John Corvino

Tag: Marriage

  • A Gay Marriage Opponent Responds

    First published at 365gay.com on September 14, 2009

    Last week I wrote about marriage-equality opponents’ “Always and Everywhere” argument—the claim that since marriage has “always” been heterosexual, we ought not to tinker with it now.

    In response, a prominent same-sex marriage opponent e-mailed me to explain what was “logically and philosophically wrong” with my critique. In particular, she argued that my claim that “each new same-sex marriage is a living counterexample to it” fails, because it misunderstands the rationale behind “always and everywhere.”

    According to this opponent, the “always and everywhere” argument is not intended as a straightforward descriptive claim—in which case, a single counterexample would indeed refute it—but rather as a tool to uncover the REASON why society after society constructs marriage heterosexually.

    As she put it, “Why do they keep stumbling on this idea that it’s important to unite male and female in public sexual unions that define the responsibilities of male and female parents to their biological children? Is that reason still valid today?”

    Interesting. Is this the right way to understand the “always and everywhere” argument? And if so, does that affect my assessment? To these questions, my answers are “Maybe” and “Absolutely not.”

    It’s probably misleading to talk about THE right way to understand the “always and everywhere” argument, unless one is considering a specific instance of it by a particular marriage-equality opponent. After all, the claim that marriage has been heterosexual “always and everywhere” has been used by different people at different times for different purposes.

    But let’s suppose one is using the claim to flush out why marriage has been the way it is—that is, typically heterosexual almost everywhere. Why, indeed, has marriage been this way?

    One huge reason is the misunderstanding and oppression of gays throughout the ages, or what we might call “heteronormativity.” It is therefore no surprise that as scientific and moral understanding of homosexuality evolves, so does acceptance of same-sex marriage.

    What’s more, it’s not clear that the reasons for heterosexual marriage would be in any way invalidated by acknowledging reasons (perhaps similar, perhaps different) for homosexual marriage. This is not a zero-sum game.

    But what if there’s a reason for making marriage EXCLUSIVELY heterosexual—as most (but not all) societies do? According to marriage-equality opponents, there is such a reason. It is to bind parents, and especially fathers, to their biological children.

    I have two responses. First, talking about THE reason for marriage is even more misleading than talking about THE purpose of the “always and everywhere” argument. While there may be an embedded practical logic in social institutions, the underlying justifications for them are nearly always complex. Marriage looks the way it does today because of a varied and often messy history.

    Second, even granting that one important reason for marriage is binding parents (especially fathers) to their biological children, it is not clear why this reason requires marriage to be exclusively heterosexual. I’ve said it before and I’ll say it again: same-sex marriage never takes children away from loving biological parents who want them.

    And here’s where same-sex families provide a living counterexample in the strongest sense. It’s not just that they falsify the claim that marriage is always and everywhere heterosexual (by announcing, in effect, “Not anymore it isn’t!”). It is that they falsify the patently absurd claim that binding parents to their biological children is the sole justification for marriage.

    No one actually believes this claim, which is why it continues to amaze me that marriage-equality opponents suggest it with a straight face. Marriage surely binds children to parents, but it also binds spouses to each other—for better or worse, richer or poorer, in sickness and in health and so on. Generally, that’s good for the spouses and good for society—even where children are not present.

    Alternatively, opponents will make the more limited claim that this particular purpose of marriage (binding parents to children) trumps the others. But again, even if that were true, it’s not clear what follows. How would allowing gays to marry make straights any less bound to their biological children?

    Imagine the thought process: “Yikes, Adam and Steve are getting married! Kids, I’m outta here.”
    In short, whether we take the simple reading of the “Always and Everywhere” argument (“Never before, therefore not now”) or this supposedly new and improved one (“Almost never before; therefore, there must be some good reason for ‘not now’), the anti-equality conclusion doesn’t follow.

  • Always and Everywhere?

    First published at 365gay.com on September 4, 2009

    Marriage-equality opponents frequently claim that marriage has been heterosexual since…well, since FOREVER, and that it is arrogant and foolish to tinker with such a pervasive human institution.

    Whatever its logical shortcomings, the “always and everywhere” argument is rhetorically effective. Even gay-rights advocates concede that marriage equality seemed unthinkable just a decade or two ago. Imagine how novel it appears to those who, unlike us, have no direct stake in the issue.

    It’s tempting to respond that lots of things that seemed unthinkable a few decades ago–iPhones, Facebook, Sarah Palin–are, for better or worse, now familiar. But the reluctance to tinker with marriage is deep-seated. The “always and everywhere” argument demands a response that is not only logically sound but also rhetorically compelling.

    Several responses are worth pondering. I’ve given them each names for convenience:

    (1) False premise: The claim that marriage has always been exclusively heterosexual suffers from what should be a fatal flaw: it is simply not true. Same-sex marriages have been documented in a number of cultures, notably some African and Pacific Island cultures.

    Marriage-equality opponents retort that these marriages are not quite the same as modern same-sex marriages, since they typically involve a kind of gender transformation of one of the partners. But this response is a red herring. Sure, homosexual marriages in these cultures look different from ours in various respects–but so do their heterosexual marriages. More important, it is doubtful that opponents would abandon their objection to contemporary same-sex marriages as long as one partner agreed to be the “wife” and the other the “husband.”

