Drama Queens and the Constitution

The case of Terri Schiavo - a brain-damaged woman, grieving parents and a husband at odds with each other, and a Greek chorus of protesters asking all and sundry to intervene to keep Terri alive, and the cold, lifeless hands of the judciary - was a media dream.

And apparently a dream for drama queens in Congress and the White House, as well.

Senators, Congressmen and the President interrupted the Easter recess for a wild dash back to Washington and a midnight vote on a measure directing the federal courts to intervene "on behalf of Terri". President Bush flew back from his Texas ranch to sign the legislation in the early morning hours.

The media was riveted.

The people kept cooler heads. A CBS survey found that 82 percent of Americans thought Congress and the President should not have intervened and 74 percent percent thought they had done so to advance their political agenda. A similar ABC poll found that 70 percent of American opposed Congressional involvement in the case.

Well, so be it. But that was not, I suspect, the point of the exercise. The point was to appeal to social conservatives, the Republican base. The body politic will forget the idiocy soon enough, but the base will remember.

The only problem with all of this political theater is that Congress and the President pandered at the expense of Constitutional separation of powers and respect for the autonomy of the states in the federal system. Nobody during the Congressional discussion of the intervention argued that the had been biased or unconscientious in reaching the result that they did, nor did the President make such an argument. Social conservatives and the President simply did not like the result, and attempted to legislate a judicial decision. As Bob Barr, no friend of gays and lesbians, but a man who has managed to maintain clarity about the Constitution, put it: "I think it seriously weakens the arguments of conservatives that we respect process, that we respect precedent, that we respect the courts."

Judge Stanley F. Birch Jr., writing for the 11th Circuit Court of Appeals on March 30, issuing the final opinion in the matter, said it best:

"Any further action by our court or the district court would be improper. While the members of her family and the members of Congress have acted in a way that is both fervent and sincere the time has come for dispassionate discharge of duty."

"In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people our Constitution."

"When the fervor of political passions moves the executive and legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow."

I feel deeply for the Schiavo and Schindler families. We have put them through a living hell in recent months, and in so doing, we have diminished the value of a life lost. I pray that those who loved Terri Schiavo will be able to grieve for her out of the glare of the media circus that has enveloped them, and find peace.

But facts are facts. Congress and the President, pandering to social conservatives, endangered our Constitution. The federal courts and Judge Birch (a Bush appointee, incidentally) set them right: "... the time has come for dispassionate discharge of duty."

One Flesh?

I saw an interview on CNN Monday night. In the interview, several of the protestors outside the hospice challenged the fact that the law gave Michael Schiavo's husband, Michael Schiavo, the right to make medical decisions in her regard, instead of her father and mother, Bob and Mary Schindler.

The courts have given Michael Schiavo a lot of power to act in Terri's place and stead. The courts not only gave Michael permission to have the feeding tube removed, after independant court inquiry into the circumstances, but have allowed him to determine how often Terri is given communion, where she will be buried and whether even to allow her parents to attend the funeral. In short, Michael Schiavo, her husband, has been given the authority, as are all spouses, to act in his wife's place and stead during her incapacity.

The questions posed by the protesters are nonetheless poignant. As one put it, "You have a husband who hasn't been faithful, and he's the one the judges all listen to. There's nothing like a mother. A mother knows her child, and nobody else should be able to make that decision."

Sorry, folks.

Whether or not Michael Schiavo is a Christian example of a husband, the role of the spouse as next of kin and decision-maker has deep roots in civil law. The practice of giving the spouse decision-making authority stretches back to English common law. Marriage is viewed as a consensual contract entered into by people who have legal capacity to marry, to "forsake all others" (to take the words from most marriage ceremonies) and the law imposes on a husband or wife both the burden and the right to make far-reaching decisions for the other, if incapacitated.

What I find particularly odd about this is that conservative Christians should be making the claim that a husband should have no rights in this case. The legal tradition now separating Terri Schiavo from her parents' presumed protection has a foundation in biblical tradition, as well, and may, in our common law tradition, be based on that biblical tradition in part. Genesis 2:24: "Therefore, a man leaves his father and his mother and cleaves to his wife, and they become one flesh." When a man and woman become "one flesh", the parents drop out of the picture. That's the tradition, anyway.

It is bizarre that social conservatives seem so willing to dump legal and biblical traditions concerning marriage on the scrap heap in Terri Schiavo's case, but are so determined to insist that legal and biblical traditions are essential reasons why our country must stop gays and lesbians from marrying.

It just goes to show that you don't have to have a large mind to be foolishly inconsistent ...

AFL-CIO on FMA

In the face of determined resistance from social conservatives, the marketplace contines to respond:

Support for the Full Inclusion and Equal Rights of Lesbian, Gay, Bisexual, and Transgender People in the Workplace
March 3, 2005

The mission of the AFL-CIO is to improve the lives of working families—to bring economic justice to the workplace and social justice to our nation.

We believe that all union members are entitled to equal rights and that all of their families should have access to benefits they need and deserve. The AFL-CIO is dedicated to fighting for those rights at the bargaining table, in the voting booth, in city halls and statehouses, and on Capitol Hill.

The AFL-CIO recognizes that families come in all shapes and sizes. As our families change, our union contracts also change. For more than a generation, unions have negotiated domestic partner benefits for the workers they represent, which provide crucial access to health care, family and medical leave, and other benefits for our heterosexual families and seniors as well as lesbian, gay, bisexual, and transgender families.

Now, through the Federal Marriage Amendment (FMA), some members of the U.S. Congress want to amend the U.S. Constitution to deny important rights to lesbian, gay, bisexual and transgender families, such as the right to hospital visitation, inheritance, and health care rights for partners. On November 2, 2004, eleven states passed similar marriage amendments to their state constitutions.

In its 214-year history, the U.S. Constitution has been amended only 18 times, to grant basic civil rights. For example, we added the Bill of Rights in 1791 to guarantee some of our most basic civil and criminal rights. We also abolished slavery and gave the vote to women and young people by amending the Constitution. But we have never amended the Constitution to discriminate against any group of people by denying them rights.

The FMA and its state counterparts threaten the rights of working people by creating an environment across the nation that is hostile to the rights of domestic partners, regardless of their sexual orientation. Unions will have an increasingly difficult time making gains in domestic partner benefits, and preserving those benefits that they have already won at the table.

The AFL-CIO reiterates its longstanding support for the full inclusion and equal rights of lesbian, gay, bisexual, and transgender people in the workplace and in society.

Terri Shiavo and the FMA

On Friday, March 18, Representative Dan Lungren (Republican - California) reintroduced the Federal Marriage Amendment in the House. The proposed amendment reads:

Marriage in the United States shall consist only of a legal union of a man and a woman.

No court of the United States or of any State shall have jurisdiction to determine whether this Constitution or the constitution of any State requires that the legal incidents of marriage be conferred upon any union other than a legal union between one man and one woman.

No State shall be required to give effect to any public act, record, or judicial proceeding of any other State concerning a union between persons of the same sex that is treated as a marriage, or as having the legal incidents of marriage, under the laws of such other State.

A similar proposal — labeled "The Marriage Protection Amendment" — was reintroduced in the Senate by Wayne Allard (Republican - Colorado).

Social conservatives are again beating the "activist judges" drum to whip up enthusiasm for the amendment. And it is not just talk. This year's model of the FMA contains an express clause removing both state and federal courts from having any jurisdiction over "any union other than between one man and one woman".

As Adam Lowther, Judicial and Constitutional Analyst at Focus on the Family put it:

"A Marriage Protection Amendment to the U.S. Constitution is necessary to protect the institution of marriage. Without it, it is impossible to protection [sic] traditional marriage. ..."

"Due to the foundational importance of marriage in American society, it must be defined nationally. The only question is, Who will define marriage? Will it be tyrannical judges acting through the courts to write a radical new definition of marriage or the American people, acting through their elected legislators to pass a Marriage Protection Amendment? We believe the people should decide."

I wonder if the Terri Shiavo case will give social conservatives pause. Recent polls suggest that a vast majority of Americans, including 80% of Evangelical Christians, do not approve of the legislative and Presidential intervention we've recently seen, despite similar drum-pounding about "activist judges" starving Terri Schiavo to death. The reason, obviously, is that most Americans, including Evangelical Christians, have faced similar situations with aging parents, or know people who have faced such situations. They know that the social conservatives' rhetoric is empty in this case.

Will they make the connection in the case of same-sex marriage? It is not impossible.

Friday Notes

Ohio Fallout

Cuyahoga County Common Pleas Judge Stuart Friedman changed a felony domestic violence charge against Frederick Burk to a misdemeanor assault charge, ruling that domestic violence charges cannot be filed against unmarried heterosexual couples because of Ohio's constitutional amendment banning same-sex marriage.

Judges and others across the country have been waiting for a ruling on how the constitutional amendment would affect Ohio's domestic violence law.

Before the amendment, courts applied the domestic violence law by defining a family as including an unmarried couple living together.

The ruling has been appealed.

A second Ohio judge has ruled today that the state's constitutional ban on same-sex marriage means a law against domestic violence cannot be enforced unless the perpetrator and the victim are married.

