A (Partial) History of Same-Sex Marriage

Marriage. Nothing new.

Same-sex couples may now marry in all fifty states, and people are beginning work on histories of the marriage-equality movement.[1] I hope that these histories go back far enough. There is a stark difference between this history of same-sex marriage and the history of same-sex marriage in the United States.

When I was listening the Obergefell hearing, I was not particularly surprised that several justices brought up the question of whether there were historical examples of same-sex marriage. I actually think this line of questioning was profoundly irrelevant. We can find plenty of historical examples, and even contemporary ones, for things that are prohibited by the constitution. I don’t need to go deep into history to find examples of the suppression of freedom of speech. Just as a lack of freedom of speech in other places and times says nothing of our rights, a lack (or even existence) of same-sex marriage in history would say nothing about whether or not it was part of basic human liberty.

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Marriage Equality — At Last!

Let freedom ring!

I’ve been waiting a long time for this! I’ve been arguing in favor of same-sex marriage for more than twenty years. When California authorized domestic partnerships, I saw them as half a loaf (or maybe even less, given the limited rights initially granted, though even this was better than the almost completely symbolic domestic partnerships that the city of Laguna Beach offered in the early 90s).

Opposition to marriage equality came from not only those who sought to roll back gay rights, but also from those who, though in favor of gay rights, were either opposed to marriage itself, or felt that the gay community should be pursuing other goals. If you had asked me in 1995 if employment protections or marriage equality were more achievable, I would have said, “no doubt about it, employment.” I’ve seen arguments that we should have gone for ENDA. Employment protections are important, but during the same time that Obergefell moved through the courts, the Republicans have been in control of Congress. The Employment Non-Discrimination Act has no chance of budging in a Republican-controlled Congress. In other words, if all our efforts for marriage equality in the last five years had been applied to employment non-discrimination for LGBT people, we’d be in the same place on employment, and still not have marriage equality.

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“Speak Now” — Well Spoken

Read now!

I’d like to start with belated congratulations to Professor Kenji Yoshino for his marriage (truly belated; he married in 2009). The day Speak Now arrived at my door, my husband and I were watching Professor Yoshino on the The Rachel Maddow Show, where he was discussing the (then) upcoming Supreme Court hearing on same-sex marriage with Steve Kornacki (who was subbing). I made a comment about two gay men watching two gay men talk about same-sex marriage.

“Is Yoshino gay?” I noted that he was. “Is he married?” That I didn’t know, although I opened my copy of Speak Now and read as far as the dedication to Ron Stoneham. Perhaps? I didn’t need to read further than page 1 to find out the answer. Yoshino and Stoneham married in 2009. They have two children. In of themselves, they embody the sort of people that lawyers for marriage equality might want to have as plaintiffs, a point that he brings up in his book.

Speak Now has the longer title of Speak Now; Marriage Equality on Trial; The Story of Hollingsworth v. Perry (shades of the eighteenth-century long title, because that is a long title), but in addition to being the story of Hollingsworth v. Perry, it contains a lot of biographical information about Kenji Yoshino, bringing to mind the old adage, “the personal is political.” That Yoshino made Speak Now personal, even though he was not personally involved in the Perry trial in any way is something that gives the book much of its power.

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Dare Defend the Right to Marry in Alabama

As in 1865,
surrender is the honorable option

If, even a few months ago, I had tried to come up with a list of states that would have marriage equality before a Supreme Court ruling granting it to all,[1] Alabama wouldn’t have made it onto that list. But here we are.

On February 9, 2015, Alabama became the thirty-eighth state to permit same-sex marriage, though like two other states, Kansas and Missouri, that right is not being respected uniformly through the state.[2] That gives us thirty-five states (and the District of Columbia) were same-sex couples can marry, three states where they can get married in some parts, and twelve states where same-sex couples cannot marry.

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Judicial Wisdom on the Law of God

I'm sorry, judge, but Mithras disagrees with you.

This one’s a little out of turn. I tend to like to post things in connection with the date they appeared in the paper, and this appeared on April 6, but it seemed so current that I figured why wait until April (when it might not be quite as pertinent).

It’s a little bit of judicial wisdom on the intersection of the civil law and people’s religious beliefs, the sort of thing we’re seeing right now. We’ve got the Latter Day Saints proposing a ban on discrimination against gay people with a loophole so large that anyone could get through it. If people can’t discriminate on the basis of sexual orientation in public accommodation, hiring, or housing, except when their religion tells them they should, gay people are protected from discrimination from anyone who actually wouldn’t discriminate against gay people. Protection from those who would discriminate? Not so much.

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What Does a Ketubah Mean to a Catholic?

Not a ketubah, alas.

