Category: Marriage Equality

France created a civil unions law in 1999 for gays but failed to designate gender and now about a third of straight couples getting married in France opt for civil unions because they are easier to get out of. Don George points out the obvious:

…it is terribly humorous and ironic that the French created civil unions to protect the institution of marriage…and now civil unions are undermining marriage because people are opting for them instead of marriage. Talk about the law of unintended consequences. So possibly the lesson for our country is that the best way to protect the institution of marriage is not to deny people marriage by creating a separate but equal system, but to allow gays to marry.

Er: yes. If you read my first ever essay on the topic, in 1989, you will find it was exactly this possibility that led me to back full marriage equality over marriage-lite options such as domestic partnership and civil unions. It was a way to integrate gay people and protect marriage. Civil unions and other such institutions really will undermine marriage in a way gay couples never could. In fact, in France, civil unions are now overwhelmingly heterosexual:

[T]he number of heterosexual men and women entering into a PACS agreement has grown from 42 percent of the total initially to 92 percent last year.

In this, the gay movement, in its support for civil marriage equality, is a force right now for social conservatism; and the Christianist movement is the one fomenting the real attack on the institution of marriage. Christianist doctrine – unrelated to the social facts of our time – is, in fact, a social solvent. It helps destroy the family (ask the Haggards); it undermines civil marriage’s uniqueness; and it discourages social responsibility. That’s because it is about maintaining the stigma toward homosexuality rather than about supporting the important social role of marriage in keeping society together.

As I have said many times, Christianism is not, properly understood, a force for social conservatism; it is a force for denial, religious neurosis and social decay. Which is why those parts of America that are most imbued with Christianist cant often have such higher levels of divorce, abortion, illegitimacy and family breakdown.

Scott Payne opines:

… to some degree this dichotomy of the “cultural work” and the “legal work” is just false. The work of legalizing same-sex marriages happens on the legal and cultural fronts simultaneously. And so E.D. is right when he notes that there are some cultural shifts necessary before we might expect to realize a legal victory for marriage equality. But the reason I identify legal victory as “the first step” is that I think its realization marks, in some senses, the beginning of a renewed and focused push for cultural equality. It strikes me that truly uncovering and addressing some of the more buried cultural elements of discrimination against same-sex couples is next to impossible so long as opponents have a legal basis to fall back on.

I don’t see why that follows.

An argument that rests on a simple resort to the legal status quo is not a very strong one. It’s perfectly possible (and logically necessary) to craft a compelling and winning case for marriage equality in the absence of its legality in any particular state. That’s especially true once the principle has been established somewhere in America. I think the progress we’ve made in such a short space of time leads to the opposite conclusion: that this is an area which can be won culturally before it is won legally. And the victory based on persuasion and democratic voting is deeper and more legitimate than legal fiat. The gay movement should not seek to grasp pyrrhic victory from a real one.

Start working toward the next initiative in California; preserve and protect those civil marriages already in place; move to bolster civil unions elsewhere; keep engaging and explaining. And quit thetantrum. We lost the Prop 8 battle because we deserved to. Now: move on.

George Will’s column this morning is, yet again, a must-read. Money quote:

Just eight years ago, Proposition 22 was passed, 61.4 to 38.6 percent. The much narrower victory of Proposition 8 suggests that minds are moving toward toleration of same-sex marriage. If advocates of that have the patience required by democratic persuasion, California’s ongoing conversation may end as they hope. If, however, the conversation is truncated, as Brown urges, by judicial fiat, the argument will become as embittered as the argument about abortion has been by judicial highhandedness.

I’m emotionally conflicted on this. As someone who has spent much of my adult life making the case for gay equality and for civil marriage as the sine qua non of such equality, I’d love marriage to be real in California for all Californians. But intellectually, I’m not conflicted. I’m with George.

We lost the Prop 8 battle because we ran a dreadful campaign run by the usual craven Human Rights Campaign cowards and incompetents. We deserved to lose. We do not deserve to get a do-over via court power. There are some interesting legal and constitutional arguments here that are not as easily dismissed as George might like. But as a political matter – and this is a political struggle – I hope the court decides to allow Prop 8 to stand. I do not want civil equality imposed by judicial fiat in the most populous state in America – in the face of a close initiative vote. It would be a horribly pyrrhic victory. It would taint this movement’s power and message and moral standing.