In the latest case a Cleveland judge said that a man who beat his live-in girlfriend could not be charged because of the provision in the amendment that says the state cannot grant legal status to unmarried people living as spouses.

Until determination by a higher court, Ohio domestic violence law remains in limbo pending final determination by higher courts

Good Luck!

Utah Governor Jon Huntsman has signed a law that requires the state's Internet service providers to offer customers a way to block "adult" sites.

The bill is aimed at protecting children from online pornography, but could be used to block sites offering sex education and sexual health information.

The law requires Utah's Attorney General to maintain a database of adult sites. The law does not define pornography. I hope that the Attorney General will know it when he sees it.

A spokesperson for Utah's internet providers said that they would likely block access to "adult" sites for all users, a potential violation of the U.S. Constitution's First Amendment and the Commerce Clause.

Expect litigation.

Standing in the Schoolhouse Door

Alabama State Senator Hank Erwin Jr. (Republican-Montevallo) filed legislation that would make it illegal for a person who is gay to adopt a minor. The state already bars same-sex couples from adopting under its Marriage Protection Act.

"We need to be consistent," Erwin said in a recent interview. "If we are going to say we are a family-friendly state with traditional family values, then we need to have traditional family adoption policies."

Illusion is Everything

Maryland Senators gave preliminary approval to a bill that would establish a limited domestic partner registry and give its members the authority to make medical decisions for each other.

"It's a way of saying we understand that at the worst time of your life, it's important to have the people you love close to you," said Sen. Paula Hollinger, a registered nurse whose committee handled the bill.

She and other supporters shrugged off concerns that the bill opens the door for recognition of same-sex unions. To make the legislation more attractive to conservative lawmakers, it includes language declaring that it "may not be construed to recognize, condone, or prohibit a domestic partnership, civil union, or marriage recognized in other states or jurisdictions."

Uh, sure.

Married in all but name ...

In November 2001, about six weeks after 911, American Airlines flight 587 crashed shortly after takeoff from John F. Kennedy Airport. Among the 259 people who died in the crash was Joe Lopes, a flight attendant.

Joe and his partner, Bill Valentine, had been together 21 years. Joe and Bill were financially interdependent, had interlocking financial wills, trusts, and powers of attorney to protect themselves as best they could in lieu of marriage, and had been among the first couples to register as domestic partners in New York City.

In short, married in everything but name. And it made all the difference.

Bill filed for survivor's benefits with the New York State Workers' Compensation Board shortly after Joe was killed in the crash. He was turned down because he and Joe were not married.

With the help of Lambda Legal, Bill took the matter to court.

Lambda argued that since same-sex couples are not legally permitted to marry in New York State the court should accept the domestic partner registry as equivalent to marriage.

Yesterday, the Appellate Division of the New York Supreme Court upheld the Workers' Compensation Board: "Domestic partners do not fall within the definition of surviving spouse under workers' compensation law."

Lambda also argued that the state's decision to make workers' compensation death benefits available to the same-sex survivors of those killed in the September 11 terrorist attacks set a precedent that should extend to Joe and Bill. The court also rejected this argument: "Special legislation in response to those unprecedented terrorist attacks could rationally provide more or different compensation to families and dependents of those victims."

The situation in which Bill Valentine finds himself is not unusual. To my mind, situations like this are a compelling reason to permit same-sex marriage.

It's what's just ...

Arkansas social conservatives are crawling out of the double wides, putting on the muscle shirts, and flexing.

So far in 2005:

(1) The Arkansas House of Representatives has been a conservative launching pad for legislation to prohibit unmarried cohabiting adults from adopting children or serving as foster parents, to banish from school textbooks definitions of marriage other than between a man and a woman, and to make it illegal for a female under 18 to get an abortion without a parent's or guardian's consent.

(2) The Arkansas Senate, meanwhile voted down legislation to make the children of undocumented immigrants eligible for state-funded scholarships and in-state tuition at Arkansas colleges and universities, and passed legislation authorizing state police to enforce federal immigration laws on interstate highways in the state.

(3) The House and Senate also have passed legislation authorizing a state "In God We Trust" license plate.

No Comment: "I deeply regret that denying a Catholic funeral for John McCusker at the Immaculata has resulted in his unjust condemnation, and I apologize to the family for the anguish this has caused them. To help rectify this situation, insofar as it can be, I will preside at a Mass for the family, in memory of John, at the Immaculata. In consideration for the family, I will not be available for any further public statements on this matter." Bishop Robert Brom, Roman Catholic Diocese of San Diego, who last week forbid a Catholic funeral for John McCusker, 31, owner of a bar serving the gay and lesbian community.

Representative Roy Ragland said the legislative agenda reflects the values of the people, who gave President Bush 54% of the vote in the November election, passed an anti-gay marriage amendment 74%-26%, and gave 44% of the vote to a US Senate candidate who ran almost exclusively on an anti-gay marriage and anti-immigration agenda: "I don't believe you can say that it started here with conservatives in the legislature. It started with the conservative nature of the people of Arkansas as a defensive measure, not wanting other people's standards to be forced on them."

Republican senator Jim Holt, the fellow who ran for US Senator and the sponsor of the immigration bills in the senate and also the senate sponsor of the house adoptions bill that originally intended to bar gays from parenting children in state custody, said he felt a moral imperative and patriotic duty to protect children and reserve costly state human services programs for Arkansas citizens: "It's what's moral. It's what's just. That's what we're here for. It's not about any type of prejudice, but rather it's about priorities."

Rich Huddleston, executive director of Arkansas Advocates for Children and Families, denounced the legislation: "What we really need to have is a public debate in this state. Are we going to be for all children and families, or are we only going to be for the groups that look like us or act like us?"

Well hell, Ralph, that just goes to show how out of touch you homoliberals are. In a state where marrying your cousin instead of your sister is considered "marrying out", how could you help but confuse children and families with people "that look like us or act like us"?

ACLU Acts Up in Michigan

A lawsuit was filed Monday in Detroit by the American Civil Liberties Union of Michigan, asking the court to declare that Proposal 2, the amendment banning same-sex marriage in Michigan, does not prohibit domestic partnership benefits offered by public employers.

The move is the latest attempt to clarify the status of domestic partner benefits in Michigan.

Proposal 2, which Michigan voters approved 59%-41% in November, states that a union between one man and one woman "shall be the only agreement recognized as a marriage or similar union for any purpose."

Throughout the campaign to pass Proposal 2, Citizens for Protection of Marriage, the umbrella organization driving the constitutional amendment, consistently and repeatedly advised Michigan voters through media and campaign literature, that the intent and purpose of the proposed amendment was to limit marriage to a man and a woman and would not affect domestic partnership or same-sex partnership benefits.

But as soon as the ink was dry on Proposal 2, in a classic "bait and switch" tactic, social conservative groups comprising Citizens for Protection of Marriage initiated a series of lawsuits to invalidate domestic partnership benefits offered by public employers in the states, including the State of Michigan, the University of Michigan, Michigan State University, several counties and municipalities and local school districts.

The lawsuits tossed the state into a legal quagmire.

Last week, Michigan's Republican Attorney General, Mike Cox, issued a legal opinion saying cities and other government entities won't be able to provide benefits for same-sex partners of employees in future contracts because it would violate the terms of the amendment.

Cox wrote that the city of Kalamazoo's policy of offering health and retirement benefits to same-sex partners is banned now that voters have approved a constitutional amendment that states the union between a man and woman is the only agreement recognized as a marriage or "similar union for any purpose." Cox said that domestic partnerships are a "marriage-like" status, and given the amendment's broad language, conferring benefits recognizes the validity of same-sex relationships.

Cox's opinion was released after Governor Granholm announced in December that a "legal cloud" existed and domestic partnership benefits for employees and families would be withheld pending a judicial decision interpreting whether the language of the constitutional amendment, which limits marriage to a man and a woman in the State of Michigan, prohibits the provision of benefit packages.

State and local governmental agencies, represented by the Michigan Corrections Organization, Michigan State Employees Association, Service Employees International Union, AFSCME and UAW, had successfully bargained for a jobs benefits package that was scheduled for ratification by the State Civil Service Commission on December 15, 2004. The package included medical benefits and family medical leave for their families, including domestic partners and their children.

The ACLU lawsuit is an attempt to settle the issue.

The ACLU says in the lawsuit that US courts have held that providing health insurance to same-sex domestic partners does not constitute recognition of a marriage or a similar union and is necessary for employers to attract qualified workers.

The ACLU also argues in the suit that the intent of voters was not to deny the families of gays and lesbians health insurance or other benefits. The suit says the ballot committee that sponsored Proposal 2 "consistently and repeatedly" assured voters that the initiative was only about "protecting marriage."

In a year or two, we might have an answer.

Craven Hypocrisy

Every time I decide the social conservatives could not get more craven, the social conservatives get more craven.

