Hey, gang! Let’s put on a culture war!

by Ted on February 24, 2004

I’m reading a lot of blogs, both liberal and conservative, and seeing copious abuse rained on Bush for his support of the Federal Marriage Amendment. (See especially John Scalzi for a remarkably eloquent defense of equal rights for gays here, here, and here. Also, see the Declaration of Independence*, where it says something about how all men are created equal.)

This is right and good. I agree with Andrew and Michael that this could be a major disaster for Bush. Even DeLay is slowly distancing himself from the FMA.

But it’s entirely appropriate to ask for more from the Democratic candidates. It seems to me that they’re missing a huge opportunity. I think that these points would be fairly uncontroversial:

1. There’s a significant trend in the United States is toward legal recognition of same-sex marriage. We may very well be all-but-there by election day. Here’s Nick Confessore:

The one thing that most polling shows on the issue of gay marriage is that the prejudice against it is rapidly dying off. According to that same Gallup poll I mentioned earlier, 39 percent of those respondents aged 18-29 support full marriage rights for gays, versus 24 percent of those aged 30-49 and just 15 percent of those 50 and older. Add up those in the younger bracket who support either gay marriage or civil unions, and you’ve got 59 percent. In a decade or so, full marriage rights for gays may well command a strong majority of Americans.

Many conservatives acknowledge this, although not all.

2. Democrats have enjoyed tremendous goodwill as a result of the stance that the national leadership took in the 1960s regarding civil rights.

If I’m right, then the national Democratic leadership has an unusually clear opportunity to get on the right side of history with a clear statement about fairness and equality.

In a few years, I’ll be able to say that the left led the way on the question of gay marriage. But as of today, I won’t be able to say the same thing about the national Democratic party.

Make me proud, John. Or, if you won’t, John.

* Not the Constitution. How embarassing.

{ 51 comments }

1

Joe Carter 02.25.04 at 5:29 am

There’s a significant trend in the United States is toward legal recognition of same-sex marriage.

Um…no, there’s not. The trend is toward recognition of same-sex civil unions. Even evangelical Christians like me agree that gays and lesbians should have legal rights that they’re not afforded now.

But when you try to change the institution of marriage to make it fit a particular idealogy it is bound to inspire a backlash.

2

Joe Carter 02.25.04 at 5:36 am

I forgot to point out that in the poll cited 69% of the respondents favored civil-unions rather than marriage.

3

Ted Barlow 02.25.04 at 5:37 am

Joe,

I actually went back and forth on the wording a few times writing this. I settled on “marriage” because from a public policy perspective (as opposed to a religious perspective) I’m not sure what practical difference there is. The institution of marriage, from a religious perspective, shouldn’t be affected by Caesar’s law any more than the institution of communion.

If the “civil union” we’re envisioning carries the legal rights of heterosexual marriage, but isn’t recognized by a church, I doubt that we disagree on much. If we’re talking about a “civil union” that’s some kind of second class jerry-rig, consistent with the FMA, we probably disagree on a quite a bit.

4

CMike 02.25.04 at 5:55 am

That “all men are created equal” line sounds familiar but I cannot find it in the Constitution.

5

Alan K. Henderson 02.25.04 at 6:26 am

The gay marriage debate came at the worst possible times for the Dems. It is energizing the GOP core whose presence at the polls has eroded since 1996 (in light of the GOP’s lackluster support for reducing spending and bureaucracy), and alienating plenty of moderates. What the polls don’t tell us is how many of those moderates who support gay marriage would otherwise have any likelihood of voting for Bush.

6

TomK 02.25.04 at 7:33 am

Thanks for your support Ted.

It’s always nice to hear people in favor of their party doing the right thing.

What the democrats seem to be doing to us gay folk at the national level is treating us like a kid with down syndrome in conformist 1950. Just stay out of sight when we have this party, go to your room and play there, don’t ruin our party, and then after it’s over, we’ll take you and get you a treat.

Of course, when the election is over, us gays will be hearing “Now just wait a minute on this gay marriage stuff, we’ll get there, it’s just not a good time. Maybe after the next election.”

Well, no. I’m not supporting a candidate who doesn’t come out strongly for gay rights. The marriage issue isn’t the real issue here, though, Ted. The issue is homophobia, and this gay marriage stuff is a symptom of it. What I hear from both parties is that, yeah, they hate us faggots and want to deny us our rights, they just differ in how much they want to deny us our rights.

What most people do not realize is how big a deal this is. Gay people are at hugely increased risk of suicide and depression from homophobia. Almost 1/2 of youth suicide attempts are motivated by reactions to homophobia in gay youth. Gay men in urban areas are 3 times more likely to have tried to kill themselves then straight men in those same areas. Homophobia causes both closeted and out GLTB youth to feel huge amounts of isolation, which leads to depression and suicide. When these politicians on both sides of the aisle implicitly pander to homophobes, by opposing our civil rights, they contribute to this homophobia that causes people to kill themselves. The democrats have a huge oppritunity to smash this homophobia with a couragous stance, and they are not going to take it.

