same-sex marriage – Page 10

Mike Pence–running on retrograde

The IBJ reports that Mike Pence is coming back to Indiana “to fight Washington, D.C.” The paper noted that Pence was light on specifics, but did promise to fight health care reform and federal climate change legislation.

In what alternate universe do candidates who’ve spent a major part of the past decades as part of the Washington, D.C. establishment run on a platform to fight Washington? On what planet do candidates ask for votes on the basis that they’re against healthcare and the environment? (Vote for me! I’m in the pocket of the insurance lobby and I’m a climate-change denier!)

You have to give him credit for consistency, though–he’s AGAINST abortion, AGAINST same-sex marriage, AGAINST providing healthcare to those who can’t afford it or who’ve been denied coverage for pre-existing conditions, AGAINST stem-cell research, and AGAINST efforts to stop environmental degradation. Perhaps his slogan should be “Mike Pence: against progress and the people of Indiana.”

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What Planet is This?

Never in a million years did I think I’d write what I am about to write: progress on gay rights and same-sex marriage is the only bright spot in an otherwise dismal political landscape.

Yes, you read that correctly. Think about it.

Within the past couple of months, the Justice Department concluded that DOMA is unconstitutional, and announced that it will not defend it in court. The silk-stocking law firm hired by the Republican troglodytes in Congress to defend the measure backed out, citing its own commitment to gay equality.

In the last few weeks, I’ve read an impassioned essay by a conservative Evangelical pastor berating his fellow Evangelicals for their political activism against same-sex marriage and taking them to task for hypocrisy. I’ve seen a You Tube of a young Republican (and boy, are they rare) testifying to a state legislative committee in favor of same-sex marriage. I’ve seen two polls conducted by respected national opinion research firms, both of which found a slight majority of Americans in favor of same-sex marriage. And most recently, this news item appeared on the ABC News website:

“The Navy will allow same-sex couples to wed in ceremonies on its bases and officiated by Navy chaplains after the “don’t ask, don’t tell” policy is officially repealed, according to new training guidelines published last month by the Navy’s chief of chaplains.”

This ship has sailed. There will be rearguard actions, there will be setbacks, but the war is over, and the good guys won.

Unfortunately, the rest of the country is going to hell.

State legislatures are passing increasingly insane measures. In Texas, the legislature has overruled law enforcement and the administrations of the state’s universities, and authorized students who are so inclined to carry guns on campus. (That should “shoot down” their academic recruiting—nothing as comforting as knowing that the student you just failed is mad as hell and packing heat…). Arizona was just the first of several states to pass anti-immigrant measures that—whatever their highly dubious merits—they know to be unconstitutional. (Profiling aside, the Constitution makes immigration an exclusively federal issue.) Here in Indiana, where I live, in addition to passing our own version of such a bill (over the strenuous protests of our largest employers), the legislature passed–and the Governor signed—the nation’s most restrictive abortion bill, which among other things de-funded Planned Parenthood, the only provider of healthcare services for some 22,000 low-income women. (The fact that denying two million dollars to Planned Parenthood will cost the state four million dollars in federal family planning money didn’t matter any more than the health of Indiana’s poorest women mattered.)

I won’t even mention the efforts of Governors in Wisconsin, Ohio and Michigan to deny public sector workers the right to engage in collective bargaining, or their wars on public schools and teachers. Or the states that have passed their very own “birther” bills.

When you look at Congress, it’s even worse. The 2010 elections swept a large number of absolutely crazy ideologues into office, where they are busily trying to abolish Medicare and Medicaid, cause the national government to default on its obligations by refusing to raise the debt ceiling, voting that climate change doesn’t exist (I kid you not!) and engaging in all sorts of other mischief, the consequences of which they clearly do not begin to understand.

Seriously, if it weren’t for the progress on gay rights, there’d be no progress at all. And if that isn’t enough to make you head out for the nearest bar, I don’t know what is.

