California’s Invisible Gays

These days, it's pretty hard to walk the streets of a California city without seeing same-sex couples - shopping, strolling, holding hands, sometimes accompanied by children. What used to be called, self-consciously, "public displays of affection" are now merely public displays of ordinary family life. For gay folks, then, it is all the more stinging an irony that the one place where same-sex couples are invisible is in the advertising war over Proposition 8.

Proposition 8, of course, is the constitutional ballot initiative on whether to retain or reject same-sex marriage, which was legalized by the state Supreme Court in May. Given California's power to shape national trends, the stakes for both sides could not be much higher. But given the sheer size of the state's media market, TV advertising could not be much more expensive. For both sides, the premium is on common-denominator messaging that appeals to the largest possible number of swing voters while causing a minimum of political backlash.

The need to walk that tightrope helps explain why the actual subjects of next month's initiative, gay couples, were "inned" by the "No on 8" campaign's ads. (Full disclosure: I am a "No on 8" donor.) One ad, for example, features a gray-haired straight couple. "Our gay daughter and thousands of our fellow Californians will lose the right to marry," says mother Julia Thoron.

A subsequent ad, all text with voice-over narration, mentions marriage only once ("Regardless of how you feel about marriage, it's wrong to treat people differently under the law") and never uses the phrase "gay marriage" or even the word "gay." Just as oblique was a spot, released Wednesday, in which state Supt. of Public Instruction Jack O'Connell reassures viewers that "Prop. 8 has nothing to do with schools or kids. Our schools aren't required to teach anything about marriage." A casual viewer could have come away from these ads puzzled as to exactly what right thousands of Californians might be about to lose.

Asked about the absence of gay couples, a senior "No on 8" official told KPIX-TV in San Francisco that "from all the knowledge that we have and research that we have, [those] are not the best images to move people." Children, also, were missing; showing kids with same-sex parents could too easily backfire.

The pro-Proposition 8 forces, by contrast, featured a child prominently in their TV advertising: A schoolgirl comes home with a book called "King and King" and announces, to her mother's consternation, that she learned in school that "I can marry a princess." Another ad attacks overweening judges, mocks San Francisco Mayor Gavin Newsom for saying, "It's going to happen whether you like it or not," and goes on to claim that gay marriage could cause people to be sued for their beliefs and churches to lose their tax exemption.

Notice, again, that gay couples were missing, though for a different reason. Nowadays, swing voters are more leery of anti-gay discrimination than of same-sex couples. So the "yes" ads changed the subject, focusing on alleged (and disputed) follow-on effects of same-sex marriage rather than on the thing itself. If homosexuals can get married, look what else might happen! Arrogant judges, politicians and school bureaucrats will harass churches, torment dissenters and inappropriately sexualize education!

What might such ads show? Well, one might feature someone like my friend Brian, who married his partner, Doug, on Saturday. They already had a domestic partnership, but that could not begin to match the power of marriage, sealed before parents and friends in a ceremony in San Francisco. "It's how you say this is forever and do it publicly," Brian says. "It's very different from getting a form notarized at Mailboxes Etc."

An ad might show Brian driving Doug to the hospital and sitting at his bedside after surgery. Marriage is unique because of the high social expectations that go with it. Chief among those expectations is that spouses will do whatever is necessary to care for each other - which is valuable, because census data show that almost a third of California's gay couples have only one wage-earner, and almost a fifth have at least one disabled partner (about the same, by the way, as for straight married couples). By supporting and reinforcing the care-giving commitment, each marriage, gay no less than straight, creates social capital for the whole community.

Brian and Doug don't have kids, but a fourth of California's gay couples do, according to census data. An ad might show some of those kids watching as their parents, previously denied marriage, tie the knot. For children, no other arrangement matches the security and stability afforded by married parents, because no other arrangement confers comparable status and social support. If they could cast ballots, how many of the more than 50,000 children being raised in California's same-sex households would vote to deprive themselves of married parents?

Or an ad might feature a gay teenager celebrating his parents' 20th wedding anniversary and dreaming of his own someday. There are countless gay youths for whom the prospect of marriage will be so much more tangible if it is embraced by the nation's largest state. The breakthrough effect of same-sex marriage is not on the mature gay couples who can finally get marriage licenses, important though that is; it is the effect on generations of gay kids who will no longer grow up assuming that their love must separate them from life's most essential institution.

Keeping marriage available to gay couples in California, and giving it the blessings of a popular majority, would be a game-changer for gay culture. It would signal that the transformation from a pariah culture in the 1950s, to a promiscuity culture in the 1970s, and then to a commitment culture in the AIDS era and beyond, has taken its last and greatest step: to a culture of family.

