GAYS DEFEND MARRIAGE

Most “marriage equality” activists have no interest in any sort of compromise, or in finding way to accommodate the legitimate concerns of male-female marriage defenders. That’s because they openly state that we have no legitimate concerns.

But since starting to blog on this issue in early May, I have run across a small minority on the other side that has strong marriage-equality goals but that respects and wants to be fair to the other side. One of the most impressive of those activists is Michael Taylor-Judd, the president of Washington state’s Legal Marriage Alliance. Michael and I disagree on most points of contention on this debate, but we have exchanged several long, heated, yet nonetheless respectful E-mails about same-sex marriage.

Still, I was floored when he wrote me recently with a proposal which, while problematic, directly solves one of the serious problems I have with “marriage equality.”

He wrote me:

Putting more power back in the hands of private business owners is a conservative proposition I would support, but it would cut across everything. Owners don’t get to just choose to recognize only marriages of opposite-sex couples. Changing the existing laws, would also have to mean owners could discriminate on the basis of sex, race, ethnicity, marital status, and religious belief. If someone gets to treat same-sex couples differently, then I get to treat Orthodox Jewish couples differently, for example.

To understand Michael’s proposal, try thinking about discrimination laws like we think of free speech. I would be a happier person if I lived in a country in which Holocaust denial was illegal, lesbian couples could not be legally described as “married,” and people could go to jail for referring to ferrets as “rodents” (they’re mustilids). But if my language preferences become law, what things that I want to say will be banned and enforced by the language police? It is much better to live in a country where everyone can say pretty much whatever they want.

When the government says a business cannot discriminate against same-sex couples, Orthodox Jews, and women, but can discriminate as much as it wants against Republicans, short people, and transgender people (as is true in many places), it is taking a stand judging people’s personal opinions. You think lesbian marriages aren’t really marriages? You could lose your business. You think transgender women are really guys in dresses? No problem. Have a nice day!

Of course, I would be appalled if Michael’s idea meant a Woolworth’s in Greensboro, North Carolina, goes back to refusing to serve African-Americans. But that’s in a state where a once-racist Democratic Party just voted overwhelmingly for an African-American candidate for president. Somehow I think such a store would lose more business than it would gain.

I don’t want to see ice cream shops in Berkeley, California, refuse to sell smoothies to Republicans wearing John McCain buttons, nor do I want bed and breakfasts in Provincetown, Massachusetts to publish a policy that only same-sex couples may lodge there. But if I have to live with that so adoption agencies could choose the kinds of families they think are best for children and so fertility clinics can inseminate the kind of women they believe will make good mothers, I can live with it.

What do people think?

A Web user responding to one of my arguments in favor of the California Marriage Protection Act wrote, “Allowing a majority of the people to decide the civil rights of a minority through a popular vote is simply bad policy. Should we have allowed the majority to vote on whether segregation should be ended or not?”

Actually, yes.

But allow me to explain: the reason defenders of man-woman marriage are pushing a vote on same-sex marriage is that is the only way a constitutional decision by the California Supreme Court can be overturned. A unanimous vote by the 120 members of the legislature, along with the governor’s vigorous approval, would change nothing without a vote of the people. Supporters of “marriage equality” can hardly complain that the system is unfair given that none of them objected to the process before the Supreme Court decision, and many of them voted for liberal California constitutional amendments in recent years on environmental, anti-smoking, education, and other issues.

I certainly feel that defenders of segregation in 1954 should have been allowed to introduce a Constitutional amendment overturning Brown v. Board of Education. That decision, which was one of the moral high points of the 20th century, had no special status that made it permanent. I definitely would have fought them, but if segregationists had convinced two-thirds of Congress and the Senate – and the state legislatures in 38 states – to pass a Segregation Amendment to the Constitution, what should have stood in their way?

A Super-Decider who gets to overrule constitutional amendments that aren’t consistent with his values would be the mark of a dictatorship, not a democracy.

The fact that California has a popular vote to amend its Constitution whereas the U.S. has a more complicated process is an accident of history, not a plot against gays.

The people crying foul that someone is trying to amend “their rights” should think about the Dred Scott case. That 1856 decision ruled that a white man had a property right to “own” an African-American. Do today’s complainers about the California amendment think Dr. John Emerson could have legitimately complained about people trying to amend his rights through the 1865 votes on the Thirteenth Amendment? Because contrary to popular opinion, it wasn’t the Civil War or even the Emancipation Proclamation that abolished slavery in the United States. It was the Thirteenth Amendment.

