Another state recognizes same-sex marriage. From Nan Hunter:
In what must have been a long day in Manchester, both chambers of the New Hampshire legislature passed a bill containing the compromise language worked out in committee to protect the religious liberty rights of gay marriage opponents. Governor Lynch also supported the bill, and earlier had announced that he would sign it as soon as the legislative action concluded. The new law will take effect in January 2010.
My main response is: YAY!!!!
Congrats to everyone in New Hampshire. And, really, everyone in the whole country, which has become incrementally more just today than it was yesterday.
* * *
The fact that so few lawsuits have come up in states that already have civil union or equal marriage laws, convinces me that the “religious exemption” aspects of such bills will have very little practical effect. Few if any same-sex couples even want to get married in churches that don’t accept them. If this is the compromise that gets gay marriage bills passed, then I favor it.
According to the AP story (via):
The revised bill added a sentence specifying that all religious organizations, associations or societies have exclusive control over their religious doctrines, policies, teachings and beliefs on marriage.
It also clarified that church-related organizations that serve charitable or educational purposes are exempt from having to provide insurance and other benefits to same sex spouses of employees.
Benefits are another form of pay, and giving churches the right to pay some queer employees less is an expression of second-class citizenship for queers. (If a church wanted the right to refuse spousal benefits to Jewish or atheist employees, would people be so quick to find that reasonable?)
But I’d rather have equal marriage for same-sex couples, and then work on fine-tuning this aspect later, than not have gay marriage at all. ((Of course, I’d rather have single-pay health care, and get employers out of the business of making health care decisions like this altogether.))
The Civil Rights Act of 1964 had multiple exemptions for religious groups. E.g.,
In other words, religious groups already have been empowered to engage in limited employment discrimination. So these exemptions are just in keeping with existing anti-discrimination law.
PG,
I’m not a lawyer, blah blah blah … but is that really an equivalent statute? That sounds like it’s saying a Hebrew school doesn’t have to hire a Christian to do religious education or a Baptist church doesn’t have to hire a gay minister. It reads to me like it speaks to employees who are directly involved in the religious mission of the organization.
The bit that Amp quotes refers to any charities associated with a religious institution. Catholic charities, just to pick the example I’m most familiar with, employ thousands and thousands of people to do work that has nothing to do with the specific religious doctrines of the church. Many of those people are not Catholic, and I’ve certainly known many who were gay. We’re talking nurses in Catholic hospitals, social workers at employment centers, home health aides, etc.
Can a Catholic hospital offer benefits to its Catholic employees but not its Jewish employees? Is this really the same thing? It sure looks to me like an extra level of permissible discrimination.
Let me make my example a little more precise, since the issue has to do with the validity of the marriage in the eyes of the religious institution. Can Catholic hospitals not extend spousal benefits to people who are divorced and remarried (presuming they provide spousal benefits for employees on their first marriage)? Can Jewish charities not extend spousal benefits to Jewish employees who are married to gentiles?
If they can, then it’s about the same. If they can’t, then it’s different.
chingona,
I should have been clearer — I don’t mean that the provision of the Civil Rights Act was precisely analogous, only that we have a pretty long-standing history of giving exemptions to religious institutions. Also, Sec. 702 is not as narrow as it may seem; it was amended for clarification in 1972, and this removed the word “religious” before “activities. See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter–Day Saints v. Amos, 483 U.S. 327 (1987).
Okay. I guess the question becomes whether there is a difference between employing someone at all and offering different benefits packages (as Amp said, less compensation) to employees who fall into different categories that are not directly tied to their job performance.
chingona,
I’m never 100% sure about how to categorize spousal and family benefits. Am I getting paid less than my co-worker who does the same work and has the same level of seniority and the same job title, if my spouse has his own health benefits and isn’t on my health insurance while my co-worker’s wife does not work outside the home and is on our company’s insurance?
Well, I don’t know about your company, but I pay A LOT to have my family on my insurance – exponentially more than I pay for my own insurance. I know I’m not paying the entire cost, but I do take home considerably less each month than I otherwise would.
Regardless, if you husband lost his job, you could put him on your insurance. It’s an option that is available to you and to all married employees and all employees with children. If you live in New Hampshire and are a nurse at a Catholic hospital, it appears you would have that option if you were married to someone of the opposite sex but not if you were married to someone of the same sex.
