« previous post | Main | next post »

March 18, 2005

more on bait and switch

Don Herzog: March 18, 2005

A while ago, I complained about the blatant dishonesty of the principal supporters of Proposal 2.  That proposal enshrined this cryptic language as art. 1, § 25 of Michigan's constitution:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

The weirdly clunky wording, I suspected, was preparing the ground for an attack on publicly provided domestic partnership benefits for gays and lesbians.  No, no, the supporters insisted, this was all about gay marriage.

My sordid little tale now deepens.  A city commissioner in Kalamazoo poked a state representative.  That representative poked the state attorney general.  Now the attorney general has issued an advisory opinion on the matter.

The attorney general reports that as a matter of state law on constitutional provisions,

the primary rule of construction is to give effect to the intent of the people of the State of Michigan who ratified the Constitution by applying the rule of "common understanding."

You might think that settles the matter:  the voters thought they were banning gay marriage, period, right?  Well, no.  The attorney general continues, and he's right on the legal merits,

But if the constitution employs technical or legal terms of art, those terms must be construed according to their technical or legal sense because, "in ratifying a constitution, the people may understand that certain terms used in that document have a technical meaning within the law."

This isn't a straightforwardly factual claim about what the people did or didn't think about the language.  Here intent takes a back seat to text, as it often and properly does in law, and the attorney general underlines the point:

the Supreme Court has made clear that words in a constitutional provision must be given their plain meaning if they are obvious on their face.

Can the voters complain that their will is being flouted?  No, says the attorney general.

the issue of domestic partner benefits based on a union similar to marriage was at the forefront of the public debate as voters prepared to go to the polls.  Regardless of whether there was agreement regarding the effect the proposal might have on domestic partner benefits, one thing that would clearly have been evident to voters was that benefits provided based on the recognition of a "similar union" were at issue and might be eliminated if the measure passed.

I don't think this is factually right.  The public debate was about gay marriage, gay marriage, gay marriage, oh, and also gay marriage.  As I explained in my prior post, supporters of the amendment pooh-poohed the thought that it would undercut domestic partnership benefits.  Still, I think the attorney general is right on the legal merits.  The people knew or should have known that the legal force of this language might prevent units of state government from according domestic partnership benefits.

But is that the best rendition of the language?  It's hard to say with a straight face that the amendment's words obviously have a plain meaning.  Here I fear the attorney general's opinion is sadly peremptory:

The City's Policy accords same-sex "domestic partnerships" a "marriage-like" status.  The clear design of the City of Kalamazoo's policy is to establish a special status for "domestic partners" of the same sex, who share a common residence and financial arrangements, and to use this as a basis on which to confer benefits on the "partner" of the city employee.  In the words of art. 1, § 25, the City's Policy recognizes same-sex domestic partnerships as a "similar union" to marriage.  Given the broad language of the amendment, there can be little doubt that conferring these benefits constitutes recognition or the acknowledgement of the validity of these same-sex relationships.  Conferring these health- and retirement-related benefits also falls within the all-encompassing "for any purpose" language.

When lawyers appeal to "clear design" and "little doubt," beware:  it means they're not going to offer a careful justification.  I doubt the attorney general made the right call on this one, but I'm the last person to think that he should try to bend the language to accommodate a policy outcome I'd approve of.  And he is commendably lawyerly in handling the retroactivity question.  The best reading of the new constitutional language, he says, is that it is forward-looking:  Kalamazoo may no longer extend these benefits in new contracts, but there is no clear language in the amendment to overcome the law's usual presumption against retroactivity.  So they can't revoke the existing contracts for the seven city employees now enjoying partnership benefits.

Oh, and the reaction from the measure's supporters, the ones who assured us voters that the proposal was all about gay marriage?  Gary Glenn of the American Family Association is one happy camper:

"I don't think there's any question the majority of Michigan taxpayers will be strongly supportive of the attorney general's opinion," he said.

And a member of Citizens for the Protection of Marriage embraced the advisory opinion, too, making explicit the links between marriage, religion, and traditional gender norms.

Mary Hann said restricting benefits to only heterosexual marriages is important in keeping marriage sacred, which is what Michigan residents voted for.

"Traditionally, the benefits were won because a man would provide income for the family so women could stay home and take care of children," Hann said.  "To try to arrange a new term of marriage to further people getting better and better benefits doesn't make sense."

Meanwhile, the state representative who sought the opinion hailed "a victory for traditional marriage."  And the city commissioner who prompted his request?

"It ends a discriminatory practice," a pleased Kalamazoo City Commissioner Mary Balkema said of the opinion, assuming it is enforced. "I think it's unfair to single out homosexuals for special treatment."

Huh?  Special treatment?  Let's see, that would be, um, getting the same benefits married couples get.  Somehow I just can't see any invidious special rights there.  I can see only equality.  Right, unmarried straight couples don't get these city benefits.  But gays and lesbians can't marry.  So it's ridiculous to compare them to unmarried couples.  Kalamazoo is caught in a double bind.  To qualify for domestic partnership benefits, couples have to show they're more than casually living together.  The city does that precisely to avoid accusations of "special rights," I suppose also to protect the budget.  But those required showings make the attorney general think that a marriage-like status is being enshrined in law.

Plenty of Michigan voters were eager to distinguish their support for proposal 2 from any kind of gay-bashing.  Over and over, I heard those supporters say that they had nothing against gay and lesbian households, nothing against letting those people live their lives on the same terms as straights.  All they wanted to do, they explained, was emphasize that marriage was special.

So now I'm waiting to hear from those voters — and the public figures who took the same line.  If they're horrified to see the amendment turn into a weapon against health care and other such benefits, I'd like them to say so loud and clear.  I'd like them to champion measures to save gays and lesbians from this further assault, even if it means a new constitutional amendment.  Even though I myself vigorously support gay marriage, I've taken those voters and public figures at their word.  Contemptible deception won their votes for a constitutional amendment.  The attorney general has now explained that that amendment has precisely the legal force they distanced themselves from.

As I say, I'm waiting to hear from them.


TrackBack URL for this entry:

Listed below are links to weblogs that reference more on bait and switch:

» Rolling Back Gay Rights from Freiheit und Wissen
...If the bigot-brigade can get away with this overt gay-bashing, decades of progressive reform are going to be demolished before our eyes. [Read More]

Tracked on Mar 18, 2005 2:08:06 PM

» Update: Virginia not-so-primitive, and state mini-FMAs from Overlawyered
The Virginia legislature has voted to repeal the state's law, the only one of its kind in the nation, prohibiting insurance companies from offering coverage of domestic partners as part of employer-provided health plans (see... [Read More]

Tracked on Mar 20, 2005 1:37:22 PM


Posted by: Mona

Well Don, reading that was painful, but nothing therein was surprising -- and I think as a legal matter the AG gets it right. Look, of course the "pro-family" factions that brought MI that amendment are pleased that it also prohibits domestic partner benefits. Most of these folks really are alarmed and horrified by homosexuals, and want to stop the evil "gay agenda." And, for those Michiganders who are not so inclined, but who also are not themselves gay (the vast majority), this issue won't much concern them.

