| CIVIL
RIGHTS - GAY RIGHTS AND SAME-SEX MARRIAGE
GAY/LESBIAN
RIGHTS IN THE UNITED STATES AND SAME-SEX MARRIAGE
This page documents
relevant articles, opinions, statistics and lawsuits in the context of
gay and lesbian rights and same-sex marriage. Since Atrios/Eschaton
has been on a tear on this topic, this page will largely borrow links
from him (although Alas
a Blog is a close second).
This page currently has 5 sub-sections:
I. Supreme
Court gay rights decision
II. The
truth behind President Bush's proposed Constitutional Amendment to
outlaw same-sex/gay marriage - and its unfairness
III. Other
Reasons why Same-sex Marriage Rights are Important - the vast amount
of benefits gay partners don't get
IV. Would
same-sex marriage cause long-term "damage"? No.
V. Democratic
candidates need to stand up and say what is right
I. The
Supreme Court Gay Rights decision: Lawrence v. Texas
Sheery F. Colb in FindLaw covers one more of the remarkable decisions
by the Supreme Court in 2003. There are very
interesting features to this ruling, so I will let Colb tell us the
story [text in this color is my emphasis], with my
comments included in [brackets]:
Just
in time for the close of Gay Pride Month 2003, the U.S. Supreme
Court handed gay Americans and their friends something to
celebrate. On June 26, in Lawrence
v. Texas, the Court overruled Bowers
v. Hardwick, in which a five-to-four majority had upheld
a Georgia law prohibiting consensual sodomy.
In a
sweeping opinion by Justice Anthony M. Kennedy, the Supreme
Court said of the Georgia sodomy case that it "was not
correct when it was decided and it is not correct today .... Bowers
v. Hardwick should be and now is overruled."
This ruling represents a major legal and rhetorical victory for
gay civil rights, in a variety of ways.
Due Process Basis for the
Decision
The outcome in Lawrence
v. Texas could have rested on the Equal Protection Clause of
the Fourteenth Amendment. The Texas statute had singled out gay
people, by prohibiting same-sex conduct (sodomy) that was
permitted to opposite-sex partners. The Court might have ruled
that, as Justice Sandra Day O'Connor said in a concurrence in
the judgment, such targeting violates the equality rights of
homosexual persons.
Though "[t]hat is
a tenable argument," the Court explained, however, "[w]ere
we to hold the statute invalid under the Equal Protection Clause
some might question whether a prohibition would be valid if
drawn differently, say, to prohibit the conduct both between
same-sex and different-sex participants." Implicitly, the
Court was suggesting that the statute would fail Equal
Protection analysis as well.
The Court proceeded on Due Process grounds, though, because it
feared that an Equal Protection decision would not go far enough
- either in protecting privacy, or in dismantling anti-gay
legislation and the accompanying stigma that attaches to a whole
class of individuals.
The Court here spoke out forcefully against the stigma and
societal condemnation that gay people have had to endure. Of the
statute in question and others like it, the Court said that
"[w]hen homosexual conduct is made criminal by the law of
the state, that declaration in and of itself is an invitation to
subject homosexual persons to discrimination both in the public
and in the private spheres."
Expressing Contempt for Bowers
v. Hardwick
...Striking down the patently homophobic law, the Court ruled
that "[t]he State cannot demean [homosexuals'] existence or
control their destiny by making their private sexual conduct a
crime." The Court thus recognized that the law in Texas was
about stigmatizing and condemning gay people.
Justice Scalia's Reaction [you
know, the guy who is President Bush's favorite]
Almost as satisfying as the
Court's recognition of how destructive and mean-spirited the Hardwick
decision was, is Justice Scalia's rage at its passing. One need
only read the tone of his dissent to know what a monumental
event Lawrence v. Texas really is.
Justice Scalia began his diatribe by bemoaning the Court's
refusal to overrule his least favorite precedent - Roe
v. Wade - in the 1992 case of Planned
Parenthood v. Casey. He juxtaposed this past refusal
with the Court's decision to overrule Hardwick now.
Finding no plausible distinction between upholding a right to
abortion and overruling the condemnation of homosexuality,
Justice Scalia concluded that "[t]oday's opinion is the
product of a Court, which is the product of a law-profession
culture, that has largely signed on to the so-called homosexual
agenda..."
