Ensuring the Rights of Families Headed By Same Sex Couples is a Moral Issue---How We Get There is Not
NEW YORK DAILY NEWS EDITORIAL: Yesterday, Gov. Paterson forced the topic onto the agenda by introducing a gay marriage bill and calling for speedy consideration by the Legislature. "This is a civil rights issue, and civil rights don't wait," said Paterson, flanked by Mayor Bloomberg and other political leaders.
Agree with Paterson or not, this is clearly an issue that deserves proper attention by the Legislature. This must be the time that the Legislature breaks with its secretive, boss-ruled way of doing business.The onus falls on Senate Majority Leader Malcolm Smith, whose closely divided house has yet to take a stand on same-sex unions. The Assembly has previously passed bills that would legalize gay marriage. The ways of Albany dictate that no bill gets to the floor for a vote unless the legislation is guaranteed to pass. Seldom are there meaningful committee hearings or votes. All matters are decided behind closed doors.
Already, Smith is signaling that he won't bring Paterson's bill to the floor unless it's sure to be approved. That's absolutely the wrong way to go.
NEW YORK TIMES EDITORIAL: The Assembly is expected to pass the measure easily, but some advocates of same-sex marriage have said they want Albany’s legislators to make sure they can win before the Senate votes. Knowing the outcome in advance is the way law is usually made in Albany. But, as Mr. Bloomberg argued, “that is not democracy.” It’s time for Albany’s backroom specialists to allow full debates and real votes on whether thousands of New Yorkers should be allowed this basic right.
What arrant nonsense.
It is clear that society has evolved in such a manner where, to service the needs of families as they exist today, we must alter the laws to allow same-sex couples to avail themselves of the same bundle of rights, responsibilities, rebutable presumptions, tax benefits and tax penalties we afford to heterosexual couples who make the choice; to wit, the imperfect institution of marriage.
The important thing is that the ability to elect to live under such rules exists; I could care less what it is called, but am sympathetic to those who feel strongly that calling it by a name other than what it is, is, in effect, discriminatory. Thus, while, in an ideal world, I'd prefer that same sex marriage be called "marriage", I think that the rights of these families being protected is such an imperative moral obligation that "gay marriage" advocates should be prepared, if necessary, to sacrifice the name "marriage" if it will get the affected families the rights they should be allowed to avail themselves of.
I am aware that the Federal government recognizes only marriage, and not civil unions, so the argument can be made that only “marriage” will allow same sex couples to fully avail themselves of their rights . I would find this argument a compelling one--if not for the existence of the Defense of Marriage Act (DOMA), which prohibits federal recognition of either sort of same sex union. Moreover, while it seems clear that a strong effort will be made to amend DOMA, odds are high that if such legislation encompasses Federal recognition of same sex unions, it will encompass both kinds and call them all “Civil Unions“ (and the pressure for encompassing both kinds will come from both conservatives hoping not to further encourage passage of same-sex “marriage” legislation and liberals seeking to protect the maximum number of same sex couples).
I also think that society evolves over time, and that the state by state recognition of either kind of same sex union, either through the passage of legislation, or by judicial fiat, will ultimately aide in the evolution of attitudes necessary to change the state by state snowball effect into a gradual avalanche. Each new step builds upon the next, making the next easier, in much the way that Lyndon Johnson anticipated (using the subtle metaphor of talking a virgin out of her cherry) when he steered the toothless 1957 Civil Rights Act through the US Senate, while ever lying in wait for the next opportunity to present itself (as it eventually did with the Kennedy assassination) and meanwhile manipulating events behind the scene (as proven in transcripts of his phone conversations with Dr. King) to set the stage for the eventual triumph of decency .
As such, a victory of this nature would serve the multiple purposes of improving people’s rights in the immediate term, while creating momentum for more change and gradually changing the attitudes of society through evolution and attrition
A lot of supporters of gay marriage belittle this sort of strategy, but I will note that Vermont, the first state to implement same-sex marriage through legislation, first spent several years with a law permitting same sex civil unions, which probably served to gradually ease the way for the new law. However, initially, even the legislation creating civil union was passed over great resistance. Now after its few years of existence, supporters of the concept include the Reverend Rick Warren, Ultra-Orthodox City Councilman Simcha Felder, Utah Governor Jon Huntsman and several Republican members of the New York State Senate.
