sounds like a sure loser." ... The lawsuit filed by Schoenwether and Wilson challenges the 1996 federal Defense of Marriage Act and a similar law enacted a year later by the Florida Legislature. Both acts define marriage as a legal union between a man and a woman. The federal act adds that no state is required to recognize same-sex marriages performed in other states. And Florida's act says the state will not recognize same-sex marriages no matter where they were performed. The lawsuit bases some of its arguments on the full faith and credit clause of the U.S. Constitution, which dates to the days when a young nation was reconciling the laws of the colonies. The clause says states should honor the public acts of other states. Because Massachusetts legally sanctions same-sex marriages, "all the other states should be constitutionally required to uphold the validity of the marriage," the lawsuit states. It's not that simple, legal experts say. Historically, the full faith and credit clause has applied to judicial decisions, not legislation, said Koppelman, the Northwestern law professor. A Florida resident, say, loses a lawsuit and has to pay $1-million. Even if that person flees Florida, the full faith and credit clause makes that $1-million judgment enforceable anywhere in the country. The federal courts have also made it clear that states do not have to acquiesce to everything another state might do. States can follow their own laws when it comes to public policy. States do generally honor the marriage laws of other states. Florida, for instance, sets a minimum marriage age of 16, and then only with a parent's consent. But a 14-year-old Florida boy could travel to Massachusetts, which allows 14-year-olds to marry, and get hitched. Florida would likely recognize that marriage. But think of that as a courtesy, legal experts say, not something the U.S. Constitution compels the states to do. "A state need not recognize a marriage that violates its own public policy," said Cass Sunstein, a law and political science professor at the University of Chicago. "There has long been a public policy exception to the full faith and credit clause." The lawsuit also claims that the federal and state defense of marriage acts violate Schoenwether and Wilson's constitutional rights to equal protection under the law and the implicit right to privacy. Sunstein acknowledges federal courts could say that just as discrimination on the basis of race is unacceptable, so is discrimination on the basis of sexual orientation. "It's not unimaginable sometime in the future," he said. "However, it would be very surprising if federal judges declare this to be the law of the land any time soon." more posted by Eve at 3:00 PM | link 0 comments
|
||||||||||
 |
|
home | marriagedebate.com | resources | about imapp | contact |
|