Ellen DeGeneres, the comedian and TV personality, made an unofficial anti-Proposition 8 ad calling her marriage "the happiest day of my life." For the most part, however, you have seen and heard least about those who benefit most from gay marriage. That does not mean, however, you shouldn't think about them.

Hold the Champagne—Again

I've just read the opinions in the Connecticut gay marriage case (available here). I'm sorry to say the dissent, or at least the smart dissent (never mind Justice Zarella's ramble about procreation), has a compelling argument-and that the Connecticut Supreme Court has done us no favors.

Basically Connecticut reruns the May California decision imposing same-sex marriage. The majority in Connecticut finds that gays are a "quasi-suspect class," a disadvantaged minority which needs court protection. This means that laws disadvantaging gays receive heightened scrutiny. Discriminating against gay couples by denying them the right to marry does not survive heightened scrutiny. So gay marriage is required by the state constitution.

It's a defensible analysis. But here's the thing: like California, and very much unlike Massachusetts in 2004, when that state's Supreme Court ordered SSM, Connecticut was not proposing to give gay couples nothing as an alternative to marriage. To the contrary: in 2005, the state legislature enacted civil unions, granting every state right and responsibility of marriage, and withholding only the designation "marriage" itself.

As the smart dissent, by Justice Borden (joined by Justice Vertefeiulle), notes, most political observers in Connecticut agreed that the conversion of civil unions to marriage was just a matter of time, and "sooner rather than later." The state's steady stream of pro-gay legislation, topped off by civil unions, makes the idea that gays need the court's protection from a hostile majority seem obsolete. So says the dissent, and I'd add that, as a political matter, we ought to be maturing beyond official victim status, not welcoming it.

Second, the issue before the court was: Is man-plus-woman a discriminatory restriction on marriage, or is it part of the very definition of marriage? I, and probably most visitors to this site, hold the former view; but it's foolish to pretend that the notion of same-sex marriage isn't newfangled. If the people of Connecticut aren't quite ready to go all the way to changing what many regard as the core definition of marriage, should it be unconstitutional for them to compromise on civil unions while catching their breath? In effect, what the court has done here is to make patience illegal.

Back in May, commenting on the California decision ("Hold the Champagne"), I called this kind of all-or-nothing thinking "legal totalism", which,

it seems to me, is tailor-made to rule out any kind of accommodation, even if that accommodation gives gay couples most of what we need with the promise of more to come (soon). I think SSM is a better policy than civil unions. And I think denial of marriage to gay couples is discriminatory. But to make even a well-intentioned compromise ILLEGAL strikes me as a step too far, and a good example of how culture wars escalate.

And now, once again, a court pulls the rug out from under a compromise that gives us 95 percent of what we want uncontroversially. Once again, other states are put on notice that they'd better not enact civil unions unless they want to get SSM instead. And could the judges' timing possibly have been worse? This may cost us California, which is voting next month on whether to retain SSM. It may also cost us Arizona and/or Florida, which are voting on anti-SSM propositions.

I hope I'm wrong. But at the moment I wish nothing more than that our side would recognize the court-driven SSM strategy for what it has become: exhausted and counterproductive.

More: Here's a contrasting view, courtesy of Paul Varnell.

A Life Vindicated

One of the best moments at the Democrats' convention this week was Hillary Clinton's moving observation: "My mother was born before women could vote. But in this election my daughter got to vote for her mother for President."

Del Martin, who died Wednesday at age 87, could top even that story. In 1955 she co-founded the first lesbian organization. She was a pariah. What a miracle it is that this same brave woman lived long enough to marry her same-sex partner, with the mayor of San Francisco presiding.

And what marvelous testimony to the fact that the work of the Founders continues. Few have done more than Del Martin to make our country a more perfect union.

With Friends Like This…

To me, the most striking moment in the Federalist Society's online debate is when Amy Wax, a law prof who argues that gay promiscuity will undermine the norm of monogamy in marriage, backs herself into a corner where she says this:

One also has to ask -- why is same-sex marriage so unpopular with voters? I think they see that once we start redefining, all bets are off. And I actually think that all bets ARE off. In the end, marriage is arbitrary, a construct, and a restrictive one. So why have it at all?

In context, it's fairly clear she doesn't mean the question rhetorically. She doesn't know the answer and she doubts there is one.

So marriage is arbitrary. It stands on nothing but blind acceptance of tradition. No moorings at all. Thus do conservatives, in their determination to put marriage on a slippery slope, join radical egalitarians in pooh-poohing the idea that it has any coherent rationale. Rad-egals say, "Marriage is arbitrary so let's change it." Conservatives, "Marriage is arbitrary so we can't touch it." Take yer pick; we're all deconstructionists now.

With friends like that, it's no wonder marriage is in such precarious shape.

What’s in a (Missing) Name?

