Galois

Conjugal Marriage

I've recently read the report, The Future of Family Law (pdf), prepared by the Council on Family Law and principal investigator, Dan Cere.  This is the report that discussed the competing models of marriage about which I wrote briefly last week.  I'll turn to the report itself for a good description of what it is about:

Here is our central thesis: the ongoing disputes in family law are centrally about competing visions of marriage...The competing visions of marriage at the heart of the family law debate are deeply incompatible -- the adoption of one model of marriage moves us in a very different direction than its alternative. [p. 9]

The report refers to these two visions as the "conjugal model," which it claims was "broadly reflected in law and culture until quite recently," and a newly emerging competing vision, the "close relationship model." 

Before I explain how the report defines these models, I should note that the choice in names is rather unfortunate.  The Future of Family Law can be seen as--and indeed I believe sees itself as--a response to two recent and highly influential reports on family law from the US and Canada respectively, and it makes frequent reference to these reports.  The first is a report entitled Principles of the Law of Family Dissolution published in 2002 by the American Law Institute.  The second is a report entitled Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships published in 2001 by the Law Commission of Canada.  From reading The Future of Family Law I got the distinct impression that the names for the models came from the Canadian report, and that as the title of said report would indicate, the Law Commission of Canada favored replacing the conjugal model of marriage with a new close personal relationship model of marriage.  Upon reading the LCC report, however, I discovered that it uses the terms "conjugal relationship" and "close personal relationship" quite differently.  The word "conjugal" is simply an adjective form of "marriage" and as such it might seem weird to refer to a "conjugal model" of marriage when marriage is by definition conjugal.  Thus it is not surprising that the LCC report doesn't refer to a conjugal model of marriage, but rather conjugal relationships which includes marriage and what in the US we might call common law marriage.  Specifically the term "conjugal relationship" is one that has been used by Canadian courts and often incorporated into Canadian laws.  Most often they refer to the case, Molodowich v. Penttinent (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) which set out the factors to be considered in determining whether a relationship is or was conjugal.  They include:

(1) Shelter: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?;
(2) Sexual and Personal Behavior: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity? (c) What were their feelings towards each other? (d) Did they communicate on a personal level? (e) Did they eat meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?;
(3) Services: What was the conduct and habit of the parties in relation to: (a) Preparation of meals, (b) Washing and mending clothes, (c) Shopping , (d) Household maintenance, (e) Any other domestic services?
(4) Social (a) Did they participate together or separately in neighborhood and community activities? (b) What was the relationship and conduct of each of them towards the members of their respective families and how did such families behave towards the parties?
(5) Societal: What was the attitude and conduct of the community towards each of them and as a couple?
(6) Support (economic): (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) Children: What was the attitude and conduct of the parties concerning children?

See for example British Columbia's Family Status Recognition Act which refers to explicitly to Molodowich in setting out the criteria of a "marriage-like relationship":

3. (1) If a court must determine whether a marriage-like relationship exists between people who are not married, regard may be had to
(a) the duration of the relationship,
(b) the nature of the relationship,
(c) the extent to which the financial interests of the parties have been merged,
(d) the extent to which direct and indirect contributions have been made by either party to the other or the mutual well-being of the parties,
(e) the extent to which the parties' are socially and emotionally interdependent,
(f) whether the parties hold each other out as partners, and
(g) whether the parties have together taken responsibility for raising children.

The LCC report notes that in addition to these conjugal relationships (which include same-sex couples) there are other close personal relationships between which are non-conjugal in nature.  These include non-conjugal relationships between relatives--like an adult child moving back in with parents, an elderly parent moving in with a married or unmarried child, or two adult siblings living together--and non-conjugal relationships between non-relatives such as close friends and particularly caregivers for the disabled.  So when the LCC report talked about moving "beyond conjugality" and "close personal relationships" it was referring not to replacing any model of marriage, but rather to having parliament consider on a law-by-law basis whether to extend laws to cover other non-conjugal relationships which are clearly not marriage.  Note that even before the report, same-sex conjugal relationships and cohabiting couples were already generally treated as marriage by the various provincial and federal family relation acts.

In any case, as I said before, Cere's report uses "conjugal model" in a very different sense.  Whereas the LCC report would follow Canadian law in considering cohabitation and gay and lesbian relationships to be conjugal in nature, it is clear that Cere does not.  So let us examine what he means by the "conjugal model."  He describes this vision of marriage as follows:

Marriage in this view is a sexual union of husband and wife, who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have.  In essence, conjugality refers to the sex-bridging, procreative dimension of marriage. [p. 12]

That first sentence is one that I can endorse.  It is similar to what I called the "promise of permanence" model" where I quoted Waite and Gallagher:

Marriage is, above all, seen as a permanent union ("until death do us part"), which includes the promise of sexual union ("forsaking all others"), of financial union ("with all my worldly goods I do thee endow"), and of mutual support ("to love, honor, and cherish").

It is also similar to how the Statement of Principles of the Marriage Movement described marriage in 2000:

What is Marriage? Six Dimensions.

Marriage has at least six important dimensions:

Marriage is a legal contract. Marriage creates formal and legal obligations and rights between spouses. Public recognition of, and protection for, this marriage contract, whether in tax or divorce law, helps married couples succeed in creating a permanent bond.

Marriage is a financial partnership. In marriage, "my money" typically becomes "our money," and this sharing of property creates its own kind of intimacy and mutuality that is difficult to achieve outside a legal marriage. Only lovers who make this legal vow typically acquire the confidence that allows them to share their bank accounts as well as their bed.

Marriage is a sacred promise. Even people who are not part of any organized religion usually see marriage as a sacred union, with profound spiritual implications. "Whether it is the deep metaphors of covenant as in Judaism, Islam and Reformed Protestantism; sacrament as in Roman Catholicism or Eastern Orthodoxy; the yin and yang of Confucianism; the quasi-sacramentalism of Hinduism; or the mysticism often associated with allegedly modern romantic love," Don Browning writes, "humans tend to find values in marriage that call them beyond the mundane and everyday." Religious faith helps to deepen the meaning of marriage and provides a unique fountainhead of inspiration and support when troubles arise.

Marriage is a sexual union. Marriage elevates sexual desire into a permanent sign of love, turning two lovers into "one flesh." Marriage indicates not only a private but a public understanding that two people have withdrawn themselves from the sexual marketplace. This public vow of fidelity also makes men and women more likely to be faithful. Research shows, for example, that cohabiting men are four times more likely to cheat than husbands, and cohabiting women are eight times more likely to cheat than spouses.

Marriage is a personal bond. Marriage is the ultimate avowal of caring, committed, and collaborative love. Marriage incorporates our desire to know and be known by another human being; it represents our dearest hopes that love is not a temporary condition, that we are not condemned to drift in and out of shifting relationships forever.

Marriage is a family-making bond. Marriage takes two biological strangers and turns them into each other's next-of-kin. As a procreative bond, marriage also includes a commitment to care for any children produced by the married couple. It reinforces fathers' (and fathers' kin's) obligations to acknowledge children as part of the family system.

[It should be noted that the Marriage Movement's website is maintained by the Institute for American Values, one of the chief sponsors of the Council on Family Law and copyright holder of The Future of Family Law report.  Furthermore a number of signatories to the Statement of Principles also served on the Council on Family Law.] 

Cere's second sentence, about the conjugal view being in essence the procreative dimension, doesn't seem to follow from the first and it certainly doesn't seem to agree with the Statement of Principles of the Marriage Movement.  There the procreative aspect of marriage was but one part of one of the six important dimensions of marriage.  I believe the Marriage Movement's model of marriage more accurately summarizes the way marriage has been reflected in law and culture and better describes the importance of marriage to our society.

If we examine why Cere believes the conjugal model of marriage is so important we might actually be more inclined to support same-sex marriage.  According to The Future of Family Law:

Conjugal marriage has several characteristics.  First, it is inherently normative.  Conjugal marriage cannot celebrate  an infinite array of sexual or intimate choices as equally desirable or valid.  Instead, its very purpose lies in channeling the erotic and interpersonal impulses between men and women in a particular direction: one in which men and women commit to each other and to the children that their sexual unions commonly (and even at times unexpectedly) produce. [p. 12]

One of the main reasons many people support permitting same-sex couples to marry is this normative aspect--see for example, Rauch or Carpenter.  For gays and lesbians the erotic and interpersonal impulses are not between men and women, but rather between people of the same sex.  These too should be channeled in a direction where they commit to each other and to children they may have.  And, of course, children are not the only reason for channeling sexual impulses.  One obvious reason is the public health benefit of reducing sexually transmitted infections.  The Statement of Principles, borrowing on the work of Waite and Gallagher and others, gives us more:

Unmarried hospital patients are two-and-a-half times as likely to require nursing home care, even after taking into account the severity of illness, the diagnosis, age, gender, and race.  Elderly married men and women are also less likely than unmarried senior citizens to enter a nursing home.

Married adults live longer, healthier, happier, and more affluent lives than adults who don't marry or don't stay married. This phenomenon is not simply an artifact of selection; marriage itself makes adults better off, by offering them greater emotional and financial support, wider and more integrated social networks, important economies of scale, and productive boosts in earnings, parenting capacity, and life management.

Marriage also helps to conserve wealth and expand social capital. At any given level of income, married adults are less likely to experience financial hardship. The longer people stay married, the more wealth they accumulate, whereas length of cohabitation has no relationship to wealth accumulation. Informal partners-who are not held by the wider society to be financially responsible to one another-do not reap the same benefits as the legally married.

