A WINDING PATH TO GAY MARRIAGE: New York Times editorial

...This week's decision found that a mayor could not be allowed to pick and choose among the array of state laws, deeming some not worthy of enforcement. Nor, the court carefully hypothesized, may a mayor accede to constituents' counterpressures by ignoring the limited domestic-partner protections already on the books to benefit gay couples. Should the state ban on gay marriages be judicially overturned as unconstitutional, same-sex couples would then be free to enter valid marriages, the court emphasized. ...

The San Francisco decision--which somehow drew no new conservative outcries against "activist judges"--should be seen as but a bump on the way to progress. Just as California was the first state to strike down its own laws against interracial marriage, we expect that it will ultimately find a constitutional basis for the human right to same-sex marriage.

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[David Blankenhorn replies to that last line here. --Eve]

posted by Eve at 5:41 PM | link 0 comments

GAYS AND THE RULE OF LAW: Chicago Tribune editorial

...This was not a ruling against gay marriage. The court stressed that its decision is entirely separate from, and irrelevant to, the question of whether the current ban violates the state constitution. A lawsuit raising that issue is now working its way through the lower courts and could be addressed by the state Supreme Court next year.

No, this case was about something more fundamental: the rule of law. The California legislature had passed legislation barring same-sex marriage and California voters reaffirmed that approach in a 2000 referendum.

Like all laws, this can be challenged in court by those who doubt its constitutionality. And it's entirely possible that this law could be struck down. Mayor Newsom, however, not only took it upon himself to decide that the law is unconstitutional, but insisted he was obligated to institute a contrary policy.

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posted by Eve at 5:37 PM | link 0 comments

JUDGE HALTS LOUISIANA AMENDMENT VOTE: From the New Orleans Times-Picayune

A New Orleans judge halted a planned Sept. 18 vote on a proposed constitutional amendment to ban same-sex marriages in Louisiana, but temporarily suspended enforcement of his order to let the state file an appeal with the state Supreme Court.

Civil District Judge Chris Bruno ruled Friday that the amendment would be kept off the Sept. 18 primary ballot because elections are not being held in all parishes.

Bruno's judgment came just days before Monday's deadline for Secretary of State Fox McKeithen to approve the ballots for printing. McKeithen's spokesman said Friday the state will print the proposed amendment on the ballots, but can cancel the vote on the amendment depending on the outcome of the appeal.

Bruno's ruling was a clear victory, however slight, for opponents of the proposed amendment who had taken the state to court on the grounds that the state Legislature illegally voted to put the amendment on the ballot. In addition, they argued that the amendment would strip gay men and lesbians of rights guaranteed by the Constitution.

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

RELIGIOUS REACTIONS TO CA COURT RULING DIFFER: From the San Francisco Chronicle

Mary Tolbert and Phil Busbee read the same Bible and come out of the same Baptist church, but they did not have the same reaction to Thursday's California Supreme Court decision striking down San Francisco's bid to legalize gay marriage.

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posted by Eve at 5:30 PM | link 0 comments

GAY MARRIAGE BECOMES A SWING ISSUE WITH PULL: Basic round-up from the New York Times

here

posted by Eve at 5:04 PM | link 0 comments

GRATEFUL COUPLES GATHER AT S.F.'S "CHAPEL OF LOVE": From the San Francisco Chronicle

The day after the California Supreme Court voided nearly 4,000 same- sex marriages in San Francisco, a brigade of gay couples singing "Chapel of Love" and other love-themed songs filed through San Francisco City Hall on Friday to express their gratitude and intention to continue fighting for equal marriage rights.

The dozen or so couples -- some in wedding dresses and tuxedos that have become protest outfits de rigueur -- dropped off flowers and official- looking "engagement'' certificates in the clerk's office, where 30 heterosexual couples were listed on the daily marriage schedule. Then they delivered two bouquets of yellow flowers to city Assessor Mabel Teng and sang "For He's a Jolly Good Fellow" as they marched through the chambers of Mayor Gavin Newsom, who ignored state law Feb. 12 and ordered the city clerk to issue licenses to gay and lesbian couples.

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

MARRIAGE DEBATE IN A NEW ARENA: From the Los Angeles Times

With supporters of same-sex marriage losing a major round in the California Supreme Court, the debate seems likely to move to the Legislature, a shift that will pose risks for leaders of both major parties.

Assembly Speaker Fabian Nunez said Friday that the Legislature would take up a bill next year to legalize gay marriage, and that he believed it would pass. ...

Others, however, are skeptical about whether politicians will embrace the controversial matter. "I don't think the Legislature is going to rush into such a divisive issue," said Larry Levine, a law professor at the University of the Pacific. "Not when they can wait for the courts to act." ...

Most Californians do not support gay marriage, opinion polls show. According to a recent Los Angeles Times poll, less than a third of Californians believe same-sex couples should be allowed to marry. The same poll shows that almost half of the people who identify themselves as Democrats support gay marriage while Republicans are overwhelmingly opposed.

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posted by Eve at 4:52 PM | link 0 comments

MORE LINKS THAN YOU CAN SHAKE A STICK AT

in re San Francisco and CA Supreme Court.

here

and here

posted by Eve at 4:39 PM | link 0 comments

ONLY DISCONNECT: Alison Bechdel

["Dykes to Watch Out For" comic. I really liked this one, esp. last panel. --Eve]

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

AUSTRALIAN SSM BAN PASSES PARLIAMENT: From The Age

Prime Minister John Howard has won his fight to ban gay marriage, but faces a possible High Court challenge to the laws.

Labor voted with the coalition in the Senate to pass the marriage amendment bill after an emotion-charged debate.

But Equal Rights Network spokesman Rodney Croome said the bill may be unconstitutional.

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posted by Eve at 4:07 PM | link 0 comments

KERRY BACKS MO. SSM BAN: From the Washington Blade

One day after Missourians overwhelmingly approved a constitutional amendment banning same-sex marriage, Democratic presidential candidate Sen. John Kerry made a campaign swing through the state and lauded voters for approving the measure.

"We support nondiscrimination against our fellow Americans," Kerry said in an interview with the NBC affiliate in Kansas City. "We've always argued that states will be capable of taking care of this by themselves. [The Missouri vote] I think bears out that we didn't need a [federal] constitutional amendment in order to do what's right."

Kerry also said he would have voted in favor of the measure, according to the interview.

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posted by Eve at 4:03 PM | link 0 comments

BLACK GAY COALITION PLACES MARRIAGE ADS: From the Washington Blade

A national group of black gay leaders began placing full-page ads in African-American newspapers in five cities last week, calling on readers to oppose federal and state constitutional amendments banning same-sex marriage.

The group, the National Black Justice Coalition, said the ad represents “the first time an African-American gay and lesbian advocacy organization has ever launched a pro-equality ad campaign in African-American newspapers.” ...

The ad includes statements opposing a constitutional ban on gay marriage by Coretta Scott King, wife of slain civil rights leader Martin Luther King; Rep. John Lewis (D-Ga.), a veteran civil rights leader; and Willie Brown, the former mayor of San Francisco.

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posted by Eve at 3:59 PM | link 0 comments

MCGREEVEY AND SSM: Chris Crain

...Discouraging gays from successful same-sex relationships and not allowing them to marry makes for heartless religious doctrine and counterproductive public policy. Expecting a gay person to change his or her sexual attraction and enter into a "normal," opposite-sex relationship is an exercise in frustration that will almost inevitably lead to great personal pain and humiliation, as the McGreevey story illustrates. And it puts at risk the personal happiness of not only the homosexual, but innocent third parties as well, including the unwitting (or even witting) spouse and children.

If conservatives do not want gays to enter into committed, long-term relationships, then they should accept that every other alternative is less attractive, even to conservatives themselves. Whether like McGreevey, pretending to be straight and courting familial disaster down the road; or by attempting an impossible and empty life of celibacy, or by engaging in promiscuity or serial monogamy, drifting from sexual encounter to sexual encounter--none of these outcomes is healthy for the homosexual or for their loved ones.

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[A different view may be found here, of course... and still a different one here. --Eve]

posted by Eve at 3:56 PM | link 0 comments

OPPONENTS OF GEORGIA SSM BAN TO FILE LAWSUIT: From the Washington Blade

Opponents of a proposed constitutional amendment to ban gay marriage in Georgia said Tuesday they will file a lawsuit challenging the measure, which appears on the Nov. 2 ballot.

Turning to the courts to fight the ballot measure mirrors a strategy employed in Louisiana, where opponents of a similar proposal--which heads to voters on Sept. 18--filed two lawsuits Aug. 6. One of those suits was dismissed on Tuesday; a hearing for the second challenge is scheduled for Friday. ...

Littrell also said that if the measure passes in November, legal groups will sue to overturn it, challenging the ban on several grounds, including arguments that it violates the separation of church and state. Opponents argue the legislation that created the proposed ballot measure was based, in part, on the religious objections to homosexuality by lawmakers in the Georgia General Assembly.

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

GAY MARRIAGES VOIDED, BUT QUESTIONS REMAIN: From Law.com

...The California Supreme Court did what many expected Thursday morning and ruled unanimously that the city of San Francisco exceeded its authority by performing marriages not recognized by state law.

The justices stated no opinion on the underlying question of whether denying same-sex marriages violates the California Constitution. They indicated that issue would be resolved later, in the cases now being brought by same-sex couples who have been denied licenses.

The Supreme Court vote was closer on the related issue of whether the marriage licenses already issued should be invalidated. By a 5-2 vote, the court said the marriages were void from their inception because Family Code §300 "clearly limits marriage in California to a marriage between a man and a woman."

