- Law Dork has an excellent, angry response to people who blame marriage equality activists for asking for equality, rather than waiting.
- I’m fond of responding to complaints of “judicial tyranny” overwhelming democracy by pointing out that no one should want judges to take a poll of the public’s preference before issuing a decision. While that’s true, it’s also true that courts, like everything else, are reflections of what’s happening in the larger society; as my friend Robert pointed out, the Massachusetts Supreme Court wouldn’t have decided in favor of same-sex marriage 20 years ago. What the courts see in the Constitution changes along with the country’s views.
Jack Balkin – who, when he’s not blogging, teaches constitutional law at Yale – discusses this issue in his paper What Brown Teaches Us About Constitutional Theory. A much more intelligent discussion of how the courts and public opinion interact (and he explicitly discusses both gay rights and the same-sex marriage question).
- Speaking of “Judicial Tyranny,” Reason & Liberty has an excellent post pointing out that virtually all groups in America – including conservative groups – appeal to the Courts to enforce their rights. “Why is going to court seeking to vindicate your rights suddenly disreputable just because gay people are doing it?”
- Along similar lines, the blogger of Life, Law, Gender defends her right to seek redress through the courts, just like any other American.
- Occasional “Alas” comment-writer Robert just posted the first of a series of posts on his blog explaining his opposition to same-sex marriage. (Please be gentle with Rob, he’s an old college chum.)
- Interesting development in Oregon: A Republican legislator, who voted for the same-sex marriage ban, is proposing civil union legislation. Good for him. Not all Republican officials in Oregon agree: According to one, “If civil union status is granted, there will be no turning back. The liberals and the homosexual-lesbian coalition will have won and the people’s vote in favor of traditional marriage will have been effectively nullified.” Via CultureWatch
- On the same topic, The Bend Bulletin has an excellent article discussing prospects for Civil Unions in Oregon in the wake of Measure 36.
- Civil Unions are looking like a shoe-in in Connecticut, with marriage equality a real possibility.
- While reading this anti-SSM site (link via Feministe), I came across Jeff Jacoby’s prediction that “a generation after same-sex marriage is legalized, families will be even less stable than they are today, the divorce rate will be even higher, and children will be even less safe.” Could Jacoby have possibly made a more gutless prediction? Given the trend lines over the last several generations, Jacoby’s predictions are safe regardless of if same-sex marriage is legalized.
There are real ways to consider if SSM harms the institution of heterosexual marriage; for instance, if SSM opponents are correct, then heterosexual divorce rates should increase much faster in Massachusetts than in comparable Northeastern states. Of course, that would put their theories to a real, empirical test, a prospect that SSM opponents haven’t shown any interest in.
- Andrew Sullivan points to a rare – and perhaps unique – case: A SSM opponent (working for the Family Research Council, no less!) who admits that the “marriage is about procreation” rationalization for denying same-sex marriage is bogus. Here’s the best bit:
Can we still defend the purpose of marriage as procreation? No, not in the current constitutional climate. It is now clear that the “right of privacy,” conceived by the Supreme Court nearly four decades ago, is the enemy of both marriage and procreation separately, and is especially hostile when they are united. It is also clear that we lost the key battles in defense of this union decades ago, long before anyone even imagined same-sex marriage. And we lost these battles over questions that–to be honest–relatively few of us are really prepared to reopen. How many are ready to argue for the recriminalization of contraception? How many want to argue for a strict legal and cultural imposition of the word illegitimate on certain little children?
Link via Daddy, Papa and Me.
- Another study has found that children of same-sex parents turn out more-or-less the same as children of opp-sex parents. This study is notable because its sample is better than previous samples (it’s a national sample, and because the data wasn’t collected with the same-sex parenting issue in mind, it can’t be accused of bias in data collection).
Tom at Family Scholars Blog , noting that the authors said “while family type wasn’t a factor in how teens fared, family relationships were,” wonders if this might be the researchers’ coy way of covering up that children of same-sex parents had worse relationships with their parents. It’s a reasonable question. (Tom – to his credit – raises the question without assuming any particular answer.)
Having read the study, I can assure Tom that the data doesn’t show any difference between same-sex and opp-sex parents regarding the quality of their relationships with their kids. In fact, the only difference this study found is that children of same-sex parents “reported feeling more connected to school,” which usually leads to better grades and less dropping out.
