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 Saturday, September 25, 2004
JURISDICTION-STRIPPING: Jack Balkin
[Have edited out my brief-but-unwieldy reply, as I'm still mulling. For a different view, go here. --Eve] ...This, in a nutshell, captures the basic problem with jurisdiction stripping statutes of this kind, particularly when they affect constitutional questions. There are many legitimate reasons for Congress to limit the jurisdiction of the federal courts. But one reason that is not legitimate is the one that Sensenbrenner offered-- to ensure that each state gets to decide for itself what is consistent with the Federal Constitution and what is not. Legislation passed for this purpose violates a key structural principle, because it strips the Supreme Court of appellate jurisdiction in these cases. The Supreme Court plays an important structural role in our constitutional system. It provides the possibility of uniformity in the interpretation of federal law, and particularly the interpretation of federal Constitution. To play that role it does not have to enforce uniformity immediately whenever a conflict arises. Indeed, in some situations, imposing immediate uniformity may not be desirable. First, it may be a good idea if the Court lets issues percolate for some time in the lower courts and the state courts. Second, "protestant" constitutional interpretations from various courts, legislators, and members of social movements, play an important role in the formation of constitutional understandings and the shape of constitutional doctrine over time. The circulation of multiple constitutional interpretations in the public sphere is part of how the system works. Nevertheless, the Supreme Court (or a federal court equivalent) has to be available, in the last instance, to harmonize conflicting decisions by state and lower federal courts about questions of federal law and particularly federal constitutional law. Although different interpretations about a particular question might circulate for some time, the Supreme Court would always be available to provide a single judicial construction when necessary. more posted by Eve at 8:49 PM | link 0 comments 
BISEXUALS OVERLOOKED IN THE DEBATE OVER EQUAL MARRIAGE RIGHTS: From OutInToronto.com
[Oh, you think? --E] In the hundreds of stories written about 'gay marriage' in recent months, one group of people deeply affected by the issue has been left out: bisexuals. According to the National Gay and Lesbian Task Force, this omission has not only made the record factually incomplete, but has helped contribute to an oversimplification of an emotional-laden and complex issue. For example, when the Washington Post wrote about the first same-sex couple to marry in Massachusetts on May 17, 2004, its front-page headline read, "A Carefully Considered Rush to the Altar; Lesbian Pair Wed After 7 Years Together," referring to Robyn Ochs and Peg Preble, but the headline was wrong. One of the two, Robyn Ochs, is not only bisexual but a co- founder of the Bisexuality Resource Center and one of the nation's most prominent bisexual leaders for more than 20 years. ... "Same-sex marriage is more than a lesbian or gay issue. The marriage issue is a big deal for bisexuals who haven't found their life partner yet," said Toby Adams, Chair of the Placer County Chapter of Marriage Equality California. "On a first date, with everything else going through your mind, who wants to be thinking, 'So if this is The One, I get to look forward to either (a) A life of wedded bliss, or (b) A life of second-class citizenship, depending on what the sex that date happens to be.'" ... "The opponents of marriage equality consistently seek to reduce this emotional and complex issue to straight versus gay, good versus evil, religiously-blessed love versus mere sex," said Matt Foreman, Task Force Executive Director. "In reality, marriage is about much more than gender and sexual orientation, it is much more than a package of civil rights and responsibilities, and it is about much more than sex. Highlighting bisexuals in the debate underscores all of this and shows that love and commitment are wonderfully complex and multi-dimensional." more posted by Eve at 8:46 PM | link 0 comments
PINNING KERRY ON MARRIAGE: Chris Crain
...SUMMARIZING KERRY'S POSITION on marriage isn't easy because as with Iraq and any number of other issues, the twists and turns are enough to make a policy wonk reach for the aspirin. Kerry spoke out against the Defense of Marriage Act in 1996, and was one of only 14 senators who voted against the measure, and was the only one up for re-election. He says he did so because the measure represented "gay bashing" on the floor of the U.S. Senate. But in his interview last week with the gay press, Kerry clarified that his opposition to DOMA rested on more nuanced ground. He apparently agrees with one of the law's two primary provisions, which guarantees one state the ability to reject marriage licenses issued to gay couples by other states. Kerry says DOMA was unnecessarily punitive--"gay bashing"--because states already have such a guarantee under the U.S. Constitution, an interpretation of the "Full Faith & Credit Clause" with which many gay activists and legal experts would take strong exception. Kerry admirably supports full federal benefits for gay couples, which would suggest he took issue with the other major provision of DOMA, which withholds any federal recognition or benefits for gay married couples. Although because Kerry opposes gay marriage, it's actually unclear whether he would restrict benefits to same-sex couples in "civil unions," the second-class legal arrangement he prefers for us. KERRY OPPOSES THE Federal Marriage Amendment backed by President Bush because he says it is a wedge issue cynically devised for political gain. He may be right about that, but he backs those in Massachusetts and elsewhere who are amending their state constitutions to accomplish the same end. Kerry explains his opposition to a federal amendment and support for a state amendment because the issue is one that should be left to the states to decide. This position is in direct conflict with a "dear colleague" letter in July 2002 that opposed as "a grave error" an effort then to amend the Massachusetts Constitution to ban gay marriage. ... WE HAVEN'T EVEN gotten to Kerry’s varying explanations for why he opposes marriage equality for gays in the first place. He's said at times that there's no real difference between marriage and civil unions, a claim belied by Kerry's own opposition to one and support for the other. At other times he's pointed to the historical, cultural and religious history of marriage as an institution, a circular argument that was attempted by white supremacists who opposed interracial marriage more than three decades ago. ... Every state supreme court to address this issue in recent times--from Hawaii to Alaska to Vermont to Massachusetts--has reached the same conclusion, and yet despite Kerry's "guiding principle," he would overrule those judgments. Kerry emphasized again last week that gays should remember this election is about the U.S. Supreme Court. But if Kerry favors overturning judges in Massachusetts on marriage, why should we expect otherwise of his judicial nominees? more posted by Eve at 8:38 PM | link 0 comments
