I wish I could agree with my IGF colleague David Link that Brown v. Board of Ed, not Roe v. Wade, should be the governing precedent in the California gay marriage lawsuit-which, to remind ouselves of the stakes, seeks to impose same-sex marriage nationwide by Supreme Court order.
Alas, I cannot.
There are issues of constitutional law which come into my thinking, but let's set those aside. The more basic point is this: Just as abortion raises a fundamental question about the definition of a human person, so gay marriage raises a fundamental question about the definition of marriage. Obviously, I believe that a same-sex union can and should be regarded as a true marriage-but that is the question before the Court. In order to conclude that the unavailability of SSM deprives gay couples of an equal right to marry, the Court must conclude that a same-sex marriage is a marriage.
In Brown, no one disputed that an integrated school was in fact a school. In Loving v. Virginia, the case which overturned bans on miscegenation, some people said an interracial marriage was unnatural or immoral, but in 1967 virtually no one said it wasn't in fact a marriage. In those instances, schools and marriage were being hijacked for the extrinsic purpose of white supremacy. It was precisely because segregationists knew that an integrated school was a school, and an interracial marriage was a marriage, and for that matter a black vote was a vote, that they were so determined to exclude blacks.
(Thought experiment: imagine suggesting to a white supremacist in 1955 that blacks and whites would go to school together, sit side by side, study the same things, be treated identically-except that what blacks were getting would be called "training" instead of "education." No segregationist would have accepted that deal.)
The California gay marriage case is different. Remember, California offered (and still offers) civil unions which are marriages in all but name. In the separate-but-equal South, the intention of segregationists was to hide the reality of discrimination behind a mask of equality. In California, the public's intention was more like the opposite: hiding the reality of equality behind a mask of discrimination. All that the people of California were asking to do was retain the traditional definition of the word "marriage." They gave us everything else.
Of course, I think the people of California were wrong. I think gay couples deserve to the designation "married" and that the arguments for denying it to them are weak. David and I agree on that.
Where we disagree is over the unwisdom, as I see it, of the Supreme Court's imposing what a majority of Americans will regard as a new definition of marriage. That could cause a backlash which I think David is too casual about when he says, in effect, "They'll get used to it." Our marriages could end up in the political crosshairs for a generation or more. To tell all of America's voters that they cannot pause to think for a while before changing the very meaning (for most of them) of marriage strikes me as judicial brinksmanship of a dangerous order.
The case thus puts me in an awful bind. I can't decide which would be worse for gay equality: winning or losing.
22 Comments for “What Brown Can’t Do for You”
posted by TS on
“Our marriages could end up in the political crosshairs for a generation or more. To tell all of America’s voters that they cannot pause to think for a while before changing the very meaning (for most of them) of marriage strikes me as judicial brinksmanship of a dangerous order.”
“The case thus puts me in an awful bind. I can’t decide which would be worse for gay equality: winning or losing.”
Agreed.
posted by daftpunkydavid on
but are we sure that their decision would be imposed to the whole country? I am not so sure.
If the decision is narrow enough, and only relevant to the californian situation, then the ruling would only apply to california.
if they rule that 52% of californians, by voting to strip away rights that their constitution had granted them, violated the federal due process and/or the equal protection clauses, and that their votes cannot be explained by anything other than bias against homosexuals, then the scotus decision could be construed to only apply to california.
i’ve read a few of the marriage decisions; in hernandez (the new york case), some in the majority opinion clearly suggested that, had the laws governing family relations been written with the intention to disproportionately harm homosexuals, their ruling might have been different. and in a few decisions (romer, i believe) the scotus clearly looked down on bias as a valid enough reason to pass laws that target a subgroup.
in no other state have voters stripped away their fellow americans’ rights after their state constitution was interpreted to give gays and lesbians the same footing in marriage matters. and in those states where amendments occurred, the voters clearly did that so as to prevent such an interpretation of their state constitution to happen.
of course a challenge to these latter state amendments on federal grounds could also rest on the bias driving the amendment, and thus, could look like what is happening in california. except that in california, the evidence, as hard as it is to produce, is there. and the different and unequal classes of californians that prop 8 has produced, are glaring exhibits of the inequality that tarnishes the california republic in marriage rights.
posted by Amicus on
After having spent a 12 days close to that same bind, I have to say that I’ve closed my eyes, crossed my fingers, and said, “Let it be ‘yes'”.