"From a practical perspective," Chief Justice Ronald George wrote, "we believe it would not be prudent or wise to leave the validity of these marriages in limbo for what might be a substantial period of time given the potential confusion (for third parties, such as employers, insurers or other governmental entities, as well as for the affected couples) that such an uncertain status inevitably would entail."

In separate opinions, Justices Joyce Kennard and Kathryn Mickle Werdegar agreed that the city had acted inappropriately, but felt the court didn't need to take the extra step of invalidating the marriages. The court, they argued, should first decide whether laws prohibiting same-sex marriages meet constitutional muster. ...

Werdegar went further by saying that the court had denied "basic fairness" by invalidating the marriages when none of the couples was a party to the suit. "By postponing a ruling on this issue," Werdegar wrote, "we could preserve the status quo pending the outcome of the constitutional litigation. Instead, by declaring the marriages 'void and of no legal effect from their inception,' the majority permanently deprives future courts of the ability to award full relief in the event the existing statutes are held unconstitutional.

"This premature decision can in no sense be thought to represent fair judicial process."

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posted by Eve at 3:25 PM | link 0 comments

S.F. MAYOR'S REACTION TO COURT RULING: From the San Francisco Chronicle

...Newsom pledged that San Francisco would continue a lawsuit challenging the state's ban on same-sex marriage. The court ruled unanimously Thursday that the mayor had overstepped his authority on Feb. 12 when he ordered the city to issue marriage licenses to same-sex couples despite state law that defines marriage as being between a man and a woman.

Since that day in February, the 36-year-old Newsom has ranked among America's best-known mayors. With only two months in office, he scored appearances on "Good Morning America," "Larry King Live" and "Nightline." Then, GQ magazine asked in a profile whether he is the next Bill Clinton, and he and wife Kimberly Guilfoyle Newsom sprawled out for a fashion spread in Harper's Bazaar. Newsweek recently named him one of the nation's top 10 Democrats. And he was the toast of the Democratic National Convention in Boston -- even though he wasn't given a speaking role, and the party is avoiding the same-sex marriage subject on the presidential campaign trail.

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posted by Eve at 3:22 PM | link 0 comments

GAY RIGHTS ACTIVISTS WEIGH TACTICS OF MARRIAGE PUSH: From the Washington Post

The California Supreme Court ruled yesterday that San Francisco Mayor Gavin Newsom was wrong, legally, when he directed city employees to issue marriage licenses to thousands of same-sex couples. But some gay rights activists still believe he was right, politically.

"We saw for weeks on end in California -- and then New Mexico and New York and Oregon -- these parades of real people getting married," said Jon W. Davidson, senior counsel at the gay rights group Lambda Legal. "Even though it's been struck down, it served its broader political purpose: It made concrete and human what was a fairly abstract political discussion before."

Other supporters of the same cause disagreed. Rep. Barney Frank (D-Mass.), who opposed Newsom's approach from the beginning, called it a "strategic mistake" for the mayor to take the law into his own hands. "As a result nobody is married, you get negative headlines and you set people up. There were a lot of people who genuinely thought they were married. I thought it was wrong to lead them on that way," Frank said.

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posted by Eve at 3:14 PM | link 0 comments

A SETBACK, NOT AN END: San Francisco Chronicle editorial

...The court action is a valuable chapter in a continuing debate on same-sex rights. It does undercut San Francisco's bold move by invalidating the same-sex marriages, but it also reminds the public that the courts, not politics, should have the final say. California voters chose in 2000 to define marriage as between a man and a woman, a stance echoed by Missouri voters last week. But judges in Oregon and Washington, along with those in Massachusetts, have sided with same-sex marriage arguments.

Eventually, a ruling from the U.S. Supreme Court will be needed to lift the question out a political mud pit and place it on the higher ground of personal rights and basic equality. That would be the right ending, at last.

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posted by Eve at 3:09 PM | link 0 comments

FATE OF TANGIBLE AND INTANGIBLE BENEFITS A CONCERN: From the Washington Post

Jerry Threet, who works for San Francisco Supervisor Tom Ammiano, said he was extremely let down. The insurance rates on the house he owns with his partner, Seth Ubogy, had gone down several hundred dollars a year, he said, "and a lot of little things, like our AAA membership, got less expensive." Threet said he went on a trip in May to visit Ubogy's family in Texas, and there was no question about a charge for an extra driver on the rental car.

But, like Alfano, Threet said the biggest practical impact for him was acceptance. Threet said he and Ubogy are planning to adopt a child in a year or two.

"My family has never treated Seth like my life partner," he said. "Six years ago, my father wouldn't meet Seth. After we got married, that all changed. It made a big difference to them. That's more important than all those little things."

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posted by Eve at 3:03 PM | link 0 comments

GAY COUPLES' REACTIONS TO CALIF. COURT RULING: From the Los Angeles Times

...In practical terms, the court's decision had little effect on their lives. So Conner was surprised at her emotions when she heard the ruling. ...

The ruling had an unusually large and complex impact at Ackerberg's home in Berkeley. Half she shares with her partner, Kathryn Lybarger, 37. The other half is occupied by two men, James Martelle and Carlos Yanes, whose marriage was also voided.

In the middle of the two households is a bedroom for the two children of the two couples, Jacques, 3, and Rocio 1. Martelle and Yanes are each the biological father of one of the children, Ackerberg and Lybarger each the biological mother of one.

"Initially I approached it in terms mostly of federal benefits ... Social Security, those kinds of things," Martelle, a political scientist at San Francisco State said of his marriage. Some gay men "were even opposed to marriage on principle. Then once we could get married, we rushed to do it."

When the marriage spree began, Patrick Connors, 38, was working "in an office in a cube." But the act of civil disobedience "made me think about my place in history," he said, stroking the hand of his partner, 38-year-old Robert DeKoch, whom he married on Valentine's Day. He has since quit his job and is enrolling in college to study the history of civil rights....

In the end, it wasn't the savings on insurance premiums or the possibility of securing government benefits for a partner that brought real meaning to their briefly legal marriages, couples said. It was the marriage certificate, the titles of "wife" or "husband" or "spouse," the long-awaited acceptance.

Jerry Threet's parents had long resisted even meeting his longtime partner, said the 43-year-old aide to San Francisco City Supervisor Jake McGoldrick. After Threet and Seth Ubogy married, Threet's father invited the couple for a visit.

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posted by Eve at 2:55 PM | link 0 comments

CANADIAN TAX AUTHORITY WARNED CHURCHES TO BE SILENT ON POLITICS: From the Catholic World News

The legal counsel for both the Catholic Church in Canada and the Evangelical Fellowship of Canada were asked to be present at a meeting with the Canada Revenue Agency (CRA) in early March. Janet Buckingham, legal counsel for the Evangelical Fellowship of Canada (EFC), and Jennifer Leddy, legal counsel for the Canadian Conference of Catholic Bishops, were warned by revenue officials that should they become involved in "partisan" political activity during the then-upcoming 2004 federal election they would risk losing their tax-exempt status.

According to the federal agency, to avoid being "partisan" means not addressing issues on which the competing political parties have opposing views. Dawna Lynn Labonte, a media relations officer for the federal Minister of National Revenue, said that not only would churches be penalized for telling congregants to vote for a certain party or candidate, they would also be penalized for coming out strongly on an issue on which the parties were opposed, such as abortion or same-sex "marriage".

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posted by Eve at 2:52 PM | link 0 comments

ATTORNEYS FILE APPEAL IN LESBIAN JOINT CUSTODY CASE: From the Associated Press

...Cheryl Clark legally adopted the girl from China with Elsey McLeod, her live-in partner, posing as her roommate. The two women intended to raise the girl together but ended up in a custody dispute after Clark converted to Christianity and the couple split up.

Last month, the Colorado Court of Appeals upheld the joint custody arrangement handed down by a Denver judge even though Clark's name is the only one listed on the girl's adoption papers. The appeals court said McLeod has become the child's "psychological parent" and that ending or curtailing visitation would put the 9-year-old girl at risk of "emotional harm." ...

"Live in boyfriends, past roommates or anyone else having an emotional attachment to a child could have the same right to make decisions about the child as the child's own fit, legal parent has," [Clark's attorney] Rouse said in a statement. ...

The American Bar Association has said courts in a handful of other states have upheld the rights of people who aren't legal parents but who have cared for children emotionally and financially. The cases involve both same-sex couples and unmarried heterosexual couples.

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posted by Eve at 8:03 PM | link 0 comments

CALIF. TOP COURT RULES AGAINST SAN FRANCISCO SSM: From Reuters

California's Supreme Court annulled more than 4,000 gay marriages in San Francisco on Thursday, finding that the city acted improperly in granting the marriage licenses earlier this year in defiance of state law.

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The ruling (PDF); it's also here (also PDF).

Eugene Volokh comments.

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

JUDGE NOT, UNTIL YOU'VE HAD TO JUDGE GAY MARRIAGE: Susan Nielsen

[In which judges who impose SSM are basing their beliefs on personal experience and greater knowledge and deep noblesse oblige, as philosopher-kings ought, whereas those of us who oppose SSM probably have never even met a person who deviated by a hair from the Desi 'n' Lucy standard of sexual orientation. ...Um, right, I probably shouldn't post when I'm in a bad mood. Consider this op-ed growled-at. --Eve]

...But the truth is, the real cultural divide has little to do with judges. The true divide is between people who've had to confront gay marriage legally or personally, and people who haven't.

