WASHINGTON REACTIONS: Jim Geoly

[Jim Geoly is an attorney in Chicago.]

I thought that it was interesting that the court, like the one in Mass., decided the case under the state constitution only, precluding ultimate review by the U.S. Supreme Court. These people are building a very cynical federalism case against the federal DOMA: that the "states" should have the right to decide the issue. They will point to Quill/Glucksberg upholding the states' right to decide the physician assisted suicide issue. The irony is that, within each state, they are hijacking the democratic process and relying on activist judges to impose SSM under state constitutions that were never intended to guarantee this "right." They are overturning the will of the people of states like Mass. and WA, and then using that result disingenuously to argue that "the people" of Mass. or WA have opted for SSM, and should be allowed to do so. Very tricky stuff. Of course, in Quill/Glucksberg, the People of NY and WA really had spoken, through legislation banning assisted suicide. In Oregon, the People have made the opposite (and very unfortunate) decision.

Lawrence is leading to the bad results that were predicted, but in an unanticipated forum: state courts interpreting state constitutions. That is why a federal constitutional amendment is required: to protect the rights of the people of the several states to decide this issue democratically.

posted by Eve at 4:11 PM VOTE 0 comments

LABOR BACKS AUSTRALIAN SSM BAN: From The Age

Gay marriage will be made illegal in Australia before the federal election after Labor yesterday said that it would support the Government's proposed ban.

While Labor has stated previously that it is opposed to gay marriage, it had referred the original legislation to a Senate committee to examine the legal, constitutional and social impacts of the legislation.

Opposition attorney-general Nicola Roxon told the National Marriage Coalition forum in Canberra that Labor would now pass the bill. ...

Prime Minister John Howard told the forum that he would reintroduce legislation within a fortnight, saying he wanted the issue dealt with before the election.

While gay marriage is not recognised in Australia, Mr Howard has expressed concern that the courts could adopt a more liberal interpretation. He said he wanted to enshrine in law the notion that marriage was a union between a man and a woman, to the exclusion of all others.

"It would be a great pity if this issue were left hanging in an election campaign," he said.

"In putting it into law in the next two weeks nobody can say it's being used as a wedge, nobody can say it's a diversion, everybody can say it's a united expression of the national parliament and therefore of the will of the Australian people."

Labor's move was condemned by gay groups and the minor parties. ...

Mr Howard is reintroducing the bill so that it deals solely with gay marriage, either in Australia or overseas. The original bill included a ban on gay couples adopting children overseas. Ms Roxon said Labor did not support this because adoption law was the responsibility of the states and territories.

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posted by Eve at 4:00 PM VOTE 0 comments

MISSOURI, FMA AND SUCHLIKE: Ramesh Ponnuru

I imagine that amendments declaring marriage to be a one-man, one-woman affair would pass in most states, but I'm not sure how much of a bellwether Missouri is on this issue. I've always had the impression that it was more socially conservative than your median state, and that its Democratic voters (many of them rural) were more socially conservative than their counterparts in many states.

As for whether the FMA will "take off like a rocket," as Stanley suggests: Senator John Cornyn, interestingly, tells Terry Eastland that the FMA will be enacted only when courts make more rulings in favor of same-sex marriage. In particular, he thinks that federal-court decisions that struck down the Defense of Marriage Act or imposed same-sex marriage on a state would cause it to be enacted.

Such decisions, at least if made in the next year or so, would increase the likelihood of enactment. If you were a legal activist working for same-sex marriage, or a judge looking to promote the same cause, the cautious thing to do would be to avoid seeking or issuing those decisions. Concentrate on the state courts, where there have already been successes. Get same-sex marriage imposed on several states and hope that it becomes normalized and opposition softens. Wait a few more years before moving to the federal courts, so that when the federal courts do move there will be less chance of a backlash.

I think that would be the most prudent strategy. But then, I thought last fall that the Massachusetts court would better advance the cause of same-sex marriage by settling for civil unions for the moment. I'm less confident of that judgment now, but in any case it did not help to predict what the court would actually do.

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posted by Eve at 3:54 PM VOTE 0 comments

GAY MARRIAGE IS NOT INEVITABLE: Stanley Kurtz

...Looking at the recent Senate FMA debate, you can see the signs. It was next to impossible to find a Democrat willing to defend gay marriage. Instead, the Democrats claimed that DOMA would hold, and dismissed the drive for an amendment as a distraction. Most Republicans, on the other hand, argued vigorously in favor of marriage as the union of a man and a woman. There were plenty of references to the critical importance of marriage for children, and to Europe's experience of gay marriage. There was a time when gay-marriage advocates claimed that Republicans were afraid of this issue, and bereft of substantive arguments. Yet in the Senate, it was the Democrats who awkwardly ran from substantive debate. When the progress of this issue though the courts makes it clear that an up or down vote on substance is required, what are the Democrats going to do?

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posted by Eve at 3:50 PM VOTE 0 comments

WASHINGTON REACTIONS: David Morrison

...Some parts of this story need unpacking, particularly the different reasons Judge Downing gave for his ruling.

"Morality requires it." Downing countered: "... Americans have differing views as to what morality requires in the definition of marriage. It is not for our secular government to choose between religions and take moral or religious sides in such a debate."

Except that is precisely what the court has done. The court has stepped into the middle or what is assuredly a moral question with an opinion for one side. This makes as much sense as throwing out a law against theft, since theft is a moral question as well. ...

"Before the Court stand eight couples who credibly represent that they are ready and willing to make the kind of commitment to partner and family for all the right kinds of reasons. All they ask is for the state to make them able," he wrote

Except they can. Now. Dan and I have been together, first as lovers and now as brothers in faith, for 18 years as of this past July 4. We own property together, have remembered each other in insurance and wills, have had joint savings and capital building accounts in the past and seem likely to have them in the future, have visited each other in hospital past visiting hours with no one saying a word and will soon have medical powers of attorney for each other. All without having asked the State to recognize or particularly validate our sex lives or friendship. Now, imagine that! :) Nothing stopped us and we didn't need to take a central human social institution and turn it on its ear to do it.

The really funny and ironic thing is that, on its face, we could be a poster couple for the case for same-sex marriage, maybe the poster couple. But, you know, we don't have sex, so curiously no one is out filing court papers on our behalf.

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posted by Eve at 3:37 PM VOTE 0 comments

HIGH-COURT FIGHT LOOMS IN WASHINGTON: From the Seattle Times

...In a decision that will go immediately to the state Supreme Court, bypassing the court of appeals, Downing wrote: "The denial to the plaintiffs of the right to marry constitutes a denial of substantive due process."

For now, the ruling has little practical effect. Downing did not order King County to issue marriage licenses to same-sex couples because of an earlier agreement to let the state Supreme Court have the final say. ...

David Skover, a constitutional-law professor at Seattle University, defended the ruling.

"Judge Downing's opinion is an extraordinarily eloquent and incisive testament to the power of the judiciary, even at the Superior Court level, to protect fundamental constitutional rights in significant ways," he said.

"The judicial branch of government sometimes needs to put itself into tension with the Legislature," he added. "Judge Downing recognizes that it is fully consistent with our sound constitutional system and our design of government that the judiciary protect minority rights against majority will when the most fundamental of our rights are impeded." ...

Jennifer Pizer, senior staff attorney with Lambda Legal, hinted that she thinks the state Supreme Court will affirm gay marriage, noting that it has already decided same-sex couples cannot be denied domestic-partner benefits or inheritance rights that married heterosexual couples enjoy.

The plaintiffs, who filed the suit against King County in March, argued that the state's 1998 Defense of Marriage Act, which restricts marriage to one man and one woman, is unconstitutional.

The defendants, which included King County and the state, argued that barring same-sex marriage serves a compelling state interest by encouraging people to have children and to raise children in a healthful, nurturing environment.
Downing agreed with most of the plaintiffs' arguments and skewered the defendants' rationale.

"The laws of today recognize the reality that a substantial amount of procreation occurs outside of the marital relationship," he wrote. If same-sex marriage were legal, more children would be raised in a home by same-sex adult partners whose marriage would bring them more family stability and social acceptance, he added.

...In his decision, Downing called the 16 plaintiffs people "any of us should be proud to call a friend."

"... the goal of nurturing and providing for the emotional wellbeing of children would be rationally served by allowing same-sex couples to marry; that same goal is impaired by prohibiting same-sex marriages," he wrote. ...

Last month the couple and their children returned from a vacation to Mexico. The plane's flight attendants instructed passengers to fill out a form for U.S. Customs. She and her partner filled out one form as a family, but upon arrival, they were told they needed two. "There's still some homophobia out there," Helson said. "It would give kids an anchor to know their parents are married, too. It's emotionally and psychologically important for children to have that stability."

