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 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."
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?
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
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
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
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 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)
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.
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
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!
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
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
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
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
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
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 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 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."
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.
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
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
DUTCH DEBATE: Lucia Liljegren replies to Stanley Kurtz...
...in a vast long post I haven't had a chance to read yet.
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
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 | ||||||||||