KERRY ON STUFF: Interview with the Washington Blade
In John Kerry’s first published interview with the gay press since winning the Democratic presidential nominee, the Massachusetts senator defended his support for state constitutional amendments that ban gay marriage and said he wasn't sure whether he would have lived a double life as a politician if he had been gay. The Sept. 9 interview, which was granted with significant restrictions (see sidebar), also covered his long history of support for gay rights and his commitment to push for workplace protection and hate crimes laws as the most achievable gay rights issues should he be elected. The Democratic nominee also intimated for the first time that he agreed with the portion of the Defense of Marriage Act, passed by Congress in 1996 and signed by President Clinton, that permits one state to refuse to recognize marriage licenses issued to gay couples by another state. Kerry said in the interview that he opposed DOMA as "gay bashing" because the Constitution already permits states such authority, an interpretation of the "Full Faith & Credit Clause" that is the subject of heated debate among scholars and advocates. ... Blade: -- including DOMA and the Federal Marriage Amendment. You voted against the Defense of Marriage Act, and you've spoken out against the Federal Marriage Amendment. In both cases you described it as "gay bashing for political gain." Many of us feel that the constitutional amendments to ban same-sex marriage in Massachusetts and Missouri also constitute gay bashing for political gain. I'm curious why you haven’t spoken out against those two? Kerry: Well, I think there's a distinction. I don't think that's gay bashing. It's obviously a position that people in the GLBT community disagree with--I understand that. But I think that, historically, the definition of marriage and the application of marriage laws has always been state defined. It is up to the states, not the federal government. That’s why I viewed the federal efforts, as specifically targeted, as gay bashing, because they were usurping into a territory that they didn't belong. There was no need to do that. Under the constitution, no state has to recognize another state’s decision, and it's up to the states. ... To me, the focus right now ought to be on the application of the equal protection clause--ought to be gaining the foothold of employment non-discrimination, gaining the foothold of hate crimes legislation, making sure that we're protecting people’s ability to share the same rights--partnership rights, tax code treatment rights, ownership rights, Social Security--those rights are what are important to me. That's what's governed more by the state and it becomes less of conflict between… religion and the state, if you will. Blade: You have supported the idea of providing federal benefits through civil unions. Kerry: Yes. Blade: How would you go about making that happen, as president? Kerry: You have to fight for it. You have to introduce it. Blade: You would introduce legislation to make that happen? Kerry: That's equal protection under the law. Blade: I know you supported the Massachusetts amendment and it does provide for an alternative of civil unions. Kerry: Correct. Blade: But the Missouri initiative which just recently passed, and a number of those that are coming up this November--like Michigan, Ohio and others--are written such that they would eliminate even recognition or security through civil unions. Kerry: Right. Blade: I think in Missouri, you said after that vote that-- Kerry: I did. And I was not aware. I was unbriefed, and I thought it was the same amendment we had in Massachusetts. And that's very simple. I just thought it was a simple prohibition and not one that excluded civil unions. Obviously, it'd be inconsistent. I am for civil unions and therefore I would not have voted for that had I been there. … I just didn’t know it went as far as it did and, obviously, I don't support it. ... Blade: Speaking of constitutional rights, many of us see this issue--and I hate to keep hammering on gay marriage, but it is the one we feel most under siege about right now--the Constitution guarantees equal protection, but we see poll after poll saying most Americans--the latest said 60 percent--are opposed to letting gays have any kind of legal security or responsibility or benefits through marriage. As president, how would you reconcile those two different places? Kerry: Well, the presidency is the power of bully pulpit to some degree, and you have to talk reasonably to people. Look, you have to begin at a beginning. It took us a long time to pass the [1964] Civil Rights [Act]. There was a huge filibuster against it. Nowadays, people couldn't conceive of why did we fight about that. It took us a long time for women to get the right to vote in America. You have to fight for things. And you pick a starting point, and my starting point is to try to pass ENDA and try to pass hate crimes [legislation]. And you begin to educate people, and hopefully you change the climate and tone--it's been very exploitive in the last year or so. And you lead. more posted by Eve at 8:28 PM | link 0 comments
NORTH DAKOTA ATTY GENERAL SAYS MARRIAGE AMENDMENT UNCLEAR: From the Associated Press