Plaintiffs David and Michael Serkin-Poole of Bellevue said they've spent thousands on legal fees to establish inheritance and survivor rights, financial and health-care powers of attorney and co-parenting documents for their three children.

"It doesn't cover every possibility, but it's the best we can do, " said David Serkin-Poole. He and his partner have been together for 23 years. "I call him my fiance. We're intending to be married; it's just going to take a while," he said.
He's confident same-sex marriage will become legal in Washington.

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posted by Eve at 3:31 PM VOTE 0 comments

MISSOURI REACTIONS: From the NY Times

Missouri voters' overwhelming decision to bar gay marriage with a constitutional amendment has sent a resounding message around the country.

With at least nine other states expected to vote on similar amendments this fall, including four swing states in the presidential race, leaders on each side of the issue viewed Missouri's 70 percent approval of the amendment on Tuesday as a glimpse of what might lie ahead. ...

Opponents of the amendments said that they were distressed, even hurt, by the outcome in Missouri, but that they planned to study exactly what had happened in the brief months of campaigning there to learn which strategies had worked and which failed. The spending had been lopsided here, with supporters of gay marriage spending $450,000 to fight the measure with television advertising and polling, compared with $19,000 spent by opponents. ...

In the days leading up to Missouri's voting, polls had shown that the ban on gay marriage would very likely pass, but with the support of about 60 percent of voters, so the size of the approval startled some people. The amendment passed in every county except the City of St. Louis, where it failed by about 3,500 votes out of about 60,000 cast.

Few had anticipated the scale of the turnout either. In state records kept since 1980, there had never been comparable participation in an August primary. Nearly 1.5 million people voted, a fact that Vicky Hartzler, spokeswoman for the Coalition to Protect Marriage in Missouri, attributed to grass-roots efforts, including notes in church bulletins, neighbors holding up signs along busy thoroughfares and preachers talking to their congregations.

"Even though we were outspent and we had a national political machine descend on our state to try and defeat this," Ms. Hartzler said, "people got out and worked and called neighbors and said a lot of prayers."

On Friday, leaders of Missouri's anti-gay-marriage effort will offer advice in a conference call to those pushing for amendments in other states, she said.
Her own best advice to the other states, Ms. Hartzler said, would not be about politics. "The No. 1 thing is prayer," she said, "and a passion for protecting the sanctity of marriage."

The group that led the opposition to a ban in Missouri, the Constitution Defense League, said it would also probably share observations with its counterparts elsewhere. Next month, voters in Louisiana will cast ballots on a similar amendment, and even Christopher Daigle, a leader of the opposition there, conceded on Wednesday that he would not be surprised if that state's results mirrored Missouri's.

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posted by Eve at 3:27 PM VOTE 0 comments

WAITING FOR BAD NEWS: Terry Eastland

ASK JOHN CORNYN when the Senate might again consider the Federal Marriage Amendment, known as the FMA, and he has a ready answer: "It's probably going to take an adverse court decision." By that, Texas' junior senator means a decision adverse to marriage as traditionally defined--as consisting only of the union of a man and a woman.

Such a decision, he said in an interview, would probably move some of his hesitating colleagues to vote for the amendment, which would write into the Constitution the traditional definition. Under the FMA, marriage could nowhere be redefined as it has been in Massachusetts, by order of its Supreme Judicial Court, as the union of any two people.

Since the original Constitution was ratified, Congress has proposed 33 amendments, of which the states have ratified all but six. Congress, those numbers suggest, has long been reluctant to propose an amendment--proposal requiring two-thirds majorities in both houses--unless it has substantial public support. And regarding the FMA, the recent failed Senate vote fairly reflects the sentiment of a public that, to judge by polling data, favors marriage as traditionally defined, but is not yet prepared to constitutionalize that understanding.

What is most notable about the FMA is its relationship not only to what courts have already done to traditional marriage, but also to what they might do. But for several "adverse court decisions," especially the one from Massachusetts, there would be no marriage amendment at all. But, paradoxically, as Cornyn recognizes, the amendment would seem to have no prospect unless there are additional adverse court decisions that begin moving members of Congress into the "yes" column.

The FMA represents a new kind of constitutional amendment. At least five times we have amended the Constitution to reverse a Supreme Court decision. (See the 11th, 13th, 14th, 16th, and 26th amendments.) The FMA, however, proposes that we not wait for an actual Supreme Court decision redefining marriage for the nation as the union of any two people, or lower court decisions accomplishing the same, but that we act to prevent such a judicially demanded outcome. For that reason, Sen. Cornyn calls the FMA an "anticipatory" amendment, though "prophylactic" might be the more accurate adjective.

The cases on behalf of same-sex marriage now being litigated in federal and state courts total three dozen. Cornyn identifies two kinds of adverse decisions that would "get people's attention." One would declare unconstitutional the federal Defense of Marriage Act, which, passed by huge majorities in 1996, defines marriage for purposes of federal law as the union of a man and a woman and seeks to prevent the interstate transmission of same-sex marriage. Cases are pending in federal courts in Washington and Florida.

The other would declare unconstitutional some state's definition of marriage as the union of a man and a woman. A federal case against Nebraska, in which the judge already has telegraphed his opposition to Nebraska, may soon be decided.
Advocates pressing for those outcomes are citing the Supreme Court's 2003 decision in Lawrence vs. Texas, arguing that the right to sexual liberty posited in that case should encompass the right to marry a person of either sex. Lawrence, says Cornyn, a former Texas Supreme Court justice, is "the big problem," by which he means that its doctrine points inevitably to the judicial redefinition of marriage.

Some who favor traditional marriage but not the FMA say that the definition of marriage should be "left to the states." Ideally, it should be. That's unrealistic, argues Sen. Cornyn, because Lawrence and its probable employment by judges make it unlikely that the states can maintain the traditional definition of marriage if they desire.

Cornyn's position appeals to those disinclined to think that the courts can restrain themselves from embracing same-sex marriage. Meanwhile, the question for those who support the traditional definition of marriage but are not yet willing to support the FMA, or something like it, is this: How many more "adverse" court decisions will it take before the case for an amendment becomes compelling?

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posted by Eve at 3:33 PM VOTE 0 comments

AUSTRALIAN PM PUSHES AGAIN FOR SSM BAN: From The Age

Prime Minister John Howard called on Labor and the minor parties to back a ban on gay marriage in the next two weeks to make sure marriage did not become an issue in the election.

Mr Howard told the National Marriage Coalition forum in Canberra he had not made up his mind on the timing of the election, but his comments indicate he is keeping open the option of a September 18 poll.

Parliament is sitting for the next two weeks but Mr Howard could name the date at the end of next week, on the eve of the Olympic Games.

Mr Howard said the coalition would reintroduce proposed changes to the Marriage Act to confirm marriage was a union between a man and a woman, to the exclusion of all others.

"I'm therefore saying to my colleagues in the other political parties in the Senate, if we really want to ... divorce this issue from the political debate let's put it through, let's vote in favour of it, let's put it into law within the next two weeks," he said.

"In putting it into law in the next two weeks nobody can say it's being used as a wedge, nobody can say it's a diversion, everybody can say it's a united expression of the national parliament and therefore of the will of the Australian people."

The government's original bill, coupling the marriage changes with a ban on gay couples adopting children overseas, has been sent to a Senate inquiry to report by October 7.

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posted by Eve at 3:29 PM VOTE 0 comments

NO RATIONAL RELATIONSHIP?: Maggie Gallagher

A lower court judge just struck down Washington state's DOMA, which defined marriage as the union of a man and a woman. The same day Missourans overwhelmingly passed a state constitutional amendment despite the fact that SSM advocates outspent opponents by something like 40 to 1, according to the St. Louis Post Dispatch.

(The main argument offered by the Human Rights Campaign and other pro-SSM groups was that Missouri didn't need a constitutional amendment because it already had a DOMA law.)

As in Goodridge, the Washington court cited Lawrence v. Texas as obviously relevant to the same-sex marriage debate. As in Goodridge, the judge not only could find no "compelling" state interest in marriage as the union of husband and wife, but no "rational relation" to any legitimate state interest.

No reason at all, I guess, why just about every known human society tries to bring male and female together in a special relation called marriage.

For a copy of the Washington state court decision striking down the state DOMA, go here (PDF).

posted by Eve at 3:21 PM VOTE 0 comments

JUDGE RULES SSM LEGAL IN WASHINGTON STATE: From the Seattle Times

Same-sex marriage is legal in Washington state, King County Superior Court Judge William Downing ruled today.

