Marriage & Relationships

Just A Fact

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One of the reasons antigay opinion has been eroding in this country is that the (primarily) religious opponents of equality have become so melodramatic and quixotic in their rhetoric, driven by what looks like a maniacal sense of persecution that reasonable observers can’t possibly take seriously.  The distance between observable reality and the comic overcharacterization of that reality is leaving decent people who might not otherwise have made up their mind giving us the benefit of the doubt.  Lesbians and gay men may not all be models of rectitude and moderation, but at least we have some respectable arguments to make that seem to reflect a recognizable real world.

A good example of the self-dramatized hyperbole comes from Tony Perkins.  He has been peddling this line recently, about the danger of the Prop. 8 ruling:  “If this case stands, we’ll have gone, in one generation, from 1962, when the Bible was banned in public schools to religious beliefs being banned in America.”  I heard him make this case at TheCall in Sacramento last weekend, and he is now selling it on religious broadcasts as well.

His grievance is with Judge Walker’s 77th Finding of Fact, which Perkins correctly quotes:  “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”  Perkins doesn’t add that the finding is accompanied (as any proper trial court finding of fact would have to be) by citations to the record at trial – 18 of them – supporting the conclusion.  Perkins does complain that Judge Walker ignored all the facts presented by his side, but his real argument is with the lawyers and witnesses who defended Prop. 8, who didn’t exactly offer up a buffet of evidence for the judge to pick from.

Fact #77 doesn’t stand alone (there are 79 other findings of fact, every one also supported by numerous citations to the evidence at trial), nor would its absence make any difference in the conclusions of law the judge reaches.  Perkins cherry-picks that one fact only because it is the one that can be massaged to fit into his persecution.

Even if you believed that civil marriage equality would somehow affect religious believers (because some of them might see the conflict more clearly between what their religion professes and what the civil law accepts), or would even undermine some religions (to the extent that opposing homosexuality is part of the infrastructure of their morality), it is hard to see how this would lead to “religious beliefs being banned in America.”  The same first amendment that prohibits the teaching of particular religions in public schools (without “banning” Bibles, by the way — yet more of the melodrama) also protects religious believers in the exercise of their religion, however much those beliefs differ with civic policy.  Just because Perkins would not be able to prohibit same-sex marriage laws does not mean he is not allowed to believe, preach, or even ban within his congregation same-sex marriage or divorce or abortion or eating meat on Fridays.

It is, I’m sure, a disappointment for these religious believers to hear that their beliefs about the sinfulness of homosexuality are viewed differently by others.  But how insular would your worldview have to be to be surprised by that?  Certainly, they believe they are loving us by trying to steer us to an inner heterosexuality (or celibacy) that will better serve our long-term spiritual needs.  But is it such a shock to learn that non-believers could find that presumptuous and condescending, and even a little bit injurious?

Harm alone doesn’t amount to a constitutional violation, and people who think they’re helping me are as free to hurt me in this way as I suppose I hurt them by saying that I think they hold wrong and harmful positions.  The only reason they’re losing support is because they have so successfully blinded themselves to the idea that differences of opinion – even, and maybe especially religious opinion – is OK.  That’s just a fact.

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Nowheresville, Texas

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They really don’t like the gays down in the Lone Star State.