    The real problem with the “false premise” response is rhetorical: The response depends on anthropological data unfamiliar to most people, and it appeals to “exotic” cultures whose practices most Americans find irrelevant.

    (2) Heteronormativity: Rhetorical considerations would also weigh against using words like “heteronormativity” when responding to people’s basic fears about marriage. But it’s nonetheless true that the “always and everywhere” argument begs the question against those who argue–quite rightly–that the heterosexual majority tends to oppress the homosexual minority always and everywhere. Because of that oppression, recorded history often ignores or erases our lives and commitments.

    Keep in mind that just a few decades ago, gays and lesbians were still considered mentally ill in much of the West; even today, gays are stoned to death in parts of the world. Against that backdrop, it’s not surprising that same-sex marriage seems newfangled. The marriage-equality movement owes as much to an improved understanding of sexuality as it does to changing views about marriage.

    (3) Not Mandatory: Even granting the (false) premise that marriage has been heterosexual “always and everywhere,” so what? No one is proposing that same-sex marriage be made mandatory. Heterosexual marriage will continue to exist “always and everywhere” for those who seek it, even while society recognizes that it’s not appropriate for everyone. The opponents’ argument seems to play on the irrational notion that giving marriage to gays somehow means taking it away from straights.

    (4) Non-Sequitur: Let’s concede to marriage-equality opponents that history and tradition are important, and that we should be cautious about changes to major social institutions. Yet even if (contrary to fact) marriage were heterosexual “always and everywhere,” it does not follow that marriage cannot expand and evolve. One should never confuse a reasonable caution with a stubborn complacency.

    Increasingly, that complacency is more than stubborn–it’s unconscionable. Marriage-equality opponents can no longer ignore the fact that we fall in love, just like they do; that our relationships have positive effects in our lives and the lives of those around us, and that we reasonably seek to protect and nurture these relationships. If not marriage for us, then what?

    Ultimately, the problem with the “always and everywhere” argument is that each new same-sex marriage is a living counterexample to it. Whatever happened in the past, we have marriage equality now–in a small but growing number of places. These same-sex marriages are by and large bearing good fruit. If ignoring tradition is “arrogant and foolish,” ignoring the evidence unfolding before us is exponentially so.

  • Other People’s Judgments

    First published at Between the Lines News on September 3, 2009

    “You don’t just want us to tolerate what you gay people do,” my skeptical questioner announced, “you want us to think that it’s RIGHT.”

    Whenever I hear this point–and it’s pretty often–I always think to myself, “Duh.” Of course I want that. Why would anyone think otherwise?

    Actually, the latter question is not entirely rhetorical. Even my fellow gays ask me why we should care about other people’s moral approval. Beyond the obvious pragmatic advantages–for example, more moral approval means more favorable voting attitudes, means more legal rights, means an easier life–why should we give a damn what other people think? And while we’re on the subject, why should THEY care? Why are our lives any of their business?

    There’s a myth circulating among well-meaning people that “morality is a private matter,” and that therefore “we shouldn’t judge other people.” This is nonsense of the highest order. Morality is about how we treat one another. It’s about fairness and justice. It’s about what we as a society are willing to tolerate, what we positively encourage, and what we absolutely forbid. It is the furthest thing from a private matter.

    There’s a (wholly fictional) story I tell in my introductory ethics classes about a freshman who wrote a paper defending moral relativism. His paper was laden with references to what’s “true for you” versus what’s “true for me,” what’s “right for you” versus what’s “right for me” and so on. The professor gave the paper an F. Surprised and angry, the student went to the professor’s office demanding a justification.

    “Well,” the professor carefully explained, “I graded your paper the way I grade all papers. I stood at the top of a staircase and threw a batch of papers down the stairs. Those that landed on the first few stairs got A’s…then B’s, C’s and so on. You wrote a long, heavy paper. It went to the bottom of the stairs. It got an F.”

    “That’s not right!” the student blurted out.

    “You mean, that’s not right…FOR YOU,” the professor responded, grinning.

    The moral of the story (aside from, tenured professors do the darndest things) is this: despite all of our talk of “right for you,” deep down we believe in public moral standards. We may disagree about what those are, and about what actions fall under their purview–but we still believe that right and wrong aren’t entirely relative.

    One might object that grading affects other, non-consenting people, whereas relationships affect only the people involved. There are two problems with this objection. The main one is that the latter point is just false. Unless one endorses a “Don’t Ask, Don’t Tell” secrecy, relationships have a public presence and thus public consequences. Gays aren’t waging the marriage battle just so we can all go back in the closet. Like most people, we want to stand up before family and friends, proclaim our love, have it celebrated for the beautiful thing that it is. (At least, that’s what many of us want.) We want to send the message to young gays and lesbians that there’s nothing wrong with them; that they, too, deserve to love and be loved, and that there’s nothing sinful or wrong about that. We want to be treated equally in the eyes of the law. All of these aims affect other people in various ways.

