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(7/15/2004: Editorial on Gay Marriage and Family Responsibility)
Letter to Jim Moran, United States House of Representatives, Eighth District, Arlington/Alexandria/Fairfax area Virginia.
Lesbians and gay men are right to fear being defined legally as second-class citizens as a matter of constitutional, as well as statutory, law.
I tend to agree with presidential candidate John Kerry that a constitutional amendment to protect �the sanctity of marriage� is legally unnecessary, and that most federal judges (Full Faith and Credit notwithstanding) really would find that states do not have to accept other states marriages when those marriage conflict with a state�s own public policy. In practice, however, states have become used to accepting each other�s marriages without question. So it is productive to discuss the idea of a minimal constitutional amendment.
Constitutional amendments are supposed to deal with matters of governance, not social policy. So one question comes up immediately. Suppose we design an amendment that simply says (first) that no state needs to honor a marriage from another state contrary to that first state�s laws, and (second) that Congress has the explicit power to define marriage for federal benefit policies such as social security survivorship and immigration. All other marital matters, as under the general notion of federalism, are left to the states. It is not necessary, then, to define �marriage� in the Constitution itself.
In 1997, in my book Do Ask, Do Tell: A Gay Conservative Lashes Back (published by iUniverse now) I had suggested a 28th Amendment to enlarge the Bill of Rights (to a �Bill of Rights II�) and then a 29th Amendment designed to encourage states to experiment with same-sex marriage without risking backlash by subsuming the policies of other states or federal policies. To quote (http://www.doaskdotell.com/content/xchap6.htm):
�TWENTY-NINTH AMENDMENT � Marriage
No state will be required, under the Full Faith and Credit Clause, to honor a marriage made in another state if that marriage would not have been valid in the subject state.
The federal government is not bound by the marriage laws of any state in characterizing a marriage relationship for purposes of defining any federal tax liabilities or benefits or entitlements under federal law.
�Constitutional law obviously should not try to define what is or is not a real �marriage�; this would be silly. The policy focus should, as discussed previously, consider reducing or eliminating subsidy of adult relationships that do not support children or other dependents.�
Again, this formulation does not define marriage within the Constitution, so it would not bring about the same risks of undermining equal protection. But I would be tempted to add a Section 3.
�Nothing in this Amendment should be construed as affecting the rights of citizens for equal protection of the law with respect to normal individual rights of life, liberty and property, and nothing in the amendment should interfere with benefits and responsibilities normally given by states to married couples, or interfere with their accepted interpretations of notions of common law or community property.�
I like another suggestion, however, to take the word �marriage� out of the law together and return it to the religious world, where groups of faith are free to define sacraments for their members as they wish, and where the law treats �civil union� as a freely elected contract between two adults. It is still possible to give legislative bodies the explicit powers to decide what unions to recognize.
The biggest practical issue is the economic and cultural stress felt by families today, both in raising children and, increasingly, in eldercare. One hears, effectively, cries for �affirmative action� for families with children. This problem is more related to demographics, economic dislocation, and abuse of �extreme capitalism� than to competition from gays. Gay �marriage,� if expected as well as allowed, could actually contribute to a social climate where the �anything goes� and �winner take all� culture is mediated by the idea that one should learn to take care of others and to make and keep sexual commitments. Why is this still resisted? One reason is that the �common elements� component of traditional marriage, with its reinforcement of traditional (and somewhat patriarchal) gender roles, is important for the psychological well-being of people who do not compete well as individuals in a highly self-expressive and technological culture. The social conservative�s cry �it�s about babies� really fits into the comfort with older moral notions of gender complementarity.
My biggest fear is that a constitutional definition of marriage will lead to new invitations to treat gays as second class citizens in other ways, besides just paying taxes for the welfare of �families.� The greatest danger would come if later there are efforts to create a �birthright� to a mother and father, a concept suggested by David Blankenhorn of the Institute for American Values. The �benefits� of marriage do not matter much to gay adults who are totally free and able to take care of themselves, but that is not always reality. Economic dislocations and even terrorism lead to calls that people without families make sacrifices for others with kids. Before retiring, I sometimes took on-call duty for other people with families. In the past, unmarried adults were expected to stay around and care for other family members, and I think that social conservatives want to see that expectation strengthened.