Again, I’m not a lawyer, but it seems to me there is something distinct going on here – the question not being whether someone will be employed at all or not by a particular organization, but whether two employees who are otherwise the same in every way will be treated the same by someone who is willing to employ both of them. Would the case be different if the Mormon janitor, instead of being fired, were docked pay or denied benefits offered to other employees? I don’t know how such a case would have been decided (or if there even is case law on that – it’s a very particular type of example), but it seems to me there are slightly different issues in play.
And how far does this exemption extend? Can Catholic hospitals deny visitation to same-sex spouses because gay marriage violates their religious beliefs?
I don’t know if there will be a challenge to this aspect of the law, if it will square with the New Hampshire constitution, or whether advocates feel like it’s better to let this lie for now. But it strikes me as going above and beyond previous exemptions given to religious organizations.
And I’m really not trying to shit at the picnic. I’m glad New Hampshire took this step. Each step forward is important. But if this piece of the legislation starts to become SOP in other states moving to marriage equality (which, if I follow the other side correctly, is what they want), I would consider that a very negative development and one that I hope eventually will be declared illegal/unconstitutional.
hmm one of the forums I visit was angered about the church exemptions for covering medical insurance,but is this a common thing?
chingona,
Whether it is treating employees unequally in a way that is illegal (it can’t be unconstitutional because the Constitution almost never deals with private actors, only with state action) depends somewhat on how you frame the nature of the discrimination involved in refusing to recognize same-sex marriages. I’ve never really liked to put it in terms of “anti-gay” discrimination, because that immediately calls up the facile response that gays have always been able to marry, and often have done so — just not to a person they found sexually attractive. I consider it a species of sex discrimination; neither the government nor anyone else should be able to deny recognition of your relationship based on whether you’ve married a man or a woman.
At the moment, the Supreme Court has said that discrimination against gays by the government requires no more than a “rational basis,” albeit a meaningful one (Sotomayor as a district court judge said that prison officials’ claims that having a gay worker in the prison cafeteria could cause riots among inmates was not a sufficiently rational basis for barring the gay person from working in the cafeteria). There’s still no federal law against discriminating against gay people in employment, and I feel pretty safe in saying that once one is passed, it is likely to have religious exemptions as well.
So I would want to bring my challenge to the Catholic hospital that refused to extent benefits to my same-sex spouse on the ground that the hospital is discriminating against me in the conditions of my employment on the basis of sex. That is, if I were a male nurse married to my wife Jane, my spouse would receive benefits. It is only because I am a female nurse that benefits are not given. The only exemption for discriminating on the basis of sex in employment is if one’s sex is a bona fide occupational qualification, which being male clearly wasn’t or they wouldn’t have hired me as a nurse in the first place.
I am gay – and I oppose gay “marriage”. Marriage is an institution long-ago established because of the benefits it confers upon society. Yes, inducing me to enter a long-standing relationship with my partner is beneficial for society (it has many benefits, economic, social, health, and otherwise). This is exactly why same-sex benefits should be afforded (domestic partnerships). However, real marriage, between a man and a woman, allows for the creation of children. It also creates the basis of the most stable homes for children: same sex committed relationships.
Ok, I know you’re all thinking: “But what about straight couples who can’t have children”? Well, first of all, no system is ever going to match perfectly. It is long-established that government classification systems don’t HAVE to match perfectly, they only have to be rational. Second, that family could adopt, and still provide the BEST home structure for children. – And don’t argue that a child living with my partner and I is AS well off – we all know that men and women provide differnet kidns of guidance and nurture… having BOTH in a familial structure is BEST… yes, my partner and I could raise children, and should be able to (since them being raised by us would be better than being in a foster home or single parent home).
I can also anticipate that you’ll say “what about all those straight marriages that break apart!?” – That’s tragic – btu don’t tell me gay relationships don’t break apart every bit just as much, if not much more.
We are not inferior human beings because we are gay. But, are wires ARE crossed. Obviously, it’s not the normal order of things. I should be allowed to live my life, but I shouldn’t expect society to place its stamp of approval on my relationship.
