WEDDING BELL BLUES: Richard Posner in The New Republic

In June, the Supreme Court, in a case called Lawrence v. Texas, ruled that statutes criminalizing homosexual sodomy are unconstitutional. Immediately lawyers began wondering whether this meant that homosexuals have a constitutional right to marry. ... Evan Gerstmann has now produced a forceful and tough-minded brief for the result that Scalia dreads. But as he explains, the Lawrence decision came down just days before his book went to press, so he was unable to discuss the decision's bearing on the homosexual-marriage issue except briefly in a preface; or to discuss the recent decision of the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health, holding that the Massachusetts constitution creates a right of homosexual marriage.

When I say that Gerstmann's book is tough-minded, I mean that it rejects a number of the arguments made by advocates of a right of homosexual marriage, such as that homosexuals should be considered a "suspect class" (the sensible term would be "suspect classification"), the curious phrase for a group, such as blacks, that has historically been discriminated against; or that forbidding homosexual marriage is a form of sex discrimination, either because it uses a sexual classification (a man can marry a woman but not a man) or because it is part of an overall pattern of discrimination against women, insofar as homosexual marriage would undermine the norm of "patriarchal" marriage in which a man dominates a woman. Gerstmann argues that labeling a group of people as victims who deserve the special solicitude of the courts demeans them. He believes that the prohibition against homosexual marriage is not based on gender, since it gives men and women exactly the same rights; and that it is ridiculous to think that homosexual marriage is prohibited as a way of keeping women down rather than homosexuals down. These are powerful arguments, especially the last two. It might be added that to assimilate homosexual men to women reinforces rather than combats stereotypical thinking about homosexual orientation.

Gerstmann also points out that the fact that sterile people are permitted to marry is not the killer argument against distinguishing heterosexual marriage from homosexual marriage that it may seem to be. The law frequently and unexceptionably draws crude lines--for example, it forbids non-citizens to vote in our elections without insisting that citizens demonstrate that they are in fact loyal to the United States in order to be allowed to vote. He even acknowledges that, under current understandings of constitutional law, "society can oppose homosexuality as a moral matter without engaging in unconstitutional animus." Government may not forbid abortion, but it can denounce it. ...

...His argument is that the Supreme Court--rightly, in his view--has ruled that marriage is a "fundamental right," meaning that a state cannot take it away without a compelling reason; and the state does not have a compelling reason in the case of same-sex marriage. In a case called Turner v. Safly, the Court in 1987 ruled that a prison inmate could not be denied the right to marry, although the prison could forbid conjugal visits. If prisoners, why not law-abiding homosexuals?

But Gerstmann overlooks a "fundamental" difference. The Court in Turner was not expanding the basic right to marry as defined by marriage law and custom. It was not as if marriage laws forbade prisoners to marry. The question was whether a prisoner could be denied the same right (actually a greatly diminished right, since it did not permit the prisoner to live with his wife) enjoyed by non-prisoners. When Gerstmann describes the right to marry as fundamental, he means that any person who wants a marriage license has a strong presumptive right to it regardless of how the person defines marriage. He might be a man who wanted to marry his sister (both being sterile), or a very mature twelve-year-old boy (say, a freshman at MIT) who wanted to marry his twelve-year-old girlfriend (say, a freshman at Harvard), or a married man who wanted additional wives so that they might help out his current wife around the house, or a busy professional woman who wanted two husbands, the better to take care of the house and the kids, or a homosexual male who wanted three male spouses.

If the right to marry, irrespective of the conventional limitations on number, object, and so on, is fundamental in the portentous sense of putting on the state the burden of showing that the recognition of the right in the particular case would work some serious social harm, then it is doubtful that a marriage license could be refused in any of the cases that I have described. For what harm does polygamy do, exactly, and what harm does incest do when there is no possibility of children? Gerstmann's approach thus has implications far beyond the question of homosexual marriage as it is ordinarily understood.

He is aware of the problem, but he cannot solve it. ...