As I recently noted, in the long run, the fight to stop same-sex marriage is probably doomed. The foundations of this sort of cultural conservatism are crumbling as we speak. My five year old son already believes that gay couples can get married, because he’s seen two-mommy and two-daddy families in his religious-based nursery school, as well as at the public school he now attends. In Brownstone Brooklyn, children have even seen same-sex parent families in the Orthodox Jewish nursery schools. As a leading Evangelical, Richard Cizik, recently noted, about four in ten Evangelical Christians have an LGTB friend or family member. Another generation and what so many fear so much will amount to oh so little.
But, the long run can take a long time, and families headed by same sex couples don‘t live in the long run--they live today in the here and now. Legal normalization of same sex relationships, by whatever name one calls it, not only protects the interests of those families, but will inevitably lead, over time, to the last barrier falling as well.
I understand the counter argument--that passing anything short of “marriage” will only undermine and delay the fall of the last barrier. I think Vermont proves that logic wrong.
But, if Tom Duane and Danny O’Donnell, the sponsors of New York’s same sex marriage legislation, feel otherwise, they have the right to call the shots. Hopefully, they understand their colleagues better than I do, and hopefully, they are correct in their implied assessment that the same sex community is willing to entail the sacrifice that forsaking the much easier victory would entail.
Moreover, as the sponsors, they have the right to pursue whichever strategy they find helpful. They are not obligated to seek a floor vote on this legislation until they are good and ready to have one.
Nonetheless, the editorial boards strongly feel otherwise.
With the usual overwrought angry fulminations it reserves for matter involving our State Capitol, The Daily News has whipped itself into a lathery froth. The News cares not one whit about the ultimate result of the same sex marriage vote, they just want a vote, Goddammit!!! This owes to the News’ abhorrence of all things Albany, and specifically, the Albany process of never bringing a bill to the floor unless it has the votes to pass. There is much to be said against the boss-controlled Albany substitute for a real deliberative legislative process, and I‘ve said some of it myself. The system should change, but there is nothing inherently special about this legislation, as opposed to, say, Wick’s Law Reform, which calls out for it to be the test case for the new system they envision.
The truth is bills involving “moral” issues like abortion, capital punishment and sexual orientation related rights are already somewhat exempt from the scandalous legislative status quo. They are those rare “freebie” votes where legislators are allowed to vote their conscience, should they actually have one.
However, to suddenly decide that we must treat same sex marriage as the test case issue for the concept of putting a bill onto the floor, no matter what its chances of passage, seems to me just another example of singling out the LGBT community for double standards and discriminatory treatment. Why should issues involving their interests be treated so differently than bills involving everyone else‘s?
In contrast to the News, I have no doubt that the New York Times is sincere in both its support for same sex marriage and its abhorrence of the Albany status quo. Yet, I for one am dubious that they really believe that every bill which is a legitimate subject of public controversy must always come to a floor vote. The restoration of capital punishment would undoubtedly pass the Senate and possibly pass the Assembly. Is the Times advocating the same floor vote on that legislation as well?
For all I know Duane and O’Donnell may seek prompt action on their bill. Momentum, mostly a psychological phenomena, is seemingly on their side.
But momentum is a funny thing.
In 1975, State Senators Carol Bellamy and Karen Burstein got the bright idea to amend the State Constitution to include a gender based Equal Rights Amendment. The Federal Amendment was two states away from ratification, and the idea was to symbolically help push it over the top. Instead, the New York Amendment, and one in New Jersey, failed at the ballot box. Federal Ratification stopped dead, and actually went into reverse. Guess the heartland reckoned that if cosmopolitan New Yorkers couldn't handle such new fangled notions, how were they going to do it down on the farm?
Actually, I think the fear of a similar result in this case is overstated. Voters in “cosmopolitan” California just overturned by referendum a pro same-sex marriage decision by their courts, and it had seemingly little impact in Iowa and Vermont. A defeat by a legislature would surely be less, rather than more momentous than the defeat at the polls. Or so, at least, logic would seem to dictate.
