Galois

Romer Returns

U.S. District Judge Joseph Bataillon today struck down an amendment to the Nebraska constitution which prohibited any recognition of same-sex relationships.  Before going further I want to emphasize that the judge did not rule on same-sex marriage, nor did he rule that same-sex couples were being unconstitutionally denied the protections of marriage.  The problem with the amendment was that it prohibited same-sex couples and others who would advocate on their behalf the ability to seek these rights through the political system without amending the constitution.  The situation was very similar to Colorado's Amendment 2 which was struck down by the US Supreme Court in Romer v. Evans (1996), and not surprisingly in today's opinion (pdf) Judge Bataillon made repeated reference to Romer. 

The Nebraska amendment, which passed overwhelmingly in 2000, read as follows:

Only marriage between a man and a woman shall be valid or recognized in Nebraska.  The uniting of two  persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

It was the second sentence that the court found troublesome.  It ruled that it interfered with the first amendment right "to petition the government for a redress of grievances"  (as applicable to the states via the fourteenth amendment), it violated the fourteenth amendment right to equal protection as its interference with first amendment rights was discriminatory, and finally it considered the amendment to effectively be a bill of attainder in violation of article I, section 9 of the US Constitution (I guess on the theory that it too is applied to the states via the fourteenth amendment).  The court noted that the amendment did far more than define marriage.  It disenfranchised same-sex couples and their allies from seeking protections for their families through normal governmental channels.  The Attorney General of Nebraska had offered his opinion that any bill that would grant any right traditionally associated with marriage to couples which include same-sex couples would run afoul of the Amendment 29.  As the court noted:

Plaintiffs seek only “a level playing field” that would permit them to access the Nebraska Unicameral to lobby for legal protections that have already been permitted in other states. Plaintiffs assert that they seek only to advocate to members of the Unicameral for passage of legislation that would make domestic partners responsible for each others’ living expenses; allow a partner hospital visitation; provide for a partner to make decisions regarding health care, organ donations and funeral arrangements; permit bereavement leave; permit private employer benefits; allow survivorship, intestacy and elective share; and permit same-sex couples to adopt children.

It is not that Nebraska had to allow these protections, but rather that they at least had to allow people to advocate for getting these laws passed.  If the state only wanted to keep the definition of marriage, they could have just had the first definition.  If they were worried about the equal protection or due process clause of their constitution being used by courts to order rights or protections to same-sex couples, the amendment could have made clear that no clause of the constitution guaranteed any such rights.  It is one thing to say a constitution does not guarantee certain protections, it is quite another to say it prohibits it. 

Nebraska Attorney General Jon Bruning has already said he would appeal the ruling.  The greatest difficulty he will have is distinguishing this case from Romer.  Apparently he tried two ways to do so.  One was that the amendment did not retroactively remove any protections.  The main concern with Romer was that it stifled the ability to seek protections through the normal political process just as Nebraska's amendment does.  The other way Bruning attempted to distinguish Romer is that it is not as broad dealing only with "marriage".  The amendment, however, is quite broad in denying the ability to seek any sort of protections for same-sex couples and their families.

So some will try to use this decision to argue the necessity of some federal amendment, but this decision said nothing about prohibiting same-sex marriage.  It just said everyone should be able to seek protections through their government.

An Adult Relationship

I'm going to try my best to clarify why I believe the notion spread by some that marriage must be either "child centered" or "an adult relationship" is a false dichotomy.  A few laws of marriage deal with the establishment of the parental relationship, and these laws are certainly extremely important.  Incidentally they are extremely important for the children of same-sex couples as well.  In comments to another post, commenter Pete directed my attention to a Massachusetts case T.F. v. B.L. where a lesbian couple decided to have a baby using D.I. and subsequently broke up.  After a time one of them refused to pay child support, and the court ruled they could not order her to do so.  If, however, they had been married she would have been established as parent and had the obligations to support her child.  We see yet again here part of the importance of getting married before having children.  (Three similar cases are currently before the California Supreme Court).  The article notes:

Lambda Legal says that couples who register as domestic partners will have the benefit of presumed parentage for children born into the relationship. That protection is provided by A.B. 205, California's extensive domestic partnership law, which went into effect in January.

In any case while the establishment of parentage or laws establishing custody in divorce are certainly importants ways that marriage benefits children, they are not the primary way marriage does so.  That is marriage is not primarily about the direct relationship between parent and children.  That relationship should and generally is established and respected even when the parents are not married.  [I should note that marriage used to be much more important in these regards. Marriage used to establish which children had a right to inherit and make claims of support and which did not.  We have moved away from this idea, and most people would now agree that even illegitimate children should be part of the full parent-child relationship].   

I believe marriage is (and should be) primarily about the relationship between the adults.  Overwhelming the laws of marriage deal with governing this relationship and establishing and protecting the direct rights and obligations that spouses have to each other.  A marriage which ends (through death or divorce) before any children were born did not serve no purpose, nor was it insignificant.  A marriage can and should continue to function well after the children are raised (and certainly well after parentage is established).  This adult relationship is important, it does benefit society, and it is rightfully governed by family law.   

Does this mean I don't think marriage is about children?  Of course not.  I have just said that overwhelmingly marriage is concerned directly with the relationship between the spouses as opposed to the relationship between parent and children (which exists independently of marriage).  The crucial point to remember, though, is that the relationship between a child's parents has an enormous impact on the welfare of the child. 

Children generally do better when their parents are married.  This seems obvious to me, but studies certainly back me up.  Why is that?  Is it because a child is then more likely to be raised by his or her biological parents?  Possibly, although I would think adopted children would fare better with married parents.  Is it because a child  of a married couples is more likely to be raised with a father and mother? Possibly, but I doubt this is the main reason marriage is better.  For one children do better with marriage as opposed to cohabitation which would also provide a father and mother.  Children do better with married parents as opposed to divorced parents even if both are involved in the child's life.  Furthermore, studies to date (while necessarily imperfect because of the limited data) support the belief that a child does just as well with same-sex parents. 

