CONSOLIDATED FOOTNOTE
This file includes new notes as well as those originally published in 1997. In the iUniverse version, the numbers start at 352.
Chapter 5 Running Footnotes (John W.
Boushka; tally; match to original text on xchap5 file )
1
2 "What is GLIL," The Quill, Oct., 1994. "Classical liberalism" refers to the notion that individual rights and expression are the most important value in a political system.
3 Advocates for
Self-Government,
4 See David Boaz, Libertarianism: A Primer (New York: Free Press, 1997) pp. 20-21. These pages present, for comparison, the standard political science charts (how Communism-Left completes a full circle with Fascism-Right, and how (leftist) Liberal, Libertarian, Populism, and "Conservatism" (old-fashioned usage) fit into a simple chart. Boaz uses the term "statism" as a practical synonym for "authoritarianism."
5 Harry Browne, Why Government Doesn't Work (New York: St. Martin's Press, 1995).
6 Perry Deane Young, God's Bullies (New York: Hold, Rinehart
and Winston, 1982), contains a chapter on secretly closeted gays within the
religious right and the Reagan administration, pp 132-154. True, conservative
gays and Republican gays tend to take the attitude that you have to prove
you're good enough as a person to belong regardless of the prejudice against
"queers" as a "group." The closet and double-like becomes a
source of feeling "special" or connected. Imagine this "Uncle
Tom" attitude, carried to extreme, if applied to blacks during
segregation. Also, see J. Jennings Moss, "The Outsiders," The Advocate,
7 David Boaz and Edward Crane, "The Collapse of Statist Values," Market Liberalism (Washington, Cato Institute, 1993). However, in his Primer, Boaz uses the term "libertarianism" more broadly, reflecting an attitude of "classical liberalism" with great (but not radical or anarchistic) restraints on government, especially federal government.
8 Libertarian Party candidate (1996) for Pennsylvania Attorney General, T. Collins, wrote (in 1994) a white paper proposing the notion of "state citizenship" to avoid federal income taxes.
9 In practice, libertarians tend to favor term limits and are somewhat divided on campaign finance reforms; they would dislike adversarial politics but not want to interfere with candidates who can spend their own money.
10 The Christian concept corresponding to "cooperation" is "hospitality." The concept of "spontaneous order" was developed by F.A. Hayek and others: "Made Orders and Spontaneous Order" by Hayek, and "Two Kinds of Order" by Polanyi, in David Boaz (editor), The Libertarian Reader. (New York: Free Press, 1997).
10a
In his 1996 presidential campaign, Harry Browne maintained that we can afford to get rid of the Federal income tax (and replace it with nothing) if we drastically reduce the Federal government to the purposes which, taken as literally as possible, the founding fathers apparently intended (especially when they wrote the Ninth and Tenth Amendments). These functions would include national defense, foreign policy, and a federal judiciary and perhaps (very minimally) oversight of interstate commerce. Browne suggests a national asset sale to pay for these functions.
10b
10c There are a few libertarian-leaning law schools, especially George Mason University in Fairfax, Va., known also for its Institute of Humane Studies, which provides grants for individual freedom policy education and policy research and invites students to summer forums,
11 Andrew R. Cecil, Introduction, The Ethics of Citizenship from Lectures on Moral Values in a Free Society (The University of Texas at Dallas, 1980), p. 16.
12 Boaz, Libertarianism, op. cit., pp. 64-70.
13 James Hutson, "The Bill of Rights and American Revolutionary Experience," from A Culture of Rights, ed. by Michael Lacey (London: Cambridge University, 1991).
14 Robert Bork, The Tempting of
Robert Bork, Slouching Towards
15 Michael Lerner, The Politics of Meaning (New York: Addison-Wesley, 1996).
16 Andrew Peyton Thomas, "Can We Ever Go Back?" The Wall
Street Journal,
17 Supporters of the recently vetoed bill against late-term partial-birth abortions describe horrific procedures where babies are murdered with only their heads still within the womb (before they are legally born, when their killing is still legal abortion). Certainly I abhor such procedures: the woman's control of her body is just a hypothetical point in these situations.
18 In the 1976 film Logan's Run, everyone was executed at the age of 30!
19 William Murchison, Reclaiming Morality in
20 Former National Gay and Lesbian Task Force President Melinda Paras always spoke of fundamental collective "fairness" as an underlying moral value. It's not fair for the handicapped to be denied accessible parking spaces, and it's not fair for gays and lesbians to be discriminated against (speech for Fairfax County Va. GAA, April 1996).
21 George Will, Statecraft as Soulcraft: What Government Does (New York: Touchstone, 1983). P. 31 discusses conscription in the context of self and community interest.
21a
22 Dean Hannotte, introduction to Paul Rosenfels, Homosexuality: The Psychology of the Creative Process (New York: 9th Street Center, 1971/1986), p. iii.
23 William Channing, "A Human Being Cannot Be Justly Owned," from Boaz, Libertarian Reader, pp. 88-91. This piece, to condemn slavery, argues self-ownership from the exclusivity of property rights and from the moral equivalence of rights and responsibilities.
