Monday, November 20, 2006

Why Movement to Ban Gay Marriage Is Doomed to Fail in the Long Run

Opponents Still Cannot Explain How Gay Unions Harm Heterosexual Marriages -- Or Why Banning Them Doesn't Unconstitutionally Enforce an Anti-Gay Religious Dogma

(Updated 12:15 a.m. EST Wednesday, November 21, 2006)
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By Skeeter Sanders

Governor Mitt Romney of Massachusetts is leaving office in less than two months. The one-term Republican governor purposefully chose not to seek re-election, apparently to focus all his energy on seeking the Republican presidential nomination in 2008.

Perhaps it was just as well that Romney chose not to seek a second term, for it is highly doubtful that Romney could have won it. In his four years in office, Romney proved to be a hard-line social conservative -- too hard-line for many residents of one of the nation's bluest, most socially liberal states.

Romney showed his true red-state colors Sunday when he said he would ask the state's highest court to order an anti-gay marriage amendment question onto the ballot if legislators fail to vote on the matter when they reconvene in January.

November 7 election: Gay Lose Seven of Eight Marriage Referenda

Nationally, it wasn't a good night for gay marriage supporters on Election Night, with anti-gay marriage amendments passing in seven of eight states, most by overwhelming margins. The lone exception was, ironically, Arizona -- the home state of "the godfather of the conservative movement," the late former Senator Barry Goldwater -- where a proposed amendment lost by the narrowest of margins, 51 percent to 49 percent.

Meanwhile the California Supreme Court agreed last Monday to hear an appeal by gay marriage advocates of an appeals court ruling that the California courts have no jurisdiction to define marriage, as 61 percent of California voters in 2000 declared marriage as a union between a man and a woman under the Proposition 22 ballot initiative.

The city of San Francisco, whose mayor, Gavin Newsom, has been outspoken in his support for gay marriage rights -- and whose own marriage, ironically, ended in divorce -- filed the appeal to the state's highest court, claiming that Prop. 22 authorizing only opposite-sex couples to marry is gender-based discrimination, which is banned under the California Constitution. A lower court had agreed, but an appeals court last month reversed that decision.

Can a Lame-Duck Governor Force a Lame-Duck Legislature to Pass Amendment?

Back in Massachusetts, Romney said he would file a legal action this week asking a justice of the Supreme Judicial Court to direct the secretary of state to place the question on the ballot if lawmakers don't vote directly on the question in a constitutional convention January 2, the final day of the lame-duck session before the new legislature is sworn in two weeks later.

The outgoing governor is an outspoken opponent of same-sex marriage who is expected to make his position the centerpiece of his long-shot presidential campaign.

But because both Romney and the current legislature are lame ducks, it remains to be seen whether the state's highest court -- with a four-to-three majority of its justices having twice already ruled that gay couples are entitled to marry under the Massachusetts Constitution's equal-rights amendment -- to order the outgoing legislature to vote on an amendment on the last day of its term.

Marriage Amendment Could Face Same Judicial Fate as Colorado's Ill-Fated Anti-Gay Amendment 2

Even if the legislature did pass the amendment -- a highly unlikely prospect, given that gay-marriage opponents lost seats in both the 2004 and 2006 election -- and if the voters ratified it in 2008, it would almost certainly turn the same-sex marriage issue into a federal case.

Gay-marriage supporters would promptly challenge the amendment in federal court as a violation of the U.S. Supreme Court's landmark 1996 Romer v. Evans decision that that states cannot deliberately deny gay men and lesbians constitutional rights enjoyed by all other Americans.

The U.S. Supreme Court has ruled numerous times in our nation's history that constitutional rights are sacrosanct and beyond the purview of the government and of popular opinion.

While voters in more than 30 states have voted overwhelmingly to ban same-sex marriage, either through statutory initiatives or state constitutional amendments -- including five of six states on November 7 -- the movement to outlaw gay and lesbian couples from marrying will ultimately fail in the long run.

Gay-Marriage Opponents Are Very Insecure Heterosexuals

Opponents of gay marriage have yet to satisfactorily answer two very important questions:

1) How does allowing gay couples to marry harm existing marriages of heterosexual couples? Every argument to date claiming that gay marriage harms heterosexual marriage has failed to provide any solid, concrete evidence that they do.

Quite the contrary, two years after same-sex marriages became legal in Massachusetts -- and six years after same-sex civil unions became legal in Vermont -- there is a wealth of evidence that the exact opposite is the case. Therefore, that argument is one that cannot be proven.

What really harms heterosexual marriage is jealousy, possessiveness and infidelity -- which lead to divorce. The notion that two people of the same sex who love each other and seek to spend the rest of their lives together with the benefits of marriage is a threat to the marriages of opposite-sex couples is utterly absurd -- the bleatings of a certain group of heterosexuals, mostly men, who are extremely insecure.

Banning Gay Marriage Is Inextricably Rooted In an Anti-Gay Religious Dogma

2) How can gay couples be prohibited from marrying without making an anti-gay religious dogma the law of the land -- which is strictly forbidden by the First Amendment separation of church and state?

