The conservative remnant on marriage equality: two possible outcomes

Maggie Gallagher hopes that opposition to gay marriage will go the way of opposition to premarital sex: unusual, but quaint and tolerated. Unfortunately for her, it’s more like opposition to interracial marriage: in a generation, it will scan as simple bigotry.

I’ve been thinking, since he posted it, about Jonathan Chait’s piece several days back regarding the anti-marriage-equality movement’s swan song. Alertly noting the tone of elegy and self-pity in Maggie Gallagher’s latest musings on her political activity, Chait wrote:

The surest sign of resignation is that Gallagher has redirected her focus from stopping gay marriage to preserving the dignity of her reputation and those of her fellow believers. She now presents her cause as a kind of civil rights movement to protect her fellow believers from the stigma of advocating bigotry and discrimination. “I worry when I get an email from a woman who’s a nurse in a hospital,” she told NPR, “who wrote a letter to the editor opposing gay marriage, and finds that she fears her job is in jeopardy.”

Jumping off of this: I can imagine two models for how opponents of gay marriage might be regarded in several years—say ten to thirty, depending on whether public opinion on this issue shifts as fast as it has recently or whether it hits a wall at some point. One would be more comfortable for gay marriage opponents. The other is more apt and more likely.

The first model would be that of sexual prudes: those who, consistent with (for instance) orthodox Catholicism, opine that premarital sex is wrong—or, yet a bit more ridiculously, that masturbation is wrong. (As I’ve blogged before, the former opinion is uncommon among the public but common among old Republicans; the latter is now pretty much restricted to comical Senate candidates and one noisy Supreme Court justice.) A belief that certain sexual practices (“sodomy”) are wrong, whatever the orientation of those practicing them, is, I guess, somewhere in between. Given that such prudery is unlikely, and decreasingly likely, to have much effect on law and policy, people who quietly hold such beliefs are pretty much tolerated, even in company where they’re considered eccentric, as long as they express those beliefs fairly quietly and respectfully. Their prudery is considered the natural result of being unusually religious and, probably, somewhat older. People who think this way are considered relatively unthreatening—and, crucially, relatively unbigoted in that their beliefs commit them, at least in theory, to placing constraints on themselves and people like themselves, not just on others. (Hypocrisy on this score is, rightly, socially censured.) And the lack of social support for their views has a salutary knock-on effect: outside backward areas of the South and Midwest—which I realize means about forty senators, but still—the sexual prudes pretty much resign themselves to private persuasion among those already sympathetic, rather than obtruding their opinions on those who have no interest in them.

A second model would be people morally opposed to so-called miscegenation: sexual relations or marriage between people of different “races.” That opinion, once dominant, is now marginal, and no more likely to result in legal penalties than sexual prudery is. Yet it’s not considered harmless or amusing. One reason is the persistence of non-legal penalties: in less enlightened parts of the country, as well as in the wrong neighborhoods in the enlightened parts, couples who scan as interracial are still met with taunts, or scowls, or sometimes violence. That’s not true of unmarried heterosexuals seen kissing too avidly, but it is still true of gay couples. Another is the inherent hatred involved. Thinking sex outside of marriage is icky makes you quaint and old-fashioned. Thinking sex across your favorite color boundary involves some sort of contamination makes you a racist.

Clearly, Gallagher et al. are hoping that opposition to gay marriage will end up like the first model, i.e. a minority opinion but one that the majority culture regards as outdated and silly rather than morally loathsome. But I think Andrew Sullivan has been right all along: it’s much more like the second model. While I grant that for people of a certain generation gay marriage was long unthinkable, the same used to be true of interracial marriage—and we don’t forgive people who continue to openly and aggressively flaunt their old prejudices on that. In a generation or so, people who think that their gay friends’ marriages are disgusting and that the children of those marriages will be scarred and tainted by them will be considered akin to those who think the same about marriages between whites and nonwhites.

Ms. Gallagher and those who think like her cannot be forced to give up their personal, private aversion to certain other people’s love and attachment. But they’ll eventually have to learn to keep their unwelcome and offensive opinions to themselves. I realize that this will be a slow and difficult process, but they’ve still got a little time before the norms change completely. So I advise them to start now.


Question for legal eagles re same-sex marriage rhetoric

Several times in the last few days I have heard advocates of same-sex marriage explain that they would have all the rights accorded to married couples except for the gender of their partner. But why isn’t it a more powerful anti-discrimination argument to say that they are being discriminated against not because of the gender of their partner but because of their own gender — that if they were of the opposite gender they could be legally married to their partner?

Hidden Time Bomb in the DOMA Case?

The Orwellian “Defense of Marriage Act” seems to have had a bad day with the Supremes yesterday, which is a good thing.  Let’s assume that the Court strikes down section 3, which bans federal benefits for same-sex couples, and does what the plaintiff wants, namely, make one’s marital status depend upon which state the couple is in.  Since Edith Windsor and Thea Spyer were in New York, and New York recognizes same-sex couples, they are married for federal purposes.  (It’s a bit more complicated than that, but for our purposes here, it’s good enough.).

