IVEL POSADA Ivel Posada
Ivel Posada '14 is a columnist for the Harvard Political Review.



Supreme Hypocrisy

United States April 9, 2012 1:15 am

A three-judge panel of the U.S. Court of Appeals for the First Circuit heard oral arguments Wednesday on the constitutionality of the so-called Defense of Marriage Act, a law defining marriage for federal purposes as the union between one man and one woman. Many observers have already commented on the historic nature of Wednesday’s arguments, which marked the first time a federal appeals court has considered the constitutionality of DOMA.

Lost in the recent reporting on the case, however, are the remarkable similarities between DOMA and the Affordable Care Act: both acts of Congress raise similar constitutional issues, and both face the possibility of court-ordered invalidation. Even more remarkable (or perhaps not) is the hypocrisy conservatives and liberals have shown while defending each of these laws.

The Novelty Argument:

DOMA and the ACA individual mandate are similar in that both are novel and unprecedented exercises of congressional authority.

Arguing against the individual mandate, conservatives stress that the provision is constitutionally suspect for the simple reason that it represents a never-before-seen congressional power. In their briefs to the Supreme Court, for example, the twenty-six states challenging the mandate had this to say:

If Congress really had this remarkable authority, it would not have waited 220 years to exercise it      . . . Surely, as the nation has grown, developed a truly continental economic market, suffered through depressions and recessions, and waged two world wars, Congress has not lacked motive or opportunity to force individuals into countless interstate markets . . . The only explanation for the utter absence of comparable mandates is the utter absence of constitutional authority to enact them.

The Obama administration, however, quickly dismissed this argument, saying that the mere novelty of an exercise of congressional power does not render it constitutionally suspect. Social Security, Medicare, and much of the legislation passed in the wake of the Great Depression all constituted novel exercises of congressional power in their time, yet this alone did not make them unconstitutional. Times change, the argument continues, and Congress must have the power to respond accordingly.

And yet, with respect to DOMA, the tables have turned. Here, liberals are the ones now arguing that novelty is reason enough to arouse constitutional suspicions. Conservatives, for their part, have also undergone a remarkable change of heart. They are now apparently unperturbed by novel exercises of congressional power.

Advocates for gay and lesbian couples, for example, argued before the First Circuit that DOMA is constitutionally suspect, among other reasons, because it marks the first time in the nation’s history that Congress has attempted to create a national definition of marriage. The matter was put thusly during oral argument:

In 1996, Congress jettisoned a neutral rule that had been in place for over 200 years and created a onetime exception only for gay people’s marriages to deny them protection across the board.

I have seen many liberals nod their heads when this argument is raised with respect to DOMA, so why then does the nodding stop in the context of health care? The same must also be asked of conservatives. Why is it that novelty in the case of the individual mandate is cause for suspicion, yet something that can be overlooked when it comes to DOMA? The answer, I suspect, has more to do with politics than with any principle of law.

The Federalism Argument:

Real federalism questions surround both DOMA and the individual mandate.

In the context of the individual mandate, liberals argue that the federal government needs to have broad power in order to properly address the national health insurance crisis. If this means more power to Washington at the expense of state sovereignty, the argument goes, then it is an unavoidable necessity. Conservatives by contrast have trumpeted the cause of states’ rights, retorting that the Tenth Amendment shields states from excessive federal regulation. In briefing the Supreme Court, opponents of the mandate conveyed the point starkly:

There is nothing left of the residual authority of the States if Congress really has the power claimed.

In the context of DOMA, however, the tables have turned (yet again). It is liberals who are now nobly carrying the states’ rights banner, while conservatives are passionately demanding an increase in federal authority. During oral argument in the DOMA case, for example, gay rights advocates said this:

Defining and regulating marriage is a matter of core state sovereignty under the Tenth Amendment    . . . The federal government has always recognized a state marriage as valid for federal purposes      . . . What we are asking is that [DOMA] be stricken down and that the federal government respect our authority . . . This has been the division of power between states and the federal government since the time this country was founded; indeed, it was the relationship between the colonies and the English Parliament before that.

Conservatives for their part split hairs in arguing that DOMA “technically” does not infringe upon the sovereignty of states, even if it does constitute a novel exercise of federal power.

