Category: Marriage Equality

By Daniel Larison

They may have been unaware of it, but Matt and Ross have stumbled upon some old Orthodox Church wisdom in their rejection of fourth marriages.  While even second marriages were discouraged by the Orthodox Church, particularly in the Byzantine era, the canons did permit some flexibility and oikonomia in practice, and third marriages were allowed in extreme cases where a couple could produce no heir or in the event of a spouse’s death.  Fourth marriages, however, were utterly beyond the pale, and this applied to the emperor just as it did to everyone else. 

Leo VI had married three times without producing any offspring, which threw the succession into doubt, but the canons strictly forbad marrying a fourth time for any reason.  The emperor’s concubine, Zoe Karbonopsina, gave birth to the future heir, Constantine, but even this did not lead to a compromise, but instead resulted in the emperor being banned from the Great Church.  Once Patriarch Nicholas Mystikos, who had opposed the marriage, had been deposed, oikonomia prevailed again, but the ensuing rivalry between the factions of the two patriarchs disrupted ecclesiastical and political life in Constantinople for more than a decade.

Cross-posted at Eunomia

Matt disagrees with me about Obama’s incoherent position on marriage equality:

I can’t peer into Obama’s mind and see what he’s thinking, but this looks like a political strategy rather than a logically coherent set of statements. Contra Andrew, I don’t think chalking this up to "cowardice" is the most reasonable interpretation. If you want to see the cause of marriage equality advanced, you need sympathetic politicians to win elections. If the sympathetic politicians all say things that are politically toxic, they’ll just lose and nothing will be accomplished. But if the sympathetic politicians hew to the more politically tenable line that special anti-gay constitutional amendments are wrong and discriminatory, and also appoint the sort of progressive jurists who are likely to look sympathetically on gay rights causes, then you’ll get to equality.

I take the point, except no national politician can or will give us marriage equality. It’s a state matter, and in those debates, it’s worth holding up the incoherence of politicians’ public arguments, if only to make our case better. It’s not a huge deal to me because the work is being done outside presidential politics and seems oddly detached from it. Look how much progress we made under Bush: a fiercely Christianist president failed to pass the FMA, presided over California and Massachusetts affirming marriage equality and the abolition of all sodomy laws – laws Bush backed when Texas governor. If we can move this far under a Christianist president and, for much of Bush’s term, a Republican Congress, the future is bright.

Stephen Miller and Virginia Postrel note Obama’s relative reticence on the California initiative against marriage equality. Steve is wrong in as much as Obama has publicly opposed it, if in a mealy-mouthed fashion. But Obama, like Clinton and McCain, sadly opposes full gay equality. He’s not a foe like Bush who wanted to marginalize gay couples in the very constitution of the country. And he does support federal civil unions (although I might as well say I don’t think he’ll deliver on this).

What really hurts is that Obama’s own parents were in a marriage that was illegal in many states when he was born.

And yet he wants to perpetuate the same kind of irrational fears that once marginalized his own family. And he knows all this.

I have one small suggestion for Obama’s campaign and gay people and their families. At some point before the election, he should give a speech to some chapter of PFLAG: the Parents and Friends of Lesbians and Gays. It’s an integrative, family-oriented way to demonstrate his support for gay people, even as he resists our full equality. He needs to show that he is capable of more than lip-service. By including us in his campaign between now and November, he would show more courage than any Democrat in history.

Dale Carpenter debunks some new myths from the anti-marriage equality crowd:

With the exception of the Vermont clerk refusing to perform a civil union ceremony (about which more below), none of [the allged examples of discrimination against religion] 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. The most egregious abuse of these examples to undermine gay marriage is the Catholic Charities case, which involved the application of a 1989 antidiscrimination law. That dispute arose because the Catholic Church objected to complying with the law for the first time only after gay marriage was permitted in the state. It was a fortuitously timed conflict for gay-marriage opponents given that the state legislature was at that very moment considering a constitutional amendment to ban gay marriage.

