Category Archives: Gay Rights

Scalia’s Morality

As has been widely reported, Justice Antonin Scalia made a controversial–albeit illuminating–remark on Monday, during a speech at Princeton. In response to a student who asked him about previous anti-gay writings in which he had compared laws criminalizing homosexuality to those banning bestiality and murder, Scalia defended the comparison, saying that–while he wasn’t equating homosexuality with murder–it illustrated his belief that legislative bodies should be able to enact laws against “immoral” behaviors.

I am deathly tired of legislators and judges who define “morality” exclusively by what happens below the waist, and who confuse “tradition” with a moral compass.

Throughout his career, Scalia has devoted his undeniable brilliance not to an exploration of the human condition, the nature of morality or even the role of law in society, but rather to the creation of an elaborate intellectual defense of his prejudices.

Anyone who would equate sexual orientation–an identity–with murder–a behavior–fails Classification 101. It can never be immoral simply to be something: gay, female, black, whatever. Morality by definition is right behavior. And most moral philosophers begin that examination by asking a fairly simple question: does this behavior harm another?

Now, I know there are endless (legitimate) arguments about the nature of “harm,” but–Micah Clark and Eric Miller to the contrary–the mere fact that gay people exist and may be granted equal civil rights cannot be rationally considered harmful.

How moral we are depends upon how we treat each other. Sexual molestation is wrong whether the molester is gay or straight. Theft is wrong irrespective of the color, religion or sexual orientation of the thief.

And as many others have noted, tradition is hardly a reliable guide to moral behavior. Quite the opposite, really. War has been a human tradition. Slavery was traditional for generations. The submission of women lasted eons. The loss of these “traditions” is hardly a victory for immorality–although for old white guys like Scalia, I’m sure the loss of privileged status is cause for regret.

The job of legislatures is to pass measures needed by governing bodies–rules for civic order, taxation, service delivery, and the myriad other matters that may properly be decided communally. Allowing legislators to decide whose lives are moral is not only improper, not only an abuse of power, it is itself immoral.

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Give Me a Break!

My friend Bill Groth has been posting to Facebook bits and pieces of the amicus brief that Indiana’s Attorney General has filed in the Supreme Court in the Proposition 8 case.

“The decision below invalidating California’s traditional definition of marriage represents about as radical a departure from deeply ingrained American legal traditions and precedents as one can imagine….The result [of the 9th Circuit’s decision] is disintegration of perhaps the most fundamental and revered cultural institution of American life: marriage as we know it.”Next, he tells us why “traditional” marriage is so grand–only we straights can “beget”:

“A state may rationally confer civil marriage on one man and one woman in order to encourage the couple to stay together for the sake of any children that their sexual union may create. Traditional marriage focuses on protecting children and creating optimal childrearing environments, not on adult relationships. The male-female relationship alone enables the married persons—in the ideal—to beget children who have a natural relationship to both parents and to serve as role models of both sexes for those biological children.”

Zoeller next scolds the 9th Circuit for even daring to suggest Prop 8 was mean-spirited:

“[T]he Ninth Circuit’s unsupported and insulting insinuation [was] that California voters adopted Proposition 8 out of sheer bigotry against homosexuals….”

Oh, no–it couldn’t possibly be mere bigotry! After all, the arguments against same-sex marriage are so logical and powerful. (Actually, they are powerful. Like zombies, they just won’t die.)

Let’s go over this one more time.

“Traditional marriage” has always been between one man and one woman. Bullfeathers. Read that damn bible you keep cherry-picking, and see how many wives those patriarchs had. Look at world history, where plural marriages–polygamy–have been the norm in many countries. For that matter, look around the globe today, where a significant percentage of the world’s population continues to practice polygamy.

Marriage is for procreation. Double bullfeathers. In the past, marriages have been arranged in order to maintain business relationships, cement national treaties, protect property…Furthermore, if we didn’t let non-procreators marry, there would be a lot of lonely old folks and sterile singles. I certainly didn’t marry my current husband in order to procreate–we’d both done that with previous spouses.

Allowing same-sex couples to marry won’t do a single thing to diminish my heterosexual union. It won’t cause divorce rates to skyrocket (Massachusetts, interestingly, has the lowest divorce rate in the nation.) It won’t require elementary school teachers to talk about sexual orientation, or ministers to perform same-sex marriages. It won’t establish affirmative action quotas.