Judges simply have to do it in public, in writing, before the rest of mainstream America does. As King County Superior Court Judge William Downing attests, that's not comfortable.

He didn't even want the case.

I called Downing in Seattle last week after he struck down the state's Defense of Marriage Act, a 1998 law that says marriage must be between one man and one woman. I was eager to ask a real live judicial activist what it felt like to foist his big-city views on an unsuspecting nation.

Downing, a respected former prosecutor, set me straight. He was randomly assigned the case. At least 25 other judges in King County could've gotten it, but his number came up. "I was not at all delighted," he admitted.

He discloses this discomfort in his ruling as well. The issue of gay marriage "is, to be frank, a matter too big to be addressed to a lone individual," he wrote. ". . . (This) author would like nothing better than to stop at this point and, with a warm and sincere pat on the back, to send all parties off to the State Supreme Court or the State legislature or both," he wrote.

But he couldn't. So he did his job. He examined gay marriage through the cool and rational eyes of the law. He listened to the stories of the gay people seeking help in his courtroom. He set aside any biases about homosexuality or religion or family.

And he came to this conclusion: Marriage is a civil contract between two adults. It is often sanctified in a house of worship, but the license itself comes from the government, as do the hundreds of accompanying rights and obligations regarding health care, taxes, inheritance, child support, divorce and more.

It is arbitrary for the government to deny gay people the right to marry, Downing concluded.

The conclusion is as audacious today as the idea, two generations ago, that people of different races should be free to marry.

The Washington Supreme Court will review this case before any marriage laws are changed. Still, Downing was roundly condemned by anti-gay-rights groups. In Seattle newspapers the next day, anti-gay-rights leaders called his ruling "a breathtaking leap" and a "shameful power grab by the judiciary."

Some vowed to follow Missouri's lead and amend Washington's constitution.
The backlash is disheartening for gay people and their families and supporters. But it follows the pattern of many civil rights struggles, said Evan Wolfson, a leading gay-rights attorney and author of "Why Marriage Matters: America, Equality, and Gay People's Right to Marry."

A group of people feels treated differently and unfairly under the law. When they can't get help from their legislators or neighbors, they turn to the courts. Case by case, judges begin to agree they deserve the same constitutional protections as everyone else.

A patchwork of rights grows. Public fear and resentment grow, too.
"Some states move toward equality, while some states resist or even regress," Wolfson said Friday while in Portland. "I think this week demonstrated that patchwork."

Wolfson said he expects voters in several states to approve constitutional bans on gay marriage this fall. Oregon, he said, may be one of those states, -- even though 3,000 same-sex couples got married in Multnomah County this spring and the sky didn't fall. ...

This is no judicial activist on a frothing rampage. This is a man who tried to look gay people in the eye and give them a legal reason why they had to go through life alone, without the protections of marriage.

He couldn't do it.

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posted by Eve at 9:17 PM | link 0 comments

STATUS OF SSM LIKELY TO WAIT IN LEGAL LIMBO: From The Oregonian

The license issued by Multnomah County and recorded by the state of Oregon spells it out in black and white: Becky Yarnall and Amanda Wright are married.
In reality, the two Portland women find the legal status of their marriage is gray.

The license enabled Yarnall, 29, to get health insurance through the employer of Wright, 24. Yet when Yarnall gave birth to their daughter, Sophie, in April, the state wouldn't allow Wright's name on Sophie's birth certificate as a parent. To get that, she must adopt Sophie.

Yarnall and Wright and nearly 3,000 other gay and lesbian couples married in the spring are spending their newlywed days in legal limbo.

And the November vote on Measure 36, which would declare only marriage between a man and a woman as legal, won't bring any immediate legal clarity.
If Measure 36 passes, opponents probably will challenge its constitutionality in new lawsuits.

And it's possible, some legal experts argue, that the court could create two groups of gay couples in the state by declaring the existing 2,961 same-sex marriages legal while upholding a ban on future same-sex marriages.

If the measure fails, the Supreme Court of Oregon would still have to rule on a lawsuit that claims the state's marriage law violates the constitutional rights of gays and lesbians. ...

The legal ramifications are more clear if Measure 36 fails. The focus of the debate will shift from the ballot to a lawsuit pending before the Oregon Supreme Court.

Gay-rights supporters argue the state marriage law violates the state constitution's privileges and immunities clause by granting the right to marry only to heterosexual couples.

Opponents argue that traditional marriage between a man and a woman is an exception rooted in society's cultural history. State officials have argued that civil unions -- granting gay couples the same legal rights as married couples -- would satisfy the constitution. ...

It may seem that voter approval of Measure 36 would settle the same-sex marriage debate, but it could complicate it, at least in the short term, lawyers and legal scholars say.

Gay-rights supporters probably would appeal under the state constitution, which prohibits ballot measures that amend more than one section of the constitution at a time.

Challengers could argue Measure 36 would make at least two changes. First, it amends the Oregon Bill of Rights to say only a marriage between a man and a woman is valid.

In addition, challengers might argue that Measure 36 implicitly nullifies same-sex marriages already performed in Portland. If so, the measure would amend another section of the constitution prohibiting laws that retroactively break contracts.

Challenging amendments on grounds they make multiple changes has been successful in recent years.

Since 1998, the Supreme Court has overturned constitutional amendments that enacted term limits, tightened campaign finance rules, required compensation for environmental regulations and changed aspects of the criminal justice system.

Clark said a successful challenge on such grounds would resonate beyond marriage.

"If this is not a single amendment, then nothing is, and the court has effectively killed the ability to amend the constitution by the people," he said.

Opponents of Measure 36 also could turn to federal courts, where gay-rights advocates have won two significant victories in the last decade.

In 1995, the U.S. Supreme Court overturned an amendment to the Colorado Constitution that would have barred local governments from protecting gays and lesbians with anti-discrimination laws. The court said the amendment discriminated against gays and lesbians.

Last year, the court struck down a Texas law that prohibited sodomy between people of the same sex, saying, "Liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

Another approach would be to argue that same-sex marriage bans violate the fundamental right to marry, a concept that the Supreme Court has upheld in at least three different contexts.

In 1967, the U.S. Supreme Court ruled that laws banning interracial marriage discriminated against African Americans. But in a less publicized section of the ruling, the court also said people have a fundamental right to marry, one which cannot be taken away without a compelling reason.

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival," the court wrote, quoting in part from an earlier decision.

Using the same reasoning, the court later struck down laws prohibiting marriage by inmates and by people who owed back child support.

In Seattle last week, Judge William L. Downing cited those decisions, saying that the state had failed to come up with any justification for infringing on the fundamental right of same-sex couples to marry.

"The denial to the plaintiffs of the right to marry constitutes a denial of substantive due process," he wrote.

His ruling is being appealed to the Washington Supreme Court.

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posted by Eve at 8:11 PM | link 0 comments

NO RATIONAL RELATIONSHIP?: Michael Sellitto replies to Maggie Gallagher

Here Maggie Gallagher says:

"As in Goodridge, the judge not only could find no 'compelling' state interest in marriage as the union of husband and wife, but no 'rational relation' to any legitimate state interest."

It's interesting to actually read the text of the decision. What the judge said seems entirely reasonable: same-sex and opposite-sex couples without children or plans to have them are situated identically as far as the state is concerned. Are
they not?

And the corollary: couples with children, or plans to have them, regardless of whether they're same- or op-sex are also identically situated as far as the
state is concerned. The state has an identical interest in ensuring the children are cared for and protected.

In other words, there is no rational reason to treat identically situated couples differently. The fact that some individuals may not like the religion, color or sex of the couples is not a rational state interest.

Regarding children with couples, the judge quotes from the Vermont Supreme Court decision in 1999: "If anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against."

Gallagher's argument that the judge is wrong in saying there is no rational reason to exclude same-sex families from marriage requires us to believe that children with opposite-sex parents get benefits from their parents being married that the state has an interest in, whereas children with same-sex parents would not benefit at all from having married parents. Gallagher thinks that is a rational, logical position?

posted by Eve at 8:02 PM | link 0 comments

SSM AND FATHERHOOD: Michael Sellitto

Regarding this:

Kathleen Parker makes two flawed assertions in her article. First, she argues that same-sex marriage does damage to the fathers' movement by "reinforcing the idea that one parent is disposable."

However, wasn't a major reason the "fathers' rights" movement came about that fathers were being treated as incapable of being good parents and always inferior to mothers in that respect? Being a male was a prima facie case for being an inferior parent.

Successful same-sex parenting by two men, rather than demonstrating that fathers aren't important, demonstrates that men are equally capable of raising healthy children as women are. In other words, men and women should be treated equally as parents. Is that not the goal of the fathers' rights movement?Parker also asserts and assumes that the correlation between single mothers and unhealthy children applies to children with same-sex parents. No evidence or argument is provided to substantiate this assumption.

It is unreasonable to assume, as Parker does, that having a single parent is the same as having two parents of the same sex. Practically speaking, two people have more total time to spend with their children, read to them, help them with their homework, take them to soccer practice, and so on--probably the major distinction between single-parent and double-parent children.

Furthermore, there is no evidence to support the claim that children of same-sex parents will be disadvantaged over children with opposite-sex parents. Rather, the evidence that is available, albeit limited, shows that children with same- and op-sex parents do equally well.