North Dakota's proposed marriage amendment to the state constitution is unclear about whether it affects job benefits for unmarried couples, Attorney General Wayne Stenehjem says. A spokeswoman for supporters of the amendment said Thursday the change would not bar companies from giving benefits to anyone. It is a "smokescreen" to suggest that it would, said Christina Kindel, director of the North Dakota Family Alliance. The amendment, which is on North Dakota's Nov. 2 general election ballot, limits marriage rights to man-woman couples. Its second sentence says: "No other domestic union, however denominated, may be recognized as a marriage, or given the same or substantially equivalent legal effect." State Rep. Mary Ekstrom, D-Fargo, asked Stenehjem for a legal opinion about whether the amendment would bar companies that give benefits to married couples from giving them to same-sex partners, or unmarried heterosexual couples who are living together. ... Stenehjem's opinion, issued Thursday, said the amendment "does not specifically prohibit a North Dakota company from extending employment benefits to same-sex couples, or cohabiting heterosexual couples. However, that is not to say that may not be the intent of the proponents of this measure, or the people when voting upon it. "In the absence of evidence of the intent of this measure, it would be difficult for this office, or a court, to construe it at this time," Stenehjem wrote. more posted by Eve at 8:21 PM | link 0 comments
FAMILY LAW EXPERTS DEBATE OHIO AMENDMENT: From the Deseret Morning News
Family and constitutional law attorney Monte Stewart says opponents of a proposed state constitutional amendment to ban same-sex marriage are "not intellectually honest" in their argument that it goes too far. "Amendment 3 does two things. No. 1, it nails down the long-held definition of a legal union of a man and a woman," Stewart said, speaking to members of the Family Law Section of the Utah State Bar on Friday. "It is a narrow and rigorous test of what constitutes counterfeit marriage." Scott McCoy, head of the Don't Amend Alliance, countered that Stewart's arguments supporting the amendment, which will be on November's ballot, are "shortsighted." "This is going to cause a lot more chaos and litigation than it's going to stop," McCoy said. The Family Law Section's executive committee has voted to oppose Amendment 3. Friday's luncheon gave members of the entire section a chance to hear from both sides of the debate on areas concerning their practices. document. The discussion focused on the amendment's second sentence, which reads: "No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect." Speaking for a coalition of amendment supporters, Stewart said that if the amendment passes, the only relationship that could be declared unconstitutional or a "counterfeit marriage" is a legally recognized one that is based on a sexual relationship and is one that must "walk, talk and act like a marriage." ... He said the amendment wouldn't prevent companies from providing health insurance coverage to dependents, or have any impact on the state's cohabitant abuse law. more posted by Eve at 8:18 PM | link 0 comments
FRENCH LESBIAN COUPLE GRANTED FAMILY STATUS: From Agence France Presse
France has for the first time extended official recognition to a family headed by a homosexual couple, giving legal rights to two lesbians raising three daughters one of them bore through artificial insemination, Le Monde newspaper reported. The authorisation, given by a Paris judge on July 2, sets a precedent in a country which is still grappling with a marriage of two gay men in June that the government has declared annulled. According to Thursday's edition of Le Monde, the lesbian couple, identified only as Carla and Marie-Laure, and their three children, aged 5, 7 and 10, received permission to establish "a legal link between each of the parents and the children as well as joint exercise of parental authority". Their lawyer, Caroline Mecary, told AFP that the decision--delivered after four years of legal efforts--now allows the couple to carry out their family duties like any other heterosexual couple in France. more posted by Eve at 8:11 PM | link 0 comments
SSM COMES TO NOVA SCOTIA: From the Canadian Press
[Courts again. --E] After waiting 20 years for the right to get married, Bryan and Ron Garnett-Doucette wasted little time Friday after Nova Scotia joined a growing list of provinces to recognize same-sex unions. The two men walked hand in hand to a municipal office to apply for a marriage licence just 90 minutes after a Nova Scotia Supreme Court justice ruled the couple, who have been partners for the last two decades, could legally wed. ... In Halifax for a provincial NDP policy workshop, federal New Democratic Leader Jack Layton applauded the decision but scolded the federal government for not taking charge of the issue itself. "It's a very good day for equality in Nova Scotia," he said. "It should send a message to our federal government to have a vote on the issue. Right now it's languishing in the Supreme Court (of Canada) in what could be a long, tortuous process. Why don't we just simply follow the direction that's been established in so many courts." more posted by Eve at 8:06 PM | link 0 comments
Thursday, September 23, 2004
I MISS TALKING IN THE DARK: Barbara Nicolosi reviews Wimbledon
...Coming from the folks who did Notting Hill and Four Weddings, this is a mostly British romantic comedy that is most funny when it exploits the "quirky group of friends and family" that made both of those prior films work. Unfortunately, all the humor drops out before the mid-point of the film, as the writers try desperately to find a reason why two people should be committed to each other. I mean, we really don't have to make a commitment anymore, do we? Why do we even want to? So, what is the point of this film? Fascinating problem for the modern romantic comedy. ... It's really a quandary for the whole romantic comedy genre, because they all end up turning into dramas now! In comedy, funny is supposed to be first, but in romantic comedy, a kind of crippled metaphysics is ending up first. Love it. ... One of the funniest confusions in contemporary drama is everything having to do with sex. So, in Wimbledon sex is something that need sto be gotten out of the way so that romance becomes possible. Amazing! The seediest moments of the movie are when the Kirsten Dunst character propositions her handsome lead, that she thinks fooling around before a tennis match is a good kind of recreation. They both agree, and so they go to bed. Then, later, when they start to care for one another, the romance is played out in a slow-mo montage of them walking on the beach, running in the park, talking and eating. These "romantic" scenes are almost completely devoid of physical contact. Later in the film, sex actually becomes the enemy of the relationship. They almost break up over it. But not in any Christian sense. It's more that the sex is opposed to self-donation as opposed to being the impulse of self-donation. It's all such a mess. A wonderful hopeful mess for us with a theology of the body to unleash. Because sex isn't going away any time soon. It's just when and how we are going to make our case. We're going to need more than academic papers here. more posted by Eve at 7:51 PM | link 0 comments
