IGF CultureWatch

From the Washington Post, an editorial on the latest Massachusetts marriage ruling, titled Why Not Civil Unions?:

When moral certainty bleeds into judicial arrogance in this fashion, it deprives the legislature of any ability to balance the interests of the different constituencies that care passionately about the question. Given the moral and religious anxiety many people feel on the subject and the absence of clear constitutional mandates for gay marriage, judges ought to be showing more respect for elected officials trying to make this work through a political process.

Note, this is an editorial (not an op-ed column) from a major liberal-leaning newspaper, which indicates the scope of the battle before us.

The 'M' Word.

Dissenting justices in Massachusetts, reports the Boston Globe, said the difference between civil marriages and civil unions was a largely semantic one. From the dissenting opinion:

"[W]e have a pitched battle over who gets to use the 'm' word. ...

"Both sides appear to have ignored the fundamental import of the proposed legislation, namely, that same-sex couples who are civilly 'united' will have literally every single right, privilege, benefit, and obligation of every sort that our State law confers on opposite-sex couples who are civilly 'married' ...

"Under this proposed bill, there are no substantive differences left to dispute -- there is only, on both sides, a squabble over the name to be used."

My personal view, not shared by many of our contributing authors, is that if the Massachusetts court had permitted a civil union alternative with the same state benefits given to married couples -- as in Vermont and, arguably, California -- other states would have followed along. This would have afforded the country a "period of adjustment" to legal recognition for gay couples, after which a segue to full marriage rights would not have seemed so radical.

But that is not the path the Massachusetts court took, and full legal marriage will, barring something unforeseen, be a reality. And so we are all called on to do whatever we can to stop the worst outcome of all -- passage of an anti-gay Federal Marriage Amendment to enshrine legal discrimination in the U.S. Constitution.

Activist Mania and Bush.

It now appears more likely that President Bush will formally endorse the Federal Marriage Amendment. I do not, however, feel any remorse over calling anti-Bush gay activists to account for falsely telling their supporters that Bush had already endorsed the FMA months ago, when his earlier statements were clearly conditional. In fact, by already denouncing Bush for what he hadn't yet done, these activists removed themselves from the political space in which gay moderates, libertarians and conservatives were actively lobbying against such an endorsement. That it may happen nevertheless does not mean that the activists' early surrender -- so that high-pitched anti-Bush fund raising appeals could be made -- was in any way justifiable.

Kerry Wavering?

From the LA Times:

Asked about endorsing a constitutional ban on gay marriage, Kerry said he "would have to see what language there is."

How the Right Sees It.

On the gay ruling in Massachusetts, conservative Fox Newsman Bill O'Reilly makes this prediction:

the law of unintended consequences will definitely kick in. -- there will be a federal constitutional amendment defining marriage as between a man and a woman that will override any state court decision. -- So all the happy faces over the gay marriage deal may not be so happy one year from today. The polls say that 66 percent of Americans oppose gay marriage.

Can't help wondering: If all the money gay activists spent on Howard Dean's doomed presidential race (based on the rousing themes of higher taxes, protectionist trade barriers, and capitulation abroad) had instead gone into preparing some kind of massive, professional campaign against amending the federal constitution, wouldn't that have been a better use of funds?

Many gays are celebrating now that Massachusetts' highest court has clarified its earlier ruling and on Wednesday declared we are entitled to nothing less than marriage and that Vermont-style civil unions will not suffice, setting the stage for the nation's first legally sanctioned same-sex weddings by the spring.

Full marriage equality is a goal I whole heartedly support. And I certainly hope this latest judicial action in the Bay State will advance the cause. But it would be extraordinarily na"ve not to anticipate a huge backlash to the court's action.

Already, it appears the ruling is pushing George W. Bush to endorse the anti-gay Federal Marriage Amendment now before Congress -- something he's been dancing around for months. The AP reports that on Wedesday Bush denounced the ruling as "deeply troubling," and

"conservative activists said they had received a White House pledge that he will push for a constitutional amendment to ban same-sex weddings. But Bush, in a written statement, stopped short of endorsing a constitutional amendment, a sensitive election-year issue.

Meanwhile, on the Democratic side, frontrunner John Kerry issued a statement supporting civil unions but adding, "I oppose gay marriage and disagree with the Massachusetts Court's decision."

