Outlook: Gay Marriage and States Rights
Emily Bazelon
Legal Affairs Magazine
Monday, November 24, 2003; Noon ET
It took conservatives about two minutes to call for Congress to outlaw gay marriage across the land after the Massachusetts high court's decision last week making way for same-sex unions. Liberals, on the other hand, congratulated the state court for boldly doing its own thing. In other
words, the right and the left quickly swapped sides in the debate over when federal power should give way to state sovereignty, says Emily Bazelon in a Sunday Outlook article "Trading Places Over Gay Marriage."
Bazelon, a senior editor of Legal Affairs magazine, was online Monday, Nov. 24 at Noon ET, to discuss the irony of this switch and the constitutional ambiguities about states' rights.
The transcript follows.
Editor's Note: washingtonpost.com moderators retain editorial control
over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
Emily Bazelon: Hi. I'm Emily Bazelon, here for Live Online. I'm a senior editor at Legal Affairs, a new magazine that covers law, broadly defined, for a mix of general-interest readers and lawyers.
I look forward to your questions.
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London, U.K.:
Why is it "fair-weather federalism" to propose a formal amendment to the Constitution? Conservatives are not asking the courts to revise the constitution in keeping with their own ideological commitments. Rather, those who support a federal marriage amendment (and, of course, not all conservatives do) are proposing that the People undertake the serious and appropriately difficult task of outlawing it themselves. Marriage is going to be federalized, one way or another, and it hardly seems hypocritical for conservatives to opt for the constitutionally prescribed method of amendment.
Emily Bazelon: Of course you're technically correct that there's nothing anti-federalist, exactly, about proposing to amend the Constitution. Once something is in the constitution, it by definition resets the boundaries of federalism. But I'd argue that a const amendment to ban gay marriage is at odds with the spirit of federalism. The Mass Supreme Court has the power to interpret its own constitution, and has done so. To ask the federal legislature--Congress--to essentially override the Mass ct's decision isn't exactly respectful of the authority of states courts to decide things for themselves, is it?
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Southern Maryland:
I'm not surprised that both liberals and conservatives have no consistency when it comes to federal power versus state power. If you believe the Libertarians, the left favors more government power in economic matters and less power in personal matters, and the right favors the opposite.
What do you think of Michael Kinsley's suggestion of "privatizing" marriage, meaning doing away with government-issued marriage licenses to make it entirely a private issue?
Emily Bazelon: I think Kinsley's is a really interesting proposal. Taking the state out of marriage could reduce or perhaps eliminate the many ways in which married couples and their children are privileged above others, on everything from taxes to hospital visits. Marriage is so fundamental to the way that society is organized that it's kind of a mindbender to imagine what we'd be like without it. Kinsley makes a good argument for why we'd be better off. My response, for argument's sake, would be concern that knocking marriage off its pedestal might make it easier for parents to opt against taking care of their children. That wouldn't be a good thing.
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Washington, D.C.: It is important to recognize that there are two components marriage: one that is sacred and another that is secular. On the one hand, marriage is a sacrament of the Church and is traditionally viewed by Christians as an instituion that symbolizes the union between Christ and the Church. On the other hand, marriage is a legal union that provides over a 1000 automatic rights and privileges to those who are married. In the US, priests and ministers function as representatives of the State when they perfom a marriage and it seems to me that this is an area where the separation of Church and state is fuzzy at best. Do you see a church/state angle to this debate or is this simply a states' rights vs. federalism issue?
Emily Bazelon: I agree that there's a somewhat odd mix of church and state here, when you stop to think about it. In some states, this is much less of an issue because anyone can be authorized as a "justice of the peace" for a day, to perform a wedding. In other states, however (including Maryland, last I checked) it's relatively difficult to have a civil wedding. You have to go to the courthouse, there are few state officials delegated to perform the ceremony, etc. In that situation, I do think there's a church-state problem. In the context of the gay marriage debate, religious values obviously infuse the arguments and the passions on both sides, particularly those who are opposed. But that's how political and social debate has to be, right--people expressing their views and values, whatever the source?
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Arlington, Va.: I try to read the conserviative and liberal arguments regarding gay issues, but being a gay man, I tend to read more of the latter, especially in the gay press. Many people say without much concern that DOMA is unconstitutional and will not stand up to judicial scrutiny. Is this true? What about DOMA makes it fall on such shaky ground?