GAY DIFFERENCE: Eleanor Brown
...The Canadian Charter of Rights and Freedoms specifically says that it seeks equality of outcome, rather than the absolute same treatment of individuals. Meaning that equality does not come about when everyone is treated the same. Cultural differences can mean that identical treatment can lead to vast inequalities. Canadian politicians have no problem with this when it comes to other "minority" groups. Our 1982 Constitution (negotiated by politicians) gives a university the right to post a job ad that allows only applications from women, for example -- as has occurred. It is perfectly legal for an institution to look at its employment make-up, see a vast under-representation of women, and decide to fix that apparent discrimination. In the same way, an Ontario pilot project is underway allowing Muslims to deal with some civil matters, such as divorce and child custody, in special courts that dispense Sharia law, rather than justice according to "proper" Canadian divorce law. But in the courts, this concept of different-but-equal has never been applied to gay men and lesbians. Women's culture matters, religious difference matters.... but not homosexual difference. Everybody gets equality of outcome except us. And that is what's being institutionalized through the Supreme Court of Canada. These gay-positive judges believe in equality, but not in our essential cultural difference. We get to be treated exactly like heterosexuals, regardless of how that impacts us. ... So marriage, under het rules, is being implemented.So is divorce -- as just occurred recently in a Toronto court by (an anonymous) lesbian couple that got hitched mere months before. A well-known law professor has recently called for gay men and lesbians to be included properly in Canadian divorce laws, specifically mentioning that adultery should be a ground for gay divorce. Imagine how that fits into the way we structure our relationships. ... Straight rules don't even work for straights. But this is where we're going: being forced into straight morality despite our gay lifestyles. more posted by Eve at 4:05 PM | link 0 comments
ATTORNEYS ARGUE THAT LA. AMENDMENT WOULD END DOMESTIC PARTNER BENEFITS: From the Associated Press
The marriage amendment approved Saturday will wipe out New Orleans' benefits for partners of city workers who sign onto a domestic partner registry, say attorneys challenging the amendment. "The only immediate direct effect of this amendment is to abolish the New Orleans Domestic Partner registry ordinance. That is exactly what the people behind this amendment wanted," attorney John Rawls said. "They sued to abolish it and lost in court. So they stuck it in a craftily worded amendment." City attorneys have said they don't think the amendment will affect the city ordinance. Mayoral spokeswoman Tanzie Jones reiterated that Wednesday, but said she did not know the legal basis for the contention and city attorneys were busy with another matter. Michael Johnson, a Shreveport attorney who has argued in favor of the amendment, said it adds a new argument to his challenge of New Orleans' domestic partnership ordinance. "I think and would argue that a domestic partnership is, quote-unquote, substantially similar to marriage," said Johnson, who is affiliated with the Arizona-based Alliance Defense Fund, a conservative Christian group. ... The sentence which Rawls said will annihilate New Orleans' ordinance states, "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized." "For a city to confer recognition upon a domestic partnership creates a legal status substantially similar to marriage for unmarried individuals," Rawls said. "And that is why the word 'recognized' is in this amendment. more posted by Eve at 4:02 PM | link 0 comments
ADOPTION ILLEGAL BECAUSE WOMEN WEREN'T MARRIED, MOTHER CONTENDS: From the Associated Press
The biological mother of a 6-year-old girl is trying to overturn the child's adoption by her former partner, arguing that the adoption, approved by a judge, was not legal because the lesbian couple weren't married. Julie Anne Hobbs and Janet Kathleen Van Stavern were together for eight years until March. Hobbs conceived the child by artificial insemination, and Van Stavern legally adopted her in 2001. ... Hobbs is arguing that the Texas Family Code requires that before adoption, a child's relationship with biological parents has to be terminated or the parent whose rights were not terminated must be married to the person seeking custody. Same-sex marriages are not recognized in Texas. ... Van Stavern's attorney responded that Hobbs could have challenged the adoption for six months after it was approved, but now it is too late. "If this court decides that a second-parent adoption by a gay or lesbian parent is void, that is going to send a very chilling message to all those parents out there who are reliant on that relationship being kept stable," said Jerry Simoneaux, whose Houston law firm specializes in gay, lesbian, bisexual and transgender issues. more posted by Eve at 3:55 PM | link 0 comments
MANITOBA MARRIAGE COMMISSIONERS RESIGN OVER SSM: From CBC Manitoba
Some marriage commissioners in Manitoba have resigned because they don't want to perform ceremonies for gay and lesbian couples. Last week, a Manitoba judge ruled the traditional definition of marriage is unconstitutional, opening the door for homosexual couples to wed. A letter from the Vital Statistics office has gone out Manitoba's 600 marriage commissioners ordering them to return their Certificates of Registration if they have a problem performing same-sex marriages. ... Even commissioners who are willing to perform same-sex marriages aren't pleased with the government's request. Hugh Bowler, who performed the province's first sanctioned same-sex marriage last week, thinks the government is being heavy-handed. "I'm not sure that I agree with returning your certificate if you're not comfortable doing a same-sex marriage for the simple reason that any priest or minister has the right not to do it," he says. The letter did not go out to religious officials who perform marriages. Caroline Kaus of Vital Statistics says the law has to apply to all civil commissioners equally and they will have to decide for themselves if they wish to continue the service. more posted by Eve at 3:51 PM | link 0 comments
ELIZABETH MARQUARDT IS READING...