    Second, the objection invites the response, “Says who?” Who decides that only actions affecting other people are appropriate targets of moral scrutiny? Who determines that that’s the right way to look at morality? And there’s no way to answer such questions without engaging in a bit of moralizing. Value judgments are inescapable that way. Those who claim that they’re not taking any moral stances about other people’s lives are, by that very claim, taking a moral stance about other people’s lives–a “tolerant’ one, though not necessarily a very admirable one. Sometimes, other people’s behavior is horrific, and we should say so.

    “Saying so” is part of the confusion here. There’s a difference between MAKING moral judgments and OFFERING them, not to mention a difference between offering them respectfully and wagging your finger in people’s faces. The latter is not just self-righteous; it’s generally counterproductive. I suspect when people say that “we shouldn’t judge other people,” it’s really the latter, pompous kind of moralizing they’re concerned to avoid. But we shouldn’t confuse the rejection of bad moralizing with the rejection of moralizing altogether.

    In short, we should care what other people think and do, because the moral fabric touches us all.

  • The Right’s Immoral Take on Gay Marriage

    First published at 365gay.com on August 14, 2009

    Anyone who knows Jonathan Rauch will tell you he’s not a sappy, emotional sort of guy. Rauch, a senior writer for National Journal magazine and a contributing editor of The Atlantic, is known for his measured, logical (and occasionally quite witty) prose; those of us fortunate enough to know him personally can attest that the prose matches the person.

    Which is why it’s all the more impressive that his recent National Journal article on gay marriage [http://www.nationaljournal.com/njmagazine/st_20090808_9125.php], “A Moral Crossroads for Conservatives,” is one of the most moving things I’ve read on the subject in a long time. If you haven’t read it yet, skip the rest of this column and read that instead. Seriously.

    Opening with an account of a medical emergency and closing with a marriage-proposal scene, the article weaves together a very personal case for marriage equality with deft analysis of conservatives’ moral failure vis-à-vis gays and lesbians. Faced with the reality of gay and lesbian lives–of our love and commitment, our sacrifices, our joys and hardships–the right wing offers…silence. In Rauch’s words,

    “If gay couples can’t be allowed to marry, what should they be able to do? Asked this question, cultural conservatives say, in the words of Tom Lehrer’s song about the German rocket scientist Wernher von Braun, “That’s not my department.”

    Via a moving account of his cousin Bill’s sudden hospitalization and Bill’s partner Mike’s bedside ordeal, Rauch underscores how the “Not my department” response is not merely lazy; it’s morally unconscionable. I’ll quote here at length:

    “[W]hat happened in that hospital in Philadelphia for those six weeks was not just Mike and Bill’s business, a fact that is self-evident to any reasonable human being who hears the story. ‘Mike was making a medical decision at least once a day that would have serious consequences,’ Bill told me. Who but a life partner would or could have done that? Who but a life partner will drop everything to provide constant care? Bill’s mother told me that if not for Mike, her son would have died. Faced with this reality, what kind of person, morally, simply turns away and offers silence?”

    Rauch concludes: “Not the sort of person who populates the United States of America. If Republicans wonder why they find themselves culturally marginalized, particularly by younger Americans, they might consider the fact that when the party looks at couples like Mike and Bill it sees, in effect, nothing.”

    Optimistic? Perhaps. But virtually undeniable by anyone with both a brain and a heart. (Factor in the shameful lack of moral courage, and perhaps a trip to the Wizard is in order.)

    Another valuable aspect of Rauch’s piece is that it shows why powers-of-attorney (which are extremely important for couples who live and travel in states without marriage equality) are no substitute for marriage.

    Contrast Rauch’s account with Robert George’s recent Wall Street Journal piece [http://online.wsj.com/article/SB20001424052970204619004574322084279548434.html] on the same subject. George writes,

    “If marriage is redefined, its connection to organic bodily union–and thus to procreation–will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play.”

    To George, Mike and Bill’s union appears essentially no different from that of a couple of frat buddies who occasionally get off together. “Adult satisfaction that is served by mutually agreeable sexual play?” Only through willful blindness can one sustain such distortion.

    It is stories like Mike and Bill’s that we must keep in mind–and keep telling–as we head into this fall’s election. In November Maine voters, like California voters last year, will decide whether to repeal marriage equality in that state.

    Now is a good time to go to http://mainefreedomtomarry.com/ and make a financial contribution. Maine is one of six states that embrace marriage equality (not counting California, which recognizes the roughly 18,000 same-sex marriages performed before Prop. 8 passed, and Washington D.C., which recognizes same-sex marriages performed in other jurisdictions). If you want that number to grow, not shrink, then get behind the Maine fight early.

    But don’t just give money; give witness. Reach out to the skeptics and let them know why marriage matters. One thing we learned from the California Prop. 8 campaign is that abstract platitudes about discrimination won’t cut it. We need to make the importance of marriage rights concrete. Stories like Mike and Bill’s do that, powerfully.

  • Robert George’s Reality

    First published at 365gay.com on August 7, 2009

    Robert George’s recent piece in the Wall Street Journal, “Gay Marriage, Democracy, and the Courts,” [http://online.wsj.com/article/SB20001424052970204619004574322084279548434.html] contains both sense and nonsense—but more of the latter.

