IGF CultureWatch

During a recent debate in Bar Harbor, Maine, I was confronted with a seemingly novel argument against same-sex marriage. Rev. John Rankin of the Theological Education Institute of Hartford, Connecticut, claimed that same-sex marriage, far from being a civil right, actually undermines the very foundation of civil rights.

His argument is detailed in his document Yes to Man and Woman in Marriage, No to Same-Sex Marriage or Civil Unions, published in the Hartford Courant in April 2005. It reads, in part:

1. In the United States, the civil rights which we all enjoy are rooted in "the Laws of Nature and of Nature's God," in the unalienable rights to life, liberty, property and the pursuit of happiness.
2. The unique source for unalienable rights is the Creator, the God of the Bible.
3. The Creator defines true marriage as one man and one woman in mutual fidelity. The health of society and well-being of children are rooted in this foundation. Thus, the Source for unalienable rights also gives us the true definition of marriage.
4. In human history, no society rooted in the approval of homosexuality has ever produced unalienable rights for the larger social order.

(The full text is available at Rankin's website.)

The core of Rankin's argument is the second premise: the unique source for unalienable rights is the God of the Bible. From this, he derives the conclusion that we ought to define civil marriage according to biblical teaching.

If I understand Rankin's argument correctly (and during our debate he admitted that I did), then it's the worst kind of argument: it proceeds from what is not true to what does not follow.

It is not true that the unique source for unalienable rights is the God of the Bible. The notion of "unalienable rights" was introduced during the Enlightenment, when philosophers and politicians rejected appeals to biblical revelation in favor of the sovereignty of human reason.

Among those philosophers and politicians were our nation's Founders, who quite deliberately made no mention of God in our Constitution. Indeed, when Franklin (himself quite skeptical about religious authority) proposed during the Constitutional Convention to begin each session with a prayer, Alexander Hamilton reportedly quipped that this was no time to seek "foreign aid."

While the Founders were not atheists in our sense of the term, neither were they biblical literalists. Quite the contrary, they considered much of the Bible to be, in Jefferson's words, "defective and doubtful." Which is why, even if one grants Rankin's historically confused premise about the source of unalienable rights, it does not follow that we ought to define civil marriage according to biblical teaching. For it could be that the Bible is right about unalienable rights-or would be, if it actually contained that notion-but wrong about various other things, such as slavery, or homosexuality, or the status of women.

More generally, Rankin's inference is an example of the genetic fallacy, which confuses the historical source of an idea with its justification. Thus, for example, from the fact that many abortion-clinic bombers have been inspired by biblical teaching, it does not follow that the Bible actually provides any support, much less the sole support, for abortion-clinic bombing. Same for unalienable rights.

Besides, the Bible has historically inspired as many rights-abusers as rights-supporters. One could just as easily argue that the unique source for the divine right of kings is the God of the Bible, and then advocate replacing our democracy with a monarchy.

Rankin's argument also depends on a suppressed premise, namely, that if the Bible teaches a doctrine, it ought to be made a matter of civil law. Put aside debates over whether the Bible actually contains a blanket condemnation of homosexual conduct. Taken to its logical conclusion, Rankin's position entails that I have no right to sleep in on Sunday, since the Bible clearly teaches us to keep holy the Sabbath. Yet Rankin claims (inconsistently) that he supports freedom of religion.

One premise I do accept is Rankin's fourth: no society rooted in the approval of homosexuality has ever produced unalienable rights. But that's because no society has ever been "rooted in the approval of homosexuality." One might as well argue that no society rooted in the approval of left-handedness has ever produced unalienable rights-or anything else, for that matter. Non-existent societies don't produce anything.

If, however, Rankin means that societies tolerant of homosexuality have been more hostile to unalienable rights than those intolerant of homosexuality, then his claim is simply false. If there is any correlation between tolerance of homosexuality and respect for life, liberty, and the pursuit of happiness, the correlation is a positive one.

A resounding lesson of history is that we ought to be very careful when people try to make their interpretation of God's commands the basis for civil law. In that sense, Rankin's position is unfortunately not very novel at all.