Families Like Mine: Children of Gay Parents Tell It Like It Is. Excerpts and brief comments here. posted by Eve at 1:51 PM | link 0 comments
SSM IS NOT A SPECIAL RIGHT: James Hanley
...There are two arguments against same-sex marriage, one religious and one legal. Both are wrong. Religious opposition to same-sex marriage is based on a confusion of the sacred and the secular. The claim is made that marriage is a religious sacrament that would be defiled by same-sex marriage. The confusion occurs because the word marriage refers to two related, but ultimately separate, things. One is a sacred relationship consecrated by God. The other is a legal relationship sanctioned by the state. ... The legal argument against same-sex marriage says that we are granting special rights, because gays currently have the same rights as straights. A gay man may legally marry a woman, and a gay woman may marry a man. But the right to same-sex marriage would be equally broad: A straight man could marry another man, and a straight woman could marry another woman. Legally, there's nothing special about the right to same-sex marriage, because it's no more restricted to one group than heterosexual marriage is. Granted, straight men and straight women aren't likely to find happiness in a same-sex marriage, so this right would be of little benefit to them. But the traditional marriage right is likewise of no benefit to gay men and women. Essentially, they are deprived of the right to enter into a loving and fulfilling marriage with the attendant legal rights and responsibilities. more posted by Eve at 1:43 PM | link 0 comments
DOES U.S. LAW MUTE VOICES OF CHURCHES?: From the Christian Science Monitor
...More than 130 members of the US House of Representatives want to amend the law that prohibits partisan activity--such as political rallies, fundraisers, distribution of political literature, and direct endorsements from the pulpit--by pastors and houses of worship. They hope to do this by inserting a provision into a bill that is already before a House-Senate conference committee--thus avoiding public debate or votes in either body. Supporters say the provision is needed to restore free speech to religious leaders. Barring political endorsements from the pulpit curtails the First Amendment rights of pastors, they say. But opponents argue that it would turn houses of worship into campaign vehicles and possibly reshape the America's religious and political landscapes in harmful ways. They worry that political endorsements could divide churches, lead to reconfiguring memberships along political lines, adulterate their spiritual purpose and prophetic role as societal consciences, and even perhaps turn their coffers into unregulated channels for campaign financing. ... "Free speech is a completely bogus argument," says Robert Tuttle, professor at George Washington University Law School. "The government isn't telling religious leaders they can't talk about anything they want to; it says if you choose to engage in political activity, you are going to be treated under a certain set of rules." Under current rules, clergy may discuss any issues of public concern during sermons, and houses of worship can engage in civic education and voter-registration activities that are nonpartisan. Clergy may even endorse candidates as individuals. But religious organizations and leaders--as their representatives--may not engage in any partisan political activity. The ban on electioneering comes from a provision in the Internal Revenue Service code that prohibits tax-exempt organizations from endorsing or opposing political candidates. Such 501(c)(3) groups pay no income tax and can receive tax-deductible contributions. ... A group in Johnson County, Kan., however, sparked an uproar in July by sending volunteers to check on local clergy. The Mainstream Coalition--a group active in public education--took the step when a local preacher organized other clergy to defeat candidates who voted against a state amendment banning same-sex marriage. more posted by Eve at 1:37 PM | link 0 comments
Wednesday, September 22, 2004
CALIF. DOMESTIC PARTNERSHIP LAW: Michael Triplett replies to Elizabeth Marquardt
Under the statute, registered domestic partners will both be the legal parents of children born into their households for children born after Jan. 1, 2005. Thus, lesbians who use IVF or gay men who use a surrogate will both be the legal parents because there is no legal biological parent in that situation since the donors forfeit their parental rights by acting as sperm donors or surrogates. Your comment about interdependence is interesting because part of my legal practice is helping same-sex couples separate. One of the biggest challenges is getting them to view the money and assets as "ours" not "mine" and "yours." When mediating such situations or providing legal advice, I generally tell them to think of it as a legal fiction that they are married and we will approach this like a divorce. In my experience, there is usually significant dependence in same-sex couples since many involve one partner with signficant assets and one with fewer. It's rare that I see couples who are equal. I think the apprehension and why interdependence doesn't happen in these situations is that there is no legal mechanism protecting them. Marriage (and divorce) protects the partner who has less. Without those kinds of legal mechanisms, however, the dependent partner always lives with the threat of being tossed out with nothing (which happens often). It would be interesting to see if co-habiting heterosexual couples have the same level of financial interdependence as married couples or the independence of same-sex couples? I also wonder if being divorced (or widowed) impacts the level of interdependence in a married couple. more posted by Eve at 3:34 PM | link 0 comments
NEW TAX STATUS FOR FRENCH CIVIL UNIONS: From Reuters
French gay rights groups on Wednesday welcomed government plans to improve the tax rights of homosexuals living in civil unions, but vowed to continue their campaign for the recognition of same-sex marriages. In its 2005 budget, the conservative government said it would place the fiscal status of gay couples on a par with that of married people and make it easier for gays to give their partners money. "This is very good news," said Alain Piriou, representative of the Inter-LGBT gay rights group, calling it a first, but incomplete, victory. "Changing tax laws is always a political decision, implying ideological values. By improving the fiscal status of gays living in civil unions, the government has raised the status of homosexual couples in general," he said. France allows civil unions--PACS, or civil solidarity pacts--but gays say this puts them at a disadvantage in terms of tax, inheritance, adoption and immigration rights. more posted by Eve at 3:31 PM | link 0 comments
