IGF CultureWatch

My friends Janna and Carrie are married to each other. So are Michelle and Heather, and Amy and Beth. They are married because they love each other and have committed to each other; they are married because they can be.

All three couples live in Massachusetts, which remains, after the New Jersey decision, the only state in the Union where it is legal for gays and lesbians to marry. They are just three of the more than 8,000 gay couples who have married in Massachusetts so far.

The New Jersey Supreme Court could have gone the Massachusetts route, mandating gay marriage. It did not. Instead, in a 4-3 split, the court said that equal rights are not optional. What to call those equal rights is.

The legislature, they said, has 180 days to decide. (All seven judges agreed unanimously that New Jersey's constitution protects the equal rights of gays and lesbians-the three judges in the minority voted for marriage instead of leaving it open to the legislature.)

This is a wise decision in our political climate. Coming so soon before the November mid-term elections, a ruling that ordered same-sex marriage in New Jersey would likely have propelled forward the anti-marriage amendments that will be on the ballot in eight states: Arizona, Colorado, Idaho, South Dakota, Wisconsin, Virginia, Tennessee and South Carolina.

It could have been a disaster. We could have seen a backlash like the one that roiled the country after Massachusetts gave us marriage in 2003.

So yes, the decision was wise. Measured. It gave gays and lesbians in New Jersey access to the full rights they are entitled to, whatever that package of rights is called by legislators. I am thrilled-absolutely thrilled-that New Jersey is joining Connecticut and Vermont in giving all of its citizens the perks of marriage, including survivors benefits under workman's compensation laws, the ability to not testify at a spouse's criminal trial and tuition assistance.

But.

Equal-marriage activists are right when they say there is something special about the word "marriage."

It may seem like semantics. I myself thought that semantics was all it was, until I went up to Massachusetts a few weekends ago to play football and spend some time with Janna and Carrie, and Michelle and Heather (I need to see Amy and Beth on my next trip-sorry, guys).

I know many, many long-term lesbian couples in Chicago and New York. They own houses and condos, they have children and pets and car payments and gardens and holidays with the in-laws. They are as committed as my married friends.

I myself was in a partnership for seven years that both of us considered a marriage (this was before legal marriage was even a pipe dream). We had a ceremony; we received gifts. We presented ourselves to new acquaintances as till-death-did-we-part. Certainly, that was our intention, if not the eventual reality.

So I know that mere words-"marriage" or "civil unions" or "domestic partnership"-do not have the power to put a relationship together or take it apart.

But there's something special about the lesbian couples who are legally married, a striking difference between them and my partnered friends. There's an ease about them. A security. A relaxed sense of entitlement when dealing with officials, contractors, lawyers, employers. Marriage gives them personal and social standing that being partnered simply doesn't.

The words matter.

Not just to them. The words matter to their friends and neighbors and family members. Straight people understand about marriage. They understand what kind of commitment it is. They intuitively get the words wife, husband. They don't have to wonder after a year if the married couple is still together-they can assume they are, or else expect to commiserate over the news of divorce. They don't have to stumble over words, don't have to wonder if they say "girlfriend" or "significant other" or "partner" or what.

When faced with the words "married couple," straight people know how the couple should be treated, and they treat them accordingly. When they don't treat them accordingly, it is clear to everyone that they are discriminating.

Marriage is special. It just is. It is one of the marks of adulthood in our society, the term we use to describe the crucible that creates new families.

New Jersey isn't ready for marriage yet. Nor, obviously, is most of the country. If civil unions are what we can get right now, then civil unions are what we should continue to fight for, what we should agree to when compromise is necessary-as it inevitably is.

So it is civil unions for now. But let's not forget that we're aiming for what Janna and Carrie, Michelle and Heather, and Amy and Beth have already.

We want marriage.

This article appeared on Examiner.com on October 30, 2006.

There's never been a same-sex marriage in Virginia, and they've been outlawed by statute for more than 30 years. So why are Virginia voters being asked to vote on a constitutional amendment to ban gay marriage?