The rest of the gay community should also recognize that argumetns for gay marriage are weak. “What can’t I marry the person I love!?” – OK, what if you love your cousin? What if you love someone who is already married, or love more than one person? You have to draw the line somewhere.
Some of the people who oppose gay marriage HATE gays. But it’s time for the silent majority of gays to speak out, and give a nod, understanding that the silent majority of people who oppose gay marriage do not HATE gays – they just have rational reasons for supporting traditional marriage. Let’s all just get beyond this: Allow domestic partnerships and benefits, but forget the “marriage” thing.
Oh, and by the way: No a church based organization should NOT have to extend benefits to my partner. It would be arrogant of me to think that anyone OWES me anything. They have a rational opposition and a sincere opposition to my lifestyle – and I shouldn’t add fuel to the fire by griping that they won’t subsidize it.
Sincerely Out-yet-rational
Adam
Adam,
Which part of your argument do you think was not employed by people who opposed legal marriage for interracial couples? Heck, the Supreme Court even acknowledged that as a factual matter, children living in a household headed by an interracial couple would have a harder time of it due to societal prejudices than if they were in a household with two parents of the same race as each other and the kids — yet still held that the Constitution did not allow the government to make racially-biased decisions because of that fact. Social biases regarding how men parent versus how women parent (let me guess, you think women’s job is to be nurturing and men should be providing?) are no better a basis for drawing legal distinctions. I’m glad that I don’t agree with you that my husband’s employer’s extension of benefits to us as a family should depend on whether the employer approves or disapproves of our marriage (in our case, an interracial, interreligious marriage — you want to have kids that some people will consider to have been badly parented, try raising them in two cultures simultaneously…)
I agree with you that the “I should be able to marry anyone I love” argument is a bit sophomoric, but barring people from marrying someone based solely on sex is hardly a reasonable restriction. That’s making a prohibition that covers half the human race. I am not supposed to be treated differently by my government based on my sex (or race, religion, national origin, disability, etc.). I am sorry that you believe we should be.
Are you for real, Adam?
Several of the court decisions supporting same sex marriage have taken an explicit “think of the children” approach, viewing the prohibition on same sex marriage as being specifically an injustice to the children of same sex couples.
And if you were to raise children, why should your children be denied the benefits of having legally married parents? If you as their parent decide that they are better off with you and your partner unmarried, that is one thing, but for the state to forbid you from providing them the benefits of marriage is an obvious injustice. Even if your claim that children are better off with parents of the opposite sex were true, the children of a same-sex couple are still better off if their parents are able to marry. Just as you support adoption rights for same sex couples, you should support marriage rights for exactly the same reason.
Also, we all DON’T know that children are better off raised by parents of opposite sex. There have now been a large number of children raised by same-sex couples, and the research does not show any negative effects of being raised by two parents of the same sex.
If real marriage should only be available to couples with children, it would be easy enough to structure marriage laws to support that (for instance, marriage is not binding until one partner is pregnant or adoption is initiated, and is annulled in the event of miscarriage, abortion or failure to adopt) without regard to the sex of the partners. The requirement of opposite sexed partners both permits marriage for many couples incapable or uninterested in having children, while simultaneously denying marriage to many couples with children. The first type of failure is a free-rider problem, but not a huge problem. The second type of failure is a denial of rights problem, and is a huge problem.
If the benefits of domestic partnerships should be identical to the benefits of marriage, then it makes no sense to have domestic partnerships as a separate legal category. If the benefits of domestic partnerships are intended to be different, if domestic partnerships are to be some form of lesser marriage, then there is no rational basis for that difference to be connected to the sex of the partners.
Well you are aren’t you? It’s an obvious and blatent violation of equal pay for equal work, it’s just sadly discrimination based on marital status is one of those thing that are so culturally and legally entrenched that people just don’t recognise it as an injustice.
Dunno. The real issue, which you ignore, is that – even though everyone goes on about the adoption of abandoned children and IVF all the time – in reality most children of same sex couples are the products of failed heterosexual relationships.
It’s a step parental relationship. Because of this gay marriage supporters have a very particular (and is someways quite mainstream and traditional) agenda on aspects of marriage law like step-parental rights, the presumption of legitimacy, and step parent adoption. In the long run I think that’s where the main influence of same-sex marriage on our idea of ‘what marriage is’ is going to be, just because these issues are so salient in those relationships. I can’t say I have that much of a firm view, but I do think it’s legitimate to worry about where exactly we’re going here and whether it really is progressive.
