GAYS DEFEND MARRIAGE

In honor of the June weddings taking place all over California today because of the Supreme Court’s decision in In Re Marriage Cases (the lamest name for a court case I’ve ever heard of, by the way), I have a piece in today’s Los Angeles Daily News responding to the frequent claim that gay marriage won’t hurt straight marriage. Regular readers of the site will recognize some of the arguments, which I first explored here.

Update: A longer version of the “harm” piece is now up at the Web site of the Sun-Sentinel, the second largest newspaper in South Florida. Florida is likely to be the #2 marriage battleground this fall. GDM reader Mark Barton may or may not be pleased to see I mentioned him (not by name) in that version of the piece.

Excerpted from the piece:

DEFENDERS of the same-sex marriages set to start today in California have repeatedly claimed that the new definition of marriage will in no way hurt male-female marriages. Even the state Supreme Court decision paving the way for these June weddings declared its move would not deprive any male-female couple “of any of the rights and benefits conferred by the marriage statutes.”

But marriage is not just about rights and benefits. It is a social institution that existed long before the state of California. Extending the word “marriage” to couples that have never before been considered married will cause real and appreciable harm to male-female marriages, and to all people who believe that marriage is the union of a man and a woman….

If people think that, on the whole, detaching monogamy from marriage and making it harder for parents to control their children’s education about homosexuality are not nearly as big of a problem as the self-esteem of same-sex couples who are told that their relationships with completely equal benefits are only domestic partnerships and not marriages, fine. Don’t support November’s California Marriage Protection Act.

But please stop saying same-sex marriage doesn’t hurt anybody.

Northwestern law Prof. Dr. Andrew Koppelman is one of the brightest minds supporting same-sex marriage. I wish more legal advocates defending man-woman marriage had his talent. He and I have exchanged thoughtful E-mails relating to gay rights, one of his academic specialties. Unlike most advocates of gay marriage, Dr. Koppelman agrees with me that the gay community’s rush to sue over marriage has serious drawbacks that endanger same-sex couples. He has called the California lawsuit known as In Re Marriage Cases “insane” and “ill-advised,” and compared its promoters to fools.

And in a new piece in the Chicago Tribune, Dr. Koppelman thankfully raises an underdiscussed topic forced upon everyone by the recent California decision: the portability of California and Massachusetts same-sex unions to states that have democratically decided to recognize only man-woman marriages as legitimate and valid.

His argument is that the 44 states that bar recognition of same-sex marriage ought to attenuate their stances and in some cases presumably amend their constitutions - even if they think the traditional definition of marriage is proper and necessary. Why? Because of the “state of chaos” that could arise from having different marriage laws in different states. For example:

Can Illinois residents get married on a weekend trip to California and then expect Illinois to recognize the marriage? Can someone married in Los Angeles safely run away to Chicago with the family’s assets? And what happens when someone from California is unexpectedly hospitalized here, and the hospital needs to know who is legally authorized to make the patient’s medical decisions? It is essential to know where one state’s laws end and another’s begin.

Dr. Koppelman asserts that “the consequences of blanket non-recognition” are “pretty nasty.” His conclusion? “The only way for states to avoid these weird and unjust results is to admit that they have to recognize same-sex relationships sometimes, for some purposes.”

Well, no.

What’s weird and unjust is the idea that eight opinionated robe-wearers in two states could force a radical change in public policy based on constitutions that are completely null and void outside Massachusetts and California on millions of voters and hundreds of legislators in 44 states whose constitutions contain no right to same-sex marriage. Instead, to respond to the problem Dr. Koppelman has articulated so well, it would be much more just and much less weird for both sides to agree that no state will implement same-sex marriage until it is passed at the federal level, or until states representing at least 50 percent of the population (instead of the present 14 percent) decide to implement same-sex marriage, at which point all states will recognize same-sex marriage.

If Dr. Koppelman’s argument is valid, what does that mean for the other 49 states if the Supreme Court of Wyoming rules that the Wyoming Constitution requires allowing a brother and a sister to marry each other (sorry, Wyoming)? It sounds like he is saying that brother-sister marriages must then be recognized not only in territory covering one-sixth of one percent of nation’s population, but for at least some purposes in the other 99.9 percent of the country too.