So, no, I do not believe that the benefit of marriage to children stems primarily from who the marriage provides, but rather the structure it provides.  Again given the same two parents, I think married parents would provide a better structure for the children than cohabiting parents.  Why should this be the case?  The short answer is because the relationship between the parents makes a big difference to the child.  Part of that is the love parents show to each other, but there is much more.  When the parents have obligations not only to the child, but to each other there is a model that family members have obligations to each other which are serious and enduring.  There is also a sense of security in a child knowing their parents have made a solemn commitment to remain together.  Marriage makes it easier for the adults to fulfill their obligations even in times of difficulty.  This can teach a child on the importance of fulfilling our obligations to each other even through difficult times. 

This is not to mention the more concrete ways that the parents' obligations to each other benefit the child.  They make it easier for one or both of the parents to sacrifice career interests to put the family first.  They make it easier to support each other in times of sickness and other difficulties.  Certainly a child is going to do better when his or her parents are well cared for, and who better to care for them than each other. 

When we talk about marriage as the ideal for raising children, we do not mean that every couple who gets married makes the perfect parents.  Nor do we mean that every couple who gets married is capable of providing everything for their children.  What we mean is that a couple who marries is at least doing all that they can to help their future children, in large part because they are doing all they can to establish a committed relationship to each other.

[Again I won't be posting this weekend because of the holiday.]

Joined In Civil Union

So Connecticut has just passed and signed an An Act Concerning Civil Unions  which will go into effect October 1 of this year.  Here is the official overview of the new law:

This bill authorizes same sex couples to enter into civil unions, granting them the same legal benefits, protections, and responsibilities as married couples. It incorporates civil unions by reference in most statutes that use or define terms indicating a spousal relationship. It establishes eligibility, application, and licensing criteria; specifies who can perform civil union ceremonies; and sets forth record-keeping requirements. The bill (1) restricts civil unions to couples over age 18, (2) exempts people authorized to perform civil union ceremonies from liability for failing or refusing to do so, and (3) requires town clerks to give civil union license applicants copies of the relevant laws. Otherwise, the bill’s substantive provisions and penalties are identical to current marriage statutes.

The bill also defines “marriage” as the union of one man and one woman. It establishes circumstances under which the state will recognize civil unions performed in other countries.

I've written from time to time about civil unions on this blog, so my reaction might be predictable.  Still, I thought this specific passage might be a good time to reiterate and/or clarify some of those views.

Let's start with what is good  great about these civil unions.  This law will offer same-sex couples in Connecticut some concrete important protections for their families. As the official analysis of the bill writes:

The bill specifies that the rights it extends to civil union partners may derive under statute, administrative regulations or court rules, policy, common law, or any other source of civil law. Generally, these fall into the following categories:  1. family law, including marriage, divorce, and support;  2. title, tenure, descent and distribution, intestate succession, wills, survivorships, or other incidents of the acquisition, ownership, or transfer (during life or at death) of real or personal property;  3. state and municipal taxation; 4. probate courts and procedure; 5. group insurance for government (but not private-sector) employees; 6. family leave benefits; 7. financial disclosure and conflict-of-interest rules; 8. protection against discrimination based on marital status; 9. emergency and non-emergency medical care and treatment, hospital visitation and notification, and authority to act in matters affecting family members; 10. state public assistance benefits; 11. workers’ compensation; 12. crime victims’ rights; 13. marital privileges in court proceedings; and 14. vital records and absentee voting procedures.

What is most important is that it firmly establishes the rule that these civil unions should be treated the same as a marriage.  The only exceptions are limited and explicit.  For the most part they refer to procedures and formalities and then the bill extends parallel procedures and formalities to the civil union.  For example, the parties to a civil union cannot obtain a marriage license, but they can obtain a civil union license.  The only difference for which there is no such parallel is that a 16 or 17-year old may marry with parental consent and a person 15 or younger may marry with a probate judge's consent.  To enter into a civil union one must be either 18 or older or an emancipated minor. 

This law is also great in that it was passed not as a measure to keep same-sex couples out of marriage, but as a way of providing their families the protections of marriage.  Although some legislators may have voted for the bill solely out of the hope that this would forestall same-sex marriage, many legislators saw it as the best way to protect same-sex couples and their families as soon as possible. They should be applauded for passing this bill, and Governor Rell despite being an obstacle to same-sex marriage in CT should at the least be applauded for signing this bill.

Now let us look at the problems with the law.   Although the law has a section concerning the recognition of civil unions of CT citizens performed in other countries which precisely mirrors the recognition of marriages of CT citizens performed in other countries, it does not explicitly deal with the issue of recognition of same-sex marriages and civil unions performed in other countries except as to this one particular.  Since the general rule is to take marriage to include marriage or civil union the law would seem to call for such recognition, that is for example recognition of VT civil unions and recognition of Massachusetts marriages as civil unions, but I worry about it not making this explicit.  This is especially worrisome in light of its reiteration of the definition of marriage as heterosexual.  Why leave any ambiguity in regards to this important concern?

The other problems are problems that will plague civil unions anywhere.  The first concerns the stigmatizing nature of civil unions.  The second concerns other jurisdictions' recognition of CT civil unions vis-a-vis marriage.  For how this type of discrimination for the sake of discrimination is unjust, I would suggest reading the brief (pdf) submitted by Rep. John Lewis and other civil rights leaders in Massachusetts.  I would note, however, that the situation here is not as bad as it would have been had MA passed civil unions in an attempt to avoid the court's decision there.  In that case it was clear that the interest was not so much in protecting families, but in preventing the marriage of same-sex couples which would have (and did) otherwise occur.  In CT, however, where the bill was passed on the legislature's own initiative it does not seem as bad.  Still, the need of the state to create this new domestic relationship parallel to marriage is an insult to same-sex families. 