New York State’s decision to recognize all Massachusetts’s civil marriage licenses – which make no distinction between straight and gay – propels even more momentum to the marriage equality movement. Notice what this isn’t: New York is not obliged under any precedent or DOMA to recognize marriages from other states. It has chosen to do so. Next month, California will also issue thousands of marriage licenses to couples previously barred from civil equality – and those licenses have no residency requirement. So if New York will recognize them as well, Arnold has what he wants: a massive new and lucrative wedding industry in California for all the gay couples in New York State. Once civil marriages are equally available in California, Massachusetts and New York, marriage equality will reach around 60 million Americans.

The usual suspects mocked the LAT headline on a poll showing a clear majority opposed to marriage equality in California. But Mickey may be wrong yet again. The LAT poll showed a 54 – 35 point loss for marriage rights for gay couples. It depressed me at first blush, but a little Googling revealed that most initiatives in California need a strong 55 percent minimum at this stage to survive in the fall. There’s always a drop-off apparently. So the initiative may be closer than the poll suggested. Maybe a lot closer. The first reason for optimism is a new Field poll, a little larger than the LAT poll, that shows an actual majority in favor of marriage equality: 51 – 42. The poll was taken after the court decision. This is the first ever majority for same-sex marriage in a California poll, and it’s a solid one.  What’s driving the dramatic shift upward toward support for inclusion? You guessed it:

Californians age 18-29 favor the idea of allowing gay and lesbian couples to marry by a greater than two to one margin (68% to 25%). Those in the 30-39 age group also approve of such marriages by  24 percentage points. However voters age 65 or older disapprove by a wide margin (55% to 36%). 

The next generation doesn’t simply approve of gay marriage; it does so by a massive majority. The poll suggests an Obama-Clinton-style generation gap – and an Obama candidacy this fall will surely increase the number of these demographics in the California voting this fall.

The key to the shift can be seen among independents. They fall much closer to the Democrats than to the Republicans on this issue (61 percent of independents and 67 percent of Democrats back marriage equality, while 69 percent of Republicans oppose it). And the attempt to label this reformist measure as "far left" has not caught on:

Voters who describe  themselves as middle-of-the-road in politics approve of allowing same-sex marriage 53% to 35%.

It was also striking to me that Latinos support marriage equality by 49 – 42, a narrower gap than among whites, but a remarkable achievement if it’s true. The upshot is that the initiative has only 43 percent support in this poll. Very few initiatives with that level of support eventually succeed.

But the real reason for optimism is the timing of civil marriages. It now seems likely that the first civil marriages in California will take place in June. By the fall, thousands of Californians will be married. The initiative will be asking voters to do two disruptive things: change the state constitution and retroactively impugn these already-existing marriages. This is a tall order. And it’s one more reason that the gay movement needs to understand that this referendum is the most important in the history of our civil rights struggle. To win a democratic vote in favor of marriage equality in the most populous state in the country is a victory unlike any we have had before. We need to organize, raise funds, raise awareness and not be intimidated.

Yes we can.

(Photo: Justin Sullivan/Getty.)

Enraged. Ben Wittes replies to me here:

Thanks for your thoughtful post in response to my column. Allow me to address the question you pose: "on what grounds should we call a same-sex marriage a civil union and not a civil marriage? What does it mean to have a different name?" Or, to be more precise, let me say that I think you have asked somewhat the wrong question. For as you’ve framed it, my answer is simple: We shouldn’t call it anything different. That’s why I support same-sex marriage, as opposed to civil unions or domestic partnerships. But the right question, for a court anyway, is not what voters should do. It is what voters in a democratic polity may do–in this case whether they may use a different name for the substantive contents of marriage or whether some constitutional principle forbids the polity that choice.