One way to strengthen marriage in public policy would be to grant differential benefits only to a person for one marriage in a lifetime (except when a spouse dies). Also benefits could be stopped if a couple did not have a legal dependent (a child, whether by birth, adoption or foster care, or an dependent elderly or disabled relative) within five years of the marriage ceremony, time in military or other �national service� deployment excepted. These rules could apply to same-sex marriage as well as traditional marriage and strengthen the idea that stability, lifetime monogamy and household formation are expected.
4201 Wilson Blvd #110-688
Arlington, VA 22203-1859
Books at How to obtain the Do Ask Do Tell
Gay marriage essay (detailed): Will Lawrence v Texas lead to a constitutional amendment banning same-sex marriage The speculations about DOMA (the 1996 Defense of Marriage Act) are discussed there, but it is ironic now that sometimes the "liberals" are suddenly defending it!
Marriage Benefits analysis at http://www.doaskdotell.com/content/marben.htm
Since this is a letter to Congress, it is in the public domain. Portions might be used however in paid submissions to publications later.
In early May 2004 Mr. Moran wrote back to me of his opposition to any such constitutional amendment and indicated that, with social changes such as this, the matter should be left to the states to experiment with.
Joe Dignan of Gay City News writes about an HRC statement that a vote on an amendment could come sooner than expected in the Senate for largely election-year posturing purposes. "Gay Lobby Raises Amendment Alarm: Human Rights Campaign forecasts Senate vote on marriage ban earlier than expected." Link is (May 6-12 2004 issue) http://www.gaycitynews.com/gcn_319/gaylobbyraises.html
March 4, 2004
Here is the text of a proposed Massachusetts state constitutional amendment (p.d.)
Senator Wayne Alard (R-Colo) and Rep Marilyn Musgrave (R-Colo) proposed the following change around March 23, 2004:
Marriage in the United States shall consist only of
the union of a man and a woman. Neither this Constitution, nor the
constitution of any State, shall be construed to require that marriage or
the legal incidents thereof be conferred upon any union other than the
union of a man and a woman."
In the original text, the first sentence was the same. But the second
sentence had said: "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."
The wording change is supposed to make it clear that states may still enact their own civil unions.
I spoke to my own Rep. Jim Moran (D-Va) on Monday March 22 about this. He indicate that he did not think a constitutional amendment was "necessary" (that is, that DOMA would not get struck down) and hinted that it probably would not get very far in Congress. There is more on the July 2004 debate on this amendment further down on this page.
The Virginia General Assembly has passed an anti-gay-marriage and anti-civil-union bill in early 2004:
Gov. Mark Warner has warned that the bill could be unconstitutional, if it prevented two persons of the same sex from entering into a residential contract (like tenancy of an apartment or a mortgage). That is, it would violate freedom to contract and possibly equal protection. Supporters will probably claim that the bill refers only to "marriage like" benefits. Again, this kind of attitude only drives gays into a separate existence, and a form of cultural and economic competition for families. The practical danger might be that two adults entering into a business relationship (like a joint business loan) might have to affirm that they did not have a sexual or residential cohabitating relationship, and this could prevent joint leases or mortgages, or could interfere with advance medical directives or similar contracts with same sex couples, benefits normally permitted as optional private contracts or voluntary adult arrangements outside of marriage. If I were to seek a business partner for an upcoming film project, I might have to make such an offensive affirmation. Virginia also inhibits the offering of domestic partner benefits in some situations and reportedly bans adoptions by gay couples. The comment is often made that the law also invites biological mothers who "divorce" lesbian spouses to move to Virginia to be guaranteed sole custody, making Virginia the "Las Vegas of gay divorces."
More about this law HB 751:
From this link - a very important development:
Here is the text of the original bill:
As of Dec 2005, Virginia law read: "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited and such an arrangement entered into in another state or jurisdiction is void in Virginia and any contractual rights created thereby are void and unenforceable."