Appealing to ugly and baseless prejudices about the dangers of
proximity between gay people and children, Justice Scalia
observed that outside of the subculture in which such radical
figures as Anthony Kennedy and Sandra Day O'Connor (both Reagan
appointees) thrive, "[m]any Americans do not want persons
who openly engage in homosexual conduct as partners in their
business, as scoutmasters for their children, as teachers in
their children's schools, or as boarders in their home."
To prove that Americans really do have a history of prosecuting
sodomy (and may therefore continue to do so), Justice Scalia
noted that there were four sodomy executions during the
colonial period, a fact from which the Justice apparently felt
no inclination to distance himself.
Instead, the Justice embraced our history of intolerance as
placing tight limits around the scope of most constitutional
guarantees. In bemoaning the Court's failure to do the same,
Justice Scalia listed the sorts of statutes whose validity, he
claimed, depended upon the earlier Hardwick reasoning:
"[s]tate laws against bigamy, same-sex marriage, adult
incest, prostitution, masturbation, adultery, fornication,
bestiality and obscenity .... Every single one of these laws is
called into question by today's decision ...."
Where to begin? Criminal laws against masturbation are called
into question. How will a civilized society survive?
Perhaps the government can at least collect a vice tax from
masturbators. That might go a long way in addressing the
economic downturn in which our country now finds itself.
Fornication, too, carries the day. If it was previously in
doubt, we now know that unmarried sexual partners can copulate
without going to prison.
Adultery and bigamy are question marks, despite Justice Scalia's
pronouncements, because the government itself licenses marriage
and can therefore - perhaps - require that it be monogamous. But
bestiality? Is Justice Scalia truly stumped by the task of
distinguishing between two men having consensual sex and an act
of intercourse between a man and a sheep? Does the meaning of
"consenting adult" cross the species barrier for
Justice Scalia?
As for obscenity laws, it is the First Amendment - rather than
any substantive Due Process decision such as Lawrence v.
Texas - that raises serious questions about their validity.
And given the government's unquestioned power to regulate
commercial transactions, prostitution is unlikely to be declared
constitutionally protected any time soon.
So this leaves the interesting question of adult incest (the
subject of an
earlier column for this site by Joanna Grossman). For most
of us, the prospect of such a relationship is disgusting and
therefore requires no legal prohibition. But one can imagine an
exception in which, for example, two people separated at birth
find each other attractive as adults and only later learn that
they are biological siblings. The revelation might put an end to
their mutual attraction, but then again, it might not.
Is it wise for biological siblings to have sex or to marry?
Probably not. They are more likely than others, for example, to
have children with serious genetic problems if they do. But
perhaps the law ought nonetheless to stay out of the equation.
Most of us would not wish to regulate the marriage of people
carrying genes for such diseases as Tay Sachs, after all, even
if individuals might choose to avoid replicating the genes on
their own. In any event, adult siblings (or parent-child pairs)
are probably not lining up at the altar, even after Thursday's
decision.
Justice Scalia's Alarm at
the Court's Decision
In a sense, Justice
Scalia is right to be alarmed. Lawrence v. Texas is a
very big deal, and his fulminating dissent thus gives it its
due. Indeed, if Justice Harry A. Blackmun were alive today, he
would surely delight in knowing that his equally angry Hardwick
dissent has now, finally, become the law.
The new ruling calls into question the State's role as enforcer
of morality and suggests that where no one is harmed, decisions
must usually be left in the hands of the individual. Though the
majority might not be willing to take the principle to its
logical conclusion at the moment, some Court might do so in the
future.
Where Justice Scalia is wrong is in his belief that following
this road leads to certain disaster. It is in fact a much kinder
and gentler road than that traveled by Justice Scalia. It is the
road to freedom.
II.
President Bush's proposed Constitutional Amendment to outlaw
same-sex/gay marriage
I will let these different voices say what needs to be
said.
First, a word or two on
Bush's stated reason(s) for pushing this idiotic amendment. Here's Atrios:
Musgrave's gonna feel the heat for
revealing that Bush is, yet
again, a liar.
- WASHINGTON - President Bush
pledged to Rep. Marilyn Musgrave that he would support her
proposed constitutional amendment prohibiting gay marriage three
months before he made Tuesday's public pronouncement, according
to Musgrave's top aide.
The White House has said Bush made the decision only after
officials in San Francisco and New Mexico presided over same-sex
marriages.
