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Maintaining Optimism in the Face of Reality. Occasional observations on the state of the world, society, business and politics. Usually anchored by facts, always augmented by opinion.


Why George Bush's Call for a Federal Marriage Amendment is in the Best Interest of Gay Americans  | e-mail post

Update, Monday Morning: I just want to be clear, I am very open to (seeking, even) those who wish to contest the argument presented here, but I would ask that if you wish to contest it, you add it to the comments or post in your own weblog with a trackback, rather than sending me e-mail. My point is to encourage debate. I would also ask that responses be more than a sentence. I'm not asking for parity with the 5,000 words I've written, but I would at least like something that would further debate.



Preface

First, if you consider yourself "anti-Bush," I would ask you to indulge me by accepting three assumptions, in the interest of maintaining an open mind until you have read to the end. I can provide ample evidence for all of them, but they would only elongate this already long document, and are not fundamentally germane to my main thesis. After you're done reading, you can believe whatever you want.
  1. Neither George Bush nor Republicans on the whole are evil.

  2. Neither George Bush nor the majority of Republicans harbors any sort of negative feelings toward homosexuals themselves, and in fact, there is substantial indication that George Bush likes gay people as much as he likes anyone else, and is arguably even more comfortable about it than John Kerry.

  3. Setting aside a linguistic issue about the meaning of "marriage" Bush and Republicans as a whole want not just "equal protection" for gays, but a world in which sexual orientation is just not an issue. (I am aware that the "marriage" issue has far broader practical implications than simply language, and I hope to address that at some point in the next few days. This was a long enough piece.).
I welcome comments. I am genuinely interested in furthering rational and informed dialogue.

A Simple Question

Have you considered that George Bush was acting in the interests of gay citizens, at least as much as anyone, when he called in February for a constitutional amendment defining marriage as applying only to a man and a woman, and by logical implication, eliminating the possibility of "same-sex marriage" in the U.S.?

Of course, the "conventional wisdom," by which I really mean the Democratic party's spin on it was that he did it because he wanted to create a "wedge" issue. And, honestly, it sounds reasonable on its face, especially if one was already predisposed to think of Bush as a "divider, not a uniter." I don't think that such a claim holds up to any kind of practical test, though.

For all the jokes about his party days in college, Bush was a history major at Yale, and George Santayana gave us the sage advice that "Those who forget the past are condemned to repeat it." Maybe looking at a little history would help, as I think the context will be valuable. I think after looking at the history and the situation in the country when Bush finally called for an amendment, you might see that Bush acted in the best interest of the gay community, by applying one of his other "simple-minded" axioms: the best defense is a good offense.

A Brief History of the Same-Sex Marriage Issue in the United States

The same-sex marriage issue got really hot the first time back in 1996 (although it has a longer history, with the first legal case happening here in Minnesota in 1971).

Some might recall that in 1996 Hawaii's Supreme Court compelled the state to recognize gay marriage. Of course, while thought initially to be a victory in the fight for equality for gays; it didn’t quite play out that way, not even close. The idea of gay marriage was sufficiently worrisome to enough people to get the issue into legislative play. And while it may have only a small minority of people who were really fired-up about it, once the question was called, the majority of Americans were opposed the idea of same-sex marriage. (And according to any poll I have found, they still are about 60% opposed.)

The net result was the creation of the federal Defense of Marriage Act (DOMA), signed by Bill Clinton because he didn't want it to become a political liability for the 1996 election. Over half the states passed similar legislation over the 1996-1998 time period.

While this was going on, Hawaii's Governor Ben Cayetano started pushing for domestic partnerships, and suggesting that "the institution of marriage should be left to the church. The government needs to explore its role in marriages...The government should not be in the role of sanctifying marriages."

But even as the federal DOMA and the state versions were enacted at breakneck speed throughout the country, the issue wasn't finished in Hawaii. In 1998, opponents of gay marriage used a ballot initiative to amend the state constitution to explicitly grant the authority to the state legislature to "reserve marriage to opposite-sex couples." Hawaii voters turned out 69% to 29% in favor of the amendment. (The curious might want to read a collection of Honolulu Star-Bulletin articles that cover the saga from 1996-1998.)

Ultimately, the court case in Hawaii triggered 38 states to enact DOMA as the law, 4 by popular vote amendments to the constitution and the balance through the legislature.

Fun Trivia: Do you know what traditionally conservative state didn't pass any DOMA legislation or constitutional amendment during that 1996-1999 period when 30 other states did? Texas. And who was governor then? That's right. It wasn't until Bush's Lt Governor, Rick Perry, had stood for re-election himself that Texas passed DOMA legislation, in 2003.

Then, in December of 1999, Vermont's Supreme Court, wisely not wanting to set off the same sort of firestorm Hawaii's Court did, ruled that Vermont was "constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." This gave the state an out (no pun intended), by basically telling the legislature that they could adopt civil union legislation with equivalent rights or allow same-sex marriage. Then-Governor Howard Dean immediately announced his support for civil unions, saying he was uncomfortable with explicit gay marriage. Within four months, the legislature passed, and Dean signed, civil union legislation, without really generating any national controversy.

And things on this front were quiet for a while.

Massachusetts Shakes Things Up

Then, almost a year ago, on November 18th, 2003, the Massachusetts Supreme Judicial Court decided to open Pandora's Box by requiring the recognition of same-sex marriage, and giving the legislature 180 days to act on it. Hoping to avoid setting off a national political firestorm by pulling a page from Vermont's playbook, the state Senate quickly asked for an advisory opinion from the Court on civil unions in lieu of same-sex marriage. The Court said nothing less than marriage would be acceptable. In response, the legislature passed a constitutional amendment (which still needs to be ratified) banning same-sex marriages and creating civil unions. (Republican Governor Mitt Romney was the one who twisted some of his party's legislators to sign off on civil unions.) It is still an open question as to whether the same-sex ban amendment in Massachusetts will fail, attempts to defeat it (and thus maintain same-sex marriage) have been getting pretty close votes.

Of course, Massachusetts is only one state. Based on the 1996-98 history, it should come as no surprise, that right after the court's decision in late 2003 the same groups that got the momentum behind the DOMA legislation in 1996 were calling for a federal constitutional amendment banning same-sex marriage. While Bush did direct the Attorney General to investigate the implications and options given the change in Massachussetts law, Bush wasn't out raising hell about it, and his initial public comments were that he thought the states should decide, but he left open the possibility of a federal amendment.

And while many of those who promote themselves as advocates for gay rights were incensed that he even left it on the table, many in the Christian right were at least as concerned that Bush wouldn't call for such an amendment. He had not distinguished himself as an opponent of gays or as interested in treating gay people as any less than equal to everyone else. He had appointed an openly gay career foreign service officer, Michael Guest, to an ambassadorship (and the guy wasn't even a Bush supporter) and has made numerous appointments of other openly gay individuals as well. He did not veto the congressional approval (orchestrated by a Republican from Arizona) of extending domestic partner benefits to city employees in Washington, D.C.. Some people have a litany of complaints about how "gay-friendly" George Bush is, which most people would interpret to mean that he is fine with gay people, and is happy to treat them equally.

So the grassroots social conservative groups also started working at the state level over the winter. And they worked very quickly. I don’t want to sound mocking, but while the gay rights lobby thinks a great deal of its strength and clout, it is both miniscule and disorganized compared to the Christian conservative network. This is meant as no criticism, the movement is very young. The first national gay rights organization, the Mattachine Society, didn't even start until 1951 and it took another 22 years to even have homosexuality taken off the American Psychiatric Association's list of psychiatric disorders.

On January 7th, 2004, Missouri introduced legislation calling for a state constitutional ban on same-sex marriage. (Since then, Missouri voters have already passed it). The following week, on January 13th, Indiana legislators proposed a state constitutional ammendment banning not just same-sex marriages but also any type of civil union, domestic partnership, etc. The very next day, reps in Maryland called for a same-sex marriage ban ammendment and legislators in Arizona followed Indiana's lead, proposing state consitutional bans both on same-sex marriage and any type of civil union.

And then the floodgates opened. By February 10th, 15 state legislatures had introduced legislation to create state constitutional bans on same-sex marriage. (Missouri, Indiana, Arizona and Maryland were followed by Illinois, Michigan, Georgia, Idaho, Kansas, Oklahoma, South Carolina, Alabama, Washington, Iowa and Utah). Of those 15, ten of the states' proposed amendments included bans on any kind of equivalent legal arrangements for same-sex couples. (Only Missouri, Maryland, Oklahoma, Alabama and Washington were proposing the narrower ban.) Many other states were in the process of gearing up with their own amendment plans as soon as their legislative sessions began. Ohio, having just passed a super-DOMA bill in January, was already working on drafting a constitutional amendment.