The fact is, this past election with its 11 anti-gay-marriage state referenda, was a debacle for gays, and there is no silver lining to be found. Michigan, as you know, is a blue state, and was not the only such to pass such an amendment. Gays lost big and overwhelmingly on 11/2/04.

It rankles some when I assert that the gay lobby blew it by pushing the issue to the fore a generation before their opponents had dwindled. But that is what happened, and the results are disastrous. There will be more referenda, or legislation, and state after state, red and blue, will follow the other 11.

Posted by: Mona | Mar 18, 2005 12:05:59 PM

Posted by: Mona

And Don, about this: Contemptible deception won their votes for a constitutional amendment. The attorney general has now explained that that amendment has precisely the legal force they distanced themselves from.

It would have passed without the deception.

Posted by: Mona | Mar 18, 2005 12:18:32 PM

Posted by: Thomas

If I understand you, you thought this was what the amendment meant prior to the amendment's passage, and so argued at the time. But now you criticize the AG's reading, which agrees with yours.

If your focus is health care and other such benefits, then why not urge a law that would allow any employee (married or unmarried) to designate an unrelated person in his or her household to receive benefits? That avoids the question of whether domestic partnership is equivalent to marriage, and manages to provide health care and other benefits.

Posted by: Thomas | Mar 18, 2005 12:20:19 PM

Posted by: Bret

Another example of why I think the government needs to get out of the marriage business, whether same-sex, heterosexual, etc. I think that this excerpt from a Reason article says it better than I could:

It is time to privatize marriage. If the institution is really so sacred, it should lie beyond the withering hands of politicians and policy makers in Washington D.C. There should be no federal or state license that grants validity to love. There should be no state-run office that peers into our bedrooms and honeymoon suites. If the church thinks divorce and homosexuality are problematic, it should initiate the real dialogue to address these problems in-house rather than relying on state-sponsored coercion to affirm doctrinal beliefs. And if tax-codes and guardianships need some classification for couples, let's revise civil union standards to reflect those needs.
I fully realize that the devil's in the details regarding those tax-codes and guardianships, but nonetheless, it's a solution that eliminates the State supported discrimination against gay couples while allowing people to define and believe in marriage according to the mores of their community.

Posted by: Bret | Mar 18, 2005 12:37:35 PM

Posted by: bakho

The state generally has no interest in employer/employee contracts other than adherence to Federal Minimum Wage Standards. What is the State interest in benefits offered to employees above the minimum requirements? I don't see how the State of Michigan can make this a compelling state interest, gay marriage/domestic partner/ whatever. BTW domestic partner relationships can exist in the absence of gay sex.

This is all about people who are uncomfortable with their own sexuality (prudes) and their children's sexuality trying to legislate limiting sexual activity to only procreative sex between a man and a woman married to each other. To them, all other sexual activity is immoral, they prefer not to hear about it and would even more prefer that sex did not exist. Even if sex does happen, they prefer to believe that unmarried people are not having sex and don't want this belief contradicted. They also believe that if they make all non-married, non-procreative sexual activity illegal, that people will follow the law and not engage in illegal lustful sex.

Suggested reading: "The Maypole of Merry Mount".


Posted by: bakho | Mar 18, 2005 12:47:00 PM

Posted by: Stuart

I'm with Mona on this one. The pro-gay-rights people miscalculated badly here. I have said elsewhere (and Don, this ties in to my view about how to read the Constitution and what is the proper role of the courts in our society): I'd venture to say that inside of ten years there will in all probability be legislative change in most states of the union to allow some form of legally sanctioned connection of gay people, up to and in many cases including marriage. That will only happen, however, if we don't have judges, acting by definition UNdemocratically, shoving that down the throat of people who aren't ready for it yet. If they do, there are going to be more of those referendums, like we had in 11 states this past November, to prevent it. And then, even if (say) a majority of Michigan's voters and representatives in ten years WOULD approve gay marriage, they will have to deal with a ban on it in the state constitution (or whereever referenda go).

In terms of the benefits to gay people, they will be much, much better off letting things work their way through the political system. They'll get protection, probably incrementally, and when they get it, it will be insulated from any conceivable attack on its legitimacy. And a little while after that everyone is going to wonder what the fuss was all about.

Posted by: Stuart | Mar 18, 2005 1:06:43 PM

Posted by: Alyssa P

"Traditionally, the benefits were won because a man would provide income for the family so women could stay home and take care of children," Hann said. "To try to arrange a new term of marriage to further people getting better and better benefits doesn't make sense."

Anyone else just as terrified by where this line of reasoning might take us next?

Alyssa P.,
employed woman (currently) with health insurance

Posted by: Alyssa P | Mar 18, 2005 1:13:34 PM

Posted by: Tad Brennan

I don't get this thread.

DH complains that the anti-gay lobby employed a dishonest tactic to pass a referendum they could not have passed honestly. Most responses ignore that aspect of it. Mona's second at least addresses the question of honesty--is Mona right about the levels of support for an alternately-worded referendum? These are things pollsters ask about; what was the answer? At least in some parts of the country, an honestly-worded referendum would *not* have won, where a wording that seemed not to affect domestic partnership rights *would* have won.

And I'm inclined to think that the backers of this one--who seem now to have planned on switching the referendum's effect all along--clearly did not themselves think that they could get the referendum passed with honest language. If they knew that a clear majority of the state would vote for the more sweeping effect, why did they not write that into the referendum? Why did they engage in the campaign of coy denials that DH documents?

If the AG is arguing for a reading that would *not* have won the support of the majority who voted in the *actual* amendment, then why aren't we hearing the usual noise about anti-majoritarian lawyers in long black robes who are flouting the voters' intent? Don't tell me that was just a fashion complaint about black robes all along?

Posted by: Tad Brennan | Mar 18, 2005 1:57:51 PM

Posted by: Mona

Tad Brenna asks: Most responses ignore that aspect of it. Mona's second at least addresses the question of honesty--is Mona right about the levels of support for an alternately-worded referendum?

Do you really imagine that most Michiganders who would vote against same-sex marriage engaged in thoughtful discussions examining whether this amendment impinges on domestic partner benefits? I work in Michigan, and most of my co-workers voted for the referendum -- many did note even know it existed until they got in the booth, and one called me from there to ask me what it meant! (She did not vote as I preferred.) If they even know what domestic partner benefits are, they would not have minded voting against those as well, to end same-sex marriage.

People like us here, intelekshuls, debate these nuances; the voting public that reflexively opposes same-sex marriage does not. The debate does not even interest them. They "know" marriage or any "marriage-like" arrangement is between a man and woman, and that's it.

As to the AG's advisory opinion, the clear language of the amendment forces his conclusion. It doesn't matter what denials any of its backers may have made. And further, people like me and Don were saying it would lead to this result; it has as far as the AG is concerned; and the language mandates it. So if he were to look at the argument in the "legislative history," he'd find many saying his conclusion is unavoidable. Moreover, some of the other referenda that passed also clearly prohibit the recognition of domestic partnerships. I do not recall which, or if they are a majority, but MI is not alone.

And the AG is not a black-robed judge. His opinion is merely advisory, not binding. (But useful to have for a variety of legal reasons if one is in CYA mode.)

