More Marriage.

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The New York Times' William Safire weighs in On Same Sex Marriage. It's sort of a "coming to terms" piece, but he's getting there.

Meanwhile, over at the Washington Post, William Raspberry is prepared to embrace same-sex marriage, then reads "queer" leftwing polemicist Michael Warner's screed against Andrew Sullivan, marriage, and the danger of gay life becoming "normal":

"As long as people marry," [Warner] says, "the state will continue to regulate the sexual lives of those who do not marry. It will continue to refuse to recognize our intimate relations -- including cohabiting partnerships -- as having the same rights or validity as a married couple. It will criminalize our consensual sex."

Fortunately, Raspberry maintains his composure and winds up still favoring same-sex marriage. The queer left -- if it didn't exist, the religious right would have to invent it!

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Our Struggle for Love

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First published December 2003 in Huriyah, an online magazine for gay Muslims. Some names have been changed to protect the subjects' privacy.

Joseph is the sort of man who takes your breath away just to look at him, and makes your heart skip a beat when he gives a smile of recognition. He is a young black schoolteacher, which reminds me of a hunky physics teacher I had a crush on in high school. Ah, the fantasies that must swirl through his classroom! I met Joseph because we were both regulars at a neighborhood restaurant. He is troubled over his homosexuality, and wants to be straight.

Joseph is not the first man I have seen at war with his own nature. In 1990 I met Ahmed, a devout Muslim from Southeast Asia. On our first date, when I ordered a pork dish, he said that if I ate it he couldn't kiss me later, so I quickly ordered something else. It occurred to me that gay sex was at least as forbidden by his religion as pork, but I wasn't about to quibble. After passionate lovemaking, he whispered in great anguish, "You made me sin." It was heartbreaking. I wanted to throttle the religious teachers who had made this sweet and thoughtful man so miserable.

Over the next few years, I strove to help Ahmed overcome his guilt. We read the troublesome passages in the Qur'an together. I tried to put him in touch with other gay Muslims, but he resisted. I told him that Allah's most precious gift to him was his brain, and that using it to think for himself could not be a sin.

I quoted Galileo's argument that the book of the heavens is the direct handiwork of God, as opposed to the holy book which was taken down by human hands. Shall we not trust the direct handiwork of God before the indirect? I told Ahmed that he and his desire were the direct handiwork of God, and that the evidence of his own nature should trump that of any book.

Alas, I had no more luck with that argument than Galileo. Ahmed could not, or would not, overcome the homophobia of his upbringing and his culture. I even tried a more practical approach and suggested that if he was going to hell he might as well at least enjoy the ride, but that didn't work either. He was like William Faulkner's Emily, who clung "to that which had robbed her, as people will." He channeled his repressed passion into workouts and bicycle rides.

When I told Joseph about Ahmed, he told me that it was his story as well. He said that while his family loved him, as a black gay man he lacked community support mechanisms. It is hard to understand how someone so thoughtful and decent could look in the mirror and see wickedness. He has been celibate for two years, and if you saw the dashing lover he has withheld sex from - a successful black entrepreneur - you would join me in wanting to slap him out of it.

Joseph wanted to get married and have children, but his fundamental decency made him pause. He broke up with the woman he was dating, because he didn't want to marry her for the wrong reasons, and he knew he was still gay. Even though he has moved away, he remains inseparable from his former lover, who when I encountered him recently in the restaurant was on his cell phone with Joseph.

I had dinner with Joseph before he left town, and I told him the same things I had once told Ahmed: God did not make a mistake. You have a hard road to follow, but you cannot escape who you are. Be true to yourself. You have people who love you. You will not be alone.

Of course, the most heartfelt conversations cannot overcome a lifetime of having one's love denied and devalued. In the end, Joseph must choose within his own mind and heart where no one else can follow. Against the voices assuring him that gay is good clash those of anti-gay ministers and reparative therapists, the hopes and expectations of his family, and the continuing taboo against homosexuality in his community.

When I think of Ahmed and Joseph and so many others, I know the stakes. We must fight for our friends and lovers against the forces of invisibility and intolerance. Sometimes we will fail, and the frustrations will be great. Love makes us fight on - reason enough to give thanks in a dark season.