Emily Bazelon: The argument that DOMA is unconstitutional begins with the generally liberal reading that the courts have given the "full faith and credit clause" in the Fourth Amemdment, which says that the courts have to respect each other's public acts and court rulings. The question, however, is whether marriage is either a "public act" (statute),
"record" or "judicial proceeding." That seems strange, I know, since divorce obviously is. But I think it's part of the inherent confusion about what marriage really is, and where the source of authority for it should come from.
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La Mesa, Calif.:
My concerns about the gay marriage decision are that I am afraid we are on a slippery slope to re-defining the family structure. For example, a key part of the court decision is that it is a person's right to express sexual intimacy and form a marriage relationship with any other person of their choice. By this reasoning, what can stop someone from wanting to marry their sibling, or cousin, or other close relative? If one is free to decide about intimacy, how can laws against prostitution be maintained? And if one is free to form relationships and express intimacy, why does it have to be restricted to one other person? I'm very concerned that this ruling could open the door to polygamy. Does anything in this ruling address other restrictions that are placed on marriage relationships (i.e. one can't marry a sibling or more than one person), restrictions that we presumeably all agree on and would not want a future court ruling to overturn? Thank you.
Emily Bazelon: The Massachusetts court addressed these concerns in its decision (called Goodridge v. Dept of Public Health, avalailable at www.state.ma.us/supremejudicialcourt/goodridge.html). The court's answer goes like this: Every state has "consanguinity" laws that forbid marriages that are incestuous, as we've come to define that term (siblings, cousins, etc). Every state also has laws that limit marriage to the union of two people. As Goodridge says, there is nothing about gay marriage that disturbs the bar against consanguinity or against binary marriage. You ask about opening the door to polygamy, and certaintly one can imagine the court challenge that says, hey, if gay people can marry because equal protection means that no one is a second class citizen, why can't I marry two women? But I don't think the second follows in any way from the first, legally speaking. The Mass ct did a good job of taking apart the state's arguments for restricting marriage to one man and one woman--mostly, by refuting the argument that marriage is primarily about procreation. In the case of polygamy, however, there's plenty of evidence to support a state's hypothetical argument that polygamy fails the equal protection test because it's a form of gender discrimination against women.
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Vienna, Va.:
While on the surface it may seem to be a victory for the so-called "Gay rights" movement, in the long run, gay and lesbian "marriage" is doomed. This Massachusetts ruling has created an enormous backlash across the country....one that even the media has not yet fully recognized. There is a strong possibility now, not just at the state level, but nationally, for a Federal Constitutional amendment recognizing marriage as it was intended to be....between a man and a woman. Congress has enough Democrats and Republicans both who will support this. Bush will sign it. While it is a little too early to predict precisely that it will get the required majority of three-fourths of state legislatures across the country, there seems to be very little support for gay marriage outside of coastal California and a few areas in the urban Northeast. My guess is we will see the Constitution itself amended within five years.
Emily Bazelon: You could be right, and I understand that a lot of gay people share your concern about the timing and wisdom of this decision. But here's the countervailing view. The Christian right tries to play up this issue, but they've got no victim--no pictures of aborted fetuses, no testimony from the families of murder victims. And the left responds with the stories of real gay couples. More and more, people on all sides of the political spectrum meet and get to know gay people. As that happens, it gets harder to justify denying them the rights and benefits that everyone else enjoys. And just as opposition to interracial marriage melted away, opposition to gay unions does. What do you think? There's an op-ed in Sunday's NYT by Adam Goodheart that makes this argument more eloquently than I have.
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Elizabehtown, PA:
I don't think that it is entirely accurate to argue that conservatives and liberals are switching sides on the States Rights issue regarding gay marriage. Because of the "full faith and credit clause" of the Constitution, it is highly likely that if one state in the Union recognizes gay marriage others will be forced to follow suit. Hence, conservatives are expecting the Supreme Court to immpose gay marriage on the entire nation sometime in the near future. Do you not agree?
Emily Bazelon: It's hard for me to imagine today's Supreme Court imposing gay marriage on the country. The composition of the court leaves little zero possibility of that outcome--especially since Justice Kennedy, in his majority opinion striking down the Texas anti-sodomy law, made a point of saying that broader gay rights weren't the next step on the court's agenda.