The New York Times has an article about a lesbian couple in Boston who are surprised that they were turned down by a rabbi when they sought to marry. The couple, Julia Spiegelman and Erina Donnelly seem to be the last people to find out that many rabbis won’t perform interfaith ceremonies.

For those of you who are late to this party, the Reconstructionist movement was the first to call for equal treatment and the full integration of gay people into synagogue life. That mean, even if without a marriage license, celebrating same-sex unions. They were followed in this by the Reform movement and finally the Conservative movement. So, about 90 percent of American Jews belong to movements that permit same-sex weddings.

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Can You Name these Legitimate Arguments Against Same-Sex Marriage?

Legitimate matching rings.

Over at The Dish, Andrew Sullivan has a post titled “There Are Legitimate Arguments Against Same-Sex Marriage,” although the (very short) post is just reference to a Damon Linker piece on the homophobic views of the late political philosopher Leo Strauss. And so I ask: Where are these legitimate arguments?

[A digression (you could skip this part): I’d get a lot more blogging done if I did it in the manner of Andrew Sullivan. Write a couple sentences, quote a couple meaty paragraphs from someone else’s blog. There you go. Quick content. However, when I started this blog, I made a promise to myself that my words would always outnumber anyone else’s.[1] Happily, since I’m only quoting eight words from Sullivan, this is an easy standard today.]

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Think of Poor Oklahoma

34 States today. One more coming tomorrow

With today’s decision starting marriage equality in Montana (and bringing the total to 34 states), there’s now a nice solid block of the western states, a good chunk running from New England down to the upper South, and a group of Midwestern states. But this leaves Oklahoma there in the midst of states that don’t marriage equality, joined to a state that does, only by the Panhandle. Had the Republic of Texas not ceded the area, poor Oklahoma wouldn’t be adjoining any marriage equality state, saved only by a narrow connection to New Mexico.

There are parts of the country that continue to surprise me. The Sixth Circuit decision certainly caught me by surprise, though it might be the case that sends marriage equality to the Supreme Court. I would have thought the Fifth Circuit would be more likely, though we are still waiting for the appeals on that one.

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Marriage Equality in Twenty-Nine States!

If not outdated, it will be soon

Now I’m playing games with the data; I’m just giddy. With twenty-nine states with marriage equality, we’ve got three groups of states. In the Northeast, we have Massachusetts, Maine, Vermont, New Hampshire, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia, West Virginia, and North Carolina (Massachusetts goes first and gets bolded because it was first. And bold). In the Midwest, we have Indiana, Wisconsin, Illinois, Minnesota, and Iowa. And in the West, we have Washington, Oregon, California, Nevada, Utah (never thought that would happen this early), Colorado, New Mexico, and Oklahoma.

If we want to link them all together, we could go with Montana, North Dakota, and Ohio. Starting with Montana, we could substitute in South Dakota and Kentucky. Or we could go for Wyoming, South Dakota, and (as before) either Ohio or Kentucky. I’d like to believe that Ohio was more likely, but the map at Wikipedia says otherwise.

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Why the Louisiana Marriage Ruling Doesn’t Bother Me (Much)

Our love is bigger than Louisiana

The winning streak is over. I’ve lost count of how many district court wins there have been for marriage equality since the Windsor decision last June. Let’s just call it a bunch. That bunch of cases includes each of the appeals districts, and in many of those districts, there have been further rulings (including one today) that have called for overturning bans on same-sex marriage.

Judge Martin Feldman is aware that he is running contrary to the stream of opinions, and he certainly is entitled to believe that he is right and all those other judges are wrong. On the other hand, I’ve read the opinion, and this is not one for the ages. Paige Lavender (is that her real name?) writing at Huffington Post offers what she calls The 6 Most F*&%ed Up Parts Of The Louisiana Gay Marriage Ruling.

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Posner on Same-Sex Marriage Is Music to My Ears

Matching bands! An an assault
on tradition!

Yesterday, the New York Times (and lots of other places) reported on the August 26 hearing at the United States Court of Appeals for the Seventh Circuit. This was a combined hearing in which the states of Indiana and Wisconsin (both in the Seventh) attempted to defend their bans on same-sex marriage before an appeals court of three judges.

Of the three judges, Ann Clair Williams, David Hamilton, and Richard Posner, most of the media attention has been on Judge Posner, never a shrinking violet. Posner, until fairly recently, maintained a blog, originally titled “The “Posner Blog,” until he started collaborating on the blog with Gary S. Becker. A quick check of the blog shows that with Becker’s death, Judge Posner decided to terminate the blog.

