IGF CultureWatch

In a recent Advocate interview Massachusetts Senator and Democratic presidential hopeful John Kerry told reporter Chris Bull that, despite his otherwise strong support for gay rights, he could not bring himself to support gay marriage.

In a previous Washington Post interview Kerry had stated, "Marriage is an institution between men and women for the purpose of having children and procreating."

Whoops - wrong answer. If marriage is for procreating, what's the story with Kerry's current marriage (his second), which is childless?

Having been confronted on this point, Kerry backtracks in the Advocate interview: "I don't make a procreation argument. I was explaining the historical background. Someone was asking me where my opposition came from, and I said it's basically from an old religious belief of what defined marriage. Procreation has nothing to do with my argument."

Whoops again. Religious belief? While Kerry might be right about why most people oppose gay marriage, the reporter was asking for Kerry's reason, not most people's. More precisely, the reporter wanted to know Kerry's political position on the issue. And as Kerry himself recognizes, religion and politics don't mix well. In the same Advocate interview he states, "In 1960, President Kennedy [another Roman Catholic] distinguished between those things secular and those things religious. He drew the line between his church and his state. It is a bright line, and I do not take my articles of faith and seek to legislate them against people who don't share them. The establishment clause regarding religion is clear... "

Confused yet? So was the reporter, who asked, "Doesn't church-state separation apply to marriage?" Kerry's response is a textbook example of arguing in a circle:

"So many people in the country view it as the cultural component of it, the religious component of it. That's how people view it with the religious component of it. "

So, just to make sure I'm clear on his point: We ought not to legislate people's religious beliefs except in the case of their religious beliefs.

Got it.

I don't mean to pick on Kerry here. He's been a solid supporter of gay rights, even voting against the anti-gay Defense of Marriage Act in an election year. (It passed anyway, and President Clinton signed it into law.)

Moreover, every other Democratic presidential hopeful goes through the same verbal contortions when pressed on the issue of gay marriage. Even Howard Dean, who went to bat for us on civil unions in Vermont, is officially opposed to "gay marriage."

It's an issue they'd all much prefer to avoid. They want to support gays, but they also want to win the election. And thus they must face one of the great paradoxes about American life: We are simultaneously one of the most secular and most religious societies in the world.

Do we support freedom of religion? Oh yes, absolutely. Except when it gets weird. Like that Mormon polygamy thing. And gay marriage - ick.

Marriage and religion are intimately tied in most Americans' minds. Most marriages in this country are performed by clergy - to whom the state gives the power to perform not merely religious but also civil marriage.

Politicians know this. And they have a hard time talking about civil marriage without talking about religion, for two reasons: (1) they want to appeal to a largely religious electorate, and (2) they are themselves largely religious.

And so Kerry, in the same interview, talks about both his religious view of civil marriage and the separation of church and state, without noticing the contradiction.

Similarly, when discussing the (anti-gay) Federal Marriage Amendment, Senate Majority Leader Bill Frist calls marriage a "sacrament" and President Bush mentions "sinners." Meanwhile, here in Michigan, Jackson County has passed a resolution against same-sex marriage in order to protect the "sanctity"of traditional marriage, and Lapeer County has passed a similar resolution citing "God's intentions for mankind" and "faith in God through Holy Scriptures."

Kerry had it right when he said that articles of faith ought not to be legislated. By definition, articles of faith go beyond rational evidence (hence "faith"); they are learned through revelation. Law, by contrast, is supposed to be based on reasoned argument.

The problem is that the secular arguments against gay marriage just aren't very good. And so opponents of gay marriage - including politicians - resort to the one area where they may respectably abandon reasoned argument: religious faith. You can't really argue with "God says so."

Writer Michael Woodson asks,

"Suppose the government declared a particular mode of communion, baptism or circumcision to be valid, and required all valid communion, baptism and circumcision to be licensed by the state. Certainly, there would be an uproar - and should be a rebellion. Why is marriage different?"

Damn good question. Don't hold your breath for an answer.

Originally published September 24, 2003, in the Chicago Free Press.