But, as expected, the decision is stayed--and no local marriage licenses can be issued--until the state Supreme Court reviews the case.

In his ruling, Downing said the state's Defense of Marriage Act, which limits marriage to one man and one woman, is unconstitutional.

Reaction to the judge's ruling was swift.

"It's a breathtaking leap is what it is," said Joseph Fuiten, 54, president of the Bothell-based Washington Evangelicals for Responsible Government, which intervened in the case on the state's side. "For the judge and the judicial branch to discover a right which has never existed in human history, has no precedent in American law or jurisprudence ... is to go out into unknown territory with unknown social consequences."

Fuiten said his group would appeal the decision.

Lambda Legal senior staff attorney Jennifer Pizer praised the ruling.

"It is important that Judge Downing was systematic and thorough and agrees that these Washington citizens are entitled to full and equal treatment under the Constitution," she said. "His opinion laying out that analysis will make a big difference in the way the case is understood on appeal."

Citing the rationale of state Supreme Courts in Massachusetts and Vermont, Downing wrote, "The Court concludes that the exclusion of same-sex partners from civil marriage and the privileges attendant thereto is not rationally related to any legitimate or compelling state interest and is certainly not narrowly tailored toward such an interest."

Downing characterized the reasons for banning same-sex marriage and then refuted them as follows:

"Morality requires it." Downing countered: "... Americans have differing views as to what morality requires in the definition of marriage. It is not for our secular government to choose between religions and take moral or religious sides in such a debate.

"Tradition compels it." Downing cited the Massachusetts Supreme Court's opinion that "it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been."

"The institution of marriage is threatened." The judge said threats to marriage--notably a shortage of commitment and an excess of selfishness--come from inside the institution, not outside it.

"Before the Court stand eight couples who credibly represent that they are ready and willing to make the kind of commitment to partner and family for all the right kinds of reasons. All they ask is for the state to make them able," he wrote.
The suit against Washington state's law was filed by Lambda Legal and the Northwest Women's Law Center on behalf of eight same-sex couples denied marriage licenses in King County. The case was the first of its kind to be filed in Washington since Massachusett's high court ruled in favor of same-sex couples marriage, and its outcome will have legal and political impact beyond this state.

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posted by Eve at 3:17 PM VOTE 0 comments

GAY MARRIAGE IS NOT "THE NEW ABORTION": Virginia Postrel

This WaPost article reports a common analogy: "Activists on both sides have begun to speak of the issue as 'the new abortion' -- a passionate and uncompromising struggle that will be fought in Congress, the courts and state legislatures, and through referendums for at least a decade to come. "

The comparison doesn't hold in one, very important respect: Abortions are sad. Weddings are happy. Having an abortion--or having a friend or relative who has one--may make you more supportive of abortion rights, but it won't make you celebrate the idea. Abortion won't make you smile.

People support abortion rights out of fear. They support gay marriage out of love. There are, of course, non-emotional arguments on both sides of both issues, but the fundamental feelings are different. That changes the politics, particularly with time and experience.

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posted by Eve at 1:21 PM VOTE 0 comments

RELIGIOUS LIBERTY AND SSM: Maggie Gallagher replies to Bonnie Blacklock

Well, we have a First Amendment that should provide protection to religious activities directly. It is less likely to protect the charitable and educational activities of religious organizations.

The Bob Jones University is an example. No one has threatened the tax-exempt status of a church that preaches against interracial dating. But a university? Its accreditation, tax-exempt status, and qualification to receive federal funds directly or indirectly (through scholarships to students, for example) may be in jeopardy if it is judged to be acting against the public interest.

(Original Becket Fund paper that prompted this thread is here in PDF; HTML excerpts here.)

posted by Eve at 1:16 PM VOTE 0 comments

SSM AND RELIGIOUS LIBERTY: Bonnie Blacklock replies to Joshua Jasper and Maggie Gallagher

[Bonnie Blacklock is a former attorney and a home-schooling mother of five.]

Joshua Jasper says that "The fears of churches being forced to perform same-sex marriages . . . are simply untrue. Churches can perform whatever marriages they want." Maggie agrees that "it is unlikely that churches will be forced to marry same-sex couples," but then goes on to predict that schools teaching that marriage is the union of a man and a woman may lose their accreditation and tax exempt status.

I'm wondering why churches wouldn't lose their tax-exempt status as well. Excluding unbelievers is one thing; excluding on the basis of a protected status might be quite another. I've looked around for cases in which churches refused to marry people of different races and haven't found any, but I find it hard to believe they'd get away with it, any more than Bob Jones University got away with its ban on interracial dating. If homosexuality comes to be treated like race for equal protection purposes, would churches really get a pass?

posted by Eve at 1:13 PM VOTE 0 comments

NORWAY'S OMBUDSMAN FOR CHILDREN TELLS GOVT TO NIX GAY ADOPTION: From 365Gay.com

Plans by Norway's government to allow same-sex couples to adopt have prompted a strong warning from the official in charge of protecting the rights of children.

The government has announced it intends to have the new adoption law in place this fall. Currently Norway allows gay and lesbian couples to register as domestic partners with many of the rights of marriage. It permits one partner to become the coparent of another partner's natural children, but does not permit them to adopt.

"Adoption is not a human right," Reidar Hjermann has told Norway Television.
"Homosexuals are fighting a rather legitimate battle for liberation, but it is important that children do not become weapons in that battle," said Hjermann.
"The time is not right for adoption, maybe in 10 or 20 years, or 100 years, but not now."

Only when same-sex couples are accepted in society to the same level and degree as heterosexual couples should adoption be allowed Hjermann said.
"Some children adopted from abroad have a difficult time to begin with, and they should not be subjected to additional difficulties, but I hope that we one day will reach the point where this is accepted," Hjermann said.

The ombudsman's comments have angered the country's gay community.
"This is not at all about using children as a crowbar, said Jon Reidar Oyan, leader of Landsforeningen for Lesbisk og homofil frigjoring, the national organization for lesbian and gay equality in Norway.

"It is about the fact that we want the same right to be evaluated as adoptive parents in the same way as others, regardless of sexual orientation."

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posted by Eve at 1:10 PM VOTE 0 comments

OHIO TO VOTE ON MARRIAGE AMENDMENT: From the Cincinnati Enquirer

Supporters of a constitutional amendment banning gay marriage expect to submit more than 400,000 signatures today to place the issue on the November ballot in Ohio.

If at least 323,000 signatures are certified and withstand likely legal challenges, voters could alter the state constitution for the first time since 1997. ...

The Ohio amendment would prevent the state from recognizing gay marriage and deems civil unions and domestic partnerships unlawful. ...

The amendment goes further than the Defense of Marriage Act that Gov. Bob Taft signed in February. The amendment prohibits any legal status that "intends to approximate ... marriage." ...

Alan Melamed is chairman of a group preparing a legal and political challenge to the amendment.

Melamed said domestic partner benefits would be banned from universities and could become legally complicated for private companies.

Dozens of Ohio companies and four state universities offer domestic partner benefits to employees.

"If this passes, it's going to take away important tools universities and private companies have to compete and be successful," Melamed said. "When people realize how extreme this is, they will reject it."

Burress denies the amendment would stop companies from offering domestic partner benefits. He argued such wording is necessary to ensure the state doesn't recognize the benefits.

Once filed with the Secretary of State's Office, petitions will be examined and certified by county boards of election. To qualify for the ballot, signatures in 44 counties must total at least 5 percent of those who voted in each county's last governor's election. Burress said the group has signatures from 71 of Ohio's 88 counties.

Text of the amendment
"Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

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posted by Eve at 1:07 PM VOTE 0 comments

CHURCH IN SPAIN ASSAILED ON SSM: From Zenit.org

The president of the Spanish episcopal conference said that the national legislature "goes beyond its limits" if it impedes the preaching of the Word of God.

In this case, Cardinal Antonio Rouco was referring to the Church's opposition to so-called homosexual marriage, which is favored by the new Spanish government.

Cardinal Rouco made his comment today during an address delivered at the Escorial, in the wake of the government's criticism of the Church's stance, the Veritas agency reported.

The government opposed the Note published by the bishops' Executive Committee "on true marriage." Cardinal Rouco, the archbishop of Madrid, said he does not think "the Church went beyond the limits" of its functions when expressing itself in the democratic context.

The Andalusian Federation of Lesbian, Gay, Bisexual and Transsexual Associations presented a brief urging the attorney general's office to "promote the action of justice" and investigate a possible crime of "homophobia" by the bishops' conference for having taught Church doctrine, the ABC newspaper reported today.

