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 Saturday, November 20, 2004
GAY MARRIAGE BACKLASH: Boston Herald editorial
Being tagged blue or red made no difference in the 11 states which passed ballot questions prohibiting same-sex marriage. Oregon and Michigan voters joined Mississippi, Oklahoma, Georgia, Ohio, Kentucky, Arkansas, North Dakota, Montana and Utah to preserve traditional marriage. Anyone still think Massachusetts voters will tolerate not getting their say, too? The not-so-secret hope of gay marriage proponents here has been that the furor over the Supreme Judicial Court ruling would fade with time. Then they could convince the Constitutional Convention not to give a similar ballot question a final round of approval. Or better yet, they'd like to get the Con-Con to never quite get to the question when they meet to consider their agenda in 2005. We see no signs of furor. Nonetheless, such a fundamental question ought to be put before the people. ... Ironically, here, where the Supreme Judicial Court got the ball rolling, lawmakers are likely feeling sanguine about the political fallout. No legislative campaign outcome appears to have hinged on the issue and same-sex marriage proponents might even have gained a few friendly faces on Beacon Hill. But, nationally, Democratic leaders are blaming Massachusetts' activists in part for John Kerry's defeat. ... Guess what happens when courts, not legislators, make laws? There's a backlash. Duh. ... Will a ban pass here? We have no idea. But beware the backlash if voters aren't the ones to decide the answer to that question. more
A MODEST PROPOSAL: Maggie Gallagher
Barry Davis, writes to me (via snail-mail!): "With this letter I wish to share my euphoria over the recent victories for traditional marriage that occurred in 11 states. . .Your staunch support for the cause has inspired me to write you about a similar imminent threat to traditional values. It is my belief there are certain other groups that should warrant at least as much attention as those awful gays and lesbians who are trying to undermine our most sacred Christian institutions. . . "All decent Americans should unite to fight against their influence. This is, of course, The Institute for Marriage and Public Policy. . . "We've already seen how much fun it is to let voters choose to deny certain rights and privileges to minority groups, even when the majority enjoys those same rights and privileges. If you are in need of any more ideas like the one I have mentioned here, please let me know. There are a million more where that came from." Barry, thanks so much. I have another modest proposal: Let's get courts to redefine the word "gay" to mean people who are attracted either to the same-sex or to the opposite sex. People who fail to do so will be deemed bigots who prefer exclusionary language, organizations and ideas. Organizations that currently call themselves "gay" who fail to adapt to the new law may face legal pressures applied to other bigots in the public square.
DOING WHAT CHRIST TELLS US ABOUT MARRIAGE: Fr Robert Landry
Today we are present at the most famous wedding of all time ... one in which we do not even know the names of the bride and groom. It's the one that took place in Cana in Galilee, and it's the most famous wedding because Jesus Christ was there --and what happened at that wedding has been remembered by Christians ever since. ... We are now in the midst of a heated debate about what marriage is. For God, it is very clear what marriage is. When Christ was asked by a lawyer about whether divorce was possible, Jesus gave a clear teaching about the real meaning of marriage that is as relevant to the debate about whether homosexuals can marry as it was to the subject of divorce-and-remarriage. If Jesus were to testify up on Beacon Hill before our legislators about the meaning of marriage, I think he could use the very same words that he used in St. Matthew's Gospel. Listen to him with fresh ears: "Have you not read that in the beginning God 'made them male and female,' and said, 'for this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh'? So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate." In this teaching of Jesus -- who is the Truth incarnate, who is our Creator and knows how and for what the human person is made, who loved all of us enough to die out of love for us -- we see four things that are relevant to our debate: a) "In the beginning, God made them male and female." There is great meaning to our masculinity and femininity in God's plan. God didn't clone Adam, but made Eve, who was equal to him in dignity, but complementary. b) "For this reason a man shall leave his mother and father and cling to his wife." God's plan is not that a man leave his parents and cling to whomever he wants, but to cling to a wife. c) "The two shall become one flesh." This refers more than merely to their sharing a bed together and temporarily joining their bodies physically in the act of making love, because that act is just temporary. God wanted from the beginning a more permanent union, "so they are no longer two, but one flesh." The way this occurs is in a child, who is the perduring union of the flesh and the man and the woman and blessed by God with the infusion of an immortal soul. This one-flesh union in children "made in love" is for Christ, our Creator and Savior, part of the essence of marriage. d) "What God has joined together, man must not divide." This refers not just to a particular couple joined by God in marriage, but to the union planned by the Creator for a man and a woman in marriage. To try to divide man and woman in the institution of marriage by opening marriage up to two men or two women is clearly contrary to God's plan for marriage and for man and woman. God created marriage in a particular way from the beginning for our own happiness as well as for our salvation, to teach us how to love according to the nature he gave us. But he also had something else in mind in creating marriage the way he did. He wanted to use marriage as an analogy to communicate his own love for us his people. We see this in the first reading from Isaiah: "As a young man marries a young woman, so shall your builder marry you, and as the bridegroom rejoices over the bride, so shall your God rejoice over you." God's love for us is likened to a husband's love for his new bride. ...Human heterosexual spousal love was created by God to reflect God's own love for his people. To change the meaning of marriage to encompass homosexual "unions" will not only do damage to individual men and women with same-sex attractions, to others and to society as a whole, but it will gradually incapacitate our ability to understand the meaning of all creation and God's love for us, of which traditional marriage is the highest reflection. more
RADICAL CHANGE BY DEFINITION: Justin Katz