When it comes to helping Americans to live a long, healthy life, marriage offers profound advantages as well. As one review of the literature put it: "Compared to married people, the non-married . . . have higher rates of mortality than the married: about 50 percent higher among women and 250 percent higher among men." Marriage lowers the incidence of depression, suicide, and substance abuse (including alcoholism). One longitudinal study following a nationally representative sample of 13,000 men and women over five years found that, after controlling for initial mental health status, the mental health of all singles (never married, separated, divorced, and widowed) declined compared to those who remained married over the entire period.

Thus adults as well as children suffer long-lasting disadvantages when they live in communities where healthy marriage is not the norm.

Not only are there direct reasons why the norm of marriage should be extended to gay and lesbian couples, but there are also several reasons to believe that by not permitting them to marry we will weaken marriage's normative value for straight couples as well.  As Jonathan Rauch explained in an article in Reason:

At long last, gay marriage provides an opportunity to climb back up the slippery slope by reaffirming marriage's status as a norm—not just as a right but as a rite, the gold standard for committed relationships. Gay marriage dramatically affirms that love, sex, and marriage go together—that if you really care, you marry. No exclusions, no excuses

So gay marriage entails potential social benefits as well as potential risks, even apart from the unquestioned benefits for gay couples. And there is a further element, as important as it is overlooked. Banning gay marriage entails its own risks to marriage. And those are not small risks.

Because society has an interest in seeing same-sex couples settle down and look after one another, and because gay couples' friends and family care about their well-being, committed gay couples are winning increasing social support. One way or another, legal support will follow. Banning gay marriage guarantees that the country will busy itself creating gay-inclusive alternatives to marriage (which will be tempting to heterosexuals) and bestowing legal rights and social recognition on cohabitation (which is open to heterosexuals by definition). The result will be to diminish marriage's special status among a plethora of "lifestyle alternatives"—the last thing marriage needs.

Moreover, the gay exclusion risks marginalizing marriage by tainting it as discriminatory. A March Los Angeles Times poll finds that more than 80 percent of young people (ages 18 to 29) favor anti-discrimination protections for gay people. More than 70 percent believe gays should receive the same kinds of civil-rights protections that are afforded to racial minorities and women. More than half favor gay adoption, three-fourths believe that "a gay person can be a good role model for a child," and more than 70 percent can "accept two men or two women living together like a married couple." Seventy percent describe themselves as sympathetic to the gay community (versus 43 percent of people 65 and older). And three-fourths support gay marriage or civil unions—with the plurality favoring marriage.

In other words, America's young are much more hostile to discrimination than to gays or gay marriage. They will increasingly view straights-only marriage the way their parents have come to view men-only clubs: as marginal, anachronistic, even ridiculous. This is not conjecture; it is already beginning. San Francisco regarded its decision to marry gay couples as a protest against discrimination, and Benton County, Ore., recently stopped issuing marriage licenses altogether, on the grounds that it wanted no part of a discriminatory institution.

Note that this makes sense if the norm of marriage is to channel sexual impulses into what is hoped is permanent monogamous relationships with an obligation to care for each other and the couple's children.  The fact that same-sex couples will not procreate sexually does not weaken this norm, for it emphasizes that ALL sexual unions should be tied to marriage.  Thus it does not "celebrate an infinite array of sexual or intimate choices as equally desirable or valid."  It celebrates the choice of marriage (and the obligations and expectations it entails) as being more desirable than cohabitation or some new alternative to marriage.  If, however, the goal were to channel all people, gays and lesbians included, into heterosexual relationships, then the prohibition on same-sex marriage would make more sense.  This norm, though, should not be confused with the last.  The former was a norm of how to structure one's sexual relationships, the latter is a norm about with whom to have such relationships.  If anyone wished to argue that the government should try to steer gays and lesbians into heterosexual relationships, they should expressly make that argument and not confuse it with the argument that marriage should by preferred over cohabitation or other structural alternatives.

The Future of Family Law also claims:

Another characteristic of conjugal marriage is that it is fundamentally child-centered, focused beyond the couple towards the next generation.

Of course another reason many people support same-sex marriage is because it would greatly benefit the children of same-sex couples.  As usual, the report does not try to explain why marriage would not benefit those children.  Instead it emphasizes research (pdf) showing that children growing up with married biological parents generally do better than those growing up with stepparents.   Although there is some concern with taking these conclusions and applying them to same-sex parents who adopt, there is a much greater problem here.  Just as the discussion on the normative value of marriage seemed to mix up the structure of the relationship with choice of partner in that relationship, I believe this discussion on children also mixes up the two different issues.  Family structure matters for children and marriage is the best structure.   (I will explain in the next post why the research relied upon by Cere's report, in fact, gives us reasons to believe marriage would be the best structure for same-sex parents as well.)  Certainly who the parents are will also make quite a difference in how a child is raised.  But again that is a different issue, and those that wish to argue that same-sex couples should not adopt should be clear about their intention and not confuse it with the argument that marriage is better for raising children than cohabitation, or the argument that divorce has an adverse impact on children.   

Now that we have looked at the conjugal model of marriage, let us examine how the report described the competing vision, the close relationship model:

In this new view, marriage is seen primarily as a private relationship between two people, the primary purpose of which is to satisfy the adults who enter it.  Marriage is about the couple.  If children arise from the union, that may be nice, but marriage and children are not really connected. [p. 14]

At that point a footnote references to North American cases ruling that the government must permit same-sex couples to marry, Halpern v. Canada and Goodridge v. Dept Public Health.  As noted by Maggie Gallagher last week, Judge Parrillo's concurring opinion in Lewis v. Harris seized upon this idea as he wrote:

No doubt, plaintiffs have taken their bearings from the "close personal relationship" model of marriage espoused in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Citing "respect for individual autonomy," id. at 949, the Goodridge plurality defined marriage simply as "the exclusive and permanent commitment of the married partners to one another[]," id. at 961; "the voluntary union of two persons as spouses, to the exclusion of all others[]," id. at 969; and "at once a deeply personal commitment to another human being and a highly public celebration of ideals of mutuality, companionship, intimacy, fidelity, and family." Id. at 954.

Of course that is not all the court in Goodridge said about marriage, and those statements themselves are not so controversial.  The description of marriage in the Statement of Principles makes similar claims about marriage. And the court clearly did not discount the fundamental importance of marriage for the welfare of children.  It repeatedly emphasized that plaintiffs were seeking to secure the legal protections and benefits of marriage for their children.  The opinion also stated:

Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth's strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, the fact remains that marital children reap a measure of family stability and economic security based on their parents' legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one's parentage.
***
Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of "a stable family structure in which children will be reared, educated, and socialized."
         
No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children.  The preferential treatment of civil marriage reflects the Legislature's conclusion that marriage "is the foremost setting for the education and socialization of children" precisely because it "encourages parents to remain committed to each other and to their children as they grow."

Likewise Halpern never denied the importance of marriage for raising children, it just noted that same-sex couples also raise children so this fact was not a reason to make marriage exclusively heterosexual:

We fail to see how the encouragement of procreation and childrearing is a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution. Heterosexual married couples will not stop having   or raising children because same-sex couples are permitted to marry. Moreover, an increasing percentage of children are being born to and raised by same-sex couples.

In ruling that same-sex couples could form conjugal relationships the Supreme Court of Canada relied on the factors of Molodowich.  While it is true that in that decision children is listed as merely one of seven factors that make a relationship "marital", we should note that the Statement of Principles lists children as one aspect of one out of six dimensions.  That's not that different.  And this view of marriage in Molodowich (from 1980) seems to predate the "close relationship theory" which Cere describes as emerging in the 1980's (with its first major journal starting in 1984).  It seems to me there has always been an understanding that children are an important aspect of marriage, just not the only important aspect of marriage.  The model of marriage advocated in Canada and Massachusetts continues this idea that marriage and children are connected, in particular marriage is quite valuable for children, but that marriage is not solely about children.

The biggest problem with Cere's report, which I have alluded to above, is that it conflates multiple issues.  It constantly groups unmarried opposite-sex couples together with same-sex couples and It assumes that same-sex marriage must necessarily be "couple-centered."  For example the report states:

The problem with close relationship theory is that it is fine-tuned to discover exactly what it predicts, namely, that unmarried same-sex and opposite-sex couples reveal the same patterns of interpersonal intimacy evident in married couples. [p. 20]

Overall, though, the argument that cohabiters have a general right to be treated as married has made relatively little headway in the United States, except in the case of same-sex couples who can legally marry in Massachusetts. [p. 22]

The distinct dichotomies that should be seen in views of family law are best seen when the report looks at four possible outcomes in family law from the different models of marriage.  The first is the equivalence between cohabitation and marriage:

The first direction that family law might take is to reduce the distinctions between marriage and cohabitation by treating more and more cohabiting couples as if they were married. [p. 21]

Here the dichotomy could best be said to be between a "functional model" of marriage and a "rite based model" of marriage.  In the former whether a relationship is treated like a marriage is determined on a case-by-case basis with flexible factors asking whether it "functions" like a marriage.  In the latter a relationship is treated as a marriage if and only if the couple went through the proper ceremony.  It is essentially the same argument as to whether common law marriages should be recognized.  On this point, the report is at its strongest.  The ALI report and the LCC report both advocate moving in the direction of the "functional model" (although in Canada the approach is at least 25 years old) and Cere responds with many valid and strong criticisms backed by research showing that cohabitation does not do the same thing as marriage.  As he notes:

There are at least two serious problems with the equivalence approach.  First, it runs roughshod over the long-established principle that marriage requires consent.  Cohabiters are now to be locked by government into a marital regime whether they like it or not.  [p. 24]

The second problem with the equivalence approach is that social science evidence by and large fails to support its central contention, which is that marriage is just a formality.  Instead, the differences between marital and cohabiting relationships appear to be real and significant, at least in the United States, where most of the research has been conducted.  [p. 25]

The "equivalence" regime is unjust because it treats couples who are unwilling to make a marriage commitment as if they have done so.  It is unwise because the law communicates to younger people the demonstrably false idea that marital status makes no difference for the well-being of a couple or their children.  [p. 25]

The last two statements demonstrate part of the problem in lumping same-sex couples in with cohabiters.  They are willing to make a marriage commitment and thus it would be unjust to treat them as if they had not done so.  It would be unwise because in arguing against same-sex couples being able to marry when they are raising children, the state is forced to argue that marital status makes no difference for the well being of the couple or their children.  Finally we note that when states refuse to allow same-sex couples to marry it leads states, local governments, and private corporations and unions to develop "domestic partnership" registries or other alternatives that get treated like marriage.  Marriage maintains its heterosexual status, but at the cost of its normative status.

