After calling for a constitutional amendment against same-sex marriage without once mentioning the dreaded words “gay” or “lesbian,” President George W. Bush ended on a conciliatory note: “We should also conduct this difficult debate in a manner worthy of our country, without bitterness or anger. In all that lies ahead, let us match strong convictions with kindness and goodwill and decency.” This reminds me of Dame Edna Everage, who, after saying something horribly cruel about her bridesmaid Madge Allsop, habitually adds, “I mean that in a nurturing and caring way.”
The president’s announcement made official what was long anticipated: The culture war is now at center stage in the 2004 presidential election. To justify his decision, the president cited the recent Massachusetts Supreme Judicial Court ruling that nothing short of marriage would do for same-sex couples, and an order by San Francisco Mayor Gavin Newsom to the county clerk to issue marriage licenses to gay couples. But while these events may have influenced the timing of the president’s announcement, the push for the Federal Marriage Amendment (FMA) began long before. Leaders of Bush’s right-wing political base had already been assured of the president’s support on the issue.
Meanwhile, Sen. John Kerry, D-Mass., the Democratic front-runner as I write this just prior to Super Tuesday, is once again displaying his penchant for seizing both sides of every issue. On the one hand, he opposes FMA just as he voted against the Defense of Marriage Act (DOMA) in 1996. On the other hand, he supports an amendment to the Massachusetts state Constitution as long as it allows for civil unions. Kerry (or rival Sen. John Edwards, D-N.C., who also opposes both gay marriage and FMA) does have fair cause for wanting to thread this needle, since Karl Rove can be expected to do with gay weddings in 2004 what Lee Atwater did with flags in 1988. Or, as one friend of mine put it, Willie Horton is back, and he’s gay.
Anti-gay conservatives have had a field day. The stories predicting doom for the Democrats practically write themselves: Massachusetts liberals, a Boston convention, a Boston candidate — can you say four more years? Curiously, though, the president and Republican congressional leaders had until recently been in no hurry about an amendment. Conservatives are themselves divided on whether an amendment is needed and what it should say. Not only are prominent conservative voices such as columnist George F. Will and former Rep. Bob Barr, R-Ga., opposed to FMA for reasons of federalism, conservative columnist David Brooks strongly supports gay marriage. In Massachusetts, the state constitutional convention recessed for a month after two days of debate and close votes on variously worded proposals. Prior to the president’s Feb. 24 announcement, and despite the media frenzy, lawmakers had paused.
With the election eight months away, a closely divided electorate and a Republican president who has the Democrats motivated like nothing in recent memory, that initial caution was warranted. Considering how the president exasperated his supporters on the religious right with his months of hedging on FMA, it would appear he doesn’t need a reminder that the culture war did his father’s reelection effort no good 12 years ago.
Let’s step back, as the president said to Tim Russert. The religious right’s anti-gay obsession discredits conservatism and risks alienating the GOP from the political center that it needs in order to govern. There is not enough space in one essay to address all the arguments and shibboleths that the right wing hurls at gays; that would take an entire book. Here I will merely survey some of the highlights (or lowlights), and offer some examples.
“Or the legal incidents thereof”
The Federal Marriage Amendment, introduced by Rep. Marilyn Musgrave, R-Colo., states: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
Kindly notice what this proposed amendment leaves out. While purporting to be aimed at the defense of marriage, it entirely overlooks every single problem associated with heterosexual marriage. The amendment does nothing to stop no-fault divorce, or indeed prohibit divorce altogether, nor does it recriminalize adultery. Its aim is not to protect straight families, but only to attack gay ones.
Proponents of the amendment cannot even keep their stories straight. Some insist that the amendment would not prohibit states from passing civil union laws, while others want to ensure that all such “marriage lite” provisions, by whatever name, are barred nationwide. Under the Musgrave amendment, it is hard to see how any civil union could withstand a court challenge. If no state law can be construed to require conferring the legal incidents of marriage upon gay couples (who are barred by the amendment from marrying), civil union laws would be rendered null and void, since the legal incidents of marriage are precisely what civil unions are designed to provide.
Alternatives to the Musgrave wording are now emerging. The struggle that will likely ensue over competing texts will work against the president’s call for prompt action. One goal unites the rival camps: A desire to stop any more smiling gay couples from emerging with marriage certificates from city halls across the country.
