Posts Tagged ‘300’

Vermont Follows Iowa! (But in a Very Different Way)

April 7th, 2009 2 comments

I returned from class to learn that the Vermont legislature has just overridden Governor Douglas’s veto of marriage equality legislation. 100 votes in the House were needed for the override; exactly 100 were obtained. (The Senate’s override was by an overwhelming majority.) Now, we have the first state in which marriage for gay couples has been achieved by a legislature acting without being required or pressured to do so by a court. In this post, I offer some background and a few thoughts about what this might mean.

First I have to say that I was stunned. With all attention, including my own, focused on Iowa, I didn’t realize that the governor’s veto had already taken place (the Vermont house voted on the bill just last Friday, the same day as the decision in Iowa), much less that the override votes were taking place. Nor did I realize that there was a good chance of overriding the veto: When the bill passed, it did so with only 95 votes. Somehow supporters found the five additional votes they needed.

So Vermont now becomes the fifth state to recognize marriage equality.1  But it was the first to move very substantially in that direction. In 1999, the Vermont Supreme Court decided Baker v. State, the first sort-of-successful marriage equality case. The five justices were unanimous that same-sex couples were entitled to the benefits of marriage, but stopped just short of requiring the legislature to grant them the right to marry.2 Instead, they held, the law-makers might choose to provide access to some parallel institution conferring all or substantially all of the benefits of marriage — but not the label. Thus was the civil union born.

In an earlier post, I wrote tongue-in-cheekily about the significance attached to this label, wondering whether same-sex couples might be entitled to “mariage” — with one “r” — since the word “marriage” seemed to be the problem. But from a purely political perspective, the court’s decision turned out to be brilliant: The civil union didn’t generate the kind of oppositional heat that “marriage” would have, gave straight Vermont citizens some time to settle into the truth that same-sex couples’ unions didn’t threaten theirs, and eventually led to a commission report finding that civil unions weren’t leading to the full equality that the Vermont court had hoped for.  Ten years later, marriage equality is achieved.

The significance of equality through legislative means can’t be emphasized enough. One of the most effective (though wrong) criticisms of the push for marriage equality is that it’s been achieved through the courts: “activist judges,” “fascists in robes,” and “philosopher kings” have pushed this on the public, according to the opposition. What will they say now?

Some of the most extreme complain that the legislature isn’t democratic either, conveniently overlooking the whole notion of representative democracy. Traction, this will  have none. It’s particularly unconvincing in a small state like Vermont, where the state legislators have a great deal of contact with their constituents. Here is the link to this morning’s House vote in Vermont and the few comment that preceded it. Note the respect that both sides urge; one opponent says that, even if he loses, he will, as a Justice of the Peace, respect the law and perform same-sex marriages. Here are legislators who are very respectful and close to the voters.

The California legislature twice tried to enact marriage equality, only to have the governor veto both bills. So Vermont becomes the first state to grant basic equality to gay and lesbian couples; again, without judicial compulsion of any kind. What might it mean? I’m hesitant to say too much so soon, but let me try this: The Vermont move could well energize other somewhat progressive state legislatures to follow suit: the other New England states (especially New Hampshire and Maine); New Jersey; and New York are the likeliest. Once that happens, I think the push for marriage equality in California becomes even stronger; Prop 8 could be repealed as soon as next year, even if, as expected, the California Supreme Court allows it to stand.

And apres California, le deluge.

  1. I’m including California among the five, because equality was recognized for a time. It’s currently on hold pending the Supreme Court’s decision on Prop 8.
  2. One justice wrote that the couples were entitled to full marriage equality.

Actual Couples! (Your Empathy May Vary)

April 5th, 2009 2 comments

I’ve had the mixed pleasure and pain of reading many marriage equality cases over the past several years. From a host of early cases dating back to the 1970s to the more recent judicial explosion of the past decade or so, it’s quite possible that I’ve read and analyzed every available legal argument for and against allowing same-sex couples the right to marry that opposite-sex couples — be they deadbeats, felons, the chronically divorced, or the anti-iconic Britney Spears  — take for granted.

I and every other halfway-bright legal scholar can soak up these arguments, assess them, and opine exhaustively on their soundness. Particularly after reading Varnum v. Brien (the recent decision by the Iowa Supreme Court), I’m more convinced than ever that there really aren’t any sound arguments against basic equality in this context.

But this post isn’t about the law, but about facts.