Recently, Michael Schiavo won a court battle that allowed the removal of the feeding tube for his wife, Terri, who has been in a vegetative coma for about fifteen years. Sensing a political advantage, Tom Delay and social conservatives have now seized upon this tragedy and are using it to further their own political agenda. In a feeble attempt to stop the removal of the feeding tube, Delay tried to subpoena Terri to appear and testify before Congress. An obvious publicity stunt, since Terri Schiavo has not spoken in fifteen years, the attempt failed and the tube was removed. Undeterred, Delay vowed to continue to fight this fight, declaring the court’s decision a “moral and legal tragedy” and accusing the judiciary of “trying to kill Terri for 4 1/2 years." Having failed at that ploy, Delay then moved to enact legislation granting a federal court extraordinary jurisdiction over the Schiavo case.

Delay, of course, has been involved in this case for only a few weeks, after he realized that he could harvest a bit of political hay. He has no interest at all in Terri Schiavo.

It is simple, craven, hypocrisy. ABC News obtained a GOP talking points memo which explained to Senate Republicans why their involvement in the Schiavo case would be important. The talking points stated that the Schiavo case was an important moral issue and that the "pro-life base will be excited," and that it is a "great political issue -- this is a tough issue for Democrats." Notice something. Nothing at all -- nothing -- contained in the "talking points" memo is about Terri Schiavo.

If you are not disgusted, you should be.

And if you don't see the connection between the craven, politically motivated use of the Schiavo case by the Republican Party and social conservatives' endless campaign to "protect marriage", you need a brain.

I no longer believe that there is a depth of moral depravity that social conservatives will not plumb.

Random Thoughts

Random news and observations:

Sanity

Catholic News reports that Archbishop Philip Wilson of Adelaide, Australia, has given his support to the Statute Amendment (Relationships) Bill giving gay and lesbian couples access to the rights enjoyed by heterosexual couples, "so that people can be properly protected in their rights". The Bill would give equal rights to same-sex couples in areas such as property, inheritance, superannuation and medical laws, and bring South Australia in line with the rest of Australia.

Discussing the Bill at a meeting of Parliament's Social Development Committee, Archbishop Wilson emphasized the importance of protecting the union of marriage but said the law also should be extended to protect the rights of same-sex couples. "We clearly regard marriage as being a unique type of relationship . . . but at the same time we recognize the fact that there are people in society who live in other kinds of relationships. The difficulty that we find in a modern society is that we are living in a time of change. It seems to me that it's possible to (give same-sex couples equal rights) by defining the terms clearly and making sure ... we don't use ambiguous terms in the legislation."

Bait and Switch

Its official. Michigan voters bought a "bait and switch" last November.

Michigan's attorney general issued an opinion Wednesday saying cities and other government entities won't be able to provide benefits for same-sex partners of employees in future contracts because that would violate Proposal 2 - the constitutional amendment banning gay marriage.

Attorney General Mike Cox wrote that the city of Kalamazoo's policy of offering health and retirement benefits to same-sex partners is banned now that voters have approved a constitutional amendment that states the union between a man and woman is the only agreement recognized as a marriage or "similar union for any purpose."

Proposal 2 does not affect existing contracts, Cox said, because constitutional amendments generally don't operate retroactively. Voters passed the measure last November.

A Wooden Iron

Alan Keyes had this to say at a Christian rally in St. Augustine, Florida: "Marriage exists in order to respect, recognize and enforce obligations that arise from the fact of procreation."

Keyes then declared that heterosexual couples who choose not to have children do not hurt the institution, but a gay union would annihilate it: "It's like a wooden iron. It doesn't make any sense."

Well, that's true of a lot of things, Alan.

Voters Speak in the Gay State

Three candidates supporting same-sex marriage in Massachusetts won in a special primary election on Tuesday. The primary elections all but guaranteed that the three candidates will take the seats of recently retired state legislators who opposed equal marriage rights for same-sex couples: former house speaker Tom Finneran and former representatives Brian Golden and Peter Larkin.

For the seat vacated by Finneran, Linda Dorcena Forry, defeated her rivals in the race, who argued in favor of the constitutional marriage ban. With no Republican or unenrolled candidates in this race, Dorcena Forry should win the general election on April 12.

For the seat vacated by Golden, who opposed both marriage and civil unions for gays, Mike Moran won a four-candidate primary. Moran will face former assistant attorney general Tom O'Brien, an unenrolled candidate, in the general election. Like Moran, O'Brien supports of equal marriage rights.

In the race to succeed Larkin, former Pittsfield city solicitor Chris Speranzo prevailed in the Democratic primary. In the general election, it appears he will face Terry Kinnas, a backer of the amendment. But Pittsfield voters are overwhelmingly Democratic, and political observers expect Speranzo to win easily on April 12.

Divine Retribution?

A coalition of evangelical Christians from the United States vowed Wednesday to prevent an international gay pride parade from being held in Jerusalem this summer. California pastor Leo Giovinetti said hosting the 10-day WorldPride 2005 event could bring divine retribution upon Jerusalem, citing the biblical story of Sodom and Gomorra as a precedent.

Giovinetti, from San Diego, has a nationwide radio ministry in the United States that he says reaches millions of listeners -- and he is seeking a million signatures for a petition against the August festival, which he said is offensive to the values of religious people and debases the sanctity of Jerusalem. "We did not come here because we hate homosexuals. But when they said, 'I'm coming to your house and I'm going to spit on your mother, what are you going to do about it?' In order to be a good son I'm going to say, 'Mom, that's not right and I'm going to fight it.'"

The petition, drafted by Giovinetti, quotes the biblical book of Isaiah (3:8-9) as a warning against profaning the holy city: "Judah and Jerusalem will lie in ruins because they speak out against the Lord and refuse to obey him. They have offended his glorious presence among them ... They sin openly like the people of Sodom."

Not for a cat's fart ...

President Bush on Wednesday renewed his call for an amendment to the US constitution to prevent gays from marrying.

"And as a matter of fact, the court rulings are verifying why I took the position I took. And that is, I don't believe judges ought to be deciding this issue. I believe this is an issue of particular importance to the American people and should be decided by the people. And I think the best way to do so is through the constitutional process."

"And that no matter what your position is on the issue, this is an issue that should be decided by the people, not by judges. And the more the judges start deciding the issue, I'm confident the more the people will want to be involved in the issue."

Mr. President, this is, to put it politely, a load of hooey. A huge load of hooey.

The Federal Marriage Amendment is intended to take the issue of same-sex marriage out of the political process, to entrench the ban on same-sex marriage in the Constitution in order to forestall the adoption of same-sex marriage through conventional political channels.

The issue of same-sex marriage is beginning to receive serious attention and consideration in our country, and is starting to gain democratic traction in the polity as Americans become more familiar with the issue.

It has been only fairly recently -- certainly in the last two or three years -- that most Americans have begun to focus on, and think critically about, the traditional presumption that marriage should be restricted to straight couples.

A broad-based, often heated but often thoughtful, dialogue has begun. The dialogue is taking place in businesses where companies wrest with the question of employment benefits for gay and lesbian couples. The dialogue is taking place in churches and synagogues as clergy and congregations debate the morality of recognizing same-sex relationships for religious purposes. The dialogue is taking place in Congress, in state legislatures and city councils. The dialogue is taking place in meeting halls and in family gatherings. And the dialogue is reflected in constitutional litigation evaluating the claims of both proponents and opponents of same-sex marriage and a host of other issues surrounding the question.

The dialogue is not limited to a small segment of the population -- intellectuals, gays and lesbians or even political junkies. It is being discussed by millions of Americans, many of them beginning to question conventional, knee-jerk responses to the issue. More importantly, the dialogue is an inter-generational dialogue -- Americans under the age of thirty have vastly different attitudes than do Americans over the age of sixty.

The goal of the Federal Marriage Amendment -- your goal -- is to bring this dialogue to an end, cutting off debate precisely at the time when American's views concerning same-sex marriage are evolving.

You say that "this is an issue that should be decided by the people". I don't believe you. Not for the length of a cat's fart do I believe you. I think you are lying.

Nothing -- nothing at all -- could be less democratic than to entrench your view of the issue into the Constitution, cutting off the emerging national dialogue.

I know it, and you know it, too.

Marriage and Children

I recieved an e-mail in response to "And Tom, your question is ...", a reflection on the purpose of marriage: "It is not contradictory for me to say both "being there" and openness to procreation are key elements of marriage. Marriage isn't "essentially" about procreation in the sense of "strictly"; but it is "essentially" about procreation in the sense that they can't be separated without real consequences.

I am not sure exactly what distinction he was drawing between to "essentially, but not strictly" as opposed to "essentially", so I won't comment about his view until I know more.

But let me be clear about what I believe.

I do not think that civil marriage is or should be tied to procreation, in the sense that civil marriage should be reserved for couples with ability or intent to procreate. But I do think that while procreation and childrearing is largely unlinked from civil marriage in our society, civil marriage is critical to childrearing and couples who procreate and raise children should do so in civil marriages.

To put it into shorthand, children are not essential to civil marriage, but civil marriage is essential for children.

Children are not essential to civil marriage ...

Let me look at the first half of this couplet, the proposition that children are not essential to civil marriage.

