A Risk, Not Just a Right

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"Marriage," the minister said, "is a going forth, a bold step into the future; it is risking what we are for the sake of what we can be."

Marriage is a risk.

We forget that, I think.

It seems very mainstream, this marriage thing, it IS mainstream, it's something that has been part of the culture for thousands of years.

It is so ordinary, that there are some gay people who look at the fight for equal marriage and shake their heads. "But what is the REASON you want to get married" they say. It's a patriarchal institution, it's anti-queer, it restricts freedom. It has a mean and sordid history, marked by the memory of women treated like property, of miscegenation, of contracts between families of power. It's more progressive, they say, to not get married. Marriage will ruin the gay community, they say, blur its edges, make us the same as everyone else.

Maybe. It's definitely traditional, marriage. Indeed, many of the things we're fighting for - the right to marry, the right to serve openly in the military, the right to not be harassed at a job - really, all of these things are the same thing. We are fighting for the right to be ordinary.

But being ordinary doesn't mean not being brave. You can be both traditional and risky.

My friends Cid and Glenda got married last weekend. It was my first lesbian wedding - I'd been to civil union ceremonies before, and had a domestic partnership ceremony myself years ago. But this was the first lesbian wedding I went to that was legal, the first one I attended where the minister concluded by saying, "By the power invested in me by the Commonwealth of Massachusetts . . ."

Everyone was crying in the congregation when the Rev. Elea Kemler said that. It moved us, to hear a public acknowledgement of the love of two women - to hear a state acknowledging the love of two women. To hear an entire congregation stand up and say, "We do," when the minister asked "Do you who know Cid and Glenda give them your blessings now as they enter into marriage?" being a witness, that was moving.

The public acknowledgement of our relationships and our lives is important to us as gay people. We crave it, because we have been so long hidden in the dark.

That is part of the risk, of course. Two women who get married are taking a public risk, opening themselves up to the hatred, disgust and criticism from those on the right who do not want to understand.

But even braver than that public risk is the private risk.

We don't think about it much, because marriage is in fact such an ordinary thing. We are at the beginning of wedding season now, and brides are everywhere in their white dresses, posing for pictures in gardens amid the flowers of their bridesmaids.

Marriage is a thing straight couples progress into as a matter of course.

But marriage is so new to us still - official only in Massachusetts and now, joyfully, California- that before we marry, we still think hard about it. Our families are likely not pressing for our marriage. It's not expected. It's certainly not required.

And yet marriage is risky. That's why not everyone does it. It asks for a leap of faith, a commitment to loving and supporting someone you can never fully know. Half of all marriages fail. What other venture to people dare to try with a 50 percent failure rate? Would you go to college if you knew that you were as likely to drop out as stay in? Get a job if you knew that there was an even chance you'd be fired?

Marriage is a risk. It is brave. When we fight for the right to marry, we are asking for a chance to be challenged. We are not taking the easy way out. We are saying that in spite of the odds, despite the large possibility of failure, we are willing to live in hope.

"So it is not to lofty words, or institutions even, that we appeal at this hour of commitment," the minister said. "But rather to the resources which you two draw from deep within yourselves - the deep well of human need, united and loving, forgiven and forgiving, whole and complete before a broken and imperfect world."

Marriage is a risk. Let us celebrate those like Cid and Glenda who take it.

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Progress vs. Partisanship

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A report in LA Weekly, California GOP: The Queer Enablers of Gay Marriage, highlights why the "all LGBT eggs (and votes, and money) in the Democratic Party basket" (or else you must be a "self-loathing" rich white gay jerk) is and always was partisanship gone wild:

[GOP Gov. Pete Wilson] appointed Judge Ronald M. George to the California State Supreme Court. Nearly 17 years later, the moderate Republican jurist would become a national gay hero. Last Thursday, it was George's carefully written majority opinion that legalized same-sex marriage in California. By nightfall...gay activists stood on a stage and publicly lauded the judge as "courageous." Speaker after speaker also praised another Republican, Gov. Arnold Schwarzenegger, for promising to "fight" against a November ballot measure that could still outlaw gay marriage in the Golden State. ...

