The Great Debate

The Federal Society recently sponsored an online debate on marriage equality, featuring four law professors -- two four, two against. Smart people making good points. Good reading if you click here.

Money quote (from Dale Carpenter):

"Consider just some of the incremental steps to gay marriage over the past half century. Sodomy laws were eradicated; homosexuality was removed from the list of “mental disorders”; gay newspapers, communities, and organizations flourished; civil-rights laws were enacted; and openly gay politicians were elected. Positive knowledge advanced through the systematic study of homosexuality and through daily experience with actual gay people, dispelling many widely accepted, long-standing, and hysterical myths about homosexuals. Study and experience discredited hoary fears that homosexuals ruin everything they touch, that any effort to lift stigma and legal repression would practically end civilization.

This was all necessary for the emergence of gay families, which began to spring up. Gay couples lived together openly. Adoption was available to gays in 49 states. Homosexuality ceased to be an automatic disqualification for custody. Second-parent adoptions provided some legal protection to gay families. Gays began raising children in increasing numbers (now more than a million) and no state was stopping them. A quasi-marriage culture sprouted.

This bottom-up momentum led to formal recognition. It started primarily in the private sector, where companies began offering benefits to “domestic partners.” Then cities and counties followed. Then states recognized gay relationships, at first tentatively, offering only some benefits. Now states are approving civil unions, granting all the benefits of marriage. Two populous states have actual gay marriage. Abroad, the move to gay marriage in countries with legal and political heritages similar to our own has been more dramatic.

Some of this recognition has been pushed judicially, but it is increasingly a legislative phenomenon. There’s been a counter-movement, but almost one-fourth of Americans now live in a state that legally recognizes gay couples.

Are we at the point where gay marriage is in most functional respects already here, so that sanctioning “technical” gay marriage is the next obvious incremental step to correct the lingering incoherence in our treatment of gay families? Given the numerous and enabling shifts we’ve already seen, I think so. There’s room for disagreement, but we’re surely getting closer."

Religious Freedom vs. Marriage Equality

As I posted here a week or so ago, I'm worried that the religious right may be successful in their attempt to conflate marriage equality with a diminution of religious freedom.

Fortunately, here comes someone both smarter than I, and MUCH more informed about the legal issues surrounding the balance between the freedom to hold certain religious beliefs (and to act on those beliefs) and current laws forbidding discrimination based on sexual orientation. It's a longish post by Dale Carpenter but you can read it here.

Money quote: "While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion — all without extinguishing religious faith."