IGF CultureWatch

The American people may still be split 50-50 on gay marriage, but they would overwhelmingly reject columnist Cal Thomas's reactionary vision for society, which would take American life back before adults could make their own decisions about sex and require judges of the United States to obey "biblical commands." (Link to post at Cato@Liberty)

This article appeared on Examiner.com on October 30, 2006.

There's never been a same-sex marriage in Virginia, and they've been outlawed by statute for more than 30 years. So why are Virginia voters being asked to vote on a constitutional amendment to ban gay marriage?

Mostly because it's a bait-and-switch game. The proposed Ballot Question No. 1 is far broader than a simple ban on gay marriage.

Supporters say the amendment is needed in order to prevent activist judges from unilaterally changing the definition of marriage. But no liberal activists have yet been sighted in the Virginia judiciary. And that's no surprise because judges in Virginia are selected by the same legislature that has repeatedly passed bans on gay marriage, civil unions and domestic partnerships, including this proposed amendment.

In fact, Virginia is one of only two states where the legislature directly appoints judges to the state courts, including the state Supreme Court. It is inconceivable that Virginia judges, including four members of the Supreme Court, are going to impose gay marriage on the state. Virginia is not Massachusetts nor Vermont or New Jersey, and our judges are certainly more conservative than those in New York, where the high court recently upheld the state's ban on gay marriage.

The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law. Take a look at the actual text of what journalists are inaccurately calling "the proposed ban on gay marriage."

The first sentence of the amendment reads:

"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions."

That sentence is what amendment supporters want you to read. But read the rest of it:

"This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." [emphasis added]

Note the italicized words. The use of the word "or" makes this a very broad law.

Supporters of the amendment rely on the assurance of Virginia Attorney General Robert McDonnell that passage "will not affect the current legal rights of unmarried persons."

But lawyers disagree. The firm of Arnold and Porter issued a 71-page analysis of the amendment coming to starkly different conclusions. Their lawyers concluded that the amendment could be interpreted by Virginia courts to invalidate rights and protections currently provided to unmarried couples under domestic violence laws, block private companies from providing employee benefits to domestic partners, and prevent the courts from enforcing child custody and visitation rights, as well as end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: "This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state."

We should not pass constitutional amendments whose effects are so uncertain. A simple ban on gay marriage would be redundant, but it would have the virtue of clarity for the courts. The actual amendment invites judges to review every private contract, every employee benefit, every legal arrangement between unmarried partners.

That should be anathema to opponents of judicial activism. It should also be a frightening prospect to Virginia businesspeople. A growing number of companies are offering benefits to the domestic partners of gay employees, and they will want to locate in states where those benefits are clearly legal.

This amendment goes too far. But even its first sentence - the ban on gay marriage - is unworthy of a state that was the birthplace of American freedom. It is a cruel irony that this amendment to restrict contract rights and exclude loving couples from the institution of marriage is to be added to Virginia's Bill of Rights, a document originally written by the great Founder George Mason.

Mason's eloquent words inspired Thomas Jefferson in writing the Declaration of Independence and James Madison in writing the Bill of Rights for the U.S. Constitution. We should not add language to Virginia's Bill of Rights that would limit rights rather than expand them.

Gay marriage is not legal in Virginia, and there's no prospect of changing that in the foreseeable future, whether by legislative or judicial action. Ballot Question No. 1 is unnecessary and will create legal uncertainty.

David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer.

IN THE DEBATE over whether to legalize gay marriage, both sides are missing the point. Why should the government be in the business of decreeing who can and cannot be married? Proponents of gay marriage see it as a civil-rights issue. Opponents see it as another example of minority "rights" being imposed on the majority culture. But why should anyone have - or need to have - state sanction for a private relationship? As governments around the world contemplate the privatization of everything from electricity to Social Security, why not privatize that most personal and intimate of institutions, marriage?

"Privatizing" marriage can mean two slightly different things. One is to take the state completely out of it. If couples want to cement their relationship with a ceremony or ritual, they are free to do so. Religious institutions are free to sanction such relationships under any rules they choose. A second meaning of "privatizing" marriage is to treat it like any other contract: The state may be called upon to enforce it, but the parties define the terms. When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties.

And privatizing marriage would, incidentally, solve the gay-marriage problem. It would put gay relationships on the same footing as straight ones, without implying official government sanction. No one's private life would have official government sanction - which is how it should be.

Andrew Sullivan, one of the leading advocates of gay marriage, writes, "Marriage is a formal, public institution that only the government can grant." But the history of marriage and the state is more complicated than modern debaters imagine, as one of its scholars, Lawrence Stone, writes: "In the early Middle Ages all that marriage implied in the eyes of the laity seems to have been a private contract between two families. ... For those without property, it was a private contract between two individuals, enforced by the community sense of what was right." By the 16th century the formally witnessed contract, called the "spousals," was usually followed by the proclamation of the banns three times in church, but the spousals itself was a legally binding contract.