Guy Short, Musgrave's chief of staff, said Musgrave discussed
her Federal Marriage Amendment with the president during a Nov.
24 trip aboard Air Force One to Fort Carson, where Bush visited
troops and met with survivors of military personnel killed in
Iraq.
"She flew back to Colorado with him, and he indicated he
would be supportive of the amendment and her language,"
Short said. A week earlier, the Massachusetts Supreme Judicial
Court had ordered the state legislature to either permit gay
couples to wed or adopt a constitutional amendment prohibiting
the practice. The legislature, unable to reach an agreement, has
yet to respond.
On Jan. 31, speaking to GOP House and Senate members attending a
retreat in Philadelphia, Bush endorsed the amendment and,
according to Short, expressed "support for Marilyn's
language."
Second, a note to point out
that Bush's amendment outlaws not just same-sex marriage but also a
lot of rights for same-sex couples (including possibly civil unions).
Here's Jack
Balkin on this (via Atrios):
I've been thinking about the
proposed Federal Marriage Amendment (FMA), whose text is available
at the website of the Alliance
for Marriage. The proposed text
of the amendment reads:
Marriage in the United States shall
consist only of the union of a man and a woman. 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 Alliance for Marriage argues
on their website that this language is designed to keep courts from
imposing same sex marriage on the states, and to keep legislatures
from passing laws authorizing same-sex marriage, but it does not
prohibit state legislatures from passing laws creating civil unions
for same-sex couples.
I'm not so sure. The text is cleverly and confusingly written: The
amendment says that no "state or federal law shall be construed
to require" that "the legal incidents of" marriage
may be enjoyed by same-sex couples. These legal incidents include a
whole bundle of rights in family law, pension law, tort law,
property law, and so on. What the text seems to say is that everyone
who is sworn to uphold the law, including not only judges, but
executive and administrative officials, would be prohibited from
construing the law to give same sex couples this bundle of rights or
any part of them. Since the law cannot be construed to do this, it
cannot be enforced to this effect either. Private employers who give
same sex couples benefits simlar to those of married couples would
be able to do so, but they would not be permitted to construe any
federal or state law as requiring them to do so, and no government
official could enforce such an interpretation against private
businesses. Thus, California's laws, which now give same sex couples
many (but not all) of the same rights as married couples, and
Vermont's civil unions law, which gives almost all of the same
rights, would probably be made unenforceable by the Amendment's
second sentence.
If the FMA had been designed to do what its proponents claim it will
do, it should have been drafted as follows:
Section 1. Marriage in the United
States shall consist only of the union of a man and a woman.
Neither this constitution or the constitution of any state, nor
state or federal law, shall be construed to require that marital
status be conferred upon unmarried couples or groups.
Section 2. Nothing in the first section of this Article shall be
construed to prevent either Congress or the legislatures of the
several states from providing any other benefits, rights, or
privileges, or combinations thereof, to unmarried couples or
groups.
Thus, Congress and state
legislatures may provide all of the incidents of marital status
except marital status itself. As you can see, such an amendment is
not particularly difficult to draft. The fact that there is a gap
between what the text says and what the Alliance for Marriage says
the text will do suggests to me that they are not being entirely
forthcoming about the reasons for the Amendment.
Thirdly, here's Language
Log (via the fabulous Alas
a Blog):
Defining marriage
I've noticed that I twitch a little
each time I hear someone talking about how what we've got to do is
pass a law, or a constitutional amendment, that defines
marriage as being between a man and a woman, as if something
lexicographical was at issue. Yesterday we were treated to the most
egregious case of this, when our president told us solemnly that he
was "troubled by activist judges who are defining marriage,"
because "Marriage ought to be defined by the people, not by the
courts." And I realized why this kind of talk was making me
twitch. This issue is being represented as linguistic, relating
to a democratic right of the people to stipulate word definitions,
when it's nothing of the kind.
As Mark Liberman has repeatedly reminded
us, there are dictionaries. To take Webster's,
for example, this is the definition we have now for the word at issue:
marriage 1 a (1) : the
state of being united to a person of the opposite sex as husband or
wife in a consensual and contractual relationship recognized by law
(2) : the state of being united to a person of the same
sex in a relationship like that of a traditional marriage
<same-sex marriage> b : the mutual relation of married persons
: WEDLOCK c : the institution whereby individuals are joined in a
marriage
2 : an act of marrying or the rite by which the married status is
effected; especially : the wedding ceremony and attendant
festivities or formalities
3 : an intimate or close union <the marriage of painting and
poetry -- J. T. Shawcross>
...
