Archive for the ‘Marriage Equality’ Category

Another Chapter in the History of Marriage: Slaves Couldn’t Marry

June 2nd, 2011 1 comment

Here’s the story of why this basic right was denied slaves, despite what religion would otherwise have indicated:

If further evidence is needed that marriage serves whatever the dominant political and social powers decree, consider this:

Slaves had no right to marry.

At first glance, this rule might seem counterproductive. Wouldn’t letting a slave couple marry be likely to lead to healthier kids, greater mutual commitment by the parents, and happier, more productive people in general?

Yes, and many slave couples did engage in informal wedding ceremonies that were often tolerated or even encouraged by the owners.

But formal marriages were not recognized, and the battle over abolition reached a zenith over the issue. And although analogies are always risky – same-sex couples are hardly seen as less-than-human (well, mostly) – there are some interesting parallels that grabbed my attention.

I’ll probably explore this further in a later column, but consider this: One of the most effective rhetorical arguments that abolitionists deployed against slavery was its assault on the family.  As Harvard history professor Nancy Cott writes in her excellent account of the history of marriage, Public Vows, abolitionists regarded the denial of marriage rights to slaves as “a human tragedy, and a crying affront to American pretensions to value the purity of family life.”

The argument had bite in part because of the squeeze it put on those who used religious arguments both to justify slavery and to demand marriage (at a time where many of modest means married only informally).  If marriage and family were so important, then how could these be denied to slaves?

The honest answer, of course, is that slave marriages had to denied because to have recognized slave families would have been more than inconvenient – it would have been much harder to sell away one half of a legally recognized couple.

But that’s not the answer that was usually given. Instead, there were ritual fulminations about the unsuitability of slaves for marriage, about God’s purpose in maintaining the institution of slavery as it existed, and so on.

The full post (this week’s 365gay column) is here.

Categories: marriage, Marriage Equality, slavery Tags:

Should We Boycott Straight Weddings?

May 26th, 2011 No comments

This issue has lately gotten a great deal of press. My take on it is here. It might surprise you. Hint: It’s important to separate the symbolic, commitment part of marriage from the legal incidents of it.

What Do Two Issues Have in Common?

May 19th, 2011 No comments

Not much, although you’d never know it by the way the right tries to conflate abortion and gay rights. We shouldn’t let them get away with it, as I explain here.

Adopt those Kids! But Stay “Legal Strangers” to Each Other!

April 14th, 2011 No comments

In this week’s 365gay column, I plumb a great mystery: Why do most states allow same-sex couples to adopt kids, but not to marry each other? Do we “forget” to keep caring about the best interest of the child?

That Other Marriage Debate

March 31st, 2011 No comments

Marriage equality is often at the top of the LGBT rights check-list.

But what about the inequality inherent in the super-privileged status we accord marriage in the first place? This week’s 365gay column explores that very question.

The Hidden Costs of Inequality

March 17th, 2011 No comments

In today’s column over at, I look at what inequality does to those who are in power.

If nothing else, take a look at the short but powerful video from a couple that really can’t afford to wait until the state gets around to letting them marry. One has Altzheimer’s disease.

Swimming to Maryland

February 10th, 2011 No comments

…narratively speaking, that’s what today’s 365gay column does. I connect a flap over a Letter to the Editor of SWIMMER Magazine to the push for religious exemptions to the marriage equality bill being considered in Maryland.

How? Read the thing.

What is He Thinking?

January 20th, 2011 No comments

In this week’s 365gay column, I try to figure out the real basis of Obama’s opposition to marriage equality. He says he’s “evolving” on the issue. But what does that mean?

Categories: 365gay column, Marriage Equality, Obama Tags:

Maggie Responds! And I Can’t Leave it Alone

December 9th, 2010 2 comments

As readers of this site might not know, Maggie Gallagher directly responded to my post from last week’s 365gay.column. In a (mostly) respectful tone, she clarified — seemingly for the first time — her views on civil unions. In principle, she favors them but worries they’ll lead to full marriage equality. And opposing that outcome is her professional raison d’etre.

In this week’s column, I use her post as a springboard to discuss the oral argument in the Prop 8 case, and to agree with Maggie — civil unions do and will lead to full marriage equality. But we differ, of course, on whether that is a good or bad thing.

Some Thoughts on Today’s Oral Argument in the Prop 8 Appeal

December 6th, 2010 3 comments

Earlier today, I live-blogged the argument to a Ninth Circuit panel in Perry v. Schwarzenegger.

