IGF CultureWatch

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.

First published October 15, 2005, in National Journal. Copyright © 2005, National Journal.

A cloudy afternoon on a recent Saturday in western Massachusetts. Rain sprinkles the Berkshire hills. Strolling in twos and threes along paths between broad lawns, 80 or so wedding guests make their way to a performance barn on the grounds of Jacob's Pillow. Rustling, cheerful, curious, they take their seats. Gray light filters through high windows and casts soft shadows among the rafters. The barn is not a sanctuary, but it feels like one today.

A violinist, one of the relatives, begins a Corelli prelude, and the wedding party enters. Both grooms wear tuxedos and boutonnieres. The minister, a young seminarian in the United Church of Christ, tall in his robes, begins. Under order of the state Supreme Court, same-sex marriage is legal in Massachusetts, and today the minister will marry Jamie Beckland and Michael Pope.

"Every relationship of love is holy, sacred, and worthy of public affirmation and celebration," he says, with a touch of emphasis, slight but sufficient, on the word every. "We pray that this couple will fulfill God's purpose for the whole of their lives." Emphasis again, this time on the word whole. Not everyone in the hall picks up the inflection, but the grooms do.

Jamie is 27, originally from Wisconsin, now a development officer at the Brookings Institution in Washington. Michael, also 27, works at a private research company. They plan to move to Massachusetts, the place where Jamie lived when they met and the only state where their marriage has legal force. Jamie is taller, blond, bespectacled, thin, with the bearing of the former dancer that he is. Michael is dark, heavyset, as reserved as Jamie can be bubbly, a product not of the liberal Upper Midwest but of conservative southwestern Virginia, a state notorious for its gratuitously anti-gay legislation.

For all the differences, Jamie and Michael and their families have this in common: divorce. The newlyweds' immediate families count eight divorces between them, four on each side. Michael's parents divorced when he was 6, Jamie's when he was 10. "I think there's a whole generation of kids from broken homes who only want to be married once," Michael says. This marriage of two men, so radical by some lights, aspires to reconsecrate the deepest of marital traditions.

A few weeks before the wedding, over coffee at Starbucks, I asked Jamie why he wanted to marry. For my generation of gay men (I am 45), legal marriage was unthinkable, and emerging into the gay world often meant entering a cultural ghetto and a sexual underworld. Jamie, who could just about be my son, replies with an answer that turns the world of the 1970s and 1980s upside down. Once he realized he was gay, he says, he simply expected to marry.

"Why does anybody get married?" he asks. "I wanted the stability, I wanted the companionship, I wanted to have a sex life that was accepted, I wanted to have kids. For me, it's not a choice. A marriage evens you out."

The couple met on May 18, 2002. The next day, they exchanged telephone numbers at church (both are Christian). Within weeks, they knew it was serious. In February of this year they took a trip to Massachusetts and went snow-shoeing on the grounds of Jacob's Pillow, a dance center where Jamie had worked when they met. There, on an outdoor stage, Jamie got down on one knee. "Which was hard, because we were in snowshoes."

He gave Michael a compass inscribed, "May we always find our way together," and launched into his carefully planned proposal, doing fine for about a minute before starting to cry. Michael began laughing, Jamie pulled himself together long enough to propose, and the two kissed, their faces stung by freezing tears.

Most weddings occasion unambiguous joy, but at this one, reactions run the gamut from delight to incredulity. Jamie's mother, Laura, freely confesses to having been a "monster mom" when Jamie first told her he was gay, seven years ago. He recalls her blaming a demon that might have possessed him one day while he was using a Ouija board. Today, however, she is fighting a losing battle with her false eyelashes as the tears flow, and the tears are happy ones. "It's amazingly wonderful and appropriate," she says of the marriage, "and it breaks my heart"-not that Jamie is gay or is marrying a man, but that he is making this final transition out of childhood.

Laura's parents, Lee and Ludene, both in their early 70s, have shown up at their grandson's wedding on the advice of their priest, who counseled support for their family even if they could not condone a same-sex marriage. They say they are open-minded Catholics, but today's event has pushed them to their limit. "I feel that it's wrong," Lee volunteers. "I don't think it's real. I kind of wish it hadn't happened." He loves his grandson, no doubt about it. But "this is hard for me, to see it happen." Ludene, who believes that marriage is for procreation, struggles to find a more conciliatory note. "We're living in a different age," she says.

Jamie's two younger brothers are enthusiastic about the marriage. It never occurs to them to regard a same-sex marriage as anything but real. His father, Kim, has been supportive all along. But his paternal grandparents, Jim and Carol, are guarded as they sit on a bench awaiting the ceremony's start. "We love Jamie, and I'm not going to drive a wedge in the family," Jim says. Carol mentions that both are Christians who are close to the Bible. "This will be interesting," she says. "I'm not the judge."

Opponents of gay marriage have argued that same-sex couples, especially men, will undermine marriage by regarding it merely as a path to legal benefits, rather than as a moral and spiritual commitment. Gay couples may get married, goes the criticism, but will not act married. To judge by Jamie and Michael, there is little cause for worry on that score.

For their part, gay couples have had reason to worry that their marriages, however valid in the law's eyes, might be regarded as less than authentic in the eyes of family, friends, religious institutions, employers. After all, a marriage is a marriage not just because the law certifies it but because the community accepts and underwrites it.

Jamie's and Michael's relatives will face a question that never comes up after a straight wedding: whether to inform their friends, neighbors, and colleagues that their son or grandson or brother or nephew is married to a man. Among the parents' and grandparents' generations, most people said they would share this information selectively, or they would play it by ear, or they just didn't know what they would do. The marriage is no secret, but neither does it bask in the social sunlight that straight spouses take for granted.

Yet marriage has its own dynamic, one that deepens bonds between spouses and forges links to kin and community. From time immemorial, parents have expressed ambivalence, even dismay, over their children's choice of spouse, yet have been won over, if not to the choice, then to the marriage and the stability it provides. Michael's mother, Kathy, is from the town of Buena Vista, Va. She was raised in a strict Brethren Church but now considers herself "spiritual." She has been married and divorced twice. "This is truly not what I expected to see in his marriage," she says of Michael, her only son. But she adds: "I hope this is going to be a stabilizing factor in his life, because he's been at loose ends for a long time."

Marriage creates kin, a process in evidence today. Laura, Jamie's onetime "monster mom," toasts the couple with the words, "I'm so happy to have a fourth son." Jamie's father says, "I've seen these two together enough to know that this is the kind of relationship that marriage is about." Times may change, and marriage may change, but parents are ever parents.

It is almost 5 p.m. The minister has given his blessing, invoking Solomon's song that many waters cannot quench love. "Remember this," he says, "remember this, remember this. Amen."

Then: "Before God and all present, do you, Michael, enter into this marriage with an open mind and heart and promise to love Jamie as long as you both shall live?" Michael firmly answers yes, and then Jamie, less steadily, gives the same answer, wiping away tears as he says, "Most importantly, I will work every day at loving you better." The minister calls for the rings, and laughter relieves sniffles as Jamie, flustered, offers his right hand.

That mistake corrected, the minister makes a pronouncement that I never thought I would live to hear. "By the authority vested in me by the state of Massachusetts, I declare that you, Jamie and Michael, are joined in the covenant of marriage, with the blessing of Christ's church. You may kiss."

They do. It is done.