On February 16th, not even 90 days since the Massachusetts ruling, Georgia's state Senators passed their half of the joint resolution to put their amendment before voters and it was about to go to the house for a vote, where it was assured to pass (which it did) and be put to a vote of Georgia residents. (Which it almost undoubtedly will, with nearly 70% of voters in Georgia planning to vote in favor.)

I was surprised to find that according to 2000 census figures, Georgia was home to 19,288 same-sex couples, about 13% more than Massachusetts’ 17,099. (Note, I am not suggesting these figures imply that Georgia is home to a larger number of gays and lesbians, generally. I was just surprised by the same-sex couple figures.)

Decisions, Decisions

Now, take yourself back to late February of this year and put yourself in George Bush's shoes for a moment. You saw what happened with DOMA just seven years ago, and you're seeing the same thing happening again, but this time, it's not just legislation about the definition of the word "marriage." Because the existing DOMA legislation is open to court review and invalidation, states are now acting to amend their constitutions, not just pass laws. And most of these states, while they're at it, are not just reserving the word "marriage" for opposite-sex unions, but many are acting to deny the possibility, now and into the future, of even extending the rights and benefits of marriage to same-sex couples.

Why are they going even farther? Some of it is human nature, unfortunately. I’m sure we all experience situations where we react to a rapid and significant encroachment on our interests by pushing back even harder. And I’m not even talking about politics. The clearest example that springs to mind is the well-known wisdom of not telling your daughter or son that they are forbidden from dating a person, because it will only strengthen (if often only temporarily) their commitment to that forbidden person. Now, before someone jumps in and says "see, these people are just being adolescents," I would submit that in issues that strike close to our beliefs or make us feel threatened, most people are prone to over-reaction. Moreover, nothing George Bush can do will change that human nature, but it is a fact of the world in which he must take action.

And it isn’t hard to find a legislator to actually introduce these amendments, even if they themselves aren’t as personally fired up about it as those calling for the action are. Some would attribute it to pandering, but if we employ the principle of charity in judging their views, one could say that they may hold the reasonable (albeit debatable) view that such courts are overstepping their authority by invalidating laws that have historically been the domain of the legislature, that it may be grounded in a theory of government, not just election-year politics.

Even if you just get the polls from the papers or the television, you know that around 60% of Americans are opposed to gay marriage; even California adopted a same-sex marriage ban by referendum. You also know that it is at most a squeaker of a national majority that is in favor of civil unions, with most national surveys suggesting somewhere around 48%-50% support.

If the two issues were paired together as an amendment, it would probably pass at nearly the same level of support as the marriage-restriction alone would, since civil union support is usually a compromise, e.g. "I’m opposed to same-sex marriage, but I can live with civil unions."

So, you’re Bush, what do you do? Well, you could do nothing. After all, 4 million fewer members of the Christian Right voted in 2000 than did in 1996, and you know with an issue like that on the ballot, they would all show up on Election Day. Since it was looking like you would be running against either a guy from Massachusetts, the state that just set off the controversy, or the first Governor to sign civil union legislation, you'd probably get the votes of any extra turnout. The last election was a squeaker; maybe you could use the votes. And while the Christian Right might be disappointed you didn't take action, you could defend yourself on the traditional Republican position of favoring states' rights and continuing to make public mention of your belief that marriage is between a man and a woman.

Another piece of history worth thinking about: it was 124 years, from 1843 until 1967, from when Massachusetts became the first state to allow interracial marriage until it was held to be the law of the land by the Supreme Court.

The briefing you got from Justice might have told you that of the four states that already passed amendments against SSM, only Nebraska’s explicitly bars civil unions. And while Hawaii, Alaska and Nevada’s amendments have withstood challenges from their state courts, they obviously haven’t been tested against the full faith and credit clause in federal courts, as there hasn’t yet been a state-sanctioned same-sex marriage to that could result in a challenge.

The briefing probably told you that the Nebraska amendment is being contested in the 8th Circuit, in Citizens for Equal Protection v. Bruning but it is early, with the state losing its motion to dismiss the case, which would be expected, as dismissals of equal protection claims are rare. [Ruling as PDF] The parties aren’t even submitting briefs on the case until late in 2004. The briefing would probably say that the amendment will almost certainly be struck down by the District Court, but that it wouldn’t be a guarantee that other civil-union prohibition amendments would be invalidated quickly. After all, Nebraska’s Attorney General advised the legislature of his own opinion of its unconstitutionality before they passed the amendment on to the voters, the Judge Joseph Bataillon is a Clinton appointee, and the Nebraska language is about a prohibition on the "uniting of two persons of the same sex in a...same-sex relationship," while other amendments are using different languages and contrivances, so they could do better in court, especially if the state’s AG was engaged in an aggressive defense of the amendment.

In either case, there is the whole issue of the appeals process. And even if such amendments are struck down, the same people working today to get the amendments on the ballots will do it again with whatever language is proving most successful in the courts, and they will get it passed again. It’s a process that would go on for years, if not decades. And the worst part is that every time one side loses in court, it will re-inflame the animosity of not just the core of the group, but likely of the broader group as well, as each would feel infringed upon.

Doing nothing could divide the nation for decades, with each side jockeying for tiny piecemeal victories here or there, as we already have on the abortion question. The whole time the battle rages, it would inflame passions on both sides, making it more difficult for gays to seek support for civil union legislation in the broader country.

So you would probably come to the conclusion that you cannot just wash your hands of the issue; that doing nothing is not a genuine option. What other options are on the table? Be creative.

He can’t just stand up and tell the Christian right to stop worrying about it; he already lacks some credibility with those groups for his gay-neutral policy positions and he’s certainly not their spiritual leader. All he would be doing is guaranteeing that those groups would work much harder to make sure there are more candidates who are genuinely opposed to gay equality.

He could try to work the Republican Party back channel to get legislators to not include civil union restrictions on their amendments or pull some strings to get them hung up in committee or on procedural grounds. Really, though, that would be difficult-to-impossible, and he still wouldn't be able to stop the citizen groups that were already working on petitions for over-restrictive amendments in states like Ohio.

Maybe he could propose an amendment to the constitution that would restrict the full faith and credit clause from applying to the recognition of marriage. Actually, if that could just be stuck in the Constitution when no one was looking, it might be a good fix. It would be a lot less controversial than an amendment defining marriage at the federal level. After all, it would just be taking one piece of Clinton's DOMA legislation and protecting it from judicial invalidation.

Of course, a constitutional amendment is a big deal. Everyone knows you don't just tinker with the constitution. It wouldn't even get off the ground: people would object to it as tinkering and it wouldn't be a strong enough statement about protecting marriage to motivate people to pass it or to take the sense of urgency away from the groups trying to pass state-level amendments.

So in the end, the best option, though maybe not ideal, starts looking like a federal amendment. It offers the best prospect of dividing the country the least and settling the issue the most quickly, even if it would still take a minimum of two or three years to go through the state ratification process. Compared to the other possibilities, it has a lot of benefits.

First, the entire country is making a decision about the same thing, only the limited issue of reserving the word "marriage" to opposite-sex unions. Nobody’s talking about restricting civil unions or other abridgements of gay rights. The wind is out of the sails for those pushing for state-level amendments. Most legislatures probably wouldn’t even vote to put the issue on the ballot, and the nation wouldn’t be split with all sorts of divisiveness.

Second, the ratification process takes place in the legislatures, not the polling booths. If gay rights organizations want to try to take on the Christian right, doing so in the legislatures is a much fairer playing field to them than the voting booth. There can actually be reasoned debate, not just TV commercials and billboards inflaming the passions of the broad electorate. Because there are surveys that indicate that only 50% of even evangelical Christians would vote against a candidate who didn’t share their views on gay marriage, it might not even be political suicide for the state legislators choose not to adopt the amendment.

Third, because the issue would be going before the legislatures for a unified debate, it would be an incredibly ripe opportunity for the gay rights lobby to approach the legislatures simultaneously with model legislation on civil unions or domestic partnerships, allowing them the opportunity to run the table.

Finally, because everyone in this country seems to respect the idea of democracy, no matter how the amendment finally plays out, people will accept it. This might be being optimistic on my part, but I do believe that George Bush probably has the same sense of the general goodness of people. And, let’s face it, thinking the worst of your fellow citizens is no way to have to wake up every morning, so why not give everyone the benefit of the doubt?