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posted by Eve at 12:59 PM VOTE 0 comments

UTAH SUIT CHALLENGES LAWS ON POLYGAMY: From the Salt Lake Tribune

The state of Utah promotes responsible procreation and families with one mother and one father--but there is no ban on stepparents playing a role in children's lives and no laws enforced against unmarried teenagers who get pregnant, a civil rights lawyer told a federal judge Tuesday.

Attorney Brian Barnard also pointed out that interracial wedlock once was illegal, but now is lawful. The concept of marriage is changing, he said, and the legal definition should include polygamy.

"The state of Utah should not be able to criminalize the maintenance of an intimate relationship," Barnard argued in a challenge to prohibitions in state law and in the state constitution against bigamy and polygamy.

Assistant Utah Attorney General Jerrold Jensen agreed concepts about wedlock are changing, but added, "The state has always had the authority to regulate marriage."

That authority includes the power to ban incestuous, underage and same-sex marriages, he said.

The lawyers made their arguments to U.S. District Judge Ted Stewart in a hearing on a lawsuit filed by three Utahns who want to live together legally as husband and wife and wife. The trio filed suit in January against Salt Lake County clerks for refusing to issue a marriage license to the man, who already is legally married to one of the women, so he could marry the second woman.

The three contend the ban on plural marriage violates their constitutional rights to practice their religion and to free association. In addition, they say the law unfairly targets religious polygamy because people who create multiple common-law marriages through cohabitation are never prosecuted for bigamy.

At Tuesday's hearing, Barnard asked the judge to find the anti-bigamy and anti-polygamy laws unconstitutional based on a ruling last year by the U.S. Supreme Court. That ruling struck down a Texas law banning sodomy between same-sex couples. In Lawrence v. Texas, the court held that the law violated the privacy rights of consenting adults. ...

He added that a man in Utah could impregnate six girlfriends without facing criminal charges, while another who lives with six wives and takes responsibility for his children could be prosecuted.

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posted by Eve at 12:56 PM VOTE 0 comments

MISSOURI VOTERS AMEND CONSTITUTION: From the Associated Press

Missouri voters overwhelmingly approved a constitutional amendment Tuesday to ban gay marriage, the first such vote since the historic ruling in Massachusetts last year that legalized same-sex weddings there.

Although the ban was widely expected to pass in conservative Missouri, experts said the campaign served as a key barometer for which strategies work as the gay marriage battle spreads to ballot boxes around the nation. At least nine other states, and perhaps as many as 12, will vote on similar amendments this year.

The amendment had garnered 70 percent of the vote with 91 percent of precincts reporting.

Missouri and 37 other states already have laws defining marriage as only between a man and a woman. But amendment supporters fear a court could toss aside the state law, and they believe the state would be on firmer legal ground if an outright ban is part of the Constitution. ...

Supporters and opponents of the amendment have used grassroots campaigns, knocking on doors and making phone calls to tell people about the issue. The group fighting the amendment, the Constitution Defense League, raised more than $360,000, largely from national gay-rights groups, and ran a television ad in the final days before the vote.

The group favoring the amendment, the Coalition to Protect Marriage in Missouri, spread the word through churches and community events, raising just a few thousand dollars but saying public sentiment in Missouri was on their side.

Louisiana residents are to vote on a marriage amendment Sept. 18. Then Arkansas, Georgia, Kentucky, Mississippi, Montana, Oklahoma, Oregon and Utah are to vote on the issue Nov. 2. Initiatives are pending in Michigan, North Dakota and Ohio.

Four states already have similar amendments.

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posted by Eve at 12:52 PM VOTE 0 comments

RAUCH REVIEW: Tom Sylvester replies to Eve

[Superbrief reply: Hrm, it's pretty obvious to me that ssm, if and where legalized, will be presented/promoted as in essence the same as any other marriage. I also wonder if we may disagree on how deep and radical it is to claim that a unisex marriage is in essence the same as a heterosexual one. IOW to what extent can this claim really be paralleled with remarriage. Not sure about that and have not slept in much too long so am possibly making no sense, sorry. --Eve]

...She writes:
"Honoring intentionally motherless and fatherless families as marriages -- saying they are interchangeable with mother-father families -- denies these deep realities."

Two short responses to this. First, there are plenty of motherless and fatherless marriages -- those without kids. Second, I just don't accept the notion that legalizing same-sex marriages means "saying that they are interchangeable with mother-father families." Remarriage is legal, but I don't think that means we have to say that a stepparent families are interchangeable with biological mother-father families.

Is there an inherent contradiction between supporting bio mother-father families as the ideal for children and supporting same-sex marriage? There's a tension, sure, but are those two views really so irreconciliable?

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posted by Eve at 11:07 PM VOTE 0 comments

LEARNING ABOUT FATHERHOOD ON THE HIGH SEAS WITH ROSIE: Peter Marchese

As a gay man living in a one-bedroom apartment in New York, the thought of becoming a dad daunted me. Let's face it, few strollers are paraded down Chelsea's Eighth Avenue, and most of the neighborhood is more interested in raising eyebrows than raising kids. But after my partner David and I swapped our downtown digs for a spacious brownstone in Harlem, we decided to pursue parenting.

We launched our foray into the world of parenthood by boarding the first gay and lesbian family-friendly cruise. We hoped the trip, organized by R Family Vacations and headlined in the media by Rosie O'Donnell, would be the ideal opportunity to learn about our options and to immerse ourselves in a community living the real deal. ...

But unlike on other gay cruises, a number of informational workshops, roundtable discussions and panels germane to gay and lesbian families were held, such as "Being a Dad in Mom's World" and "Gay Parenting."

As potential parents, we concentrated on talks given by a surrogacy specialist, a domestic-adoption lawyer, an in-vitro fertilization doctor, gay dads and teens of gay and lesbian parents. These panels provided insight into a few of the parenting options available for gays and lesbians, but fell short on others, such as foreign adoption and foster parenting.

Still, we walked away from the seminars with enough powerful information to feel comfortable discussing the pros and cons of certain family-creation options and a stronger parenting vocabulary.

But what gave us the most inspiration to proceed down the path of parenting was the magnificent behavior of the kids on the ship and their interaction with their moms or dads. Before the cruise, I was apprehensive that somehow children of gay or lesbian parents were bitter and disgruntled by their situation. However, the kids I talked to had an unbelievable amount of confidence. They were open-minded, proud of their families, polite and spoke with such candor about where they came from that it gave me chills. They didn't have any issues with it -- so why should anyone else? In my opinion, their happiness is a credit to the warmth, love and patience demonstrated by their parents.

By the end of the trip, David and I were leaning toward some form of adoption rather than the more expensive and emotionally difficult process of surrogacy. Neither of us was adamant about having a biological child, nor against having a multiracial family. In fact, many of the families on board the ship were the result of a transracial adoption, and after watching them smile, laugh and play together, our ember of desire to become parents of virtually any child combusted.

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posted by Eve at 11:03 PM VOTE 0 comments

SSM AND FATHERHOOD: Kathleen Parker

Ever since the same-sex marriage debate began, I've wondered: Where are the fathers? If ever there were a cause to which the once-robust fatherhood movement might attach itself, this one logically should be at the top of the list.

The answer I got when I posed the question to one of the movement's leaders was threefold:

One, fathers have avoided the issue as marginal, believing that same-sex marriage doesn't directly concern them.

Two, though people have a visceral reaction to the idea of same-sex marriage, they have trouble articulating why they oppose it.

And finally, "Nobody wants to be called a bigot," said Stephen Baskerville, a Howard University political science professor and president of the American Coalition for Fathers and Children.

Fathers don't think same-sex marriage affects them directly? In light of the travails endured by the fatherhood movement over the past decade, same-sex marriage stands as a particularly decisive blow in the disenfranchisement of fathers in American culture. How? By reinforcing the idea that one parent is disposable, which has been both an unspoken tenet of American divorce and the animating force behind the fatherhood movement. ...

When we survey the evidence, what happens when children don't have fathers? Single motherhood, despite the heart-warming stories of virtuous single moms (I was once one), is a predictor for children at higher risk for teen pregnancy, sexually transmitted diseases, academic underachievement, drug use and juvenile delinquency. ...

At its root, same-sex marriage is predicated on two grossly faulty premises: (1) that children do not need both a mother and a father; (2) that two moms or two dads are just as good as a mother and a father. Here is where most people I know register their visceral opposition, even if they can't articulate just why.
We who have raised children know better. The unique gifts that mothers and fathers bring to their children cannot be replaced by substitutes. I suspect that heterosexuals--and even some homosexuals--who have been lucky enough to have two loving parents can affirm this truth.

