May 24, 2012
As usual, it all started with Joe Biden.
"Look," he said on Meet the Press on May 6, "I am the Vice President of the United States of America. The President sets the policy. But I am absolutely comfortable with," basically, anybody marrying anybody (space does not permit printing his entire sentence).
In rhetorical contrast, when Education Secretary Arne Duncan was asked if he supported same-sex marriage, he replied in three words: "Yes, I do."
I now pronounce you ....
It was Duncan's laconic response that some construed as a harbinger of an administration-wide position; why else would a cabinet officer weigh in, when he could have said the question is irrelevant to his job? But that was not to be.
Apparently taken by surprise at his subordinates' remarks, President Obama finally evolved to the point of offering a hesitating, rambling endorsement, marked by many pauses and restatements and using his I'm-just-folks voice, in his interview with Robin Roberts on ABC on May 9: "At a certain point, I've just concluded that — for me personally — it is important for me to go ahead and affirm that — I think same-sex couples should be able to get married."
The key word here is "personally." He said he didn't want to "nationalize the issue": "I continue to believe that this is an issue that's gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage." If he were a state senator, he said, "You know what? I think that — I would have voted yes" on same- sex marriage legislation.
This long interview was telling in its tenuousness: Of course I support full legal rights for gays and lesbians; of course I now realize that "civil unions" relegate same-sex couples to "less than full citizens"; of course I sympathize with "folks — who — feel very strongly that marriage should be defined narrowly as — between a man and a woman"; of course same-sex marriage laws must be "re — re - respectful of religious liberty, that — you know, churches and other faith institutions — are still gonna be able to make determinations about what their sacraments are."
Clearly, the President is not as absolutely comfortable with same-sex marriage as his V.P. claims to be, not only for the obvious political implications but "personally."
It's the way a lot of other heterosexuals feel — conflicted. They believe that same-sex couples should enjoy the same rights and privileges as heterosexual couples; they believe that same- sex couples should be able to call their unions marriages. But they also believe that religious traditions with a "narrow" definition must be respected for their integrity and in no way be considered discriminatory in the eyes of the law.
This last point indicates that same-sex marriage is not a Fourteenth-Amendment, civil-rights issue in the same way that racial and gender bias are. Instead it is a First-Amendment, disestablishment issue. Just as the state can neither establish nor prohibit the exercise of religion, so too should the definition of marriage be left to individuals, religious bodies, and other social groups to interpret in their own way.
I have long argued (see my blog, http://repohl.blogspot.com, for other articles) that the unaddressed problem in the so-called "marriage wars" is the presumption that a definition of marriage must be written into law. But I would contend that the word "marriage," because it no longer holds a uniform meaning, is no longer a viable legal term. It is instead a personal and cultural one, a symbol of sexual intimacy, love, and commitment — qualities that are beyond the scope of law.
Contemporary marriage law is essentially contract law — it deals with the distribution of property and other obligations and privileges between the partners and toward their children. The development of the right to privacy over recent decades has eliminated the state's interest in the partners' sexual activity, inherent in every definition of marriage. Thus I would propose a more realistic description of the legal contract: a generic term such as "domestic partnership," universally applicable to any two consenting adults regardless of gender. Eliminating the presumption of sexual activity implied in the word "marriage" would also allow states to extend the contract to other family configurations — for example, to two relatives or friends with an interdependent commitment to one another but who would never want to be considered "married."
Such an approach would extricate the state from the impossible task of defining marriage to everyone's satisfaction. It would resolve the predicament that courts, legislatures, and now the President find themselves in, forced to take official positions on a matter that is essentially personal. The meaning of marriage would be returned to the people, where it properly belongs.
Unfortunately, this won't happen any time soon. The sad fact is that marriage has become an ideological football, when actually it's all about love.
Showing posts with label same-sex marriage. Show all posts
Showing posts with label same-sex marriage. Show all posts
Tuesday, June 5, 2012
Tuesday, July 26, 2011
GOD, LOVE, AND THE MARRIAGE EQUALITY ACT
July 20, 2011
The lone Democrat in the New York State Senate to vote against the Marriage Equality Act on June 24 is from the South Bronx. Ruben Diaz, Sr. — Pentecostal minister, hot-headed demagogue, one of those colorful characters once common in New York politics, and in the still-common dynastic tradition, father of the current Bronx Borough President — took his parting shot during the floor debate before the vote: “God, not Albany, has settled the definition of marriage a long time ago.”
