IGF CultureWatch

The website WorldNetDaily has discovered that Merriam-Webster has changed the definition of the word "marriage" to include same-sex couples. They've posted a mournful video at the site, ending with a warning for people to "WAKE UP!"

WND is a little late to the party, since this change took place in 2003 - and followed by three years a similar change by Houghton-Mifflin in 2000.

But better late than never.

This is obviously a crushing event for the Christianists. As the culture has been changing on gay marriage, their only refuge in the civil society was the dictionary. Their own religious arguments are persuasive to them, but citations to the Book of Hebrews or Matthew (included in a 1913 dictionary definition) don't go a long way to persuade the non-religious - or even many American religious believers. The most recent Field Poll in California found that 31% of Protestants, 45% of Catholics and 63% of believers in some other religion support full marriage rights for same-sex couples. That's why the Prop. 8 proponents relied so heavily on appeals to the "definition of marriage," and "the meaning of marriage" in their ballot arguments. Definitions are - well, they're defined. We know what they are - just go to the dictionary. They're not just citing their Bibles, they've got another big book on their side as well.

The problem is that dictionaries are not static. Language follows the culture, and words are as dynamic as the populations who use them.
More important, the meaning of words as they are actually used is not subject to popular votes - it is subject to actual usage.

Neither of these dictionary definitions overrides the most common meaning of "marriage" as the union of a man and a woman. That would be absurd, and it would be counter to common sense. But it is equally absurd for a dictionary to blind itself to an emerging, and well-understood change that is happening in the culture. Even those who oppose same-sex marriage cannot deny what it is they are fighting over: marriage between two people of the same sex.

As the right has been fighting over the legal definition of marriage, they have been giving greater prominence to the alternate understanding that so many people are now adopting. Under the revised rules of equality the right is demanding, gays must fight for a majority to achieve marital equality - and we're only inches away. But dictionary definitions don't need majorities. If a significant number of people are, in fact, using a word with a new meaning, they have an obligation to include that meaning on the list of other meanings the word has.

Despite the harrowing cries of the right, that is all gays are asking - not to displace the heterosexual understanding of marriage, but to be included in it as we are: people whose sexual orientation is not heterosexual. And by the very fact of fighting this battle, our opponents made sure we'd get into the dictionary.

Thanks.

The Long Beach Press Telegram reports that the closet is still alive.

OK, that's not the headline, but clearly, as Mickey Kaus says, it's the undernews. If you're a married same-sex couple, the 2010 Census will put its hands over its face and pretend you're not there. To be fair, we've made a little progress since 1950; you can at least tell the world you're partners, though you'll have to check the "unmarried partners" box.

But there is still this one wall of the closet that hasn't yet toppled. We kicked down the closet door in the 60s, 70s and 80s, and then public support helped dismantle most of what was left.

I suppose that remaining wall gives some people comfort. While the rest of us are living our lives out in the world, there are still those who cower behind that standing panel, pretending there's a closet on the other side. I'm tempted to say, Mr. Bush, tear down this wall. Mr. Benedict, too, and Mr. Perkins and - come to think of it, an awful lot of Misters, including the inventor of the modern rule the Census is relying on, Mr. Clinton.

But there's really no need to say anything. There's no closet left for us to go back into. The recent California Field Poll shows that only about 19% of Californians would vote for same-sex couples to have no rights under the law - a number that's fallen from its previous low of 27% back in 2006. The 48% who say they would vote to give us full marriage rights isn't a majority, but full marriage is now within reach. Homosexuality is an issue lesbians and gay men stopped pretending about a long time ago, and the majority of heterosexuals now realize the pretending was getting tiresome. The federal government can continue its fictionalizing, but isn't that the sort of thing we wanted to abandon when we elected Obama president?

Oral arguments in the California Supreme Court lived up to, and exceeded, my highest expectations.

