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An End

September 30th, 2011 4 comments

My final column for 365gay is below. It’s an end, but not the end…I’ll continue blogging here, and watch this site for news about an arrangement with another site. Yet I’ll miss 365: It was a great source for news, and I developed a great working relationship with editor Jay Vanasco.

“One Last Salvo Against the Misuse of Religion:

My last column is kind of an angry one.

Once again, I’m compelled to write about the collision of religious beliefs and civil rights, and – as has become typical – the tension arises in a case involving marriage equality.

As this story details, the town clerk in the small village of Ledyard, New York, has unilaterally decided that she won’t issue marriage licenses to same-sex couples. So she now requires that all couples (gay and straight) make an appointment for her deputy (who seems to work part-time) to do the job that she’d previously done.

On the surface, this accommodation might look reasonable. The woman gets to honor her own religious beliefs, and now all couples are being treated equally. Everyone has to wait for an appointment. And in general, I support creative means of conflict resolution as long as they neither stigmatize a legally protected class nor cause undue inconvenience. If, say, there were several clerks working different lines in a large city and one objected to issuing marriage licenses to same-gender couples, an unobtrusive switch of clerks would bother no one.

Beyond that kind of practical accommodation, though, allowing this kind of  refusal would be a terrible mistake, and one that would sets very dangerous precedent. Consider this example:

State A passes a marriage equality law. The Attorney General’s religious beliefs are offended by the bill, and he decides that all marriage licenses issued to same-sex couples are without legal force. Of course, such an AG would likely be swiftly fired, or in any event overruled by a court. But until that happened, one might expect him to argue that he simply “couldn’t” do otherwise, as same-sex marriages were against God’s law.

But God’s law – whatever it might be in this case, and there’s no clear agreement among religions on this or any other issue – is beside the point. The AG has a civil law responsibility that he’s failing to discharge.

Much further down on the government food chain, the Ledyard clerk, one Rose Marie Belforti, is doing much the same thing. The similarity can be hard to see, because her refusal to comply with the law – unlike the AG’s – can be sidestepped. But in both cases, we have a public official deciding for themselves when and whether to recognize a law of general application. The AG wouldn’t be able to stay in office were he to insist on his own, law-defying interpretation of what God’s law requires; and the result should be no different here. If Belforti couldn’t figure out a way to do this behind the scenes, too bad for her.

And the consequences of allowing religious beliefs to interfere with clear civic responsibilities can’t be limited to the issue of same-sex marriage licenses. What if a clerk didn’t want to marry two people who’d been divorced? Who’d had sex before marriage? And what would those defending Ms. Belforti say about a judge who granted men, but not women, a unilateral divorce because of his belief that that Sharia law required that interpretation?

We expect judges to follow the prevailing law. We have the right to expect clerks to do the same.

I could respect Ms. Belforti if, like several other clerks with religious objections to same-sex marriages, she resigned from her job. But I have nothing but contempt for the rhetoric being put forward by the likes of Maggie Gallagher and Robbie George. Read this article, which details how the pair is trying to turn back marriage equality by appealing openly to the idea that religion should take precedence over equality. Gallagher likens New York state’s insistence on having its laws followed in the clerk cases to the dictates of Caesar, “forgetting” that the democratically elected legislature passed the marriage equality law. But the reference to this dictator is a way of making her point about the supposed religious persecutions.

George, co-author of the much-downloaded, but intellectually dishonest, article “What is Marriage?,” continues to rail against schools that teach about the existence of (let alone the positive results linked to)  families headed by gay and lesbian parents. It’s just too bad for parents who don’t want their children “indoctrinated” into this world, he says.

Worse, he “loathes” the “bad faith” of our “strategy” of demonizing people like Belforti  by deploying the “weapons” of anti-discrimination law. But to insist that validly enacted laws, like New York’s, be interpreted in a way that favors no religion over another is only to follow the rules of democracy itself. George and Gallagher are so sure of their own (rigidly Catholic) version of God that they fail to understand that the best way to respect religion is to insist on its separation from the civil, legal sphere.

For once religion is allowed to set the rules, there’s no guarantee that the faith chosen will be one either of them would endorse. It might even be Muslim.

I can’t end this column without a last goodbye to my faithful readers (some of whom I know by user name; others of whom simply read without weighing in). I’d love for you to follow me over to my own site, Word in Edgewise, where I promise to keep up the fight. (And I might soon be blogging for another site; you’ll have to go to WiE to find out if and where.) I hope to see some of you tonight! And a fond farewell to JV and JW. Thanks to both of you. Excelsior!