I’ve written more on this, at a new blog devoted to gay issues (gayissues.blogspot.com). The purpose of the blog is to take a look at some of the huge amount of research on homosexuals, heterosexual attitudes towards homosexuals, etc, and try and apply that work to current issues related to gays, so that the debate can be better informed by the research. I don’t have much up yet, but I invite you to take a look.

7

bad Jim 02.25.04 at 7:56 am

I think the Democratic candidates are already where they need to be, supportive of civil unions and dead set against a constitutional amendment.

A cool, calm, sensible attitude is the best pose to strike: what’s the big deal? Of course we want everybody to be happy, and that’s why we need better economic management, sanity in our foreign policy (and so on and so forth).

Since the tide’s already running our way on sexual politics, it might make better sense to emphasize other issues. Take something in the neighborhood of the right side of this issue, but hammer the ones that can harvest the votes.

8

Ralph Luker 02.25.04 at 8:15 am

Ah, how soon we forget. In the vote on the Civil Rights Act of 1964 in the House of Representatives, 79% of 176 Republicans voted in favor of the bill, while only 63% of 258 Democrats voted in favor of the bill. In the Senate, only 6 of 33 Republicans voted against the bill, while 21 of 67 Democrats voted against it. Obviously, it would never have reached President Johnson for a signature without very strong Republican support.
The effort to defeat the amendment to the Constitution is best made with a defense of the historic perogatives of states and the integrity of the Constitution itself. Make that kind of argument and many conservatives will rally in support of it. Allow the Republicans to handicap Democrat candidates with a gay rights agenda and prepare for a long haul out of power.

9

Jason McCullough 02.25.04 at 8:37 am

What is it with people and pretending the Democrats of 1964 are the same as today? Hello, *you* got all our shitty Southern “Democrats” from back then. We took your good Republicans. Ha ha.

10

Iysam 02.25.04 at 9:26 am

I must agree with Joe. Civil Union is not like marriage.
For example, if we say that same sex marriage is the same as the traditional marriage, then imagine that two couples go to an adoptiing agency, one same sex and one not. If both couples are the same under the eyes of the law, then the agency can’t discriminate, and may see itself forced to give the child to the same sex couple(for the sake of discusion, let’s say that the same sex couple arrived one hour earlier than the other couple).
I don’t think that any one disagrees with me when I say that a child must have a mom and a dad and not two moms or two dads. And I think that even a single parent is even better than two-same-sex parents.
I remember a case, with I read in Nylawyer.com, in which a judge in the state of MA. put a father in custody because he told his son about his sexual orientation and about his relationships(he was his biological father, who became a homosexual afterwards). The judge, as I remember, said that this kind of behaviour is not a healthy one for the 10 year-old kid.
So, let’s imagine what effect it would have on the child if he watches his two fathers kissing in front of him at the same age or even earlier.
But, I do agree with civil unions, they would make same sex relationships more accepted by the society.

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11

Vance Maverick 02.25.04 at 10:37 am

Iysam writes:

I don’t think that any one disagrees with me when I say…

Are you serious?

12

matt 02.25.04 at 1:28 pm

Isyam says,
“I don’t think that any one disagrees with me when I say that a child must have a mom and a dad and not two moms or two dads. And I think that even a single parent is even better than two-same-sex parents.”
Wow. This almost leaves me unable to write. I wonder if you’ve got any evidence for this, beyond predjudice? Especially I wonder what the force of the “must” is supposed to be. Really.

13

raj 02.25.04 at 1:29 pm

“If we’re talking about a “civil union” that’s some kind of second class jerry-rig, consistent with the FMA…”

You really should read the Family Massacre Amendment. Civil Unions are not consistent with the FMA. DOn’t believe everything you hear from the Religious Reich.

14

raj 02.25.04 at 1:38 pm

“In the vote on the Civil Rights Act of 1964 in the House of Representatives, 79% of 176 Republicans voted in favor of the bill, while only 63% of 258 Democrats voted in favor of the bill.”

Your knowledge of history is a little shaky. In 1964, there were really three parties: Democrats, Republicans and Dixie-crats. At that time, the Dixie-crats–who were from the south and called themselves Democrats–caucussed with the Democrats, but voted more often than not with the Republicans. That, of course, brought the percentage of apparent Democrats who voted for the CRA down and the percentage of apparent Republicans who voted for the CRA up.

Since then, of course, the parties have realigned along their idiological natures: that is, the Dixie-crats migrated to their true home in the Republican party.

15

miss representation 02.25.04 at 1:39 pm

Why is everyone in a hurry to get married? Let’s start a culture war on marriage.