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Discord on the Right.

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Anti-gay social and religious conservatives are now split between those who favor amending the U.S. Constitution to forbid same-sex marriage while allowing states to grant lesser civil unions and domestic partnerships, and those who seek to bar any recognition of same-sex couples, even if it makes it much harder to pass an amendment. Writes the Washington Post's Alan Coooperman ("Opponents of Gay Marriage Divided"):

Although they are early in the process of trying to win a two-thirds vote in both houses of Congress and ratification by three-quarters of the states, some conservatives worry that the political clock is ticking and the drive to amend the Constitution will be doomed unless they can reach consensus.

This isn't what was suppose to happen. A few months ago when Senate Majority Leader Bill Frist came out in favor of the proposed anti-gay Federal Marriage Amendment, it was assumed that the move would unite the GOP in support while dividing Democrats -- with the Demo's liberal base opposing an amendment but more moderate factions favoring it. That hasn't happened (aside from support for the amendment from some African-American ministers). All of the Democratic candidates for president have taken positions against an amendment. Meanwhile, conservatives have split over whether there even should be an amendment, and if so how far it should go. Writes popular conservative pundit George Will in his Nov. 30 column:

Amending the Constitution to define marriage as between a man and a woman would be unwise for two reasons. Constitutionalizing social policy is generally a misuse of fundamental law. And it would be especially imprudent to end state responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy.

The same day, conservative Jonah Goldberg writes in his column:

The FMA [Federal Marriage Amendment] would ban same-sex marriage "or the legal incidents thereof" -- which many take to mean civil unions as well -- in all 50 states for all time.

That may sound like a good idea if you're against same-sex marriage, civil unions, and all the rest. But to me it sounds an awful lot like a replay of Prohibition. "[T]he FMA will not make this issue go away. Rather, it will more likely serve to radicalize the anti-FMA forces in much the same way Roe v. Wade radicalized antiabortion forces.

So the push to rewrite the Constitution is turning out to be a divisive issue in the Republican camp -- not at all what party leaders expected.

More Recent Postings

11/23/03 - 11/29/03

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25 Years Later.

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Little noted outside of the San Francisco Bay Area, this week marked the 25th anniversary of the assassination of Harvey Milk. The San Francisco supervisor and gay rights pioneer was gunned down in his office on November 27, 1978. I suspect Milk would be amazed if he were to return today and witness the advances in the struggle for gay equality and dignity achieved in the quarter century since his death.

The Perils of One-Party Partisanship.

Former Massachusetts governor William Weld, a fiscally conservative/socially inclusive Republican, says he'd like to officiate at a gay wedding, the Boston Globe reports. Meanwhile, the state's current GOP governor, Mitt Romney, and Democratic attorney general, Tom Reilly, oppose the ruling by their state's Supreme Judicial Court that the commonwealth may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry."

Without Weld's appointments to Massachusetts' highest court, it's unlikely the ruling would have come down in favor of the gay plaintiffs. In 1990, Weld beat homophobic Democrat John Silber in the governor's race. Had Silber won, he would not have appointed gay-supportive judges. Interestingly, despite his strong opposition to gay rights (which is still ongoing), gay establishment groups and liberal Congressman Barney Frank supported Silber in 1990 for the sake of partisan unity.

The Queen Speaks.

From last week's address by Queen Elizabeth to parliament, outlining Tony Blair's agenda for the coming session:

My government will maintain its commitment to increased equality and social justice by bringing forward legislation on the registration of civil partnerships between same sex couples.

The Labour government's proposal, which enjoys support from the opposition Conservatives (Tories) and will become law within two years, allows gay and lesbian couples to register their unions as civil partnerships, granting virtually all the rights enjoyed by married couples in the United Kingdom.

(A pdf of the Labour government's report on the proposal is available online, but may take several minutes to download.)

Hypocrisy Watch.