I can engage this question at the level of doctrine if you like, but I actually think the doctrinal discussion risks missing the forest for the trees. The forest here is the point that you acknowledge when you say in your first paragraph, "I see where he’s coming from. I certainly don’t want to alienate or insult those who want substantive state (but not federal) equality for gay couples in a separate and nearly-equal box." Now you would never say this about something that you truly regarded as a segregationist "separate but equal" institution.

When Texas tried to set up a parallel black law school instead of admitting blacks to UT, no Barack Obama of the time would have endorsed this as progress. No Ben Wittes of the time would have defended him. And no Andrew Sullivan of the time would have said, "I see where he’s coming from. I certainly don’t want to alienate or insult those who want separate but equal law school education for black people." Rather, all would have–as integrationists did–denounced it as an unacceptable guise for white supremacy.

The fact that we see progress and good intentions in steps short of marriage equality now strongly implies that a different vocabulary than conventional civil rights doctrine is appropriate for discussing them.

 

The reason is simple: We are talking here about the transformation and broadening of an institution, not–as in the civil rights cases–the question of whether this society was going to honor the promises it made to black people in ratifying the Civil War amendments. While I have no doubt of the desirability of that broadening and transformation, its pace and completeness seem to me wholly legitimate policy questions–and I respect the right of Californians to decide that the time is not yet ripe for the word "marriage" but is ripe for everything else.

Ben Wittes says that the California court declared Barack Obama a bigot. Well, he admits he’s not actually saying that, because the court didn’t. But he bridles at the notion that domestic partnerships are an invidiously "separate but equal" institution. He argues that to impute prejudice to those who support domestic partnerships as the equivalent of civil marriage is unfair. I see where he’s coming from. I certainly don’t want to alienate or insult those who want substantive state (but not federal) equality for gay couples in a separate and nearly-equal box.

But the question Ben does not answer is this: on what grounds should we call a same-sex marriage a civil union and not a civil marriage? What does it mean to have a different name? The California court went to some length to answer this question and could not come up with an answer that could square with the strong assumption of civil equality in California’s constitution. It’s not merely descriptive: we could call the two institutions "gay marriage" and "straight marriage" if we wanted to. But one is called a "domestic partnership" and one is called a "marriage". Why?

Tradition, obviously. But tradition is always threatened by any change. It was threatened by divorce, by miscegenation, by women’s equality, by the pill, by every change in civil marriage over the past centuries. Why is allowing a tiny minority to be part of this such a uniquely rupturing change that it requires another name altogether?

It really does come down to this. Are gay relationships as good as straight ones? Do they deserve the same dignity and respect and support? If you believe they do, there is no logical reason to deny the term civil marriage.

I can understand, for example, a fundamentalist simply arguing that gay relationships should be stigmatized on religious and moral grounds. If gays have to have some legal rights in a free society, they could and do say, at least we should declare as a society that they are inferior to heterosexual relationships. The different name and fewer rights do that, and that is the primary goal of the anti-marriage-equality forces. But if you have no substantive objections to equal treatment, if you have conceded the entire substance, and have no moral or religious objections to a civil act of legal equality, then the stigma of withholding the name is in some ways more intense. That last step has nothing logical or substantive supporting it – and so it becomes purely symbolic stigmatization. Its only rationale can be marginalization.

Can you imagine, for example, the lawyers in the Loving vs Virginia case fighting all the way to the Supreme Court and then saying: "Okay, we know you have issues with this. We don’t want the courts to impose inter-racial marriage on the country by fiat when huge majorities find such marriages repulsive and immoral. So we’ll call inter-racial marriages "domestic partnerships" instead."

Of course you can’t imagine that. And that speaks volumes. Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.

A reader writes:

You mention in a post today, "Haste on Marriage?" that you were conflicted about the California ruling, that perhaps the court should have  exercised judicial restraint.  On the other hand, you point out that the same could have been said 60 years ago about Perez.  On the other hand–in your best Tevye impression–you say it will be argued that Perez was based on racial discrimination which has a clear jurisprudential lineage.