It would probably best to move fast, ideally before the Georgia house votes to pass it on to the voters. So, if you were George Bush, you might have decided to get up on February 24th and make a speech that you might finish something like this:
Today, I call upon the Congress to promptly pass and to send to the states for ratification an amendment to our Constitution defining and protecting marriage as a union of a man and woman as husband and wife.

The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

America's a free society which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions.

Our government should respect every person and protect the institution of marriage. There is no contradiction between these responsibilities.

We should also conduct this difficult debate in a matter worthy of our country, without bitterness or anger.

In all that lies ahead, let us match strong convictions with kindness and good will and decency.
In fact, that’s exactly what George Bush did that day.

Now, John Kerry of course wanted to make this a political issue and decided to claim that it is a state’s rights issue. This is pretty funny, because not too many Democrats invoke the call of the Federalists, and I would be very interested to see any other examples of cases where he has argued against federal preemption. In any event, it worked well for Kerry, it allowed him to be politically safe, much as Pilate took the politically safe route in dealing with Jesus a couple millennia back.

Gay rights advocates, possibly over-reacting in the way that opponents of same-sex marriage over-react when they push anti-civil union amendments, of course decried this as divisive and anti-gay, saying it should be left up to the states. They allowed their own passions, or possibly egos, blind them to the fact that they obviously couldn’t win everywhere. Or maybe they just didn’t care; since they had carved a couple of key victories in some states, maybe making Massachusetts the Provincetown of the United States was fine with them.

Maybe, they figured, gays would simply flock even more to states like California, Massachusetts, and Vermont, or to other relatively gay-friendly cities in Minnesota or Florida, leaving other states to their own devices. But that’s a very sad prospect. Why should a gay guy born in Nebraska or Mississippi have to leave his home state just to have the same rights? I sometimes think that the major gay rights groups located in highly-concentrated gay meccas around the country may sometimes forget about their brethren in the rest of the country.

And by further concentrating gay people into particular geographies, they are delaying the inherently long road to not just legal equality, not just tolerance, but genuine acceptance, of gays by everyone, everywhere in the nation. Which I think was one thing George Bush was trying to avoid. (I elaborate on this in my postscript.)

The Price of Politics: Where Are We Today?

Instead of getting the congress to pass the amendment and move it on to the states for an orderly debate and ratification process, without adding more polarization to the national election this year, we find our nation in a much different place, and I’m not sure it’s a better place for anyone.

Two more states (for a total of six) have passed amendments banning same-sex marriage. John Kerry and John Edwards both showed up in Missouri after it passed, Kerry telling voters that he would have voted the same way.

Louisiana overwhelmingly voted through their amendment banning civil unions as well. It looks like Louisiana’s may get shot down, but only for the technicality that the state constitution prohibits an amendment from addressing two issues. You can bet the same-sex marriage ban amendment will be back on the ballot again very soon, and it wouldn’t surprise me if they vote through a separate civil union ban just for spite.

More states have it on the ballot in a couple of weeks, and the gay rights advocates seem to think that the only two states that they even have a shot at defeating it are in Oregon and Michigan. They’re basically giving up on Arkansas, Georgia, Kentucky, Mississippi, Montana, North Dakota, Ohio, Oklahoma, and Utah.

And while gay advocates like Steven Fisher of the Human Rights Campaign, have the audacity (or maybe the ignorance) to spout off that, "It's no accident that many are (in) battleground states and are being put on the November ballot at a time when President Bush is desperately trying to energize his extremist base," the fact is that only Ohio and to a lesser extent Oregon are battleground states. And, the "extremists" would already be out to vote against Kerry.

But, sometimes you just can’t persuade people of their fundamental beliefs; no matter how clear the facts are to the contrary, they want to believe that George Bush is anti-gay. Of course, when this problem drags on and on, they’ll probably never admit that George Bush really may have had the best interests of all Americans in mind, gay and straight alike, when he proposed that amendment.

More fun trivia: Can you guess the only state, other than New Mexico, that doesn’t already have a same-sex marriage ban amendment in place and that did not take any action whatsoever on same-sex marriage this year? Florida. Whose brother is the Governor of Florida?

Postscript

Or, why I was surprised when I first learned there were
people who had a problem with gays.

I grew up in Des Moines. My father is from a small town in Iowa. He was self-employed with his office in the house, and he hired his first employee back in the mid-seventies, I was about seven or eight at the time. In any event, the first guy my dad ever hired was a gay guy. According to my mom, my dad didn’t even know he was gay. My dad had probably never really been aware of gay people except possibly in the abstract. I’ll tell you that looking back on it my dad sure didn’t have gaydar.

Because this was back in the seventies, when it was not uncommon to invite your boss to your home for dinner, Jeff invited my family over for dinner after he had been working there in the house for a year or so. When we went over to his apartment, he and his "friend" Gary hosted us to a meal which I don’t remember at all, but I remember thinking that at least Gary dressed less comically than Jeff, whose sense of fashion had very much been inspired by "Urban Cowboy," and, honestly, I don’t think I had ever seen another person in Des Moines wear a cowboy hat unless it was Halloween.

My dad expanded the office area in the house after an addition, and I saw Jeff every day after school before my dad had to lay him off during the building industry recession around 1983 or so, and just go back to being solo. As it happens, when business improved a few years later, he bumped into Jeff at a store, and he had a job, but not a great one. My dad hired him again, and they still work together.

In any event, having known Jeff since before I had any concept of sexuality, let alone homosexuality, when I finally was old enough to really know what "gay" meant, I didn’t have a second thought about it. I was actually pretty surprised to learn that anyone had a problem with gay people, although I was happy to learn that most gay guys didn’t share Jeff’s fashion sense. (Jeff, if you're reading this, I'm sorry.)

When you see a Gay Pride event, you’ll often hear the chant "We’re here, we’re queer, get used to it." To these people I say: I always have been "used to it," so have a lot of people, and eventually everyone will.

But creating insular pockets of gays in certain states is not the way for people to get used to it. Using the courts to defy the general opinion of the majority of Americans and to offend the deeply-held beliefs of a large minority is not the way for people to get used to it.



Other Updates

The Boston Globe's Jeff Jacoby advanced some different arguments about "Why Marriage Can't Be Left to States" in the Sunday editition of the paper.

Continuing Discussion on The Hopeful Cynic

"George Bush and the Federal Marriage Amendment Feedback" in which the question of whether or not GWB has the abridgement of gay rights in mind is discussed.

"Response on the GWB and the FMA Post" in which the possible interpretation of the FMA as written to prohibit the recognition of civil unions as written is discussed and, barring further argument to the contrary, debunked.


e-mail post | Link Cosmos | [Permalink]  |  | Sunday, October 17, 2004
Comments:
Sorry, I'm not buying it.

First, let's address one assumption the argument is based on - that the FMA would only ban same-sex couples from "marriage" and not anything else. This is not the case. If it were, the amendment would say that specifically. According to plenty of legal experts - including the co-authors of the amendmen - the first sentence "marriage shall is between a man & woman" alone is enough to prohibit marriage, civil unions, domestic partnerships and other arrangements. The version that Bush endorsed in February went on to say that neither the states nor the courts could give same-sex couples any of the "incidents" of marriage. This is a more explicit version of what is implied in the first sentence. If the amendment were to pass, it would be used to strike down everything - from marriage in Massachusetts to civil unions in Vermont to domestic partnerships in NJ and CA, to local ordinances.

OK, now that we have that out of the way, let's address the argument:

It seems to boil down to "gays would be better off if the FMA passed because this way it settled things permanently."

I don't get it. Why would gay people be better off if they were permanently banned from marriage or anything that looks like marriage?

And further, the argument that the FMA would stop some of the state amendments is unpersuasive. Even if it would stop some of the state amendments, it would do so by banning all benefits. So rather than people having marriage or marriage-like benefits in MA, VT, NJ, CA (and other states) they'd get no benefits anywhere.

Also, the argument fails to take into account the rapidly changing trend in favor of benefits for same-sex couples. Since the beginning of this year, support for civil unions went up markedly - in fact several polls found a majority of the population supported civil unions. Why would we want to pass an amendment that could permanently ban civil unions at a time when support for them is so high - and on the rise?

Similarly, support for marriage is up. Those who are most opposed by a huge margin are seniors. Young people are very supportive. In ten years, nature will have run its course and support for marriage will be a strong plurality, if not a majority. Again, why would we want to have a permanent federal ban at this kind of time? When you're down by one in the sixth innning, you don't forfeit the game.

Sure, the amendment could always be repealed, but that would take several decades, at best, to pull off.

The best bet for gays (and society as a whole) is no federal amendment.
 