The Democracy Argument:

Lastly, both DOMA and the ACA raise serious questions concerning the power of courts to invalidate laws enacted by democratically elected bodies .

Fearing a devastating loss, liberals are demanding the judiciary humble itself and refrain from invalidating the ACA. Earlier this week, President Obama even went as far as making the preposterous statement that the Supreme Court would be taking “an unprecedented and extraordinary step” if it “overturn[ed] a law that was passed by a strong majority of a democratically elected Congress.” Every attentive high school student knows that ever since Marbury v. Madison, courts in this country have enjoyed the power to invalidate congressional legislation (surely a Harvard Law School graduate and constitutional law specialist knows as much).

The statement is even more dumbfounding given that the Obama administration is presently urging the courts to overturn DOMA and has instructed the Department of Justice to argue against its constitutionality. So much for showing respect for democratically enacted laws.

In fact, one could easily argue that DOMA is an even stronger embodiment of the democratic will than the ACA. DOMA was passed with huge bipartisan support, garnering 342 votes in the House and 85 votes in the Senate. The ACA for its part managed to secure the “bipartisan” support of only 1 House Republican and won only 219 votes in the House and 60 votes in the Senate. Not to mention the black cloud of backroom dealing and arm-twisting that loomed over the health care proceedings.

It is clear, then, that selectively invoking the democratic will and chiding judicial activism is done in a political context.

Concluding Thoughts

Some of what has been said in this article is perhaps not very surprising: liberals and conservatives strategically deploy legal arguments with an eye towards political ends. For this reason, certain commentators are inclined to argue that politics is an inseparable component of law. Others go further and say that federal judges are nothing more than politicians in black robes. It is curious, however, that the charge of judicial impropriety is only leveled when the Court fails to grant partisans certain political outcomes.

The final way in which DOMA and the ACA individual mandate are similar is that the Supreme Court will probably invalidate both. If this happens, liberals and conservatives will take turns lambasting the Court for having a “political agenda.” The very reality, however, that the Court will probably side with liberals on DOMA and with conservatives on the ACA suggests that if the Court does have an “agenda,” it is based on something other than politics.

 

Photo Credit: flickr.com/photos/ladawnaspics

No Comments »

What It Means To Be a Tar Heel

United States April 1, 2012 10:15 am

On May 8, voters in North Carolina will consider whether to amend the state constitution to prohibit same-sex marriage. Numerous articles have already commented on why North Carolinians should unequivocally reject this anti-gay amendment. It has been rightly noted that the amendment will harm business in the state, that it will harm families, and that it threatens to obliterate the few legal protections several localities currently afford gay people. All these concerns are real, and educated voters should accord them serious thought before entering the voting booth. There is one other reason, however, why voters should reject Amendment 1: voting for this measure is incompatible with being a Tar Heel.

North Carolina has long been regarded as the “Tar Heel State” and its residents self-identify as “Tar Heels.” But what does it mean to be a Tar Heel? Although there is no clear historical account of the origins of the word, many etymological studies trace its genesis to the Civil War. During this time, legend has it that “Tar Heel” surfaced throughout the South as a term of ridicule for North Carolinians. Why? Because North Carolina was the last state to secede from the union. In other words, North Carolinians moved toward secession dragging their feet as if they had tar on their heels. This hesitancy attracted the ire of other southern states, which then began to refer to North Carolina as “the reluctant state” or “the tar heel state.”

For all its foot-dragging, however, North Carolina still succumbed to secessionist fervor. And the fact that it succumbed last does little to absolve the state from its participation in the Confederacy. Although North Carolina has made much progress with race relations today, the history books will forever record a time when this was not so. Nothing can be done to erase that fact, but North Carolinians can at least show they have learned something from this tragic past.

Today, North Carolina finds itself in a predicament similar to the one it faced in 1861. Every state in the South has voted to constitutionally ban same-sex marriage, and the ole Tar Heel State finds itself, yet again, alone and the object of ridicule of its southern neighbors. The question now is, what choice will North Carolina make this time around? On May 8, North Carolinians will answer that question for themselves when they vote on Amendment 1. As they cast their votes, I pray they remember the origins of their nickname.