I’d rather defend against a backlash than whatever it is that we are doing now, which on most days seems pretty hopeless.
It might even be possible to enlist the support of some who were previously reluctant, who might say, “Now that this is reality, we have to make sure it is implemented in the best way possible for everyone.” It certainly will give them a sense of urgency, which they lack now.
Also, unlike abortion, there are not 1.2 million annual “murders” to energize those who fight that balance of liberties, still.
We have some experience from other countries that homophobia, especially hate crime, did not intensify; but some that ongoing ‘debate’ does intensify it. 40 years in the wilderness doesn’t look obviously salutary, purifying.
An ongoing debate period really is not doing our politics any good. One side of the debate has basically gone silent. The question is being used abjectly as a wedge issue and a bogus ‘purity’ test. It would be GREAT if that were cut short.
Losing a prerogative to say-so can’t possibly energize those whose hearts are closed to us more than the astounding display of cooperation that was put together for a fear and manipulation campaign such as Prop 8. It seems that we will always have those who will fight ‘the scourge of homosexual marriage’, under any schema of positive change.
It some ways, the “definition of marriage” is the hardest and the easiest to decide. Itâs partly a cul-de-sac set up by misapplication of natural law. That’s easy. The hard part is how people feel about their kids, which makes even nongay married people discriminate among themselves, often in untoward ways.
posted by Jerry on
Much as I would like to see the case overturn this lousy initiative, I think a win if it is confirmed at the appellate level will be overturned by SCOTUS. If a win is overturned at the appellate level SCOTUS won’t hear it. The best thing we could get from this case is access to any video that might exist from the trial. Publication of the tapes would be more effective at changing opinions.
posted by Coxygru on
To resolve the quandry you find yourself in, perhaps it would help if you could define what form the backlash might take? Stated as such, it is as vague as the threat of the boogieman or monsters crawling out under the bed when the light’s off.
posted by Paulijiji on
Here in Massachusetts we have had almost five years of marriage equality. There has been backlash, but it has been fruitless and ineffectual. While the ‘phobes rant about the destruction of society, the indoctrination of children and the affront to religious freedom, they have nothing to prove their point. There has been no negative consequences to anyone as a result of marriage equality. At first the haters said the sky would fall. When that didn’t happen, they said that the children would be damaged, maybe not now, but someday. That hasn’t happened yet. And within another twenty years, there will be the first generation of children raised in legally married same sex households who will graduate from college and go on to lead perfectly normal lives. They will be our ambassadors to the world. We are almost a quarter of the way there already!
The ‘phobes are powerless to change minds and hearts, but we are not. We have the truth on our side, and now that we are free to live truly equally in marriage, the rest of our society who oppose marriage equality are getting really tired and worn out pretending that the sky is falling, when it looks pretty and blue. They really look like the nutbags they are! Divorce rates are amongst the lowest in the nation here, and there isn’t a single example of any church being silenced or censored, or being forced to perform a same sex marriage against their will.
Obviously those who have deep-seated religious objections to homosexuality will never be convinced by evidence, albeit in their own back yards, but those are not the people we need to convince. The moderates, who form the majority of Americans everywhere, are not immune to the truth they see all around them every day.
If the Supreme Court rules against us, then we are facing a larger obstacle than before. But if they rule with us, then the healing can begin, and it will.
The longer marriage equality rules, the harder it is for the opposition to effect the sort of hysteria and malignant fear which are their only weapons. Common experience will work against them. They will be swimming against the tide, instead of us, for a change. And whatever means they decide to employ to turn back the clock, they will have to spend a number of years to effect it. And during those years, gay people will be getting married, and their neighbors and families will bear witness to that, and carry their impressions out into the wider world. No longer will we be invisible. We won’t be getting civil unions certificates at the same window where they sell dog licenses at city hall. We’ll be hiring caterers and florists and wedding bands and sending out announcements to the world! Love often wins over hate!
posted by DragonScorpion on
Interesting “thought experiment”. Perhaps you can explain then, Mr. Rauch, why it is that the same forces who oppose same-sex marriage, are also working against domestic partnerships and civil unions in other states? Like the recent “everything but marriage in Washington”, which was strongly opposed by NOM?
