Tag Archives: marriage equality

Virginia Amendment

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One poll shows that a majority of Virginians supports a proposed constitutional ban on same-sex marriage that will be on the ballot in November. However, when voters hear the amendment’s actual language, support slips and it becomes a dead heat. Here’s the actual language of the proposed amendment; the first poll uses only the first sentence.

Shall the Constitution of Virginia be amended to state “That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”?

There are two ways to look at this: either people are less likely to support a ban if it also bans gay civil unions, or people are less likely to support a ban if it could affect the relationships of straight people.

Here’s a memo that includes the actual language of the proposed amendment.

[via Good as You]

Stop Fighting?

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Bryan of Faggoty-Ass Faggot writes that the gay-rights movement is focusing too much on gay marriage:

If you truly believe that we should just keep doing more of the same – harping on one issue, getting shot down by voter initiative after court decision, believing that some miracle will come along to bring us the all-encompassing victory without winning the incremental fights first, forgetting that only a small percentage of our community will actually benefit from same-sex marriage when all of the community would benefit from employment, housing, education and hate crime laws – then come stand in front of me, nose-to-nose, eye-to-eye, and tell me straight to my face.

There’s some merit in this view. Granted, he doesn’t say that we should stop fighting entirely. But he’s not the only one who’s discouraged by the recent losses. Some wonder if the fight has even hurt us.

However, I urge people to read this paper: The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and its Aftermath, by Carlos Ball. (At the bottom of that page you can download the entire paper.) Particularly the final section beginning on page 33.

Ball argues that the gains from same-sex marriage litigation have outweighed the losses.

One, some gay couples in the U.S. are now married. That, in and of itself, is a gain. Furthermore, the example of Massachusetts will show people that society doesn’t fall apart when gay people are allowed to marry.

Two, look what the gay marriage fight has done: it’s made civil unions the moderate position. Even George Bush has said he supports civil unions! The struggle has opened people’s eyes to why gay couples need at least some sort of legal recognition.

Three, the gay marriage fight has led to progress on other gay rights issues by making some people more willing to support other forms of equality for gay people.

That said, however, at this point there do seem to be diminishing returns from the litigation strategy. We’ll see what the New Jersey Supreme Court decides, probably next month. After that, a strategy shift might be necessary.

One final thing, though. It seems that we’re damned if we do fight for gay marriage and we’re damned if we don’t. The thing is, though, any social movement is going to lead to social disruption. We can’t get anywhere if we don’t fight at all.

Gerstmann Book

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I just finished a terrific book: Same-Sex Marriage and the Constitution, by Evan Gerstmann. It’s oriented toward legal scholars, but it’s only a bit over 200 pages and intelligent people should be able to understand it. Gerstmann’s position is that courts should find same-sex marriage constitutional because there is a fundamental right to marry. He opposes characterizing the issue as one of “gay rights,” because (1) that terminology tends to place gays in the role of victims, (2) it allows opponents to claim that gay people are seeking “special rights,” and (3) it divides instead of unifying. He prefers to see the issue as one of equality for all. Ultimately, rather than go via the route of equal protection or of fundamental rights, Gerstmann propose a hybrid theory: that certain rights are so fundamental that they should be granted equally. He says that government can grant equal marriage rights without making a moral pronouncement on the rightness or wrongness of homosexuality; after all, he states, courts grant gays the same free speech rights as anyone else, but it does so without making a moral judgment one way or another. The same is true of marriage.

It’s a slim book, but he covers lots of ground: whether courts should rule on the basis of unenumerated rights, how to decide what these are and aren’t, and whether it is pragmatic for courts to do so when there is great public opposition. He discusses the fundamental right to marry as it relates to polygamy and incest and makes some very interesting points; he states that we should not outlaw practices just because they seem disturbing to us, but rather that we should decide what our policy goals are and then make laws that further those goals.

I’m not really doing the book justice. It’s very clearly thought out. A good read.