...To declare so haughtily that traditional marriage laws violate the rights of homosexuals, one must believe that there are no differences between men and women that are relevant to marriage. If marriage is not centrally about gender, then it is not centrally about the most obvious thing that men and women can only do together: create children. And if marriage is not about procreation, then there's no reason it has to be about sex. And if it isn't about sex, then intimate love -- as opposed to other forms of mutual interest or affection -- needn't be definitive. Marriage, in other words, becomes a partnership in the most bland, contractual sense of that word. That outcome has proven all but inconceivable to many who support same-sex marriage (at least those whom we trust about their intentions). They take for granted that the emotional culture of marriage is written in firm ground that they imagine at the core of our social being. As they, themselves, prove that ground is not as firm as it might seem. Even if it were, however, we would still have to keep in mind that the law does not require married couples to act married, or even to proclaim that they are. Any stigma associated with same-sex marriages of convenience would have no readily visible identification on which to accrue and would therefore quickly slip away. I can only muse that those who are most willing to force radical changes on our culture are also the most naive about the ways in which the culture can change. And I can only be distressed that too many seem to believe that same-sex marriage would represent no change at all. more
ORE. SUIT SHIFTS TO BENEFITS: From The Oregonian
Gay rights leaders on Thursday asked the Oregon Supreme Court to order civil unions for same-sex couples and to uphold the legality of 3,000 marriage licenses issued to gay and lesbian couples earlier this year in Multnomah County. While conceding that passage of Ballot Measure 36 this month bans future same-sex marriages in Oregon, gay-rights advocates said they still might challenge the constitutionality of the initiative in a separate lawsuit at a later date. ... Kelly Clark, attorney for the Defense of Marriage Coalition, sponsor of Measure 36, said the passage of the measure eliminated any doubt about the validity of state laws that define marriage as being between a man and a woman. Clark also questioned how gay-rights advocates can change tactics and push civil unions after arguing against them in earlier legal briefs. "You can't change your request two-thirds of a way through a lawsuit," Clark said. Gay-rights advocates say they were seeking the right to marry as well as the legal benefits of marriage. Measure 36's passage eliminated their constitutional right to marry, but not their rights to the benefits of marriage. The Oregon attorney general's office has identified 279 state laws that relate to marriage. Most define benefits and rights in areas such as Social Security, taxes, inheritance, public assistance, immigration and housing -- benefits that generally become important in times of illness, crisis, divorce and death. ... In their legal briefs, attorneys for Basic Rights Oregon and the American Civil Liberties Union ask the Oregon Supreme Court to order the Legislature to pass a law giving gay and lesbian couples the same state benefits, obligations, rights, responsibilities and protections that married couples and their children receive. more
NAT'L FOUNDATION TO DEFEND MARRIAGE OPENS IN UTAH: From the Associated Press
On the first anniversary of a Massachusetts Supreme Court ruling allowing same-sex marriage, two Utah attorneys announced a new foundation Thursday to defend traditional marriage across the country. Monte Stewart and Bill Duncan's Marriage Law Foundation will provide legal support and resources against lawsuits challenging attacks on any state's ban on gay marriage. The group will track legislation being passed on the issue while protecting laws that ban same-sex marriage against "judges not willing to defer to the will of the people on those laws," Duncan said. ... Stewart said the group would also review legislation that provides benefits or other legal rights to co-habitating couples. There are many kinds of legislation that provide benefits of that nature that don't threaten heterosexual marriage, he said. ... Board members include Robert Destro, also with the Columbus School; Maggie Gallagher, of New York, president of the Institute for Marriage and Public Policy and co-author of "The Case for Marriage," and William Maycock, an Atlanta attorney. Dixie Leavitt, former president of the Utah Senate and father of former Utah Gov. Mike Leavitt, is also on the board. more
POLLAGE: NEARLY 60% BACK CURRENT WASHINGTON MARRIAGE LAW: From the Seattle Times
Nearly 60 percent of Washington residents, in a statewide poll conducted before this month's elections, said the state law that defines marriage as between a man and a woman should not be changed. Eighty-eight percent of those surveyed said marriage is not an outmoded, old-fashioned institution, and more than 90 percent said they expected their own marriages to last the rest of their lives. ... Wirthlin Worldwide polled 402 Washington adults by telephone between Oct. 6-9. The firm said the survey has a margin of error of 4.9 percentage points. Among the poll's findings: Thirty-nine percent said they were not aware of the same-sex marriage cases pending before the state Supreme Court. Fifty-nine percent of the poll respondents said the definition of marriage should not be changed, while 39 percent said they thought it should be. Fifty-seven percent said marriage should remain between one man and one woman, while 41 percent said it should be between two loving adults, regardless of their gender. (By comparison, a Seattle Times poll this spring found slightly more than 50 percent of those surveyed said same-sex couples should be denied the right to marry, while 44 percent supported gay marriage.) more
COUPLES ADOPT AS GAYS PROTEST: From the Orlando Sentinel
As 15 married couples appeared before a judge Friday at the Orange County Courthouse in Orlando to adopt a total of 23 kids, gay rights activists stood on the courthouse steps below campaigning for the same right -- to legally adopt children. Activists of the Coalition for Fair Adoption in Orlando, Miami and Clearwater announced plans Friday to push for a repeal of a Florida law banning gays from adopting children. ... The boy was one of the 3,300 Florida children in foster care eligible for adoption. Coalition members are targeting those children. They say loving gay couples can parent as successfully as heterosexual parents and give children in the state's care a permanent home. However, opponents of gays adopting argue that same-sex parents don't provide the parental role models children need. What a child needs, they say, is a mother and a father. more Friday, November 19, 2004
UK CIVIL PARTNERSHIPS BILL CLEARS FINAL HURDLE: From the Scotsman