I also think it would probably be a mistake for the court to take such a stand. Broad decisions about civil rights are hard on the court as an institution, because people naturally feel that their elected representatives, not judges isolated from politics, should be making these calls. I think it's one thing for the Mass supreme court to take this stand, as one state experimenting with a new idea. But it's quite another for the US Supreme Court to alter the law about this for the entire country. I don't think we're ready for that.
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Washington, DC:
Hi Emily-
Don't you think that the groups that are so against gay marriage because is puts a black mark on the institution would be better served by complaining about the drive through wedding chapels and the reality dating shows that encourage relationships between people that don't even know each other as opposed to keeping people apart who are deeply commited to one another, have been in love for years, and are simply looking for the legal recognition of their relationship so that they may have all the rights as other committed couples?
Emily Bazelon: Yes! It seems to me that there are lots of things more threatening to the institution of marriage--the examples you cite; people who marry purely for money; fake weddings to obtain citizenship--than a marriage between two people of the same sex who are sincerely committed to each other for the long term.
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Herndon, Va.: If a bi-sexual man married another man in Vermont (where it is legal to do so) and then, since the other states will not recognize him as married, he marries a female in a differant state, then, lets say he dies in Vermont, with a will saying that all his belongings go to his spouse, since, by the full faith and credit act, Vermont must accept him as married to the female, who do they give his belongings too? - his husband, or his wife?- What would happen?
Emily Bazelon: Whoah, that's a tricky one! Sounds like a hypo on a law school exam. If the guy got married first in VT, and his will is being interpreted in VT, I'd say his first marriage is the valid one. Because VT recognizes the same-sex marriage and because bigamy is against the law.
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London, UK:
On the question of separation of church and state in marriage, you might be interested to know that in Germany (where my husband is from) and in several other European countries, marriages performed by religious authorities are not considered legally binding. In order to get the benefits of marriage in the civil sense you need to be married by a civil servant in a civil ceremony. Most people will then have their religious ceremony afterwards in the church of their choice. I think this clear distinction between the legal and religious meanings of marriage may be one reason why gay marriage seems to be considered more acceptable in countries like Germany and the Netherlands - because it enables Christians to see it as not necessarily a threat to the religious institution.
Emily Bazelon: Yes, the European separation you describe seems awfully sensible. The opposite example I can think of is Israel, where there are no civil ceremonies (only religious ones performed by Jewish, Muslim, and Christian authorities), and as a result, some people who don't like the idea of state-sponsored religion controlling them on their wedding day go out of the country to get married.
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Hyderabad, Pakistan:
Some people advocate saying that in bringing up of children both the male and female parents are equivalently essential to care their offsprings to help keep up balance of their (offsprings') personality in the term of their awareness about both manhood and womanhood in the human society where both the male and female population is almost equal i.e. the practical world of his/her living.
Whats your opinion?
Truly yours,
A.R.Shams
Emily Bazelon: This is a hard one. As I understand it, there is some research that shows that having both a mother and father is good for kids. On the other hand, I don't think anyone has shown that kids raised by gay couples are disadvantaged, which makes me wonder whether the primary advantage comes from having two parents, as opposed to a male parent and a female one. In any case, I think this is a fascinating empirical question about which we need to learn a lot more.
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Chevy Chase, Md.:
Why are republicans so anti-gay and anti-same sex marriages? I was thinking that they have self esteem issues and to make themselves superior to others. They want to oppress the gay community so they can feel better about themselves. WHy do people care if someone on the otherside of the USA gets married? it has no affect on them. its none of their business. Are we the only country that has a ban on gay marriages?
Emily Bazelon: There's a terrific recent column by David Brooks, a conservative, arguing that Republicans should be saying "Yes, gay marriage! Yes all kinds of marriage!" Because what they really should care about is the social stability that comes from more married couples. That perspective of course assumes that marriage is a good thing, societally speaking. But it's an interesting one.