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No Rites, No Rights

Those of us who argue for same-sex marriage typically refer to the 1008 or so rights that accompany state recognition of marriage. The rights most often discussed are concerned with hospital visitation, taxation and inheritance, and those inequities are particularly galling.

But there are lots of other rights that are denied to GLBT folks who cannot marry—and even to those who live in states that do allow same-sex marriage, thanks to the unwillingness of the federal government to recognize those marriages for purposes of federal law. Immigration law is an example.

Back in my days as Indiana’s ACLU director, I had a visit from a twenty-something young man (let’s call him Scott) and his lover, who was from El Salvador (let’s call him Juan). They had met on a student exchange program of some sort, and fallen in love. They wanted to make a life together, preferably in the United States. But the young man from El Salvador was ending the term of his most recent visa, and immigration lawyers had told him there was nothing they could do—that if he wanted to immigrate to the U.S., legally, he would have to go home, apply and wait. If memory serves, his likely wait was something like fourteen years.

Scott’s American parents were supportive. They offered to legally adopt Juan. That didn’t sit well with Juan’s parents, not to mention some pesky legal impediments to what was a pretty creative—or desperate—approach. At that time—and probably still today—an equal protection lawsuit was untenable. The last I heard, the couple—consisting of two highly skilled workers who would have been valued members of the workforce had they been straight—was living in El Salvador.

Had Juan been “Janice,” the scenario would have been far different.

Thirty years ago, our daughter fell in love with a non-citizen. They married, and as the spouse of a U.S. citizen, he has lived in the U.S. legally ever since. No problem.

Unfortunately, Scott and Juan ran into two deeply-entrenched bigotries: one against same-sex couples, and one against Hispanics.

It is unnecessary to recount the current efforts in Arizona, Indiana and elsewhere to marginalize and harass Hispanics. The rhetoric is all about “illegals,” but the legislative measures are not so narrowly targeted. Meanwhile, my son-in-law has lived in this country for over 30 years without ever encountering anti-immigrant animus. Why? Here’s a clue: He is British, and very white. His accent is considering charming, even “classy.”

People are people. There are certainly undesirables who want to come to America (not to mention our homegrown crop), but they are undesirable for personal reasons: drug habits, criminal histories, contagious diseases, likely inability to find gainful employment. None of these reasons has anything to do with sexual orientation or country of origin.

In our interconnected world, where international travel is easily accessible and growing exponentially, people from different countries will fall in love. It makes no sense to treat those couples differently based upon their sexual identity or birthplace. These distinctions are not based on thoughtful policies, they are not enforced in order to make our country safer or to protect our economic well-being. They are based purely on prejudices that we would do well to discard.

Until we do, the Scotts and Juans of this world will continue to get the short end of the stick.

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What If They Held an Election, and Reasonable People Came?

This has been a pretty contentious session of the Indiana legislature, and one of the most divisive proposals has been the renewed effort to include a ban on same-sex marriage in the Indiana Constitution.

The amendment is really just a gratuitous effort to marginalize gay citizens, since we don’t have same-sex marriages in Indiana. Proponents want a vote on the issue, not because it is appropriate in our system to vote on other citizens’ fundamental rights–it isn’t–but in order to make clear that the majority of citizens in Indiana don’t like gay people.

They may be too late.

Indiana Equality Action recently commissioned a poll of Indiana citizens on attitudes toward the proposed amendment. The results were shocking–in a good way. Forty-seven percent of Indiana residents oppose the amendment, while 43% favor it. Even more surprising, 65% of self-described Republicans and conservatives opposed it, and 41% of seniors. More predictably, 67% of young voters opposed it.