Government plans for so-called "gay weddings" passed their final hurdle in the Lords tonight -- after a three hour heated debate and protests that it would create unfair tax advantages for a minority. The Civil Partnerships Bill gives gays and lesbians the right to form legally binding civil partnerships -- giving them the same tax, inheritance and tenancy rights as married couples. It now awaits Royal Assent. ... Baroness O'Cathain argued that the Bill was discriminatory because it would give inheritance and capital gains tax advantages to same sex couples that were not available to sisters, brothers, parents and children who looked after each other. The death of an elderly sibling could often mean the one left faced great hardship and the loss of the family home. ... Lord Tebbit called for a clear explanation from Lady Scotland adding "you said there was a clear distinction between civil partnerships as envisaged in this Bill and civil marriage. "Would you elucidate now what that difference is?" Lady Scotland replied: "One of the differences is consummation. "In relation to marriage, for a marriage to be valid it has to be consummated by one man and one woman and there is a great deal of jurisprudence which tells you exactly what consummation amounts to, partial, impartial, penetration, no penetration. "If you wish me to give a dissertation on family law I would be happy to do so. There is no provision for consummation in the Civil Partnerships Bill. "We do not look at the nature of the sexual relationship, it is totally different in nature." But Lord Tebbit said that if there was no question of consummation in a civil partnership why couldn't it be extended to people who have a close family relationships, such as two homosexual brothers? Lady Scotland said it was improper for those related to one another to enter into a relationship, similar to that of marriage. more
BREAKING UP IS HARD TO DO FOR GAY COUPLES: From the Washington Blade
..."Being denied divorce protections is one of the problems of not having equal marriage rights," said Evan Wolfson, executive director of Freedom to Marry, an organization working to win marriage equality for gay couples nationwide. "It's one of the most important reasons to have marriage equality." The federal Defense of Marriage Act defines marriage as between one man and one woman, and allows state governments to decide whether they will recognize same-sex marriages performed in other states; currently, nearly all do not as a matter of record, though refusals have not been tested in court. But DOMA "is silent on divorce," according to Heather Sawyer, senior counsel for Lambda Legal. Marriage and divorce laws vary from state to state, forcing same-sex couples who seek to dissolve their partnerships into uncharted legal territory. "Some same-sex couples have not carefully thought out the consequences" of getting married, Wolfson said. "Now that we have that freedom [in Massachusetts], it's important to make an informed choice. As gay people come closer to equality, it's our responsibility to take it seriously." Vermont civil unions are only valid in that state, and offer some of the rights of civil marriage. While it is easy for a resident or out-of-state couple to obtain a civil union -- all they have to do is get a license from the town clerk -- it's relatively difficult to dissolve that union in Vermont. "The issue at hand is what people can do if they live in a state other than Vermont, go to Vermont to obtain a civil union, and then decide to dissolve the civil union in their home state," said Heather Sawyer, a lawyer with Lambda Legal. "What happens then?" ... Out-of-state couples that file for dissolution in their home state may face legal challenges to first prove the validity of their union prior to dissolving it. ... All couples that file for divorce in Massachusetts must fulfill the one-year residency requirement to have the divorce granted. However, Sawyer noted that if someone resided in a state that does not honor a Massachusetts marriage, it's unlikely that it will honor a divorce, as there would be no recognized legal ties between the parties to begin with. ... "Many states are asking, 'Does marriage in Massachusetts equal marriage in Ohio?' Some states may balk at managing that divorce," given the lack of legal precedent thus far, Buseck said. If the 1913 law is overturned, out-of-state same-sex couples may marry in Massachusetts and file for divorce in their home state, though he did not know of any couples that had done so. Lambda Legal recommends same-sex couples, whether entered into a civil union/marriage or not, should maintain "wills, powers of attorney, health care proxies, [and] partnership and parenting agreements" to protect their family's interest while the validity of same-sex unions are challenged in court. more
GAY GROUPS TO FOCUS ON WINNING LOCAL BATTLES: From the Washington Blade
While gay leaders evaluated dozens of national strategies to consider in the fight for gay rights during last week's Creating Change conference in St. Louis, many advocated for a greater focus on state and local issues. The 17th annual conference -- organized by the National Gay & Lesbian Task Force -- included about 2,500 organizers from gay rights groups across the country reviewing legislative strategies for the upcoming years. ... Some activists pointed to Connecticut as another example of a state taking on gay rights issues in a local and measured way. The Connecticut Legislature may consider a civil unions bill when it reconvenes in January. The bill would likely have support from Democrats, who hold strong majorities in both houses, and possibly from Republican Gov. M. Jodi Rell and House Minority Leader Robert Ward, who have indicated they might be willing to expand rights for gay couples, though they both oppose gay marriage, according to the Danbury News Times. Anne Stanback, president of Love Makes a Family, a Connecticut-based gay rights group, said she also expects to see a marriage bill introduced. Stanback said same-sex marriage bills have been introduced in previous years but have never made it out of committee. ... Keith Boykin, a White House special assistant in the Clinton administration and a member of the National Black Justice Coalition, said meeting participants were "fired up" and ready to be "motivated and active," adding that it was important for the gay activists to have a multi-pronged strategy -- pushing for marriage, fighting for civil unions -- similar to tactics employed during the black civil rights struggle of the 1950s and '60s. ... "It's not an either-or strategy. During the civil rights struggle, Dr. King pushed for a more moderate agenda than Malcolm X, but both men needed each other in many ways. For civil unions to have been taken seriously, marriage had to be pushed to the agenda." more
BRIDGES BURNING, GAY GROUPS STRUGGLE TO COPE WITH GOP DOMINANCE: From the Washington Blade
Concern and frustration spilled out into the open this week over how the Human Rights Campaign will navigate the post-election of a capital city now even more tightly within the grasp of conservatives. A member of the HRC's Federal Club of key donors raised concerns at a Tuesday night meeting with HRC staff about the group's laserlike focus on marriage equality and hinted that without a new strategy for working with the GOP-dominated government, new leadership might be needed at the country’s largest gay lobbying group. Randy Foster, 39, said he became concerned about the direction gay groups were taking this year after talking with a congressman during a flight from Los Angeles to Washington, D.C., three days after the election. The lawmaker, whom Foster declined to identify, said that marriage had become such a priority for gay leaders he wondered how effective gay lobbyists would be during the next four years. ... Some have criticized gay groups for pushing the marriage issue during an election year. But Jacques dismissed concerns about the timing of the gay marriage issue, adding that the "Massachusetts Supreme Judicial Court handed us marriage equality." ... Others, including gay Rep. Barney Frank (D-Mass.), have criticized HRC and other gay groups for embracing the actions of San Francisco Mayor Gavin Newsom, who began issuing marriage licenses to gay couples in February. Jacques defended the group's support of Newsom, adding that the San Francisco mayor did not ignite the outcry from social conservatives to push ahead with the 11 state amendments. Jacques said, "that fire was already lit." more