The second possible outcome discussed is redefining marriage as couple-centered.  What Cere really means is redefining it as gender neutral, but he believes this is inherently couple-centered and the opposite-sex requirement is absolutely necessary for the "child-centered" view to hold.  If you don't buy that equivalence ("same-sex permitted=couple-centered" "opposite-sex exclusive=child-centered) this whole section of the report makes no sense.  For his entire concern is that those who hold the "conjugal view" will be seen as discriminatory:

In classrooms and courtrooms today, proponents of the couple-centered conception of marriage are arguing that the commonly held view of marriage as a conjugal union of man and woman is a prejudice analogous to racism. [p. 26]

This strong language suggests that the legal creation of a couple-centered understanding of marriage is achieved by placing the older conjugal meaning of marriage under a moral and legal cloud of suspicion. It will place the law in a stance that is hostile towards cultural and religious communities that adhere to the ethos of conjugal
marriage as the backbone of their communal life. [p. 27]

Of course none of the judges in the same-sex marriage cases are arguing that a child-centered view of marriage is discriminatory or the idea that marriage is crucial for children is discriminatory.  They just fail to see how restricting marriage to a man-woman union does anything to help the children of opposite-sex couples and it seems to hurt the children of same-sex couples, precisely because marriage is so important for children.  Of course, this concern is one advantage of having the legislature initiate same-sex marriage while emphasizing the great value it would have for children.  The government would not be making a statement about the legitimacy of views that people should only marry someone of the opposite-sex, or that children do better in such marriages.  Just as the current laws which allow interfaith couples to marry do not mean that those who think such marriages are a bad idea, and those who worry about the children of such marriages are discriminatory. 

The third possibility the report mentions is the disestablishment of marriage and state.  That is the state would get rid of civil marriage and only have some form of registered relationships.  While the LCC report considered and rejected this view, I did get the impression that it did so only because it knew such a view would be unpopular and that the report's authors might have actually favored disestablishment. After spending paragraphs speaking of the advantages of disestablishment the LCC report merely states:

While there are many principled advantages to this model, it is not likely an option that would appear very attractive to a majority of Canadians. Replacing marriage with a system of registration undermines choice in the regulation of close personal relationships. Removing marriage as a choice for conjugal couples prevents them from continuing to use a legal mechanism that many regard as fundamental to their commitment. While further debate about the appropriate role of the state in marriage, including the possibility of removing the state from the marriage business, is worthwhile, we do not believe that this is a viable reform option at this time.

In any case, Cere does a nice job in discussing the problems with this view (one favored by a few on the left and right), but this view is certainly not dependent on the same views that lead one to support same-sex marriage.

Finally The Future of Family Law asks the slippery slope question "Why Two?":

Critics of legalizing same-sex marriage have occasionally argued that once gender is removed from the definition of marriage, there will be little rationale to limit the number of people in a marriage. This “slippery slope” argument is usually derided by advocates of same-sex marriage as being made in bad faith. What most people do not know is that the argument for the legal recognition of polyamory is more likely today to be raised in legal circles by leading proponents of close relationship theory, not critics of same-sex marriage.

But as we have seen the arguments in favor of same-sex marriage do not depend on this idea of recognizing any "close relationship."  This amounts to little more than some people who support same-sex marriage also support polyamory.  The fact is, fidelity and monogamy or key to the view of marriage as, say, expressed in the Statement of Principles.

The idea that support for same-sex marriage is dependent on a view that marriage doesn't matter or family structure doesn't matter is quite surprising coming from so many supporters of the Marriage Movement.  They should know that the issue of cohabitation vs. marriage and the issue of heterosexual exclusive marriage vs. gender neutral marriage are distinct.  In December 2004 the Marriage Movement released another statement reemphasizing the importance of marriage to society.  In it they realized that same-sex marriage had become a hot button issue, and they noted:

The second legal challenge is today’s great debate over whether or not to permit same-sex couples legally to marry. At issue is whether it is possible, and in what ways it could be possible, to reconcile two important social values — one value being the importance of equal dignity and treatment for all citizens, and the other being the importance of marriage as a vital, pro-child social institution. From the perspective of marriage and the marriage movement, the current controversy over equal marriage rights for same-sex couples is the most important social policy debate of our generation. It is also an issue on which we in the marriage movement currently hold divergent views.

Goal Five. We will work with each other, and our fellow citizens, to create forums for thoughtful examination of the various possible legal and public policy solutions to the issue of same-sex unions, evaluating each proposed solution according to whether it would be likely to bring us closer toward or take us further away from our mission.

Endnote 10.  Our mission statement is not intended to endorse or reject particular public policy proposals regarding same-sex unions. Instead, we seek here to express as clearly as possible the broad social change goal to which we in the marriage movement  are committed. How best to achieve that goal when it comes to public policies for same-sex unions poses issues on which people of goodwill can disagree, on which we in the marriage movement currently hold diverse views, and about which we believe that we, and the nation as a whole, should have civil and serious discussion.

I'm not suggesting that Cere or the Council on Family Law not report on its concerns with legalizing same-sex marriage, but I think it would have been better if had been done separately from a report on their concerns with the trend towards the equivalence of cohabitation and marriage.  It would have made their positions on each issue more clear.

This ends a rather lengthy post.  As promised, my next post will be about why one should expect the structure of marriage to be better for same-sex couples raising children.  Finally--but certainly after a week off next week--I will address the second part of the report on The Future of Family Law which focused on "Parenthood: The Next Legal Frontier."

[Thanks to Ampersand for bringing to my attention The Statement of Principles of the Marriage Movement]

 

Models of Marriage

At MarriageDebate.com, Maggie Gallagher notes a significant development from the Lewis decision, especially from Judge Parrillo's concurrence.  The opinion cites work of Dan Cere to the effect that there are competing models of marriage out there.  The Massachusetts court in Goodridge espoused the "close personal relationship" model of marriage which the New Jersey court rejected in favor of what I guess is the "procreative" model of marriage.  I'm trying to figure out what model of marriage I would espouse.  My views on marriage are pretty well summed up by Maggie Gallagher and Linda Waite when they wrote in The Case for Marriage:

Despite changing attitudes toward sex and gender roles, the substance of the marriage vow as Americans understand it has changed surprising little.  Marriage is, above all, seen as a permanent union ("until death do us part"), which includes the promise of sexual union ("forsaking all others"), of financial union ("with all my worldly goods I do thee endow"), and of mutual support ("to love, honor, and cherish").
Each part of this public vow is part of the punch marriage packs, the secret to its power to change lives.  But if one part of this package is more important than the others, it is probably the promise of permanence.

The promise of permanence is key to marriage's transformative power. People who expect to be part of a couple for their entire lives--unless something awful happens--organize their lives differently from people who are less certain their relationship will last.  The marriage contract, because it is long-term, encourages husbands and wives to make decisions jointly and to function as part of a team.  Each spouse expects to be able to count on the other to be there and to fulfill his or her responsibilities.  This expectation of  a long-term working relationship between husband and wife leads to substantial changes in their behavior, of which the most important is, perhaps, what economists call specialization.

I believe that model of marriage, the "promise of permanence" model can and should be applied homosexual couples as well as heterosexual couples.  I don't believe that marriage is essentially a procreative union, although of course many married couples will procreate and marriage is the optimal setting for procreation because of how it transforms the relationship.

Lewis v. Harris: Appellate Division

One of the cases I have been following on this blog is the New Jersey marriage case Lewis v. Harris.  I have written about some of the families involved, as well as some of the issues involved, explaining New Jersey's balancing test which makes this case somewhat different than other marriage suits.  Last week the Appellate Court handed down their 2-1 decision (pdf) upholding the lower court ruling in favor of the state.  From here the case will most likely move to the New Jersey Supreme Court, but in the meantime I thought I would share some highlights of the majority decision, Judge Parrillo's concurrence, and Judge Collester's dissent. [Throughout I will freely omit internal citations].  This post is a bit lengthy, but then the original three decisions combined for 77 pages!

I.  The Majority Opinion (written by J. Skillman)

At issue was the plaintiffs claim that the marriage restriction violated their state due process and equal protection rights as guaranteed by the article I, paragraph 1 of the New Jersey Constitution which reads:

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

The NJ Supreme Court had previously ruled the above clause includes a right of members of the opposite sex to marry, but the question now was whether it also included the right of members of the same sex to marry.  The majority determined it does not do so.  They started by noting:

Our Supreme Court has indicated that in determining whether a claimed right is entitled to protection as a matter of substantive due process, a court should "look to 'the traditions and [collective] conscience of our people to determine whether a principle is so rooted [there] . . . as to be ranked as fundamental.'"