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law. He has edited and contributed to a book on “hot” legal and social issues, and just taped a show for The American Law Journal on the legal rights of unmarried cohabitants (gay and straight). It will be available for viewing on this website by late October. Follow him on Facebook and Twitter.

Pawlenty and Malawi

May 20th, 2010 No comments

Malawi x290 (Reuters) I Advocate.com

Over at 365gay.com, you can find my just-published column tearing into Minnesota Gov. Tim Pawlenty for vetoing a bill that would simply have recognized the humanity of the LGBT citizens of his state, by allowing aggrieved partners to decide what’s to be done with their deceased spouses’ remains, and to have same basic right to call the defendant who caused the death to account (through a wrongful death suit, allowed to legally married, opposite-sex couples).

Then, this morning I read about the sentencing of the gay Malawi couple who had engaged in a formal commitment ceremony to fourteen years of hard labor. Here’s what a Presidential spokeswoman had to say:

Betsy Chirambo, an adviser to President Bingu wa Mutharika, expressed concern over calls by some activists for the West to withdraw aid to Malawi because of the case. Up to 40 percent of Malawi’s development budget comes from foreign donors.

“It is not our culture for a man to marry a man,” Chirambo said this week. “That is not even in our constitution. Some of these rights are not good for our culture.”

The men engaged in a commitment ceremony — they didn’t “marry,” because legally, they can’t.

I’d start by threatening to cut aid in half, immediately, unless the men are released. That would get their attention.

That’s not going to happen, though. Instead, the State Department issued this toothless condemnation:

The United States is deeply disappointed in [the] conviction of same-sex couple Tiwonge Chimbalanga and Steven Monjeza in Malawi. We view the criminalization of sexual orientation and gender identity as a step backward in the protection of human rights in Malawi. The government of Malawi must respect the human rights of all of its citizens. The United States views the decriminalization of sexual orientation and gender identity as integral to the protection of human rights in Malawi and elsewhere in the world. (emphasis added)

“The government of Malawi must respect the human rights of all of its citizens.” That statement sounds a bit hollow coming from a government that still hasn’t managed to protect its LGBT citizens from workplace discrimination. And it brought to mind Pawlenty’s unsaying of gay relationships — even in death, your relationship means nothing and won’t be recognized in any way.

I’m not equating fourteen years of hard labor to what the LGBT community experiences in the U.S., although being fired from one’s job just for being, say, a lesbian, is devastating enough. I am saying that our actions and our high-minded rhetoric are often, and sadly, at odds.

That Didn’t Take Long!

April 16th, 2010 No comments

Earlier today, I wrote that the right-wing fringe hadn’t expressed opposition to Obama’s humane Memorandum directing HHS to create rules requiring hospitals to respect the decisional autonomy of their patients, by letting them choose their own visitors — even though one major effect of any such rule would be to respect same-sex couples.

Now, blundering in from the periphery comes Peter Sprigg of the Family Research Council, who denounces the rule for a confusing mash of reasons, apparently including general opposition to Obama doing anything relating to health care (a good chance to oppose HCR, in another context), and some idea that the move contributes to a redefinition of marriage. But then there’s this exchange, towards the end of an on-line exchange where Sprigg was buffeted about by a score of e-mail conversants. Watch him just give up the ghost:

Mr. Sprigg — I can hardly see how someone could deny a hospitalized person the compassionate and therapeutic benefits of a visitation by their partner.

In opposing this measure, aren’t you putting your dogma before your humanity? Are you seeking to publicize your agenda? You really need to examine the question: what would Jesus do?

Peter Sprigg: Let me re-emphasize that I do NOT oppose allowing people to visit their homosexual partners in the hospital. I just think that provisions to allow that should be based on the general principal of patient self-determination, and not based on a redefintion of “family” or “marriage.”

The President’s memorandum actually does appeal to that principle, and is not focused only on same-sex couples.

So why not just leave it alone? Because the Family Research Council — which, to reanimate the Coffee Talk Lady, is “neither pro-family, nor based on sound research, nor a council” — can’t resist piping up whenever the common humanity of gay and lesbian people is respected, however meagerly. Let’s not forget that these fringies do us a favor with their tone-deaf absolutism.


