California Proposition 8 Anniversary: Revisiting the (Bad) Arguments
The following is an editorial:
In the last year, we had some victories: marriage equality came to Iowa, Vermont, and New Hampshire, recognition came to Washington D.C., and Domestic Partnerships came to Nevada and were expanded in Washington. And then today, on the one year anniversary of California's Proposition 8, the constitutional amendment that took away same-sex marriage, gay and lesbian residents of Maine wake up with the news that Proposition 1 had passed and their marriage rights were revoked. The battle over Proposition 1 showed that opponents of marriage equality have not developed their arguments much since Proposition 8, but that, unfortunately, those arguments were still working. With that knowledge, I feel obligated to revisit some of the claims made in the debate surrounding same-sex marriage.
On November 18, two weeks after the passage of Proposition 8, The View featured a segment discussing the proposition and same-sex marriage generally. The show's two conservative members, Elisabeth Hasselbeck and Sherri Shepherd, took the stance against same-sex marriage. The video is to the right. I have extracted some of the two ladies' arguments to address:
"...this is minimizing [the struggle for racial equality]. To equate what's going on—and now these protests—and those situations during the civil rights moviement; it just shouldn't even be happening. It minimizes all what occurred."
Civil equality is not a competition; the winners are not the ones that suffered the greatest. Discrimination and the denial of rights should be addressed and remedied whenever it occurs, not just when it is the greatest example of discrimination. To discredit the gay rights movement in this way is to discredit the American feminist movement because women in the Middle East have it worse.
Promoting same-sex marriage does nothing to minimize the black civil rights movement. Rather, it is a continuation and the next step in the fight to win social equality regardless of race, sex, or sexual orientation.
"They should be fighting for the rights rather than the word 'marriage'. There are a lot of people who are arguing there were four judges who decided what was best for the country all of a sudden. This Prop 8 came as a result of that. These protesters, in essence, are protesting what the majority wants."
The rights of marriage and the word 'marriage' itself are entangled. It is impossible to impart all of the rights without also providing the word. This is because the concept of marriage is one that, for the purposes of law, is recognized uniformly through each of the states in the country. Civil Unions and Domestic Partnerships do not enjoy such ubiquity; a couple could not travel from Oregon to Nevada and have their relationship recognized even though both states have Domestic Partnerships. Even in states that provide comprehensive Domestic Partnerships, some benefits, like pension agreements, insurance policies, and other private offerings are available only to couples who are 'married'. So it is impossible to to fight for the rights without also fighting for the word.
Further, I believe it is a miscategorization to say that four judges decided what was best. The California Supreme Court did not make any value judgement on same-sex marriage; it simply held that the Equal Protections Clause of the California Constitution made the denial of marriage rights—a "basic civil right"—to a protected class unlawful. The ruling followed 4 years of procedural history and argumentation. To make it sound as if the judges woke up one morning and decided to judicially mandate marriage equality is misleading and dishonest.
The protestors were not protesting what the majority wanted; they were protesting the fact that a slim majority (52% of voters) could strip fundamental rights from a class of people in defiance of the state's three elected branches of government—executive, legislative, and judicial. They were protesting that the will of only 7 million voters in a state of 37 million could decide whether or not they were permitted to marry the person they love. They were protesting the frightening precedent that voters could decide civil rights. To characterize the protesters "in essence" as anti-democratic sore losers is an demeans their message.
"There are some people who go 'because I can, I want to have my dream wedding in a Church and you're saying 'no', so I might sue you because you're discriminating against me' And so you're impeding on their rights and their beliefs."
Gay and lesbian rights are no threat to religious freedom.
"If you're voting yes on Prop 8, then all of a sudden, you're a bigot."
Bigot is not a nice word, and it does not feel good to be called one. But if you did vote yes on Proposition 8, you chose to jealously keep a right that you enjoy from a group of people. It does not matter what your reasons are, because the outcome is the same. People who once could marry their partners are once again legally prohibited from doing so. Your marriage was not affected for better or worse as a result of your vote. The only thing that changed is that we could no longer have ours. You may claim no animus, but you can not strip away a right from a group of people while gaining nothing for yourself and call the action anything but malicious. You may not feel like a bigot, but your vote was one a bigot would cast. Love is not a limited commodity to be hoarded.
Have a question, comment, or response? Share your thoughts.Catholic Charities’ Religious Freedom and its Conflicts with Gay Marriage - A Rebuttal
Cornerstone Policy Research, the same organization that published fraudulent poll statistics about New Hampshire residents' views on same-sex marriage, recently posted a link to a Boston Globe article entitled Kids Take Back Seat to Gay Agenda by Jeff Jacoby. The article surrounds the decision Boston Catholic Charities made earlier this month to stop providing adoption services rather than comply with state law requiring the placement of children with same-sex families. Because Mr. Jacoby's version of the events omits several key facts, allow me to share the tale.
