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Feb 17, 2004 8:31 am


Gay Marriage: Personal Connections



Some old college friends of my wife recently got married. They'd been kind of an odd couple: a strongly liberal Democrat and a moderate, but nonetheless devoted, Republican. But it's worked out, through ups and downs, for fifteen years, now. I got to know them during the three years we lived in Cedar Rapids, just a short drive away. OK, I'll stop being coy: they're lesbians (and the Republican votes Democrat, now). And they're legally married. They drove up to Toronto -- two Canadian appellate courts [Thanks for the correction!] recently ruled that there was no constitutional basis to forbid homosexual marriage -- and got married.

That's legal. But it raises a question for me, similar to the question I posed earlier about the"full faith and credit" clause. To what extent is the US legally required to recognize marriages performed overseas? OK, in this case it was a couple of Americans who knew they couldn't get married in the US, so it may not be the strongest case. But what happens when a couple of legally married Canadian homosexuals move south? If one's on a work visa, would the other be entitled to a spousal accompaniment permit? The nearest analogy I can think of is polygamy (no, I don't think there's any functional equivalency, except as forms of marriage which are legal only elsewhere; that's an argument we'll have later), which is legal in some countries: does anyone know whether US law recognizes polygamous marriages, and if so, under what legal principle?

Anyway, when they came back home to Iowa City, they spread the word, sending out tasteful announcements, and holding a celebration reception. They sent notices to the newspapers, too. The Cedar Rapids Gazette [subscription required] not only printed their announcement, but, after considering the fact that the marriage was, in fact, legal, printed it under"Marriages" not under the new"Commitments" category. Well, the Gazette has already printed at least one letter objecting to the placement.

It brought to mind an argument by Michael Bronski, the"gay liberation" issues writer for Z Magazine, and a generally fine writer. Back in November 2002, he was writing about"The Struggle for Gay Nuptial Notices," and he was discussing the relative importance of what seems like a very minor matter. But, he wrote, it goes to the core of:

"...the most profound organizational principles of a functional society: manners, etiquette, social protocol, and civility. Perhaps the real revolution won't happen in the courts or on the streets, but in the society pages, the columns of Dear Abby and Miss Manners, and the newest edition of Emily Post's etiquette."

Social mores are already changing, really quite drastically. For example, in the AP report on the debates in the Massachusetts legislature about attempts to create a constitutional exception to"equal protection" and"human dignity", was this quote:

"Sen. Jarrett Barrios, the first openly gay lawmaker to speak during the two days of debate and one of the most visible critics of the constitutional ban, choked back tears when he spoke about how an amendment would affect his family.

'Now I'm biased and you're all thinking that. He is up there because he is gay,'' said Barrios, who recently adopted two children with his partner of 10 years. 'Don't believe those who tell you that just defining marriage between a man and a woman will not hurt your gay and lesbian friends, your family members, your neighbors and your colleagues, because it will.'''

I have a personal connection with Senator Barrios: he has the distinction of being the only elected politician I've ever met before he was elected to anything, as well as the only politician to whose campaign I've made a monetary contribution. I lived in Cambridge when Barrios first ran for the state legislature, and he was doing door-to-door campaigning. So we got to spend a little time, probably not more than ten or fifteen minutes, but both my wife and I were very impressed with his articulateness, progressivism and personable character. In a way, I'm a little surprised he's still in the state legislature: this guy is entirely capable of moving beyond the state level. He's a serious legislator and represents, for me, the potential that politics may still involve enough people of intelligence and good will to move us forward.

And he's an adoptive father. Tell me this. If, as the"defense of marriage" advocates argue, children are better off with two parents in a stable relationship, then why should Barrios' children have to live with the knowledge that their adoptive parents don't have the right to legally marry? OK, I know the"defense of marriage" argument really rests on the advantages of mixed-gender parenting, but it has to be better for there to be two parents than one, no matter what gender. And it has to be better for children to know that there is a formal commitment, as well as deep and abiding affection. Why should his children have to hem and haw and qualify when speaking of their parents?

We've come far in our social evolution, but we are creating a legal morass by not dealing forthrightly and humanely with the issue of marriage. Are we going to do the same thing on homosexual rights that we are doing on the death penalty? Nearly every decent democracy in the world has abolished capitol punishment, and those that haven't won't consider it for the insane, the developmentally disabled, the children; we, on the other hand, stand with some pretty nasty company in our cavalier approach to life and death. Is this going to be the same thing?


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Anne Zook - 2/16/2004

On behalf of Senator Barrios and other state legislators, none of whom I know anything about, let me point out that it's entirely possible that a politician might prefer working on the state level. Much good work is done on a state level. State legislators frequently have the ability to pass (or deny) legislation that has a very definite and immediate impact on their friends and neighbors, and it can happen that from a "groundswell" of state actions, national legislation can be inspired.

Aside from that, I'm all for gay marriage. I honestly think it's indefensible to deny homosexual couples the full rights of marriage under our constitution and I'm not at all crazy about the idea of passing an amendment to codify narrowing the definition of who is allowed to be "equal" under the law.


Jonathan Dresner - 2/16/2004

Well, that answers my question about polygamy, anyway.

I think the author is underestimating the chaos which will ensue when even as few as 1% of the marriages in this country are geographically bounded.

But he's absolutely right that amending the US Constitution in this exclusionary manner would be a tragedy and travesty.


Oscar Chamberlain - 2/16/2004

I found this slate article interesting.

New to me was an old loophole to allow states not to recognize "normal" marriages in another state.

http://slate.msn.com/id/2095259/


Jonathan Dresner - 2/15/2004

I agree, whole heartedly. I've made a very similar argument before, in fact: one of the important roles of the co-equal Judiciary is the adjudication of competing rights and monitoring of the extension of law into new areas, to ensure that it is constitutionally consistent, both of which require "activism." The problem is not "activist judges" but ideological ones who cannot let go of the partisanship of the other branches.


Robert KC Johnson - 2/14/2004

Perhaps the most interest aspect of this debate for me--and the area in which, I believe, gay marriage advocates have not made their case effectively enough--revolves around the argument of the President (and advocates of a MA constitutional amendment) regarding the need to control "activist" judges, and that the "people" should have a right to judge on social issues.

The closest historical comparison I can draw to the MA decision is the Supreme Court's ironically-named Loving decision, which overturned VA's ban on interracial marriages. This clearly was a case of judicial activism--one poll from a few years before the 1967 decision showed 97% of whites in VA in favor of upholding the ban.

Judges have an appropriate role under the Constitution in making decisions that protect minority rights, even if these decisions would never prevail if subjected to a referendum. Gay marriage advocates would do well to make this point more forcefully than they have.

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