F24 Joseph Steffan, Honor Bound: A Gay American Fights for the Right to Serve his Country (New York: Villard, 1992), p. 16.
25 Hillman, The Soul's Code, op. cit., p. 6.
26 Steffan, op. cit., p. 145.
27 Anthony and Cleopatra (1606); p.d.
MacKenzie, op. cit., p. 201, cites the Naval Academy Honor Code. The Code does not now require midshipmen to turn in others they suspect of cheating; however a midshipman resigned in 1996 out of conscience for failure to report a crime of one of his classmates.
28 Dean Hannote, We Knew Paul,
Introduction (
29 Stephen Carter, "The Insufficiency of Honesty," Atlantic Monthly, February, 1996, pp 74-76.
30 David Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University of Virginia Press, 1994), pp. 323-324.
31 Chai Feldblum, "Sexual Orientation, Morality, and the Law: Devlin Revisited," (Georgetown University Law School and University of Pittsburgh Law Review, 1996).
31a
You could say drug laws may keep about 20% of people who would otherwise drugs from using them. A similar argument can be made about prostitution and gambling laws. You believe they really work? There is more about drug testing at http://www.doaskdotell.com/content/labor.htm
32 Peter McWilliams provides a detailed history of how our drug laws evolved and how they may even feed corporate "special interests." Peter McWilliams, Ain't Nobody's Business If Your Do (Los Angeles: Prelude, 1995), pp. 271-337. Or consider Richard Condon's 1960 novel, Mile High, in which organized crime conspires to bring about Prohibition in order to make a killing on it.
33 Newt Gingrich, To Renew
34 In
35
36 Government also abuses seizures in the environmental areas. James Bovard, "New Assault on Property Rights," The
36a Ch. 5 P 236 pr. 1 Picking on marijuana users is like the military's picking on gays, as the easiest (and most naive) "criminals" to user as prey for the politicians.
In 1997, the Virginia House of Delegates in the General Assembly has already voted to repeal its 1978 state law allowing the medicinal use of marijuana. NBC Dateline covered the asset forfeiture problem in a broadcast in January, 1997.
37 William F. Buckley and others, "The War on Drugs is
Lost," National Review,
38 Frank Herbert, Dune (New York: Putnam, 1965).
39 Robert Samuelson, "Anti-Smoking Hysteria," The
40 An appeals court in
41 Aren't people who get addicted to nicotine morally responsible for their own predicaments? Maybe not if they were deceived by false advertising. But when a litigant lost a wrongful-death suit, her attorney claimed, "we're taking personal responsibility to an extreme." Indeed we should!
42 But see Joan Taylor, "Child Pornography and Free Speech," Liberty, Jan. 1997, p. 38, for a discussion of the way the proposed Child Pornography Prevention Act which would criminalize the depiction of under-age sex even in computer-generated art (and who would determine who "looks" underage?) The "theory" is that prurient interest in children must be stopped.
43 There are four kinds of residential real-estate assumption: (1) full (when the second borrower qualifies and the first gets a novation releasing from liability (2) assigned, when the original owner is liable only for missed payments (3) simple (common with FHA until 1989) and (4) Subject-to, which leaves the original owner completely responsible forever. The common law rule against assignments holds an original borrower liable until the lender gives permission for assumption. Some left-wing writers have urged consumers with bad credit or with no credit to assume loans and insist that sellers "trust" them and not make them qualify.
In the late 80s, when real estate values were declining in some areas of the country, it was common for borrowers to “walk.” Lenders (often after takeovers and mergers or government rescues under the FDIC, following the notorious D’Oench, Duhme Doctrine) began to pursue them for deficiencies, sometimes after foreclosure sales for almost no value, for as long as 4 years after foreclosure (Wiedemer, A Homeowner’s Guide to Foreclosure, Dearborn Financial Pub., 1992). Sellers in unqualified assumption situations would be exposed to deficiency lawsuits but this has not been reported much by the media. See http://www.doaskdotell.com/content/realesta.htm for some philosophical points.
43a
43b. “Hate crimes” legislation, in fact, strikes me as an attempt to have two wrongs make a right. The practical justification, in the case of gay-bashing, is that juries may let an accused off more easily if “homosexual panic” is allowed as a defense, so we need the counter-weight of hate-crimes designation (for gays). I say, punish the crime according to its heinousness, regardless of the victim or of the excuses of the perpetrator. Trouble is, intent and state of mind and pre-meditation are well-established concepts of criminal law. I would encourage laws which treat “hatred” (on a case-by-case basis) as legally a form of premeditation (which wouldn’t have the “principle” problem of treating crime differently according to the class of the victim), but would discourage the reference to the category of the victim in determining the degree of malice. (Remember the killer of Matthew Shepard was punished almost to the full extent of the law anyway.) But in June 2000, the House passed a bill adding disability and sexual orientation to categories that trigger hate crimes consideration.
