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Culhane: Gay marriage victories breeding anti-gay desperation

Will this never end?

That thought – unusual for me – popped into my head more than once during the past week, as I’ve been reading about a series of events and comments related to marriage equality.

On one side are the continued struggles that same-sex couples face because of the continued legal and social failure to recognize our unions. On the other side, Maggie Gallagher has lately been doubling down on her opposition, seeming increasingly disconnected from rationality or moderation. Increasingly, her statements seem more concerned about some Platonic ideal of the form of marriage rather than its reality, and its capacity to solve problems.

Let me be more specific. On this site a few days ago, it was reported that the surviving member of a lesbian couple, and the couple’s child, is suing the state of Indiana for the death of her (unrecognized) spouse resulting from the collapse of a stage at the Indiana State Fair. But Janeen Beth Urschel, the surviving partner, faces a huge hurdle in her wrongful death suit: like most states, Indiana restricts recovery under these statutes to certain enumerated classes of people: spouses and children, usually . And unmarried couples, straight or gay, are not among those entitled to sue. So the victim’s seventeen-year-old daughter might be able to recover, but not Urschel.

Urschel’s lawyer, Kenneth Allen, plans to challenge the wrongful death law. Similar challenges were successful in California and D.C., but not in New York (even though, there, the couple had gone to Vermont and obtained a civil union license). So the prospects for success are unclear.

Of course, none of this legal maneuvering would be necessary if the state would recognize same-sex marriages. Urschel and her late partner, Tammy VanDam, had been together for 10 years, so perhaps they would have married had they been permitted to do so.

The lesson is clear: With a relative snap of the fingers, marriage can solve a host of legal issues that otherwise are complex and indeterminate. Yet it can’t stop discrimination from occurring, as seen by recent high-profile cases involving alleged discrimination by Vermont innkeepers against a same-sex couple, and the story I reported last week about a bridal shop that, risibly, declared illegal the sale of a dress to a lesbian.

Today, these stories inspire more sympathy for the couple than for the discriminators. And that drives the increasingly shrill rhetoric from equality opponents like Gallagher and her organization, the National Organization for Marriage. As we well know, people generally don’t like being viewed unsympathetically. So I was only mildly surprised to read her recent column, where, after recounting the woes that equality opponents have endured for daring to oppose our “agenda,” she launched into an intellectually vacuous comparison between abortion and marriage. It’s worth quoting at some length:

“At the heart of each movement is the belief that by re-jiggering words, elites change reality itself. A human life can be redefined as a cluster of cells. Marriage can be remade to mean whatever the government decides. Reality itself can be re-mastered to accommodate sexual desires.

“But in truth, government cannot create life, and did not create marriage, and government has no business redefining either.”

Her argument depends critically on having the reader overlook a glaring fact: Gallagher assumes that her definitions of “life” and “marriage” are somehow essential, and incontestable. If you buy that, then her conclusions follow. But in the real world, we have to make complex decisions about legal and social structures. The position that a human life begins at conception is intellectually respectable, but it’s not indisputable. It assumes that the potential for something that we’d all agree is human life is such a life from the moment the zygote is created.

As for marriage, she’s much further off the mark. Government surely created the legal institution of marriage, and it’s the definition of that institution – not some natural law construct of Gallagher’s or of Robert George’s – that is up to us to define. And the idea that marriage has never been redefined is so thoroughly contradicted by the evidence as to be embarrassing to read.

As the marriage equality movement accelerates toward its inevitable victory, expect much more of this – and expect it to get worse. Reason finds no shelter in a climate of fear.

John Culhane is a law professor and a blogger.
  1. August 26th, 2011 at 08:57 | #1

    Love the sentence “Reason finds no shelter in a climate of fear.”

    So true!

  2. mscottdodd
    August 26th, 2011 at 09:21 | #2

    “The position that a human life begins at conception is intellectually respectable, but it’s not indisputable.” Even so great an authority as St. Thomas Aquinas (who did not approve abortion) admitted that there were good reasons to think human life began only when the child was “quickened”, that is, when the fetus began to move in the womb. [Thomas Aquinas, In Libros IV Sententiarum 3.1.1.] This can take place as late as 24 weeks. I do not say that Thomas is the man to turn to for scientific information, yet as perhaps the most highly respected of the Catholic DOCTORS OF THE CHURCH, the fact that he can seriously consider this opinion indicates that there is not universally and inevitable agreement that human life begins at conception.

