Will Lawrence v. Texas lead to an Amendment Banning Same Sex Marriage?

(or: sometimes it does hurt to windowshop even when you don’t buy anything)

(or: full dilution of the earnings from Family Values, Inc.)

 

(posting on GLIL yahoogroups listserver on this topic Jan 21 2004; see letter to VA Congressman Jim Moran March 4, 2004; EDITORIAL ON GAY MARRIAGE AND FAMILY RESPONSIBILITY 7/15/2004)

               

The majority, in overturning the Texas “homosexual sodomy law” (21.06) affirmed consensual adult sexual privacy as a fundamental liberty interest that may not be abridged at the whim of the state in the name of “family values.” The state is not at liberty to pass criminal statutes that are intentionally designed to make homosexuals into second class citizens. Some passages in the opinion have, to some, suggested a precedent that would require national recognition of same-sex marriage.[1]

What about civil code and particularly marriage law? On its face, marriage law might be construed as disparaging of homosexuals, and some have suggested that it is now unconstitutional to limit the privileges of marriage only to opposite sex couples.  The Defense of Marriage Act of 1996 has already limited marriage for federal purposes (such as income taxes and social security survivorship benefits[2]) to man-woman couples only and allowed states to refuse to recognize same-sex unions from other states or countries, but arguably this law could now be challenged (on equal protection grounds, at least), too.[3] [4]In November 2003, in a complicated 4-3 ruling, the Massachusetts Supreme Judicial Court (in Goodridge v. Department of Public Health)[5] ruled that same-sex couples have a fundamental right to civil marriage under the country’s oldest state constitution, and it wrote, “The right to marry means little if it does not include the right to marry the person of one’s choice.”[6] This choice may or may not depend on claims that sexual orientation is immutable. Presumably this choice intended to be limited to non-blood-connected adults, although states already recognize other privileges for non-sexual blood relationships. Also, the judges believe that the Full Faith and Credit Clause may allow states not to recognize civil union contracts from other states that would not be allowed in their states (as with drivers’ licenses for minors) but this is legally controversial.[7] [8]Also, the notion of equal rights is not re-interpreted to mean “the equal right to marry someone of the opposite sex”; rather adult significant other choice is regarded as a fundamental right before equal protection analysis starts.[9]  On February 4, 2004, the Mass. Court issued a supplementary opinion. ''The history of our nation has demonstrated that separate is seldom, if ever, equal,'' the four justices who ruled in favor of gay marriage wrote in the advisory opinion that had been requested by the state Senate in its mandate to decide how to comply with the ruling. There are references to Lawrence v. Texas in the Nov. opinion (not the Feb 2004 supplement) and its reasoning about fundamental rights and equal protection clearly influenced the Massachusetts Court.  In mid May 2004, a federal district court refused to stay the Massachusetts Supreme Court ruling, and the Supreme Court refused to intervene. The people of Massachusetts will be able to vote on this issue with a plebiscite (for a state constitutional amendment) in 2006. On the other hand, Massachusetts (by a 1913 law) does not have to marry partners who could not have married in their home states. New York and Rhode Island, it seems, at least, will recognize same-sex marriages performed in Massachusetts. In the meantime, Multnomah County, Oregon registered 3022 gay marriages in March and April 2004 after Judge Frank Bearden ruled that the state of Oregon must “accept and register” marriages of same-sex couples.[10] Another county in Oregon, Benton, stopped accepting any marriages licenses (including opposite sex) at all.[11]  On Nov. 29, 2004, the United States Supreme Court declined to hear a challenge (from Robert Largess, vice-president of the Catholic Action league and from eleven Massachusetts legislators) of the Massachusetts Supreme Court ruling, base on the idea that the Commonwealth was denied its appropriate form of government with separation of powers among the branches. In early December 2004, however, the Canadian Supreme Court paved the way to recognizing gay marriages throughout Canada.[12] In May 2005 a federal judge (Joseph Bataillon) in Nebraska declared that state’s Nov. 2000 state constitutional amendment banning gay marriage to be a violation of equal protection and to have effects in other areas like adoption, foster care, and equal benefits in mutual partner care situations. Gay marriage becomes legal in Britain Dec. 21, 2005.[13]  In New York, state appeals court judge Doris Ling-Cohan ruled that New York’s refusal to honor gay marriage is unconstitutional, in early 2005, opening the door to New York City honoring license applications; the state appealed.[14] In Maryland, Judge M. Brooke Murdock (Baltimore) ruled that the state law banning gay marriage is discriminatory and cannot withstand constitutional challenge, on Jan. 20, 2006. (She immediately stayed the ruling so that it can be appealed.)[15]  In New Jersey, the state supreme court ruled on Oct 25, 2006 that same-sex couples must have the same rights as heterosexual couples, but left open the possibility of calling them civil unions.[16]

The psychological, as well as legal basis or same-sex marriage, and of the implications of allowing and denying it, bears a walk-through.  The theory of polarities, developed in the mid 20th Century by Paul Rosenfels, helps lay a good psychological foundation for committed same-sex marriage.[17] The stakes operate on different levels: equal rights and individual fairness, to be sure, but also larger cultural meanings that brake competition and keep it from racing into predation.

 

Let me mention very quickly, also, with the plethora of same-sex marriage ceremonies in San Francisco (as allowed my Mayor Gavin Newsome[18]) and a few other locations, that a military servicemember (active or reserves, or even a student under an ROTC scholarship) is still apparently subject to discharge (and other losses, including possible recoupment) under the “don’t ask don’t tell” policy if he or she attempts such a marriage, because an attempted marriage (even if the marriage is later found to be illegal) creates the presumption of engagement in homosexual acts and legal disqualification from military service. (In August 2004 the California Supreme Court nullified gay marriages performed by Gavin Newsome, indicating that he no authority to perform such marriages until there was a ruling on constitutionality.[19])

 

The most important observation is that families with children (and families with disabled and elderly members) are under severe economic and cultural pressure in a society that, over the past four decades, has grown decidedly more individualistic. Of course, some people believe that society still goes out of its way to favor the needs of people with children. But there is a general trend to expand personal liberty opportunities, with the condition that individuals are held more accountable for their own choices and their own performance in an increasingly competitive society than in the past, with less regard to the burdens people have to care for others. At the age of 60, I have gotten through my own life as a singleton, with some serial episodes executed relatively “safely” but without much responsibility for supporting others or making decisions based on other family members’ needs until reasonably recently, and I have the impression that I gave “gotten away” with something, as did much of my generation. So it is not surprising for some voices to resist this “laissez-faire” trend for family life (and libertarian calls for government disinvolvement with marriage beyond the idea of a voluntary two-adult contract) to counter with calls for “affirmative action” for “families with children” and elderly members.

 

The benefits to legally recognized marriage partners (and, again, marriage is a most unique combination of personal, civil, legal, and religious culture that is unconstitutional in most other contexts) obviously are intended for the benefit of children and of dependent elderly or otherwise disabled family members, but these benefits are also obviously important for the marital partners when one of them depends on the other.[20] Most of the usual arguments concerning gay marriage focus upon parity of these benefits for same sex partners as for opposite gender partners. However, it seems to me that the real social controversy concerns mainly children and, to an increasing extent, eldercare and the “natural” support that older notions of extended blood family efficiently provide. Even so, some heterosexually married couples do not have or cannot have children (and do not choose to adopt children) while enjoying the benefits (as well as perhaps the now greatly reduced “marriage penalty”[21] in income taxes), and some same-sex couples, without legal protection, sometimes (besides the “obvious” problems visitation, immigration, etc.) have their wills challenged by blood relatives or inheritances affected by the “dead hand” or even existing relationships disrupted by caretaking demands from direct relatives who believe they have liens on their legally unmarried lives.[22]   If the debate about marriage is to be cast, as conservatives maintain, as just a common good primarily for children and blood family stability, then logically a public policy choice about equality for gays or others who cannot legally marry partners of their choice still follows: if people who do not legally marry are otherwise protected from discrimination, they will be perceived as having unfair advantages because of fewer responsibilities, else they will be expected to subordinate their life choices and freedoms to defer to those with more responsibilities (families with children). As is the case in some chess openings, equality cannot exist.

 

Many “family values” advocates have recently criticized the notion of the “laissez-faire” family, where marriage is seen just as a personal lifestyle choice. The end result of such a trend is that less competitive people are left out in the cold if the families that they used to depend on become weaker. So there will be political pressure to improve the lot of families, at the expense to those without obligations to support others (that is, those with more “disposable income”).  In mid 1990s, a few conservative publications argued for bringing back the “family wage” (as an answer to the “two-income trap”). Since gays and lesbians usually do not have their own children from their own intimate relationships, this obviously affects them, and may feed on a perception that their supposed lack of conventional sexual performance and continuity lets them cheat the system. In recent years, social conservatives have been more willing to blast intentional childlessness as a refusal to grow up.

 

CSPAN radio, with a session that featured author Jonathan Rauch (discussed more below) on May 14, 2004, built on this point. Marriage, speakers pointed out, is an institutional agreement between a couple or an entire family and its community and society; it is more than just a contract based on love to make the marriage partners happy or even to help raise the children. It is a building block for socialization, and, perhaps, political organization. But if that is to be true, persons who “choose” not to marry (including, up to now, homosexuals) risk becoming marginalized and being called up to sacrifice. There is no way to make this assertion without making them second class citizens and sometimes compromising their freedom. Speakers pointed out that public policy “on the margins” where relatively few people actually act, sets examples for future social trends, and can weaken marriage further and weaken the ability of a community to raise or even have enough children to replace its population, as well as leaving individuals more vulnerable to catastrophes because they do not have marriage partners to be there for them. Rauch also pointed out that the binding commitment between two partners even in a gay marriage creates a model that does not extend to polygamy or to multiple partner arrangements where persons can opt out of “family responsibility” easily, and that gay marriage is intended to extend the right to marry to everyone, whereas polygamy mathematically excludes people from (first, “girl friends, “ and then) marriage (and therefore tends to undermine, with the attendant extension of opportunity reasonable self-fulfillment to the average person, democracy itself). 