Posted by: Mona | Mar 18, 2005 2:18:30 PM

Posted by: john t

What if somebody gave a gay marriage ok and nobody came? The NYT did a couple of pieces on the less than expected reaction to Canadian legalization a while back. David Frum writes that there has been a decreased number of same sex marriages and estimates that in Canada 98% of that country's 750,000 gays have not availed themselves of their new found liberty. I won't pull a Justice Kennedy and suggest that this should be written into American law or decisions but on the other hand I have no fear that our more forward looking judges would do so. Rather we may expect modest incremental judicial fiats like the judge in California declaring a state amendment void,pushing the rest of the state into the dark halls of political impotence. And then ther's the Harvard Bisexual,Gay,Lesbian,Transgender,and Supporetrs Alliance {can't leave out the supporters } known affectionately around campus as BGLTSA,sounds like a great diner sandwich,denouncing Jada Pinkett Smith for a heteronormative speech. Given point one,addiing point 2 {BGLTSA,but no ketchup please } I would hazard that ther's more at work here than a simple,honest,heartfelt desire to spend a lifetime wrapped in wedded bliss apart from {or because of? } the desire to overturn some stodgy tradition supported by the goons of the State. That last remark exempts the Internal Revenue Service which as we know is doing God's work.

Posted by: john t | Mar 18, 2005 2:24:39 PM

Posted by: Terrier

Also, I have to say this whole pat-on-the-head advice about lawsuits and activist judges is ridiculous. What will most likely happen is that this judicial rabble-rousing will eventually bear fruit and over time wear down the injunctions in other states. I wonder how many of these people would be willing to walk around with a knife sticking out of their back and for how long before they went to the hospital and begged for its removal. It must be easy for them to counsel patience when their lives sail along unaffected. My advice is to use any means available because it is clear that the opponents not only of gay marriage but also of gay human beings will do everything in their power (including their own activist judges if it comes to that or sweetly offered advice) to slap these people down.

Posted by: Terrier | Mar 18, 2005 2:29:52 PM

Posted by: Tad Brennan


"Do you really imagine that most Michiganders...."

What do I imagine? Beats me. I was hoping to get *past* imagining. I wondered if there were poll results available. My *impression* (from reading sully over the years, fwiw) is that gay marriage still polls strongly negative, but that the extension of rights to gay partners, e.g. insurance, inheritance, custody, etc.--polls fairly positive. I was wondering if you Michiganders (or, to maintain sauce-neutrality, Michigeese) would have any local poll information.

And yes, I do understand that AG's are not judges, and are in fact a part of the executive. My point was that people who object to legal overrulings of majoritarian intent should do so on principled reasons. The fact that some over-rulers wear black robes and others do not is not a principled reason. The fact that one opinion is binding and one is advisory is surely a *more* interesting distinction. The fact that one official serves with life-tenure and one is part of an elected team is more interesting. But if there is a blatant disregard for the people's intent--if the people were baited with one legislative proposal, and had it switched to a proposal with a different effect--then do these differences make the disregard any less outrageous? I want to ask those whose outrage on these matters is more practiced than mine.

Posted by: Tad Brennan | Mar 18, 2005 2:46:14 PM

Posted by: OldMountainGoat

Mona nails it. And, whether he likes it or not, I'm guessing that Don Herzog knows she is right. Or is he holding his breath waiting for the duped voters of MI to wake up and march on the state capital in righteous indignation?

Posted by: OldMountainGoat | Mar 18, 2005 3:24:50 PM

Posted by: D.A. Ridgely

So, assuming arguendo that Mr. Herzog's analysis is accurate, what various folks here are getting outraged over is the discovery that politics is a dirty business?

Posted by: D.A. Ridgely | Mar 18, 2005 3:42:51 PM

Posted by: Clayton

While the voters of Michigan won't be marching anytime soon, I don't think Mona is so clearly in the right here that we should accept what she says without corroboration. About 65% of my students are opposed to same sex-marriage. When I ask these same students what they think of laws that would exclude domestic partners from receiving the same sorts of benefits that married couples receive, there is near consensus that there shouldn't be such laws. In fact, I've often found that students who are vocal in their opposition to same sex marriage bristle at the charge that they are standing in the way of domestic partners receiving the sorts of benefits more traditional spouses have. Last, I'd ask Mona why she thinks that the groups pushing for these measures use guarded language? The obvious explanation seems to be that these groups recognized that the majority of the voters that constitute the mushball middle are decent enough to think that measures as they are now being interpreted go too far. Their cause depended upon ambiguity and they knew it.

Posted by: Clayton | Mar 18, 2005 4:19:54 PM

Posted by: Mona

D.A. Ridgely writes: So, assuming arguendo that Mr. Herzog's analysis is accurate, what various folks here are getting outraged over is the discovery that politics is a dirty business?

Or that only social conservatives engage in disingenuous denials? I came of political age during the effort to pass a federal Equal Rights Amendment. Its advocates heatedly denied Schlafley-esque accusations that the ERA could or would be used to enshrine same-sex marriage as a constitutional right. (At the time I would have opposed that result; I would not now.)

Bull. Of course that case would have been brought, and most feminists pushing hardest for the ERA would not remotely have objected, and I strongly suspect many saw and approved the path to that end that the ERA would have paved. Further, as the High Court was then constituted, or even as it is now, such a claim might well have been successful.

Politicians and partisans lie. This is news?

The bigger issue to me is, now what? We have state after state amending their constitutions or otherwise passing legislation prohibiting same-sex marriage, and even domestic partnerships. The juggernaut continues. Is the gay rights lobby thinking hard about what changes need to be made in their strategies to control as much damage as is possible? I'd certainly join sensible efforts so directed. But lamenting that their opponents in one state campaigned deceptively is not, not even a little, the root of the big trouble they face.

Posted by: Mona | Mar 18, 2005 4:39:53 PM

Posted by: Mona

Clayton inquires: Last, I'd ask Mona why she thinks that the groups pushing for these measures use guarded language?

Well, if I were driving their PR bus (which I would not be for any amount of $), I'd strongly argue they should do just as Don says they did, and that is to keep crying "gay marriage, gay marriage, gay marriage." The truth is -- and your students may not realize this when 65% oppose SSM but so often accept the legitimacy of domestic partner benefits -- once gay partners begin to accrue all of the badges and benefits of marriage, calling their unions something else does not change the fact that SSM moves toward becoming de facto established, and for all practical purposes de jure as well, after a point. Thus, to prevent that, opponents of SSM have to (in order to achieve their goal) also ban "marriage-like" arrangements, which will also capture incidents of marriage like spousal health benefits.

Opponents of SSM who do not draft their prohibitions to include unions called something other than marriage, have not prevented it from occurring by another name. (Before the Mass. S.Ct. decision that launched all this anti-SSM furor, we were seeing the creeping establishment of SSM, with both private and public employers offering domestic partner benefits, and some jurisdictions treating their unions like marriages in family law and other contexts. This would have continued until SSM would have been nearly completely established, but it would have taken another decade or two.)