Despite the whining coming from the Right, same-sex marriage won’t undermine Western Civilization as We Know It.

What recognition of same-sex unions will do is acknowledge that gay men and lesbians are citizens, not criminals, and entitled to be treated equally under the law. And that is quite clearly what sticks in the craw of the “defenders of traditional marriage.” Recognition of that increasingly obvious fact is what leads most fair-minded people to the inescapable, albeit “insulting,” conclusion that opponents of same-sex marriage are simply bigots.

What infuriates me even more than these tired and flimsy justifications for homophobia is the news that my tax dollars are being spent by the Indiana Attorney General to file a brief that purports to represent the position of the Hoosier state. I’m pretty confident that Indiana citizens are closely divided on this issue. I’m even more confident that, if asked, a significant majority of us would tell Greg Zoeller to spend his time on the duties statutorily assigned to him, the tasks for which he is being paid.

He can indulge his prejudices on his own time.

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About Those Referenda….

Lots of encouraging things happened Tuesday.

Elections are always dicey propositions. People’s votes are affected by so many imponderables—I’d love to think, as someone who teaches public policy, that voters make their decisions after considering contending positions and evaluating them, but we all know better. Especially when measures affecting the lives of GLBT people are at issue, fear and homophobia and religious fanaticism have historically made a noxious—and effective—brew.

But not this year.

On Tuesday, same-sex marriage referenda were on the ballots in four states. In Washington, Maine and Maryland, voters endorsed marriage equality. In Minnesota, for the first time ever, they defeated an anti-marriage amendment.

Voters also reelected the first President who ever publicly supported the freedom to marry, along with a number of gay and gay-friendly legislators. In Wisconsin, they elected the first “out” United States Senator in American history. In a victory that particularly pleased me, Iowa voters rejected an effort to retire another of the Supreme Court justices who voted with the majority in that state’s freedom to marry case.

Now, let me be clear about one thing: fundamental rights should never be put to a vote of the electorate in the first place.  No one got to vote on whether the government should recognize my marriage, and it is constitutionally improper to give me the power to vote on anyone else’s. But since, as usual, no one listens to me and my “ilk,” those decisions were put to a vote. They had to be dealt with.

Before November 6th, I think it is fair to say that most GLBT activists would have been happy to see a win of just one of these four ballot measures. The advance of marriage rights has thus far depended primarily upon the courts and occasionally legislatures—before now, every time the issue has been put to a popular vote, the gay community has lost. Winning one of these measures would have been hailed as real progress, a break in the drumbeat of constant popular defeat. Two would have been real cause for celebration. I think it is accurate to say that no one expected to win all four.

So there was a lot to cheer about in this year’s election. Bigotry lost across the board, not just anti-gay bigotry. Despite a distressing amount of racism directed toward the President, he won handily. Latinos flexed their electoral muscles. Women refused to be sent barefoot and pregnant back to the kitchen.

As elated as many of us are, however, it is well to remember that elections are just signals of change, not change agents. A lot of people who thought that Obama’s 2008 election would usher in a new era were disappointed because they failed to understand the way the system (not to mention reality) works. We don’t elect monarchs in the United States. Checks and balances mean that no matter what the intentions of the people we put in office, in order to implement the policies they champion, they must work through systems that were intended to force negotiation and compromise—systems that aren’t working very well right now. Voting was just the beginning. Changing the world takes time—and more effort than most of us realize.

But right now, we’re entitled to take some time to savor the results of this election. We’re entitled to entertain the possibility—indeed, the probability—that America has turned an important corner, and that genuine equality for gays and lesbians is closer than it has ever been.

Right now, it’s time for high fives.

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Little by Little….

A federal appeals court recently became the second such court to declare DOMA–the federal “Defense of Marriage Act”–unconstitutional. The challenge was brought by an 83-year-old resident of New York State, where same-sex marriage is legal. When her partner–pardon me, her wife–died, DOMA allowed the IRS to assess an estate tax nearly 400,000 higher than she would have owed had her spouse been a man.