If this is truly the same-sex marriage advocates vs. the settle-for-civil-unions crowd, then why are so many of those in that supposed camp working to keep same-sex domestic partnerships and civil unions from being passed? It seems to me the only reason some of these alternatives to marriage are in place is because A) they passed before groups like NOM got organized enough, B) they just didn’t have the clout in those states to keep it from being passed. But it wasn’t from a lack of trying.
I would also ask, if these groups aren’t seeking to deny the very concept of same-sex unions being recognized at all, why are these groups so adamantly supportive of DOMA, when DOMA doesn’t just keep same-sex marriage from being recognized in states that haven’t passed it, it also keeps ANY same-sex union from being recognized as a legal equivalent and conferring equivalent benefits?
I would suggest you consider, Mr. Rauch, that in the state of California there are same-sex domestic partnerships, and there are couples who were legally married (and still are) and there are couples who seek to get married in the state but cannot. A legal quandary that you seem to be overlooking. In fact, it was this unique circumstance that led Ted Olson and David Boies to try the case in California in particular.
Aren’t those who seek to deny marriage to same-sex couples today arguing that same-sex marriage is “unnatural and immoral”? Aren’t they proclaiming that marriage should only apply to opposite-sex couples for the purpose of heterosexual supremacy?
I have racist relatives, Mr. Rauch, who do not accept interracial marriages. They realize that legally, interracial couples are married. They still don’t accept this. They think it’s wrong. Shouldn’t be legal. Shouldn’t be recognized. Fortunately, they can’t do anything to stop it.
Now upon encountering a legally married same-sex couple, they would no doubt feel this is unnatural as well. But they, too, would most likely realize that those people are legally married, whether they like it or not. So I’m having difficulty understanding your distinction here…
Frankly, you seem to have bought into the argument that applying the civil contract of legal “marriage” to same-sex couples would be to redefine marriage, whereas overturning anti-miscegenation laws wasn’t a redefinition at all. Why, because it was legal in some states at the time?
I’d also be curious to know, Mr. Rauch, just what you really thought of the Loving v. Virginia ruling? Was it an “activist court”, or was it the highest judicial body rendering an unconstitutional law unconstitutional? And if so, why? And if so, why not in our case?
And if you could also answer, after that decision was rendered, how do you think it should have been handled if voters would have passed a constitutional amendment establishing marriage only between people legally classified as the same race?
Lastly, you suggest that perhaps those in the heterosexual community just need to pause for a while. Think it over. How long, I wonder… You are aware, Mr. Rauch, that over 30 states have passed constitutional amendments banning the recognition of same-sex marriage and more are going to attempt the same? So as we wait, are we not ensuring that the legal framework against us will not be made more solid? And again, would you have applied this call to patience for anti-miscegenation, considering that 72% of the population did not approve of interracial marriage at the time?
I don’t know what it is really that you suggest here, Mr. Rauch, but it seems to me this needs to be decided in favor of justice and equality, and it needs to be applied at the federal level. Ultimately, we have no other recourse than for SCOTUS to rule in our favor. Minus this, same-sex marriage is going to remain limited to a few states for a generation or two to come. And there is a very, very good chance that we’ll lose some of the 5 we currently have in the next several years.
posted by Lymis on
It’s very facile to claim that there is some justification in claiming that same-sex marriage is a new definition of marriage. When you cherry-pick the terms you use, that gets easy, like the ever popular “it has always been one man and one woman.”
But I have yet to hear ANYONE explain any difference that means anything other than pure prejudice between a same-sex couple and an opposite sex couple where the woman has had a hysterectomy and the man a vasectomy. (or for that matter, where either one is true).
There certainly were people who felt just as strongly that an interracial marriage wasn’t a real marriage. You can hardly claim people were running about saying “It is an abomination before God, a threat to the very fabric of our society, and intolerable by decent people, but at least it’s a real marriage.”
For that matter, there were plenty of people who felt just as strongly that a second marriage with the first spouse still alive wasn’t a real marriage, because IT was forbidden by God.
posted by Debrah on
“In order to conclude that the unavailability of SSM deprives gay couples of an equal right to marry, the Court must conclude that a same-sex marriage is a marriage.”