I don't think that civil marriage should be tied to sexual activity. I don't think that ability or intention to "consumate the marriage" should be a precondition to civil marriage. As far as I am concerned, each couple can decide for themselves, whether or not to consummate a civil marriage -- Jackie Kennedy Onassis, apparently, chose not to do so, for example, and I think that her marriage to Aristotle Onassis was a real marriage. And each couple can decide, at any point during a civil marriage, as far as I am concerned, to be celibate, if they so choose, as many couples do. And so on. I think that we should tie civil marriage to lifelong commitment, not to sex.

And I don't think that civil marriage should be tied to procreation, either. I think that couples who cannot or choose not to have children should have the opportunity to marry, that our society benefits from marriages without children, and that our society should provide the same protection and support to those couples as to couples who can and intend to have children. I think that we should tie civil marriage to lifelong commitment, not to procreation.

As we do, of course. I did not point out the 1622 Book of Common Law marriage vows ("... to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part ...") or the laws relating to civil marriage in our country out of whimsy or mischief. I think that the vows and laws come from the same wellspring, a long, deep tradition concerning marriage in Western society, that holds that marriage is essentially about lifelong commitment, not about procreation.

We quite reasonably expect, in the normal course, that most younger heterosexual couples who enter into civil marriage can have children and probably will. But many will not. Our society does not impose a fertility test with respect to civil marriage, and permits obviously infertile couples to be married.

And the simple fact is that our culture takes joy in both kinds of civil marriage, and this has been the case for untold centuries.

When an aging couple marries, we don't say "Well, they are tearing at the foundations of marriage because they can't procreate, but we have to let you do it, I guess ...". Instead we say "Good for you! Congratulations! I hope you will enjoy many happy years together!" And we mean it. We celebrate civil marriages where the couple has no possibility of procreating.

And we do not, in our culture, say of long-term childless civil marriages, "Oh, they should be condemned for tearing at the foundations of marriage because they didn't procreate ..." or even "They don't have a real marriage ..." We might say, "How sad that they were not able to have children ...", but we all recognize the reality of their civil marriage, and we celebrate its longevity and worth as an example to married couples. We say "Congratulations!" on each anniversary. And we mean it.

If marriage were essentially about procreation, it seems to me, we would not do so. But we do.

And the reason, as everyone knows, is that while marriage will for most heretosexual younger couples involve procreation sooner or later, marriage is also, for them as well as those who cannot or choose not to procreate, about happiness, security, safety, prosperity, good health, caregiving, personal growth, sex and love -- the many ways in which couples mutually support one another to create something that is greater than either of them alone.

And is obvious to me, as well, that our society has a stake in childless civil marriages. We have a stake because the happiness, security, safety, prosperity, good health, caregiving, personal growth, sex and love that we hope for all married couples returns a benefit to the larger society if, when and to the extent that couples realize our hopes for them. Married couples live longer, are healthier, get into less trouble with the law and relieve society of a huge burden by acting as each other's primary caregivers.

I don't agree with the proposition that "procreation is essential to civil marriage". If that is what you mean when you speak about marriage being "essentially about procreation", then we disagree, and sharply.

Marriage is essential for children ...

I think, on the other hand, that we have separated marriage from childrearing in our society, and are suffering real consequences as a result. Negative, serious consequences that threaten our future.

The separation that concerns me, however, is not that we continue to celebrate marriages of fertile and infertile couples alike, as human beings always have, but because we no longer insist on a basic cultural norm: "If you want to have children, get married; if you have children, stay married."

As I look around the wreckage of our culture, I see what everyone else sees. Fewer and fewer people are getting married. Fewer and fewer people who get married stay married for any length of time. About a third of our children are born out of wedlock. A majority of our children are not being raised by both biological parents in marriage any more, but instead by single parents or by parents in second third or fourth marriages or fifth marriages.

At some level, this is unavoidable, of course. As long as human beings have been on the planet, I suppose, children have been born out of wedlock, parents died before their children were raised, husbands and wive have run out on marriages, and so on. But the level of non-marriage and broken marriage in our society (reflecting western culture, generally) seems to be remarkably high, and increasing. And it seems that this is also true for the number of children being conceived out of wedlock, assuming that you lump live births and abortions together. And, given the temporary state of most marriages in our country, we are at a point where less than half of our children are being raised by both biological parents.

This is, in my view, obviously destructive. I can't imagine anyone who looks at our society thinking otherwise.

The available studies about the welfare of our children, support my instinctive recoil.

I offer the studies with caution, because they may be showing differences that might or might not be directly related to the family structure. Many factors -- the turmoil of divorce or death of a parent, the age of the child when the child's family situation stabilized, and so on -- affect the well being of children in various family structures, so I think we have to approach the studies with real caution, using them as indicators and not necessarily as fact.

But for what they are worth, the studies strongly suggest that children raised in stable homes in which both biological parents are present and married do best. Next best are children being raised by stable, married couples, even if one of the couple is not a biological parent, and children being raised raised by gay and lesbian couples who, although not married, have been together for the long term, a decade or more. On the other hand, children who are raised by straight unmarried couples do not do nearly as well, even if the couple are the the biological parents. And quite a way down the scale are children being raised by single parents.

Again, I note the need for caution. But it seems to me, on whole, that these studies suggest that the more stable the family in which a child is raised, the better off the child. And it seems to me, on the whole, that marriage -- or a marriage equivalent, in the case of gay and lesbian parents who are in long-term, stable, commited relationships -- makes a difference.

I note, again, that it is important to approach the studies with caution. The fact that children seem to do significantly less well when raised by single parents than by couples may be as much related to the demands made on the time of single parents by having to balance work and home, as much as from the single parent structure. It might well be -- we don't know -- that single parents, if relieved of the obligation to work long hours by government support, would do as well as couples. The reason I note this is that children raised by single parents in Belgium, where single parents are given support by an extensive and child-friendly societal support system, seem to do nearly as well as children raised by couples.

Our culture has clearly got something wrong, something upside down, on a national scale.

I don't want to sound like the grumpy old man that I am, but it was not this way when I was young. We held to the idea that "If you want to have children, get married; if you have children, stay married ..." in those days. I think that it made a difference. We no longer believe that people who have kids should be married. I think that change in attitude is the core problem.

But we don't provide much support for marriages, either, in the way that we used to do. We don't expect people to stay married when they get married, and we don't offer support when the marriages get into trouble, as almost all marriages will, sooner or later, the way we used to do. We no longer, I think, care all that much about marriage.

I'd like to see that change. We are not insisting on either "If you want to have children, get married ..." or "If you have children, stay married ..." We should. We need to insist once again, as a norm in our culture, the idea that marriage is essential to childrearing, and the idea that parents should get married and stay married.

Opposition to same-sex marriage is destructive to marriage ...

As I think about marriage and children, and how important it seems to be to for children to be raised by married parents, I cannot help but observe that the loud and vehement opposition of social conservatives to same-sex marriage is both anti-marriage and anti-child, no matter how much social conservatives hide that fact behind "pro-marriage" and "pro-family" labels.

About two million kids are being raised by gay and lesbian parents in our country, based on conservative estimates from the 2000 Census data. All of these kids are being raised outside of marriages.

Social conservatives tell kids that their parents should NOT be married. No way, no how.

The social conservatives claim "Marriage is important for kids ..." But that is not what they mean, no matter what they say. What they mean is "Marriage is important for kids with straight parents, but not for kids with gay and lesbian parents ..."

And because they do, social conservatives are saying either "We don't really mean that marriage is important for kids ..." or "We really mean that marriage is important for kids, but the kids of gay and lesbian parents, don't count ..." Either way, social conservatives are ripping apart the "pro-marriage" or "pro-family" case they claim is so critical a foundation for our society's well being.

I suspect that our straight kids hear the message. But it is a very different message than "If you want to have children, get married; if you have children, stay married."

The message social conservatives send to our straight kids is much closer to "We aren't concerned about the connection between marriage and children ..." Why? Because social conservative say that marriage is important only to some kids, not all kids.

When social conservatives say that there is no connection between marriage and children for gays and lesbians -- that it is more important to stop gays and lesbians from being married than it is for their children to be raised by gay and lesbian married couples -- why should our straight kids think that there is a connection between marriage and children when it comes to their own kids?

Either children benefit from the stability of marriage or they don't. Social conservatives send a message that they don't.

"If you want to have children, get married; if you have children, stay married."

I believe in marriage. And I believe in it for everyone. And I believe that kids should be raised in marriages. And I believe it for every kid.

Unlike social conservatives.

Unlike the President of the United States.

Unlike the Pope.

And don't think that our kids miss the message.

The California Decision

San Francisco County Superior Court Judge Richard Kramer ruled that California's ban on same-sex marriage was unconstitutional, overturning a statewide proposition that passed in 2000, defining marriage as between a man and a woman. The ruling sets the legal stage for a decision by the California Supreme Court in a year or two.

The decision is the latest development in the struggle over same-sex marriage.

During the last year, lower courts in a number of other states have ruled on the question, with mixed results. Two Washington state judges ruling in separate cases held that prohibiting same-sex marriage violates Washington's constitution, and a month ago a New York ruled in favor of five gay couples who had been denied marriage licenses by New York City. Other judges have gone the other way. A New Jersey judge dismissed a lawsuit brought by seven same-sex couples fighting to have their unions legally recognized and the Indiana court of appeals in January upheld that Indiana's ban on same-sex marriage. All the cases are on appeal.