I support ‘gay marriage’ because I believe it better represents fairness and equality. I support civil unions as a better cultural alternative to marriage. The dems should push for civil unions that carry all the social benefits and are equally structured without gender identification, and open them to everyone. In a generation, gay couples will refer to each other as married if they feel like, and no one will care, and straight people who are tired of the Industrial Marriage Complex will enter civil unions and we will all be better for it. If the Dems doing somethign clever, like write a big name for the legislation, and refer to it in the short hand as ‘The Gay Marriage Law,’ that wouldn’t be bad. A kind of Don’t Ask, Don’t Correct. The great thing about this issue is we can address gender inequity at the same time, which is far more radical than gay marriage. Gay Marriage gets a bunch of Jay Leno jokes about who wears a dress. Big whoop. I always avoided using marriage terminology for long term gay couples I know because I find the marriage terminology offensive.

16

DJW 02.25.04 at 2:13 pm

miss r. raises an issue you hardly see brought up much anymore, but it’s a good one. A smart, non-homophobic conservative ought to be delighted that the key issue for gay rights activists these days is marriage–it’s an indication a desire for that their (conservatives, that is) favorite form of social organization has made significant inroads into bastions of counterculturalism such as “the gay community.” Indeed, gays rushing to get married could be interpreted as a culture war victory for conservatives, although not a total one. The only conservative I’ve seen acknowledge this is David Brooks, and he did it in such a clumsy and jaw-droppingly embarrassing manner (As I recall, the first line of the editorial in question was “Anyone with multiple sexual partners in a given year is committing spiritual suicide” or word to that effect) that it hardly counts. But still.

Agreed, Ted. Right side of history. Get on it, gentleman, you’ll thank yourselves later.

(And Joe Carter, the support first goes to civil unions, then, when people realize they’ve got to be legally identical to marriage for the purposes of fairness, it slowly or quickly shifts to support for marriage–civil unions are the front edge of the trend here, but they’re not the end of it).

17

Ralph Luker 02.25.04 at 2:35 pm

raj: Don’t you wish! Both amnesia and history wash the Democrats whiter than snow.

18

Jonathan Ichikawa 02.25.04 at 2:47 pm

“All men are created equal” does not appear in the Constitution. It’s from the Declaration of Independence.

It’s a very common error, but CT folk should know better.

19

Robert Lyman 02.25.04 at 3:14 pm

Ted,

I’m not a fan of the FMA (mostly because I support gay marriage and oppose “civil unions,” for quite conservative reasons), but I wish that supporters of gay marriage could do better than simply accusing opponents of prejudice.

1) Almost all of the “benefits” of marriage are currently available to gay couples through contractual devices. There are a few exceptions–Social Security comes to mind–but almost everything supporters cite (inheritence, hosptial visits, and even health insurance in many companies and jurisdictions, etc) is available. This fight isn’t about legal rights, it’s about social acceptance. Why not be honest about that?

2) I believe in social acceptance of gays. But trying to force it through the courts is a serious mistake. Why not do the normal thing: lobby the legislature, buy TV time, etc., and change people minds, rather than breaking the law and suing? The attempt to circumvent the legislative process bothers me. That it doesn’t bother many advocates of gay marrage bothers me more.

3) Iysam’s comment about children being better off with a mother and father rather than gay parents may be correct. I am not a child psychologist, nor have I studied the literature. And, of course, even if the studies were unequivocal, that wouldn’t necessarily decide the public-policy questions. But just because something has implications unpleasant for gays doesn’t mean it’s wrong, or based on prejudice.

4) It is perfectly possible that people who oppose gay marraige do so out of the belief that it will harm society. Family law, and familial relations, have big implications for some of the tiny issues you may have heard about: poverty, crime, economic productivity, etc. Children raised in poverty, or in wealthy households with no moral compass, or in any number of bad situations, are much more likely to be poor, criminals, etc. etc. Now, I am not saying that any of these problems will be exacerbated by gay marriage; indeed, I don’t think they will be. But it is essential to engage propnents of this view, such as Stanley Kurtz, one the merits, rather than just dismissing them as a bigots.

5) Any chance we can stop comparing this to the civil rights movement of the ’50s and ’60s anytime soon (Sullivan is a major offender here)? When I see the firehoses blasting people off the courthouse steps in San Francisco, I’ll believe there’s a comparison. In the meantime, I think that black Americans face more difficulties because of their race in 2004 than do gay Americans–and I’m one of those mean conservatives who think it’s time to end affirmative action. Any comparison to 1954, or 1964, or for that matter 1974 is delusional to the point of being offensive.

20

Robert Lyman 02.25.04 at 3:19 pm

Oh, and Ted, you really should be clear about who is starting this battle in the culture war: the litigants in MA and the mayor of SF. Bush has been drawn in (on the wrong side), more’s the pity, but it wasn’t his idea to start the fight.