Froma Harrop, writing in the Providence Journal (free, fast registration required), notes that if conservatives really wanted to shore up marriage, they'd tackle the culture of divorce. But of course, since so many are themselves divorced, that might not be so appealing. Harrop writes:

Georgia ("the buckle of the Bible Belt") sent twice-divorced, thrice-married Bob Barr [author of the Defense of Marriage Act] to Congress -- and as a sermonizing conservative. Another divorced Georgia Republican, House Speaker Newt Gingrich, was plotting to dump his second wife while lecturing on the decline of American civilization. The late Sonny Bono, a rock star turned GOP conservative, had fathered four children by three of his four wives. He also condemned gay marriage as a threat to the family.

And it's not all Republicans. Connecticut Sen. Joseph Lieberman, a Democrat, had broken up his own marriage, then accused Bill Clinton of setting a bad example for his children.

As President Bush has said, "I caution those who may try to take the speck out of their neighbor's eye when they got a log in their own."

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A Gay Marriage Decision?

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Did the Massachusetts high court really order the state to recognize gay marriages? That's certainly the way the decision in Goodridge v. Dept. of Public Health was reported in the media. It quickly became conventional wisdom.

Before a week had passed, however, revisionism began. According to the revisionist view, the Massachusetts court gave the legislature the choice whether to extend full marriage to gay couples or to give them the legal benefits of marriage under some other name. The revisionist view is being advanced by the Massachusetts governor and the state's attorney general, who oppose gay marriage. It is also being advanced by some who support gay marriage but who fear a devastating political backlash.

Are the revisionists right? Will civil unions suffice, as they did in neighboring Vermont three years ago when that state's highest court also addressed marriage discrimination?

The revisionist view has some support in the opinion. Andrew Koppelman, one of the leading gay-rights legal scholars in the country, argues the court "did not decree that same sex couples were entitled to marry."

He bases this conclusion on three aspects of the decision. First, discussing the actual remedy given to the gay couples, the court said only that they were entitled to "the protections, benefits, and obligations of civil marriage." These things may be provided without attaching the word "marriage" to them.

Second, the court did not order the state to issue actual marriage licenses to gay couples.

Third, the court gave the legislature 180 days to remedy the problem. This makes no sense, Koppelman maintains, unless the legislature had some option other than simply to give gay couples marriage - a remedy the court itself easily could have imposed.

To these three arguments a fourth might be added: while a court is properly concerned about discrimination in substantive rights, it has no business telling legislatures what they must call those rights. As long as the legislature has given gay couples all the privileges of marriage, this argument holds, it may call that package "marriage" or "civil unions" or "fried green tomatoes."

There's an additional concern. To read the decision as requiring marriage may scare the state into amending its constitution. What's far worse, it may scare the country into adopting a federal constitutional amendment that would not only ban gay marriages but also civil unions and other forms of recognition. Koppelman, who supports gay marriage, urges activists to wait "a decade or two" before pressing for it.

I think the revisionists read both the opinion and the political climate the wrong way.

As for the opinion, it's true the court noted the exclusion of gay couples from marital "protections, benefits, and obligations." But it did so to emphasize one reason why marriage is so important. The Massachusetts court also recognized that "tangible as well as intangible benefits flow from marriage." The tangible benefits (filing joint tax returns and the like) can be captured by a marriage equivalent, but the intangible benefits (historically grounded social recognition) cannot fully be. So what it's called matters.

Notably, in fashioning its remedy, the court neither mentioned the Vermont example nor explicitly gave the state legislature an alternative to marriage, as the Vermont court did. Instead, the court followed the model of a Canadian court last summer by stripping the opposite-sex requirement from the definition of marriage itself. "We construe marriage to mean the voluntary union of two persons as spouses," the Massachusetts court declared.

While it's true the court did not order the state to issue marriage licenses to gay couples, that's not what they asked for. They asked only for the court to declare unconstitutional marriage discrimination against same-sex couples, which the court did by changing the definition of marriage to conform to state constitutional requirements.

What, then, is the Massachusetts legislature supposed to do in the next six months? Marriage discrimination against same-sex couples is rife in state law. The legislature, not a court, is best suited to deciding how to rewrite those discriminatory provisions. That's what the legislature should do with its time if it wants to comply with the decision, not struggle to find ways to give gay couples a separate but equal status.