If we do better than expected when Texans vote on an anti-gay marriage amendment on November 8, much credit should go to the National Gay and Lesbian Task Force. NGLTF is airing seven ads on Houston-area television stations. They are the first-ever to defend the idea of gay marriage, and they do so on essentially conservative grounds.

In contrast to the badly flawed, Texas-based "No Nonsense in November" campaign (which I criticized in detail two weeks ago in this column), the NGLTF ads are right both tactically and substantively. They could provide a template for future marriage-amendment campaigns.

Tactically, the ads are exactly right. They are being aired in Houston, which should be the center of efforts to defeat Amendment 2. All of them depict actual Houston residents speaking against the amendment.

Turnout in the state for this election is expected to be very low, perhaps under 10 percent of registered voters. Yet turnout in Houston, where municipal elections are being held the same day, should be disproportionately high. Urban Houston voters are somewhat more socially tolerant than voters elsewhere in Texas. Four years ago, they almost defeated an effort to ban same-sex domestic partners benefits for city workers.

NGLTF's limited resources are thus being spent wisely. By contrast, the No Nonsense campaign is based in Austin, 160 miles away from the center of the action. Yard signs produced by No Nonsense have been scarce, even in Houston's gay neighborhoods.

Substantively, the NGLTF ads are impressive. Four of the seven feature gay couples. In one, a woman identified as a "Reverend," sits beside her partner in their home. She says: "God loves us like everyone else, and wants the same thing for us as God wants for God's straight children." Her partner adds that when she proposed, she intended a "long-term commitment." The picture fades to black and the following message appears in stark white letters: "How would you feel if you couldn't marry the person you love?"

In another of the gay-couple ads, two men are described as "Together for 18 years." A third gay-couple ad describes a woman as "Committed to partner, Anita, for 21 years." She tells us hers is a family "in every sense of the word."

The two most effective of the seven ads feature parents talking about their love for their gay son and their hopes for his future. In one, the mother emphasizes her religious beliefs. "My entire Christian faith can be summed up with Jesus Christ's two new commandments," she says, "which was to love God and to love each other. He didn't say, 'Love each other unless they're gay.' "

In the other ad, the same mother delivers an eloquent description of the meaning of equality. "My children want the same thing their father and I wanted," she begins. "A home, a community, a church, friends, a job. . ." Here the father chimes in, "and someone who loves them." "And someone who loves them," she repeats. Describing her son's relationship with his partner, she closes by saying, "I hope they're together forever." The screen fades to black with the message, "Gay people want what we all want."

The NGLTF ads are simple and powerful. They don't talk about abstract "rights." They don't list all the legal benefits of marriage, as if this were a struggle over the tax code. There is nothing post-modern about them. There's not a single sexual liberationist in sight.

Instead, the ads emphasize the needs of real gay families, including the children they're raising. They highlight long-term commitment by gay couples. They use religious faith, spoken by religious people, as an argument against the amendment. And they focus on the similarities-not the differences-between gay and straight Americans.

Most significantly, they begin to make the positive case for gay marriage. They are not shy or apologetic about it. They do not say that the amendment is "unnecessary" because gay marriage is already banned (although that's true). They don't complain about how broad the amendment is (although it is very broad). They don't warn about Machiavellian politicians pushing the amendment (although that's a big part of the reason this is even on the ballot). They are not in the least politically partisan.

Like it or not, when these anti-gay-marriage amendments reach a ballot, most people do not vote on these sorts of legal and political-insider issues. They vote on marriage.

NGLTF's strategy is a dramatic-and needed-departure from the losing anti-amendment campaigns everywhere else in the country. By contrast, the No Nonsense campaign has avoided the "M" word like the plague and has been partisan Democratic in an overwhelmingly conservative and Republican state.

Where the state-based campaign is a tired rehash of losing themes from other amendment fights that have danced around gay marriage and left our side dispirited, NGLTF's ad campaign is refreshingly honest and principled. The amendment, it says simply, should be defeated because gay marriage is good.