Now, with dinner and a ridiculously difficult swim behind me, and the kids in bed, here are some observations about what I heard (and saw in the judges’ faces) during the argument:

(1) The court seemed much more interested in the unique facts of California’s marriage equality/Prop 8 situation than in reaching a broad decision about whether the U.S. Constitution confers a right on same-sex couples to marry. Judges Hawkins and Reinhardt, especially, kept encouraging Ted Olson to take a big — but incomplete — victory, declaring Prop 8 to be unconstitutional, but avoiding the deeper question of whether the state can ever deprive its gay and lesbian citizens of the right to marry.

Here’s the path to doing so: In the 1996 Supreme Court case, Romer v. Evans, the Court struck down an amendment to the state’s constitution that effectively walled gays and lesbians off from any legal redress for discrimination. As Justice Ginsburg pointedly noted during argument, under the state’s argument, any LGBT state resident could be denied the right to borrow a book from the public library just because of sexual orientation, and would have no redress. This, the Court said, no state may do. It’s hard to find an action that strikes more directly at the heart of the equality principle, and Romer famously began with a quote from Justice Harlan’s eloquent dissent in Plessy v. Ferguson: “The Constitution neither knows nor tolerates classes among citizens.”

Reinhardt and Hawkins made ample use of Romer, strongly suggesting that Prop 8, by taking away a right that the state’s supreme court had already deemed fundamental (earlier that same year, 2008), created for LGBT citizens a second-class standing, by the name “domestic partnership.” And given that the domestic partnership confers all the rights of marriage but withholds the name, it’s hard to avoid the conclusion that the enactment is motivated by anything other than animus towards gay and lesbian couples.

There’s something paradoxical about this, of course (as I’ve noted in a law review article, The Short, Puzzling(?) Life of the Civil Union) — a state, such as California, that’s gone all the way up to marriage for gays and lesbians while withholding the word is, under this approach, more vulnerable to challenge than a state like, say, Florida, that has no state-wide protection for gays and lesbians. Indeed, Charles Cooper (attorney for the Prop 8 proponents) called this kind of analysis “perverse.” But it might carry the day, if the court finds that at least one of the Prop 8 defenders before it has standing. (See (3), below.)

(2) None of the substantive arguments in favor of Prop 8 appeared to have much traction with the court, except with Judge Smith. I’m not oversimplifying to say that the argument was really about procreation — particularly, accidental procreation — and little else. That’s all they had once the court wouldn’t stand for the argument that “the people” should get to decide to continue restricting marriage to opposite-sex couples because — well, because marriage has so far been restricted to opposite-sex couples.

(3) I wouldn’t be completely surprised if the court finds that the Prop 8 proponents have no standing; that’s not what I’m expecting, but it could happen. The questions on standing were pointed, withering, and perhaps decisive. I’ll leave further analysis of this point to those few experts in procedural constitutional law who have thoroughly digested the case law on this issue. (Some good ones are linked here.)1

(4) There’s much, much more to come. The court even suggested that the case might for a time be diverted to the California Supreme Court to resolve an issue central to standing. Whether or not that happens, there will still be an appeal by the losing side to the full Ninth Circuit (called an en banc hearing), a likely appeal to, and decision by, the U.S. Supreme Court, and then even a remand (possibly) to the trial court — but not to Judge Walker, who is about to retire.


All things considered, I think the court would be wise to limit its ruling to the unique facts and circumstances of Prop 8 (and here I’m assuming that the case will survive the appeal). Here’s why:

Justice Kennedy, who holds the balance of power, would be much likelier to agree with a more cabined holding. And setting the case in the context of Romer would appeal to him; after all, he wrote it.

If the Supreme Court does throw out Prop 8 — without deciding the broader question of marriage equality, once and for all (or as “once and for all” as the Court gets) — then the gigantic, bellwether state of California will soon be issuing millions of marriage licenses to gay and lesbian couples (as well as eliminating needless complications that have tied courts up when dealing with transgendered folks) and it will become clearer, faster that the Earth didn’t spin off its axis. More states would then follow, more quickly, and before long the issue will become so clear — if not plain dumb, a waste of time and energy for all but the few most zealous oppositionists — that the Supreme Court would face little to no backlash in calling all committed, loving couples into the constitutional embrace of full marriage equality.

  1. Note: This link wasn’t working; now, it should be. Sorry for the glitch.