Boston Catholic Charities is an organization that provides, among many other services, adoption of children in need of a permanent home. Despite a unanimous vote by the charity's board to continue providing adoption services to same-sex couples, and the charity's role in placing 13 children in gay households, four Roman Catholic bishops sought to bar the practice and obtain an exemption from the state's nondiscrimination laws. Eight board members resigned in frustration over the Vatican's position. Boston Catholic Charities also feared the loss of its largest private donor, The United Way of Massachusetts Bay, if it were forced to adopt the Vatican's discriminatory position.
Jacoby wrongly frames the conflict as follows:
Caught between the rock of Catholic teaching, which regards such adoptions as "gravely immoral," and Massachusetts regulations, which bar adoption agencies from discriminating on the basis of sexual orientation, the Boston Archdiocese [. . .] was left with no option but to end a ministry it had been performing for a century.
But that is not the case. The conflict was between Boston Catholic Charities and the Vatican, not between the charity and state law. Had "religious freedom" not intervened, Boston Catholic Charities could have happily continued providing adoptions to gay and lesbian parents. Instead, the specter of religion stepped in and created a conflict where previously none had existed. Jacoby continues:
So important is that agenda [to normalize homosexual adoption] that they will allow nothing to stand in its way — not even the well-being of children in dire need of safe and loving families [. . . . ] The Human Rights Campaign and its friends would rather see this invaluable work come to an end than allow Catholic Charities to decline gay adoptions.
The church's request for a [religious exemption] should have been unobjectionable, at least to anyone whose priority is rescuing kids from foster care
However, requests for religious exemptions are not 'unobjectionable', Mr. Jacoby. For the same reason that Protestants cannot seek a religious exemption to exclude Catholics from employment, adoption providers may not evoke religion to discriminate against a protected class. This is not the case of a church simply asking to be left alone in its policies, but rather an agent of the state seeking to break the law. Because, according to tax reports, Catholic Charities received $1 million of state funds to provide adoption services, its actions are subject to state scrutiny in ways that churches' typically are not. The state is not paying the charity to espouse its religious beliefs, but to offer adoption services consistent with its laws. Any organization accepting taxpayer money with the mistaken assumption that it can later deny services to those same taxpayers is immediately suspect.
Naturally, Mr. Jacoby must end his article with familiar fear-mongering, the-sky-is-falling tactics to fulfill his agenda against marriage equality. To do so, he quotes a 2004 article that made predictions following Massachusetts's ruling to legalize same-sex marriage:
[T]he experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance, and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination . . . Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles.
But, Mr. Jacoby, the irony of citing such an article is that it emphasizes that those 2004 doomsday predictions never panned out, just as these rehashed 2009 predictions will not either. The only "ax that fell" was that organizations continued to be required to comply with the laws of the states that fund them. This has nothing to do with gay marriage, but rather the dreadfully — according to Mr. Jacoby — proliferating belief that gay and lesbian citizens are equal and deserving of a life free from discrimination and intolerance.
Thirty years ago today, the White Night rioters fought to oppose a justice system and a police department that woefully failed them. It condoned the arresting, beating, and murdering of individuals for nothing more than their sexuality or their acceptance of gays and lesbians. The world we live in is a different one now, and it is no longer acceptable to use your personal beliefs as an excuse for looking down on your fellow man and for breaking the law.
Gay rights advocates have no interest in eroding religious freedoms. It is only because organizations have attempted to use religious freedom as a shield for their discrimination that the issue has even come up. It is not we, Mr. Jacoby, who are "allowing nothing to stand in our way," but you, who would rather see adoption providers close than place children in gay and lesbian households, and would rather the children of millions of same-sex couples be raised by unmarried parents than let gays and lesbians wed.
Misleading anecdotes, invested statistics, and twisted facts are all that support the five-year-old silly and incorrect predictions of Massachusetts downfall. And five years from now, when even more states have enacted laws respecting the equality of marriage inclusion, today's predictions will be just as silly and incorrect. Gay marriage is no threat to religious freedom, and those who espouse this belief perpetuate a mistaken fallacy at best and malfeasant lie at worst.
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Other recent rebuttals from Brian Cavner include: Moral Absolutism and why Sexual Behavior is Irrelevant to Marriage and "With Gay Marriage Comes Gay Divorce".
Have a question, comment, or response? 4 people do.National Call In: The Future of Same-Sex Marriage
The National LGBT Bar Association held a conference call today to discuss the many court and legislative battles the gay and lesbian community has won recently, and also to look at the future of the same-sex marriage movement. Executive Director D'Arcy Kemnitz (pictured left) moderated the call and was joined by Jennifer Pizer, Senior Counsel and Director of the National Marriage Project at Lambda Legal, and Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD).