You can say what you like about Adam R.; but at least he had the balls to say that it’s better for the kids if single parents marry themselves off to someone, rather than have the children remain bastards. Strangely enough both the Christian anti-same sex marriage and the pro-same sex marriage crowd seem to believe this, even if they don’t like saying it explicitly in public for fear of alienating those who aren’t so enlightened.
That’s rather 18th century of you. Being born within wedlock or not really has no importance in modern society.
Not so strangely, you seem to have no grasp of what the pro-marriage equality crowd actually believes. That makes sense if we take your 18th century view of the stigma of being born out of wedlock into account. In actuality, the pro-marriage equality crowd believes that the benefit of marriage to children of same sex partners is that both partners have parental rights and responsibilities with regards to their children as even without marriage children of same sex partners do have two parents anyway. We don’t, in fact, believe that the benefit of marriage to children of same sex partners is to hide the stigma of being born out of wedlock. The reason we don’t believe it is because we’re aware that the stigma of being a bastard hasn’t existed in western society for a century.
james,
I’m not well versed on issues relating to step-parental relationships and the law, but I’m not clear what the reactionary element of where we are going is. Also, while many same sex marriages with children are indeed step-children from previous marriages, it is also the case that there are far more heterosexual re-marriages than there are are going to be same-sex re-marriages, simply from what proportion of the population is heterosexual, so while same-sex marriage will improve the lives of many step-children and many parents and step-parents, it is never going to be the main face of step-parenthood.
It seems pretty clear to me that the ability to remarry and for your new spouse to have a legally recognized relationship to your children is beneficial to everyone involved. Just as children are better off if their parents are legally allowed to marry, children are better off if their divorced parents are legally allowed to remarry, and if the step-child step-parent relationship is able to be legally recognized. We already have a system for dealing with these sorts of relationships that is well established and seems pretty stable. Allowing divorced people who wish to remarry people of their own sex doesn’t require any changes to the system of divorce and remarriage and step-parent adoption etc. It just involves allowing people who are forbidden from participating to participate. It is pretty much orthogonal to whether or not the current rules for step-parent adoption are the ideal rules for handling step-parent – step-child relationships. If the rules need changing, you can work to change them whether or not some of the step-parents are the same sex as the parent they are married to.
Honestly, when it comes down to it, “I can’t say I have that much of a firm view, but I do think it’s legitimate to worry about where exactly we’re going here and whether it really is progressive.” is very week tea as a basis for failing to support people getting the same legal recognition for their relationships that everyone else has access to.
To be clear, I’m neutral on how much of a benefit marriage provides to parents and children. I also think that married diads are blatantly obviously a totally inadequate number of people to be responsible for parenting. I’d love to see society provide meaningful support to much richer models of family structure. I am married myself, without children, and when my spouse proposed to me I struggled with whether I was willing to participate in the system of diadic marriage, with its monstrous patriarchial history, so I can understand the objection to the marriage equality movement of “Whatever happened to abolishing marriage?” but that doesn’t stop me from seeing allowing everyone to participate equally in the society that we have as being a huge step forward for justice and equality.
Sure. And that’s a really difficult position to be in. On the one hand it’s hard to be against equal treatment under the law (assuming one is pro-equality). Otoh, more people having an investment in marriage means there are likely to be fewer allies in the movement to abolish marriage.
james, though, seems to be relying on the totally discredited “what about the children?” argument, in nearly all of its facets, against marriage equality. I believe this line of argument against disappeared around the same time that Maggie Gallagher lost all semblance of coherency.
When Adam started by saying he was gay and opposed to gay marriage, that’s where I was expecting him to go. I’m married (and procreated), and I’m sympathetic to the argument that it just needs to go as an institution. But there are so many rights and benefits tied up with marriage, and I don’t see that changing anytime soon. That makes it really wrong to deny people access to those rights and benefits based on their sex.