There has to be a process under which the people and/or their elected legislators can overrule constitutional decisions they don’t agree with. The process does carry the risk that good decisions may be overturned, yes, but that means bad decisions can be, too. I don’t want to live in a state where four justices (or a country where five justices) can have the absolute last word about important issues relating to the way we live.

Finally, while “marriage equality” advocates have the right to claim there is a civil right to same-sex marriage, very few experts agree with them. The Supreme Court has never recognized a federal right to “marry” a member of the same sex, and gay and lesbian groups have actively fought lawsuits seeking such a right, because they know they would likely lose. Massachusetts has a state constitutional right to same-sex marriage, and there will be one for about 4.5 months in California, at which point the people will decide whether that right should cease. The other 48 states provide no state constitutional right to same-sex marriage. And what is the opinion of the civil rights phenomenon of the century? “I don’t think marriage is a civil right,” said U.S. Sen. Barack Obama (D-Ill.) when running for the Senate four years ago.

Ever since the Defense of Marriage Act (DOMA) passed in 1996, gay groups have been attacking the constitutionality of the law. The National Gay and Lesbian Task Force’s (NGLTF) initial statement in the wake of DOMA’s passage called it “unnecessary, discriminatory and probably unconstitutional.” When I pointed out on the Ricki Lake Show a few years ago that DOMA had been passed by Congress and signed by Bill Clinton, top Human Rights Campaign (HRC) lawyer Lara Schwartz retorted that DOMA was unconstitutional. The Gay and Lesbian Alliance Against Defamation’s (GLAAD) media resource kit on marriage says “many believe” DOMA violates the Constitution.

In addition, many same-sex marriage proponents have argued that the Supreme Court case in Loving v. Virginia contains a federal constitutional right to “marry” a person of the same sex.

Now, Lara Schwartz doesn’t get to decide what laws are or are not constitutional. She doesn’t get to determine what the Constitution does or does not mean. The people who get to decide that are Ruth Bader Ginsberg, John Roberts, and the other seven members of the U.S. Supreme Court. Which is quite promising for gays and lesbians. Ginsberg and Breyer are Clinton appointees. John Paul Stevens is the most liberal member of the court. David Souter, according to a 2003 cover story in the gay newsmagazine The Advocate, may be gay himself. And Anthony Kennedy has written two stirring pro-gay opinions overturning an anti-gay law in Colorado and sodomy laws nationwide. That’s five votes. You only need five votes.

So the gay community is pushing for the Supreme Court to overturn DOMA and declare that Loving v. Virginia‘s right to marry applies to same-sex marriage, and thus implement same-sex marriage nationwide, right?

Wrong.

This week nine gay-rights groups, including NGLTF, HRC, and GLAAD, released a six-page set of instructions to same-sex couples about why they shouldn’t sue, even if they think suing will get them their “rights.” It says, “Most lawsuits will set us all back.”

Now, gay groups cannot have it both ways. If they think courts are unlikely to find that there is a federal constitutional right to same-sex marriage, and that DOMA would probably be found constitutional after all, then they need to stop claiming otherwise. If they believe their rhetoric, but wish to put their resources elsewhere (the document says “these efforts take time and money, and we don’t have unlimited resourses”), that’s fine, but they should respect the choices of people not under their thumb to file federal lawsuits.

That’s not what’s been happening. Same-sex couples in California and Florida who felt they had promising cases for a federal right to marry had to fight – not homophobes but gay-rights groups – every step of the way, groups who complained that the lawsuits weren’t “coordinated” with national strategies. Now, if these groups were run democratically like the National Organization for Women and the NAACP, I could see their point. But the boards of gay groups consist of two types of people: wealthy donors, and “affirmative action” appointees, usually people of color, youth, and transgender people. The actual opinions of the general membership are never taken into account. So these staff people appointed by people who got their positions because they are rich or because they make liberal people feel openminded believe they have the right to stop same-sex couples who never had a chance to influence these groups from suing for what they feel is their own rights? It’s seriously messed up.

Gay groups can admit there is no federal right to marry your own sex, and that DOMA is constitutional. Or they can get out of the way and let LGBT people sue for their rights. But to claim that these phantom rights exist, while doing everything they can to prevent the experts (the Washington Nine) from determining whether they exist or not, is just more gay doublespeak.

Hat tip: GayPatriot.

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.

My most recent column, Marriage equality for some postpones gay equality for all, is up at the Web site of the Boulder, Colorado Daily Camera. It’s also running in several Scripps newspapers on the east coast of Florida.