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posted by Eve at 10:59 PM VOTE 0 comments

MARRIAGES MADE IN POLITICAL HEAVEN: Urban Institute symposium

[excerpts]

WENDY SWALLOW: ...When the administration puts on its rose-colored glasses and promotes remarriage, particularly among single parents, I have to admit I get a little nervous. Remarriage challenges the most mature among us and most remarriages actually fail. In fact, three out of four remarriages with residential children, that is, kids that come in to live with the marriage, do not survive, and most of those break up in the first four years, which is very difficult for the children, obviously, who have been put through the experience.

Which brings us to the research before us today. The work that Greg and Gary will present adds several interesting pieces to the marriage debate that should help us understand the complex picture that is the modern marriage. Even Mavis Hetherington, who is one of the best respected researchers into the dynamics of divorce and remarriage, said that she found in her studies that families present so many different forms it can be difficult to actually do good research about them. In one long term study she was doing on stepfamilies, she told me she kept trying to cluster the families into types as a way of understanding them, but soon realized that every family was so idiosyncratic that it needed its own cluster.

The variables are staggering, especially when you're looking at remarriage. Are the parents widowed or divorced? Who brings children to the marriage and under what sort of custody arrangement? Do the kids live with the remarried couple or do they visit, or do some live with them and others come visit? The list goes on and on. Every family, as we all really know in our bones, creates its own version of heaven or hell. But that doesn't mean we shouldn't try to understand marriage better because it matters, particularly when it comes to child welfare.
So let's start with Greg.

GREGORY ACS, Urban Institute: Thank you. I'd like to begin with a controversial statement: Marriage promotion should not be controversial....

Marriage promotion initiatives are aimed at promoting healthy marriages by providing information about the benefits of marriage, funding programs that teach relationship skills, and reduce the financial penalties facing married couples in tax and transfer programs. Marriage promotion is not and should never be about things like banning divorce or penalizing unmarried parents.
The major impetus behind marriage promotion efforts is to improve the well-being of children and so I'm going to focus my remarks on the meaning of marriage for children. Children living with their two married biological parents are less likely to be poor, to exhibit behavioral problems, to struggle in school, and to engage in risky conduct than children in any other living arrangement, and this forms the strong prima [facie] case for marriage. More specific information, like real numbers, appears in your packets.

Two questions dog marriage promotion initiatives. Can they actually increase marriage rates; and if so, how much will the well-being of children actually improve as a result? So the first question: can we promote marriage? We just don't know. Clearly there are some counseling and relationship skills programs that have shown promise, but we don't know if these programs can be implemented on a large scale or whether their success depends uniquely on the cadre of individuals running these programs in specific sites. We don't know whether the benefits of these programs generate widely to all population subgroups. For example, a counseling program that works very well for middle-class families may not work nearly as effectively for low-income couples, but we're trying to find out.

Indeed, the federal government is sponsoring a series of interventions and evaluations to determine what, if any, approaches to marriage promotion actually work. Now, in the interest of full disclosure, the Urban Institute is involved in some of these evaluations. These interventions include sponsoring programs aimed broadly at whole communities, more narrowly at low-income couples, and even specifically at unmarried couples at the time they have a child.

In some cases, like when a romantic couple already exists, it's easy to believe that interventions could help maintain and promote marriage. In other cases, say when there's a single mother who is no longer romantically involved with the child's father, finding a potential spouse is more problematic and in fact may not even be wise.

At any rate, if it turns out that these interventions can increase marriage, how much improvement can we expect to see in child well-being? Well, that largely depends on the extent to which there are inherent benefits to marriage. Now clearly there are substantial differences in the characteristics of married and unmarried parents. Married parents are more educated, they have better jobs, and they have higher incomes than unmarried parents. And these differences won't simply disappear if unmarried couples were to marry. Further, there are clearly reasons, and in some cases very good reasons, why cohabiters and single parents have chosen not to marry.

In fact, it's fair to ask: are all the differences in the well-being of children between married parent and other families simply due to the differences in the characteristics of the people who choose to marry compared to those who choose not to marry? Technically speaking, are the apparent benefits of marriage just selection effects?

The answer is a qualified no. While much of the difference in child well-being between married and other families can be accounted for by selection (that is, differences in the observable and unobservable characteristics of married and unmarried parents), there clearly are some intrinsic benefits to marriage. Now, these benefits may stem from the extra security and motivations couples feel when they are married. It could come from increased willingness of extended family to provide support to married couples. It could even come from reasons that I'm not clever enough to think of.

How much will marriage promotion benefit children? It's difficult to say. It depends on the circumstances of the children. Encouraging unmarried biological parents to marry, forming a married biological family, will have some benefits, although the well-being of children in these promoted marriages on average will not begin to approach the well-being of children in existing married parent families, mainly because the characteristics of the parents are so different.

Encouraging single mothers to marry men who are not the fathers of their children may have less positive benefits because these would form stepparent families and research clearly shows that stepparent families, again on average, are not as beneficial for children as living with their two married, biological parents. And if promoted marriages are less stable, then the benefits of a short term marriage have to be weighed against the potential harmful effects of the disruption in family life if these marriages dissolve. ...

GARY GATES, Urban Institute: Thank you, Greg. My role here is to talk about the issue that I think has become sort of the [marquee] issue around marriage right now because it's been elevated to the level of a constitutional amendment, and that's the issue of same-sex marriage, and there is now much discussion about whether or not marriage should be defined in a particular way in the constitution.

While heterosexual marriage, and in fact heterosexual cohabitation, have both received a fair bit of scholarly research attention, the same cannot be said for understanding the dynamics and the characteristics of gay and lesbian couples. Most marriage and cohabitation research does not explore or compare outcomes for same-sex couples, so Greg's point about a prima [facie] case about the benefits of heterosexual marriage actually has not been made for same-sex couples. We do not know whether, for instance, child well-being differs for heterosexual, biological parents versus same-sex parents. It has simply never been studied.

Possibly as a result of the lack of the research in this area, the same-sex marriage debate has somewhat different parameters than the marriage promotion debate. Both opponents and proponents of same-sex marriage frame the debate less in social science research findings and more within a moral and ethical context. Many arguments underlying opponents of same-sex marriage defend a traditional interpretation in marriage that has roots in traditional moral and religious convictions, often those related to the well-being of raising children, while proponents of same-sex marriage increasingly frame the debate within the construct of civil rights protections.

For any of you who know me, it would be hard for you to believe that I would engage in an act of shameless self-promotion--(laughter)--but the principal objective of the book that has just come out on Monday, The Gay and Lesbian Atlas, and I do want to acknowledge my coauthor, Jason Ost, who is over in the corner there, and the focus really of my comments today is to interject an empirical framework into this debate by describing some of the kind of basic characteristics of same-sex couples in the United States.

One of the key questions about same-sex marriage is to what degree it will alter and potentially change the composition of married couples in the United States. According to census figures, even if all same-sex couples who identified themselves either as already married or as unmarried partners were to legally marry tomorrow, they would comprise less than one in 100 married couples in the United States. Another, and probably more compelling, issue in this debate is the degree to which introducing same-sex couples into the marriage mix, as it were, might alter the characteristics of married couples and potentially alter the institution of marriage. ...

The same-sex unmarried partners are actually twice as likely as their heterosexual counterparts to be living in the same house together for at least five years, so it suggests a certain stability of their relationships that's much greater than heterosexual unmarried partners. Homeownership is another typical way that we look at stable relationships, and in fact homeownership--almost two-thirds of same-sex couples in the census own their home, compared to less than half of heterosexual cohabiting couples, so assigning the traits of heterosexual cohabiting couples to same-sex couples is simply inaccurate.

The second issue is children and to what degree are same-sex couples raising children, and I think this is one of the biggest surprises that came out of the analysis of the census data. One in four couples of the same-sex couples in the census are raising children under age 18, and they live in 96 percent of U.S. counties. So while, again, as an overall fraction of the number of families raising children, same-sex couples are a tiny fraction, it is hardly an unusual circumstance among certainly gay and lesbian couples and it's not exactly completely unusual in many areas across the country.

I'll close with one of the more interesting findings from the atlas, which is this extent to which gay and lesbian couples often reflect the demographic characteristics of the heterosexual couples around them. And the example I'll give is raising children. The states where same-sex couples are most likely raising children are in order the top 10--I won't name all 50--Mississippi, South Dakota, Alaska, South Carolina, Louisiana, Alabama, Texas, Kansas, and Utah--oh, and one more. And Arizona is number 10.

All of these states have somewhat more conservative views around marriage and family, and in fact 5 of those 10 are the states where households of all types are most likely raising children, and actually three of the top five are in the top five for that statistic. ...