 

One way to address this problem is to define “personal responsibility” as including demonstrating the ability to provide for others (besides oneself).  Of course, it is possible to cast this responsibility as a debt or lien owed back to a family by which one was raised. The modern conservative notion of individual liberty is to maximize liberty, to the extent that it is matched by individual accountability, where accountability incorporates capacity to take care of others and answer to others, as a way of authenticating oneself.  In this view, gay marriage and adoption[23] ought to be encouraged and expected, so that gays and lesbians participate in the basic responsibility of providing for the next generation.[24] Along these lines, some gay couples have used artificial insemination to build families.[25] Similar reasoning applies to the ability to serve in the military, to take one’s turn in defending liberty interests of others.

 

Why, then, to social conservatives object so much to this way of leveling things? Marriage, they say, is a collective institution from which normal adult people derive some of their sense of personal identity and liberty. As an institution, it is essential in providing confidence in the psychological stability that children and less able adults need to have their needs meant without a sense of “burden.” The complementarity of committed heterosexual marriage is (supposedly) the one psychic sacrifice required to prove that one has “grown up” beyond adolescent narcissism and immature forms of competition. Along with this maturation is the expectation that one can remain sexually interested in the committed marital partner as both partners age and encounter other difficulties (“in sickness and in health, for richer or poorer….”).  Another important argument conceives of the slippery slope, a greased playground slide where the disconnect between marriage and procreation and emphasis on marriage as just a contract[26] will gradually lead to forms of polyamory among heterosexuals. These arguments reminds me of the debate over the military gay ban, where the central point seems to be not so much homosexuality or homosexual conduct itself as the effect that the example it sets for of that knowledge of it has on less intact heterosexuals (and on the young).

 

In family matters it is obviously easier to take care of people (whether kids, the elderly, or other disadvantaged members) spontaneously when the heads of the household are sexually committed in lifelong (not serial) monogamy, so the willingness of an emerging adult to channel his or her sexual interests towards monogamy potentially becomes a moral issue, at least if one limits the idea of marriage or sexual partnership as a privatized choice and instead emphasizes the indirect affect this has on the community and other family members. But, all of this is possible with committed same-sex unions as well as traditional marriages.

 

The end result of this view is that marriage cannot become just a voluntary contract that one can “opt out” of without disadvantage.  In earlier generations, the “non marrying kind” were expected to stay home and take care of the elderly or disabled family members—and in this regard it seems that the gay marriage debate could lead to a new debate over filial responsibility, particularly when the combination of life-extending medical care and much smaller families turns custodial eldercare into a coming train wreck. One could see chosen adult gay (and not legally recognized) relationships broken up if legal filial responsibility returned.[27]  Logic is merciless here: one is seen as subordinate or immature if one has not learned mature adult heterosexuality. This idea, of course, is what is so offensive to gays and lesbians, who would then be expected to sacrifice for or support an institution in which they do not fully participate. Then, of course, you can argue that gays and lesbians benefit at least indirectly from the family and simply choose not to channel their sexual energies into procreation—or did they have a choice at all?  Others have argued that homosexuality occurs naturally as an “altruistic” gene or biological variation mainly to enlarge the possible routes to child and eldercare.

 

Or, put it this way (to capture socially conservative thinking): Radical individualism (as a modern notion of adult freedom) and a technological culture that substitutes “aesthetic objects” (or Neo-TheWB’s machines from “The Matrix”) for “real life” people (this relates to the exposure of children to television and computers and adult information) have contributed to a notion that “family values” is just another private choice that has to be economically self-sustaining (and as a choice that doesn’t encourage male sexual loyalty to stay-at-home moms or accept the biological risk of bearing children who are developmentally or medically challenged, all under the paradigm of “aesthetic realism”). A society that, under the notion of grownups’ freedom, lets someone “opt out” of an obligation to family (for continuing it or at least caretaking it as a first priority) for inward-looking satisfaction rooted in part-objects (or “self dating”) will find itself at a “childhood’s end,” as Arthur C. Clarke put it—possibly in its last generation. Same-sex marriage (and derived parenting) can fit into family culture only if the culture believes that it is serious about “family first.” The healthiest balance occurs when an individual successfully defines his own expressive identity first, but this does not seem possible for most people.  To many people, to set oneself apart from other family members in the setup of one’s life is to deny some family members support to which they are naturally entitled.

 

Marriage, in fact, can work either way. It can provide a hiding place for less “creative” people, or it can inspire creativity. It is a paradox of individualism that it still appeals to collective values as objects of personal expression. Even so, many people, originally motivated by the tender trap, do silly things in the name of lineage, selling their own ideas out to engage in high volume, numbers-driven marketeering and peddling of the work of others in order to prove that they can provide more for their children than other families. That paradigm is supposed to drive “ordered” individualism and progress in the long run. But in recent decades the culture has changed to place more emphasis on the initiative of the individual, apart even from family. Even so, heterosexual men of the stereotyped “average Joe” or “Bubba” tribal mentality seem to act as if the opportunity of another man not to follow heterosexual competition undermines their own sense of potency or, at least, “meaning.”

 

The rationalist-individualist argument that a gay marriage has no effect on heterosexual marriages is met these days by observations that gay marriages or civil unions (as already the case in Vermont) are sometimes formed by breaking up heterosexual ones.[28] Of course, one can answer this by changing public policy so that once one voluntarily divorces a marriage (particularly one with children), one cannot marry a second time (and get any of the privileges—and shared responsibilities and liabilities--that go along with marriage).[29]  (In Chapter 5 of my first “Do Ask Do Tell” book I also proposed that to get the benefits of marriage, a couple-straight or gay—would have to take on at least one dependent within some specified time of the marriage event in order to realize or “earn” the benefits.) On the surface, the moral responsibility for breaking up a marriage always rests with the parties of the marriage.  Digging further, it seems that it is the freedom of people to define themselves (as a “private choice”) apart from the traditional family that undermines the incentive for others to form two-parent families for kids. The deeper question also gets back to why one needs to validate a marriage or domestic partnership with societal privileges that others must help pay for. Doesn’t the societal investment and social support undermine the idea that the marital partners have voluntarily chosen one another, to make a polarized bond?  Some societies accept arranged marriages and coercive patriarchal arrangements as reinforcing their own religious concepts of morality, whereas Judeo-Christian marriage views a marriage as a private expressive choice that fits into a public purpose, that is supposed to reinforce a healthy individuality.  That public purpose—maximizing the chance that a child will have one father and one mother committed to one another—lives at some tension with the practical goal of finding homes for orphaned or foster children, which would also seem morally compelling. (In Florida, a gay male couple that had cared for HIV+ foster children was denied the ability to adopt them by state law; but some people would question if gay couples, especially male couples, would be up to the challenge of sharing the “burden” of the world’s many abandoned and often disabled children.) The pro-natal (“for babies”) argument just gets back to the question of how far our society will take rationalism, individualism and self-ownership as a philosophy, particularly in an economic war where people are getting creamed today when they cannot compete well individually.  Heterosexual marriage, family and lineage, as an institution, defers the individual away from his own self-expression to a common experience; life is more than just individual karma or “getting a grade.”  But in some ways gay marriage comports more closely to modern paradigms of conservatism than does blind reliance on marriage as an institution.

 

Bear in mind here also the relevance of the fall in birth rates, not only in western countries but also in developing countries, to half of what it was in 1972. “…the economic of family life in developed countries make the trend nearly inevitable… And while Social Security and private pension plans depend critically upon parents’ replenishing the nation’s human capital, they often the same benefits, and often more, to those who avoid the burdens of raising a family… If modern secular societies are to survive, they must somehow enable parents to enjoy more of the economic value they produce for everyone when they sacrifice to create and educate the next generation.”[30] This argument, which I think frankly we are starting to have to face and have suspected for a long time (as in Chapter 5 of my first DADT book when I talk about workplace tensions for families with children), will make gay parenting a particularly challenging discourse.

 

All of this should be borne in mind to appreciate the deeper tensions beneath the gay marriage debate. Even so, it is hard to believe that the “emerging awareness” doctrine in the Lawrence decision will be extended as requiring that all of the benefits of marriage be offered to gays and lesbians. Nevertheless, attempts to strengthen the family (in relation to individuals acting on their own) will include arguments that families created by gays and lesbians must be included. The debate about family values is ultimately a meditation about socialization, about channeling personal purposes to meet the needs of others without too much awareness of imposition on self and too much invitation for interference from the outside (the state). Now encouraging certain kinds of socialization (the nuclear family, with a Hayek kind of deference to tradition) ultimately invokes preferences, and however benign these are made to look (bypassing “equal protection”) these privileges for “families” cannot be implemented without ultimately trampling upon individual freedom (like mine!) in unpredictable and unintended ways (the old “unintended consequences” logline).  But that observation invites a certain contraposition. That is, the individual rights originally claimed are therefore not fundamental because they can harm socialization, which was exactly Sen. Richard Santorum’s argument supporting sodomy laws before Lawrence v. Texas. Yet, it is hard to imagine a future Supreme Court following such merciless logic to its ultimate roots and despair. 

 

Further, in modern times western Judeo-Christian marriage has been distinguished by a historically surprising openness and capacity of individuals to chose their own lifelong partners, regardless of station in life. Many other (but usually totalitarian) societies (ranging from ancient Sparta to Nazi Germany) have propagated the notion that men must prove themselves “worthy” of marriage and fatherhood by succeeding in competitive struggles first. This has also been common on the frontier. Consider, for example, Kevin Costner’s character in the 2003 western movie Open Range. After World War II, American society saw “marriage for everybody” as relatively liberating, although the idea of male “qualification” persisted through the Vietnam era draft and provided a double standard.  If any man, however untalented, can redeem himself as an adult through marriage, then marriage and parenting can become goals expected of everybody.  The other side of this coin, however, is that marriage becomes “privatized,” with more emphasis on the emotional satisfaction of the participants, even at expense to children; dissolution and divorce become easier.  Over-rationalization of marriage becomes psychologically threatening to some people, who may fear that they will not be able to “perform” in it when they are forced to cogitate about it.