Similar cases are pending in lower courts in Connecticut and Maryland.

Despite the usual expressions of shock about "activist judges" from social conservatives, Judge Kramer's ruling was not out of the mainstream. The reasoning in his decision reflects other decisions around the country, beginning with a ruling in Hawaii in 1993, in which state high courts have ruled bans on same-sex marriage unconstitutional.

As the body of decisions grows, it is becoming clear that the cases, as they develop over the next several years, will turn on differences in the wording between state constitutions, and, more importantly, on the legal environment surrounding marriage in the various states.

The arguments surround several issues, measured against the legal environment surrounding marriage in an individual state:

(1) Tradition - "Marriage has always been understood to be between a man and a woman." The courts have uniformly ruled that tradition alone is not a rational basis on which to ban same-sex marriage.

(2) Procreation - "Marriage must be limited to heterosexual couples because the primary purpose of marriage is procreation." In theory, a state could limit marriage to fertile couples. As far as I know, no state does so or makes any reasonable attempt to do so. Because states routinely allow infertile heterosexual couples to marry, the courts have rejected the argument in most states. The Indiana decision was and exception: "The ability of opposite-sex couples to reproduce naturally and unexpectedly is the characteristic that rationally distinguishes them from same-sex couples. Regardless of whether recognizing same-sex marriage would harm this interest, neither does it further it."

(3) Childrearing - "Marriage must be limited to heterosexual couples because heterosexual couples provide the optimal environment for childrearing." The courts look closely at this issue, state-by-state. As and to the extent that state law and policy strongly favors childrearing by heterosexual couples and heterosexual couples alone, the courts are more likely to embrace the argument. In Florida, for example, the state legislature bans adoption by gays and lesbians, and this will, if and when the matter comes before a court, bolster the state's argument against same-sex marriage. In states that permit gays and lesbians to adopt and serve as foster parents, the argument for "heterosexual only" parenting is less compelling. In states that permit same-sex couples to adopt or serve as foster parents, the argument has virtually no traction.

(4) Economy - "Marriage must be limited to heterosexual couples because scare government resources should be targeted to families." The courts also look at this issue closely, state-by-state. Analysis revolves around questions of how closely marriage is tied to families under state law, and how closely the benefits tied to marriage under state law are tied to support of families.

The California case is interesting and unusual because California has a "domestic partnership" law that grants same-sex couples virtually all the rights and responsibilities of marriage, including access to divorce courts, the ability to collect child support, and the responsibility for a partner's debts. As a result, the procreation/childrearing/economy arguments against same-sex marriage had little chance of gaining legal traction.

As a result, the State of California advanced two arguments: (1) marriage has traditionally been understood to be between a man and a woman; and (2) referring to the domestic partnership law, which the State contended was a substitute for marriage, "it is not irrational for California to afford substantially all rights and benefits to same-sex couples while maintaining the common and traditional understanding of marriage."

Judge Kramer, after finding that tradition alone did not provide a rational basis for limiting marriage to opposite-sex couples, rejected the latter argument:

"If the maintenance of opposite-sex only marriage cannot be constitutionally justified due to tradition alone, the creation of a superstructure of marriage-like benefits for same-sex couples is no remedy. The issue is not whether such a system is "irrational" ... Such reasonableness does not substitute for the need to find a rational basis for denying same-sex marriage in the first place."

"It is true that marriage-like benefits legislation is relevant to the constitutional question here. In determining whether a rational basis for a classification exists, the court must consider the nature of the class being singled out and must view the operation of the questioned legislation in the context of other legislation defining the rights of persons similarly situated (Brown v. Merlo (1973) 8 Cal.3d 855, 861-82."

"In this context, the existence of marriage-like rights without marriage actually cuts against the existence of a rational government interest for denying marriage to same-sex couples. California's enactment of rights for same-sex couples belies any argument that the State would have a legitimate interest in denying marriage in order to preclude same-sex couples from acquiring some marital right that might somehow be inappropriate for them to have. No party has argued the existence of such an inappropriate right, and this court cannot think of one. Thus, the State's position that California has granted marriage-like rights to same-sex couples points to the conclusion that there is no rational state interest in denying them the rites of marriage as well."

Well, we will see how this all turns out in a couple of years.

Would you like cheese with that ...

Opponents of civil unions in Connecticut are whining that the state could lose as much as $1 million per year -- almost all from lost death taxes -- if civil unions for same-sex couples become law in that state. Under state law, wives and husbands inherit property from their spouses tax-free, but unmarried partners are required to pay death taxes. The death tax is scheduled for elimination in 2008 so the issue will become irrelevant in three years.

Update: Economics professors at the University of Connecticut have pointed out that the methodology of the study is flawed, both because it overestimates the number of gay and lesbians couples who are likely to marry during the three-year period in question, and because it fails to take into account revenue gains (for example, from sales taxes) attendant to same-sex marriage and/or civil union ceremonies. The economists estimate a net gain of $2 million per year if civil unions become law and $3 million per year if same-sex marriages become law.

But what is really telling is this: the state budget for the current fiscal year is more than $14 billion, or 14,000 million dollars.

Would you like cheese with that whine?

Televangelista

It has been the week of the televangelista.

I stumbled into the CBC broadcast of "Do You Believe in Miracles" while I was in Detroit, and last night I watched "The Eyes of Tammy Faye". The combination was, uh, well, humm, something to behold.

"Do You Believe in Miracles" is a Fifth Estate (roughly the Canadian equivalent of "60 Minutes", but more interesting) expose of Benny Hinn, aka "Pastor Benny", the most popular televangelista of the present day.

Pastor Benny travels the world conducting miracle healing crusades in which scores of deaf, dumb, blind and crippled are "Slain in the Lord" in rock concert style extravaganzas. Pastor Benny is a proponent of the Prosperity Gospel or the Word of Faith movement, which seems to be an outgrowth of Reverend Ike. "Prosperity Gospel" adherents believe that faith works as a mighty power or force, through which a believer can obtain health, wealth, or success. However -- and this is the catch -- the force is only released through their faith, expressed by sowing monetary seed into Pastor Benny's ministry. No prayer hankies for Pastor Benny. Cash on the barrelhead instead.

Pastor Benny keeps is financial cards close to his chest, and "Do You Believe in Miracles" is an exploration of Hinn's financial practices. The Fifth Estate asked Roddy Allan, a forensic accountant, to review the ministry's expense and travel records. The upshot? "I'm a mere bean counter, but it would be hard to persuade me that you had to incur that kind of expense in order to accomplish a business objective."

"The Eyes of Tammy Faye" is a history, of sorts, of Tammy Faye, her former husband, Jim Bakker, and the rise and fall of their television ministry, Praise the Lord. Jim and Tammy were instrumental in creating television Christianity, and PTL was the most successful televangelista network of its time -- the first to use satellites to "broadcast 24 hours a day until the Second Coming" and the first and only to build a Christian theme camp, a Disneyland featuring Jesus and his Apostles instead of Mickey, Donald and Goofy.

But Jim and Tammy fell hard. The crash was a big story in the late 1980's, complete with financial scandal, accusations of homosexuality, mafia-like power plays within the televangelista community. Jim and Tammy found themselves crucified in the court of public opinion for their greed and alleged corruption, Tammy Faye ended up at the Betty Ford Clinic, and Jim was imprisoned.

"The Eyes of Tammy Faye" shows the dark side of the televangelista, and focuses, particularly, on the deeds of my old pal Jerry Falwell, who found time to stop worrying about Tinkie Winkie long enough take over PTL. "The Eyes of Tammy Faye" claims that Falwell promised help and support, then denounced the Bakkers in very personal and ugly terms, staged a coup, and needlessly forced PTL into bankruptcy. All, it seems, over the satellites.

The film claims that the accusations that they embezzled money from their ministry were completely false, and that although they lived well, they lived no better than any other televangelists running multi-million dollar ministries.

"The Eyes of Tammy Faye" was something of a shock for me. Tammy Faye emerges as a sympathetic, warm, emotionally vibrant woman, snared and then freed by the backstabbing world of Christian broadcasting. By alternating the intense camp of the televanelista -- and Tammy Faye is way beyond mere camp -- with the cold eyes and chilling backroom maneuvering that led to the Bakkers' fall from grace, "The Eyes of Tammy Faye" tells a compelling, absorbing story.

Anyway, whatever you think about Tammy Faye -- and it is hard to think much, or at least much that makes any sense about a woman who once spent three days crying over a dead dog on television before trying to raise the mutt from the dead -- her outsized personality — and fabulous penchant for queening it up is mixed with sharp insight, personal tolerance, balance and a wry sense of the absurd. It is impossible to watch "The Eyes of Tammy Faye" without being touched by Tammy Faye -- her total self-absorption, occasional bouts of stunning naivete and zesty emotional tangents, not to mention utter and complete illogic. But over the course of the movie, Tammy Faye moved from self-caricature to human being, and I ended up liking her for all her faults.