The court concluded that marriage between members of the same sex is not deeply rooted in New Jersey's tradition.  To further this claim the court examined society's view of marriage:

However, our society and laws view marriage as something more than just State recognition of a committed relationship between two adults.  Our leading religions view marriage as a union of men and women recognized by God, and our society considers marriage between a man and woman to play a vital role in propagating the species and in providing the ideal environment for raising children....

...Indeed, the very cases that plaintiffs rely upon for the proposition that there is a fundamental right to marry reflect these common understandings of the religious and social foundations of marriage that limit the institution to members of the opposite sex.  For example, in [Turner], the Court noted that "many religions recognize marriage as having spiritual significance; . . . and . . . , therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication."  In [Zablocki], the Court "recognized that the right 'to marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause," and described marriage "as 'fundamental to the very existence and survival of the race.'"

Two things strike me about this argument.  The first is its reliance on religious views.  The quote from Turner talks about the spiritual significance of marriage and it being an exercise of religious faith.  And yet the court rejected this amicus brief filed by more than 100 New Jersey clergy members from a variety of faiths arguing that this religious and spiritual dimension is equally vital for homosexual couples and their religious communities.  The majority certainly deemed religious support significant as they note:

Indeed, there is arguably a stronger foundation for challenging statutes prohibiting polygamy than statutes limiting marriage to members of the opposite sex "because, unlike gay marriage, [polygamy] has been and still is condoned by many religions and societies."

The other thing that struck me was the angle the court took with the procreation argument.  The court explains in footnote 2 [emphasis added]:

The Attorney General disclaims reliance upon promotion of procreation and creating the optimal environment for raising children as justifications for the limitation of marriage to members of the opposite sex.  However, several amici curiae, including the New Jersey Coalition to Preserve and Protect Marriage, the New Jersey Family Policy Council and the New Jersey Catholic Conference, argue that our current form of marriage provides an environment in which procreation may be embraced and the optimal condition established for child rearing.  Although an amicus curiae is ordinarily limited to arguing issues raised by the parties, an amicus may present different arguments than the parties relating to those issues.  We also note that plaintiffs were afforded an adequate opportunity to answer those arguments; in fact, half of their reply brief is devoted to those arguments.  Therefore, we consider the amici's arguments regarding procreation and child rearing to be properly before us. In any event, there is no need for us to determine the validity of those justifications for limitation of the institution of marriage to opposite-sex couples.  We only note that the historical and prevailing contemporary conception of marriage as solely a union between a single man and a single woman is based partly on society's view that this institution plays an essential role in propagating the species and child rearing. 

Once the court established that there was no due process right to marry someone of the same sex, it quickly dismissed the equal protection argument:

In contrast, the essential question in this case is whether same-sex couples have any constitutional right to marry.  For reasons set forth at length in section I of this opinion, we are satisfied that only members of the opposite sex have a constitutionally protected right to marry.  Therefore, plaintiffs have failed to satisfy their threshold burden to show the existence of an "affected right," and for that reason the State is not required to show that the "public need" for restrictions upon that right outweigh plaintiffs' interest in its exercise.

That last statement was in reference to the balancing test about which I had written previously, and the court did not apply it because there was no "affected right".

II. Judge Parrillo's Concurrence

Judge Parillo briefly noted the distinction between the right to marry, and the rights of marriage.  He noted that with the passage of New Jersey's domestic partnership law, the plaintiff's could avail themselves of many of the rights of marriage.  He noted that if there was a specific right of marriage that was not contained in the DP law, the plaintiffs could seek to challenge access to that specific right, as he wrote:

Of course, to the extent those laws unconstitutionally withhold any of the publicly-conferred tangible or intangible benefits of marriage from same-sex couples, plaintiffs remain free to redress any such deprivation on an ad-hoc basis, by challenging the particular statutory exclusion resulting in disparate or unfair treatment.

This same idea was also mentioned in the majority opinion:

...and they may enter into domestic partnership unions under the Domestic Partnership Act that entitle them to many of the same legal benefits enjoyed by married opposite-sex couples.  Moreover, domestic partners may assert claims that the due process and equal protection guarantees of article I, paragraph 1, of the New Jersey Constitution entitle them to additional legal benefits provided by marriage. 

I found it interesting that in California a court used the existence of a domestic partnership law as an argument against prohibiting same-sex marriage, and here such a law was used in favor of the prohibition.  In any case, the concurrence continued onto the procreation argument:

The simple fact is that the very existence of marriage does "privilege procreative heterosexual intercourse."  Marriage, plainly speaking, is a privileged state and that is precisely why plaintiffs are waging this battle.  Procreative heterosexual intercourse is and has been historically through all times and cultures an important feature of that privileged status, and that characteristic is a fundamental, originating reason why the State privileges marriage.  When plaintiffs, in defense of genderless marriage, argue that the State imposes no obligation on married couples to procreate, they sorely miss the point.  Marriage's vital purpose is not to mandate procreation but to control or ameliorate its consequences - the so-called "private welfare" purpose.  To maintain otherwise is to ignore procreation's centrality to marriage...

...Indeed, there are reasons for limiting unfettered access to marriage.  Otherwise, by allowing the multiplicity of human choices that bear no resemblance to marriage to qualify, the institution would become non-recognizable and unable to perform its vital function.

III.  Judge Collester's Dissent

Judge Collester started his dissent by noting the duties and limitations of the court:

In the ongoing public debate there are persons of intelligence, sensitivity and good will on each side of the issue.  Some believe that lawful marriage between persons of the same gender would undermine the essential nature of both marriage and family life.  Others argue that it would give proper recognition to committed same-sex relationships and by doing so enhance marriage.  Our function as judges is to interpret the Constitution, not rewrite it, and our interpretation must be principled rather than skewed to fit an individual philosophy or a desired result.  Nonetheless, we must interpret our Constitution to uphold individual rights, liberties and guarantees for all citizens even though our conclusion may disappoint or offend some earnest and thoughtful citizens.

The court then noted that crucial to the right to marry is the right of the individual to have the choice in his or her spouse, subject to the state's proper exercise of its authority:

The right to marry is effectively meaningless unless it includes the freedom to marry a person of one's choice.  In [Loving], the United States Supreme Court struck down laws prohibiting interracial marriage under both the Due Process and Equal Protection Clauses of the Federal Constitution.  Zablocki invalidated a Wisconsin law requiring a person under a child support order to meet financial requirements and seek court approval in order to marry.  Prison inmates cannot be foreclosed from marrying a person of their choosing, who is either inside or outside the institution.  See also, Vasquez v. Dep't of Corrections, (holding the denial of a request by an inmate serving a life sentence violated her constitutional right to marry).

Statutory restrictions on the right to marry are few, and they are grounded in the State's proper regulatory authority, commonly called its police power, to protect general health, safety and welfare.  Marriage is prohibited to a child, a close relative, a mental incompetent or a person afflicted with a venereal disease in a communicable stage.  None of the plaintiffs in this case fall within these proscribed categories, and neither the State nor the majority opinion suggest a reason of health, safety or general welfare to justify a prohibition of their right to marry the person of their choosing.

After discussing the families involved in this case, Judge Collester moved to the fundamental area of disagreement:

My colleagues and I agree as to the fundamental nature of the right to marry, but they reject plaintiffs' constitutional claims by defining marriage strictly as heterosexual unions.  By this definition, plaintiffs are not deprived of the right to marry as long as it is to a member of the opposite sex.  But since they cannot marry the person of their choice, it is really no right at all.  By so defining marriage, the majority views plaintiffs' assertion of a right to marry as a claim of a different kind of right or to a different kind of marriage, which is beyond judicial authority to recognize as lawful...

...The argument is circular:  plaintiffs cannot marry because by definition they cannot marry.  But it has the advantage of simplicity.  If marriage by definition excludes plaintiffs from marrying persons of their choosing, then, unlike all others, they have no fundamental or constitutionally protected right  and must seek creation of that right through the political process and a legislative redefinition of marriage.  Therefore, opposite-sex marriage is a tautology.  Same-sex marriage, an oxymoron.  We need go no further.  Case closed. 

I disagree with both the analysis and the result.  To cabin the right to marry within a definition of marriage which prohibits plaintiffs from even asserting a constitutional claim for entitlement to marry the person of their choosing robs them of constitutional protections and deprives them of the same rights of marriage enjoyed by the other individuals of this State, even those confined in State prisons.

After recasting the issue as to whether plaintiffs' claim fits within the restricted definition of marriage, not surprisingly the majority finds no support for marriage between same-sex persons that is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty," and thereby declares that plaintiffs have no fundamental right of marriage. 

The analysis is reminiscent of arguments in support of anti-miscegenation laws before Loving.  Those laws defined marriage as the union of a man and woman of the same race, and proponents presented a long history in support of the definition.  Indeed, in Loving the State of Virginia argued that there was no fundamental right to interracial marriage because "the historic tradition of marriage" did not contemplate such marriages.  In rejecting the argument, the Supreme Court framed the issue not as a claim of right to interracial marriage but rather as an assertion of a fundamental right to marriage.

The dissent then looked at the religion and history argument:

The majority grounds its definition of marriage excluding persons of the same sex upon historic or religious tradition as well as the societal value attached to procreation.  In my view, the first reason is unpersuasive, the second, irrelevant.

With respect to religious beliefs and traditions, it is clear that no matter how marriage is defined, the marriage ceremony has spiritual significance to most, and many consider it a sacrament or exercise of religious faith...

