GAYS DEFEND MARRIAGE

Many California gays and lesbians have pledged to do anything necessary to overturn Proposition 8, particularly by putting another initiative on the ballot in 2010. This effort is unlikely to be successful, particularly because 2008 offered many advantages that 2010 will not. These include:

• With a Democratic president elected in 2008, 2010 is likely to be a better-than-average year for the Republicans.

• It is well-known that in California a few percent of the voters vote no on all the initiatives in order to reject any changes. That means the gay community had the advantage of those few points in 2008; it will have the disadvantage of them in 2010. (Hat tip: Dale Carpenter)

• In 2008, Barack Obama was running for president, a candidate who excited liberal voters and helped draw them to the polls, even though his endorsement of “No on 8″ was tepid at best. He will not be on the ballot in 2010.

• In 2008, Attorney Gen. Jerry Brown changed the ballot title in a way that gave the advantage to the “No” side by focusing on how the initiative took away rights. In 2010, Brown may be running for governor, and it is hard to predict what he will do.

There has never been a successful initiative campaign to implement gay marriage, and all but one of the 30-something initiatives on gay marriage have gone against the gay community’s position.

The gay community’s favorite kinds of arguments, about “civil rights” and “discrimination” and “equality” didn’t work in 2008. Will it repeat the same failed strategy? Other strategies, such as those that actually feature gay men and lesbians, may be even more risky.

A comment on the Rick Warren controversy: the stunning thing in the whole conversation is that most everyone seems to forget that Warren has the same position on gay marriage as Barack Obama. (Hat tip: GayPatriotWest.) It seems a lot of gays and lesbians think Obama doesn’t mean it when he says he opposes gay marriage, and Democrats like Joe Biden and Hillary Clinton probably don’t. But Obama has spoken eloquently about why he opposes same-sex marriage:

• “I believe that American society can choose to carve out a special place for the union of a man and a woman as the unit of child rearing most common to every culture.” (The Audacity of Hope, 2006)

• “I don’t think marriage is a civil right.” (10/26/2004)

• “I believe marriage is a union between a man and a woman. Now, for me as a Christian, it is also a sacred union. God is in the mix.” (8/17/2008)

• “Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.” (6/28/06)

These are not the words of someone taking a position out of political expediency. Just because Obama opposed Proposition 8 (as I did, by the way) doesn’t mean he supports gay marriage. Call me naive, but I think Obama means it. I really think his position on marriage and my position on marriage are not that far off.

Now, if someday we find out that Obama has been a secret SSM supporter all along, he’s still got my respect for expressing what I think about marriage better than I ever could.

Why did African-Americans vote so heavily (70 percent) for Proposition 8 in California? It’s been suggested that the reason is because blacks are more religious and church-oriented than whites. Yet the NAACP is pro-choice, as are many blacks (certainly more than 30 percent). African-Americans are overwhelmingly liberal on most issues (gay marriage and school choice are the two exceptions I can think of) so there has to be a reason beyond “religious” to explain the lopsided black vote for Prop. 8.

It’s also been suggested that African-Americans were rejecting the civil-rights rhetoric of the “No on 8″ campaign, and taking a stand that gay-marriage isn’t a civil rights issue in any way comparable to the African-American freedom struggle. I like that explanation, but doubt it was wholly responsible for such a large swing in the black vote against the standard liberal position.

So why didn’t blacks support gays, their erstwhile allies, in California in November? The floor is open for discussion.

Imagine it is 1865. The 13th Amendment has just banned slavery in the United States. Yet the Attorney General announces that the 13th Amendment is not retroactive, and that anyone who had been a slave before 1865 is still be a slave; the 13th Amendment bans only new slaves.

Sound preposterous? Well, that’s precisely what California Attorney General Jerry Brown and his allies are trying to do with Proposition 8. That constitutional amendment, passed by voters in November, states that “Only marriage between a man and a woman is valid or recognized in California.” The constitution supersedes all laws; it sets the rules. Just like the abolition of slavery was retroactive, the definition of marriage as man-woman must be retroactive.

In early August, Brown told the San Francisco Chronicle, “I believe that marriages that have been entered into subsequent to the (May 15) Supreme Court opinion will be recognized by the California Supreme Court.” He noted that Prop. 8 is silent about retroactivity.

I would argue that the initiative didn’t have to mention the word “retroactivity.” As much as some people like to twist the language of constitutions to insert their own interpretation, proper constitutional analysis looks at the plain meaning. The initiative said same-sex marriages would not be “valid” - a term that implies such things would be invalid, which sounds like retroactivity to me. It also says “recognized,” which implies they may already exist, but they don’t get recognition. I disagree with Brown that the initiative is silent about retroactivity; I would argue that it loudly endorses retroactivity.