But more significant is how the rest of the country will respond to what's widely seen as liberal judicial activism (as opposed to legislative action) in what is arguably the nation's most liberal state. A troubling portent:

The Ohio Legislature gave final approval [Tuesday] to one of the most sweeping bans on same-sex unions in the country, galvanized by court rulings in Canada and Massachusetts that have declared gay marriage to be legal. The measure, which also would bar state agencies from giving benefits to both gay and heterosexual domestic partners, would make Ohio the 38th state to prohibit the recognition of same-sex unions.

Gov. Bob Taft, a Republican, planned to sign it within the coming week, his office said.

With reaction brewing in the heartland, Republicans bowing to the religious right and advocating rewriting the U.S. Constitution to permanently make gays second-class citizens, and Democrats hemming and hawing about how an amendment may be a bit much but they, too, are dead set against gay marriage, things could well turn ugly.

That's the pessimistic view. Others, including some of our IGF contributing authors, don't foresee such a disaster. I hope they're right.

For a few days, there seemed to be a "Rudy boomlet" - reports on the Internet and in some gossip columns predicting George W. would run in November with Rudy Giuliani as his veep. Alas, these rumors have now been quashed by the White House. Too bad for Republicans. A vp nominee who is a dynamic leader, tough on terrorism, and supportive of gay equality could have attracted many independent swing voters. But then there's that little problem he'd have with the religious right"

Unfair Privilege?

There's a contretemps at Yale, where some unmarried hetero grad students are demanding the same domestic partner benefits now being granted to gay couples. As Jessamyn Blau explains in the Yale Daily News, however, they can get married:

Instead of begging Yale to extend benefits to people who are already at an advantage in society, these students should work to extend marriage rights to all couples, so that Yale can in turn get rid of its uneven policies (whose only purpose is to in some small way remedy current injustice). Giving unmarried heterosexual couples more rights is simply skirting the true issue at hand, which is that the current proposal shouldn't even be at hand.

The Cardinal Speaks.

A Belgian cardinal says that 95 percent of gays are "sexual perverts." What about the other 5 percent? I guess they're just not trying hard enough!

It would be difficult to find a more clear-cut example of how "anti-family" many anti-gay conservatives truly are than the decision last week by the 11th Circuit Court of Appeals upholding Florida's blanket ban on adoptions by gays. The Miami Herald described one of the plaintiffs, Doug Houghton, who is the foster parent of an 11 year old. ''I wish the judges could spend a weekend at our home,'' he said last week. "Our lives are full, happy, interesting and healthy. 'I've raised this boy for eight years. He calls me 'Daddy.' ''

But anti-gay activists -- on the bench and off -- would deny this child the necessary stability that comes with legal adoption. Their animus toward gays trumps any concern for parentless children. And they have no shame about it.

It's likely this case will find its way to the U.S. Supreme Court, which will then decide whether to extend the jurisprudence it's established with its Lawrence and Romer rulings that the states cannot discriminate against gay people merely on the basis of popular prejudice.

Bloody Kansas.

Another sickening decision, this time from the Kansas Court of Appeals, upheld the
conviction of Matthew Limon, who was sentenced to more than 17 years in prison for having consensual sex when he was 18 with a 14-year-old boy. Had Limon's partner been a 14-year-old girl, under the state's "Romeo and Juliet" law he would have been sentenced at most to one year and three months.

The only explanation for the differing sentences is the state's desire to stigmatize gays. As a dissenting judge wrote: "This blatantly discriminatory sentencing provision does not live up to American standards of equal justice." Clearly.

More Recent Postings

1/25/03 - 2/01/04

In his column in The Advocate titled Civil Unions: The Radical Choice, writer Richard Goldstein explains why, from his "progressive" viewpoint, civil unions are superior to marriage for straight couples as well as gay. In short:

My fellow and sororal leftists are right to regard gay marriage as a conservative idea. It would bolster an institution that can be very encumbering and that deprives single people of the government benefits they deserve.

Moreover, civil unions are good because they'll weaken marriage, he writes:

Civil unions won't replace marriage, but they could make it rarer. Same-sex marriage has no such potential. It won't expand the matrimonial options, and courts are unlikely to apply the principle of equal protection to straight couples who don't want to wed even though they can. In fact, there's a real possibility that employers will cancel domestic-partner benefits once gays can marry. If that happens, all couples will be faced with the same rigid choice: Tie the knot, or you"re on your own.