  3. truth be told
    August 26th, 2011 at 14:10 | #3

    ‘Maggie Gallagher has lately been doubling down on her opposition, seeming increasingly disconnected from rationality”

    John, you are assuming she was “connected” with rationality in the first place.

  4. truth be told
    August 26th, 2011 at 14:11 | #4

    “Maggie Gallagher has lately been doubling down on her opposition, seeming increasingly disconnected from rationality”

    Surely you are not suggesting she was connected with rationality in the first place?

  5. Riverman
    August 26th, 2011 at 15:51 | #5

    God is pro-abortion in Hosea 13:16, God is quoted as saying “Samaria shall become desolate; for she hath rebelled against her God: they shall fall by the sword: their infants shall be dashed in pieces, and their women with child shall be ripped up”. God obviously has no regard for a fetus or the mother, not to mention infants etc.. In 2 Kings 15:16 God allows Menahem to do more of the same “Then Menahem smote Tiphsah, and all that were therein, and the coasts thereof from Tirzah: because they opened not to him, therefore he smote it; and all the women therein that were with child he ripped up”.
    God subsequently rewarded Menahem by making him king of Isreal.

  6. August 26th, 2011 at 19:19 | #6

    I told Maggie some years ago that equality was coming to our country and that there’s nothing NOM can do about it. With the each group of young people reaching adulthood over the years comes a new group less concerned about NOM’s issues than the previous young group. And that bit by bit gradually turns the tide in our favor. When a large and prestigous state like NY State with a major world-class city like NY City gains marriage equality, that is bound to rock the boat at NOM and make NOM furious and desperate at the same time. What if an even larger prestigious state like California with world-class cities like LA, San Francisco, etc. regains and MANAGES TO KEEP marriage equality, that would be an even more desperate defeat for NOM and the loss of California might result in dwindling donations and dwindling support for NOM. Now wouldn’t that be a pretty sight!

    The next fights are in 2012 and they are in: Maine (which has Maine marriage activists working toward getting enough Maine residents to support Maine marriage equality at the polls)
    Maryland which has a governor who has stated his support for another try in 2012 at Maryland marriage equality
    California…activists there are working toward regaining CA marriage equality in 2012.
    New Jersey….activists there are hard at work to bring marriage to NJ, whether they will try to get it legalized in 2012, I don’t know.

    I hope so, NJ would then give PA another marriage equality state this time on its eastern state line. In PA, there is no legal recognition of gay relationships at the state level.
    MD has a limited partnership law for gay couples with a handful of crumbs of recognition. Hopefully that will change for the better and turn into MD marriage equality.
    Both NJ and MD getting marriage equality would a horrid defeat for NOM. NOM is based in NJ and Brian Brown was giddy with boasting and jubilation over his temporary victory in Maryland earlier this year. Hope that my state of Maryland will burst his bubble in 2012. We in MD will not quit until marriage equality is ours to keep and until NOM is defeated in its efforts at least in our state.

  7. August 26th, 2011 at 21:02 | #7

    WOW! That is a mouthful there for what ever the reasons these folks feel the need is to belittle and hate with a twist of discrimination and call it the right way the government should be because the bible says if we are not like them we are going to hell! Well now I rather be the man I am who is gay and go to hell then be a lying cheating greedy person who only has their agenda and personal well being on their mind and doing it all with my money! I really want to know which one of these folks who spew this crap has gone and come back to tell about it. For I know of only one miracle of a man dying and coming back and well he( God) already gave me the rules of love and treat each of my children as you would treat me and do unto others as you would have them do unto you! That is all I got to know about that to know they are blowing smoke up my arse!

  8. Wayne M.
    August 26th, 2011 at 22:41 | #8

    Opponents of marriage equality want to define marriage as an exclusive religious institution, defined exclusively by the religious rights. Other points of view held by progressive people of faith are considered invalid.

    If this is so, then since the Constitution mandates freedom of religion and states that government may not mandate or interfere with the free exercise of religion, then marriage and granting legal privileges or rights for married couples is ultra vires the powers of any government. This means that no marriage, including opposite-sex marriage, has any legal status in civil law.

    Gallagher and her co-conspirators cannot have the state limit marriage rights at the same time they want an exclusive conservative religious definition for marriage.

