Courts vs. Legislatures, Again

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Opining in The New Republic, Jeffrey Rosen joins those same-sex marriage supporters who argue for legislative over judicial action: He writes:

The experience in Europe suggests that, when victories for gay equality come from legislatures rather than courts, they can eventually grow into something more: The legislature in the Netherlands initially recognized civil unions and, several years later, granted gays and lesbians the full benefits of marriage. Unless they are forced by courts to recognize gay marriage before the public is ready, state legislatures may move through the same progression, recognizing first civil unions and eventually gay marriage. For the moment, the best thing for judges to do is the thing they're most likely to do, which is very little.

As I said earlier, there's a valid point here, and in many jurisdictions we're too quick to seek judicial solutions rather than striving to win popular support. On the other hand, would African-Americans still be waiting for government-decreed segregation to end in the South if the courts hadn't interceded to ensure legal equality for a minority against majority animus? (Oops, just ticked off all those black, anti-gay "civil rights leaders" again.)

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Political Support a One-Way Street?

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There's an intriguing story in the Washington Blade this week focusing on Virginia, where the state's GOP-controlled legislature passed legislation that not only bans recognition of same-sex marriage and civil unions, but also bans recognition of legal contracts between same-sex partners intended to confer marriage-like rights. Virginia's Democratic governor, Mark Warner, had sought to strip the contract-banning provisions from the anti-gay bill while supporting the civil union and marriage ban, but when the legislature added these back in he signed the bill into law anyway. Had he used his veto, chances are it would have been overridden, but he would at least have made a clear statement against bigotry and discrimination.

The Blade reports in "Lobbying Effort Faulted in Va. Fight" that Equality Virginia, the state's LGBT lobby, never asked Virginia's Democratic Party to help it work against this legislation:

"The thought of involving Virginia's Democratic Party, within walking distance from Equality Virginia, to lean on House and Senate Democrats, never occurred to [Equity Virginia's Dyana] Mason. 'I"ve contacted them in the past, but never followed up. We"ve always crossed in the night,' Mason said."

Given that Equality Virginia just about exclusively backs Democrats and enthusiastically worked for Gov. Warner's election, isn't some payback expected from the party machine? And no, I'm NOT excusing the Republican homophobes, the prime movers in this drama. But it's the Democrats that, overwhelmingly, get the gay vote and collect gay dollars. What's the point if that's just considered a freebie?

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With Marriage an Option, Who Needs DP Benefits?

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Now that it's about to be legal for same-sex couples to marry in Massachusetts, some employers in the Bay State are eliminating domestic-partner benefits, requiring employees to say "I do" to their significant others if they want them to share their employer-provided family benefits such as health care coverage, reports the AP.

This, I believe, is appropriate. As I wrote a decade ago in a column title "Honey, Did You Raise the Kids?":

"Domestic partnership benefits should be a stopgap measure for gays and lesbians until we achieve full marriage rights (based on legally recognized commitments)."

I also argued that:

"Offering benefits to unmarried heterosexuals might in fact contribute to family breakdown by discouraging committed relationships."

I'd now change that, in Massachusetts at least, to read "unmarried heterosexuals and homosexuals.

The AP story says that Beth Israel Deaconess Medical Center, one of the state's largest employers, will drop domestic-partner benefits for Massachusetts residents at the end of this year:

"The original reason for domestic-partner benefits was to recognize that same-sex couples could not marry," Beth Israel spokesman Jerry Berger said. "Now that they can, they are essentially on the same footing as heterosexual couples."

That's about right (though gay couples will still lack the important federal benefits associated with marriage, from social security inheritance to naturalization of a foreign-born spouses). Still, there's no need for employers to continue paying for benefits to partners who shack up but can't quite make the commitment to the emotional, financial, and legal intermingling that full marriage entails.

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If He Quacks Like a Quack�

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If you've been following the attacks on gay marriage by anti-gay conservative Stanley Kurtz of The Hoover Institution, you'll enjoy this thorough repudiation by Nathaniel Frank in The New Republic, titled "Perverted: Quack Gay Marriage Science." Frank writes:

Kurtz's argument is -- that the symbolic damage done to the institution by letting gays join it would deter younger couples from bothering to wed. -- Alas, Kurtz's conclusions are suspect on their face. -- In the United States, the number of unmarried, co-habiting couples increased tenfold from 1960 to 2000. And all of this with no gay marriage, no registered partnerships, not even civil unions, which only came into existence in a handful of states after the 40 years of data in question.

