INTERPRETATION: Jonathan Rowe replies to Ben Bateman

...The problem is that the phrases over which we argue are all written in broad generalities, and the Framers left behind no "book" of specific intent that tells us exactly how the norm is to be applied vis-a-vis every single thinkable specific factual scenario.

In European "civil code" nations, they attempt to do this with their legal codes and the result is hundreds of thousands of pages in civil codes. In common law nations like America our laws tend to be more general and we expect Courts to fill in the many of the specific gaps, with the result being hundreds of thousands of pages of appellate case law. ...

What's the point of all of this? We have a very general statute, and yet many specific-fact questions arise under that statute? Who fills in the gaps? Courts do (sometimes administrative agencies help them out. But even there many "originalists" question the constitutionality of such agencies). This is not to say that the courts just "make things up." No, the fair use test, even though it is written in a very broad manner, points us in certain directions with its four part test. But it hardly answers any specific questions. A lawyer drafting a contract wouldn't dare leave such gaps by writing in such general terms. She'd be sued for malpractice.

That Constitutions tend to be such relatively short documents, with many provisions written in broad generalities, like "cruel and unusual punishment," or "the freedom of speech," or "privileges or immunities" signifies a specific intent on the part of the Framers to construct a document with "built-in flexibility" whose meaning could change over time.

Back to the $1,000 example. Here's a more reasonable one: Let's say a landowner rents out a huge parcel of land to a community for 200 years. The landowner is to charge the community a "reasonable" amount from year-to-year.

So 125 years later, what's a "reasonable" amount? That's what Constitutional interpretation is like.

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posted by Eve at 5:06 PM | link 0 comments

HOUSE OK'S BILL ON RELIGIOUS GROUP HIRING PRACTICES: From the Washington Blade

A bill that would allow religious organizations receiving federal funds to maintain anti-gay hiring policies passed the U.S. House of Representatives earlier this month.

The measure, which passed by a 224-200 vote, was approved after the House rejected an amendment that would have protected the civil rights of workers. The Workforce Investment Act, H.R. 27, now moves to the U.S. Senate where its fate is unclear, political experts said. The White House has indicated that should the measure fail in the Senate, the president will issue an executive order. ...

The new measure, if approved by the Senate and signed by President Bush, would enable faith-based groups receiving federal funds to circumvent local and state laws that bar discrimination based on sexual orientation. There is currently no federal law prohibiting discrimination based on sexual orientation in the workplace.

Tony Perkins, president of the Family Research Council, made clear in his March 1 Washington Update newsletter that the new bill is needed to maintain the employment practices of many religious groups.

"The president made clear though that if these protections are not codified into law, the dangers of bias against the faith-based can return in future administrations," Perkins wrote. "Specifically, organizations that oppose homosexuality and abortion often need extra protection when receiving federal aid or using federal facilities. Amazingly, there are those in Congress whose unwarranted fear of anything faith-based is more important than the tremendous good that is done through faith-based organizations." ...

The Rev. Barry Lynn, executive director of Americans United for Separation of Church & State, said social conservatives are demanding "special rights."

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posted by Eve at 5:01 PM | link 0 comments

HARVARD HOSTS SSM DEBATE: From Bay Windows

During a Harvard-sponsored debate March 15 on same-sex marriage, Harvard law professor Janet Halley accused her fellow panelist Maggie Gallagher and others who advance the argument against same-sex marriage of appealing to fascist impulses. Despite this, however, the bulk of the impassioned debate remained civil.

The odds were stacked against Gallagher going into the debate. The other two panelists, Halley and Diana Eck, a professor of comparative religion and Indian studies, were openly gay, and all of the audience members who asked questions of the panelists favored same-sex marriage. Yet each of the three panelists brought a vastly different perspective to the marriage debate.

Gallagher, a syndicated columnist and author of several books on marriage, argued that marriage should remain a heterosexual institution under the law because it bound children to their biological mothers and fathers. Although she conceded that there had been no conclusive research on children raised by same-sex couples, she said research into all other family compositions shows that children do best in a family with their married biological parents in a household without major conflicts between the parents. (Gallagher's knowledge of the research into same-sex parenting is a bit incomplete. In Nov. 2004 the Society for Research and Child Development published a study showing that adolescents raised by lesbian couples are as healthy and well-adjusted as their peers raised by heterosexual couples.) ...

Halley argued that in the push for marriage rights GLBT advocates have described marriage too readily as a system of rights and benefits, sidestepping many of the restrictive and punitive aspects of marriage that occur when couples file for divorce. She said from a legal point of view, spouses in the divorce process are pitted against each other as adversaries under the law.

"The gay rights organizations are going to need a policy on which spouse to side with against each spouse," said Halley.

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posted by Eve at 4:46 PM | link 0 comments

MARRIAGE AMENDMENT INTRODUCED IN US HOUSE: From the Sacramento Bee

Rep. Dan Lungren on Thursday introduced a constitutional amendment banning gay marriage in a move that irritated gay activists but didn't soothe marriage protectionists, either.

The action by the Gold River Republican and former state attorney general comes just three days after a San Francisco judge ruled that state laws banning gay marriage violate the California Constitution.

Lungren's measure flatly declares that marriage "is a legal union of one man and one woman," and it removes the authority of all state and federal courts from saying otherwise. ...

It would leave states open to establishing laws that Lungren described as "something short of marriage" to protect the civil interests of gay couples but limit the effects of such laws to the states that enact them. ...

A constitutional provision limiting marriage to unions between a man and a woman is pending in the Senate, but Lungren's is the first in the House. It also goes further than the Senate bill by barring courts from any further consideration of the issue.
Lungren is a member of the House Judiciary Committee to which his legislation will be referred.

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posted by Eve at 4:42 PM | link 0 comments

CANADIANS WANT REFERENDUM ON SSM: Press release

(Angus Reid Consultants - CPOD Global Scan) Many adults in Canada want to get directly involved in the decisions regarding same-sex marriage, according to a poll by Compas Inc. for the National Post and Global National. 67 per cent of respondents believe the issue should be settled in a national referendum among all Canadians.

Over the past two years, the courts in British Columbia, Ontario, Quebec, Nova Scotia, Manitoba, Saskatchewan, the Yukon, and Newfoundland and Labrador have ruled to permit legal same-sex marriages. On Dec. 9, the Supreme Court ruled in favour of allowing the federal government to go ahead with a proposal to legalize same-sex marriage. The country's foremost tribunal said the constitution protects the rights of homosexual partners to formalize their bonds. 66 per cent of respondents support keeping the definition of marriage as "a union of one woman and one man to the exclusion of all others."

On Feb. 1, the government introduced legislation aimed at legalizing same-sex marriage in the entire country. Prime minister Paul Martin has guaranteed Liberal party members a "free vote" on the bill. The governing Liberals currently control 134 of the 308 seats in the House of Commons.