That might raise more questions than it answers.

Suppose Molly and Sarah get married in California.  Then, for reasons known only to themselves, they decide to move to Oklahoma, which of course does not recognize same-sex marriage.  Then Molly dies and Sarah wants Social Security survivors’ benefits.  Does she get them?  The answer is not obvious.  Molly and Sarah were legally married in California, but they lived in — and were thus citizens of — Oklahoma.  Which state is the federal government supposed to listen to?

At the argument yesterday, Chief Justice Roberts immediately grasped the problem.  (He’s conveniently obtuse when it comes to things that are politically inconvenient to him, and never resists making absurd legal claims, but he is no dummy).  Say Ms. Windsor and her spouse had moved to North Carolina, he asked Roberta Kaplan, her lawyer.  Would they qualify for federal benefits?  No, said Kaplan: it would turn on domicile, not state of marriage.  But her answer hardly carries the force of law.

One could see why that would be the answer — it is the state of citizenship — but one could also see why it wouldn’t: it might interfere with the right to interstate travel, which the Court has repeatedly held to be a fundamental right.  If the answer is that benefits eligibility turns on the state that approves the marriage, then one can imagine the development of a thriving marriage industry in states that approve same-sex marriage.  (That industry has already developed, but now it would mean even more).

There is actually a third possibility, which might avoid the extremes but make things more complicated.  The answer might turn on the interpretation of the statute in question.  After all, as was mentioned yesterday, more than 1,000 federal statutory provisions mention marriage, and it could be a matter of statutory interpretation as to whether the marriage definition applies to the state of domicile or place of marriage.

But if that is the case, then it gives the Obama Administration important new power.  As every lawyer knows, the 1984 Supreme Court ruling in Chevron v. NRDC holds that courts must defer to reasonable administrative (i.e. executive agency) constructions of a statute.  President Obama could (and should) make it very clear that he expects agencies charged with interpreting statutes in their jurisdiction that mention marriage should interpret it to mean “place of marriage”.

Of course, the Court could answer this question in its opinion.  But if Justice Kennedy is the deciding vote, his practice is not to clarify these things, and in any event, the four centrist justices (Ginsburg, Breyer, Sotomayor, Kagan) will probably not agree to make it the state of domicile (Kennedy’s likely preference).  So it most likely will not be answered.

Put another way, even if the Court strikes down Section 3, this one ain’t over, folks.

Can’t make this stuff up

McCaskill quotes “faith, hope, and love” in support of gay marriage. Good news. Bad faith. Bad Greek.

Claire McCaskill endorses gay marriage. That’s an important sign. McCaskill knows Missouri, and if this is a winning position in Missouri it’s “game over.”

The partisan Democrat in me hopes the Supremes figure out a way to duck, and force the battle to be fought out, state-by-state, in referenda that will split the Republican coalition and alienate even right-leaning independents. If we were looking for a way to generate Presidential-level turnout in an off year, a bunch of referenda on gay marriage would be a good start. (However, that partisan Democrat isn’t all of me; on balance, I hope they do the right thing.)

But what you can’t make up is that McCaskill quotes First Corinthians 13:13 (“And now abide faith, hope, love, these three; but the greatest of these is love”) to justify her position. Yes, I know that the same passage gets used in lots of wedding ceremonies, ever since the Bible translators started translating ἀγάπη agape as “love” rather than the KJV “charity.” But that doesn’t make it any less silly.

I don’t say “love” is a bad translation; there isn’t a short English word that means what agape means, which as I understand it is a generalized goodwill. “Lovingkindness” seems more or less right, but as poetry it just doesn’t fit with “faith” and “hope.” But what it doesn’t mean is romantic love; the closest thing to that concept in Greek would be ἔρως “eros” (= desire).

If Saul of Tarsus was still thinking in Hebrew even as he was writing in Greek, perhaps the word he had in mind was “ahavah,” אהבה , which has the same ambiguity as “love” in English, being used both of religious devotion (“and you will love HaShem your god with all your heart) and of sexual desire (“Isaac loved Rebecca”). But since the word he actually wrote has no sexual connotation - and since Saul/Paul wasn’t actually much in favor of marriage, regardless of the gender identities of those being married - the quotation is far from apposite, both here and in the wedding ceremony.

Of course what’s really silly is the pretense that the Senior Senator from Missouri has been reading the Bible rather than the polls. St. Paul, after all, was just as strong on the virtue of “love” ten years ago. Yes, it makes sense to try to soften the blow for the churchgoers who will be dismayed by McCaskill’s new stance by acknowledging the authority of the Christian tradition. But the combination of bad Greek and bad faith is just a little bit hard to swallow.

God bless Julian Bond!