If North Carolinians are to live up to that nickname today, not only do we need to hesitate in joining the rest of the South in constitutionally banning same-sex marriage, we also need to reject the proposition flat-out. United as Tar Heels, we must hold the line and stand firm for the equal worth and dignity of all our citizens.

No Comments »

Rethinking Christie’s Gay Marriage Veto

United States February 26, 2012 2:50 pm

I will not say Governor Chris Christie did the right thing this past Friday when he vetoed a bill that sought to legalize same-sex marriage in New Jersey. But I will say that the amount of criticism he is receiving from gay and liberal activists is undeserved. Liberals cannot seriously expect a Republican of such national prominence as Christie to sign away his presidential prospects merely for the sake of having same-sex marriage legalized in New Jersey via legislative enactment. I stress this latter point because what actually has gay rights activists angry at the veto is not that it has eliminated all prospects of realizing gay marriage in New Jersey (it has not), but rather that it has forced a ballot campaign on the matter.

Those who regard this as a setback, though, are mistaken—this is a remarkable opportunity to turn the tide on marriage ballot measures. Moreover, the intense liberal backlash against Christie’s veto is hypocritical given that no such animosity was directed against Barack Obama or Hillary Clinton in the 2008 presidential race when they too expressed opposition to same-sex-marriage.

Why A Ballot Campaign May Be Desirable in New Jersey

In the midst of the Second World War, Winston Churchill gave heart to a war battered Britain when he proclaimed: “We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.” That same ethos should animate the fight for gay marriage. We shall fight in the courts, we shall fight in the legislative assemblies, we shall fight in the town halls and in the city councils, we shall fight at the ballot box; we shall never surrender. But, frankly, gay rights activists have grown too weary to accept this motto in full. After 31 straight losses at the ballot box, and especially after the passage of Proposition 8 in California, the movement for gay rights is scared of ballot measures.

That fear is understandable, but it must not become crippling. Now is the time to pick ourselves up, dust ourselves off, put on the gloves, and show that we too can win a popular vote. Although as a matter of strategy it typically is best to keep the issue of gay marriage off the ballot, a special exception should be made for New Jersey. Granted, there is more risk involved with having a ballot campaign than with enacting equality through a state legislature. But given that a majority of people in New Jersey support gay marriage, it is appropriate to take on this added risk in this instance.

For one, a win at the ballot box (which again is an entirely reasonable expectation in New Jersey) would mark the first victory of its kind for proponents of marriage equality. Rest assured that once opponents of gay marriage find themselves on the losing side of a ballot campaign, they will think twice before pressing for another initiative or referendum. Originally, opponents of equality lambasted gay rights activists for relying on judges to enact gay marriage. Most recently, social conservatives have decried the use of “elite” state legislators to achieve the same end. But what argument will traditionalists have left once the people of a state directly sanction same-sex marriage? Moreover, gay rights activists make much of the fact that polls show majority support nationally for same-sex marriage. That is great, but ballot campaigns speak louder than statistics.  A ballot win in New Jersey would provide a strong gust of wind in the sails of the marriage equality movement.

The Left’s Hypocrisy

Gay rights activists should redirect the intense ire they have expressed toward Christie in the direction of someone who actually deserves it. Aside from the fact that Christie purports to believe that the designation of marriage should be reserved for only one man and one woman, he has an almost sterling record on gay rights. He has come out in favor of civil unions that grant gay couples the exact same rights under the law as marriages; he supported the repeal of don’t ask don’t tell; he supports the end of employment discrimination against gays; and he appointed the first openly gay man to the New Jersey Supreme Court. Does that sound like the record of a homophobe to you?

Also, how is Christie’s stance on the issue of gay marriage any different than President Obama’s or Secretary of State Hillary Clinton’s during the 2008 presidential race? Both Clinton and Obama tooted the same line that Christie advanced in vetoing the New Jersey gay marriage bill. In fact, in a 2008 interview with CNN, Obama grounded his opposition to gay marriage in his Christian beliefs. And yet liberals were willing to give Clinton and Obama a break. Many, then as well as now, argued that a candidate who openly supports gay marriage would face difficulty in a general election. Why does that same understanding not extend to Christie? The answer, clearly, is because Christie is a Republican. It is hypocritical for liberals to demand that Christie take a principled stand on this issue when no such demand was seriously made of Clinton or Obama in 2008.