But momentum is not based on logic alone (or perhaps at all).
More to the point, Duane and O’Donnell may not want to squander their votes. There are several legislators who understand that voting for same-sex marriage may be the political equivalent of painting a target on their shirts. Nonetheless, they are willing to vote for it in service of the greater good and suffer the risk their courage will entail, if the risk they entail results in the change they desire.
But, is it fair to ask them to entail the risk if no greater good is going to result? Especially, when the potential loss of their seats which may result would only set the cause back.
We see virtually the exact same phenomena in Congress, where the Employee Free Choice Act (AKA “Card Check”) may never come to a vote in the House, where it can pass easily, because Nancy Pelosi refuses to make her vulnerable members more vulnerable without a sure payoff in sight.
Which sort of gives lie to the idea that not voting on a bill until one can pass it is some sort of unique Albany evil (though applying the rule to EVERY BILL, and not holding real committee hearings, EVER, surely is).
But it is not only the News and Times who have decided that this issue demands we elevate process over product. I’ve heard the exact same arguments made again and again in outraged tones by non-politicians in the LGBT community.
“THIS IS A CIVIL RIGHTS ISSUE, A MORAL ISSUE--WE MUST BRING IT TO A VOTE!”
Allow me to retort.
Your outrage is merited; it is even useful. But your strategy is not.
The case for same sex marriage is a compelling moral issue. But, no more so than was the battle for Civil Rights was in 1955. But battles were not fought on every front. Battle lines were selected with care and cunning.
There are other parallels as well. In both cases, legislative victories were preferable to ones in the courts. Which begs the question, should advocates of same sex marriage pursue their goals through the legislative process, or by litigation?
The answer is obvious: “Yes.”
By any means necessary. But only when those means are likely to be productive; it is not necessary (or desirable) to shoot one’s self in the foot.
Then as now, either type of victory served the multiple purposes of improving people’s rights in the immediate term, while also creating momentum for more change, and gradually changing the attitudes of society though evolution and attrition. Perhaps Vermont would have happened without Iowa; perhaps not.
Of course, non-legislative victories in such battles come with their own detriments. Ruth Bader Ginsburg has outlined in detail the political costs of winning the battle for abortion rights in the courts, rather than in the legislative arena. The immediate and long term result in the aftermath of Roe v. Wade was to spur the creation of an angry right wing movement, whose resentment was unleashed in reaction, and from which we are still in recovery. On the other hand, the thousands of women who were immediately spared from back alleys and involuntary servitude might dissent from the Justice’s well considered opinion.
In the case of the battle for Civil Rights, there were, here and there, some legal scholars who sincerely questioned the constitutional underpinnings of decisions like Brown v. Board of Education, but, by and large, those citing constitutional objections to judical decisions in Civil Rights cases were crying crocodile tears (it was astonishing how many self-proclaimed constitutional scholars had wardrobes containing white sheets). Calls for African-Americans to seek redress solely through legislation were, in essence, calls for them to knock their heads against a wall. By contrast, Ginsburg argues convincingly that, at the time of the Roe decision, abortion rights advocates were in the midst of a series of legislative victories and already had momentum on their sides.
Ironically, once the momentum of judical intervention helped get the legislative ball rolling on Civil Rights, many of the same "legal scholars" chose to object to the constitutionality of whatever legislation civil rights advocates managed to get passed.
These arguments probably can never be resolved. I cannot honestly say whether Ginsburg's argument is more compelling than the arguments of those who fought the battle for abortions rights (as Ginsburg had on so many other feminist issues) in the courts. But, ultimately, like the other debates over how proponents of same sex marriage should pursue their cause, they are prudential arguments rather than moral ones.