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posted by Eve at 10:32 AM VOTE 0 comments

MARRIAGE AND THE MEANING OF SEX: Jennifer Roback Morse in National Review Online

The Supreme Judicial Court of Massachusetts has opined that "government creates marriage." Therefore, government can recreate marriage, if it so chooses, or if the Supreme Court orders the other branches of
government to do so. But surely, even the Massachusetts high court would not
be so bold as to claim that government invents sex. And the meaning of human sexuality is really at the heart of the conflict over the judicial attempt to recreate marriage in its own image.

...So, what is the meaning of human sexuality anyhow? Sexual activity has two natural, organic purposes: procreation and spousal unity. Babies are the most basic and natural consequences of sexual activity. "Spousal
unity" means simply that sex builds
attachments between husband and wife. Spousal unity is the feature of human sexuality that makes it distinct from purely animal sexuality. As far as I know, humans are the only animals that copulate face to face. ...
Procreation literally builds the community by adding new members to the family.

...Many people celebrate the uncoupling of sexual activity from both of its natural functions, procreation and spousal unity. ...Instead of being an engine of sociability and community building, sex has become a consumer good. Instead of being something that draws us out of ourselves and into relationship with others, our sexual activity focuses us inward, on ourselves and our own desires. A sexual partner is not a person to whom I am irrevocably connected by bonds of love. Rather, the sexual partner has become an object that satisfies me more or less well.

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posted by Eve at 8:35 AM VOTE 0 comments

MASS. COURT SEEKS BRIEFS ON CIVIL UNIONS: From the Boston Globe

The Supreme Judicial Court is soliciting legal briefs from "interested persons" as it considers the Massachusetts Senate's request for an
advisory opinion on the constitutionality of a civil unions bill.

The court, a month after its explosive 4-3 decision on gay marriages, posted notices Monday that the briefs must be submitted by Jan. 12, four weeks before the Legislature, meeting as a constitutional convention,
will take up an agenda that includes a proposed constitutional amendment
to ban same-sex marriages.

"This is encouraging to me," said Ron Crews, president of the Massachusetts Family Institute, which is coordinating the opposition to the court's Nov. 18 decision. "I've never seen this as a settled matter."

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posted by Eve at 8:30 AM VOTE 0 comments

SLIPPERY SLOPERY: Mark Tardiff replies to Gabriel Rosenberg

Did the Goodridge decision open the way for legalized polygamy? Gabriel Rosenberg says that it did not, arguing that the disappearance of legal differences between men and women during the last thirty years prepared the way for the decision, while there has not been an erosion of the legal differences between two people and an individual.

There are at least two problems with this argument. One problem is that it misses the significance of what is novel in this decision. The novelty here is that, unlike any of the cases cited by the court to show how marriage & family law has changed over the years, in Goodridge the court claims the authority to change the definition of marrige itself. If this decision stands, it will not be at all unreasonable for a future court to cite Goodridge as the basis for changing the definition of marriage to include polygamy. The polygamists will have to present themselves as the next example of "people once ignored or excluded" to whom is due "the extension of constitutional rights and protections."

The second problem is that the Goodridge decision itself is not based on the disappearance of legal differences but on the expansion of constitutional rights. The court cites Perez and Loving as examples of expanding the freedom to marry, not as consequences of the disappearance of legal differences between whites and blacks. Similarly, the court's treatment of how the legal status of married women has changed emphasizes "the extension of consitutional rights and protections" (the phrase is found at the beginning of that paragraph). The court does not state that, since men and women are equal before the law, they are interchangeable as marriage partners. The court does state that denying someone the opportunity to marry another person of the same sex is an arbitrary restriction on his freedom to marry the person of his choice. The court criticizes the marriage statutes not on the grounds that they perpetuate legal differences between men and women that were eliminated in other parts of the law, but on the grounds that they manifest prejudice towards homosexuals. Hence for a future court citing Goodridge the constitutional rights of polygamists will be the point at issue. Arguments pointing to the maintenance of legal differences between two people and an individual will be irrelevant.
posted by Eve at 8:28 AM VOTE 0 comments

COMMON-LAW MARRIAGE: Ben Bateman

It’s hard to generalize about state laws on common-law marriage. In Texas we call it informal marriage (or at least the statute does), and there is no required time. The couple need merely 1) agree to be married, 2) hold themselves out as married, and 3) live in Texas. You can read the statute here.