Interpretation and “judicial tyranny”
Conservatives have made much of the distinction between judges who interpret law and judges who “legislate from the bench.” To listen to them, you would think that the judicial process was purely mechanical. As University of Michigan law student Steve Sanders describes this notion: “You take the relevant inputs (facts, precedents, statutes, whatever), ‘apply’ some law, and out pops objective, principled justice. A few more advances in Westlaw and we might not even need human judges.” As Sanders observes, “This provides cover for conservatives to appoint their own judges — many of whom are committed not to some tedious process of cranking the legal machinery, but rather to making law that reflects their policy preferences.”
What the cries of “judicial tyranny” conceal is the fact that people have legitimate differences over interpretations of constitutional principles, the application of laws, and concepts of justice. Calling a judge “activist” is not the same as refuting his legal argument. As Sanders, who maintains the Web site Gay/Lesbian Politics and Law, observes of the recent Massachusetts SJC ruling on same-sex marriage, “I have yet to hear a conservative political or legal commentator engage the history, findings, or logic of the actual Massachusetts opinion.”
Why is it judicial tyranny when a court ruling doesn’t go your way? Was Brown vs. Board of Education a case of judicial tyranny? How about Griswold vs. Connecticut, the landmark ruling on contraception? I can understand the passion about Roe vs. Wade, but how can a ruling like Lawrence vs. Texas (overturning sodomy laws), which harms no one and lifts people up, be called tyranny? Why should one group’s fundamental rights be subject to a majority vote, when everyone else takes those rights for granted? I realize that there are sharply different views about what rights are fundamental — different interpretations of the due process and equal protection clauses, for example — but that’s just my point: One side does not hold a monopoly. Ideological differences do not improve their pedigree by being dressed up as matters of judicial philosophy. The legal issues involved in the gay marriage dispute are complex, and must be carefully examined rather than bypassed with a hasty amendment that seeks to cut the Gordian knot.
Shoddy scholarship and pseudoscience
Anti-gay advocates should be embarrassed by the quality of what passes for scholarship coming from their side. A case in point is the Spring 2002 issue of Regent University Law Review, which is entirely devoted to attacks on homosexuality. In one article, Dale M. Schowengerdt, faulting the work of gay-marriage expert William Eskridge, acknowledges, “No one will argue that homosexuality has not existed” — then cleverly cites the condemnations in Genesis 19:1-29; Romans 1:24-27; 1 Corinthians 6:10; and 1 Timothy 1:10. Not surprisingly, he leaves out 2 Samuel 3:2-5; 1 Kings 11:3; Deuteronomy 22:13-21; Ezra 9:12; and Mark 10:9 — which concern the right to take multiple wives and concubines; the requirement that nonvirginal brides be executed; and prohibitions of mixed marriages and divorce.
Schowengerdt quotes fellow Eskridge debunkers Peter Lubin and Dwight Duncan, who criticize Eskridge’s footnoted references to what they consider obscure civilizations, saying, “Bullied by footnotes, the reader’s critical faculties surrender without a fight.” Oddly enough, this observation is made in one of Schowengerdt’s 136 footnotes.
On the uniqueness of heterosexual marriage, Schowengerdt writes, “No other combination but man and woman involves the unique sexual complementarity of the one-flesh union upon which the survival of the human race depends.” Reading this, one would think that the entire human race were about to “turn queer” and stop reproducing, despite considerable evidence to the contrary.
Regent’s president and chancellor, the Rev. Pat Robertson, is known for regularly proclaiming his close personal relationship with God; praying for Supreme Court justices to die; and defending his erstwhile mining business associate, indicted war criminal Charles Taylor of Liberia. In 1998, Robertson warned that God would punish Disney World for hosting “Gay Days” by sending a hurricane to hit the park in Orlando, Fla. As God would have it, however, Hurricane Bonnie that year turned away from Orlando and hit Virginia Beach, where Robertson’s ministry and university are headquartered. In 2003, Robertson’s televised prayers on “The 700 Club” failed to divert Hurricane Isabel. Perhaps God was watching another channel.