Public opinion appears divided on how to grant legal status for gay and lesbian unions. 36 per cent of respondents believe lawmakers should keep the existing legal definition of marriage and set up a separate legal category that includes same-sex unions but would not be called marriage, 35 per cent believe the legal definition of marriage should be changed to include the union of any two persons, regardless of their gender, while 29 per cent are opposed to any law recognizing same-sex unions.

Yesterday, Conservative party leader Stephen Harper said the argument for a nationwide referendum surfaced because "Canadians sense that they are not being listened to by the government." Justice minister Irwin Cotler dismissed the idea, saying a plebiscite "is not the way to go to protect minority rights."

If approved, the law would stipulate that no religious institutions would be forced to perform same-sex marriages.

Polling Data

Should decisions about same-sex marriage be made by

A national referendum among all Canadians
67%

A free vote among all MPs including cabinet ministers
29%

A free vote among MPs, but no cabinet ministers
5%

Do you support strongly, support somewhat, oppose somewhat, or oppose strongly keeping the definition of marriage as a union of one woman and one man to the exclusion of all others?

Strongly support keeping
50%

Somewhat support
16%

Somewhat oppose
12%

Strongly oppose keeping
22%






Suppose you had the following three options. Which would you prefer?

Parliament should keep the existing definition of marriage as the union of one woman and one man and should not pass any law recognizing same sex unions
29%

Parliament should keep the existing legal definition of marriage as the union of one woman and one man and should set up a separate legal category that includes same-sex unions but would not be called marriage
36%

Parliament should change the legal definition of marriage to the union of any two persons, regardless of their gender
35%

Source: Compas Inc. / National Post / Global National
Methodology: Interviews to 885 Canadian adults, conducted from Jan. 28 to Jan. 31, 2005. Margin of error is 3.4 per cent.
posted by Eve at 4:40 PM | link 0 comments

DIFFERING VIEWS ON SSM IN CANADA: Press release

(Angus Reid Consultants - CPOD Global Scan) Canadians hold dissimilar positions on certain arguments advocated by those who either support or oppose same-sex marriage, according to a poll by Compas Inc. for the National Post and Global National. 69 per cent of respondents believe protecting gays against discrimination is long overdue, 48 per cent believe wedlock would bring stability to the lives of homosexuals, and only 12 per cent say traditional marriage can be harmful and needs to be weakened.

Conversely, at least a third of respondents believe same-sex marriage is insulting to religion, common sense and parents, while 24 per cent believe it could lead to polygamy.

Over the past two years, the courts in British Columbia, Ontario, Quebec, Nova Scotia, Manitoba, Saskatchewan, the Yukon, and Newfoundland and Labrador have ruled to permit legal same-sex marriages. On Dec. 9, the Supreme Court ruled in favour of allowing the federal government to go ahead with a proposal to legalize same-sex marriage. The country's foremost tribunal said the constitution protects the rights of homosexual partners to formalize their bonds.

On Feb. 1, the government introduced legislation aimed at legalizing same-sex marriage in the entire country. If approved, the law would stipulate that no religious institutions would be forced to perform same-sex marriages.

Prime minister Paul Martin has guaranteed Liberal party members a "free vote" on the bill. The Liberals currently control 134 of the 308 seats in the House of Commons.

Polling Data

Please tell me if you agree or disagree with each of the following reasons for supporting gay marriage:

Agree
Disagree

Protecting gays against discrimination is long overdue
69%
31%

Gay marriage would bring stability to the lives of homosexuals
48%
52%

Traditional marriage can be harmful and needs to be weakened
12%
88%

Please tell me if you agree or disagree with each of the following reasons for opposing gay marriage:

Agree
Disagree

It insults religion
48%
52%

It insults common sense
40%
60%

Gay marriage insults parents, who need encouragement to carry out the hard work of
caring for children
33%
67%

It could lead to polygamy
24%
76%

Source: Compas Inc. / National Post / Global National
Methodology: Interviews to 885 Canadian adults, conducted from Jan. 28 to Jan. 31, 2005. Margin of error is 3.4 per cent.
posted by Eve at 4:37 PM | link 0 comments

NJ JUDGE'S TAX RULING EXPANDS RIGHTS FOR SAME-SEX COUPLES: From the NJ Star-Ledger

In a decision that opens the door to giving same-sex couples more of the rights conferred by marriage, a Tax Court judge has granted a disabled Air Force veteran and his same-sex partner the total exemption from property taxes they would enjoy as spouses.

Gay rights activists were delighted that the ruling takes an expansive view of New Jersey's Domestic Partnership Act, enacted last year to give same-sex couples some, but not all, of the benefits of marriage.

Tax Court Judge Vito Bianco ruled that domestic partners who register under that law can claim certain "tax-related benefits" that are "accorded to married couples" even when those benefits are not spelled out in the law. ...

"The crucial thing about today's decision is that the judge opens the door in the most wonderful, appropriate way to rights not in the letter of the law," said Steven Goldstein, chairman of Garden State Equality.

David Buckel, director of the marriage project for Lambda Legal, called it "an important tax ruling" and praised the judge for recognizing that "protecting committed same-sex relationships is not only good for families, but is also good for the state because stronger families don't need government support."

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posted by Eve at 7:45 PM | link 0 comments

THE ROLE OF THE COURTS: Ben Bateman

[Very active comments section, as well. --Eve]

...Marty: "Why are 'We The People' being shut out of the most important cultural decisions of our time?"
ResIpsa: "Because 'We the People' have a knack for approving of things like slavery, racial segregation, denying women the right to vote, and preventing people of different races to marry."

What a remarkable exchange! On that logic, why bother calling them judges? Why not just call them benevolent oligarchs? Or we could buy them little faux military uniforms and call them generalissimos.

If you really believe that the people are ignorant, stupid, and evil, then why tolerate any kind of democracy or voting? Is it just an opiate for the masses, something to soothe us while our benevolent masters run things behind the scenes?

What the Words Mean
ResIpsa: "You also have to remember than in Calif., NY, and Mass., there is a slightly higher standard than just a rational basis since sexual orientation is protected by statute in each of those states, creating a potentially higher level of scrutiny."

That argument cuts two ways, at least in Mass. The Goodridge opinion relied heavily on the states Equal Rights Amendment, which specifically forbids sex discrimination. So you could say that this made the case easier.

But the trouble with relying on the Mass ERA is that it was enacted in 1976, well within living memory and partly within the reach of modern information searching. Opponents of the Mass ERA listed many possible problems with it, and SSM was on that list. Mass. ERA supporters ardently insisted that those concerns were ridiculous, and that the ERA could never be interpreted to require SSM.

My logic is simple: The only reason any given string of words has special force as part of any constitution is that some group of citizens or their representatives voted for those words. That's the only thing that makes those words special.

The conservative view of constitutions is that the words in a constitution mean what the voters intended them to mean.