I'll take her any day to the rest of the crowd.

Good for you ... uh ... No

Another question from a friend:

"Why do you insist upon marriage rather than civil unions?"

It is a fair question.

It has been a rough year for gays and lesbians on the marriage equality front.

Social conservatives pushed through "protect marriage" amendments in eleven states last November, with more on the way. The President of the United States found it important enough to stop what he was doing in the middle of a war and call a special, single-issue press conference to insist that marriage must be "protected" by excluding gays and lesbians. The Pope recently published a book in which he opined by people like me, who favor same-sex marriage, are part of an "ideology of evil", and prominent Catholic bishops are advocating that the government use "coercive power to proscribe or curtail" homosexuals. All that, and we haven't gotten around to James Dobson. The forces of darkness loom.

But, at one and the same time, civil unions have become a popular compromise, marriage (or at least marriage-lite) without the name, the compromise that should satisfy everyone except the most rapid on the Religious Right.

California's legislature enacted "legal equivalent" civil unions last fall, effective last January. Connecticut seems well on the way to passing "legal equivalent" civil unions -- even the Republican Governor has come out in support of civil unions. And New York will probably be next, with New Jersey (which already has a limited civil union law on the books) following on shortly.

Update: I was thinking about Ann Coulter last night. No, not in that way. About what she said and what is behind it. Specifically, I was wondering why social conservatives are so threatened by the fact that they have gay and lesbian kids. The usual percentage of them do, of course, ranging from Dick Cheney to Phyllis Schlafly to Alan Keyes to Newt Gingrich to Randall Terry. I don't know what sends them into such a frenzy about it, of course, but I think the key is that social conservatives actually believe that gays and lesbians make a choice to be gay and lesbian, or to "adopt the gay and lesbian lifestyle", as they put it, and if sexual orientation is a choice -- a bad choice -- made by their kids, then they raised their kids badly. In short, it is shame that drives the silence. I am reminded of a truth spoken in 12-Step circles: "You are only as sick as your secrets."

Within a decade, if gays and lesbians give up on marriage, civil unions will probably be available in ten or fifteen states. And there is every likelihood that the federal government will give some recognition to state civil unions, as well. Not so marriage. Social conservatives will fight marriage to the last ditch, everywhere and anywhere. Marriage is going to be an uphill, hard battle for two or three decades, with an uncertain outcome.

So why my stiff neck? Why do I insist on marriage rather than civil unions?

I insist on marriage for five reasons:

First, I was married almost 30 years. I understand marriage and I understand marriage's value to our society. I would like gays and lesbians to share in the core and fundamental experience of marriage -- both the joys and the sorrows, both the benefits and the obligations, and all the cultural expectations.

Second, I think that civil unions are "marriage lite", a legal fiction, designed for the sole purpose of being "not marriage". I think that we diminish our status as a just society when we discriminate in fact while maintaining the fiction that we are not discriminating. I've written about this on this blog , so I won't repeat myself, but you can take a look at "Why we are queasy ..." if you want to take a second look.

Third, I think that trying to maintain two or more parallel but identical structures of marriage and legally equivalent civil unions is a waste of government resources, something that is unnecessarily costly and something that unnecessarily diverts scare resources from other, more pressing needs.

Fourth, I think that the gay and lesbian couples who are most directly involved want marriage rather than civil unions. The marriage movement in the GBLT community has always been a bottom up movement, driven by gay and lesbian couples, dragging along a reluctant leadership ("Straighty Cats") and this is not going to change. The push for marriage is not going to be quelled because civil unions are, at best, a half measure.

Fifth, and above all, though, I believe in marriage, and I think civil unions weaken marriage. I do not think that we are doing our society a favor by weakening marriage. Marriage is in more than enough trouble already, and, to paraphrase Mae West, "Gayness had nothing to do with it ..."

We diminish marriage as the standard -- as in, "if you want to live together, then get married" -- by offering a smorgasboard of "marriage lite" alternatives to our citizens.

Several European countries have taken this route. The result has been that couples are opting for "marriage lite" in high numbers, and marriage rates are falling. Why buy the whole pig when all you want is the bacon?

We are creating a smorgasboard in this country as well. And we will see a lot of our citizens buying bacon.

We have two forms of civil marriage (covenant marriage and regular civil marriage) available in three states, Arkansas, Louisiana and Arizona. We have marriage and "marriage lite" with all the attendant legal benefits and obligations of civil marriage in two additional states, Vermont and California, and soon to be Connecticut, it seems. And we have various forms of "near-marriage-lite" (government domestic partnership benefits) in a number of other states. And major private employers offer "marriage lite" domestic partner benefits in all states to couples, both straight and gay/lesbian, who cannot or chose no to marry. And common law marriage is available in most states. And, of course, couples can always just shack up, as it used to be called before it became an acceptable social norm.

Depending on where you live, assuming you are straight, you can select from most or all of the following menu offerings:

(1) Covenant Marriage (full marriage benefits, super-marriage obligations)
(2) Marriage (full marriage rights, full marriage obligations)
(3) Full Civil Union (full marriage rights, full marriage obligations)
(4) Limited Civil Union (limited marriage rights, limited marriage obligations)
(5) Cohabitation with Employer Domestic Partner Benefits (some marriage rights, no obligations)
(6) Cohabitation without Employer Domestic Partner Benefits (no rights, no obligations)

Contrast this with Massachusetts, in which "marriage lite" has been rapidly disappearing now that gay and lesbian couples can marry. In Massachusetts, a couple, straight or gay/lesbian, now has two basic choices:

(1) Marriage (full marriage rights, full marriage obligations)
(2) Cohabitation without Employer Domestic Partner Benefits (no rights, no obligations)

Which menu best "protects marriage" as the societal standard? Which says "if you want to live together, then get married" more clearly?

Are we really going to better off if we make marriage a menu item, one among many, as we seem hell-bent on doing? I don't think so. And that is why I insist on marriage rather than civil unions.

I don't care all that much from a legal perspective whether our "single system" is marriage or civil unions. Rights are rights, and obligations are obligations. But I do care from a social policy perspective.

So good for you, California. And good for you, too, Connecticut. If I'm not clapping too loudly, it is because I'm afraid that we are in danger of tossing the baby with the bathwater.

Suffer unto Him ...

You know, there are days when I just grit my teeth.

Legislation that would have helped curb bullying and harassment of gay and lesbian kids in Iowa schools died Thursday night after a week of stonewalling by Republican Senators opposed to the inclusion of gays and lesbians in anti-bullying legislation. The measure prohibited students from harassing others for race, ethnicity and sexuality and was strongly supported by school administrators and teachers.

The issue has been scheduled to be debated in the Senate Education Committee on Monday, but Senator Paul McKinley, (R-Chariton), a head of the panel, struck it from the list of measures to be considered. McKinley said he's all for safe schools, but said he doesn't agree with including a list of specific groups to be protected. Yeah, right, my ass. If the list had consisted of "ignorant fundamentalists", the m-fuffer would have been spraying around the legislature like a tomcat on drugs to get it passed.

Thursday night the clock ran out and the legislation died without debate in the Senate. Bills which did not receive committee approval by the Thursday deadline are not eligible for debate this year, and so the measure is dead.

Gay and lesbian kids have a suicide rate that is six times higher than straight kids. The suicide rate directly correlates to harassment in schools and in peer groups. And ignorant creeps like Paul McKinley don't give a tinker's damn. What is important to Paul McKinley and to social conservatives is that our society does nothing -- anything at all -- that might suggest that a gay or lesbian kid is worth more concern than a bug on the sidewalk.

And Tom, your question is ...

A thought about a question I was asked by a friend:

"And Tom, your question is why gays should not be allowed to marry?"

That is exactly my question, asked in the context of civil marriage, not religious marriage.

The question needs to be answered in two interrelated but not interlocking, contexts. The first is the legal arena, and the second is the social policy arena.

The legal question is relatively straightforward, governed by the Constitution. The Constitution requires that the government treat all citizens equally unless the government has a strong social policy reason to treat citzens differently. With respect to marriage, the courts have held, in many decisions over the years, that marriage is a fundamental right of citizens and that the government cannot withhold the right to marry without strong social policy justification, and so the Constitutional question is whether the government has strong social policy justification to treat straights and gays differently.

The social policy question is governed by the "common welfare", as in the preamble to the Constitution ("... in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity ...").

Modern Americans, hold, as did our founders, widely different views of whether, how and how much the government should regulate the lives of individual citizens in order to ensure the common welfare, and you will get different perspectives from different philosophical camps on the issue.

Sidebar: A friend sent this along this morning ... The 2004 US Presidential Election Summed Up in Two Lines: The Democrats' mistake was in assuming a disastrous war and national bankruptcy would be of concern to the electorate. The Republicans saw, correctly, that the chief concern of the electorate is to keep married gay couples from having abortions.

We can, as a society, discuss the proper boundaries of government regulation, as our citizens always have. But whatever the boundaries that are established, citizens must be treated equally with respect to those boundaries, unless we have a rational, clear and compelling reason not to do so. That is the law.

Within that context, let's look at civil marriage.