KELLYANNE CONWAY, The Polling Company, Inc.: ...My background, as is Anna Greenberg's, is as a survey researcher, so I'm going to share with you some of the results of recent national polls. ...

I thought the most remarkable thing there, and you see it in the data as well, is how many Asian-Americans mobilized. They're usually a very private population, but they have some of the most intact marriages in our nation's population, and as we say at my firm, "Asians are the new Hispanics"; meaning about 10 or 15 years from now they're going to be at a level where Hispanics have been growing over the last 10 to 15 years. And if we start paying attention to them now, the way we should have been paying attention to Hispanics the last 10 or 15 years, we'll understand that they are--Asian-Americans are incredibly powerful--prospectively powerful ethnic demographic in this country.

Let me just close by saying when we tested different 12 messages the most compelling message where people said that they would be more likely to support the Federal Marriage Amendment and protections for traditional marriage came not with the economic arguments. The second most popular message was that the FMA would lead to the protection of children. And among the 12 messages tested, --the number one was that this has a bipartisan precedent, and the way we just turned it was by reading the fact that in 1996 the United States Senate passed legislation--Defense of Marriage Act. We explained what that was and we said it was signed into law by President Clinton. The irony is the fact that this has bipartisan precedent at some level was the most compelling message to many people in saying, well, this is precisely why we should carry on with the same type of protections and the same type of definitions of marriage, at least at the federal level. ...

ANNA GREENBERG, Greenberg Quinlan Rosner Research: Thank you. Thanks for having me. I'm actually going to sort of pull back a little bit and talk about marriage more broadly because in a lot of ways I think the same-sex marriage debate or the gay marriage debate--it's not that it's beside the point, but it is a symptom of larger sociodemographic changes in our society that have huge implications for policy, but also for politics. ...

But the thing that is clear to me is that this country is changing and it's changing in a particular direction. If you look at the 1950s, 80 percent of all people lived in married households. Now, just about half of people live in unmarried households. Half of all people are--46 percent of all women are unmarried. Almost half of everybody is unmarried. That is a dramatic shift and it's a shift where we really have not as a society sort of caught up to, whether it's policies in the workplaces around how you get healthcare benefits, whether it's--how we--you know, retirement and the kinds of jobs that women are in and the way that retirement affects women who never get married or women who are widowed young, childcare, you name it. There are whole sets of issues around the fact that we're moving from a married society to an unmarried society in ways that policies have not caught up to it.

And certainly our politics have not caught up to it. I mean, one of the things that's most interesting to me about the Bush tax cuts are--you know, honestly I think it mostly went to the wealthy, but the other thing about it that's interesting is that it mainly went to middle-income married people with kids. If you are a single person and you're sort of lower income--middle-lower income, and you don't have kids, you are very unlikely to have benefited from Bush's tax cuts. Almost all of the president's economic policies are really centered around people who are married. So if you think about all the places where we exist, whether it's in the workplace, whether it's home, whether it's in politics, policy, this is a country that's moving towards being unmarried, but we haven't really sort of caught up with it yet.

...If you look at the way people say they're going to vote this election year and you look at the differences between married and unmarried people, they are enormous and they reflect real political disagreements about how our country is run. If you--for example, let me just give you some--I have my own data here. I'll use some data. This is looking at some combined datasets I put together from some of our national surveys over the last four months. If you look at unmarried women, 62 percent of unmarried women say they're going to vote for Kerry; 35 percent say they're going to vote for Bush. Married women, 44 percent say they're going to vote for Kerry; 53 percent say they're going to vote for Bush. That's bigger than gender gap. That's a much bigger gap than a lot of the gaps that we talk about.

But that gap actually exists for men too: so unmarried men, 53 percent say they're going to vote for Kerry; 43 percent say they're going to vote for Bush. So plus 10 for Kerry with unmarried men. Forty-nine percent of married men say they're going to vote for Kerry; 57 percent say they're going to vote for Bush. So there's obviously sort of an intersection between gender and marriage because unmarried women are the most Democratic and married men are the least Democratic or most Republican.

These are really, really big differences and they reflect real differences in the way that these groups believe that they are dealt with by government. ...

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posted by Eve at 10:48 PM VOTE 0 comments

EVE IN NY POST...

reviewing Jonathan Rauch's Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America. Nothing unexpected for regular readers of this site, but still, figured I'd drop the link. Click here for a series of longer and very scattershot posts where I look at different aspects of Rauch's book. And I will, eventually, post on what I think his best point is, but not this week as work is crushing me like an enormous crushing thing.

posted by Eve at 12:08 AM VOTE 0 comments

BULGARIA/NETHERLANDS: Lucia Liljegren responds to Stanley Kurtz

...I also showed the non-marital birthrates in numerous European countries rose as quickly and even more quickly than those in the Netherlands. This indicates the rate of change in the Netherlands does not stand out from changes in Europe as a whole.

In a response, Dr. Stanley Kurtz fixated on my discussion of Bulgaria. Previously, he claimed Bulgaria doesn't count because Bulgarians have the lowest access to birth control in the Europe. I showed they have the highest rate of birth control use in the world. Kurtz now claims the fact Bulgarians use birth control at the highest rate in the world is irrelevant. Why? Because, poor teen Gypsy girls (those of the Roma minority) do not have access to contraception. Their behavior has caused a nationwide explosion in the Bulgarian nonmarital birth rate. In contrast, he says, the rise in the Netherlands is due to women choosing cohabitation over marriage (as a result of legalized same sex marriage.)

Can't you just hear Cher singing "Gypsies, Tramps and Thieves" in the background?

I do not wish to give the impression that my argument hinges on Bulgaria; it does not. Even without considering Bulgaria, there are plenty of European countries whose non-marital birth rate rose as rapidly, or much more rapidly, than in the Netherlands. The rise in all those countries can be explained by factors other than legalized same-sex marriage....

Nonetheless, regarding Bulgaria: Jaklina Tzvetkova Anguelova, a scholar cited by Kurtz, after examining the data and reviewing the literature, attributes the growing Bulgarian non-marital birthrate to "consensus marriage", i.e. cohabitation--not to gypsy girls. In a 2004 study, The South Eastern European Legal Initiative (SEELINE) also attributes the rise in non-marital births to rising Bulgarian cohabitation. How much cohabitation do we find in Bulgaria relative to the Netherlands? Batalova and Cohen reported that a larger number of adults cohabit in Bulgaria than in the Netherlands. Of adults surveyed in 1994, 18.1% of Bulgarians reported they had cohabited; in contrast, 15.1% of Dutch respondents reported they had cohabited. Yet, despite the greater prevalence of cohabitation in Bulgaria, Dr. Kurtz attributes the rising Dutch non marital birth rates to cohabitation, yet insists it has a negligible effect in Bulgaria! ...

In any case, members of the Roma minority account for 2.6% of the Bulgarian population. Can anyone really believe the nationwide explosion in the nonmarital birth rate is dominated by their behavior?

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posted by Eve at 12:03 AM VOTE 0 comments

OY, GEVALT--MORE LAME CONGRESS V. COURTS: Eugene Volokh

[That's my title, though, not his. --Eve]

Is Rep. Istook trying to overrule Marbury v. Madison?

Rep. Istook (R-Okla.), joined by 34 other Representatives, has proposed the following bill, HR 4892:
(a) IN GENERAL- Marriage in the United States shall consist only of the union of a man and a woman.
(b) JURISDICTION-
(1) U.S. SUPREME COURT- The Supreme Court of the United States shall have original jurisdiction to hear and determine a claim arising under this section.
(2) OTHER COURTS- Except as provided in paragraph (1), no Federal or State court shall have jurisdiction to hear or determine a claim arising under this section.

But how can the Supreme Court be given "original jurisdiction" to hear these cases? Article III, section 2 provides that the Court shall have original jurisdiction only in "Cases affecting Ambassadors, other public Ministers and Consults, and those in which a State shall be Party." The last category covers only (here I'm merging article III, section 2 and the Eleventh Amendment) "Controversies between two or more States," and where a State sues citizens of another State or citizens of a foreign country. It's hard to imagine how a "claim arising under" the Istook bill would practically fit into any of these jurisdictional headings.

So the bill must be an attempt to add to the Court's original jurisdiction--but that's a direct violation of Marbury v. Madison itself. Marbury's broad holding is that courts have the power and duty to refuse to enforce unconstitutional laws--but its narrower holding is that a statute purporting to give the U.S. Supreme Court original jurisdiction over suits not explicitly mentioned in the Constitution's Original Jurisdiction Clause is unconstitutional. ...