VA Marshall-Newman amendment passes on Nov 7, 2006, blogspot entry.
Proposed Ohio state constitutional amendment (on ballot for Nov 2, 2004)
|Information shown below:|
Be it Resolved by the People of the State of Ohio:
That the Constitution of the State of Ohio be amended by adopting a section to be designated as Section 11 of Article XV thereof, to read as follows:
Section 11. Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
This amendment would prohibit state-funded employers from offering domestic partnership benefits and could conceivably jeopardize wills or business relationships among same-sex couples, as if feared in Virginia.
I would be concerned that the next step in some states could be laws explicitly giving blood relatives the legal right to challenge wills made to same-sex (non-related) partners.
On Nov 2, 2004, the following states passed state constitutional amendments banning both gay marriages and gay civil unions:
Oklahoma, Georgia, North Dakota, Ohio, Kentucky, Michigan, Utah, Arkansas
The following states banned gay marriages (only):
Oregon, Montana, Mississippi
Some commentators have claimed that the gay marriage amendment in Ohio helped bring Bush supporters to the polls and helped him carry the state, which he needed to win the Electoral College in 2004. This may be an exaggeration.
The Texas school purchasing authority, which has an enormous financial influence of textbook publishers, is insisting that health texts have gender-specific languages (husbands and wives) in referring to marriage partners. Apparently they are trying to play political homage to those for whom conventional gender performance is important. Generally, most textbooks in World History do discuss the family as a socializing force in many societies, with the most important example being the Confucian idea where one could not make one's own adult choices outside of what is good for the family and its most dependent members. Conformity, authority and security seem go hand in hand.
Other editorial comments:
April 27, 2004: Here is a short commentary/query that I sent to a major periodical today:
The debate over same-sex marriage, like the earlier debate over gays in the military, tests society�s progress toward equal rights for gays and non-discrimination based on choice of adult significant partner. This goal also implies equal responsibilities for gays. Equality is more than just an expansion of civil rights; it is also an expression of individualism in a wealthier society. But now, as freedom is tested, many social conservatives whine that rationalistic �laissez-faire� is too hard on families with children, while liberals claim that the �me generation� neglects the poor. A common concern, then, is socialization: the ability of someone to live through personal accountability to others. Gay marriage can provide socialization and help balance individualism with other-centeredness. Why, then, is it resisted? The biggest problem, besides religion, is the emotional investment that many people make in lineage and biological kinship.
I have led a separate �private� adult gay life, after my 1961 expulsion from college for admitting �latent homosexuality.� I was pressured into psychiatric treatment but then got drafted anyway, and eventually politicked the military gay ban myself thirty years later. I am struck by how others see my unearned freedom to disengage myself from procreative family as a threat. (I can) enlarge this discussion and connect many areas like health care, birth rate, eldercare, globalization, and even filial responsibility. ... Both gay marriage and socialization involve the ethics of self-promotion.
May 17, 2004 (after a symposium on same-sex marriage at the Cato Institute)
Although my amendment does not define marriage, I recognize the idea that some "concepts" should be defined nationally. (Back in geometry class we started with the idea of "undefined entities" that were merely described.) For example, at one time a slave was defined as 3/5 of a person, so the Constitution had to be amended to give a former slave full personhood. Likewise, we have seen the idea that the idea of a "community standard" for obscenity or "harmful to minors" could be defined nationally for the Internet and broadcast.
Also, it would even be conceivable to strengthen the notion of "family responsibility" by allowing and expecting gay marriage, but by also reinventing filial responsibility laws (mostly a dead issue since Medicare was passed in the 1960s), to bring back the idea of parenting and providing the next generation as a serious obligation.
Summary note made on May 20, 2004 while watching PBS program on religion and the presidency. Does this sum it up?