If you found that you just about OD'ed on "gay" this past summer, think how the religious right must feel. Those 90 days were the gayest in U.S. history. A brief recap:

Canadian gay marriage (with significant U.S. impact). Supreme Court's "Lawrence" decision. Gay Anglican priest elected New Hampshire bishop after one appointed in England withdrew. Presidential aspirant Howard Dean promoted gay civil unions. California Gov. Gray Davis signed extensive gay partnership law. Congressional subcommittee hearings on Defense of Marriage Act.

"Queer Eye" was Bravo's "breakout hit of the summer." "Boy Meets Boy" had happy ending. "The Amazing Race" won by two gay men. "Will and Grace" still going and going. Ellen DeGeneres's talk show finally began. MSNBC's ranting rightist Michael Savage "let go" after he broke no-homophobia vow.

Is there anything to be learned from all this or any conclusions we should draw? Let us try a few possibilities. The most obvious single fact was the unparalleled gay visibility. Gay lives, gay relationships and evidence of the growing acceptance of gays in at least some sectors of society were given publicity as never before.

Most of the visibility was positive. The language of the "Lawrence" decision was a landmark of affirmation. Even the anti-gay congressional hearings managed to communicate that many gays and lesbians want to marry their partners, join the mainstream and be fellow citizens. Conservatives suddenly found that "special rights" rhetoric just didn't work since they were the ones with the special rights. (Negative publicity came mostly from the Catholic priest sex scandals, which gay advocacy groups handled poorly.)

All these advances did not just suddenly pop into existence. They were the result of years of preparation and constant painstaking advocacy, of numerous smaller advances here and there in the churches, the media, the law, the political system. They were the result of more than 30 years of gays and lesbians coming out, explaining and sharing their lives, talking to those with open ears and struggling to open the ears of those whose ears were closed.

Socially the U.S. is still a melting pot, though with an incompletely melted content. That is, it is also a nation of niches in which population groups with ethnic, social, business or religious interests in common may hold differing social views from other groups. This means that gays do not have to change the nation as a whole to make any gains. They can make gains in gay friendly niches - liberal churches, creative business sectors, the urban patriciate, liberal politicians - and build on those, using them as models or leverage with other niches.

The major religious and political gains gays have made are, not unexpectedly, in coastal, Democratic-leaning states, especially in New England. A New Hampshire Episcopal bishop. Pro-gay Vermont and Massachusetts presidential candidates. Massachusetts and New Jersey gay marriage lawsuits. The religious denominations friendliest to gays and lesbians are the Episcopalian, Unitarian and United Church of Christ, all with New England roots and strong New England influence, all inheriting the tradition of Yankee individualism and personal autonomy.

In other words, gays make gains most readily in the region where the demand for personal responsibility and a consequent respect for individual independence are most deeply rooted. That being so, those are social values we would be wise to help promote as the most fertile soil for future gay advancement elsewhere.

Despite all the rest going on, "Queer Eye" felt significant for several reasons. It did not have gay visibility, it had gay dominance - open, assertive, self-confident dominance. "We are the experts here." It was less that the "fab five" could be campy, even frivolous, than that they were helpful, friendly, knowledgeable, and at root sincere. To some people in this nation that still comes as surprising news about gays, and it is a message we must never tire of repeating.

It was also interesting to see how many companies were happy to see their products mentioned on "Queer Eye." Very mainstream Pier 1 was delighted to have the gay men shop on camera at Pier 1 and walk out carrying Pier 1 shopping bags. The company viewed them as a valuable endorsement with virtually no downside. Public aversion, at least by women, who constitute the vast majority of shoppers, is now judged largely absent, and religious right boycott threats must be viewed as entirely toothless.

Skeptics might argue that "Queer Eye" drew at most 3 million viewers, or 1.1 percent of Americans. Rebroadcasts on NBC reached no more than 5 percent. But, equally important, "Queer Eye" and the other gay-inclusive shows generated enormous amounts of print publicity. Many who did not watch the shows were exposed to their influence through the literally hundreds of articles about them that appeared in magazines and newspapers large and small. More people probably read about the shows than saw them.