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Thank you, Jonathan Rauch, for providing an intelligent, rational, and dispassionate analysis of this issue.
Those of us who support civil unions and simply do not view a couple of the same sex as actually approaching anything that exemplifies the definition of “marriage”, need to see that there are analyses such as this one coming from the gay community.
Someone is really home, after all!
For many, this sticking points are not “religion” or wishing to “save marriage for heterosexual couples”, or anything other than the fact that they view this as a ridiculous quest.
Particularly offensive is the attempted use of race and ethnicity as analogies and feeble strategies to conjure sympathy by aligning with REAL historical discrimination.
Discrimination that could not be ameliorated by going in and out of a closet.
Sexual expression screaming for a “civil rights movement”?
“But I have yet to hear ANYONE explain any difference that means anything other than pure prejudice between a same-sex couple and an opposite sex couple where the woman has had a hysterectomy and the man a vasectomy.”
*********************************
Time out for a cappuccino spit-take.
LOL!!!
Some of you guys will stoop to any comical analogy.
If I were gay, I certainly would not spend my life begging society to recognize something that can never be twisted into something it is not.
But, obviously, this quest gives many their built-in identity of “specialness”.
That way you never have to live your lives without blaming the world for your own shortcomings and personal issues.
Tiresome beyond mention.
posted by Amicus on
Debrah,
I hope I speak for others when I thank you for continuing to label your posts clearly. It makes it easier to skip over them.
-:)
sorry, to the board moderators, but I’m just in a really pissy mood today.
posted by Debrah on
Amicus–
While it’s always dangerous to “speak for others”…..or even hope to…….
…….I am gratified that you “skip over” that with which you disagree.
That way everyone knows that you possess a rather enviable talent.
The ability to know what is contained inside a comment……even as you “skip over” it.
Kudos!
posted by North Dallas Thirty on
Actually, the details are coming out about gay-sex marriages.
New research at San Francisco State University reveals just how common open relationships are among gay men and lesbians in the Bay Area. The Gay Couples Study has followed 556 male couples for three years â about 50 percent of those surveyed have sex outside their relationships, with the knowledge and approval of their partners.
That consent is key. âWith straight people, itâs called affairs or cheating,â said Colleen Hoff, the studyâs principal investigator, âbut with gay people it does not have such negative connotations.â
And of course, this is the most interesting part.
None of this is news in the gay community, but few will speak publicly about it. Of the dozen people in open relationships contacted for this column, no one would agree to use his or her full name, citing privacy concerns. They also worried that discussing the subject could undermine the legal fight for same-sex marriage.
And of course, the gay-sex marriage supporters, rather than confront this radical redefinition of marriage, try to argue that all marriages should be this way.
That transparency can make relationships stronger, said Joe Quirk, author of the best-selling relationship book âItâs Not You, Itâs Biology.â
âThe combination of freedom and mutual understanding can foster a unique level of trust,â Mr. Quirk, of Oakland, said.
âThe traditional American marriage is in crisis, and we need insight,â he said, citing the fresh perspective gay couples bring to matrimony. âIf innovation in marriage is going to occur, it will be spearheaded by homosexual marriages.â
So really, the facts are this: gay and lesbian couples have no intention of remaining monogamous, consider the value of marriage to be outdated, and in fact insist that marriage be radically redefined because it doesn’t fit the values of the gay and lesbian community.
posted by North Dallas Thirty on
Whoops, link for above.
posted by daftpunkydavid on
@ north dallas thirty
so let me get this straight… you’re comparing gay guys in the sf bay area, whose marriage status (and age) we don’t know, to heterosexual, married couples the nation over?
posted by Tom on
Rauch: “Where we disagree is over the unwisdom, as I see it, of the Supreme Court’s imposing what a majority of Americans will regard as a new definition of marriage. That could cause a backlash which I think David is too casual about when he says, in effect, “They’ll get used to it.” Our marriages could end up in the political crosshairs for a generation or more. To tell all of America’s voters that they cannot pause to think for a while before changing the very meaning (for most of them) of marriage strikes me as judicial brinksmanship of a dangerous order.”