VIEW FROM THE BACK OF THE MARRIAGE BUS: Steve Koval replies to James Driscoll
James Driscoll, a former appointee to George W. Bush's Presidential Advisory Council for HIV-AIDS (PACHA), has an op-ed piece in today's Washington Times. ... Driscoll claims that "the slight drop in George Bush's 2004 percentage of the gay vote, from 26 percent to 23 percent, indicates that for grassroots gay voters, marriage remains a low priority." But Driscoll's conclusion does not at all follow from the facts. At best, he could claim that gay marriage has not become an overwhelming issue for the one-quarter of gay voters who voted for Bush in 2000. These are hardly representative of gay voters as a whole. ... What Driscoll fails to appreciate is that any gay issue is a red flag for "religious conservatives." Driscoll forgets how radical the Vermont Supreme Court decision, in response to which the state's legislature adopted civil unions, seemed in 1999. By demanding full marriage equality, those radical civil unions are so moderate that even President Bush said he saw no problem with states adopting them. And the tactic of pushing for full marriage equality seems to have worked well in moving public opinion: over 60 percent of Americans now favor gay marriage or protections offered by civil unions. Driscoll is obviously right on one point: In 2004, gay marriage is not an idea that most Americans are ready for. However, if gays don't push for full civil rights, America will never be ready. more
D.C. GAY MARRIAGE BAN PETITION WITHDRAWN: From the Washington Blade
A D.C. woman who said she believes gay marriage is harmful to African-American families withdrew a petition to place an initiative on the ballot to ban same-sex marriage in the District of Columbia. Ward 4 resident Lisa L. Greene said she withdrew the proposal after an attorney with the D.C. Board of Elections & Ethics informed her that she used the wrong "legislative format" in drafting the initiative and she failed to submit a required campaign finance statement. "I will submit it again," she told the Blade. "I will contact them beforehand and make sure I have it correct." ... Bill O'Field, a spokesperson for the elections board, said Greene's initiative could not be placed on the ballot until the next regularly scheduled citywide election, which takes place in September 2006. The text of Greene's proposed initiative states, "The Citizens of the District of Columbia and the District Council defines and preserve marriage as a relationship between one man and one woman only." Greene named the initiative the District of Columbia Marriage Protection Act . more
"THE RIGHT TO MARRY INFINITE PEOPLE": Eve
That's what some moot-courting students said distinguished a hypothetical right to polygamy from the hypothetical right to same-sex marriage that they were defending. But... doesn't "the right to marry infinite people"--or at least the ability to ditto--already exist? It's called divorce. It's subject to various rules and restrictions; but so is marriage, in general. I'd be interested to know if Petitioners had some other way of distinguishing serial monogamy from polygamy, and if they would uphold a claim to "the right to marry infinite people, one at a time." Would a distinction between "the right to marry infinite people at the same time" and "the right to marry infinite people one at a time" pass the kind of intensive scrutiny that the Massachusetts Supreme Judicial Court gave that state's marriage statutes?
MOOT COURT REPORT: Waddling Thunder
[I don't make up these blog pseudonyms. I just report 'em. --Eve] The Ames Moot Court Competition is held at Harvard Law School every year. Traditionally, a Supreme Court Justice arrives for the final, along with two judges from the circuit courts of appeal. This year, the judges were Ruth Bader Ginsburg, of the US Supreme Court, Richard A. Paez, of the US Court of Appeals for the Ninth Circuit, and Reena Raggi, of the US Court of Appeals for the Second Circuit. The cases for the Ames are invented, but usually discuss a major topic of the day. Accordingly, this year's case tackled the constitutional issue of gay marriage, in an action called Amy Annis, et al v. The State of Ames and the Ames Department of Health. ... The argument for Petitioners on Due Process covered several major topics. Of course, the chief problem for the case on that side is one of line drawing--if Loving v. Virginia said that bans on interracial marriage were illegal because marriage was a fundamental right, and Lawrence v. Texas tells us that being homosexual is a protected privacy right, what keeps someone who wants to marry their both grandmother and their sister from coming to the court for redress? I thought respondents gave as good an answer that exists on that point--polygamists aren't being denied the right to marry but the "right to marry infinite people". What gays and lesbians are asking for is fundamentally different than that. The Court didn't push on the pure incest case, so I'm not sure what Petitioners response would have been. Justice Ginsburg drove at one point on why Petitioners were bothering the Court about this question. Couldn't the legislature do as well? Respondents answered that fundamental rights were subject to no election. Ginsburg followed by asking about the international context--certainly, gay marriage has been legalized around the world, she noted, but almost always by legislatures. Did respondent know of any country besides Canada to legalize gay marriage through the Courts? Respondents answered that they did not, but that this didn't change their argument on fundamental rights. There were two main issues on the Equal Protection side of Petitioners argument, as one might expect. First, the question was whether the Court should apply some sort of heightened rational basis scrutiny. Second, regardless of which standard of review the Court was to apply, the Respondents had to show that the State's reasons for banning gay marriage had no rational basis. There was considerable debate between Justice Ginsburg and Petitioners about the first of these points. Obviously, the position of Petitioners was that there was such a thing as heightened rational basis scrutiny. Justice Ginsburg pursued them, asking them which case supported their position. Petitioners conceded that no specific case held as much, but that the Supreme Court practice betrayed a difference between the kind of rational basis scrutiny applied in economic regulation cases, and that applied in cases where, as their brief put it, "a classification significantly interferes with important personal interests and relationships". Romer was thought to be the chief of these cases. Justice Ginsburg pursued again--in Romer, she said, the problem was denial of the classes' right to the political process. They couldn't just go to the legislature, because discrimination had been embedded in the state Constitution--here, the Justice continued, the obvious remedy was to go to the legislature. Petitioners responded, I believe, by noting that the plaintiffs in Romer could indeed go to the legislature, but that the effort was just harder. And in any case, they noted, the