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The Real History of Same-Sex Marriage

Michel de Montaigne
A possible heterosexual who saw
where men married men

In Florida today, Matt Staver of the Liberty Counsel, an anti-gay law firm (they describe themselves as defending “Christian religious liberty, the sanctity of human life, and the traditional family”) testified at hearing in Miami today concerning whether the Florida ban on same-sex marriage is unconstitutional.

Staver appeared as an amicus, and if the courtroom had been struck by lighting each time he uttered an untruth, the building would be a smoking ruin. For example, he brought up the study done by Mark Regnerus, the University of Texas sociology professor, and made sweeping claims based on it. I actually think Staver’s description of Regnerus’s conclusions went far beyond anything that Regnerus actually claimed.

Staver also brought up Stanley Kurtz’s study of marriage rates in Scandinavia. I haven’t heard that one in a long, long time. Kurtz does have a Ph.D. in social anthropology, but he’s not an academic. His claim that same-sex marriage caused a drop-off in the rates of marriage in the Scandinavian countries was much loved by opponents of same-sex marriage. It was also debunked as soon as someone looked at the marriage rates the decade before same-sex marriage, when marriage was declining even more sharply.

But Staver’s biggest error was his claim that same-sex marriage didn’t exist in history before it was legalized in the Netherlands in 2001. Sorry, Mr. Staver, but your history is off.

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Kentucky Marriage Ban Unconstitutional, Ruling Stayed

Patience, good people of Kentucky, it will come.The Courier-Journal reports that the Kentucky bans on same-sex marriage have been struck down, however, the ruling has been stayed pending appeal.  US District Judge John G. Heyburn II has ruled that Kentucky's constitutional and statutory bans on some-sex marriage violate the US Constitution. The judge wrote that

In America, even sincere and long-hold religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.

 The state had produced one of the flimsy justifications given for bans on same-sex marriage, but the judge said that

no rational relation between the exclusion of same-sex couples from marriage and the commonwealth's asserted interest in promoting naturally procreative marriages.

and that

These arguments are not those of serious people.

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Same-Sex Marriage at Ten

The New York TImes has been looking at same-sex marriage, as it turns ten in the United States. Ten years ago, on May 23, 2004, the Times published their first announcements of same-sex marriage ceremonies. In today’s paper, they looked at the five couples whose marriage announcements were in that 2004 edition of the newspaper. (I’m going to guess that they would have preferred to run this article back in May, but had trouble getting hold of someone.)

Ten years later, four of those couples are still together. The one that divorced was, ironically, the most famous of all. I have long suspected that Hillary and Julie Goodridge, the plaintiffs in Massachusetts, realized their relationship was over before the end of the court case, but also knew that if they broke up, it would render the case moot. They had gone on too far to say, “oh, we’ve decided we don’t care to get married after all, so just forget the whole thing.”

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Same-Sex Marriage: The (Bad) Argument from Tradition

The Anglican theologian Bishop N. T. Wright has made an argument against same-sex marriage in which he makes an appeal to tradition. Wright makes the claim that

the word “marriage,” for thousands of years and cross-culturally has meant man and woman. Sometimes it’s been one man and more than one woman. Occasionally it’s been one woman and more than one man. There is polyandry as well as polygamy in some societies in some parts of history, but it’s always been male plus female. Simply to say that you can have a woman-plus-woman marriage or a man-plus-man marriage is radically to change that because of the givenness of maleness and femaleness. I would say that without any particular Christian presuppositions at all, just cross-culturally, that’s so.

He suggests that given that history has never given us examples of same-sex marriage, there must be something radical about same-sex marriage. He’s wrong in many ways. Mordecai Kaplan, whose thoughts gave rise to Reconstructionist Judaism, said that tradition gets a vote, not a veto. But in his argument from tradition, Bishop Wright gives tradition the full veto. But arguing that same-sex marriage should not be allowed because it is not in the tradition, isn’t just an improper appeal to tradition, it’s also a misreading of history.

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Marriage Equality in the U.S. — The Current Summary

Yesterday, a friend asked me a question about marriage equality lawsuits, but I didn't have an answer at my fingertips. In order to clear things up, some numbers:

0 - This is the number of states that do not have marriage equality, a court decision overturning a ban on same-sex marriage, or an active court case that seeks to overturn a ban on marriage equality.

20 - This is the number of states with marriage equality. The latest addition is Wisconsin. It seems unlikely that Judge Crabb will be issuing a stay. The jurisdictions, in order, are:

Massachusetts, Connecticut, Iowa, Vermont, New Hampshire (yeah, New England), District of Columbia, New York, Washington, Maine, Maryland, Rhode Island, Delaware, Minnesota, California, New Jersey, Hawaii, Illinois, New Mexico, Oregon, Pennsylvania, Wisconsin. (I'm putting California in the post-Prop 8 position.)