Ultimately, if anyone is to be accused of playing politics with the issue of gay marriage, it is Democrats in New Jersey. In 2010, when Democrats controlled both the governorship and legislature, a bill that sought to legalize gay marriage failed to pass the New Jersey Senate because of the cowardice of 9 Democrats (6 of whom voted against gay marriage and 3 of whom abstained from voting). This loss was all the more tragic given that then Governor Jon Corzine stood at the ready to sign the bill into law.

Now flash forward to 2012 when Democrats still control the state legislature, but a Republican is in the governor’s chair. Christie made clear from day one that he would veto any gay marriage bill that got to his desk. So why did Democrats decide to proceed with the bill anyway if they knew it would be dead on arrival? Clearly to send a political message that Christie was no friend of gay people. This has been nothing more than a pathetic attempt to nail Christie to the cross of bigotry—so much for the argument that Democrats as a matter of principle do not toy with the issue of marriage equality to score political points.

Concluding Thoughts

When a bill seeking to legalize gay marriage got to Governor Christie’s desk, he was presented with two options: Take the highroad and sign the bill into law, while at the same time seriously undermining a future presidential run; or veto the bill while pushing for a direct vote from a citizenry highly sympathetic to marriage equality. Was it truly unreasonable for Christie to have chosen the latter option? Since liberals were willing to excuse Obama and Clinton in 2008 for making virtually the same choice, one would have thought they would be more understanding of Christie’s situation. That they have not been has more to do with politics than with any serious concern about marriage equality.

Lastly, I urge gay activists to grow a bit shrewder in identifying who our friends are in the Republican Party. If we have any hope of ridding our national politics of the smell of Santorum, we need to stop attacking the first nationally viable Republican who supports the overwhelming majority of our agenda solely because he disagrees with us on a matter of nomenclature.

 

Photo Credits: nj.com; nj1015.com

8 Comments »

A New Path Forward for Same-Sex Marriage

United States February 10, 2012 3:46 pm

Source: wkzo.com

The judicial opinion issued Tuesday by the Ninth Circuit Court of Appeals, which struck down Proposition 8 as unconstitutional, has charted a new path forward for advocates of marriage equality. Relying heavily on the Supreme Court’s decision in Romer v. Evans, the Appeals Court ruled that Proposition 8 does not satisfy the Constitution’s guarantee of equal protection of the laws because it irrationally takes away a right that gays and lesbians had previously enjoyed in the state of California: the right to marry. Tuesday’s narrow ruling, however, skirts the issue of whether the Constitution guarantees a right to same-sex marriage as a matter either of Due Process or Equal Protection. Although the invalidation of Proposition 8 is welcome news, gay rights activists should not settle for this narrow ruling; rather, they should press the judiciary for a constitutional right to same-sex marriage.

An Explanation of the Ruling

Bracketing the issue of whether the Constitution requires all states to allow for same-sex marriages, the Ninth Circuit Court of Appeals instead chose to answer whether voters in California may,

“…single out same-sex couples for unequal treatment by taking away from them alone the right to marry, and [whether] this action amounts to a distinct constitutional violation [since] the Equal Protection Clause [under Romer v. Evans] protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.”

Backers of Proposition 8 resisted this framing of the issue, insisting that the fact that gays and lesbians enjoyed the right to marry in California for a brief “143-day hiatus,” prior to the passage of Proposition 8, was an irrelevant fact. The Appeals Court disagreed:

“Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend the designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”

The Court then proceeded to scrutinize the purpose and constitutionality of Proposition 8 under an extremely differential standard known as rational basis review, wherein the judges merely ask whether the law under consideration furthers any legitimate state interest. Proponents listed several “ legitimate interests” advanced by Prop 8; the Court struck down every purported interest as irrational. At one point, backers of Prop 8 argued that the purpose of marriage is to reduce the “threat of unintended pregnancies out of wedlock” and so foster “responsible procreation.” Because same-sex couples are not at risk of accidental pregnancies, the argument continued, there is no need to offer them access to the institution of marriage. Further still, proponents also contended that prohibiting same-sex marriage would strengthen “traditional” families. The Court’s response to this claim bordered mockery:

“It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman. While deferential, the rational basis standard is not a toothless one. Even the standard of rationality must find some footing in reality.”