But, to run a campaign against SSM that acknowledges the proposed law would also ban health care benefits for domestic partners, opens a window for gays to make sympathetic bids to the public about those benefits, rather than arguing for SSM. Ads with, say, two middle-aged grandma lesbians, one of whom stands to lose her health care, might be very effective; but any measure that would not prevent that, would also not effectively preclude SSM. Thus, opponents of SSM are well-advised to keep the focus on "GAY MARRIAGE, OH MY GOD!" and off of nice ladies who stand to lose their health insurance.

Posted by: Mona | Mar 18, 2005 5:11:07 PM

Posted by: Terrier

D.A. Ridgely, I get upset when someone calls me a Marxist. So now you went straight to Lenin's philosophy of the end justifying the means. Well, thanks away, comrade, the point of this whole post IS that "politics is a dirty business."

Mona, isn't it disingenuous to offer advice about staying in the back of the bus when you know the busdriver has a noose waiting for any passenger he chooses? You just made a great argument for the ERA, what did you do to pass it then? I was out in the streets but I kept bumping into to pea-brains that were worried about bathroom facilities. Somebody should have told me not to worry about it - civil rights just aren't important.

Posted by: Terrier | Mar 18, 2005 5:17:59 PM

Posted by: Chris Cagle

Another example of why I think the government needs to get out of the marriage business, whether same-sex, heterosexual, etc.

Fine impulse, I guess (though I can't help but notice that not many were on the uber-libertarian bandwagon for marriage before gay marriage was a distinct possibility). Question remains though, if Michigan voters, much less the U.S. population votes for constitutional amendments to keep straight marriage "special", what do you think the chances are they'll get behind something that gets rid of state recognition of marriage altogether? This let's abolish marriage business is always presented as a compromise between homophilic and anti-gay opinion, when in fact it would broker no such deal. Oh, and the issue of how taxes are done aren't a small issue, but gets to the heart of how the government will recognize joint finances.

Posted by: Chris Cagle | Mar 18, 2005 5:28:46 PM

Posted by: Mona

Terrier writes: Mona, isn't it disingenuous to offer advice about staying in the back of the bus when you know the busdriver has a noose waiting for any passenger he chooses?

Um, yeah, sure. must....not... have....nooses....they....are....bad

You just made a great argument for the ERA, what did you do to pass it then?

I actively opposed it. And still do. But not because it would likely legitimate SSM, which is now a result that might persuade me to overcome my other objections. (Back then, SSM was an exotic topic to me and most, and I gave it almost no thought.)

Posted by: Mona | Mar 18, 2005 5:32:45 PM

Posted by: S. Weasel

I believe civil unions only appeal to those in the middle; people who believe practical issues like medical benefits and hospital visitation rights are the point of the exercise. Both proponents and opponents of same sex marriage are exclusively interested in the electricity generated by the word "marriage" -- and the normalization and societal seal of approval the word implies.

At least, that's how it looks from my vantage point in the middle.

Posted by: S. Weasel | Mar 18, 2005 5:38:29 PM

Posted by: clayton


I'm still not convinced. The most common justification I've heard for refusing to recognize same sex marriages from my students is this: they think that the government shouldn't endorse homosexuality and think that this is what recognizing same sex marriage would amount to. They seem to think of the package of legally defined rights and responsibilites that go with being married as extrinsic to the institution and see no reason to deny couples of any sort access. So it may well be that the position they seem to want most is one they are unlikely to end up with, but I'm still at a loss as to why you think that these measures still would have passed without deception.

Posted by: clayton | Mar 18, 2005 5:41:47 PM

Posted by: OldMountainGoat

Clayton, what is the average age of your students? You imply that they are representative of the public at large.

Posted by: OldMountainGoat | Mar 18, 2005 6:03:43 PM

Posted by: D.A. Ridgely

Umm, Terrier, you write "My advice is to use any means available," and you complain about my supposedly Leninist question?

Posted by: D.A. Ridgely | Mar 18, 2005 6:04:44 PM

Posted by: Bret

Chris Cagle wrote: "what do you think the chances are they'll get behind something that gets rid of state recognition of marriage altogether?"

In one step in the near term? Zero. There's some small chance it might evolve to that point in one or more states in the distant future. I didn't say I thought it would happen, only that it should happen.

And, BTW, if the bandwagon had existed earlier, I might've got on it. It's a potential solution to a problem that is apparent now, but wasn't particularly apparent before.

Posted by: Bret | Mar 18, 2005 6:08:20 PM

Posted by: Mona

Clayton writes: So it may well be that the position they seem to want most is one they are unlikely to end up with, but I'm still at a loss as to why you think that these measures still would have passed without deception.

Because opposition to SSM runs wide, as well as deep. Egalitarian notions that gay domestic partners should not be denied health benefits do not run deep, especially not with citizens who are older than most of your students. That view would not overcome the strong, usually visceral, objections to calling gay unions "marriage."

Further, if the deception had not occurred, the debate would have had to be more (are you ready, Don?) fulsome. (Don finds my use of "fulsome" shocking.) What the egalitarian students who oppose SSM, but who do favor domestic partners having all the benefits of marriage do not understand, is that any measure that allows gays the benefits of marriage under another denomination will not prevent de facto SSM. If they were made aware of this, most would vote for an amendment such as Michigan's.

Mary and Sue have a marriage ceremony at the Unitarian church and register as domestic partners; Mary can carry Sue on her health plan, any children they have or adopt are regarded as theirs in any divorce and custody proceeding occur just as if they were Mary and Steve, & etc. Eventually, we end up with recognition of SSM without any law explicitly allowing that necessarily having been passed.

Opponents of SSM who acknowledged what the Michigan amendment completely effects, would have had to spell all this out, and that would have muddied their simple "No Same Sex Marriage!" message. But I am certain they would have carried the day due to the deep opposition to SSM. As they did it, however, they were able to keep it simple as well as less expensive.

Posted by: Mona | Mar 18, 2005 6:14:39 PM

Posted by: Perseus

As someone who takes original intent seriously, I have already voiced my objection to interpreting the Michigan amendment as including same-sex domestic partnership benefits.

I will also say that here in California, San Francisco (surprise, surprise) Superior Court Judge Richard Kramer recently ruled that a similar proposition (which was not a constitutional amendment) is unconstitutional on the grounds that the proposition makes "the gender of the intended spouse ... the sole determining factor" without serving any "rational purpose" (an ERA-like argument). This sort of judicial activism is precisely the reason why such propositions are being enacted. So when Don Herzog starts condemning (or somehow justifying) the decisions of these judges as loudly as he condemns the machinations of social conservatives, I'll take his posts on this matter more seriously.

Posted by: Perseus | Mar 18, 2005 6:29:40 PM

Posted by: D.A. Ridgely

I would echo Bret's prediction in response to Chris Cagle's question, only noting in passing that the "uber-libertarian bandwagon" to get the state out of the marrying business altogether has been humming along for decades. (Always glad to find new riders, though!) I'm not sure Terrier and the egalitarians here can stand much more reality about this, but the sad truth is that most people think that government entitlements that benefit them are prudent and responsible, entitlements that benefit others are profligate and evil. Sic transit gloria mundi.

I also can't help but chuckle at this entire thread, feeling as I do that the, ahem, 'problem' here is one of, well, um, constitutional interpretation. That ever louder clucking sound we're hearing is the poultry's homeward march. Did someone mention geese, ganders and sause earlier?