When Robin Tyler, a plaintiff in last week's historic case and a gay-rights advocate for more than 40 years, realized many months ago that the California State Supreme Court was jammed with Republicans, she was anything but fearful. "I was thrilled," she says. "I thought we'd stand more of a chance. I think a Democratic court might have shied away because of the issue of the (presidential) election."

As I never tire of pointing out, our national LGBT groups are largely staffed by activists with close ties to the Democratic Party, and much of their top leadership ranks flow back and forth from positions within the party itself (with an eye kept on possible low to mid-level positions in the next Democratic administration). That would be fine if these groups presented themselves as partisans targeting LBGT money and votes on their party's behalf, but they don't.

Yep, It's Groundbreaking

Semi-related, Laura Bush and daughter Jenna last week taped a segment on The Ellen DeGeneres Show (expected to air this coming Wednesday), discussing their new book. Ellen is a California resident, and following the California Supreme Court's marriage ruling she announced her engagement to longtime girlfriend Portia de Rossi.

Ponder that for a moment: A conservative Republican First Lady going on a chat show with a famous lesbian who's just announced she's going to get married?

And now, this just in: The AP reports that "President Bush's newly married daughter, Jenna Hager, seemed to offer her family's Texas ranch to Ellen DeGeneres as a wedding location."

I think this is just another sign that the religious right is losing on all fronts, and that their initiatives to ban marriage are just last stands in their retreat -last stands that may stay in state constitutions for a generation, alas, but still part of a general losing effort.

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The Challenge

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From the Los Angeles Times: "Among registered voters in California, 54 percent support a constitutional amendment to ban same-sex marriages, and 35 percent oppose it.... Of those who said they didn't know a gay person, 70 percent support the amendment..."

The Times tries to give the findings a positive spin as a "narrow margin" for the amendment's passage, but actually, I'm told, pre-vote polls on state anti-gay amendments have undercounted the support for banning same-sex unions by an average of 10% - amendment backers don't feel comfortable giving their real views, it seems, perhaps fearing that the pollster will think they're bigots.

Equality California's PAC is the right place to donate, I'm told.

If the anti-gay marriage amendment fails (as did a similar effort in Arizona two years ago), it will mark an historic turning point. If the amendment passes, marriage equality will be delayed in the nation's most populous state for perhaps a generation - which demonstrates both the promise and real risks of pursing a judicial strategy.

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California’s Potential

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So the California Supreme Court did it. In an extraordinary, sophisticated, and far-reaching opinion the court held (1) that the fundamental right to marry protected by the state constitution includes the right of same-sex couples to marry, and (2) that exclusion of same-sex couples from marriage amounts to impermissible sexual-orientation discrimination. The opinion is much stronger analytically than the path-breaking Massachusetts marriage decision from 2003.

The impact of this decision will be political, cultural, and legal. It is the potential legal impact that I will address in this column.

The California decision injects new life into the litigation strategy for obtaining same-sex marriage. It does so in the obvious way that future gay-marriage litigants will be able to cite it as persuasive authority in other states for its ultimate holding that there is a constitutional mandate to allow gay couples to marry.

But it does so additionally because the court that issued it is careful, cautious, and well-respected. The decision is the product of a moderate Republican court (six of whose seven members were appointed by GOP governors), not a liberal "activist" one.

More specifically, it could be influential in a case pending before the state supreme court in Connecticut, which addresses the similar question whether the state may withhold the title of "marriage" to same-sex couples when the state has granted them all of the benefits of marriage under state law.

Other states with civil unions - like New Hampshire, New Jersey, and Vermont - can similarly expect renewed efforts to persuade their state courts to extend marriage itself to same-sex couples.