The objection that the FMA would bar recognition of civil unions relies on torturing the English language and suspending the laws of logic, as already disccused in my follow-up post ("Response on the GWB and the FMA post") in which I presented and dealt with the argument. However, in fairness, I am very actively seeking anyone else who wishes to support the interpretation you have put forth, although Eugene Volokh, the only legal scholar I can find who presents this case, has declined to respond to my counterargument. I have sent an e-mail to an old con law professor of mine in the hope that he can direct me to someone who will defend the claim.

This would seem to take down the first six of your parapraphs, unless you wish to find further support for your claims. At least one of which (the attribution of "ban civil union" intent to the amendment author, who has gone on record as saying the exact opposite.)

Your claim as to the "marriage" question does involve some crystal ball gazing. I have yet to see any polls that suggest support for same-sex "marriage" are up beyond a statistical blip past 60%. Could you please provide evidence of this claim?

Moreover, I think there is a potential question of whether or not repeated court battles would strengthen or weaken that support, although I will certainly acknowledge that without further research on a comparable situation, I won't dispute it. It's just a gut sense I have.

Finally, notice that I have not claimed that the adoption of the FMA would be better, but rather that the constitutional ratification process would be a better forum (and more fair to the gay advocacy groups) in which to play out this debate, in contrast to the state polling booths across the country.

Most of all, though, thanks for your contribution!

--Barry
 
Both of the authors of the FMA have, in the past, said that it would ban everything, not just marriage. They seem to have changed their tune now. Interestingly, it was reported that the groups pushing for an amendment (the "Arlington group" - or something similar, the umbrella org. under which they were strategizing) found that the leaders of the various groups were _only_ interested in pushing for an amendment if it banned everything - not just marriage. That's the time when the FMA was written, and when the authors and groups supporting it claimed that it was far-reaching. (Read this interview for some background on the hard-line approach, and Prof. George's interpretation that it would ban civil unions: http://www.humaneventsonline.com/article.php?id=2917 )

Later, the realized that no one was going to support such an amendment, and they softened up the rhetoric, but not the amendment itself.

Of course, if the backers were really so magnanimous, as you claim, they wouldn't leave room for any ambiguity - they'd explicity state that civil unions, etc., were legal. As it stands, they're leaving it up to the judges (whom they despise) to interpret.

Anyway, as you've mentioned, we can have this discussion elsewhere.

Now, even putting aside whether civil unions and such would be banned, the amendment would most certainly ban the recognition of marriage. This would take away the rights of couples in Massachusetts and forclose anyone else from getting these rights extended. (e.g. California's legislature could pass a bill legalizing marriage later this year). That would be a big loss and a major blow to gay couples - the fact that the Constitution of the US would say that they're second class citizens.

And we have to consider what implications such a statement would have. The government, in effect, would be promoting the second-class citizen meme among the public, which could further set back acceptance of gays and gay rights.

As for polling and trends, I didn't claim that support for marriage was up past 60%. Let me clarify: Early this year, around January, polling was about 60-30 against marriage, and 60-40 against civil unions. By March, support for marriage was up a negligible amount, but three separate polls found support for civil unions between 51-54% - an increase of over 10 points in two months. Meanwhile, every polls shows that people over 65 are the more severely against same-sex marriage, as high as 80% against and only 12% in favor. Younger people are in favor by a slight majority.

So, while many other factors can change in the meantime, over the next 10 years or so, you're going to have a very significant percentage of the over 65 segment passing away, and being replaced in the elecorate by younger kids who - as of right now - are very gay-positive. All else being equal, this means the polls should continue to head in favor of same-sex marriage.

I agree that repeated court cases could push things one way or another. What we've seen in Massachusetts is that all of the hubub from the beginning of the year has calmed down, and that the overwhelming majority of the public doesn't care anymore. I think the timing of when those court decisions come out, and which way they go will set the tone. If a lot come out in favor of same-sex marriage at the same time, there will be a big backlash. If the pace is slower, there will be less of a backlash.

But either way, I think the backlash will be temporary.

Finally, for your support of the amendment going through the ratification process, I have to disagree. Congress sending the amendment to the states is as good as it passing. I think it would pass quickly and easily if the states go their hands on it. Almost all of the state legislatures have acted to ban marriage in one way or another, with many opting for constitutional amendments.

The gay rights groups would be completely overwhelmed, having annual budgets that are a tiny fraction of the probably close to $1B combined annual budgets of the anti-gay groups. And public sentiment is in favor of an amendment. The gays would be doomed if the amendment made it out of congress.

So, like I said above, a time when public opinion is changing quickly is the wrong time to proceed with a constitutional amendment.

Thanks
 
Duppy-

Good comments. I will read your suggested links. I think a couple of your other points are open to debate, but I have run to a meeting now, and will reply later today or this evening.

Oh, and don't get me wrong: I think a lot of the groups supporting the amendment have hearts of darkness. I myself wish this wasn't a big deal. I just feel that each court case is like kicking a sleeping dog.

One other thing: I don't think getting this through the states would be the slam dunk you do. This might just be one where we have to disagree. I genuinely feel that on this issue, the smaller advocacy groups are favored.

Bear in mind that to defeat ratification, gay advocates only need to win in 13 states in the legislatures. Nearly all of which took some action, but most of which couldn't get it passed. The large budgets much more favor the anti-gay groups in a direct-to-voters appeal.

Don't forget that ultimately my main point is that Bush didn't suggest the FMA with the intetn of taking negative action against gays. I am hardly saying there aren't reasons to oppose Bush, but I think he was politically demonized on this one.

Thanks, again,

--Barry
 
Sorry, Doppy
 
At first, I thought I would have to take issue with Robert George, but it's even an easier argument takedown than that.

OK, rather than quoting someone quoting their recollection of someone else's opinions, it might be best to go the source. In an article written by Robert George himself in July of 2001, and then reprinted in July of 2004, in the National Review, he says:

"The Federal Marriage Amendment has a very narrow purpose. It seeks to prevent one very specific abuse of power by the courts, to make sure that on an issue of this importance, they don't confer a victory on the Left that it has not won in a fair contest in the forum of democratic deliberation. The amendment is intended to return the debate over the legal status of marriage to the American people-where it belongs. This amendment would have prevented the Vermont supreme court from ordering the legislature to grant the benefits of marriage to same-sex couples, but would not prevent a fair democratic struggle to decide the question of civil unions one way or the other in Vermont or any other state."

I think the claim that the amendment would possiby prevent the legislation of civil unions should be dropped, it's a loser.

I will address the other points in an entirely new post, as the comment box really sucks for writing at length, and especially for formatting.

Thanks,

--Barry
 
I unfortunately won't be able to compile all the numbers tonight, however, the one issue regarding older, more conservative, voters versus younger, more liberal, voters is that at any time in history, "the youth" is always more liberal and older people are always more conservative, even when those older people are yesterday's "youth." It's a simple fact of growing old, it seems. Demographics always reveal a higher degree of liberalism among the youth, whether its 1960 or today.

On some issues, this translates into those more liberal attitudes becoming mainstream, on other issues it translates into the holders of the liberal attitudes becoming more conservative, thus maintaining a constant mainstream, so to speak.

In issues related to families, as the marriage question is, my suspicion (and it is just a suspicion) is that this might be one of those issues that people would begin to skew more conservative as they get older, have kids themselves, etc.

Like I say, I don't know if this would be true or not, and I think it is hard to find a good parallel, as I think there are some differences between between same-sex marriage and racial equality that may make a psychological difference in how people's attitudes would change.

I guess I an still curious to have anyone tell me why Bush has been uniquely demonized on the issue, though, to the point of the Log Cabin Republicans withholding their endorsement and even booting the Palm Beach chapter of LCR for endorsing Bush at the local level. This is a pretty huge schism, not to bring another religious word into the debate.

Oh, and one last thing: Mass will have a same-sex marriage ban amendment on their ballot shortly, it has passed both houses once and needs to pass them both again next year. While Californians eliminated same-sex marriage by referendum already. It's not open to legislative action there, either.

--Barry

P.S. The youngest of the "idealistic youth" of 1960 that swept Kennedy into office would be 62 today (18 then, 44 years later). There should hardly be any conservatives left.
 