If  you want to know, from the jump, how a given case is going to come out, don’t bother  getting a law degree. Instead, perform this simple exercise: Read what the court has to say about the lives of the plaintiff couples before it. Courts that decide in favor of marriage equality offer a detailed and sympathetic portrait of these couples. Courts that decide the case the other way simply omit any such description. And courts that go the civil  union route are, perhaps not suprisingly, divided on how much detail they  provide.1 Iowa follows the trend begun by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, opening the discussion with detail that invites the reader into the committed lives and loves of the couples. The sheer length of the following quote from Goodridge will give you a sense of my point:

“Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; the plaintiffs Maureen Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had been in a committed  relationship for twenty years and lived with their twelve year old daughter; the plaintiffs Hillary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five year old daughter; the plaintiffs Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years old, had been in a committed relationship for thirteen years and lived with their eight year old daughter and Richard’s mother; the plaintiffs Heidi Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been in a committed relationship for eleven years and lived with their two sons, ages five years and one year; the plaintiffs Michael Horgan, forty-one years old, and Edward Balmelli, forty-one years old, had been in a committed relationship for seven years; and the plaintiffs David Wilson, fifty-seven years old, and Robert Compton, fifty-one years old, had been in a committed relationship for four years and had cared for David’s mother in their home after a serious illness until she died.

“The plaintiffs include business executives, lawyers, an investment banker, educators, therapists, and a computer engineer. Many are active in church, community, and school groups.”

Cases rejecting the claims, though, tend to avoid these portraits, which are at once sympathetic and, well, a little boring. If these couples’ lives are quotidian, they become less scary. But scary is good if you’re trying to hold back the tide of equality. Better not to know anything about committed same-gender couples; denying rights to abstractions is much easier.

History has taught many disturbing lessons about what can happen to people whose humanity is stripped away. But it’s not going to work this time.

  1. I’ve gone into much greater detail on this point in a law review article.
Categories: courts, Gay Rights, Marriage Equality Tags: , , , , , , , , ,

Iowa Marriage Decision: Further Thoughts and Some Perspective

April 4th, 2009 No comments

With the ramparts crumbling all around them, marriage equality opponents seem to be left with two talking points, which are really cris de coeur, the last howlings of a doomed defense. First, they fall back on their definition of marriage. Thus, the Iowa Supreme Court, in recognizing the marriages of same-sex couples, has spoken an “untruth.” Second,  they tirelessly remind us that, where people get to vote on others’ right to marry, they consistently vote against it (otherwise put, “courts are undemocratic”). The first is an assertion in search of an argument, while the second overlooks what is probably the central function of courts: the protection of minority rights against the vicissitudes of majority will, whim, or prejudice.

When this is the best you can do, you’ve lost the argument.

Of course, the Iowa court’s unanimous decision, portentous as it is, can’t be expected to bring a quick end to the debate. In fact, in the short run it may yet impel a few more states to strengthen their marriage bans by driving them into constitutional concrete. (For reasons cogently developed here, it’s somewhat unlikely that Iowa’s own constitution will be amended in this way. It certainly won’t happen soon.) Nonetheless, the opposition to marriage equality is starting to seem like a last stand. (Remember the Alamo?) Perhaps this commentator is right in thinking that a “tipping point” may just have been reached:

Moving from politics back to law: The Iowa court shoved the debate towards conclusion with its brisk and effective dismissal of the state’s arguments. I was especially struck by how the court, echoing the California Supreme Court’s decision from last year, gave no credence at all to the vague speculation that marriage equality will somehow harm the institution “in the long run.” And by now courts have seen just about enough of the  “virtual equality” promised by the civil union — Iowa would have no truck with it, and all three of the states that currently have it  (Vermont, New Jersey and New Hampshire) are likely to take the marriage equality plunge very soon.

The court’s willingness to address the religious argument directly will prove important, too. I read the point to be this: “We  respect religious opposition to same-sex marriages, but you need a properly public, secular reason to exclude people from a privileged institution.” That is a thoughtful and respectful response to citizens who sincerely oppose marriage equality for religious reasons, or because of a more general unease. Both of these sentiments were poignantly reflected in the comments of one Iowan:

“Diane Thacker’s eyes filled with tears when the ruling was read to a crowd that had gathered outside the Iowa Judicial Building.

‘Sadness,’ she whispered. ‘But I’m prayerful and hope that God’s word will stand.’ Thacker said she joined a group of gay-marriage opponents ‘because I believe in the marriage vow. I can’t see it any other way.'”

With respect to Ms. Thacker and so many like her, do we really want to deny basic equality on this kind of basis?1 Here’s a quote I’ve always liked, from a California tort case:

“No good reason compels our captivity to an indefensible orthodoxy.”