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Dallas, Tex.:
How is this issue any different from the US Supreme court striking down the "states rights" claims in racial discrimination and later in the miscegenation issue? It would appear that the same people are screaming that the "courts are legislating inappropriateely." Thanks, Susan
Emily Bazelon: Susan, I think you're right that people are concerned that the Mass court usurped the role of the legislature. One of the dissenting judges based his dissent on exactly that argument. I can see why he did so, as a matter of philosophy, there is a very coherent argument to be made against activist courts and activist decisions. The strongest point, I think, is that big shifts in social attitude are much more likely to win widespread acceptance if they're debated by voters and in the legislature than if they come through the courts. Still, there are questions of basic rights that courts have played a key role in answering in this country. The ban against interracial marriage and other forms of racial discrimination is one of them. Are we better or worse off for Brown v. Board of Ed and Loving v. Virginia?
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Lewes, Del.:
Homosexuality is a very small percentage of the population as a whole, so why then do hetrosexual people find it so threating to there way of life, when in fact over 50% of hetrosexual marriages end in divorce anyway?What has become of freedom of choice? let them get married if they want to, It will not affect anyones bottom line one iota, and besides, why should they get off the hook for all the pain and misery that marrage entails?
Emily Bazelon: The best argument I've heard against your "live and let live" premise is that if gay marriage becomes legal, children will be taught differently about marriage and love in school than they currently are--in other words, they'll learn that gay marriage has the approval of the state. If you're a religious person who is deeply certain that homosexuality is morally wrong, that idea of course is very unsettling.
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Laurel, Md.: There are essentially two camps in most debates about the rights of homosexuals: those who think discriminating against homosexuals is like discrimination against blacks; and those who think it's like discriminating against pedophiles.
Even more central than what the Constitution says about what our rights are, is our common cultural understanding of what human rights are. (The constitution doesn't specifically prohibit Congress from making a law limiting how many children a couple can have; it's such a fundamental right that the Constitution doesn't even have to address it.) Some will see this ruling as a confirmation that gays enjoy the same rights as hetrosexuals to marry the person of their choice; others see it as giving perversion the same status as family.
But the "state's right" switch is not new. When the Republican party controlled Congress is the late 1800's, several states passed laws regulating business more tightly than federal law did; and the Supreme Court overturned many of them on the grounds that Congress implicitly granted businesses freedom from such regulations by not passing them at the federal level. Even today, Elliot Spitzer and not the SEC have been primarily responsible for uncovering most of the recent stock market scandals.
"Forum shopping" is nothing new, and anyone will prefer state vs. federal control depending on which level of government is more sympathetic.
Emily Bazelon: I think you're right that people's gut feelings about gay marriage come down to whether they see it as the latest important battle for civil rights (racial equality), or abhorrent in some way (pedophilia). Perhaps the second point of view is beginning to fade for many people at least, as we become more accustomed to seeing gay couples. It's been widely remarked that the kiss between two men who received a Tony award this year on TV drew very few complaints. Compare that to the fuss over the show Ellen several years back.
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Boulder, Colo.:
Gay rights activists often compare prohibiting gay marriage to post-Civil War Jim Crow laws forbidding interracial marriage. But in those cases, state governments cited "white supremacy" as their justification for banning interracial marriage. Doesn't the present day absence of prejudice on behalf of state governments make the argument quite different? I have never seen pictures of entire communities gathered for the lynching of a successful gay man.
Emily Bazelon: One response to your analogy is that the state's prejudice is simply manifesting itself in different forms. In Massachusetts, one of the state's chief arguments against gay marriage was that a mother-father married combination is the optimal setting for raising a family. That's an empirical question, and I don't think there's enough research to answer it yet. In other words, the jury is out. If that's the case, why should the state assume that same-sex couples aren't optimal?
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Washington, D.C.: First, once again I have no say in the national debate because the District of Columbia doesn't count in the tally of 'states' needed for a constitutional amendment, and I have no congressional representatives to vote against the amendment. So automatically over 1/2 million people's opinions don't get counted. It's pretty much a given that DC would vote against the amendment, given the strong gay rights we have here.
Second, I think your article accurately pointed out the irony of the 'switching sides' in this issue. But I would point out that this constitutional amendment idea is nearly unprecedented in that it would, for the first, time single out a group of individuals for a lessening of legal rights. That has never happened in over 200 years as a nation. Federal intervention is quite often a broadening of powers (notable exception is gun control).
On a personal note, I shudder to think that my beloved US Constitution may someday be used to make it harder for me to make uncontested burial decisions and medical decisions for my partner of the last 15 years. I can often tolerate mean-spirited laws at the local level, but thinking that my entire country is against me leaves me greatly saddened.