Among the topics discussed were California's Proposition 8, the recent victories in Vermont, Maine, and Iowa, Washington D.C., the status of efforts in New Hampshire and New York, and GLAD's current federal court Defense of Marriage Act (DOMA) challenge.
UPDATE: A copy of the recording is now available at the National LGBT Bar Association website. You may scroll to the bottom of this post for a link to the approximately 1-hour long audio, or read some highlights of the issues that were discussed: Read More
Have a question, comment, or response? Share your thoughts.Professor Geoffrey Stone on Civil Unions and Religious Freedom
Illinois will soon begin to discuss the Religious Freedom Protection and Civil Union Act, a bill with the dual purpose of providing legal recognition for same-sex couples and permitting religious organizations to choose not to solemnize or officiate civil union ceremonies. The bill would also recognize marriages and other legal relationships between members of the same-sex performed in other jurisdictions as civil unions. Illinois currently offers no recognition for gay and lesbian couples.
Professor Geoffrey Stone of the University of Chicago Law School, like 60% of Americans according to recent polls, supports the legislation and wrote a very interesting opinion piece in the Chicago Tribune. He opines:
There has been a transformation in our thinking on this issue over the past half-century. What would once have been regarded as nothing short of weird now seems perfectly sensible. This is the American story. It is, in part, what makes us great. Over time, we have gradually recognized the common humanity of blacks, women, Hispanics, Asians, Jews, Catholics and gays, all of whom have been the victims of cruel discrimination.
The rights for each of these groups have come incrementally. For instance, women won suffrage in 1920, employment nondiscrimination in 1964, and school nondiscrimination in 1972. Professor Stone believes the incremental approach to legalized same-sex marriage is appropriate as well, saying, "it is a reasonable compromise at this time in our history."
I disagree. 'Reasonable compromises' are what have led many people to believe that the fight for women's equality ended in 1970 with the Equal Pay Act when, in reality, women today are still paid 15-40 percent less than their male colleagues. By taking an incremental approach and settling for civil unions, we run the risk of fostering a perception that the problem has been fixed by a separate-but-equal institution. So why not go straight for full marriage equality? Professor Stone points to fears of losing religious liberty:
The most obvious tension arises out of the fact that some religious people believe same-sex relationships are inherently sinful and immoral. They therefore insist that the state should not legitimate such relationships. The problem, though, is that in a society that values the separation of church and state, religious doctrine cannot be the source of our secular law. The framers of our Constitution certainly embraced this principle. It is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them.
I agree with Professor Stone on this point and I believe he has articulated it beautifully. However, we diverge in opinion on the appropriateness of the "Religious Freedom Protection" part of the Act. While he regards the language as "a respectful and very substantial acknowledgment of legitimate religious liberty interests," I see it as a merely symbolic and unnecessary inclusion simply for political appeasement.
The case that has spawned the fervor over religious liberty took place in New Jersey, where a religious organization refused to allow a lesbian couple to use a pavilion it owned. As a result of their decision, the New Jersey Department of Environmental Protection took away a tax break given to the organization for opening the pavilion to public use. This was a case involving not religious freedom, but a bland and straightforward taxation principle: you may not receive a public accommodation tax exemption on a location that is not actually accommodating the public.
I do not believe that the Illinois provision would have affected this outcome. Section 15 provides only that the law does not "interfere with or regulate the religious practice of any religious body" and that an organization "is free to choose whether or not to solemnize or officiate a civil union." However, this is already the state of the law in all 50 jurisdictions; no religious institution is forced to recognize any marriage it does not want to. Many Catholic churches, for instance, do not perform marriage ceremonies for divorcees, while Orthodox Jewish temples may refuse to join a jew and a gentile. No provision of law could be read to force religious organizations to conduct same-sex civil union ceremonies.
What an organization cannot do, however — and what they still cannot do even with Illinois's provision — is accept a public accommodations tax credit for a building that is not a public accommodation.
We are left, then, with a component of the Religious Freedom Protection and Civil Union Act that is superfluous and merely symbolic. I do not assert that religious organizations should be denied the ability to observe whatever tenants it wishes, I simply do not believe that Section 15 is necessary to achieve this end. I also fear what the law may be implying. If the legislature specifically exempts organizations from being forced to perform civil union ceremonies, is the implication that they can be required to perform marriages between divorcees or between jew and gentile? Why codify only a single exception while leaving other exceptions up to mere 'common understanding'?
Finally, I believe Section 15 reinforces the misunderstanding that civil rights are zero sum. The truth is that we can make one group — gays and lesbians — equal without making a second group — the religious — unequal. Equality is not a limited resource, but rather something we all can and should share.
In the end, both Professor Stone and I support the Religious Freedom Protection and Civil Union Act, albeit I with less gusto. I believe the Act is a step above nothing and is certainly a welcome relief for Illinoisan same-sex couples, but is absolutely not where Illinois should stop. A "compromise," as Professor Stone calls this bill, is not equality; equality is equality.
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