Interesting argument... While looking at the supposedly gay-friendly policies of Bush, I have to admit he is not nearly as reactionary as he is accused of, and indeed, not nearly reactionary enough for his base. The same would appear to go for Jeb. Your note about Florida not having a DOMA amendment, while true and perhaps significant, I feel is slightly misleading. While only Florida and New Mexico do not have a constitutional amendment in place AND did not take legislative action regarding same-sex marriage this year, this is an incoherently restrictive formulation. Florida already had a DOMA law, like many other states. States that did not have a strong state law regarding DOMA took legal action regarding it, true, but Florida may have felt that was unecessary by way of its law banning same-sex marraige goes back to 1977, so the only next action they could take would be to propose an amendment. But they didn't. Neither did 9 other states that already have laws banning gay marriage. An additional 12 states proposed an amendment to the state constitution that failed. And 10 more states did not have legislative action regarding the state constitution, but passed resolutions in support of the federal amendment. So 21 states either did not propose an amendment or had an amendment defeated; 31 states didn't think it was necessary in the state constitution (though of course a federal amendment would supercede it, making those 10 perhaps half-way between the two extremes, as those 10 state legislatures likely knew that the amendment didn't have the votes to pass the US Congress).

Thus, if you have an established law, like Florida and many other states, the fact that you didn't have any further legislative action doesn't prove much. And while several of the 21 or 31 states mentioned above have petition drives for amendments, this is almost totally irrelevant to your point. If the implication of the fun trivia fact is that Jeb is equally gay-friendly, the actions of the State Legislature fail to make a prima facie case, I think, that the Governor of such a state feels one way or the other.

Of course, this is a minor point of your argument.

Taking on one of the larger points, that Bush may be secretly trying to advance the gay cause, is intriguing, but treating gays equally in person, and not passing a Texas DOMA (though not vetoing one either) does not, to me, make a very strong case that he has a secret equality agenda. Indeed, while Occam's Razor is not natural law but a rule of thumb, it seems that to conclude Bush is secretly advancing a "liberal" gay agenda for gay marriage seems beyond a stretch. A conservative, supporting an amendment forbidding gay marriage, even if reluctantly, does not speak of secret activism to me but of giving in to the base. In any case, I see no basis for this supposition, only speculation based on your analysis of the best way to proceed, which we also have no reason to believe is how Bush or his advisors see it.

As for your base assumptions of Bush & Republicans not being evil, that, of course, depends on your definition of "evil". In the name of democracy, they have planned or allowed to happen (along with the Dems) the war in Iraq, which, one will note, was never desired by a majority of Iraqis as far as polls can tell so far in that unstable region. It is, to my mind, amazing hypocrisy to "bring democracy" to a place that opposes such an act by a majority. (And the WMD argument seems rather debunked, a result forseeable beforehand in the Carnegie Endowment for International Peace report pointing out that pre-2002, in 16 categories, the National Intelligence Estimate stated we were unsure of our information in most categories; in 2002 these all became certain, miraculously.) Over 13,000 Iraqi civilians have died so far, in a population less than a 1/10 of the US's. That's more than 9/11, more than 4 9/11's, and as a proportion of citizenry (a dubious but illustrative measure), 0.1% of their population, which would be 280,000 if it were the same proportion of US citizens.

This is not to mention the decades of thousands of deaths in Latin America and elsewhere as a result of deliberate or uncaring US policy supporting and supplying dictators and other problematic acts.

To allow such evil to happen in the name of a greater good, often without the full knowledge of your constituency, may not be evil in the Disney/Biblical sense of a darkest heart and twisted soul, but to me it does not speak of "good" or even morally adequate in my book. To compromise thousands of lives away in what in many cases were almost certainly unnecessary ventures to support American prosperity, not safety, is, well... nasty. Additionally, one could accuse them (equally with the Democrats) of the banality of evil, of letting Global Warming and other such problems like mercury contamination simply... go by; continue. The science, if not absolutely clear, is certainly above the 50th percentile of likelihood, if not 90 or 99 percentile; inaction in the face of likely catastrophic results is, to me, very much the banality of evil (or evil of banality).

Lastly, the most important point, addressing this idea as a strategy in the first place -- strikes me as a little bit, I don't know, ridiculously byzantine. While you are correct, we are in a culturally tense moment, it seems to me that what you propose is that a less extreme case of Dred Scot will actually be good for everyone in the long run. I can't rewind history or predict the future, so it's possible you're correct. But I know that for decades, centuries before emancipation, people said it was not the time for radical movement toward freedom for slaves. Who knows if they were right at all those times, but those that said it during desegregation, during the Civil Rights Era, were almost certainly wrong, as it appears to me that nothing but such radicalism, social foment, pain, and cultural clashing would have brought about the radical social and moderate economic gains of blacks.

To put it simply: what is wrong with cultural clashing? It is clear that pushing for your agenda solidifies the opposition against it, as with MLK Jr, as with Gandhi, as with escaped slaves, as with Frederick Douglass, as with Aung San Suu Kyi in Burma, as with those who fought (and fight) for Irish independence... These events, actions by these people and groups have caused profound pain, but I am trying to think of an occassion where profound cultural change was able to take place exclusively through measured, unthreatening tactics, and I'm coming up empty (though undoubtedly there are some). Admittedly, the right to marry, adopt, be protected by anti-discrimination laws, and the other civic rights not allowed to homosexuals is not at the same level as many of the events listed above. But if your comment about people growing conservative as they grow older is actually true, I don't see how your argument holds up. If today's more accepting generation grows less "gay friendly" in the coming years, how will an amendment restricting the rights of gays have aided their cause?
Of course, I differ with you on this too, as people grow primarily more fiscally conservative as they grow older, and less so socially. I would hypothesize as well that they grow more socially conservative on things that imperil their more stable life -- their kids taking drugs, having children at a young age -- gay marriage doesn't strike me as something one rethinks as one gets older, though perhaps I'm wrong. But I can imagine the process for those others, drugs are risky, sex is risky, staying out late is risky, violence and sex in the media may lead your children to a bad path... but gay marriage? If you have a child who is gay, if/when you come to accept them, it seems to me you'd want them to have all of the rights you enjoy. And if you don't have gay children, it seems you would be less threatend by gay equality having grown up more accepting.

Lastly, back to your primary point, I think an amendment is wrong tactically in several other ways. First, it is fairly hard to overturn an amendment, meaning that this waited-for zeitgeist of cultural acceptance would have to be rather significant in the future. Second, if the real purpose is simply to cause discussion in the state legislatures that would be debating this, I fail to see how this will better stimulate discussion. For one thing, for most people, their state legislators are far less familiar to them than our TV-hogging national politicians. Also, I don't see how the same better-funded Christian Conservative machine you mention would be any less effective at swarming state houses with protesters and offering political and possibly financial favors to the relatively less powerful state reps. And indeed, I think in any case, this would be no more effective than the current balkanized state of affairs; I can just see the tremendous number of commercials to sway people either way, generating not conversation but hyperbole; and while you cite a stat that people are less likely to vote on their gay marriage convictions, a failure to oppose would do nothing towards supporting productive discussion, as those who are highly conservative and well-funded and well-connected are and still would be amply able to exert strong negative pressures on state reps. And third and finally, there is an expression: Why Not Now? While one must think tactically, I would no more counsel homosexual advocates to bide their time than any abolitionist at any point in our history. Only with consistent, loud voices supporting a cause does violent opposition turn to grudging acceptance; indeed, it usually takes an immensely unpopular court decision to lead to a gradual de-balkanization, as happened in the South, as seems to be happening in Massachusetts... Political expediency is NOT, in my view, a reason to suport something against your cause in the short term. Political expediency alone never has, and never will, make for a more accepting, enlightened, informed, or cohesive culture. Why should homosexual citizens of the United States have to wait for rights already given in other countries, without disaster? Only the blind centrism of "I don't care what they do over there" allows us to ignore the lack of godly damnation in Denmark, Ontario, and their judicially-motivated peers in acknowledgement of gay rights.
 
ps... I noticed you took the link to my hopefulcynicism off of your site... just pointing it out...
 
Hi J-

First, thanks for some thoughtful comments. I will stay away from the polemic regarding evil or not evil, as by some standards, the Dems are still in the lead for pointless foreign deaths for taking us into Vietnam and then sinking us deeper into Vietnam. Reasonable people can differ about effective foreign policy and the legitimate use of military force to achieve that, including the possible deaths of civilans. I don't mean to sounds uncaring as I brush that aside, but I am certainly not about to defend such a broad topic in the context of this debate. My point regarding the assumptions was more to suggest that the piece be read with an open mind. It's the same thing I try to do when I read The New Republic or The Progressive, etc.

I think my argument only seems "ridiculously byzantine" because it was surmised post hoc. The selection of a reasonable choice was a reductio argument. Among other choices available to Bush, did I either miss one (a reasonable one, and Bush coming out for gay marriage is not a reasonable choice to put in Bush's options)?