Vladimir Lenin once nicely summed up the expediency of choosing one’s tactics: "They have the guns and therefore we are for peace and for reformation through the ballot. When we have the guns then it will be through the bullet." Lyndon Johnson wanted to pass civil rights; he favored incremental, symbolic, often minuscule victories, until he had the guns to pass the bill he wanted. When Thurgood Marshall headed the NAACP Legal Defense Fund, he rejected dozens of worthy plaintiffs with compelling stories to choose only those cases which would yield the result he was looking for in advancing the legal battle for Civil Rights.These days, the sprit of Thurgood is embodied far more attractively in the person of my friend, the lovely and talented Camilla Taylor of the Lambda Legal Defense Fund, with whom I sometimes engage in spirited email discussions concerning our sons’ mutual obsession with Thomas The Tank Engine Trains (Camilla (relishing her victory): “This weekend I'm so happy I could almost take one of those Thomas the Tank Engine videos that gives you the option of ‘continuous play.’” Gate: “You are a very reliable and useful engine and have earned a new coat of paint.” Camilla: “Thank you. Luckily no one was hurt!”).
In pursuit of the goal of bringing to the maximum number of families headed by gay couples the same option to avail themselves of rights available to heterosexuals (should they chose them), Taylor looked around the country to find the state with the right combination of statutory, constitutional and case law, friendly bench and quasi-sympathetic political structure before bringing the same-sex marriage case in Iowa. She felt no obligation to bring her litigation on behalf of a compelling client in Utah or Mississippi. Though the humanitarian considerations were no more compelling in Iowa than elsewhere, she pursued the strategy that was most helpful to her cause.
And low and behold, it worked, not only for same sex couples in Iowa, but perhaps also in Vermont, and possibly soon in other venues as well. As such, the victory served the multiple purposes of improving people’s rights in the immediate term, while creating momentum for more change and gradually changing the attitudes of society through evolution and attrition
Similarly, Danny O’Donnell and Tom Duane are under no obligation to pursue any strategy but the one which best advances their cause. Their only moral consideration should be “will this help?”
I have advice both on the legislative front and the legal one. I think O’Donnell and Duane would best be served by giving their constituency an up or down vote (which I suspect most of their constituency feels is owed to them), and if they lose in the Senate, then call the bluff of those. like John Flanagan, who say they support civil unions (and those who, like Joe Robach and David Valesky, would be hard-pressed not to) and pass a civil union bill. An up or down vote on marriage would give Duane and O'Donnell the cover they would need to pursue civil unions, and civil unions would afford their constituency as many substantive rights as they are going to get until DOMA is amended (and probably even afterwards), while also creating momentum for more change and helping to gradually change the attitudes of society through evolution and attrition.
On the legal front, my advice is to sometimes take a bunt. Religious accommodation is the third rail on this issue. Vermont’s bill passed only after provisions were added facilitating the rights of religious institutions which don’t accept same sex marriage. While religious institutions are protected by the first amendment, writing such provisions into the law makes them easier to swallow (perhaps not the best choice of words). The challenge is to create religious exemptions wide enough to pass the legislation (and protect legitimate rights) but narrow enough so that they don’t swallow the rule.
Many social conservatives, including Richard Cizik, Rick Warren, David Blankenhorn and seemingly even columnist Maggie Gallagher (President of the socially conservative Institute for Marriage Public Policy) have recently moved awfully quickly to embrace civil unions. This may be damage control, but it also stems from facts like those four in ten Evangelical Christians who have LGTB family or friends, and that “Trembling Before God” has become a popular Orthodox Jewish cult film.
Moreover, I think it is also an acknowledgement of their own victory. During the 60s and 70s, the institution of marriage looked awful shaky, with much of society exploring alternatives and questioning its continuing vitality. This was not a predominately gay phenomena, although lesbians joined other feminists in denouncing and rejecting marriage as an institution of patriarchal oppression. Once considered an anachronism, marriage is suddenly the thing everyone (except couples already married) wants.
As it became apparent late in the last century that the needs of families headed by same sex couples had to be addressed, cautious liberal came up with half-way solutions like “Domestics Partnerships.” The irony is that, in their effort to pay homage to “traditional marriage,” their solutions did more to undermine that concept than expanding marriage to same sex couples ever could.
In our society, we had previously offered couples only one option to give legal sanction to their relationships--marriage, take it or leave it. But one could not constitutionally offer the option of “Domestic Partnership” to homosexuals without offering it to others. Suddenly, in some places, it wasn’t take it or leave it--there was another option.