 

Recent articles in conservative publications show a surprising return to collectivism—or psychological socialism, almost with comparison to affirmative action preferences-- in their appeals to the notion of marriage as that institution that conveys special common cultural succor for biological procreation (“making babies”) and blood family formation and maintenance. The integrity of family relationships extended by blood and common law, rather than just by individually chosen adult arrangements and contracts, is seen as a fundamental postulate of any reasonably free society, precisely because it provides continuity and stability that everyone will need at different times in a life.  A legal or cultural structure that requires people who do not form biological families of their own to help support those of others could be justified by the idea that everyone benefits from the family indirectly (stable homosexual adults normally are raised in heterosexual families).  The tone of these new conservative arguments—however refreshing in their bluntness, at last—suggests that we return to a time when some opportunities are foreclosed to individuals who do not want to participate in family creation (let alone walk away from families that they have started) and that we accept again the idea that heterosexual marriage and parenting be expected as a component of success in life.  Indeed, the openness of information (in the media, books and movies) about variations in sexuality—homosexuality and polyamory—is seen by some people as an unwelcome distraction when they try to function as parents and spouses in a straightforward manner.  Civil rights advocates, of course, point out that we can develop a system of fully equal rights—and concomitant equal responsibilities and sacrifices—for gays and lesbians by encouraging gays and lesbians to participate in family life as extended beyond biological origins. The question then is whether we can still have full civil equality and, at the same time, maintain a vigorous family culture that does not demean those used to expressing themselves through traditional gender roles.  Even this leads to a further point, that biological family life is supposed to lead to personal treasures that make meritocratic competition or equivalency irrelevant. I hardly can believe that.

 

Amid all of this, social conservatives, behaving like wounded carnivores, perhaps, are lashing out with the that one big argument that they have left: complementarity, as part of procreation and baby-making. They propose constitutional amendments to shore up DOMA, the 1996 Defense of Marriage Act.[31]  It sounds innocent enough, to just say that in law marriage can exist only between one man and one woman. (Yes, Jerry Falwell!)[32]  But in a stressed economy, those who do not participate in marriage will be expected to sacrifice for those who do. And some want to take this further, amend the Constitution to specifically allow states to pass criminal statutes to maintain their notions of collective morality. Or, in other variations, they want to forbid states even on their own (under normal constitutional precepts of federalism) with experimenting with same-sex relationship benefits. They want again to use sodomy laws to force every adult to participate in parenting the next generation with as much biological effort as possible. They want to eliminate what they see as unacceptable and dangerous competition for those whose lives are predicated first on supporting lineage before moving on to personal accomplishments. It is no longer enough for them to see gays and yuppie singles sacrifice some of their legendary “disposable income.” They want to see gays and lesbians play the game of life by their rules, give up chosen personal ties based (apparently) on meritocracy and come back to participation in the biological family. In Aug 2004 a Washington state bankruptcy judge indicated that he could not find DOMA unconstitutional.[33]

 

Religious conservatives often express the viewpoint that the law should express absolute standards of right and wrong in personal conduct and motives, and that doing so consistently is the surest way to bring fairness to society and care for those who cannot take care of themselves.  Often this view emphasizes the simplest view of the nuclear family as an essentially mandatory motivational prerequisite for everyone (else second-class citizenship) and appeals to religious scriptures for final justification.[34] There are secular supports for this view, but, besides constraining individual liberty and personal private choice, they tend to serve the interests or agendas of certain politicians and religious demagogues. Liberals, in opposition, propose wealth redistribution and democratic regulation as a way to level the playing field, and often appeal to the idea of belonging to a class of people that has been oppressed or intentionally cheated or disadvantaged. Liberal views seem at first to support personal liberties in many areas (for sexual minorities as well as people of color), but may involve regulation, intrusion on valid property rights or other subtle incursions on liberty. Even the formulation of social justice in terms of equality paradigms does not fully address how you take care of many people in an increasingly (and sometimes predatory) competitive society. Libertarian ideas of balancing freedom with personal responsibility come closer to the mark. But accepting personal responsibility—accountability and authentication—involves a lot of discretion, which is not the same thing as situational ethics. But same-sex marriage, and its expectations, may fit well into this idea of responsibility, for the next generation.

 

A More Personal Note

 

At this point, I’d like to convey a bit of the way I have experienced these ideas personally. I am an only child, and as a homosexual who came of age during the McCarthy/Cold War years, I was grateful to live most of my adult life with reasonable privacy and stable middle class income, even if benefits like marriage and opportunities like adoption were not within reason (legally, politically and therefore personally) for me.  I came through the worst of the AIDS years medically all right, but came to appreciate how even my “private” behaviors might be construed as a downstream threat to others. In the past decade or so, particularly in view of the debate over “don’t ask don’t tell” with respect to gays in the military, I have come to value my own self-expression as much as my “privacy,” and the two concepts for me are commingled. During that period, however, I have also come to sense that some people resent my lack of responsibility for or apparent accountability to others, and feel that sometimes I will have an unfair advantage in the workplace. On a few occasions, for example, I have done more unpaid overtime than others, or been on call during holiday periods, for the benefit of other coworkers who had “families with children.”

 

Personal and professional decisions that I made, documented elsewhere on this site and in two of my books, led me away from family, living alone in other cities. I was not able to be at my mother’s side in 1999 during a medical crisis. Although it turned out all right, my unavailability might have had serious consequences for her. On the other hand, I could not have returned without extreme loss to myself. I should not be more specific that that right here, other than to support a debate. My own decisions, as to what to do with my own life, even as an adult, can have consequences for other family members or others, especially those who are no longer completely on their own. This takes on a moral dimension related to the debate over marriage.

 

I have taken some steps to change the situation, moving closer to my mother and making other adjustments. This is something that I perceive in some way as a loss of freedom even if it turns out all right, and I can relate to Santorum’s claim that my “freedom” undermines traditional families and blood loyalty. I do find that some people, however, have difficulty from my “distance” from them and my “privacy” that to them seems not to have morally legitimate purpose if it does not support family. I like to “windowshop” (yes, I love to watch the young male break dancers in the Minneapolis Saloon or Washington’s Cobalt), but done too often this kind of behavior can seem creepy or contemptuous of people of my own age or of “average Joes” whose values and sense of success depend on dedication to lineage and blood family. And some of my writing admittedly implies that kind of sentiment I think. A few times over the years I drew angry comments, one almost threatening, from readers along these lines (I remember particularly a response to my movie and book review of Sebastian Junger’s The Perfect Storm). And yet, like the teenage piano prodigy character Ephram who writes a well-quoted English essay on “my worst flaw” in a famous 2003 episode of Everwood on TheWB, I do not really want to “change.” (Don’t misread this: the character in the show is portrayed as straight and looking for a first girl friend.) I should have been a pianist or musician myself.

 

People will say, if I don’t value my own “blood” enough that I would want to perpetuate it with a family the way “normal people” do, then what do I really want (beyond a narcissistic fantasy), and why should anyone listen to me?  What I see as motivational diversity they see as adolescent immaturity and evasion. It’s even arguable that a commitment to family, especially from people “at the margins,” is important to the survival of democracy during difficult times, when external threats might require sacrifices of individuals and their willingness to find more meaning in family if they have any incentive to rebuild and keep going at all.

 

I think one can see what I am getting at. Support of others is a moral issue, but that goes beyond even finances or availability, or even legal benefits as with marriage. We often talk about “redistribution of wealth” when what is sometimes seems is that we have an inequitable distribution of responsibilities. And these responsibilities, beyond the idea of “paying your dues,” reach to the level of empathy and emotional commitment. That is perhaps why the public meaning of “family” and “marriage” seems so important, apart from the benefits.  For many years, I had thought of myself as “equal” while single (“separate but equal” maybe), because of my freedom to roam. But eventually I saw that once I had to take responsibility for others I could be driven back into second-class citizenship, secondary to the needs of those who have formed biological families. In all this murk, I came to see “normal marriage” as the “best deal” society claimed it could offer me as an alternative to a backup role for the caretaking of others, when I had been indulged back to relative shelter and comfort despite by boyhood “sissyishness.”

 

Now, I did grow up as an only child with a committed, married mother and father; so I can see the “conservative” argument. Should I not be expected not to make choices (with my “freedom”) that, in some public manner, set examples that will hurt children (or anyone needing family support) in current or following generations? If I did, isn’t a “penalty” appropriate? This argument goes beyond the trite appeal to religion to determine what is “right.” Of course, many of my contemporaries did not have such a family to bring them up. I have to admit, that while I have followed the rules or laws on the surface (like the “ruler” of a well known Gospel parable), I never proved that I could support anyone besides myself, or paid heed to gender responsibilities to “pay the system back.” Is this the ultimate argument? I can only offer “personal responsibility” and the idea that everyone must “pay your dues.”

 

Of course, then, marriage matters to the unmarried, because it “matters” – the perfect tautology. If the government gives benefits to the legally married, it taxes or indirectly penalizes the legally unmarried to support marriage (and the legally married), which has come to be seen as a kind of zero-sum game. As columnist William Raspberry noted, quoting a book by Michael Warner, The Trouble With Normal, “as long as people marry, the state will continue to regulate the sexual lives of those who do not marry.”[35] Even with Lawrence, which could be undone.  I do think that, still, many people really believe that since I did not form a family of my own (either through biology – preferable –or at least through adoption) and carry on a lineage, some opportunities should be foreclosed to me (job advancement, recognition, maybe even the expense of medical care in old age) and saved for “real grownups” authenticated by their own families (and by their encompassing responsibilities for these families). Even if my situation is immutable (if it is about “inability to change” and not “refusal to change”), I should be relegated to taking care of other family members altruistically, before I set my own expressive purposes. Perhaps this sounds like right wing paranoia. But I think a lot of people still believe that. If society is to become an “individualistic meritocracy” that can exclude people who fail, responsibility for lineage and family is supposed to count a lot as “merit.”

 

Had I grown up in a more accepting society, could I have found a partner at William and Mary (rather than getting thrown out of school for admitting “latent homosexuality” as a freshman) and been “authenticated” by my own family? I think I would have fallen in love and started a relationship, but could I have been sexually interested an faithful to one male partner for enough years to raise (adopted) children (as the partner aged)? I don’t know. It sounds dubious. In those days I would have thought of sexuality as something for my own private adult purposes, but in time the expressiveness of my sexuality would still have become a public moral issue. It is the individualistic separation of sexual interest from committed responsibility for others that seems to become the focus of the moral controversy. But quickly this turns into a debate about the separation of sexuality from procreation and lineage and all that these concepts used to mean. Indeed, there is a curious parallel to this debate within our own society and the resentment that we (as a western society) have incurred from radical Islam at least partly because of our growing public abandonment of the meaning of lineage (in a patriarchal and religious context).