I want to be clear: opposition to the amendment should not be equated with support for same-sex marriage. (The numbers show progress, but not that much progress!) However, there are plenty of compelling reasons to oppose constitutionalizing discrimination, even when you don’t particularly like the folks who are being singled out, and obviously those reasons have convinced a lot of people that this amendment is a bad idea. The poll also confirmed that Indiana citizens have much higher priorities than bashing gay people: the economy and jobs, education, the state budget, health care, crime and drugs, and taxes all came in well ahead of gay marriage.

Particularly interesting is how quickly attitudes on this issue have changed, even in staid, conservative Indiana. Clearly that’s one of the reasons the usual suspects have been so desperate to get this amendment on the ballot–every year it is delayed, its prospects for passage dim further.

If the proposal passes this year, as expected, and if a separately elected legislature passes the identical language, it will go before the Indiana electorate for a vote. That means that voters first chance to weigh in on the issue will be nearly four years from now.

I wouldn’t want to bet on the outcome.

An Idea Whose Time Has Gone

The Indiana General Assembly is once again debating whether to amend the state constitution to ban same-sex marriage. That debate has been criticized as a distraction from the State’s pressing fiscal problems, and it is. But the proposal, HR6, is also bad public policy—whether or not one approves of same-sex marriage.

In my law and policy class, I employ a standard framework for analyzing proposed laws. The threshold question—required by the Constitution’s limitation on the powers of government—is whether the subject-matter falls within the proper scope and authority of the state. If it does, we investigate further, testing whether there is broad consensus on the existence and nature of the problem to be solved, whether the proposed law will solve the problem, and whether there are likely to be unintended negative consequences if the measure becomes law.

Applying that framework to HR6 is illuminating.

The regulation of marriage, in our system, is a state responsibility, so HR6 arguably meets that threshold. It’s all downhill from there.

Broad social agreement about the need for a law is an element of legitimacy. (That’s why people debating new policies point to polls showing support for their position.) In this case, whatever consensus there may once have been against same-sex marriage is demonstrably past-tense.

Same-sex marriages are legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C. New York, Rhode Island and Maryland recognize same-sex marriages conducted elsewhere. Several other states recognize civil unions. Religious doctrine is equally fragmented and increasing numbers of churches and synagogues bless same-sex unions. Surveys of public opinion show a public that is almost equally divided on the subject.

Will passage of HR6 solve the problem? No.

Even if one believes that same-sex marriages are a “problem,” enacting HR6 will change nothing. Indiana law currently prohibits recognition of such marriages and that prohibition has been upheld by our courts. The only way we’ll get same-sex marriage in Indiana is if the U.S. Supreme Court rules that the Equal Protection doctrine requires it—and if that happens, a state constitutional ban would be unenforceable.

And what about those unintended consequences?

Several of Indiana’s largest employers have warned that enactment of HR6 will hobble them as they compete for the best employees. Economic development professionals warn that passage will make it more difficult to attract new businesses to the state.

Public employers—universities and municipalities with policies or ordinances granting health insurance and other benefits to employees—fear that HR6 will invalidate those benefits. (At IU, that would make us considerably less competitive for faculty, whether straight or gay.)

Corporate lawyers warn that the language of HR6 could be read to prohibit even private companies from providing benefits to unmarried partners. (HR6 by its terms applies to all unmarried couples, not just gay couples.) Proponents deny that possibility, but ultimately, it is an issue that will be litigated, and lawsuits are time-consuming and expensive.

Of course, there are also the uncertain consequences of creating a precedent by writing discrimination into the Constitution. If we can marginalize one disfavored group, why not others? Immigrants? Muslims? Atheists?

At the end of the day, this is an argument between two very different versions of morality and beliefs about the role of government.

A dwindling number of Americans believe that homosexuality is a chosen, immoral behavior, and despite growing scientific consensus that sexual orientation is immutable—that people are born homosexual or heterosexual—they want to use the power of government to stigmatize gay people.

Others of us believe that denying people equal treatment under the law because of who they are—whether that second-class status is based upon race, gender or sexual orientation—is not only unconstitutional, but deeply immoral.

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