Exhausting the list of interests offered by proponents, the Appeals Court concluded that Prop 8 was merely the product of animus and served only to “lessen the status and human dignity” of LGBT people.

What The Ruling Means Moving Forward

Because of the operating structure of the Ninth Circuit, Tuesday’s opinion merely reflects the view of a panel of three judges who sit on the Appeals Court (the vote tally was 2-1, with Judges Reinhardt and Hawkins siding with marriage equality advocates while Judge Smith wrote in dissent). Prop 8 backers will almost certainly appeal their loss, though they have the choice of appealing either to a larger panel of the Ninth Circuit Court (on which sit 11 judges) or of proceeding straight to the Supreme Court. Commentators have speculated that proponents will most likely appeal to the larger panel before requesting review by the High Court.

Once the case reaches the Supreme Court – something that is now almost a certainty – the Justices will have three choices available to them: 1) they can reverse the ruling of the lower Appeals Court and uphold Prop 8 as constitutional, something that is very unlikely given the current makeup of the Court; 2) they can employ the same narrow argument used by the Appeals Court to strike down Proposition 8; or 3) they can strike down Prop 8 with a broad ruling that simultaneously finds a constitutional right to same-sex marriage. The choice of path will undoubtedly fall on the shoulders of the Court’s swing vote, Justice Anthony Kennedy, who has written passionately in favor of LGBT people in the two landmark gay rights cases the Court has considered (Romer v. Evans 1996 and Lawrence v. Texas 2003). Although Kennedy showed restraint in Romer, his ruling in Lawrence was exceptionally broad, overturning the 1986 case of Bowers v. Hardwick and striking down anti-sodomy statues in 13 states.

A broad ruling in the Prop 8 case by the Supreme Court, along the lines of Lawrence, could legalize same-sex marriage across the country, sticking down anti-gay marriage laws in 37 states and potentially invalidating the federal Defense of Marriage Act in one fell swoop. A narrow ruling along the lines of Tuesday’s Ninth Circuit opinion, by contrast, would only strike down Proposition 8 in California and, presumably, Amendment 1 in Maine – both of which stripped gay people of their right to marry after they had enjoyed the right for a brief interim period.

Several factors will work to determine which path the Supreme Court will take. Perhaps the most significant, however, will be the amicus briefs submitted to the Court by marriage equality advocates. Such briefs assist the Court in reaching an opinion and are typically submitted by advocacy groups or prominent legal scholars. Concerned with a serious public backlash if the Court rules broadly in favor of same-sex marriage, gay activists may purposefully submit briefs that push the Court to issue a narrow ruling. In the wake of the broadly reasoned Lawrence case, for example, state legislatures across the country moved with great speed to pass constitutional amendments and statutory enactments prohibiting same-sex marriage. For this reason, there is worry that another broadly reasoned ruling may do more harm than good and may lead the 37 states that currently reserve the designation of marriage for heterosexual couples to push for a federal constitutional amendment barring gay marriage across the country.

Personally, I am hoping for a broadly reasoned ruling. The threat of amendment to the Federal Constitution is one that should not be taken seriously. Although the number of states that have already prohibited same-sex marriage,37, is perilously close to meeting the threshold required for ratification of a constitutional amendment,38, these are not the only votes that matter. Before such an amendment could be sent to the states, it would require the approval of two thirds of both chambers of Congress. The likelihood of securing such a large swath of votes in both chambers of Congress is, in my view, a near impossibility. Moreover, the other track available for constitutional amendment, which bypasses Congress and instead calls for state constitutional conventions, has never been used in this nation’s 230-year history. There is no reason to suppose a federal marriage amendment would prove the exception.