Jake,
Adam is definitely doing the “what about the children” routine, but I’m not really sure what james is arguing. I’m wondering if he is coming from an MRA angle. I don’t really know anyone besides MRAs for whom the law around step-parenthood is a critical battleground of progressive and reactionary forces, which seemed to be james’s main concern.
james,
I’m pretty sure I’ve seen you posting on Alas before, but I can’t recall what issues you usually focus on. Apologies if the suggestion that you might be an MRA is an insult, but that is what your concern with step-parent law reminds me of.
The question is what legal rights someone can gain over a child by marrying one of their parent. You may think my views are ‘very weak tea’ but I am torn between not wanting to totally rip on step parents – who are decent people in difficult positions – and my gut feeling that it’s inappropriate to be able to get access to rights over a child by marrying one of their parents.
I wouldn’t say it’s a battleground: both ultra-conservative reactionaries and gay rights progressives seem pretty much on the same side. They both think marrying someone should give you some form of parental rights over a child that isn’t biologically yours. That’s why the whole issue never gets raised in arguments over same sex marriage.
As far as I can tell, the legal rights that come with step-parenthood are fairly limited.
Charles: I also think that married diads are blatantly obviously a totally inadequate number of people to be responsible for parenting. I’d love to see society provide meaningful support to much richer models of family structure.
You have it backwards, perhaps. Society is not demanding two parents and no more, it is demanding two parents and no fewer. For all the “obviousness” that two parents are “blatantly insufficient” for raising children, a lot of people want to go with fewer (or none) and think society stinks for not supporting their right to do so.
If you want richer families you have to have marriages and you have to have blood kinships. Take yourself. If you look into your history you’ll find hundreds, or thousands of people that you are connected to, you only have to acknowledge the connection matters. And you’re married. That means you have access to an entirely new family. See her parents as your parents. Be a son to them. Be a brother to her brother.
We’re conscious of these kinships in our family, we practice them more readily. Next month, we’re gathering for the baptism of our newest member. People from four different generations from three different continents will hear her name and love her at this ceremony. All of us are connected through simple birth kinships and simple diadic marriages.
Though you regard marriage as indequate and several of you mutter darkly at abolishing it, I can’t imagine “a richer model of family structure” for her to be born into, and society has been trying to “meaningful support” it all along.
“I can’t imagine “a richer model of family structure” for her to be born into”
Then read a fucking bit about other cultures, for fuck’s sake.
Well, one of the rights of step-parenthood is access to step-parent adoption, in which the non-custodial parent surrenders their legal relationship to their child and the step-parent becomes the legal parent of the child, with the standard rights and responsibilities of a custodial parent. The exact procedure varies, although it almost always involves getting the consent of the non-custodial parent (some states allow non-custodial parents who have abandoned contact with their child to be stripped of parenthood without their consent). But that right is also available without marriage, in the form of second parent adoption. The consent of the child is also generally required for older children, and younger children may be appointed a guardian ad-litem to represent their interests.
And the Massachusetts lesbian and gay bar association has successfully fought to have home studies waived as part of the second parent adoption process where the second parent has been living as the child’s parent for an extended period of time, the second parent is able to produce extensive affidavits of their loving relationship with the child, and there is no evidence of problems.
But I’m not clear why we should view step-parent adoptions with suspicion. It seems legitimate to me that someone who has functioned as a parent to a child for an extended period of time, and who wishes to make that relationship legally supported and permanent, should be able to do so. It seems to me that this is almost certainly frequently in the best interests of the child, and the judge who considers the adoption request is required to decide based on the best interests of the child. We can reasonably question whether the balance of rights and responsibilities of parents and children are properly balanced (I favor more rights for children generally) without needing to question whether those same rights and responsibilities should be granted to a person who is not a child’s parent by blood but who nevertheless functions as that child’s parent.
I’m still not clear why allowing those relationships to be supported is a reactionary position. Is it because it ties in with an idea that the husband of the mother of a child is the owner of his wife’s children? If a custodial parent who married someone other than the non-custodial parent were required to have the new spouse adopt the child and the non-custodial parent were automatically stripped of the legal parental relationship, certainly that would be completely unacceptable, but that is nothing like where we are or where we seem headed.