But when have ideologues of the left or the right ever let mere reality interfere with their abstract theorizing?

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Gay Marriage and Polygamy

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Will gay marriage lead to polygamy? "If we take the step of allowing gay marriages," we are told, "we will slide down a slippery slope to polygamy." For the most part, gay-marriage advocates have been flustered trying to respond to this argument. Often, we respond with something dismissive like, "Don't be ridiculous!" Slippery-slope arguments must be scrutinized with care because the public often believes them and because they divert attention from the core issue: whether gay marriage itself would be a good or bad thing. While the polygamy argument has some superficial appeal, it ultimately doesn't work.

Slippery-slope arguments take the following form: "Proposal X contains within it a principle. That principle not only supports Proposal X but would also support Proposal Y. An honest person supporting Proposal X must therefore also support Proposal Y. While Proposal X may or may not be bad in itself, Proposal Y would surely be very bad. So to avoid adopting Proposal Y, we must not adopt Proposal X."

Substitute "gay marriage" for Proposal X and "polygamous marriage" for Proposal Y and you have a slippery-slope argument against gay marriage.

There are three possible stock responses to every slippery-slope argument. First, one might argue that the supposedly horrible destination(s) down at the bottom of the slope are not so bad, so we need not fear the slide. Second, one could argue that the slope may slide both ways, so that if we do not take the step proposed we may be in danger of sliding down the other side of the policy hill, which would be bad. Third, one could argue that we will not slide down the slippery slope if we take the step proposed because there is a principled stopping point preventing us from reaching the bottom.

In the gay marriage debate, the first stock response would involve arguing that polygamy is unobjectionable. That's an unattractive reply for reasons I'll explain below in connection with response three. The second stock response would involve claiming that if we repress gay marriage, there is nothing to stop us from prohibiting other marriages, like those involving people of different races or infertile people. This second response is the kind of argument lawyers love to make, but is not likely to impress many people as a reason to support same-sex marriage.

It's the third response - that there is a principled stopping point preventing the slide toward polygamy - that best refutes the slippery-slope argument. The argument for gay marriage is indeed an argument for a liberalization of marriage rules. But it is not a call to open marriage to anyone and everyone, any more than the fight against anti-miscegenation laws was a call to open marriage to anyone and everyone.

So, formulating the principled stopping-point, we should ask why the recognition of a new form of monogamous marriage would lead to the revival of polygamous marriage, which has been rejected in most societies that once practiced it? What is "the principle" supporting gay marriage that will lead us to accept multi-partner marriage?

One possible principle uniting the two is that gay marriage, like polygamous marriage, extends marriage beyond partners who may procreate as partners. But that doesn't work because procreation is already not a requirement of marriage. Sterile opposite-sex couples have already taken that step down the slope for us.

A second possible principle uniting gay marriage and polygamous marriage is that both exalt adult love and needs as the basis for marriage. Yet this step down the slope has also already been taken by straight couples. Marriage for the past century or so in the West has become companionate, based on love and commitment. Among straight (and gay) couples, children are a common but not necessary element of the arrangement. So even if gay marriage were justified solely by the love same-sex partners have for one another, recognizing such relationships would be more analogous to taking a step to one side on a slope already partially descended, not an additional step down the slope.

Still, how do we avoid polygamy? Here is where many advocates of gay marriage run into trouble. If we claim that gay couples must be allowed to marry simply because they love each other, there is indeed no principled reason to reject multi-partner marriages. Multiple partners in a relationship are capable of loving each other.

But satisfying individual needs is not "the principle" supporting gay marriage. Instead, gay-marriage advocates should argue that any proposal for the expansion of marriage must be good both (1) for the individuals involved and (2) for the society in which they live. Gay marriage meets both of these criteria. The case for polygamous marriage is distinguishable (and weaker) on both counts, especially the second.

