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Jun 29, 2005 10:46 am

Same-Sex Marriage: A Victory For Conservatives?

In a historic vote, Canada's House of Commons this evening passed C-38, the bill to legalize same-sex marriage throughout the country. It was in real terms something of an anticlimax, since by this time only two of the country's 10 provinces (Alberta and Prince Edward Island) still lacked such laws. Nevertheless, on the symbolic plane the law (once approved by the Senate and granted the Royal Assent) will carry great weight.

There has been an extraordinary amount of political gamesmanship over the law. Conservative leader Stephen Harper, who just spent several weeks colluding with the Quebec separatist party Bloc Quebecois to bring down the Liberal minority government (coming on May 19 within a single vote, with the Speaker of the House casting a tie-breaker), now saying that any law passed with the aid of the Bloc lacked legitimacy. Harper has promised to bring a repeal bill if the Conservatives win power, though it is not clear how he could erase the same-sex marriage laws in the 8 provinces that already had them without violating (or setting aside) the Canadian Charter of Rights. Harper has previously offered to institute civil unions nationwide for same-sex couples if same-sex marriage is banned.

Meanwhile, within the Liberals, one MP, Joe Commuzi, left the Cabinet rather than vote for same-sex marriage, while MPs Pat O'Brien and David Kilgour left the Liberal Caucus entirely over it. A group of 12 other discontented Liberals reached a compromise with the government. In order to keep them from voting to bring down the government, Prime Minister Paul Martin agreed to amend the Bill to make sure that public officials opposed to homosexuality would not be forced to perform marriage ceremonies. In addition, the government agreed that religious groups could continue to call homosexuality evil without violating hate-crime statutes, and Churches could refuse to rent their halls for same-sex weddings.

The craven nature of the first provision, and the extraordinary irrelevance to the issues at hand of the others, were testimony, if any were needed, to the real issues at stake--hatred of homoexuality. But then, the incoherence of the dissident Liberals' concerns is as nothing before that of Fred Henry, Roman Catholic Bishop of Calgary, Alberta, who insists that same-sex marriage is a crime against children because it robs children of the chance to have a mother and father.

There may at least be something positive to say about all this sophistry. If the Church and the right-wingers are afraid to simply say right out that they hate homosexuality, and feel the need to cover themselves in language of rights, there is perhaps some victory in terms of acceptable social discourse.

There is, moreover, a distinct irony in the solid opposition of the Right, since the fight for same-sex marriage represents in large part the victory of conservative tendencies within the Gay and Lesbian movement. How did same-sex marriage become the most important, or at least the most public issue of concern to Gays and Lesbians? This is a question that is not by any means easy to answer.

The first mass movement among Gays and Lesbians in the United States was catalyzed by the June 1969 riot of patrons at New York's Stonewall Inn against police harassment. During the early 1970s, tens of thousands of people came out of the closet, marched in the street, or raised their voices in print to protest discrimination. Gay and Lesbian marriage was not a central issue at the time, and probably nobody would ever have imagined that it would be one someday. There were individual couples who devised bonding ceremonies, coupling ceremonies, commitment ceremonies, and a few progressive churches offered same-sex unions (the Unitarian Church became in 1984 the first major denomination to offer such ceremonies). There were also occasional attempts to get past anti-Gay marriage laws. For example, in March 1975, the district attorney’s office in Boulder, Colorado ruled that there were no county laws against same-sex marriage, and the county clerk married a half-dozen gay couples before the state attorney general ruled that such marriages illegal.

Nevertheless, the majority of Gay and lesbians viewed marriage at best as unattainable and irrelevant and at worst as reactionary. The sexual revolution was reaching its peak during the early Gay liberation years. The Feminist movement had laid bare the sexist and bourgeois elements of marriage laws, and the escalating rates of divorce caused many commentators to assert that the institution was dying. Gay male commentators such as Edmund White and Dennis Altman celebrated the community’s status as the avant-garde in expanding sexuality beyond monogamy and in inventing or adapting models of companionship to fit new conditions.

We should not underestimate how much these ideas remain influential in Lesbian and Gay community life. Many of the progressive people who established the movement still speak of marriage as exactly the institution that Queers should be trying to dismantle rather than reinforce it. Moreover, as in the case of military service, even among those who support marriage as a matter of principle, many resent how the issue has swallowed up funding and attention over more substantive struggles like civil rights laws. (There still are no federal sttutes against discrimination on the basis of sexual orientation, and three quaqrters of the states lack such protections). They fear, and not unjustifiably, that the marriage activists risk all the movement’s gains and its hard-won ground on a secondary question, one which is just the kind of emotional issue that attracts widespread opposition.