Finally, I find myself asking yet again: How much energy can opponents justify expending on this issue? In Afghanistan, a law is passed that sets back women’s rights (and arguably permits marital rape); in Iraq,2 gay men and condemned are killed for their “perversion.” I could go on and on.

Yet stopping the marriages of gays and lesbians is worth all of this time and effort? Go build a house, or something. You’re not going to stop marriage equality in any case.

  1. This, by the way, is a “rhetorical  question.”
  2. Nb., the nation we liberated from a dictator.

Analysis of Iowa Marriage Equality Decision

April 3rd, 2009 2 comments

I’ve now finished reading the just-issued decision in Varnum v. Brien, in which the Iowa Supreme Court unanimously declared that the exclusion of same-sex couples from marriage violates the state’s constitutional guarantee of equal protection under the law. My goal here is provide a brief legal analysis that will be of use to lawyers and non-lawyers alike. (You can find a crisp analysis designed for law professors here.) Subsequent posts will aim for political and social context.

First, let me give away the outcome: The court declared that only full marriage rights — not some “virtual” equivalent like the civil union — could satisfy the state’s commitment to real equality. It appears that the decision will go into effect after twenty-one days, because that’s when the time to seek a rehearing (good luck with that!) runs out. So, marriage equality is a virtual certainty in Iowa, and very soon. Now to the case:

The court began with a recognition of what was at stake. After first describing the rich texture of the plaintiffs’ lives — nurses, social workers, business managers, church organists, some with kids (including foster children) — the court recognized that the deprivation of their rights was substantial, but that something greater was also implicated:

“Yet, perhaps the ultimated disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves the personal and public affirmation that accompanies marriage.” Bingo!

Next,  the court undertook a sober and deliberate analysis of its role within the constitutional framework: as the protector  of minority rights. Citing language from the U.S. Supreme Court’s decision in Lawrence v. Texas (the case upholding the right of gays and lesbians to private sexual intimacy), the Iowa Supreme Court  states that the founders of both the state and federal constitutions knew that “times can blind us to certain truths” that later become evident. The court was here referring to deep truths about equality and dignity that were its responsibility to defend, even where contrary laws “may be supported by strong and deep-seated traditional beliefs and popular opinion.”

Simply stated, then, the question the court put to itself on behalf of the same-sex couples who were excluded from marriage was this: “How can a state premised on the constitutional principle of equality justify exclusion of a class of Iowans from civil marriage?”

Not every classification is unconstitutional, though. Governments make distinctions all of the time, and most of these are accepted without much dissent. Bakeries may be allowed to stay open later than bars in residential neighborhoods. Those over a certain age may be asked to take road tests every year because of population-based evidence of the greater risk this class of drivers presents. But where the classification affects certain classes of people, it will be more closely scrutinized.

The Iowa court, following recent marriage equality decisions by the California and Connecticut Supreme Courts, found that sexual orientation was the kind of classification — a so-called “suspect class” — that triggers a higher level of scrutiny than courts typically train on classifications.1

What determines whether a group is a “suspect” class, thereby requiring the state to put up a greater defense of its law? The U.S. Supreme Court has identified four factors that are used in making this determination, and the court addressed all  four.

(1) Is there a history of discrimination against the class? To ask this question in the case of gays and lesbians is practically to answer it: Yes.

(2) Is the characteristic related to the individual’s ability to contribute to society? Drawing on Iowa’s increasing recognition of the full  citizenship of gays and lesbians (protection against discrimination and violence, sex education that respects all sexual orientations)  and the decisions by other courts on marriage equality (even the losing ones), the court also found this too plain to dispute: No, it’s not relevant.

(3)  Is the characteristic immutable? The court said something like this: Probably, but it really doesn’t matter because “sexual orientation is [so] central to personal identity” that it would be destructive to ask that it be changed.

(4) Is the group  politically powerless? This has been the sticking point for most of the courts that have declined to recognize sexual orientation, because certainly the LGBT community has had heady success recently. But the court said that there had been no legislative success on marriage equality (still true, although quite likely to change very soon) and that if current political powerlessness were required, then neither women nor even African-Americans would qualify today.

Ergo, the court would use heightened scrutiny to assess the legislature’s arguments for excluding same-sex couples form marriage.2 And once that level was reached, the court’s decision followed almost  inexorably. I want to very quickly discuss the state’s rejected justifications before moving to one final point.

