GAYS DEFEND MARRIAGE

In survey after survey, younger voters tend to favor gay marriage at higher rates than older voters. After a survey last May which showed such a trend, Field Poll director Mark DiCamillo said the results displayed a “generational replacement,” with older voters being replaced by younger voters who supported same-sex marriage.

But what if this isn’t a generational issue, but rather an age issue? Young voters tend not to be married, a fact that could be significant in terms of attitudes toward this issue. As today’s young voters get older and marry and have children, could they come to appreciate that mothers and fathers make different kinds of contributions to the raising of a child? It certainly is possible.

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.

1. The “Salt Lake City Plan” is the best way out of the gay-marriage morass. It allows individuals to designate any one person with whom he or she has a mutual commitment to receive benefits. The pair could be a mother and an adult son, two straight male roommates, or lesbian lovers. Because lots of conservatives can support such a system, this plan could provide aid to same-sex and other non-married couples now, at federal, state and local levels. All it leaves out is the ego boost of same-sex couples being told they’re exactly equal – which is little sacrifice, because they’re not.

2. One of the reasons for man-woman marriage is that whenever possible children need both mothers and fathers. That doesn’t mean gays can’t be good parents; they can. A lesbian can be a terrific mother, for example, but she cannot be a good father. Laws restricting gays from adopting should be repealed, but so should laws preventing adoption agencies from taking into account whether a family has both a mother and a father.

3. One reason gay marriage is not a good idea is that gay people, by and large, do not understand marriage the same way straight people do. There is extreme tolerance of open relationships of various sorts, a kind of agreed-upon infidelity. I am not saying that all gay people cheat, or no straight people cheat. I am saying that most gay and lesbian people think “arrangements” can be completely compatible with marriage, and very few straight people agree with them. Thus, gay marriage will change the nature of marriage.

4. The gay community, which once addressed all kinds of issues affecting its members, has become a big PR campaign emphasizing issues, like marriage, that make us look good and seem “just like you.” But gays and lesbians aren’t “just like” straights in every way, and we have special needs that involve LGBT suffering that should be addressed by LGBT organizations and the government. These include lesbian alcoholism, syphilis among gay and bisexual men, and prison rape among gay and bisexual men and especially transgender women. 

5. We need laws guaranteeing that despite whichever protections for gays and lesbians and institutions for same-sex partners exist, they do not trample on the rights of people to perform their jobs, run their businesses, and raise their children consistently with their beliefs about what marriage is and what the ideal way to raise a child is.

6. Democracy is central to our governmental system. Some people, like me, believe same-sex relations and gay marriage are immoral. Some of those, like me, have also identified cogent civic reasons to oppose same-sex marriage that inform their First Amendment expression and their vote. But nobody has to answer to anyone for why they support or oppose anything when it comes to their votes and First Amendment rights. It is not “imposing one’s religion” to support laws that are consistent with one’s values; that’s what both sides do.

7. Despite what they often say, gays and lesbians are not focused on benefits or rights, or else they would not have spent $40 million on a symbolic and semantic change in California which already granted all the rights of marriage to same-sex couples. This battle is primarily about gay and lesbian self-esteem, which is understandably damaged because of many decades of straight hegemony. But no child should have to suffer, or traditionally religious person be forced to violate her conscience, in order to soothe a gay person’s feelings.

Welcome back to GaysDefendMarriage.com, one of the liveliest places to discuss and debate marriage on the World Wide Web. I shut down GDM last July because I did not want to assist the campaign running Prop. 8, which I considered to be unacceptably antisemitic and homophobic. Now that the campaign is over, and same-sex marriage is still in the news, I thought I’d bring back the blog.

Pretty much anything goes here except libel and name-calling. All opinions are welcome here as long as they don’t distract excessively from the main conversation.

Thanks for visiting!

-David Benkof

It is with great sadness that I announce that I feel I must withdraw from openly supporting man-woman marriage in the United States. I recently learned quite a bit of disturbing information that makes it impossible for me to continue supporting a movement I no longer respect. I have not yet decided when or even if I will write about why I’m ending my participation in this debate.

I’d like to thank Maggie Gallagher of the Institute for Marriage and Public Policy who got me started with blogging at MarriageDebate.com and encouraged me to create my own blog, which ultimately became GaysDefendMarriage.com. I’d also like to thank the dozens of commenters, both those who agree with me and those who disagree, who have made this Web site a true place of conversation rather than just another pro-man-woman-marriage site.

In case you’re wondering:

1) I do not advocate that people give time or money to the Proposition 8 campaign in California.

2) People should vote their consciences on the ballot measure. I’m not a California voter, but if I was, I’d probably hold my nose and vote yes, though I can’t be sure.

Have a good summer, everyone!

-David Benkof

Please note that GaysDefendMarriage is on what will hopefully be a short hiatus while I investigate new information that may cause me to re-evaluate my approach to some of the issues discussed on this blog. People are welcome to continue to comment on previous posts, although I will not be posting anything new or responding to comments until the hiatus is over.