A possible limiting factor on the influence of the California decision is that it arose in the unusual context of a state that had already granted almost all of the substantive rights of marriage to gay couples under the state's domestic partnership laws. The California court emphasized this point throughout the opinion.

Having granted all the rights of marriage to gay couples, the court held that the state could not stop there. As I've argued before, this kind of decision provides political ammunition to opponents of legal rights for gay families who will warn state legislatures against moving toward any recognition lest state courts require the state to recognize full marriage.

But I think this potential limitation on the legal influence of the California ruling has more bark than bite for two reasons.

First, the California court held that the fundamental right to marry includes the right of same-sex couples to marry, just as it concluded in 1948 that the right to marry includes the right of interracial couples to marry. The California court did not hold that there is a new and separate fundamental right to something called "same-sex marriage." This holding is a first for a state high court in marriage litigation.

The California court's conclusion about the inclusion of gay couples within the pre-existing fundamental right to marry does not itself depend on whether the state has previously created a status for them substantively approximating marriage. The decision depends instead on the substantive interests in personal autonomy, dignity, happiness, and familial fulfillment protected by the right - interests that gay families share with heterosexual ones.

So even if California had not enacted the domestic partnership laws for same-sex couples, the California court should have concluded under its own logic that they were included within the fundamental right to marry. This holding should have some influence on courts in other states.

Second, the holding that excluding gay couples from marriage is impermissible sexual-orientation discrimination also does not depend on whether the state previously enacted domestic partnership laws. If the substantive right of marriage, and the dignitary interest in having the relationship called "marriage" by the state, cannot be denied on the basis of sexual orientation it should not matter whether the state has left gay families completely without legal protection or has protected them but withheld the title marriage. This holding, too, has potential to influence sister state courts in future marriage litigation.

Another possible limitation on the long-term influence of the decision is that California voters may effectively reverse it in November by voting for a state constitutional amendment banning gay marriage. If that happens, as it did in the 1990s in Hawaii to a pro-gay-marriage ruling, courts in other states will feel freer to ignore the decision. However, the logic and specific legal holdings of the California decision may still be persuasive.

None of this means that courts in other states will follow the California decision. They are free to reject it. They can rely on the larger number of state high courts that have rejected claims for same-sex marriage. They can say that California is unusual in its legal development toward the recognition of gay families. They can distinguish their own precedents from the California precedents. As a practical matter, they may feel pressured to rule against same-sex marriage because they face elections.

My prediction is that we will not see an avalanche of gay-marriage victories in states across the country in the near future. California was one of the last hopes of the gay-marriage litigants, who have lost in many states where the state judiciary was thought to be sympathetic. The litigation strategy hangs by a thread. But, as an analytical and intellectual matter, California's supreme court has set the bar higher than ever before.

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A Case to Watch

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A panel of the Ninth Circuit Court of Appeals has issued an opinion favorable to Major Margaret Witt, a decorated Air Force nurse and Persian Gulf veteran who was discharged for being in a longstanding relationship with another woman.

The appellate panel cited the U.S. Supreme Court's Lawrence decision, which overturned so-called sodomy laws criminalizing gay sex, and which established that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment [revised from earlier posting]. The panel then remanded for lower court determination whether Don't Ask, Don't Tell (DADT) violated Witt's (and by extension all service members') fundamental rights. IGF contributing author Dale Carpenter weighs in over at the Volokh Conspiracy, commenting:

I take some satisfaction in the panel's conclusion that Lawrence supports heightened scrutiny for laws that burden the exercise of private adult sexual autonomy.