  1. Governor Rick Perry takes good old boy pride in his state’s reputation for gay-hatin’.  His taped comment to some supporters creatively suggests that homophobia actually attracts and possibly creates the kind of jobs the state needs and wants:  “We’re creating more jobs than any other state in the nation.  Would you rather live in a state like this or a state where guys can marry guys?”  I recommend listening to the audio, where you can best hear his parochial incredulity.  I, of course, would rather live in a state where guys can marry guys, but more important, I’d rather live in a state where my governor wouldn’t feel comfortable saying things like this.
  2. The Republican Governor is living down to his party’s standards, though.  The Texas GOP platform is so chest-thumpingly heterosexual, it urges its members to make it a felony to so much as perform a gay marriage in that state, thus ensuring heterosexuals are fully accountable for any defections in orthodoxy.  Remember, this is a felony that even straight people would go to jail for.  It’s not just enough to want to punish gay people in the Texas GOP; you can’t have any of the regular folks wandering off the ranch either.
  3. The Texas courts, as a wholly owned and operated subsidiary of state politics, are also careful to remain in line.  This week, the Texas Court of Appeals for the Fifth District overturned a lower court’s decision to grant a divorce to a same-sex couple who had been lawfully married in Massachusetts. Texas buttressed its constitution back in 2005 to make damn sure no same-sex couples slipped through any cracks in the law and got their relationships recognized in the state.  The trial judge had gotten squishy and started feeling things, like sympathy for a couple whose relationship went sour, and ended up ruling that the whole scheme violated the U.S. Constitution.  The appeals court judges reined him in, and gave the U.S. Constitution a little bit of a Texas working over.  All is back in order now, with the gay couple’s relationship still in the proper legal limbo of Kafkaesque nonexistence.  That’ll teach ‘em.

Texas, of course, also had a starring role in the U.S. Supreme Court decision of Lawrence vs. It.  That little smackdown did not hinder the appellate court’s opinion one little bit, and it certainly is an open question whether Lawrence applies to marriage or just sodomy.  But it appears Texas is once again ready to storm the barricades of the loose morals crowd, and stand up for a tough love so rigid it’ll cut your head off for infractions.

I’m sure there are some wonderful people in Texas, even some intrepid gay people and a cohort of nervy heterosexuals who are willing to stand up to these cowboy-booted thugs.  But I’m just as happy to steer clear of the whole church.

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Cheney and Obama: Nowheresville

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There is a long and growing list of people – and specifically Republicans — who are said to be to the left of President Obama on gay marriage.  Our high-profile GOP supporters include Laura Bush, Elizabeth Hasselbeck and, most recently, freshly-out Ken Mehlman.

But the grandest of the Party’s Old Grandees is, of course, Dick Cheney, whose support for same-sex marriage is the most valuable scalp gay marriage supporters have been able to secure.  He’s even been characterized as “more progressive” on this issue than Obama.

Let’s get a grip.  I won’t argue that Obama’s well-documented flips and flops, ducks, weaves, hedges, caveats, little white lies, obfuscations and desperate dives underneath the desk in the Oval Office are any profile in courage.  Despite the fact that I think he will still be one of our finest presidents and may yet show some spine on real equality, what we’ve gotten from him so far is a savvy exhibition of three card monte.  While we know he can demonstrate leadership on issues he finds compelling, on gay equality he is more sheep than shepherd.

But Cheney hasn’t exactly been our Martin Luther King.  The pinnacle of his oratory has been this: “I think freedom means freedom for everyone.”  To my knowledge, he has never yet publicly used the phrase “same-sex marriage,” or even “civil unions.”  Here’s as close to explicit as he has ever gotten:

I do believe that historically the way marriage has been regulated is at the state level. It has always been a state issue and I think that is the way it ought to be handled, on a state-by-state basis. … But I don’t have any problem with that. People ought to get a shot at that.

Now I won’t look this gift horse in the mouth, but it’s not exactly support for equality – it’s a plea for state’s rights.  And that would appear to include the right for states to give same-sex couples nothing.

Perhaps I’m wrong about that, but from Dick Cheney’s extremely rare public utterances, I can’t find any reason to believe he would have as little problem – i.e. “no problem” — with same-sex couples having no rights as he would with them having full equality.

But he can clarify that.  Specifically, he could put his money where is mouth is, and join Mehlman, Ted Olson, and so many other leading national Republicans at the AFER fundraiser (even Mary will be there).  Or he could actually say something clearly:  “I support same-sex marriage” would be nice, but I’d even take something like, “Both of my daughters deserve the same respect and rights under the law, and my party ought to make a commitment to that fundamental principle.”

At that point, I would be willing to put him beside Obama and find Obama wanting.  But for the present, the two are about even in substanceless avoidance; Cheney avoids the issue by saying too little, while Obama avoids the issue by saying too much.