There were surely other legislators who secretly agreed with his premise, if not his rhetoric, and yet finally voted the other way, persuaded by the powerful gay-rights lobby, promises of political pull by the popular governor Andrew Cuomo, and the emotional pull of homosexual family members and friends. Brooklyn Democratic Senator Carl Kruger, for example, was ostracized by the gay nephew of his girlfriend for voting against a similar same-sex marriage bill two years ago. According to the New York Times, his colleague, Democratic Majority Leader John Sampson, told him, “When everything else is gone, all you have left is family.” This time he voted yes.
“I don’t need this,” Kruger told him. “It has gotten personal now.”
Personal indeed, and it goes right to the top. President Obama, long an advocate of civil unions and a critic of the Defense of Marriage Act, which prohibits federal benefits to same-sex couples, continues to hold the belief that the word “marriage” means a man-woman union. He now says that his views are “evolving,” though he refuses to explain how and why.
I think I can understand his dilemma; it is a conflict between the public and the personal. Like the president, I support the complete equality afforded by measures such as California’s domestic partnership law, and yet, presumably like the president, I personally believe that marriage connotes a heterosexual union. What I don’t support is what amounts to an official endorsement of any particular life-style, either opposite-sex or same-sex, the public approbation of an essentially private activity.
That’s why I’m in favor of disestablishing marriage, just as the First Amendment disestablished religion. A pioneering state like California could replace civil marriage with a universal domestic partnership contract open to any two consenting adults without regard to gender and without the implication of sexual relations. The question of what marriage is and who may participate in it would thus be left to individuals, religious bodies, and other social groups. The state’s only concerns would be the witnessing and disposition of the contract and the protection and encouragement of stable family relationships, however they are configured, through the rights and benefits secured by the contract.
Over the last fifty years, government’s involvement — intrusion, really — in the realm of personal relationships have steadily waned. As courts identified and refined the right to privacy, laws prohibiting all manner of consensual sexual relations both within and outside of marriage were struck down, the adverse legal consequences of out-of-wedlock birth were eliminated, the exemption for spousal rape was removed, and non-consummation as grounds for nullity was obviated by no-fault divorce.
Changing social mores have compelled states to accord varying degrees of legal status to forms of family configurations other than marriage. Depending on the jurisdiction, unmarried parents are now held to the same responsibilities of child support as married couples, adoption has been extended to single people and same-sex couples, and privileges similar or identical to those formerly reserved to the married are given to cohabiting widowed persons over age 62 (to preserve survivorship benefits), and even blood-relatives.
Today, the preferential legal status of marriage, however the term is construed, is de facto being done away with by modern family law; marriage now is widely treated as one form of protectable family relationship among others. So why not take the next step?
A state like California could easily become marriage-neutral by abolishing its marriage statutes and folding heterosexual unions into its existing domestic partnership law.
The advantages to this approach are many. First, it would make clear by terminology that government’s fundamental interest lies not in the presumed sexual activity of the partners but in nurturing and strengthening stable personal and family relationships. Second, it would obviate the valid argument made by gay-marriage advocates that equal but separate marriage and “civil union” laws create implicit class distinctions. Third, it would terminate government’s entanglement in the problems of definition. Finally, these contracts could also be opened to a wider range of committed couples, such as two celibate friends or unmarried siblings who share their lives and property and deserve the privileges of any married couple, gay or straight, but who would never want to be considered “married.”
In 1765 — simpler times, indeed — the English legal scholar William Blackstone wrote: “Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to ecclesiastical law.”
In a closed-door meeting before the New York Senate vote, Governor Cuomo reportedly convinced wavering key Republicans with the exhortation, “Their love is worth the same as your love.”
Diaz based his argument on God; Cuomo, on love. I side with Blackstone. Neither legislatures nor courts should meddle in those holy realms.