On the first issue - the effect of recognition on the individuals involved - the deprivation to gays of the gay marriage ban is greater than the deprivation to polygamists of the polygamy ban. A polygamist may still marry someone if we ban polygamy; he simply may not marry many someones. The deprivation to the polygamist is large, especially if polygamy involves the exercise of his religious faith, but not total. The gay person, however, has no realistic choice of a mate available under a gay-marriage ban. The deprivation is total.

Further, there is no "polygamous orientation" causing a person to need the close companionship of multiple partners (though some people may prefer it). There is, however, a homosexual orientation, causing a person to need the close companionship of a same-sex partner. The ban on polygamous marriage is the denial of a preference, perhaps a strong one; the ban on gay marriage is the denial of personhood itself.

On the second issue - the effect of recognition on society - the differences between gay marriage and polygamous marriage are more pronounced. There is ample evidence that people who live in stable, committed couples are healthier, happier, and wealthier than those who are single. Gay marriage is a good idea because it will benefit not only the gay couple but their families, friends, neighbors, and taxpayers whose burdens to care for the gay partners singly would be greater.

While multi-partner marriages might benefit the partners involved, the much greater potential for jealousy and rivalry among the partners make for a volatile arrangement, reducing the expected benefits to them and to everyone else. In a multi-partner marriage, it may be unclear who has primary caretaking responsibility if a partner becomes sick or injured; there is no such uncertainty in a two-person marriage. While we have some evidence that children do well when raised by same-sex couples, we have no evidence they do well when raised in communal living arrangements. Since multi-partner marriages will almost always take the form of one man having many wives, they present special risks of exploitation and subordination of women, which is inconsistent with our society's commitment to sex equality.

Perhaps none of these considerations is a decisive argument against polygamous marriages. But at the very least they suggest that gay marriage and polygamous marriage present very different issues. Each should be evaluated on its own merits, not treated as if one is a necessary extension of the other.

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Take It to the People?

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Ryan Sager, a libertarian-minded NY Post editorial board member, makes a cogent argument in "Courting Gay Backlash" that fighting for marriage equality by persuading voters is a better long-term strategy than seeking court decrees that ultimately provoke a hostile populace to support measures worse than the status quo, such as amending state and federal constitutions. He writes:

"Gay marriage advocates ought to realize that there would be much to gain by engaging in democratic debate and compromise, rather than filing lawsuits all around the state as they have. Cutting the people out of the process not only disenfranchises them -- it lets them off the hook. Shouldn't those opposed to gay marriage be asked to confront the people they wish to relegate to an unrecognized netherworld? A spotlight on the inhabitants of this world might change some minds, if advocates could be troubled to shine it."

I think Sager has a point -- up to a point. Some gay advocates are far too eager to seek judicial action as a solution. And not just for marriage but to for all manner of perceived slights and injustices -- occasionally at the expense of constitutional rights such as freedom of association (i.e., when the Boy Scouts or St. Patrick Parade organizers don't want to let us into their private clubs). This is what lawyers do, after all -- they sue. But in jurisdictions where public opinion can be mobilized in our favor, a legislative or plebiscitary victory is much firmer ground for advancing our rights.

On the other hand, liberals have a point that courts exist to protect minorities from majority tyranny. If constitution guarantees of equality under the law are not likely to be realized due to widespread and deeply rooted animus, it is the role of the courts to defend those rights. But big social revolutions are predicated on many small victories, and working at winning popular support for the cause, especially where it is likely to be winnable, is in fact a smarter strategy than "courting backlash" among the benighted.

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The Gay & Lesbian Atlas

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First published on April 28, 2004, in the Chicago Free Press.

Two questions often asked about the gay community are: How many gays are there, and Where are they? The answer to the first question remains as controverted as ever, but for the first time we are beginning to obtain some approximation of the answer to the second.

In a fascinating new book, The Gay & Lesbian Atlas, Gary Gates and Jason Ost of Washington, D.C.'s Urban Institute used 2000 census data from the 600,000 same-sex couples who designated themselves "unmarried partners" to plot the location patterns of those gay couples across the U.S.