21

Matt Weiner 02.25.04 at 3:34 pm

(2) I believe in social acceptance of gays. But trying to force it through the courts is a serious mistake. Why not do the normal thing: lobby the legislature, buy TV time, etc., and change people minds, rather than breaking the law and suing?
Remember Loving v. Virgina? Pity they didn’t lobby the legislature instead of breaking the law as well, eh?
(3) Iysam’s comment about children being better off with a mother and father rather than gay parents may be correct.
At best in an “other things equal” sense; and even if, which I do not grant for a second, kids are on average better off with different-sex parents that does not provide one whit of support for banning gay marriage. Suppose it were discovered that kids were better off, on average, in families where the father stayed at home. Would we ban fathers from working?
And iysam’s claim that even a single parent is better is almost certainly nonsensical.
(4) It is perfectly possible that people who oppose gay marraige do so out of the belief that it will harm society. Family law, [etc.] But it is essential to engage propnents of this view, such as Stanley Kurtz, one the merits…
I might, if I knew what the merits were. How is gay marriage supposed to harm the family? I just don’t get it, one tiny little bit.
who is starting this battle in the culture war: the litigants in MA and the mayor of SF.
Again, see under Loving v. Virginia. Had anyone thrown his support behind a consitutional amendment to ban interracial marriage, would it have been an excuse that the Lovings had started the culture war? If the litigants in SF started a culture war, it’s a just one.

22

fontana labs 02.25.04 at 3:42 pm

Robert Lyman writes:
1) Almost all of the “benefits” of marriage are currently available to gay couples through contractual devices. There are a few exceptions—Social Security comes to mind—but almost everything supporters cite (inheritence, hosptial visits, and even health insurance in many companies and jurisdictions, etc) is available.
There are some rights that are very important– albeit to a small number of people– and unavailable to gay people. Immigration status comes to mind. It doesn’t apply often, but when it does, it can ruin lives.

Second, I’ve heard that legal challenges to inheritance claims, etc. are easier if the relevant parties aren’t/weren’t married. So the ‘gay equivalent’ isn’t quite as good. I’m not competent to assert this with confidence, but I’m hoping someone in the learned audience will help me out.

23

fontana labs 02.25.04 at 3:42 pm

Robert Lyman writes:
1) Almost all of the “benefits” of marriage are currently available to gay couples through contractual devices. There are a few exceptions—Social Security comes to mind—but almost everything supporters cite (inheritence, hosptial visits, and even health insurance in many companies and jurisdictions, etc) is available.
There are some rights that are very important– albeit to a small number of people– and unavailable to gay people. Immigration status comes to mind. It doesn’t apply often, but when it does, it can ruin lives.

Second, I’ve heard that legal challenges to inheritance claims, etc. are easier if the relevant parties aren’t/weren’t married. So the ‘gay equivalent’ isn’t quite as good. I’m not competent to assert this with confidence, but I’m hoping someone in the learned audience will help me out.

24

limberwulf 02.25.04 at 3:48 pm

In reference to Iysam,
Best family situation in order of preference assuming no cultural impact on the children.
1) loving heterosexual home, child has the benefit of two parents and exposure to both male and female perspectives. Men and women are different, and being gay does not change your gender, therefore does not have the full advantage of perspective difference.
2) loving homosexual home, child has the benefit of two parents with two perspectives, tho both of the same sex.
3) loving single parent home, child has a single perspective and less attention.
Andything below this would be a non-loving home which is always bad.
The reversing of points 2 and 3 would be due to either religious reasoning, wherein homosexuality is wrong and would automatically make it a bad parenting situation, or social reasoning, wherein a child with homosexual parents would find his training and situation to be viewed poorly by the community. This second is arguable to some extent, but in an ideal world where people arent so critical of each other, would not come into play.

I personally dont care to have the government involved in marriage at all. Whom I marry or have union to is not the business of the government, it should not be defined by the constitution or the courts, there should not even be any such thing as a marriage liscense. If for operation in todays society we are to argue that there must be some legal status (such as to define legal guardians of children, etc.) Then a civil union should be the extent of government involvement. Anything further would essentially be a forcing of government mandate on an otherwise religious practice, which violates seperation of church and state. miss r. makes some excellent points concerning the concept of marriage versus civil union.

25

Matt Weiner 02.25.04 at 3:49 pm

Ralph Luker is a historian himself, and if he is disagreeing with raj’s statement that Dixiecrats voted with Republicans, he’s surely right. But if he’s claiming that the anti-civil rights Democrats didn’t migrate to the GOP, I’d like to see some support. Also, how does support of the 1964 Civil Rights act break down regionally?

26

Ian 02.25.04 at 4:08 pm

How do all these right wing republicans in the US balance their libertarian view that the state should get involved in only the bare minimum with legislation on any form of marriage/civil union?

27

phil 02.25.04 at 4:12 pm

I’ll be deliberately contrarian and argue that same-sex couples make better parents on average than heterosexual ones.

Because same-sex couples have to got through fire and water to have children (adoption, reproductive technologies), there are no accidental children. Every child is wanted. The happiest and best-adjusted children are children who have two parents who desperately love them. And because of their exposure to enduring societal discrimination, children of gay couples end up more tolerant and better adjusted. Gender essentialism is hogwash.

I have no empirical evidence for this, but neither does the other side, so that’s par for the course.

28

Ted Barlow 02.25.04 at 4:13 pm

Jonathan,

You’re right, of course. How embarassing. I’ll change it.

Rob,

I have to respectfully disagree on a number of points.