The dissent agreed that in 1947, when the NJ Constitution was ratified, the idea of homosexual marriage was not considered, but that laws of marriage have changed as society's view of marriage had changed:

Certainly, marriage was not perceived as a partnership to the extent that it is today.  The common law concept of marriage as a unity was still prevalent.  Interspousal immunity from civil suit, then considered fundamental to marriage, was not rejected until decades later.  The unity of marriage precluded spouses from being co-conspirators until the 1970s.  A more egregious example was the marriage defense to rape, whereby a husband could avoid prosecution because marriage was a unity and consent by the wife to sexual intercourse was implied.

By far the greatest changes in marriage as it has evolved from its common law unity to a partnership were in terms of its dissolution.  Equitable distribution of property acquired during marriage, rehabilitative alimony, child support guidelines and joint custody are just some of the issues which judges routinely consider, but they were outside the scope of divorce litigation law a generation past.  Indeed, divorce was relatively uncommon when our State Constitution was adopted.  Current estimates are that up to fifty percent of marriages end in divorce, most of which are granted on no-fault grounds, which did not exist in 1947.  The dynamics within marriage have also undergone great changes.  Married couples, with or without children, are commonly both employed.  Single parent households have multiplied as divorce rates have climbed, and adoptions are now more readily available to unmarried persons, including same-sex couples. 

Finally the dissent addressed the procreation argument that the court had revived:

Although the Attorney General disclaims the promotion of procreation as a rationale for prohibiting same-sex marriage, the majority does give it weight, stating that "our society considers marriage between a man and woman to play a vital role in propagating the species and in providing the ideal environment for raising children."  I agree with the Attorney General.  Procreation is irrelevant to the issue before us...

...However, there is not, nor could there be, a threshold requirement to marriage of the intention or ability to procreate.  Of course many heterosexuals marry for reasons unrelated to having children.  Some never intend to do so.  Some are unable to do so by reason of physical inability, age or health.  Moreover, tying the essence of marriage to procreation runs into cases upholding as a right of privacy the election not to procreate.

Also if procreation or the ability to procreate is central to marriage, logic dictates that the inability to procreate would constitute grounds for its termination.  However, as opposed to the inability or unwillingness to engage in sexual intercourse, the inability or refusal to procreate is not a legal basis for divorce or annulment.  Finally, the claim that the promotion of procreation is a vital element of marriage and justifies exclusion of persons of the same gender falls on its face when confronted with reproductive science and technology.  The fact is some persons in committed same-sex relationships can and do legally and functionally procreate.  Cindy Meneghin, Maureen Kilian, Karen Nicholson-McFadden and Marcye Nicholson-McFadden, all plaintiffs in this case, each gave birth to their children following artificial insemination. 

Moreover, the majority mentions the conventional wisdom of "the role that marriage plays in procreation and providing the optimal environment for child rearing," but no authority is given to justify this "optimal" status.  This presents simply as an article of faith and one which ignores the reality of present family life parenting, which includes adoption, step-parenting and the myriad of other relationships of parenting noted by our Supreme Court in V.C.  Further, the argument that opposite-sex persons provide a more suitable environment for raising children because they are married simply underscores that plaintiffs and their children are unjustly treated by denying them a right to marry their committed partners.  Finally, there is nothing in the record to indicate that the eight plaintiffs in this case currently raising or having raised children as natural parents, adoptive parents or step-parents, are providing an environment for growth and happiness of the children that is anything less than optimal.

At this point the dissent related the details of a case relied upon by the majority.  That case M.T. v J.T. concerned the validity of a marriage involving a postoperative transsexual:

We held that M.T. was a woman, that the marriage was valid and that she was entitled to support for the following reason: 

Plaintiff has become physically and psychologically unified and fully capable of sexual activity with her reconciled sexual attributes of gender and anatomy.  Consequently, plaintiff should be considered a member of the female sex for marital purposes.  It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did so here. 

I gather from M.T. that a relationship qualifies as a lawful marriage if the genitalia of the partners are different so that they can engage in sexual intercourse.  Accordingly, history and procreation are irrelevant provided surgery is successful, and the new woman and her partner are then entitled to a constitutional right to marry that neither he nor she had in the pre-op room.  Constitutional rights should not be limited by genitalia or the ability to engage in a particular form of sexual intimacy.   

Finally the dissent concluded by addressing equal protection and essentially agreeing with the concurrence that this case was about more than just the rights of marriage:

As to equal protection, my conclusion is the same.  Our Constitution and the Federal Constitution require that all similarly situated people be treated alike.  It is disingenuous to say that plaintiffs are treated alike because they can marry but not the person they choose.  By prohibiting them from a real right to marry, plaintiffs as well as their children suffer the real consequences of being "different."  While the Domestic Partnership Act gives, at some cost, many, but not all, of the benefits and protections automatically granted to married persons, we have learned after much pain that "separate but equal" does not substitute for equal rights...

...What Sarah Lael and her partner lack and seek may be summed up in the word dignity.  But there is more they will gain from lawful marriage.  That something else goes to the essence of marriage and is probably best left to poets rather than judges.  It is the reason that people do get married.  For marriage changes who you are.  It gives stability, legal protection and recognition by fellow citizens.  It provides a unique meaning to everyday life, for legally, personally and spiritually a married person is never really alone.  Few would choose life differently.

With great admiration for the wisdom, logic and eloquence of my colleagues, I must dissent.

We will have to wait and see how these opinions resonate with the New Jersey Supreme Court and ultimately with the public. 

 

You Could Also Say That About Other Couples

On this site I have tried to explain in detail my views on same-sex marriage.  Among other reasons I have given for my support, and upon which I have elaborated over the course of countless posts, are that I find the use of gender classifications unwarranted and problematic, I think that marriage would greatly benefit children of same-sex couples, and it would help society and the families involved by promoting and protecting stable and secure relationships.  Here and elsewhere I have heard these arguments brushed aside by the remark that they are "just as applicable to other family arrangements that are also denied a right to marriage".  This is a strange sidestep.  For it says nothing about the arguments themselves, for example whether allowing same-sex couples to marry would indeed promote stable and secure relationships or whether that would be a good thing.  Instead it merely asserts that the arguments could also be used in favor of allowing other couples to marry who are now currently prohibited.  If this were true, then we would have arguments in favor of allowing those couples to marry.  Presumably those making this claim, though, find something problematic in allowing these other couples to marry. So even though there are arguments in favor of allowing them to marry, there must also be arguments against allowing them to marry which outweigh these.  Now perhaps there are also arguments against allowing same-sex couples to marry that would outweigh these as well.  But then those arguments should be presented and weighed against these arguments in favor.  Simply saying these arguments could be used elsewhere does nothing to deny that they are arguments in favor of allowing same-sex couples to marry.

That being said, are these arguments really "just as applicable" to other couples?  Well let's examine each in turn.

No other couple is being denied the ability to marry based on gender classifications.  So that argument can't be directly applied to other couples.  The claim must be that a different equal protection argument could be made.  What is the classification involved in those cases?  Preexisting familial relationships. Now it seems strange to argue that we should be just as skeptical of this type of classification as we are of gender classifications.  Hence many state constitutions have provisions like Massachusetts:

Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

It would be especially strange here, though, when those making this claim (that the state should be skeptical of classifying based on familial relationships) would then turn around and ask the court to recognize their familial relationships.

What about children?  We are reminded that a parent and grandparent might also be raising a child together.  Is that comparable to the case of two parents who adopted a child together?  Of course not.  In the former case there is one parent and the other person already has a formal relation to the child, grandparent.  It is the parent who has primary and ultimate responsibility for the child. This is not the case with the child with two parents who have an equal responsibility to the child and must decide together what is best for their family.  But I have also argued the benefit marriage would provide for a child in the situation of a parent and stepparent.  Is the grandparent at least comparable to a stepparent?  While this comparison is certainly more apt than the comparison to a parent, there are still some differences that are quite relevant here.  Consider the case of a single parent who finds someone with whom he she becomes seriously involved to the point of them living together.  That relationship could certainly impact the child, and I would venture it would be better for the child for the newly formed family to be stable and permanent.  They should all be able to live with the expectation that the relationship will last and that the stepparent is not just a temporary visitor in the child's life.  This would be better for the child than a steady stream of boyfriends or girlfriends moving in and moving out.  Do we have the same situation with a grandparent? No. For one thing there won't be a steady stream of grandparents moving in and moving out.  Secondly the relationship between the parent and grandparent (his or her parent) is already a well established and secure relationship.  Even if they reach a point where the grandparent no longer lives with the family, he or she is still likely to be a part of the child's life.  I would say that it would be a very bad idea if we made the relationship between grandparent and child dependent on the the parent and grandparent forming a new exclusive bond.

What about the notion of stable and secure relationships?  Do we want relationships between family member to be stable and secure?  Of course, but we don't need marriage for that and the idea it is necessary could make other family relationships less stable and secure. The key difference is that marriage makes new family.  Close family members already have relationships with legal and cultural implications that are formed generally from birth.  When a couple marries it is part of the process of two people who came to know, love, and trust each other making a commitment to become a family and take on these new obligations to care for each other.  The key to this is the promise of permanence.  As Maggie Gallagher and Linda Waite write in their book, The Case for Marriage, write:

The promise of permanence is key to marriage's transformative power. People who expect to be part of a couple for their entire lives--unless something awful happens--organize their lives differently from people who are less certain their relationship will last.  The marriage contract, because it is long-term, encourages husbands and wives to make decisions jointly and to function as part of a team.  Each spouse expects to be able to count on the other to be there and to fulfill his or her responsibilities.  This expectation of  a long-term working relationship between husband and wife leads to substantial changes in their behavior, of which the most important is, perhaps, what economists call specialization.