A June 10 report in the Health section of the New York Times headlined “Gay Unions Shed Light on Gender in Marriage” has led proponents of same-sex marriage to trumpet the news that same-sex marriage may actually be good for marriage as a whole. Comments about the article at the Web sites and print editions of the Human Rights Campaign blog, Marriage Equality News, the Washington Blade, the Volokh Conspiracy, the Huffington Post, Seattle’s The Stranger, and the comments section of this very blog have treated the article as the smoking gun that proves gay marriage is good for America after all.

It’s clear that the alleged differences pointed to in the article, that same-sex couples are “far more egalitarian” and “have more relationship satisfaction” are intended to show that admitting gay couples to the institution of marriage will help marriage altogether. Other very real differences that while perhaps beneficial, would clearly have no influence on straight couples, like the fact that lesbian couples often find their menstrual cycles in sync, or that gay couples frequently share an entire wardrobe of clothes, were not mentioned.

Now, if the experts cited in the New York Times article are reliable on ways same-sex couples are different that make gays look good, surely they are reliable on the ways same-sex couples are different that make gays look, well, less good. All three of the experts directly quoted in the article, Dr. Sondra Solomon, Dr. Esther Rothblum, and Dr. Robert W. Levenson have written other studies that the “marriage equality” movement would surely prefer nobody find out about.

For example, Solomon and Rothblum did a 2005 study together examining the attitudes toward sexual fidelity of couples that entered civil unions in Vermont – a status that provides all state benefits of marriage. More than 50 percent of the male-male relationships reported having arrangements with their partner that allowed for sexual activity outside the relationship. Do “marriage equality” advocates believe that Solomon and Rothblum’s findings about egalitarianism will spill over to the entire society but that their findings about sexual infidelity will not?

In addition, Levenson participated in a 2003 study that stated that compared to married male-female couples, both gay and lesbian couples reported more autonomy and more frequent relationship dissolution. I guess it’s possible that California same-sex relationhips have become more stable and interdependent now that the exact same rights and benefits the state grants are called “marriage” instead of “domestic partnership,” but I doubt it.

Now, it’s possible that some people want marriage to be more egalitarian as well as less monogamous and less stable. Personally, I want none of those things. As an Orthodox Jew, I expect any marriage I enter into to have a fairly traditional division of roles. But surely the expectation of the “marriage equality” activists in publicizing the article citing these experts is that undecided voters who want marriage to become more egalitarian should support same-sex marriage. My response is that their expectation is fine, as long as those voters also want marriage to be more sexually open and more likely to dissolve.

The other options are for gay-marriage activists to withdraw their argument based on the Times article, or to come up with some explanation why these academics are trustworthy in some of their research, but fraudulent in other parts of their research.

I’d like to close by citing Rothblum one more time. She said two years ago that these days the difference when a state grants marriage or a marriage-like status to same-sex couples is “largely symbolic,” which supports my question why the gay movement is spending millions of dollars on a symbolic issue in California when there are many, many actual and painful problems facing LGBT people, especially in states much less friendly than California, that we could be addressing. I have yet to hear a good answer to that question.

I contacted 20 newspapers with the op-ed piece below, and kept getting the same reaction: it’s good, but it’s too old. Dr. Laura? The West Wing? What decade are you in, anyway?

On the other hand, one of the largest newspapers in California asked me to write for them a more general opinion piece responding to the tiresome, intellectually vacuous left-wing demand “Don’t impose your religion on me!” It should appear some time next week.

So here’s the original “Leviticus traps” piece, which explains why asking an Orthodox Jew “Do you support the death penalty for wearing mixed fabrics?” shows utter ignorance of what Orthodox Judaism is:

When Orthodox Jews and other traditionally religious people discuss our ideas about marriage and other public-policy issues relating to homosexuality, we often run into what I call “Leviticus traps.” Such quasi-arguments suggest that people who follow the Bible are singling out homosexuality for condemnation out of prejudice or narrow-mindedness – because if we really valued Scripture we’d also follow all the other “silly rules” in the Bible.

Perhaps the most famous Leviticus trap was set by President Josiah Bartlet, played by Martin Sheen on the former NBC television series The West Wing. A character (“Dr. Jenna Jacobs”) modeled after radio advice-giver Dr. Laura Schlessinger (an Orthodox Jew at the time) visited the White House and the president confronted her:

Bartlet: I like your show. I like how you call homosexuality an abomination.

Jacobs: I don’t say homosexuality is an abomination, Mr. President, the Bible does.

Bartlet: Yes, it does. Leviticus.

Jacobs: 18:22.