The liberal view of constitution is hard to describe--perhaps intentionally. As best I can determine, the ignorant, bigoted voters (the people themselves or their representatives) vote on some set of words. And what those voters thought those words meant is completely irrelevant. Getting the voters to approve a constitutional amendment is apparently some meaningless, antiquated bit of ceremony left over from an earlier age. The important part comes after the voters have had their say, when the judges tell the voters what the words actually mean. The voters may have thought that the words meant X, but the judges know that the words actually mean Y.

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

ROMNEY SOFTENS TONE ON GAY MARRIAGE: From the Boston Globe

Governor Mitt Romney, who set off an uproar in Massachusetts with his recent remarks about gay marriage to out-of-state Republican activists, last night appeared to soften his tone, adding language to his stump speech about the need to respect modern families that come in many forms.

Still, speaking before nearly 600 people who attended a fund-raiser for Michigan's GOP state senators, Romney restated his view that "every child deserves a mother and a father," and praised Michigan voters for their recent approval of a measure banning gay marriage.

Romney's remarks highlighted the careful line he is attempting to walk as he tests the waters for a potential 2008 run for president, aiming at conservative Republicans who vote in GOP presidential primaries.

Massachusetts gay-rights supporters complained that Romney was belittling gay parents last month when, in describing legalized same-sex marriage in Massachusetts, he told a South Carolina GOP audience that, "Some are actually having children born to them." Activists staged a protest at the State House.

Last night, as he has in recent speeches in Missouri, South Carolina, and Utah, Romney noted that gay marriage is legal in the Bay State, and bemoaned the fact that the state may have to replace "mother" and "father" on birth certificates with "parent A" and "parent B." But he also added an explanation that, "I'm not saying this should be about discrimination."

"Americans respect all people. We also recognize that there are many settings where children are raised," he said, citing grandparents and same-sex couples as examples. "But we choose to recognize one setting as the ideal."

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posted by Eve at 7:38 PM | link 0 comments

UK GAY COUPLES TO ENJOY SAME PERKS: From the Guardian

Lesbian and gay couples took another step towards full equality yesterday with provision in the budget to grant same-sex "civil partnerships" the same tax advantages enjoyed by married couples. ...

In the budget yesterday the Inland Revenue announced a series of changes to the UK tax rules in order to ensure that gay and lesbian couples are treated on a par with married couples. ...

But Michael Caden, tax partner at BDO Stoy Hayward, warned that there are also some tax disadvantages that stem from registering as a civil partnership.

Like married couples, civil partnerships can only have one exempt residence for the purposes of capital gains tax. In addition, the tax avoidance rules -- many of which are concerned with offshore funds -- that govern married couples will also apply to same-sex relationships.

In addition there are few tax reliefs left for married couples. The married couple's allowance is only available to couples in which one of the spouses was born before April 6 1935.

The rules will be changed so that the married couples allowance can be claimed by same-sex couples provided one partner is more than 70 years old. It remains to be seen how many septuagenarian homosexuals will take advantage of the new tax break.

Under the current rules the allowance is calculated using the husband's earnings. That will be changed so that civil partnerships and new marriages will have the allowance calculated with respect to the income of the couple's highest earner.

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posted by Eve at 7:25 PM | link 0 comments

CALIFORNIA RULING: Andrew Sullivan replies to National Review

Here's an argument made against the logic of Judge Richard Kramer's decision in California:

Under any set of marriage laws, the fit between the laws' purpose and the eligibility criteria they establish will be somewhat loose. Are the laws there to promote loving relationships? Well, the law doesn't require that the partners in a marriage love each other. Do they promote the formation of stable households where the partners look out for each other? Well, not every married couple lives together, and it is an "obvious social reality" that not every cohabiting couple is married. This kind of pseudo-rationalism would undermine any marriage law at all.

The reason this doesn't persuade me is that no one is using any of these actual, not-always-present aspects of civil marriage to deny anyone's right to marry. No one, so far as I know, is saying that we should bar couples from civil marriages because they are not in love or not cohabiting or any other criterion. But they are saying that couples who do not or cannot procreate should be barred from marriage -- on those grounds alone. All Kramer is saying is that current marriage laws have no such exception, and that using that exception to exclude one group of non-procreative couples (the gay ones) rather than another non-procreative group (the straight ones) makes no logical sense. Especially when many lesbian (and some gay ones) marriages have biological children, and some straight ones have adopted kids. How does NRO defend that distinction?

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posted by Eve at 7:19 PM | link 0 comments

NO-FAULT DIVORCE FOR NY? YES: Kenneth G. Standard

New York is one of only two states, the other's Alaska, that still requires proof of fault in order to get a divorce.

Individuals here must prove cruelty, which is the infliction of emotional or physical pain, adultery or spousal desertion (or, no sex) for at least one year. ...

People get divorced for reasons that have nothing to do with adultery, abandonment or cruelty but are nevertheless valid. Requiring them to sue on one of those grounds is inappropriate.

Fault-based divorce is widely believed to aggravate rather than ease the conflict between spouses because it focuses on the wrongs that one has committed against another. It also gives unintended and unfair leverage in settlement negotiations to a spouse who refuses to agree to one of these grounds.

Some have argued that we shouldn't make it easier to get divorced because this will lead to unnecessary breakups of more couples. But experience with no-fault systems in other states shows this is unfounded and divorce rates 10 years later were no higher than before the change.

Others worry whether the change to no-fault will make it easier for the person with the larger income to leave the marriage too easily -- without adequately compensating the spouse. But the change we advocate would have no impact on couples' ability to negotiate a settlement and would give no added weight to either side in the law related to the division of assets.

According to a Bar Association survey, many judges in divorce cases believe their time would be better spent focusing on support, custody, visitation and the division of marital property rather than deciding who's at "fault."

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posted by Eve at 7:15 PM | link 0 comments

TIME FOR NO-FAULT DIVORCE IN NY? NO: Lillian Kozak and Gloria S. Jacobs

The New York State Bar Association says we need no-fault divorce, but has any member of any bar association looked at any no-fault state to see the tragic effect on women of this seemingly innocent law?

Those in favor of this bill argue that there is no need to "air the dirty linen in court." But we in the women's movement know that women are suffering financially when judges do not hear the facts, behavior and circumstances that led to the breakup of the marriage.

Proponents also argue that New York needs no-fault because we are almost the only state without unilateral no-fault. That means that one party, with no grounds -- legal reasons -- for divorce, can walk out, abandon the family and then claim that abandonment as a ground -- legal reason -- for divorce. ...

By not encouraging Separation Agreements, more cases will be sent into court. The failure to negotiate drives the issues of child custody, child and spousal support and property division into court, where women continue to face gender bias, a fact admitted by the court administration itself.

Do we need divorce reform? Yes! We have a whole list of reforms needed in New York.

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posted by Eve at 3:15 PM | link 0 comments

A CALIF. COURT'S CASE AGAINST CIVIL UNIONS: Maggie Gallagher

...Of course, the judge's ruling in favor of gay marriage grabbed the headlines. But ultimately the biggest fallout from the case (which will be appealed) may be hidden underneath: The California court just handed the religious right a powerful new case against civil unions.