And, of course, we need only look to the long historical tradition of sending boys off to boarding school where they were taught by men and lived with boys--having few interactions with women. It worked for the founding fathers.

posted by Eve at 7:49 PM | link 0 comments

VARIETY REVIEW OF "PATERNAL INSTINCT": David Kuner

I found the line about "sincere interest rather than obligation" depressing, though all too familiar. A sense of obligation is a pretty good motivator, a lot better than "interest" which can, after all, change at a moment's notice. Civilization depends on people fulfilling all sorts of obligations, whether or not they are "interested" in doing so. It's possible to find a great deal of happiness in the fulfillment of one's obligations. What, exactly, is wrong with that, and why do people keep trotting out this tired "obligation vs. interest" issue, in one form or another, as an argument for SSM?

posted by Eve at 7:43 PM | link 0 comments

NO RATIONAL RELATIONSHIP?: David Gillis replies to Maggie Gallagher

Re: "No reason at all, I guess, why just about every known human society tries to bring male and female together in a special relation called marriage."

The judge did not declare heterosexual marriage unconstitutional. No rational basis for a state to discriminate against gays and lesbians under its marriage laws. It's different. Have you noticed that this is what judges routinely conclude when presented with the best arguments on both sides (e.g., state court judges in Hawaii, Alaska, Vermont, Massachusetts, Oregon, Washington)?

Do you think they're all "activist" judges?

posted by Eve at 7:26 PM | link 0 comments

SERIES ON CIVIL UNIONS: Gabriel Rosenberg

part one, excerpts: "A number of occurrences have prompted me to revisit the issue of civil unions. First there was a discussion in the comments here between Mark Miller and me. I had posted about gender discrimination, and Mark implied--I think--that it would not be gender discrimination to have gendered terms, provided legal consequences did not hinge on the term. An example used was a king and queen. A monarchy which referred to the monarch as king if male, and queen if female, wouldn't necessarily be discriminating provided that all the rules and powers were the same. ...So the analogous question with regards to civil unions is would it be acceptable to use 'marriage' as a gendered term referring to a male and female, but 'civil union' to refer to two males or two females with the understanding that regardless of the term the rules and regulations would be the same? Might one even suggest distinct terms to differentiate male-male and female-female unions?

"More recently I was discussing the recent vote in Missouri with some friends and family there. (I grew up in Missouri). There were many with whom I talked who opposed the amendment to prohibit same-sex marriage, but there were also some who supported it. One in particular said I had convinced him that same-sex couples should have the same legal rights, but it was important for him that marriage keeps its gendered definition. This position is not uncommon--think John Kerry--and I have certainly heard it often. Gendered terms seem to the most common, most enduring, and most emotionally tied to us when it comes to familial relationships. That is why I have opined that even with same-sex marriage the words 'mother' and 'father' will not disappear. (Nor do I believe, 'husband,' 'wife,' 'brother,' 'sister,' 'aunt,' 'uncle,' 'bride,' 'groom' or others will vanish--although 'bridegroom' which I prefer for some unknown reason to 'groom' seems to be on the decline). It is also for this reason that I think even many supporters found the replacement of 'bride' and 'groom' on the Massachusetts marriage applications (pdf) with 'party A' and 'party B' to be disturbing. (Personally, I think checkboxes beside each name with 'bride' and 'bridegroom' would have been preferable, simply allowing two brides or two grooms. Part of the problem, I think was the Massachusetts legislature and administration spent more of the six month stay trying to fight the Goodridge decision than figuring out how to best implement the changes.) It has thus been observed that it might be far easier for 'civil union' legislation to be passed. In fact one Connecticut legislator observed that a majority there supported either marriage or civil unions, but the marriage supporters have delayed action in the hopes that marriage itself can get a clear majority."

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part two--the problems with civil unions--excerpt: "...Even before, though, I had noted some problems with civil unions from a policy perspective. Much of the power of marriage comes from our common understanding of the word. Of course this is precisely why some oppose changing the term. I think, however, that it is our understanding of the commitment and obligation involved which is critical when we use the word 'marriage.' If I say that I need to get home to help care for my sick wife it is not understood that the reason it is so important is because we can procreate. Nor do I believe it is recognized that the reason it is important is because it is my masculine duty to care for her. I think people would recognize the same responsibility if it was she who said she must get home to take care of me. Rather it is the understanding that is a duty that comes from marriage. That duty exists regardless of gender. In some aspects there is a legal duty to care for one's spouse, but there is an even wider duty recognized by others. I think if the word 'marriage' is used, then people--both within and outside the marriage--will be more likely to recognize the responsibility it entails because we are already familiar with it. It is in this area that I am most worried about civil unions. Will people recognize the same extra-legal responsibilities in a civil union?"

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part three--what people who support civil unions should do

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

WILL JUDGES BE BARRED FROM PARTICIPATING IN THE BOY SCOUTS?: Eugene Volokh

As blog readers know, I strongly oppose anti-sodomy laws; I tentatively support gay marriage; I think same-sex couples should be allowed to adopt; and I'm generally quite skeptical of government discrimination against homosexuals.
At the same time, I think the anti-gay-rights forces have a very good point when they worry about gay rights interfering with the rights of those who oppose homosexuality. We know that many parts of the gay rights movement aren't just after liberty from government oppression, or even getting equal treatment from the government. They also want to ban private employers and other entities (landlords, places of public accommodation, and others) from discriminating against homosexuals, which is to say to require them to associate with homosexuals.

Many (though not all) in the gay rights movement want to ban private associations, such as the Boy Scouts, from discriminating based on sexual orientation. Most recently, there is now talk of prohibiting judges from belonging in groups that discriminate based on sexual orientation, which may bar them from participating in the Boy Scouts.

The gay rights movement has won many victories, and has influenced many people even where it hasn't (yet) won -- such as in the gay rights debate -- by essentially asking "How does it hurt you?" How does it hurt me that two homosexual adults can have consensual noncommercial sex with each other in their own home? How does it hurt me that they can get married, or adopt children? (One can say that it may hurt their children, but many people, myself included, are skeptical about that.)

But that question ignores those gay rights proposals that would reduce the liberty of others -- and it ignores the way the various proposals are, as a matter of practical politics, interconnected. As a logical matter, it's possible to bar the government from discriminating based on sexual orientation, but to leave private parties free to do so. But as a psychological matter, many people's judgments about what private people (or government officials acting in their private capacity) may do are affected by what the government may do. The more homosexual relationships are legitimized, the more many (not all, but many) people in the middle of the political spectrum on this question will condemn even private discrimination against homosexuals.

The analogy to race discrimination that gay rights advocates often cite is really quite apt here. People who oppose homosexuality are understandably worried that their views will become as stigmatized -- and acting on those views will in many ways become as illegal -- as racist views are now. And one way to fight this possibility is to fight it early, for instance in the marriage debate, rather than to wait until that's lost and the gay rights movement moves even more firmly towards restricting the private sector.

Now of course if one thinks that the law should ban sexual orientation discrimination by private employers, private landlords, and private associations like the Boy Scouts, and that judges and other government officials should be barred from participating in the few heterosexual-only groups that remain, then one would hardly worry about these effects. Also, if one thinks (as I do) that some of the gay rights proposals are good ideas but others (such as interference with judges' ability to participate in the Boy Scouts, or outright prohibition on discrimination by the Boy Scouts) are bad ideas, one might conclude that their benefits outweigh the speculative though not implausible costs that these good proposals might politically enable the bad ones. ...

We might be able to envision a regime of optimal liberty, where the rights of both homosexuals and those who oppose homosexuality are equally respected -- many libertarians, for instance, would do so by distinguishing restrictions on government action from restrictions on nongovernmental action. But even if we can identify a point that we ourselves endorse, that point may as a practical matter be politically unstable, so that if the gay rights movement gets to that point (wherever the point is), it will in practice end up also getting more, and cutting into the liberties of others. And it thus makes perfect sense that those who oppose some of those proposals would fight all of them, precisely because once some are enacted, the others will become politically more appealing.

So the result is pretty sad: Maybe we do have, as a practical matter, a choice between a regime that suppresses the liberties of homosexuals and benefits those who don't approve of homosexuality, and a regime that benefits homosexuals and suppresses the liberties of those who don't approve of homosexuality. Perhaps it's clear that one of the options, despite its flaws, is better than the other; as I said, I strongly support some parts of the gay rights program and tentatively support some others, despite the risks that I identify. But I have to acknowledge that my opponents on this do have legitimate reason to worry about their liberties.

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Follow-up posts here (Do anti-discrimination laws really restrain liberty?) and here (Is discrimination based on sexual orientation relevantly the same as discrimination based on race?).

posted by Eve at 3:06 PM | link 0 comments

BEYOND THE MARRIAGE DEBATE: John Kerry, 1996

In 1996, when John Kerry was one of the few U.S. senators to oppose the antigay federal Defense of Marriage Act, he wrote for The Advocate a passionate column on the civil rights struggle for gay and lesbian equality. That article is reprinted here.

By Sen. John F. Kerry

From The Advocate, September 3, 1996

The misnamed and misguided Defense of Marriage Act (DOMA) is as unconstitutional and unnecessary as it is mean-spirited and malicious. The authors of the bill mistakenly claim that Congress has the authority to allow one state to ignore a legally recognized marriage in another. But the U.S. Constitution is unequivocal on this point: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." ...

Unconstitutional. Unnecessary. Premature. Presumptuous. What is this debate really about? It seems no coincidence that every election year a few politicians gang together for some legislative gay bashing. This behavior panders to the basest instincts of the human condition--scapegoating and ostracizing.

But we are a better nation than that. Echoing the ignorance and bigotry that peppered the discussion of interracial marriage a generation ago, the proponents of DOMA call for a caste system for marriage. I will not be party to that. As Martin Luther King Jr. explained 30 years ago, "Races do not fall in love and get married. Individuals fall in love and get married." This is the essence of the American pursuit of happiness and the core of the struggle for equality. ...