This doesn't really change your point, but we conservatives must be careful with the details.
posted by Eve at 8:24 AM VOTE 0 comments

MIXED FEELINGS: George Curry

[George E. Curry is editor-in-chief of the NNPA News Service and BlackPressUSA.com. His most recent book is "The Best of Emerge Magazine," an anthology published by Ballantine Books. He can be reached through his Web site, georgecurry.com.]

As regular readers of this column know, I usually have pretty clear views on most social policy issues. But I confess that I have mixed feelings about same-sex marriages.

...Even Little Richard jokes that God created a union between Adam and Eve, not Adam and Steve.

To thousands, I know this is no joking matter. And while I believe that the government shouldn't sanction gay marriages, I understand why some gays and lesbians want to enjoy the same privileges that married couples covet--the right to make life or death health care decisions for an incapacitated partner, to be entitled to financial proceeds that were jointly created and to be entitled to all benefits extended to a surviving spouse.

...Gays and lesbians need to get real, too. It irks me that so many of them try to equate their struggle with the Civil Rights Movement. ...

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posted by Eve at 8:22 AM VOTE 0 comments

NJ ASSEMBLY APPROVES DOMESTIC PARTNER BILL: From the Philadelphia Inquirer

The state Assembly narrowly approved controversial legislation last night that would grant certain legal rights and financial benefits to same-sex couples.
The vote, taken after nearly an hour of debate, was 41-28, with nine abstentions. The bill required 41 votes to pass.

"Thank God," Laura Pople, president of the New Jersey Lesbian and Gay Coalition, said immediately after the vote was recorded.
Earlier in the day, a state Senate committee approved an identical measure. The bills could be merged and sent to Gov. McGreevey, who has indicated he would sign the legislation. ...

Supporters have said some older couples want domestic-partner benefits, but do not want to marry due to potential penalties on pensions and other financial interests.

...Both bills would provide for hospital-visitation and decision-making rights, an inheritance-tax exemption, and a state income-tax deduction for dependents.

The bills also would provide partners of state employees with health insurance and pension coverage, and would outlaw discrimination against domestic partners.

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posted by Eve at 8:14 AM VOTE 0 comments

STUDIES STUDIES STUDIES: David Barnes replies to Michael Triplett

To quote the Stacey paper (PDF): "Relative to their counterparts with heterosexual parents, the adolescent and young adult girls raised by lesbian mothers appear to have been more sexually adventurous and less chaste, whereas the sons of lesbians evince the opposite pattern—somewhat less sexually adventurous and more chaste (the finding was statistically significant for the 25-girl sample but not for the 18-boy sample)."

Even if not for the caveat at the end, I still see a big difference between reigning in the sex drives of teenage boys by teaching them about the problems of having sex while too young and frustrating the sex drives of teenage boys through gender confusion. The former seems much more likely to help boys develop healthy relationships in the future than the latter.
posted by Eve at 11:19 PM VOTE 0 comments

SLIPPERY SLOPERY: Gabriel Rosenberg replies to Bill Dillinger and Mark Tardiff

Bill Dillinger is absolutely correct to note that just because gender does not matter in some situation does not mean it does not matter in any situation. In Goodridge the court ruled only that it did not matter in the state's determination of whom one may marry. The fact that gender distinctions were no longer present in many other situations throughout the law, though, was quite relevant to this decision. At one time men and women had distinct legal rights and responsibilities in Massachusetts. Gradually this legal difference disappeared until finally in the 1970s a state constitutional amendment was passed to prohibit the denial of equal protection on the basis of sex. With no legal distinction between husband and wife there was no longer as much rationale to require that a marriage contain both. To some extent the legal advances of women played a role in making the gender requirements of marriage obsolete.