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Nineteen Solid - No Appeal of Pennsylvania Ruling

This is what I miss when I'm busy writing:

Governor Tom Corbett of Pennsylvania has announced that he will not be appealing yesterday's ruling that found the state's ban on same-sex marriage unconstitutional. Governor Corbett said the appeal would be "extremely unlikely to succeed."

Okay, now I'm ready for state #20!

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They're Not Banning Marriage for Straight People, Rod

Over at The American Conservative, Rod Dreher goes predictably around the bend on the recent win for marriage equality in Pennsylvania.

Just as conservatives are averse to the term "ban same-sex marriage," because admitting what you're doing makes it sound terrible and loses you support in polls, permitting same-sex people to marry is framed as an attack on marriage. Dreher describes the recent ruling in Pennsylvania as "another federal judge throws out traditional marriage."

Really? Does the ruling prevent anyone from marrying someone of the opposite sex? I hadn't heard.

I've been reading his blog for a while, and his views on gay people are somewhat mixed. He doesn't want to see them oppressed, but they shouldn't have full civil rights. He has said that they should not see themselves as equal to straight people. Dreher supports the vague of civil unions, but only if they are inferior, and he has no interest in spelling out just how inferior. He does see a distinction between what is sinful and what should be illegal, but somehow this concept of sinfulness should lead to political disadvantages for gay people. (I'm summarized this from much reading of his blog; I would generally characterize his views about gay people as "vague, inconsistent, and probably contradictory.")

 In nineteen states, same-sex couples are able to obtain marriages that are the legal equivalent of Rod Dreher's. A growing number of religious groups see them as spiritually equivalent as well. I don't think Dreher likes that.

He writes:

Does Judge Jones really think that the sexual complementarity of marriage, which has been the basis of marriage in all places and in all times, until only two decades ago, is fit for history’s garbage dump?

Of course he's historically wrong. "Sexual complementarity" is the current weasel term used by opponents of same-sex marriage to make it sound like they're not making a circular argument. He's not providing an argument that marriage must be kept opposite-sex only, just making the observation that it typically has been.

As for the rest of the history, the Roman Empire, after it become Christian, banned marriage between men and nullified all existing ones. Montaigne wrote about his encounter with a Portuguese sect that allowed marriage between men. Shall I continue with other places and times, or are two sufficient? In other words, "all places and in all times" is just bunk.

When asked, Dreher responds in his comment thread that he has answered before what he sees as the negative effect of same-sex marriage. I think he avoids spelling it out each time he's asked not for a fear of repetition (since there are many statements about same-sex marriage he's made over and over again) but because it's so intellectually weak. It's that whole fear that if same-sex marriage is allowed, those sinful, sinful gay people, might just think they're equal.

I certainly hope so.

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Marriage Equality - Now in Nineteen States

Utah, Arkansas, you guys blew it. After your brief glories of being the eighteenth state with marriage equality (before ceding that position to Oregon), now you might have lost the chance to be the nineteenth state.

A federal judge has struck down Pennsylvania's ban on same-sex marriage, stating that the ban violates the constitution.  Judge John Jones III wrote

that same sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection.

Ironically, on the Reuters article, the first comment is from someone who feels that same-sex marriage should remain banned, because it makes her uncomfortable. Maybe she should read the decision.

Although the judge did not issue a stay, and Kathleen Kane, the Attorney General for Pennsylvania, did not defend the case, it seems likely that Tom Corbett, Pennsylvania's governor, will seek an appeal.

We've got a nineteenth state, for now. The next few days we'll see if this fundamental liberty is preserved in the Keystone State.

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Same-sex marriage — the 18th state at last?

A federal judge in Oregon has struck down Oregon's ban on same-sex marriage and this time it doesn't look like it will get held up on appeal. Previously, both Utah and Arkansas were denied stays when the courts found their bans unconstitutional, however, in each case a higher court issued a stay.

The Oregonian reports that Oregon Attorney General Ellen Rosenblum has no intention of appealing the ruling; she asked Judge Michael McShane to strike down the law. She also opposed an attempt by the National Organization for Marriage to intervene in the case. That intervention was rejected by the Ninth Circuit Court of Appeals.

Judge McShane wrote that

Because Oregon's marriage laws discriminate on the basis of sexual orientationwithout a rational relationship to any legitimate government interest the laws violate the Equal Protection Clause of the Fourteenth Amendmenfto the United States Constitution.

Without an appeal, the law will be invalidated and marriages will begin.

We are finally at 18 states with marriage equality, and this one looks like it's going to stick. Now we can start speculating on what state will be 19th. Utah and Arkansas, you missed your chance, but maybe one of you will get in before #20.

Update: With no one asking for a stay who is able to, marriages have started in Oregon.

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