The conclusion:

I totally understand that for many lesbians and gay men, the ego boost of having the governments of California and Massachusetts declare their relationships completely equal feels terrific. I haven’t forgotten the loneliness and stigma of growing up gay. But it is selfish, unfair, and even cruel for LGBT people in very progressive states to insist on retaining a purely semantic change that endangers the rights and freedoms of gays and lesbians in places where homophobia is much stronger and where the protections Americans would readily support are desperately needed.

A gay man who read my recent opinion piece about why gays shouldn’t celebrate the recent decision shared with me his thoughts, which are below. He’s not completely “out” so I’m not sharing his name or E-mail address. Some of his ideas run counter to things I’ve shared on this blog and in the comments section, but his perspective is valuable and well-expressed, so I thought I’d share it:

It was a 4-3 decision by the California Supreme Court. It overturned a law that was passed by over 4 MILLION Californians. So let’s see…by my math that means 4 people in black robes overturned the will of 4 Million people in the State of California. Interesting. And I always thought we lived in a democracy. Aren’t the first three words of the Constitution “We the People?” Didn’t Lincoln say that this was a government “of the people, by the people, and for the people.” Well, in state after state the people have spoken loud and clear and they all say that marriage is between a man and a woman. If the definition of marriage is to change then it is up to the people to make those changes, not activist judges.

If the goal of the sue-for-marriage strategy is to provide as many protections for American same-sex couples as possible, it has been a massive failure. The two already gay-friendly states with same-sex marriage provide lesbian and gay couples with few additional protections beyond those that already existed. In California, in fact, the only new right for same-sex couples is the word “marriage.”

However, an unintended result of the nationwide push for court-imposed marriage equality has been constitutional amendments barring not just marriage but any sort of relationship recognition for same-sex couples in 18 other states, including Texas, Ohio, and Georgia. This means the marriage-litigation approach has succeeded in offering benefits to same-sex couples in states representing 14.0 percent of the American population while preventing any sort of benefits for those in states making up 33.5 percent of the country. Also, the amendments aren’t limited to barring future recognition for same-sex couples. They have canceled hard-won protections for lesbians and gay men in places like Ann Arbor, Michigan. How can anyone think the lawsuit strategy is working?

And it’s not like the “freedom to marry” movement was unaware of a possible backlash. I personally attended a crowded town hall meeting in West Hollywood, California, in 1996 or so, at which Lambda Legal director Evan Wolfson urged the gays and lesbians present to get behind his group’s big lawsuit known as Baehr v. Miike, which demanded same-sex marriage in the state of Hawaii. At the time, marriage was barely on the gay community’s agenda, but most of the crowd seemed intrigued at the possibility same-sex couples in at least one state might soon start marrying.

I wasn’t so sure. Though at the time I was one of the top membership recruiters for the nation’s largest gay-rights group, the Human Rights Campaign Fund, and I was thus committed to protecting same-sex couples, the plan seemed quite rash to me. So during the question-and-answer period, I asked Wolfson if he was concerned about the risk of provoking anti-gay-marriage constitutional amendments that could very well mean the lawsuit strategy would do more harm than good. I remember his answer clearly (the following is not word-for-word, but it’s pretty close for a 12-year-old conversation):

“People can come up with all kinds of nightmare scenarios about constitutional amendments and other repercussions. Right now, it’s important to push for equality before the law, and we can worry about the ramifications later.”

Of course, Wolfson didn’t speak for every marriage activist since 1996. But it is unquestionable that he was one of the architects of the sue-for-marriage strategy that made it very hard for same-sex couples in more than a third of the country to ever achieve any sort of rights.

The results of the marriage litigation have been so overwhelmingly harmful for our community that I actually think the best way to provide the strongest protections for the greatest number of same-sex couples in the country would be for GLBT people and our sympathizers to switch sides in the debate over the Federal Marriage Amendment (FMA). Without passing that constitutional amendment, I see no way for fair-minded legislators in states like Michigan, Virginia, and Oklahoma to persuade their colleagues to extend same-sex couples basic rights like visiting each other in the hospital and inheriting each other’s property.

The gay community needs to get over its cheap slogans about “Don’t write discrimination into the Constitution” and realize that its leaders made a horrible strategic error that same-sex couples in moderate and hostile states are paying for every single day. Since gay organizations have already quashed at least one promising lawsuit seeking a federal right to same-sex marriage, I can’t come up with a more practical way to provide at least some protections to the same-sex couples who need them the most – while providing all or nearly all the benefits of marriage to gays and lesbians in the most welcoming states – than to pass the FMA. Surely a coalition of legislators who support the present definition of marriage allied with legislators looking for quick relief for gay partners in tough environments could shepherd the FMA through the process for amending the Constitution.