So what changed then? both lifestyle patterns and the political context. The AIDS epidemic transformed the community by encouraging the formation of long-term, stable relationships particularly by Gay men, to reduce the chance of transmission. Lesbian couples began having children in ever-larger numbers. The development of these relationships also reflected the conservative revival in American culture and the emphasis on “family values” (despite the way the Religious Right used such language as a code for antigay activities!). Ironically, the two Gay-themed books which most often were subjected to censorship in the late 1980s and early 1990s were Leslea Newman’s HEATHER HAS TWO MOMMIES and Michael Willhoite’s DADDY'S ROOMMATE, both of which were children’s books that featured same-sex parents.

The AIDS epidemic, moreover, came during the Reagan Administration, when social conservatives allied with the Religious Right occupied positions of power and influence. Gays and Lesbians were not immune from this trend (indeed, Terry Dolan of the National Conservative Political Action Committee and lawyer Roy Cohn, who were influential in the conservative revival, were both closeted Gay men who died of AIDS). As thousands of Gay and bisexual men fell sick or died, the government’s inadequate and moralistic response led people who had once rejected political action to engage in government lobbying and interacting with the state on treatment and research issues. In the context of the AIDS epidemic, this also meant that activists concentrated on transforming legal and political structures to obtain legal recognition for gay couples, in order to ensure hospital visitation, survivor rights on apartment leases, and inheritance rights. There were countless horror stories of greedy, ignorant or vengeful families of deceased men challenging wills and claiming jointly or even separately owned houses and possessions of their partners and friends. Meanwhile, in 1983 Sharon Kowalski, a lesbian living with her lover in Minnesota, was seriously injured in an automobile accident, and her estranged family took advantage of her condition to obtain custody and deny her lover access. These cases crystallized for many sexual minorities the dangers they could face and the need for legal protections.

The first step was Domestic Partnerships. While Quebec province granted legal recognition and equal economic benefits for Gay couples as early as 1982, less than a year after Wisconsin became the first U.S. state to enact anti-discrimination laws, those who had bgun to call themselves Queer activists faced a difficult struggle enacting such legislation. Even San Francisco, known as the Gay capital of America, did not offer such legislation until 1991. In the years following, several other large American cities, including New York, followed suit. Domestic partnerships gave couples some useful rights, like survivorships on rent controlled housing. However, it soon became clear that politically speaking this was a dead end, given how limited local and municipal authority went. Domestic partners did not (apart from municipal employees) gain access to joint health care policies, there were no tax advantages, and it was useless in terms of attracting support on the state level. On the contrary, like municipal anti-discrimination ordinances, they could be wiped out by hostile state laws. In 1992 the state of Colorado passed a voter referendum, sponsored by the Religious Right, which banned all laws protecting Gay men and lesbians from discrimination and wiped out any possibility for domestic partnerships. This law was subsequently ruled unconstitutional by the state’s Supreme Court and later by the U.S. Supreme Court.

It was around this time that the movement for same-sex marriage rights began. Again, there were a variety of factors that influenced it. First there was the international context. In 1989 Denmark legalized same-sex marriage, and in the following years most of the European Union countries granted some form of equivalent legal status to same-sex couples (such as the PACs in France). Also, after the long and difficult struggles they faced in the state legislatures, many activists felt that they could use the concept of equal protection to oppose discrimination in the courts. However, the most powerful force urging concentration on marrage was that of Gay conservatives such as Bruce Bower and Andrew Sullivan, who began to represent a sizable fraction of the community. (One study found that as many as 25% of open Gays and Lesbians voted for George W. Bush in 2000). The conservatives argued that the way for Gays and Lesbians to achieve acceptance in American society was to demonstrate that they were “normal” by acting like other Americans. Rather than seeking civil rights and anti-discrimination laws, which were difficult to enforce and reinforced the feeling of difference, they insisted that marriage was, (as Sullivan argued in his book VIRTUALLY NORMAL) “ultimately the only reform that matters” since it would represent such “normality.”