The second concern is how will civil unions performed in CT be recognized elsewhere as opposed to marriage.  Certainly the fact that a marriage is likely to be recognized elsewhere even if the family moves or travels is an extremely important protection of marriage.  Although there are no guarantees of how either civil unions or marriages would be recognized elsewhere, there is some reasons to believe that a marriage might be recognized whereas a civil union would not be.  Ironically one of the main reasons to believe so comes from CT itself.  A few years back in the case of Rosengarten v. Downes (pdf)  the courts of CT refused to offer an opportunity for the dissolution of a VT civil union claiming that they had no jurisdiction.  The court did indicate that the situation would probably be different had it been a VT marriage.  As the CT Supreme Court wrote:

Nor is it a marriage under our sister state of Vermont’s definition of marriage found in § 1201 (4) of title 15 of the Vermont Statutes Annotated because it too limits the definition of marriage to those entered between ‘‘one man and one woman.’’

The [lower] court held that because the dissolution of a civil union was not a family relations matter as set forth in either § 46b-1 or Practice Book § 25-1, it lacked subject matter jurisdiction to dissolve such a union and was, therefore, required to dismiss the plaintiff’s action.

This very concrete problem is, to me, indicative of a larger more abstract problem with civil unions.  It is clear that marriage creates family, but people may view civil unions as some other sort of legal relationship that is distinct from family.  In any case, while I applaud the CT legislature they should continue to work for full equality.  In the meantime, I'm going to refer to any couple entering a civil union as getting married.  I'm not going to send cards that say "Congratulations on being Joined in Civil Union", such couples are certainly married. 

Update (4/28):  GLAD has a nice Q&A (pdf) concerning Connecticut civil unions.

Shabbat Hagadol

This upcoming Sabbath is Aharei Mot, which refers to the section of the Torah that is read which among other things contains the verse Leviticus 18:22.  I used this occasion last year to write a series of posts discussing some interpretations of that verse and the views of Conservative Judaism on homosexuality in general.  I thought I would start this year by providing a quick update on the situation.  As I mentioned then:

The Committee on Jewish Laws and Standards (the central halakhic authority of the Conservative movement) is revisiting this issue as we speak.

Those words are still true today.  Most recently the CJLS met a few weeks ago in Baltimore to present draft teshuvot.  I have herad that it will probably be in October when they will actually take votes on them, but the Rabbinical Assembly did issue a press release (.doc)  The main body of it reads as follows:

The Conservative movement is concerned with maintaining its bonds to Jewish tradition and halakhic integrity even as it undertakes a topic of great social relevance and controversy. While the committee has met several times over the past two years in consideration of this matter, this week’s meeting is the first in which the teshuvot, responsa on various aspects of the issue, were presented.

“It was an intense and constructive meeting,” commented Rabbi Kassel Abelson of Minneapolis, chair of the CJLS, in the aftermath of the gathering. “We are involved in the very process which will lead us to important decisions. Because it is an halakhic process, it requires careful study and will therefore extend into the coming months.”

Although there are a range of views currently held by members of the Committee, the spirit of the latest discussions was one that seeks to involve gay and lesbian Jews in Conservative Jewish communities in much fuller ways, obliging them to religious and communal responsibilities, and extending to them membership and leadership rights to the greatest extent permitted by halakhah (Jewish law).

At the conclusion of its meeting, the CJLS drafted a four-point Statement for the Conservative Community. It reads as follows: 

• At the heart of the Torah is the concept of holiness (kedushah) expressed in its command, “You shall be holy, for I the Lord am holy.” Flowing from this declaration are policies regulating the spiritual, ritual, social and sexual lives of Jews. Kiddushin, the sanctification of love in heterosexual marriage, is a centerpiece of Jewish life.

• For a variety of reasons, the Jewish ideal of heterosexual marriage is unrealistic for many Jews. We emphatically recognize the human dignity (k’vod habriot) of all such individuals, and invite them to participate within our religious communities. 

• Recalling the Torah’s command, “You shall love your neighbor as yourself, I am the Lord,” we rededicate our movement to making its congregations and educational institutions inclusive and welcoming of all Jews regardless of their marital status or sexual orientation.

• The parameters of sexual conduct for gay and lesbian Jews, their eligibility for admission to rabbinical and cantorial school, and commitment ceremonies remain the subject of a lively debate within the ongoing deliberations of the Committee on Jewish Law and Standards.

I was particulary heartened by the second point.  Once we recognize that heterosexual marraige is unrealistic for some Jews the question is raised how should they be guided to live their lives.  Alone?  In a committed, but celibate relationship?  Or in a committed monogamous, but not necessarily celibate relationship?  These are some of the questions with which the committee is wrestling.

So that's a summary of what has happened with regards to last year's post on Aharei Mot.  I thought I should write something this year as well.  This year Aharei Mot falls on a special Sabbath, Shabbat Hagadol (The Great Sabbath).  This is a day which commemorates the great miracle that happened as the Jews were preparing to leave Egypt.  They were able to sacrifice a lamb (the Paschal Lamb or Karbon Pesach) without being hindered by their Egyptian masters for whom the lamb was sacred.  We were instructed to partake of this sacrificial meal as a family (see Exodus 12:3), and even today when the sacrifice is no longer made we still view the Seder meal as the centerpiece of the holiday and still find it important to celebrate it as a family.

Family is extremely important to Judaism, and marriage is extremely important to family.  A marriage changes three families.  Each spouse, at that point, joins the other's family while togther they start a new family of their own.  Among other things marriage does, it marks and celebrates this definite point at which one becomes a part of a new family.  There is a big difference between a "boyfriend" and a "husband" and "son-in-law".  Certainly not every family is always so welcoming when someone comes out, but fortunately more and more are.  It is important for these families to be able to mark and celebrate the moment in time when they welcome someone new into the Mishpacha.

