Posts Tagged ‘450’

Ho, Hum…. (Washington Passes Full Domestic Partnership Law)

April 17th, 2009 1 comment

In a story that attracted little attention outside of the state (except on gay news websites), the Washington State legislature on Wednesday gave final approval to a bill that expands the state’s existing domestic partnership registry to grant same-sex couples the same benefits as married couples. Opponents have sprung into action, but have little chance of undoing the legislation in a state that’s prepared to take at least this step.

What does it say about the state of the marriage equality movement when “virtual marriage” has become the compromise norm in a growing number of states? (New Hampshire, New Jersey, Oregon and California now have laws approximating marriage for same-sex couples.) And it’s a norm that elicits a collective “ho, hum” from all but the most apoplectic equality opponents. It’s still not true equality, of course. I recall hearing Andrew Sullivan say, a few years ago, that these “virtual equality” laws are really “pure” discrimination. That’s exactly right: Once equality of benefits is granted, all that separates the two “classes” is status, or a kind of legal caste. Here’s one opponent of the domestic partnership legislation, in a comment posted to the Seattle PI’s website:

“Your [sic] not equal. You’ll ALWAYS be two same sex people who THINK they have what I have being MARRIED to one man for 27 years. You will never be equal to me.”

She might have added: “So, there!” But she’s right, as long as the law continues this separation. Further, this verbal foot-stamp is in fact no different from that of more sophisticated equality opponents. Consider Maggie Gallagher’s statement, speaking of why civil unions were better (from her perspective) than marriage:

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 to those who claim civil unions are marriages and say with confidence, “Not in the United States.”

So, there!

It’s likely for this reason that courts have started to look much more closely at arguments that civil unions and domestic partnerships don’t satisfy equality guarantees built into state constitutions. This is from the Connecticut Supreme Court’s marriage equality decision, Kerrigan v. Commissioner of Public Health: “Despite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society  than marriage.”

To even more pointed effect, In Re Marriage Cases (from California): “[R]etaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise—now emphatically rejected by this state—that gay individuals and same-sex couples are in some respects   “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.”

Of course, these courts are correct. So are the civil union commissions in both Vermont and New Jersey, both of which came to a conclusion even Sarah Palin could understand (if not articulate): Civil unions don’t confer equality. Yet I’m starting to like civil unions and domestic partnerships. They’re training wheels, of a sort; not for the couples, but for the larger society. By granting formal recognition and the (state-conferred) benefits of marriage to gay couples, they bring us much closer to equality in the short term, and simultaneously give root to the idea that these couples pose no threat to marriage. Soon thereafter, the citizens become more confident; the training wheels are removed, and full marriage equality is achieved. It’s already happened in Vermont, and I expect it to happen in New Jersey and New Hampshire soon.

Civil unions? Domestic partnerships? Ho, hum… in the short run.

Cloudy with a Chance of Meatheads

April 14th, 2009 No comments

The silly season may be upon us.

The serious arguments against marriage equality are falling fast, leaving only nonsense and fear behind. Even many  conservatives who formerly opposed equality have come around (sometimes only by recognizing that, whatever the perils of allowing same-sex marriages, they pale as threats to the institution next to divorce and the declining percentage of kids born to married couples). And the overwhelmingly supportive views of younger people are filtering up to the generations above, working through surprisingly permeable soil. It turns out that older people can and do change their views as they’re educated by the next generation, by courts, and by the lives of those around them. New York Senator Charles Schumer is a recent convert, and the Governor of Maine, John Baldacci, has gone from “no” to “hmmm…. let me think about this some more.”

So, expect increasingly desperate, and probably inadvertently humorous, tactics to forestall the march towards equality. Let’s talk about two examples. This petition was being circulated at a Town Hall meeting yesterday in Iowa. (Thanks to  Iowan Kyle Payne, who was at the meeting, for posting this and for letting me know what’s going on there.) It’s just one page, and it “argues” that, just as Abraham Lincoln defied the Supreme Court’s Dred Scott decision in issuing the Emancipation Proclamation, so too could Iowa’s Governor, Chet Culver, ignore his own supreme court and simply executively order overturning Varnum v. Brien (the decision by the unanimous Iowa Supreme Court ruling in favor of marriage equality). I suppose they believe the state’s citizens need to be “emancipated” from judicial tyranny.