Even archconservative Supreme Court Justice Antonin Scalia warned in his dissent to the high court's 2003 Lawrence v. Texas decision that struck down the nation's last remaining anti-gay sodomy laws that the ruling removes all legal justification to continue to bar gay couples from marrying.

Implicit in Scalia's dissent is the fact that the only justification that remains to uphold the ban is inextricably rooted in a religious dogma that condemns homosexuality as a sin. Unfortunately for gay-marriage opponents, the First Amendment's Establishment of Religion Clause does not permit the government to use such a dogma to serve as justification to bar two gay adults who are deeply in love with each other to marry.

Religious Conservatives Have Civil Marriage Wrongly Mixed Up With Holy Matrimony

It's no secret that the movement to ban gay marriage is dominated by religious conservatives. Indeed, the fight over gay marriage has become an even more fever-pitched crusade among the Religious Right than their more-than-35-year-old battle to ban abortion.

And therein lies the problem: Too many religious conservatives have confused the civil institution of marriage with the religious sacrament of holy matrimony. Contrary to popular belief, the two are completely separate entities.

In fact, religious conservatives have forgotten the historical fact that the institution of civil marriage was established around the turn of the 19th century in response to what at that time was the widespread refusal of religious institutions to accord the sacrament of holy matrimony to interfaith couples.

For example, the Roman Catholic Church refused for centuries to accord the sacrament of holy matrimony if either the would-be husband or wife was not a Catholic, unless the non-Catholic spouse converted to Catholicism (This bias would not end until the Second Vatican Council reforms in the 1960s under Pope John XXIII).

Civil marriage is, therefore, a creature of the state -- over which religious institutions have no jurisdiction. They have every right under the First Amendment to refuse to accord the religious sacrament of holy matrimony to gay and lesbian couples. But they have no constitutional right under that same First Amendment (Not to mention the Religious Test Clause of Article VI of the Constitution) to make their anti-gay religious dogma against same-sex marriage the law of the state.

Bans Also Violate Equal-Protection Clause of the 14th Amendment

Nor does the Fourteenth Amendment's Equal Protection Clause permit the government to deny to same-sex couples the equal protection of the laws; if the law allows opposite-sex couples to marry, it must also allow same-sex couples to marry. Otherwise, no one can marry.

The Supreme Court already has twice struck down laws that violate gay and lesbian Americans their Fourteenth Amendment right to the equal protection of the laws -- and there's no reason to believe that the justices, despite having a more conservative majority, will overturn those decisions. Indeed, rights rulings firmly based on the Constitution are almost never overturned.

Both the Romer v. Evans and Lawrence v. Texas decisions were based on the Fourteenth Amendment. Any future challenge to the gay-marriage ban that comes before the court will also be based on the Fourteenth Amendment -- and likely the First Amendment as well.

With Democrats in Charge of Congress, Forget About a Federal Amendment

Some opponents of gay marriage, including President Bush, have already seen the handwriting on the wall and have been pushing hard for a federal constitutional amendment to ban gay marriage. But it requires a two-thirds majority in both houses of Congress for a constitutional amendment to pass.

The Republicans lacked the necessary two-thirds majorities when they controlled Congress and the proposed Federal Marriage Amendment failed. Now that the Democrats will be in control of Congress, chances of the amendment passing are absolutely zero.

So it's no longer a question of if the bans on same-sex marriage -- both the federal Defense of Marriage Act of 1996 and all the state laws -- will be declared unconstitutional by the U.S. Supreme Court, but rather, when.

Bans on Gay Marriage as Absurd as Earlier Bans on Interracial Marriage

Sooner or later, the bans on gay marriages will suffer the same fate as the racist anti-miscegenation laws -- mostly in the South -- that banned interracial marriages. Next June, in fact, will mark the 40th anniversary of the landmark U.S. Supreme Court ruling, Loving v. Virginia, that unanimously declared those anti-interracial-marriage laws unconstitutional.

This blogger's parents were an interracial couple -- my mother was African American and my father was Native American. For the first 11 years of my life (I'm now 53), my mother's home state of Louisiana refused to recognize my parents' marriage -- and considered me illegitimate.

So I know from direct experience with my own family the absurdity of laws such as these. Sometime in the not-too-distant future, Americans will look back and wonder, "What the heck were we thinking back then?"

Meanwhile, In Canada, More Gay Couples Tying the Knot

Canadian gay and lesbian couples headed to the altar in unprecedented numbers in the past five months new statistics show. From the beginning of June through October of this year, there was a jump of 23 percent in the number of same-sex couples obtaining marriage licenses over the whole period since same-sex marriage became legal in Canada.

Prior to June 10, just over 10,000 marriage licenses had been issued to gay and lesbian couples, according to Statistics Canada, the Canadian government equivalent of the U.S. Census Bureau. But over the summer, 2,300 couples obtained licenses.

Continuing a global pattern among same-sex couples legally tying the knot, StatsCan reported, lesbian couples made up a solid two-thirds majority, while more than 80 percent of gay male couples who did so were over 40 years of age.