The handsomely produced, 230-page Atlas contains about 60 pages of methodology, analysis and description. But the heart of the book is the colored maps of each state and 25 major cities showing where gay and lesbian couples live, displayed by county as well as census tract (an area with 2000 people in it). The maps also show the relative concentration of gay couples - low (forest green), moderate (yellow), high (tan) and very high (burnt umber).

The best place to start is the national map on p.61 showing gay couple densities displayed by county. The map shows that gay and lesbian couples have higher concentrations in New England and downstate New York, along the California coast and in southern Florida. There is also a scattering through the southwest and southeast U.S.

Not surprisingly California, our most populous state, has the largest number of gay and lesbian couples, followed by New York, Texas, Florida, Illinois, and Pennsylvania. But it turns out that Vermont has the highest concentration (as a percentage of total households) of gay couples - and considerably more lesbian than gay male couples.

Also, interestingly, all the counties that have the greatest concentration of gay men contain major cities, while more than half of the counties with the highest concentration levels of lesbian couples contain smaller cities and towns, particularly college towns, and rural areas.

But counties hardly tell the whole story. For instance, Cook County, Ill. (Chicago) shows up as "high" concentration on the national map. But the map of Chicago itself (p.178), broken down by individual census tracts, shows that same-sex couples are clustered mainly on the north side toward lakefront.

More precisely, the separate Chicago maps for gays and lesbians show that gay male couples are more concentrated in the densely populated lakefront tracts while lesbian couples are a little more likely to live away from the lake and are more widely dispersed throughout the city - and the suburbs.

The same pattern holds for most other large cities: Gay men are densely clustered in a few areas, often near the center of the city, while lesbians are somewhat clustered and a little more widely dispersed. In a few cities the gay and lesbian clustering areas are markedly divergent.

The Atlas also tell us for each state and the 25 cities what percentage of same-sex households have children, what percentage are in various age brackets, and what percentage have a black, white, or Hispanic householder (the person who completed the census form).

Two questions arise. How can data about only a portion of gays tell us much about where all gays live? And what is that information good for anyway?

Even if only a small portion of same-sex couples identified themselves (and I think the Gates and Ost significantly overestimate the percentage who did), their location and density patterns fit roughly with our observations about where gays live for areas we know well.

As additional support, a Florida epidemiologist who compared the gay male couples data with location patterns of gay and bisexual men with HIV/AIDS, which would include single men as well as men in couples, found a high correlation between the two.

Even without specific numbers, gay residential patterns are useful for people who want to reach the gay community with public service information - e.g., AIDS or breast cancer education - or who want to provide social services to gays. Firms marketing products to gays can concentrate their efforts on areas where gays and/or lesbians actually live.

Gay concentration data should be particularly interesting to gays themselves when they are thinking about where they want to move to look for a job or retire and where in a particular city they want to live in order to find gay friends and social acceptance.

And finally, concentration data and even minimum numbers can let unwary politicians know they have gays and lesbians in their districts. Told that (at least) 55 gay couples lived in his town, one state senator blurted out, "Surely you jest. Wow, I have never met any of these people." (Whose fault is it if he has never met any gay couples who are constituents? I'm just asking, that's all.)

But most of all, the Atlas is just plain fun. Most of us like to read about ourselves and the Atlas offers a lot of interesting information in a visually appealing form.

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The “LBGT” Mask.

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Washington Post columnist Colbert I. King, commenting on John Kerry's minority outreach efforts, references an April 16 Kerry campaign press release:

"Asian Pacific Islanders have a senior outreach official of their own. So do the environmental crowd, women and LGBT, which the press release fails to spell out (lesbian, gay, bisexual and transgender people)."

This tactical use of "LGBT" (or "GLBT") is an increasingly common tactic, allowing candidates to solicit gay and lesbian votes without tipping off the rubes -- or at least making it too obvious by using the word "Gay" in a headline. There's an online correlate as well. On Kerry's website, the high-profile "Issues" homepage, with links to information on the candidate's record and positions, lists "GLBT" along with "Native Americans," "Seniors," "Women's Issues," etc. But you have to click on "GLBT" to go to a page that uses the word "gay." Similarly, I've seen references to candidates' support for the vaguely titled Employee Non-Discrimination Act (ENDA) that fail to say exactly who it is that would be protected from discrimination under this proposal.