Posted by: D.A. Ridgely | Mar 18, 2005 6:32:33 PM

Posted by: Don Herzog

Since I am not at all skeptical about constitutional interpretation, and since I have nowhere on this blog voiced the slightest skepticism about constitutional interpretation -- yes, for real; I have been skeptical about "strict construction" and "original intent," that's all, and if you think those are the sum and substance of constitutional interpretation you've been sadly misinformed -- I don't understand Mr. Ridgely's chuckling.

Indeed since Mr. Ridgely has repeatedly confessed his attachment to the profound skepticism about constitutional and more generally legal interpretation voiced by critical legal studies, I guess I wonder which way those poultry are marching.

Posted by: Don Herzog | Mar 18, 2005 6:45:06 PM

Posted by: D.A. Ridgely

Frightened as I am by any herd (or should I say brood?) instincts, Mr. Herzog is correct to wonder why I am chuckling rather than clucking in disapproval but incorrect in what I take to be his suspicions that my remarks might have been aimed specifically at some possible inconsistency in his stated positions on this blog.

His intellectual consistency and integrity aside, however -- and I insist this isn't mere whataboutery -- liberalism's goals have been pursued by such shenanigans as those he here decries for decades now. Indeed, one of the reasons I insist "they're all weasels" and barely (if at all) contain my laughter when I hear about the 'moral high ground' of leftist politics is the enthusiasm both sides evince in their willingness to learn and use each other's dirty tricks and, often in the same breath, cry foul (note I refrained from writing "fowl" here!) when they are used against them.

So I say a (chicken) pox on both their houses!

Posted by: D.A. Ridgely | Mar 18, 2005 7:04:59 PM

Posted by: Tad Brennan

Mr. Ridgely--

"the enthusiasm both sides evince in their willingness to learn and use each other's dirty tricks"

Yes, I'm the kind of "naive, well-meaning liberal" (as another poster called me today) who thinks that something deeply valuable in our national psyche was lost when Vince Lombardi's adage "winning isn't everything, it's the only thing" was allowed to crowd out Grantland Rice's adage:
"For when the One Great Scorer comes To write against your name, He marks - not that you won or lost - But how you played the game." How I wish that the second still animated the world of sports, instead of the first!

(In addition to the fact that Lombardi's line really doesn't make much *sense* when you think about it).

Posted by: Tad Brennan | Mar 18, 2005 7:40:39 PM

Posted by: D.A. Ridgely

Mr: Brennan:

You'll get no argument from me as long as we are clear in distinguishing between "what is" and "what should be."

In any case, there is absolutely no contradiction in approving of some result and yet decrying the method by which it was accomplished. Thus, for example, while I wholeheartedly approve of there being a Constitutional right, say, to privacy, I can nonetheless adamently oppose the method by which it came into being. If we condone bad lawmaking because our side wins, we have no moral ground to complain about the same method being used for laws we oppose. That was my point.

Herewith, a slightly off-topic (Mr. Herzog’s topic, not mine) example from a recent Weekly Standard piece: (Disclaimer: I have not checked the quotes and I am aware the situations are not, in any case, identical.)

A January 1, 1995, NY Times editorial on proposals to restrict the use of Senate filibusters:

In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him. . . . Once a rarely used tactic reserved for issues on which senators held passionate views, the filibuster has become the tool of the sore loser, . . . an archaic rule that frustrates democracy and serves no useful purpose.

A March 6, 2005, NY Times editorial on the same subject:

The Republicans are claiming that 51 votes should be enough to win confirmation of the White House's judicial nominees. This flies in the face of Senate history. . . . To block the nominees, the Democrats' weapon of choice has been the filibuster, a time-honored Senate procedure that prevents a bare majority of senators from running roughshod. . . . The Bush administration likes to call itself "conservative," but there is nothing conservative about endangering one of the great institutions of American democracy, the United States Senate, for the sake of an ideological crusade.

This is how politics works. You build coalitions, sometimes with folks with whom all you have in common is a common enemy, you get legislation passed, you work the courts, etc., and when you lose you bitch and get your media friends to bitch, too. It ain’t pretty, it ain’t principled, and it sure as hell ain’t intellectually consistent or morally coherent. But what you can’t do is voluntarily play the game and then expect folks (at least like me) to take you seriously when you start complaining about what a rough and dirty game it is. The time to do that and be taken seriously is when you’re on a winning streak. Oddly enough, however, we don’t see much of that, do we?

Posted by: D.A. Ridgely | Mar 18, 2005 11:08:59 PM

Posted by: D.A. Ridgely

Minor clarification: my penultimate sentence should read "... start complaining when you're losing about what a rough and dirty game it is."

Posted by: D.A. Ridgely | Mar 18, 2005 11:16:10 PM

Posted by: neal

I have a rather strange position on the whole gay marriage thing, because I can't find anyone left or right who agrees with it. I don't care if they call it "marriage," I just don't want a new set of government entitlements, be it in health care, income tax reductions, whatever. I want less, not more, government because it is innefficient and slows progress. But, I'm all for things like allowing gays to co-own homes, have hospital visits, and even gain the one tax benefit of inheritance.

I think the tax benefits are for raising families, and the health benefits are the same. The state has a vested interest in having its citizens procreate. Yet, the whole debate seems to have devolved into something that seems really bad for the left, because they are going to lose, and to me because I don't want religious right victories.

Does anyone share these sentiments?

Posted by: neal | Mar 18, 2005 11:28:52 PM

Posted by: Bret

neal wrote: "I think the tax benefits are for raising families, and the health benefits are the same. The state has a vested interest in having its citizens procreate."

If that's so, then wouldn't it follow that married couples (straight, gay, or otherwise) without children (at least those who aren't pregnant) shouldn't be eligible for tax and health benefits?

Posted by: Bret | Mar 18, 2005 11:50:52 PM

Posted by: Tad Brennan

Well, I'm not worried about 'the left' losing on this one--if you check the demographics on the debate, it is pretty clear that the next generation is just going to scratch their head and wonder what the fuss was all about. For the same reason, I am not worried about the Religious Right gaining a victory.

But what I don't understand is why the Religious Right has not taken what I think is the principled Pauline position on gay marriage. (Hilzoy mentions this in a comment and reminds me I have made this argument before).

Let us suppose that gay sex is bad. No news there--St Paul thinks that straight sex is pretty bad, too. But in that case, the question we are confronted with by gay sexuality is no different from the question that confronts us with straight sexuality: How is this force, this potentially destructive, culture-corroding force of sexual appetite, to be rendered innocuous to society, at least, and beneficial to society, if possible? The answer in both cases is the one that St. Paul announced in his letter to the Corinthians: marriage.

Now concerning the things whereof ye wrote unto me: It is good for a man not to touch a woman. Nevertheless, to avoid fornication, let every man have his own wife, and let every woman have her own husband….For I would that all men were even as I myself. But every man hath his proper gift of God, one after this manner, and another after that. I say therefore to the unmarried and widows, It is good for them if they abide even as I. But if they cannot contain, let them marry; for it is better to marry than to burn. (1 Corinthians 7:1-9)

Paul endorses straight marriages here, not because he celebrates straight sex, but because he deplores straight promiscuity. Paul's rationale for marriage makes it a second-best option: far better than the third-place option--promiscuity--though not as good as the first-place option of celibacy. But the gift of celibacy was given, by God, to very few; and for the rest of us whom God has built in this incontinent way, the essential remedy is marriage. Better that they should marry than that they should burn.