But just about every lower federal and state court, and it seems most scholars, until now have refused to read Lawrence that way. Even courts that have struck down laws that are anti-gay, like the Kansas Supreme Court (striking down a law establishing vastly different criminal penalties for sex with a minor depending on whether the minor was of the same or opposite sex), or striking down laws that have infringed on private adult sexual autonomy, like a recent Fifth Circuit panel (striking down a Texas law against sex toys), have avoided reading Lawrence as a fundamental-rights case. Indeed, on the question of whether the sodomy decision recognized a fundamental right, it can be said without too much exaggeration that the controlling opinion in Lawrence is actually Justice Scalia's dissent....

Nevertheless, quite apart from whether DADT is ultimately struck down, and unless the en banc court reverses the panel's determination that some form of intermediate scrutiny applies under Lawrence, this holding by itself is significant.

Law professor Eugene Volokh adds:

there's now a split on the subject between the Ninth and the Eleventh Circuits, and the question extends far beyond "Don't Ask, Don't Tell." (The Eleventh Circuit decision, for instance, upheld Florida's ban on adoption by homosexuals; that case might well come out differently under heightened scrutiny.

There's background on Maj. Witt and her case here.

More. Carpenter also comments on sexual orientation and heightened scrutiny in the California marriage decision, here, finding:

the court's equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion.

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Desperate Arguments?

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In one of the most bizarre arguments against state recognition of same-sex marriages, social conservative Melanie Scarborough reaches for her pen and writes:

permitting individuals of the same sex to describe their relationships as marriage gives them a right not extended to heterosexuals, for whom "marriage" is very narrowly defined. Although a man and a woman may legally wed, the law does not consider the marriage valid unless it is consummated .... But unless the relationship includes the one act defining marital union ... the question is moot; homosexual marriage is physically impossible.

Now, the assertion that marriage is and can only be "consummated" and thus made legal by vaginal intercourse, or else it isn't marriage, is circular in the extreme. Scarborough is also implying that marriage is as marriage always was, which is ridiculous. Women are no longer property, and marriages (legal ones, at any rate) are no longer polygamous.

And while I haven't read the marriage laws in all 50 states, I know that two people are considered married, with all the legal rights and obligations, without producing evidence of a broken hymen - and that particularly among the elderly, where many late-in-life marriages are companionate, it's a good thing that no bloody sheet need be produced.

It seems that many social conservatives are clearly losing it, and not in a good way.

More. And let's not fail to take note of conservative columnist (and sometimes Culture Watch reader and commenter) Maggie Gallagher, who predicts:

Polyamorists, Muslims, and breakaway heretical Mormons can expect to find at a minimum new comfort in this sweeping moral support (if not yet legal support) for the dignity of their own favored family relationships, since the right to marry is the right to have one's family relationship officially recognized and accorded equal dignity.

Oh dear, it's that old slippery slope again. But to paraphrase Jon Rauch, gays are not fighting for a right that no Americans now legally have (to multiple marriages, or "to marry everybody"), just a right that most Americans have ("to marry somebody").

Furthermore. Liberal columnist E.J. Dionne writes in the Washington Post:

As it happens, I am one of the millions of Americans whose minds have changed on this issue. Like many of my fellow citizens, I was sympathetic to granting gay couples the rights of married people but balked at applying the word "marriage" to their unions.

"That word and the idea behind it," I wrote 13 years ago, "carry philosophical and theological meanings that are getting increasingly muddled and could become more so if it were applied even more broadly.

Like a lot of people, I decided I was wrong. What moved me were the conservative arguments for gay marriage put forward by the writers Jonathan Rauch, Andrew Sullivan and New York Times columnist David Brooks.

They see society as having a powerful interest in building respect for long-term commitment and fidelity in sexual relationships and that gay marriage underscores how important commitment is. Prohibiting members of one part of our population from making a public and legal commitment to each other does not strengthen marriage; it weakens it.

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Hold the Champagne

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I wish I could be as overjoyed by the California Supreme Court's ruling for same-sex marriage as the rest of the gay world is. Politically, the ruling merely tees up an initiative battle, to be decided by simple majority vote. Backlash against the Court may make that battle harder to win. Affirmation of the Court's decision by plebescite would be tremendous, but it's too early to celebrate.