right to marriage shouldn't rely on efforts before the legislature. On the second point, both Judge Raggi and Paez pressed Petitioners on their definition of rational basis. The former asked Petitioners why the imperative of bringing order to an institution that produces disorder, such as marriage, was not a rational basis. The rational basis, she said, wasn't the protection of procreation, but the imposition of order. Judge Paez at one point followed by asking whether tradition itself was not a rational basis. Petitioners were able to respond to that point by wielding Loving--tradition also forbade inter-race marriage, and yet the Court ruled bans on such marriage unconstitutional in Loving. This brought the Respondents to the podium, first to argue the due process point. The obvious problem for respondents is Loving. How can it possibly be different than the current case, several judges wanted to know? There really are only two answers available to Respondents. ...The second, which Respondents did argue, is that Loving differs from the current case because of the state's emphasis on procreation. Respondents were pushed hard by several judges on the question of whether marriage itself, devoid of procreation, was a fundamental right or not. Their answer was again to put the discussion in the context of procreation. As their brief explains it, "[the pertinent] enquiry is not whether a fundamental right to marry exists, but whether that long recognized right includes the right to marry a same-sex partner". Justice Ginsburg, I believe, raised the inevitable question of the sterile marrieds, drawing an unclear response. Judge Raggi leaned in for the kill by putting respondents on the spot--if a state drafted a law forbidding marriage between obviously sterile adults, but allowed same sex partners to marry who were committed to using a third party to have children, would that be constitutional? Stuck between a rock and a hard place, Respondent agreed that it would--but that other constitutional concerns would keep the state from passing such a law. more
ONTARIO MINISTER URGES MUSLIMS TO STAY IN GAY-ED CLASS: From the Canadian Press
[Via the conservative Western Standard blog, where you can find discussion in the comments. --Eve] Ontario Premier Dalton McGuinty encouraged Muslim parents Wednesday to allow their children to attend public school classes that include teaching tolerance of gays and lesbians. McGuinty and Education Minister Gerard Kennedy both reached out to Muslim parents who are upset about what the Toronto District School Board calls "anti-homophobia education" at a downtown school. ... Controversy erupted after students at Market Lane Public School were shown videos that depicted the feelings of children who get taunted at school because their own parents are homosexuals. Angry Muslim parents complained that their religious beliefs were getting less respect from the board than gay rights and demanded that their children be excluded on religious grounds from similar presentations in the future. The board rejected their request Tuesday night on the grounds that allowing some students to be excluded from discussions about gay families would violate the rights of those children with same-sex parents. "Ultimately, our civil values include respect for sexual orientation," Kennedy said before a cabinet meeting Wednesday. "I don't think there's any harm done to parents who find their children exposed to ideas that are different than the ones they teach at home." ... Ontario's New Democrats echoed the government's position. "I believe that human rights come above religious rights," said NDP critic Michael Prue. "I would hope Muslim parents would understand that they have chosen to move to a pluralistic society, and it goes along that that we have respect for everyone, including them." more
WHY WE NEED A MARRIAGE AMENDMENT: Robert P. George and David L. Tubbs
...In the traditional or classic understanding of American federalism--expressed in the Federalist Papers and reflected in the design of the Constitution--democratically elected state legislators represent the citizens who elect them. Those legislators enjoy wide authority to make laws relating to marriage and family life, and promoting public health, safety, and morals. Because the U.S. Constitution vests state lawmakers with such wide-ranging powers in these areas, on the classic view, courts must defer to state legislatures. Such deference is no mere courtesy or convention, but a constitutional duty. A judge may invalidate state legislation relating to marriage and family life or on public health, safety, and morals only if it conflicts with norms fairly derived from the text, logic, structure, or original understanding of the state or the federal constitution. As private citizens, judges may object to a law or policy on prudential or moral grounds, but as judges, they must distinguish the desirability--even the justice--of a policy from its constitutionality. Virtually all judges still pay at least lip service to this obligation. Even so, state judges today ignore or circumvent it in practice with alarming frequency, so that the kind of federalism we increasingly have is not one of state legislatures but of state judiciaries. For this, the late U.S. Supreme Court justice William Brennan bears considerable blame. In an influential 1977 article in the Harvard Law Review, Brennan noted that state constitutions, like the U.S. Constitution, include provisions that convey important legal norms and principles in abstract-sounding language. Such provisions sometimes admit of multiple interpretations, especially when jurists ignore the relevant history and precedents. Brennan urged state appellate judges to interpret the state constitutional provisions expansively to secure individual rights, just as the Supreme Court had done under Chief Justice Earl Warren. It was advice that many state-level judges proved eager to heed. In the years since Brennan wrote, state supreme courts--among them California's, Kentucky's, and Georgia's--have coined new rights or enlarged the scope of rights promulgated by the Warren and Burger Courts. Nowhere have the state courts run amok more wildly, however, than on same sex-marriage, an idea opposed by a sizable majority of Americans. In Hawaii, Alaska, Vermont, and now Massachusetts, judges have sought to redefine marriage, against the voters' will. Can't states just deal with this judicial arrogance themselves, by flexing their federalist muscles? One prominent advocate of redefining marriage, Andrew Sullivan, says it's already happening (to his regret). He cites the following facts: 38 states have passed legislative bans on same-sex marriage; four states have already amended their constitutions to the same end (with an overwhelming 70 percent of Missouri voters endorsing a state constitutional ban this past August); and roughly a dozen states have scheduled referenda to consider similar amendments. ... Regrettably, these state-level political efforts ultimately won't stop the march to redefine marriage. The reason: the Supreme Court is almost certain to nationalize the issue and make same-sex-marriage legal from coast to coast. ... But one can also make a strong positive case for an amendment. After all, the idea of same-sex marriage would have seemed outlandish only a few years ago, and today only a minority, led by an elite of academics, journalists, entertainers, and, of course, state and federal judges and their clerks, gives the idea any credence. The vast majority of Americans holds as self-evident the truth that marriage between a man and a woman is a fundamental institution of a free and democratic society. And in a free and democratic society, they have the right to enshrine that truth in their constitution. more