The portions of this page not in the Moran letter and not in texts of proposed amendments, �Copyright 2004 by Bill Boushka subject to fair use. The Moran letter and various proposed amendments are in the public domain
June 17, 2004. The Washington Times reports that the Senate may vote on an amendment that would proposed a federal definition of marriage by mid July 2004, just before the Democratic National Convention. It may contain wording allowing states' civil unions (as above). Remember, however, if "marriage" is explicitly defined in the Constitution so as to exclude same-sex unions, there is some risk of undermining the Equal Protection Clause (the 14th Amendment) in other areas. There may be temptation to exclude or compromise the participation of non-married adults in some employment or housing related matters (like joint mortgages)--there is evidence that this could happen in Virginia already. As with the military "don't ask don't tell" policy regarding gays in the military, it is very dangerous to pass innocent-sounding legislation or amendments without unintended consequences for others.
The amendment, with the wording change (deleting "nor state or federal law"), was debated in the United States Senate July 12, 2004. CSPAN played stirring music during the quorum calls (like the Bruckner Symphony #5), giving the ceremony a pompous air. Most Democrats (apart from Diane Feinstein) were absent--as if to derail the issue by not responding much at all! A couple of important points in the "debate" included the dichotomy as to whether marriage is mainly for "love" satisfying the adults, or whether it is to provide and raise children. Another point was that the practice of "civil unions" or "contract marriage" (including gay marriage) in Europe seems to have weakened the incentive for heterosexual couples to marry legally before having children. (That's milder than saying no sex at all until legal marriage!) The debaters also insisted on the oxymoron of strengthening the sanctity of (heterosexual) marriage without discrimination against gays. Some Republicans now want to introduce an amendment without the second sentence altogether. The obvious political purpose of the debate is to force Senators Kerry and Edwards to vote on the amendment. The Senate refused to allow vote on the amendment (in any form).
July 4, 2004. Charles Murray, in an essay: "Conservative Policy Dilemmas: Marriage-Lite" in the Summer 2004 The Public Interest proposes a constitutional amendment similar to my "29th Amendment" above: "... that does not forbid gay unions , but expressly frees states not to recognize such marriages. This would have the effect of permitting the gradual adoption and evolution of statutes taht [Jonathan] Rauch and I favor. The odds on this amendment being introduced and passed are not good. But they are better than the prospects for an amendment banning gay marriage, and the effort is worth pursuing."
On July 14, 2004 Tom DeLay introduced the following bill (called the "Marriage Protection Act" or "Marriage Acceptance Act") to remove DOMA from the jurisdiction of federal courts:
IN THE HOUSE
October 16, 2003
Mr. HOSTETTLER (for himself, Mr. PENCE, Mr. SMITH of
Michigan, Mr. GARRETT of New Jersey, Mr. GOODE, Mr.
AKIN, Mr. GUTKNECHT, Mr. WELDON of Florida, Mr. JONES
of North Carolina, Mr. BARTLETT of Maryland, Mr.
FORBES, and Mr. PAUL) introduced the following bill;
which was referred to the Committee on the Judiciary
To amend title 28, United States Code, to limit
Federal court jurisdiction over questions under the
Defense of Marriage Act .
Be it enacted by the Senate and House of
Representatives of the United States of America in
SECTION 1. SHORT TITLE.
This Act may be cited as the `Marriage Protection Act
SEC. 2. LIMITATION ON JURISDICTION.
(a) IN GENERAL- Chapter 99 of title 28, United States
Code, is amended by adding at the end the following:
`Sec. 1632. Limitation on jurisdiction
`No court created by Act of Congress shall have any
jurisdiction, and the Supreme Court shall have no
appellate jurisdiction, to hear or determine any
question pertaining to the interpretation of section
1738c of this title or of this section. Neither the
Supreme Court nor any court created by Act of Congress
shall have any appellate jurisdiction to hear or
determine any question pertaining to the
interpretation of section 7 of title 1.'.
(b) AMENDMENT TO TABLE OF SECTIONS- The table of
sections at the beginning of chapter 99 of title 28,
United States Code, is amended by adding at the end
the following new item:
`1632. Limitation on jurisdiction.'.