So I wish people — above all our
president — wouldn't put their wedge issue in terms of this nonsense
about how what's on the agenda is defining the term "marriage"
more accurately and correctly as involving a man and a woman. We don't
put definitions of words in the US constitution. (They change
too frequently, that's one reason.) What's on the table here is taking
away rights from certain couples...
But don't let them try to tell me they are revising a definition.
It's nothing to do with defining the word "marriage". Webster's
has done that perfectly well. It's about a denial of rights...
Now, some comments from unlikely politicians and good
columnists on the fairness of the amendment.
The most unlikely person I could think of, former
Alabama Chief Justice Roy Moore, has this to say (via
Billmon):
Moore
Slams Marriage Amendment
Religious and social conservatives
pushing for a constitutional amendment banning gay marriage have an
unlikely critic: Roy Moore.
In an exclusive interview with the Forward, Moore, who was
removed from his post as chief justice of Alabama last year after
defying a federal order directing him to remove a monument of the
Ten Commandments from the rotunda of the state courthouse,
criticized efforts to pass a federal marriage amendment.
Moore, viewed by many religious conservatives as a hero, complained
that an amendment would represent a misguided intrusion into legal
territory historically left to the states and warned against the
unintended consequences of attempting to define morality through
constitutional measures.
"I don’t think you can make a constitutional amendment for
every moral problem created by courts that don’t follow the law of
their states,” said Moore, who is currently waging a legal appeal
to get his chief justice job back. "If you do, you pretend to
do what God has already done and make it subject to the courts. I
think it’s a problem to establish morality by constitutional
amendments made by men when the morality of our country is plainly
illustrated – in Supreme Court precedent and in state-law
precedent and in the common law – as coming from an
acknowledgement of God.”
OK -- let's take a page out of the
conservative playbook and edit that blob of text down into a voter
friendly sound bite:
"I think it’s a problem to
establish morality by constitutional amendments made by men..."
Hey, if it works for Judge Roy
(a.k.a. "The Law West of the Jordan"), it certainly works
for me.
Michigan
House Representative, Lorence Wenke, via Atrios:
On most matters, Lorence Wenke is a
staunch conservative.
The 58-year-old state representative from Richland Township opposes
abortion and gun control. He backs small government and tax cuts.
A member of a fundamentalist church, he includes a verse of Scripture on
his business card and participates in a Bible-study group for state
legislators.
One would be hard-pressed to find a more unlikely advocate for gay
rights.
Yet Wenke plans to be one of perhaps only two House Republicans voting
against putting on the November ballot a Marriage Protection Amendment,
which would change Michigan's constitution to ban gay marriage.
And he is opposing the bill, he said, out of a long-held and deeply felt
belief that discrimination against homosexuals violates democratic
principles and his Christian values.
"I kept quiet when African-Americans were facing
discrimination," he said. "There have been too many people who
have been discriminated against in my lifetime, and this time I'm not
going to sit quietly while somebody is being mistreated.
"This is a matter of conscience. There's nothing in it for
me."
He said his vote "will hurt me personally," and it already
has...
Bob
Herbert, New York Times columnist, via Atrios:
I find a special irony in the high
level of opposition among blacks to gay marriage.
When the U.S. Supreme Court, in the deliciously titled Loving v.
Virginia case, finally ruled that laws prohibiting interracial marriage
were unconstitutional, 16 states, including Virginia, still had such
laws on the books. That was in 1967, at the height of the war in Vietnam
and three years after the Beatles had launched their spectacular assault
on American-style rock 'n' roll.
In the Loving case a mixed-race married couple was charged with
violating Virginia's Racial Integrity Act. The judge who sentenced the
couple wrote:
"Almighty God created the races white, black, yellow, malay and
red, and he placed them on separate continents. And but for the
interference with his arrangements there would be no cause for
[interracial] marriages. The fact that he separated the races shows that
he did not intend for the races to mix."
Now we're told that he doesn't want gays to marry. That there is
something unnatural about the whole idea of men marrying men and women
marrying women. That it's abhorrent to much of the population, just as
interracial marriages were (and to many, still are) abhorrent.
We need to get a grip.
[Atrios has a post on Loving
v. Virginia here.]