One interest was in maintaining traditional marriage. But this argument was circular, said the court. We know you’re trying to do this, but doing it by excluding same-sex couples has to be justified independently. And there’s “no legitimate  notion that a more inclusive definition of marriage will transform civil marriage into something less than it presently is for heterosexuals.” This last statement, dropped casually into a footnote, sweeps away the oft-stated canard that marriage equality will “in a generation or two”cause the demise, or at least weakening, of marriage.

Then there were the arguments about marriage as the optimal environment for the raising of children and for the promotion of procreation. Under a heightened scrutiny analysis, these justifications didn’t get far. Social science research is directly contrary to the first, and as to the second: Does excluding gays and lesbians from marriage lead to more procreation? Only if, denied marriage, gays and lesbians will more likely procreate “the natural way.” But this doesn’t seem likely, and anyway wasn’t seriously advanced by the state as a possibility. (Do we really want gays and lesbians having children with members of the opposite sex, by the way? Think about it.)

The court then briskly disposed of the state’s remaining assertions. Excluding same-sex couples doesn’t “promote stability in opposite-sex relationship.” And even if it does “conserve scarce resources,” that could also be achieved by excluding any group from the benefits of marriage — including red-headed couples. (Is red-headedness immutable in the era of good coloring alternatives?)

I know this is an exceedingly long post, but this is an unusual case. Indulge me for one more minute: The court then discussed the religious objection to same-sex marriage, recognizing that it is often the true, if unstated, source of opposition. The justices noted, correctly I think, that the justifications anchored in the importance of the male-female dyad are really secular recastings of religious belief: religion made over into (one version of) natural law. Here’s the quote I loved on the religious issue:

“In the final analysis, we give  respect to the  views of all  Iowans on the issue of same-sex marriage — religious or otherwise — by giving respect to our constitutional principles.”

Well, amen.

  1. The state argued that the law prohibiting same-sex marriages wasn’t even sexual orientation discrimination because gays and lesbians could  marry — someone of the opposite sex. The court gave this  “argument” the respect it deserved: very little.
  2. Lawyers will be interested to know that the court applied intermediate level scrutiny, not strict scrutiny; like the Connecticut Supreme Court in Kerrigan, the Varnum court didn’t feel the need to choose once and for all between these levels given that the challenged marriage classification ran afoul of even intermediate scrutiny.

The Immigration Follies

April 2nd, 2009 No comments

Yesterday, I wrote with righteous fury about the effects of marriage inequality on the mother of twelve-year-old twins. Her deportation to the Philippines, scheduled for tomorrow, will mean that these kids will lose her (and she, them). Again, were her same-sex partner permitted to “sponsor” her as may U.S. citizens married to foreigners, this sad story would not be unfolding.

But there’s another story here, and one that reminds me that focusing too narrowly on marriage equality risks missing other injustices. Consider this: In cases where kids have two parents, why should immigration policy focus on marriage in the first place? Why not focus on the parent-child relationship, and permit both parents to remain in the country (where at least one has the legal right to do so) — regardless of their marital status?

Opening up this question invites consideration of a broader point. We’ve made marriage “promotion” a national priority in a way that often leads to policies that don’t deal with other realities. Beyond this case, consider cases where battles over the right to marry overlook the underlying problem. As one example, the Family and Medical Leave Act sets strict definitional limits on the class of people who can take leave to provide care for sick relatives. Unmarried cohabitants are among those excluded from coverage. But also excluded are adult siblings who might be able and inclined to provide such care, which otherwise might have to be supplied by strangers (perhaps at government expense). Marriage equality won’t help opposite-sex cohabitants, nor will it do anything for the sibling pair.

This isn’t to say, of course, that laws can’t or shouldn’t place limits on who is eligible for various benefits. Philosophically, I favor laws that value the reality of relationships over their legal form (spouse, sibling, etc.), but there are reasonable arguments (based on ease of administration) in favor of status limitations in some situations. Nonetheless, the marriage promotion craze — which may one day be regarded as the government-inspired equivalent of pet rocks or hula hoops — tends to exalt marriage over other relationships, even at the cost of real human suffering.

These twin boys need their mother. What about that relationship?


April 1st, 2009 1 comment

On Friday, Shirley Tan, a mother of twin boys is scheduled to be deported to her native Philippines, leaving behind her wife (in all but law) and her sons. Were her marriage recognized, her spouse could sponsor her into the country, thereby avoiding the destruction of this family.1 And she’s not exactly going to receive a warm welcome back home. The details of this sad story are here.