Tearing Down Robert P. George’s Scaffold (Part One)

December 23rd, 2009 9 comments

The puff piece on Robert P. George in last Sunday’s NY Times Magazine was one of the more infuriating things I’ve passed my eyes over in some time. At many points I found myself wishing for the kind of critical perspective that a similar, personality-based piece would have gotten in, say, the New Yorker or the Atlantic. Instead, David Kirkpatrick’s article was a weird mixture of amanuensis-like reporting of George’s point of view and unexpected instances of the writer’s occasional, startling snarkiness at his subject. (Example: “I met George 20 years ago, when I was a Prince­ton student and he was praying for tenure.”) There was so much to dig into, but Kirkpatrick barely lifted a spade.

And surprisingly, still there’s been but little written in opposition to the positions that George put forward. (Here‘s one game effort at deconstructing his arguments, from Kathleen Reeves.) But there’s so much wrong with what he’s saying that I can’t sit by idly and let this go unanswered. It’s clear that George is providing an intellectual scaffold to prop up a host of right-wing views and talking points. But the support he provides is rickety.

So, as my last serious work before taking a short Christmas break, I’ll have a go at George’s views (with a focus on marriage) and their intellectual pedigree. This will require more than one post.

Let’s start with the purported distinction between Humeans and Aristotelians that George (via Kirkpatrick) describes, and that is vital to his world-view. After setting forth Hume’s view that the emotions are the seat of decision-making, and Aristotle’s preference for an objective moral order that  can be known through the rational mind, George casts himself as a neo-Aristotelian whose mission is to restore the primacy of reason to moral (and political) decision-making. For George, it’s one or the other: emotions or reason.

Unfortunately, this simple “either-or” disregards increasingly well-accepted findings from the field of neuroscience. If you’ve never read Antonio Damasio’s ground-breaking yet accessible work, Descartes’ Error, promise yourself to correct this omission in 2010. Damasio’s work with brain-injured patients showed this: Those whose emotional capacities had been shut down could not make rational decisions. It turns out that we need emotions to bring our otherwise potentially endless ratiocination to some kind of conclusion — for us to get up and do something. The always-curious David Brooks further popularized this insight in a column last year:

Over the past several years, the momentum has shifted away from hard-core materialism. The brain seems less like a cold machine. It does not operate like a computer. Instead, meaning, belief and consciousness seem to emerge mysteriously from idiosyncratic networks of neural firings. Those squishy things called emotions play a gigantic role in all forms of thinking. Love is vital to brain development.

[P]eople seem to have deep instincts for fairness, empathy and attachment.

So this Aristotelian-Cartesian idea that truth can be known purely through reason is so yesterday.1 The purportedly syllogistic logic that leads George to his definition of marriage (one that — surprise! — ends up walling out same-sex couples) is driven by complex emotions that neither George nor sophisticated neuroscientists as yet fully understand.

This isn’t to give up the project of judging arguments grounded in logic and reason, but to provide context for them: The arguments we choose to make, and the ways we present them, aren’t the products of pure reason, because…there’s no such thing. And once we get into the specifics of George’s natural-law position on marriage — which by the way is nothing new — we can see how his complex construction is anchored in a biological, reductive model of humanity  that is hardly the product of “reason” at all. It’s an article of emotion or of faith; take your pick, because they amount to the same thing.

In my next post, I’ll pursue this natural law argument further.

Update: The second post on this topic, which will address Andrew Sullivan’s response to George as well as George’s natural law arguments, will be up early tomorrow.

  1. But  yesterday is, of course, where George proudly abides. From the Kirkpatrick piece: “George’s admirers say he is revitalizing a strain of Catholic natural-law thinking that goes back to St. Thomas Aquinas.”

“What Happens in Vegas” (and Throughout Nevada)

December 16th, 2009 No comments

http://www.petticoatjunctionnevada.com/store/images/token5.jpg

It’s hard to offer any coherent commentary on Nevada, a state largely defined by the strangest city on Earth: Las Vegas. (Dubai, the U.A.E. city-state, is closing fast. In addition to an indoor ski slope in the desert, the developers of this weird place have just reaffirmed their commitment to a Tiger Woods-themed, $1 billion golf course.) So instead of piecing together some kind of commentary, I invite you to consider the connections and contradictions between the following “relationship” issues:

  • The Shady Lady Brothel has just announced that its first male workers (running the age gamut from early adulthood to (in this context) depressingly middle-aged) will start on January 5, 2010. OOH! My birthday is on January 6, for anyone in need of a gift suggestion.
  • Want a tacky wedding? (Is that redundant?) Embrace the moment with imitation Elvises in Vegas. (I know at least two couples who have done this.) These faux Kings can do just about anything: Jump out of planes; serenade in sequins (were you expecting “early Elvis”?)…. Get creative.
  • Hotties Cameron Diaz and Ashton Kutcher’s inevitably lovable characters in the formulaic but appealing What Happens in Vegas provided a hit-you-over-the-head indictment of the instant wedding culture in Vegas when, drunk, they married in order to collect millions they’d won gambling. They ended up together, of course, in apparent affirmation of some cosmic cuteness principle.
  • Governor Gibbons of Nevada vetoed a domestic partnership bill this year, which aimed to provide same-sex) couples the benefits of marriage without the label. His spokesman said that he’d “stood up for what he believes in.” Which, given the state of marriage in Nevada is…what, exactly? On second thought, if he really doesn’t like us, perhaps he should have suggested marriage equality for gays instead.

Break into small discussion groups.

Sotomayor Hearings: Here Comes Gay Marriage!

July 16th, 2009 1 comment

Watch this. Then I’ll explain the case they’re talking about.

The case they’re discussing, Baker v. Nelson, is unusual (and disputed) as precedent, because the Supreme Court declined to take the case for want of a substantial federal question. New York Law School Professor Art Leonard says:

“Many lower federal courts have cited Baker v. Nelson as precluding any federal constitutional challenge to the exclusion of same-sex couples from marriage.  In that case, a gay male couple in the early 1970s who were denied a marriage license in Minnesota sued the state on a federal constitutional due process and equal protection theory.  They lost in the Minnesota Supreme Court and filed an appeal to the U.S. Supreme Court.  At that time, the Supreme Court was required to consider such cases on direct appeal, but it used the device of dismissing the appeal ‘for want of a substantial federal question’ when the Justices felt the case had no merit.  They dismissed the Baker appeal on this basis.  This was before the modern gay rights movement really got going in the courts, before we won Romer v. Evans and Lawrence v. Texas, before the establishment of a growing body of case law protecting gay rights.  Clearly, what was not a ‘substantial federal question’ in the 1970s is today a ‘substantial federal question.'”

In other words, whatever the Court would decide on the substance of the gay marriage issue today, it would likely start by dealing with, and disposing of Baker v. Nelson, because all would agree that the issue today does raise a substantial federal question. But will Sotomayor say that when she clarifies her remarks, as she’s promised to do? I doubt it.

I’m Not Sick, Mr. President

June 12th, 2009 No comments

Here’s Obama’s response to Brian Williams’s question about whether proponents of gay marriage have a friend in the White House:

Translation: No.

Instead, we get the boilerplate about civil unions, benefits — and “the right to visit each other in hospitals”?? After the show, I half-expected an episode of “L.A. Law.” How very late 80’s of you, Mr. President.

Please, can we stop talking about hospitals? Yes, there have been (and even today, continue to be) horror stories of loved ones denied access to hospitals, but is this really a controversial issue today? Even some of the most right-wingnuts support our right to visit each other in the hospital.

And speaking of the late 1980’s, I can’t help noting that the whole issue of the right to hospital visits took on political currency during the darkest days of the AIDS epidemic. There’s always been an uneasy mix of compassion and fear to this discussion. The compassion part was the text; the fear of the diseased “other,” the subtext. I’ve seen more than one AIDS caregiver become lachrymose, years later, when recounting stories of how only they would change the sweat-and-blood soaked sheets of their spouse, son, or brother.  Often the nurses charged with that duty simply refused. So letting gay spouses visit each other in the hospital stemmed in part from a “better them than me” sensibility.

How about a “live” issue? Here’s one that reflects reality today for many gay people and their families: The lack of dignity, transmitted through law and rhetoric, that the children of gay parents have to deal with every day, in ways overt and subtle. If my twin daughters were to say to Maggie Gallagher: “My daddy and papa are married,”  she would respond: “Not in the United States.”1

What would President Obama say to them? It disturbs me that I can’t answer that question.

  1. Her statement was made in connection with her support of a constitutional amendment banning gay marriage, but  is to an extent true even in its absence, because DOMA commits the federal government to the position of non-recognition of gay  marriages, even if valid in the couples’ home states.