In the last 10 years since the Hawaii Supreme Court first ruled on the state's marriage laws, and climaxing with the advent of same-sex marriage in Massachusetts in 2004, the question has come increasingly to the center of U.S. politics and of the Gay and Lesbian movement. Whether it was wise for Gays and Lesbians to focus on marriage is by now a moot question--the issue is there and will not go away. However, that very success in itself is a victory for a faction of Gay and Lesbian communities that is very different (and indeed strongly opposed to) that which fueled the original rise of LGBT movements a generation ago.
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Ralph E. Luker - 6/30/2005

Jason, I'm inclined to agree with you, as well, that there is a logic of fear at work. But my own inclination is to think that it works in reverse of what you suggest. That is, if reformers said clearly that all that is being asked is that civil unions be made available to all citizens, performed by civil authoritities, and are obligatory for guarantees of civil union rights, then there is no stated threat to the traditional understanding of marriage, which is relegated exclusively to the authority of religious communities and would not be considered a substitute for civil union.

Jason Kuznicki - 6/30/2005

Ralph -- I would agree with you entirely about how the state should offer only civil unions, for all. But just try telling that to the "save traditional marriage" crowd. One word of that idea, and they'll immediately declare that the gays' secret plot has been exposed: See, they want to take marriage away from everyone. And they will scare enough people that it will never work.

Greg James Robinson - 6/30/2005

Ralph, I still agree with you that in an ideal universe it would be better to have the rite of marriage be simply religious, while the state licensed civil unions for couples of all flavors (which clergy were not permitted to perform) with appropriate and equal rights.

The problem is that civil unions for gay couples do not provide such equal rights. For one thing, ministerially it takes separate acts to ensure that the myriad provisions of law governing married couples apply to those with civil unions. Couples with civil unions in Quebec have been denied privileges reserved to "married couples." Indeed, despite their allegedly identical status, couples cannot even convert their civil unions automatically to marriage--they must divorce (i.e. dissolve their union) first and start from scratch in order to marry. For another thing, thanks to treaties, etc. married couples are supposed to have their marriages recognized everywhere. However, civil unions do not afford such privileges, and a government cannot make it so by stating the civil union is identical to marriage. (Of course, by the "Defense of Marriage Act", the US government and the state governments have refused recognition to same-sex marriages, but such refusal, at least where the states are concerned, is probably not constitutionally sustainable under the "full faith and credit" clause).
In any case, as long as there is that separation, the stigma of inferiority will remain, as the case of Prince Charles demonstrates. I am reminded of Thurgood Marshall and the oral argument in BROWN v. BOARD OF EDUCATION. John W. Davis accused the NAACP of expending great effort on what was merely a question of racial prestige. Marshall responded "exactly correct. [The Negro wants] the same status as everyone else regardless of race."

Ralph E. Luker - 6/30/2005

Jason, I don't think that you've read what I've argued repeatedly: that the state's interest is in a civil bond, that it should be available to gay and straight people, and that all the civil rights and privileges of such a union should be available to all, regardless of sexual orientation. I've argued that, because it is a sacrament in several Christian traditions and a religious rite in most religious traditions, marriage ought to be reserved to religious communities and performed by their functionaries for people who their communities believe should be allowed to marry. I cannot imagine why you would want to make a big deal of the word "marriage" since you do not consider yourself a religious believer in any sense and civil union would convey all the civil privileges that gay people would hope for.

Jason Kuznicki - 6/30/2005

As it was noted elsewhere, referring to a bond as a "civil union" diminishes it, as the British press did with Prince Charles' recent ceremony.

Beyond this symbolic importance, there is also a serious tactical reason why gay unions should fall in the same category as straight ones: If they do not, then the rights and privileges of same-sex unions can be diluted much more easily. This may sound like paranoia, but there is a petition drive underway in California that would remove all benefits from all civil union and domestic partnership programs in the state--while still allowing gay couples to register as domestic partners.

At that point, domestic partnership becomes difficult to distinguish from a sex offenders' registry. And you can bet it would be used to the same purposes.

Ralph E. Luker - 6/30/2005

I'd say that it is simply a major tactical error to refer to the civil union of gay people as a civil marriage. It sets off all kinds of alarms that didn't need to ring.

Jason Kuznicki - 6/30/2005

For years, HRC and other gay rights groups have been consistently saying "same-sex civil marriage." It is not the gay community's fault if conservatives can't tell the difference between church and state.

Greg James Robinson - 6/29/2005

No, I certainly do not believe that the state should decide who is eligible to perform religiopus functions--such as whether women should be priests. However, I also do not believe that the status of a religious function can be promiscuously placed over everything a church does in order to shield it from laws that apply to everyone else, or that the state is incompetent to determine what is or is not properly a religious function. Faith-based charities do not have the right to discriminate on grounds of gender or race irrespective of their particular dogmas. Why should they be given the right to discriminate on grounds of sexual orientation?