Galois
(via Alas
a Blog) has this to say:
This recognition of common hopes,
troubles, and dreams lies at the core of the civil rights movement. In
1969 Representative Shirley Chisholm, another great leader in the
civil rights struggle, gave
a speech on the floor of the US House introducing the Equal Rights
Amendment. She explained why discrimination against women persisted:
The unspoken assumption is that women
are different... The fact is that a woman who aspires to be chairman
of the board, or a Member of the House, does so for exactly the same
reasons as any man. Basically, these are that she thinks she can do
the job and she wants to try.
Today we see the same argument used
to try to prevent same-sex marriage. People claim same-sex couples are
different than opposite-sex couples. They say marriage is designed
only for straight couples and that gays and lesbians are trying to
marry for the wrong reasons. They see gays and lesbians as something
different, something other. Their relationships are not worth the same
amount of respect or dignity. People should and will realize, though,
that same-sex couples share the same dreams. They want to get marrried
for the same mix of reasons. They too want to protect their families.
They too could use some help in caring for them. It doesn't matter if
the people opposed to same-sex marriage think they are doing it for
noble reasons. Some people opposed to equal rights for women thought
they were protecting women and were ensuring that children were cared
for by their mothers. The blindness to our common aspirations is still
insulting and damaging. I am hopeful, however, that people are
starting to recognize that same-sex couples aren't different. We
discover in our friends and family someone who is gay. We want that
person to have the same opportunities in life that we have. This is
the key to winning the struggle for civil rights.
Of course, let's never
forget Senator
Man-on-Dog Santorum. As Atrios highlights
here:
Rick Santorum, on
the 700 Club:
- [T]he consequence is very
clear. Marriage loses its significance. People will stop getting
married. Homosexuals will not get married; heterosexuals will
stop getting married. And that to me is the real threat to the
American family and to the culture generally.
Rep. Seaborn Roddenberry of
Georgia, on introducing an anti-miscegenation amendment to the Constitution
in 1911.
- Intermarriage between whites
and blacks is repulsive and averse to every sentiment of pure
American spirit. It is abhorrent and repugnant. It is subversive
to social peace. It is destructive of moral supremacy, and
ultimately this slavery to black beasts will bring this nation
to a fatal conflict.
III. Other Reasons why
Same-sex Marriage Rights are Important
Atrios has
a list.
Rights, Benefits, and
Responsibilities of Marriage
In 1999, the GAO prepared a report listing all of the rights and
benefits of civil marriage. They came up with 1,049 of them. You can
read their
list here.
Here's a
shorter list. Obviously, if gay people had these rights
civilization would end.
I've bolded a few of the ones which aren't explicitly financial and
which would be difficult or impossible to establish by private
contract.
- Marriage Rights and Benefits
Learn some of the legal and practical ways that getting married
changes your life.
Whether or not you favor marriage as a social institution,
there's no denying that it confers many rights, protections, and
benefits -- both legal and practical. Some of these vary from
state to state, but the list typically includes:
Tax Benefits
Filing joint income tax returns with the IRS and state taxing
authorities.
Creating a "family partnership" under federal tax
laws, which allows you to divide business income among family
members.
Estate Planning Benefits
Inheriting a share of your spouse's estate.
Receiving an exemption from both estate taxes and gift taxes for
all property you give or leave to your spouse.
Creating life estate trusts that are restricted to married
couples, including QTIP trusts, QDOT trusts, and marital
deduction trusts.
Obtaining priority if a conservator needs to be appointed for
your spouse -- that is, someone to make financial and/or medical
decisions on your spouse’s behalf.
Government Benefits
Receiving Social Security, Medicare, and disability benefits for
spouses.
Receiving veterans' and military benefits for spouses, such as
those for education, medical care, or special loans.
Receiving public assistance benefits.
Employment Benefits
Obtaining insurance benefits through a spouse's employer.
Taking family leave to care for your spouse during an illness.
Receiving wages, workers' compensation, and retirement plan
benefits for a deceased spouse.
Taking bereavement leave if your spouse or one of your
spouse’s close relatives dies.
Medical Benefits
Visiting your spouse in a hospital intensive care unit or during
restricted visiting hours in other parts of a medical facility.
Making medical decisions for your spouse if he or she becomes
incapacitated and unable to express wishes for treatment.
Death Benefits
Consenting to after-death examinations and procedures.