WA AMENDMENT PUSH STARTS: From the Seattle Post-Intelligencer
Foes of same-sex marriage yesterday announced a drive to add a ban to the state constitution. The newly formed Allies for Marriage and Children, which includes social conservatives, community activists and some religious leaders, said it is responding to two recent court rulings that invalidated the state's Defense of Marriage Act. That law, passed in 1998 by the Legislature after overriding Gov. Gary Locke's veto, defines marriage as the union of a man and a woman. Many states have passed similar laws and state constitutional amendments, and President Bush and some congressional allies have suggested an amendment to the U.S. Constitution banning gay marriage. The rulings from King and Thurston county judges are on appeal to the state Supreme Court. A state constitutional amendment must originate in the Legislature, with a two-thirds vote in both chambers, followed by a statewide public vote. ... But state Rep. Ed Murray, D-Seattle, one of four openly gay men in the House, said the measure is doomed to fail and probably wouldn't even get out of committee. Equal Rights Washington, a group advocating equal treatment for gays, said marriage is "a pro-family ideal" that should be available to all. Children need a safe and loving environment created by nurturing parents, regardless of the couple's gender, the group said. more posted by Eve at 3:28 PM | link 0 comments
OHIO SIGNATURES FILED; BOTH SIDES SAY MARRIAGE AMENDMENT WILL BE ON BALLOT: From the Akron Beacon Journal
Backers of a proposal to ban gay marriage in Ohio have submitted 144,000-plus signatures in the second round of their drive to get the issue on the November ballot. Phil Burress, head of Citizens for Community Values, said he believes his Cincinnati group has more than enough signatures. ''I am absolutely confident'' that the issue will get on the ballot, he said. ... In the meantime, they face ing court challenges from the opposition: Cleveland-based Ohioans Protecting the Constitution. Organizer Alan Melamed has tried to block the issue from getting to the ballot on legal concerns about the lack of a summary on the petitions. He also said his group was prevented from lodging protests about petitions at some county boards of elections. Although some of those efforts continue, Melamed said it is almost a foregone conclusion that the issue will get on the ballot because his group is running out of legal ammunition. ''We're moving on,'' he said. ''We're about the process of defeating this amendment.'' more posted by Eve at 3:18 PM | link 0 comments
LAWYERS GIVE HIGH MARKS TO LESBIAN-DIVORCE JUDGE: From the Des Moines Register
Iowa lawyers strongly support a northwest Iowa judge whom a group of residents want to throw out over his ruling granting a divorce to lesbians, a new survey shows. District Judge Jeffrey Neary won 93 percent approval for a six-year term in the Iowa State Bar Association's election year poll of its members. That's among the higher approval percentages of the 74 Iowa judges up for retention in November. ... Kevin Alons, 35, of Salix, spokesman for the Judicial Accountability Group that organized in August to unseat Neary, said he isn't impressed by the numbers. He said Neary might have opened the way to gay marriage, which Alons and members of the group oppose. ... Neary in November approved a dissolution of a Vermont civil union for two Sioux City lesbians. He said he signed the papers without noting their gender. When he discovered they were women, he declined to withdraw the order. He said the dissolution was proper under a legal concept that requires states to recognize laws of other states. Neary said the order did not recognize same-sex marriages, which are barred in Iowa, but settled a dispute between two parties over property distribution. Neary followed the order with an amended ruling that said he ended only their civil union in Vermont, not a marriage. more posted by Eve at 3:15 PM | link 0 comments
Tuesday, September 21, 2004
WHAT SHOULDN'T YOU DO OUT OF WEDLOCK?: Lynn Gazis-Sax
...Well, the starting point either has to be "have children" or "nothing," right? It could be rational, in an age of relatively reliable birth control, to find sex outside of marriage acceptable but not children outside of marriage--maybe you favor unmarried people scrupulously using a "Double Dutch" approach of combining the Pill and condoms, but they should marry before actually having kids together. But to discourage, say, sex or romantic love outside marriage, but accept childrearing outside marriage would make no sense. So, I'll focus just on the "children out of wedlock" question. ... Second, the counterarguments. Why wouldn't you want to discourage having children out of wedlock? The first set of counterarguments I can think of involve ideals bumping up against real life. Maybe a single woman is already pregnant; in a world that too harshly discourages having children out of wedlock, will she be driven to an abortion, whether she likes it or not? Or maybe she and the prospective father already have a shaky relationship when the child is conceived--should they be trying to repair that relationship, and marrying anyway, or should they figure that the shotgun marriage is likely to lead to the shotgun divorce? Maybe two parents are married, but the marriage is in sad shape--at what point should they call it quits? Violent abuse? Chronic unhappiness? Since Eve has specified that her questions concern an ideal, this set of arguments doesn't, strictly speaking, address the question; at the same time, that doesn't mean they aren't important, and sometimes contentious, questions in their own right. A special case of adjustment to the not so ideal is the question of what you do when you want children and it seems you can't marry. What about a group like Single Mothers By Choice? ... So, at least, you shouldn't be simultaneously actively encouraging people to do childrearing together while actively discouraging them from marrying. Or actively encouraging them to marry while actively discouraging them from raising kids together (barring, perhaps, rare cases, like that of someone willing and prepared to marry someone who is seriously chronically ill). more posted by Eve at 9:16 PM | link 0 comments