Mostly because it's a bait-and-switch game. The proposed Ballot Question No. 1 is far broader than a simple ban on gay marriage.

Supporters say the amendment is needed in order to prevent activist judges from unilaterally changing the definition of marriage. But no liberal activists have yet been sighted in the Virginia judiciary. And that's no surprise because judges in Virginia are selected by the same legislature that has repeatedly passed bans on gay marriage, civil unions and domestic partnerships, including this proposed amendment.

In fact, Virginia is one of only two states where the legislature directly appoints judges to the state courts, including the state Supreme Court. It is inconceivable that Virginia judges, including four members of the Supreme Court, are going to impose gay marriage on the state. Virginia is not Massachusetts nor Vermont or New Jersey, and our judges are certainly more conservative than those in New York, where the high court recently upheld the state's ban on gay marriage.

The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law. Take a look at the actual text of what journalists are inaccurately calling "the proposed ban on gay marriage."

The first sentence of the amendment reads:

"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions."

That sentence is what amendment supporters want you to read. But read the rest of it:

"This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." [emphasis added]

Note the italicized words. The use of the word "or" makes this a very broad law.

Supporters of the amendment rely on the assurance of Virginia Attorney General Robert McDonnell that passage "will not affect the current legal rights of unmarried persons."

But lawyers disagree. The firm of Arnold and Porter issued a 71-page analysis of the amendment coming to starkly different conclusions. Their lawyers concluded that the amendment could be interpreted by Virginia courts to invalidate rights and protections currently provided to unmarried couples under domestic violence laws, block private companies from providing employee benefits to domestic partners, and prevent the courts from enforcing child custody and visitation rights, as well as end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: "This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state."

We should not pass constitutional amendments whose effects are so uncertain. A simple ban on gay marriage would be redundant, but it would have the virtue of clarity for the courts. The actual amendment invites judges to review every private contract, every employee benefit, every legal arrangement between unmarried partners.

That should be anathema to opponents of judicial activism. It should also be a frightening prospect to Virginia businesspeople. A growing number of companies are offering benefits to the domestic partners of gay employees, and they will want to locate in states where those benefits are clearly legal.

This amendment goes too far. But even its first sentence - the ban on gay marriage - is unworthy of a state that was the birthplace of American freedom. It is a cruel irony that this amendment to restrict contract rights and exclude loving couples from the institution of marriage is to be added to Virginia's Bill of Rights, a document originally written by the great Founder George Mason.

Mason's eloquent words inspired Thomas Jefferson in writing the Declaration of Independence and James Madison in writing the Bill of Rights for the U.S. Constitution. We should not add language to Virginia's Bill of Rights that would limit rights rather than expand them.

Gay marriage is not legal in Virginia, and there's no prospect of changing that in the foreseeable future, whether by legislative or judicial action. Ballot Question No. 1 is unnecessary and will create legal uncertainty.

David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer.

It has happened again, and it's going to keep happening.

A Minneapolis bus driver recently complained that an advertisement for a gay magazine that ran on the back of some city buses offended her religious beliefs about homosexuality. The ad depicted the face of a young man and carried the slogan, "Unleash your inner gay." The magazine it advertised is not pornographic and nothing in the ad itself was even sexually suggestive.

Nevertheless, the driver told the city transit authority that she could not, in compliance with her faith, drive a bus that carried such an ad. The transit authority at first accommodated her wishes by agreeing to assign her only to buses that didn't carry the ad.

But after union leaders and some public officials complained that the accommodation sent a message of "intolerance" and disrespect for the "diversity" of the city's riders and other bus drivers, transit officials announced they would "be reluctant" to grant such requests in the future.

How should those of us who support equal rights for gay people think about incidents like this? Should we magnanimously try to accommodate the deep religious convictions of those who oppose gay civil rights, risking that these objections will proliferate and undermine equality? Or should we reject all such accommodations, no matter how small, subverting the very principles of pluralism and tolerance that the gay civil rights movement has been built upon?