Civil unions are the kind of compromise legislatures are good at. For many people, civil unions are the sensible, can't-we-all-get-along middle ground in the gay marriage debate. After the November elections made clear the public's continuing strong opposition to messing around with marriage, some gay marriage advocates urged a tactical retreat, pushing civil unions as the quieter "next step" on the road to gay marriage. Get civil unions. Start calling them civil marriages. After a while the lines blur and people will wonder what all the fuss was about.

Besides, with civil unions, they figured the wedge issue worked their way: While a strong majority of Americans are against same-sex marriage, a majority of Americans also tell pollsters they are fine with some form of legal protections for gays and lesbians who enter same-sex unions. Just don't call it marriage.

Why doesn't this compromise work? One reason is that for its passionate advocates, gay marriage isn't really a debate about benefits. (In Connecticut, gay rights groups recently angered Democratic legislators by initially opposing a state civil unions bill under consideration there.) If this were a debate about benefits, democratic compromise could work its magic. A little horse-trading here and there, everybody goes home happy. But gay marriage is, heart and soul, a debate about the meaning of marriage and who has the power to confer this meaning.

A second reason is becoming hard to ignore: Increasingly, pro-gay marriage judges won't let you compromise, as the California case makes clear. ...

"The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts -- separate but equal," the judge wrote.

In fact, the judge went even further: "The existence of marriage-like rights without marriage actually cuts against the existence of a rational government interest for denying marriage to same-sex couples. ... The state's position that California has granted marriage-like rights to same-sex couples points to the conclusion that there is no rational state interest in denying them the rites of marriage as well."

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

SEMINAL CASE: From the Houston Press

On paper, their initial agreement had the markings of an unusual but successful partnership. He was gay. She was lesbian. They were both unmarried. According to her attorney, they did not know each other all that well and had met through a hairdresser. She wanted badly to conceive a child, and he was willing to oblige.
So when Sharon Sullivan and Brian Keith Russell signed a "co-parenting agreement" in February 2003, these star-crossed nonlovers probably had good reason to hope for a scientifically engineered, legally linked, happy family. Two families, actually -- two families that would be separate (but equal), as their contract spelled out.

Russell would provide Sullivan with his sperm so that she could attempt artificial insemination, and she would keep trying until it produced offspring.

"Any child born as a result of the donor insemination procedure will be the child of Brian Keith Russell as if he and Sharon Sullivan were married at the time of conception," the agreement states. "Russell will be named as the father on the child's birth certificate." On top of that, the two parties agreed to share child support and custody, with Sullivan furnishing the primary residence for the kid.

It wasn't your typical boy-meets-girl scenario, and by the time their daughter was born on March 2, 2004, their pact had fallen apart. In the beginning, the two had just set out to make a baby -- albeit in a hands-off, nontraditional way. By the end of their precedent-setting court battle, they might just make legal history as well.

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

SEX: Lillie

When I was a teenager, the idea of my parents having sex disgusted me. But now I see my conception quite differently. I was born not only out of love, but of passion. My parents' passion for each other was born out of their passion for life, and the longing to experience all the power nature through each other. My skin, eyes and fingernails are typing this because desire filled my parents. My body is the gift of their passion. When they die, their bodies will rot and the lusty flesh will give way to brittle bones. But my blood-filled body will remind the world that once they loved and longed. And when I die my children will have the love and longing of all of their ancestors encoded in every membrane.

The well-timed decisions and check-writing of parents who subsidize surrogate-born babies are rational, but they break the chain of love-making. These babies are born not of passion that bubbled up since prehistory, but of a purchased service. Sometimes they are born to married parents who make love to each other, but sometimes they are born to single women, lesbians, or gay men. In any circumstance, their genesis is in commodified technology, not in nature. Not in the heteronormative act.

here
posted by Eve at 5:46 PM | link 0 comments

GAY-RIGHTS GROUP DISPUTES REPORT ON COST OF CT CIVIL UNIONS: From the Associated Press

A gay rights group on Tuesday challenged a state report that said civil unions could cost Connecticut about $1 million in tax revenues.

The state's nonpartisan Office of Fiscal Analysis determined that Connecticut would lose revenue from its inheritance tax because gay spouses would be able to inherit property tax-free.

But an economist at the University of Massachusetts, Lee Badgett, said she believes Connecticut would actually gain about $3 million in revenue if gay couples are allowed to marry. That number drops to about $2 million if Connecticut decides to allow civil unions. ...

Badgett said the agency overestimated how many couples would seek a civil union. She said the tax revenue loss would be offset by other revenue increases, such as increased sales taxes paid for wedding-related services.

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posted by Eve at 5:42 PM | link 0 comments

AUSTRALIAN CATHOLIC ARCHBISHOP BACKS BILL GIVING RIGHTS TO GAY COUPLES: From the Advertiser

THE Catholic Church has given support for a Bill giving gay and lesbian couples access to the rights enjoyed by heterosexual couples.

Catholic Archbishop Philip Wilson threw his support behind the Statute Amendment (Relationships) Bill yesterday "so that people can be properly protected in their rights".

The Bill would give equal rights to same-sex couples in areas such as property, inheritance, superannuation and medical laws, and bring SA in line with other states.

Discussing the Bill at a meeting of Parliament's Social Development Committee, Archbishop Wilson emphasised the importance of protecting the union of marriage but said the law also should be extended to protect the rights of same-sex couples.

"We clearly regard marriage as being a unique type of relationship . . . but at the same time we recognise the fact that there are people in society who live in other kinds of relationships," he said.

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posted by Eve at 5:39 PM | link 0 comments

CALIFORNIA RULING: Editors of National Review

...But in one respect, Kramer goes a step beyond Massachusetts. The Massachusetts court considered the claim that marriage might be defined as the union of a man and a woman because marriage has something to do with procreation. It then ruled that since the culture, various pieces of legislation, and previous judicial decisions had weakened the links among marriage, sex, and the raising of children, marriage therefore had nothing to do with procreation and any features of the marriage law premised on a contrary belief had to go. The reasoning was specious: From the premise that the law and the culture contain inconsistent views of marriage, it does not follow that the court should resolve the inconsistency by throwing out those elements it dislikes.

Kramer, however, did not even perform this perfunctory analysis. He merely 1) finds that the California courts have not recognized procreation as a purpose of the marriage laws, 2) observes in passing the "obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married," and 3) finds that procreation is -- therefore! -- not a legitimate state purpose. One would think that even a proponent of same-sex marriage would want to do better than that. Under any set of marriage laws, the fit between the laws' purpose and the eligibility criteria they establish will be somewhat loose. Are the laws there to promote loving relationships? Well, the law doesn't require that the partners in a marriage love each other. Do they promote the formation of stable households where the partners look out for each other? Well, not every married couple lives together, and it is an "obvious social reality" that not every cohabiting couple is married. This kind of pseudo-rationalism would undermine any marriage law at all.