WHAT SHOULDN'T YOU DO OUT OF WEDLOCK?: Lynn Gazis-Sax
...Well, the starting point either has to be "have children" or "nothing," right? It could be rational, in an age of relatively reliable birth control, to find sex outside of marriage acceptable but not children outside of marriage--maybe you favor unmarried people scrupulously using a "Double Dutch" approach of combining the Pill and condoms, but they should marry before actually having kids together. But to discourage, say, sex or romantic love outside marriage, but accept childrearing outside marriage would make no sense. So, I'll focus just on the "children out of wedlock" question. ... Second, the counterarguments. Why wouldn't you want to discourage having children out of wedlock? The first set of counterarguments I can think of involve ideals bumping up against real life. Maybe a single woman is already pregnant; in a world that too harshly discourages having children out of wedlock, will she be driven to an abortion, whether she likes it or not? Or maybe she and the prospective father already have a shaky relationship when the child is conceived--should they be trying to repair that relationship, and marrying anyway, or should they figure that the shotgun marriage is likely to lead to the shotgun divorce? Maybe two parents are married, but the marriage is in sad shape--at what point should they call it quits? Violent abuse? Chronic unhappiness? Since Eve has specified that her questions concern an ideal, this set of arguments doesn't, strictly speaking, address the question; at the same time, that doesn't mean they aren't important, and sometimes contentious, questions in their own right. A special case of adjustment to the not so ideal is the question of what you do when you want children and it seems you can't marry. What about a group like Single Mothers By Choice? ... So, at least, you shouldn't be simultaneously actively encouraging people to do childrearing together while actively discouraging them from marrying. Or actively encouraging them to marry while actively discouraging them from raising kids together (barring, perhaps, rare cases, like that of someone willing and prepared to marry someone who is seriously chronically ill). more posted by Eve at 9:16 PM | link 0 comments
CALIFORNIA PARTNERSHIPS: Elizabeth Marquardt
[Commenting on this story:] Yes, it does present some awkward constraints when the state tries to copy an institution built around interdependency needed for the raising of children--marriage--and offer it to same-sex couples whose needs quite often differ. And "experts" like that UCSF prof quoted don't help matters. Married women and men today do not intertwine their financial lives because marriage is "traditionally structured on the basis that women were the property of men." They do it for many reasons, but perhaps most importantly because the dependency needs of children, and of pregnant and nursing women, and women raising small children, tend to be better served when the father of the child commits everything to the family, including his money. more posted by Eve at 9:08 PM | link 0 comments
OHIO SSM BAN LOOKS LIKE SURE BET: From the Cleveland Plain Dealer
...These responses were part of a statewide survey of likely voters that showed support for a state constitutional ban on same-sex marriage by a ratio of more than 2 to 1. Commissioned by The Plain Dealer and Conducted Sept. 10-14, the poll found that 64 percent of the 1,500 people surveyed favored the proposed ban, 30 percent opposed it and 6 percent were undecided. The measure enjoyed strong support from all ages, races and geographic regions of Ohio. The poll has a margin of error of 2.6 percentage points and was conducted by Mason-Dixon Polling & Research of Washington, D.C. Joanne Daniel, a 54-year-old respondent from Westlake, gave voice to a sentiment expressed by many when she said, "It's simple: I believe the foundation of our society is marriage between one man and one woman." She believes that some same-sex couples are capable of a loving relationship, but draws the line at allowing them to marry. "It just isn't right," said Daniel, a customer service representative. "If they say a marriage is between people who love each other, what's to stop them from saying a marriage can be between two women and one man?" Ohio is among 11 states where voters are expected to face a referendum on gay marriage Nov. 2 and simultaneously make their choice for president. ... At least one voter surveyed--Kay Buckner of Tiffin--opposes the proposed ban but supports Bush. "I don't believe that because you're gay, you can't have a meaningful relationship that deserves recognition," she said. Buckner, 58, is a retired teacher who bases her opinion, in part, on a belief that people are born gay. "Nobody would choose to be that," she said. "If you're gay, admitting it in public puts you under scrutiny and exposes you to all kinds of possible discrimination." more posted by Eve at 9:04 PM | link 0 comments
OHIO AMENDMENT BACKERS CAN KEEP SEEKING SIGNATURES: From the Associated Press
A state appeals court refused Monday to stop the process of verifying signatures on petitions seeking to put a proposed constitutional ban on same-sex marriage on the Ohio ballot. The two-sentence judgment from a three-judge panel in Franklin County said opponents of the proposal did not "demonstrate their right" to get a court order throwing out the petitions. The judges did not outline their reasoning, but had questioned amendment backers in a morning hearing on why they were suing in appeals court and if they had waited too long. more posted by Eve at 8:58 PM | link 0 comments
SUING FOR COUNTRY CLUB STATUS: From the New York Times