Chief Justice Ron George got the ball rolling with his very first question to Shannon Price Minter, representing the National Center for Lesbian Rights. In The Marriage Cases, the court had ruled that under the state equal protection clause, sexual orientation is a suspect class requiring strict scrutiny of any law that uses it as a factor - and that a law which denies same-sex couples the fundamental right to marry is unconstitutional. The Chief Justice immediately asked Minter whether his position was that any of these parts of the ruling were superseded by Prop. 8.

The answer was No, as it had to be.

And the entire three-hour argument could have ended there.

Our side - the pro gay marriage side - argued that Prop. 8 was a wholesale revision to California's constitution. This was based on the theory that equal protection is at the heart of any (fair) democratic system. Majority rule is a sound and time-tested form of government, but majorities must be subject to some checks on their power if they design rules that advantage themselves at the expense of a minority. And those checks should be structural - embedded in the constitution, itself.

That is exactly what the court articulated in The Marriage Cases. In order for Prop. 8 to be a revision, then, it would have to upset that fundamental order.

Our attorneys made some strong, and a few creative arguments to that effect. Equality is not a divisible concept; there is no such thing as a little bit of equality. Any attempt by a majority to undermine constitutional equality destroys its integrity.

But the integrity of equal protection is not the question before the court - only its continued existence. And it was clear to the Chief Justice that Prop. 8 had left intact both the equal protection principle, and, in fact, the equal legal rights that same-sex couples have in California. The voters constitutionalized the word "marriage," a frivolous use of the initiative power, but one that does not change the structure of California's constitution.

Linguistic shenanigans did not seem to strike the Chief Justice as something momentous enough to amount to a revision of the state constitution. The court would still have its constitutional authority to protect gays and lesbians from majoritarian laws that gave them lesser rights - and that would presumably include laws to reduce their rights as couples. Any law purporting to do so would be a violation of equal protection, period.

More important, this should logically suggest that any attempt to change the constitution to provide same-sex couples with fewer rights than opposite-sex couples would, in fact, be a revision of the constitution, requiring a 2/3 vote of the Legislature before it could go on the ballot. This is not what the proponents of Prop. 8 did, but if anyone tried, they could not do it with a simple amendment.

The pettiness of Prop. 8 is glaringly obvious to me, but will be highlighted if the court allows (as most people expect) the existing 18,000 same-sex marriages to continue. In the face of the simplest possible solution - any two consenting adults may legally marry one another - some heterosexuals continue to insist on an ever-devolving marital muddle that will plague us until common sense catches up.

Stephen Miller's post links to a CPAC video discussion of same-sex marriage that deserves some comment.

One of the classic uses of humor is to release tension, and the discussion shows that even conservatives who want to address the question of gay marriage seriously are still uncomfortable with the subject and need a bit of comic relief. The results are revealing.

The first speaker, Scott Ott, tries to diminish gay marriage arguments he finds fatuous, mentioning hospital visitation rights. He dismisses this is a real argument, saying he's been to a lot of hospitals, and no one's ever asked him if he's "having sex with a sick person."

That got a big laugh, and I'm sure he's correct. But it entirely misses the point. Hospitals frequently have special rules permitting greater visitation rights for family members than others, for example outside of normal visiting hours, or in intensive care units where non-family members are not permitted. It would be the rare spouse who would be refused these small mercies. But because same-sex couples cannot get married, more than a few of them have, in fact, been told they cannot see their partner, the reason being that they are not a member of his or her family. More and more hospitals have seen the cruelty such a policy imposes on someone who's obviously grief-stricken, as any loved one would be in a hospital, and have taken a more common sense approach.

Ott's dismissal of this as a problem is a cheap shot, and does him no justice if, as other parts of his comments suggest, he wants to be viewed as fair-minded in this debate. Anyone who does not understand how the lack of any recognized family status could be a problem for same sex couples who cannot marry is not thinking very hard about the other side.

Later in the discussion, Instapundit's Glenn Reynolds says his ideal world is one where "happily married gay couples have closets full of assault weapons." This, too, got a huge laugh. It's a fine line, and pretty welcome around these parts.