As to your state-counting: 38 states already had a DOMA law in place at the start of the year. Every state in the nation had a law effectively denying gay marriage rights from a definitional standpoint

4 states had amendments banning it on the books (NE, NV, AL, HI)

2 states did not have legislatures in session

Your math even acknowledges my key point: even among states with DOMA-like laws on the books, a majority of them acted by attempting to get an amendment on the ballot.

Oh, and Bush couldn't veto that which wasn't presented to him and Bush was never even presented with Texas DOMA legislation. Nothing happened in TX in the '96-'00 time frame regarding DOMA-like legislation (beyond what was on the books from long ago, which was true of most other states as well).

I will stand by my observation that the complete absence of activity in Florida this year and in Texas from 96-00 does stand out when viewed across the map f the other states' existing laws and legislative actions.

I agree with your point about Occam's razor. What is the most simple explanation, then for proposing an amendment that would:

1) Likely inflame states-rights advocates, a core Republican base
2) Likely inflame gays, 25% of whom voted for Bush, and were a good Republican consitutency in Florida
3) Not fundamentally motivate the Christian right to get out and vote, as they would already be at the polls voting on those amendments.

Oh, and why did he do it when he did it? He could have done it much earlier.

I will pull data next week on social attitudes changing as people get older. The point you are forgetting about gay marriage is that some parents feel same-sex couplings cause them trouble because the typical mechanism for explaining marital relationships to children is that "that's where babies come from"...non-procreative unions therefore force parents to discuss sexual relationships with their children at a younger age than they feel comfortable.

For example, a local private school here has lost some of its students for for introducing children to same-sex relationships as early as 1st grade. I'm not saying I feel the same way some of these parents do, but I can also acknowledge and accept their discomfort with the issue. They don't want to have to explain sex to kids at that age, and same-sex relationships make it tougher to dance around the issue of sex. (Again, I'm not defending this, I'm saying that I live in the real world.)

On to the other points:

1) Would there even be any need to overturn the amendment in the future, if everyone is happy with the idea of civil unions?

2) The fact that local legislators do have less coverage works to the advantage of reasoned debate, versus grandstanding for the TV camera.

3) Most state legislators are more constrained about what kind of lobbying perqs they can accept. Person-to-person contact is much more effective, and this usually favors the small group. With ballot initiatives going on, it becomes a media campaign, and that's where the smaller interest group can't compete.

The rest of your argument on that issue seems to muddle the issue of voters versus legislators making the decision. TV commercials would be an ineffective way to reach legislators, so I might not be picking up on your point.

4) Why Not Now? I don't think it is entirely accurate to draw parallels with the abolitionist movement. Abolitionists had half the country on their side of the issue before slavery was abolished. In contrast, even California voters adopted a same-sex marriage ban by referendum, and the same thing will likely happen in Mass when it goes on the ballot, and already happened in Hawaii. That is: even in the three most gay-friendly states, the gay marriage issue is a loser in front of the broader population of voters.

I think a lot of the issue comes to whether the FMA is as fundamentally "against" the gay rights cause as it has been portrayed. As I argued, I think the idea of having a uniform same-sex marriage ban debated in each and every legislature is *the perfect* catalyst for taking civil union legislation to all of the states. It's political log-rolling.

Finally, it just occurred to me: time is not on the side of gays in the way that it may have been on the side of blacks: there is no mechanism for gay people to fundamentally increase their numbers, unlike any other constituency. Think about that. If, as many argue, being gay is a nature-not-nurture thing, roughly half of the gay population (men) will not procreate (as being "out" becomes more acceptable and gay men don't feel the need to get married and have kids just to put on a front). To the extent that this is a genetics issue, those genes will slowly become less common in the population. As I said, this just popped into my mind, so I'm not strongly convinced of this, but it seems to be another issue arguing in favor of getting the best deal at the best time.

Maybe I am simply too pragmatic, but to the extent I have heard from no gay individuals that they feel impugned by the denial of the "marriage" label, then I don't understand the reflexive opposition to the FMA, rather than looking at how it could be strategically used as a tool to further gay advocacy aims (because, let's face it, we are 12 days away from over 1/4 of the states having anti-gay marriage amendments on the books) and most of all, the personal demonization of Bush _about_this_issue_.

I am hardly suggesting that gay people should vote for Bush because of his call for the FMA. I am saying his call for the FMA is not (that I can determine) an appropriate reason to vote against him. I can tell from your writing that you will appreciate there is a significant difference, even if some might gloss over it.

But this is the sole reason the Log Cabin Republicans withheld their endorsement of Bush. It's interesting that the Abe Lincoln Black Republican Caucus (the gay black Republican group) actually broke with the LCR and did endorse Bush.

Thanks again, and I'll add you to my blog listing. I cleaned up the "hopeful cynicism" references. I think I'm going to do a blog move around the first of the year and will probably do a significant redesign at that time.

Best,

--Barry
 
If the actual goal of the FMA is to protect the institution of marriage from being redefined by activists courts and forced upon us all -- and people are worried that federal and state DOMA laws may be overturned by such courts -- then an amendment that simply added the specifics of DOMA into the Constitution would do the trick. As you alluded to in your essay, an amendment that formally made an exception to the Full Faith and Credit clause specifically for marriage, would close the book on the issue. (Nevermind that 200 years of American jurisprudence has always allowed marriage to be an exception in the application of the Full Faith and Credit clause. After all, we are ostensibly preempting activist courts here.)

The most bizarre assertion you make is that the FMA would actually be good for gay Americans. This is practically Orwellian in its sincere denial of reality. What would be good for gay Americans is if they were no longer one of the last remaining "acceptable" targets of blatant discrimination in this country. The FMA would make this even more difficult, as language holding heterosexuals as more deserving of legal protection than homosexuals would be forever enshrined our Constitution.

As a final comment: I feel that this right-wing movement to "protect the sanctity of marriage" is disingenuous, at best. Does anyone really believe that the tiny fraction of the population that would enter into a same-sex marriage would be of any threat whatsoever to the millions of heterosexual marriages and families out there? Does anyone doubt that no-fault divorce laws, Las Vegas drive-thru wedding chapels, and TV shows like "the Bachelor" and "Who Wants to Marry a Millionaire" are LESS a threat to traditional marriage than allowing gay couples to marry? Where is the FMA that forbids no-fault divorce? Clearly, this is the #1 threat to traditional marriage. So why no outrage on the right about it? Because: they know they cannot change divorce law, as it is too popular. They cannot amend the Constitution to outlaw abortion for the same reason (no matter how central that issue is to them). But they polled and worked the focus groups and found that going after fags was not only doable, but would help them turn out the vote among the base. It is here, in the selective choices that the GOP and the Bush campaign make in what battles to fight, that an argument can be made that Bush is pandering to anti-gay voters. Personally, I believe the President is tolerant of gays. What is disheartening is that he seems to be a "closet tolerant" so that he doesn't tick-off the religious-right, whose support he needs to be reelected.
 
Barry --

I remain completely unconvinced, but I can't fault your rebuttal prima facie.

As for the side issue/black-hole of a debate about evil goes, I didn~t say (or if I did, I was horribly wrong) that I supported the Democrats or felt that they were *less* responsible for (what I consider) unnecessary deaths to support American Imperialism. This is why I don~t feel John Kerry is sufficiently "not Bush" for me.

As to the main issue. You have a point that your conclusion of the method to the madness appears more byzantine because it was post hoc. But all the same, I feel it presumes incorrectly that a) Bush wanted to pass an amendment on the sly to help homosexuals, b) that this would occur to him/his advisors as a way to do it, c) that gays, on the whole, don't view the denial of the specific rights and full equality in name as well as function as signficant if given the choice of civil unions, d) that it would work the way you say, and e) that debates in the legislatures would do anything interesting (or at least, useful).