For many years, a primary source for anti-gay statistics has been psychologist Paul Cameron, who was expelled by the American Psychological Association in December 1983 for using unsound methods and misrepresenting the work of others. His Family Research Institute publishes pseudoscientific reports claiming that gay parents harm children, gays rape and murder children, and gays have a dramatically shorter life expectancy. His “research” has been used by syndicated columnists, members of Congress, and Defense Department officials. In November 1997, former Education Secretary William Bennett stated, both on ABC’s “This Week” and in the Weekly Standard, that the average life expectancy for gay men was 43 years. The source of this bogus fact was Paul Cameron.
A work of questionable scientific merit that has been seized upon recently by the religious right is “The Man Who Would Be Queen,” by J. Michael Bailey, a psychology professor at Northwestern University. Bailey’s errors include accepting old stereotypes of gay femininity and relying on wildly unrepresentative samples, such as the men he found at Chicago’s gay dance bars. The book was praised by John Derbyshire, a virulently anti-gay contributor to National Review.
One argument that is often made against gay people is that homosexuality is unnatural, existing nowhere else in nature. This was disproved by Bruce Bagemihl’s 1999 book, “Biological Exuberance: Animal Homosexuality and Natural Diversity,” which surveys scholarly studies documenting homosexual behavior in 450 animal species. Yet when we show that homosexuality is observed throughout the animal kingdom, our opponents turn right around and say that doesn’t make it right. “Since when is animal behavior the standard for humans?” we are asked. I quite agree, but will these people please make up their minds? Speaking of unnatural things, there is nothing natural about technology, medicine, literature or the arts. The argument from nature is really just a ploy designed to obscure the fact that homosexuality is indeed normal for a small portion of the population.
Those preparing to apply gay-related scholarship to matters of public policy should first consult the Gay Directory of Authoritative Resources, a listing of experts working in various gay-related policy areas, published by the Institute for Gay and Lesbian Strategic Studies.
Defending a sacred institution
Both President Bush and Sen. Kerry have talked about marriage as a sacred institution, but the government is not charged with defending the sacred. That is the job of religious leaders. When the sacred needs politicians to defend it, the sacred is in big trouble. The surest way to protect the sacredness of something is to keep politicians as far away from it as possible.
The moral authority of some religious leaders is seriously called into question by some of their own statements. In a 1986 pastoral letter on homosexuals, Vatican doctrinal chief Joseph Cardinal Ratzinger deplored anti-gay violence, only to justify it: “[W]hen civil legislation is introduced to protect behavior to which no one has any conceivable right, neither the Church nor society at large should be surprised when other distorted notions and practices gain ground, and irrational and violent reactions increase.” Thus we have the princes of the Church making excuses for thugs.
But this line of argument is not only used against gays. When a record number of women in Spain were murdered by their husbands and boyfriends in 2003, the Spanish Roman Catholic bishops responded with a pastoral letter that fingered the sexual revolution as the culprit.
Opponents of same-sex marriage like to say that we are trying to overturn six millennia of tradition. But this steady-state portrayal of marriage ignores the fact that notions of marriage, courtship, love and sexuality have varied considerably over the centuries and across cultures. Women used to be treated little better than chattel; does the fact that this was a long tradition make it preferable to the standard of equal partnership that we have today? Apparently so, according to the Southern Baptist Convention. In 2000, the Southern Baptists, citing biblical authority, adopted a revised summary of their faith that declared: “A wife is to submit herself graciously to the servant leadership of her husband even as the church willingly submits to the headship of Christ.” Unfortunately, the same biblical author cited by the Baptists, Paul, also instructed slaves to obey their masters. As usual, the fundamentalists conveniently pick and choose which holy passages they care about, while acting as if the rest of us don’t have the same privilege.
The fundamentalists, of course, are free to believe what they like, thanks to the First Amendment’s “wall of separation between Church & State” described by President Jefferson in his 1802 letter to the Danbury Baptist Association. What they are not free to do is impose those beliefs on the rest of us. Endless rhetoric to the contrary notwithstanding, the present dispute is not about sacred marriage as ordained by churches but civil marriage as ordained by government. That being said, the moral arguments against homosexuality have been addressed and refuted rather thoroughly by ethics professor John Corvino in a series of articles that are available on the Independent Gay Forum.