It is, however, the prelude to a dream, and Reynolds then moves on to his position that the state should recognize all willing couples as civil unions, and leave marriage up to the churches.

There are several people I respect who take this principled ideological position. But to those of us toiling in the real political world, it looks like a way of avoiding the question, which is what to do about the laws we have in the world we live in. I am glad to have whatever rhetorical support we can get from conservatives like Reynolds. But the rubber does sometimes meet the road, and as a thoughtful and often contrarian conservative, Reynolds must know that more of us want to get happily married under existing laws (with or without closets full of assault weapons) than want the state to stop recognizing marriages of any kind.

I'd rather hold him to his punch line than to his serious proposal. But the punch line, I'm afraid, is just that.

This Thursday, California's Supreme Court will hear oral arguments on the validity of Prop. 8. Nicholas Goldberg has a good summary of the arguments at the LA Times.

I'll only add one thought here, which will set me apart from every spokesman, reporter, advocate and innocent bystander. The Supreme Court's decision (when it comes -- under court rules the justices have 90 days after oral argument to issue an opinion) will not be a ruling in favor of or against either side.

The court will decide some very important constitutional issues: What is the scope of a constitutional "revision" as opposed to an "amendment?" Is constitutional equality an inalienable right in California that requires more than just majority voter approval? Does Prop. 8 apply retrospectively to the marriages contracted prior to the amendment's passage?

But the answers to these questions will not amount to a judgment by the court on the moral, legal or social appropriateness of same-sex marriage, or on the wisdom of the majority who passed Prop. 8. The court has already said that the constitution, prior to its amendment, protected marriage as a fundamental right for all Californians, including homosexuals, and that its equal protection clause guaranteed the right of homosexuals to marry the person of their own choice, even if that person is not of the opposite sex.

The question before them now is whether a majority can amend the constitution, itself, to withdraw those rights. That is one of the hardest decisions any court in a constitutional democracy will ever have to make.

While it is a matter of political cliché to assume that judges act in bad faith and on their personal whims - and there is certainly evidence that some judges in this country are guided by their political beliefs - I challenge anyone of good will to provide evidence that the justices of California's Supreme Court engage in that kind of abuse of power. Let me say for the record that I have followed this court very closely for a couple of decades now, and I believe its present justices are among the most apolitical I have ever seen.

The questions before them are impossibly hard to answer. But they are structural questions about the fundamental rules of the democracy. The answers the court provides will not be a "victory" for gays or for religious believers. They will do no more than guide Californians in taking our next steps.

This will come as a shock to the perpetually shockable, but this ruling like the court's last ruling on marriage, will not end the debate.

I'd like to expand on some of the comments to Jon's post.

The authors of this proposal do not accept the premise of gay marriage because it is inconceivable that the category of "marriage" could include same-sex couples. Anyone who even thinks such a thing is a "revisionist" rather than a "traditionalist." Marriage simply is "a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child."

The compromise, then, is to create a new legal category entirely for same-sex couples, but one that includes any other couples who are not a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child. Revisionists would leave the category of marriage alone, and obtain their rights as a couple under the law through inclusion in this new grouping.

In commenting on Jon's post, esurience says this lumps gay relationships with incest and platonic relationships. Rob chimes in that this "seriously debases same-sex relationships to the level of friendships and blood relations."

I couldn't agree more. The question is whether committed, adult same-sex relationships are more like aging sisters who share a home or an opposite-sex married couple.

The authors of this proposal are quite honest that they find it impossible to view same-sex couples in the category of marriage. But if these are the two categories offered: aging sisters or married couples, I'm betting more Americans who don't already have an opinion, would view same-sex couples as more like the married couples than the sisters. With apologies to the traditionalists, the days when a majority of Americans simply closed their eyes to the loving - and sexual - relationships of same-sex couples are coming to an end.