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posted by Eve at 5:32 PM | link 0 comments

LEGAL OUTCOME COULD HANG ON SEX-BIAS ISSUE: From the San Francisco Chronicle

Defenders of California's ban on same-sex marriage, declared unconstitutional by a San Francisco judge, are setting their sights on a small but crucial part of the ruling as they prepare their appeals: the judge's conclusion that the law amounts to sex discrimination. ...

Nevertheless, Liberty Counsel attorney Mathew Staver, who represents the Campaign for California Families, said Tuesday he would again ask the judge to consider evidence that children fare best when raised by a married mother and father. Kramer said during hearings last fall that conflicting claims about families were irrelevant to the constitutionality of the law. ...

Federal courts sometimes uphold laws that treat men and women differently, but California courts since 1971 have considered sex on a par with race, making it nearly impossible for the government to justify discrimination on either ground.

A finding of race or sex discrimination is "almost invariably fatal to the statute," said Steven Hirsch, an appellate specialist with Keker & Van Nest in San Francisco.

The potential problem in Kramer's analysis, said Hastings' [law professor Vikram] Amar, is that the marriage law "is not motivated by a hierarchy between men and women," unlike the law against interracial marriage, which was rooted in white supremacy.

"It isn't the presumed inferiority of either gender, men or women, that's driving same-sex marriage laws," said Hirsch, who disapproves of such laws. "It's the presumed inferiority of gay people. So what's really at issue here may not be gender discrimination but sexual orientation discrimination." ...

Kramer ruled Monday that the marriage law lacked any rational justification, saying tradition does not justify discrimination, domestic partners are not spouses, and marriage has other purposes besides child-rearing. That may be "the most vulnerable part of his argument," said Amar.

For example, he said, a court could find that the state had a rational basis for "wanting to place a special stamp of approval on certain (relationships) without connoting disapproval of others."

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posted by Eve at 5:25 PM | link 0 comments

FOLLOW THE LEADERS: William J. Rubinstein

...It's easy to dismiss Monday's decision as that of an ultraliberal San Francisco judge. But if there's news here, it's that San Francisco's courts are following other courts on a gay rights issue, not leading them.

Even within California, Judge Richard A. Kramer of San Francisco County Superior Court, who issued the opinion, is following the political branches of state and local government, not leading them. He's no judicial activist. San Francisco's city council enacted ordinances recognizing same-sex couples decades ago, and its mayor famously wed same-sex couples a year ago. In the past few years, the California Legislature has enacted laws granting same-sex couples almost all of the same rights and responsibilities as married couples.

Conservatives denounce judges who get ahead of legislatures, alleging that they are trying to change the world with a stroke of the pen, but that's not the situation in San Francisco. Same-sex couples' rights came from its legislature first, its mayor second and the judiciary last.

It is true that Judge Kramer declared a ballot initiative enacted by the state's voters unconstitutional. But that ballot initiative was not supported by voters in the Bay Area, and it does not appear to align with the views of a majority of the Legislature in Sacramento. One can disagree with Judge Kramer's ruling, but it is difficult to argue that his views are outside the mainstream.

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posted by Eve at 5:21 PM | link 0 comments

MARY AND JOSEPH AT THE SEX THERAPIST: John Zmirak

...But there was one movie this year which appeared, briefly, in a few theaters, whose message will stay with me for years. It's probably not showing in your city, but you should look for it soon on DVD. Rent it and watch it with your current or prospective mate; it makes terrific fodder for discussion. Indeed, I think it ought to be shown as part of parish Pre-Cana classes--since it tells more about the Theology of the Body than a dozen well-meaning lectures.

The film is called Unscrewed, and it concerns the absence of sex. Made in the style of Spinal Tap and Best in Show, Unscrewed tells the story of a couple named Joseph and Mary St. John who love each other dearly, still find each other attractive, and are devoted to saving their marriage. They just can't seem to have sex. After six years of wedded bliss, the two have completely lost interest in intercourse--and they don't know why. In fact, it's driving them crazy. Each one still craves sex, but for some reason they can't get it together. So the couple embarks on a quest to find out what has gone wrong in their marriage--and brings us along for the ride, as empathetic voyeurs. The script is mostly improvised by the actors, to painfully plausible effect. ...

The sex is good, and it stays good for months, the film's epilogue informs us. Which makes it all the more puzzling to us that the couple decides to separate. We see each one alone, attempting to explain what finally went wrong. They admit, in the end, that the quest for healthy sex had become the focus of their marriage--"And once we achieved that, there didn't seem to be any further point in staying together. Our relationship wasn't about anything anymore," Joseph explains.

Which brings the thoughtful viewer back to one of the very first scenes in the film—a moment which passes quickly, which it's easy to miss. At the movie's outset, Mary opens her medicine cabinet, takes out a dispenser, and casually pops a birth-control pill. It seems a piece of bitter irony at the time, since the couple is miserably celibate. But perhaps there's something deeper going on. At no point in the film does either partner mention the notion of having children; in fact, none of the experts they consult show any awareness that the sex act might have some underlying biological purpose, apart from intimacy and ecstasy. It's as if all the characters lived in one of the mythical, primitive societies which had never learned the connection between sex and reproduction.

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posted by Eve at 1:24 AM | link 0 comments

PROCREATION AND THE STATE'S INTEREST: Nephtuli replies to Gabriel Rosenberg

...Same-sex couples cannot have children by themselves. Since that reality is a biological fact, we do not afford them the presumption of fertility. Although they can have children with outside help, there's no reason for the state to promote a situation where an outside actor must be involved in the couple's procreation.

I also fail to see why we must have a guarantee that someone will enter an opposite-sex marriage in order to promote such arrangements.

Another point he makes is that procreation is not the real reason behind the law. Even if we believe that procreation is not the reason behind these laws today, can we really argue that procreation was not the primary reason when these laws were created hundreds of years ago?

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posted by Eve at 1:17 AM | link 0 comments

PROCREATION AND THE STATE'S INTEREST: Lee Walzer replies to Nephtuli

Nephtuli wrote, in the context of a societal interest in encouraging procreation:

If we allowed SSM, [fewer] men would integrate with women and vice versa. The reason is that (some) homosexuals have historically married people of the opposite gender when no other avenue was available. Whether it was societal pressure or legal recognition, homosexuals did marry members of the opposite gender and procreated. Today we have a much lower level of societal pressure, but for now the only legal avenue for recognition is heterosexual marriage. It would stand to follow that some homosexuals who would enter into SSMs if they had the opportunity might do so.