It is time to stand the opponents of marriage equality up before a panel of questioners and ask them the hard questions that they’ve mostly been able to avoid. We might start by posing this one: “How will the deportation of Shirley Tan ‘strengthen families’?”

Marriage equality opponents purport to care about the families of same-sex couples, but their stated positions are in many cases directly to the contrary. Maggie Gallagher, as one mainstream example, doesn’t favor civil unions as a way of  protecting our families short of marriage. I once heard her throw out  the vague idea that “whatever we should do to protect gay and lesbian couples and their families,” that  “whatever” wasn’t marriage (or civil unions, as she’s made clear elsewhere). And the “whatever” apparently isn’t anything that might be considered an alternative to marriage, either. In her own words: “I believe that creating legal alternatives to marriage is counterproductive and wrong.”

Well, what is the “whatever”, then? Maggie, please tell me what specific ideas you have to “protect” Shirley Tan’s family. I would be happy to print your suggestions in this blog, and then solicit readers’ reactions to them. I’ll send the link for this post to Ms. Gallagher and await her response.

I’m angrier than usual today. Reading Shirley Tan’s story and another about how a large group of former military officers are now asking Obama not to work for the repeal of “Don’t Ask, Don’t Tell” remind me that the best opponents of simple equality can offer are apocalyptic pronouncements, announced apodictically: “The skies will fall if gays and lesbians are allowed to live their lives the way everyone else does.” Marriage will crumble, though it “may take a generation or two.” Allowing gays and lesbians to serve openly in the military will “eventually break the All-Volunteer Force.

May I just interject for a moment here? What about what’s happening right now to the many  thousands of GLBT lives that are suffering from inequality? One can try denying it  — as the state’s advocate did in the Iowa marriage equality case (calling such harm ‘speculative’) or as Gallagher did (recently stating that we “don’t know” whether marriage would benefit the kids of same-sex couples) — but does anyone really believe that?

Wake up, Maggie!

  1. I don’t know, or frankly care about, the reason for her deportation at this time. It suffices that the deportation would not occur were her marriage legally recognized.

A Few Uninformed Guys on the Corner of Main and Elm

March 29th, 2009 1 comment

It’s only a matter of a year or two until some state uses the legislative process to create marriage equality. Vermont, New Hampshire or Maine: any of these would be a good guess, but the states’ governors have all stated (expressly or  implicitly) that they would veto such legislation. (There may or may not be the votes in Vermont to override such a veto). The  other two real possibilities are New York and New Jersey; New York already recognizes same-sex marriages from other states, while New Jersey has: (1) a civil union law; (2) a governor who recently stated he would sign a marriage equality bill if  it came before him; and (3) a reasonably progressive legislature.

When that day comes, though, don’t expect the anti-equality forces to admit that “democracy has prevailed” over a judiciary consisting of those Professor Lino Graglia of University of Texas Law School has angrily called “philosopher kings.” By now it is comically apparent that the anti-marriage gang favors — anyone who’s with them, intellectual honesty be damned. My perceptive colleague Robert Justin Lipkin made this  point eloquently a few years ago, and subsequent events have proven him more correct that he probably could have imagined.  

Leading the Inconsistency Brigade is the all-over-the-place Maggie Gallagher, whose tactics I discussed in an earlier post. Now, having excoriated the Massachusetts Supreme Judicial Court and the California Supreme Court for requiring marriage equality (the Mass court was wrong for applying a “rational basis” standard and finding that there wasn’t one for excluding same-sex couples from marriage; the Cal court was wrong for applying a higher level of scrutiny — what’s a poor court to do?), she finds fault with the legislative process in the New England States:

“[Marriage equality] is more a creature of special interest politics and legislative dealmaking. These are small states which can be influenced by fairly large amounts of outside money coming in. And it’s very hard for regular people to feel that they can have a voice on this issue in these states.”

Oh, the problem isn’t just the courts — it’s these darn small states! Hmm….wasn’t the tremendous influx of $$$ in California monumentally important (to both sides) in the Prop 8 fight? You  know, the not-so-small California (home to about one in every eight Americans). And I would have thought that people had more access to their government in the small states, what with the sort of “town hall” meeting style so closely associated with Vermont that it was popularized in Newhart.

It’s just too bad that the constitutions in these fly-speck states are so darn hard to amend, fumes Gallagher. She conveniently overlooks the fact that, when voters in Connecticut recently had a chance to call a constitutional convention that could have negate that state supreme court’s very recent marriage equality decision, they passed. Moreover, if recent poll numbers from Vermont (good summary and analysis at this site)  are to be believed, the “direct democracy” that Gallagher apparently favors won’t do the anti-equality forces any good in that state, anyway. Vermonters favor marriage equality.