There is no need to go so far out of our way to invent an entirely new category of relationship whose only point seems to be to grant same-sex couples some kind of rights while not acknowledging them in law as same-sex couples. The attempt - with its obvious administrative knots and hurdles, not to mention its unnecessary costs to both government and business - is a relic of a time gone by, with an appeal only to those who continue to think Don't Ask, Don't Tell is a good idea. The nation is talking about same-sex marriage not only because gays have asked, but because Americans are willing and ready.

The problem with this proposal is not that it is not a compromise - it clearly is - but that it misses the point of the conversation everybody else is having.

If you have a taste for how amoral political campaigns can be, you have to read Frank Schubert and Jeff Flint's Passing Prop 8. They are the political consultants who ran the Yes on 8 campaign.

The article is, of course, very self-serving, but don't hold that against it, since that's the ocean these characters swim in -- if you don't bang your own drum in the political consulting world, you can't complain that no one heard you. It's David Mamet's world, they just populate it.

What is most poignant, though, is that you will not find any moral judgment in the article -- for or against same-sex marriage. Every victory, every setback described is tactical. It's a military debriefing, dissecting how a battle was won.

For those of us to whom the very heart of same-sex marriage is moral (and I include people on the right as well), it is good, I think, to step back and see how cold and empty the world looks to people who lack that capacity.

It's also good to see them confirm that 40% of their funding came from Mormons.

In responding to Jon Rauch and David Blankenhorn's proposal on DOMA, Maggie Gallagher makes two assertions about compromise that deserve discussion. First, she says that gay marriage proponents are successful enough that they don't really need to compromise ("I think the pro-marriage side is going to have to demonstrate an ongoing capacity to organize far more effectively before the gay-marriage juggernaut is going to be looking for a way to compromise."), and then says that it doesn't matter because gay rights groups don't show a willingness to compromise, anyway, so Congress and the President won't force one on them.

The first statement is no more than political rhetoric. A gay marriage "juggernaut?" Is there some wave of gay marriage laws getting passed that I've missed? I've seen political figures talk down their own success before, but this sets some kind of new standard for tactical overpraise of the opposition.

The second assertion, though, is even more canny. It's the old unilateral disarmament argument, fashionably retooled. The other side has to go first, and since I know they won't, I'll be damned if I'll give up my nukes and then live at their mercy.

It is exactly this mindset the proposal is designed to address. No one here actually has anything nuclear. The right continually says that they are worried about gay marriage's potential infringement on religious liberty. In Hawaii this week, the thousands of people demonstrating against a civil unions bill were virtually all, proudly religious believers worried about having to "force churches to lend out their facilities," and "open up a Pandora's Box of legal suits." The compromise takes that concern seriously, and says that no state civil union bill can get federal recognition unless it guarantees that churches will not have to recognize the relationships.

But it also takes seriously the concerns of same-sex couples, who, in most states, have no rights as couples at all. As is true of most compromises, it involves both sides to give a little. It provides that if gays can get a state to recognize their relationships - and it does not require any state to do that - then the federal government - which includes elected representatives from that state whose citizens are affected - will follow suit. As just one example of the problems the status quo causes, same-sex married couples in Massachusetts must now file two sets of income tax returns: one for Massachusetts, as a married couple, and one different set for the federal government, which requires them to identify themselves as unrelated individuals because DOMA requires the federal government to blind itself to any lawful same-sex relationships.

More important even than this, the compromise addresses voters who support neither gay marriage nor a total gay marriage ban. Unlike the absolutists on either end of the spectrum, there are a large number of Americans who understand both the concerns of religious believers and same-sex couples, and think both should be given some legal effect. It is safe to say - and Rauch and Blankenhorn do - that this compromise will not make any extremists happy. But that's a truism about compromise - it is, in fact, the definition of what a compromise is.

I cannot speak for any gay rights organization, and I would expect that Maggie is right they will oppose this compromise as she does. But compromises aren't for the ideologues, they're for the rest of us. The test of a compromise is whether it appeals to the middle. And, ultimately, that is how we'll know whether this one succeeds or not.