Paul's principle applies directly to gay people as well as well as straights. You do not have to endorse gay sexuality to endorse gay marriage--you may decry homosexual lust, abhor it, and think that it reflects a second-best or even third-best endowment of grace from God. To be in favor of gay marriage, you simply need to see it as better than gay promiscuity; you simply need to agree with Paul that it is better that they should marry than that they should burn.

Better not just for gays themselves, but for all of us--for society as a whole. If you think that gay life-styles are a problem for society, think again, and you'll find it's really promiscuity. The promiscuous behavior of straight men does far more damage every year than anything gay men do. More children are molested every year by straights than by gays. More young adults are forced into prostitution every year by straight lust than by gay lust. Every year, millions of children of straight marriages have their households destroyed by straight people having straight affairs. And every year, gay couples who are committed to the married life--to making one household out of two lives, solidified by vows of life-long monogamous fidelity--raise tolerably decent children. Promiscuity--whether straight or gay--is the enemy of society. And marriage--whether gay or straight--is its bulwark.

If you want to defend marriage, attack its real enemies: a culture that glamorizes promiscuity. If you don't approve of the current gay life-style, attack its root causes: a gay culture stuck in permanent adolescence because meaningful adulthood--responsible lives of marriage, family, and child-rearing--has been denied it.

Favoring gay marriage does not mean approving of gay sex, any more than Paul's grudging endorsement of straight marriage meant that he applauded straight sex. To be in favor of gay marriage, you don't have to like gay sex, gay culture, or even gay people; you just have to agree with St. Paul's principle that it is better to marry than to burn.

Posted by: Tad Brennan | Mar 18, 2005 11:56:19 PM

Posted by: neal

If that's so, then wouldn't it follow that married couples (straight, gay, or otherwise) without children (at least those who aren't pregnant) shouldn't be eligible for tax and health benefits?

Well, I think it gets a little difficult.

First, there is "nesting." That takes energy and time.

Then, there are those instances of married couples who are now childless, due to loss of a child, children who are now in college, etc., and that complicates things as well. I think earning power of stay at home moms whose children are now of age is greatly diminished.

I guess you could state there are instances in which couples are married without any intent to have children, but then I would have to ask "why?" It certainly wasn't in my mind when young that I wanted to get married to have a tax break. Personally, I think having stay at home moms is really desirable for the state, as are couples with children staying married.

If doubt there are many who get married for the tax breaks alone, but if there are then I would say make divorce even of childless couples more difficult.

Posted by: neal | Mar 19, 2005 1:13:11 AM

Posted by: Josh Jasper

Neal, same sex couples don't procreate with each other, but gay people do procreate. You have to ask yourself what kind of an asshole denies a real couple with kids equal benefits for a hypothetical "damage" that that couple is doing to a concept.

I know several same sex couples with kids. They *have* to pay more in taxes and get denied benefits because the federal government does not recognize them as real parents. I'm going to be blunt, and say that anyone who agrees with that sentiment is pretty much an asshole as far as I'm concerned.

Posted by: Josh Jasper | Mar 19, 2005 1:29:20 AM

Posted by: neal


Perhaps the problem, as I mentioned, is that gay people have been stifled. I think we should help gay people to early on realize what they are, and let them lead their gay lifestyles by way of accepting it. The damage is really great when a gay person hooks up with a heterosexual person, only to leave them later due to their actual sexual orientation. I think that damage is much more severe than a few dollars. Now, before you go and rant about it, just consider what it means to a woman who finds her man is gay after 10 years of marriage, only to announce there is no possibility of family due to that orientation, or that splits up a family becuase of those feelings. I'd rather that didn't happen.

Personally, I think that children from a gay/heterosexual union are really damaged. If they end up with the gay couple, they are denied the very personal diversity of having both a male and female role model. Perhaps diversity doesn't matter, but I've been hearing lately that it is really important.

Posted by: neal | Mar 19, 2005 3:17:18 AM

Posted by: abab man

Whenever the government or society steps in and make a law or rule there is chance someone becomes an asshole. A brother and sister or a mother and daughter living together trying to raise a child would still be denied benefits while paying taxes. No one is lobbying for them. What assholes we all are. Someone adversely affcted by afirmative action programs is denied benefits and may be paying taxes. Does that make proponents of Afirmative Action assholes? I'm with DAR on this one, and probably Mona as well. Neither side is much concerned with maintaining the high moral ground or fairness. Is this a bait and switch? seems so. This is occuring in the context of an even larger bait and switch, the gay marriage issue. Benefits are argued -only an asshole would deny benifits to a same sex couple with children- but the real prize is the brand name Marriage.

Posted by: abab man | Mar 19, 2005 3:21:07 AM

Posted by: D.A. Ridgely

Mr. Brennan:

As part of the Christian denominational inside-the-ranks debate, I've been arguing roughly that position for years. When the church (the one to which I belong officially, anyway) gave up on the notion of lifelong monogamy and opted for what amounts to serial polygamy with theological double-speak about the "death" of relationships (takes care of that "until death do you part" business, don't you know?), it abandoned both Paul's (and more importantly, Jesus') admonition regarding the indissoluble nature of sacramental marriage and the, ahem, ‘high moral ground’ on matters of human sexuality thereafter, at least in my opinion. Having done that, it is merely selfish of them to draw a line in the sand that permits their own divorce and remarriage but denies any sexual life to homosexuals, let alone denies them and society the benefits that accrue from stable monogamy for anyone.

In fairness to many evangelical Protestants and conservative Roman Catholics, however, they have not abandoned that perspective and I don’t think your argument works there.

As you state, Paul’s argument regarding straight marriage being preferable to promiscuity or even (Paul’s concern) mere fornication remains valid in the case of homosexuals, although Paul would himself never have reached that conclusion. Note, by the way, that Paul is the only explicit critic of homosexuality in the New Testament and that his general theology of sexuality is overall quite rigid. Freud would have had a field day with Paul on the couch. Even so, I think Paul is misread. I think the early Neo-Platonic theologians read Paul as you describe; that is, as distaining marriage and sex, per se. I don’t think that’s fair to Paul, though I admit there is no way to resolve the argument. I think it is abundantly clear that he, like all the original Apostles, was convinced the Second Coming was really imminent (he was the first, that is, to “imminentize the eschaton”) and that marriage entailed time and energy consuming obligations which distracted from the immediate business of bringing people to Christ before that happened. That’s quite a different reason for opposing marriage than believing that sex is somehow always bad and just barely made acceptable inside the context of heterosexual marriage. Again, I admit the two views are not mutually exclusive, but I think it was Paul’s belief in the urgency of the Great Commission that led him to recommend celibacy over marriage for those Christians capable of remaining celibate. Much of the early medieval church, however, clearly opted for the latter view, whatever its predictions on the Second Coming might have been, even after Aquinas replaced bad Plato with bad Aristotle.