Antigay forces might have their day with the Defense of Marriage Act, but as my friend Rep. Gerry Studds declared on the floor of the House, "We are going to prevail just as every other component of the civil rights movement in this country has prevailed. There is nothing any of us can do today to stop that. We can embrace it warmly, as some of us do; we can resist it bitterly, as some of us do, but there is no power on earth that can stop it."

Gerry has it right. We will win this fight for civil rights. We will win the fight for equal protection under the law. We will win the right for all Americans to live with whom they love without the fear of discrimination and violence. I learned from the struggles of the '60s and '70s that the wheels of progress turn slowly. We must all push together as one powerful force to roll over the obstacles of hatred and bigotry in this country. The strongest menace we face is not DOMA but our own inertia and complacency.

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posted by Eve at 2:52 PM | link 0 comments

SECOND SUIT FILED AGAINST FEDERAL DOMA: From 365Gay.com

A lawsuit was filed Tuesday in Federal Court in Tampa seeking to strike down the federal Defense of Marriage Act. The suit was filed on behalf of a Tampa Bay lesbian couple who married in Canada but whose marriage is not recognized in the US.

Rev. Phyllis E. Hunt and her spouse, Vilia Corvision, were married last month in Toronto. Hunt is the pastor of Metropolitan Community Church, in Tampa, Corvision, is of Cuban descent. They have been together over 11 years.

The couple is represented by Ellis Rubin, who is also representing another MCC Florida minister the Rev. Nancy Wilson, and her spouse Paula Schoenwether, a family marriage counselor. They filed a similar suit last month.

Wilson and Schoenwether have been together for 27 years and were married July 2 in Massachusetts, the only US state where same-sex marriages are recognized.

Rubin who has become the biggest private litigator for same-sex marriage. Rubin currently has five additional suits underway in Florida but these are the first ones challenging the Federal Defense of Marriage Act.

Both DOMA suits name US Attorney General, John Ashcroft, the Regional Social Security Director, the Deputy Internal Revenue Service Commissioner and others.

The suits argue that the federal ban on gay marriage is a constitutional issue, which is why Ashcroft is named as a defendant.

The 1996 Defense of Marriage Act and a 1997 Florida statute that defines marriage as the union between a man and woman violate the equal-protection rights of his clients, Rubin said.

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posted by Eve at 2:50 PM | link 0 comments

WHITE HOUSE PLEDGES TO BACK CATHOLIC GROUP: From the Portland Press Herald

President Bush's top adviser on faith-based programs assured Catholic Charities Maine Thursday that the White House is ready to battle local government when it comes to funding religious groups. Catholic Charities, the social-service arm of the Roman Catholic Church and one of Maine's largest such organizations, is barred from receiving certain federal funds from the city of Portland unless it provides some benefits to same-sex or unmarried partners of employees.

Catholic Charities, after a court battle with the city, has said that it can now apply for the grants without compromising church doctrine opposing gay partnerships and premarital sex.

A faith-based initiative from the Bush administration, however, will see to it that religious groups never feel vulnerable in the federal grant-making process, said Jim Towey, director of the White House's Office of Faith-Based and Community Initiatives.

"Sometimes you see local governments that bully faith-based organizations and basically tell them that they have to compromise their religious beliefs and tenets if they want to partner with government," Towey said in an interview at Catholic Charities' Falmouth offices.

"That may be their prerogative when it's state and local money," he said, "but when it's federal money that raises a whole different set of issues."

"Equal treatment" principles, propelled by executive orders, will apply to 10 federal agencies including the Department of Housing and Urban Development. HUD, whose funds were at the center of Catholic Charities' dispute, finalized its rules June 1 and is studying "what to do when local ordinances discriminate against faith-based organizations like they do here in Portland," Towey said.
Portland City Councilor James Cloutier is not concerned about the possibility of new federal rules.

"We don't have to be concerned about the fairness with which we treat religious and religiously sponsored organizations. That's because we have one rule that applies to everybody: You can't practice discrimination," said Cloutier, who was mayor when Catholic Charities sued the city in March 2003, charging religious discrimination.

A federal judge ruled in February that Portland's ordinance is constitutional but said it did not apply to Catholic Charities' health plan because it is covered by federal law.

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posted by Eve at 2:48 PM | link 0 comments

SEVEN LAWSUITS ATTEMPT TO BLOCK FLORIDA SSM: From the Associated Press

A local county clerk in Florida's Panhandle, backed by a religious rights organization, filed seven lawsuits across Florida Thursday, asking the courts to uphold the constitutionality of state laws limiting a marriage to a man and woman.

Joining Holmes County Clerk Cody Taylor and the Orlando-based Liberty Counsel were more than a dozen notary publics, wedding chapels and churches opposed on legal, moral and religious grounds to same-sex marriage.

"I have a religious view against same-sex marriage and believe that it's wrong," said Taylor, first elected in 1976. "The impact it would have on my office is I could personally be sued, at some point in the future, because of my refusal under Florida law to grant a same-sex marriage license."

Proponents of same-sex marriage have filed numerous lawsuits in federal and state courts across Florida. Most seek to have the Florida law overturned; at least one demands that the government recognize the union of two Bradenton lesbians issued a marriage license in Massachusetts.

The Rev. Nancy Wilson, half of that couple, is a defendant in a federal suit filed by Taylor, Liberty Counsel, Keys Chapel Orthodox Presbyterian Church, Southwest Community Church, three shareholders in a South Florida business and a notary public who also performs weddings.

Another defendant was a subject of the award-winning documentary "Ruthie & Connie: Every Room in the House." Ruth Berman, with partner Connie Kurtz, sued the New York City board of education in 1988 for domestic partner benefits, winning the case five years later. The couple moved to West Palm Beach last year.

A gay rights group is the defendant in a Monroe County suit filed in Key West. In April, Equality Florida assisted six same-sex couples denied marriage licenses in suing the state.

"I certainly don't know what grounds they would have for a legitimate suit against Equality Florida," said attorney Karen Doering, who had not seen the lawsuit.

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posted by Eve at 2:45 PM | link 0 comments

KERRY, EDWARDS HAVE "NO OBJECTION" TO MISSOURI VOTE: From 365Gay.com

Senator John Edwards, campaigning Thursday in Cape Girardeau, said he and running mate John Kerry have "no objection" to this week's vote in Missouri to amend the state constitution to ban gay marriage.

"We're both opposed to gay marriage and believe that states should be allowed to decide this question," Edwards said in an interview Thursday, the St. Louis Post-Dispatch reports.

Kerry said the issue is one of states' rights. Both Kerry ad Edwards oppose amending the US Constitution to stop gays from marrying.

Kerry is already on record supporting a similar amendment to the constitution of his home state, Massachusetts. Both members of the Democratic ticket support giving limited rights to same-sex couples.

On Tuesday, Missouri became the first state since the legalization of gay marriage in Massachusetts to vote on amending its constitution. More than 70 percent of voters supported the amendment.

Louisiana residents are to vote on a marriage amendment Sept. 18. Then Arkansas, Georgia, Kentucky, Mississippi, Montana, Oklahoma, Oregon and Utah are to vote on the issue Nov. 2. There also are initiatives pending in Michigan, North Dakota and Ohio.

Edwards's comments are likely to anger gay rights advocates, but garner support among independent and undecided voters in the South were states rights is an important issue.

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posted by Eve at 2:39 PM | link 0 comments

VA TECH PROFESSOR LEAVES BECAUSE OF "AFFIRMATION OF MARRIAGE" LAW: From the Associated Press

A number of gays and lesbians have begun moving out of Virginia, the result of a new state law that restricts the rights of same-sex couples. The latest to prepare to leave is a biology professor at Virginia Tech University. In a letter to Virginia Tech President Charles Steger, Lynn Adler says she will leave Tech to take a position with the University of Massachusetts in Amherst this fall.

She says she is "sad and sorry" to be leaving Tech, but felt it was necessary because the laws of Virginia make it difficult for her to have a long-term future in the state.

Her partner does not have health insurance working part-time at Tech, and she says the state will not recognize them both as parents if they decide to have children.

She says the last straw was a law passed earlier this year that prohibits contracts between same-sex couples that purport to bestow the obligations of marriage. The law is considered to be the harshest anti-gay measure in the country.

Adler says she was instrumental in bringing over a $500,000 in federal grants to Virginia Tech from the National Science Foundation.

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posted by Eve at 2:34 PM | link 0 comments

ONE LAWSUIT TO BLOCK LA. AMENDMENT VOTE FAILS: From the New Orleans Times-Picayune

One of two lawsuits filed by a political action committee seeking to block the Sept. 18 vote on a proposed state constitutional amendment banning same-sex marriages and civil unions in Louisiana was dismissed Tuesday, leaving groups that oppose the measure scrambling to plot their next move.

A hearing on the second lawsuit is scheduled for Friday at noon before Judge Chris Bruno.

In both suits, filed Friday in Orleans Parish Civil District Court, the Forum for Equality Political Action Committee, along with three individuals, are suing Secretary of State Fox McKeithen, whose office prepared the ballots for the statewide vote, and the city of New Orleans. They argue that the proposition is unconstitutional and say it was illegally passed by the Legislature this spring. Moreover, the PAC claims that such an amendment would be discriminatory by impairing contracts between gay and lesbian partners.