44 Peter Unger, Living High and Letting Die: Our Illusion of Innocence (London: Oxford University, 1996).
44a Ch.5 P 239, pr. 4: Virginia Gov. George Allen wrote to me: "I believe that the historical husband-and-wife family is the very foundation of our society, and that the state should reaffirm the primacy of the time-tested family model whenever it is challenged or whenever alternative models are held out as its equivalent."
44b But some historians maintain that, whatever the religious right claims to be in the Bible, the Western “nuclear family” did not become accepted as a social model until the time of Napoleon, and then during the Victorian era. If women were regarded as “property” or as “inferior” it is hard to see how monogamous intimate marriages could provide much psychological sustenance.
45 In some African cultures, women are so little respected as equals that female circumcision and clitoral mutilation is still practiced.
46 Note the reunion of the Henry family at the end of Herman Wouk's War and Remembrance.
47 Don Feder, "Society's Stake in
Defending Marriage," The
48 Here's one amusing affront: Nate Penn and Lawrence Larose: The Code: Time-tested Secrets for Getting What You Want from Women - Without Marrying Them (New York: Fireside [Simon & Schuster] 1996).
48a The Census 2000 reports now that less than 25% of all households are traditionally married couples with children. The percent of unmarried couples was 1.9% and the number of single households raised 21% (since 1990).
49 But some observers disagree that most middle class parents
"need" two incomes. Shannon Brownlee and Matthew Miller, "Lies
Parents Tell Themselves about Why They Work,"
49a According to a General Accounting Office (GAO) survey released in January 2002, woemn’s income had fallen further behind men’s between 1995 and 2001. 60% of males in corporate executive ranks had children at home, whereas only 40% of females did, a figure which suggests (to the chagrin of some) that the “mommy track” or even taking advantage of maternity leave materially reduces female advancement in the conventional corporate workplace.
49b Elizabeth Warren and
Amelia Tyagi. The Two Income Trap: Why Middle
Class Mothers and Fathers Are Growing Broke.
49c For
an interesting employment discrimination case on Wall Street where female
executives who took maternity leave say they were penalized and unable to
compete with men who did not take paternity leave (or maybe single men) see
50 Barbara Vobejda, "Social Trends
Show Signs of Slowing: Family Characteristics Appear More Stable" The
50a Robert Kuttner, in
an overview, “The Politics of Family,” for aspecial
issue on family values in The American
Prospect,
51 Actually, southern Christian fundamentalism has sometimes stood up for the right of women to have opportunities of their own apart from homemaking their husbands. Christine Heyman, Southern Cross: The Beginnings of the Bible Belt (New York, Knopf, 1997), and Goodwin, op. cit.
51a
References: (Linda Hirshman) http://abcnews.go.com/GMA/AmericanFamily/story?id=1653069&page=1
Mommy wars: video submissions to
52 Ed Mickens, "Is There a Lavender Ceiling," Out, Dec. 1996, p. 150.
52a The Minneapolis Department of Health and Family Services
conducted a survey in 1998 ("SHAPE") which reported that
self-identified "GLBT" people showed a 41.3% achievement of
undergraduate college degrees compared to 27.6% for self-identified
"heterosexuals," and that 26.3% of GLBT's
made over $46,400 a year compared to 17.5% for "heterosexuals." So
maybe having fewer "responsibilities" (or more "disposable
income") makes a difference. Rachel Gold, "
53 Barbara Vobejda, "Day Care Study
Offers Reassurance to Working Parents," The
53a
53b Ch.5 P. 242 pr. 2. William R. Mattox, Jr., argues "With big
families come big rewards," in an op-ed in USA Today,
53c In September 1987, Chilton
Corporation (a credit reporting company eventually bought by
54 The usual proposal is a $500 per child credit; some conservatives
(Phil Gramm) have wanted this amount to be $5000! There is already a credit of
up to $720 per dependent (maximum of two dependents) for day care expenses to
enable a parent to work. See The Ernst & Young Tax Guide 1997 (New
York: Wiley, 1996), p. 464. President Clinton has proposed college tuition tax
credits for parents of dependent children, but conservatives generally claim
this just drives up tuitions. See Pete Dupont,
"Providing Fuel for Tuition Inflation," The
55 Nash, Time, op. cit. (see Ch. 3) and
56 Philip Lawler, "Sex, Marriage, Love, and Babies," The
Wall Street Journal,
56a
57 In the 1950's, "legal separation" was the penultimate remedy. Situation comedies (I Love Lucy) were built around couples that "fight," but up close and personal, I found the idea of fights (the few times I saw them in other peoples' families) terrifying.
58 Barbara Whitehead, The Divorce Culture (New York: Knopf, 1996), provides an interesting history of the transition from "vulgar" to "expressive" divorce as our society has migrated toward emphasis on personal fulfillment and "growth."
59 Back in the 1950's, Ladies Home Journal ran a column, "Can this Marriage be Saved?" by Dorothy Disney.
60 There was a famous case (Bobbitt) in
61 Sheppard and Kathryn Kominas, Accepting Ourselves & Others (Minneapolis: Hazelden, 1996), p. 321, 325-326. Also, Brian McNaught, Gay Issues in the Workplace (New York: St. Martin's Press, 1993), chapter "Homophobia and Heterosexism," pp. 47-64.