Legal Regulation of Marriage

Only with the Earl of Hardwicke's Marriage Act of 1754 did marriage in England come to be regulated by law. In the New England colonies, marriages were performed by justices of the peace or other magistrates from the beginning. But even then common-law unions were valid.

In the 20th century, however, government has intruded upon the marriage contract, among many others. Each state has tended to promulgate a standard, one-size-fits-all formula. Then, in the past generation, legislatures and courts have started unilaterally changing the terms of the marriage contract. Between 1969 and 1985 all the states provided for no-fault divorce. The new arrangements applied not just to couples embarking on matrimony but also to couples who had married under an earlier set of rules. Many people felt a sense of liberation; the changes allowed them to get out of unpleasant marriages without the often contrived allegations of fault previously required for divorce. But some people were hurt by the new rules, especially women who had understood marriage as a partnership in which one partner would earn money and the other would forsake a career in order to specialize in homemaking.

Privatization of religion - better known as the separation of church and state - was our founders' prescription for avoiding Europe's religious wars. Americans may think each other headed for hell, but we keep our religious views at the level of private proselytizing and don't fight to impose one religion by force of law. Other social conflicts can likewise be depoliticized and somewhat defused if we keep them out of the realm of government. If all arts funding were private (as 99 percent of it already is), for instance, we wouldn't have members of Congress debating Robert Mapplethorpe's photographs or the film The Watermelon Woman.

Privatizing Marriage

So why not privatize marriage? Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Wal-Mart could sell books of marriage forms next to the standard rental forms. Couples would then be spared the surprise discovery that outsiders had changed their contract without warning. Individual churches, synagogues, and temples could make their own rules about which marriages they would bless.

And what of gay marriage? Privatization of the institution would allow gay people to marry the way other people do: individually, privately, contractually, with whatever ceremony they might choose in the presence of family, friends, or God. Gay people are already holding such ceremonies, of course, but their contracts are not always recognized by the courts and do not qualify them for the 1049 federal laws that the General Accounting Office says recognize marital status. Under a privatized system of marriage, courts and government agencies would recognize any couple's contract - or, better yet, eliminate whatever government-created distinction turned on whether a person was married or not.

Marriage is an important institution. The modern mistake is to think that important things must be planned, sponsored, reviewed, or licensed by the government. The two sides in the debate over gay marriage share an assumption that is essentially collectivist. Instead of accepting either view, let's get the government out of marriage and allow individuals to make their own marriage contracts, as befits a secular, individualist republic at the dawn of the information age.

NEW YORK'S NEW GOVERNOR, George Pataki, plans to reverse Mario Cuomo's policy of granting health benefits to the domestic partners of all unmarried state employees. Mr. Pataki is part of a rising political tide that includes Gov. Pete Wilson of California, who said in vetoing his state's domestic partnership bill that "government policy ought not to discount marriage by offering a substitute relationship that demands much less." That's legitimate, but it overlooks that there are two kinds of domestic partnerships -- heterosexual and same-sex. Although the most vocal opposition to domestic partnerships is aimed at gay couples, giving them benefits doesn't undermine marriage. Rather, it remedies the injustice that homosexuals can't marry the people with whom they share their lives, and it creates financial incentives for stable relationships. Is this not the goal we seek in encouraging marriage?

Giving domestic partnership benefits to unmarried heterosexual couples, on the other hand, does undermine marriage. They give people who can marry all the financial benefits of a legal union without demanding commitment. "If two heterosexuals are going to shack up together, then they ought to get married," said the Rev. Charles Bullock, who fought successfully to overturn a partnership law in Austin. "If they're not going to make that commitment to each other, why should the city?"

Although the voters' shift to the right in 1994 has imperiled domestic partnership laws, the trend toward giving benefits remains strong in the workplace -- most recently at Microsoft, Time Inc., and Capital Cities/ABC. Even Coors, perhaps America's most famously conservative company, is studying the issue.

But many politicians, upset by rising illegitimacy and divorce rates, say that such policies fly in the face of concern about family stability. As Senator Trent Lott, Republican of Mississippi, said in seeking to overturn the District of Columbia's domestic partnership law, "We must begin to take a stand for the family." Gay leaders haven't helped themselves in this debate. They invariably urge that heterosexual couples be included in legislation and corporate policies. Many have even denounced the traditional family as a stifling, patriarchal institution, thereby fueling a middle-class backlash.