Judge Nadine Ramsey quickly dismissed the first suit Tuesday morning on procedural grounds, saying it should have been filed in Baton Rouge because it addresses the Louisiana Election Code.

After the hearing Tuesday, the PAC attorneys, led by John Rawls, were deciding whether to file a new lawsuit in Baton Rouge or appeal to the state 4th Circuit Court of Appeal. If they decide to appeal, the lawyers would be bound to the relatively speedy timetable that governs challenges to elections -- giving them just 24 hours to file, Rawls said.

Lawyers from Attorney General Charles Foti’s office, which litigated the case for McKeithen, said the proposal should remain on the ballot.

"People should be allowed to vote on it. That’s our position and it will continue to be our position," Assistant Attorney General Roy Mongrue said after the hearing. "The taxpayers are the ones that will be making the call on this. You vote up or down and that’s the core of our government. The people control the process, not some individuals who oppose it."

But Rawls disagreed, saying he still holds out hope that the court will issue an injunction preventing McKeithen from placing the proposal on the September ballot.

"We respectfully disagree," Rawls said. "We think that every citizen has the right to keep an illegal amendment off the ballot and we don’t think we have to go to Baton Rouge to do that."

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posted by Eve at 2:30 PM | link 0 comments

MARRIAGE PROTECTION ACT--MAKING SENSE OF THE NONSENSICAL: Vikram David Amar

People of reason and good faith can disagree about the policy wisdom and/or constitutional imperative of recognizing same-sex marriages. But the way the issue is being dealt with these days on Capitol Hill is, well, pretty embarrassing.

Case in point: The passage - almost entirely along party lines -- by the House of Representatives on July 22 of a bill known as the "Marriage Protection Act (MPA)." The MPA is intended to bar federal courts from forcing a state to recognize same-sex marriages entered into in another state. But as drafted, it does nothing of the sort. Indeed, if enacted it might even lead to more interstate recognition of same-sex marriages. ...

The Marriage Protection Act purports to divest all federal courts--both lower federal courts and the Supreme Court--of the power to resolve any questions that may arise under DOMA. It was apparently motivated by distrust and fear of these courts--in particular, a fear that they will find DOMA to be unconstitutional.

Here is exactly what the MPA says:
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 [that is, DOMA] or this section [that is, the MPA itself].

The bottom line: Federal courts can't even look at "any question pertaining to" DOMA or the MPA. ...

...People who want to use a federal court in one state to enforce a same-sex marriage arrangement entered into in another state won't be raising "any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C"--the phrase used by the MPA. Instead, proponents of out-of-state marriage recognition will be relying on section 1738--the generic provision that requires states to accord full faith and credit to other states--and on the Constitution itself.

For example, take a same-sex couple who married in Massachusetts and then moved to, say, California. The couple would file an action in federal court in California asking the federal court to order California state officials to honor the marriage, because the federal Constitution and 1738 require it.

It is the opponents of gay marriage recognition (in my hypothetical, the California state officials) who need to invoke section 1738C -- DOMA -- as a defense to an action based on section 1738 and the Constitution. But, ironically enough, the MPA will prevent a federal court from entertaining this defense based on DOMA, because that defense would raise a "question pertaining to the interpretation of" the DOMA. But the MPA doesn't prevent the federal court from hearing the rest of the case -- that part urged by the same-sex plaintiffs. So under the text of the bill persons seeking to enforce out-of-state same-sex marriages will have access to federal courts after all.

Notice, in this regard, that the bill ousts federal court jurisdiction over certain "questions"; it does not oust jurisdiction over "cases" in which one party might raise certain questions. An alternative way to draft the MPA might have been along the following lines: "Federal courts lack jurisdiction to hear any case in which a relevant and non-frivolous question concerning the meaning or validity of the DOMA is raised."

Better still -- if Congress really wanted to prevent a federal court from requiring a state to recognize an out-of-state same-sex union -- the MPA should have been written more like the DOMA itself, perhaps something like: "No federal court shall have jurisdiction to entertain a claim that federal full faith and credit principles require the recognition of a same-sex marriage." The way the MPA is written right now, focusing as it does on "questions" of the interpretation and validity of DOMA, the bill leaves the federal courthouse doors wide open.

But even if the House had been more artful in its drafting, the question arises, are opponents of gay marriage recognition well served by cutting federal courts out of the loop? In other words, let us suppose that Congress had effectively prevented all federal courts from dealing with full faith and credit cases in the context of same-sex marriage. Would that have made sense?

Not if you think the federal constitutional amendment urged by President Bush and supported by the most of the same House Republicans who passed the MPA makes any sense. That proposed federal constitutional amendment is premised on the notion that we need national uniformity on the question of same-sex marriage--that on a question this large we don't want to leave things to each of the separate states. And yet if (a more well-drafted version) of the MPA became law, then enforcement of the DOMA would be left entirely to each of the 50 state supreme courts. Some of these state supreme courts might uphold and implement the DOMA; others might invalidate the DOMA as violating the federal constitution. And the MPA would prevent the U.S. Supreme Court from stepping in to provide a national answer to the question whether the DOMA is constitutionally permissible. The disuniformity contemplated by the MPA is 180 degrees counter to the arguments in favor of national uniformity made by the same persons in the House concerning the proposed constitutional amendment.

And why are same-sex marriage opponents scared of federal courts -- as opposed to state courts -- anyway? The majority of the U.S. Supreme Court in Lawrence v. Texas made pretty clear that this Supreme Court -- which controls all federal courts and all courts on matters of federal law -- is not very anxious to mandate the recognition of same-sex marriage under the Fourteenth Amendment. And there is no evidence to suggest that this Supreme Court would likely be more activist with respect to the full faith and credit idea.

Indeed, the only courts so far to recognize the idea of same-sex marriage have been state Supreme Courts -- in Hawaii a few years back and in Massachusetts last year. And yet these state court judges are the persons in whom the MPA's proponents want to place the final word as to the meaning and the constitutional validity of the DOMA? What gives?

Regardless of one's views on the larger legal and social questions surrounding same-sex marriage, the carelessness and intellectual inconsistency exhibited in Congress should be troubling to everybody, even in a contentious Presidential election year.

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posted by Eve at 12:09 AM | link 0 comments

"PATERNAL INSTINCT": Variety review

[It's short, so I'm just posting the whole thing. --Eve]

A Cinemax Reel Life presentation of a Two Spirit Production in association with the BBC. Produced by Craig Harwood, Murray Nossel. Executive producer, Sheila Nevins. Co-producers, Edward Marritz, Doug Block. Directed by Murray Nossel. Camera (color, video), Edward Marritz; editor, Susanne Rostock; music, Hahn Rowe; music coordinator, Brooke Wentz; sound editor, Tony Slocum. Reviewed on videocassette, July 10, 2004. (In San Francisco Lesbian & Gay Film Festival.) Running time: 73 MIN.

Best among a slew of gay-parenting pix currently making gay-fest rounds (alongside ones about gay marriage), Murray Nossel's "Parental Instinct" is a genuinely sweet and poignant chronicle of a gay male couple's anxious first pregnancy --- in conjunction with a surrogate mother. Endearing nature of the personalities involved makes a fine argument for weighing parental suitability on terms more profound than the prospective parents sexual orientation. By docu's end, it's clear this baby is going to have a very, very good home. Broadcast slots beckon.

Manhattanites Erik and Mark have been domestic partners for a decade. Secure in their future together, they (Erik, especially) want to raise a child. Searching the Internet for a willing birth mother, they luck out with Wen, a Maine wife and mother who agrees to bear junior (inseminated via syringe with the boys' seed) for a standard-market-rate fee.

This arrangement soon turns out far more than a strictly business one, however, as all parties become emotionally involved in the process --- including Wen's son and husband, who (like the expectant fathers' parents) are happily very supportive of the whole venture.

Failed conception attempts and an early-term miscarriage make it a very long, sometimes painful wait. But at last newborn Cecilia arrives, in a midwifed wading pool delivery that's joyous and very moving. (Epilogue reveals she's joined 19 months later by sibling Liv.)

Although Wen is a white witch, her Wiccan spirituality is of the low-key, Earth Goddess-honoring type; meanwhile Mark and Erik are the kind of good-humored, open-hearted couple one might wish all prospective parents resembled. Everyone gets along famously --- it's obvious Cecilia's "extended family" will include Wen and kin out of sincere interest rather than obligation.

Jaunty musical choices and a smart pace help keep docu light on its feet, with emotional moments never pushed for effect. Tech aspects are fine.

posted by Eve at 11:51 PM | link 0 comments

"SOLEMNIZING MARRIAGES WITHOUT A LICENSE" CHARGES DROPPED: From the Daily Record of Rochester, NY

[excerpts; this doesn't seem to be online. --Eve]

A New Paltz Town Court judge has dismissed the indictments against two ordained ministers who performed marriages for 13 same sex couples even though the couples did not have marriage licenses.

In People v. Katherine Greenleaf and Dawn Sangrey, the defendants moved to dismiss the charges against them on the grounds the charges were unconstitutional because the couples they married were unconstitutionally denied the ability to secure marriage licenses. The prosecution asserted the defendants violated section 17 of the Domestic Relations Law and advanced two state interests for limiting marriage to heterosexual couples--tradition and procreation.

Judge Judith Reichler disagreed with the prosecution and held, "tradition is not a legitimate state interest and that prohibiting same sex couples from marrying is not rationally related to furthering the state's legitimate interest in providing a favorable environment for procreation and child rearing."

On March 6, the defendants Katherine Greenleaf and Dawn Sangrey, two ordained ministers of the Unitarian Universalist Church, performed marriage ceremonies for 13 same sex couples. The ceremonies took place in New Paltz, NY and the couples did not have marriage licenses.