 

We hear a lot these days about economic fairness, and the instability (and suffering) that results from the widening gap (again) between the haves and have-nots – the “winner take all” society.  Much of the disproportionate burden seems to be borne by conventional middle class families with children, and low-income families (often headed by single or unwed mothers). Of course, one can make the crude, dangerous and perhaps Fascist argument that only the “fit” should continue the species with children at all. So, a reasonable proposition is that fairness at least partly comes back down to holding individuals accountable for their actions.  Fairness is promoted not just by going after privileged “classes” (“rich people”) but by stopping people from cheating the system as individuals. Logically, that means that individuals should have accountability in a personal way to others—and the family is the most efficient way to guarantee that. Gay marriage fits into such a solution. Imagine, say, a world where marriage and parenting are expected, gay marriage is allowed and encouraged, but where filial responsibility is also enforced. Then there is an incentive for everyone to invest personally in the next generation (and to have or adopt a low number of children, as opposed to no children, which is the economic incentive now!) But this would still be resisted by “social conservatives” and by “average Joes” as an insult to the idea of biological lineage, kinship, and the “sanctity” or psychological meaning of marriage as the endpoint of procreative sexual intercourse.  If I (as a gay male) prefer to “affiliate upwardly” with another male partner, marry him and then adopt children with him to form a family, doesn’t that send a contemptuous message that I regard my own genes or blood as inferior?  Such people want a world in which the personal goals of anyone must be filtered first through serving the ends of biological family (as a prerequisite for personal competence) even when the family may be “wrong” about some particular problem (after all, that is what adversarial politics is for). In this view, the culturally reinforced attraction of women to men in the hope that women will tame men (the “tender trap”) gives men the incentive to bond with their children and put the interests of their children over abstractions of their own. At the same time, young people would be expected to grow up with the idea that they must learn certain gender-based, universal down-to-earth skills, pay their dues, and serve others through biological family before they have the right to define their own goals and express their own opinions. Homosexuals, even in a world with gay marriage and filial responsibility, would putatively lack this deeper gender-related incentive and find it artificial, burdensome, and intellectually dishonest.

 

We do now have a “perfect storm” in our cultural wars, as Elizabeth Birch noted in her speech at the end of the October 2003 Human Rights Campaign national dinner. Some people develop their sense of meaning and experience by unquestioning participation in blood family and lineage (all tied to procreative—and marital--sexual intercourse), whereas other people want do choose their own expressive and associative opportunities according to their own ideas.[36] This latter group—including me—may have to accept the idea of family responsibility as a prerequisite and moral necessity, and that may be the only way to give every person value in a society that has become profoundly competitive. Persons in my culture sometimes have not been sensitive to the enormous psychological demands on families with children and dependent elderly or disabled adults in today’s “modern” individualistic and competitive culture. Rationalism forces focus on comparative rights and benefits in a legal sense, whereas common sense demands recognition of the importance and credibility or marital bonds.  In the long run, public values and democracy will count more than the courts on this one. Allowing and expecting gay marriage can be a bold step forward towards this reconciliation, but only if we appreciate that individuals have to be even more accountable for their past performance and actions, including the ability to take care of others.

 

 This is, after all, an issue where the various interests sideswipe the debate. Yes, legally this should be a civil and not religious issue. Yes, fairness to different kinds of couples matters, and among singles and families, and there is a good case that allowing gay marriage makes things much fairer for all adults, given that one accepts a “competitive” model for freedom. Yes, though, this is a debate about preferences and unfairness, particularly in a world where unexpected external hardships can compel disparate sacrifices. To provide for the next generation, some argue, we must all support a society where the gender commitment that produces and supports children is given first consideration, for the confidence of the children who deserve a chance from the system, and for the practical well-being of “working class” families where traditional gender-based values are their only reachable means to meaningful identity.  We must, in that view, filter self-advancement through the idea that it provides for your specific family as well as you.  David Blankenhorn, of the Institute for American Values, proposes a paradigm for this concept with the idea that every child have a “birthright” to a mother and father.[37] That’s the deal! So, yes, if you don’t participate in this institution, second-class status is a possibility, frankly. Community preference for traditionally married people is an intended consequence of keeping “the sanctity of marriage,”[38] you bet! The “marriage institution” (with its attempt to commit sexuality to lineage) is like a condominium building’s common elements, which everyone must support with dues, assessments or “taxes” regardless of “chosen” person use of this common property; and it has the capacity to delineate a cultural “zoning law” for appropriation of private expressive interests. What offends me, and I think most GLBT people, that it is an explicit preference for a sexual “lifestyle” (albeit heterosexual commitment to the same person for life, and the ability to remain sexually interested in the opposite sex partner as he or she grows older, and even participation in the “family bed”) that those who do not participate in must help pay for and sometimes even sacrifice for – and heterosexual “lifestyle” is symbolic and example-setting; it does not require that the beneficiary of the preference actually raise children; it is predicated on giving up adolescent “feelings” rather than actions that actually support others. We all, know, of course, that, in practice, extreme disparities in wealth and unethical competitive behavior by people who rationalize their cheating[39] out of “loyalty to blood” (and therefore “family”) contributes to the hardship for average families and undermines the idea of free markets as we know them. There is tension between the idea of competitive success for the self, and meeting real needs of others, and no political system or solution eliminates this. The political Left responds to claims of my evading obligations to others only by putting me in a separate group for separate rights, not an adequate answer. So it all comes back to what we really mean by freedom and responsibility.

 

ã Bill Boushka, 2003

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Related essay on meritocracy

 

Note: In Do Ask, Do Tell  (1997) (http://www.doaskdotell.com/content/xchap6.htm) I had proposed a constitutional amendment in which the federal government did not have to recognize any (same-sex) marriages and in which states did not have to recognize (under Full Faith and Credit) marriages from other states or countries that would not have been performed in their states. But this “Amendment 29” had the libertarian purpose of encouraging states to experiment with same-sex marriages and civil unions.[40] [41] Furthermore, the amendment itself would not have textually defined marriage as between a man and woman.[42]

 

There are some important recent essays on this debate in various periodicals.

For example, check The Weekly Standard,  Aug. 4, 2003: “What Marriage Is For: Children need mothers and fathers,” by Maggie Gallagher. A key sentence here is “[Evan] Wolfson is right that in the course of the sexual revolution the Supreme Court struck down many legal features designed to reinforce the connection between marriage and babies.”

And also, “Beyond Gay Marriage: The road to polyamory,” by Stanley Kurtz. Similar reasoning is expressed by Jennifer Roback Morse in National Review and in her book.[43]

 

Or in the July 28, 2003 National Review, “Coming Our Ahead: Why gay marriage is on the way,” by Ramesh Ponneru, as well as “Stand and Fight: Don’t take gay marriage lying down” by Gerald V. Bardley (Notre Dame) who writes bluntly at one place, “law protects marriage by (among many other measures) discouraging non- and extra-marital sex—including ‘consensual’ same-sex acts ‘having little or no direct impact on others.’”

 

Chris Crain, executive editor of The Washington Blade, weighs in on the “complementarity” paradigm with an editorial on p 44 of the September 26, 2003 issue, titled “Gay Men are from Uranus: Are straight relationships really better because ‘men are from Mars and women are from Venus’: What if both partners hail from the same planet?” Yes, Chris, but remember that Venus looks like the Biblical version of Hell, and apparently so does Smallville’s Krypton. The term “complementarity” seems to have become popularized in anti-gay pronouncements from the Vatican back in the 1980s (when homosexuality was called an “objective disorder.”) On October 17, the Blade carried an article by Paula Martinac, “Uncoupling marriage: There are really two types of marriage, civil and religious, and we need friendly politicians and pastors to uncouple them.” Indeed, marriage has always sounded to me like a suspect comingling of church and state,[44] as pointed out by Gene Cisweski in his 1995 GLIL Quill essay, “License expired.”[45]

 

On March 12, 2004 Chris Crain published and editorial (p. 44 The Washington Blade) “Piddle, twiddle and resolve: The District of Columbia is poised to become the first jurisdiction in American history to enact gender-neutral marriage laws. Then why doesn’t it?” Crain criticizes the GLAA for its cautionary incremental approach as a sell-out, but GLAA predicates its approach on the idea that Congress would quickly overturn any such law for the District. One can imagine then an anti-DOMA style lawsuit, that probably would not succeed, but, to be sure, one can make the argument, as with Romer v Evans (or even Scalia’s feaful language in Lawrence) that “public policy” exceptions for states (with respect to Full Faith and Credit or even to “equal protection” concerns about maintaining “traditional” marriage policy within their own domains) might run into precedents concerning animus in the law. Rick Rosendall has a letter on p. 45 concerning GLAA’s positions. Conservatives also note that a “patchwork” of standards regarding marriage would bring about constant litigation; however even now there sometimes are problems when couples move from states, as when a “housewife” moves from a community property state to a non-community-property state and must establish her own creditworthiness.  About the same time, Suzanne Fields, in the March 1, 2004 The Washington Times, wrote an op-ed “’Queer Eye’ for Straight Courtship,” in which she expressed the idea that gays want marriage now because they see themselves as “supersized fries” (a.k.a. people without “responsibility” for families) in the culture wars.

 

The March 12 issue of the Blade (p. 23) also contains an article by Joel Crea on Biblical ideas about marriage, which in some cases seem to condone polygamy, but in other cases require that a wife be a virgin and a believer.

 

On the other hand, Jonathan Rauch (who wrote the essays advocating gay marriage—gay marriage should not only be allowed but also “expected”-- in Bruce Bawer’s 1996 anthology Beyond Queer) published a piece in which he argues for a step-by-step, incrementalist or “evolution” approach where states may experiment with different definitions of marriages and unions, “A More Perfect Union: How Founding Fathers would have Handled Gay Marriage,” The Atlantic, April 2004, p. 88.[46] Here is a good quote: “If, on the othe rhand, conservatives oppose same-sex marriage because they believe it is immoral and wrong by definition, fine—but let them have the honest to acknowledge that the are not fighting for the good of marriage so much as they are using marriage as a weapon in their fight against gays.” But that statement would seem to contradict incrementalism!

 

Here is President Bush’s Marriage Protection Week 2003 statement, for the record (public domain).

