The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Gradualism and Gay Families

Parker and I found a really cool playground yesterday, out here where we’re camped out waiting for the paperwork to be done so we can take the baby back home. In fact, it’s such a cool playground that we’re taking the whole family there for a lunchtime picnic. (Parker’s idea. Daddy & Papa approved.) So, while we’re having some family time, here’s some outstanding stuff from the blogosphere. Or, at least, stuff that stood out to me.

Let’s start with Wapo’s Marc Fisher on yesterday’s Maryland Court of Appeals ruling on marriage.

Here’s where you can hear the structural foundation of the anti-gay marriage argument starting to creak toward collapse. If marriage is solely a matter of giving legal sanction to procreation, then what to make of the U.S. Supreme Court’s decision in a Missouri case granting the right to marry to prison inmates who had zero prospect of procreating? In that 1987 case, the court said marriage was a fundamental human right–kiddies notwithstanding. The majority in the Maryland case acknowledged that the prison case blows something of a hole in their procreation argument but took refuge in a simple declaration that they just don’t care: The Missouri case just “does not persuade us,” the court ruled.

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…But Justice Lynne Battaglia in her dissent said that defense of marriage as a legal status is crumbling: “The correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today.” Indeed, the majority notes that “As of 2000, there were just as many married households in the United States without marital children as those households with marital children.” And “according the Census Bureau, 67 percent of all children in Baltimore lived outside of a married couple household.”

So why does the court cling to the idea of marriage as an institution existing primarily to sanction childbearing? “The fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation,” the majority says. Ah–this would be the if-you-build-it, they-might-come theory.

… Raker’s dissent puts it more strongly, advocating for the state legislature to address the gap between the rights gay citizens already enjoy and those they are denied because of the marriage law. She notes that Maryland already “supports procreation that occurs in both opposite-sex and same-sex couple environments. Maryland appears to grant adoptions to both homosexual and heterosexual couples, and adoption agencies ‘may not deny an individual’s application to be an adoptive parent because . . . [o]f the applicant’s . . . sexual orientation.'”

If the state’s purpose is to give kids a stable and supportive environment, then the lack of equal rights for gay couples actually undermines that purpose, Raker argues. “While there may be a legitimate basis for retaining the definition of marriage as one between a man and a woman, there is no legitimate basis for denying committed same-sex couples the benefits and privileges of marriage.”

Given the court’s 4 to 3 decision, perhaps the best strategy would be to wait for a few more members of the court to retire or pass away (of natural causes, of course), and try again. But there’s also a chance, now that the court’s ruling has nullified the the need for a legislative attempt to ban same-sex marriage, that a case can be made for at least establishing civil unions for same-sex couples.

I’ll be the first to say, as I’ve said before, that civil unions may be achievable but civil unions are not equal to marriage, and I don’t really think they can ever be. But as I look at m growing family I find myself asking the same thing I’m asking of candidates and politicians in general. What’s the best way to protect our family and families like ours right now? What’s the best way to stop any more stories of what our families face as a result of not having marriage equality from happening right now. Civil unions don’t necessarily protect our families, but sans marriage what’s the best option?

Ron, a/k/a The Mad Professah adds this summary of the Maryland decision.

The first of these rulings is exactly the opposite of the famous Baehr v. Lewin case in Hawaii way back in 1993 and rejects the Andrew Koppelman-Sylvia Law legal argument that sexual orientation discrimination is itself a form of sex discrimination. The second decision by the Maryland Court is even more devastating, it is saying that lesbian and gay people do not form a “suspect class” like racial and religious minorities and thus the lowest form of judicial review can be used to review laws which treat people of different sexual orientations differently. The reason? Because although lesbian and gay people are an “insular minority” that have been subject to discrimination through history they are not politically powerless! The third ruling, that there is no fundamental right to marry someone of the same sex is unsurprising because I know of no court which has accepted this argument (not even the successful gay marriage decisions in Baehr or Massachusett’s Goodridge or New Jersey’s Harris). The fourth decision follows from the first three, in that once you have rejected the legal legs the plaintiffs are standing on to challenge the statute, all the justices have to do is come up with a reason “rationally related” to a legitimate government purpose to uphold the discriminatory law. The reason the judges came up with was the odious decision which showed up in both the Washington and New York cases: “fostering procreation and the traditional family structure”(!)

Just a few days before the Maryland ruling, Evan Wolfson quoted from the Iowa decision concerning why the conversation on marriage equality will no (and should not) end anytime soon.

Marriage is a precious right

Judge Hanson held:

Both the Iowa Supreme Court and the United States Supreme Court have recognized that the right to marry is a fundamental right…[P]rotections “should not ultimately hinge upon whether the right sought to be recognized has been historically afforded. Our constitution is not merely tied to tradition, but recognizes the changing nature of society.” Iowa Courts have generally been at the forefront in preserving the civil rights of their citizens in areas such as race, gender and sexual orientation.