I WED THEE, AND THEE, AND THEE: Kay S. Hymowitz
Same-sex marriage advocates tend to jeer at the argument that allowing such unions will open a smorgasbord of marital practices. They insist that what interests them is not to transform the institution radically but only to welcome their homosexual friends, neighbors, and relatives to its benefits. A few recent developments suggest that they're dead wrong. Consider a recent USA Today op-ed by Jonathan Turley, arguing that it's time for polygamous marriage to receive constitutional protection. However misguided, Turley is no bomb thrower. He is a Georgetown University prof, a prolific scholar, and a frequent television talking head on legal issues. Here, he simply underscores two points that homosexual advocates downplay: first, that the Supreme Court's 2003 Lawrence decision, striking down anti-sodomy laws, "recognized the constitutional right to engage in any form of consensual sexual relation," presumably including multiple partners; and second--and somewhat more plausibly, given that Lawrence is about private sexual practices and implies nothing about marriage--that Reynolds v. United States, the 1878 Supreme Court case that upheld a ban on polygamy in the United States territories, is so filled with racist innuendo and cavalier attitudes about religious freedom that it would be unlikely to pass muster today. ... More disturbing still, several legal cases pleading the cause of polygamy are already in motion. In Bronson v. Swensen, a Utah threesome has filed suit against the Salt Lake County Clerk's office for denying them a marriage license. Their attorney, who, like Turley, specializes in civil rights cases, argues that if Texas cannot criminalize sodomy, Utah should not be able to criminalize polygamy--though again, why the right to commit sodomy implies anything about marriage, let alone marriage with multiple or same-sex partners, is unclear. more
ISRAELI COURT RULES FOR GAY COUPLE IN INHERITANCE CASE: From the PlanetOut Network
A court in Israel has ruled that lesbian and gay couples must also be recognized in the realm of inheritance tax -- the first time such a decision has been made in the country. Nazareth District Court has ruled that same-sex couples can be included in inheritance laws, despite the existing legislation using the terms "man and woman" to describe a partnership. The ruling follows a recent case where Kiryat Shmona was contesting a decision made by the Family Court, which barred him from inheriting his long-term partner's estate. The couple had lived together for a number of years, and the now elderly man argued that their relationship should be recognized as being akin to marriage. The case must now return to the country's Family Court, which is set to organize the changes needed for the case to push forward. However, the government is expected to challenge the case, newspaper Ha'aretz claims. more
NORWAY REJECTS SSM: From the PlanetOut Network
Lawmakers in Norway rejected a measure on Thursday that would have granted marriage rights to same-sex couples, including the right to adopt children. According to Agence France-Press (AFP), a majority of the members of Parliament voted against an amendment to make existing marriage law "gender-neutral." The opposition included many Christian Democrats, the party of Lutheran pastor and Prime Minister Kjell Magne Bondevik. The Scandinavian country currently allows same-sex couples to enter into civil unions, which carry most of the same privileges as marriage. The prohibition on adoption, however, does not necessarily keep same-sex couples from having children. Some couples travel to nearby Denmark, AFP reported, to take advantage of artificial insemination by anonymous donors. Proponents of the measure argued that the adoption rights would most benefit existing children of same-sex couples. "We should ensure that these children have the same rights as children who grow up with a father and a mother," Labour MP Trond Giske said, as reported by the country's NTB news agency. link
MICHIGAN PARTNER BENEFITS SHOULD STAY: Jay Kaplan and Kary L. Moss
...For those concerned with keeping gay people from marrying, this state already had a law prohibiting same-sex marriage. The ballot initiative was thus unnecessary. But, as we argued before the election, its passage could do even more. What is unclear is how the amendment's last six words, "or similar union for any purpose," will be interpreted. Will that language also prohibit domestic partner benefits, including health insurance?Proponents of Proposal 2, in public statements throughout the campaign, emphatically stated that this amendment was simply about marriage. Marlene Elwell, chair of Citizens for Protection of Marriage, was quoted as stating, "This has nothing to do with taking benefits away. This is about marriage between a man and a woman." Spokesperson Kristina Hemphill said, "There's nothing in this amendment ... that will erase anything on the books." Even Gary Glenn, of the American Family Association of Michigan, was quoted as saying, "the proposal will not affect benefits offered to people living together or in same-sex relationships." What is frightening is the ambiguity of those six words. Not surprisingly, the day after the election, Glenn contradicted his previous statement. If these words are broadly interpreted by Michigan courts, both heterosexual and same-sex couples (and their children) could lose important health care benefits they currently receive from their employers. ... We know from the people who call us for help that they stand to lose a great deal. For example, one same-sex couple we know -- Dennis and Tom Patrick -- are the parents of three children. Tom works part-time so he can take care of Josh, who is developmentally disabled. Dennis works for a state university that provides domestic partner insurance coverage for their family. Should the university discontinue insurance coverage for Tom, he will need to work full-time and spend less time home caring for his child. ... We will hold Marlene Elwell, Gary Glenn and Kristine Hemphill to their words. Should there be any attempts to take away domestic partner benefits from employees and their families, the American Civil Liberties Union of Michigan will work aggressively to contain the potential damage of this amendment. more Thursday, November 18, 2004
NEW GAY POLITICAL STRATEGIES: James Driscoll