62 Ben Wattenberg, "The Grandfather Gap," PBS Broadcast,
63 The Titanic, history series on A&E Cable History Channel, Sept., 1996.
64 The Communications Decency Act of 1996 is discussed in Chapter 6 (overturned by the Supreme Court in 1997). In 1958, the Supreme Court ruled against the Los Angeles Postmaster who had tried to stop the mailing of a homosexual periodical on the grounds that homosexuality per se was obscene. Ed Alwood, Straight News: Gays, Lesbians, and the News Media (New York: Columbia University, 1996), p. 34.
65 Some Fairfax County, Va. parents tried to have The Washington Blade removed from the public libraries in the early 1990's.
66 "Writing rights," The Advocate,
67 Before World War II, Mussolini unashamedly "taxed
bachelors" to help fund his pro-natalist ideas.
Crane Brinton, A History of Civilization, (Englewood Cliffs: Prentice-Hall,
1960), p. 468. The Christian Coalition's Ralph Reed, in Contract with the
American Family (Nashville: Moorings, 1995), correctly points out the
burden of the
One subtle form of marriage penalty occurs on the Schedule D, Capital Gains and Losses form. A single person may subtract up to $3000 in stock market losses, but married persons filing separately may deduct only $1500 each. Of course, the cap on loss deductions raises interesting public policy questions of its own.
67a In fact, Caesar Augustus,
Roman Emperor around the time of Christ, severely taxed men and denied
inheritances to men who were not married by age 25. In Roman society, the
accepted age for marriage was 14 for men and 12 for women. But marriages were
“arranged,” infidelity was often acceptable, and infanticide (rather than
abortion) was sometimes legal, as were the horrible spectacles in the Coliseum.
Slaves came from conquered peoples.
“Morality” was more a “practical” thing in those days; there was no
pretense of the right to life or of universal human rights. See US News and
World Report,
68
68a
68b
68c. In 2002, there was study showing that children of women who work full time before their children are at least nine months old do not do as well on intellectual performance. A similar result seems to hold with children who had little breast feeding. This, along with studies regarding reduced fertility among women who postpone having children for career, seems to point to a “collective” problem when women who want to have children early must “compete” with those who don’t or when men reduce the value of fatherhood in their own purposes for sexuality.
68d. Although most mainstream employers today do
not live to consider marital status or family obligation as relevant to the
ability or will to do most jobs (and may believe they are legally forbidden
from inquiring in many states), marital status and especially having dependents
definitely affects eligibility for financial aid for trade schools (as usually
administered by state and sometimes federal programs). This can differentially affect laid-off
employees seeking to acquire new technical schools and certifications for
career transitions. 9source: KRS Computer & Business Scholo,
68e Allan Carlson talks about the “family wage” as a motive behind FDR’s New Deal, on p. 148 of his 1988 book Family Questions: Reflections on the American Social Crisis,” (Transactions Press, 1988), in a chapter called “The Moral Politics of the Minimum Wage.” Carlson believes that modernism and equal career opportunities for women are undermining family socialization.See also note 53b.
69 Jonathan Rauch, "A
Pro-Gay, Pro-Family Policy,". The Wall Street Journal,
70 Males, The Scapegoat Generation (1996).
71 George Gilder, Sexual Suicide (New York: Quadrangle, 1973);
George Gilder, Men and Marriage (Louisiana: Pelican, 1986).
72 Arkes, The Weekly Standard,
73 On
73a
Remember, legally married partners cannot be required to testify against one
another (a real "privilege"). In fact, if legally married spouses
file separate returns, the
When companies offer equivalent "domestic partnership" healthcare
benefits to not-legally married partners of employees, the (non-contributory)
premiums are taxable by the
Another example of workplace disparity: heterosexuals often meet future spouses in the workplace; for gays (especially men), courting in the workplace is dangerous, to say the least.
In Bob Powers and Alan Ellis, A Manager's Guide to Sexual Orientation in the Workplace (Routledge, 1995), practical arguments for same-sex domestic partnership benefits are presented, from p. 125. For example, the City of Seattle found no actuarial risk when the policy was instituted in 1990 (and cancelled its surcharge), and the cost of caring for a partner with HIV is usually less than caring for children with severe disabilities; and gays and lesbians do have children to raise.
Gerald Celente: Trends 2000: How to Prepare for and Profit from Change in the 21st Century (Warner, 1998) talks about the "millennium family" (only 26% of families in 1999 are "traditional" one-earner husband-wife with children) and the notion of "progressive libertarianism."
73b marben- contains a summary of the benefits and
drawbacks of legal marriage. In early 2000, the
Whatever the philosophical public policy debate, there is a detailed discussion of actual financial planning issues for gay and lesbian couples (including the effects of Vermont’s law and of domestic partnership employment benefit provisions in many areas) in the essay “Straight Money Facts for Gays and Lesbians” at http://www.ihatefinancialplanning.com/
In October 2001
and death decisions on each other's behalf. As enacted under AB 25, domestic
partners will have these rights:
- Relocate with a domestic partner without losing unemployment benefits.