Mark Tardiff has asked whether the "binary" requirement could similarly become obsolete. This binary requirement can be rephrased as the requirement that each married person have exactly one spouse. Whereas the legal difference between man and woman has narrowed, it seems to me the legal differences between two people and an individual will remain forever.

I should emphasize here that I have been discussing only legal differences between a man and a woman. I am not saying a man is the same thing as a woman, only that they now generally have the same legal rights and responsibilities. In part this is because the law is now forbidden from using generalities in classifying based on sex. The state may not justify a legal distinction by saying "women tend to...." I believe this is a good thing, but for the purposes of the slippery slope debate it only matters that the law has indeed changed in this manner.
posted by Eve at 11:08 PM VOTE 0 comments

SLIPPERY SLOPERY: Gabriel Rosenberg replies to Mark Tardiff

Hillary wanted to marry Julie, but the state would not allow her, because of classifications based on sex. If Hillary were a man she would have been allowed to marry Julie. The court ruled that such a classification was not necessary to achieve any legitimate purpose and thus prohibited the state from taking sex into account in granting marriage licenses. Mark Tardiff and I have been having a discussion as to whether and how a parallel to this could be used in a challenge to allow for polygamy.

I first thought the parallel would be as follows: Jacob wants to marry Rachel, but the state will not allow him to, because he is already married to Leah. Thus the state is classifying based on marital status. If Jacob were single he could marry Rachel. Mark and I have agreed that it is not surprising that marital status should be relevant throughout the laws of marriage.

Mark then proposed a loophole: Jacob would seek to be united with Rachel and Leah in one marriage. Again he would be refused, but on what basis? The state is drawing a distinction between "two people" whom it is forbidden to marry and an "individual" whom it is permissible to marry. Mark has now proposed a way around this.

Rachel and Leah both seek to marry the person of their choice, Jacob. As we have noted, though, rights attach to individuals. As an individual Rachel is asserting her right to marry Jacob. Either Jacob is single and this would be allowed, or Jacob is married and this would be forbidden. We have come full circle to the marital status classification. A person seeking a polygamous marriage must either ask the state to treat a married person as single, or to treat two people as an individual. Mark is correct that Jacob could assert his right to freely exercise his religion by marrying both Rachel and Leah, but this is a separate argument that does not parallel the Goodridge case.
posted by Eve at 11:02 PM VOTE 0 comments

NORMS REQUIRE STIGMAS: Letter to MarriageMovement.org

I don't think it's really possible to support "regular" mother/father families without stigmatizing other types of families, whether single-mother or same-sex parent. I myself am of single mother of the least stigmatized sort--i.e., a widow--but both my child (now grown) and I have had to cope with some fairly insensitive comments and remarks over the years.

Just one example: my daughter came home from grade school one day, about a year after her father had died, and asked me whether she was an orphan. The reason? A group of girls had surrounded her on the playground at recess time and pelted her with Pepperidge Farm Goldfish crackers, while chanting, "Orphan! Orphan!" This was, by the way, at an expensive private school. ...

Now, it may be that the goal of getting and keeping mothers and fathers married to each other is so important that the rest of us just have to bear with odious comparisons. That a stigma exists does not, per se, mean that it must be abolished. The cost of abolishing it, and treating all arrangements alike, may just be too great for society as a whole. That's a social science question that I don't feel qualified to answer. I do think, however, that you're being too optimistic in thinking that society can single out marriage for special support while simultaneously not stigmatizing other arrangements. Call one arrangement special--heck, call it "regular" or "normal"--and other arrangements--and the participants therein--will automatically be viewed as inferior.

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[Eve: I guess I don't see what the alternative is, though. The alternative to acknowledging that some family forms are better than others--and encouraging the better ones while discouraging the worse ones, when that's possible--is pretending that all forms, and all decisions by parents, are equal. This hurts children in two ways: First, by making it more likely that they will grow up in bad situations, and second, by telling them that there is no basis for their pain and their sense that the family has been broken or only half-formed. Kids who feel pain when their family situations are lousy are right, and they shouldn't be told that they're being unreasonable in hopes that this will make them feel better.