As for the politics, fears of a catastrophic backlash are probably exaggerated. Polls in Massachusetts show residents favor the decision by a 12-point margin and oppose a state constitutional amendment by a 17-point margin. As I wrote in this space last month, polls on this issue probably tend to exaggerate support for us. But we're already in a better position than we were in the immediate aftermath of the Vermont opinion, when a majority of that state's citizens opposed a more moderate result. Since a state constitutional amendment in Massachusetts requires eventual voter approval and since such a referendum could not be held until November 2006, there's time between now and then to calm fears.

As for a federal constitutional amendment, the prospects are even dimmer. It's hard to amend the Constitution, especially when one of the major parties opposes it, as the Democrats do. Even conservatives are divided on the issue, some because they've moderated on homosexuality and some because they believe states ought to make their own decisions about marriage.

If the Massachusetts decision sticks and we get our first experiment in real gay marriage, 2003 will be remembered as the year we turned a corner toward full equality.

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It’s Not Just a Benefits Package!

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As I noted earlier,
New York Times columnist David Brooks supports gay marriage but takes liberals to task for too-often framing their argument in terms of opening up access to "a really good employee benefits plan." The problem with that approach is demonstrated by social conservative Maggie Gallagher, a strong opponent of same-sex matrimony, who argues in the Weekly Standard ("Massachusetts vs. Marriage"):

For many same-sex-marriage advocates, marriage is basically a legal ceremony that confers legal benefits, a rite that gives rise to rights.

But, she counters, the governmental benefits bestowed by marriage (e.g., tax breaks, social security inheritance, etc.) are being overstated by gay advocates. Moreover, she thinks that civil unions may be a compromise worth accepting, precisely because marriage confers dignity upon a relationship and civil unions don't:

What some dismiss as protecting "merely" the word marriage is actually 90 percent of the loaf. -- Capturing the word is the key to deconstructing the institution. "

Do not mistake me: In the long run, I believe that creating legal alternatives to marriage is counterproductive and wrong. But civil unions are one unwise step down a path away from a marriage culture. Gay marriage is the end of the road. "

To lose the word "marriage" is to lose the core idea any civilization needs to perpetuate itself and to protect its children. It means exposing our children to a state-endorsed and state-promoted new vision of unisex marriage. It means losing the culture of marriage. And there would be nothing noble about that at all.

IGF contributing author Andrew Sullivan, on the other hand, does "get" that dignity for gay people is what's at stake, not just legal benefits -- and that's precisely why the religious right is so intent on denying us the "m" word. His column in the current New Republic makes this clear:

If the social right wanted to shore up marriage, they could propose an amendment tightening divorce laws. They could unveil any number of proposals for ensuring that children have stable two-family homes, that marriage-lite versions of marriage are prevented or discouraged. But they haven't.

[The Federal Marriage Amendment] is simply -- and baldly -- an attempt to ostracize a minority of Americans for good. ... It is one of the most divisive amendments ever proposed -- an attempt to bring the culture war into the fabric of the very founding document, to create division where we need unity, exclusion where we need inclusion, rigidity where we need flexibility. And you only have to read it to see why.

I have expressed the view that civil unions may be an appropriate short-term goal on the way to full marriage for gays and lesbians -- a means of allowing fair-minded straight Americans to get comfortable with the idea of state-recognition for same-sex relationships. And, in fact, this is exactly what happened in The Netherlands -- separate-track civil unions were eventually followed by full marriage for gay couples. But reading Gallagher, in particular, I can see why Sullivan and others insist that any arrangement short of marriage is not acceptable.

If you have thoughts you'd like to share with other readers about civil unions or rev'd up domestic parternships versus marriage as a short- or long-term objective, feel free to drop us a letter at the IGF Mailbag.

The Next Generation.

Jamie Kirchick, a Yale undergrad, campus columnist, and IGF contributing author, has a new blog. Check it out.

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A Plain and E-Z Guide to Goodridge

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First published on Nov. 26, 2003, in the Chicago Free Press.