The big losers in the 2004 election were Democrats and gays. Constitutional bans against gay marriage in 11 states have set back gay rights across the country. Gay leaders bet the ranch and lost. What went wrong and why? How can the gay-rights movement find smarter strategies, tactics and timing that will get better results? Two years ago gay marriage was a low priority. The slight drop in George Bush's 2004 percentage of the gay vote, from 26 percent to 23 percent, indicates that for grass-roots gay voters marriage remains a low priority. Had Mr. Bush said gays should not be allowed to teach in public schools, or work for the federal government, his gay vote would have fallen to single digits. Where gays have the right to marry, e.g. Canada, few have married. Indeed, straight couples are choosing marriage less often: Divorce is costly and traumatic; couples have fewer children; women work in careers; and people live longer and opt for broader experience over lifelong security. Straights are becoming more like gays; only self-hating gays think this is a bad trend. So why was it necessary to wave a red flag before religious conservatives and give ammunition to the far right by backing a sensational split decision from one of our most liberal state courts? Timing is everything in politics: In America in 2004, gay marriage was not an idea whose time had come. The gay movement's haphazard embrace of gay marriage seems reactive and media driven. Too often gay-rights groups measure their success in volume of newsprint and minutes on prime time, rather than in numbers of openly gay people at the tables where decisions are made. Instead of gay marriage, our strategic priorities for 2004 should have been: 1) allowing gays to serve in the military without hiding who they are; 2) eliminating employment glass ceilings for gay people; 3) getting our place at the table, which means openly gay representation in government and both parties in rough proportion to our numbers and talents; 4) civil unions. more
OF CHURCH AND STATE: Adrian Walker
[A.k.a. "You're not the boss of me!" --bitter Eve] Barbara A. L'Italien isn't all alone, if that is any consolation. As the Legislature considered an amendment banning gay marriage earlier this year, other Catholic lawmakers heard, in some cases from the pulpit, that perhaps they would not be good influences on the young people of their parishes if they persisted in supporting the right of gay couples to marry. One lawmaker, who did not want to be identified, told me about going toe-to-toe with a priest over whether the legislator would be welcome at a dinner for a parish youth organizations. It wasn't their first battle over gay marriage. This representative, like many of his colleagues, had taken to sending staff members to attend Mass in his district's parishes, to monitor the beating he was taking from the clergy. The cleric ultimately backed down; he was counting on the legislator's support to help fight off a possible parish closing. But it had been a painful lesson in how faith and politics can collide. L'Italien, a representative from Andover, was asked two weeks ago to step down as cantor of the children's choir because of her support for gay marriage. To her credit, she refused. ... The expectation that lawmakers should slavishly follow the doctrines of any religion or any single constituency doesn't make much sense, really. Too many factors figure into a political decision, and one's public and private positions may well be different. That is especially true on a moral issue that has divided many Catholics. ... This week, L'Italien was quoted as saying that church should be a sanctuary, apart from her work. She couldn't be more right. more
BISHOPS OK PLAN TO BOLSTER MARRIAGE: From the San Francisco Chronicle
The nation's Catholic bishops, promising to "stop the erosion of marriage in our society," voted on Wednesday to start a campaign against divorce, gay marriage, birth control, premarital sex and unmarried cohabitation by heterosexual Catholic couples. The bishops approved a National Pastoral Initiative on Marriage just two weeks after 11 states passed initiatives outlawing same-sex unions and after a large number of U.S. voters cited "moral values" as their most pressing concern. ... Bishop Kevin Boland, chairman of the conference Committee on Marriage and Family Life, said the church needs to do much more than "counter certain threats" such as gay marriage and divorce on demand. "A pastoral letter at this time could deliver a positive, pro-marriage statement," Boland said. Civil unions for gay couples, Boland said, "is not our main cause or focus." "In the United States, the marriage rate has declined by more than 40 percent in last 30 years," he said. "Among Catholics, it has declined at a similar rate." The new four-year initiative will start with research, consultation and the drafting of a major pastoral letter on marriage. That will be followed by a revision of guidelines to prepare people for marriage, new parish programs designed for different ethnic groups and a radio and television campaign to try to change the hearts and minds of the nation's 65 million Roman Catholics -- and the broader American society. more
FEWER GAY COUPLES SEEKING MARRIAGE LICENSES: From the Boston Globe
The number of gay and lesbian couples applying for marriage licenses has slowed to a trickle since a rush to the altar in the days after same-sex marriage became legal in Massachusetts on May 17, according to state records and a Globe survey of large cities and towns. In the first week after the Supreme Judicial Court decision took effect on May 17, 2,500 gay and lesbian couples applied for licenses; 1,700 have done so in the six months since then, according to unofficial tallies by the Globe and state officials. In all, the state's Registry of Vital Records has received an estimated 4,266 marriage licenses for gay and lesbian couples, a spokeswoman said yesterday. ... Some Boston marriages probably involve people coming to the city because it offered an accepting environment. Gates said the relatively high number of gay and lesbian couples getting married probably reflects pent-up demand. "You have to remember that same-sex couples haven't had the ability to marry, so you would expect a surge that probably would not be sustained over time as it becomes a much more normalized process," Gates said. In Provincetown and Northampton, same-sex couples made up the majority of people who received marriage licenses in the last six months. In Provincetown, 912, or 97 percent, of the 937 couples who have applied for licenses since May 17 are same-sex couples. In Northampton, 325, or 66 percent, of the 494 couples who got licenses were gay or lesbian. In Provincetown, 225 of the same-sex couples applied for licenses during the first week after May 17, and in Northampton 114 did. Other cities and towns also had relatively high percentages of same-sex couples applying: In Somerville 32 percent of the applicants were gay or lesbian couples, and in Springfield the percentage was 12 percent. ... But the percentage of male and female same-sex couples seeking licenses differed greatly from city to city, according to the Globe survey conducted yesterday. In Boston, 63 percent of the same-sex applicants were men, while in Northampton 88 percent were women. more
ONE YEAR LATER: From the Boston Globe