Making burial or other final arrangements.
Family Benefits
Filing for stepparent or joint adoption.
Applying for joint foster care rights.
Receiving equitable division of property if you divorce.
Receiving spousal or child support, child custody, and
visitation if you divorce.
Housing Benefits
Living in neighborhoods zoned for "families only."
Automatically renewing leases signed by your spouse.
Consumer Benefits
Receiving family rates for health, homeowners', auto, and other
types of insurance.
Receiving tuition discounts and permission to use school
facilities.
Other consumer discounts and incentives offered only to married
couples or families.
Other Legal Benefits and Protections
Suing a third person for wrongful death of your spouse and
loss of consortium (loss of intimacy).
Suing a third person for offenses that interfere with the
success of your marriage, such as alienation of affection and
criminal conversation (these laws are available in only a few
states).
Claiming the marital communications privilege, which means a
court can’t force you to disclose the contents of confidential
communications between you and your spouse during your marriage.
Receiving crime victims' recovery benefits if your spouse is the
victim of a crime.
Obtaining domestic violence protection orders.
Obtaining immigration and residency benefits for noncitizen
spouse.
Visiting rights in jails and other places where visitors are
restricted to immediate family.
Atrios has
an example here:
The recent legal troubles of Rosie
O'Donnell gave her, and should give us, a deeper understanding of
why marriage
rights are so important.
- Would the media giant Gruner
& Jahr have decided to sue Rosie O’Donnell over the
downfall of Rosie magazine if same-sex marriage were legal?
Bizarre as it might sound, Rosie believes the answer is no, and
her explanation is both fascinating and plausible.
“If you are a heterosexual talk show host and you’re sued by
a major corporation, anything you have said to your husband is
privileged information,” she said in an interview on my radio
program on Sirius OutQ. She was referring to two rights of
marriage that few of us ever think about—until we’re sued
for $100 million, or brought to court for something far more
minor. One is the spousal immunity privilege, which, if you
watch enough Law & Order or The Practice, you know means
that, in general, a husband cannot be compelled to testify
against his wife and vice versa. The other is known as the
privilege for marital communications, which protects
confidential correspondence between spouses. These are just two
of hundreds of rights granted by marriage—rights that gay
couples don’t have.
“If you are a homosexual talk show host,” O’Donnell
continued, “and you’re sued by a corporation, anything you
have ever said and/or written to your spouse/partner/wife is
allowed to be entered into the record. It is totally unfair.”
She believes that Gruner & Jahr’s lawyers were well aware
of that inequity and exploited it to their advantage.
“Any and every thing I wrote to [my partner] Kelli, you know,
which they were using against me, some of my essays—you know,
when you get into a deep, dark place and you say, ‘You know
what honey, blah, blah, blah, blah, blah.’ Well, if the honey
is the same sex as you, that is evidence in a trial, and
that’s hard to believe in America ... . And if they didn’t
have access to some of those letters I wrote to Kelli, I don’t
think they would have sued me. Because, innately, what they were
thinking was that I would rather give them money than show the
truth of my darkest part to America ... .”
IV. Would same-sex marriage
cause long-term "damage"? No.
Here's the American
Anthropological Association (via Alas
a Blog):
The Executive Board of the American
Anthropological Association, the world's largest organization of
anthropologists, the people who study culture, releases the following
statement in response to President Bush's call for a constitutional
amendment banning gay marriage as a threat to civilization.
"The results of more than
a century of anthropological research on households, kinship
relationships, and families, across cultures and through time,
provide no support whatsoever for the view that either civilization
or viable social orders depend upon marriage as an exclusively
heterosexual institution. Rather, anthropological research supports
the conclusion that a vast array of family types, including families
built upon same-sex partnerships, can contribute to stable and
humane societies.
The Executive Board of the
American Anthropological Association strongly opposes a
constitutional amendment limiting marriage to heterosexual
couples."
Tom
Sylvester looks at this issue through a different looking glass (via
Alas
a Blog) and points out that even if children of couples of same-sex
marriage have some difficulties in that environment, it really has more
to do with social discrimination -- something that affects children in
all overtly or covertly "non-approved" settings. Stopping
something because there may be challenges due to discrimination makes no
sense. It is the discrimination that one needs to fight. (We've argued a
similar point previously
in the context of divorce vs. marriage.)