Marc Ambinder has the draft of the Dems' 2008 platform, which is still subject to revision. Like the 2004 platform, it supports ENDA, and it more prominently and specifically calls for ending the military's "Don't Ask, Don't Tell" ban on openly gay service (see page 30). In 2004 the platform opposed the constitutional amendment banning gay marriage; in 2008, and in line with Barack Obama's publicly stated position, it goes further by opposing the Defense of Marriage Act.

Here's an interesting change, though.

From 2004:

We support full inclusion of gay and lesbian families in the life of our nation and seek equal responsibilities, benefits, and protections for these families.

And 2008:

We support the full inclusion of all families in the life of our nation, and support equal responsibility, benefits, and protections.

Something went missing there. In fact, if I'm searching correctly, the 2008 platform omits any mention of the words "gay" and "lesbian." Will gay groups raise the issue? Will the platform committee dare to speak our name?

Yep, Gays Are the Marrying Kind

Ever since writing this article in 1996, I've been concerned that G&L people might demand marriage but then neglect it. More recently, some SSM opponents have claimed this is exactly what happens. From the Williams Institute at UCLA, here's welcome evidence that they're wrong (PDF format), at least so far. Study co-author Gary Gates summarizes:

We analyze data from states that have extended legal recognition to same-sex couples. We show that same-sex couples want and use these new legal statuses. Furthermore, they react more enthusiastically when marriage is possible. More than 40% of same-sex couples have formed legal unions in states where such recognition is available. Same-sex couples prefer marriage over civil unions or domestic partnerships. In the first year that marriage was offered in Massachusetts, 37% of same-sex couples there married. In states that offered civil unions, only 12% of same-sex couples took advantage of this status in the first year and only 10% did so in states with domestic partnership registries.

It takes generations to establish a culture of marriage in a social milieu where marriage has always been not just illegal but inconceivable. Low take-up rates, by themselves, would not vitiate the case for SSM. But it is good to know that gay culture is already responding to this powerfully life-enhancing institution.

Goodbye, Senator Zero

No one's death is cause for celebration, but Jesse Helms's retirement from politics certainly was. My take (2002) on the man who banned people with HIV from entering America (you really had to be a special kind of human being to think of that):

He is often referred to...as "Senator No." Better would be "Senator Zero," as in "zero-sum." Reagan made conservatism credible by showing that it could solve problems. It could make headway against inflation, against economic entropy, against communism, even against "malaise." He believed that dynamic change, kindled by the prodigious energies of entrepreneurs and ordinary people, would produce win-win outcomes: a country that was stronger and also more genuinely compassionate, richer but also fairer.

Then there is Helms. In his world, if homosexuals win, heterosexuals lose. If blacks win, whites lose...

The difference between Reagan and Helms is the difference between a conservatism of hope and a conservatism of resentment. There are, I have little doubt, literally millions of Americans who would be conservatives today if not for the snarling visage of Jesse Helms.

In the fullness of time, history may write that Helms, despite his best efforts, did us a favor by helping discredit homophobia. A pity he degraded conservatism in the process.

More Good News for Gay Marriage

Encouraging numbers from a new TIME/ABT poll: National support for same-sex marriage is up to 42 percent, with the 51 percent opposition only barely mustering a majority. Gay marriage has moved from the fringes only a few years ago to being within eyeshot of parity. And opposition to an anti-SSM amendment to the U.S. Constitution now runs 58 percent.

Maybe that's why Barack Obama, who has previously said he thinks marriage should be limited to heterosexual couples, has come out against a California state constitutional initiative to do exactly that. In California, Gov. Schwarzenegger is performing the same straddle-that is, opposing gay marriage but also opposing the effort to overturn it.

As IGF contributor Dale Carpenter points out over at volokh.com, being both anti-SSM and anti-anti-SSM makes little sense logically in a world where the policy is either to have SSM or not. But let's not look a gift horse in the mouth. The politicians are straddling because the climate of opinion is shifting. Obama and Schwarzenegger are barometers.

Those Irresponsible Heteros

We just can't trust them with marriage.

My Wall Street Journal article making the case for gay marriage comes with rotating "sponsored links." So guess who's advertising? Along with "See Today's Mortgage Rates" and "AARP Auto Insurance" we have...

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Why is heterosexual marriage even legal?

Gay Marriage Is Good for America

By order of its state Supreme Court, California began legally marrying same-sex couples this week. The first to be wed in San Francisco were Del Martin and Phyllis Lyon, pioneering gay-rights activists who have been a couple for more than 50 years.

More ceremonies will follow, at least until November, when gay marriage will go before California's voters. They should choose to keep it. To understand why, imagine your life without marriage. Meaning, not merely your life if you didn't happen to get married. What I am asking you to imagine is life without even the possibility of marriage.