Brown also said, “I would think the court, in looking at the underlying equities, would most probably conclude that upholding the marriages performed in that interval (before the election) would be a just result.”

Even if there are clauses in the Constitution about “equities,” those clauses get just as much weight as Prop. 8, which is equally part of the Constitution. If anything, Prop. 8 should get more weight, since it was consciously amending the Constitution as written. The court must look at the text of the constitutional amendment, and determine whether it is retroactive, just as the antislavery amendment was retroactive. I can think of no other “just result.”

Opponents of retroactivity have argued that ex post facto laws are illegal (but this isn’t a law; it’s a constitutional amendment), and that it would be unfair to strip marital status from couples who really believed they were getting married. The problem with that last argument is that every single same-sex couple who married in California knew there would be a constitutional amendment on the November ballot defining marriage as between a man and a woman. Some “No on 8″ activists even tried to win points with the public by arguing that past gay marriages could be eviscerated if the initiative passed; they can’t expect us to believe them now if they say it’s clear the initiative isn’t retroactive.

If a sizable number of legally married same-sex couples continue to exist in California, many of the problems the Prop. 8 people wanted to avoid in the first place will still exist. Liberal teachers will still be able to tell their students that in California, some men are married to men - and they’ll be right. Business owners who refuse to refer to man’s legal spouse as a “husband” can be sued for discrimination. Same-sex married couples will be able to wave around their marriage licenses and dare anyone to treat them as less than married - a problem Prop. 8 was supposed to solve.

I’ve been told that many Prop. 8 supporters are resigned to losing this battle, and have therefore put little energy into making sure the constitutional amendment is retroactive. I think that’s a big mistake. I believe the law is on our side, and the consequences of a non-retroactive proposition are severe.

Over the weekend, I got an e-mail promoting same-sex marriage from a gay Democrat named Patrick Nailon. We went back and forth on a few topics, and he finally summarized his supposedly air-tight case against the California Marriage Protection Act in three points, which I responded to:

1. By specifically excluding law-abiding, tax-paying, worshiping, honest members of the community specifically because of a difference in lifestyle, Prop 8 is discriminatory, and thus unconstitutional. Marriage has been amended throughout the history of the US to include different colors, which at that time was considered an assault on traditional marriage and interracial marriage resulted in arrests and people having to leave their states. Unconstitutional is wrong.

By now, long-time readers know what I think of the “it’s discriminatory, and thus unconstitutional” argument when applied to a constitutional amendment. No, he wasn’t referring to the federal constitution, and no, he’s probably never heard of the concept of a “revision” (which I’m still waiting to see an expert say would make an amendment unconstitutional). He has this asinine opinion that there’s some mysterious force in our democracy that will overrule a constitutional amendment that he considers discriminatory. As for “unconstitutional is wrong,” I wonder how he feels about the DC gun law, which the Supreme Court ruled unconstitutional. Are all laws like that one that restrict gun ownership “wrong” because they’re unconstitutional? And there is no question that in Texas, Virginia, Ohio, Michigan, Georgia, Wisconsin and many other states same-sex marriage or anything like it is unconstitutional. Does that mean Patrick thinks it’s “wrong” for two lesbians to marry each other in Dallas, Detroit, Atlanta, or Cleveland?

2. The Constitution of the United States of America specifically allows churches to practice as they will, including the right to marry whom they will. This also guarantees the rights of gays to marry, provided their congregation supports gay marriage. Just as one religion may prohibit eating cows and another allow it, freedom of worship, like freedom of “pursuit of happiness” is a right guaranteed in the US.

Uh, no. Fundamentalist Mormon churches allow polygamy - does that mean the laws must accommodate them? If I started a church that said a man can marry his adult sister, must incest then be legal? The Supreme Court has found Native Americans do not have a constitutional right to ingest peyote - they must get specific legislative permission or face our nation’s drug penalties.

3. The Pledge of Allegiance states that we are a nation of “…Liberty and Justice for all.” With laws that specifically forbid the right of marriage from certain members of the population, these words are a mockery and an insult to the men and women who died to pass down these rights to this and future generations.

Nobody except Patrick draws legislative conclusions from the Pledge of Allegiance. The current version of the Pledge is only 54 years old. And of course Patrick conveniently ignores that part about “Under G-d.”

I told Patrick that his three arguments are so unbelievably weak that I’m actually thrilled. If that’s the best his side can come up with, convincing voters to pass Proposition 8 will be a breeze.

He responded with a lengthy E-mail quoting several of the Lyin’ Kings and silly activists I’ve been talking about at GaysDefendMarriage.com. It also contained several death threats.

I actually hope most supporters of same-sex marriage are more sophisticated than Patrick - we have a few who clearly hold their own when they comment here at GaysDefendMarriage.com. Because debating against someone like him is far, far too easy.