Note that – once again – there is not the slightest shred of evidence to support the claim that being raised by opposite-sex parents is preferable to being raised by same-sex parents. Yet I predict that SSM opponents will continue claiming that social science has conclusively shown children do best when raised by two biological, opposite-sex parents.
- Andrew Sullivan on the recent elections, and the future of SSM. He’s convinced that same-sex marriage is still a winning cause in the long run, and of course I agree.
- GayAmerican.org has some strong criticisms of how Basic Rights Oregon fought (and lost) the recent gay-marriage battle.
- The Republic of T. extensively quotes from an article arguing that Black lesbians and gays have the most to gain – and to lose – from the same-sex marriage struggle.
- New Human Rights Campaign report: The Cost of Marriage Inequality to Children and Their Same-Sex Parents. The report concentrates on inequalities in insurance, Social Security, and taxes. They also mention the harm done to lesbian and gay veterans and their families by the lack of legal equality, which is an aspect I haven’t considered before.
- The Supreme Court has turned down a chance to overturn the Massachusetts SSM decision – yay! As far as I’m concerned, the longer we keep this issue from being decided in Federal courts, the better. If SSM is decided in the Supreme Court anytime in the next several years, the best we can hope for is to lose. If we actually won in the Supreme Court, there’d be a nationwide Constitutional amendment banning gay marriage so fast we wouldn’t even have time to inquire about job prospects in Canada.
the people he picks to work in his administration are supposed to support that effort as long as they don’t…
Ahem. #9 is via Feministe, not Mousewords, although my inspiration came from Mousewords.
(backing away)
On #7 – that Bulletin item is an excellent one, and interesting in that Basic Rights Oregon (BRO) — just a few days after Measure 36 passed — stood by the concept of civil unions as second class citizenship, and less than equal.
But BRO is now calling for Civil Unions as a remedy, even though they clearly have not worked for Vermont, and fundamentalists in this state will only accept them if they are unequal to marriage.
We don’t need to be fighting for something that is less than equal for the next so many years (5 in Vermont), rather than putting our energy and resources towards full equality.
But we will be, and for anyone that argues that full equality is necessary, opposition voices will have BRO to point to in order to demonstrate that our equality leaders have no problem with less than equal.
Sorry about the mistaken attribution, Lauren – I’ve corrected it.
GA, I think that it makes sense for BRO to try and push for civil unions at least until the lawsuit is concluded, since I think it’s the only viable short-term strategy, and civil unions, while (to put it mildly) less than ideal, would do some real good for some real families.
To my considerable despair, the voters have spoken; they’ve opened their mouths and vomited on equal rights. They won’t be ready or willing to repeal Measure 36 anytime in the next several years. Given that Measure 36 passed, I don’t see any alternative strategy other than going for civil unions in Oregon in the short term, and trying to change “hearts and minds” so we can undo Measure 36 and have real equality in the long term.
Thanks for the link. But you don’t have to be gentle. Daddy likes it rough.
I wonder what would happen if there were pushes in certain, more enlightened, states to do away with state control of “marriage” altogether? To pull state support and recognition of religious marriage, and offer civil unions for all? That way, anyone who wanted to be “married” could go to a house o’ worship, which may refuse to perform the ceremony on certain groups.
I see this as a bluff-calling measure. After all, if marriage is sacred, why not remove government from it altogether? What possible objection could there be to preserving the sanctity of marriage?
Eh, zuzu, the right would just sell it as an attempt by decadent liberals to take your marriage away and make your spouse run off with the babysitter.
Zuzu, I’d be all for pulling state recognition of marriage. Let the state assign civil contract status to whomever wishes to apply, and put marriages back in the hands of the churches.
It would, however, increase conflict between denominations (“what do you mean, your church doesn’t recognize our Unitarian marriage as valid, and so you won’t let us stay together in your motel?”), and between nonbelievers and believers. That may be an acceptable price to pay.
Amp,
As always, thanks for an excellent and very illuminating post on SSM / gay marriage.
I agree with zuzu. I’m not an expert on the issues but I’m becoming more and more firmly persuaded that universal civil-union recognition is the way to go. The way I see it, the case for it is threefold:
(1) Tactical: As the preceding comments suggest, it is the one solution that offers a realistic possiblity of a consensus in the near future.