I don’t think George fully grasps what the denial of marriage equality does to the souls of gay folk, and does not appreciate how we are in fact deeply wounded by the heterosexual majority in denying us core equality. But he’s right that California already provides substantive state protections for gay couples. He’s right too that recent history suggests we can easily win this in the democratic sphere and have been making amazing gains in persuading people of the justice of the cause. To impose a victory by fiat when in a few years, if we do the work we should, we can gain a victory with deep democratic legitimacy, would be to snatch pseudo-victory from the jaws of real victory.

The court did its duty and its 2008 ruling is part of civil rights history. It need not force this now, and shouldn’t. Let’s put this to a referendum again. And let’s do the hard work to win.

A reader makes some great points:

With Larison’s argument against marriage equality, I think you miss the most fundamental flaw. Larison assumes that changes to marriage are made explicitly.  But birth control and the destigmatization of out-of-wedlock childbirth have changed the institution of marriage as profoundly as no-fault divorce laws.  Throughout the Western world, marriage is no longer invariably associated with procreation.  People have children without being married; people are married with no thought or even possibility of having children. My father & stepmother, for example, married when she was menopausal.

Historically, marriage has never been solely about procreation; it was about extending kinship ties and the concomitant financial security of an extended family.  That’s why in the west, in-laws once played such a significant role in selecting mates and in rearing the children.  In the 1700-1800s, when the idea of marriage become associated primarily with the couple, the nuclear family grew in importance, & the industrial revolution changed the role of the extended family in financial security, the nature of marriage changed significantly. Once we stopped being an agrarian society, large families went from being an economic plus to a minus, which is a major reason the push to develop effective birth control became so important.

These bottom-up changes in the definition of marriage far surpass anything proposed by gays seeking equal access to the institution. And that is why the only way to strengthen the older form of marriage so prized by social conservatives would require repealing no-fault divorce laws (not something that likely to happen, insofar as conservative men seem to enjoy their trophy second & third wives as much as liberals do), repealing all opportunities for women to earn wages independently of their husbands, outlawing any corporate policies that allow or encourage people to move away from their parents’ homes, etc.  Those kinds of explicit social, legal, and economic changes are just not going to happen. So unplanned change is going to continue in how Americans create & maintain their families. Since a certain amount of instability in family arrangements is beyond the control of conservatives, they’d better look for where they can bolster stability. Do committed relationships between adults foster more stable societies or weaken them? Surely the answer is that they foster stable societies, and for that reason, they should be not just accepted but encouraged.

Why do social conservatives not want to encourage stability, responsibility and commitment among gay Americans? What real policy do they have for gay Americans at all?

Helen Rittelmeyer has a couple of interesting posts up on marriage questions. As Helen may know, I’ve long been a believer in the biological power of gender. (See my essay on testosterone from a while back.) I think gender differences are obviously culturally created to some extent, but not all the way down. There is a profound biological difference between men and women that affects our behavior and minds in ways that are irreducible and unchangeable. It is also quite clear, it seems to me, that a marriage between a man and a woman, and between a man and a man, and between a woman and a woman, is each going to have distinct characteristics. They will each be experientially different experiences, and find different ways to endure, and have different problems to tackle. What love brings together gender complicates. I don’t need to tell heterosexuals that.

But, for that reason, I don’t believe this change will reinforce theories that gender is entirely a social construction. Nothing exposes the power of gender than seeing a subculture or an institution that is of one gender alone. And, in fact, you will find no greater manifestation of gender’s reach beyond culture than examining the differences between gay male life and lesbian life. (To throw one true cliche around: Men are generally horndogs; women generally more emotionally mature; in the US most same-sex marriages are therefore unsurprisingly lesbian and a high proportion of gay male marriages occur -again unsurprisingly – among the older and more settled – less testosterone to fuck it up.) All of which is to say a male-male couple will doubtless have a different core dynamic than female-female marriage and male-female marriage (although the demands of commitment and responsibility tug us all in the same direction). But, to return to Helen, bringing this out into the open does not disprove gender difference; it may well actually help illuminate how men and women do actually differ in terms of some core issues, such as intimacy, love, commitment, sex, and so on. (There is, of course, enormous diversity within these categories too – I’m not denying that, merely saying that the deeper, gender issues are at play as well.)