The boundaries of civil marriage are embodied in the requirements of the various states for obtaining a marriage license. The requirements are relatively uniform from state to state, and are: (1) an unmarried (2) late teen or adult (3) man and woman, (4) with legal capacity, (5) who are not closely related by blood, and (6) who voluntarily consent to be married.

That's it. You can be good or bad and still get married. You can be suited to marriage or not. You can be prudent or reckless, responsible or feckless. You can be a convicted felon, spouse beater, child abuser, pedophile, young, old, a serial polygamist with five or six prior marriages behind you -- just about anything, including a convicted murderer on his way to execution -- and get married in this country.

And, I should note, the government does not inquire into the purpose of marriage, define the purpose of marriage or establish any requirements for "how" married couples should conduct their lives.

The married couple can live together or apart, in the same house or different countries, have children or not, consumate the marriage or not, have an "open" marriage or a monogamous marriage, see each other or not, speak to each other or not, be kind to one another or beat one another bloody, and so on. None of these things (living apart, beating each other, adultery, celibacy, a decision not have children, and so on) invalidates or ends the marriage, although each might provide a grounds for termination (adultery, abandonment and so on) if either spouse chooses to make an issue of it in a divorce proceeding. But none of them are requirements for marriage, or defined in our laws as essential to marriage. Marriage is, with a single exception, what the married couple chooses to make it.

The single exception is support: married persons are obligated, in various ways in the various states, to support one another during the course of the marriage, and often thereafter. So at civil law, as currently established, it would seem to me that the primary societal purpose of marriage -- and the sole purpose of marriage as defined by law -- is to provide mutual support during the course of the marriage.

The legal requirement of support is consistent with our cultural understanding of marriage, as well. We have, for centuries, allowed infertile couples to marry, and been happy to see them marry. Why? Because we understand, culturally, that marriage is essentially about mutual support. Think, for a moment, about the marriage vows we can all recite in our head "... to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part ...". What is this about, if not about mutual support?

Within that context -- the context that marriage is primarily about mutual support -- the question that I am asking is whether the third requirement for civil marriage (man and woman) is a necessary condition, and why the third requirement should not be "man and woman, or man and man, or woman and woman" -- in simplest terms, "two persons".

Sidebar: Tennessee State Representative Mike Turner (Democrat-Old Hickory) on divorce rates in the state: "Heterosexual marriage is almost like a Dixie cup, you drink it and you throw it away. It's a sad day for me and it's a sad day for the people of this state."

The Constitution, I think, requires us to ask that question (and the question is being asked in courts all over the country, regardless of what I think, so what I think is moot).

We are asked to decide whether or not sufficiently strong social policy reasons exist to permit the government to exclude gays and lesbians from civil marriage to pass Constitutional muster.

I obviously believe that no sufficient reasons exist, given the boundaries of marriage and the laws relating to marriage, and so far, all four state Supreme Courts who have considered that question under state constitution "equal protection" clauses have agreed.

But that analysis does not mean that we could not, through legislative or constitutional means, redfine civil marriage to change the boundaries of civil marriage. And some citizens of our country honestly believe that we should redefine civil marriage to redraw the boundaries in such a way as to include straights and exclude gays.

We could redraw the boundaries by fiat, of course, and a number of states have done exactly that, amending their state constitutions to expressly exclude gays and lesbians from civil marriage. Fiat will work, in the short term, anyway.

But it might make more sense as a society, to redraw the boundaries along social policy lines, if we are serious about redrawing the boundaries. We could, for example, declare that the purpose of marriage is procreation. Social conservatives seem to favor this approach. Redefining marriage in this way would permit marriage only for couples who could reasonably be expected to procreate -- young, healthy straight couples with normal and functioning sexual equipment.

Such a redefinition would, of course, allow the government to prohibit same-sex marriage. But it would require, to maintain equal treatment of citizens, that the government prohibit civil marriage in all cases where procreation was not a possibility -- gay and lesbian couples, older straight couples and other infertile couples.

What we cannot, in my view, do, is create two classes of citizens who cannot procreate (same-sex couples, on the one hand, and straight couples who cannot procreate, on the other) and allow one class to marry but not the other. To do otherwise would no pass constitutional muster.

Redefining marriage is a serious step, as everyone recognizes. Any change in marriage is a serious step. If it were not, we wouldn't be having the national debate we are now having.

But there is a real difference between what the two sides are asking for with respect to marriage.

Gays and lesbians are asking that the boundaries of marriage be extended to same-sex couples, not that the purpose of marriage be redefined. Extending the boundaries of marriage to include same-sex couples will not change the character of marriage, as a societal institution in which two adults vow to provide lifelong mutual support for one another.

Social conservatives are asking that the purpose of marriage be redefined. Asking that the purpose of marriage be redefined is a much more sweeping change in marriage than extending the boundaries to include same-sex couples, and we should be very careful about it. So before we go about redefining marriage, I think we should stop and think about it.

My own view is that the traditional purpose of marriage (mutual support) is the proper societal purpose of marriage, and that redrawing the boundaries of marriage so as to eliminate so many of the marriages we now celebrate would be harmful to the common welfare.

Garbage

Ann Coulter, a social conservative pundit, falsely accused The New York Times of "gratuitously outed the children of prominent conservatives " in her March 3 syndicated column.

Ann was referring to an Op-Ed piece by Dan Savage (who writes one of the funniest sex advice columns in captivity). She had this to say:

"In addition to an attack on a website reporter for supposedly operating a gay escort service and thereby cutting into the business of the Village Voice, another Times op-ed article the same day gratuitously outed the children of prominent conservatives."

"These are not public figures. No one knows who they are apart from their famous parents. I didn't even know most of these conservatives had children until the Times outed them."

Coulter's claim is, of course, absurd.

Savage identified three prominent conservatives with homosexual family members: former Illinois Republican Senate candidate Alan Keyes, whose daughter Maya is a lesbian; former Speaker of the House Newt Gingrich, whose half-sister Candace is a lesbian; and Christian activist Randall Terry, whose adopted son Jamiel is gay. All are out in public and are active in gays rights causes. Maya Keyes spoke at an Equality Maryland rally shortly after her father tossed her out of the house and has been on the interview circuit since she came out. Candice Gingrich is an activist who works as a lobbyist for AIDS organizations. Jamiel Terry publically revealed his sexuality in a May 2004 Out magazine interview, his father, Randall Terry, wrote an essay titled "My Prodigal Son, the Homosexual," which has been widely circulated in conservative circles.

But what is really interesting is that Coulter went on to say:

"Outing relatives of conservatives is nothing but ruthless intimidation: Stop opposing our agenda – or your kids will get it. This is a behavioral trope of all totalitarians: Force children to testify against their parents to gain control by fear."

"It's bad enough when liberals respond to a conservative argument by digging through the conservative's garbage cans; it's another thing entirely when they start digging through the garbage cans of the conservative's family members. (On behalf of conservatives everywhere, I say: Stay out of our gay relatives' cans.)"

Intimidation? Forcing children to testify against their parents? Digging through conservative's garbage cans?

Coulter's comments speak volumes, but not about Dan Savage.

Stickers, Anyone?

The Nebo School District in southern Utah has a problem that may foreshadow events in Alabama, Texas and other states that need to avoid any hint that homosexuality is a fact of life in order to placate religious conservatives.

The introductory psychology high school textbook the district uses is out of date, so district officials have been looking for a new textbook. According to curriculum director Nedra Call, the problem is homosexuality is not properly presented in modern textbooks. The district has a simple requirement in this respect: "Our policy is that it will not be taught unless it is teaching the negative consequences thereof."

High school psychology teacher Priscilla Leek says that most of the textbooks now available contain "small amounts—a paragraph or a couple of pages" of material on homosexuality. And I guess it should come as no surprise, given the current psychological consensus concerning homosexuality, that the material is not negative enough to meet the district's standards.

It has been thirty years since the American Psychiatric Association and the American Psychological Association stopped treating homosexuality as a mental disorder. Both organizations now actively denounce stigmatization or discrimination against homosexuals for any reason; both have passed resolutions supporting same-sex marriage or civil unions.

Sidebar: Damien's Spot has a comment worth reading about the Herren controversy in Virginia. Herren, a gay mystery writer, was disinvited to speak about writing to students after religious conservative parents mounted a campaign to keep him from speaking.

According to news reports, a number of solutions are being considered. One is to require parental permission in writing before a student can enroll in a psychology course. This policy is already in force for Advanced Placement Psychology students in Nebo's three high schools; the AP textbook mentions homosexuality but does not condemn it.

Another option, according to Leek, is to dispense with a textbook entirely. "I can find current research material, selected readings and we have the Internet," she says.

Has anyone thought of a sticker denouncing evolution (no ... homosexuality ...)? Or cutting out the offending pages?

Minority Couples; Minority Communities

The National Gay and Lesbian Task Force recently released two studies of gay and lesbian couples in minority communities.

Not surprisingly, the studies show that gay and lesbians couples in those communities reflect the larger communities.

A study of same-sex Hispanic couples in Florida demonstrates that Hispanic gay and lesbian couples have many of the same stable, pro-family characteristics as non-gay Hispanics despite having fewer family rights.