The civil rights hero makes a video for marriage equality in Maryland.

The civil rights hero, now Chairman Emeritus of the NAACP, has made a pro-marriage-equality video for the Maryland vote on Tuesday, where the African-American vote is likely to be crucial and some of the preachers are crusading against equality - using the same sort of nonsensical Biblical exegesis used by white preachers in the South to prove that Jim Crow was the Will of God - but where President Obama’s shift seems to have changed opinions within the black community.

That’s one in the eye for the right-wing concern trolls who tried to use Prop. 8 in California to stir up hatred between gays and blacks to help the cause of the racist/plutocrat alliance. “If we do not hang together, assuredly we shall all hang separately.”

Another Court of Appeals strikes down DOMA

When the DOMA case gets to the Supreme Court, will the Solicitor General be there on behalf of the United States of America, to defend bigotry? We get to decide November 6. Now tell me again why it doesn’t matter who wins?

The Second Circuit joints the First, and finds that discrimination by sexual orientation calls for heightened scrutiny. Good.

But of course this is going up to the Supreme Court. When it gets there, will the Solicitor General, on behalf of the United States of America, defend it? The voters get to make that decision November 6.

If on occasion I get just a mite testy with the people who insist that it doesn’t matter who wins, or that the choice that day is between evils, this is one of many reasons why. Yes, if I were a nicer person I’d be more polite about it, but not everyone has Harold’s saintly disposition.

Update Commenter Ken Rhodes writes:

I’m puzzled by the mention of the Solicitor General, defense of the DOMA, and the upcoming election, all together in that short paragraph. How are they related? Who defended the DOMA, on behalf of the government, in the two referenced Court of Appeals cases? Isn’t it the job of an attorney to represent his client, irrespective of his personal distaste?

More than a year ago, President Obama and Attorney General Holder decided that the law could not conscionably be defended (legal argument here).

Fox News and various Republican politicians accused Obama of tyranny and called for his impeachment.

But in fact his actions were not only clearly lawful but had plenty of precedent.

With DoJ off the case, the Republicans in Congress decided to spend $1.5 million of the moneey we keep being reminded we “borrow from China” to hire private counsel to defend the sacred right of bigots to enact their prejudices into law. They ought to be made to pay a political price for that decision.

The Subsidy of Marriage by Social Security

Josh Barro notes that marriage cannot be an entirely state issue because of the way in which it impacts things like Social Security and Medicare eligibility. Below is the majority of a post I wrote in September, 2011 on the subsidy of marriage provided by Social Security…..

Gene Steurle and Stephanie Rennane have a nice policy brief put out by the National Institute for Health Care Management on the lifetime contributions and benefits of Social Security and Medicare. This is mostly familiar stuff, with lifetime Medicare benefits consistently being several times larger than contributions to the pay-as-you-go program, and Social Security lifetime contributions and benefits being more similar for singles and two-earner couples. However, one thing jumped out from this figure (circled):

Continue reading “The Subsidy of Marriage by Social Security”

North Carolina Passes Amendment One

I am a proud North Carolinian, who has lived in this state for 40 of my 44 years (I was born on an Air Force Base in Mississippi, and did a post-doc in England). I am not surprised that Amendment 1 has passed tonight, since polls have shown this was going to occur for some time. However, as it has occurred, it makes me feel not angry, but sad, in the “we can do better than this” sense.

It is also the first time I have seen my kids be interested in politics, and my 11th grader especially has been passionately opposed to Amendment 1, and she is disappointed. It is hard to see her first interest in politics end in disappointment, but that is a part of life.

Continue reading “North Carolina Passes Amendment One”

Why I Voted Against North Carolina Amendment One

(cross posted at freeforall)

I voted against North Carolina’s Amendment One last week during early voting, and did so for the following basic reasons:

  • I think amendments to a state Constitution should be undertaken sparingly, and believe further that they should secure rights for persons and not limit them.
  • Because N.C. already has a law that bans same-sex marriage, I consider Amendment One to be mean spirited, piling on, and an attempt to introduce yet another wedge issue into the campaign.
  • Amendment One is broadly written, and its passage would likely do more than limit marriage options. For example, it could invalidate certain domestic partner unions that enable persons to get health insurance, etc. Duke University has been a leader in providing such benefits for its employees, and has taken a stand against the Amendment. The passage of Amendment One would likely have unintended consequences beyond the stated goal of proponents-to ban gay marriage-a goal that is already secured by state law as I noted (there are dueling commercials in the State saying this point is either true, or false).

I voted against the amendment for all these reasons.

Continue reading “Why I Voted Against North Carolina Amendment One”

Dunce Cap Department

The cardinal mocked a secular culture that “seems to discover new rights every day.”

“I don’t recall a right to marriage,” he said, describing marriage, instead, as a “call.”

Cardinal Timothy M. Dolan, 2012


Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

Loving v. Virginia, 1967