 

WHITE HOUSE
For Immediate Release
Office of the Press Secretary
October 3, 2003

Marriage Protection Week, 2003
By the President of the United States of America
A Proclamation

Marriage is a sacred institution, and its protection is essential to the
continued strength of our society. Marriage Protection Week provides an
opportunity to focus our efforts on preserving the sanctity of marriage
and on building strong and healthy marriages in America.

Marriage is a union between a man and a woman, and my Administration is
working to support the institution of marriage by helping couples build
successful marriages and be good parents.

To encourage marriage and promote the well-being of children, I have
proposed a healthy marriage initiative to help couples develop the skills
and knowledge to form and sustain healthy marriages. Research has shown
that, on average, children raised in households headed by married parents
fare better than children who grow up in other family structures. Through
education and counseling programs, faith-based, community, and government
organizations promote healthy marriages and a better quality of life for
children. By supporting responsible child-rearing and strong families, my
Administration is seeking to ensure that every child can grow up in a safe
and loving home.

We are also working to make sure that the Federal Government does not
penalize marriage. My tax relief package eliminated the marriage penalty.
And as part of the welfare reform package I have proposed, we will do away
with the rules that have made it more difficult for married couples to
move out of poverty.

We must support the institution of marriage and help parents build
stronger families. And we must continue our work to create a
compassionate, welcoming society, where all people are treated with
dignity and respect.

During Marriage Protection Week, I call on all Americans to join me in
expressing support for the institution of marriage with all its benefits
to our people, our culture, and our society.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of
America
, by virtue of the authority vested in me by the Constitution and
laws of the
United States, do hereby proclaim the week of October 12
through
October 18, 2003, as Marriage Protection Week. I call upon the
people of the United States to observe this week with appropriate
programs, activities, and ceremonies.

IN WITNESS WHEREOF, I have hereunto set my hand this third day of October,
in the year of our Lord two thousand three, and of the
Independence of the
United States of
America the two hundred and twenty-eighth.

GEORGE W. BUSH

 

Here is the excerpt from the State of the Union Address January 20, 2004

 

I believe we should respect individuals as we take a principled stand for one of the most fundamental, enduring institutions of our civilization. Congress has already taken a stand on this issue by passing the Defense of Marriage Act, signed in 1996 by President Clinton. That statute protects marriage under federal law as the union of a man and a woman, and declares that one state may not redefine marriage for other states.

Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.

The outcome of this debate is important, and so is the way we conduct it. The same moral tradition that defines marriage also teaches that each individual has dignity and value in God's sight.

Here is the letter that I sent to The Washington Times Nov 24, 2003

 

Same-sex Marriage: The Psychological Debate

Socially conservative columnists have been writing that the same-sex marriage issue should not be cast as a debate about equal individual rights. Instead, marriage is to be regarded as a bedrock, postulated institution for the common good, particularly intended for one generation to raise or take care of another without excessive government interference.

Our stressed economy is bound to generate calls for increased benefits for families with children, as well as economic inducements for persons to get and remain legally married. These privileges will have to be paid for partly by people who do not get legally married or have children. On the other hand, if adults who do not form and maintain their own families have "equal rights," these singletons will be seen as having unfair competitive advantage relative to "real" families. Gay marriage may be viewed as a way to rectify this imbalance, but conservatives will see homosexuality is too narcissistic for such an argument to be taken seriously.

The recent socially conservative arguments about same-sex marriage seem oddly collectivist. Maybe their main psychological point is the cultural tension between those people whose main source of personal identity comes from participation in blood family and lineage, and those "moderns" (whatever their lip service to family values) whose satisfaction comes from personally chosen aesthetic expression. It is time to structure the debate along these psychological lines.

 

Here is President Bush’s statement calling for a constitutional amendment on February 24, 2004 (p.d.)

 

      THE PRESIDENT:  Good morning.  Eight years ago, Congress passed, and
President Clinton signed, the Defense of Marriage Act, which defined
marriage for purposes of federal law as the legal union between one man
and one woman as husband and wife.
      The Act passed the House of Representatives by a vote of 342 to 67,
and the Senate by a vote of 85 to 14.  Those congressional votes and the
passage of similar defensive marriage laws in 38 states express an
overwhelming consensus in our country for protecting the institution of
marriage.
      In recent months, however, some activist judges and local officials
have made an aggressive attempt to redefine marriage.  In Massachusetts,
four judges on the highest court have indicated they will order the
issuance of marriage licenses to applicants of the same gender in May of
this year. In San Francisco, city officials have issued thousands of
marriage licenses to people of the same gender, contrary to the California
family code.  That code, which clearly defines marriage as the union of a
man and a woman, was approved overwhelmingly by the voters of California.
A county in New Mexico has also issued marriage licenses to applicants of
the same gender.  And unless action is taken, we can expect more arbitrary
court decisions, more litigation, more defiance of the law by local
officials, all of which adds to uncertainty.
      After more than two centuries of American jurisprudence, and
millennia of human experience, a few judges and local authorities are
presuming to change the most fundamental institution of civilization.
Their actions have created confusion on an issue that requires clarity.
      On a matter of such importance, the voice of the people must be
heard. Activist courts have left the people with one recourse.  If we are
to prevent the meaning of marriage from being changed forever, our nation
must enact a constitutional amendment to protect marriage in America.
Decisive and democratic action is needed, because attempts to redefine
marriage in a single state or city could have serious consequences
throughout the country.
      The Constitution says that full faith and credit shall be given in
each state to the public acts and records and judicial proceedings of
every other state.  Those who want to change the meaning of marriage will
claim that this provision requires all states and cities to recognize
same-sex marriages performed anywhere in America.  Congress attempted to
address this problem in the Defense of Marriage Act, by declaring that no
state must accept another state's definition of marriage.  My
administration will vigorously defend this act of Congress.
      Yet there is no assurance that the Defense of Marriage Act will not,
itself, be struck down by activist courts.  In that event, every state
would be forced to recognize any relationship that judges in Boston or
officials in San Francisco choose to call a marriage.  Furthermore, even
if the Defense of Marriage Act is upheld, the law does not protect
marriage within any state or city.
      For all these reasons, the Defense of Marriage requires a
constitutional amendment.  An amendment to the Constitution is never to be
undertaken lightly.  The amendment process has addressed many serious
matters of national concern.  And the preservation of marriage rises to
this level of national importance.  The union of a man and woman is the
most enduring human institution, honoring -- honored and encouraged in all
cultures and by every religious faith.  Ages of experience have taught
humanity that the commitment of a husband and wife to love and to serve
one another promotes the welfare of children and the stability of society.
      Marriage cannot be severed from its cultural, religious and natural
roots without weakening the good influence of society.  Government, by
recognizing and protecting marriage, serves the interests of all.  Today I
call upon the Congress to promptly pass, and to send to the states for
ratification, an amendment to our Constitution defining and protecting
marriage as a union of man and woman as husband and wife.  The amendment
should fully protect marriage, while leaving the state legislatures free
to make their own choices in defining legal arrangements other than
marriage.
      America is a free society, which limits the role of government in the
lives of our citizens.  This commitment of freedom, however, does not
require the redefinition of one of our most basic social institutions.
Our government should respect every person, and protect the institution of
marriage.  There is no contradiction between these responsibilities.  We
should also conduct this difficult debate in a manner worthy of our
country, without bitterness or anger.
      In all that lies ahead, let us match strong convictions with kindness
and goodwill and decency.
      Thank you very much.
--
 For a state-by-state list of legislative and judicial actions affecting gay marriage, gay adoptions, and gay custody seehttp://www.doaskdotell.com/content/gayadopt.htm 

 

Congressman Barney Frank issued a press release in Dec. 2005 regarding actions taken in the United Arab Emirates against an apparent “gay wedding” – actually threatening the men with hormone treatments!

 

LEADING LEGISLATORS WARN UNITED ARAB EMIRATES

OF CONSEQUENCES OF GAY BASHING

 

            Today a bipartisan group of senior House members who are active on foreign policy and international economic matters released a letter sent on Monday to the United Arab Emirates ambassador in Washington warning of the negative impact a government-led crackdown against gay men in the UEA could have on that country's efforts to attract international business and tourism. 

 

            Last month, 26 men were arrested during a police raid on what authorities described as a gay wedding at a hotel in Abu Dhabi.  Following an initial statement from a UAE official that the men could be subjected to forced hormone treatments, international criticism, including a public condemnation from the US State Department, was swift.

 

Within days, the UAE Ministry of the Interior denied these reports, claiming instead that any hormone treatment would be optional. 

 

In their letter, the federal lawmakers associate themselves with the State Department's condemnation of these arrests and, responding to government reports that undergoing any hormone treatment would be "optional," the lawmakers state that there "has been some suggestion that agreeing to hormone treatment could be used as a bargaining tool to reduce the severity of an individual's sentence, and if there is any truth to this, we believe this is in fact coercive and contrary to standards of international law."

 

"Sadly, anti-gay sentiments are present in many Arab states," added Rep. Barney Frank, "but even by that low standard, this is particularly outrageous.  I was pleased that the U.S. State Department spoke out against these actions, and I believe it's important for members of Congress to express our agreement with that stance."

 

 

            Referring to public anti-gay statements by the Ministry of the Interior following these recent arrests, and with another incident of mass arrests of gay men at a UAE beach resort last year in mind, the congressional leaders in their letter also expressed concern that these actions "appear to be part of a broader, systematic crackdown on gay men in your country," which "seem clearly intended to let gay people know not only that they are not welcome in your country, but also that animus against them will be a public policy priority.

           

            "We must tell you that this kind of state-led effort to seek out and persecute adult gay men who are doing no harm to anyone is not the kind of behavior we expect from an ally, and we urge you to stop it."

 

            In recent years, the UAE has undertaken several projects to diversify its economy and to reduce its dependence on oil and natural gas revenues.  The WTO named Dubai the world's fastest-growing tourism destination, and as part of its strategy to further expand its hospitality and tourism industry, the UAE is building new hotels, restaurants and shopping centers, and expanding airports and duty-free zones.

 

            The country is also working to position itself as the financial and capital market center of the Middle East through the creation of a financial free zone with international-style regulations to attract leading companies within targeted sectors. Dubai International Financial Centre is its latest and most ambitious project, which the emirate hopes will support the development of a regional capital market. 

 

The United States signed a Trade and Investment Framework Agreement with the UAE to examine ways to expand bilateral trade and investment opportunities, which the UAE hopes will lead to a bilateral Free Trade Agreement with the U.S.