The court ruled that DOMA violates equal protection, by treating couples (all of whom are legally married in New York) differently, based solely upon whether the marriage partners are of the same or opposite sex. But the ruling did something even more important: it analyzed the case under what is called “heightened scrutiny.” If this part of the ruling holds up, it will make cases alleging discrimination based upon sexual orientation much easier to win.

Doug Masson has posted an excellent summary of the case. As he reports

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” “Substantially related” means that the explanation must be “exceedingly persuasive.”. The justification must be genuine, not hypothetical and not invented after the fact in response to litigation.

The Court rejected BLAG’s argument that Congress had an important interest in passing DOMA to maintain uniformity on the issue of marriage-related benefits in protection of the treasury. The court observed that Congress has historically allowed states to go their own way on marriage. (For example, rules about age, divorce, consanguinity, and paternity.) Indeed, the sudden federal intrusion into marriage is, itself, suspicious. (All the states-rights advocates have been clamoring for repeal of DOMA, yes?)

Another justification was preserving the historical understanding of marriage. But, the court observed, ancient lineage doesn’t protect a law where it lacks a rational basis. Miscegenation and anti-sodomy laws had pretty long historical roots of their own.

Another justification was encouraging responsible procreation. The court recognized that this could be an important government interest but did not see that DOMA advanced that interest.

DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

The Court also dismissed as “far-fetched” the idea that the laws passed by Congress might actually make people gay or effect their sexual orientation. It was also not persuaded by the idea that merely getting to use the extra-special word “marriage” would, on its own, promote stable opposite-sex marriages.

Because the court concluded that same sex married couples constituted a “quasi-suspect” class and because DOMA was not “substantially related” to an important government interest, the Second Circuit concluded, it must be regarded as being in violation of the Equal Protection Clause of the 14th Amendment.

The ruling was satisfying. What was not satisfying–indeed, what was very disappointing–was the role of Indiana’s Attorney General, Greg Zoeller, who led the group of states arguing for DOMA and its constitutionality. I have generally been impressed with Zoeller; unlike the hot dogs and culture warriors and know-nothings we seem to elect, he has come across as thoughtful and modest, and willing to abide by precedent. (I realize that complimenting a lawyer on willingness to abide by the law is a bit odd, but these days, the bar is set really low.) His willingness to fight for a discriminatory law in a case that did not directly involve Indiana–a case where he was a volunteer–was disappointing.

The bottom line, however, is that despite the efforts of Zoeller and those who agree with him, equality for GLBT folks is coming.

Little by little, the barricades are coming down.

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Speaking of Love…

A friend of mine takes some sort of twisted delight in sending me the Indiana Family Institute’s newsletters. I think he just enjoys my incredulous reactions.

The latest one was filled with “the usual suspects.” Planned Parenthood is prowling the state killing babies, the poor economy is another consequence of our departure from morality–or something. And of course, allowing same-sex couples to marry is no different from incest or pedophilia.

Really?

Are people really unable to distinguish between a relationship that rests on the mutual love and desire of willing, consenting adults and those in which a person in a position of power abuses that power to exploit someone younger and/or weaker?

I’m not a fan of government intrusion into private, consensual relationships. If you and your significant other get your kicks hanging from the chandeliers or making love in wet suits, it really isn’t the business of the state to intervene. If, on the other hand, realizing your fantasies requires the “participation” of children under the age of consent, government has the duty and obligation to prevent that. The difference isn’t that hard to see.

Those who insist that same-sex marriage is a slippery slope to a hellish society in which marriage itself has lost all value have been making that argument at every social turn. Divorce would destroy the family. Women working outside the home and birth control would thwart God’s plan.

These attitudes are part of a fantasy world–a remembrance of imagined times past when children weren’t born out of wedlock, grandma and grandpa’s marriage lasted sixty glorious years, and grandpa went to work every day to support a passel of kids (none of whom, of course, were gay). As social scientists remind us, that wasn’t the way it ever was. At the turn of the last century (1900), thanks to death and (common) desertions, the average marriage lasted 12 years. Fully a third of women were pregnant at the time of their very early marriage. Men had no legal obligation to support their children until the 1920s, and plenty didn’t.

Every social change makes people uncomfortable. Those who simply can’t deal with the discomfort–those who feel diminished by changes in the culture and by efforts to the include others at the table–are sad reminders of how fragile the human ego can be, and a cautionary tale about how and why people hate.

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