“Domestic Partnership,” created as a moderate alternative, was actually a far more radical idea, even if the actual substance was pretty mild. It really did undermine “traditional marriage” and begged the question of why still other options could not be created.
By contrast, gay marriage, and civil unions do not expand the menu, they expand the customer base. In fact, when Vermont enacted civil unions, it repealed its “Domestic Partnership” law.
I think some conservatives took due notice, and a growing number of them seem to understand that there are few instincts more culturally conservative than for folks to wish to solemnize their relationships in a legal manner so as to afford themselves the ability to better provide for the needs of their families by accessing the full panoply of rights and responsibilities we afford to married couples.
I’m not saying this is necessary all so great. Maybe, just maybe, a better idea would be to expand the menu options for everyone. Maybe, just maybe, traditional marriage needs to be changed, rather than multiplied. Nonetheless, facilitating this kind of support among cultural conservatives serves the long range needs of LGBT couples who want to marry. And I suspect that winning the acquiesance, if not the support of such conservatives, and swallowing some of the religious accommodations demanded by them, will be crucial to the really, really important goal of amending DOMA.
As such, it would probably help not to scare such people to death.
Logically, one would think that religious accommodation should not be a problem. When Tom Suozzi once explained his opposition to same sex marriage by talking about “sacraments,” it made me cringe. The state does not give out “sacraments;” religions do. In the secular realm , the only realm a which should matter in a governmental capacity, marriage is like property, the “bundle of rights” I referred to previously. State sanctioned gay marriage does not impede anyone’s religious freedom. Those religions which have no theological problem with it already perform gay weddings which, at the present time, are perhaps sanctified in the eyes of God, but not in the eyes of the law; if the law changes, those religions which do have a problem with gay marriage will continue to have the First Amendment right to not perform rituals they do not embrace. Orthodox Jews don’t do baptisms; Catholics don’t do brit melah; neither will be forced by the law into performing gay weddings.
But, in actual practice, this sometimes become tricky to sort out--just ask an Native American trying to consume peyote or a municipality trying to apply its zoning laws to church property. Such conundrums beg the question of some current litigation in the Garden State.
The quaint little non-incorporated enclave of Ocean Grove, NJ is full of culturally conservative people, and as any New Yorker knows, it is harder to find anyone more culturally conservative than elderly lesbians, who make up a colorful minority in the context of this slice of all-American Wonder Bread. The common areas of Ocean Grove are owned by the Methodist Camp Meeting, which holds revival meetings all summer in the lovely village green. The area also has the equivalent of "public space" which can be used for events like weddings. The community has denied the use of this space for such purposes to same sex couples. The couples have won a court challenge, which is currently under appeal.
I’m not going to discuss the legalities here, including the Jersey-centric history of the Ocean Grove as a de facto municipality (which used to block its streets on Sundays). The merits of the case on either side (which may or may not depend on sui generis issues unique to the enclave) concern me less than the potential impact of victory.
To many, and not only social conservatives, victory for the LGTB community in Ocean Grove may seem almost the equivalent of forcing a church to allow upon its premises a wedding it doesn't recognize. Good, bad or ambiguous as law, such a victory will surely be used, with apparently credibility (ignoring the unique local quirks), as a trump card to prove that state recognition of gay unions will be used to impair the right of religious free exercise and even possibly to force churches to accommodate gay weddings.
As Pyrrhus might note, one more such victory, nationally broadcast, could utterly undo the fight for same sex marriage. I think Thurgood would have taken a pass on Ocean Grove.
But, although I’m usually a strong advocate for reasonable (and sometimes seemingly unreasonable) religious accommodations, my opinions here, like my opinions on which strategy Duane and O’Donnell should pursue, are armchair quarterbacking. Moreover, they (even with my sympathy for religious accommodations) are opinions about tactics and not about morality. In the end, O’Donnell and Duane, and the LGTB leadership in other states, should weigh the competing considerations and pursue the strategies they feel will best accomplish their (sometimes competing) goals.
And the New York Times and Daily News should just shut up.
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