As for the ruling itself, my reading of it leads to a reaction I wish I didn't have: the majority opinion here is an example of judicial overreach.

Caveat: That's a flash reaction subject to change as I learn more. But, as I understand the opinion, here's what the court did.

In Massachusetts, the state Supreme Court had a stark choice before it: SSM, or throw gays out the window (TGOW). TGOW was a clear denial of equal protection, not remotely justified by the state's arguments, so the court went with SSM.

California offers a very different situation. Gay couples already have available all the substantive state rights of marriage, under the state's domestic-partner program. The state Supreme Court was merely deciding whether the legislature could withhold the word "marriage" in deference to tradition and public preference.

No, said the court. Gays are a "suspect class" and no differentiation of any kind is tolerable. The Court acknowledges that in California "marriage" has always, until now, meant opposite-sex marriage. Nonetheless, it holds that marriage definitionally includes same-sex couples.

Wait a minute. If the state constitution never even contemplated SSM before, why does it mandate SSM now? Because, says the Court, social mores and state policies (including the state's domestic-partner law) have, in the past 30 years, recognized the fundamental importance of equal rights for gays. The state has implicitly repudiated its tradition of discriminating against gays, and marriage law must reflect this change.

What the Court seems to be saying, then, is that California can have SSM. And California can have TGOW, provided throwing gays out the window reflects a broad consensus against gay equality. The one thing California cannot have is compromise en route to gay equality. Once the state has decided to treat gay people equally, it must go all the way. No half-measures, or even 90-percent measures. No experiments, transitions, interim steps, or concessions to politics. All or nothing, now!

This kind of legal totalism, 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). As one of the dissents points out (PDF), it also may make legislators reluctant to even start down the road toward civil rights.

I think SSM is a better policy than civil unions (at least one of the dissenters agrees). 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.

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Behind ‘Enemy’ Lines

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The sign read, "Focus on the Family welcomes Dr. John Corvino and the Bible Babes." I did a double-take. "Bible Babes" sounds like the title of a really bad porn video, but there they were, listed with me on a placard at the welcome desk in Focus on the Family's administration building. I snapped a quick photo.

Focus on the Family aims at "defending the God-ordained institution of the family and promoting biblical truths worldwide." I was invited by my friend (and frequent debate opponent) Glenn Stanton, who works there.

"You're going WHERE?" my friends had asked. "Aren't you afraid they're going to try to, um, re-program you or something?"

"Don't worry," I responded. "I'm wearing my protective rainbow undergarments."

The truth is that I have long wanted to visit Focus. As a premier organization of the Christian right, Focus is one of the most influential opponents of gay rights in America. Gay-rights advocates and gay-rights opponents spend a lot of time talking ABOUT each other, and I was intrigued by the opportunity for us to talk (and listen) TO each other.

My visit consisted of a campus tour, a lunch, and a meeting with some members of Love Won Out, their "ex-gay" ministry. Although I was there for only a few hours, I learned several things.

First, Focus on the Family is a well-funded, well-organized operation. No surprise there. What impressed me is that the bulk of what they do…is to help families. Because Glenn had to leave town on a family emergency, I ended up taking a standard tour. I expected to hear plenty about how Focus fights the "gay agenda." Instead, I heard plenty about how they help people with parenting issues, relationship challenges, and other basic life concerns.

This is not to deny that fighting gay rights is a key goal for Focus. But that goal seems to constitute a far larger proportion of its public image than of its day-to-day activity-at least based on what I saw.

A second thing my visit made clear was that the people there tend to see God's hand in most aspects of their daily lives. "God lead us here…God blessed us with this…What God has in store…"-the language was constantly providential. This theme continued through my meeting with the ex-gays, whose stories typically included a strong sense of God's direction. Hearing their accounts made me realize that reconciling Christianity with a pro-gay stance will require more than simply addressing bible verses. For it wasn't (merely) the bible that convinced these people to renounce gay relationships. It was their understanding of their personal relationship with God.