Of course, there's also the question of what the law is trying to do. If "claim arising" means "legal right or constraint arising," then the law won't have any effect on any normal federal or state litigation, since subsection (b) would take away what subsection (a) creates: Subsection (a) might be saying to courts "don't recognize same-sex marriages," but subsection (b) would be saying "but you don't have the jurisdiction to hear a claim arising under subsection (a)." So if such a law existed at the time of the Massachusetts Goodridge litigation, and Massachusetts officials said "Stop! Under subsection (a), we can't recognize same-sex marriage," the Massachusetts Supreme Judicial Court would presumably have just said "Well, but under subsection (b) we lack the jurisdiction to hear your subsection (a), so the Istook law will have no effect on our decision." ...

If this sounds confusing, I think that's just because the statute is so awfully drafted. Or am I missing something?

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posted by Eve at 11:57 PM VOTE 0 comments

MORE ON MARRIAGE AS DISCRIMINATION: Gabriel Rosenberg

In an earlier post I examined some of the reasons I find discrimination troubling. In the last post I responded to some common arguments that try to claim that the prohibition on SSM is not a case of sex discrimination. It is one thing to try to justify the discrimination, but those arguments merely ignored the discrimination and evaded the issue. Today, I will examine some arguments that deal with the issue and try to justify the discrimination. Such arguments will need to explain why the sex of the individual makes their situation so different as to justify the disparate treatment. Note it is not enough to say that gender differences are real. If that alone were enough, all gender discrimination as well as religious discrimination would be justified. Any substantive argument needs to address why these differences justify disparate treatment when it comes to marriage. ...

…a same-sex couple cannot provide both the mother and the father that a child needs. From a policy perspective I have often wondered why it is better for the children to be raised by unmarried parents of the same sex than by married parents of the same sex. Those are issues that I have dealt with elsewhere, and will continue to address elsewhere. For now, I want to focus merely on the discrimination aspects. I see this situation as having much in common with other circumstances in which parents marry. They cannot provide everything for their child, but they try their best to provide as much as they can. ...

On a deeper level, though, there is something that troubles me even more about this argument. Essentially it says that a man cannot be a mother and a woman cannot be a father. Well certainly by definition that is true, but as we have noted we must move beyond the definition in matters of discrimination. What is it exactly that we are saying a man can provide for a child that a woman cannot (or vice versa)? I have heard three answers to that question, although I am certainly receptive to more.

The first answer I have heard is a general one that a child relates to his or her father differently than to a mother. This highlights, however, an aspect of discrimination I find troubling. We relate to all individuals differently. A child relates to his or her parents as individuals and not as some representative of a larger group. We should be focusing on the individual things a person can provide for his or her child, and not resort to generalities about how men or women behave.

The second answer I have heard is slightly more specific and points out that only a parent of the same gender can know first hand what it is like to be that gender and can relate to the unique difficulties of maturing with a particular physical body. Of course children grow up with all sorts of experiences and difficulties. Sometimes one parent can relate to it directly, sometimes both, and sometimes neither. Even when parents don't know first hand what the experience is like, though, they can often relate in some other way. The situation of a parent not being able to relate directly to all of the experiences of a child is common to all parents, and I don't believe it is justified to use this one particular instance to justify denying the child’s parents the ability to marry one another.

The final answer I have heard is that only a parent of a certain gender can role model that gender. This highlights what I think I find most troubling about the discrimination. First of all, as in the last case, parents relate or don't relate to the child on so many levels that to focus on this difference strikes me as wrong. We don't prohibit a marriage because it lacks a parent who can model other roles. Only gender roles are so necessary so as to require this distinction. Furthermore, what use is it to model a role unless a person is going to model it well? I don't know what "male" qualities a father is supposed to be model, but I have been told they include duty, honor, and responsibility. Aren’t these virtues a woman can model as well?

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posted by Eve at 11:53 PM VOTE 0 comments

GAY MARRIAGE BAN WOULD AMOUNT TO SEX DISCRIMINATION: Susan Frelich Appleton

On Tuesday, other Missouri citizens and I will vote on a proposed constitutional amendment designed to ban same-sex marriage. In coming months, citizens in several other states will vote on similar proposals.

Despite all the communications I have received from various advocacy groups urging me to vote "no," I have not heard the argument that resonates most powerfully for me. These messages all emphasize how the proposed amendment discriminates against the gay and lesbian members of our community (a purpose and effect that I abhor). None has mentioned, however, that I should vote "no" because of the sex discrimination embodied in the following language: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman."

Think about it: Under the amendment, a person's ability to marry depends on that person's sex and the sex of the proposed spouse. So, for example, Jane is denied the opportunity to marry Jill--an opportunity that is available to Jack. In any other setting, a law that makes one's eligibility for a state-granted opportunity depend on whether the individual is a man or a woman is considered sex discrimination.

It's tempting to rationalize this discrimination by claiming that the proposed amendment treats men and women the same. Both are denied the opportunity to marry a person of the same sex. But the Supreme Court dismissed the "equal application" argument around 40 years ago when it invalidated prohibitions on interracial marriage. Although such prohibitions barred blacks and whites alike from marrying across racial lines, the court said the racial classification itself denied equal protection of the laws.

In addition, in condemning prohibitions on interracial marriage, the court said we must look at the context--a system of white supremacy. The history of marriage, and of family law more generally, also reflects systematic discrimination--discrimination subordinating women while also limiting the freedom of men. ...

For example, the state can no longer presume that only young men need education to prepare for the role of "provider" or that only husbands should control the marital property. Similarly, the state cannot presume that mothers always make the best custodians for young children or that only women should get parental leaves from employment. Principles of equality are replacing old stereotypes to provide fair treatment of women in economic matters, to recognize men as nurturing parents and to condemn family violence.

I believe that many share my positive view of these legal developments, which go far toward eliminating the discrimination and stereotypes previously captured by the terms "husband" and "wife."

The proposed constitutional amendment, however, sends a very different message. It would enshrine an explicit sex-based classification in our constitution. It signals that the law regards "wife" as a role open only to women and "husband" as a role open only to men. It breathes new life into old stereotypical generalizations. It threatens women's move toward equality, given the way sex-based classifications have historically been used to relegate women to a second-class status. It also threatens the gains that men have made toward full participation as caregiving parents.

I am not the first to make this argument. Several legal scholars (most notably Andrew Koppelman, Sylvia Law and Cass Sunstein) have elegantly developed this line of reasoning. ...

Besides, a focus on stopping sex discrimination and gender stereotypes eliminates distracting and silly predictions that polygamy and incestuous unions will come next. Polygamy and incest are not practices that follow from the equal treatment of women and men, but instead practices that often reflect the subordination and exploitation of women.

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posted by Eve at 11:47 PM VOTE 0 comments

NAME THAT MARRIAGE (cont'd): David Blankenhorn

I've been thinking about the problem of what adjective to put in front of marriage, if we assume that some adjective is preferable to "traditional" and also, alas, necessary in order to suggest the heterosexual nature of marriage as an institution. Well, my candidate is conjugal. I know, I know -- it's an obscure, academic-sounding word. But it has the advantage of being accurate. Conjugal basically means of or relating to the married couple and their offspring and family. In other words, it suggests not merely the close relationship between the spouses, but also the bridging of the sex divide and the procreativity that comes with it.

Will "conjugal" focus group well? No. But it's the best word I can come up with. (Thanks to Dan Cere for first suggesting it.) But I'd still rather stay away from adjectives, period.

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posted by Eve at 11:46 PM VOTE 0 comments

WHAT GAY MARRIAGE WON'T CHANGE: Tod Lindberg

[Not online yet, as far as I can tell. I cut a lot of what IMO was rambling unrelated language-stuff. --Eve]

IT IS POSSIBLE that at the end of the day, gay marriage will be an enduring reality, at least in some places. This troubles many people, even as others hold it up as an important element in the recognition of equal human dignity. But how much, really, will be changed by gay marriage? With all due respect, I think both proponents and opponents overstate the likely effects. Gay marriage will neither be especially dangerous to marriage as such, as opponents fear, nor will it usher in equal recognition for gay and lesbian couples, as proponents hope.

Some opponents of gay marriage take their position on the basis that homosexuality as such is morally wrong. This position provides an intellectually consistent grounding for opposition to gay marriage, but it is nowadays rarely the basis of arguments made in the public square. Instead, opponents of gay marriage generally argue that the expansion of the use of the term "marriage" to gay couples as well as the extension to them of the legal and customary rights of married couples will diminish the sanctity of marriage and weaken an institution that is of vital importance to the rearing of succeeding generations. ...