Does this mean that somehow gay marriages will alter the gender dynamics of straight ones? If you believe in gender difference as biological at its core, the answer is no. The power of gender in the lives of 97 percent of the population is never going to affected deeply by cultural acceptance of the homosexual minority. That’s why it’s odd to find conservatives so frightened by the prospect. Could the emergence of dramatically equal forms of marriage strengthen the model of male-female equality within straight marriage and undermine slightly the fundamentalist insistence on the subordination of wives? Yes. But only in so far as 1 percent of marriages change the 99 percent.

And this is surely one of the biggest blindspots of the Christianist right.

They always under-estimate the cultural power of the 99 percent with respect to the 1. Remember that that 1 percent spends most of our formative years in a heterosexual family. We know you and are more powerfully affected by you than you will ever be by us. And ponder how deeply integrative the act of marriage is, in keeping those families together, and sustaining the culture of family, binding gay people more firmly to their own homes and families and backgrounds. This is why I spent the first years of the marriage debate fighting the far left. Marriage equality threatened the gay left’s adoption of queerness as integral to being gay, revealed that gay people were already at the heart of America, not its subversive enemies, and asked straights merely to take gays not as definitively "other" but as the full and complex humans we are. Just like you.

One day, conservatives will see the tragedy of their attack on one of the most conservative and humane reforms of our time. The reason I believe this is because I think reality and time will prove it. That is why I am unafraid of the attacks and the backlash. In the end, reason will conquer fear. And reality will out-live panic.

(Photo: Justin Sullivan/Getty.)

Larison makes his case against marriage equality:

When endorsing a change, particularly one this radical, a conservative would need to show not only that it does not do harm to the institution in question but also that it actually reinforces and reinvigorates the institution. Whether or not “gay marriage” harms the institution of marriage, it certainly does not strengthen it. It is therefore undesirable because it is unnecessary to the preservation of the relevant institution, and so the appropriate conservative view is to leave well enough alone.

"My Big Fat Straight Wedding" argues the opposite. I think allowing gay couples to marry does strengthen the institution, because it ensures that everyone in a family has access to the same civil rites and rights, and so the heterosexual marriages are as affirmed as effectively as the gay ones. (It is not my experience that the straight siblings and families of gay people feel their marriages affirmed by excluding some of their own.) By removing the incentive for gay people to enter into false straight marriages, which often end in divorce or collapse, wrecked childhoods and betrayed spouses, heterosexual marriage is also strengthened. And the practical alternative to marriage equality – civil unions for straights and gays – presents a marriage-lite option for everyone that clearly does threaten traditional marriage in a way that gay marriage never could.

Serious conservatives understand that these are the three practical options on modern America: including everyone in civil marriage; creating a two-tiered system of civil marriage and then lesser civil unions for straights and gays; or simply resisting any change and using the government and law to perpetuate the stigmatization of homosexuality. If those three are the choices, my view is that the first is easily the most authentically conservative. I suspect that the impact on those states that now allow such inclusion will prove it in due course.

Joe Carter responds:

Sullivan’s opinion is in the minority of those who are familiar with the issue. As I pointed out in my previous post on this topic, the scholars who participated in The Becket Fund conference — many of whom support gay marriage — were unanimous in concluding that there would indeed be a conflict between religious liberty and same-sex marriage. To get a better understanding of what we can expect, Sullivan should read the papers of Marc Stern, Esq., General Counsel, American Jewish Congress; Professor Chai Feldblum, Georgetown University; Professor Jonathan Turley, George Washington University;  Professor Robin Wilson, University of Maryland; and Professor Doug Kmiec, Pepperdine University.

Here’s part of a post by Dale Carpenter about religious freedom and marriage equality from earlier this year:

These examples, and others given in the NPR report and by gay-marriage opponents, illustrate many things. They show that there are indeed antidiscrimination laws that apply to those who provide services to the public. They show that these antidiscrimination laws sometimes require individuals and organizations to do things that these persons and organizations claim violate their religious beliefs. They show that conflicts between antidiscrimination laws and religious belief often wind up in court, requiring judges and other decisionmakers to decide how the conflict should be resolved under the law and the Constitution. They show that on at least some occasions antidiscrimination laws are held to trump religious beliefs and that, as a result, religious individuals and organizations must sometimes decide whether to comply with the law or to stop providing services to the public. They even show that many of these disputes arise in the context of religious actors who object in particular to gay relationships.