 

            The House members conclude their letter by warning the UAE's leaders that they "hope you recognize that your government's persecution of gay people will be repugnant to many of the world travelers you hope to attract as tourists, as well as to other governments and even corporations who believe that this kind of terrible intolerance against individuals based on their sexual orientation is unacceptable."

 

The letter was organized by Rep. Barney Frank (D-MA), the ranking Democrat on the House Committee on Financial Services, and was joined by seven other senior lawmakers, including Rep. Sue Kelly (R-NY), vice chair of the Committee on Financial Services; Rep. Ileana Ros-Ethane (R-FL), chair of the International Relations subcommittee on Middle East and Central Asia; Rep. Tom Lantos (D-CA), ranking Democrat on the Committee on International Relations; Rep. Carolyn Maloney (D-NY) ranking Democrat on the Financial Services subcommittee on Domestic and International Monetary Policy, Trade, and Technology; Rep. James Leach (R-NY), a senior member on the both the House Financial Services and International Relations Committees; Rep. Gary Ackerman (D-NY), ranking Democrat on the International Relations subcommittee on Middle East and Central Asia; and Rep. Chris Shays (R-CT), member of the Committee on Financial Services and chairman of the Government Reform subcommittee on National Security, Emerging Threats and International Relations.

 

 



[1] Justice Kennedy wrote at one point: In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause.  The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.  Id., at 851.  In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

' These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.  At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.'  Ibid.

 Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.  The decision in Bowers would deny them this right.”

 Justice Scalia, in his dissent, wrote this often mentioned passage: “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.  The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly.  The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal).  See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25.  At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.'  Ante, at 17.  Do not believe it.”

 

[2] In a particularly bizarre move, the Social Security Administration temporarily suspended recognizing even straight marriages performed in New Paltz, New York because the town had performed gay marriages! Story at http://www.365gay.com/newscon04/12/121604newPaltz.htm

[3] On November 25, 2003 three Senators introduced a constitutional amendment defining marriage as between one man and one unrelated woman only. According to the Associated Press, Sen. Wayne Allard, R-Colo., is sponsoring the Federal Marriage Amendment (FMA) along with co-sponsors Sam Brownback, R-Kansas, and Jeff Sessions, R-Ala. The source is Christopher Curtis, Gay.com and Planetout.com. The amendment is similar to one introduced in the House (May 21, Maryln Musgrave, CO).

[4] Congressman Jim Moran (D-Va.) told a gathering in Arlington, Va. on Dec. 2, 2003 that such an amendment will eventually pass if there is insufficient organized opposition. See http://www.doaskdotell.com/content/wchap4.htm. Also http://www.dontamend.com/

[5] The couple Hillary and Julie Goodridge are reported as to have separated. “Gay ‘marriage’ first couple splits up in Massachusetts, Cheryl Wetzstein, The Washington Times, July 22, 2006 http://www.washingtontimes.com/national/20060721-111920-1539r.htm  The Washington Times always prints “marriage” in quotes when referencing gay “marriage.”

[6] Emily Bazelon, “A Bold Stroke: When Margaret Marshall was a corporate lawyer, her actions were colored by caution. But in her opinion ordering Massachusetts to allow gay marriages, the chief justice of the state’s supreme court has shunned politics and stood on principle. Will she be remembered as the judge who jeopardized her court for a cause?” Legal Affairs, May/June 2004.  The article mentions that the Supreme Court’s 1967 Loving v. Virginia decision on miscegenation was prepared by an earlier ruling Perez v. Sharp  by the California supreme court in 1948.

[7] However, E.J. Graff, in “What Comes After The Massachusetts Court's Decision On Gay Marriage?” in The American Prospect. Nov. 20, 2003, writes that, absent a state constitutional amendment (a difficult process, the Commonwealth is required to issue marriage licenses to same-sex couples in May 2004, and that calling them “civil unions” to skirt the issue of federal protections is not available as it was in Vermont. If he is right, then there will certainly be legal battles in other states over recognition (and over custody), and even in federal areas like immigration. But this has not been the tone of most of the commentaries.

[8] Same-sex couples from outside Massachusetts would still not be able to marry within Mass. if their unions were not valid in their residency states.  Actually, Article I Section 4 seems to give Congress an explicit power to interpret the Full Faith and Credit Clause:

Section 1. Full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other state.
And the Congress may by general laws prescribe the manner in which
such acts, records, and proceedings shall be proved, and the effect
thereof.

[9] David Van Drehle, “Same-Sex Unions Move Center Stage: After a Decade on the Fringe, Gay Marriage Enters American Consciousness,” The Washington Post, Nov. 23, 2003, provides a history of how this somewhat abruptly became an issue. His story begins with the job loss of Jack Baker and Mike McConnell in Minneapolis for trying to get a marriage license in 1970. For years gays sought mainly privacy and the right to pursue “private lives” without discrimination. The 1980s AIDS crisis made mutual caregiving and benefits real for same sex male couples, and gradually the economic shakeout of the early 1990s made economic equality (particularly when one partner supports the other) more of an issue, as did, indirectly perhaps, President Clinton’s tackling of the military ban. Legal cases brewed mainly in Hawaii, Alaska, and Vermont at first, and then spread. Writers like Andrew Sullivan began to speak of a fundamental right to marry a consenting unrelated adult of one’s choosing. The prerogative of government to penalize homosexual behavior has eroded despite Bowers v. Hardwick (1986) with Romer v. Evans (1996) and then Lawrence v. Texas (2003), as well as other rulings that buttressed free speech (COPA, to some extent) and a more libertarian idea of tying freedom to responsibility on an individual basis. 

[10] John Cloud, “How Oregon Eloped: Gay couples in Massachusetts can legally marry next week. But they won’t be the first. Here’s how one county secretly changed the definition of marriage,” Time, May 17, 2004, p. 56. An Oregon appeals court stayed this order in early June 2004, Ashbel Green, The Oregonian, June 3, 2004.

In Washington state, Seattle (King County) Judge William Downing ruled that an adult has a fundamental right to marry a consenting adult partner of his choice, and that the state had no legitimate rational purpose in interfering. The ruling was stayed for the state supreme court. This was in regards to a female couple Vega Subramaniam and Mala Nagarajan (July 2004).

In July 2004 voters in Missouri approved a state constitutional amendment defining marriage as one man and one woman.

[11] The Statesman Journal in Salem, Ore. March 23, 2004. http://news.statesmanjournal.com/article.cfm?i=77530

 

[12] According to William E Wood, MPH in Hawaii, “The ruling has several parts.  First laws preventing gay marriages is clearly unconstitutional and in violation of their charter of human rights.  Secondly no religious organization will be forced to marry someone they do not wish to.  This was the same red herring Falwell, Bush, Buchannan, et.al used in recent campaigns to promote their discriminatory amendments.

 

The third issue which is not reflected in the article below by AP covers another unique issue of Canada's laws.  They have a provision that a province can "opt out" of following a violation of civil rights if their government elects to do so for a period of five years after such a ruling.  However, this court also ruled that Manitoba cannot "opt out" of this ruling because they did not qualify in their process and reasoning.”  

 

[13] Elton John is said to be planning to marry David Furnish on Dec. 21, 2005, according to a Reuters News Story. http://today.reuters.com/news/newsArticleSearch.aspx?storyID=162834+24-Nov-2005+RTRS&srch=%22Elton+John%22

[14] AP story “N.Y. to appeal ruling against gay marriage ban; City faces ‘chaos’ unless ruling is challenged, mayor  says, Feb. 5, 2005, at  http://www.msnbc.msn.com/id/6914743/

[15] Matthew Mosk and John Wagner, “Judge Strikes Down Md. Ban on Gay Marriage: Ruling Is Stayed as Constitutional Fight Ignites,” The Washington Post, Jan. 21, 2006.

[16] Blogspot link is this: http://billonglbt.blogspot.com/2006/10/new-jersey-state-supreme-court-rules.html

New Jersey does not have a law refusing to recognize out of state same-sex relationships as Massachusetts does.

[17] Rosenfels, Paul. Homosexuality: The Psychology of the Creative Process, and other books and monographs. New York: The Ninth Street Center, 1972 and 1986. Rosenfels often talked about a lifelong “adolescent spirit” which certainly can create political and social tension with the institution of marriage. But Rosenfels also believed that same-sex couples should be committed and live in a community-centered manner. Book review at http://www.doaskdotell.com/books/brosen.htm  Maggie Gallagher, in her column “Tradition’s vows” (May 15 2004) writes “homosexual marriage is really the triumph pf the most radical ideas of the sexual revolution: that the sex of the partners doesn’t matter, children are secondary, expressing your authentic sexual self is more important that, well, practically anything else.” Rather angry!

 

[18] The consequences for one public school teacher Ron Fanelle after marrying his partner in the San Francisco ceremonies is at note 157e on http://www.doaskdotell.com/content/wchap5.htm

 

[19] 8/12/2004  The California Supreme Court nullifies gay marriages conducted by San Francisco mayor Gavin Newsome because they are in contradiction to California law and there has been no fining that California marriage law is unconstitutional, although the Court left open the possibility that such a finding could be made later.

 

[20] Michelle Boorstein, “Paradise Lost: After years of hiding their love, Barbara Kenny and Tibby Middleton found a place where they felt comfortable – until Virginia’s lawmakers chased them across the Potomac.”  The Washington Post Magazine, Dec. 18, 2005. They are uncertain about whether they could share medical visitation rights.

[22] Artificial legal protections for same-sex couples involve such concepts as powers of attorney, joint tenancy agreements or tenancy in common, sometimes even adult adoption arrangements. Books are written about these, and are outside the scope of this article. Of course, legally married couples have to deal with community property laws in some states and sometimes protect themselves with pre-nuptial agreements.