The defendants are charged with solemnizing marriages without licenses, a violation of section 17 of the Domestic Relations Law (DRL 17). If convicted they face a maximum fine of $250 and/or up to a year in prison.

DRL states a person who performs a marriage without a marriage license is guilty of a misdemeanor. It does not make any distinction between same sex couples and heterosexual couples.

The New Paltz town clerk will not issue marriage licenses to same sex couples based on the New York State Department of Health's interpretation of DRL Section 13. The state interprets the law to only allow marriages between a man and a woman.

The defendants asserted the issue of the constitutionality of same sex marriage is before the court. They claimed the charges they face are unconstitutional because same sex couples whose marriages they performed were unconstitutionally denied the right to obtain marriage licenses.

According to the defendants, criminalizing the "solemnization of unlicensed same sex marriages by ordained clergy unconstitutionally infringes on the exercise of their religion and their religious belief that marriage is a desirable and holy state for all couples, including gay and lesbian couples."

The prosecution asserted the constitutionality of same sex marriages was not the issue before the court. According to the prosecution, the issue before the court was whether the defendants violated DRL 17.

The prosecution offered two state interests for limiting marriage. They are: the "long tradition of political, cultural and religious and legal consensus that marriage is understood as the union of male and female"; and "statutes prohibiting same sex marriages further the state interest of encouraging procreation and child rearing within a marital relationship."

First, Judge Reichler noted the issues of the constitutionality of same sex marriages and whether the defendants violated DRL 17 are "intertwined." ...

The judge turned to the arguments, noting the defendants admitted the state had an interest in regulating marriage. However, they asserted it was unconstitutional for the state to limit marriage to heterosexual couples.

"In order for a statute to survive even the most deferential standard of review for constitutionality (the so-called 'rational basis' test), there must be a rational relationship between the classification adopted and the societal interest it purports to promote, Romer v. Evans, 517 US 620, (1996)," the judge wrote. "Under this standard of review, a statute is presumed to be valid and will be sustained if the classification drawn is rationally related to a legitimate state interest, Cleburn v. Cleburn Living Center, 473 US 432 (1985)."

The judge turned to the state's two reasons for limiting marriage to heterosexual couples--tradition and procreation. She reviewed the traditional definition of marriage and noted the definition of family has change over the years.

"The traditional definition of marriage has also undergone many changes, especially as gender roles have expanded," the judge wrote. "A starting point is found in DRL section 10, which reminds us that 'marriage, so far as its validity in law is concerned, continues to be a civil contract.'"

The judge reviewed the definition of civil marriage, and concluded it was flexible and subject to change. She then reviewed the issue of marriage and religion. ...

"There can be no constitutional rationale for denying same sex couples the right to receive the benefits that are so lavishly bestowed on mixed sex couples," Judge Reichler concluded.

In conclusion, the judge examined other court rulings on the subject at hand."New York's highest court has consistently extended rights and benefits to same sex partners, Braschi v. Stahl Assocs., 74 NY2d 201 (1989)," the judge wrote. "New York statutes have regularly been amended to prohibit discrimination against any individuals on the basis of sexual orientation and to extend rights and benefits to same-sex partners, see Civil Rights Law 40-c; Executive Law 290; 9 NYCRR 4.28 and 5.32; 9 NYCRR 2104.6; 18 NYCRR 421.16(h)(2)."

The judge granted the defendants' motion to dismiss.

posted by Eve at 11:46 PM | link 0 comments

PROFILE OF EVAN WOLFSON: Deb Price

...''Sure it will be scary and painful at times, and surprising and moving at times -- but that's what civil rights movements look like when you are in the middle of them,'' he says calmly of my list of horrors about the backlash over gay marriage.

Right there, he'd be quick to correct me. Not ''gay marriage,'' he'd say, but ''marriage.'' This is a civil rights movement to expand the freedom to marry.

Freedom to marry. Put a .org after that and you'll find Wolfson's cyber-based organization, where he does everything from enlisting celebrity allies like African-American civil rights leader Coretta Scott King to providing a state-by-state calendar of events to help folks know how to go about rolling up their sleeves and pitching in.

But freedom to marry -- a phrase I found hokey before I understood that Wolfson had, characteristically, chosen it carefully -- harkens back to a famous Supreme Court ruling: ''The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,'' the court unanimously declared in 1967, striking down the remaining 16 state bans on interracial marriage -- over the objections of 70 percent of Americans.

As a boy, Wolfson sensed that his feeling of being different somehow meant he'd never marry. Yet it wasn't until 1983 at Harvard Law School that he crafted the first architectural sketch of what is being built before our eyes today. His paper was titled, ''Same-Sex Marriage and Morality: The Human Rights Vision of the Constitution.''

After Harvard, he joined the fledgling gay rights legal team, prodding skittish lawyers to reach for full marriage. He was taken far more seriously after his work as co-counsel in Hawaii led to the first ruling by a trial court in 1996 dismissing an array of arguments against marrying gay couples. Even though voters stopped the clock, Hawaii made the once impossible dream no longer seem impossible. A Vermont court in 1999 ruled similarly against marriage discrimination, leading to ''civil unions,'' or marriage lite. And on this May 17, Massachusetts became the first state to welcome gay couples into lawful matrimony.

With a hand in it all, Wolfson's heard every question: Why now? What about kids? Won't this hurt society? Isn't this a religious issue? How can you compare this to the African-American struggle?

His new book, ''Why Marriage Matters,'' answers such questions and gives readers a glimpse into his crystal ball.

The freedom to marry ''will come to seem natural and inevitable, and we'll come to that place sooner than people think,'' he says.

And when we do, gay couples won't be the only ones singing a happy tune.

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posted by Eve at 11:40 PM | link 0 comments

CUSTODY CASE PUTS CIVIL UNION ON TRIAL: From the Washington Post

It is a painfully familiar story with a modern twist: A young couple fall in love, exchange vows and become parents. They later decide to part, with the custody of the child left for a court to determine.

Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000, merged their last names, and two years later moved from Virginia to this small town in the western part of the state to begin a new life.

Today they are embroiled in an acrimonious tug of war over a 2-year-old girl named Isabella, a case that legal experts say is the most significant custody battle to emerge since same-sex civil unions were established here four years ago and a test of the viability of marriage laws that vary from state to state.

With more than 7,000 gay couples having formed civil unions in Vermont since 2000 and thousands more married in Massachusetts since such unions became legal there in May, what happens to children when such relationships end is an unsettled legal question. Opponents have long argued that relationships sanctioned by some states and not others make for legal chaos and confusion. ...

Lisa Miller-Jenkins, 35, who gave birth to Isabella in Frederick County, Va., in 2002 after becoming pregnant by artificial insemination, is suing for full custody in Virginia, which does not recognize civil unions. Janet Miller-Jenkins, 39, is asking a family court in Vermont, the only state where civil unions are recognized, to award her custody of the child, claiming that Lisa has barred her from seeing Isabella even though under Vermont law she is a co-equal parent. ...

The dispute has mobilized activists on both sides of the gay-marriage issue. Lambda Legal, a prominent gay rights advocacy group in New York, is advising Janet, while Florida-based Liberty Counsel, which opposes gay marriage, is consulting with Lisa.

"This is a shining example of the problems we knew would arise if these things became legal, but couldn't reference specifically before," said Stephen Cable, president of Vermont Renewal, an organization formed amid the backlash against civil unions, known as the "Take Back Vermont" movement.

Cable said that after Lisa contacted his group for help this summer, he helped her find legal representation in Vermont and Virginia. Last month the group sent a six-page fundraising letter to supporters and donors, arguing that Lisa should be entitled to custody because she is Isabella's "natural, responsible and loving mother."

The letter says Lisa is a "former lesbian" and states that "with the help of counselors, church, and [a] caring and Christian brother, she has begun to turn around her life."

Lawyers on both sides said that while it is likely the Vermont court will retain jurisdiction over the custody case, it is unclear whether Virginia will enforce an order based on a civil union law it does not recognize. Under the "full faith and credit" clause of the U.S. Constitution, state courts generally respect and enforce other states' judgments, but there are exceptions. ...

"The principle of one state court enforcing another state court's orders is so enshrined in our legal system that if [it was not enforced], the implications would be severe," said Greg Nevins, a senior staff attorney with Lambda Legal.

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posted by Eve at 12:06 AM | link 0 comments

CONSTITUTIONAL AMENDMENT UNLIKELY IN ILLINOIS: From the St. Louis Post-Dispatch

Despite the stunning success in Missouri of a constitutional amendment banning same-sex marriage, the issue is unlikely to make its way onto the Illinois ballot any time soon, both supporters and opponents agree.

The deadline to get a similar amendment on November's ballot passed months ago. Because of state law, such an amendment couldn't go to the voters until the 2006 general election.

And as long as the Democratic leaders of the Senate and the House stay in power, nothing is likely to change, both sides say. ...

Three proposed amendments -- two in the House, one in the Senate -- failed to make it out of committee in the session that ended last month. So did a Senate proposal that would have changed state law, but not the constitution, to ban same-sex marriage. ...

Unlike Missouri, Illinois voters cannot petition to place a constitutional amendment on the ballot.

The only route for an amendment leads through the General Assembly, where both the House and Senate must pass the measure by a three-fifths majority at least six months before a general election. ...

Grunloh blamed the lack of interest in the amendment this year on the state's budget crisis and said that he expected the General Assembly to give the measure more attention next year.