I generally support accommodations for sincere religious objectors, certainly where the accommodation can be made at little or no cost to other legitimate public interests. These other public interests include administrative burdens and hardship to the class of people protected by the law (e.g., an antidiscrimination law).

In the case of the Minneapolis bus driver, the public interest was largely administrative and appeared to be no more than trivial in magnitude. It was easy to assign this single driver to one of the majority of buses that didn't carry the offending ad. (If half the bus drivers refused to drive buses with ads that offended them, we'd have a different issue.) We have no reason to believe that the driver's religious objections were not sincere or that they were part of an orchestrated campaign to drive gay-themed ads off the city's buses.

But for a generous policy of accommodations to work in a diverse society, we must have some reasonable self-restraint on the part of potential objectors. They must search their consciences in good faith to ask whether compliance (in this case, driving the bus to which one is assigned) really would violate a religious command to the contrary. Nobody thinks bus drivers endorse the messages or products in the ads on the buses they drive. I doubt that even most religions that condemn homosexual acts would really require that an adherent not drive the bus under these circumstances.

The risk is that drivers who are simply uncomfortable with certain ads will (either mistakenly or dishonestly) label their objections "religious" and demand reassignment. This problem is especially great when it comes to anything gay-related because many people still have a gut-level "ick" reaction to homosexuality. If challenged, they often vaguely attribute this reaction to religious teachings.

A policy of accommodation cannot work if objectors insist on a right to be made comfortable. Our society is much too diverse, religiously and otherwise, for that.

By saying they would "be reluctant" to reassign offended drivers in the future, transit authorities struck a sensible balance. They leave open the door to a possible accommodation in isolated cases while signaling their skepticism about such claims in a way that may (1) dissuade impostors and (2) cause sincere religious objectors to examine more closely their own religious scruples before requesting an accommodation.

Less persuasive are "diversity" and "tolerance" rationales for denying accommodations like this. If transit authorities had accommodated a driver's religious objections by removing the gay-themed ads or by permitting a driver to refuse entry to homosexual riders, that would truly signal intolerance.

But here, by hypothesis, we can accommodate a religious objector at no apparent cost to anyone. The only thing lost is the corrosive satisfaction of knowing that a dissenter from our values has been made to heel. I'm not sure this satisfaction is all that different in form from the old rationale for sodomy laws, under which the state enforced the nosy preferences of the moral majority even though it could show no appreciable harm to anyone from the activity prohibited.

And why don't diversity and tolerance include religious dissenters from majoritarian values? It shows no intolerance of gay people to accommodate sincere religious objectors where the accommodation will cause no harm; on the contrary, it shows tolerance for religious diversity.

Keeping the culture war at a manageable level of conflict requires both sides to make some sacrifices. The state should accommodate religious objectors where the cost of doing so is small. But religious objectors should accommodate state interests where doing so is religiously permissible and does little more than make them uncomfortable.

I am not sure either side is capable of this sort of self-restraint. Many people seem to want to turn up the volume and temperature by using every confrontation as a chance to accuse the other side of prejudice and bad faith. It doesn't have to be that way.

If not the morning after the election, then soon thereafter, we will all move from the false certitudes and pretended stark choices of the political contest to the contingencies of actually having to govern. And given the nastiness and disconnect from reality of some campaign ads, you are probably as ready as I am for this election season to be over.

Lately, my email inbox has been a competition between the Democratic National Committee and a horde of people who want to enlarge my penis, send me winnings from a lottery I never entered, renew my account information at banks I never heard of, and appoint me the American agent for various well-funded overseas enterprises that are desperate to receive the benefit of my investment skills. I am particularly doubtful as to why I am being wooed so assiduously by someone who signs his messages, "Governor Howard Dean, M.D."

I love the fundraising emails that repeat a link to facilitate online giving after every couple of paragraphs, like a child tugging at its mother in the supermarket: "Mommy, Mommy, click on this, click on this!" If voters are really as stupid as campaign managers seem convinced that we are, then perhaps we shouldn't blame those Diebold electronic voting machines for any strange results that occur on Election Day.