Emily Bazelon: Hmm. I'm trying to think of a constitutional amendment that restricted rather than broadened individual rights. Prohibition? Good thing we repealed that one.
I do think there's something more troubling about a national law that constricts rights rather than expands them. The framers were wise to give states the authority to experiment in many arenas of social policy. Of course there are limits--and of course Congress can go through the process of amending the constitution to change the boundaries of those limits. But I think the basic principle is a good one. Even Tom DeLay, who must be taking heat from the right for this, has questioned the wisdom of moving too quickly to amend the constitution.
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Philadelphia, Pa.:
Rep. Musgrave appeared on This Week yesterday with Barney Frank. There she argued her constitutionalamendment would not in fact outlaw civil unions or anything else the states came up with aside from gay marriage. Is this an honest interpretation of her amendment? And what do you think the chances are of such an amendment being ratified?
Emily Bazelon: If my optimistic hunch turns out to be correct, then Musgrave's amendment won't go anywhere, because moderates in Congress won't have the stomach for it. Arguably, President Bush held back a bit last week by saying that he'd help preserve the sanctity of marriage without explicitly backing a const amendment.
About whether Musgrave's amdmt will leave civil unions intact: maybe so. But the interesting thing about the Mass ct's decision is that civil unions sort of pale in comparison to full marriage rights, don't they? So I'd imagined gay people would be emboldened to ask for the whole thing.
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Alexandria, Va.:
Even in Vermont, it's my understanding that gays can have a "civil union," but that is not marriage. So in the hypothetical question, seems like the "spouse" would be the person to whom he was married (the woman), not the man with whom he had a "civil union."
Can't any two people go to a lawyer and make up appropriate wills, agreements of mutual support, etc., and choose to be faithful to each other? What practical difference will "marriage" make? Especially as the eventual divorce rate for gay marriages isn't likely to be any better than the rate for heterosexual ones.
Emily Bazelon: Mmm, maybe. But if a VT court decided to treat a CU as the equivalent of marriage, for the purpose of construing a will, then the same-sex union would take precedence, right?
Sure, you can make a will leaving everything to your same-sex partner. But if you die intestate, or without a will, your partner gets nothing if you're not married--and in most states (every state?), a third or some other significant percentage of your assets if you are married. That seems like a pretty impt practical difference.
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Washington, D.C.:
Isn't the whole issue of gay marriages just an overly drummed up political divice? First off, if gays want to get married, let'em do it. How does it actually conern anyone other than the two people who decide to get married? What's more, no matter how the situation comes out--gay people can get married or gay people can't get married--what difference does it really make? No one dies. No one really gets hurt.
Emily Bazelon: You're right. No one gets hurt. Which is why I think this issue may not prove to have the political legs that the opponents to gay marriage think it has.
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Demarest, NJ:
While I can understand the emotional or religious objections to gay marriage, I don't understand the legal arguments against it at all. The state, neutral on the religious view of marriage, treats it instead as a set of legal rights and obligations between members of a family. Two childless gay men living together are as much a family as a childless man and woman. How -- without endorsing a particular religion's view of the rights or wrongs of homosexuality -- can a court argue it should privilege the straight couple?
Emily Bazelon: Massachusetts made two arguments to defend it's decision not to recognize same-sex marriages. One was the idea that male-female couples are the optimal setting for childrearing, as I discussed. The other was the idea that the fundamental purpose of marriage is procreation. That one was easy for the Mass ct to shred. The state recognizes all kinds of marriages that aren't about childbearing--marriages between elderly people, that involve a man or a woman who is infertile, etc. No one at city hall asks you whether you're planning to have kids when they grant your marriage license. But that was the state's position.
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Alexandria, Va.:
Is there any reason why a heterosexual person should care whether the government recognizes gay marriages?
What is the difference whether the government does or do not? How would such an issue affect the average heterosexual person?
Emily Bazelon: Well, maybe the average heterosexual person isn't directly affected at all. But maybe he or she has gay friends or siblings, and shares in their joy at having this right extended them. Or maybe it's just bracing to have one's basic assumptions scrambled, as I think the Mass ct's decision did this week for a lot of us.
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Emily Bazelon: Thanks to everyone for the excellent, thoughtful questions. I had fun. The magazine I work for is at www.legalaffairs.org. Check it out if you're interested.
Best,
Emily
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