I’m don’t think that the backlash will be as great as you think – witness Iowa, which is hardly a hotbed of liberalism — but I’m sure that there will be backlash, and it may well get ugly for some of us who marry and live in conservative, rural areas.
But we’ve experienced backlash on every single advance over the years. Gays and lesbians outside the urban centers have been “in the crosshairs for a generation or more” already. We’re used to it and we’ll survive.
I would prefer, as I’ve said in other threads, the narrowest possible decision, confining the ruling to California — both on legal and political grounds — but if a broader decision is what is in store, so be it.
In any event, civil unions are not the answer, notwithstanding your change of view between 2008 and
2009.
posted by Bobby on
“New research at San Francisco State University reveals just how common open relationships are among gay men and lesbians in the Bay Area. The Gay Couples Study has followed 556 male couples for three years â about 50 percent of those surveyed have sex outside their relationships, with the knowledge and approval of their partners.”
—That’s because gay men are more honest about sex. I read the sex column by Dan Savage, it shocks me to see how many letters have to do with “I want to do this but I’m afraid of telling my wife/husband.”
I know two married straight men, one had sex with a hooker in Las Vegas, the other says he would cheat only if he could get away with it. Isn’t it better that gay couples are able to negotiate these things?
According to this story, there’s a website that helps you commit adultery without getting caught.
“I love my wife,” the L.A. musician said. “I just have always been a bad boy,” he said.
He cheats, he says, because he loves the excitement of new women. Even before his wife, Alec was unfaithful to many previous girlfriends. As a musician, he found opportunities to cheat much more easily in his younger years. As he got older, he still desired other women, but found it harder to snag one.
Thatâs when he discovered AshleyMadison.com.
Now he claims he cheats on his wife with around 8 to 10 different women a year. He doubts she has any idea.
Read more if you’d like: http://www.nydailynews.com/money/2009/01/31/2009-01-31_cheating_goes_mainstream_web_site_helps_-11.html#ixzz0eJARoUH7
Besides, same-sex marriage or any marriage doesn’t necessarily have to be about monogamy, it has to do with love and financial benefits.
http://www.nydailynews.com/money/2009/01/31/2009-01-31_cheating_goes_mainstream_web_site_helps_-11.html
The last thing we need is to embrace the heterosexual hypocrisy of saying that sex outside marriage is bad unless you don’t get caught.
posted by BobN on
I get so tired of this.
California Domestic Partnerships are NOT the same as California marriages. Rauch knows it, yet, for some reason, he perpetuates the anti-gay argument that civil unions are the same as marriage. Is it so hard to use the accurate “almost the same” or “virtually the same”?
As to the backlash and the Roe v. Wade backlash, I think Rauch is overlooking one very significant difference. WE ARE EVERYWHERE. Of course, women who have had — and men who have caused — abortions litter the GOP, “conservative” America, and the anti-abortion movement. But they, by personal choice, almost all remain in the closet about it.
That won’t be the case with same-sex couples. Marriage is a public act. It is publicly disclosed on a fairly regular basis. Look at the UK. The anti-marriage forces have dwindled to a core group of religious fundamentalists that most people want nothing to do with. The only reason anti-gay forces in the U.S., including Massachusetts and other states with marriage or strong CUs, still keep going is because of the national issue. Their funding will dry up, and you can’t stage much of a backlash without cash.
posted by BobN on
So really, the facts are this: gay and lesbian couples have no intention of remaining monogamous, consider the value of marriage to be outdated, and in fact insist that marriage be radically redefined because it doesn’t fit the values of the gay and lesbian community.
So, in other words, we’ll be like the French…
posted by Debrah on
“In any event, civil unions are not the answer, notwithstanding your change of view between 2008 and 2009.”
*******************************************
Tom–
As with the DADT issue, I would not work against SSM. Nor do I know anyone who would.
It’s simply an issue of superfluousness for many.
And the PBS poll to which Rauch’s 2009 article alludes is suspect, as are most polls.
I wouldn’t trust a PBS poll any more than I would trust the candor of white evangelical youth when in the throes of scrutiny on issues which go against the visceral mechanisms of their beliefs….as they try to appear “compassionate”.
Perhaps Rauch has taken a bit of a detour from the 2008 offering toward the one in 2009 simply because he’s a pragmatic man.