The lone Democrat in the New York State Senate to vote against the Marriage Equality Act on June 24 is from the South Bronx. Ruben Diaz, Sr. — Pentecostal minister, hot-headed demagogue, one of those colorful characters once common in New York politics, and in the still-common dynastic tradition, father of the current Bronx Borough President — took his parting shot during the floor debate before the vote: “God, not Albany, has settled the definition of marriage a long time ago.”
There were surely other legislators who secretly agreed with his premise, if not his rhetoric, and yet finally voted the other way, persuaded by the powerful gay-rights lobby, promises of political pull by the popular governor Andrew Cuomo, and the emotional pull of homosexual family members and friends. Brooklyn Democratic Senator Carl Kruger, for example, was ostracized by the gay nephew of his girlfriend for voting against a similar same-sex marriage bill two years ago. According to the New York Times, his colleague, Democratic Majority Leader John Sampson, told him, “When everything else is gone, all you have left is family.” This time he voted yes.
“I don’t need this,” Kruger told him. “It has gotten personal now.”
Personal indeed, and it goes right to the top. President Obama, long an advocate of civil unions and a critic of the Defense of Marriage Act, which prohibits federal benefits to same-sex couples, continues to hold the belief that the word “marriage” means a man-woman union. He now says that his views are “evolving,” though he refuses to explain how and why.
I think I can understand his dilemma; it is a conflict between the public and the personal. Like the president, I support the complete equality afforded by measures such as California’s domestic partnership law, and yet, presumably like the president, I personally believe that marriage connotes a heterosexual union. What I don’t support is what amounts to an official endorsement of any particular life-style, either opposite-sex or same-sex, the public approbation of an essentially private activity.
That’s why I’m in favor of disestablishing marriage, just as the First Amendment disestablished religion. A pioneering state like California could replace civil marriage with a universal domestic partnership contract open to any two consenting adults without regard to gender and without the implication of sexual relations. The question of what marriage is and who may participate in it would thus be left to individuals, religious bodies, and other social groups. The state’s only concerns would be the witnessing and disposition of the contract and the protection and encouragement of stable family relationships, however they are configured, through the rights and benefits secured by the contract.
Over the last fifty years, government’s involvement — intrusion, really — in the realm of personal relationships have steadily waned. As courts identified and refined the right to privacy, laws prohibiting all manner of consensual sexual relations both within and outside of marriage were struck down, the adverse legal consequences of out-of-wedlock birth were eliminated, the exemption for spousal rape was removed, and non-consummation as grounds for nullity was obviated by no-fault divorce.
Changing social mores have compelled states to accord varying degrees of legal status to forms of family configurations other than marriage. Depending on the jurisdiction, unmarried parents are now held to the same responsibilities of child support as married couples, adoption has been extended to single people and same-sex couples, and privileges similar or identical to those formerly reserved to the married are given to cohabiting widowed persons over age 62 (to preserve survivorship benefits), and even blood-relatives.
Today, the preferential legal status of marriage, however the term is construed, is de facto being done away with by modern family law; marriage now is widely treated as one form of protectable family relationship among others. So why not take the next step?
A state like California could easily become marriage-neutral by abolishing its marriage statutes and folding heterosexual unions into its existing domestic partnership law.
The advantages to this approach are many. First, it would make clear by terminology that government’s fundamental interest lies not in the presumed sexual activity of the partners but in nurturing and strengthening stable personal and family relationships. Second, it would obviate the valid argument made by gay-marriage advocates that equal but separate marriage and “civil union” laws create implicit class distinctions. Third, it would terminate government’s entanglement in the problems of definition. Finally, these contracts could also be opened to a wider range of committed couples, such as two celibate friends or unmarried siblings who share their lives and property and deserve the privileges of any married couple, gay or straight, but who would never want to be considered “married.”
In 1765 — simpler times, indeed — the English legal scholar William Blackstone wrote: “Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to ecclesiastical law.”
In a closed-door meeting before the New York Senate vote, Governor Cuomo reportedly convinced wavering key Republicans with the exhortation, “Their love is worth the same as your love.”
Diaz based his argument on God; Cuomo, on love. I side with Blackstone. Neither legislatures nor courts should meddle in those holy realms.
Tuesday, November 18, 2008
PEACE THROUGH NEUTRALITY?