But alas, it’s highly unlikely to happen. The marriage-equality movement has never really been about helping as many same-sex couples in as many places as possible. Instead, it’s been focused on stroking LGBT egos, and reassuring people who have always felt like second-class citizens that their government considers them completely equal. It’s not a bad goal, but for gay and lesbian activists to prioritize technical equality in two already accepting states over the real distress and unfairness faced by same-sexers in places like Tulsa, El Paso, and Kalamazoo can only be described as horribly selfish and shortsighted.

LGBT people who think helping their brothers and sisters in distress is more important than feel-good lawsuits with few tangible advantages would be wise to start supporting the FMA – or at least putting a halt to the counterproductive lawsuit strategy.

Advocates for same-sex marriage have frequently argued that restricting marriage to man-woman couples violates the American Constitution.

For example, the largest gay-rights group in the country, the Human Rights Campaign, argues on its Web site that “the framers of our Constitution established – and we as a people have repeatedly reaffirmed – the principle of separation of church and state. That principle applies no less to the marriage issue than it does to any other.”

San Francisco mayor Gavin Newsom told the San Francisco Chronicle that the federal Constitution authorized him to “marry” thousands of same-sex couples beginning Valentine’s Day 2004: “I hope every elected official in the United States takes a look at that Constitution that they swore to uphold…. there’s nothing in the Constitution that allows me to discriminate against people.”

There is even some evidence that the Supreme Court is sympathetic to a federal right to same-sex marriage. In the celebrated Lawrence v. Texas sodomy case in 2003, Judge Anthony Kennedy wrote for the 6-3 majority: “Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education…. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

It so happens many people like me who oppose same-sex marriage see nothing in the U.S. Constitution that invalidates the man-woman definition of marriage. Obviously much of the LGBT community disagrees. When there’s a society-wide dispute over the meaning of the Constitution, the proper arbiter is the nine experts in robes whose very job is to determine precisely what the federal Constitution does and does not mean.

But “marriage equality” advocates don’t want that. They’re afraid their ideas about the supposed federal constitutional right to same-sex marriage won’t be convincing enough. So they have done everything possible to stop well-qualified jurists like Ruth Bader Ginsburg and John Roberts from ever being able to referee this dispute. They’ve chosen instead to go the state-by-state route, so that when they finally impose their definition of marriage on the whole nation, we’ll be so used to it we’ll barely notice.

When Christopher Hammer and Arthur Smelt, a gay couple from Orange County, California, filed a federal lawsuit to overturn the Defense of Marriage Act and declare a federal constitutional right to marry, several LGBT groups including Equality California and the Lambda Legal Defense and Education Fund asked the liberal Ninth Circuit to throw out the gay couple’s case.

Jennifer C. Pizer, senior counsel for Lambda Legal, was candid about her group’s reasoning: “Our carefully considered view is that it’s important to be taking steps in the jurisdictions where we can succeed and have a series of successes … before calling the ultimate question for the entire country.”

Who elected Jennifer Pizer queen lesbian? The LGBT movement is profoundly undemocratic. Many groups focused on equality like NOW and the NAACP elect their leaders. But overwhelmingly gay and lesbian groups appoint their leaders, and those appointments generally go to two types of people: major donors, and “affirmative action” slots for categories like transgender people and people of color. When I belonged to the Human Rights Campaign Fund in the early 1990s, every member did get to vote for the board of directors – but there was usually exactly one candidate for each board position! If Pizer’s group wants to pursue state cases, that’s fine. But blocking the federal claim of a loving gay couple is unacceptable.

Hammer has his own theory why organizations supposedly there to help him would stab him in the back instead: “If we win, that sinks all their fundraising – and that destroys all their cases because we’d all be equal in the law across the United States…. they don’t want us to win.”

The couple’s attorney, Richard C. Gilbert, said “Our case can’t hurt state cases because state cases are decided under state constitutions…. What other group has said don’t fight, we’ll lose? Even if you lose you can make progress with an issue. Would Lambda Legal had said to Dred Scott, ‘Mr. Scott, you’re a slave, so don’t sue because you’re going to lose?’”

Rather than fight state-by-state battles over marriage for the next 20 years, we should get a definitive ruling on the subject from the Supreme Court that we’ll all be bound to accept – or to amend the Constitution if we don’t like it. I know the court may not rule my way, but I’m still willing to give it a shot. Why won’t the “marriage equality” crowd?