What is more, the idea that a state-by-state push for gay marriage represents a long-term strategy for equality is absolute nonsense. In a couple of years, campaigners for marriage equality will exhaust the list of states that have not amended their constitutions to prohibit same-sex marriage. Once this happens, the only option left to activists will be to propose constitutional amendments that nullify the previously enacted anti-gay amendments (since courts and legislatures in states constitutionally prohibiting same-sex marriage are barred from taking up the issue). This cumbersome process will take decades, if not a generation. The reality is that, at some point, the Supreme Court will have to wield its power to strike down these state constitutional amendments if marriage equality is to be a reality across this nation in our lifetime. The question is whether that moment is now, or a couple of years from now.

Waiting for a future case is risky business. There are essentially five votes on the Court right now sympathetic to marriage equality. These votes, however, are not the votes of young justices. In particular, gay activists may soon lose the vote of Ruth Bader Ginsburg who is quickly approaching retirement. If a more conservative justice is appointed as her replacement, the opportunity to legalize same-sex marriage nationally will be lost for quite some time. Marriage equality is an issue that should be resolved now. To this end, lawyers in the Prop 8 case, as well as groups submitting amicus briefs, should press the Supreme Court for a broadly reasoned opinion. Suggesting we wait a few more decades before fully pressing the Court on this matter is a luxury only the young have. For the generation of gays and lesbians who rioted in front of Stonewall in 1969 and who have purchased progress with their blood and sweat, there is no more time. If marriage equality is to be a national reality in their lifetime, the Supreme Court must decide on the matter sooner rather than later. And if that means an intense public reaction, so be it.

Photo Credit: Episcopal Digital Network

No Comments »

On The Alleged Death Of Marriage

United States February 4, 2012 3:20 am

Marriage is dying – sound the alarm! Divorce rates are through the roof, gays are poised to storm the altar, and people are cohabiting more than ever; it is time to revert to a “traditional” understanding of marriage if the institution is to survive into the future. This at least was the central message proffered in a recent article by members of “True” Love Revolution (TLR), a campus group that believes itself the defender of all things holy. Their article, however, is nothing more than a recycling of clichés without any serious consideration of underlying sociological nuances. The statistics they regurgitate succeed in demonstrating only one thing – marriage is changing. Their central claim that marriage is dying, however, is entirely unsubstantiated.

Yes, divorce rates are high in the Untied States relative to other industrialized nations, but so is the rate of remarriage. In America, for example, 50% of children who experience a breakup in their parent’s marriage find themselves in a new stepfamily within three years; a rate much higher than in Sweden (33%), Germany (29%), France (23%), or Italy (8%). If the US divorce rate suggests marriage is dying in America, the rate of remarriage suggests the opposite. What is more, 90% of people in the United States are projected to marry (a figure that has remained stable for the past couple of decades and shows no signs of decreasing). These two paradoxical findings – high rates of both divorce and marriage – indicate that there is more to the story of marriage in America than the TLR article suggests. If marriage were dying, it would not be such a popular institution, nor would so many people rush to remarry after experiencing divorce.

Professor Andrew Cherlin of John Hopkins University, widely regarded as the preeminent researcher in family sociology, explains this paradox by analogizing the state of marriage in the United States to a merry-go-round. American’s are hoping off and on the marriage wagon at a rate much higher than their counterparts in Europe. Cherlin suggests that the confluence of two strong cultural ideals – individualism and matrimony – explains this turbulence in American marriage relationships. They are the cultural forces that spin America’s marriage-go-round, which simultaneously pushes people into and out of marriage relationships.

Although the USA can loosely be described as individualistic since its inception, sociologists use the term expressive individualism to describe American culture in the modern context. This variant form of individualism arose as women began to participate more fully in the labor force and is characterized by an added emphasis on the self. That is, it emphasizes personal and emotional growth and establishes this as the ultimate standard of success. By this new standard, however, many marriages in time fail. Whereas before, women had no choice but to remain in troubled and or devitalized marriages, women in the modern age face no such contraints. Indeed, both sexes have come to regard personal development and growth as the primary purpose of marriage. This cultural ideal pushes many unions toward dissolution and it is one of the main reasons why divorce rates are so high in the United States.