1. Why can’t it be both? A number of the rights are available if a gay couple has a few thousand dollars to hire a contract lawyer. Quite a few of them aren’t. I’ve been engaged to my fiancee since 1999, and we haven’t made the time to get married yet. So you can guess about how valuable the legal benefits are to me, personally.

To a certain extent, it’s about social acceptance. Personally, it’s more about equal representation under law. Right now, the law offers a bundle of rights to straight people, while refusing to offer them to gay people. It’s a basic question of fairness to me.

2. You’re bothered by the fact that the fight has been through the courts. I can see that, but I don’t know what to do about it. In a nation of 285 million people, there are constant challenges to laws.

Every once in a while, someone goes to court to argue that the income tax or all gun restrictions are unconstitutional. If one of them succeeded, I’d probably gripe about going through the legal system, but I wouldn’t expect the anti-tax or pro-gun folks to, I dunno, give it back. It’s got an aura of spilt milk about it.

3. Iysam didn’t say that a child is better off with a mom and a dad. He said, “I don’t think that any one disagrees with me when I say that a child must have a mom and a dad and not two moms or two dads. And I think that even a single parent is even better than two-same-sex parents.” (my emphasis)

It’s not the same thing. As far as the second point, I’m not an expert either, but I did study homosexuality for my thesis, and I can point to studies that show that a kid is better off with two gay parents than one parent. (Or at least I could when I had access to academic libraries.)

4. That’s a thorny issue that I hope to get back to. For now, I’ll say that I’ve found Stanley Kurtz-style arguments, which try to argue against gay marriage without invoking either scripture or bigotry (note that I am emphatically not equating the two), to be spectacularly unpersuasive.

5. There are obvious differences between the current issue and the 1960s civil rights struggle. No dogs, no buses. Most black people can’t pass, but most gay people can. No one thinks black people can turn white, but some people think that gay people can turn straight. Jim Crow laws were much more punitive than the marriage code. No reasonable person would dispute this.

But people like me think that the underlying issues are similar. Again, equal representation under law, etc. You know the drill.

Finally, I’d disagree that Bush was forced into this. He could have pointed at the DOMA and said “that ought to take care of it”. But he came out and pre-emptively declared the DOMA unconstitutional, ahead of any theoretical activist judge.

If his hand was forced, why not simply issue an executive order to stop the marriages in San Fransisco? The proposed amendment isn’t going to stop them in a timely fashion. It will take at least a year to push it through, if it isn’t simply dropped like a Mars mission.

No, Bush wanted an issue. Well, he’s got one.

29

John Isbell 02.25.04 at 4:13 pm

Just a quick note on the smear running about Kerry on this question. Someone asked him about the MA gay marriage amendment and the media have run it as him talking about Bush’s national amendment instead. Kevin at Calpundit and Ezra at Pandagon have both picked it up and run it, sweet day for the RNC. Their threads have details. I don’t visit Atrios or Kos, but their circulation makes this worth checking, if anyone wants to.

30

rea 02.25.04 at 4:22 pm

“see under Loving v. Virginia. Had anyone thrown his support behind a consitutional amendment to ban interracial marriage, would it have been an excuse that the Lovings had started the culture war?”

The analogy to Loving v Virginia is a good one–so good, that I do not see how Loving v Virginia can survive the proposed amendmnent. After all, Loving v Virginia is an example of the Supreme Court using the equal protection clause of the federal constitution to require that the indcents of marriage be conferred upon interracial couples.

The “stealth racism” aspect of the proposed amendment will make for interesting debate if they don’t change the language before getting the amendment process started.

31

Robert Lyman 02.25.04 at 4:29 pm

Matt,

If you read Kurtz rather than dismissing him, you’d know what the “merits” were. I don’t agree with him, but don’t seem to have bothered to read his stuff. Check out NRO.

As for Loving v. Virginia, 388 U.S. 1 (1967), I have seen it, and indeed read it, and the support it lends to gay marriage is pretty weak. First off, it involved a man and a woman. However you want to spin it, a man marrying a woman is different from a man marrying a man. Interracial marriage has an ancient history; gay marriage has NO history.

Perhaps more importantly, the political context which lead black Americans to sue for their rights was one in which they had literally no power in the legislature. This was a time when registering to vote could lead to both physical and economic repriasals. Suing was also dangerous, but it only took a single person willing to take the risk rather than hundreds of thousands. As I pointed out, the notion that homosexuals are suffering from the same social and political disabilities as blacks under Jim Crow is both laughable and offensive, inasmuch as it belittles the very real suffering of of the victims of racism.

Furthermore, the racial politics of the time led courts to do all sorts of outrageous things that we would not tolerate in similar circumstances today. Courts ordered counties to raise taxes, ordered local governments to open schools, and generally intruded into life in ways that the most dedicated judicial supremicist would find problematic. They did so to remedy the unique evil of pervasive racism; they wouldn’t, and haven’t, attempted to assert such unfettered power for any other purpose. Loving is part and parcel of that context; it is, like Brown and all of its progeny, very weak legally but strong morally.