Just as one swallow does not make a summer, one summer does not immanentize the gay eschaton. But it was a summer our gay predecessors would have longed for.

It's time to start marshaling our arguments against the Federal Marriage Amendment (FMA). The FMA, which has now been introduced in the House of Representatives, would define marriage in the United States as the union of one man and one woman. It would henceforth ban gay marriages (and other forms of legal recognition of gay couples) throughout the country - at least until the amendment could be repealed, something that has happened only once in more than two centuries of constitutional history. Passage of the FMA would set back the cause of gay marriage for perhaps 25-50 years, possibly for the lifetime of most people reading this column.

The theory of the FMA seems to be that the states must be saved from themselves, from their own legislatures, from their own courts, and from their own people, lest they formally recognize gay relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution should support this amendment. It is unnecessary, contrary to the structure of our federal system, anti-democratic in a peculiar way, and a form of overkill.

The central argument against the FMA is that allowing gay marriage would be a good thing, for gays and society. But here are four arguments against the FMA that even an opponent of gay marriage should be able to accept:

First, a constitutional amendment is unnecessary. It is a solution in search of a problem. No state in the union has yet recognized same-sex marriages. Even if and when a state court approved same-sex marriage in its own jurisdiction, that can and should be a matter for a state to resolve internally, through its own governmental processes, as in fact the states have been doing.

Supporters of the FMA argue that the Constitution's Full Faith and Credit Clause might be used to impose gay marriage on the country. That clause requires each state to give "full faith and credit" to the "public acts, records and judicial proceedings" of other states. But this clause has never been interpreted to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the state's public policy. Thirty-seven states have already declared it is their public policy not to recognize same-sex marriages.

It is also unlikely the Supreme Court or the federal appellate courts, for the foreseeable future, would declare a constitutional right to same-sex marriage. Lawrence v. Texas, the recent sodomy decision, does not change this. Lawrence involved the most private of acts (sexual conduct) in the most private of places (the home); by contrast, marriage is a public institution freighted with public meaning and significance. If I gave my first year constitutional law students an exam question asking them to distinguish Lawrence from a decision favoring same-sex marriage, I am very confident they could do so.

Moreover, if the Court were suddenly to order nationwide same-sex marriage it would be taking on the entire country, something it almost never does. We should not tamper with the Constitution to deal with hypothetical questions as if it were part of some national law school classroom.

Second, a constitutional amendment would be a radical intrusion on federalism. States have traditionally controlled their own family law. The nation's commitment to this federalism is enshrined in our Constitution's very structure.

But federalism is not valuable simply as a tradition. It has a practical benefit. It allows the states to experiment with public policies, to determine whether they work. That is happening right now. States are trying a variety of approaches to test whether encouraging stable same-sex unions is, on balance, a good or bad thing.

Repudiating our history, the FMA would prohibit state courts or even state legislatures from authorizing same-sex marriages. It might even prevent state courts from enforcing domestic partnership or civil union laws.

Third, the FMA would be peculiarly anti-democratic. Simple majority rule is the strong presumption of democracies. But, as conservative legal scholar Bruce Fein recently wrote,

"that presumption and its purposes would be defeated by the constitutional rigidity and finality of a no-same-sex-marriage amendment."

While all constitutional amendments constrain democratic politics, the FMA would mark the first time in the nation's history the Constitution was amended to limit democratic decisions designed to make the states more inclusive and more affirming of individual rights. The FMA reflects a deeply anti-democratic impulse, a fundamental distrust of normal political processes.

Fourth, the FMA is constitutional overkill. It is like hauling out a sledgehammer to kill a gnat. Even if I have been wrong about the imminent likelihood of a court-imposed gay marriage revolution, the FMA is not a carefully tailored response to that problem. A much narrower amendment, dealing only with preserving state's control on the issue, could be proposed. Even such a narrower amendment, however, would be unnecessary.