    George, a Princeton professor of jurisprudence and founder of the American Principles Project, is a preeminent conservative scholar. In the op-ed, he considers the federal lawsuit challenging California’s Proposition 8 and claims that a U.S. Supreme Court ruling in favor of marriage equality would be “disastrous,” constituting a “judicial usurpation” of popular authority and inflaming the culture wars beyond repair.

    First, the good points: George is quite right to insist that the Court’s role is to interpret the Constitution, not to make policy. He’s also right to argue that marriage law has been, and should be, tied closely to the needs of children. And he exhibits a refreshing “don’t panic” attitude, asserting that “democracy is working”—although by democracy, he seems to mean only voter referenda, and not our more complex representative system, with its various checks and balances. On the latter, broader understanding, I’d agree that “democracy is working:” in the last year, five additional states have embraced marriage equality.

    But the misunderstandings in George’s piece are legion.

    (1) George provides a lengthy analogy with the 1973 Supreme Court decision Roe v. Wade, which recognized abortion rights. But while this analogy may be relevant to the culture-war angle, it says absolutely nothing about the legal merits—since rather different issues were at stake in Roe.

    What’s more, it’s not even clear how relevant it is to the culture-war angle. Most abortion opponents believe that abortion involves large-scale killing of innocent babies. Compare that to Adam and Steve setting up house in the suburbs. Whatever your view of homosexuality, there’s no comparison in terms of moral urgency.

    (2) George also considers—and summarily rejects—an analogy with the 1967 Loving v. Virginia. He writes,

    “The definition of marriage was not at stake in Loving. Everyone agreed that interracial marriages were marriages. Racists just wanted to ban them as part of the evil regime of white supremacy that the equal protection clause was designed to destroy.”

    Seriously? Perhaps “everyone agreed” that they were marriages in some sense—as one could say equally about same-sex marriages—but they certainly didn’t agree that they were valid marriages. When the Loving trial court judge declared, “The fact that [God] separated the races shows that he did not intend the races to mix,” he expressed the widespread view that interracial marriage violated a divinely ordained natural order.

    George’s reference to the “evil regime of white supremacy” is also telling. In order to undermine any analogy between racial prejudice and homophobia, right-wingers often paint all those who opposed interracial-marriage as angry KKK types. But most opponents of miscegenation sincerely believed that the Bible condemns it, that it’s unnatural, and that it’s bad for children. In other words, they cited the same “respectable” reasons as modern-day marriage-equality opponents.

    That these two groups cite the same reasons doesn’t show that their arguments are equally bad or their motives equally flawed. It does show, however, that religious conviction doesn’t secure a free pass for discrimination, and that friendly, well-intentioned folks can nevertheless be guilty of bigotry.

    (3) George, a noted natural-law theorist, asserts that marriage “takes its distinctive character” from bodily unions of the procreative kind. By “procreative kind,” George doesn’t mean that procreation must be intended, or even possible—oddly, sterile heterosexuals can have sex “of the procreative kind” on George’s view. He means penis-in-vagina. According to George,

    “This explains why our law has historically permitted annulment of marriage for non-consummation, but not for infertility; and why acts of sodomy, even between legally wed spouses, have never been recognized as consummating marriages.”

    “Historically” is the key word here—as in “not any more.” There’s a reason consummation laws have been almost universally discarded (and were seldom invoked when present). Such laws reflected, not the law’s majestic correspondence with Catholic natural-law doctrine, but an outdated mixture of concerns about male lineage and female purity.

    (4) Finally, George asserts the standard false dilemma: Either accept the traditional natural-law understanding of marriage, or else have no principled basis for any marriage regulation:

    “If marriage is redefined, its connection to organic bodily union—and thus to procreation—will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.”

    No principled basis? How about the fact that polygamy—which historically is far more common than monogamy—is highly correlated with a variety of social ills? Or that the stability provided by long-term romantic pair-bonding is good for individuals and society—far more profoundly than typical “friendships”? Or that the state legally regulates important contracts of all sorts, and the commitment to “for better or worse, ‘til death do us part” is a pretty important contract? Here as elsewhere, George seems incapable of recognizing any principles beyond those prescribed by a narrow natural-law theory.

    Ultimately, the trouble with George is that his theory—which is supposed to be rooted in “nature”—is in fact divorced from reality. The reality is that gay people exist, fall in love, pair off, settle down, and build lives together—sometimes with children, often without. When we do, we seek the same legal protection for our relationships that other Americans take for granted. If the denial of such protections is not an appropriate subject for judicial scrutiny, I’m not sure what is.

  • That’s How I Was Raised

    First published at Between the Lines News on June 11, 2009

    A recent New York Times Magazine article spotlighted a shocking vestige of our nation’s racism: segregated proms. It focused on one school in Georgia’s Montgomery County, though the practice is common across the rural South.

    I say “shocking” even though I personally wasn’t surprised. One of my best friends is from rural Tennessee. His alma mater still segregates superlatives: White Most Likely to Succeed, Black Most Likely to Succeed; Funniest White, Funniest Black, and so on.

    The white students quoted in the Times article expressed some reservations about the practice, but generally concluded with “It’s how it’s always been…It’s just a tradition.” In the words of Harley Boone, a platinum blond girl with beauty-queen looks who co-chaired last year’s white prom, “It doesn’t seem like a big deal around here. It’s just what we know and what our parents have done for so many years.”