Bartlet: Chapter and verse. I wanted to ask you a couple of questions while I had you here. I’m interested in selling my youngest daughter into slavery as sanctioned in Exodus 21:7. She’s a Georgetown sophomore, speaks fluent Italian, always cleared the table when it was her turn. What would a good price for her be? While thinking about that, can I ask another? My chief of staff, Leo McGarry, insists on working on the Sabbath. Exodus 35:2 clearly says he should be put to death. Am I morally obligated to kill him myself, or is it OK to call the police? … Can I burn my mother in a small family gathering for wearing garments made from two different threads? Think about those questions, would you?

This confrontation, which is based on a Leviticus trap in an open letter to Dr. Laura that circulated on the Internet eight years ago, sent gay and lesbian opponents of traditional religion into a tizzy of righteousness and self-congratulation. The problem is, the scene shows zero awareness of the beliefs and practices of Orthodox Jews like me, Dr. Laura at the time, and presumably Dr. Jacobs (a Jewish name).

Because Orthodox Jews believe not only that the written Torah (the first five books of the Bible) is divine, but that God gave an oral Torah as well, which has come to be written down in rabbinic literature such as the Talmud and the Midrash. Orthodox Jews believe male-male intercourse is forbidden to everyone not because we open the Torah, read a verse from Leviticus, and reason out its meaning. Rather, we listen to our rabbis who are experts at the entire Jewish legal corpus, which explains how we should understand the written Torah. All legitimate Orthodox rabbis agree that male-male intercourse – and same-sex marriage – are universally prohibited.

Bartlet’s diatribe dramatizes a made-up death penalty (it’s mentioned nowhere in the Bible) for mixing two threads together. It’s true, Orthodox Jews do not wear garments with both linen and wool – I had to get my new suit approved by a rabbi before I could buy it – but doing so has never been a capital crime. The Biblical prohibitions that do carry the death penalty demanded such a high burden of proof that executions for the violation of Jewish law were rare. I know of no specific case where a Jewish court executed someone for gay sex, for example. Punishments, in Jewish thought, are meant as atonement, not vengeance. Today’s Jews look at each violation’s corresponding punishment as a measurement of the severity of the sin, not a practical plan for disciplining offenders.

In addition, many of the examples Bartlet gave – such as mixing fabrics and observing the Sabbath – are laws that apply only to Jews. In fact, we believe non-Jews are forbidden to fully observe the Sabbath. So Dr. Jacobs’ special condemnation of gay sex actually does make sense, because the prohibition of intercourse between males (and, incidentally, of same-sex marriage) are “Noahide” laws that apply to all human beings. In other words, one answer to “Why don’t you lecture your radio listeners about violating the Sabbath and wearing mixed fabrics rather than just homosexuality?” is “Judaism believes only the prohibition of the latter applies to everyone – and most of my listeners aren’t Jewish.”

The people who set Leviticus traps for Orthodox Jews display a basic ignorance of Orthodoxy. It’s time to have some honest dialogue on marriage and other gay issues, but nobody’s beliefs should be misrepresented or mocked.

I recently received the following E-mail:

Thank you very much for your work. Far too often the defense of marriage as a union between a man and a woman has been associated with homophobia. It is refreshing to see an openly LGBT person of faith argue that same-sex marriage is not a boon for gays or straights. It is especially outstanding to see someone speak prophetically about the problems of the socially marginalized members of our community, especially in prisons. You are a real son of Moses and Isaiah.

We’re in somewhat similar situations. I am a bisexual (Kinsey 2 or 3) person of faith. I’m in the junior reaches of academia, and am doing research in gender studies and intellectual history. I am working on translating my academic knowledge into something useful for popular debate.

Anyway, I hope this doesn’t sound like a strange email, but sometimes we end up in “queer” situations.

In discussions at the comments section about teaching the origin of the universe and humanity several weeks ago I gave the following proposal:

I would personally like to see public schools teach an interdisciplinary unit in 4th, 8th, and 12th grades (say) on the origins of the universe and the etiology of human beings, exploring scientific, religious, philosophical, and literary perspectives. Since the religious content would be “what Jews believe about the origin of the universe” and “what Hindus believe about the origin of man” and the Bible would be studied alongside the Epic of Gilgamesh, the Origin of Species, and other texts, such a unit would be legally considered the academic study of religion, not religious indoctrination, and would thus be constitutional. And it would achieve my goal of having the beliefs of the majority of parents represented, instead of the current system where Darwin is taught and if creation is mentioned it is disparaged.

Even my usual antagonist Mark Barton indicated he could live with something like my proposal. So I’m wondering if we can’t find a similar compromise to public school discussions of marriage in states that pass same-sex marriage (no revision is need in the other states, because nobody’s tring to stop any particular definition of marriage from being taught there). What if we tell teachers not to discuss marriage in any way except in carefully designed units taught in, say, 3rd, 7th, and 11th grades that would introduce legal, historical, anthropological, religious, and literary perspectives on marriage. Marriage in all its manifestations would be discussed, and as much as possible, everyone’s perspectives on what marriage is or should be would be included and respected.

What do people think?