ANTI-DISCRIMINATION
AND EQUALITY: Though it doesn't receive much media attention, an
important issue in the same-sex marriage debate is the impact of
same-sex parenting on children. Despite New York Times hype
that "scores of studies prove that children of same-sex parents are
all above average" (I'm paraphrasing), there are actually very few
(if any) methodologically sound studies on the effects of same-sex
parenting on child outcomes. Steve Nock's affidavit
is particularly persuasive on this point. But a recent study
somewhat altered my thinking on the subject.
The study was based on the National Longitudinal Study of Adolescent
Health, supposedly the best data set on American teens. Researchers
found that teens from a certain type of family were at a higher risk for
depression, drug abuse, and other health problems. So does it make sense
for public policy to steer people away from that particular family form?
I don't think so. The study examined teens who identified themselves as
biracial.
"Quite a few studies attest in
some way to the emotional, health and behavioral risk problems of
multiracial adolescents," [Dr. J. Richard Udry] said.
"The most common explanation for the high-risk status is the
struggle with identity formation, leading to lack of self-esteem,
social isolation and problems of family dynamics in biracial
households."
Now, no decent person would even
consider rethinking Loving
v. Virginia. Racial problems still pervade American society.
There is still widespread race-related discrimination and stigma.
Thus, it's not all that surprising that biracial children face more
difficulties in a race-obsessed America. It's also reasonable to think
that these difficulties will lessen as American moves forward (and as
the ranks of multiracial Americans grow).
Yes, the analogy to interracial marriage is flawed in significant
ways. Yet I think it holds here, in part. Even if children from
interracial relationships don't do as well, we should fight
discrimination and racial essentialism, not discourage men and women
with differing skin colors from loving each other. Similarly, even if
children with same-sex parents face more challenges, so what? Gays and
lesbians face widespread disapproval, discrimination, and hatred. We
should focus on fighting anti-gay attitudes, not on preventing
same-sex couples from adopting children. It's likely that some of the
challenges that go with same-sex parenting stem from these anti-gay
attitudes. (And, so far, available research--limited as it may
be--doesn't reveal any red flags for concern about same-sex
parenting.)
One valid objection to this argument is that children from interracial
marriages live with both of their biological parents, whereas children
from same-sex marriages automatically live in de facto stepfamilies.
It's certainly true that children in stepfamilies don't do as well as
children from intact families. But most children with same-sex parents
are adopted or are children of divorce. For these children, the ideal
family structure--the intact, married mother-father family--is not an
option. Furthermore, the law doesn't prohibit heterosexual couples
from marrying if either spouse has children from another relationship.
Indeed, it's probably better for the children involved if a single
parent remarries instead of just cohabits with his or her new partner.
Many children are being raised by same-sex couples; marriage would
offer these families legal protections and social legitimacy.
There's one key question that I, as pro-marriage advocate, struggle
with continuously: At what point does promoting the intact, married
mother-father ideal hurt the interests of children overall by
neglecting those in other family types? An extreme pro-marriage
position--e.g., cutting off all welfare payments to single parents to
discourage out-of-wedlock childbearing--would hurt children far more
than it would help them. The ideal is not to be promoted at any cost.
So, would gay marriage weaken the normative ideal of children growing
up with both their mother and father? Though the actual negative
impact is likely to be small, yes, gay marriage would weaken that
ideal. But the fight against discrimination, and the fight for equal
human dignity, is worth it.
V. Democratic candidates
need to stand up and say what is right
Here's Atrios:
The Question
The members of our sacred press corps are a wee bit slow, but
eventually they start figuring things out. And, they've finally
figured out the question which will be asked of just about every
Democrat between now and November - "What's the difference
between a civil union and a marriage?"
Edwards got a version
of it yesterday.
- Speaking to reporters yesterday
afternoon, Edwards explained that he personally opposes gay
marriage but supports civil unions, and believes each state
should set its own marriage policy.
When asked why civil unions could not simply be called
marriages, Edwards said, "My answer is the same."
Asked why states, not the federal government, should decide
policy, he replied, "Because it's something I think should
be decided by the states."
And when asked to explain his personal opposition to gay
marriage, he snapped, "I'm done with that question."
I knew this would happen. This
distinction was always a sham, because it's a distinction without a
difference. Unless the candidates can articulate what the difference
is, it's a losing strategy. Until they can articulate the
difference, the press will keep asking.
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