That there is some sort of downward spiral--that marriage, in general, isn't what it used to be--critics of gay marriage have amply shown. But, in fairness, one must balance that loss against what we got in exchange for our family troubles: namely, greater individual freedom. It seems likely, for example, that women's increasing workforce participation had something to do with the current state of the family, to pick one element of this directional change that seems settled in favor of the greater freedom granted now. And we await a discussion that disentangles gay marriage from other factors contributing to the downward social spiral of the family. That's partly because it's a difficult thing to show. But the difficulty itself ought to serve as a warning flag that we may have trouble with some basic concepts here.

CRITICS OF GAY MARRIAGE regard marriage between a man and a woman as something higher than could ever be represented by a union of two men or two women. For purposes of argument, let us accept the view of the critics. But if man-woman marriage is truly higher, how is it threatened by something lower? If what's lower can cut marriage down to the size of the low, then what is the basis of the claim that marriage of the man-woman sort is higher in the first place? After all, the fact that some marriages are not good marriages across the full panoply of modern dysfunctionality does not mean that no marriages are good marriages (and therefore, presumably, of a higher sort). The higher sort are not undone by the existence of a lower sort.

But one should call things by their proper name, no? Well, yes, but if we cease calling something by its proper name--or rather, start calling something by an improper name--do we change the thing? ... Gay marriage will remain "gay marriage" even if the term "gay" drops out. Nor will marriage as such need to be classified as "straight" or "heterosexual" when a man and a woman are involved. When people are introduced to a gay married couple, their sense of the social structure underlying the marriage will be quite different from their sense of the social structure uniting a married man and woman. This is not a matter of anti-gay animus but of the reality of social construction. ...

As with "mommy and daddy," so with "husband and wife." We may have gay marriage. But neither two married men nor two married women will ever be "husband and wife"--whereas a married man and woman will always be husband and wife. The language is not arbitrary. It is an indicator, once again, of a rather robust social reality. The extension of the term "marriage" to include same-sex unions may produce a certain formal equality. But that does not mean that marriage is the same whether between a man and a woman or between two men or two women. The extension of the legal status does not erase and in fact reveals an underlying difference, one that is going to continue to be marked by the language we speak and the way we live.

posted by Eve at 11:08 PM VOTE 0 comments

INTERVIEW WITH EVAN WOLFSON ON HIS NEW BOOK, MARRIAGE MATTERS...

here

posted by Eve at 11:07 PM VOTE 0 comments

EXPERTS QUESTION EUROPEAN STUDIES USED IN FMA DEBATE: From the Washington Blade

To buttress their arguments against gay marriage, Federal Marriage Amendment proponents during the recent Senate debate cited studies from European countries showing a decline in marriages and high out-of-wedlock birth rates after those countries recognized gay unions.

But some experts say the studies referenced during the Senate debate are deeply flawed and are not accurate depictions of what may be contributing to the decline in marriage abroad.

In a recent letter, five Dutch scholars asserted that until the late 1980s, the number of marriages in the Netherlands was high, illegitimate births were down and divorce rates were low, compared to other Western countries. But social experiments in the 1990s have adversely affected marriage, they claim.

While they claim there is "no definitive scientific evidence" that the legalization of gay marriage is solely responsible for the decline in marriage in the Netherlands, the scholars note that a "successful campaign to persuade Dutch citizens that marriage is not connected to parenthood and that marriage and cohabitation are equally valid 'lifestyle choices' has not had serious social consequences." ...

M. V. Lee Badgett, research director of the Institute for Gay & Lesbian Strategic Studies, criticized the scholars' letter, saying it appears to have been written by "legal scholars and philosophers, not demographers, sociologists, economists, or any other kind of social scientist who's made a systematic, credible study of these questions." ...

Van Mourik said that a "national debate about the question of how we can restore marriage to its original special, protected status" is imperative adding that the Netherlands should have simply allowed gays to register as domestic partners instead of marrying.

Some, like Ettelbrick, contend that these "marriage-lite" alternatives--open to heterosexual couples as well--might be doing more to undermine traditional marriage than granting gay couples full marital rights.

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posted by Eve at 11:01 PM VOTE 0 comments

PENNA. COURT RULES SPERM DONOR MUST PAY CHILD SUPPORT: From the Associated Press

In a case that bioethicists say could have wide implications, the state Superior Court invalidated a verbal agreement between a woman and her sperm donor and ordered him to pay child support for twin boys born nearly 10 years ago.

A three-judge panel said the deal between Joel L. McKiernan and Ivonne V. Ferguson that he would not be obligated for any child support was "on its face" a valid contract, but it was unenforceable due to "legal, equitable and moral principles." Previous state appellate rulings had determined that parents may not bargain away a child's right to support.

"We agree with the trial court, 'although we find (Ferguson's) actions despicable and give (McKiernan) a sympathetic hue, it is the interest of the children we hold most dear,'" wrote Senior Judge Patrick R. Tamalia in a ruling issued Thursday.

The decision should give pause to sperm and egg donors who expect anonymity, said Arthur Caplan, a professor and medical ethicist at the University of Pennsylvania.

"Anybody who is a sperm donor ought to understand that their identity could be made known to any child that's produced and they could be seen by the courts as the best place to go to make sure the child has adequate financial support," Caplan said Friday.

Ferguson and McKiernan met while working together at Pennsylvania Blue Shield in Harrisburg and had a two-year affair that had "waned" by late 1993, when Ferguson convinced him to act as a sperm donor with no responsibility for any child born as a result, according to the trial judge's written opinion.
Ferguson, who separated from her husband in 1992, maintains that McKiernan was a willing partner in the in-vitro fertilization.

"We have challenged all along that there was ever any agreement. There was no evidence except his word and her word and it was a matter of credibility," said Ferguson's lawyer, Elizabeth Hoffman.

The twins were born prematurely in August 1994. Ferguson filed for support nearly five years later.

McKiernan has been paying up to $1,520 a month in support since losing the Dauphin County case. Since the twins were born, he has married, had two children and moved to the Pittsburgh area. ...

An estimated 150,000 to 200,000 artificial inseminations are performed each year in the United States, said Dr. Cappy Rothman, co-director of the California Cryobank.

At least 19 states, but not Pennsylvania, have adopted a version of the Uniform Parentage Act, ensuring that sperm donors cannot be forced to take on the responsibilities of active fatherhood.

In Washington, one of the 19 states to adopt the law, an appeals court upheld the law earlier this year, ruling that donors do not have child-support obligations unless there is a signed contract to that effect. On the other hand, a Swedish court ruled in 2002 that a man who donated sperm to a lesbian couple who later split up was obliged to support their three children.

It's unclear what effect the Superior Court decision could have on sperm banks. Christine Jordan, laboratory supervisor for Pittsburgh Cryobank Inc., said government regulations require them to maintain identifying records indefinitely.

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decision is here (PDF)

posted by Eve at 10:53 PM VOTE 0 comments

GAY MARRIAGE KEPT OUT OF NATIONAL SPOTLIGHT: From the Detroit Free Press

Since May, gay and lesbian residents of Massachusetts have been able to marry their partners.

But the issue of gay marriage was barely whispered from the podium during the Democratic National Convention this week. Party strategists and gay and lesbian delegates say the controversial fight for equal marriage rights must take a back seat -- for now -- to the more immediate goal of defeating Republican President George W. Bush. Sen. John Kerry supports civil unions but opposes gay marriage at the federal level and in his home state of Massachusetts, a position that has angered some Democratic activists.

The convention included 4,300 delegates, nearly 250 of whom were gay. But the openly gay speakers who addressed the convention, from Rep. Tammy Baldwin of Wisconsin to congressional candidate Jim Stork of Florida, steered clear of the gay marriage issue.

"I call it the Stepford convention," said Robin Tyler of DontAmend.com, an organization opposed to efforts to ban gay marriage with a constitutional amendment. "Everybody is going by the script because they are so afraid that Bush will get in. But behind the scenes, it's like, don't worry, wink, wink; we'll take care of you."

Democrats, however, are hardly united in supporting marriage for gays and lesbians. A recent CBS-New York Times poll of 955 adults showed that only 40 percent of Democrats said gay couples should be allowed to marry legally. The poll was conducted July 11-15 and has a margin of error of plus or minus 3 percentage points.

In many ways, there were two conventions going on this week.

San Francisco Mayor Gavin Newsom, who in February handed marriage licenses to gay couples shortly after taking office, was a California delegate. Though he's a rising star in the Democratic Party, he wasn't invited to address the convention because he's so closely identified with an issue that party centrists -- who want to bring moderate, culturally conservative swing voters into the Democratic tent -- want to avoid.

But at night, at parties in clubs and restaurants across Boston, the tall and striking 36-year-old mayor was often the star of the show and lauded for his stance.

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posted by Eve at 10:47 PM VOTE 0 comments