Those who would argue the latter are possibly forgetting when Perez was decided.  Perez was decided in 1948 before Brown v. Board at a time when "separate but equal" was still the law of the land.  There  was jurisprudential lineage, but it was all in the opposite direction. Plessy v. Ferguson was good law at the time and stood for the proposition that it was constitutional to enforce racial segregation. Pace v. Alabama was also good law at the time.  That was a case that said a law giving far harsher penalties for interracial fornication was constitutional since the law applied equally to both races.  As the dissent in Perez noted every single court in the country that had looked at the issue of anti-miscegenation laws had declared them valid (many of the opinions going to say that they were in fact a good thing).  The idea of "strict scrutiny" for racial discrimination did exist but was very new being established by the Supreme Court of the US only four years earlier in Korematsu v. US (dealing with internment of Japanese-Americans).  But even that only applied to laws which curtailed the rights of a single race.

  The unanimous view until this time was that of Pace which said these laws didn’t single out a race and so were valid.  In fact the 10th circuit had decided four years earlier (coincidentally the same day as Korematsu came down) in Stevens v. US that Oklahoma’s laws banning interracial marriage did not violate the 14th amendment.  And unlike in this week’s case, the court in Perez was applying Federal law and thus was bound by US Supreme Court decisions including Plessy and Pace (although not bound by the 10th circuit decision).

The key to California’s decision in both 1948 and 2008 was to look more closely at an issue that had often before been rejected out of hand. In 1948 the court said that yes "separate but equal"  was the law but looked at from the point of view of the individual there was no equal substitute for one’s chosen marital partner.  In 2008 they said yes the "right to marry" had been stated before with the idea of a marriage being the union of a man and a woman, but if one looked at the reasons for why marriage was a fundamental right it was clear that they would apply equally to unions of the same sex.  In both cases it was the careful examination that led to what I believe was the correct decision on the law.  Even if you believe one or both cases were incorrectly decided, though, when it comes down to fundamental rights and minorities that have not always been treated justly, it is no virtue for a court to ignore the issue in deference to the wishes of a majority.  They should strive instead strive in good faith to apply the constitution regardless of the popularity of the decision. Those that disagree should argue on against the reasoning used and the legal principles applied and not rely on overstated cries of judicial activism.

A reader writes:

You wrote:

I stand conflicted here: my head is with restraint; my heart and my head are with equality.

I feel the same way, and my advice is — go with your heart. As a gay man of a certain age, my feeling that the California marriage decision will result in a backlash that will only set us back is eerily familiar. I remember feeling it when I first heard that some Massachusetts couples (against the wishes of gay organizations) filed suit to get married, I felt it again when the Supreme Court threw out the Texas sodomy law and when the Massachusetts Supreme Court ordered up gay marriage. In an election year, yet. In one sense, I was right to feel that way. The backlash against gay marriage in Massachusetts has resulted in constitutional bans in more than half the states.

And with what result? We’re winning!

In just the past five years, we have civil unions (remember how radical that concept was when it was first considered in Hawaii) in about a tenth of the states, opposition to gay marriage has dropped significantly in the polls, anti-discrimination bills are almost routinely passed even by Legislatures in red states and none of the presidential candidates favors the once motherhood-and-apple-pie federal marriage amendment.

What is less measurable, but far more important, is that gay people go about their lives and jobs with a casualness they didn’t enjoy even 10 years ago.

So — things are rosy? No. We could get clobbered in California in November.

But here’s the thing, Andrew, it’s the fight that’s important. If the past is any guide, the outcome won’t make any difference.

To understand how inexorable the gay movement is, put yourself in the shoes of a social conservative. For as long as they can remember, they’ve won almost every referendum, legislative vote and (despite what they fervently believe) most court decisions. The electoral victories are not even close. And yet the gay movement keeps gaining! If you’re a social conservative, gay people must seem like vampires — they keep driving a stake in our heart and yet we keep coming back.

If you’ve got a heart that strong, Andrew, you pay attention to it.