  9. Scott Rose
    August 27th, 2011 at 02:24 | #9

    At a NOM-sponsored hate rally in the Bronx in May, a preacher yelled through a megaphone at a mob of gay-bashers that homosexuals are “worthy to death.” Maggot Gagginwhore has vowed that her attempts to repeal equality in New York will lead to a “bloody mess.” Satan’s Hippopotamus got David Barton of Wallbuilders so inspired to anti-gay violence that he immediately said on-air that the Republican Senators who voted for equality should have their bloodied scalps hung over the rail to serve as a warning to others. NOM spread anti-gay hate all over Iowa during the summer. The maliciously anti-gay Michele Bachmann signed NOM’s “pledge,” which promises to do violence to gay families. Last weekend in Bachmann’s hometown of Waterloo, Iowa, Marcellus Andrews, a 19-year-old gay male was beaten to death by anti-gay bigots yelling “Faggot!” at him. His blood is dripping off of Maggie Gallagher’s and Michele Bachmann’s fingers.

  10. SteveMD2
    August 28th, 2011 at 01:22 | #10

    lets not waste time with that whore defending marriage while she has not one but two illegitimate children.

    and re the sanctity of marriage biz we hear, we’ve been there before – During the battle to legalize inter-racial marriage the battle cry of the conservatives was to “protect the sanctity of the white race.

    BTW her church gave NOM, now listed as a hate group 2.3 million in NY.

    Everyone should go to

    http://www.nobeliefs.com/nazis.htm to see what her church is really about.

    And it has yet to excommunicate the worst murderer in history, Hitler. I think we now know why if you look at that website

    And also remeber that RATZInger was born and brought up in Nazi germany. which also threw the gays into the ovens with the Jews etc.

  11. SteveMD2
    August 28th, 2011 at 01:27 | #11

    A bishop in toledo told parishoners not to contribute to the Komen foundation, since it might support stem cell research.

    Research designed to find a solution to cancer, paralysis etc.

    taken to its logical conclusion, medical research should be shut down because stem cells might be used to save lives.

    Of course the church is all about saving lives –

    Try the website

    http://www.nobeliefs.com/nazis.htm to see how they did that during WWII

  12. August 28th, 2011 at 02:23 | #12

    John, *I* for one, would *love* to see Maggie face off with a few professional historians and anthropologists that have specialized in ancient history and marriage in particularly! I loathe how she insists on distorting and even re-writing the historical record.

  13. August 28th, 2011 at 14:14 | #13

    Another excellent column, John. I feel very weary regarding the marriage battle, too. 🙁 (“Will this never end?”)

    I can take several angles on this issue, but, after reading “more Maggie quotes,” the thing that most frustrates me is that this is so obviously a debating game for people like Ms. Gallagher. For them, it’s like trying to win the debate and earn a trophy…or somehow otherwise be seen as “the smartest kid in the class.” (We saw this also with Fehrnstrom’s obnoxious Tweet. It’s about “winning.”)

    But, for us, it’s about restitution for the negligence that caused a partner’s death (and helping to care for the deceased child), it’s about visiting a loved one in the hospital, it’s about the orderly transfer of property upon death, it’s about not having to pull our hair out and pay more for the privilege at tax time, it’s about creating an environment for our kids that’s fair and normalizing. It’s about our lives…life, birth, sickness, and death type stuff.

    Having constantly to debate their disrespectful and shifting talking points is exhausting. The only silver lining is in your correct observation that, increasingly, casual observers are sympathizing–sometimes deeply–with us. More people can relate to taking care of a loved one than they can relate to “winning the debate” (to maintain social support for their fears and prejudices).

    *sigh*

  14. August 28th, 2011 at 14:20 | #14

    That should have read “taking care of the deceased person’s child.”

  15. johnculhane
    August 28th, 2011 at 21:26 | #15

    Lots of great comments here, so I’ll just respond to a few. First, as tempting as it is to use our opponents’ (many) personal lapses against them, we should do so only to point out their hypocrisy, not as evidence that their arguments aren’t sound. (For that, we need our own, positive arguments — which, as Gerry Fisher notes, are abundant).
    I also agree with Wayne M., on this point: If our opponents have none but religious arguments against us, they lose. Because once the issue becomes religion, the necessary follow-up question becomes: Whose religion? And since religions are in disagreement on everything from same-sex marriages to polygamy, the state is ultimately forced into a “respect them all, or respect none of them” philosophy. What’s needed are proper, public arguments against marriage equality — and as the Prop 8 case dramatically showed, there just aren’t any compelling ones.

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