In Ontario, Canada's largest province, some 6,524 same-sex couples have now wed. The summer rush to exchange vows accounted for a 17 percent increase. French-speaking Quebec -- Canada's most socially liberal province -- saw a 35 percent increase over the five months. But the biggest jump was, surprisingly, in Alberta -- the country's most conservative province -- where the numbers increased by 40 percent.

“With each passing month, more and more same-sex couples are getting married,” said Laurie Arron, National Coordinator of Canadians for Equal Marriage.

PM Harper Determined to Reopen Marriage Debate, But Now Faces Opposition Even From Within His Own Party

In Ottawa, the minority Conservative Party government of Prime Minister Stephen Harper is expected to present a motion in the current session asking members of Parliament if they want to re-open the marriage debate. It fulfills a campaign promise to religious conservatives made by Harper but surveys of MPs show it is likely to fail.

The two smaller parties in Parliament -- the Bloc Quebecois and the New Democrats -- have pledged to vote in a bloc against the motion. All but about 30 MPs of the official opposition Liberal Party also have said they would vote against the measure. Opposition has arisen even within Harper's own party. At least 11 Conservative MPs have voiced their opposition to revisiting the issue.

Gay Marriage Opponents in Canada Struggling to Shore Up Flagging Support

Harper had intended to hold the vote in October but later delayed it as gay marriage opponents lobbied MPs to support the motion. But as time moves on, support for revisiting the issue is on the wane.

“The delay in calling a vote and putting this issue to rest makes it more and more unfair to talk about taking away the equal right to marry," said Arron. "Now that it’s almost December, the question is whether Mr. Harper will break his fall vote promise.”

Catholic and evangelical leaders -- who, unlike their American counterparts, have little political influence in Canada because Canadian society is much more secular -- say they are targeting about 50 MPs they say can be swayed to vote for reopening the debate. The United Church of Canada - the country's largest Protestant denomination - and gay rights groups have been lobbying the same group.

The UCC also has sent a letter to all 350 MPs in the House of Commons stating its support for equal marriage.

Same-sex marriage became legal in Canada last year with the passage of Bill C-38, the then-Liberal Party government's answer to a series of court rulings across the country that struck down the prohibition of gay and lesbian unions. Of Canada's four major federal political parties, only the Conservatives oppose same-sex marriage.

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Volume I, Number 54
Copyright 2006, Skeeter Sanders. All rights reserved.

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Aaron Jason Silver,
Fenneville, Michigan:

Marriage: a sacred institution?

The concept of gay marriage has been back in the news understandably because of the recent political campaigns that we have as citizens been barraged with. Fortunately, the elections are over but the issue about gay marriage is not going to go away because it is our right as gay American citizens.

The Republicans use it as a divisive tool to undermine any impression of Democrats having a sense of a moral compass. However, now with the Dems being unwilling to even discuss this constitutional right which we elected them to uphold, whose word can we now count on to do the right thing, not the popular thing?

We are all once again still hearing the same, tired arguments used about marriage as being a sacred or religious institution and, therefore, gay unions are not worthy of being legally sanctioned by any institution, whether a church chapel or otherwise.

If marriage were indeed a sacred or religious institution -- which seems to be the major argument presented by the Religious Right against the legalization of gay marriages -- why then can atheists be married legally? One therefore does not have to be religious.

Heterosexuals are also allowed to be married by the justice of the peace, at a drive-up window in Las Vegas or by a cruise-ship captain to receive God's blessing on their “holy” union of matrimony. Do they want to further blur the lines between separation of church and state by making an amendment against these forms of “non-traditional” styles of union, since they don’t necessarily have any religious affiliation?

Such unions can be performed by anyone that wants to attain that piece of paper that allows for one to marry heterosexual couples under nearly any circumstance imaginable. Heterosexuals can be married while skydiving, scuba diving or on a mountaintop. The circumstances or styles one chooses to become legally married are endless.

Many of the unions may have no religious overtones whatsoever, yet still be considered legal. Since these unions are inarguably legal, it would then seem me to blow a big hole in that same tired argument that the Religious Right continues to endlessly purport that marriage is a “holy” union whether one is a believer or not.

Another one of their overused arguments is that allowing gay marriages would also help destroy heterosexual marriages by making a mockery of it. I don’t think heterosexuals need our help in destroying “holy” matrimony. According to all statistics on the success of “traditional” heterosexual marriages [More than 50 percent of which end in divorce], they seem to be doing a fine job of that on their own.

I would truly like to hear a rational discussion on this issue and some rational reasons that would suggest that their fears are well-founded.

Thank you.

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(Last name and hometown withheld):

I am nearly 60 years old, a veteran of other fights for social justice. I agree with Skeeter that it's only a matter of time for us, but I doubt that I will live to see this happen -- certainly not in time to bequeath an estate and retirement accounts unencumbered with tax burdens for my sweetheart.

The ability to provide materially for one's loved ones is not simply a cold financial set of facts -- it is one of the ways a person can express their love and committment to the surviving partner. I expect to die being denied this. I hope it becomes a reality for those of you who have the time to wait -- and to fight.

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