For Texas, it may be too little, too late. But if tried elsewhere, this straightforward message might help us pull closer. At the very least it begins the long-term process of convincing Americans there is nothing to fear from gay marriage.

Marriage. Commitment. Families. Children. Faith. I never thought I would see this day, but NGLTF is making the conservative case for gay marriage.

The NGLTF ads can be viewed here.

First published October 26, 2005, in the Chicago Free Press.

After an agonizing series of appeals and remands up and down the judicial system, on October 21 the Kansas Supreme Court finally overturned a Kansas law stipulating a 13-fold longer prison sentence for sex by teens with underage youths if the partners are same sex rather than opposite sex.

The case involved Matthew Limon, an 18-year-old sentenced to 17 years in prison for consensually fellating a male youth who was 14, just shy of his 15th birthday. Had the two been of opposite sexes, the maximum sentence would have been 15 months in prison.

Bizarrely, a Kansas appeals court upheld the sentence, whence it was then appealed to the U.S. Supreme Court. Having just decided its groundbreaking Lawrence decision striking down state sodomy laws, the Supreme Court remanded the case to the appeals court with instructions to reconsider in the light of Lawrence.

But in a stunning display of either judicial effrontery or obtuseness, despite the clear signal from the Supreme Court that Lawrence applied to this case, the appeals court once again upheld the draconian sentence, insisting that:

1. Lawrence did not apply because this was not a privacy issue and

2. The law protected minors from sexually transmitted diseases more common among homosexuals.

Appeals court judge Henry Green asserted further that the law:

3. Upheld traditional (i.e., anti-gay) sexual mores and

4. Promoted traditional (i.e., heterosexual) sexual development.

It was that decision that a unanimous Kansas Supreme Court just overturned, rejecting in turn each of the various trumped-up rationales for the law offered by Kansas Attorney General Phill Kline and the two judges in the majority.

"Trumped-up"? According to the New York Times, Kline argued in his legal brief that striking down the harsher penalties for gays would "begin a toppling of dominoes which is likely to end in the Kansas marriage law on the scrap heap ... allowing such combinations as three-party marriages, incestuous marriages, child brides, and other less-than-desirable couplings."

This is simply boiler-plate language from the religious right playbook, the argument being that if society cannot deny all equality for homosexuals and penalize them with the utmost severity, it cannot prohibit anything at all and society will collapse. Call it the "Cry Havoc!" defense.

Granted that state officials may and do say anything no matter how preposterous to try to justify existing laws, hoping that some mud will stick, and that gullible or bigoted judges will accept it. But still you have to wonder if the Kansas Attorney General could imagine no reason to prohibit a man from marrying his 8- and 9-year-old daughters that did not also require harsh prison sentences for teenage gay sex. If not, perhaps Kansas needs a smarter attorney general.

At any rate, the Kansas Supreme Court rejected all the arguments offered in support of the law in an opinion that could be summarized as: "What part of 'equal protection' don't you understand?"

The opinion by Justice Maria Lockert pointed out to begin with that "moral disapproval of a group cannot be a legitimate state interest." This follows directly from Lawrence and behind it Romer. It also constitutes a blow directly against the basic religious right claim that moral-often religious-disapproval is an excellent reason to regulate behavior.

Lockert also made short work of the disease transmission rationale for the law. She pointed out that the law was both over-inclusive because oral sex, the youths' activity, is unlikely to transmit HIV, and under-inclusive because it stipulated lighter penalties for heterosexual anal sex which is more likely to transmit HIV and other STDs. As the law failed to reach its purported aim, it lacked a justification for discriminating and so violated the equal protection provision of the Constitution.

The mistaken supposition by appeals court judges that early homosexual activity might induce a heterosexual youth to become homosexual, their view of all homosexual sex on the model of male anal sex, and their ignoring of the incidence of heterosexual anal sex, all bear witness to the ongoing ignorance of many judges about sexual behavior lamented by Kinsey decades ago.

That ongoing ignorance emphasizes the importance in legal cases involving gays-or other sexually related issues-of filing amicus briefs citing current scientific findings on sexual behavior. No one should assume that middle-aged and elderly judges know anything about sex other than their own behavior.