Jonathan Dresner - 6/29/2005

I always thought it very ironic that our secular marriage license had to be signed by a rabbi, when our Jewish marriage contract (ketubah) only needed to be witnessed by a couple of Jews (though we did include the Rabbi).

Ralph E. Luker - 6/29/2005

At risk of being called "silly," I'd submit that religious communities do have rights to decide who is and who is not eligible to perform religious functions and that that is elemental to freedom of religion. Whether I agree with the Roman Catholic Church's position that women are not eligible to the priesthood is really quite beside the point. No state or federal legislation will determine that they are. And I don't believe you think that it should.

Ralph E. Luker - 6/29/2005

Oscar, My position is that marriage is the prerogative of religious communities and should be available to persons on terms defined by those religious communities. Civil unions should be available to all persons and should be performed by agents of the state. Civil unions, not marriage, should determine tax considerations, medical coverage, visitation, inheritance rights, etc.

Greg James Robinson - 6/29/2005

Don't be silly, Ralph. I do not dismiss religious perspective. I dismiss attempts by different sects to use their particular religious beliefs as a means of violating the rights of others, and particularly to sanctify their stand as a defense of freedom of religion. Mormons (and all others) were required not to discriminate against African Americans in civil rights laws, from New York's in 1945 to the federal one in 1964. In contrast, the Salvation Army is free to fire a Gay employee of a soup kitchen, as it did some years ago, on the grounds that it opposed homosexuality. Is such service acting in a religious capacity?

I am happy to agree that the civil status granted couples of whatever gender should be divorced (excuse the expression) from the religious rite known as marriage. However, until you can demonstrate the existence of significant opposition to "gay marriage" by religious groups who support secular unions for same-sex couples, or even equal rights for Gays and Lesbians, I will question whethet their actions are motivated by an overriding concern for sacraments.

Oscar Chamberlain - 6/29/2005


I am aware that my example was unlikely in the extreme for the reasons that you state. I simply was making the point that the state makes no attempt to formally link the legal ability of a person to perform a marriage with that person's religious institutional. That is the person's choice.

However, I may have misunderstood your position on the broader issue here. I had assumed that you considered the pursuit of gay marriage to be simply a major political error. However, one of your comments suggests to me that you think that the term "marriage" should be reserved for heterosexuals while a slightly different thing called a Civil Union should be available to all couples. Is that a misreading on my part?

Hugo Schwyzer - 6/29/2005

Thanks for a great post, Greg. Well done all the way through. When I teach my course, I always cover Harry Hay, his Radical Faeries, and the gay critique of marriage as a hetero-norming institution. It resonates with some folks.

Ralph E. Luker - 6/29/2005

Greg, You have a tendency to dismiss all religious perspective as benighted ignorance. If you do that at the outset, it makes conversation with the ignorant very difficult. I believe that it is a mistake to refer to state interest in civil unions as "gay marriage." Secular authority ought to be authorized to recognize civil unions of both gays and straights and clergy ought not be performing such acts on behalf of the state. They ought to be performing marriages as understood by their own religious communities.
Oh, and when were Mormons obliged to hire African Americans? They may have done so in secular capacities, but they could not be obliged to hire African Americans to act in religious capacities.

Greg James Robinson - 6/29/2005

This does, however, point up the absurdity of the "religious" objections--no clergy would ever be forced to perform same-sex marriages, just as no rabbi (whatever laws against religious discrimination exist) would ever be forced to marry an atheist to a Catholic. Religious groups even get a pass on antidiscrimination laws. A Catholic charity may refuse to hire a lesbian on the grounds of the Church's doctrines on homosexuality. The Mormons, say, were never permitted to avoid hiring African Americans, despite their church's official doctrine (until 1978) against blacks.

Ralph E. Luker - 6/29/2005

Greg, You are incorrect about this. I am an ordained clergyman and have performed weddings. I signed the marriage certificates and, in doing so, acted as an agent of both the church and the state. Oscar, your point about a rabbi being authorized to marry a Catholic to an atheist might be technically correct from the state's point of view. From the religious community's point of view, a rabbi or a minister is so unlikely to be asked to do so that it is quite beside the point and it would jeopardize his or her standing with the religious community.

Greg James Robinson - 6/29/2005

Oscar is right about the shameful attempts by anti-Gay bigots to posit same-sex marriage as a threat to the family, rather than the opposite. A sacrament marriage may be, but I have not heard of the Catholic Church threatening excommunication to legislators who support divorce laws, or saying that they are in league with the devil (as a priest in Paul Martin's parish did).
My point about the controversy in Canada is that there was a large amount of unreality to people talking about the sky falling if the bill were adopted, since nine-tenths of the country was already covered by same-sex marriage laws (generally adopted in response to Court rulings), and there was no audible call for referendums or constitutional amendments to overturn such laws.