This is probably true but raises some interesting questions (apart from the obvious one that has previously been discussed at length, namely the cost to the often-unknowing heterosexual woman or man who marries a gay/bisexual person): Such children will be raised by a gay/bisexual parent, which a number of previous commenters on the blog have regarded as a horrible fate for a child. So, either gays are as good (or bad) as other parents at parenting and the sexual orientation of the parents is a non-issue, or society is unwittingly creating more children being raised by gay parents, with all the attendant horrible consequences that those who oppose gay parenting contend are inevitable. Which is it? Some will argue that
in such situations, the sexual orientation of the parent will not be apparent, but I respectfully disagree -- even when deeply in the closet, sexual orientation inevitably manifests itself in various ways.

If, as Maggie has argued, children are best served by being raised with a mother and a father, what does she make of a situation I know of: two friends of mine, one gay and the other lesbian, had a child together. They are each quite openly gay and share custody/child-rearing responsibilities.

I happen to think it's great. But they're obviously not married, nor will they ever be. Yet the child will have both a mother and a father. Is the real issue in this whole discussion a mother and a father, or does each parent have to be a red-blooded heterosexual for all the supposed benefits to follow?
posted by Eve at 12:55 AM | link 0 comments

ADVENTURES OF ESPERANZA: Lynn Gazis-Sax

[I agree with this. (Despite serious qualms about the whole "growing up in a small, unusual 'fundamentalist' community means your choices are less free than others'" bit.) Especially like how Lynn points out the ways in which marriage is a cultural norm, not solely a legal status. A lot of this stuff has implications, as I mentioned, for marriage education and promotion. --Eve]

OK, thinking a little further about Esperanza.

2. "But if we let you all marry, how will we know who makes the decisions, really? ... it's a lot better than treating one of my life partners as if she's "real family" and one of my life partners as if he's a stranger... isn't it?"

Here Esperanza is responding, reasonably well, to a limited form of a larger anti-polygamy argument -- which is, since all of our rules about marriage are built around the assumption of just one partner apiece, if we had polygamy, we'd have to think up a lot of new rules. Do we limit people to four a customer, as Islam does with men, or allow as many as you like? Do people have to consent to their spouses taking new spouses, or not? If they disagree about something important, do we leave them to argue until they agree, or do they get, in some cases, to appeal to a court to use some sort of best interests standard to decide which spouse is better qualified to make medical decisions, or whatever. Can people form polygamous marriages at the same age as monogamous ones, or do we maybe want to require an older age, as protection against exploitive man-marries-lots-of-teenagers situations?

Esperanza is of course right that it's not a slam dunk argument for prohibiting polygamy -- but it is an argument for asking people to spell out how their legalized polygamy would work.

3. "Because I don't love Lisa but not Jack, or Jack but not Lisa. I don't love one less than the other. I love them differently, because they're different people."

Fine, she's explained why she'd prefer to marry two people. But this doesn't really explain to me why she's entitled to marry two people, why it's an injustice to tell her one to a customer. Any way you set up the rules of marriage, people don't get to do some things they'd like to do. What makes the same-sex marriage argument particularly compelling here is that the thing that people don't get to do -- ever marry anyone at all that they'd really like to have sex with -- is something few people would like to think of living without. Nearly everyone, on the other hand,
doesn't get to marry at least one person that he or she had fallen in love with. I guess I need to supply some other assumption, which Esperanza takes for granted, to make this work -- something like, it's really not anyone else's business to tell her how many people she can love. That marriage is, or should be, about celebrating whatever relationships people actually have, and not about favoring a particular sort of relationship.

"4. Marriage domesticates sexuality. I agree. It's astonishing to me that today, heterosexuals can practice what is essentially fake polygamy, forming halfhearted and traumatically shattered families one after the other, when I can't get legal recognition for the stable family of which I'm already a part."

It's hard to see how polygamy would reduce the number of divorces. [Eve notes: That isn't what I intended Esp. to be arguing here.] I suppose she's right, though, that some existing marriages are less stable and less desirable places to raise kids than her polyamorous one.

"5. If people can marry more than one person, doesn't that mean marriage no longer implies sexual fidelity? Oh, honey, that ship has sailed. Your wedding ring doesn't make you a no-fly zone anymore"

And here Esperanza totally blows it and makes an anti-fidelity argument which is really not much of an argument at all. But what does come through is that, for her, marriage isn't at all about setting other people's expectations of you, or about being bound by those expectations. Of course, in practice, anyone with a wedding ring knows that it does cut down heavily on people hitting on you.

7. "... Most of the problems with fundamentalist religious polygamous communities arise from three sources: in this order, violence against women; statutory rape; and welfare fraud. All of these acts are already illegal."

I doubt that a woman growing up in a fundamentalist religious polygamous community is all that free and independent when she's barely legal -- what, 18, or even 16 in some states? If we wanted to be serious about allowing nice, consensual polyamory and not winding up with the icky oppressive fundamentalist religious kind, I think we'd need some extra conditions for poly marriages. I could imagine a higher age
for poly marriages -- 25? -- or some welfare bureaucracy rooting out deadbeat poly spouses ... it also occurs to me that forming a youthful poly marriage would really suck if you lived in, say, New York, where you don't have easy no fault divorce.

In any case, I think she falls apart when she tries to respond to the sexual fidelity argument.

By the way, a fictionally polygamous society that I found intriguing was the one in Heinlein's The Moon Is a Harsh Mistress. This despite the fact that I find nothing particularly appealing about living in one of those group marriages he describes. What I liked was the way he used the group marriage set up to show up a flaw in the thinking of the visitor on Earth -- a man who felt that husband had rights over a wife's body, but a woman really didn't need to be taken seriously if she was single and saying no on her own behalf.
posted by Eve at 9:48 PM | link 0 comments

BACKWARDS THINKING: Marty McKeever replies to Gabriel Rosenberg

Several comments by Gabriel Rosenberg highlight the reverse-psychology being used by SSM advocates:

...this sounds like awful governmental policy to me, the idea that we should pressure people into opposite-sex marriage.

Does the creation of an incentive to action automatically create a disincentive to inaction? In the given scenario (actually, the status quo), is the government actually pressuring anyone to do anything? Mr. Rosenberg would like you to believe that holding a carrot on a stick in front of a mule is the same thing as whipping that mule from behind. Surely the mule can tell the difference...

Channeling people into having more babies, though, is probably not even a legitimate governmental interest.

(Aside, tell that to the Japanese: see story). In light of our current debate over Social Security, it is a rather odd thing to say that the concern over the number of future citizens and taxpayers is not a "legitimate government interest." It might be easy to say so, but where is it written? Should the state be unconcerned about the number of young people who will be paying to support their elders?

It is clear from a number of court decisions that we possess the right as individuals to make our own decisions with regards to marriage and procreation...
It does not have an interest though in pressuring an individual to procreate.

Correct. The mule is free to follow the carrot, or not -- unlike the whip, which leaves him little choice. But no one is being punished for marrying, or for not marrying, or procreating, or for not procreating. Freedom of choice still reigns supreme.