[(Specifically, since the woman writing to Elizabeth Marquardt here is a widow, I don't see how it would help--or whom it would help--to say that being widowed is no worse than not being widowed.) People will definitely be jerks to you about any pain you have in your life, because people are very messed-up. But I don't think you can assuage that pain by rawly asserting that all family forms and situations are equally good.

[I don't think this letter-writer is advocating that--I get the impression she's just thinking out loud, presenting a problem, not advocating a particular stance. But I don't think there's a solution to the problem she presents. Even if all us family-policy-interested people did rawly assert that all family forms are equally good, kids would still be little monsters and semi-well-meaning Lady Bountifuls would still make insensitive comments. And now I'll shut my yap.]
posted by Eve at 10:49 PM VOTE 0 comments

FMA SUPPORTERS SHOULD FOCUS ON PENNA. SENATE RACE: From the Washington Times

It's not unlike a two-cushion shot in billiards: If the proponents of the federal marriage amendment want to succeed, they had better spend some time focusing their forces on next year's U.S. Senate primary in Pennsylvania. ...

I keep asking my friends in the pro-amendment camp, what are the odds of the FMA passing out of the Senate with Arlen Specter as chairman of the Judiciary Committee? Unless FMA forces push the measure through the Senate in 2004, a most unlikely prospect, this is what they may confront in 2005. The current Judiciary Committee chairman, Utah Republican Orrin Hatch, is term-limited. Mr. Specter is next in line to assume the committee chairmanship in 2005.

Over the years, Mr. Specter has not been much of friend to social conservatives. He is pro-choice on abortion, favors extending hate crimes protection to sexual orientation, and bizarrely invoked Scottish law to
cast a vote against conviction in Bill Clinton's impeachment.

Sen. Specter probably would not be enthusiastic about amending the Constitution to protect marriage, pre-empt the federal court's jurisdiction, and federalize state family law. And any marriage amendment, of course, must pass through the Judiciary Committee.

Mr. Specter's re-election next year could doom whatever chance the FMA might have in the Senate. Fortunately for amendment advocates, Mr. Specter faces a primary challenger. Rep. Pat Toomey is running for the Specter seat. If Mr. Toomey were to defeat Mr. Specter, the Judiciary Committee chairmanship would rotate to Sen. Jon Kyl, Arizona Republican. Therefore, the fate of the FMA could be decided by the Pennsylvania primary in
April.

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posted by Eve at 10:31 PM VOTE 0 comments

TWO MAGGIE ASIDES: Maggie Gallagher

Not to distract from the mainline of debate. But must correct the Village Voice story in which an HRC spokesman says some states make cohabitors "married" against there will. Nope. Confusing "common-law marriage" and "cohabitation" is on the same order as confusing "civil unions" and "civil marriage."

Common-law marriage states required cohabitors to hold themselves out to the community as a married couple (e.g. "Mr. and Mrs.", filing joint tax returns, etc.) and to maintain this public facade of marriage for 7 years. Just living together never made you married in the U.S. (Canada however has given up on consent as a condition to marriage). I personally believe that common-law marriage has deep roots in Catholic marriage tradition, which holds that consent to marriage and consummation constitute the essence of a valid marriage. (For the last five hundred years the Church has required a witness from the clergy--not to perform but to witness the vows of the couple which create the marriage). Basically if a couple claimed to be married and lived as if married, after 7 years the state gave up and said "well, I guess you married each other."

But the couple themselves had to indicate by their public professions that they considered themselves married.

On the latest Canadian poll: I think it is probably overstating the case (and possibly deceptive) to say that support for SSM has "dropped" to 31 percent. Nonetheless it is striking and fair to say that in Canada after more than a year of intense public debate and a court ruling ordering gay marriage, less than one-third of Canadians support this option, if given the alternative of a "civil union"-like status.


posted by maggie at 7:23 PM VOTE 0 comments