Greg James Robinson - 6/29/2005

Correct me if I am wrong, but my understanding is that in the United States (unlike Canada, where there are officially recognized religions) clergy are not licensed to perform religious marriages--that is to say, a justice of the peace or other civic official signs the licence on behalfof the state, and the religious ceremony is completely separate. It is worth recalling once again that the Puritans, who were hardly believers in separation of church and state, refused to have weddings in their churches on the grounds that marriage was entirely a secular, governmental matter.

Oscar Chamberlain - 6/29/2005

A few thoughts

Yes, the issue of marriage and the licensing of clergy to perform marrieage does intertwine Church and State. But the power given to clergy is a civil one. A rabbi so empowered is not limited to marrying Jews. He or she can legally marry an Athiest to a Roman Catholic.

The word marriage in our culture conjures up a range of connections and expectations that touch on our fondest hopes for ourselves and our families. Yet those hopes are beseiged by reality. There is no longer a reasonable expectation that most marriages will be lifetime committments, no matter how much we hope that our own situations are exceptions.

Anti-gay bigots have played on the dissonance between hope and reality by portraying gay marriage as a threat to the family when, as Greg notes, it is really the opposite. The new reconciliation between homsexuality and marriage is the first concerted movement toward greater commitment we have seen in some time.

Ralph E. Luker - 6/29/2005

The state authorizes clergy to perform what you call its "civil union"s. They understand it to be a marriage. Clergy acting as agents of the state to perform a rite that they understand to be a sacrament does, inevitably, entangle issues that might have been separated out -- to the advantage of both the state and religious communities.

Greg James Robinson - 6/29/2005

I do not "now" believe that focusing on marriage rights was the wrong path. I would put myself in the camp of those who supported the issue on principle but believed that antidiscrimination laws would make for more important progress. My point, though, is that whether the movement made a mistake in supporting challenges to marriage laws is by now a question for eventual historical judgment, not immediate political judgment.

Marriage in the United States IS a civil union. However, the category of "civil unions" seems to have been a nonstarter as a policy, no doubt because the Separate but Equal aspect is too plain (witness how British media, in order to downgrade the importance of Prince Charles's marriage to Camilla Parker-Bowles, referred to it as a "civil union.") The fact that only one state adopted civil unions (now joined by one other) before a marriage law passed seems to indicate that they are primarily a convenient mechanism for politicians to oppose marriage without seeming homophobic. (Witness Stephen Harper's last-minute embrace of civil unions to roll back mariage laws) The Catholic Church and the Religious Right have been throughout just as opposed to legal recognition of civil unions--and for that matter, antidiscrimination laws--as to marriage. The anti-marriage amendments passed in the 11 states last November (none of which states, once again, had an antidiscrimination law) also ban civil unions.

Ralph E. Luker - 6/29/2005

I'm afraid that the decision to refer to same sex unions as "gay marriage" was a disasterous one. It would have made sense to refer to "civil unions" as the state's responsibility, available to gay and straight people alike; and reserving "marriage" to the responsibility of religious authorities, who could make decisions about eligibility.

Jason Kuznicki - 6/29/2005

Unless the government begins dictating to churches whom they should and should not marry (a move that no one is seriously advocating, and that I would vehemently oppose), the Catholic Church's opposition to same-sex *civil* marriage is just so much opportunism. They could easily have left the issue alone, much as Jews ignore government regulation of the pork industry.

Ralph E. Luker - 6/29/2005

Greg, Thanks for this trace of the emergence of marriage as the foremost issue on the agenda. Am I correct in thinking that you now believe that that may have been a wrong turn? I would take issue with you about one particular. It really was the emergence of marriage as the foremost issue that essentially backed the Roman Catholic Church in particular into a reactionary corner on the issue -- because, for Rome, marriage is a sacrament and, thus, an essential consideration for the church. It need not have been thus because, as John Boswell's work showed, the church had a service of commitment between same sex couples that it might have drawn upon as being a part of the tradition and because the priesthood has long had a significant percentage of gay members. But the focus on marriage concurring with the priesthood's own scandals of exploitation pretty much fixed Rome's position in a reactionary place. For denominations that do not regard marriage as a sacrament or which have not been so traumatized by abuse scandals, there is still considerable room for discussion.

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