I don’t think that the denial of gay marriage rises to the level of moral travesty as did the treatment of blacks in the US 50 years ago (It doesn’t come anywhere close). As I pointed out, the lack of gay marriage for most people is not a denial of legal rights, but the denial of social acceptance. So I think that setting aside crucial legal and democratic principles in pursuit of that goal is wrong.

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Robert Lyman 02.25.04 at 4:38 pm

If his hand was forced, why not simply issue an executive order to stop the marriages in San Fransisco?

Because he doesn’t have the power to do so.

And I don’t mean to say that Bush’s “hand was forced.” I meant to say that he didn’t start it, he just joined a battle someone else started. Yes, he did it for political gain. But every time Newsom says he’ll “sacrifice his career” for gay marriage I want to slap him. I bet he’s just terrified of the SF voters.

I wish Bush had keep quiet, but it’s silly to say that he started it.

33

Ted Barlow 02.25.04 at 4:50 pm

I’ll take your word about the executive order. By the way, and I don’t mean this to sound snarky, but who said that Bush started it? I don’t think that I did.

34

Robert Lyman 02.25.04 at 4:51 pm

I’m probably conflating you with a buch of people who seem to think that he did start it.

35

Sebastian Holsclaw 02.25.04 at 5:19 pm

“I actually went back and forth on the wording a few times writing this. I settled on “marriage” because from a public policy perspective (as opposed to a religious perspective) I’m not sure what practical difference there is.”

Practical difference, pretty much none. Political difference, enormous. Which means that the difference is important.

But I think you are right, gay marriage was gaining acceptance. Which is precisely why going the judicial route was stupid. We could have gone through the legislatures, won within 5-10 years and stirred up a lot less trouble. Gay activists made the same mistake which triggered the awful Defense of Marriage Act which Clinton (yes Clinton) signed into law. When you are winning public support, sometimes it makes sense to keep quietly winning support instead of provoking a backlash with grand judicial games.

36

raj 02.25.04 at 5:23 pm

“Ralph Luker is a historian himself…”

I guess you have never heard of a “revisionist historian.”

Illustration: who was it that lauded Strom Thurmond–who undeniably was a Dixie-crat–a year or so ago for his stance in 1948, and lost his leadership position in the Senate as a result? (Not necessarily because his caucus disagreed with him–he had, however, become an embarrassment to them.) And what part of the country did he come from.

I don’t recall him being a modern-day Democrat. And I don’t recall him being a Northerner.

The Dixie-crats migrated to the Republican party. Not necessarily all of them individually, but the party certainly did.

37

TomK 02.25.04 at 5:24 pm

For a bunch of academics you guys are sure bad about digging up facts on this debate.

For questions like “Are children raised by homosexual couples worse off then heterosexual couples?” we can conduct research that looks at the question, and then get an answer.

From the 1996 court case on gay marriage in Baehr vs. Miike:

As discussed hereinabove, Defendant has failed to present sufficient credible evidence which demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage.

All studies confirm this.

Lyman says:

“However you want to spin it, a man marrying a woman is different from a man marrying a man. Interracial marriage has an ancient history; gay marriage has NO history”

I suggest you check out Same-Sex Unions in Premodern Europe by Yale historian John Boswell.

38

Ralph Luker 02.25.04 at 6:06 pm

raj revises history; I remind him of it. If you think that defeating the DMA won’t require the help of progressive Republicans, keep beating the binary drum.

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Ralph Luker 02.25.04 at 6:11 pm

Sorry. I meant to say “… defeating the FMA …”

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Joe M. 02.25.04 at 10:48 pm

Right now, the law offers a bundle of rights to straight people, while refusing to offer them to gay people. It’s a basic question of fairness to me.

This is question-begging. Consider a parallel: “Right now, the law offers a bundle of rights to married people, while refusing to offer them to cousins. It’s a basic question of fairness to me. I love my cousin and should be able to sign him up on my employer’s health insurance policy, have him visit me in the hospital, and have the government give me a “Cousinhood” certificate.”

Well, the obvious response is, “Fine, you love your cousin. That’s great. But if you want to establish that it is ‘unfair’ that the government doesn’t offer ‘Cousinhood’ certificates, you have to prove that cousinhood and marriage are really the same sort of thing.”

Same here. If you want to force the government to issue special certificates to homosexual relationships, you have to begin by proving that homosexual relationships are the same sort of thing.

That’s a more difficult question. Yes, a homosexual couple loves each other. But is that the reason the government recognizes marriage? If so, there are a lot of other relationships that involve love of some sort and that the government would have to recognize. Yes, a homosexual couple has sex with each other. But is that the reason government recognizes marriage? If so, why doesn’t the government recognize “Boyfriend/Girlfriend” relationships? “Mistress” relationships? The mere fact that people like having sex is no reason for the government to issue a certificate.

So what is it? How are homosexual couples the same as heterosexual couples in any way that demands government recognition? And more fundamentally, why should the government recognize ANY couple-relationships, any more than it officially recognizes “friendship”? I’d like to see some evidence that people are really thinking deeply about these issues, rather than relying on simple-minded and reflexive invocations of “equality” and “discrimination” and “fairness.”