...couples who have children in same-sex relationships are still denied marital recognition (incidentally doing a great deal of harm to the child)

Mr. Rosenberg would have you believe it is the State that has inflicted a great deal of harm on the children of same-sex couples. This is proven to be disingenuous spin by his earlier statement that the courts have ruled that we have the right to make our own decisions regarding marriage and procreation. The parents presumably knew what they were getting themselves into (it is, after all, the status quo), and have no right now to blame anyone else for their own choices. If the children are being harmed, is it really the fault of the state?

The carrot is still there, and equally available for all, regardless of sexual orientation. It seems Mr. Rosenberg and his ilk are the ones holding the whip.
posted by Eve at 9:39 PM | link 0 comments

CALIFORNIA RULING: John Howard

The judge thinks he has covered all the bases when he says "One does not have to be married in order to procreate, nor does one have to procreate in order to be married," but actually he is missing a base: couples that are not allowed to procreate. And if a couple does not have a right to procreate, like, say, a brother and sister, then that couple's marriage would also be declared "incestuous and void", even in California:

285. Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison.

Well, after Congress passes the Bioethics Council's egg and sperm law, same-sex couples will not have a right to procreate together. Adam will have a right to procreate with Eve, but not with Steve. That law will be entirely rational and
ethical, as same-sex procreation will cause hundreds of aborted attempts and many early childhood deaths and lots of suffering. Plus, there is simply no need to create people that way. Once Congress gets around to considering this law, there is no way they could reach any other conclusion -- they will have to make procreation -- and marriage -- a heterosexual right exclusively.

There will be no middle ground, no way to ban same-sex procreation but allow SSM, because all marriages are allowed to procreate, it is a constitutionally protected
right. And it won't be "invidious discrimination" to prevent people from marrying and procreating with someone of their same-sex, because there is no arbitrary
racial classification going on, the egg and sperm are truly scientifically different. There are no "mixed-gametes" a la "mixed-race" people, there are only eggs and sperms, and every "race" has them. In fact, to even compare SSP to interracial procreation is highly offensive, suggesting that there are risks
involved and that the races can't mix naturally....

There is a certain inevitability that if we push for Congress to enact the egg and sperm law, they will enact it, and if we show how this stops same-sex marriage and reaffirms the meaning of marriage, it will do that, too.
posted by Eve at 9:35 PM | link 0 comments

CALIFORNIA RULING: Stanley Kurtz

There are plenty of things to say about the California court decision on gay marriage. Months after voters in red and blue states unequivocally rejected same-sex marriage, and a few years after California voters decisively did the same, it's striking (though not at all surprising) that a judge would do this. But I think the real significance of this decision lies in the cultural influence of California. California is a huge chunk of the country. More than that, I assume (although I haven't checked this) that California has no law like the Massachusetts statute that bans marrying out-of-state couples if the marriage in question would be illegal in their home state. If true, this would turn California into the Las Vegas of same-sex marriage. But the really important point is that California is one of our two media capitals--and arguably the most influential of the two. Give Hollywood real married couples to work with and it will flood the nation with movies, documentaries, television shows, news reports, etc. That will change the culture. Of course, California has long been famous as the origin point of national social trends. When it comes to the fundamental meaning of marriage, state borders won't matter. It's an illusion to believe that this country can operate with two fundamentally different ideas about the core meaning of marriage. If California goes, it will kick the culture war over gay marriage into overdrive. A national showdown will follow fairly quickly. In the meantime, we'll be divided into recognizing states and non-recognizing states, and will rapidly discover how untenable that situation is. For more, see my "National Nuptials."

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posted by Eve at 9:32 PM | link 0 comments

MOM AND DAD: Michael Triplett replies to Elizabeth Marquardt and Jeff Jacoby

Admittedly, the task is harder. You can't throw out the quip "children need their mother and father" because while it was a gross oversimplfication of the research, you are now challenged by the reality that there are family forms not considered by this oversimplified analysis of the research. ...

As for Ontario, the reality is that marriage is about LAW. If marriage is no longer defined as a man and a woman in Ontario (or Mass.), then the language of the laws has to change to recognize that shift. This is the reality of what happens when we change the legal basis of an institution that grants significant legal privileges.

Undoubtedly, the task of discussing parenting and family is now more complex; social change to provide equal protection and eliminate discrimination never comes easy. Maybe instead of worrying about being called a "bigot," this is the opportunity for marriage advocates to be honest about the research which has been the basis for their rhetoric, admit there is much we don't know, and then move forward with what we do know.

I am not convinced that marriage (and raising kids in marriage) is suddenly going to become less attractive just because the insitution is broadened to include people who are denied equal protection. Marriage will still be slathered with social acceptance, rewards, and societal adulation.

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posted by Eve at 2:17 PM | link 0 comments

DOES BIOLOGY MATTER, OR NOT?

fascinating discussion thread here
posted by Eve at 2:16 PM | link 0 comments

MONOGAMY AND ME: Christopher Rice

A certain kind of op-ed has started to crop up in local gay magazines. The author is usually a hunky 22-year-old who breathlessly asserts that allowing your boyfriend to sleep with other guys is the ultimate form of trust. His not-so-veiled implication is that this gay marriage business is the stuff of dour and heavyset gay people who aren't hot enough to be as free as every dance-floor hit instructs us to be. ...

Let me say this up front. I have numerous friends in open relationships. That said, only a few of them have managed to turn this type of arrangement into something that strikes me as loving and functional. Meaning, they have stayed together for longer than a few weeks and haven't ended the relationship by hurling beer bottles at one another outside of a West Hollywood nightclub because one of them slept with a mutual friend who was deemed off-limits. ...

Should this process diminish the worth of the relationship? After all, I'm hard-pressed to think of a single heterosexual marriage I admire in which at least one partner wasn't unfaithful over the years. The true measure of the marriage was in how both partners chose to respond to the infidelity.

Many of us are asking for legal recognition of our decision to grow and evolve with a partner of the same gender. If we start insisting that our relationships conform to unchanging categories of fidelity, we are denying ourselves the very opportunity we ask for.

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posted by Eve at 2:12 PM | link 0 comments

CALIF. COURT RULING

here (PDF)
posted by Eve at 5:15 PM | link 0 comments

JUDGE FINDS CALIFORNIA'S MARRIAGE LAW UNCONSTITUTIONAL: From the Associated Press

A judge ruled Monday that California can no longer justify limiting marriage to a man and a woman, a legal milestone that if upheld on appeal would pave the way for the nation's most populous state to follow Massachusetts in allowing same-sex couples to wed.

In an opinion that had been awaited because of San Francisco's historical role as a gay rights battleground, San Francisco County Superior Court Judge Richard Kramer said that withholding marriage licenses from gays and lesbians is unconstitutional.

"It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners," Kramer wrote.

The judge wrote that the state's historical definition of marriage, by itself, cannot justify the unconstitutional denial of equal protection for gays and lesbians and their right to marry. ...