But relationships with other family members (parent-child or sibling) are already expected to be permanent.  They know from day one that it is expected to be permanent and don't need to undergo this transformation at some later point.  (And the idea that they do, could weaken the security of existing relationships).  Nor are such relationships based on the same emotional connection as marriage.  Again as Gallagher and Waite write:

To be successful, marriage needs to meet some of the emotional needs of the partners.  Individuals may have many emotionally fulfilling relationships--with children, with parents, with their siblings, or with friends.  But the emotional relationship that underlies marriage is fundamentally different from these because of the couple's exclusive sexual bond.

So I don't buy the claim that these arguments apply just as well to other couples who cannot marry, and even if they did that does not make the arguments any less valid.  The more this issue is debated, the more it seems that the promise of permanence is going to be key to the discussions.  Those who support marriage (or at least civil unions) believe that it is also important for many reasons for gay and lesbian relationships to undergo this transformation.  It is the one of the key differences between marriage and cohabitation.  Those that oppose even civil unions generally don't want gay and lesbian relationships to ever take on this promise of permanence.  They view heterosexuality as the ideal that all should strive towards, and for such relationships to undergo this transformation would be to acknowledge their permanent rejection of heterosexual relationships.  To people with such views there is not much that I could say to change things.  They may come to see things differently someday, but it won't be because of what I write, rather it will be because of who they know. 

 

The Conservative Case for Gay Marriage

Last week I addressed some of the moral concerns that commenter Hayleyanne had brought up with regards to same-sex marriage.  At this point I would like to address some interesting comments she had regarding the conservative approach vs. liberal approach to this issue.  She wrote:

Ultimately, I believe, if you remove the religious/moral component, the reason that many people are against SSM boils down to the difference between conservatives and liberals. Conservatives usually favor the status quo and are cautious with respect to fundamental change. Liberals are more willing to make fundamental changes in the name of progressive ideals. We can take good from both sides. It is a natural "push" and "pull back" that we see when any fundamental change is proposed in society.

Conservatives fear that gay marriage threatens the foundation of our society because it will change the traditional family as we know it. Tinkering with the structure that has served so well through our history is risky and may be unwise-- we don't know. On the other hand, the world is changing. Technological change has made it possible for gay couples to produce children through artificial insemination. Surrogate mothers have emerged. Adoption laws have changed to allow some gay couples to adopt. More acceptance of homosexuality has resulted in some people who were in traditional marriages with kids, coming out as gay. The reality is that we are now in a situation where gay couples are indeed raising children. How they got these kids raises some problematic issues for some people. One need only read some of the comments on your blog to see this. They wonder about the biological parent and what happened to him or her. They wonder about whether children need both a male and a female influence in their lives. Etc. I think these concerns are valid.

On the flip side, we cannot ignore that the reality is that we do have gay couples doing the hard work of raising a family and they should have all the same benefits available to a traditional family.

Personally, I think all of these issues need to be discussed openly in our society. How they are presented is very important. For example, as I have said before, through the courts is not the best way to go IMO as it leaves people feeling as if the court is forcing a change.

The issues should be discussed, fleshed out, and ultimately decided in the court of public opinion. People who come off as harshly denying gay couples with kids the benefits of other families-- wind up looking heartless and unkind. I would ask people in this camp how they propose to protect children being raised in a SS household. But people who try to argue that the two types of relationships are interchangeable and refuse to acknowledge fundamental differences come off as pushing an agenda.

Before I could get around to responding to this myself, I came across (thanks to MarriageDebate.com) this interview with Dale Carpenter conducted by Craig Westover.  I think Prof. Carpenter squarely addresses some of these issues and more, and I encourage more people to read the interview.  Carpenter echoes Hayleyanne's sentiments as he said:

I think gay marriage advocates have to do a better job of explaining how gay marriage is a deeply conservative cause. It is a deeply conservative idea. And they have to do that by appealing to our fellow citizens and not by running to courts.

There is something about courts that makes people want to throw tea into the Boston Harbor. It really upsets them. On the other hand, when these changes are made democratically as they were in California, when California basically very broadly adopted this domestic partner idea, or in Connecticut when Connecticut adopted civil unions, there’s something about legislatures and democratic actions that make people accept the results even when they are on the losing end. Accept the legitimacy of the results -- they may not agree with the results -- but they accept the legitimacy of the results even when they don’t win. That’s what we have to do.

This is an issue I plan to discuss further in an upcoming post later this month.  In the meantime, enjoy the whole interview. 

 

Who Needs Marriage?

In the debate over same-sex marriage, some see civil unions as a politically expedient compromise that would offer some protections for gay and lesbian couples and their families without ruffling quite so many feathers.  Others use even the possibility of civil unions as a means to justify withholding from gay and lesbian couples the true protections of marriage.  Of course once they achieve that purpose, their tone about civil unions shifts a bit (pdf).  When he was pushing to pass Measure 36, a constitutional amendment prohibiting the marriage of same-sex couples, Tim Nashif of the Oregon Family Council was quoted in the Bend Bulletin as saying:

Same-sex couples should seek marriage-like rights through another avenue such as civil unions. --8/20/04

Today, when Oregon is considering a civil unions bill, the Oregon Family Council is leading the fight against it and Nashif tells the Bend Bulletin:

We would be against any measure that takes all the benefits of marriage and then calls it something else.  We don't think Oregonians had that in mind when they passed Measure 36. --4/15/2005

Others try to use other's legitimate criticisms of civil unions as a sign of some form of hypocrisy.  We are accused of not really wanting same-sex couples to have the protections of marriage or else we would jump at civil unions.  And when we applaud Connecticut for at least doing something--although not enough--to protect these families that too is questioned, as Elizabeth Marquardt asks

Help me understand how something you passionately and loudly label as “insulting” and “discriminatory” can also be – when you realize it’s all your going to get for now – “a step” towards what you want? If it is truly discriminates against you, you should never tolerate it under any circumstances, isn’t that right?

Well, one could imagine a situation where some citizens were not allowed to ride on public buses.  Then, as many people point out the gross injustice of the situation and demand equal rights this is forestalled by a move to graciously let them ride certain local buses provided they sit in the back. People would be right to label such a move as "insulting" and "discriminatory" while conceding that it was at least "a step" toward gaining what others take for granted.  This policy truly discriminates against them, but wouldn't there be circumstances--say the need to get to a job to provide for one's family--that would cause some to bear the insult and ride the buses while continuing to push for full equality?

One can learn a great deal from the actual alternatives people support once marriage is taken off the table.  In Oregon the Governor and the Senate are supporting a civil unions bill (SB 1073 pdf) along the lines of what's been passed in Vermont and Connecticut.  Republicans who control the House are pushing a reciprocal beneficiary bill (HB 3476 pdf) that would give a few important, but quite limited, protections to same-sex couples and to close relatives that cannot marry.

The RB bill itself repeatedly emphasizes that it is not for same-sex couples in particular, but rather more generally for the many couples who are prohibited from marriage.  As the bill states:

(1) The Legislative Assembly finds that the people of Oregon have chosen to preserve the tradition of marriage as a unique social institution between one man and one woman. As such, marriages are subject to restrictions, such as the prohibition of a marriage under ORS 106.020 between parties who are first cousins or any nearer of kin to each other.
(2) However, the Legislative Assembly acknowledges that many individuals have significant personal, emotional and economic relationships with other individuals, but are prohibited by law from marrying each other. Examples of such individuals include two individuals who are related to each other, such as a widowed mother and her unmarried son, or two unrelated adults of the same gender.
(3) The Legislative Assembly finds that certain rights and obligations should be extended to couples composed of two adults who are legally prohibited from marrying each other.

Yes, there is nothing particularly remarkable about the situation of gays and lesbians who are being denied the protections of marriage.  Many individuals are in a similar situation. For example, there are all those couples who cannot marry because they are too closely related and there's also the example of a widowed mother and her unmarried son.  OK that last one was actually a particular case of the first, and there actually is no other situation of a couple that would fall under this bill other than (a) individuals who are too closely related to marry and (b) same-sex couples. Still it seemed quite important to the bill's authors to make it clear that someone else was in the "same situation" as gay and lesbian couples.  It nicely frames their attempts to link gay marriage to incestuous marriage and their attempts to claim gays and lesbians are asking for "special" rights. 

Supporters of the civil unions bill point out (pdf) that:

The relationships between committed, same-sex couples who want to form a family and, potentially, raise children are fundamentally different from the relationships between two cousins or two elderly aunts who may rely on one another for a limited time. Furthermore, cousins; elderly aunts; and parents and adult children already enjoy a legal relationship to one another that allows them the limited protections afforded by HB 3476. Using the law to treat same-sex couples like elderly aunts is demeaning and ignores the seriousness of these commitments and the needs of these families.

Then again, opponents of the civil union bill might make similar claims about treating homosexual relationships like heterosexual relationships.  Let us put aside for the moment the question of whether a lesbian woman seeking to marry her soulmate is more like a straight woman in that situation or more like a widow moving in with her son.  Instead we can use this opportunity to compare the bills and see the details of how each group, the civil union supporters and opponents, would have the state treat the gay couple differently than the close relatives and the straight couple respectively.