    “It’s just what we know.” Miss Boone reminded me of another beauty queen, in both her appearance and her comment: Miss California USA Carrie Prejean.

    Miss Prejean, you’ll recall, when asked her beliefs about marriage equality, responded (in part), “I believe that a marriage should be between a man and a woman. No offense to anybody out there, but that’s how I was raised.”

    How I was raised. Tradition. What our parents have done. This is not, in itself, a bad reason for doing something. It explains why I set the table the way I do, for instance, or why I always put an extra unlit candle on a birthday cake (“good luck for the next year,” my mom always told me). It explains, too, more substantial practices—how we gather, celebrate milestones, express joy, or mourn loss. No generation does, or should, invent everything from scratch.

    And yet, sometimes “what we know”—or thought we knew—stops working, or never worked very well in the first place.

    I used to load the dishwasher with the forks tines down—because that’s how my parents did and still do it—until I realized they get cleaner tines up (in my dishwasher, anyway, and please don’t send me irate e-mails if yours is different).

    Spotty forks are one thing. Racial and sexual inequalities are quite another. When traditions cause palpable harm to people, it’s time to change. At that point, rethinking tradition is not merely optional, as in the dishwasher case—it’s morally mandatory.

    And that’s why Prejean’s “how I was raised” comment struck so many of us as a dumb answer. No educated person can justifiably claim ignorance of the challenges gay individuals and couples face. We gays are deprived of a fundamental social institution, treated unequally in the eyes of the law, and told that our deep, committed, loving relationships are inferior, counterfeit, or depraved. In the face of such injustice, “that’s how I was raised” sounds hollow and cowardly.

    There are those who bristle at any analogy between homophobia and racial injustice. Indeed, a favorite new right-wing strategy is to claim that liberals unfairly label as “bigots” anyone who opposes same-sex marriage, even on the basis of sincere moral and religious convictions.

    But that’s one reason why the analogy is so powerful, and so revealing. It shows that citing “sincere moral and religious convictions” doesn’t get one a free pass for maintaining unjust institutions.

    No analogy compares two things that are exactly the same. (That would not be an analogy, but an identity.) Analogies compare two or more things that are similar in some relevant respect(s). The similarities can be instructive.

    The white citizens of Montgomery County, Georgia, seem like a nice enough bunch. They don’t carry pitchforks or wear hooded robes. I doubt that Miss Boone ever uses the n-word, although her grandparents probably do. (Mine did, too, until we grandchildren protested loudly enough.) They are otherwise decent folk misled by powerful tradition.

    I’m sure that, pressed for further explanation, many of these folks could make the right noises about doing what’s best for their children and eventual grandchildren. And much like “that’s just what we know,” that response would sound familiar. Opponents of marriage equality use it constantly.

    But don’t marriage-equality opponents have social-science data backing them up? They don’t. Yes, they have data about how children fare in fatherless households, for example, and then they extrapolate from that data to draw conclusions about lesbian households. The problem is that there are too many confounding variables. So then they fall back on their “vast untested social experiment” argument: we just don’t know how this is going to turn out. Which, again, is precisely the sort of thing we might expect the Montgomery parents to say to justify their “tradition.”

    From the fact that two groups of people use the same forms of argument, it doesn’t follow that their conclusions are equally good or bad. It depends on the truth of their premises.

    Still, the tendency of both segregationists and marriage-equality opponents to hide behind “that’s how I was raised” provides a powerful analogy—in moral laziness.

  • A Suit Too Soon?

    First published at 365gay.com on May 29, 2009

    President Truman’s quip about wanting a one-handed economist—so that he would cease being told, “On the one hand…on the other hand…”—pretty well sums up my reaction to the news that Ted Olson and David Boies are spearheading a federal lawsuit challenging California’s Prop. 8.

    Olson and Boies are two of the most prominent constitutional lawyers in the country—as evidenced by the fact that they represented George W. Bush and Al Gore, respectively, before the U.S. Supreme Court in “Bush v. Gore,” which decided the 2000 election. And yes, they are from opposite sides of the political spectrum.

    Olson—who initiated the alliance—is a well known conservative heavyweight. In addition to representing Bush against Gore, he was the 43rd president’s first solicitor general, has served on the board of the right-wing American Spectator, and defended President Reagan during the Iran-Contra scandal.

    On the one hand, WTF?

    On the other hand, there are increasing numbers of political conservatives who think that the standard right-wing position on gays is not just silly, but profoundly unjust. Olson appeared sincere and determined as he announced the lawsuit, together with Boies, at a press conference last Wednesday [http://www.equalrightsfoundation.org/]. As he put it,

    “I suspect there’s not a single person in this room that doesn’t have a friend or family member of close acquaintance or professional colleague and many of them who are gay. And if you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally like the rest of us and not be denied the fundamental rights of our Constitution.”

    I couldn’t have said it better (which is exactly how Boies responded to Olson’s words, patting his colleague and erstwhile nemesis on the back.)

    On the other hand (that’s three, and there will be more), doesn’t the timing seem wrong? That’s what many veterans in this fight—including folks at Lambda Legal and the ACLU—are saying. Olson and Boies seem determined to press this all the way to the U.S. Supreme Court. Call me a pessimist, but I can’t imagine the current or any near-future SCOTUS deciding in favor of full marriage equality. (I’d of course love to be wrong about this.)