What these examples do not show, however, is that gay marriage is "repressing" or "obliterating" religious rights or that "a storm is coming" because gay couples are marrying. With the exception of the Vermont clerk refusing to perform a civil union ceremony (about which more below), none of them involve a claim of discrimination provided by the gay couples’ status as married or as joined in a civil union or domestic partnership. All of the cases involve the application of state laws barring discrimination on the basis of sexual orientation that pre-date the official recognition of gay relationships. Neither the viability of the discrimination claim nor the viability of the religious objectors’ desired exemption turns on whether the gay couple is officially recognized. In most of the cited cases, in fact, the couples’ relationship was not recognized by the state, but adding such a status to the cases would change nothing about their legal significance.

Carter also addresses my question about civil unions:

I’ve been on record as supporting a form of civil unions for over four years. In fact, in November 2004 I wrote about it on my former blog. I noted that Dr. James Dobson and Focus on the Family Action, supported a bill in Colorado that would facilitate certain contractual obligations or legal arrangements for any two "unmarried persons who are excluded from entering into a valid marriage under the marriage laws of this state." I too supported the bill and believe that an expanded form of the proposed reciprocal-beneficiary contracts is the model for civil unions iin America.

Where Sullivan and I likely differ, however, is on the question of who should be allowed to participate in such civil unions. To me the civil unions should cover a broad range of domestic situations, such as two elderly sisters who share a home or a widowed parent of an adult child who has Down’s syndrome or other potentially disabling condition. Such legal protections should be completely desexualized and open to any two adults who desire to form a contractually dependent relationship.

This is not support for civil unions. It is a simple codification of laws that enable any two people to make legal contracts. Every heterosexual already has access to both civil marriage and any or all of these other potential relationships. Homosexuals are uniquely discriminated against. Carter’s proposal is actually designed to render gay relationships invisible and asexual. They are neither. It is designed to entrench the inferiority of the commitment of a gay person to his or her spouse in the law. It codifies inequality.

Conor Friedersdorf and Joe Carter are bickering over marriage equality. Here’s Joe:

The choice Conor and other conservatives will have to make is whether, when forced to choose, they will defend religious liberty or side with the imposition of judicially imposed same-sex marriage. Many conservatives — including cultural conservatives like me — have proposed an alternative: legal recognition of civil unions. The fact that this option is unpalatable to same-sex marriage advocates like Andrew Sullivan shows that it isn’t simply a matter of legal recognition but of shutting down any opposition to the normalization of homosexual relationships.

The last thing I would ever want to do is shut down any opposition. Anyone who knows my work knows it’s driven by a love of debate and constitutionally inviolable free exchange of ideas. And there is no conflict whatever between religious liberty and civil same-sex marriage. To make the case even faintly plausible, Carter is reduced to this:

Ministers and preachers could conceivably face conspiracy or incitement suits under these laws if, after hearing a preacher’s strongly-worded sermon against same-sex marriage, a congregant commits a hate crime against a person or business.

Yes and conceivably, all Christians will be marched into police stations for preaching Leviticus. But really: this is such patent paranoid nonsense. You won’t find many people as opposed to hate crimes laws as yours truly (see my extended and passionate case against them here), but even I can see a clear distinction between extra punishment for an actual crime based on bias and prosecuting religious speech from the pulpit. And I know no-one – even on the fringes of the furthest left – who would want to see such a thing. The whole idea is beyond paranoid – and civil equality and religious difference, strongly expressed, are completely compatible in a diverse America. And I, for one, would go to the barricades to defend the right of Christianists to denounce me and my marriage in the strongest terms imaginable.

But to see why Carter is wrong, take the existence of civil divorce.