As 7th Circuit Court of Appeals judge Richard Posner in his 1992 Sex and Reason observed in evident frustration, "The dominant judicial, and I would say legal, attitude toward the study of sex is that 'I know what I like' and therefore research is superfluous."

Finally, it might be reasonable to wonder, as Judge Posner does, if Kansas did not get it backwards-if the age of consent and the penalties for violating the law should not be lower for homosexual than for heterosexual sex because in addition to the possibility of contracting sexually transmitted diseases, young women run the considerable risk of becoming pregnant. Such a discriminatory law would at least have the merit of being defensible on some rational basis.

First published, in a slightly different form, October 25, 2005, in the Valley News (Vermont/New Hampshire).

Supporters and opponents of gay marriage have a new challenge on their hands. It's called Connecticut.

On Oct. 1, Connecticut became the third state in the nation (along with Vermont and Massachusetts) to offer gay and lesbian couples the same legal rights and responsibilities that states offer straight couples.

Connecticut is the first state to do so without a court order.

And the whole affair has drawn a big yawn.

On that historical Saturday, Connecticut state Rep. Michael Lawlor said, "(T)he big news...is UConn beat Army, not civil unions. The people of Connecticut are comfortable with this."

And that's a problem for same-sex marriage opponents and advocates alike.

For opponents, many realize that it is almost impossible to get political traction by resisting legal protections for gay couples. In Massachusetts, the only state where such protections go by the name "marriage," a majority of residents have made peace with the idea of gay men and lesbians getting hitched. There may yet be a statewide referendum on same-sex marriage, but that vote won't come until 2008, and most observers feel that it will be difficult to persuade voters to take marriage away from the more than 6,000 gay and lesbian couples who, as of this writing, have tied the knot since May 2004.

Meanwhile, in California-a state where over 20,000 gay couples in domestic partnerships have near-parity on a state level with straight couples-opponents of same-sex marriage are thanking Gov. Arnold Schwarzeneggar for vetoing a bill that would have legalized gay marriage. But on the same day of the veto, the governor signed four bills that extend the protections given to gay Californians, and he made clear that he would not support petition drives in his state to roll back the rights and responsibilities California law currently gives gay couples.

So Connecticut is more bad news for same-sex marriage opponents. The news is so bad, in fact, that the organizations that have railed against same-sex marriage in the past-Focus on the Family, Concerned Women for America, the Family Research Council-have said next to nothing about Connecticut. The silence has been deafening.

Equally silent are the supporters of same-sex marriage. Neither of the two major gay advocacy organizations-the Human Rights Campaign and the National Gay and Lesbian Task Force-issued a press release celebrating Connecticut's achievement. Because civil unions are not marriage in name, these organizations have kept mum on Connecticut.

But holdouts for the M-word have long overplayed their hand. Marriage is needed, they tell us, because: federal benefits are attached to marriage; states recognize other states' marriages; marriage has social esteem that civil unions do not have.

April 15 showed us all that just because Massachusetts calls a couple married, the IRS doesn't have to. The federal Defense of Marriage Act prevents the federal government from recognizing same-sex marriages, so gay leaders in Massachusetts encouraged couples to check the single box on their federal returns but to write in the margin "Married and proud in MA." So much for federal benefits.

Meanwhile, Richard Blumenthal, Connecticut's attorney general, wrote that "civil unions performed in other states are entitled to full faith and credit in Connecticut (but) out-of-state same-sex marriages have no legal force and effect here." A Vermont couple with a civil union suddenly has better legal footing in Connecticut than does a Massachusetts gay couple. So much for portability.

All that's left, then, is the social esteem argument, which, I admit, I've never understood. Recently I asked my neighbor, a justice of the peace, to recount for us the memorable weddings she has performed. Without missing a beat, she spoke of our ceremony. I scratch my head to imagine what, if anything, we would gain if the town clerk swapped our civil union license for a marriage license. Our family and friends see us as married, as do we.