IGF's Jonathan Rauch has joined the anti-gay marriage proponent David Blankenhorn in the New York Times to come up with a fascinating compromise on DOMA: The federal government would recognize same-sex relationships contracted in those states which approve of them (whether as marriage, civil unions or domestic partnerships, though the federal government would call them all "civil unions"), but only if the recognizing state has "robust religious conscience exemptions" that would assure religious believers who oppose homosexuality their church would not have to recognize or honor the unions.

The compromise tests the veracity of the claim that religious believers worry civil recognition of same-sex relationships will invade their belief system through the enforcement of civil rights laws which require gays to be treated equally. The right has been able to scare up a few anecdotes about this misuse of civil rights laws: a wedding photographer forced to photograph a lesbian wedding; a same-sex couple who wanted to take advantage of a church-owned gazebo, which the church offered for use to the public; and churned them into a froth of paranoia about governmental intrusion into religion.

I'm with Jon in offering this proposal up publicly. I am happy to let the right know that we are dedicated to stopping this cascade of anecdotes. If they want additional assurance that the first amendment's separation of church and state means what it says, I will be on the front lines to add a statutory "and we really mean it" clause.

But I don't think anyone will take us up on this offer, since I don't think this is really their worry. It is not the first amendment they are concerned with, it is the fourteenth. It is equality that is the problem for them. Any government recognition at all of same-sex couples is more equality than they can bear.

The key, I think, can be found in this statement from the proposal: "Our national conversation on this issue will be significantly less contentious if religious groups can be confident that they will not be forced to support or facilitate gay marriage." What makes Jon and David think that religious groups want to have a "less contentious" national debate? It is heated controversy they crave and thrive on.

I am in complete agreement with this proposal, and think anyone who is participating in this debate in good faith could support it. That, I am afraid, is why I'm so doubtful about its success.

Many heterosexuals argue that they want lesbians and gay men to be treated fairly, even equally in the society, and at the very least to be tolerated - with the proviso that they must also be tolerant of others.

But what does that fairness or equality or tolerance look like in law?

Equality Utah decided to find out. They offered a package of five bills, ranging from health care coverage for partners in same sex relationships to laws prohibiting discrimination in employment and housing to one setting out the simple ability of same sex couples to inherit one another's property.

All of them failed in the legislature.

In doing this, Utah has become the test case for good faith in the debate over gay rights. What legal rights will the vast heterosexual majority pass that will assure lesbians and gay men are treated fairly, equally or with tolerance?

Many legal rights have nothing to do with a person's sexual orientation, so of course they apply equally to heterosexuals and homosexuals: the right to own property; the right to apply for a driver's license and, if obtained, use the public highways; the right to a lawyer when accused of a crime. . .

But the test is not whether homosexuals are citizens - virtually no one believes they are not. The test is how the law treats them in contexts where sexual orientation matters. Stated another way, many times the law presumes citizens are heterosexual, and has been designed to account for this fact. Given that the vast majority of citizens are heterosexual, and that in the past homosexuality was at best a personal vice not to be publicly acknowledged, and at worst a crime for which imprisonment could be and was imposed, it makes sense that the civil law would not, historically, have taken homosexuality into account.

Today, homosexuality cannot itself, be made criminal, putting it, finally, on the same legal footing as heterosexuality has always been. But that is not yet true in the civil laws where heterosexuality matters and is presumed. Utah has failed the test of good faith. It has said, on the one hand, that it wants to treat homosexuals fairly and equally and with tolerance, but has left intact laws which take heterosexuality for granted and treat homosexuals quite unfairly and unequally.

Ironically, it was the constitutional principle of equal protection that was designed to guard against exactly this kind of treatment of a minority by a large majority. But in today's political discourse, constitutional equality is not only minimized (by attacks on judges who try to apply it), it is, in fact, being withdrawn by voters as a principle to rely on at all when homosexuality is involved.

That leaves lesbians and gay men to rely on the good will of the voters. Utah shows how the promises the majority makes can be empty of any meaning at all.