I think racial analogies in the gay-marriage debate are rarely helpful and sometimes needlessly insulting to African-Americans. But since Dr. Koppelman uses a racial analogy in his essay, I’ll use one, too. Before the passage of the Thirteenth Amendment, some states were slave and some states were free. The U.S. Supreme Court had to decide whether an enslaved person’s liberation upon visiting a free state (incidentally Dr. Koppelman’s Illinois) was portable back to his home slave state. The Court ruled that it was not. Any other decision, it said, “would give to persons of the negro race, …the right to enter every other State whenever they pleased, …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

So I’d like to ask Dr. Koppelman - do you agree with the Dred Scott decision or not? If not, do you have a reason for your apparent inconsistency other than “slavery was bad and gay marriage is good”?

Dr. Koppelman writes that “consensus on this emotional and divisive issue is a long way off. In the meantime, we need a way to live together.” Absolutely. But the way to live together is not to expect the overwhelming majority of the country to adopt public policies it thinks are wrong, even “for some purposes.” The way to live together is for those advocating a radical redefinition of marriage to find some (gasp) humility and focus on creating change in places where it’s wanted, rather than constantly trying to shove something the rest of us reject down our throats.

UPDATE: Dr. Koppelman has written me, referring to the above as an “excellent question.” He says he plans to provide an answer in the next few days - and I’ll post his answer here on GaysDefendMarriage.com.

The good news is the California Marriage Protection Act will be on the November ballot. Of course, predictably, according to the Los Angeles Times, leading California Democratic strategist Garry South “described the ballot measure as part of a decades-old strategy by California conservatives to use a wedge issue to mobilize support during a presidential election.”

Let’s think about that. Same-sex marriage in Massachusetts began in May 2004, and 11 states voted to prevent their state courts from authorizing the same thing that November. California same-sex marriages are set to begin in June 2008, and the state will vote this November whether to overturn the decision implementing them.

On the other hand, in 1998 when the states of Alaska and Hawaii were facing Supreme Court decisions implementing same-sex marriage in the cases of Baehr v. Miike and Brause v. Alaska, voters passed constitutional amendments protecting man-woman marriage that November. Mr. South, who was elected president in November 1998?

Other states that voted on constitutional amendments protecting man-woman marriage at times other than during a November presidential election include Missouri, Nevada, Colorado, Tennessee, Kansas, Texas, Idaho, South Carolina, South Dakota, Wisconsin, Virginia, and Arizona. All but the latter passed by decisive margins.

Mr. South, if your side will agree not to pursue lawsuits redefining marriage in 2011 and 2012, I’m certain my side will agree not to put constitutional amendments on the ballot at the same time as that year’s presidential race.

If you’re not willing to agree to that compromise, will you please stop claiming that our defense of marriage strategy is really a ploy to elect Republican presidents? I’d appreciate it.

LGBT people who have applauded last week’s California Supreme Court decision implementing same-sex marriage should think very carefully about the following sentence from the decision:

Because the California Legislature already has enacted a comprehensive
domestic partnership law which broadly grants to same-sex couples virtually all of
the substantive legal rights and benefits enjoyed by opposite-sex married couples,
plaintiffs have been relieved of the burden of successfully prosecuting a
constitutional challenge to obtain those substantive rights and benefits.

In other words, the “marriage equality” side had a much lower burden of proof because of California’s domestic partnership law. What message does that send to Americans in every other state who want to relieve the distress of same-sex couples but who also believe marriage is a male-female union (I’m thinking people like Hillary Clinton and Barack Obama, for example)? It seems to me that many such people will now be forced to reluctantly oppose domestic partnerships, civil unions, and all other non-marriage measures to ease the burdens faced by LGBT couples.

The California Supreme Court could have easily reasoned that the fact domestic partnerships were signed into law while same-sex marriage was not shows that Californians want to treat same-sex couples fairly while keeping the longstanding definition of marriage. Instead, in the name of nothing but giving California gays their first-choice moniker (”marriage”), it took a step that will probably make it harder for less progressive states to give same-sex couples any protection at all.

Nice going, guys.

The likely long-term effects of In Re Marriage Cases will be to restrict the progress of the LGBT people who face the most homophobia already in exchange for nothing more than a pat on the head for the gays and lesbians who are already the most free.

You see the “comments” button. Please, please, explain to me why this decision on balance does more good for our community than harm.