[23] It’s hard to get a lot of statistics on gay adoptions, but PlanetOut has some articles. For example Patrock Lete;lier on gay.com and planetout.com writes in “Most adoption agencies accept gays”

http://www.planetout.com/pno/news/article.html?2003/10/29/1

that about 60 percent of the nation’s agencies (survey of 277 private and 40 public), often those run by more “liberal” groups, accept gays as prospective parents, although gay adoptions are illegal in Florida, and also in Utah where only legally married couples may adopt. In some states, like Minnesota, single parents are encouraged to adopt. About 25 agencies reported that birth parents requested that their children not be placed with gay parents (implies “must ask, must tell”). One remembers custody battles in the days of sodomy laws, like Sharon Bottoms in Virginia. According to a later PlanetOut article by Letellier, Nov. 13, 2003, U.S. Department of Health and Human Services (HHS) Secretary Tommy Thompson honored thirty individuals and organizations that assist in placing foster children in permanent homes, including several that help GLBT people who want to adopt. According to Jonathan Rauch, about 28% of gay couples (presumably those with integrated finances and presumably private holy unions or commitment ceremonies offered by some denominations like UFMCC) have children in their homes (the percentage may be higher for lesbians than gay male couples).  Maggie Gallagher, on July 11, 2004,  provided a syndicated op-ed “Like a lab experiment” (The Washington Times) in which she analyses one case of a girl raised by a lesbian couple who produced a child by artificial insemination. (After sixteen years one partner broke the relationship and married a man!)

Dirk Johnson, Adam Rove, “At Home in Two Worlds: These kids live with gay parents in a straight society-now they’re beginning to find their voices—and each other,” Newsweek, Oct. 18, 2004. According to the 2000 census, 150,000 same-sex couples in the U.S. have at least one dependent child under 18, and there is at least one such family in 96% of US counties. 11 states will have anti-gay-marriage referendums in November 2004. The organization for children of gay parents is COLAGE, Children of Lesbians and Gays Everywhere.

[24] Thomas Atwood, president of the National Council for Adoption, provided a summary of adoption in general in “Promoting adoption: A federal policy that works for all,” The Washington Times, p A23. Atwood discusses the Adoption Promotion Act (to reauthorize the 1997 Adoption Incentive Program as part of the ASFA, Adoption and Safe Families Act). Atwood writes that there 55 million (heterosexually married) couples in the U.S., 471 legally married couples for each foster child waiting to be adopted (116653 out of 532698 foster children).  Many states encourage singles to adopt. It is not clear how many of the 471 couples per child would want to adopt, even with the new incentives, but the article seems (without saying so) to discourage the notion that gay couples are “needed” as adoptive parents. You have to put all these numbers on the table, however.

However, the ACLU created a Fact Sheet in 1999, “Overview of Lesbian and Gay Parenting, Adoption and Foster Care” in which the ACLU maintained at only about 20000 out of 100000 foster children needing adoption are normally placed, and this supports the argument that most established traditional families are not prepared to take on more children, and this leads to openness to adoption by singles or by same-sex couples.

So, what if public funding for heterosexually married adoption could create the result that most of the foster kids got adopted? Then do you have an ultimate utilitarian (or “consequentialist”) argument against gay marriage? Well, you have then tremendous intervention by the state (and redistribution of wealth) and at some point this undercuts freedom in anyone’s book. After you have to respect the studies that show that gay couple parents do about as well in actual practice in raising kids as traditional couples.

[25] I know of one such family in Dallas. On February 5, 2004 ABC News “Primetime Live” and Diane Sawyer presented the story of Thomas Dysartz and Michael Meehan, who first attempted to build their family by artificial insemination of surrogate mom Brooke Verity, and wound up with quadruplets! They had moved to Lexington, KY. One partner’s family refuses to accept the children as “family” because they are not biologically theirs (but in a sense they are). The Kentucky courts have not allowed Verity to surrender her potential parental rights, as required by the surrogate mother agreement. The story is at

http://abcnews.go.com/sections/Primetime/US/quadruplets_040205-1.html. Of course, I can see how from the child’s point of view this might seem to be a “polygamous” family.

 

[26] In Kingston NY, a Universalist minister was charged with a misdemeanor for commemorating a same-sex marriage without license for the state; yet the Metropolitan Community Church has had holy unions for years without expecting recognition from the state. Nevertheless, the holy union is not itself a contract. Gavin Newsome, the mayor of San Francisco, attracted considerable attention by mandating the performance of many gay marriages on City Hall steps, including Rose O’Donnell’s.

[27] Although a corollary of this would be that gay marriage will facilitate reimposition of filial responsibility in the law; look at http://www.doaskdotell.com/content/health.htm for more

[28] ABC News (on March 27, 2004) presented a story on France’s “Contract of Social Union” (created Oct. 1998) which is available to same-sex and opposite-sex couples. One result has been that heterosexuals have often opted the lower level of commitment of civil union (and I know heterosexual couples, even with children, who say that in this country). So, like in the military, we have a situation where extending equal rights to gays seems (in the speak of social conservatives) to affect the behavior of straights. Europe, also, is faced with low birth rates in the original populations. Furthermore, in Europe a large percentage of children are born to cohabiting couples not legally married.  Is this the “fault” of gays? No, but one can see how it happens in a culture that no longer values family and parenting for its own sake (in comparison to individual expressions of other sorts) like it once did. 

[29] I had proposed this in Chapter 5 of my first “Do Ask Do Tell” book; see http://www.doaskdotell.com/content/xchap5.htm

 

[30] Philip Longman, “Brainstorm: Which Nations will Go Forth and Multiply?” Fortune, April 19. 2004, p. 60. Also see Longman, Phillip. The Empty Cradle: How Falling Birthrates Threaten World Prosperity and What to Do About It. New York: Basic Books, 2004. I   http://www.newamericafoundation.org/index.cfm?pg=event&EveID=362

I review the book at http://www.doaskdotell.com/books/blongman.htm

Maggie Gallagher, in a column “Tradition’s vows,” The Washington Times, May 15, 2004, claims that “Europe, which gave us the idea of same-sex marriage, is a dying society, with birthrates 50 percent below replacement,” although only the Netherlands and Belgium recognize gay marriage (some countries, especially France, have relatively effective civil union laws which are said to have eroded the incentive for heterosexuals to marry; Charles Murray, as mentioned in a Public Interest article mentioned in another note here, reminds us that the state is not particularly effective in modulating birth rates—although one can look at China, too).

 

[31] To me, it sounds very improbable that the current Supreme Court would strike down DOMA, since states, in a federalist system, have considerable leeway to enforce their own ideas about public policy, although with marriage (even with the wide gaps inherent in the community property concept) they have previously nearly always recognized each other’s marriages. However, many reasonable columnists write that DOMA would fall, such as Charles Murray, in a 2004 Public Interest article (another note).

[32] Allan Cooperman, “Opponents of Gay Marriage Divided: At Issue is Scope of Amendment”, The Washington Post, Nov. 29, 2003. The simplest proposal, by Matt Daniels, president for the Alliance for Marriage, is “Marriage in the United States shall consist of only the union of a man and a woman. Neither the constitution nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” Daniels is quoted as saying, “If some states want to allow civil unions, that’s life in a democracy.” Daniels says his group is working on “minor changes in the text to make it explicit and undeniably clear that we are not seeking to invalidate legislatively created civil union or partnership arrangements.” The language as stated appears to me however to prohibit a state from conferring legal recognition and benefits to a non-marital civil union. But another group, called The Arlington Group, wants to add this third sentence: “Neither the federal government nor any state shall predicate benefits, privileges, rights or immunities on the existence, recognition, or presumption of non-marital sexual relationships.”  This language is intended to forbid states from granting civil unions like those in Vermont, but Vermont does not specifically require a same-sex couple to claim a sexual relationship. The amendment would not necessarily prevent legal arrangements where one adult supports another (such as two siblings), although conservatives could also be tempted to add language that such economic arrangements have been predicated on blood or previous legal marriage or adoption only. None of the amendments, apparently, refer to other areas of “gay rights” such as employment discrimination, or seek directly to undermine these, and none of them refer to adoption or custody issues. However, were such an amendment to pass, it would seem that these would be next on the hit list (or an attempt to overturn Lawrence v Texas). Remember, also, the military policy mentions “marriage” as one of the three pillars of “homosexual conduct” even though at the time that DADT was passed (1993) gay marriage was not yet on the front burner. Also, I had proposed an Amendment that would let states decide the marriage issue for themselves without imposing on Full Faith and Credit; look at “Amendment 29” at http://www.doaskdotell.com/content/xchap6.htm, and would let Congress define marriage for federal purposes, but I would not have defined “marriage” itself in the text of the amendment.

National Review weighs in with an editorial, “The Right Amendment,” on January 26, 2004. It strikes a precise course between the “minimalists” and “maximalists”, with three proposals: (1) no court can define marriage as other than between a man and woman; (2) no state (as well as Congress) may confer quasi-marriage benefits on a non-marital couple predicated on a sexual relationship within the couple (but it can allow benefits for any two financially interdependent adults);  (3) no court may grant a benefit to unmarried couples legislatively reserved to married couples. Constitutionally, such an amendment seems to sideswipe the second class citizenship problem and leave that to the states. After the Massachusetts state Supreme Court “clarified” that it really meant “marriage,” the Massachusetts legislature began to consider state constitutional amendments immediately in Feb 2004 (they could not take effect until 2006), and President Bush signaled that he would back at least a “minimalist” amendment (Mike Allen and Alan Cooperman, The Washington Post, Feb. 11, 2004). At a gathering at George Washington University on Feb 11, 2004 on gay issues and Republicans, I stated from the floor that any constitutionally or statutorily dictated inequality would tend to suggest that legally married people, when economically stressed, could try to compel the unmarried to make “sacrifices” for their benefits, such as in doing more overtime work for the same pay. The comment was also made that the constitution is not the right place for social policy, but instead only should deal with “governance.” Except for some provisions of the Bill of Rights and the 14th, 18th and 21st Amendments, that is generally true.  On February 24, 2004 President Bush announced support for the idea of a simple constitutional amendment defining marriage as a man-woman arrangement only, but apparently allowing the idea that states can experiment with civil unions not binding to other states. Some legal scholars have argued that defining “marriage” as for heterosexuals only in the text of the Constitution could subvert equal protection for gays in other areas of individual rights, and could justify laws prohibiting not only civil unions but also access to joint mortgages (Va. has tried to deny mortgage assistance to unmarried couples), and even to laws against cohabitation. I hope that the due process logic in Lawrence v Texas would keep the sodomy decision intact, however. It is notable tht Theodore Roosevelt wanted to define marriage (one man and one woman) in the Constitution to fight polygamy.  On March 23, 2004, some members of Congress (Sen. Wayne Alard) proposed adding this language to clarify the right of states to enact their own civil unions: “To protect marriage in this country as the union between a man and a woman, and to reinforce the authority of state legislatures to determine benefits issues related to civil unions or domestic partnerships.”