Which makes Connecticut one more piece of bad news for same-sex marriage supporters. If gay Connecticut couples end up having moving ceremonies in churches and gardens, if they announce their unions in newspapers, if their friends and families see them as married, how will supporters of same-sex marriage win them over?

Perhaps Connecticut isn't even the biggest challenge. Great Britain is inaugurating civil partnerships, a legal category that, according to a Reuters story, gives gay couples "the same property and inheritance rights as married heterosexual couples and entitles them to the same pension, immigration and tax benefits." With as many as 4,500 couples estimated to sign up in the first year alone, opponents and supporters of gay marriage there and here have their work cut out for them: for opponents, how to turn back the tide that is bringing legal rights to gay couples; and supporters, how to convince the world that the only way to confer these rights is through marriage.

The contending sides in the gay-marriage controversy often seem to talk past one another. They start from such radically different premises that it is hard to speak of genuine "debate" at all. One side says the issue is a matter of basic human rights; the other says it is about preserving a traditional form that is the basis for all successful human societies. On this issue, Left and Right differ dramatically on law, history, culture, social science, and philosophy.

But among conservatives, the debate is far more interesting and potentially more fruitful. Most conservatives oppose gay marriage. Indeed, the conservative columnist Maggie Gallagher says it means "losing American civilization."

Conservatives are not unanimous, however. Beginning in the 1990s, a few prominent gay intellectuals like Andrew Sullivan and Jonathan Rauch began making what Sullivan called the "Conservative Case for Gay Marriage." This "conservative case" has rested on the idea that marriage would benefit gays, generally by encouraging long-term commitment among gays and particularly by settling gay men. It would therefore benefit our whole society.

Since then, David Brooks, a conservative columnist for the New York Times, has publicly embraced the idea. George Will, a prominent conservative commentator, believes we ought at least experiment somewhere with gay marriage to see what effects it produces. A much larger number of American conservatives oppose a federal marriage amendment, maintaining that the issue ought to be left to the states to decide for themselves.

But it must be admitted that the idea has not exactly lit a fire of support under most conservatives. In the interest of advancing the debate a bit, let's see if we can establish some common ground among conservatives on the subject of gay marriage.

There are 10 premises in this debate that most conservatives, opponents and supporters of gay marriage alike, probably share:

(1) Marriage benefits society, and so anything that harms marriage harms all of us, whether married or not.

(2) Marriage directly benefits the individuals married.

(3) It is on average better for children to be raised by two married parents than to be raised by single parents or by unwed cohabiting partners.

(4) Because of the benefits identified in Premises 1-3 above, marriage should be encouraged by public policy and specifically should retain its privileged position in the law.

(5) It is socially preferable for gay persons to be in committed relationships than to be promiscuous.

(6) If any significant change to an important social institution like marriage is undertaken at all it should occur slowly and incrementally, state-by-state, rather than in one fell swoop (as by court-ordered, nationwide gay marriage), so that we can assess the impact of the change and adjust the direction of reform or completely halt the reform.

(7) Proposals for change in policy about an important social institution like marriage must take account of the social effects of the change, as observed or as reasonably predicted, not simply the "rights" and interests of those advocating the change.

(8) Proponents of change in an important social institution like marriage bear the burden of persuasion.

(9) Marriage should remain reserved for two adult persons not closely related by blood.

(10) Whatever public policy is adopted on the subject of gay marriage, churches and religious authorities must remain free to refuse to recognize such marriages if they wish to do so.

Note how much this common ground separates conservatives from the left, including the gay Left, much of which is suspicious of marriage and so might well disagree with at least the first eight premises and perhaps even with the ninth and tenth premises.

Of course, some of these premises are stated in a way that masks important areas of disagreement among conservatives. For example, pro-gay-marriage conservatives believe that the benefits of marriage to children identified in Premise #3 will also accrue to children raised by same-sex married couples; conservatives who oppose gay marriage doubt this. Also, some conservative opponents of gay marriage might argue that, regarding Premise #5, while gay monogamy is better than gay promiscuity, gay chastity would be preferable to either. We will have to address such differences.

But, stated at the level of generality at which they are stated above, I think most conservatives can agree with each premise as far as it goes.