On October 18, Gov. Dean sent me one of those "Feed me! Feed me!" emails seeking dollars from "people just like you who believe that every Democrat should own a piece of this party - in contrast to the special interests and lobbyists that own the Republican Party (as if Americans needed another reminder of that, Ohio Republican Congressman Bob Ney pleaded guilty to corruption charges on Friday)." Somehow, Dean neglected to mention Louisiana Democratic Congressman William Jefferson, who was videotaped accepting $100,000 in bribe money, $90,000 of which was later found stuffed in his freezer.

On October 19, Hillary Clinton sent me an email on behalf of Tim Mahoney, the Democrat running for Mark Foley's seat in Congress. Inevitably, she talked about the need "to protect our children," just as Maryland Republican senatorial candidate Michael Steele does in a TV spot. This annoyed me despite my own criticism of Foley's abuse of his office, because few people honestly think of 16-year-olds as children, and the Democratic cries of outrage have been over-amplified by opportunism.

Sen. Clinton's message continued, "Florida's 16th district deserves better representation than Mark Foley - and we all deserve a better Congress!" While I agree that Congress will be improved by getting rid of the Republican leadership, I see no evidence that, the page scandal aside, Rep. Foley was such a poor representative in comparison to many of Clinton's Democratic colleagues.

Let's have a look at the Human Rights Campaign's Congressional Scorecard. Mark Foley's scores for the 109th and 108th Congresses: 75 and 88. Sen. Clinton (D-New York): 89 and 88. Sen. Dianne Feinstein (D-California): 88 and 75. Sen. Tom Harkin (D-Iowa): 78 and 75. Sen. Evan Bayh (D-Indiana): 89 and 75. Sen. Bill Nelson (D-Florida): 89 and 75. Sen. Mark Pryor (D-Arkansas): 89 and 63. Sen. Carl Levin (D-Michigan): 78 and 63. Sen. Max Baucus (D-Montana): 67 and 50. Senate Democratic leader Harry Reid (D-Nevada): 67 and 63.

To be sure, Democrats overall were much better than Republicans. For example, ten Democratic senators earned perfect 100s from HRC in the 109th, compared to one Republican, Lincoln Chafee (R-Rhode Island). But the close races that will decide who controls the 110th Congress are between particular individuals, not statistics. Red-state Democrats, in order to defeat their Republican opponents, typically run to the right. For example, Tennessee Democratic senatorial candidate Rep. Harold Ford earned HRC scores of 25 and 44 in the 109th and 108th Congresses, after earning a 100 in the 107th. That shows the effect higher ambitions can have on a Bible-Belt politician.

None of this is meant to discourage those who seek a change in leadership on Capitol Hill. I am simply trying to administer a dose of reality. Even if the Democrats take control of both houses, they will almost certainly have narrow majorities, and the overall numbers on gay-related issues are unlikely to change much. The main difference, and it's a big one, will be in who gets to set the legislative calendar and run committees. Imagine the extraordinary moment when Rep. Barney Frank (D-Massachusetts, HRC score 100) takes over the Financial Services Committee.

The value of a Democratic Congress would not be that it would pass pro-gay legislation (which would only provoke a presidential veto), but that it would apply brakes to the hell-bound train of the nation's current leadership. That may be reason enough for deciding your vote this time out, but let's keep our eyes open. The last Democrat-controlled Congress gave us Don't Ask/Don't Tell and a ban on immigration for HIV-positive persons.

Looking ahead to the 2008 presidential race, the Democrats will need more than public disaffection with a retiring George W. Bush. They will need a candidate who can appeal to voters across the political spectrum. As it happens, Sen. Barack Obama (D-Illinois, HRC score 89 for the 109th) just announced he is considering a run. He is bright, attractive, inspiring, and a deft centrist. He has charisma Hillary can only dream of. Please don't throw cold water on me for a while. I am entitled to dream, aren't I?