 

[33] Ruling by federal bankruptcy Judge Paul Snyder., Aug. 2004. The government had argued that the differing treatment was justified as "rationally related to the legitimate government interest in encouraging the development of relationships optimal for procreating and childrearing."  "This court's personal view," he wrote, is "that children raised by same- sex couples enjoy benefits possibly different, but equal, to those raised by opposite-sex couples,” however personal views were not sufficient to overcome what might be a rational state interest. This decision did not relate to the Full Faith and Credit issue, only to the definition in federal law.

[34] Most social historians view the nuclear family as a European (and perhaps Asian( invention for socialization, effective in feudal times but especially important again during and after the industrial revolution, with the emphasis of division of labor by gender within a small social economic unit. Native American and African (and often Muslim) cultures have tended to emphasize the extended family (which can sometimes be matriarchal) as a vehicle for political and religious dispersal as well as family needs. But one needs an axiom to give the nuclear family the moral thumbs up; one can appeal to tradition in Hayek fashion, perhaps, and then apply inductive reasoning.

[35] William Raspberry, “Tale of a ‘Stigmaphobe’”, The Washington Post, Dec. 1, 2003, p. A23; the book is Michael Warner: The Trouble with Normal: Sex, Politics and the Ethics of Queer Life, Harvard University Press, 2000. Warner is referring to Andrew Sullivan, author of Virtually Normal. Sullivan has often written of a fundamental right to marry.

[36] Black conservative Senate candidate from Illinois, Alan Keyes, said on a radio talk show during the week of the GOP convention: “"In a homosexual relationship, there is nothing implied except the self-fulfillment, contentment and satisfaction of the parties involved in the relationship. That means it is a self-centered, self-fulfilling, selfish relationship that seeks to use the organs intended for procreation for purposes of pleasure. The word pleasure in Greek is hedone and we get the word hedonism from that word."

“The heterosexual relationship is haunted by the possibility of the child, which means you have to commit yourself somewhere to your head to the possibility of a lifelong commitment that involves not only selfish pleasure but sometimes sacrifice.

"We shall deal with the challenge that is being mounted today to the family structure throughout our country: Gay marriage activists who are demanding that we should take marriage off the foundation of procreation, child rearing, responsibility to the future, that is the true heart of marriage and place it on a basis of selfishness, pleasure-seeking and self-fulfillment."

“If we embrace homosexuality as a proper basis for marriage, we are saying that it’s possible to have a marriage state that in principle excludes procreation and is based simply on the premise of selfish hedonism.” Mr. Keyes was asked if this comment means that Mary Cheney, lesbian daughter of Vice President Dick Cheney, is a “selfish hedonist,” and Mr. Keyes replied, “That goes by definition. Of course she is.”

 

At least Keyes is honest enough to admit what he really thinks, that this whole moral question deals with the willingness of people to give up some of their own aims and to sacrifice for “the common good.”  Libertarians will claim that demanding such a sacrifice is immoral!  But of course, there is more to this—active heterosexuality hides the nature of the sacrifice. The question then becomes, can society embrace as equals adults who exclude procreation and biological or similar lineage from their own personal priorities? Mr. Keyes seems to think that doing so will allow a free society to collapse. On this one biological issue, you have to conform.

[37] William Raspberry, “Reasons for Marriage,” The Washington Post, Feb. 23, 2004. Blankenhorn suggests that this is a debate about “marriage” and not equal dignity. He is concerned that the concern about “moms and dads” will be replaced with talk of “parents” and even caregivers. I am reminded of the episodes in TheWB Smavllville where teenage Clark Kent addresses “Mom” and “Dad” but then struggles over who his real parents are and what his real blood identity must be. Imagine what would happen if the Constitutional amendment went even beyond defining “marriage” and tried to define such a birthright as a fundamental right. That is a dangerous thought experiment. 

[38] A related idea is the notion that marriage could fall apart as an institution if it can be “counterfeited,” like fiat money. But this argument is abstract and glosses over the idea of consequences for people. See Philip Kennicott, “State of the Union: In Boston, Opponents of Same-sex marriage Are Never Joined,” The Washington Post, March 13, 2004, p. C1.

[39] My notes on David Callahan’s The Cheating Culture are at http://www.doaskdotell.com/movies/mperfect.htm

 

[40] My own view of the idea of a “fundamental right to marry” would probably start with the original traditional notion of marriage as an opposite gender union and extended to same-sex unions once states (in a federalist arrangement like ours) can accept the idea that fully equal same-sex unions do not abrogate “public policy.” But this is a long and experimental process, more geared towards legislatures and private civil spheres than courts. In the meanwhile, governments may not single out gays or any group for public reprobation or animus, but that gets tricky as any loss of equal rights would logically mean that gays are making “second class citizenship” rights for heterosexuals. 

The Dec. 22 The New Republic has three more contributions that hit the legal area: Jeffrey Rosen. “Immodest Proposal: Massachusetts gets it wrong on gay marriage”; Cass R. Sunstein, “Federal Appeal, Massachusetts gets it right”; Richard A Posner (7th Circuit Justice) “Wedding Bell Blues,” a focused review of Evan Gertsmann’s Same-Sex Marriage and the Constitution.

Katharine Q. Seelye and Janet Elder, “Strong Support Is Found for Ban of Gay Marriage,” The New York Times, Dec. 22, 2003, discusses President Bush’s ambiguous statements to Diane Sawyer on ABC “Primetime Live” Dec. 17. This report discussed a NY Times and CBS News poll. People whose values are based on religion are more opposed to gay marriage and for equal rights for gays than people who are mainly concerned with legal or civil equality, and older people were more disapproving than younger people. There seems to be a concern with some people that children “get ideas” about non-conformity. There is also apprehension about what President Bush might say in a State of the Union address. Generally, the public does not seem to be as conscious of the relevance of underlying economic stresses on the family as it should be.

 

 

[41] Susan Shell, “The Liberal Case Against Gay Marriage,” The Public Interest, Summer 2004, makes what reads as a convincing argument that civil unions can give gay partnerships almost all the partnerships that they “need” without infringing upon the “generational” context of the didactic meaning of the word “marriage,” and without infringing upon equal protection.  Shell regards marriage as postulatory in nature, like death: so is comparison of a gay marriage to an infertile heterosexual one more apt than the idea of going to one’s own funeral “in name only”?  For example, everyone presumes conclusively that the married partner is also the legal parent of a child acquired during the marriage. This issue of Public Interest also presents “Conservative Policy Dilemmas” with short pieces by Jonathan Rauch (“What I Learned at the AEI”), Michael Novak (“What Marriage Is”) and “Marriage-Lite” by Charles Murray. I talk about Murray’s piece with respect to constitutional amendments at this link. Murray also emphasizes the notion that heterosexuals might also follow the civil union idea (“marriage-lite”) to reduce their level of “commitment” and therefore weaken their commitment to their own children, but Murray also admits that heterosexuals are responsible for sundering the institution and “sanctity” of marriage. He calls gay marriage a “simulacrum of the real thing.” The trouble with all of this abstraction in discussions of marriage is that it glosses over the putative demands and responsibilities of the individual, to his family of origin as well as to any family he or she may form.  Gay marriage should also be discussed as an entry point for other big social and economic issues that pose long term challenges to freedom. For example, in this issue Eric Cohen, in “The politics and realities of Medicare” frankly forces open the issue of the sacrifices that may be necessary to prolong every elderly life as long as possible. This is not a problem that earlier generations, how well committed to family values otherwise, had to face.

[42] There is also a proposed “Marriage Protection Act” in the House in July 2004, based on a hidden power of Congress in Article III Section 2 to de-authorize lower federal courts from hearing certain issues pertaining to the powers of the states. Go to the end of http://www.doaskdotell.com/gaymarra.htm for detailed text. Attempts to force cloture and a vote on the constitutional amendments in the Senate discussed above failed on July 14,  2004, after Democrats basically stayed away to derail the arguments; Republicans had wanted to embarrass Kerry and Edwards into voting on the issue.

[43] Jennifer Roback Morse: “Love and Marriage and the Meaning of Sex,” National Review, Dec. 17, 2003, at http://www.nationalreview.com/comment/morse200312170905.asp, and “Fruitful Love: Marriage and Infertility: at http://www.nationalreview.com/comment/morse200312180914.asp

I review her book “Love and Marriage: Why the Laissez Faire Family Doesn’t Work” at http://www.doaskdotell.com/books/bfam3.htm

 

[44] This point is covered to great effect in Katha Pollitt, “Adam and Steve—Together at Last,” The Nation, Dec. 15, 2003. Pollitt traces most of the objections to gay marriage from babies back to religion, although the psychological point about “Average Joe” self-concept needs more development here. Lisa Duggan provides a detailed political discussion “Holy Matrimony” in the Feb. 26, 2004 The Nation and correlates the “moral” conservative arguments against gay marriage to economic ones. The family with complementary parents (following gender roles) is a more efficient way to deliver care to children and the elderly and disabled than is government, but few families have one earner who can pull home a “family wage” any more. Conservatives, she observes correctly, are trying to use “morality” to get government out of social programs.

[45] Annie Gowen, “Arlington Pastor Protest: Wedded Bliss for All of None,” The Washington Post, Nov. 15, 2005, is about Pastor David Ensign or Clarendon Presbyterian Church in Arlington. Va.  Ensign has voluntarily relinquished his state authority to perform weddings and performs only “Celebrations of Commitment”. A heterosexual couple will have to be formally wed by the Justice of the Peace at the Arlington Courthouse (a few blocks away).  Ensign’s reaction is a “rationalist” one to restore formal equality regardless of state law or constitutional amendments banning gay marriage, passing in many states. I have often attended Clarendon Presbyterian since moving back to Arlington in 2003. The service often allows churchgoers to discuss the sermon from the pews. I have often made the point that the objection to gay marriage seems to be that it denies the importance of blood lineage and kinship which is still very important to many people. One male couple presented a video and photo record of a missionary visit to an AIDS ravaged area of Kenya, one which I hope can become available as a DVD or film some day.  Ensign’s statement is at http://www.clarendonpresbyterian.org/facilities.html 

[46] Also, see Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, God for Straights, and Good for America, Times Books, April 7, 2004.  See also note above about Rauch piece in The Public Interest.