Of course, many gay-not-so-friendly candidates -- including President Bush -- don't mention gay issues at all except to oppose same-sex marriage. Still, it's worth noting that the supposed "inclusive" nature of the activist-created LGBT (or GLBT, or LGBTQ for "questioning and/or "queer") formulation, far from increasing our visibility, often makes gay references invisible to casual readers who aren't "in the know" -- or who might otherwise take offense.

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Abortion as a Gay Right?

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On a weekend that brings a large pro-choice march to the streets of Washington, Matt Foreman, head of the National Gay & Lesbian Task Force (NGLTF) issued a statement declaring his group's support for abortion without restrictions:

First, the obvious: we march because like everyone else, LGBT people need, deserve, and demand the fundamental right to control our bodies without the interference of government.

Along with NGLTF, the Human Rights Campaign (HRC) evaluates congressional abortion votes when tabulating its annual scorecard of how "gay supportive" politicians are, and the Gay & Lesbian Victory Fund has used a pro-choice litmus test for its endorsements.

On the other side, the Pro-Life Alliance of Gays & Lesbians (PLAGAL) issued its own statement:

"It is no pride to work for the rights of the GLBT community while at the same time taking away the rights of the unborn," said Cecilia Brown, PLAGAL's president. She further states "I know I speak for myself and others pro-life members of the GLBT community when I say that I do not want my rights as a member of the GLBT community to come at the expense of the unborn. It is far better not to take a stance on the issue of abortion as it relates to fighting for the rights of the GLBT community than to combine it and lose the support of those who otherwise would work with you on other worthwhile causes."

PLAGAL is, of course, a group founded on the abortion issue, whereas NGTLF, HRC, the Victory Fund, and many others claim to represent the interests of gays and lesbians in general, assuming an ideological consistency interlinked with our sexual orientation.

Finally, check out a letter we've posted from Scott Tucker, who writes:

As a supporter of HRC (and a conservative on most other political issues), I was more than disheartened when my e-mail inbox gave me an invitation from HRC to "March for Women's Lives and HRC." The e-mail further encouraged me to "Join HRC in support of reproductive freedom and justice for all women." How sad indeed that the greatest GLBT rights organizations refuse to reach out to all gay Americans. I have tremendous respect for HRC. But can I continue to give them my support if I am pro-life? I haven't decided yet.

What a shame that so many gay groups, even those who feign to be non-partisan (and how they must laugh at that howler), insist that everyone dance to the left's music when it comes to abortion, welfare, racial preferences, and on and on and on.

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Humorless Activist Alert.

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More from the political correct grievance collectors whose self-righteousness only slightly masks their partisan politics. Matt Coles of the ACLU's Lesbian & Gay Rights Project has denounced an exchange between New York Republican Gov. George Pataki (who in 2002 supported and signed a law banning anti-gay discrimination) and GOP state senate leader Joe Bruno. As reported in 365gay.com's hyperbolically headlined "NY Gov Under Fire For Gay Slur," this was the "offensive" exchange:

At a public event [the opening of a power plant] "Bruno turned to the Gov. and said that they "make love" - most of the time. "I've been proud to partner with this governor - most of the time," said Bruno, drawing laughter from Pataki and several others in the audience. Bruno, who has had some notable battles with Pataki over the state budget and other issues, told the audience that "like all good partners, occasionally you don't partner. But you kiss, you make up and you make love most of the time."

When Pataki took to the podium he carried the references to gay couples further. "I don't mind making love to you. Just don't ask me to marry you," the governor said.

And the response:

"Governor George Pataki was way out of line in his disparaging comments about same-sex marriage," said Matt Coles director of the [ACLU] project. "The governor may think it's funny that he can't marry Senator Bruno, but after he stops laughing he can go home to his wife. The joke isn't so funny for people who get turned away when their partners are in emergency rooms -- or people who pay for "family" insurance but can't include the love or their lives"

Now, the issue of marriage equality is one that we fervently support, for the reasons Coles notes, among others. But to take the banter between Pataki and Bruno as a "slur" meant to disparage gay marriage is ludicrous. If anything, the fact that two straight politicos feel free to joke about making love to each other is a sign of cultural progress. But recognizing this would hardly score points with Coles' political constituency.

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