I won't be posting or commenting for several days because of the upcoming holiday.  Over this week when we think of family, I ask that we not only "rededicate our movement to making its congregations and educational institutions inclusive and welcoming" but also our families.  Please check out the Keshet web site for more information on the issue of homosexuality in the Conservative movement as well as guides for making our synagogues more welcoming to gays and lesbians.  Hag Sameach.

 

A Nation Divided

Some may point to Kansas having passed a constitutional amendment banning same-sex marriages and civil unions as a sign that the country is moving in one direction.  Others may point to a poll in New York or actions in the Connecticut General Assembly as a sign that the country is moving in another direction.  I take all that I have seen as a sign that the country is moving apart.  In the foreseeable future we will have some states which allow same-sex couples to marry, some states which allow them "full" civil unions, some states which allow them some limited domestic partnership, and some states which reject any formal recognition of same-sex couples.  I think that is a fact that we must all face.  To those who would reply that the Federal Marriage Amendment--excuse me, the newly entitled Marriage Protection Amendment--will change this state of affairs I would reply (1) it will not pass the Senate,  (2) even if it did we would still face many of the same issues with civil unions, and (3) even if it did we would still face many of the same issues with marriages performed in other nations.  So we can't avoid the question, we must decide how to best address it.  Let us consider some possibilities a state may take.

Option I -- Blanket Nonrecognition.  A state, say Kansas, could instruct its court and agencies to refuse to recognize same-sex marriages and any consequences thereof.  For example, if a Massachusetts or Vermont court issues some judgment based upon the existence of a same-sex marriage or civil union--say in a wrongful death suit or a divorce settlement--that judgment would be completely unenforceable in Kansas.  This extreme approach might be comparable to a state refusing to enforce an order based upon recognition of slavery.  The idea is that slavery is so morally repugnant that to give even indirect effect to its existence is taking part in the crime.  I don't doubt that a few may view same-sex marriage as such an evil, and DOMA would seem to permit this (although this permission to ignore sister state judgments seems like the most likely aspect of DOMA to be declared unconstitutional), but I must wonder if states really want to hold themselves out as a harbor for those fleeing justice.

Option II -- Respect Foreign Judgments But Never Recognize The Marriage Or Civil Union Directly.  The state could decide that it is willing to recognize judgments but not the marriage or civil union itself.  This is hardly any better with regards to providing a harbor for those fleeing justice.  Yes divorce judgments would need to be enforced, but who needs a divorce.  A person could take all the family assets and flee to Kansas and remarry without divorce.  Is this what people want?  Or a couple from Vermont is driving through Kansas when they get into an auto accident.  The hospitals in Kansas do not, by law, allow one spouse to make medical decisions for the other.  I hate to think about all the consequences if one spouse died, especially if they had a child.

Option III -- Recognize Foreign Marriage and Civil Unions For Some Purposes But Not Others.  Perhaps Kansas may refuse to recognize the marriage or civil union for its own tax purposes, and refuse to recognize it for governmental programs, but allow it for determining next of kin.  They might require that anyone entering into marriage in the state have obtained a divorce from any previous marriages including same-sex marriages and civil unions.  The more situations the legislature deals with, the more guidance the courts and agencies of the state have.  A state may even pass a marriage evasion law (which some states already have) that would declare invalid a marriage of its own residents who marry elsewhere to avoid the states restrictions and then return to the state.  This option requires the legislature to give some serious thought to why it is prohibiting same-sex marriage and weigh that against the interests of other states and thier residents who decide that same-sex couples may marry or obtain civil unions. 

Option IV -- Recognize Foreign Marriages as a Civil Union.  For states with civil unions or domestic partnerships, it seems reasonable to treat foreign same-sex marriages the same way they would treat domestic civil unions or partnerships.  A couple would be "married" in Massachusetts and "civilly united" in Vermont.   Similarly it would make sense for states with same-sex marriages to recognize "full" civil unions from other states as marriages.  (There would need to be some test, though, for determining whether a foreign civil union was "full"). 

Option V -- Recognize Foreign Marriages.  Some states refuse to perform marriages within a certain degree of consanguinity or affinity, and yet are willing to recognize them if performed elsewhere.  It could likewise make sense for a state to refuse to prohibit same-sex marriages but recognize them if performed elsewhere.  This would allow the state to put forth its view that only men and women should marry, and yet still recognize that other states may reach different views and recognize that reality. 

These are just a few options, and which a state pursues may depend on the purpose in prohibiting same-sex marriage in the first place.  If the issue is keeping uniformity with other state laws, then liberal recognition policies make a great deal of sense.  If the issue is maintaining the traditional definition of marriage, then it may make sense to establish full civil unions and recognize foreign marriages as such.  If the issue is a fear that allowing same-sex marriage would "send a message" that marriage has nothing to do with procreation, then one may ask whether the same message be sent merely by acknowledging that other states and nations do allow it.  It is hard for me to offer any advice on this matter because I don't see that message being sent in the first place, nor do I see any other harm in allowing same-sex marriages in the state itself.  Still, whatever one's views, this is a discussion states should have.  States which have civil unions should consider how to treat foreign marriages (and foreign civil unions).  Even states opposed to same-sex marriage and civil union should consider the issue carefully.  If they choose blanket nonrecognition it should be with full awareness of the implications of that choice, and not just as a visceral reaction to same-sex marriage. 

 

Tear Down the Gate

Megan McArdle (aka Jane Galt) has a rather lengthy but interesting post concerning gay marriage.  The post neither comes out in favor of it, nor opposes it, but merely warns against certain types of arguments.  In particular, she first warns against the assumption that because one would not personally react a certain way, nobody would react that way.  As she writes:

However, I am bothered by this specific argument, which I have heard over and over from the people I know who favor gay marriage laws. I mean, literally over and over; when they get into arguments, they just repeat it, again and again. "I will get married even if marriage is expanded to include gay people; I cannot imagine anyone up and deciding not to get married because gay people are getting married; therefore, the whole idea is ridiculous and bigoted."