Denying same-sex couples the freedom to marry harms families

Attempting to enumerate the myriad tangible and intangible harms same-sex couples and their families experience when denied marriage, the decision devotes six pages to describing 22 specific injuries same-sex couples experience every day: in child care and custody issues, inheritance, health care, property rights, and numerous daily events and exchanges that are affected by marriage or its absence.

The word ‘marriage’ itself is crucially important

As Pride Source pointed out,

The institution of marriage, Hanson wrote, is “so woven into the fabric of daily life and so determinative of legal rights and status” that denial of a marriage license “amounts to a badge of inferiority” imposed on gay couples and their children.

We are more than a year away from election 2008. As courts continue to rule, legislatures vote, and people who care about equality speak up and take action, our representatives looking for support in the presidential election must answer, not evade. Those who favor fairness and are busy now counseling or working for candidates should spend the next 14 months helping change happen, rather than arguing with the likes of me about why it can’t.

But what we’re talking about here may be as simple as the equal dignity of same-sex relationships, something even gay marriage opponents can recognize, as Jonathan Rauch points out in another post.

Not what you expected a gay marriage opponent to proclaim? Me, either. In the gay marriage debate, David Blankenhorn’s statement that “I believe in the equal dignity of homosexual love” represents something of a breakthrough. I heard him say it to a conservative Washington audience in the spring (they seemed taken aback), and now it’s online right here, in this Bloggingheads debate.

Blankenhorn goes on, here, to come out in favor of civil unions that would be just like marriage—including federal recognition—except that they would neither add to nor subtract from the existing parenting rights of same-sex couples. This, in Blankenhorn’s view, would do 90 percent of what gay couples want without affecting child-rearing laws throughout the country.

Not changing child-rearing laws? As I took a break from writing this post to feed and burp our eight-day-old daughter, I have to wonder implications that argument hold for same-sex families that include children. I understand Rauch’s point that what Blankenthorn proposes could be a lot better than what we have in the 49 states where there is no marriage equality. However, as we pack the kids of to a picnic, Rauch’s assertion that “parenting rights can be fought another day” raises all sorts of red flags for me.

I understand the “win what we can win now” approach, because it’s nothing new. It’s the same gradualism that’s a part of ever civil rights debate. And, as in every other civil rights debate, the implication of gradualism is that some people will have to continue to endure injustice without remedy.

That’s the reality on the other side of the theoretically reasonable “coin” of gradualism. But, as Steven Reynolds notes, civil rights for gay Americans is not just a theoretical concern.

Sometimes, not interacting with fine gay and lesbian families on a day-to-day basis, this campaign for their civil rights, to marry those they love wholeheartedly, and to raise the children they cherish, seems theoretical. This weekend it came home a bit more. Perhaps oddly, the issue came home while I was in the ocean up to my waist and waiting to grab the next wave. Yeah, I was body surfing when a young forcibly man caught my attention.

I knew “Scott,” and he knew me. We both go to the same section of beach on the Jersey shore every weekend. He’d engaged me and my wife in conversation the week before concerning his search for buried treasure with his metal detector. We’ve also seen him on his bicycle on several occasions. Scott is 11, and as he told me Saturday, twelve years old next month. I’m not sure what it is about me that made him think I’d be a welcome audience, but Scott also told me much, much more about his life on Saturday, there while we were bobbing in the surf waiting for the next wave. It all came in a blur of words, as only an 11 year old can string them together. His mother had died when he was young, his Dad was nowhere around, and Scott had been adopted. Then he revealed, proudly, that he had two gay Dads. The boy was positively beaming when he revealed it, as he challenged the next wave.

In this day, as an adult we don’t always adress children, afraid, I suppose, that someone is going to arch their eyebrows and wonder at our interest. In this type of situation my wife often thinks I’m a bit careless, but my instinct is to talk with the kid when adressed. And I did so. Still, it seemed odd to me that Scott, all 4′8″ of him, told me about his two gay Dads out there in the surf. And a few minutes later I suggested to Scott that it was time for him to go and introduce me to his Dads.

No, it was not odd to go up and meet “Robert” and “Randall.” There they were lounging in beach chairs, soaking up the rays. We came forward and I prompted Scott, who, like a good young gentleman, introduced us in as polite a manner as might be. (My goodness, if my own neices and nephews were so polite, I’d have quite a collection of thank you letters, wouldn’t I?) It turns our summer homes are down the block from each other. Robert and Randall seem as middle class and boring as my wife and myself. It may even be that we’re better at interior decorating than they are. Oh, we’ll see. I’m planning on inviting them over next time we’re down the shore.

But the matter of protecting Robert, Randall, and Scott as a family — or for that matter protecting Terrance, Rick, Parker and Lauren as a family — is a battle that can be “fought another day.” When that day will come, and what happens to our families between now and then is anybody’s guess and, apparently, nobody’s problem

One Comment

  1. Wow. I am so happy we have this right in Canada. what amazes me is how our familes have not collapsed since the right to marry was granted to us homos. I feel bad for our friends in the USA. How can a nation, self proclaimed land of the free, be so limitting? Don’t give up the fight!