These providence-infused accounts resonated with me, despite the fact that I'm now an atheist. For during my own coming-out process-when I was still deeply religious-I too felt that God was guiding me. Twenty years ago, I thought God was telling me "John, you're gay. Not `straight with gay feelings,' and not `going through a phase.' Gay. It's time for you to embrace that." Looking back, I would now describe that voice as my conscience, or perhaps my reflective self. But at the time, I firmly believed it was God.

I recounted my coming-out story to the Love Won Out group, who listened attentively. Then one member asked me, "But isn't it possible that was a deceiver talking? Isn't it possible that you were wrong?"

He seemed surprised when I responded, "Of course. That's always possible. But we have to do our best in discerning the truth, and that's where I believe the truth lies. I'm gay." I explained that believing in an infallible God does not render one infallible. It didn't for me 20 years ago, just as it doesn't for them now.

I'm a big believer in trying to find common ground with one's opponents-after all, we all have to live in the same world together. I believe that gay-rights advocates can find some common ground with Focus on the Family. But my visit also underscored areas of disagreement that will not permit compromise.

For example: I want every child growing up with same-sex attractions to know that it's okay to be gay. That vision is a big part of what motivates my work. That vision is deeply troubling to many (if not all) members of Focus on the Family, who see it as a fundamental threat to their values.

As long as Focus sees me as threatening their kids, and I see them as threatening "ours" (that is, GLBT kids), peaceful coexistence will be an elusive goal. Yet we still have to share the same world. I'm grateful for opportunities like this one to continue the dialogue.

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Golden State Equality

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Let's hope California can avoid a constitutional amendment overturning this morning's state Supreme Court ruling that laws excluding gay and lesbian couples from the right to marry are un(state)constitutional - which follows on the heels of twice legislatively passed (but twice gubernatorially vetoed) marriage rights bills.

(Gov. Schwarzenegger, who voted the bills, nevertheless says he supports the court's decion and opposes the proposed anti-gay marriage amendment expected to be on the November ballot.)

If the amendment can be defeated and same-sex marriage becomes an everyday reality in the nation's most populous state, then the pressure will certainly mount to challenge the (federal) constitutionality of the Defense of Marriage Act, which bars the U.S. government from recognizing state-sanctioned same-sex unions for purposes of joint tax filings, spousal immigration, Social Security survivors' income, and myriad other benefits that married heterosexuals take for granted.

More. From the New York Times:

Gay marriage is an issue on which the three major presidential candidates - John McCain, Barack Obama and Hillary Rodham Clinton - are pretty much in agreement. All oppose it, while saying at the same time that same-sex couples should generally be entitled to the legal protections afforded married couples. All think the decision should be left to the states.

So they're all pretty much in agreement, but you can bet HRC and the rest of the LGBT beltway gang will be going all out for a McCain defeat (and, if history is a guide, it will be their top electoral priority, dwarfing any efforts to stop state anti-gay marriage amendments).

Changing topics. Beware political hysteria carried forth on a wave of emotional charisma, and be prepared for the unhappy consequences. This picture, for me, invokes visions of Nuremburg.

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Whose Marriage Was He Defending?

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Former Congressman Bob Barr (R-Ga.), who is hoping to win the Libertarian Party's presidential nod and cause problems for John McCain, gets a puff profile here from the New York Times. But the thrice-married father of the anti-gay Defense of Marriage Act and congressional opponent of medical marijuana makes for a strange libertarian indeed.

More. Barr also had an terrible record on free trade (voting against it, that is) while in Congress. As David Boaz told the Times, if Barr should head the LP ticket, "I think he's going to have a problem." That seems clear: only unhappy GOP social conservatives - and New York Times liberals hoping for "Barr to block" - will wish him well.

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