    Pushing this case too soon could be both judicially and politically risky. A loss at the Supreme Court would create binding negative precedent for ALL states, not just California. Such precedent is hard to undo. Moreover, if the case is pending during the 2012 presidential election, it could be a rallying cry for right-wingers.

    On the other hand, assuming this case does reach SCOTUS, much will depend on the idiosyncratic Justice Kennedy—a swing vote who stood up for gays in both Romer v. Evans (which struck down Colorado’s amendment barring pro-gay ordinances) and Lawrence v. Texas (which reversed Bowers v. Hardwick and eliminated laws against sodomy). Romer, in particular, may be key backdrop for this case.

    And even if we lose, forcing justices to put their arguments against equality in writing, for generations of legal theorists and law students to dissect, is bound to have a salutary effect long-term.

    Moreover, the bi-partisan nature of this legal team, and particularly Olson’s conservative bona-fides, could be just what’s needed to nudge pro-gay conservatives out of the closet in supporting marriage equality. If—and I mean IF; a big, fat, entirely hypothetical IF—anyone could convince someone like Chief Justice Roberts to reject the constitutionality of Prop 8, Olson’s the guy to do it.

    Olson’s no fool. This is a high-profile case, and that’s doubtless part of his and Boies’s motivation for taking it. They will be working “partly” pro-bono. It is unclear who’s paying for the other part, which surely won’t be cheap.

    On the other hand, unlike the push for a ballot initiative to overturn Prop. 8 in 2010 or 2012, this case won’t require substantial monetary contributions from the cash-strapped grass roots. And if Olson and Boies don’t take up the case, someone else less well-positioned would likely do so.

    On the other hand, Prop. 8 may not be the ideal case on which to pin this battle. Olson and Boies plan to argue on equal protection and due process grounds. But California still allows gays and lesbians to enjoy virtually all the statewide legal incidents of marriage, just without the name “marriage.” I’m not suggesting that the name is unimportant, or that “virtually” and “statewide” are the same as “all.” I am saying that it seems easier to make an equal protection case where the legal incidents, and not just the name, are substantially unequal.

    On the other hand, I’m no constitutional scholar. And there’s momentum surrounding Prop. 8. And you gotta dance with them what brung you.

    And it’s the momentum, more than anything, that gives me hope here. A super-prominent conservative attorney makes a strong and very public stand in favor of marriage equality, recognizing it at the key civil rights issue of our day. Even if we end up losing this particular battle, it’s hard not to grow more optimistic regarding the war.

  • Gay Marriage and The Bigot Card

    First published at 365gay.com on May 1, 2009

    Maggie Gallagher at the National Organization for Marriage—producers of the unintentionally hilarious “Gathering Storm” ad—has been mentioning “footnote 26” of the Iowa marriage decision quite a bit lately.

    For example, she tells conservative blogger Rod Dreher that same-sex marriage requires “the rejection of the idea that children need a mom and dad as a cultural norm—or probably even as a respectable opinion. That’s become very clear for people who have the eyes to see it. (See e.g. footnote 26 of the Iowa decision).”

    Elsewhere she describes the footnote as “the most heartbreaking sentence” of the decision.

    What is this ominous, heartbreaking footnote? The offending bit is here:

    “The research appears to strongly support the conclusion that same-sex couples
    foster the same wholesome environment as opposite-sex couples and suggests that the
    traditional notion that children need a mother and a father to be raised into healthy, well adjusted adults is based more on stereotype than anything else.”

    So says the Iowa Supreme Court in a unanimous decision.

    So too says the American Academy of Pediatrics, the Child Welfare League of America, the National Association of Social Workers, the American Psychological Association—in fact, every major health and welfare organization that has examined the issue. The Iowa Supreme Court has mainstream professional opinion solidly on its side.

    But to say that the opposing view is based on “stereotype” attacks our opponents’ last remotely plausible-sounding secular argument. No wonder they’re getting defensive.

    The use of the word “stereotype” is a large part of what irks them. Those who rely more on stereotype than evidence are being unreasonable. And in the extreme, those who cling to unreasonable views are bigots. Elsewhere in the Dreher interview Gallagher states,

    “Same-sex marriage is founded on a lie about human nature: ‘there is no difference between same-sex and opposite sex unions and you are a bigot if you disagree.’”

    Indeed, Gallagher uses the term “bigot” and its cognates no fewer than five times in the short interview.

    A bigot if you disagree? Neither the Iowa Supreme Court nor most marriage-equality advocates make any such sweeping statement. On the contrary, footnote 26 is attached the following:

    “On the other hand, we acknowledge the existence of reasoned opinions that
    dual-gender parenting is the optimal environment for children. These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies.”

    “Reasoned opinions” which are “thoughtful and sincere.” That’s about as far from “you’re a bigot if you disagree” as one can get.

    Marriage-equality opponents are increasingly complaining that we’re calling them bigots. This leads to a kind of double-counting of our arguments: For any argument X that we offer, opponents complain both that we’re saying X and that we’re saying that anyone who disagrees with X is a bigot.