Invoking the popular will
Rep. Jim DeMint, R-S.C., said on Fox News on Feb. 15 that 60 percent of Americans oppose gay marriage. But the day before the president’s announcement, the National Annenberg Election Survey released a poll showing that a plurality of Americans opposes the Federal Marriage Amendment, by a margin of 48 percent to 41 percent. Setting aside dueling poll numbers, 60 percent (or 64 percent, another recent figure) is short of the two-thirds needed in both houses of Congress and the three-fourths of state legislatures needed to ratify a constitutional amendment. To be sure, if you had a simple majority of public support in two-thirds of all congressional districts, and all members slavishly voted according to the polls, it could still pass the House. But there was a lot more than 60 percent public support for an amendment to ban flag burning, and it hasn’t happened.
An effort to rush through an anti-gay amendment depends more on stoking fear than on engaging reason. The anti-gay right has long traded more in grotesque caricatures than arguments, as with the Christian Coalition videotape shown at rallies in 1996. According to author Bruce Bawer, that video “cut back and forth between idealized Hallmark card images of wholesome-looking brides and grooms … and Gay Pride Day shots of screaming, bare-chested leathermen.” One reason for the radical right’s hurry over FMA may be a recognition that the more Americans are familiar with ordinary gay people, the less effective the scary images will be.
Many conservatives, to show the popularity of their position, mention DOMA and the 38 statehouses that have passed similar laws for their states. So what problem is the proposed constitutional amendment supposed to solve? Until a federal court rules the 1996 law unconstitutional, no state is required to recognize a same-sex marriage performed in another state. So even if you support amending the Constitution to resolve a social dispute, it clearly is premature right now. As The Washington Post editorialized on Feb. 13, 2004, “[A]mending the Constitution to reverse court decisions that have not been issued in cases that have not been filed is wrongheaded.”
If far-right leaders were truly committed to the democratic process instead of trying to provoke a stampede, they would be content to allow different states to make their own decisions, as DOMA provides. But their real opinion of the electorate comes out when they don’t get their way. Paul Weyrich, president of the Free Congress Foundation, wrote on Oct. 30, 2000: “It is already bad enough that so many uneducated, ill-informed and, when it comes to the candidates, just plain stupid, voters are going to be in that booth Nov. 7. We don’t need any more of them, thank you. This Republic is fragile enough as it is.”
Luckily, as with Anita Bryant and her anti-gay “Save the Children” campaign in 1977, the radical right’s concerted attacks against gay families are not only energizing their base — they are energizing gays and our allies as well.
Acknowledging that gays exist
Jonathan Rauch of the Brookings Institution writes: “Something really new, without historical precedent, is happening in America. Today, for the first time, a majority is coming to realize that homosexuals actually exist: That we’re not just heterosexuals who need treatment or jail. This realization will, must, and should drive change in a society whose institutions are premised on the notion that homosexuals do not actually exist.” Rauch argues: “Now that we know that homosexuals exist … the extension of the nuptial contract to them is not a sundering of tradition but an extension of it.”
Stanley Kurtz writes in National Review Online: “The real source of the challenges of gay life is the problem of sexual difference. It is terribly difficult to grow up with a different sort of sexuality than most of the world around you. Marriage does not cause this problem, and it cannot solve it.” But the problem for gays is not in the difference itself but in the social stigma and legal discrimination directed at the difference. Jonathan Rauch, who has debated Kurtz on the issue, characterizes Kurtz’s position thus: “I don’t believe homosexuals can handle marriage responsibly. And they should never be allowed a chance to prove me wrong. Sorry, gay people, but that’s life.”
Gays do not need Kurtz’s patronizing assurances of “compassion for the sorrows and difficulties of gays,” sorrows that he seeks to perpetuate by denying our families legal recognition and protection.
This is not a purely abstract matter — real lives are affected by treating gay families as strangers under the law. One problem that can only be rectified by federal recognition of gay relationships is that of binational couples, of which I myself am a member. Bruce Bawer, a gay American writer whose partner is Norwegian, emigrated to Norway in 1999 because that was the only way he could be with his partner. “Obviously my partner and I are far luckier than most international gay couples,” Bawer writes. “His homeland recognizes same-sex unions, and I have a job I can do anywhere. Nonetheless, the stresses — and expenses — we’ve endured in order to live together legally would have torn many couples apart. The logic underlying civil recognition of marriage is that it strengthens social stability; U.S. immigration policy would seem to be driven by a sadistic zeal to destabilize gay families.”