Let us start by looking at perhaps the most significant difference, how the relationship is dissolved.  A reciprocal beneficiary is terminated either by one member simply signing and notarizing a form, or it terminates automatically when one member marries.  Can you imagine if someone proposed changing the marriage laws so that you could end one marriage simply by marrying someone else?  The need to go through and complete comprehensive divorce proceedings before marrying another is a vital protection of marriage, and it's not because of a child's need for his married mother and father (a person could be leaving a marriage with no children to marry the child's other parent, and yet we would still properly require divorce proceedings). This way of terminating the reciprocal beneficiary may be appropriate for the widow and her son.  They knew they were going to be the primary adults in each other lives for a limited time and either one might find someone to marry at any point. If one of them finds that person he or she should be able to marry.  The son doesn't need to end his relationship with his mother, but the new spouse will naturally take primacy in regards to medical decisions and issues of survivorship.  But opponents of the civil union bill feel that dissolution proceedings would be inappropriate for gay and lesbian couples.  They should be able to leave one another at the drop of a hat.  Hardly a recipe for commitment and stability, but then it seems that's not what they want for gay and lesbian couples.  I believe they are hopeful that the relationships will end and wouldn't want anything to prevent one or both of them from "seeing the light" and marrying someone of the opposite sex.   

The two bills also differ significantly on obligations. Well actually there are no obligations in the reciprocal beneficiary bill.  That may work as far as the widow and son are concerned.  Some obligations may be inappropriate for them.  For example, if the son had a minor child, the grandmother would probably care for her grandchild, but why should she be any more legally obligated for the child's educational expenses than any other grandmother?  Oregon, however, recognizes that a married person is responsible for his or her family.

109.053 Responsibility of stepparent for expenses of stepchild.  The expenses of the family and the education of minor children, including stepchildren, are chargeable upon the property of both husband and wife, or either of them.

It's unclear to me why this obligation should be any different if the stepparent is a woman instead of a man. I guess opponents of the civil unions bill don't want to even consider the possibility of a same-sex stepparent.  For one thing, stepparent adoption is generally easier than a second-parent adoption and they don't want to do anything to make it easier for same-sex couples to parent, nor anything that would further the idea that a child could have two mothers or two fathers.  The grandparent relationship and the stepaprent relationship are already described in Oregon law.  Some people would do all they could to avoid reference to the relationships between same-sex couples and their children, though. 

I have no problem with the reciprocal beneficiary bill for relatives who support one another.  Vermont passed a very similar bill (pdf) at the same time they passed civil unions.  I don't know how necessary it is.  I have heard reports that nobody has signed up for reciprocal beneficiary status in Vermont in the five years they've had it.  Still, I don't see how it hurts and perhaps in Oregon there will be some demand for it.  The idea that such a law is appropriate for same-sex couples demonstrates a view that such relationships should be transient and same-sex couples should not be too dependent on one another for support.  It shows absolutely no consideration for the children of same-sex couples and does little to promote the stability and security which would benefit those couples, their children, and the welfare of Oregon. 

 

Morality and Marriage

Commenter Hayleyanne has asked me to consider certain ramifications of allowing same-sex marriage which I am happy to discuss starting with some of her moral concerns.  She wrote:

Some people are against SSM on moral grounds. If society recognizes gay marriage it essentially puts the State’s seal of approval on such relationships. And although we can say that the government ought not to be making moral judgments, the fact is it does. It makes moral judgments all the time. If SSM is legalized it will result in the state presenting gay marriage as a perfectly acceptable counterpart to traditional marriage and family. It also removes any moral component to SSM. The law is at odds with the beliefs of many Americans. Is this appropriate, given the strong religious beliefs of many Americans?

I would also note that the strong religious beliefs of many Americans lead them to firmly support same-sex marriage.  I question, though, whether the government is really taking sides on this matter should it recognize same-sex marriage.   Certainly if the question was "Should the government recognize same-sex marriage?" any decision by the government one way or the other would be taking a position on the issue, but I disagree that recognition means the state is putting a seal of approval on homosexual relationships.  Marriage is not some sort of seal of approval by the state.  It is certainly not a seal of approval on whom one has taken for a spouse.  When someone in Vegas gets drunk and marries someone they just met, the state is not saying it approves of such a relationship.  When someone marries someone fifty years older merely for his or her money, the state is not approving of that relationship.  I do not believe one should marry a person of another faith, but that is their decision to make, not mine and not the state's.   

It is possible, though, that for some the moral concern is not that homosexual relationships are wrong per se, but rather that the ideal situation in which to raise a child is with parents of the opposite sex.  As Hayleyanne notes:

The State is saying that the traditional family will always be the ideal. What is wrong with this? Why can’t society say that marriage is about family and children and the ideal setting for this is a home with a mom and a dad?

Again I am reminded of the situation of interfaith couples.  I do not believe that is the ideal situation for raising children, but for many reasons I would not support governmental denial of such marriages.  In fact, there are many couples that marry when they are clearly not in the ideal situation to raise children.  This is okay, though, because marriage does not signal that the couple is in an ideal situation to raise children.  What would be the purpose of such a seal anyway?  There is a good chance the couple will raise children regardless of the state's opinion about their situation.  Rather, I believe marriage itself is something that will generally make the environment itself better for raising children.  A cohabiting couple is capable of providing a mom and a dad, but the marriage of said couple would make the environment for raising children significantly better for a number of reasons.  Likewise regardless of one's view on the propriety of same-sex couples raising children, I would think most would agree that the situation would be significantly better if the couple had taken on the obligations and protections of marriage. 

We can really look at two different notions of the ideal here.  Permitting same-sex marriage allows gays and lesbians to select a spouse that some may view as less than ideal, at least for raising children.  Depending on one's views of sexual orientation, this could have some influence on whom one selects for a spouse.  But even many who believe that it would lead one to take a "wrong" spouse would want to leave that decision to the individuals involved.  On the other hand, marriage can be thought of setting an ideal for the structure the relationship should have once the spouse is selected.  It sets the obligations and expectations one spouse has to another and we can rightly value these commitments and believe they are important, especially if the couple is going to raise children.  Permitting same-sex marriage would reinforce this ideal.  To deny same-sex marriage, however, runs the risk of deemphasizing the importance of these commitments and this structure.

Hayleyanne also points to some indirect moral concerns that should be considered when discussing same-sex marriage:

And what about the effect that SSM will have with respect to producing children? SS couples will want to raise a family. How do they do this? Since they cannot produce their own children, they must look to alternatives that may be problematic. Will it put society in a position where it will accept and possibly promote artificial insemination? Or surrogate parenting? What about all the ethical issues these methods raise? Should society jump into this head first without first considering these issues?

Same-sex couples are already raising families, and I believe foremost it is important to emphasize the importance of marriage in protecting those families.  As individual and as a society we also need to consider the implications of many new and old reproductive technologies.  Same-sex couples are not the only ones who face these questions, nor do they even form the majority of those that are faced with such issues directly.  As noted above, supporting government recognition of same-sex marriage does not imply support of same-sex relationships, nor support of them raising children. All the more so it does not imply support for any particular way in which they might come to have children. 

I hope to respond to some of Hayleyanne's other concerns in a future post.  In the meantime I would note that the values promoted when a same-sex couples weds, commitment, sacrifice, and responsibility, are values we can all support regardless of our views on whom one should marry.

 

 

Read for Yourself

In my comment threads there has recently arisen references to Stanley Kurtz's writings on the state of marriage in Scandinavia and The Netherlands. I encourage anyone encountering these ideas for the first time to read firsthand what Kurtz has actually said and what others have said in return.

As for what Kurtz himself has written, a few comments can be found on MarriageDebate.com or National Review Online's The Corner, but the bulk of what he has said can be found in two articles in The Weekly Standard together with respective follow up replies to his critics on National Review Online. The first article was titled "The End of Marriage in Scandinavia" (02/02/2004) with a follow up response to Andrew Sullivan, "Slipping Toward Scandinavia." The second article was titled "Going Dutch?" (5/31/2004) with a follow up response to M.V. Lee Badgett, "Unhealthy Half Truths."

I have responded to Kurtz's claims on a number of occasions on this blog collected into this category. Another great collection of responses was due to a number of authors at Amptoons collected under this heading. From the above two collections of posts you can find more responses for and against, but please don't miss this paper (pdf) by Professor Badgett.

Kurtz's biggest fear is that same-sex marriage is part of a movement that will lead to the equalization of marriage and cohabitation. Jonathan Rauch, though, has a brilliant piece in the latest issue of The New Republic [subscription required, but it's worth at least getting the trial subscription] as to how permitting same-sex marriage will strengthen the message that marriage is important, whereas prohibiting it will lead to a vast array of alternatives to marriage including a push for the legal and social equivalence of cohabitation to marriage. Rauch's article becomes particularly relevant after rereading Kurtz.

One Year Later

The decision of the SJC will go into effect Monday, May 17, 2004, at which time marriage as universally understood for millenia of human history will be forever changed. Chaos will ensue. Marriage has always been between opposite-sex couples, and for good reason. The incredible upheaval in Massachusetts is inevitable. - Appellant's Memo in Largess v. Massachusetts. 

I thought I would write a wonderful post in honor of the one year anniversary of marriage equality in Massachusetts.  Unfortunately, I'm a little short on time, so instead I provide links.  From today's Boston Globe editorial:

Another opportunity to measure the effects of gay marriage in Massachusetts will come this fall, when legislators again take up the constitutional amendment banning gay marriage -- but allowing parallel civil unions -- that they initially approved in March 2004. We are optimistic that the state's elected representatives will accept the thousands of individual commitments made in the past year and vote down the proposal. The legislators need not fear constituent anger: Every one of the legislators who voted against the ban last year was reelected; and three additional supporters of gay marriage won special House elections this spring.

It strains the imagination to see how a year of gay marriage has caused the state any discernible harm. Supporters even point to a modest economic boost due to tourism and other local spending on gay weddings. But the reason to toast today's wedding anniversaries has little to do with tax revenues and everything to do with the riches that come from extending civil rights to every citizen.