    Then, instead of responding to X—that is, debating the issue on the merits—they focus on the alleged bigotry charge and grumble about being called names.

    I don’t deny that some of us do call them names (sometimes deserved, sometimes not). Yet even those who call them “bigots”—such as Frank Rich in his New York Times op-ed “The Bigots’ Last Hurrah”—often engage the substance as well. Increasingly, our opponents ignore the substance in favor of touting their alleged persecution.

    Personally, I think the term “bigot” should be used sparingly. Many of those who oppose marriage equality are otherwise decent people who can and sometimes do respond to reasoned dialogue.

    To call such persons bigots is not merely inaccurate; it’s a conversation-stopper. It says, “your views are beyond the pale, and I won’t dignify them with discussion.”

    But let’s not pretend that any one side in this debate has a corner on conversation-stoppers. There are plenty of people on Gallagher’s side who consider us “deviants” or “perverts,” and those terms don’t exactly welcome dialogue either. Neither does Gallagher’s calling us “liars”—as in, “same-sex marriage is based on a lie about human nature.”

    There’s a more general problem here, and it’s hardly unique to the gay-rights debate. Suppose you’ve reflected on some controversial issue and adopted a particular position. Presumably, you’ve decided that it’s the most reasonable position to hold. How, then, do you explain the fact that seemingly reasonable people deny it?

    There are several possibilities, most of them not very flattering. Perhaps your opponents are inattentive, or not very bright, or have logical blind spots, or are swayed by superstition.

    Or perhaps they’re just being bigots. It happens.

    (Interestingly, some philosophers have suggested on this basis that there’s no such thing as a “reasonable disagreement,” strictly speaking. If you accept P but think that denying P is “reasonable,” then you should either switch to not-P or become agnostic about the issue.)

    I don’t pretend to understand why seemingly reasonable and decent people adopt what strikes me as an obviously wrongheaded position on marriage equality. I think the reasons are various and complex, though they typically involve a distortion of rationality caused by other commitments, such as religious bias.

    But I also recognize that my opponents do, or should, wonder the same thing about me—and the ever-growing number of reasonable and decent Americans who support marriage equality.

    Which leaves us with a few choices.

    (1) We can call each other crazy and stupid, or bigots, or deviants. This is generally not helpful.

    (2) We can pretend that we’re above all that, but complain that the other side is doing it. This, I fear, is what Gallagher is doing, and it strikes me as equally unhelpful. It would be akin to my saying that Gallagher’s position is that you should oppose same-sex marriage, and if you don’t, you’re a liar (or a heathen or a pervert or whatever).

    (3) We can actually engage the substance of each other’s positions.

    I can understand why those with poorly supported positions would want to avoid (3). That doesn’t necessarily make them bigots, but it doesn’t reflect very well on them, either.

  • Miss California’s country

    First published at Between the Lines News on April 30, 2009

    So a contestant for what is in large measure a popularity contest says something unpopular and doesn’t win. Why am I having a hard time getting worked up over this?

    I’m talking about Carrie Prejean, Miss California USA, who when asked by Miss USA judge and gay celebrity blogger Perez Hilton whether she supports same-sex marriage, cheerfully and politely said no (or something like it—her answer wasn’t terribly clear). Specifically, she said,

    “Well I think it’s great that Americans are able to choose one or the other. We live in a land where you can choose same-sex marriage or opposite marriage. And you know what, in my country, in my family, I think that I believe that a marriage should be between a man and a woman. No offense to anybody out there, but that’s how I was raised and that’s how I think it should be between a man and a woman. Thank you very much.”

    Not the most articulate answer (what’s “opposite marriage”?), nor the most original (“that’s how I was raised”). But I give her credit for grace under pressure, and for owning up to her convictions knowing that they might cost her the crown.

    That doesn’t mean that her answer was in any way acceptable. Her answer was wrong—badly, painfully wrong.

    But disagreeing with her answer doesn’t prevent me from acknowledging and admiring her integrity. Generally speaking, I prefer people saying what they believe—even if I disagree sharply—rather than merely what they think others want to hear. It’s a trait desirable in both friends and foes.

    No one knows for sure whether she would have won with a different answer. But her 15 minutes of fame are stretching into 45 (at least) thanks to the predictable backlash.

    Perez Hilton, demonstrating the gravitas, nobility, and calm judicial temperament that doubtless explains his selection as a pageant judge, promptly thereafter called her a “dumb bitch.”

    This in turn prompted right-wing cries of victimhood. Maggie Gallagher, president of the National Organization for Marriage (which released the laughable “Gathering Storm” ad) described Hilton as “the new face for gay marriage in this country.” Gary Schneeberger, vice president of Focus on the Family, wrote in the New York Times,

    “What has happened to Miss Prejean over the past few days is nothing short of religious persecution. No, it is not violent persecution — but that does not minimize its existence or its danger.”

    Religious persecution? Because Perez Hilton is calling her nasty names? Oh, gag me with a tiara.

    Perez Hilton is a gossip blogger known mainly for posting celebrity pictures and then adding juvenile scribbles to them. (His favorite embellishment seems to be ejaculate dripping from people’s mouths.) It’s not for nothing that his nom de plume resembles that of someone else who is famous just for being famous. Being obnoxious is what he does for a living.