She gives several examples where this type of argument was made in incorrectly made in the past.  The flaw is that some people in the "marginal case" will react differently due to the change in law.  She notes:

The argument that gay marriage will not change the institution of marriage because you can't imagine it changing your personal reaction is pretty arrogant. It imagines, first of all, that your behavior is a guide for the behavior of everyone else in society, when in fact, as you may have noticed, all sorts of different people react to all sorts of different things in all sorts of different ways, which is why we have to have elections and stuff.

The second thing she warns against is taking advice on how to change an institution from people who realize neither the value nor purpose of the institution.  She sums it up best with a quote from GK Chesterson:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

This leads McArdle's second warning:

And second, the unwavering belief that the only reason that marriage, always and everywhere, is a male-female institution (I exclude rare ritual behaviors), is just some sort of bizarre historical coincidence, and that you know better, needs examining. If you think you know why marriage is male-female, and why that's either outdated because of all the ways in which reproduction has lately changed, or was a bad reason to start with, then you are in a good place to advocate reform. If you think that marriage is just that way because our ancestors were all a bunch of repressed bastards with dark Freudian complexes that made them homophobic bigots, I'm a little leery of letting you muck around with it.

I actually agree with both points above.  So we may ask, what next?  With regards to the first point it is necessary to evaluate specifically how the change to marriage might effect the institution.  It's not enough to simply say it is a change and therefore should not be done.  People have always warned of dire consequences when changes to marriage were considered.  In What Is Marriage For? E.J. Graff  (based on Norma Basch) notes that an 1844 New York legislative committee insisted:

that allowing married women to control their own property would lead "to infidelity in the marriage bed, a high rate of divorce, and increased female criminality," while turning marriage from "it's high and holy purposes" into something arranged for "convenience and sensuality."

And the committee was probably right that women owning property has led to an increase in divorce since they are more likely to have the financial means to support themselves should the marriage end.  Most people would say, though, that it should not be the case that only men have the means necessary to consider divorce.  In any case, it is clearly necessary to examine the means by which a change would effect the institution as well as the motivations for doing so.  As Kip Esqurie noted, none of the examples McArdle gave involved situations of discrimination.  So how does she explain how gay marriage might effect whether others at the margin marry?  She writes:

To which social conservatives reply that institutions have a number of complex ways in which they fulfill their roles, and one of the very important ways in which the institution of marriage perpetuates itself is by creating a romantic vision of oneself in marriage that is intrinsically tied into expressing one's masculinity or femininity in relation to a person of the opposite sex; stepping into an explicitly gendered role. This may not be true of every single marriage, and indeed undoubtedly it is untrue in some cases. But it is true of the culture-wide institution. By changing the explicitly gendered nature of marriage we might be accidentally cutting away something that turns out to be a crucial underpinning.

That is some people might no longer choose to marry as it will no longer be an expression of an explicit gendered role.  I had thought, however, that in such a conflict where one person wants a role to be explicitly gendered and another wishes to take that role in spite of his or her gender, the latter's equality rights would generally trump the other's interest in maintaining gender roles.  If not we should reconsider a lot of issues.  Perhaps women should no longer be allowed to be policemen as some men at the margins are no longer joining the force because it does not afford an opportunity to step into an explicitly gendered role.  In this case it is not that I arrogantly suppose nobody would react this way.  I simply feel the need for explicit gendered roles is far outweighed by the need to be free of them.

As for an answer to why marriage has always been a man-woman institution, I think the above gives a great explanation.  It is not some random coincidence or bizarre rite.  Society has always defined roles as explicitly gendered.  Men and women had different roles, and it was natural and important that marriage consist of a person in each of these distinct roles.  I do not believe it is a coincidence that those groups, especially religious groups, which tend to delineate the most distinct and rigid gender roles also tend to be those most likely to oppose same-sex marriage.   I believe it is necessary to combat the idea of government enforced gender roles, and hence necessary to remove the government endorsement of marriage as defining gender roles.  There is one answer to why the gate exists, and why it must go.  It is not that I don't see the value of marriage.  On the contrary, I agree wholeheartedly with McArdle when she writes:

Marriage Matters. It is better for the kids; it is better for the adults raising those kids; and it is better for the childless people in the communities where those kids and adults live. Marriage reduces poverty, improves kids outcomes in all measurable ways, makes men live longer and both spouses happier. Marriage, it turns out, is an incredibly important institution.

An institution as important as that should definitely not be denied to same-sex couples and their families. 

Encourage, Not Just Permit, Same-Sex Marriage

I have written quite a bit on how prohibiting same-sex marriage constitutes a use of gender classifications that is totally unjustified.  This is one of my main reason for supporting same-sex marriage and based on it alone I would continue to do so.  That basis, however, tends to be a negative one.  I believe same-sex marriage should be allowed because to prohibit it would be unjust.  I also have a more positive basis for supporting same-sex marriage--reasons that lead me to believe it should not only be permitted, but encouraged.

I start with the premise that some people are homosexual.  By a homosexual I mean a person who not only has sexual desire only for a person of the same sex, but also is only capable of an intimate relationship with a person of the same sex.  I further take it as given that "conversion" therapy is not only ineffective, but also dangerous.  I realize that not everybody agrees with these premises, and in another post perhaps I will explain what has led me to these conclusions.  For now, though, I take these as given and the starting point for further discussion.

The question then arises how should homosexuals live their lives.  Some would avoid this question completely and say that is entirely up to them.  I have several reasons, though, for wanting to address the issue.  First of all, a homosexual might ask the question of an individual as a friend, mentor, or religious leader and I am interested in what advice might be given.  Secondly, as a society I believe the answer we find to this question can help inform the policies we set in place.