November 20, 2008
It is ironic that after the passage of Proposition 8, the "California Marriage Protection Act," on November 4, its opponents singled out the Mormon Church as the first target of their anger. In 1846, the Mormons were forced out of Illinois by an act of the state legislature for practicing an alternative to traditional marriage, polygamy. Decades later, they were coerced both by the federal courts and by military force into repudiating this core religious belief in order to win statehood for Utah, their refuge. This fall, the church spent $20 million to influence voters to impose a single official definition of marriage on all citizens.
Wouldn't you think that both Mormons and gay-marriage advocates would recall their respective histories of persecution and exclusion at the hands of government?
What is telling about the Proposition 8 campaign and its aftermath is the resemblance to religious wars. The framers of the U.S. Constitution remembered the devastation caused by state- supported religion in Europe and wrote religious liberty into its First Amendment. Of course, this did not eliminate the restriction and even persecution of religious groups by legislatures and courts, as Mormon history readily attests, but it laid down a principle of equality and tolerance that is refining judicial decisions to this day.
The same could be true of the marriage wars. Were a state to disestablish marriage, recognizing it as a fundamental right but refusing to endorse any particular form of it, it could defuse the battles that have grown more fierce and costly with each round.
In deliberating the case for same-sex marriage last year, the California State Supreme Court considered just such a step. It asked state Attorney General Jerry Brown whether under California law, the legislature could "change the name of the legal relationship of ‘marriage' to some other name, assuming the legislation preserved all of the rights and obligations now associated with marriage" — that is, a name that could equally apply to all conjugal contracts regardless of gender. Brown responded yes, because "the words ‘marry' and ‘marriage' have no essential constitutional significance under the California Constitution."
In a brief submitted to the court on August 31, 2007, he spelled out the state's argument: "The State does not deny the significance of marriage as a social and spiritual idea; after all, marriage existed long before the State of California ever recognized it in a statute. The state does not create a marriage: From antiquity, Western society has recognized that a marriage is created by the witnessed interpersonal commitment of the two persons themselves. The state can only give a marriage standing in the law. The only institution at issue in these proceedings is the state-sanctioned regime to which the label ‘marriage' has been attached in statute."
Thus, "so long as the Legislature ensures that all rights and benefits enjoyed by married couples under the law are also available to domestic partners — including, most importantly, the right to self-declaration and public legitimation of one's life- partnership," it could "employ a ‘neutral' term to describe state-sanctioned life-partnerships regardless of the couple's sex."
Though courts both state and federal have established a fundamental right to marry, the attorney general continued, "the focus was on the relationship of the couple, not the verbiage used on state legal forms." Further, the arguments of both parties to the case that a neutral legal term would diminish the honored place of marriage in society "are not arguments of a constitutional status."
The reason both parties agreed (in opposite ways) on this point of "honor" is that both were seeking state approval of their own particular definitions of marriage. As Brown noted, "the meaning of marriage comes from the understanding that it has been given in our society." But at this point in our social history there is no universally agreed-upon meaning of the term — even within some religious groups.
With this information, the court could have taken the bold step of disestablishing marriage, letting the many and various societal groups embrace their own definitions and restricting state involvement to the administration and adjudication of a universal family contract available to all couples regardless of gender or even implied sexual activity, including dependent or interdependent blood-relatives and friends who also deserve the rights and benefits presently reserved to the married and to domestic partners.
Such a move would have turned the question of the meaning of marriage back to the social and religious communities from which the institution arose and to whom it properly belongs. Rather than detract from the honored status of marriage, it would have allowed all societal groups to honor it in their own way. It would have mooted the well-taken point that denying the term "marriage" to gay couples makes them "second-class citizens" by making all couples simply citizens, equally. Further, it would have put the capstone on the right to privacy by denying state approval to particular sexual life-styles and focusing its attention on the family unit, no matter how it is constituted — something that California family law in fact does anyway.
Instead, the court bought the honored-place argument, the one the attorney general said had no constitutional status. After 120 pages of opinion, it came down to that.
Whether or not a neutral stance would have quelled the marriage wars is hard to determine — there would have been much residual frustration on both sides for neither getting their way — but at least it would have pointed them toward an authentic recognition of the diversity in our society and encouraged everyone to respect it.