This is all about tactics, then. Am I any more principled? Here’s my position: I think that matters of civil rights — especially where minorities are concerned — are for courts, and indeed go a long way towards justifying courts. Equality and fundamental rights go hand-in-hand in the case of marriage, because it’s  fair to require the majority to hold themselves to the same rules and definitions of what counts as “fundamental” as everyone else; simply put, if  marriage is a fundamental right, equality demands that it be offered to all consenting adult couples, neutrally. (And if that’s too much to bear, the state shouldn’t be in the marriage business.)

Politically, of course, it’s better if marriage equality comes from legislatures; courts, precisely because of their anti-majoritarian role within our constitutional scheme, are easily attacked as robed dictators. But courts are the check that’s needed,1  as anti-equality forces themselves usually recognize in other contexts, such as interracial marriage. [Gallagher: “The ban on interracial marriage was about keeping people apart; ‘this’ (opposing marriage equality) is about getting people together.” Nice sound bite, but inane. Which people, exactly, are going to be brought together by banning same-sex couples from marrying?)]

As Lipkin has put it:

“[T]hose opposing same-sex marriage should choose, once and for all, which branch of government is the proper forum for deciding this issue, or embrace both and cease carping at the courts when they enter the controversy. What they should avoid, at all costs, is adjusting their constitutional stories for result-driven purposes. Elementary decency in public debate demands as much.”

Or we could let the issue be decided by a few uninformed guys on the corner of Main and Elm.

  1. That isn’t to say, of course, that actual judges are reliable guarantors of equality. As a striking and distressing example, consider the flap over Justice Scalia that Barney Frank kicked off by calling the conservative justice a homophobe. The L.A. Times has a solid take on the whole thing.

Down Payment on Demolition

March 13th, 2009 No comments

I recently promised to end the career of anti-marriage-equality columnist Maggie Gallagher. As you can tell from this summary of her impressive accomplishments, this would constitute no small task (others have tried). It’s not exactly a fair fight, since I have no public career for her to reciprocally destroy.

Let me begin by saying that I’m not doing this because of her views; although I strongly disagree with them, they are far from unique. Grossly oversimplified, her argument against marriage equality is this: Marriage must embody the core principle of a mother and a father. Children have a right to know their biological parents, and to be raised by them. Once same-sex marriages are permitted, we will lose this notion — and the consequences would be grave.

Again, I strongly disagree on these points. First, adoptive children don’t have the right to know their biological parents in many states (nor would so-called open adoption be a good thing in many cases, in part because it might make would-be adoptive parents think twice before adopting). And let’s not forget in vitro fertilizations, anonymous sperm donations, and the presumption that the husband is the father of his wife’s child, biology notwithstanding. Same-sex couples would be just one more instance of such disassociation, and I don’t see the fairness of excluding this one group on grounds that don’t apply to anyone else.

Nor am I willing to accept the unsupported conclusion that the consequences of marriage equality would be grave. Fewer people will marry? See Eskridge and Spedale’s book for an effective refutation of this argument. Children won’t do as well in same-sex households? The social science research is to the contrary.

OK, so we disagree.  Maybe Gallagher isn’t convinced by Eskridge and Spedale, or doesn’t think their evidence (mostly from Scandinavia) would translate to the U.S. experience. Maybe she thinks the social science research isn’t sufficiently compelling, either.

Fair enough.* I respect and share her concern about children and about the institution of marriage, which is in plenty of trouble. I think that allowing same-sex marriages would be good for the institution of marriage — as, by the way, does the co-author of  her book, The Case For Marriage (Linda J. Waite; an actual social scientist) — and she doesn’t. Again, this disagreement is not the basis of the argument I’m about to make: That Gallagher’s arguments should be regarded as little more than populist polemic. Although she won’t so state, it’s obvious she has little use for gay and lesbian people and their relationships, or (as a practical matter) their children. If she did, she wouldn’t write the things she does. They’re intended to work on the emotions, rather than on reason.

(*On its face, fair enough. As I’ll point out in a future post, though, Gallagher has given herself a hedge against evidence that might call into question her position.)

For today, let’s take just one small but revealing example of the tactics she’s willing to use. Here’s a link to a column she wrote a few years ago. Please refer to it to check on what I’m about to say.