A)While I yield your case that Bush (and seemingly, the Bush-clan, or at least Bush scions) are relatively gay friendly, your evidence that the FMA was designed to advance such sensitivity is all circumstantial. This doesn't make it false, but it makes it weak. It presumes that your circumstantial evidence of Bush sympathy for the issue of gay marriage (that is, their apparent ease with homosexuals and the lack of anti-gay legislation on their watches) further implies that GW wishes to take an activist roll, which may or may not be true, but based as it seems to be on two inductions following from the original evidence, which simply implies personal-level gay friendliness, not activism. Part the second, as I noted, Florida already HAD a law banning gay marriage, and one of the older ones in the current era (I~m not counting the Blue Laws and such of earlier days). There were several other states that also already had a law banning gay marriage, and several of them also did not act on strengthening it. Given your point, this hinges on whether or not Florida being one of several states not taking action on this is significant. You, essentially, acknowledge my point as well when you say "Every state in the nation had a law effectively denying gay marriage rights from a definitional standpoint... Your math even acknowledges my key point: even among states with DOMA-like laws on the books, a majority of them acted by attempting to get an amendment on the ballot." That is, you acknowledge that only a majority of those with DOMA-like laws acted on them. This still means a minority did not, i.e. more than one state (in this case, CT, FL, NM, ND, OR, and PA). (source: Stateline.com) (PA supposedly was going to introduce one, see i.e. the website Gay365, but searching the nets and their legislative database, a Rep. Birmelin said he was going to introduce such legislation, but in a search of the PA Legislature's webpage, and in a google search, I couldn't find the actual proposal to the Legislature.

There are also two or more states I'm leaving out that had petition drives. This is based on the fact that we are trying to imagine the mindset of FL's governor. If I didn't say it before, I fail to see how a lack of legislative action necessarily, or even strongly, carries any implication about the mindset of the governor. And petitions from the citizens, less so. A governor could, of course, threaten to veto or work behind the scenes to stop such a thing, but without more evidence I don't think one can induce that a) Jeb (and the other governors) have a more tolerant attidue, or b) that they worked behind-the-scenes to stop legislation, as legislation would only necessarily reflect the legislator's point of view. (Digging deeper here, your use of what states had legislative action seems arbitrary -- many states that did see legislative action had it soundly voted down, some had it strongly endorsed, and some had it struck down by a judge -- I don't see how the balances of legislative attidues in these different states necessarily means anything in terms of this debate, or that nothing was proposed means more than that something was proposed and soundly defeated).

B) John DiLulio, ex-head of Bush's faith-based initiatives, made the claim that they didn't have an office of policy analysis per se, but an office to analyze how policy would affect the public opinion. That is to say, I see no reason to believe a policy focus of his admin. would be gay marriage. In response to your question as to why he didn't propose the amendment earlier, I see two rather mundane possible explanations: 1) he didn't, for political reasons, want to get involved in a divisive issue, especially close to an election, where he could not hope to please everyone, including undecideds or some libertarians that agreed with his war policy but would disagree with a marriage amendment; he finally waded in when it became clear he would lose to much of his base support through continued inaction (this, to me, has many non-gay non-byzantine precedents: the issue of what actions to take during the downed plane in China incident, the reluctance to take a stance on Sudan, the reluctance to create a 9/11 commission, the reluctance to talk to a 9/11 commission, the reluctance to allow Dr. Rice to address it, the resistence to a Homeland Security Dept, the resistance to it being cabinet level -- in all of these issues, he either had a murky stance or a stance against, and after political pressure grew, came out for them -- just like, imho, the amendment in question), or 2) he didn't, for personal reasons want an amendment that discriminated against gays (according to many gays I know, and according to my own opinion), and rather than viewing it as a back-pocket endorsement, he felt this amendment went against his gay-friendly personal convictions, and only relented to a stance when it appeared politically untenable to not do anything.

C)To be succinct (as uncommon as that is for me), my personal straw poll of homosexuals I know, and activists I know, and the impression I get from the media, and the exuberation seen in CA and MA, leads me to believe a significant number of gays do view marriage specifically as an important recognition of equality; civil unions are an improvement but not equality in the eyes of those I mentioned (with whom I agree). The Supreme Court established in Brown v. Topeka et al that separate is inherently unequal due to the implication it gives of inequality. While that was in education, a more profound issue in some ways, I feel the conclusion holds: civil unions should be for homosexuals because they are not entitled to not only the benefits, but the legal and spiritual recognition of marriage. This being a sort of secular spirituality, since you can presently get married by a willing religious body, but it will not be recognized by the state. Yet even in our relativley fractured state as a nation, I think to have the state recognize your marriage brings with it a certain spirituality, a feeling of being embraced by your society. Civil unions, created to explicitly avoid doing just this in the name of marriage, would therefore be inevitably unequal -- to my knowledge, they were not originally proposed as something just as good as marriage, and they were not proposed by the homosexual community at first. As such, an imposition of them from the "system" represents exactly the type of stigma B v. T. viewed as inevitable in such a situation. (Ok, that wasn't that succinct.)

D) I don't think that the "settling" of the issue on the national level would reduce the controversy in any way. Whether or not you disagree with GayPatriot and others, many homosexuals and their allies (again, including me) do NOT think this is the best road, and do NOT think civil unions, as they say here in Brasil, não vai dar (lit. "it won't give" -- won't work or won't be worth the trouble). As such, the controversy would continue, with the slight change of trying to block the amendment, along with others would agitate be inflamed including the eu-federalist politicians and other states-righters, and on the other side those who would find this as a reason to hate Bush all the more, including some libertarians). A new controvery would be started, which you suppose would take place on the local level, but I see no reason it would be less toxic. And indeed, in terms of the news, it would be covered just as much, and just as superficially, if not more so. As for inside the legislatures, that's the next point. But the mechanism of quelling controvery for more reasoned reflection -- I think it will do neither. The conservatives who back it would continue to exert pressure to make sure it is passed, and now much of the Left would be further mobilized against them, becoming now the party which feels agrieved.

E) You present no particularly good case that the debate will be better in the legislature. It did not, to me, seem any more reasoned in Massachusetts than in Washington, DC. It took as long as it did only because of the three sides, the strongly pro-marriage and strongly anti-marriage allied to keep the bill from passing with civil unions as a compromise. Such political maneuvering to get some form of legislation out does not, to me, represent the ideal of debating the issues but rather attempting to follow your base (and in some instances, your conscience). I assumed you meant the local level would more strongly involve the populace, which I don't agree with as there is a low but consistent invovlement with state legislation in many states already, which I don't think would be usefully (that is, non-toxically) be augmented by the debate over a federal amendment. Indeed, the calmest part of the MA saga seems to be now, after marriage has been allowed (though, of course, with the wait for a statewide amendment to be voted on). I would wager, however, that this struggle for marriage, and gaining it, will demonstrate that after having proper equality "forced on" the populace, tempers actually die down, leaving only the extremes to continue arguing and the centrists to forget about it.

To your specific questions:
I agree with your point about Occam's razor. What is the most simple explanation, then for proposing an amendment that would:

1) Likely inflame states-rights advocates, a core Republican base
This administration has pushed through several initiatives, from No Child Left Behind, parts of the PATRIOT ACT, policies on drugs and sodomy being pulled from the states into John Ashcroft's purview, etc. that go strongly against states' rights. Indeed, see today's Slate in the High Concept Column about vote pairing: ...swing-state Libertarians appalled by the Orwellian, antichoice, antigay, and repressive policies of the budget-busting Bush administration[are experimenting with safe-state vote-trading]. The point here is not why would he piss-off states-rights Republicans; it's that he already has, and most have showed their willingness to play along to keep the GOP in power (just like the lack of criticism by the Left today for Kerry, or Clinton for Yugoslavia, "welfare reform", etc.) If you can shore up, to even a small degree, your conservative base, without the threat of losing a group that has already either defected or engaging only in backroom protest, why wouldn't you?

2) Likely inflame gays, 25% of whom voted for Bush, and were a good Republican consitutency in FloridaFirst, I would guess many of those gays were appalled by what they got instead of centrist compassionate-conservatism and have already defected, though I can't back that up. Second, I would also guess that any political calculation would show shoring up the conservative base, if even only slightly, has a much higher dividend. (And indeed, I think it likely inflames gays and likely will, notwithstanding your hope for civil unions.)

3) Not fundamentally motivate the Christian right to get out and vote, as they would already be at the polls voting on those amendments.This seems plain to me -- the Christian right, as you pointed out, are pissed off at Bush for not being far enough Right. Surely, the existence of the websites you pointed to of conservatives against Bush points out the necessity of his eventual support of the amendment. They may vote anyway in the states with amendments, but they may choose not to vote for BUSH (and therefore, not vote for president at all). It would seem to me that even if it didn't pull any conservatives back INTO the fold, it staunched a wound where more COULD HAVE BEEN lost (after all, not all states have constitutional ballot initiatives, either, like Florida as you point out, where he might need to maintain or augment conservatives to offset the loss of gays).

Oh, and why did he do it when he did it? He could have done it much earlier.I believe I addressed this earlier.

More:

1) Would there even be any need to overturn the amendment in the future, if everyone is happy with the idea of civil unions?Clearly not, after a fashion. But I doubt everyone will be happy with it in the future, especially, achem, homosexuals, and additionally, since I believe CU in place of marriage is inherently discriminatory, this is akin to asking "Is social inequality ok, if everyone is happy with it?" In a way, yes. In a different, more important way, no.