One possible answer is that a homosexual should marry a person of the opposite sex.  It would be a marriage without sexual desire or intimacy. Nevertheless, a societal duty to marry and have children might outweigh the individual need for an intimate relationship.  This situation is not unprecedented.  In many cultures marriages were arranged.  A couple was expected to marry and have sex regardless of their feelings for one another.  It was hoped that perhaps an intimate relationship and sexual desire would develop, but that was secondary to the obligation to marry in the first place.  I find such a system, though, cruel and counterproductive.  I do not think couples should be getting married in such situations.  Nor do I see such  a marriage as the "ideal" place to raise children.  In the case where a couple loses sexual desire and intimacy, it might be argued that they should nonetheless remain married as other issues such as the obligations they made to their children and to each other outweigh the disadvantages of the situation.  In such a situation it might also be hoped that counseling can help restore at least the intimacy, if not the sexual desire that they once had.  Even if one took the position that such a couple should remain married, though, I see no benefit in encouraging a couple in that situation to get married in the first place.  Thus I reject this solution.

Another possibility is that homosexuals should live lives that are celibate and alone. They could form friendships and would still have contacts with the families in which they were raised, but they should not form an intimate relationship with anyone.  They should not commit their lives to caring for another through good and bad.  Nor should they consider forming a family of their own.  Some people do indeed choose such a life for themselves often for religious reasons.  I do not believe such a life should be encouraged for one who does not choose it, though.  Much of my thinking on this subject is informed by my own religious values.  I believe that is not good for a human to live their life alone in this manner.  I believe family is extremely important.  I also believe there is a better solution and hence I reject this option as well.

I believe that the homosexual as an individual and society in general would be best off if he or she sought an intimate monogamous relationship with someone.  In short, my advice would be to try to find someone to marry.  Settle down.  Raise a family.  I believe the individual would be better off both morally and medically in that situation.  Society would benefit in having couples in happy, stable marriages where there is someone both for whom to care for and by whom to be taken care.  And if same-sex couples are going to take on these obligations it is the duty and interest of society to support them in doing so.  Being married and raising a family is not easy.  Imagine what it would be like if heterosexual couples did not have the laws of marriage to protect and support them in doing this.  Just as we should support heterosexual couples when they take on these obligations, we should support homosexual couples as well.

There are those that would say we should indeed support homosexual couples in this manner, but not through marriage.  Rather we should do it through some new institution like "civil unions".  To such people I ask, how should the laws of this new institution differ from the laws of marriage?  Why?  I personally do not see any reason to have the law depend on the gender of your spouse.  And if we are going to have the same laws, why not have the same institution?

Procreation Revisited

I have written about the "procreation argument" a number of times on this blog.  In December 2003 I responded to an article by Eve Tushnet which led to a further series of posts from her and from me.  A year ago I responded to an op-ed by Douglas Kmiec which led to a lengthy discussion in the comments.  (In both cases I apologize about all of the dead links).  As I've noted more recently many states are dropping the procreation argument because it seems to make little sense.  The issue, though, has come up a number of times lately in this blog. 

In comments to this thread, Chairm takes exception to my drawing attention to exceptions.  I believe most of his concerns were based on a misunderstanding of my argument.  I do not point to exceptions in order to make the claim that "Since there are exceptions, the general rule must not hold."  That would be silly.  Rules can always have exceptions.  I pointed to the fact that in some states certain couples are allowed to marry only if they cannot marry.  This does not indicate that marriage has nothing to do with procreation, nor even that procreation is not the primary purpose of marriage.  It does, however, provide strong indication of a number of things.  It shows, for example, that the legislature has contemplated the situation of a non-procreative couple marrying and deemed it acceptable, not because it would be too difficult to determine procreative ability, but rather because there are also other purposes to marriage.  It also indicates that marriage is not harmed by allowing non-procreative couples to marry.  In the comments I explained the situation as follows.   A theater may wish to keep cans of soda confined to the lobby and out of the theater for fear the soda might spill and damage the seats. That is a reasonable policy and the fact that some people might sneak sodas in, or the fact that the ushers to do not think it worth the effort to search all bags, does not indicate that the theater would like to keep soda cans out.  Thus it is still perfectly reasonable to stop a person from obviously carrying a soda can into the theater.  However, if the theater allowed some people into the theater when they were obviously carrying soda cans, or even allowed them into the theater only if they had soda cans it becomes doubtful whether the ushers are truly concerned about soda cans entering the theater.  At the very least the theater would need to explain why certain people bringing cans in was harmful and others bringing cans in was not harmful.  It is at this point in the discussion about procreation--when proponents of same-sex marriage prohibitions argue about why it does no harm to marriage to allow say elderly couples to marry, but not same-sex couples to marry--that it is often revealed that the underlying rationale involves a reliance on traditional gender stereotypes. 

These discussions lead me to ask directly, "What is the harm in allowing a non-procreative couple to marry?"  One common response is that it would send the message that marriage is not about procreation.  That is simply not true.  It would only support the statement that procreation is not the sole purpose of marriage.  There are a number of other purposes of marriage and allowing same-sex couples to marry would be a mere recognition of this indisputable fact.   Nephtuli, though, does provide some detail about the harm in allowing same-sex couples to marry.  He writes:

Society has many reasons to integrate the sexes; one such reason is procreation. Every society has an interest in surviving and to exist it needs to breed new members. That idea is best realized through opposite sex couples having children. Society therefore supports procreation by promoting integration. Integration is this vein should be promoted.

Obviously if we allowed SSM, men and women would still integrate since the vast majority of the public is heterosexual. But one could also argue that without preferences universities would still accept members of the preferred minorities. The idea is that a lower number would be selected and that goes against a state interest.

If we allowed SSM, less men would integrate with women and vice versa. The reason is that (some) homosexuals have historically married people of the opposite gender when no other avenue was available. Whether it was societal pressure or legal recognition, homosexuals did marry members of the opposite gender and procreated. Today we have a much lower level of societal pressure, but for now the only legal avenue for recognition is heterosexual marriage. It would stand to follow that some homosexuals who would enter into SSMs if they had the opportunity might do so.