Let’s start with the title, which is already misleading: “Adult Children of Same-Sex
Couples Speak Out.” Well, no — it’s just one “child” that Gallagher spoke to. This isn’t picking a nit, because the error speaks to a broader sleight-of-hand: Presenting one case and leading the reader to think that the experience must be common, perhaps pervasive.

The column discusses one adult child (named Cassidy) of a lesbian couple who was uncomfortable with her parents’ relationship and with her status as the daughter of such a couple. To her this felt “unnatural”; it was “something [she] was conflicted with.”

Gallagher is clever enough to provide the requisite disclaimers: “Cassidy’s story is not science. It’s just her own feelings.” Remember, it’s also one person – if Gallagher had others, don’t you think she would have brought them forward? Well, maybe these others aren’t willing to speak — at least according to Gallagher’s avatar, Cassidy — because “they don’t want to make their parents feel bad.”

There’s nothing here besides the regrettable fact that one daughter of one same-sex couple wasn’t comfortable with her parents’ relationship. If I cite one example of an adult child who was uncomfortable growing up because her parents were of different races, what should we draw from that, as a matter of law or policy? What about the offspring of a couple with a substantial age difference? Or, for that matter, any grown-up who had substantial issues with her parents because of their class, interests, income — the list is endless.

But the point is to make same-sex couples seem different and freaky, somehow. Gallagher works hard to achieve this, describing the “artificial” method by which Cassidy was conceived in detail that isn’t emphasized by Cassidy. (Hard to know what she’d do with a child adopted by same-sex parents.) In another article, Gallagher makes more explicit her goal of “marginalizing and privatizing” the relationships of same-sex couples (by passing the Federal Marriage Amendment, a goal she supports). Viewing such relationships through the lens of a single daughter who had substantial problems with her lesbian parents is clearly meant to further that goal.

And what about the obvious argument that allowing Cassidy’s parents to marry might have helped her to feel less like an outsider? Gallagher again relies on Cassidy’s perspective to say that such societal approval wouldn’t have helped her. Now we’ve heaped the problem of asking someone (Cassidy) about a person who doesn’t exist (the Cassidy who grew up in a home where her parents’ relationship was valued and legally recognized) on top of the one-stands-for-many issue. One doesn’t need to have read Daniel Gilbert’s Stumbling On Happiness to recognize that people are terrible at knowing their “possible selves.” (A one-hour lecture on personal identity in a Philosophy 101 class would serve the same purpose.)

That’s almost enough for the first salvo. Let’s conclude with a video that you might find interesting.

OMG! Meghan McCain, Like, Totally Gets It!

March 12th, 2009 No comments

Go here to find comments by the Arizona Senator’s daughter about the dismal state of the Republican party. She sees that Democrats right now are about 1,000 times cooler than members of her own party (being a Republican is about “as edgy as Donny Osmond,” she says). (According to her website playlist, McCain herself is pretty cool at least along one axis: Her website playlist includes artists ranging from flavor-of-the-month Lily Allen, to Charlie Parker, to the sludgy “Our Lady Peace.”)

But her criticism goes way beyond the GOP’s coolness gap: Warming to her task, she then expresses her disagreement with the party’s positions on stem cell research and marriage equality. She even offers this startling statement:

“Where has our extreme thinking gotten us? President Bush will go down as one the least popular presidents in history. I constantly hear stories about Republicans who previously worked for President Bush and my father feeling ostracized, unable to get jobs in D.C. right now.”

If I were a Republican strategist (about as likely as my being selected as host of Saturday Night Live), I’d say: Listen to this woman!

But no: Instead, the clownish Rush Limbaugh (played masterfully by the Obama Administration) elicits oohs and ahhs from the party faithful, while the comically inept RNC Chairman Michael Steele again finds himself in the soup for daring to suggest that the abortion issue should be left to the states (not, as he was “accused” of, stating that every woman should have the right to make that choice — no sirree!). Mike Huckabee and Ken Blackwell (his former rival for a position that now has all of the “earmarks” of a booby prize) jumped all over him, with Blackwell huffing that Steele needs to “re-read the Bible, the U.S. Constitution, and the 2008 GOP Platform.” So much for Steele’s promised — oh, and risible as well as cringeworthy — “hip hop makeover” of the party.