For more on the prospects of that amendment see this Globe article:

The erosion of support for the amendment, which won preliminary approval by four votes in March 2004, is caused by several factors, including the considerable clout of new House Speaker Salvatore F. DiMasi, a supporter of gay marriage; a net gain of four gay-marriage supporters in recent legislative elections; and increasing acceptance of gay marriage among the public....

A Boston Globe poll in March indicated that 56 percent of those surveyed supported gay marriage, 37 percent were opposed, and 7 percent were unsure. By comparison, a Globe poll conducted in spring 2004 indicated that 40 percent of those surveyed supported gay marriage. Those who either wanted to ban gay marriage and replace it with civil unions, or who wanted neither, represented 45 percent of those queried.

Like the majority of those surveyed, Lees, the state Senate's ranking Republican, said the relative lack of apparent societal damage caused by the onset of same-sex marriage has given him pause -- even though he was a coauthor of the amendment before the Legislature.

An even more recent poll (pdf) was comissioned by MassEquality and the results are great:

By a margin of 62% to 35%, voters say that gay or lesbian couples should have the right to enter into a legal marriage...fully 61% approve, and only 37% disapprove of the court’s decision to permit same-sex couples to marry...Fully 36% say legalized “gay marriage” has had a positive impact on Massachusetts, while compared to only 13% who say it has had a negative impact...with 68% saying that gay marriage has had a positive impact on gays and lesbians in Massachusetts (10% say it has had a negative impact), and 53% say it has had a positive impact on children being raised by gay and lesbian couples, compared to 17% who say it has had a negative impact...When asked about whether it is better for marriage or civil unions to be available to gay or lesbian couples, a majority of voters opt for marriage over civil unions by a margin of 50% to 32%, with 12% saying neither. This is substantial increase in support for marriage from the 38% to 23% margin (with 32% saying neither) in 2003.

The best thing I can leave you with today is a must read op-ed in the Globe by Anne and Chad Gifford who finally had the great joy of seeing their son marry the man he loves.  Please read it, but I will leave you with this brief excerpt:

Our initial period of concern and confusion and the subsequent learning has, at times, been tumultuous. But how could we as parents not do all we could to embrace our child? How could we not do all we could to strengthen our family? Many object to equal marriage because it represents an attack on family. This is tragic and wrong. Family means love and support for all, not the marginalization of one member of the family.

We have now had one year of legal same-sex marriage in our state. Despite predictions, we have not witnessed any threat to so-called ''traditional marriage." There has not been an attack on family, and almost all would admit that very little has changed. In fact, however, something has changed. Many of our citizens have experienced the joy of marriage for the first time where the laws of our state have said, ''You are equal." We have seen that joy in our son. To take that away would be an injustice. It would be devastating for our family and the real values we believe family should represent.

Bills of Attainder and Equal Protection

On Friday, because of time constraints, I gave a brief overview of the recent decision in CFEP v. Bruning (pdf) which struck down a Nebraska State Amendment prohibiting any recognition of same-sex relationships.  With a little more time today, I thought I would present some of my own views on the decision. I will start with the least defensible aspects of the decision and proceed to the most defensible.  In short, I believe that everything the court found wrong is most properly put into the consideration of the equal protection violation, and it is on that violation that the opinion is most justified by logic and precedent.

The least defensible part of the opinion was ruling that the amendment infringed plaintiffs first amendment right to petition for redress of grievances.  For one thing, as far as I can tell this argument was never raised by the plaintiffs directly in their complaint (pdf) or elsewhere.  In so far as the plaintiffs complained about their inability to seek protections from the Unicameral or the governor the complaint was an equal protection one.  That is gays and lesbians were unfairly being singled out in their ability to seek protections for their families.  An opposite-sex couple could seek protections for their non-marital relationship, but a same-sex couple could not seek the same protections.  As many people have noted any constitutional provision makes it more difficult to advocate for certain legislation, it only seems troublesome if it targets particular groups like the amendment before the court here.  The case that seems most on point to the violation here was Romer v. Evans which was decided on equal protection grounds, and not first amendment grounds.  At best this section of the opinion should be understood as the court emphasizing the significance of the impact of the amendment on same-sex couples and their families.  Thus the court wrote:

The elucidation of the constitutional deprivation at issue is preliminary to any finding that Section 29 violates either the Equal Protection Clause or a finding that Section 29 amounts to an unconstitutional bill of attainder and is, thus, properly before the court.

Unlike most of the cases the court relied upon in this section, though, the amendment did not prohibit the plaintiffs free speech rights, and it did not prohibit their right to stage rallies or form organizations to lobby for gay rights.  I disagree, then, with the court that absent any violation of equal protection the amendment needs extra justification.  The court should have, as the Supreme Court did with Romer, focused on this directly in the context of the equal protection violation.

The bill of attainder violation I think caught most people by surprise, but at least this was raised by the plaintiffs in their complaint.  The idea is that the purpose of the amendment was punitive in nature.  It sought to punish gays and lesbians by denying any recognition to their most important relationships.  There is certainly evidence for this, both on the face of the amendment itself which singled out same-sex relationships for the denial of any recognition as well as contextual evidence in the passage of the amendment and even in its defense before the court.  As the complaint notes:

[Guyla] Mills, [who led the petition drive to place Initiative 416 on the ballot and chaired the Defense of Marriage Amendment Committee in support of Section 29, publicly] explained that the second sentence of Section 29 was necessary “to send a message to society about homosexuality. . . that homosexuality and heterosexuality are not morally equivalent.” Mills stated that Section 29 was based on the prevailing morals of society and explained the importance of sending a strong message about homosexuality, “that homosexuality is a sin and should not be sanctioned even by ‘quasimarriage’ unions such as domestic partnerships and civil unions.”

The State even acknowledged in its defense (pdf) of the amendment that "Plaintiffs started the political fight that resulted in the adoption of Section 29."  Throughout there is a notion that the plaintiffs brought it upon themselves and this amendment was retribution for their advocacy of marriage rights.  "They had it coming" is not a legitimate legislative purpose for an amendment, but rather an indication that it is intended to punish a certain group (for which it is believed the punishment is deserved). 

Still, it is hard to see why it is necessary to frame things in terms of the Bill of Attainder clause.  If the purpose of the amendment was punitive, then it would violate the equal protection clause as in Romer, Moreno, or City of Cleburne.  Likewise it is hard to see how it could survive an equal protection claim and still be considered a bill of attainder.  In truth, it seems to me that any bill of attainder would be a violation of equal protection and/or due process, and thus the clause may be somewhat redundant this days.  Still, this section seems unnecessary in light of Romer.

This brings us to the equal protection violation.  As noted above, evidence from both the text of the amendment itself and the context in which it was passed, interpreted, and defended, that "the decisionmaker selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group" (Personnel Adm'r v. Feeney (1979)).  As in Romer the amendment is remarkably unusual in its selection of a narrow group for such a broad impact.  No other state in passing such a constitutional amendment struck so broadly in the denial of recognition of specifically same-sex couples.  How is that the state finds it necessary to prevent same-sex domestic partnerships, but not opposite-sex domestic partnerships?  When the Unicameral was considering allowing evidence of surviving partners of long-term committed relationships to make decisions regarding anatomical donations, the Attorney General delivered an opinion that this would violate amendment 29 because it would include same-sex couples.  If the proposal had only included non-marital heterosexual relationships the legislation would have been fine.  How in the world is this supposed to support heterosexual marriage?  So I cannot agree with Eugene Volokh that this law is a much better fit than Romer.  Nor do I agree with him that it necessarily follows from the court's reasoning that same-sex marriages must be recognized.  While I fail to see how restricting marriage to heterosexual couples advances any interest, the court was not considering that here.  One could suppose that the government's interest in marriage somehow requires that the definition be gendered, without necessarily believing that it must therefore be necessary to deny any recognition to same-sex relationships, while permitting the recognition of opposite-sex cohabitation. 

Volokh also notes:

Finally, note that the standard canon of interpreting statutes is that they must be interpreted to avoid constitutional problems, when such an interpretation is consistent with the language. For instance, if the court fears that reading the amendment broadly — for instance, covering co-tenancy contracts, or co-ownership arrangements, among romantically linked same-sex couples — would violate the Equal Protection Clause under Romer, then the court should read the amendment (quite plausibly) as not being that broad, and only covering marriages, statutory civil unions, or statutory domestic partnerships, not centuries-old generally applicable rules of contract and property law.

There was, however, evidence that the State had already been reading the amendment so broadly that it was unconstitutional.  Even supposing for a moment that there was a way to narrowly read the second sentence of the amendment so that it would be constitutional, what is the court to do to cure the unconstitutional implementation of it?  It cannot dictate to all Nebraska officials how they must interpret their own constitution, and even if it could, the court could not rule in advance on the constitutionality of unnumbered possible acts not before it.  The only alternative I could see is for the court to strike down the amendment and leave it to Nebraskans to pass a narrower amendment if they so wish.  This is, of course, not to mention the evidence that the entire amendment is tainted with the invidious motives noted above.  As Jason Kuznicki writes:

But let's be frank about all of this.  The real goal of the voters here was never to encourage heterosexual marriage.  Nor was it even to discourage homosexual marriage. The real purpose behind this amendment was to prevent dykes and faggots from being treated as though they were actually human beings. Now we can dream up all sorts of potential reasons that might justify the amendment, and, through some wondrous instinct toward self-preservation, the law itself even requires us to do so when it happens to fail. But we know the real reason behind the amendment, and it should be abundantly clear to everyone. At times it was even clear to Judge Bataillon, as when he cited Romer v Evans, a case that struck down an anti-gay Colorado amendment after finding behind it no greater rationale than "animus." Laws like these are not merely illegitimate, in the sense of lacking a genuine aim. They are downright oppressive.