Article III, Section 2 gives Congress the power to remove some issues from federal courts' jurisdiction. (This has to do with the right of Congress to establish jurisdiction of a lower court to hear a particular issue--but it would seem that such a right could be easily abused; Amendment 11 might also be relevant.) It would seem, off hand, that this bill would have an effect similar to my own Amendment (or the similar one proposed by Charles Murray): it does not define marriage at the constitutional level (risking equal protection problems), but reserves to powers to regulate it to the normal political processes in the states (and federal government for federal benefits only).
Laws like this (or my own "Amendment 29" above) do run the risk of complicating things for ordinary heterosexual couples when they move from one state to another; an ordinary corporate transfer can require extra due diligence to make sure some circumstance in one state will be honored in another. (This may be less true if "marriage" is defined in the constitution.) In general, however, when one tries to deny equal rights to others, one can compromise his own in unexpected ways. It is also possible to allowing Congress to "nullify" judicial review by issue over this theory of "original jurisdiction" could be used to block challenges to state abortion laws (that has been tried) and "hypothetically" (actor Ashton Kutcher's favorite word!) might have been proposed even for sodomy laws. Attorney Arthur S. Leonard provides some detailed legal analysis in the July 22, 2004 Gay City News at http://www.gaycitynews.com/gcn_330/dubiousgopmarriage.html
Interchange between President Bush and challenger John Kerry on October 13, 2004 in Tempe, AZ:
On Nov. 29, 2004 the United States Supreme Court refused to hear an appeal (from Robert Largess, vice-president of the Catholic Action league and from eleven Massachusetts legislators) on the Massachusetts Supreme Court ruling.
An example of the dangers to society of naive dependence on the institution of marriage occurs with this ABC Primetime Live news story about Sarah Olson (Saraah) who was tricked into marrying a terrorist and helping him immigrate to the U.S.: http://www.doaskdotell.com/content/trism.htm#Marriage
A major development is California's new domestic partner law, effective Jan 1, 2005, that affords many parental rights. The AP story (Lisa Leff, "California Law Gives Benefits to Gay Couples," 1/1/2005), is http://story.news.yahoo.com/news?tmpl=story2&u=/ap/20050101/ap_on_re_us/domestic_partners_law
On Feb. 2, 2005 President George W. Bush, in his State of the Union Address (right after finishing talking about social security) reiterated his call for a constitutional amendment banning same-sex marriage, saying that government should not undermine fundamental institutions of society (failing to mention that the state defines the institution of marriate for legal purposes and for or legally enforceable privileges and entitlements that come from marital status). His spin is still that activist judges can undermine the pre-existing institution of marriage (or "sanctity" of marriage).
In Virginia, General Assembly and House of Delegates Rep. Richard Black has introduced a bill (HB2921) requiring that applicants to adopt children ask if either parent is homosexual ("must ask must tell" rather than "don't ask don't tell"), and prohibit adoption by any household with a homosexual parent. I understand that the Supreme Court allowed to stand a somewhat similar provision in Florida, and that a somewhat similar law in Arkansas (referring to foster care in any home having a homosexual household member) was struck down in state court. Rep. Black may have been motivated by the Supreme Court's inaction in the Florida case. A good web reference occurs in the Jan. 25 Washington Times, at http://washingtontimes.com/metro/20050125-101106-3685r.htm Virginians for Equality reported on Feb 5, 2005: "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 )
On Wednesday, February 17, the Senate Courts of Justice Committee voted to kill HB 2921, patroned by Del. Black (R-Sterling) which would have allowed discrimination against prospective gay and lesbian adoptive parents.
Citing that current law already requires the investigation of the "moral suitability" of all prospective candidates, regardless of sexual orientation, the committee overwhelmingly opposed the measure in a bi-partisan voice vote.
Link to related "Hyperindividualism and solidarity" commentary..
Link to submissions to commercial publications on the same-sex marriage debate.
Link to review of Jonathan Rauch's book "Gay Marriage..."
Link to reference discussion of gay marriage.
Link to editorial on gay marriage (this site).
Link to my GLIL posting on gay marriage.
Comments, email me at JBoushka@aol.com