In an opinion issued Nov. 18, Massachusetts' Supreme Judicial Court struck down the state's denial of civil marriage to people of the same sex, becoming the latest, but no doubt not the last state supreme court to affirm the full civil equality of gays and lesbians before the institutions of the law:

"The question before us is whether...the commonwealth may deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. ...(The state) has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."

The important point to notice at the outset is the court did not assume that the seven same-sex couples who were plaintiffs had to prove they had a specific right to civil marriage. Instead the court began with the assumption that people have a right to marry and the state had the burden of defending its prohibition of same-sex marriage.

In doing so the Massachusetts court followed the lead of the U.S. Supreme Court's 2003 Lawrence decision decriminalizing sodomy, where the U.S. court said, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct," and placed the burden on Texas to justify its sodomy law.

But the Massachusetts court went further to adopt a fundamentally libertarian approach to government and law, affirming that people have, or should have, a fundamental right to do as they wish in the absence of some rational basis for prohibiting them.

"The Massachusetts Constitution protects matters of personal liberty against government incursion. ... The individual liberty and equality safeguards of the Massachusetts Constitution protect both 'freedom from' unwarranted government intrusion into protected spheres of life and 'freedom to' partake in benefits (such as civil marriage) created by the state for the common good."

Justice Greaney put it more tersely in a concurring opinion: "The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference."

The court then asked whether - absent persuasive reasons otherwise - the freedom to marry included freedom to marry a same-sex partner and concluded that it did: "The liberty interest in choosing whether and whom to marry would be hollow if the commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage."

Or as Justice Greaney put it, "The right to marry...is essentially vitiated if one is denied the right to marry a person of one's choice. ...The equal protection infirmity at work here is strikingly similar to ... the invidious discrimination perpetuated by Virginia's anti-miscegenation laws" struck down by the U.S. Supreme Court in Loving vs. Virginia.

The court then examined the state's arguments for prohibiting same-sex marriage and found them either factually incorrect or contrary to existing public policy.

The state first argued that the primary purpose of marriage is procreation. "This is incorrect," the court said flatly, noting that the state does not require opposite sex couples to have the ability or intention to conceive children.

Instead, the court patiently instructed the state, "it is the exclusive and permanent COMMITMENT of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage" (emphasis added).

The state argued second that limiting marriage to opposite-sex couples "ensures that children are raised in the 'optimal' setting." But the court pointed out that the state already recognized and accepted many alternative child-rearing configurations and the state had already acknowledged that same-sex couples may be "excellent" parents.

For that matter, the court added, excluding same-sex couples from civil marriage ran counter to the state's vaunted concern for children by preventing children raised by same-sex couples from enjoying the assurance of a stable and assured family structure.

The state argued third that prohibiting gay marriage conserved state and private financial resources since same-sex couples were less financially dependent on each other and so had less need of the tax advantages of marriage or private health plans that include spouses.

But the court pointed out that was contrary to current public policy: "(M)arriage laws do not condition the receipt of public or private financial benefits to married individuals on a demonstration of financial dependence on each other."

And so, the court repeated with evident exasperation, that the state "has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. ...It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex."

In sum, the court said, the absence of "any reasonable relationship" between a same-sex marriage ban and public health, safety or general welfare, "suggests that the marriage restriction is rooted in persistent prejudices against persons who are...homosexual."

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Good News/Bad News.

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Two new polls released last Sunday show just about half of Massachusetts voters agree with the ruling by their highest court that the state's ban same-sex marriage is unconstitutional, while around 38% are opposed to gay marriage. That makes it a lot more difficult for anti-gay activists to charge that gay marriage is being forced on an unwilling populace.

Still, a recent nationwide survey shows that 59% oppose gay marriage while 32% favor it. Which is why it's not surprising, just disappointing, that the proposed anti-gay Federal Marriage Amendment to the U.S. Constitution now has over 100 bipartisan sponsors in the U.S. House of Representatives, according to the very anti-gay (but extremely multicultural) Alliance For Marriage.

Some good news: A few more straight conservatives are making the case for same-sex marriage. I particularly liked this piece from the right-leaning New York Sun, by R.H. Sager, who writes: "Marriage is a contract, it's a choice, it encourages stability. Conservatives like all of those things. Why not extend the institution?"