Without question there are people who are attracted to both sexes or people who are more attracted to their gender but are still attracted to the opposite gender. Many of these people would choose marriage and the benefits it provides over a non-marriage relationship with a member of his/her sex. That choice has a much higher probability of resulting in procreation than a same sex relationship.

But if we allowed SSM, many of those people would likely choose to enter into that relationship. Society is therefore promoting procreation by leaving open only one avenue for marriage.

At least this is an argument.  If we allow same-sex marriage, some individuals who would otherwise have entered into an opposite-sex marriage will now choose instead to enter into a same-sex marriage, thus decreasing the chance of having babies.  The state would therefore like to prohibit same-sex marriage in order to get more people into opposite-sex marriages and thereby hopefully increase the number of babies being born. 

From a policy perspective, this sounds like awful governmental policy to me, the idea that we should pressure people into opposite-sex marriage.  From the court's perspective, though, we must restrict ourselves to asking whether this is a compelling governmental interest and whether the restriction is necessary to achieving this objective.  (Or in states where gender classifications are subject only to intermediate scrutiny we would ask whether it is an "important governmental objective" and whether the restriction is "substantially related to the achievement of that objective.)  Channeling people into having more babies, though, is probably not even a legitimate governmental interest. It is clear from a number of court decisions that we possess the right as individuals to make our own decisions with regards to marriage and procreation.  The government certainly has an interest in seeing that babies that are born are cared for to the best of our ability.  It has an interest in helping those that wish to have babies to do so.  It does not have an interest though in pressuring an individual to procreate.  That choice belongs to the individual and not the government.  [Again, from a policy perspective, I would argue that there is no need for more babies.  Rather we should focus on caring for the babies that are born.]  Even if the interest in baby production was a legitimate state interests, in fact even it were an important governmental objective, the policy of prohibiting same-sex marriage can hardly be said to be substantially related to this objective.  The argument is that by denying the recognition of one's same-sex marriage, one might instead seek out an opposite-sex partner, and then one might procreate with that partner, thereby having a child whereas one might not have had a child with a same-sex partner.  The policy is certainly not narrowly tailored, as couples who have children in same-sex relationships are still denied marital recognition (incidentally doing a great deal of harm to the child) and the denial of recognition is no guarantee that anyone will seek out an opposite-sex spouse instead, much less an opposite-sex spouse with whom they will subsequently have a child.

Finally I would note that the channeling of people into opposite-sex marriage is not likely the true rationale for the policy of denying same-sex marriage.  I have certainly seen no evidence that lawmakers are refusing to recognize same-sex marriages out of fear that people will choose such relationships over heterosexual relationships. As J. Ginsburg noted in US. v. Virginia, "Benign justifications proffered in defense of categorical exclusions, however, must describe actual state purposes, not rationalizations for actions in fact differently grounded." 

By the way, in that same post Nephtuli wrote the following concerning definitions:

To use my earlier example could someone who wished to marry a tree argue that he is being discriminated against and then require the state to provide a rational basis for this classification? Of course not. Can anyone imagine a court going through the whole Equal Protection analysis and then forcing the state to provide a rational basis for its law? I certainly cannot. The court would likely just point out that trees simply cannot marry.

There's no difference between a man-tree marriage and a SSM. Legally, neither cannot exist by definition.

In addition to being extremely offensive, this analogy makes no sense.  If the tree were to bring suit, the case would get thrown out because trees can't bring suits.  (The classification being used is one of human beings, a classification that is more than acceptable as only humans have rights under our Constitution).  If the human were bringing suit the case would get thrown out because it has nothing to do with how the human is classified.  Nobody has the right to marry that tree.  Unlike humans and trees, men and women are both individuals deserving of equal protectiono of the laws.  His analogy is indicative of the denial of our common humanity embedded in gender discrimination.  An apt comparison would instead have been to Pace v. Alabama.  There it was argued that, by definition, a same-race couple could not violate section 4189 of the Alabama Code.  By definition it could only be violated by a member from each race.  As the court wrote, "Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment."  Nephtuli is right in one regard.  When the court resorted to that definition it threw out the case with almost no analysis. 

When Is A Classification Not a Classification?

Nephtuli continues our discussion with two new posts concerning same-sex marriage and gender classifications.  In the first he seems to argue that same-sex marriage prohibitions might not even classify based on gender.  It all depends on how we word it...

Courts have to frame the issue a certain way, and how they frame it has huge practical ramifications. If we say that the law requires men to marry women and vice versa, then the law is classifying based on gender and would be subject to heightened scrutiny. But if we say that the law is merely requiring both parties to do the exact same thing (i.e., marry people of the opposite gender), then there is no gender classification but there is a classification based on sexual orientation.

So states which say that marriage is the union of a man and a woman classify based on gender.  Those that say marriage is the union of two people of different genders do not classify based on gender.  It sounds weird to me.  First of all it would imply we could avoid racial classifications just by making reference to couples of the same race.  Under this definition of "classification" a policy which required prisoners be held in cells only with prisoners of the same race wouldn't be using racial classifications.  Well, not quite.  It seems it is up to the judge to decide how he or she wants to phrase things.  All "racial laws" get phrased in the way so that it classifies.  It's not clear whether judges have any choice when it comes down to "racial laws", but as for "gender laws" Nephtuli writes

Judges have total discretion over this point, sort of like when they have to figure out the proper level of abstraction. Of course we could also say that the judges simply figure out which way they want to rule and frame the issue accordingly, but that would be activism, wouldn't it?

His definition of "classification" does seem to invite this sort of activism.  In a comment to this thread at Alas, a Blog (note the new address!) Nephtuli puts it bluntly:

A court can choose to say, like Gabriel, that there is a gender classification or it can choose, like me, to say there is no gender classification.