In sum, the FMA is not a response to any problem we currently have. Never before in the history of the country have we amended the Constitution in response to a threatened or actual state court decision. Never before have we adopted a constitutional amendment to limit the states' ability to control their own family law. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights. This is no time to start.

Originally published in the Chicago Free Press, September 17, 2003.

A funny thing happened on the way to the Federal Marriage Amendment.

At the Sept. 4 Senate subcommittee hearings on "What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?" (against gay marriage), none of the witnesses who opposed gay marriage made a coherent case against it. None even tried very hard.

Of six witnesses, only conservative columnist Maggie Gallagher and African-American pastor Rev. Ray Hammond attempted to address the substantive harms of gay marriage. But what they actually addressed was the importance of marriage in childrearing and the social costs of fatherlessness and unmarried motherhood. It is as if they believe that arguing for heterosexual marriage constitutes an argument against same-sex marriage.

To be sure, Hammond offered dire warnings about gay marriage "eras(ing) the legal roadmap to marriage and the family," as if heterosexuals won't know how to marry if gays can marry. And Gallagher opined that marriage is "the place where having children and creating families are actually encouraged," as if the goal were to encourage more married couples to have children.

"How can Bob and James' marriage possibly affect Rob and Sue's marriage?" Gallagher finally asks. And replies: "There are long, complicated and erudite answers to this question. Fortunately there is also a short simple and obvious answer. ... In endorsing same-sex marriage, law and government will thus be making a powerful statement: our government no longer believes children need mothers and fathers."

Children may well benefit from having a mother and father. If so, that is an argument against unwed motherhood and for forcing heterosexual child producers to marry (say, by reviving shotgun marriages or making a paternal DNA match constitute civil marriage to the mother) and for making divorce far more difficult.

In short, it is an argument about what heterosexual parents should do, not about gay couples who do not and by themselves cannot have children. In other words, Gallagher is saying she does not have time for a long argument against gay marriage, so she will give a short one about something else.

To quote James Thurber's story The Thirteen Clocks: "'If you can touch the clocks and never start them, you can start the clocks and never touch them. That's logic and I know and use it,' said the Golux."

Gallagher continues by claiming that legalizing same-sex marriage means the government would be saying that "Two fathers or two mothers are not only just as good as a mother and a father, they are just the same."

But Gallagher's "short, simple and obvious" answer is at best an argument against gay couples' adopting or rearing children from intact opposite sex couples, not one against marriage by two men or two women who want to merge their lives, care and provide for each other, and have access to the numerous means governments offer to promote that end. Marriage, Gallagher seems to forget, is not just about children. It is also about adults and their relation to each other.

But even if, other things being equal, opposite-sex parents are better than same-sex parents, other things are seldom equal in the real world where most of us live. Conservative polemicists seldom acknowledge the fact of neglected, rejected or abandoned children whose biological parents divorce, die, refuse to marry, are abusive or are incapable of caring for children. Such children often end up in orphanages, group homes or the poorly monitored foster-care system.

We live in an imperfect world of better and worse choices where the optimum is not always available. Are single parents better than no parents? Children obviously benefit from having parents who love and care for them. Most states acknowledge this by allowing single people, including gays and lesbians, to adopt or retain custody of children.

Are two parents, including same-sex parents, better than one? Two parents may provide a higher family income. Two parents have more time to provide attention, support and affection to their children. Children can see two equal adults cooperating together, negotiating their plans, discussing disagreements - exemplifying adult partnering, something children of single parents never see. So yes, two parents are better than one.

Do children benefit from their parents being married? Conservative insist that marriage provides financial and emotional security for children that parents who merely live together cannot provide. There is no reason to disagree. And that obviously applies to same-sex couples raising children as well as opposite sex couples, and for the same reasons.

In the final analysis, in an era of increasing gay visibility and gay awareness, gay marriage opponents - to the extent they are not merely religiously motivated bigots - need to ask themselves this: When they say they want to "protect" marriage by preventing gay marriage, which scenario do they imagine will incline young heterosexuals to take marriage more seriously - the increasing visibility of married gay couples, or the increasing visibility of unmarried gay couples living together and single gays living independently?