I can see an argument for allowing third parent adoption, where the step-parent of unmarried third parent adopts a child without the non-custodial parent being stripped of parenting rights. Such an arrangement would be closer to my view of how parenting should be structured, and would represent a substantial blow against diadism. If anyone were advocating for that, I’d probably be in favor of it (like legalizing polygamy, the devil is in the details). But I don’t see any reason that the fact that we don’t have third parent adoption or anyone advocating it is an argument against allowing same-sex couples the exact same set of rights and responsibilities with respect to step-parent and second parent adoption.
Society’s great efforts to support a richer model is why the vast majority of us live in houses that were build to fit 2 parents and a few children, right, because that makes it easy for our grandparents and our aunts and uncles to live with us and help us raise our children? I live in a house with 7 adults and 2 young children, and none of the adults are related by blood (the 2 children’s parents are married), and it is very obvious that the 2 young children (and their parents) benefit from living in a richer environment. Now, they could also have gotten such a rich environment by living with their extended family, but our society, in its efforts to meaningfully support the richer model of extended family actively involved in raising children, has seen fit to ensure that only a single member of this household lives within a thousand miles of their extended family.
There are substantial pockets of our society in which people still live near or with their extended family, and good on you if you and yours are managing to do that, but most people in this society aren’t (in large part because this society doesn’t support it), and blood kinship is far from the only way to create kinship.
Personally, I don’t particularly want to switch to a society where we all live within walking distance of our extended families, so I am in favor of our society providing better support to the creation of local nominal extended families as well.
james initiated this interesting step-parent discussion with:
I disagree that “in the long run” queer people will mostly have children through failed heterosexual relationships. There are bisexual people who will bring kids from straight relationships to gay relationships . . . but I think it’ll be a diminishing proportion of the queer people with kids. People today are aware of their sexual orientations at a relatively young age (although I know some older gay guys who were never in any doubt). Also, queer couples more and more are choosing to bring kids (adopted or concieved in the relationship) into their same-sex-headed household.
Civil marriage provides a well-tested and rich legal framework for dealing with many, many family situations. We don’t need to invent a completely new set of laws for the exact same issues.
Thanks marmalade! I kept meaning to include that point in my posts but kept not quite fitting it in. I agree completely.
When I used to be religious, I worked at a religious institution. The policy of the institution was that all non-temporary positions included religious responsibilities (including janitors, maintenance, technicians, etc). So all people hired for non-temporary work were required to belong to the religion of that institution. They did hire a few people from outside the religion, if they couldn’t find someone in the religion who was a good candidate, but they made sure it would be on a temporary or short-term contractual basis. People in these job categories also received fewer benefits, or no benefits.
This was all completely legal.
Once they were asked to make an exception and hire a specific person not of their religion on a long-term basis, with regular benefits. I don’t remember what reason was given for making the exception, but I think it was a pretty good reason. Anyhow, they consulted with their lawyers and decided that if they made an exception to this policy, it would undermine their legal argument for having the policy, which was that religious responsibilities were an integral part of all long-term jobs at this institution. So, they didn’t hire that person.
Mandolin: Then read a fucking bit about other cultures, for fuck’s sake.
Heh. I said “I can’t imagine a richer model” not “I can’t imagine an equal one”. I am aware of our world’s great diversity of cultures, and barring certain institutionalized abuses, I respect them all. but I’ll stand by my belief that none are superior to ours in richness. The mechanics of the institution are not really as relevent as the attitude of the individuals.
If I seem narrow-minded, it is only because while two cultures can have very different but equally-effective family models (like two countries can have very different but equally-effective traffic control models) it is very difficult for one culture to have an effective family model without basing it upon uniform codes.
Charles: but our society, […] has seen fit to ensure that only a single member of this household lives within a thousand miles of their extended family.
Personally, I don’t particularly want to switch to a society where we all live within walking distance of our extended families
Wait. Did society see fit to place you all so far from your extended families, or did you choose it?
Charles: blood kinship is far from the only way to create kinship.
No, but blood kinship is the only kinship you are entitled to. At least, it is my opinion you’re entitled to it. Not everyone thinks so. But I think I see your point anyway, Charles. You want to see more communal approach to family encouraged, I’m just not sure what you’re asking society to do to encourage it.
Wait. Did Charles see fit to design a socio-economic system that places a premium on mobility, interstate travel, and the ability to travel to keep up with jobs and the cost of living, or did society choose that?
—Myca