One year after the historic court ruling giving gay and lesbian couples the right to marry in Massachusetts, activists and lawyers here are sticking with their strategy of aggressively pushing to expand that right, even though the Nov. 2 election revealed a nation far from ready for same-sex unions. Gay & Lesbian Advocates & Defenders, the Massachusetts group that successfully argued for the right to marry in the Bay State, is pressing ahead with a case to allow same-sex couples from out of state to marry here. In August, GLAD filed another lawsuit, on behalf of seven gay and lesbian couples seeking the right to marry in Connecticut. Other activists are also arguing the issue in the courts. Cases seeking marriage rights for gays and lesbians are still pending in New Jersey and California courts. In several states, advocates plan challenges to bans on same-sex marriage approved by voters on Election Day, though activists remain divided about whether those efforts might backfire, speeding passage of a Federal Marriage Amendment. ... Some, like Andrew Koppelman, professor of law and political science at Northwestern University, would like to see the lawyers hold off, in the hope that with more time Americans will accept same-sex marriage. ''Imagine you have a hornets' nest outside your house, and it's November," he said. ''You can wait for the winter to come and kill the hornets, or you can go out and whack the nest with a baseball bat. What we just saw in this last election are the consequences of whacking the hornets' nest with a baseball bat. All litigation can accomplish now is to make people who are already uncomfortable about same-sex marriage more anxious and defensive." But GLAD civil rights director Mary Bonauto says, ''The hornets have been buzzing at us for 30 years." ... Besides, Bonauto said, polls of voters on Election Day give advocates of same-sex marriage cause for optimism. More than half of those surveyed favored extending rights to same-sex couples, an indication, she said, that voters are more willing to recognize gays and lesbians than the 11 electoral defeats suggest. more Wednesday, November 17, 2004
MULTIPLE MOMS, DUELING DADS: From the Pittsburgh Post-Gazette
The surrogate triplets born in Erie nearly a year ago now have two mothers. One is the egg donor. The other is the womb donor. An Ohio judge decided last week that the egg donor has a mother-child relationship with the triplets. Three months earlier, in another genetic-donation case, Pennsylvania Superior Court ruled that a sperm donor must pay child support. The two cases raise questions about the rights and responsibilities of people who buy and sell genetic material. ... The fear for sellers of eggs and sperm is that someone will track them down for child support. The fear for buyers of eggs and sperm is that a seller will demand rights to the child. That's what happened in the triplets' case, but it was with the aid and consent of the man who bought the eggs, provided the sperm, paid for the womb, and is the father of the boys. He is James Flynn, a 63-year-old Cleveland man who paid tens of thousands of dollars for the surrogate birth of the triplets but then neglected to get the legal papers necessary to take the boys home from the hospital. When Flynn hadn't visited his newborns for five days straight, the womb donor, Danielle Bimber, took them from the hospital. An Erie judge declared in April that she is the babies' legal mother. Shortly after that, the egg donor, Jennifer Michelle Rice, a 23-year-old Arlington, Texas, resident, asked an Akron judge to declare her the mother. ... A judge's decision that a donor has a parent-child relationship should raise concern with anyone who sells or uses genetic material, said medical ethicist Arthur Caplan, chair of the department of medical ethics at the University of Pennsylvania medical school. ... The Erie case, and the case the Pennsylvania Superior Court decided in July, are good examples, he said. In the Superior Court case, a man donated sperm to a woman who told him he'd have no responsibility for the child. But then he was ordered to pay child support for what turned out to be twins. The judges ruled invalid the agreement between the two adults depriving the children of their right to support. more
TIES THAT UNWIND: From the Chicago Tribune
...Across the country, same-sex adoptions and the rights of gay and lesbian parents increasingly are being challenged during a time when the gay marriage debate has ignited a movement by conservative groups seeking to protect the traditional family. A growing number of legal challenges can be attributed in part to the dramatic rise in same-sex families. According to 2000 U.S. Census data, 34 percent of all lesbian couples and 22 percent of all gay male couples are raising children under the age of 18, compared to 19.5 percent of lesbian couples and 5 percent of male couples in 1990. But in particular, pregnancies achieved through artificial insemination and state laws that have made it easier for non-birth parents to adopt have placed two-mommy households under fire. ... "I think it's interesting how the gay marriage debate has been really large in the media, and there's been very little focus on gay families," said Michelle M. Hughes, an adoption attorney in Chicago who has handled same-sex adoptions. "While everybody is arguing over whether there should be marriage or not, the number of gay families is increasing astronomically. And these kids are going to be raised in these homes. Whether you allow adoption or not, it's going on." Oklahoma is the latest state to crack down on gay adoptions. Florida is the only state with a law that prohibits homosexuals from adopting children, whether single or as a couple. Mississippi and Utah have strict prohibitions against adoption by same-sex couples, while states such as Arkansas and North Carolina restrict unmarried couples, which would preclude gays and lesbians. Yet, overall, same-sex adoption has gained acceptance in the last 10 years. ... Today, the majority of same-sex adoption cases involve a biological parent and a non-biological co-parent, Kendell said. But even in the best relationships, non-biological parents who rely solely on their partner's goodwill could potentially face a custodial challenge from their partners' relatives if the birth parent dies, or from their partner if the couple break up. ... It's fair to say that when Janet Miller-Jenkins and her former partner, Lisa Miller-Jenkins, traveled to Vermont in 2000 to be joined in a civil union, which is legal in that state, they thought they would be together forever. Lisa became pregnant through donor insemination and gave birth to Isabella in April 2002. Janet, 40, said she cut the umbilical cord and gave Isabella her first bath. But she did not adopt Isabella, because she said she believed the civil union provided her legal status as Isabella's parent. ...Afterward, their relationship soured, Janet said. Lisa moved back to Virginia and filed for dissolution of the civil union in Vermont. A Vermont judge gave Janet temporary joint custody. But Lisa challenged Janet's presumption of parentage, said Judy Barone, Lisa's attorney in Vermont, speaking on her behalf. Barone said that Janet's mistake was not adopting Isabella. "If you're a stepparent, you have to adopt to call yourself a parent to that child," she said. ... Barone said the case underscores that women--regardless of sexual orientation--need to understand the law when making choices about marriage and children. "It's ludicrous in our society that these are fuzzy issues, and we as women need to stand up and make sure they're not," she said. "You'd think that people who decided to enter a legal relationship and have children would have looked into what they needed to do to secure their legal rights. They're just going haphazardly into these situations and having children." The outcome can be equally devastating when the biological parent in a same-sex family dies. more | ||||||||||