Moreover, other prominent conservative who haven't been stellar on matters of gay equality are now touting civil unions as an acceptable compromise, including Jonah Goldberg. He gets off this sharp observation:

It's a funny stalemate. The Republicans can't afford to be seen as too "anti-gay," lest the Democrats demagogue them with tolerant suburban voters, and Democrats can't afford to be seen as too "pro-gay" lest the GOP demagogue them in Southern and rural states. So both sides stand there, circling each other like sumo wrestlers, hoping the other side will make the first move.

And still other pundits of the right have come out against the Federal Marriage Amendment, including George Will and David Horowitz. Whether such defections will be enough to stall the support for amending the Constitution during the coming election year is as yet unknown.

The Marriage Ruling &

More Recent Postings

11/16/03 - 11/22/03

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Straight Conservatives for Gay Marriage.

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David Brooks, a fair-minded conservative who's now a columnist for the New York Times, penned this op-ed on The Power of Marriage. Taking a swipe at fellow conservatives, Brooks admonishes:

The conservative course is not to banish gay people from making such commitments. It is to expect that they make such commitments. We shouldn't just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.

And, taking a swipe at liberals, he declares:

When liberals argue for gay marriage, they make it sound like a really good employee benefits plan. Or they frame it as a civil rights issue, like extending the right to vote. Marriage is not voting.

Straight conservatives who support gay marriage -- now that's a force to be reckoned with!

Liberals for Undermining Traditional Marriage?

On the other hand, do we really benefit from arguments like Sociologist Says Gay Marriage Does Threaten Established Order, and That's Good?

Meanwhile, in a show of support for heterosexual marriage, both Menendez brothers have now gotten married while in prison for killing their parents.
--Stephen H. Miller

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And Now a Word from the Pundits…

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"This May Be Good for Marriage" writes liberal syndicated columnist Richard Cohen:

Now along come gay couples to rescue marriage from social and economic irrelevance, casting a queer eye on a straight institution. They seek it for pecuniary reasons -- issues such as estate taxes, etc. -- but also because they seem to be among the last romantics. (No shotgun marriages here.) The odd thing about the opposition to gay marriage is that if the opponents were not so blinded by bigotry and fear, they would see that gay men and lesbians provide the last, best argument for marriage: love and commitment.

Libertarian-minded columnist Steve Chapman argues that "Freedom Evolves in Surprising Ways":

When John Adams wrote the Massachusetts Constitution, which historian David McCullough says is "the oldest functioning written constitution in the world," he couldn't have dreamed it would someday be interpreted to sanction homosexual partnerships. At the time, Massachusetts made sodomy punishable by death. These days, however, not much is banned in Boston, or most other venues. --

On this and other activities once stigmatized as sinful, Americans are generally inclined to let freedom ring, even if they don't always like the results. John Adams and his fellow founders would be surprised, but when you decide to protect the pursuit of happiness, there's just no telling where it will lead.

On the other hand, fumes religious rightist Cal Thomas, the Massachusetts ruling:

...is further evidence that G.K. Chesterton's warning has come true: "The danger when men stop believing in God is not that they'll believe in nothing, but that they'll believe in anything."

Marriage was not invented by the Postal Service as a convenient way to deliver the mail. It was established by God as the best arrangement for fallen humanity to organize and protect itself and create and rear children. Even secular sociologists have produced studies showing children need a mother and a father in the home.

And, perhaps striving to be "fair and balanced," conservative Bill O'Reilly told his Fox News audience:

Personally I couldn't care less about gay marriage. If Tommy and Vinny or Joanie and Samantha want to get married, I don't see it as a threat to me or anybody else. But according to a poll by the Pew Research Center, only 32 percent of Americans favor gay marriage. And the will of the people must be taken into account here.

Some are predicting the culture war over gay marriage will become more heated than the abortion fight. Others say that aside from the religious right and the gay community, most Americans are just not emotionally invested in the issue. Keeping an eye on our national pundits will be one way to gauge if that's so.

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