Gay leaders would be better off making a pro-family case, playing up their commitment to their partners and their desire for a legal union. This argument has found sympathy in the private sector. In 1992 Stanford University extended benefits to domestic partners of homosexuals (but not heterosexuals) because "their commitment to the partnership is analogous to that involved in contemporary marriage," said Barbara Butterfield, a university vice president.

Governments invariably get this wrong, while businesses usually get it right. Every city that has adopted domestic partnership laws has included both same-sex and heterosexual couples, and in almost every case more heterosexuals than homosexuals have filed for partnership status.

But many private organizations-including Stanford, Montefiore Medical Center, Lotus Development Corporation and the Public Broadcasting Service -- have extended benefits only to same-sex couples. Most of these companies have said that if homosexual couples are allowed to legally marry, these policies would be ended -- which is as it should be.

"This policy discriminates against heterosexuals who choose not to marry," an embittered heterosexual employee at Lotus said. Exactly. And that's a point that Governor Pataki and sensible gay activists ought to be able to agree on: commitment should be encouraged, while relationships without commitment should not expect social recognition or financial benefits.

First appeared September 10, 1994, in the New York Times.

AS CONSERVATIVES GEAR UP for the fall elections, many are pinning their hopes on attacking gay rights. Self-styled "pro-family" groups, seeking to build on the success of five local and state anti-gay initiatives in 1993, have been working to get similar measures on the November ballots in several states.

These organizations are correct in saying that America faces some real social problems, and that many can be attributed to the deterioration of families. What is upsetting, however, is the extent to which they focus on gay issues almost to the exclusion of the real problems.

Children need two parents, for financial and emotional reasons. Children in fatherless homes are five times as likely to be poor as those in two-parent families. Single mothers also find it difficult to control teenage boys, and such boys have made our inner cities a crime-ridden nightmare. Conservatives have taken note of this problem, and many of them have correctly indicted the welfare state. But with a few exceptions - notably Dan Quayle - they seldom put a high enough priority on condemning single parenthood.

And they pay almost no attention to the effects of divorce; every year more children experience divorce or separation than are born out of wedlock. These children are nearly twice as likely as those from intact families to drop out of high school or to receive psychological help.

Conservatives overlook this because they are too busy attacking gay men and lesbians. Consider the leading conservative journals. The American Spectator has run ten articles on homosexuality in the past three years, compared with two on parenthood, one on teen-age pregnancy, and none on divorce. National Review has printed thirty-two articles on homosexuality, five on fatherhood and parenting, three on teenage pregnancy, and just one on divorce.

The Family Research Council, the leading "family values" group, is similarly obsessed. In the most recent index of its publications, the two categories with the most listings are "Homosexual" and "Homosexuals in the Military" - a total of thirty-four items (plus four on AIDS). The organization has shown some interest in parenthood - nine items on family structure, thirteen on fatherhood, and six on teen pregnancy - yet there are more items on homosexuality than on all of those issues combined. There was no listing for divorce. (Would it be unfair to point out that there are two items on "Parents' Rights" and none on "Parents' Responsibilities"?)

As for the Christian Coalition, despite Executive Director Ralph Reed's vow not to "concentrate disproportionately on abortion and homosexuality," its current Religious Rights Watch newsletter contains six items, three of them on gay issues. The July issue of the American Family Association's newsletter, Christians & Society Today, contains nine articles, five of them on homosexuality.

Cobb County, Ga., a major battleground in the conservatives' culture war, is a microcosm of this distorted focus. In 1993 the county commission passed a resolution declaring "gay lifestyles" incompatible with community standards. Cobb County is a suburb of Atlanta; its residents, eighty-eight percent white, are richer and better educated than the national average. Yet it had a twenty percent illegitimacy rate in 1993, and there were two thirds as many divorces as marriages. Surely the 1,545 unwed mothers and the 2,739 divorcing couples created more social problems in the county than the 300 gay men and women who showed up at a picnic to protest the county commission's assault on their rights.

When teen-age girls wear sexually explicit T-shirts, when teenage boys form gangs to tally their sexual conquests, when eighth graders watch twice as much television as their European counterparts, when ten-year-olds on bicycles dart in front of my car at 1 A.M., when students take guns to class, where are the "family values" conservatives, and why aren't they calling on parents to take their responsibilities more seriously!

Perhaps they fear that making an issue of divorce would alienate middle-class supporters-including divorced conservatives. Perhaps they fear that putting welfare at the top of their agenda would seem racist, or worry that calling for parental responsibility would be a hard sell politically. They may be right, but thats no excuse for ducking crucial family issues. Their scapegoating of gay men and lesbians may get them some votes and contributions, but it's not going to solve any of American families' real problems.