Posted on 02/22/2004 11:36:40 PM PST by longtermmemmory
San Francisco Mayor Gavin Newsom touched off a defiant outburst of matrimony 10 days ago when he decided his city would issue marriage licenses to gay and lesbian couples. These marriages -- now more than 3,000 -- are also one of the most flagrant acts of mass civil disobedience in recent years.
The freedom-to-marry movement has long grounded its cause in the rhetoric and precedents of the American civil rights movement. As she began her arguments for gay marriage before the Vermont Supreme Court in 1998, lawyer Beth Robinson cited a landmark case from 1948, when the California Supreme Court became the first supreme court in the nation to throw out a ban on interracial marriage.
Robinson, who represented three same-sex couples, said that, at the time, interracial marriage was even more offensive to most Americans than gay marriage is today. And she argued that denying gays and lesbians the right to marry their chosen partners was a violation of rights as odious as denying blacks and whites the right to marry each other. The court ended up requiring the Vermont Legislature to choose between gay marriage or a ``parallel institution''; the legislature responded with the creation of civil unions, which provide the rights and benefits of marriage for same-sex couples.
That gay marriage is a question of civil rights is not immediately obvious to everyone, however. It is easy now to comprehend the injustice of barring an African-American from eating at a lunch counter. But for many Americans homosexuality is not analogous to race. They believe that it is chosen, that indulging in homosexual activity is immoral and that the state has no business sanctioning behavior that they say undermines our social institutions.
No one argues that it is immoral to eat lunch where one prefers, but the justice question surrounding gay marriage sometimes becomes clouded by moral considerations. For example, many of our faith traditions hold unequivocally that it is immoral for a man to sleep with a man or a woman with a woman. For those who oppose gay marriage, the analogy to skin color, therefore, falls short. The leadership of the Roman Catholic Church, for one, argues that even if our sexual orientation is a given, it is our choice whether to act on it or not.
Breaking religion's grip
Thus, one of the challenges facing the gay rights movement has been how to break the grip of religion on our secular democracy. Liberal author Leon Wieseltier, writing in the New Republic, addressed this problem: ``It is worth remembering that the religious motive for democracy holds only for the religious, and we are not all religious, and we are all democratic. I would say even this: democracy understood as obedience to God is democracy misunderstood. Democracy represents a rupture in the theological account of authority.''
Legislators in Vermont heard a Catholic bishop condemn civil unions one day and an Episcopal bishop support them the next. Thus, for many legislators it became apparent they would have to form their judgments on the basis of something other than these conflicting religious claims. That something was the secular charter of the state, the Vermont Constitution.
The freedom-to-marry movement has proceeded cautiously over the years, building on a gay rights movement that emerged in the 1970s and 1980s and looking for legal precedents to the long civil-rights struggle of African-Americans and to cases establishing rights related to heterosexual marriage.
The courts have established, for example, that marriage is a fundamental right and that it has a ``unitive'' value that goes beyond its role in procreation. The courts have also established in cases involving heterosexuals that Americans possess a right to privacy in making important decisions about their personal lives. Last summer, issues of privacy and gay rights intersected when the U.S. Supreme Court ruled unconstitutional state laws that criminalized homosexual sodomy.
Each step of the way, gay rights activists faced hostility. The murder in 1978 of San Francisco Supervisor Harvey Milk, in city hall, showed the nation what gays and lesbians already knew: that violence against gays was an ever-present threat. The light sentence given to Dan White, Milk's killer, confirmed something else they knew: that society, to a degree, believed gays deserved the violence they suffered.
Now in San Francisco's city hall, Newsom has provided the freedom-to-marry movement with what may be its Rosa Parks moment -- a turning point that for now has brought the battle beyond the courtroom.
Author Andrew Sullivan has argued that in the struggle for equal rights, the marriage taboo has been the last to fall, for both African Americans and gays and lesbians. It wasn't until 1967 that the U.S. Supreme Court finally found the prohibition of interracial marriage to be unconstitutional. And although gay advocates have scored increasing successes over the years for gay rights and political power, only in the last several years have they won court cases approving marriage -- and, so far, even those wins have been fleeting.
In reaching this point, gay rights activists have consciously emulated not just the equal-rights arguments but also the tactics of the African-American movement, carefully calibrating their moves and challenging state laws in places where they had a good expectation of success.
Evan Wolfson, director of the Freedom to Marry Collaborative, frequently cites the example of the Rev. Martin Luther King Jr., noting that King used a ``multiplicity'' of methodologies -- court challenges, public education, civil disobedience, legislative action. On the wall of Wolfson's office in New York City are two portraits: of Abraham Lincoln and King.