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posted by Eve at 12:01 AM | link 0 comments

GAY-MARRIAGE FIGHT HEATS UP AFTER WASHINGTON RULING: From the Seattle Times

When it takes up the question of gay marriage, the Washington state Supreme Court will be tackling one of the most significant social issues to come before it in a decade.

If the court upholds King County Superior Court Judge William Downing's ruling to legalize gay marriage, Washington could become the second state--after Massachusetts--to allow same-sex couples to wed.

"All across the country, the people are voting one way and the courts are going another," said Pastor Joe Fuiten, president of the Bothell-based Washington Evangelicals for Responsible Government, which intervened in the King County case in opposition to same-sex marriage. "What we are seeing are very liberal, activist judges out to impose their will on society--whether society wants it or not."

On the other side are people who view the issue as a civil-rights question.
Rev. Monica Corsaro, an ecumenical campus minister at the University of Washington and a steering-committee member of the Religious Coalition for Marriage Equity, said, "I don't think we are redefining what marriage is. Marriage is between two consenting, loving adults that are making a commitment to one another.

"By tradition's sake we've defined it [as] between a man and a woman. That's not what marriage is about."

While Downing's ruling noted that public attitudes toward homosexuality are changing, a majority of Americans still say they oppose gay marriage. In a statewide poll conducted in March for The Seattle Times, slightly more than half the respondents said gay and lesbian couples do not have the right to marry.

Missouri showed that the issue can attract voters to the polls, and some say that in battleground states such as Oregon, it could affect the presidential election. In Washington, it may well resonate as voters prepare to elect a new attorney general who may have to defend state law, justices who may decide the case and legislators who may have the final word.

"On difficult issues like this, candidates prefer to stay mum or have someone else as the responsible party because it's so inflammatory and so contentious," said UW political-science professor David Olson. "We're going to see a good deal of demands for candidates to take a position on the issue."

For judges, that's tough. Phil Talmadge, a local attorney and former Supreme Court justice, said that while judges have more leeway than they used to in political campaigns, "any hint by a judge as to how he or she might rule on this case is unethical," he said. ...

Washington state, with three of its nine Supreme Court positions up for grabs this November, differs from Hawaii, Vermont and Massachusetts--where high courts have ruled in favor of gay marriage--in that its justices are elected rather than appointed. ...

Brodoff says it will be one of the most significant constitutional questions taken up by the court.

"Certainly not in the last decade have we seen a case that has addressed such an important and far-reaching social issue," she said. ...

Still, two rulings in 2001 may offer a clue to how the court could decide:
• In Vasquez v. Hawthorne, the court ruled in a 7-2 split that a Puyallup man's 30-year relationship with his gay partner was enough like a marriage to grant him a share of the deceased partner's estate.

• And in Heinsma v. City of Vancouver, the court in an 8-1 ruling said the city had a right to continue providing health benefits to domestic partners of city employees, including same-sex partners.

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posted by Eve at 11:51 PM | link 0 comments

MARRIAGE IN SCHOOLS: From the Willamette Week

[emphasis added by Eve]

Fools that we are, the Rogue Desk naively assumed that if the constitutional ban on gay marriage fails to pass, the only result will be continued debate about the issue. Thank God® the Defense of Marriage Coalition is around to set us, uh, straight.

In a letter sent to the 244,587 Oregonians who signed their petition, the DMC revealed what's really at stake for kids if the amendment doesn't pass.

"Beginning in kindergarten, children will be taught that marriage between two men is the same as marriage between a man and a woman," the letter says. "Sex-education classes will be required to teach homosexuality as a legitimate option."

This was all news to Gene Evans, spokesman for the state schools. "The Oregon Department of Education couldn't require kindergarten teachers to do that even if we wanted to," Evans says. "The curriculum is set through a public process, and right now there is no marriage curriculum in any grade."

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posted by Eve at 11:48 PM | link 0 comments

ABA MAY BAR JUDGES FROM ANTI-GAY GROUPS: From the Associated Press

[Oh, I do wonder what constitutes an "anti-gay group." Does the Roman Catholic Church count? It does take a position on same-sex marriage; I don't know if you've heard. --Eve]

Judges are on the front line of battles over legal rights for same-sex couples and should never belong to an organization that discriminates against gays, supporters of a proposed change to American Bar Association ethics rules argued Friday.

Judges are already prohibited from joining clubs that discriminate based on race or sex. An ABA panel is debating whether to make groups that discriminate against gays off limits as well.

The ABA, the nation's largest lawyers' group with more than 400,000 members, writes conduct rules for judges and lawyers. States and federal courts generally adopt them, with some changes.

It is not known how many judges participate in groups such as the Boy Scouts that have policies against hiring gays or having homosexual leaders, or some veterans groups that restrict membership to heterosexuals.

The ABA held an all-day public hearing Friday on proposed judicial ethics changes during the association's summer meeting, which runs through Tuesday. Rules on gifts judges may accept and judges' involvement in fund-raisers may also be changed. The ABA is not expected to vote on any changes until next year. It would be the first overhaul of the rules in more than a decade, and any changes eventually could affect thousands of judges. ...

The proposed change to membership in groups that discriminate against gays is energized in part by the Supreme Court's ruling a year ago that states cannot "demean" same-sex couples by punishing their sexual conduct.

That decision has spawned multiple gay rights cases around the country, including Massachusetts' ruling to legalize gay marriage. Most recently, a judge ruled this week that a same-sex marriage ban violates Washington state's constitution.

The leader of the ABA commission, Phoenix lawyer Mark Harrison, said that without getting into a political debate about the rights of gay couples to marry, the panel wants to "make sure that judges aren't viewed as bigots."

New York University ethics expert Stephen Gillers said gay people involved in court cases "should not be asked to trust the fairness of a judge" who belongs to a discriminatory club.

"Judges are human beings too. They should be allowed to exercise their First Amendment rights of free association," said Frederic Smalkin, a senior federal judge who teaches law at the University of Maryland.

Smalkin said it could be difficult to define what organizations are acceptable. "Does that mean a judge could not belong to the reserves or National Guard?" he asked.

Brian Fahling, an attorney with the Mississippi-based American Family Association, said judges with religious objections to homosexuality should not be forced to follow such a rule. ...

A few states have already addressed the question. In California, for example, a 1-year-old rule requires state judges to disclose if they are members of groups like the Boy Scouts.

"It didn't convey the symbolic message that belonging to groups that discriminate based on sexual orientation is always unacceptable for a judge," said Jon Davidson, senior attorney for gay rights group Lambda Legal in Los Angeles. "But it essentially had the effect of making it difficult for judges to continue to belong."

It is not known how well current rules on membership in discriminatory clubs are being followed, in part because any punishments can be private. Ethics experts said judges generally comply because they fear the consequences of public disclosure.

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posted by Eve at 11:40 PM | link 0 comments

PROFILE OF STANLEY KURTZ AND SSM DEBATE: From the San Francisco Chronicle

The work of Stanley Kurtz, an elusive research fellow at the Hoover Institution at Stanford University, is at the center of the white-hot debate over same-sex marriage.

His name or his research was invoked at least a dozen times during recent U.S. Senate debate over the federal marriage amendment -- which would have banned same-sex marriage. He argued against same-sex marriage before a congressional subcommittee in April, saying that his research demonstrates that same-sex marriage is detrimental to society. In both cases, an article he wrote was submitted as part of the official record.

Who exactly is this ubiquitous critic whom supporters describe as an academic with the highest credentials but who adversaries say is merely a journalist and a pundit with an agenda but little academic legitimacy?

The debate over his work -- which has shaped into a lively war of words -- has unfolded thusly ...

It's hard to dig up much about the man behind the melee.

Kurtz refuses to answer personal questions and will talk only over e-mail. "Hate mail and threats are a problem," he said. "Too many people are intimidated by personal attacks, and so don't give their views. I want to keep the focus on the issues and not on personalities."

Kurtz would not even say where he lives or how old he is, but records show he's based in Washington, D.C., and is 50. Likewise, he refused to divulge his marital status, though some former colleagues say he is divorced.
While some critics, including Badgett -- a lesbian who has a partner --
have sympathy for Kurtz's desire for privacy, others say that his marital status is fair game because he's in the business of talking about other people's marriages. ...

But by and large, Kurtz is a lone wolf in academia, particularly in anthropology. The American Anthropological Association, the field's largest organization, recently came out with a statement supporting same-sex marriage, and an array of professors have attacked Kurtz's work.

"There isn't an anthropologist in the academy who could infer his conclusions from the data," Borneman said. "It's absurd. It makes fun of the whole endeavor of enlightenment."

Borneman and others agree with what Andrew Sullivan wrote months back: Kurtz never proves causality. "The sun rises every day, and there are a certain number of murders," but that doesn't mean one causes the other, Borneman said.

Kurtz's adversaries charge that he is not a legitimate academic. Although he is a graduate of Harvard, he writes for popular magazines -- not scholarly journals -- and his critics say that his work doesn't meet basic academic standards.

"He's not a practicing anthropologist," said Laurie Hart, the anthropology department chair at Haverford College in Pennsylvania.

Kurtz, who has the tenacity of a high school debater, vigorously defends his causal analysis and shrugs off his friendless status in the field.

"It's no secret that most American scholars lean left on cultural issues, " he said.
As for his credentials, he reiterates that he has taught at several universities and published a book on psychoanalysis and Hindu culture with Columbia University Press in 1992. "So I am an academic. Certainly, I am also a journalist," he said.

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posted by Eve at 11:36 PM | link 0 comments