Let me offer some unsolicited advise for a quick, if incomplete, fix for the party’s problem; one suggested by Meghan McCain’s statements, above. The Republican governor of Vermont, Jim Douglas, should sign the marriage equality bill when, as is expected, it passes the state legislature. As his website discloses, Douglas is fairly progressive — a necessity for a politician in left-leaning Vermont. Yet he has signaled an intent to veto the bill, on the factually insupportable ground that the state’s civil union law is sufficient; and for the facially inane reason that the state has too many other serious problems, what with the collapsing economy and all. (Look again at the website for a list of the things he’s doing and tell me this argument passes the straight-face test.)

I’m no expert on Vermont politics, but I suspect Governor Douglas would suffer no significant backlash from signing the bill. And he might also help change his party’s image for the better. Almost certainly, this means it won’t happen. The GOP seems intent on marginalizing itself at every opportunity.

David Brooks, writing about the financial crisis, puts the party’s current ineptitude succinctly: “If Republicans were to treat this like a genuine emergency, with initiative-grabbing approaches, they may not get their plans enacted, but voters would at least give them another look. Do I expect them to shift course in this manner? Not really.”

He’s probably right, but maybe Governor Douglas can break the destructive spell.

Three Acts on Prop 8: I

March 4th, 2009 No comments

In advance of tomorrow’s argument on Prop 8, I offer this cautionary tale. My plan for tomorrow is to “blog live” as the oral argument unfolds, at 9 am PST (noon EST).  

News Item from California, November 5, 2008: “Yesterday, the voters of California approved Proposition 8, a measure that takes away the rights of gays and lesbians to marry someone of their own sex, a right that they had enjoyed since May of this year. Ron Prentice, Chairman of, which supported Prop 8, had this to say in celebration: “This is a great day for marriage. The people of California stood up for traditional marriage and reclaimed this great institution…. Proposition 8…doesn’t discriminate or take rights away from anyone….'”

Reader: Amen to that! “Gay marriage” isn’t even marriage..   

WordInEdgewise: So the voters could have done the same thing to interracial couples and it would have been OK under the California constitution?

Reader: It’s not the same thing. The right to marry is fundamental but it only applies to opposite-sex couples.

WordInEdgewise: Really? Consider this: The California Supreme Court has held that the fundamental right to marry is meaningless if one can’t marry the person of one’s choice. It further stated that denying gays and lesbians this fundamental right violates their right to equal protection of the laws. Finally, the court stated that any law discriminating against gays and lesbians has to be subjected to the same scrutiny as laws that discriminated on the basis of race or of gender.

Reader: Well, if anything it’s a “new” fundamental right. Prop 8 doesn’t affect any other rights.

WordInEdgewise: OK, then consider whether this would be permissible:

News Item from California, 2010:“In a vote that was not as close as had been expected, the California voters once again surprised the bloggers and bloviators by easily passing a ballot measure that amended the state’s constitution to remove the rights of free speech for gays, lesbians, and bisexuals. Maggie Eddings Bryant, spokeswoman for ‘Yes on Prop 4’ celebrated the voters’ wisdom: “Speech has limits, as the voters have demonstrated. And we don’t allow pornography, fraud, or lots of other kinds of speech. Too often, ‘gay speech’ is nothing more than incitement. We need to protect the institution of speech, so that children – who are somehow forgotten in all of this – learn the right lessons about its importance. And remember that we don’t necessarily know who is gay in these metrosexual times, so there isn’t a problem as long as people don’t identify as gay. ‘Don’t ask, don’t tell’ – it isn’t just for the military any more.’”

Reader: “That’s just nutty! A fundamental right is a fundamental right, no matter who’s being singled out.”

WordInEdgewise: “Really? Can’t we say this is just a limited exception, too? And if it is, consider this:

News Item from California, 2012: “In a closely contested vote, the California voters shocked the pollsters and pundits by approving a ballot measure that amended the state’s constitution to remove the right of free speech for all men. Ernestine Bledsoe, spokeswoman for ‘Yes on Prop 1’, celebrated the decision: ‘For too long, the institution of Free Speech has been under assault from a minority promoting their own agenda of coarse speech. We needed to protect the institution of speech for future generations.’“’The No on 1’ forces were furious. Several thousand of them – mostly but not all men – marched in front of the headquarters of organizations that supported the measure. (The men were promptly arrested for exercising the right to free speech they no longer enjoyed.) Bledsoe was outraged by the protest: ‘We are at a dangerous time, when law-abiding citizens feel threatened and intimated for exercising their most precious right – to express themselves at the ballot box. What is happening to our democracy and for the basic notion of respect for opposing points of view?'”

Reader: “That’s crazy! You can’t take away a basic right that way. No court would ever put up with that.”

WordInEdgewise: “I guess it depends on whose ox is being gored.”