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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.

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.

The M Words

March 8th, 2009 No comments

The civil union has recently gotten a lot of air time, with pundits on all sides asking whether it’s an adequate  substitute for marriage equality. As I pointed out in a letter to the New York Times, the civil union (or domestic partnership, or “reciprocal beneficiary”, or whatever else) is a poor stand-in. It doesn’t confer any federal benefits, and wouldn’t even if the Defense of Marriage Act were repealed.

Yet the word “marriage” really does seem to be the sticking point for a lot of otherwise-reasonable people. In poll after poll, a majority favor granting equal benefits to same-sex partners, but an equally solid (though weakening) majority oppose same-sex marriage.  So we have the answer to Juliet’s rhetorical question: “What’s in a name?” Plenty. But why “civil unions”? If the word “marriage” is the problem, is “civil unions” the best solution? Why not something that looks more familiar?

I propose the word “mariage” — with one “r”! This neologism should make everyone happy. The familiar “two r” “marriage” is reserved for heterosexuals, while same-sex couples can hardly complain about the sacrifice of one measly letter.

Yes, there would be problems to solve, but they’re not insurmountable. The most obvious difficulty would be in pronunciation. While the words are distinguishable as written, how would couples signal which legal and social institution they were referring to when saying one of the two “M” words? We wouldn’t want to constantly say “one ‘r’ marriage” or “two ‘r’ marriage.” Here’s the solution: Since gays and lesbians are being asked to give up a letter, it doesn’t seem like too much to ask that the pronunciation of traditional “marriage” be changed to emphasize the two “r”s. Exaggeration of the “r” sound might be needed to make the distinction clear, but the high stakes in maintaining the separation will provide all the incentive that’s needed to make this work.

Here’s an example: “Oh, I’m so happy for Bob and Betty. Theirs is a marrrriage made in heaven.”

Of course, the trilled “r” sound that native Spanish speakers handle with such dismaying ease could also work here, because that mellifluous sound signifies a double “r.” Perhaps a side benefit of this new “one r/two r” world would be a rush to enroll small children in Spanish immersion classes, thereby arming them with the phoneme needed to keep the wall between the two institutions sturdy. Given the rising Latino population in the United States, this increased interest in the Spanish language would serve two vital goals at once: increased Spanish literacy and the protection of the institution of “marriage.” 

My only fear is that, over time, this nice distinction would disappear. Then people wouldn’t know who was “married” and who was “maried.” This must never be allowed to happen. For the last time, “marriage” means the union of one man and one woman. “Mariage” is something else entirely.         

The Name Game

February 26th, 2009 No comments

I recently spoke to my colleagues about some of the research, writing and thinking I’ve been doing on the issue of marriage equality. Inevitably, some portion of the discussion turns to the civil union and whether it’s an adequate substitute for marriage.* In incisive academic fashion, someone suggested that the state has limited power here, because same-sex couples can seize their own naming rights, calling their unions “marriage” — whatever the state says.

(*No.)

Of course we can, and it’s only folks like the congenitally nasty and ethically challenged Maggie Gallagher who’d respond by saying this:  “If the 15 words “Marriage in the United States is exclusively a union of one man and one woman” are placed in our Constitution, we can point with confidence to those who claim civil unions are marriages and say with confidence, “Not in the United States.”

Well, thanks for that. But she’s not entirely wrong, because we can call the unions what we want — and this is indeed powerful — but it won’t bring the smothering cavalcade of benefits (and responsibilities) that goes only to the officially “married.” Moreover, the state’s power to define relationships has a social, as well as a legal, component. So at the very least the government’s decision to withhold approval of same-sex marriages would weaken and retard our ability to make our naming decisions stick. David Cruz made this  point about the power of the word “marriage” effectively several years ago in his article, “‘Just Don’t Call It a Marriage:’ The First Amendment and Marriage as an Expressive Resource.” (He blogs about marriage  equality, with recent focus on Prop 8.)

In response to this point about the power of naming, I offered that I had recently taken to using the words “husband” or “spouse” instead of “partner” to describe my own relationship. Partly this is to use terms that our daughters hear all the time, and partly it’s because I want to own the equality that I argue for.

So imagine, if you will, my surprise when a female colleague and friend said that she had moved in the opposite direction, using the term “partner” to describe her husband. It then occurred to me that I knew several opposite-sex married couples who used the term partner. Why? To  her, the terms “husband” and “wife” came freighted with all sorts of unpleasant historical associations and meanings; the term “animal husbandry” even came up but wasn’t pursued. The inquiry might be worth making, especially as my dictionary offers these definitions of “husbandry”: “the cultivation or production of plants and animals” and “the scientific control and management of a branch of farming and esp. of domestic animals.” I guess my friend doesn’t want to “control or manage” her spouse in these ways, although, to hear certain conservative commentators talk about the issue, marriage is mostly about this need to control men.

So here’s where we are today: Same-sex couples (OK, some of us) are owning “marriage”  and “husband” and “wife.” In so doing, we are simultaneously mainstreaming ourselves and redefining “husband” and “wife” to the extent that these have been considered terms of rigid relation. To call ourselves “partners” starts to sound like complicity in our second-class citizenship.

Meanwhile, some progressive opposite-sex couples choose “partner” because of its strong association to the idea of equality.

Where will this name game end? It won’t, of course; only extinct cultures produce “dead languages.” But however mutable, names have power.