My longtime gay friend Tom Chatt recently posted a really good criticism of my “Same-sex marriages can do harm” piece. Because I was in a rush to get a piece to newspapers that could run on Tuesday, and because I only had 800 words, my point about same-sex kissing being a reason to oppose gay marriage appears as a total non-sequitur. Since I now have the leisure to more fully explain what I mean, and because blogging gives me an unlimited word length, I will now try to elucidate exactly what I was trying to say. The basic point relates to my belief that given the uncompromising attitudes of “marriage equality” advocates, a world without gay marriage will have more freedom for more people than a world with gay marriage. More on that below.

First off, to clarify, I think gays should be allowed to kiss in ballparks, but I think they shouldn’t. I think Hare Krishna people should be allowed to try to convert people in airports, but I think they shouldn’t. I think racists should be allowed to teach their children that blacks are inferior, but I think they shouldn’t. I think lesbians should be allowed to make a brand-new baby without a father, but I think they shouldn’t.

Based on my long history of involvement with the gay community, my Internet surfing and my many conversations at this blog and others, I have come to believe that at least 90% of gay and lesbian people have a set of attitudes I’ll call GayThink. One of the most important tenets of GayThink is that believing that gay sex is immoral and that man-woman marriage is better than same-sex relationships and that it’s best for children to have both a mother and a father is by definition bigotry. According to GayThink, it is as offensive to hold such beliefs as it is to believe that interracial sex is immoral and that people should marry their own race.

If LGBT readers of this blog do not in fact hold the beliefs of what I’m calling GayThink, please correct me. I’m not out to misrepresent anyone.

Now, according to GayThink, my views about sex, marriage, and the family are bigoted. Through most of my life, that hasn’t been a problem. I’ve had my views and LGBT activists have had theirs. But in the last few years, the gay community’s lobbying and especially lawsuits have begun to get more and more goverment units to adopt GayThink. And the more that happens, the more freedoms I lose.

One example is that if I want to start an adoption agency in Massachusetts, I will be shut down if I use my values about what’s best for children instead of GayThink’s values. I have heard from more than 15 gay activists, some of them quite prominent, who think a teacher should be disciplined or fired for using the definition of marriage she believes in with with her students instead of the GayThink definition. Now, a decade ago the gay group GLSEN convinced many public schools to use a curriculum that contained a definition of marriage that made no mention of opposite sexes. I am quite certain no teacher was disciplined or fired for teaching the GayThink definition of marriage, which was purely imaginary and legal nowhere at the time the curriculum was published. Yet under gay marriage, people with my values will find our jobs at risk if we don’t adopt GayThink in the way we perform our tasks.

Now, kissing. GayThink believes that it is bigoted to want to wait until your children get older to teach them about homosexuality but to teach about male-female love when they are quite young - especially if your reason is to be able to teach them when they are mature enough that your family considers gay sex immoral and that they should plan on marrying a member of the opposite sex when they grow up. (LGBT readers, again, tell me if you don’t agree with this tenet of GayThink.)

So LGBT people in Seattle grew quite angry when a mother tried to get lesbians to stop kissing because it was confusing her son. Some gays even proposed the solution of arranging for lots of same-sex couples to make out in front of children at the ballpark. That is a reasonable strategy in GayThink because any parent who would object is a bigot, and for the sake of her children - especially if someday they grow up to be gay - they should be exposed to homosexuality right away, rather than when the parents desire it.

If gay “marriage” becomes permanent in California, I am quite certain that the folks at GLSEN and the gay caucus of the National Education Association will start looking for ways to teach younger and younger children that when they grow up they can marry a man, or a woman - it’s up to them. (I will withdraw this statement if those groups pass a resolution never to support curricula such as I have described.) Parents who want to teach their children that they should only marry an opposite-sex person will have some of their freedom taken away. Now, any time a public school teacher tells her students that homosexuality is immoral or gay relationships are inferior, the gay-education lobby goes ballistic and makes sure the teacher stops saying that, or is even fired. Yet if GayThink becomes part of the law, traditionally religious parents will have no recourse when their children are taught at school that their family’s values are a form of bigotry similar to racism.

So you see, even freedom-loving people who personally see no reason gays shouldn’t get married should vote for the California Marriage Protection Act. If it passes, same-sex couples will lose no rights other than the word “marriage.” Gays and straights will continue to be able to teach, write, run their businesses and raise their children using the definition of marriage they believe in. If it fails, only people who accept the tenets of GayThink (an extreme ideology most Californians don’t agree with) will be able to use their own definition of marriage in running their lives. For anyone who cares about living in a free country, the only possible vote on the CMPA is yes.