As Jonathan Rauch, David Boaz, and others have argued, those on the right who oppose same-sex marriage are by necessity opening the door to all manner of "marriage lites" that will, in fact, make marriage rarer. That may be fine with those on the lesbigay left, like Goldstein, but social conservatives say they care about preserving and strengthening the institution of wedlock. Yet by opposing same-sex marriage, they're destroying the very thing they claim they're trying to save.

Radical Step by the Right.

From Monday's lead editorial in the Washington Post:

Mr. Bush wants to keep the Republican base at bay with verbal Pablum about the "sanctity of marriage" and a promise to support an amendment if this gay-marriage thing gets out of hand. But at the same time, he wants to avoid energizing Democrats and alienating centrists by actually calling for one now.

We suppose we should be grateful that the president didn't go further and actually call on Congress to send a constitutional amendment to the states for ratification. We're not. Even in an election year, it shouldn't be asking too much to expect the president to firmly reject a step as radical as rewriting the Constitution to stop states from adopting laws that recognize gay relationships.

It's hard to argue with that.

A few days ago I noted that Ohio's legislature had passed, and its governor will soon sign, legislation to forbid gay marriage and to prohibit domestic partnership benefits for state employees. But this week, the city of Cleveland Heights, Ohio, launched its own domestic partner registry -- the first in the nation created by voters. "The registry, which passed with 55% of the vote in November in this community of 50,000, was the first such measure adopted by way of the ballot," reports the AP.

Even in Ohio, the forces of reaction can't stop the movement toward greater liberty and legal equality from advancing.

Here's an editorial from the Washington Blade and its sister publications endorsing Wesley Clark. What's interesting is the clear-headed look at the other Democratic contenders on gay issues. As Bush moves closer his party's religious right base (a big mistake, but one the administration increasingly appears committed to), it's worth noting that Democratic candidates past and present have not been held to a very high standard by their gay supporters. A few quotes from the editorial:

John Edwards" has failed to embrace civil unions for same-sex couples. -- When Dean said he intended to push the debate in the South beyond "guns, God and gays," Edwards faulted the New Englander for ducking a "values" debate important to his region. "

Among gay audiences, [John] Kerry points out that he was the only senator up for reelection in 1996 to vote against the politically popular Defense of Marriage Act. But his GOP opponent that year was Gov. Bill Weld, whose record on gay issues was far more supportive than Kerry's. Asked this week to defend his DOMA vote after President Bush vowed support for a constitutional ban on gay marriage, Kerry told ABC News, "I have the same position as the president," even though Kerry has said he is actually opposed to such an amendment.

Earlier this year, Kerry cited procreation as the primary reason marriage should be reserved for heterosexuals, even though his own marriage to heiress Teresa Heinz is childless.

During his tenure in the Senate, Kerry has also cast some questionable, and downright insulting votes, including a prohibition on immigration for people who are HIV-positive, a federal crime (with jail time) for HIV-positive healthcare providers who fail to disclose their status, and -- most upsetting -- a "no promo homo" measure that barred the use of federal funds in schools to "promote homosexuality. ""

Kerry, a decorated Vietnam vet, says he supports a full repeal of "Don't Ask, Don't Tell," but as recently as the 2000 Democratic primary he took Gore and Bradley to task publicly for the same position. At the time, Kerry said rather bizarrely that allowing gays to serve openly was "a bad idea" because commanders needed the discretion to remove gays from particular units if they endangered unit cohesion. ...

[After] Vermont's highest court had ordered the governor and legislature to adopt full marriage or its equivalent, [Howard Dean rejected] gay activists who argued (then and now) that anything other than marriage is inherently unequal. In Massachusetts today, where that same debate is repeating itself, activists are labeling the Dean position, now favored by the Republican Gov. Mitt Romney, as anti-gay.

The Blade also has a separate article looking at Dean's mixed messages.

The point is certainly not that Bush is better than the Democratic contenders on gay matters; obviously, he's not. If you're a single-issue voter, you're going to vote for the Democrat, whoever he is. But I react strongly to much of the pious nonsense that some Democratic activists are serving up about their candidates. Last time, they gave a free pass to Bill Clinton -- the first U.S. president to sign anti-gay legislation into federal law with both "Don't Ask, Don't Tell" and the Defense of Marriage Act (and who then trumpeted his support for DOMA with radio ads in the South during his reelection campaign).