- Use sick leave to care for an ill partner or the child of a domestic partner.
- Be exempt from state income tax the health benefits provided to domestic
partners.
- File disability benefits on behalf of an incapacitated partner.
- Make medical decisions in the hospital or act as a conservator.
- Sue for wrongful death as well as seek damages for negligent infliction of
emotional distress.
- Administer a partner's estate.
- Bequeath property to a domestic partner using the statutory will.
- Adopt a partner's child using the stepparent adoption process.
- Continue health benefits for surviving partners of governmentemployees
and retirees.
Additionally, AB 25 requires health plans to offer domestic partner coverage to
businesses and associations similar to coverage offered to dependents of
employees and subscribers. This requirement will assist small and medium-sized
employers that decide to offer domestic partner benefits to their employees.
Further, opposite sex couples may register as domestic partners.
73c. See Owen Ullmann, "Tax Break for
Couples Could Create Imbalance Elsewhere," USA Today,
73d Of course, others besides legal spouses and children can receive inheritances, but legal spouses generally may not be left out of wills. In June 2000, the House of Representatives voted to repeal the inheritance tax (over the sliding $600,000+ limits) completely over some timetable, appealing to the argument to save family farms and family businesses. Above these limits, the estate tax rate raises to 55% now. It could be argued (in conjunction with note 196) that the bill encourages family cohesiveness and weighs against individuals (often gays) who set up lives around interests distant from family matters. The left would argue that completely abolishing the estate tax preserves inherited “privilege.”
Objectivists have supported the idea of inheritance, but generally maintain
that an individual will fare well or poorly in life based on how well he or she
uses the inheritance. Another hidden idea is the “dead hand” – a post-probate condition on the receipt of funds by
heirs. The ability of heirs to keep the money (or receive it from trust) could
depend on some specific behavioral requirements. This is more common in
73e The Canadian government is
not appealing a ruling from the Ontario Supreme Court in June 2003 essentially
allowing same-sex marriages. The effect may be that
73f Jeff Jacoby, in an editorial “Same-sex marriage might ruin traditional family life,” produces a rather collectivist argument against gay marriage in his July 2003 Boston Globe op-ed. To answer “rationalist” arguments for gay marriage, Jacoby quotes a Globe report that of the 5700 gay and lesbian unions in the past 3 years, 2000 came from previous heterosexual marriages. Of course, such an argument diminishes the moral importance of the fact that 2000 individuals made personal choices (now more protected by the Supreme Court as a fundamental right under due process in Lawrence v. Texas sodomy law opinion) for their own personal happiness but for which they can also be held personally accountable. Again, I would like to direct the argument more to the idea that marriage has a lot to do with providing for people who aren’t able to make all of their own choices, and cast the argument in terms of the notion that responsibility for self incorporates responsibility for others. Indeed the gay marriage debate will test the limits of self-ownership and individualism as a moral philosophy, and might well also bring back another debate about filial responsibility, as the elderly population grows and as the gap between rich and poor among families with children gets larger.
However, many adult children would maintain that they are entitled to recover lost wages or expenses from caring for parents. In some cases, this has led to intra-family fraud in guardianship or conservatorship of the elderly. Sometimes elderly persons are declared incompetent with little due process and defrauded by companies, also. See Barry Yoeman, “Stolen Lives: Thousands of older Americans are being robbed of their freedom, dignity and life savings by a legal system created for their protection. How can this happen?” in The AARP Magazine, Jan/Feb 2004, p. 42.
73g David Wilkinson and Chris
Stevenson proposed a Department of the American Family in an op-ed “In support
of marriage” in The Washington Times,
http://www.washingtontimes.com/op-ed/20051215-092213-1663r.htm
Richard Sincere rebuked the idea of a “Department of the American Family”
with his letter (“Regulation, bureaucracy and the family”) of
74 Mixner, op. cit., p. 141.
74a. On the $600,000 limit (increasing every year since 1996), single people can of course leave their money as they choose (subject to the same limits), but sometimes their wills are challenged, and it is often difficult to leave a spouse out of a will if one wants so.
75 In the Bottoms case in
75a
75b (Dec. 4, 2003,
76
See also 76j.
The Supreme Court, in January 2005, refused to hear a case (filed by gay
foster parents) challenging a decision from the 11th Circuit
(complicated by Judge Pryor) allowing the
76a
Note - April 1999 N.H. legislature repealed this law (both legislatures by wide margins) and the governor signed.
In April 2000, the
The following states have state court rulings supporting second-parent
adoptions by same-sex couples:
These states that have higher state court rulings denying second parent adoptions,
In these states, judges generally grant them but there is no higher state court ruling on the books:
Alabama, Alaska, California, Georgia, Indiana, Iowa, Maryland, Michigan, Minnesota, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, Texas and Washington.
In
The Newark Star Ledger, on
On
Andrew Berg provides a discussion, “Will My Kids Be Gay,” in the September 2003 And Baby. Berg writes, “More than 30 studies comparing the children of gays and lesbians to the children of heterosexuals have shown no significant differences when it comes to sexual orientation and gender identity.”