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Matt Weiner 02.26.04 at 1:37 am

Rob, the point about Loving v. Virginia was not that it lends support to gay marriage, it’s that it was a challenge through the courts rather than an attempt to convince the VA state legislature that a white man and a black woman (IIRC) should be allowed to marry. Under your strictures, they would’ve had to wait–how long? Ted has made my point, anyway.
I’m not planning to read Stanley Kurtz for four reasons:
(1) I don’t have time to dredge through the NRO site.
(2) As Ted said, I’ve found these arguments spectacularly unpersuasive, and I’d need to know what’s so great about this
(3) Stanley Kurtz is insane (google “Stanley Kurtz” plus “fucking madman” to see what I mean)
(4) You also seemed to think iysam’s argument was worth considering. It was bilge. Sorry.
Ralph–
You haven’t provided a smidgen of evidence to counter Jason McCullough’s point. The national Democratic leadership got behind civil rights in the 60s, and the national Republican leadership got on the wrong side–to the extent that the former head of the RNC just won a governorship after ostentatiously refusing to distance himself from the CCC. So, what are you talking about exactly?

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Ralph Luker 02.26.04 at 5:52 am

Matt, I’m not sure what evidence you want or who the former RNC chairman/elected governor is that you are talking about.
I cited the vote on the Civil Rights Act of 1964. But take the Voting Rights Act of 1965: in the Senate, Republicans voted in favor of it by 30-2; Democrats by only 47-17. In the House of Representatives, 82% of Republicans voted in favor of it, a far higher percentage than Democratic congressman.
Beyond that, there is the whole issue of the crmovement’s utter reliance on Eisenhower-appointed federal judges in the South. They were, as a group, far more supportive of the crmovement than were appointees of either Truman or Kennedy.
The complicating issue, of course, is Barry Goldwater’s nomination for President in 1964. He was one of only 6 Republicans in the Senate to have voted against the Civil Rights Act of 1964 and, consequently, he managed to win only deep South states, which Republicans had virtually never carried before, and his home state of Arizona.
On the primary issue on this thread, take a look at Josh Chafetz’s list of Senators likely to vote for and against the FMA at Oxblog. Sure, Republicans line up in favor of it. But the five Republicans already announced against it are the best evidence that the FMA hasn’t a ghost of a chance of winning a two-thirds vote in the Senate.

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Robert Lyman 02.26.04 at 2:46 pm

Matt, my point about Loving is that it is very weak from a legal perspective–but that it was embedded in a society-wide matrix of injustice so pervasive that it justified the weak legal reasoning used to decide it. The same is true of Brown and, indeed, most of the civil-rights cases.

Absent that widespread injustice, resort to the courts seems like a simple end-run around democratic decision-making. Gay marriage differs from many similar suits seeking to invalidate laws in that the legal arguments for it are, shall we say, spectacularly unconvincing, even if the moral and policy case is quite strong.

I also think Joe M has pointed out something important here: marriage isn’t a “negative” right, in the sense that free speech is. No one is trying to forbid gay people from living together or having “weddings” or whatever. Rather, they are saying that homosexual couples should not get the positive benefits conferred by marriage. I think Joe is right that marriage exists to promote positive social ends, and the government is free to deny it to people who do not advance those ends (say, infertile couples), or indeed to abolish it altogether. I certainly would not support such policies, but I think the advocates of gay marriage have confused the right to do what you want with the “right” to have the government officially recognize what you’re doing.

I think the Supreme Court would disagree with me, though.

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Thomas 02.26.04 at 5:06 pm

Robert is right to point out that, following Lawrence, there is no liberty interest involved here. 40 years ago there were certain liberties that went along with a marital relationship–including the liberty to have sex. That liberty is now fully protected by the constitution outside of marriage. So the best way to think of marriage, it seems to me, is as a spending program where the government has a particular aim and seeks to further it.

The difference in the background legal context is one difference between the current situation and the case of Loving. Another is that the 14th amendment actually bars racial discrimination.

rea simply mistakes an analysis of the proposed amendment for the text of the amendment. While it is true that the proposed amendment would prevent an equal protection challenge from being successful in the context of gay marriage, that is something quite different from saying that no equal protection clause challenge could be brought against marriage laws.

ted, it is very big of you to allow your political opponents, who never win these social battles in court, to take these social battles to court. it might seem more attractive to these opponents if, well, they actually had a chance to win these cases, but, well, you are all for formal equality–you won’t stop them from bringing them.

as for the constitutionality of the DOMA, I’d note a couple of things: The underlying legal context has shifted since the act was passed, and the Supreme Court and the various state courts have shown themselves much more willing to assert rights for gays and lesbians (leaving aside whether the shift is correct as a matter of law). There have always been some doubts about the constitutionality of the DOMA. Those doubts were less important 8 years ago, obviously, when the chance of testing the act may have seemed remote.

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Matt Weiner 02.27.04 at 12:25 am

Ralph, I have no time for a substantive response right now, but the RNC chairman/governor of Mississippi is Haley Barbour.