So please, spare me the "Democrats Good, Republicans Bad" e-mails and at least contemplate that both parties have their own unappealing shadow sides to be weighed in the balance.

More Recent Postings

1/18/03 - 1/24/04

The New York Times takes note of the president's deliberately ambiguous language:

" President Bush never used the words "gay," "homosexual," "same-sex" or "amendment." Instead of an amendment, he referred only to a "constitutional process." And, as he has in the past, he qualified the present need for such a process. "

Some conservatives found fault with his reluctance. "He made the case for the necessity of an amendment, and I am puzzled as to why he did not, having diagnosed the problem, prescribe the only remedy, a federal marriage amendment," said Dr. Richard Land, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention....

Tony Perkins, president of the Family Research Council, said Mr. Bush's failure to ask Congress to get to work on an amendment negated his other initiatives.

However:

Some gay Republicans said the president had gone too far.
"We will not stand with anyone who is willing to write discrimination into the Constitution," said Patrick Guerriero, executive director of the Log Cabin Republicans.

But Charles Francis, chairman of the Republican Unity Coalition and a family friend of President Bush, said he was not yet ready to break ranks. He emphasized that the president had not mentioned an amendment and that his comments about the "constitutional process" remained conditional, although he acknowledged, "He has come about as close as he can get."

Will the religious right be placated by rhetoric minus an actual endorsement of and lobbying for the amendment? Or will Bush be pushed into giving anti-gay activists what they want, and thereby alienate the moderates and independents who don't cotton to legislative gay-bashing? Stay tuned.

A new ABCNEWS/Washington Post survey has some good news: only 38% of Americans favor amending the U.S. Constitution to make it illegal for same-sex couples to marry, while 58% say, instead, that each state should make its own laws on gay marriage. If history is any guide, a proposed constitutional amendment that can't even get a majority of popular support is doomed.

But States Go Crazy.

On the other hand, some states seem to be reacting to the prospects of gay marriage in Massachusetts with total dementia. Ohio's legislature has just passed a bill that would not only prohibit same-sex marriage, but also forbid the state from granting domestic partner benefits to its employees. Gov. Bob Taft said he will sign it, pending legal review.

In Virginia, a House panel unanimously passed a resolution Wednesday urging Congress to propose a constitutional amendment against gay marriages. But a bill to impeach Virginia judges if they were to rule in favor of same-sex marriage was defeated. How charitable.

From the president's State of the Union address:

A strong America must also value the institution of marriage. I believe we should respect individuals as we take a principled stand for one of the most fundamental, enduring institutions of our civilization. Congress has already taken a stand on this issue by passing the Defense of Marriage Act, signed in 1996 by President Clinton. That statute protects marriage under Federal law as the union of a man and a woman, and declares that one state may not redefine marriage for other states.

Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.

The outcome of this debate is important -- and so is the way we conduct it. The same moral tradition that defines marriage also teaches that each individual has dignity and value in God's sight.

Bush does not endorse a specific constitutional amendment, but "if judges" mandate same-sex marriage, he would favor supporting traditional marriage through the "constitutional process." Still, that won't be enough to stop criticism from the right. Already, a press release has been issued from the Family Research Council's Tony Perkins, who declares:

Sixty-four days ago the Massachusetts State Supreme Court tossed a cultural time bomb into the public square when they mandated the Legislature to create homosexual marriages. Disappointingly, this evening in his State of the Union address, President Bush promised to help the families of America -- after the bomb goes off and the damage is done. Now is the time, before the Court of Massachusetts imposes same sex marriage on America, to protect the sacred and irreplaceable institution of marriage.

The President should immediately call upon Congress to pass an amendment this year to the Constitution codifying into law what history and nature has taught us -- marriage is between a man and a woman.

The families of America have consistently supported the President on both his foreign and domestic policies. They have stood with him in his efforts of homeland security and now they want the President to focus on the security of the American home by protecting the institution of marriage.

But Bush has not done so, at least not to the extent the religious right's leaders are demanding. Of course, he's now opened the way to discussing the "constitutional process," which could jeopardize our rights to equality under the law. He should be called to account for that, although I wish there'd be some acknowledgement by gay leaders that his position is far more ambiguous than the religious right expected from their man.