In early 2004 Oklahoma passed a law barring recognition of adoptions by
same-sex couples in other states, and took away parental rights from non
biological parents (or parents by legal marriage) when passing through the
state. This seems to be a misuse of state-by-state experimentation (that is,
using public policy exceptions to Full Faith and Credit), a solution that has
generally been credible with the gay marriage debate itself. See
76a1. From the New Jersey Law Journal: http://law.com/nj
http://www5.law.com/lawcom/displayid.cfm?statename=NJ&docnum=87471&table=news&flag=full
“Same-Sex
Marriage Laws Are Entitled to Full Faith and Credit “ by
Martin L. Haines,
“ It is very unlikely that
the U.S. Supreme Court, once it has the issue to decide, will deny application
of the Full Faith and Credit Clause to same-sex marriages. It reads the clause
broadly, saying its purpose is "to alter the status of the several states
as independent foreign sovereignties, each free to ignore obligations created
under the laws or by the judicial proceedings of the others, and to make them
integral parts of a single nation. (Williams v.
“ Even if the Court refuses
to apply the Full Faith and Credit Clause to same-sex marriages, it cannot
avoid the application of the Constitution's equal protection and due process
clauses to them. ("[No State shall] deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.") “
76b The Dutch parliament has reportedly approved both same-sex marriage and in some cases adoption, to take effect in April 2001. The web reference is http://ruljis.leidenuniv.nl/user/cwaaldij/www/
Ch 5 P 251. In 1997,
76c On
However
76d More resources on same-sex marriage:
ACLU: http://www.aclu.org/issues/gay/gaymar.html
Freedom Network: http://www.free-market.net/directorybytopic/same-sex/
76e. One contributor to queerlaw
informs us about Robert Wintemute’s new book on
same-sex partnerships. The book is Legal
Recognition of Same-Sex Partnerships: A Study of National, European and
International Law, Robert Wintemute and Mads Andenaes, Editors. (Hart Publishing,
At 790 pages, the book promises to be an encyclopedic look at same-sex marriage
as its legal advocacy and adoption sweeps the globe.
Authors included are (in the U.S.), Chai Feldblum, William Eskridge, Jr.,
Arthur Leonard, Nancy Polikoff, Evan Wolfson, Mary Bonauto, and a
multitude of others who come from Australia, the UK, Canada, New Zealand,
Brazil, Japan, China, India, Israel, Denmark, Spain, . . . a total of 47
contributors.
Major parts are I. Theoretical Perspectives; II. National Law of the
76f In early 2002 the
76g. On
76h But Stanley Kurtz, in “Gay Priests and Gay
Marriage,” National Review,
Laurie Goodstein, “Vatican to Check
U.S. Seminaries on Gay Presence,” The New
York Times,
76i Here
is a great tabular analysis, “Gay Marriage Rights” by Canadian Roedy Green (Canadian Mind Products) of gay marriage
arguments, including (in Canadian law) the rights that same-sex couples would
give up if gay marriage were legal. There is also a country-by-country
international analysis, as of June 2002. The link is http://mindprod.com/marriage.html
76j For
more on
Now there is a new storm (January 2005)
in
What I
think could happen is that such a law would revert back to the federal
definition of "homosexual" in the 1993 law for the military.
This is important!
http://washingtontimes.com/metro/20050125-101106-3685r.htm
Proposal
would ban gays from adopting children
By Christina Bellantoni
THE
Delegate Richard H. Black has proposed a bill
that would add new criteria for adoption reports filed with the circuit court.
The Loudoun County Republican's bill amends the state's adoption law by adding
a phrase that states: "No person under this statute may adopt if that
person is a homosexual."
Again, this is a “must ask, must
tell” law (or a “do ask do tell” law).
Now, imagine, as a thought
experiment at least, a second law that requires that teachers (over a certain
age) of students below a certain age or of special needs students or assistants
who must give personal care have been parents themselves. Imagine also a law
that says that an attendant who gives personal care to mentally impaired
persons not be homosexual in the legal 1993 definition, or have stated in a
public forum that he or she is. This can be a very slippery slope indeed!
"While considering this bill, the House Health,
Welfare and Institutions Committee voted to significantly weaken the measure’s
language, making sexual orientation and “homosexual activity” only one factor
in the overall evaluation of a candidate." This language is as
follows: "this bill will now directs that
the investigative report presented by the adoption agency to a judge prior to
entry of an order of adoption include information on whether the petitioner
is known to engage in current voluntary homosexual activity or is unmarried and
cohabiting with another adult to whom he is not related by blood or marriage.
This information would be in addition to information on whether the petitioner
is financially able, morally suitable, in satisfactory physical and mental
health and a proper person to care for and to train the child, among other
criteria." (Source http://www.equalityvirginia.org/)
This bill was defeated in the State Senate judicial committee in late February
2005.