But enough church history and theology. Short of that eschaton occurring, the religious (right or left) won’t “win,” as you put it. The political battle is largely over the majority’s lingering psychological predisposition against homosexuality, per se, than it is about their belief in any theologically mandated code of morality. Not that the two are not at least subconsciously connected, but it is the former that is driving secular opposition to homosexual marriage. None of that, alas, will go to the question of promiscuity, but even a cursory examination of what evangelical Protestants and conservative Roman Catholics (collectively, what you would probably call the “Religious Right”) are teaching and preaching should lead to the conclusion that they are equally adamant in their opposition to both promiscuity and homosexuality.

Posted by: D.A. Ridgely | Mar 19, 2005 7:58:47 AM

Posted by: D.A. Ridgely

By the way, remarks have been made to the effect that barring domestic partnership benefits would thus bar, say, medical benefits to the custodial children of one partner. This is almost certainly false. Single or divorced parents retain such benefits as a matter of course. Indeed, most non-custodial, divorced parents typically can continue to include their children under their health insurance plan. There may be isolated cases where such benefits would not be provided; e.g., the employed domestic partner is not the legal parent or custodian of the child, but I suspect that would be equally true in the case of heterosexual or homosexual partners.

Posted by: D.A. Ridgely | Mar 19, 2005 8:25:16 AM

Posted by: Alyssa P

"By the way, remarks have been made to the effect that barring domestic partnership benefits would thus bar, say, medical benefits to the custodial children of one partner. This is almost certainly false. Single or divorced parents retain such benefits as a matter of course. Indeed, most non-custodial, divorced parents typically can continue to include their children under their health insurance plan. There may be isolated cases where such benefits would not be provided; e.g., the employed domestic partner is not the legal parent or custodian of the child, but I suspect that would be equally true in the case of heterosexual or homosexual partners."

You've left out the most obvious (and increasingly common) possibility, which is that the non-custodial parent has no health benefits at work and therefore can't offer any. With the number of uninsured adults in this country, I would not assume that is at all uncommon.

From an earlier post: Neal, what in the name of all that is holy (and, indeed, all that is not) is "nesting", and why on earth should we develop social policy on the basis of it?

Alyssa P.

Posted by: Alyssa P | Mar 19, 2005 8:56:39 PM

Posted by: Ted

I should probably know, or at least have a sense of the answer to this, but let me ask the law types: could a religion such as Unitarianism challenge anti-same sex marriage laws in court on the grounds of religious descrimination, since their religion allows such marriages and the state is now prohibiting them? I assume the Mormons have tried something like this re: polygamy, and I assume the answer to my question must be "no," because no one ever brings it up, but I'd like to know why the answer is "no".

FWIW I agree with the people who want government out of this business altogether. It should issue civil partnerships to unrelated couples, gay or straight, and if the two of them want to have a church sanctify their marriage it's up to them.

As a married man living in Michigan I'm still waiting patiently for someone to explain to me how Proposition 2 strengthened my marriage. I was promised repeatedly during the campaign that my marriage would be strengthened if it passed, but my wife and I can't figure out how.

Posted by: Ted | Mar 20, 2005 10:13:07 AM

Posted by: Tad Brennan

Mr. Ridgely--

Thanks for your comments. The 'winning' language was actually an echo of Neal's "victory" language--I generally avoid casting these debates in those terms.

Very interesting about Paul and imminentism. I have not encountered that interpretation of his stance. No surprise to me that my own understanding follows what you describe as a neo-Platonic reading, though in fact they are not quite flesh-haters themselves. They usually approve of sex when it is procreative and undertaken on purely rational grounds, i.e. because it is part of the divine plan that creatures like us should continue to exist on earth.

Given that they thought the activity itself was only worth pursuing instrumentally, i.e. in order to perpetuate the species, and that any given amount of time would be much more pleasantly spent on, e.g., geometry, I think they could concur hypothetically with your Paul: i.e., *if* the whole show is about to pack up, and continuing the species is no longer an issue, then there are *surely* more important things to do with our time. Not tonight, dear, I'm contemplating the Form of the Triangle.

Part of my point is just to question to claim that accepting gay marriage entails endorsing gay sex. Do you think that point tells only against those churches that accept divorce and remarriage, or equally against the the more traditional churches? I wasn't quite sure I understood the form of your qualified agreement. Was it "yes, this would be a good argument, except that's not quite what Paul meant", i.e. a matter of Pauline interpretation, or "yes this would be a good argument, but only against those who have already abandoned life-long monogamy"? I don't see how the second line of thought would go, but I'd be interested to hear you expand upon it.

Of course, you might prefer to spend the time contemplating the Form of the Triangle, instead....

Posted by: Tad Brennan | Mar 20, 2005 11:11:32 AM

Posted by: D.A. Ridgely

Mr. Brennan:

People make of Paul what they will. I think I was only trying previously to suggest that, Paul’s probably very real prudery and his objection to homosexuality aside, the referenced quotes need to be put into their proper context which many of those who cite him perhaps forget or don’t know, and I think that context affects how much weight to give those quotes.

Let me also clarify that I wasn’t saying before that the early church was neo-Platonist but that it borrowed heavily from neo-Platonism as a conceptual system and metaphysical language in its struggles to make sense of the things it wished to say and to deny about who and what Jesus was and how and why that was important and what they should be doing as a result. Clearly, by the time the synoptic Gospels in the version we now have them were written (and also the Gospel of John, the most ‘philosophical’ of the four Gospels – “In the beginning was the Word (logos), and the Word was God and the Word was with God... and the Word became flesh and dwelt among us.”), it was fairly obvious that the Second Coming might well not be “just around the corner” as Paul probably believed. But when you look at the debates leading to the early Christian creeds (Apostles’ Creed, circa 100 AD) and the competing theories that were subsequently deemed by the early church to be heresies such as Arianism (Nicene Creed, 325 AD), you can see there is at least a strong sense in which it is reasonable to suspect that they were naïve neo-Platonists of some sort or other and that this was one of the many factors influencing the history of Christian sexual ethics.

I can only hazard a very sketchy sort of answer to your question, and I certainly don’t want to represent that I am qualified to speak with any authority or expertise about any specific denominational doctrine or dogma. In any case, it used to be fairly standard orthodox, traditional Christian teaching that a couple who wished sacramental marriage must be at least open to the possibility of children; that is, that they understood and accepted procreation as not merely a consequence of sexual intercourse but as part of its divine purpose. (Traditional Christian sexual ethics are, unsurprisingly, teleological even after Aquinas re-equipped them with Aristotelian metaphysics.) Modern Protestantism has, of course, overwhelmingly rejected the notion that such openness requires the avoidance of all forms of artificial birth control, but its more traditional, orthodox branches have not rejected the background teleology; so I think in that sense it would be difficult to take seriously a homosexual couple purporting to satisfy that understanding of marriage as a sacramental relationship. Thus, I doubt what you called the more traditional churches can reconcile their understanding of marriage to include gay marriage precisely because that understanding entails a teleological understanding of sex.