It is ironic that after the passage of Proposition 8, the "California Marriage Protection Act," on November 4, its opponents singled out the Mormon Church as the first target of their anger. In 1846, the Mormons were forced out of Illinois by an act of the state legislature for practicing an alternative to traditional marriage, polygamy. Decades later, they were coerced both by the federal courts and by military force into repudiating this core religious belief in order to win statehood for Utah, their refuge. This fall, the church spent $20 million to influence voters to impose a single official definition of marriage on all citizens.
Wouldn't you think that both Mormons and gay-marriage advocates would recall their respective histories of persecution and exclusion at the hands of government?
What is telling about the Proposition 8 campaign and its aftermath is the resemblance to religious wars. The framers of the U.S. Constitution remembered the devastation caused by state- supported religion in Europe and wrote religious liberty into its First Amendment. Of course, this did not eliminate the restriction and even persecution of religious groups by legislatures and courts, as Mormon history readily attests, but it laid down a principle of equality and tolerance that is refining judicial decisions to this day.
The same could be true of the marriage wars. Were a state to disestablish marriage, recognizing it as a fundamental right but refusing to endorse any particular form of it, it could defuse the battles that have grown more fierce and costly with each round.
In deliberating the case for same-sex marriage last year, the California State Supreme Court considered just such a step. It asked state Attorney General Jerry Brown whether under California law, the legislature could "change the name of the legal relationship of ‘marriage' to some other name, assuming the legislation preserved all of the rights and obligations now associated with marriage" — that is, a name that could equally apply to all conjugal contracts regardless of gender. Brown responded yes, because "the words ‘marry' and ‘marriage' have no essential constitutional significance under the California Constitution."
In a brief submitted to the court on August 31, 2007, he spelled out the state's argument: "The State does not deny the significance of marriage as a social and spiritual idea; after all, marriage existed long before the State of California ever recognized it in a statute. The state does not create a marriage: From antiquity, Western society has recognized that a marriage is created by the witnessed interpersonal commitment of the two persons themselves. The state can only give a marriage standing in the law. The only institution at issue in these proceedings is the state-sanctioned regime to which the label ‘marriage' has been attached in statute."
Thus, "so long as the Legislature ensures that all rights and benefits enjoyed by married couples under the law are also available to domestic partners — including, most importantly, the right to self-declaration and public legitimation of one's life- partnership," it could "employ a ‘neutral' term to describe state-sanctioned life-partnerships regardless of the couple's sex."
Though courts both state and federal have established a fundamental right to marry, the attorney general continued, "the focus was on the relationship of the couple, not the verbiage used on state legal forms." Further, the arguments of both parties to the case that a neutral legal term would diminish the honored place of marriage in society "are not arguments of a constitutional status."
The reason both parties agreed (in opposite ways) on this point of "honor" is that both were seeking state approval of their own particular definitions of marriage. As Brown noted, "the meaning of marriage comes from the understanding that it has been given in our society." But at this point in our social history there is no universally agreed-upon meaning of the term — even within some religious groups.
With this information, the court could have taken the bold step of disestablishing marriage, letting the many and various societal groups embrace their own definitions and restricting state involvement to the administration and adjudication of a universal family contract available to all couples regardless of gender or even implied sexual activity, including dependent or interdependent blood-relatives and friends who also deserve the rights and benefits presently reserved to the married and to domestic partners.
Such a move would have turned the question of the meaning of marriage back to the social and religious communities from which the institution arose and to whom it properly belongs. Rather than detract from the honored status of marriage, it would have allowed all societal groups to honor it in their own way. It would have mooted the well-taken point that denying the term "marriage" to gay couples makes them "second-class citizens" by making all couples simply citizens, equally. Further, it would have put the capstone on the right to privacy by denying state approval to particular sexual life-styles and focusing its attention on the family unit, no matter how it is constituted — something that California family law in fact does anyway.
Instead, the court bought the honored-place argument, the one the attorney general said had no constitutional status. After 120 pages of opinion, it came down to that.
Whether or not a neutral stance would have quelled the marriage wars is hard to determine — there would have been much residual frustration on both sides for neither getting their way — but at least it would have pointed them toward an authentic recognition of the diversity in our society and encouraged everyone to respect it.
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