For a more complete state-by-state list visit http://www.doaskdotell.com/content/gayadopt.htm
76k
76l On
77 (see also 76c) Barbara Kantrowitz, "Gay Families Come Out," Newsweek,
See also Frederick Bazett, "Children of Gay Fathers" and Saralie Pennington, "Children of Lesbian Mothers," in anthology Gay and Lesbian Parents, edited by Bennett (Westport: Praeger, 1987),
Laura Benkov, Reinventing the Family: Lesbian and Gay Parents (New York: Crown, 1994), and Charlotte Patterson, "Children of Lesbian and Gay Parents," Child Development 63, #5, Oct. 1992. Also, Patterson, "Children of Lesbian and Gay Parents: Summary of Research Findings," from Sullivan, Same-Sex Marriage, op. cit., p. 140; Jerry Bigner and Frederick Bozett, "Parenting by Gay Fathers," excerpts from the Virginia Appeals Court 1994 ruling in Bottoms v. Bottoms, and important papers by Flaks, Belcastro, Wolfe, and Antiga on gay parenting.
Lisa Keen, "Children of Lesbian Mothers Don't 'Differ'
Significantly," The
77a. Here are some more references on gay and lesbian parenting, adoption, and custody. Legally, this is a very fragmented area of law, differing enormously among the states and changing rapidly, and it is difficult to keep up with it in detail. :
ACLU: http://www.aclu.org/issues/gay/parent.html
Gay Parent Magazine Online: http://www.gayparentmag.com/
Lesbian mothers: http://www.lesbian.org/lesbian-moms/adopt.html
Human Rights Campaign: http://www.hrc.org/familynet/chapter.asp?chapter=17
On Februrary 15, 2002 CNN “The Point” ran a
discussion of the absolute gay adoption ban in
On
Ann Oldernburg provided a story “For Rosie, coming
out is merely about what’s right,” in USA
Today,
See also note 75 for the Bottoms case in
77b Newsweek,
77c On
And there is a case in
Transgender Law & Policy
Institute http://www.transgenderlaw.org/
PRESS RELEASE
Equality
Father in Custody
For immediate release
Anyone tuning into Michael Kantaras’ custody battle in
education on transgender issues
instead. Due to the unprecedented
Court TV coverage of Mr. Kantaras’ fight for his
children, more
people were exposed to accurate information about transsexualism
and
sex-reassignment than in any case that has
ever been litigated on
behalf of a transsexual person anywhere in the country.
“We have heard from transgender people from
around the country who
see this case not only a validation of their ability to marry and be
good parents, but also as an unprecedented
validation of our lives
as transgender men and women,” said Kantaras
co-counsel Shannon
Minter. “In addition to Michael himself,” adds Minter, “the primary
credit for the educational impact of this case must go to
attorney Karen Doering, the founder and director of
the Equality
Florida Legal Advocacy Project, a non-profit legal organization
based in
has transformed this private battle into an amazing opportunity to
educate the country about transgender issues.”
77d In
78 Dr. Kenneth Morgen, Getting Simon (New York: Bramble, 1995). Morgen doesn't try to explain his desire to be a parent. The book provides detailed guidelines and forms.
See also American Psychological Association's Lesbian and Gay Parents, a Guide for Psychologists
79 Conversation with Tim Fisher, Gay and Lesbian Parents Coalition International, 1996 (and newsletter).
80
81 Viatical settlement companies buy life
insurance policies from terminally ill persons (not just AIDS patients( and
provide cash for medical care and living expenses. This is "fending for
yourself," when there is no other institutional source of health
insurance, but it deprives someone of passing an estate to a loved one. Arthur
Allen, "The Invisible Hand," The
81a On
81b There is more discussion
of viatical contracts by Jane Bryant Quinn, “Should
You Invest in Death?” Newsweek,
82 Although some libertarians, while advocating total privatization
of schools, also opposed vouchers; they argue vouchers lead to dependency. See
also Chapter 6, note 35a. On
On
82a Ch. 5 P 252 pr 5.: Actually, a balanced federal budget and a flat income tax (or better, no income tax) would reduce interest rates and would tend to encourage more consumer lending and borrowing. Lenders would need to make sure borrowers live up to their voluntarily assumed obligations.
82b Ch 5 P 255, proposed definition of marriage: On
82c Ch 5 P 259, pr. 5. Although we hear a lot about today's low
unemployment and tremendous demand for technically skilled people (especially
for the Y2K problem), older managers (at least those who did not deliberately
reinvent themselves in the early 1990's) are still hard up. See Tony Horwitz, "Some Who Lost Jobs in the Early 90's
Recession Find a Hard Road Back; Younger Workers Do OK, But the Over-50 Set
Sees Sharp Drop in Prospects; Upside: Joys of 'Mr. Mom,'" The Wall
Street Journal,
82d Before Father’s Day in June 2003, CNN reported that the national unemployment rate for fathers with dependent children under 18 was 4.5% as compare to 6.1% nationally. The report did not address marriage per se. It apparently did comprise fathers with custody or actually raising their children (not divorced or unmarried fathers without custody). The report also claimed that some employers do consider the presence of dependents in making close layoff decisions. I have reported anecdotes of that elsewhere, but in general many large employers tend to do layoffs as a numbers game with a very structured, impersonal approach to protect themselves from discrimination lawsuits. In general, the unemployment problems for single mothers seem to be very severe. Whatever this report implies about gays or childless men, it also seems that people who have children before preparing themselves for stable careers often have severe employment problems. So these numbers may be deceiving, and individual circumstances may be much more important.