It's entirely up to the court.  I certainly hope the courts choose wisely.  Fortunately Nephtuli gives the courts some guidelines in deciding how to choose:

I'm talking about looking at the intention of the authors to determine in what way to construe the law; clearly there was a goal to classify in some way when passing this law. The Court should look at what that goal was and find the classification based on that goal. 

So we must look at whether the goal was to classify based on gender.  Now this is sounding even stranger.  Either the law uses gender classifications or it doesn't.  An unintentional classification is a classification nonetheless.  And what does it even mean to say "clearly there was a goal to classify"?  Classification is never a goal.  It is a tool used to achieve some other goal or goals.  The whole point of equal protection analysis is to see whether the end goals of the policy justify the means of the classification.  If the law makes use of a suspect classification in order to achieve its goal it might be stricken either because the goal was not important enough or the goal could have been achieved without making use of the classification.  If the only problem occurred when laws classified just for the sake of classifying it would be rather silly.  If the goal of the law is to classify, we subject the law to scrutiny and ask what is the goal of the law.  (Such laws would always be narrowly tailored to achieve the goal, for how can one classify without classifying? But how can classification itself be a compelling state interest?).  Clearly Nephtuli is using "classification" to mean something quite different from what I take it to mean, and I honestly can't figure out what he means by it.

What I mean by classification--and I had thought this was what everybody means by it--is the placement of individuals into two or more different classes based upon some characteristic.  If that characteristic is race we say it is a "racial classification".  If that characteristic is gender we say it is a "gender classification" and so on.  Under this (fairly common) definition one can objectively--and easily--determine whether the law classifies based on some characteristic.  Namely, if some outcome is dependant upon determination of that characteristic then the law or policy will be said to classify based upon said characteristic and we can begin to argue whether the state was justified in using the characteristic.  That the marriage laws classify based on gender is obvious.  If anyone had any doubt, just look at this case from Illinois.  In a trial court two sides argued over whether an individual should be classified as male or female.  The validity of the marriage rested on the outcome of that determination.  Now as I noted before,  one could possibly argue that gender classifications may be permissible in some circumstances where racial classifications would not be, but I am unclear as to what possible definition of "classification" would make the question of whether a "classification" was even used dependent on us referring to a particular characteristic. 

As I said, I clearly do not understand Nephtuli's definition of "classification".   It seems to have something to do with whether the state was focused on the individual or the group, for he keeps saying that it is the couple that is being classified (which he refers to as sexual orientation classification).  For example he writes:

If the laws only disallow SSM (such as the laws of Alabama), then they are classifying two different types of unions: marriages between a man and a woman, which are recognized, and "marriages" between members of the same sex which are not.

But in Pace the state of Alabama also classified two different types of unions: fornication between a black and a white, which had a stiff sentence, and fornication between members of the same race which had a lighter sentence.  It seems he still considers the latter a classification even though the focus was on the couple and not the individual.  (By definition, the crime could only be committed by a couple and not an individual).  It seems to me there are at least two problems with this line of reasoning in both situations.  One is it makes the assumption that if you classify in one regard then you do not classify in another regard.  That is plainly false.  It is certainly possible to use one classification to make another classification, and that is what happens in both of these cases.  The second problem, elaborated upon in McLaughlin, Perez, and countless other cases is that it is the individual who possesses the right not to be classified without just cause. The court is required to look at the situation from the individual viewpoint.

So I don't understand what Nephtuli means by "classification", nor why "classification" in the sense I have used it is the wrong way to think about things.  I have a few questions that might help me to understand better.  If a law required everyone to use an opposite sex doctor, would he "choose" to view that law as using gender classifications?  If the law mandated stiffer penalties for mugging an opposite sex victim, would he "choose" to view that law as using a gender classification?  If the law refused to recognize interfaith marriages would he "choose" to view that law as using a religious classification?  And why or why not?

I'm afraid I'll have to wait and deal with his second post on Sunday. 

The New Polygamy

At MarriageDeabte.com, Eve has a couple of posts pondering a new kind of polygamy.  What makes it new?  She draws a distinction between "the historically common kind, where a man can take many wives" and the new kind "where any number of people of either sex can combine in a kind of small-scale married communal life."  She links to this example of the new kind of polygamy and then provides the persona of Esperanza to defend this new type of polygamy.  She finally asks, "Is Espereranza wrong?" 

I would tell Esperanza, I wouldn't say that you were necessarily wrong, but what is it that you are asking for?  Same-sex couples are asking that the same rules of marriage that apply to everyone else apply equally to them.  Just read the laws gender neutrally.  That cannot be what Esperanza is asking for.  She must be asking for distinct rules.  Before we can judge whether we should rewrite the marital laws to conform to these new rules, we must know what they are.  So Espereranza please tell us how you would rewrite the thousands of statutes and policies which deal with marriage. Then we can begin to examine what effect these numerous changes might have.  For example, the anonymous libertarian polygamist Eve refers to writes:

None of us took our marriage vows lightly; we thought and talked and made contracts to spell out how the relationships would work and how they'd end, if they end. It works for us.

Is Esperanza also proposing that every married "group" will define their own unique obligations and divorce rules?  Such a system would be replacing civil marriage by a system of private contracts.  A few libertarians have proposed this style of "private marriage" which gets the government out of the marriage business (other than the usual enforcement of contracts).   I can think of a number of a problems with such a system, but I don't want to be attacking a straw man.  So I would like Esperanza to spell out how precisely her new system of marriage would work.  Would each person in the group be bilaterally married to each other person?  Would there be some proper subset of pairs which are married (and others which are not married)?  Or would there just be one group "marriage"?  If the latter, how does one define spouse?  In any of these cases how would divorce work?  Is there a limit to the number of people that can be involved in this group?  Can new people enter into an existing group?  What bilateral obligations exist?  What obligations does one have towards the group as a whole?  These are just a few of the questions that must be answered before we can begin to evaluate Esperanza's plan.