In looking over the petition, it initially seemed that it was the work not of runaway citizen zealots, but of duly elected legislators: Rep. Jason Schultz and Sen. James Seymour. But Rep. Schultz e-mailed me to assure me that neither he nor anyone in his office had anything to do with it.1 This assurance was heartening, but also serves as a reminder of the perils of direct democracy on an issue this highly charged; because whoever wrote this petition didn’t bother doing any actual research, unless you include the reference to Wikipedia. 2

In fact, Lincoln had campaigned on a promise to abide by the Court’s decision in Dred Scott, much though he disagreed with it. (Norm Coleman, are you reading this?) For that reason, as well as because of his belief that he could not rely on his inherent war powers to emancipate slaves, the Emancipation Proclamation was limited to those slaves in the states in rebellion, and did not even apply to the border states: Only the insurrection gave him the power to do so, as an incident of his power as Commander in Chief. Is this really the Civil War (in caps)? It would be laughable were it not disturbing, countenancing, as it does, the deracination of the separation of powers.

Along these lines of “disturbing yet somehow funny” is the newly issued video by Maggie Gallagher’s National Organization for Marriage, which is by now viral — both in its original form and in the inevitable and sometimes revealing mash-ups and parodies. (Here are a couple of keepers.) Instead of the original, which you can find here, the following audition tape really says it all:

Note that these actors are saying exactly the same things that are uttered in the final, wrenchingly risible, version. But this audition tape, through its repetition of the awkward statements in the actual video, points to its own absurdity.

Take this example: “I am a California doctor forced to choose between my faith and my job.”

Huh? What, exactly, are these actor/not-real-doctors talking about? Honestly, I have no idea. Are they saying that they don’t want to treat gays who are legally married? But refusal to treat on that basis would run afoul of the state’s antidiscrimination law, whether there’s marriage equality or not. So what else could they be talking about? Nothing that you can identify, and that’s the point. Plant the fear, and don’t diminish it by being specific (doing so might — not incidentally — also make your statements inaccurate).

“There is a storm gathering. The clouds are dark and the winds are strong. And I am afraid.”

To paraphrase my kids’ current favorite book: It’s cloudy, all right — cloudy with a chance of meatheads.

  1. I haven’t yet heard from Sen. Seymour, but I have to believe that if Schultz didn’t draft it, neither did Seymour.
  2. Luckily for me, my colleague Bob Hayman is a rich repository of knowledge on this subject. My thanks to him for his insights and contribution.


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.

More on Prop 8: Quixotic Fundamental Rights

March 5th, 2009 No comments

Breaking my vow to blog only once a day, I can’t resist adding a few comments to my earlier, live-blogging post.First, calling something a “fundamental right” is essentially meaningless if it can be taken away by simple majority rule. Justice George’s opinion for the majority in last May’s In re Marriage Cases ruling contained lofty pronouncements about the right of all people to marry someone of their choosing, and about the clear message in the legislative approach of granting the rights of marriage while withholding the label. If I’m right in my prediction about Justice George’s vote based on his questioning at oral argument, he’s willing to let the people abrogate these rights by a simple majority vote, blaming it on the constitutional initiative process.

(“Riddle me this, Batman: When is a fundamental right not worth a sou?” “When it’s established by the California Supreme Court.”)

The second point is closely related: The process for amending the constitution in California, and indeed the entire direct democracy idea, is just plain loony. I know I’ll regret saying this when Prop 8 is reversed, as I predict will happen within a few years, at most. But even when that happens, one doesn’t need to restrict oneself to Prop 8 to find myriad reasons for questioning this whole process. I looked at the raft of propositions on last November’s ballot and was struck by their range and complexity. Are the voters really equipped to vote a simple “up or down” on a complex statute? Legislators, fed by committees and countless experts, are barely competent to engage in this high degree of difficulty  exercise. Leave the amateurs out of it, please.

Tomorrow I will have final thoughts on today’s arguments and where the movement goes, in California and elsewhere, from here. And although I  typically have no idea what I’m going to blog about in the future, I can state with assurance that next week’s blogs will be rife with withering analysis and condemnation of (some of the) anti-marriage-equality forces, whose sanctimonious dissembling I can no longer bear. First up will be Maggie Gallagher, whom no reasonably intelligent person should take seriously. (As a start, go to Andrew Sullivan‘s blog where he summarizes some of the reaction to today’s Prop 8 arguments, including hers.)         

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.


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.