    So it’s no surprise that the religious right latched on to him. They’ve got nothing plausible to say in response to the serious marriage-equality advocates, so they make Hilton the face for the movement and then complain about what a nasty movement it is. Their intellectual dishonesty in doing so eclipses whatever integrity I admired in Miss Prejean.

    Why, for example, didn’t they cite the letter to Prejean from Geoff Kors at Equality California, a letter which seeks “open, honest dialogue”? Let me guess: it’s because gracious letters from true movement leaders don’t support their victim narrative.

    Even Gallagher concedes, “I don’t believe the response—hatred, ridicule, name-calling—by Perez Hilton is supported by most gay people or by most gay marriage supporters.”

    But then she backtracks by adding, “But, sadly, it is increasingly the visceral and public response of the gay marriage movement to anyone who disagrees with its views.”

    Sorry, but Perez Hilton’s blog is not the gay marriage movement. By Gallagher’s own admission, it is not even representative of the gay marriage movement. It’s a straw man, which is about the best that they can hope to knock down anymore.

  • Gathering Storm

    First published at Between the Lines News on April 23, 2009

    Leave it to the National Organization for Marriage (NOM) to try to rain on our parade.

    I’m talking about NOM’s “Gathering Storm” ad [http://www.youtube.com/watch?v=Wp76ly2_NoI] , in which various characters warn that recent gay-rights victories are threatening their fundamental liberties: “There’s a storm gathering. The clouds are dark, and the winds are strong. And I am afraid…”

    The ad, in turn, prompted a number of YouTube responses, ranging from hilarious parodies (“There’s a bullshit storm gathering”), to serious fact-checking [http://www.youtube.com/watch?v=A0dKMhYSX20], to exposure of the audition tapes.

    The latter was embarrassing for NOM, since it highlighted that these frightened folks were actually actors reading lines. (Either that, or every single one of them is both a California doctor AND a Massachusetts parent—and what are the odds of that?)

    Personally, I don’t find it overly troubling that the characters are all actors. The ad contained a small-print caption stating as much, and besides, their forced emotion was about as realistic as the lightning in the background.

    No, it’s not the use of actors that’s troubling. It’s the fact that virtually everything they say is misleading or false.

    The central claim of the ad is that same-sex marriage threatens heterosexuals’ freedoms: “My freedom will be taken away….I will have no choice.”

    One would think that Iowa and Vermont had just declared same-sex marriage mandatory.

    But of course, they did no such thing. They simply acknowledged that gay and lesbian couples are entitled to the same legal rights and responsibilities as their straight counterparts.

    How does this threaten anyone’s freedom? The ad mentions three cases—presumably the best examples they have—to illustrate the alleged danger:

    (1) “I’m a California doctor who must choose between my faith and my job.”

    Not exactly. California doctors can practice whatever faith they like—as long as it doesn’t interfere with patient care. The case in question involves a doctor who declined to perform artificial insemination for a lesbian couple, thus violating California anti-discrimination law.

    I can appreciate the argument that a liberal society protects religious freedom, and that we should thus allow doctors in non-emergency cases to refer patients to their colleagues for procedures which violate their consciences.

    But what are the limits of such exemptions? What if a doctor opposed divorce, and thus refused to perform insemination for a heterosexual woman in her second marriage? What if she opposed interfaith marriage, and refused to perform insemination for a Christian married to a Jew, or even for a Catholic married to a Methodist?

    Or what if a doctor refused to perform insemination for anyone except Muslims, on the grounds that children ought only to be raised in Muslim households? These are questions our opponents never bother to consider when they play the religious-conscience card.

    (2) “I’m part of a New Jersey church group punished by the government because we can’t support same-sex marriage.”

    No, you’re (an actor playing) part of a New Jersey church group that operates Ocean Grove Camp. Ocean Grove Camp received a property-tax exemption by promising to make its grounds open to the public; it also received substantial tax dollars to support the facility’s maintenance. It then chose to exclude some of those taxpayers—in this case, a lesbian couple wishing to use the camp’s allegedly “public” pavilion for their civil union ceremony. So naturally, New Jersey revoked the pavilion’s (though not the whole camp’s) property-tax exemption.

    (3) “I am a Massachusetts parent helplessly watching public schools teach my son that gay marriage is OK.”

    Massachusetts parents—like any other parents—can teach their children what they wish at home. What they cannot do is dictate public school curriculum so that it reflects only the families they like.

    What these complaints make abundantly clear is that by “freedom,” our opponents mean the freedom to live in a world where they never have to confront the fact that others choose to exercise their freedom differently.

    In other words, they intend the very opposite of a free society.

    According to the NOM ad, in seeking marriage equality, gay-rights advocates “want to change the way I live.”

    There is a tiny grain of truth in this latter claim. Marriage is a public institution. If you enter the public sphere, you may think or feel or say whatever you like about someone’s marriage, but you nevertheless must respect its legal boundaries.

    Even so, I think our opponents have incredible chutzpah to frame this issue as being about personal liberty. Freedom means freedom to differ, not to obliterate difference.

    Or as Wanda Sykes aptly put it, capturing the irony of the freedom complaint:

    “If you don’t believe in same-sex marriage…then don’t marry somebody of the same sex.”