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Matt Weiner 02.27.04 at 3:27 pm

Robert, I can respect that position. I don’t share your constitutional (ha ha) aversion to lawsuits, I don’t really think that the reasoning on civil-rights lawsuits is weak (I’m not a lawyer, but lots of lawyers I respect seem to disagree with you, and I have no time for originalism or literalism so let’s not go there)–but I can see how, having those opinions which I see as wrong but not unreasonable, you can think that race discrimination justified an exception but anti-gay discrimination didn’t.
Now, I think you’re understating the seriousness of anti-gay discrimination. It can still be physically unsafe to be gay–remember Matthew Shepard? And the positive right argument doesn’t carry much weight with me–if the gov’t declared that blue-eyed people could go through commitment ceremonies, etc., but couldn’t have the legal benefits of marriage, I would be hopping mad and I trust you would too no matter your eye color. But given your anti-judicial activist commitments, that shouldn’t carry much weight with you either.

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Matt Weiner 02.27.04 at 3:53 pm

Ralph, the evidence I’d like is a regional breakdown of how Democratic congresspeople voted. The Southern Democrat/other Democrat split is real–I worked for Howard Rosenthal and Keith Poole one summer, adapting for the Mac a program to display their analyses of congressional voting dramatically, and the first thing they told me was that Democrats from southern states should be displayed as S rather than D.
As Ted said, the national Democratic leadership–presidents Kennedy and Johnson–got behind civil rights; even in the face of opposition within their party. The national GOP leadership, on the other hand, decided to oppose it–the ink on the Devil’s contract here being Nixon’s 1968 Southern Strategy, deliberately playing to Southern racism. As a result, most of the racist Democrats over time shifted to the GOP. Hence, perhaps Ted should say that this GOP decision is also responsible for the good will the Democratic Party has earned over this issue–but of course it wouldn’t have been possible if Kennedy and Johnson hadn’t decided to get in front of the national party.
As for gay rights–surely you’re joking. The Oxblog list is here, and the best indication that the FMA hasn’t a ghost of the chance isn’t the five Republicans against–it’s the thirty-four Democrats against (I think I counted Jeffords but not Bayh). In fact, the thirty-four Democrats would be sufficient to deny it a two-thirds margin. The case is not analogous to black civil rights, because the national Democratic Party wouldn’t have to take on a faction of their own party in order to get behind the issue. The only Democrat who Chafetz has as “for” is Zell Miller, and he’s de facto left the party anyway. The GOP has 28 for and 5 against, not to mention George Bush for. There’s not much question as to which party is backing this amendment.

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Robert Lyman 02.27.04 at 4:55 pm

I would be hopping mad and I trust you would too no matter your eye color.

Well, of course I’d be hopping mad. That isn’t the same as saying I’d think such laws violated the Constitution (although under current doctrine, such a “facial racial classification”–blue eyes are strongly tied to race–would certainly be struck down).

A brief aside on “having no time for originalism”: everyone has time for originalism. The most radical justices–Thurgood Marshall, Breyer, Ginsberg–were and are delighted to deploy originalist arguments when they support ther favored outcome. No matter how much people disdain it, an originalist argument remains the most persuasive for many purposes.

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Ralph E. Luker 02.27.04 at 9:55 pm

Matt,
Last time I checked, there is no “S” designating a political party. No, I do _not_ jest in re the FMA. If Frist cannot deliver a united Republican vote in the Senate, FMA is doa. He can’t even deliver his fellow Tennessee Republican. Your way of reasoning doesn’t allow for the possibility of there being progressive Republicans. You’ll just have to understand if I claim the right to be.

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Matt Weiner 02.28.04 at 11:30 pm

Robert–The “hopping mad” comment wasn’t intended to get you to think that such laws would violate the Constitution, just that they would be an outrage–even if the blue-eyed faced no other legal discrimination.
Also, I realized that I’ve been confusing the issue. The argument isn’t that gay marriage violates the U.S. constitution–just that it violates various state constitutions. AFAICT, the federal constitutional issues involve full faith and credit.
Ralph–It is ahistorical to treat the Democratic Party of 1964 as fully continuous with the Democratic Party of today, without considering regional differences and the defection of the Dixiecrats to the Republicans; also to identify the actions of the party’s national leadership with that of some of its members in 1964. Jason McCullough and raj were right the first time on this.
As for the FMA, I’m not sure what you’re saying. Sure, there are Republicans who are progressive on the issue, and good for you. I don’t think I ever said that there weren’t–just that the party as a whole isn’t progressive, and the national leadership isn’t. It looks like the majority of votes against the FMA will be coming from Democrats rather than Republicans (38-5 by the current Oxblog tally). Even if Frist could deliver a united GOP caucus, it would be doomed. So it’s fair to say that Democrats rather than progressive Republicans (worthy as you are) are the decisive force in this case.

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Matt Weiner 02.28.04 at 11:32 pm

should read: bans on gay marriage violate various state constitutions.

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