Re-enter your childhood, but imagine your first crush, first kiss, first date and first sexual encounter, all bereft of any hope of marriage as a destination for your feelings. Re-enter your first serious relationship, but think about it knowing that marrying the person is out of the question.

Imagine that in the law's eyes you and your soul mate will never be more than acquaintances. And now add even more strangeness. Imagine coming of age into a whole community, a whole culture, without marriage and the bonds of mutuality and kinship that go with it.

What is this weird world like? It has more sex and less commitment than a world with marriage. It is a world of fragile families living on the shadowy outskirts of the law; a world marked by heightened fear of loneliness or abandonment in crisis or old age; a world in some respects not even civilized, because marriage is the foundation of civilization.

This was the world I grew up in. The AIDS quilt is its monument.

Few heterosexuals can imagine living in such an upside-down world, where love separates you from marriage instead of connecting you with it. Many don't bother to try. Instead, they say same-sex couples can get the equivalent of a marriage by going to a lawyer and drawing up paperwork - as if heterosexual couples would settle for anything of the sort.

Even a moment's reflection shows the fatuousness of "Let them eat contracts." No private transaction excuses you from testifying in court against your partner, or entitles you to Social Security survivor benefits, or authorizes joint tax filing, or secures U.S. residency for your partner if he or she is a foreigner. I could go on and on.

Marriage, remember, is not just a contract between two people. It is a contract that two people make, as a couple, with their community - which is why there is always a witness. Two people can't go into a room by themselves and come out legally married. The partners agree to take care of each other so the community doesn't have to. In exchange, the community deems them a family, binding them to each other and to society with a host of legal and social ties.

This is a fantastically fruitful bargain. Marriage makes you, on average, healthier, happier and wealthier. If you are a couple raising kids, marrying is likely to make them healthier, happier and wealthier, too. Marriage is our first and best line of defense against financial, medical and emotional meltdown. It provides domesticity and a safe harbor for sex. It stabilizes communities by formalizing responsibilities and creating kin networks. And its absence can be calamitous, whether in inner cities or gay ghettos.

In 2008, denying gay Americans the opportunity to marry is not only inhumane, it is unsustainable. History has turned a corner: Gay couples - including gay parents - live openly and for the most part comfortably in mainstream life. This will not change, ever.

Because parents want happy children, communities want responsible neighbors, employers want productive workers, and governments want smaller welfare caseloads, society has a powerful interest in recognizing and supporting same-sex couples. It will either fold them into marriage or create alternatives to marriage, such as publicly recognized and subsidized cohabitation. Conservatives often say same-sex marriage should be prohibited because it does not exemplify the ideal form of family. They should consider how much less ideal an example gay couples will set by building families and raising children out of wedlock.

Nowadays, even opponents of same-sex marriage generally concede it would be good for gay people. What they worry about are the possible secondary effects it could have as it ramifies through law and society. What if gay marriage becomes a vehicle for polygamists who want to marry multiple partners, egalitarians who want to radically rewrite family law, or secularists who want to suppress religious objections to homosexuality?

Space doesn't permit me to treat those and other objections in detail, beyond noting that same-sex marriage no more leads logically to polygamy than giving women one vote leads to giving men two; that gay marriage requires only few and modest changes to existing family law; and that the Constitution provides robust protections for religious freedom.

I'll also note, in passing, that these arguments conscript homosexuals into marriagelessness in order to stop heterosexuals from making bad decisions, a deal to which we gay folks say, "Thanks, but no thanks." We wonder how many heterosexuals would give up their own marriage, or for that matter their own divorce, to discourage other people from making poor policy choices. Any volunteers?

Honest advocacy requires acknowledging that same-sex marriage is a significant social change and, as such, is not risk-free. I believe the risks are modest, manageable, and likely to be outweighed by the benefits. Still, it's wise to guard against unintended consequences by trying gay marriage in one or two states and seeing what happens, which is exactly what the country is doing.

By the same token, however, honest opposition requires acknowledging that there are risks and unforeseen consequences on both sides of the equation. Some of the unforeseen consequences of allowing same-sex marriage will be good, not bad. And barring gay marriage is risky in its own right.

America needs more marriages, not fewer, and the best way to encourage marriage is to encourage marriage, which is what society does by bringing gay couples inside the tent. A good way to discourage marriage, on the other hand, is to tarnish it as discriminatory in the minds of millions of young Americans. Conservatives who object to redefining marriage risk redefining it themselves, as a civil-rights violation.

There are two ways to see the legal marriage of Del Martin and Phyllis Lyon. One is as the start of something radical: an experiment that jeopardizes millennia of accumulated social patrimony. The other is as the end of something radical: an experiment in which gay people were told that they could have all the sex and love they could find, but they could not even think about marriage. If I take the second view, it is on the conservative - in fact, traditional - grounds that gay souls and straight society are healthiest when sex, love and marriage all walk in step.