It’s made clear to me every time I read commentary on this issue that much of what the gay community is after is symbolism rather than the substantive benefits which federal civil unions provide.
This is where the nastiness surfaces and the true colors emerge.
When “respectable” middle-age gay men can gleefully go after a two-digit IQ woman half their age (Carrie Prejean) for voicing a different opinion……
…….and at the same time align themselves with someone like Perez Hilton, it provides the real story behind the whines and moans and the refrain– “rights for gay and lesbian citizens”.
Ponder this factual scenario for a moment:
Prejean is a 20-something inarticulate “bubblehead” who would have been, at most, a few days worth of press and then would have evaporated….if not for the gay community and gay blogs going after her like frothing wolves.
But many middle-age gay men—who obviously spend an inordinate amount of time on the internet exercising the muscles of their right hands—sign up and subscribe to videos from another 20-something, heterosexual Scott Herman, an inarticulate bubbleheaded body builder, simply because he has a d!ck and is afraid he’ll alienate some of his business if he doesn’t say glowing things about all the gay men who post sexual comments to him.
It’s hilarious disconnect and hypocrisy.
Scott Herman is obviously a very nice man without many brains and even less talent beyond lifting weights. If he were living below the Mason-Dixon Line, he’d be called a “redneck”. On one of his videos, he and his brother were outside his home in New Hampshire, I believe, and there were old junk cars in the yard which had stopped running—the epitome of the “redneck” and “trailer park” stereotype that we all know so well.
But the same people—gay men—who would normally ridicule such a person give a pass, even though there are obvious elements he has in common with the Carrie Prejeans of the world.
This guy has to be a few steps below Prejean on the evolution ladder, but he’s praised and ogled by the same gay jack-offs who pummeled her.
Herman and Prejean are both 20-somethings who try to pump up their bodies to make some bucks.
LOL!
Both rather uneducated and dumb.
But one is pummeled mercilessly, and the other is used for masturbation exercises……under the guise of learning something about body building.
As a side note, this Scott Herman is a short, stocky little man whose head is twice the size it should be. With time, he will be like most former football players–bulky and fat.
But for now, he’s a dumb “poster girl” for gay men.
Pity that gay men could not offer such gracious largesse toward “dumb and uneducated” Prejean as they do for someone like the New England redneck Herman.
This is but one reason many don’t take some of you guys very seriously on the “marriage” issues. Many of the tactics used are quite nasty.
It’s mostly about sex and being able to define it any way you wish.
posted by DragonScorpion on
Factually incorrect. The FACT is, the gay & lesbian community is NOT a monolith.
Yet another lie, I am an unequivocal supporter of same-sex marriage yet I do not support a radical redefinition of it. I believe same-sex marriage inherently is and should be the same in concept to opposite-sex marriage. The only thing I want changed, is laws that prevent same-sex couples from legally entering into marriage. Just as prohibitions of interracial marriage were overturned nationally in 1967.
Furthermore, I believe that while marriage is often not taken very seriously and is entered into far too lightly (ex. countless heterosexual couples whose marriages have been a farce, ending in no-fault divorce), it should be valued as a sacred commitment.
While legally there is nothing to stop them, those who aren’t capable of this shouldn’t choose marriage. Nor should they be encouraged to choose marriage, either. This goes for same-sex and opposite-sex couples alike.
As far as I’m concerned, if monogamy isn’t for you, then neither is marriage.
So, yet again, ND30’s insultingly gross mischaracterizations of homosexuals are shown for what they are, homophobic propaganda, with little resemblance to reality.
posted by DragonScorpion on
Is an agreement a better alternative to cheating? Yes, I certainly think so. Is monogamy a better solution than an open marriage? Yes, I certainly think so. And while my partner and I are not married, we are exclusively monogamous. We wouldn’t want or allow it to be any other way.
I do not embrace the notion that casual sex is just biology, so we should just roll with it. I personally don’t find it very difficult at all to limit romantic/physical intimacy to only one person.
Here is a good op-ed written by David Brooks several years ago. Note that Mr. Brooks also makes the conservative case for marriage.
posted by Debrah on
“Mr. Brooks also makes the conservative case for marriage.”
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If you look like David Brooks you can make any case you wish for “marriage” and it still won’t get you anywhere.
Ha!
He is an able writer, however.