It could be months or years before the state actually sanctions same-sex marriage, if it sanctions the unions at all. The Alliance Defense Fund and another legal group representing religious conservatives joined with California's attorney general in defending the existing laws. ...

The couples, represented by the National Center for Lesbian Rights, the Lambda Legal and the American Civil Liberties Union, conceded that California's domestic partnership law may be the strongest in the nation outside of Vermont's civil unions. But they claimed it still does not go far enough because it creates a separate and inherently unequal marriage-like institution for same-sex couples.

The Attorney General's Office maintained that tradition dictates that marriage should be restricted to opposite-sex couples. Lockyer also cited the state's domestic partners law as evidence that California does not discriminate against gays.

Kramer rejected that argument, citing Brown vs. Board of Education, the landmark U.S. Supreme Court decision that struck down segregated schools.

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posted by Eve at 5:00 PM | link 0 comments

JAPAN TOWN WILL PAY WOMEN WHO HAVE 3RD KID: From the Associated Press

How about getting paid 1 million yen for having a baby? To combat a shrinking population, a small town in northern Japan has decided to give a cash award worth about $9,600 to each female resident who has a third child, an official said Friday. ...

Yamatsuri, where the population has fallen from 7,400 a decade ago to 7,000 this year, is not alone among Japanese towns who are losing people.

As the country's birthrate declines, demographers have predicted Japan's population will peak at about 127.7 million next year and fall rapidly over the next half-century to about 100 million.

The situation is raising concerns about how future generations will support the growing ranks of elderly and how businesses will survive as the labor pool shrinks.

To encourage families to have more children, the central government has started building more day-care centers and encouraged men to take paternity leave.

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posted by Eve at 4:01 PM | link 0 comments

PROCREATION AND STUFF: Gabriel Rosenberg replies to Nephtuli

...At least this is an argument. If we allow same-sex marriage, some individuals who would otherwise have entered into an opposite-sex marriage will now choose instead to enter into a same-sex marriage, thus decreasing the chance of having babies. The state would therefore like to prohibit same-sex marriage in order to get more people into opposite-sex marriages and thereby hopefully increase the number of babies being born.

From a policy perspective, this sounds like awful governmental policy to me, the idea that we should pressure people into opposite-sex marriage. From the court's perspective, though, we must restrict ourselves to asking whether this is a compelling governmental interest and whether the restriction is necessary to achieving this objective. (Or in states where gender classifications are subject only to intermediate scrutiny we would ask whether it is an "important governmental objective" and whether the restriction is "substantially related to the achievement of that objective.) Channeling people into having more babies, though, is probably not even a legitimate governmental interest. It is clear from a number of court decisions that we possess the right as individuals to make our own decisions with regards to marriage and procreation. The government certainly has an interest in seeing that babies that are born are cared for to the best of our ability. It has an interest in helping those that wish to have babies to do so. It does not have an interest though in pressuring an individual to procreate. That choice belongs to the individual and not the government. [Again, from a policy perspective, I would argue that there is no need for more babies. Rather we should focus on caring for the babies that are born.] Even if the interest in baby production was a legitimate state interests, in fact even it were an important governmental objective, the policy of prohibiting same-sex marriage can hardly be said to be substantially related to this objective. The argument is that by denying the recognition of one's same-sex marriage, one might instead seek out an opposite-sex partner, and then one might procreate with that partner, thereby having a child whereas one might not have had a child with a same-sex partner. The policy is certainly not narrowly tailored, as couples who have children in same-sex relationships are still denied marital recognition (incidentally doing a great deal of harm to the child) and the denial of recognition is no guarantee that anyone will seek out an opposite-sex spouse instead, much less an opposite-sex spouse with whom they will subsequently have a child.

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posted by Eve at 3:57 PM | link 0 comments

PROCREATION AND THE STATE'S INTEREST: Nephtuli

...Society has many reasons to integrate the sexes; one such reason is procreation. Every society has an interest in surviving and to exist it needs to breed new members. That idea is best realized through opposite sex couples having children. Society therefore supports procreation by promoting integration. Integration is this vein should be promoted.

Obviously if we allowed SSM, men and women would still integrate since the vast majority of the public is heterosexual. But one could also argue that without preferences universities would still accept members of the preferred minorities. The idea is that a lower number would be selected and that goes against a state interest.

If we allowed SSM, [fewer] men would integrate with women and vice versa. The reason is that (some) homosexuals have historically married people of the opposite gender when no other avenue was available. Whether it was societal pressure or legal recognition, homosexuals did marry members of the opposite gender and procreated. Today we have a much lower level of societal pressure, but for now the only legal avenue for recognition is heterosexual marriage. It would stand to follow that some homosexuals who would enter into SSMs if they had the opportunity might do so.

Without question there are people who are attracted to both sexes or people who are more attracted to their gender but are still attracted to the opposite gender. Many of these people would choose marriage and the benefits it provides over a non-marriage relationship with a member of his/her sex. That choice has a much higher probability of resulting in procreation than a same sex relationship.

But if we allowed SSM, many of those people would likely choose to enter into that relationship. Society is therefore promoting procreation by leaving open only one avenue for marriage.

Gabriel, as well as other advocates of SSM, argue that the fact we allow sterile couples to marry goes against this argument. I do not see how. Just because the state does not choose to promote its interest in every possible way does not mean it cannot promote its interest in any way.

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posted by Eve at 3:55 PM | link 0 comments

MARRIAGE NEWSPEAK: Jeff Jacoby

[Elizabeth Marquardt comments. --Eve]

BACK IN 2003, a few days after the highest court in Massachusetts unveiled a constitutional right to same-sex marriage, I ventured a prediction.

"Sooner than you think, it will become improper to speak of unique sex roles in family life," I wrote. "The meanings and status associated with words like 'husband' and 'wife' will be erased from the law; most likely, the words themselves will be replaced in statutes with the unisex 'spouse,' just as 'father' and 'mother' will give way to 'parent.'"

The changes soon began. Massachusetts rolled out a new marriage license shorn of any reference to bride and groom. Couples getting married were now to be officially identified as "Party A" and "Party B." The department of public health has proposed a similar rewrite of the state's birth certificate, replacing "mother" and "father" with "Parent A" and "Parent B." ...

What is underway here is not simply a tweaking of legal terminology. The crusade for same-sex marriage has never been aimed merely at adjusting the familiar boundaries of married life to make it more inclusive. The real target is the significance of marriage itself -- the idea, fundamental to human happiness and all successful societies, that the purpose of marriage is to bring men and women together for their mutual welfare and for the protection and well-being of any children they create or adopt. It is that deeply ingrained belief that the marriage radicals are determined to do away with. One purpose of the official marriage newspeak is to make such thoughts increasingly unthinkable.

Already it is becoming hazardous to speak of marriage as an opposite-sex institution or to suggest that one of its core functions is to provide children with fathers and mothers. Just ask actress Jada Pinkett Smith or Governor Romney.

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posted by Eve at 3:51 PM | link 0 comments