(2) Constitutional: It seems to me that “marriage” is an area where religious and civil institutions have become conflated. Separation of church and state demands that the law view “marriage” as nothing less nor more than a set of contractual obligations.
(3) Philosophical: The “sanctity of marriage” is, and by definition must remain, the exclusive province of the church, synagogue, or mosque. Those who fret that another couple’s civil union somehow threatens the “sanctity” of their own marriage, are simply making it plain that they need to get in touch with their own religious faith.
Incidentally, I think you could make a case that any legal definition of “marriage” which privileges heterosexual unions, discriminates against those liberal religious denominations (Metropolitan Community Church and others) which do recognize gay marriage.
To precisely the extent that marriage is sacred, the law has no legal or moral claim to regulate it. The reconciliation of social progress with religious tradition is a process both demanding and subtle, and for good reason is just such a process off-limits to the firm hand of the law.
Marriage also implies a set of material rights and obligations, and it is with these exclusively that the law must concern itself. The “sanctity of marriage” is for the church, not the court, to defend. Universal civil unions would clarify this point beyond doubt.
it pisses me off that all of yr anti ssm sites talk about it from the right–what about some links from the far left that talk about it ?
Anthony, I’d love to look at left sites that are anti-SSM. Know of any?
While I think universal civil unions, marriage is a private/religous matter is a fabulous compromise as well, Asher Abrams, I don’t see this:
(1) Tactical: As the preceding comments suggest, it is the one solution that offers a realistic possiblity of a consensus in the near future.
As all that likely to be the case. I think a large segment of the religious community will be very upset by this, as they’ll interpret it as another example of secularists using the state to further their ends. In addition, I predict opinion leaders on the right will paint any such proposal as “the legal destruction of marriage” or some such thing and it’ll work. I hope I’m wrong; this solution seems deeply and profoundly correct to me on principled grounds, and it ought to be understood as a compromise position. But I suspect it won’t be.
anthony, I think I’m still a card carrying member of the “far left,” but I don’t think my tribe has much to say about gay marriage that can’t be said by much more sensible and articulate moderates, who people might actually listen to.
A bit OT, but have you heard about the UCC ad? They say “everyone is welcome here”. That’s all.
CBS REFUSES TO RUN IT because they SHOW a potential same sex couple and since there is talk of a Federal amendment against same sex marraige it is too political!
So, inclusive Christianity is out, and divisive Christianity is in?
Read about it at
http://www.talkingpointsmemo.com/archives/week_2004_11_28.php#004131
IT
I think a large segment of the religious community will be very upset by this, as they’ll interpret it as another example of secularists using the state to further their ends. In addition, I predict opinion leaders on the right will paint any such proposal as “the legal destruction of marriage” or some such thing and it’ll work.
That’s why I think it has to be presented as “saving” marriage from the gummint, and has to be presented in the kind of language fundies use. Back them into a corner where the only way they can defend the status quo is to admit that they *want* the entanglement of the state in church functions.
DJW and zuzu, thanks for your input.
Certainly there are some extreme homophobes who oppose civil unions as well; but not all of those who oppose “gay marriage” by name oppose civil unions, while those who oppose civil unions certainly oppose gay marriage.
Zuzu, exactly. This is an issue that could be phrased in conservative language as easily as in liberal language.
IT, I disagree – your post is not O/T at all! I just finished reading that item on another blog, and it is a perfect illustration of why this is a church/state issue. Note also that Bush’s public opposition to gay marriage was invoked by CBS – even though it has no legal force.
I’ve held forth on this at some length at my blog – feel free to click the link in my signature if you’re interested.
My concern about this proposal doesn’t so much revolve around how many of the gay marriage opponents would accept civil unions and how many wouldn’t. It’s about how many people would be willing to tolerate the end of publicly recognized marriage for straights, which I suspect is not many.
I think the conflation of civil and religious marriage is problematic for all kinds of reasons, but I think an awful lot of people rather deeply value that conflation.
DJW,
Yup. And that’s why this issue is so important.
while those who oppose civil unions certainly oppose gay marriage
Except for those who oppose civil unions *because* they support same-sex marriage.
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