The study of 9,000 same-sex Hispanic couples, drawn from 2000 Census data, indicates that the gay couples are nearly as likely as married opposite-sex couples to own their homes (60 percent vs. 65 percent) and to report living in the same residence the past five years (38 percent vs. 46 percent).

The study also found that about one-third of same-sex Hispanic households in Florida are raising children under age 18, that about 3 percent of Hispanic same-sex households are raising nonbiological children, compared with 4 percent for Hispanic opposite-sex households and that Same-sex Hispanic households are 13 times more likely to include at least one partner who was born outside the United States than non-Hispanic white households.

A study of same-sex African-American couples in California offers encouragement along with concerns.

The report, also based on the 2000 Census, shows that in Los Angeles and San Francisco black gay and lesbian families are often invisible. Yet, the study says, African-American gay households show a high rate of parenting.

Black lesbian households are almost as likely as Black married opposite-sex couple households to include children and are three times as likely to report serving in the military and that black same sex-couples are more likely to work in the public sector.

But the study indicates that African-American gay couples earn significantly less than White gay or lesbian couples. In San Francisco, Black same-sex couples more than $6,000 less per year than black married opposite-sex couples, and nearly $30,000 less than White same-sex couples. In Los Angeles, black same-sex couples earn more than $17,000 less per year than white same-sex couples.

Nearly three in five Black female same-sex households in Los Angeles (59%) have at least one child, compared to 65% of lack black married opposite-sex couple households.

Ramblings

Rambling notes from a rambling world ...

Phred Phelps: Good Off and Bad Off

Good off for Topeka, Kansas. Phred Phelps, of God Hates Fags fame, was handled his dork on a platter by Topeka voters last Tuesday.

Phelps and his band of virulent haters managed to get a initiative on the Topeka ballot to repeal two ordinances, one banning employment discrimination based on sexual orientation and the other a hate crimes law. Voters rejected the repeal bid 14,285 to 12,795 in a low turnout election.

Bad off for Congress. While Topeka voters were rejecting discrimination, the House handed groups like Phelp's Westboro Baptist Church carte blanche to discriminate against gays and lesbians in federally-funded job training programs.

The Workforce Investment Act, which passed by a 224-200 margin on March 3, allows faith-based groups which receive federal funding to operate job training programs, to discriminate in employment based on religious grounds - including objections to an individual's sexual orientation.

Well, gays and lesbians are too busy having sex to work, anyway, right?

Bloch on the Block?

A group of whistleblowers within the Office of Special Counsel, responsible for investigating discrimination complaints by federal workers, has called for an investigation of the employment practices of Scott Bloch, who President Bush appointed to run the office.

The complaint was filed by a group of unnamed OSC employees and three national whistleblower protection organizations, and accuses Bloch of issuing illegal gag orders, cronyism, invidious discrimination, and retaliation. The complaint seeks to stop an unfolding purge of OSC headquarters staff, in which a number of attorneys and investigators have been ordered to resign for refusing to accept involuntary transfers to Detroit or Dallas.

The complaint alleges that under Bloch's direction the OSC targeted gay employees and failed to investigate allegations of discrimination based on sexual orientation. It also says that Bloch refused to investigate a gay whistleblower’s charge of blatant sexual orientation discrimination and retaliation.

The employees and the groups are asking Bloch -- the complaint had to be filed with the Office of Special Counsel -- to refer the complaint to the President’s Council on Integrity and Efficiency, an umbrella group of inspector general and other government oversight agencies, that has the power to review such complaints when referred by a member agency.

Bloch's office called the allegations a set of "baseless charges" but said that the complaint would be forwarded to the PCIE "in the hope that they will be able to put them to rest once and for all."

Discrimination is Dying Out

"Looks like it's anal sex week," Lou Novak loudly remarked on February 23 as a group from the Life Long AIDS Alliance walked though the Washington state House office building.

Novak is first vice president of the Rental Housing Association of Puget Sound, a landlords' organization.

Novack earlier testified that House Bill 1515, which would ban discrimination against gays and lesbians in employment, was unnecessary because prejudice against gays and lesbians is dying out.

Uh, huh.

Shhhhh ...>

Boston College students have overwhelmingly -- 80% to 20% -- approved a petition urging the Catholic institution to include sexual orientation in the college's nondiscrimination clause.

Not that Boston College plans to do so, of course. Spokesman Jack Dunn said removing that exemption "could force us to take actions that are in conflict with our Catholic beliefs and values. We do not discriminate in our hiring practices or tolerate harassment in any way, including on the basis of sexual orientation. However, as a Catholic university in a state with a history of anti-Catholic bias, we choose not to forfeit the protections afforded us by the state constitution."

Huh?

And this is Bill's brain on drugs ...

Speaking of incomprehensible statements, Bill Mayer recently told the Advocate: "I really relate to the gay issue because of the marijuana issue. Because what Democrats are saying to gay people—which is basically, ‘Oh, what do you care if it’s just getting civil unions? It’s basically the same thing as marriage—just shut up and take it!’—that’s basically what people say to me about pot-smoking. They say, ‘Bill, what do you care so much if it’s illegal? You can always step outside the restaurant after dinner, I’ve seen you do it a hundred times, and smoke your joint in the alley.’ And my answer to both of them is ‘Fuck you.’ You go outside after dinner and drink your brandy in the alley. You call whatever is going on under your roof a ‘civil union.’"

Family Values, Virginia Style

The Virginia House of Delegates approved a bill recently that will lead to repeal of a law that makes Virginia the only state in the union to prohibit private companies from offering health insurance benefits to the domestic partners of their employees.

Delegates approved the bill by a 49-48 vote. The Virginia Senate approved the bill 26-14 two weeks ago. Governor Mark Warner has indicated that he will sign the bill.

The "no insurance" law prohibited health insurance providers, such as Blue Cross-Blue Shield, from providing employee health insurance policies to categories of persons other than an employee’s married spouse or blood relative.

The effort to repeal the law was spearheaded by Virginia businesses, concerned about the competitive disadvantage created by the law. The Virginia Chamber of Commerce took the lead in the fight, noting that large businesses were declining to locate in Virginia because of the ban.

So Virginia, by a one vote margin, decided to return to the land of the economically viable.

The one vote margin is interesting enough, I suppose, but what is more interesting is an amendment to the bill that came within a few votes of passage. The amendment, proposed by Delegate Robert Marshall, called for the bill to ban employers from offering domestic partner health insurance benefits to anyone belonging to a group from which the American Red Cross refuses to accept donated blood.

The amendment, of course, would have effectively banned employers from offering domestic partner benefits to gay men who are domestic partners of employees, because Red Cross guidelines prohibit prohibit a person from donating blood if "you are a male who has had sex with another male since 1977, even once". The amendment would not have affected lesbian domestic partners.

The intent, clearly, was to do through the back door what could not be achieved through the front door, so to speak. Fair enough. While social conservatives are a dishonest lot, as the "bait and switch" tactics being used in Michigan amply demonstrate, they do not lack a certain low, animal cunning.

But the amendment -- and the fact that it fell a few votes shy of making it into the bill -- demonstrates just how far social conservatives will go to put the screws to gays and lesbians, and demonstrates beyond all doubt the utter contempt social conservatives have for the general welfare.

Why? Among groups prohibited from giving blood under Red Cross guidelines, in addition to gay men, are:

- donors under the age of 16;
- donors with autoimmune diseases such as multiple sclerosis;
- donors who have received blood in the last 12 months;
- donors who have had cancer treated with chemotherapy;
- donors who have blood clotting disorders;
- donors who have had an episode of angina within the last six months;
- donors who have had heart attack within the last six months;
- donors who have had bypass surgery or angioplasty within the last six months;
- donors who are anemic;
- donors who have ever tested positive for hepatitis;
- donors who have shared a household, kitchen, dormitory or toilet facilities with someone who has viral hepatitis within the last 12 months;
- donors who have been in a correctional institution, juvenile facility, lock-up or residence in a long-term psychiatric institution within the last 12 months;
- donors who have lived in Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, Niger, or Nigeria since 1977;
- donors who have been raped within the last 12 months;
- donors who have had measles within the last 4 weeks;
- donors who have had a smallpox, MMR or chicken pox vaccination within the last 4 weeks;
- donors with a fever;
- donors who have had infections with Chagas Disease, babesiosis or leishmaniasis;
- donors who have had Lyme disease;
- donors who have had malaria within the last 3 years;
- donors who are taking certain medications or have taken certain medications (e.g. dutasteride, coumadin, heparin or other prescription blood thinners, human pituitary-derived growth hormone, acitretin, or etretinate);
- donors who have had an organ or tissue transplant within the last 12 months;
- donors who have ever had a corneal transplant;
- donors who have had a tattoo within the last 12 months;
- donors who weight less than 110 pounds;
- donors who are pregnant.

Yup. The social conservatives in Virginia almost passed a bill that would have denied health benefits to pregnant women and children. Now there is a sterling example of "family values" for you.

You can't tell me that Delegate Robert Marshall and the other social conservatives who voted for the amendment didn't know that ...