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Wrong Direction

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The liberal New Republic provides a timeline showing Obama’s support for gay marriage back in 1996 when running for Illinois state senate (his statement at the time: “I favor legalizing same-sex marriages”) and then his subsequent move up the political career ladder and away from marriage equality, instead favoring civil unions for gays and holding that marriage is reserved for heterosexuals. Said presidential candidate Obama:

What I believe is that if we have strong civil unions out there that provide legal rights to same-sex couples that they can visit each other in the hospital if they get sick, that they can transfer property to each other. If they’ve got benefits, they can make sure those benefits apply to their partners. I think that is the direction we need to go.

As if hospital visitation and easier property transfer is what marriage is essentially about! Elsewhere in the New Republic, the magazine’s executive editor Richard Just calls Obama out on this non-profile in courage. Some of the NR’s commenters defend the president, saying marriage is a state, not federal, issue (sounding like Republicans!), and ignoring that it’s a federal law (the Defense of Marriage Act) that prohibits the federal government from recognizing same-sex marriage even after states have extended legal equality to gay people.

Yep, Republicans are worse. But all politicians elevate the will to power over principle, and treat the stances they take as a means to an end (their own advancement). The liberal ones are just fancier in their footwork. The lesson is to push back and make it cost them not to deliver—and that means playing hardball.

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Marriage and Constraint

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Here's another conservative (or, in this case, neoconservative) case for gay marriage, from neocon Joshua Muravchik:
A substantial fraction of people feel carnal affinity exclusively or primarily with individuals of the same sex. Insofar as their sexuality is to be channeled it cannot be toward the goal of procreation. If society has a general interest in the constraint of the sexual instinct, then it has an interest in encouraging long-term monogamous relations regardless of whether one ostensible purpose is to bear offspring. ... The claim that we defend marriage by disallowing it to homosexuals is a non sequitur. Could it not equally be argued that we reaffirm the importance of marriage by making it available even to couples who have not traditionally had this opportunity?
And a libertarian argument (no talk here of "constraint of the sexual instinct") from Sheldon Richman:
Marriage has never been exclusively about procreation. If that were so, couples that were infertile, elderly, and uninterested in having children wouldn't have been allowed to get married. Many other values have been at the core of marriage: economic security, love and emotional fulfillment, and more.
Richman also takes on the objection that courts shouldn't overrule public referendums or legislatures, explaining:
It seem clear that if government exists, then there is nothing wrong with courts thwarting the public or the legislature when either oversteps the limits we hope are set for government and violates liberty.
Neo-cons and libertarians don't agree on much, so it's interesting to see these two finding their own way to argue in favor of same-sex marriage. In other words, marriage equality-it's not just for progressives.

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The New Roe v. Wade?

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In a Wall Street Journal op-ed, Berkeley law professor John Yoo takes issue with Judge Vaughn Walker's ruling that California's ban on same-sex marriage is unconstitutional. Yoo says that he favors gay marriage as a matter of policy, but that:

Federalism will produce the political durability that supporters of gay marriage want. If states steadily approve, a political consensus will form that will be difficult to undo.

Consider, by contrast, abortion. Roe v. Wade (1973) only intensified political conflict at a time when the nation was already moving in a pro-choice direction. That decision...poisoned our politics, introduced rounds of legislative defiance and judicial intervention, and undermined the neutral principles of constitutional law.

I don't disagree that relying on courts, rather than the political process, to advance our rights carries the risk of a backlash, and certainly Jon Rauch strikes a similar note in his recent column on the California ruling.

But I suspect abortion and marriage equality really don't resonate on the same level among most conservatives, apart for the hard-core religious right. Consider Glenn Beck's interview with Bill O'Reilly (discussed in my last post), in which Beck refused to label gay marriage as a threat and quoted Thomas Jefferson that "if it neither breaks my leg nor picks my pocket, what difference is it to me." But when O'Reilly asked him about abortion, Beck responded, "Abortion is killing, you're killing."

For most people who oppose marriage equality, their unease over giving a stamp of approval to gay relationships (and by that they mean gay sex) just isn't in the same league with stopping the abortion mills that result in the murder of unborn babies, sometimes just before birth and at taxpayer expense.

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