2) The fact that local legislators do have less coverage works to the advantage of reasoned debate, versus grandstanding for the TV camera.For one thing, if we were to have a constitutional amendment in the offing, I virtually garuntee you there will a DISTINCT augmentation of TV coverage, and therefore grandstanding, but my earlier point was I don't think voters will be better-informed about state politics. I take back my point about their relative apathy about state legislation, as it would probably change in the face of an amendment. But all the same, I feel the lack of face and name recognition that the national representatives have, the feeling many citizens have of at least knowing who their US senators are, in comparison to relative ignorance of the state reps, will work against better information, not for. In any case, I don't see your case that more reasoned debate will take place. I don't feel state legislators are by nature more reasonable, and a good structure for mass public participation and reasoned conversation is no more present on the local scale than the national, for the simple reason that most people don't participate politically outside of voting. (Are we talking reasonable congressional debate, or reasonable debate in the real important sector, the people?)

3) Most state legislators are more constrained about what kind of lobbying perqs they can accept. Person-to-person contact is much more effective, and this usually favors the small group. With ballot initiatives going on, it becomes a media campaign, and that's where the smaller interest group can't compete.Point taken regarding lobbying perks. Nonetheless, they exist, and additionally, do you have any doubt this would become a media campaign at the state level? A federal amendment? The first in how many years? I see ABSOLUTELY no reason this wouldn't play out much WORSE than in Massachusetts, where I feel no real ideas were exchanged. I think most state leg. already know where their constituencies, on average, stand on this, and I can't imagine a small group, OR large one, convincing, for example, any Republicans in the Michigan Legislature to support the amendment, or any Greens (or Democrats perhaps) to come out against it. And certainly, the populace won't become better informed just because the STATE is debating it; most people are informed by TV; it's bad enough as it is, if as you say local legislatures are less televised, I don't see how they will therefore be better informed about the debate.

Lastly, I don't understand your "why not now" rebuttal, because I was talking about the abolitionist movement throughout the years. Clearly, for MOST of it, "That is: even in the three most [black]-friendly states, the [abolition] issue is a loser in front of the broader population of voters." My argument was that without those pushing for it long before it was popular, it would never have occurred. The same for Civil Rights legislation, which I do not believe would have faired well in a broad vote in its early days.

As far as your comment on gays becoming a dwindling genetic breed, this is a complex topic, but a) gay or homosexual is a biologically meaningless term; all men in a certain tribe in the western Pacific thought it was necessary to have sex with men to "replenish" their essence from having sex with women; were they "gay"? Many Romans took lovers of both sexes, most often an older man and a younger one, but they didn't consider this distinctly different. In some American Indian tribes, there was a class of "berdaches", those men who wished to be women or women who wished to be men. If they became berdaches, they essentially switched to all behaviors and customs of the opposite sex, including taking a mate of the same biological sex. Were they "gay"?

That is to say, homosexuality almost doubtlessly has a biologic component, but it has a very strong cultural one as well. I think historic guesstimates place the "gay" population as rather constant as far as records can tell. (This is a point close to my field, I am getting my PhD in ecology, focusing on ecological economics/ecology and human affairs.) Two points to be made about the biological side:

1) Something can be biological, and not completely genetic. Most pertinent, during gestation, cells in the future brain divide into nerve fibers. This is of course genetically dictated. Other cells generate chemicals that stimulate the fibers to grow and connect. However, the placement of the nerves and their chemical stimulants is semi-random (one could perhaps think of it as trying to predict where individual water molecules would land in a small puddle). When the neurons connect, their connections are determined in some part by chance. Thus, it is possible babies' temperments, childhood geniuses, and many other factors are influenced in this stage, which has no precise genetic mapping and a large amount of chaotic dynamics as it determines the brain's wiring.

Ultimately, of course, my advisor put it best: arguing whether the car or the driver is more important to getting somewhere is a mal-formed question. Neither will work in the process of driving a car without the other. Such is genetic/environmental complexity (another topic for another time). I see no threat of extinction to gays (besides the point that I think the fecundity numbers for gays are similar to straight -- many have children, before they come out or realize they~re gay, or through other means, just as many straight couples don't procreate. this is irrelevant in consideration of the prior points, of course)
 
J-

This is without question the absolute best engagement on this debate anywhere. Thank you. I find it profoundly ironic however, that the only entirely rational, informed, and largely evidence-supported rebuttal of my arguments come from a straight person, while most gays who have responded have apparently let emotion blind them.

I am going to print this out so I can more comfortably read it and write my reply. (My eyes can take only so much computer time, and I sometimes prefer the printed page). I probably won't reply to you until tomorrow evening.

In general, however, I think I will have a reply rather than a rebuttal, as our two positions basicaly breakdown along the question of: what did GWB & Co believe the political ramifications of the choice of options? This is not a question either of us can really answer from our vantage points.

Fortunately, there is an opportunity for some ultimate clarity on this issue, however it will have to wait. I went to college with and keep in some touch with a very senior member of the Bush campaign and plan to ask him about this after the election. It would be inappropriate for me to do so before, and certainly inappropriate for me to use this as a point in my argument.

--Barry
 
Barry -

Above you posted the follwing:

One other thing: I don't think getting this through the states would be the slam dunk you do. This might just be one where we have to disagree. I genuinely feel that on this issue, the smaller advocacy groups are favored.

Bear in mind that to defeat ratification, gay advocates only need to win in 13 states in the legislatures. Nearly all of which took some action, but most of which couldn't get it passed. The large budgets much more favor the anti-gay groups in a direct-to-voters appeal.
One thing that's worth noting is that the FMA does not have the customary seven year expiration date on it that most recently ratified amendments have had. What this means is that there would be an unlimited amount of time for anti-gay activists to work to ratify the amendment. I think they could get 30 states right off the bat. That means they've only got to get 8 more states on board, and they have an unlimited amount of time to do it. Also, once a state ratifies, it cannot revoke that ratification.

These factors all strongly favor the anti-marriage groups. It's taken over 200 years to pass an amendment, but if there's a will...

On some issues, this translates into those more liberal attitudes becoming mainstream, on other issues it translates into the holders of the liberal attitudes becoming more conservative, thus maintaining a constant mainstream, so to speak.A fair point, to be sure. But if you grow up thinking your black/gay/Christian friend is your equal, do you really change your mind as you get older? I could see it on some other issues, like economic and security, etc., but on treating your friends and family equally under the law? I don't think so, but I could be wrong. There's a whole generation of kids who are growing up right now not thinking there is anything wrong with being gay. And more and more kids are growing up with friends who have gay parents. I just don't see them going backward in their support. If they do get more "conservative" on the issue, they'll probably make more "conservative" arguments in favor of same-sex marriage, a la David Brooks's arguments.

Would there even be any need to overturn the amendment in the future, if everyone is happy with the idea of civil unions?I really doubt that the people who support marriage now would get comfortable with the idea of discrimination being in the Constitution, no matter how long it was there. People didn't get comfortable with the 3/5ths thing.

In contrast, even California voters adopted a same-sex marriage ban by referendum, and the same thing will likely happen in Mass when it goes on the ballot, and already happened in Hawaii. That is: even in the three most gay-friendly states, the gay marriage issue is a loser in front of the broader population of voters.Hawaii went before voters way before there was even an attempt to win public support. Same thing with California.

Massachusetts may or may not see an amendment. My guess is that it won't pass the legislature next year. If it does, I'm leaning towards it not being approved by voters. There aren't an recent polls on the issue, but at the beginning of the year the polls showed opposition to an amendment. The earliest it could be on the ballot is 2006, giving pro-marriage forces a lot of time to work with. And a huge number of people will be married in the next two years. So the argument changes from, "should gays be allowed to marry" to "should we forcibly break apart gay families?"

Finally, it just occurred to me: time is not on the side of gays in the way that it may have been on the side of blacks: there is no mechanism for gay people to fundamentally increase their numbers, unlike any other constituency.Yes and no. The percentage of gays is unlikely to increase, but the number of people who have close relationships with open homosexuals is only on the rise. The polls consistently show that knowing a gay person significantly increases your likelihood of supporting gay rights. As the stigma goes away and gays become mainstream, eventually almost everyone is going to have a close relationship with someone gay.

It's interesting that the Abe Lincoln Black Republican Caucus (the gay black Republican group) actually broke with the LCR and did endorse Bush.Of course that "group" doesn't really exist, except for in the mind of the leader.
 
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