The biggest single denomination in America – Catholicism – denies the existence of divorce, does not recognize the sacred status of re-married couples, and has life-long marriage at the core of its definition of the institution. Has the Catholic church’s religious liberty been infringed by the ubiquity of divorced couples? Are Catholic priests denied their First Amendment rights because they occasionally have to interact in the civil sphere with married couples whose marriages they deem invalid? Was the late Archbishop O’Connor of New York giving up the First Amendment by treating Ronald and Nancy Reagan’s marriage as a precious thing?

Or take the Catholic church’s insane position on the ordination of women. Gender equality is much more deeply embedded in the law than orientation equality. Has anyone actually sought to prosecute the church for being a deeply sexist institution? Have women brought lawsuits against priests because a parishioner went out and raped someone – or discriminated against them in employment? I mean: please. The whole idea is fueled by pure panic at the thought of having to live in a society in which gay citizens are treated like everyone else.

By the way, if Carter does indeed support civil unions with all the state and federal rights and responsibilities of civil marriage, it’s news to me. Does he? Or was this rhetoric? And maybe he could provide a list of his fellow evangelicals and cultural conservatives who support such an idea. It would make for fascinating reading.

After a vote in which a minority of two or three percent were denied civil equality under the law and in which many thousands of couples had their legal marriages voided, Jonah Goldberg thinks the real victims are Mormons:

It’s just that Mormons are the most vulnerable of the culturally conservative religious denominations and therefore the easiest targets for an organized campaign against religious freedom of conscience.

He cites an ad campaign that wasn’t sanctioned by the No On 8 campaign, and summarizes the wave of peaceful protests by tens of thousands across the country by picking a few of the worst incidents of the fringes as a way to discredit the civil rights movement. He cannot in any way substantiate the notion that the marriage movement amounts to "an organized campaign against religious freedom of conscience."

(If you want to read Goldberg’s real views on "the divinization of conscience," see here.) I know of no campaogn for civil marriage equality that is not emphatic that religious dissenters retain an absolute right to refuse to recognize or perform such marriages. I for one will fight for their right to dissent just as fiercely as I will fight for my own civil right to marry.

Jonah, moreover, does not mention the fact that the Mormon hierarchy planned this campaign for eleven years, that their decision to make this a public issue is unprecedented in the history of the LDS church, and that their donations made up a huge proportion of the Prop 8 forces. He doesn’t mention that their public bluff that they only care about the m-word and favor rights for gay couples has been called in Utah, where gay rights advocates are demanding the LDS church back strong civil union laws (and the LDS church is resisting). He cites no instance in which any Mormon anywhere has had any right removed or threatened by marriage equality.

Apart from that: another triumph of intellectual honesty.

He writes:

Some Republicans believe that their reputation for intolerance is costing the party the votes of the next generation of Americans. But that argument got harder to make when California, one of the most liberal states in the country, passed a ballot initiative banning same-sex marriage.

But the next generation of Californians, even after the dreadful No on 8 campaign, still favored marriage equality by huge margins. Ramesh may be right that gay-bashing can still produce some small gains for the GOP (although in most states, it cannot be banned any more than it has been), but California sure didn’t disprove the generational argument.

And assume also that banning marriage rights is popular for a while. Does the GOP not realize that it needs openly gay people in its ranks to show that it is not completely anachronistic or regional?

Where are the openly gay conservative writers and congressmen and women? Where are the openly gay governors or state reps? The trouble is: it’s almost impossible to find any gay writers or thinkers or pols on the right who oppose marriage rights. Take someone like Jamie Kirchick, a trouble-shooting neocon trouble-maker and rising star among conservative writers. But Jamie, like almost every other gay conservative, supports gay marriage. How could a gay conservative oppose it? Yes, we can have disagreements about how and why to support it. But it tells you something important that the only gay people that the right can now attract are closet-cases, harking back to a previous era. Oh, and Larry Craig and Ted Haggard.

The sad truth is: the GOP is not just opposed to marriage equality, it is deeply hostile to and uncomfortable among openly gay people in general. This isn’t true of many conservatives and Republicans in private, may of whom are completely at ease with gays. But even those who see us a equal human beings are required in public to pretend otherwise, a state of affairs that makes it impossible for an adjusted homosexual under the age of forty to feel at home there. Until the GOP enters the 21st century, as the Tories have done in Britain, they won’t look normal enough to appeal in any broad way to the next generation. And that includes the straights.