One by one, barriers have been falling at the nation's elite country clubs. Many private clubs have dropped rules in recent decades that discriminated against potential members based on their race, religion, ethnicity or gender. Now challenges are being raised against rules that are another obstacle to full membership rights at golf clubs. The hot topic at many clubs is one few members could have dreamed of talking about a decade ago: should the partners of gay members be given the privileges of family membership and greater access to the golf course? In San Diego, Birgit Koebke and her partner, Kendall French, filed a lawsuit against Koebke's golf club in state court, contending that it discriminated against them because the club would not give French the access and the privileges granted to the spouses of heterosexual club members. While spouses can play golf free, French is permitted to play only with Koebke and only six times a year, and she must pay a $70 guest fee each time. The case, the first of its kind in the country, is pending before the California Supreme Court. In Atlanta, two gay members of a golf club filed complaints with the city's Human Relations Commission, making a similar claim. The commission ruled in their favor in January. And in Massachusetts, the only state where gay marriage is legal, more than half the state's 160 private golf and country clubs are redefining their policies on marriage, according to Tom Landry, the executive director of the Massachusetts Golf Association. ... Andrew Fortin, an executive with the National Club Association, a trade organization and lobbying group that represents about 1,000 of the nation's most prestigious private clubs, says that if a club adopts a policy for members' partners, it should apply to both same-sex and heterosexual couples. "The only certainty,'' Fortin said, "is that the issue of significant others is no longer an exercise in accommodating member needs, but rather a complex and legal debate about spousal rights." more posted by Eve at 8:52 PM | link 0 comments
Monday, September 20, 2004
PICKING YOUR SHIBBOLETHS WISELY: Daniel A. Crane
[Link also includes tons of other links to SSM- and marriage-related articles from Christianity Today. --E] ...This is why I believe same-sex marriage is a dangerous shibboleth: It reinforces the status of government as the custodian of the institution of marriage. If the church not only abets but actively furthers the notion that marriage owes its legitimacy to the state's approval, then the battle for the family is all but lost. ... As Jesus put it rather bluntly, the man who follows the law of Moses and gives his wife a certificate of divorce might cause her to commit adultery (if she remarries). Thus, Moses' law tolerated divorce even though, spiritually, it opened the door for people to become adulterers. In Jesus' view, there unquestionably was an important distinction between the legal and spiritual institutions of marriage. ... The example of divorce suggests that Christians have already lost much ground on marriage and the family by failing to distinguish secular family law clearly from God's perfect plan for man and woman. This is why it is alarming to see many Christians insist that defeating legal recognition of same-sex marriage is necessary to preserving the institution of marriage. If that is true, it must be because marriage owes its definition and legitimacy to the state--a proposition that Jesus squarely denied and that should frighten anyone who takes seriously the Genesis prescription. ... If the government can't get out of the marriage business altogether, then perhaps we, as Christians, ought to take the lead in reconceiving the notion of civil marriage as distinct from holy matrimony. Perhaps we should abolish the word marriage altogether when speaking of the license granted by the state and instead appropriate the civil union terminology that has been created to deal with the same-sex issue. When asking about the definition of marriage or civil unions for legal purposes, perhaps we should take a functional, rather than normative, view. ... None of this should be taken as an argument that the law should recognize same-sex civil unions. There may be important functional (as opposed to moral) reasons why such recognition would be unwise. Nor should a separation of civil and religious marriage lessen our concern over the recent conduct of activist judges and mayors who have tried to impose their own political vision by judicial or executive fiat, contrary to the clear rules established by state legislatures. But neither should we escalate the culture war by making this debate into a battle for the heart and soul of marriage. If we do that, we concede that the state owns marriage and that the church's function in blessing unions is subservient to the government's. Far better to lose the battle over the legal definition of marriage than to win it and find that the government now owns one of our most sacred institutions. more posted by Eve at 2:40 PM | link 0 comments
CIVIL RIGHTS LEADERS WHO BACK SSM: Deb Price
...[NAACP Chairman Julian] Bond is part of a courageous list himself once again these days: Prominent heterosexual African Americans who support full marriage rights for those of us who're gay. That growing honor roll includes Coretta Scott King, Congressman John Lewis, former Democratic presidential candidates Carol Moseley Braun and Al Sharpton, and the Rev. William Sinkford, the president of the Unitarian Universalist denomination, who on May 17 presided over one of the first gay weddings blessed by Massachusetts. ... In addition to lining up high-profile heterosexual allies, other coups this year include: * Marriage lawsuits: Black couples are taking leading roles in key challenges to marriage discrimination. In Maryland, three of the nine couples suing are African-American. ... * Accountability: Tuan N’Gai launched OperationRebirth.com to hold black ministers accountable for anti-gay sermons and to empower other black gay Christians. ... * Teamwork: The National Black Justice Coalition and the California Freedom to Marry Coalition are hosting a historic conference in Los Angeles on Oct. 19 to build support in the black community for same-sex marriage. (Details: civilmarriage.org) * Media exposure: The coalition has run ads in black newspapers about black gays' desire to marry. * Evidence: On Oct. 5, the coalition and the National Gay and Lesbian Task Force will release a study showing black gay couples are more likely than white gay couples to hold government jobs. That means they'd be more hurt by the state anti-gay marriage amendments being voted on this fall, because most, like Michigan’s, also threaten to strip away partner benefits. more | ||||||||||