In Washington, D.C., where I live, a recent report by the Gay and Lesbian Activists Alliance shows that there are 212 rights and responsibilities associated with marriage under District of Columbia law. Some of these could be conferred upon gay families through domestic partnerships or civil unions, assuming that the U.S. Congress does not stomp on any effort by the District’s elected officials to do so. On the other hand, federal law, according to a recently updated report from the General Accounting Office, has 1,138 benefits, rights and privileges contingent on marital status. None of those may be gained through domestic partnerships or civil unions. Anything short of full marriage will leave gay families separate and unequal.
There is an unintended consequence as well. The various legal alternatives to civil marriage that are springing up across the country do indeed create a “marriage lite” that competes with marriage. Many such alternatives are open to straight couples as well as gays. As a result, some couples will inevitably accept fewer protections in exchange for fewer responsibilities. William Eskridge writes: “[P]eople who seriously value long-term, mutually committed relationships as the best situs of human flourishing and childrearing ought to be concerned that these new institutions make it easier for couples to enjoy many state benefits without as much state-supported obligation. These laws not only make marriage less special, but they lessen the difficulty of divorce. That should trouble the religious traditionalist and the gay marriage proponent alike. Thus, if traditionalists truly want to preserve marriage — not just homophobia — it’s time for them to join forces with the gay-marriage activists in a common cause.”
Once more into the breach
Few can remember the nomination acceptance speech given by President George H.W. Bush at the 1992 Republican National Convention. Few can forget the speech given by his defeated rival, Patrick J. Buchanan, from the same podium. Many factors contributed to Bush 41′s defeat that year, but one factor was the angry, fanatical face that Buchanan had put on the Republican Party, in stark contrast to the president’s more moderate image and rhetoric.
Buchanan’s targets were many: Abortionists, women in combat, environmentalists, activist judges, and opponents of public funding for religious schools. As he had done so often as a columnist, however, he reserved particular scorn for gays. “Yes, we disagreed with President Bush, but we stand with him … against the amoral idea that gay and lesbian couples should have the same standing in law as married men and women … There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself.”
The choice it makes on whether and how to fight that culture war is also critical to the kind of party the GOP will be. After doing his damage in 1992, Pat Buchanan ended up bolting the party some years later and mounting a third-party candidacy. The fundamentalist Christian right — the constituency of Judge Roy Moore and other apocalyptic preachers — will never be satisfied short of remaking the entire country in their own theocratic image, which is impossible in a pluralistic Western democracy. Yet continuing to let itself be held hostage to these fanatics will be ruinous to the party’s long-term mainstream appeal.
Some of the most energetic Republican activists in recent years have been the Log Cabin Republicans, whose viability as the nation’s largest organization of gay and lesbian Republicans would be called into question by passage of FMA. In a press statement following the president’s announcement on Feb. 24, Log Cabin called the proposed amendment “a declaration of war on gay and lesbian families” and vowed an all-out fight against it.
There is nothing conservative about demonizing a group of honest, hard-working American taxpayers and making them strangers in their own land.
To those who persist in denying the reality and legitimacy of gay people’s lives, our sexual orientation is a psychological condition, a pathology, a sin, a crime, a behavior, a choice — anything but a constitutive part of who we are, the same as with heterosexuality. From this perspective, our right to life, liberty and the pursuit of happiness is not God-given, as it is for everyone else, but instead belongs in the hands of doctors, ministers and prosecutors. The fact that we are still standing after such an onslaught is a tribute to our strength, our American grit and our determination to be full citizens.
On Feb. 12, 2004, two days before their 51st anniversary, Phyllis Lyon and Del Martin were the first same-sex couple granted a marriage license by the San Francisco county clerk. Lyon and Martin are pioneers of the gay rights movement, and those of us for whom they began paving the way five decades ago were electrified by the image of this venerable couple, 79 and 83 years old, respectively, officially sealing their union at last. For them and the thousands of couples who followed them, there is no going back. A court may invalidate the licenses, but a powerful idea has been given life that can never be taken back.
This is our Rosa Parks moment: an act of civil disobedience that dramatically exposes an injustice. The gay couples going to San Francisco City Hall, and their counterparts and supporters across the country, follow in the footsteps of the participants in the Montgomery bus boycott. They are helping our nation, in the words of Dr. King, to live out the true meaning of its creed: We hold these truths to be self-evident, that all men are created equal. It would be most unwise, and a stark departure from its origins, for the party of Lincoln to stake its future on holding back that tide.