One of the reasons for proceeding carefully has been the need to minimize the inevitable backlash. After the Hawaii Supreme Court ruled in favor of gay marriage in 1993, the people of Hawaii amended the state constitution, allowing the legislature to ban gay marriage. And that is what the legislature did.
Next, gay rights activists took the question of same-sex marriage to the courts in Vermont, a state they hoped would be friendly to their cause. Their case led to the 1999 court decision and approval of civil unions for the first time anywhere. In that ruling, Vermont Chief Justice Jeffrey Amestoy gave the Vermont legislature the choice between marriage or civil union. Involving the legislature meant that the furious backlash that followed was not quite as furious as it might have been. And the law, approved in 2000, has been widely accepted in Vermont.
Then last November, the Supreme Judicial Court in Massachusetts approved gay marriage, going beyond Vermont in finding that civil unions would not be sufficient -- and now Massachusetts is embroiled in its own backlash. On March 11, its legislature will resume debate on a state constitutional amendment that would undo the effects of the court decision.
S.F. festival of love
The recent festival of love in San Francisco also has touched off a legal backlash; it remains to be seen whether the civil rights claims of the freedom-to-marry advocates can withstand the anger of those who reject such claims. In allowing the marriages to proceed, Newsom has argued that the equal protections guaranteed by the California Constitution trump the voter-approved 2000 state initiative limiting marriage to heterosexual couples. The courts will eventually resolve that question, which means that in the short term, opponents of gay marriage may thwart Newsom's gesture of defiance and succeed in nullifying the marriages.
Challenges of this sort serve a larger purpose, however, making plain the perceived injustice of the law.
Despite all the warnings of doom in Vermont, there have been more than 5,000 civil unions in the past four years, and the fabric of society remains intact. A former U.S. senator, Republican Robert Stafford, made an appearance at age 87 during Vermont's bitter 2000 election to ask Vermonters a simple question: ``And even if same-sex couples unite in true love, what is the harm in that? What is the harm?''
State Rep. Bill Lippert, the one openly gay member of the Vermont legislature, made a statement on the floor of the Vermont House during the civil unions debate: ``We argue about whether they are civil rights or other rights, but I'll tell you this, they are rights that I don't have right now and most everyone else in this chamber does.''
As in the civil rights movement, there are already questions about whether Newsom has pushed forward too quickly, creating the potential for a serious backlash. But as Rosa Parks did when she refused to give up her seat on a segregated bus in 1955, Newsom has taken the issue beyond the courtroom, forcing the people of California to confront the question head on. As they do, they will face the question Stafford posed: What is the harm?
DAVID MOATS (david.moats@rutlandherald.com) is editorial page editor of the Rutland (Vt.) Herald and author of ``Civil Wars: A Battle for Gay Marriage.'' He won the Pulitzer Prize in 2001 for his editorials on the battle over civil unions. He wrote this article for Perspective.
(Excerpt) Read more at mercurynews.com ...
They are also under the delusion that marriage is a religion only insitution. Religion is a red herring. Under the law to qualify for marriage: 1. Age of Consent 2. Not closer than first cousin 3. not married to another 4. One man one woman (one father one mother child breeding/raising pair).
Homosexuals have allways been able to qualify under the law for those standards. The law has never delved into "love". The law does not delve into sexual gratification.
The FMA will shut these "useful idiots" of the left down.
Thus, one of the challenges facing the gay rights movement has been how to break the grip of religion on our secular democracy.
I think this throwaway line - breaking the grip of religion - reveals far more than it intended.
After the inital Mass SJC Goodridge opinion, I listened to a debate on Hardball between two lawyers. The debate digressed into both sides talking over the other, but the Lambda lawyer kept repeating, "This will not affect religion." She repeated it about five times, at which point the phrase, "Methinks she doth protest too much" occurred to me.
Here's a good quote from StonyBurk:
Just curious - Wonder how these Mass.Congress men/women and whatever they call themselves reconcile Article III of the Mass.State Constitution as originally ratified ("As the happiness of a people,and the good order and preservation of civil government,essentially depend upon piety,religion and morality,and these cannot be generally diffused through a community ,but by the institution of the public worship of God,,and of public instructions in piety,religion, and morality.") I suppose the inclusive representative government first had to divorce itself from piety,religion, and morality--or this debate over homosexual marriage could not occur.
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