82e An indication of the problems of single mothers with children was
illustrated by the arrest of a
83 David Boaz and R. Morris Barrett, "What Would a School
Voucher Buy?" CATO Briefing Papers, No. 25,
83a Also, check Joe Viteritti, School Choice: The Constitution and Civil Society (Washington, Brookings, October 1999). Viteritti argues that school vouchers represent an opportunity to improve education for poor people, and form a proper alliance between private and public enterprise. In earlier times, private education really was available only to "the rich."
83b Privatizing education would de-politicize controversial content (once we get beyond the legal church-and-statel arguments about vouchers for the non-sectarian component of education in private parochial schools). The Virginia General Assembly, in 2002, at least defeated a bill that would have severely restricted the presentation of “gay-related” subject matter in social studies (or health) classes in public high schools.
84 Gene Cisewski, Dave Doss, and
85 Kominas, op. cit., p. 321.
86 The Libertarian Party 1996 platform position appears in Appendix 7.
87 Gene Cisewski, "License Expired," The Quill, March 1996, p. 4.
88 William Mohr, "The Stakes in the Gay-Marriage Wars," Robert Baird and Stuart Rosenbaum, editors, Same-Sex Marriage: the Moral and Legal Debate (Amherst: Prometheus, 1997).
88a In May 2001 Tom Green, who
reportedly has 5 wives, will go on trial in
89 William Eskridge, The Case for Same-Sex
Marriage (New York: The Free Press 1996).
90 The government of
91 William Eskridge, "Credit is
Due," The New Republic,
Also, David Frum, "Gay Marriage and the
Courts," The Weekly Standard,
Some commentators claim that DOMA assumes that the Full Faith and Credit clause would not apply to "marriage"; instead there is just an extension of the amorphous notion of "comity." The FFC clause is more concerned, say, with honoring court judgments than with the recognition of social "contracts" largely defined through tradition. Further, states would not be required to honor civil arrangements (from other states) if these arrangements violate their own "public policy."
In May 2002 Rep. Bob Barr from
"Marriage in the
It adds, "Neither this constitution or 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."
D.C. Congressional Delegate Walter Fauntroy
supported the idea, saying "As an African
American, I am particularly sensitive to and
knowledgeable of the value of the institution of marriage and the family,"
Fauntroy said. "For we, as African Americans,
were subjected
to the most cruel form of slavery in the history of the world, a slavery based
on the destruction of the family as a vehicle of
culture, socialization and procreation."
The organization is :
703-425-9060
http://www.allianceformarriage.org/
See the Lou Chibbaro
article in The Washington Blade,
91a In
“Victory Alert: Last gasp
effort by homosexual movement dies
A bill that would have expanded health insurance coverage beyond a spouse or
child to include "any household member" chosen by the beneficiary was
killed
yesterday in a House committee by a vote of 13-6. Delegate Kathy Byron
(R-22,
the bill that was championed by homosexual rights groups, including
"Equality Virginia" and the Log Cabin Republicans. In opposing
the bill
Byron stated, "One of the fundamental values that I hold dear in my life
is
that family means mother, father and children."
What they are saying, however, seems
to be that a company that offers health insurance benefits to non-married
domestic partners will raise premiums and copayments for “normal married
people” in a zero-sum-game world. That sounds like a dubious speculation.
91b (From an AP story in May 2004)
But some lawyers say the law is so vague and ill-defined that it could interfere with legal contracts such as powers of attorney, wills, medical directives, child custody and property arrangements and joint bank accounts, perhaps even joint mortgages and leases..
The bill's sponsor, Del. Robert Marshall, a Republican from
"Civil union is a proxy for marriage and domestic partnership is a proxy
for civil unions,"
Virginia Attorney General Jerry Kilgore, the likely Republican nominee for
governor next year, echoed this in an advisory opinion, saying he believed the
law was constitutionally defendable.
92 David Mixner, Stranger Among Friends, (New York: Bantam, 1996).
93 Liz Spayd and Brigid
Quinn, "The Gay Marriage Trap: We Fell Into a Right-Wing Ambush," The
Washington Post, Outlook, page C1,
94 Gallagher suggests that the law should at least allow lifetime binding agreements. Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting Love (Washington: Regnery, 1996), p. 250. But Andrew Sullivan points out that marriage is a constitutional right recognized by the Supreme Court even before women's suffrage. Laws restricting marriage for convicts and deadbeat dads have been held unconstitutional. Can it be unconstitutional to withhold recognition of privileged status for a personal relationship that persons nor in such a relationship must pay for? How can legal recognition of a religious ceremony be a fundamental right (or entitlement)?
But the conservative case against honoring even a golden "wedding" anniversary for a same-sex couple starts with the rune, "women tame men" (George Gilder and George Will).
95</