When you move beyond those churches to denominations that have already abandoned life-long monogamy as the only morally acceptable context for sexual intercourse (and thus, in my view, abandoned the sort of moral seriousness that entails refusing to change the rules when they are inconvenient to us as opposed to being inconvenient merely to others), the question becomes whether there is any theologically sound understanding of marriage that precludes gay marriage, regardless of what Paul’s position was. I can’t answer that, but I think that’s where the battle lines are drawn.

At least that’s where they are currently drawn in the one denomination I know anything about, the Episcopal Church. The controversy over gay marriage or even same-sex union blessings (and gay bishops) seems to be focused precisely over whether one can accept some sort institutionalized recognition of practicing homosexuals in their committed sexual relationships (or as church officials) without having to “endorse gay sex.” Clearly, at one level the battle is political (gay Episcopalians will settle for nothing less than gay marriage and sexually active gay bishops); but at another level it is, well, philosophical – is there an intelligible and defensible distinction between gay sex and heterosexual sex in a specifically Christian context and understanding of human sexuality that precludes ignoring that distinction when it comes to Christian marriage or ordination? Politics aside, if there is, does that preclude the church from affirming the nonetheless salubrious and even holy qualities of a committed and loving but homosexual relationship?

Posted by: D.A. Ridgely | Mar 20, 2005 1:37:53 PM

Posted by: Tad Brennan

Mr. Ridgely--

I think I've got it now. The traditional position was consistent in that it said "we don't much like straight sex, but we'll accept it provided that a) it occurs within life-long monogamy and b) it retains procreative potential". One could have *that* attitude towards straight sex and straight marriage, and still say that gay sex cannot be made tolerable, even by gay marriage, because of the lack of the second mitigating factor, viz. procreative potential.

But once you say that straight sex is acceptable in the presence of only *one* redeeming feature, viz. life-long monogamy even w/out procreative potential, then you cannot consistently deny that gay sex is redeemable on the same terms.

In that case, maybe your view would be that those who want to ban gay marriage should ban birth-control (and any other counter-procreative practices), rather than that they should ban divorce and remarriage. It's the lack of redemption-by-procreation that motivates the justified asymmetry between saying "straight sex is bad, but marriage makes it tolerable", and saying "gay sex is bad, but marriage does not make it tolerable."

So I'm not sure that the acceptance of divorce and remarriage was the point when they lost a consistent position against gay marriage. (Though you and I might have other reasons for objecting to it on other grounds).

Is that right as an account of your view?

Posted by: Tad Brennan | Mar 20, 2005 2:30:48 PM

Posted by: D.A. Ridgely

Well, I think the later traditional view really was that we like it just fine as long as (1) and (2) are met. It is the view that sex is both good and purposeful when used as God intended (which is why He made it so much fun), not so good (no matter how much fun it is) otherwise because, among other problems, it thwart’s God’s plans. Remember that it was being open to the possibility of children, not the intent to make them every time one had intercourse that was required. God supposedly gives us the appetite but He decides when it’s time to make babies. Or something like that. Arguably, God is quite capable of thwarting our attempts to thwart His plans, too, though that doesn’t get us off the hook for not doing whatever it is we’re supposed to be doing. Pushing that argument, God could theoretically cause a pregnancy from lesbian or even gay male sex, though He appears so far not to have done so. Who knows, though? After all, it isn’t as though the church is unfamiliar with miraculous sex.

Anyway, none of this is my view, only my sense of how the debate is framed and conducted inside Christian circles. I don’t do theology. I only think about it from time to time and try to make some sense of it, usually unsuccessfully.

Posted by: D.A. Ridgely | Mar 20, 2005 3:12:36 PM

Posted by: Ralph Wedgwood

Perhaps someone could enlighten those of us who don't live in Michigan -- how easy is it to amend the Michigan state constitution by ballot initiative? Is it really easy (as it is in California), or is it quite hard (as in Massachusetts)?

Having closely observed the same-sex marriage wars both in the USA and in other countries (and having campaigned on a couple of occasions in favour of same-sex marriage both in the US and in the UK), I feel that this is one of the many areas where the fundamental constitutional arrangements of European countries are decidedly preferable to those of the US. The main differences in this respect are two: first, practically no European country gives so much power to judges as the USA (above all, European judges cannot strike down laws as unconstitutional as American judges can); second, practically no European country makes it so easy for state constitutions to be amended by ballot initiative as it is in many states of the US.

In both respects, I believe that European arrangements are preferable. First, judges are to a very large degree insulated from public opinion: this is indeed essential to their upholding the rule of law; but it also means that when they strike down legislation on fundamental matters of public policy, their decisions will often lack sufficient popular support, and so are liable to provoke an intemperate backlash. Second, when a state constitution is amended by ballot initiative, the constitutional amendment is drafted by a private lobbying organization, not by the careful deliberations of legislative committees; and the decision about whether to incorporate the amendment into the state constitution is made by voters, who are more liable to respond to emotional appeals than to careful arguments based on the actual details of the amendment (so it is hardly surprising that many laws and constiutional amendments passed by ballot initiative have effects that many of those who voted for them did not intend). Both of these unfortunate tendencies of the US political system have been much in evidence in the same-sex marriage wars in the US.

In Europe, by contrast, the legal recognition of same-sex couples has been introduced not by the courts but by parliaments. Parliaments are under much greater pressure than private lobbying organizations to draft legislation reasonably carefully; and they are also under greater pressure than judges to avoid taking actions that will provoke a big backlash. (The fact that in most parliamentary systems, the executive branch is composed of members of parliament also heightens public scrutiny of parliament's actions, and creates further pressure towards reasonably responsible legislation.)

This is why in Europe, progress towards the legal recognition of same-sex couples has been slow and steady rather than a series of dramatic victories and defeats. First, European countries introduced domestic partnership laws (first the Netherlands and the Scandinavian countries, then Belgium, France and Germany, and now the UK and most other European countries as well); then after several years, during which time the voters had the chance to get used to these domestic partnership laws, some European countries (so far, just the Netherlands and Belgium) went ahead and introduced full same-sex marriage. I think that this gives gays and lesbians in the USA some reason to envy their counterparts across the Atlantic.

Posted by: Ralph Wedgwood | Mar 20, 2005 3:34:08 PM

Posted by: Ralph Wedgwood

My friend Mike Otsuka has pointed out to me that I was quite wrong to say that "European judges cannot strike down laws as unconstitutional as American judges can." This is quite untrue: a large number of European countries give courts the power to invalidate laws as unconstitutional; the most notable instance is probably the German Federal Constitutional Court (Bundesverfassungsgericht), but many other European countries follow either the German or the American model.

Still, at least so far, European courts have largely managed to avoid exercising this power in ways that have provoked the sort of backlash that we have seen in the US in response to the courts' same-sex marriage decisions in Hawaii, Vermont, Massachusetts, etc. Same-sex marriage advocates in most European countries didn't regard it as at all likely that their country's courts would rule that it was unconstitutional for the state not to allow same-sex marriages. This is why the same-sex marriage advocates in Europe all took the path of lobbying their parliaments rather than filing lawsuits.

Posted by: Ralph Wedgwood | Mar 20, 2005 9:56:33 PM

The comments to this entry are closed.

« previous post | Main | next post »