The rate of marriage and remarriage in the United States, however, also remains high. Cherlin explains this by observing that marriage in America remains a strong cultural ideal:

The United States is unique among nations in its strong support for marriage, on one hand, and its postmodern penchant for self-expression and personal growth, on the other hand. You can find other Western countries where marriage is strong, such as Italy…and you can find Western countries with highly individualistic values, such as Sweden…but only in the United States can you find both.

The Cherlin thesis is thus, in one respect, the exact opposite of that offered by “True” Love Revolution. Cherlin posits that it is precisely because marriage remains a strong cultural ideal in America, coupled with the equally strong cultural ideal of individualism, that we see in the United States high rates of marriage, divorce, and remarriage – a situation unique among Western nations.

Who is correct then? There clearly is a mass of sociological literature on both sides of this matter, as there typically is on all hot button issues. There is no need, however, to resign the search for objectivity. Readers should carefully evaluate the explanatory power of the Cherlin thesis, relative to that advanced by “True” Love Revolution. If marriage is dying, why do marriage rates in this country hover around 90%? Why do remarriage rates remain so high after divorce? And why is debate on the definition of marriage so heated in America, relative to other nations? It is precisely because marriage remains a strong cultural ideal in this country that the aforementioned phenomena are observable. It is precisely because marriage still means something important in our society that both liberals and conservatives are fighting so ardently to define it.

The whirlwinds of individualism and matrimony have left marriage in the United States viable, yet fragile. I share with members of “True” Love Revolution a concern for this new fragility and the deleterious effects it has on the rearing of children. I disagree with them, however, on how best to remedy the situation. The TLR article suggests that only in reverting to a “traditional” definition of marriage can we strengthen matrimony. This remedy is nothing more than empty words. If there is one consensus in the sociological community on matters of family, it is that there is no such thing as a “traditional” marriage. Marriage has meant something different from one culture to another and from one generation to the next. Moreover, numerous sociological studies confirm that various family-types are suitable for the proper rearing of children once one controls for confounding variables such as poverty. In the end, the single greatest factor that contributes to the well being of children is stability – something that grandparents, heterosexual parents, and homosexual parents can equally provide.

How to achieve stability in marriage is a question I will not attempt to answer here in any great detail. However, I very much doubt that stability in our time will be found by looking to the past. Newly emerging research suggests that peer marriages, where men and women have equal and indistinguishable roles in matrimony, offer a more resilient marriage model for the present era. Indeed, the circumstances that place modern marriages under duress are unique in world history. For this reason, those who seek to remedy the present situation by offering a pill marked “traditional” offer a therapeutic that has already expired.

Concluding Thoughts

Marriage is not dying; it is only changing. The rise of expressive individualism in the United States coupled with the continuing strength of marriage as a cultural ideal has created a uniquely American context characterized by high levels of both divorce and marriage. For the time being, the confluence of these two cultural forces has resulted in marriages that are much more fragile than has historically been the case. There is hope, however, that in the future new progressive norms around marriage may add stability to these relationships. In the end, marriage itself (no matter how badly bruised by modern forces) remains a viable institution. Indeed, the very fact that marriage is changing suggests its viability. That is a point that perhaps is lost on some conservatives, who time and again fail to see that in society, as in nature, the only things that die are those that fail to evolve.

No Comments »

In Defense Of Boas And Other Things Queer

United States September 25, 2011 9:25 pm

In October of last year, Paul Schied published a well-intentioned critique of the gay rights movement with the hope of providing useful strategic advise to the proponents of gay equality. As the title of the piece clearly indicates, he is concerned with the tenor of the campaign for gay equality and suggests the movement needs to rely less on tactics of hate, and move instead in the direction of civility. Within the post, Paul questions the effectiveness of pride parades, describing them as “…lascivious affair[s], characterized by scantily dressed revelers of all genders and proclivities, boisterous music, and boas. Lots and lots of boas.” The piece as a whole describes the Gay Rights Movement as exhibiting a fundamental flaw to the extent that it is “overly preoccupied with the ideas of pride and awareness.”

Although I do not question Paul’s intention, it is the case that printed words develop a meaning oftentimes detached from an author’s original motivation. And so, building off Paul’s insistence of putting things “bluntly,” I will give my opinion of his post in the most unequivocal terms: The piece paints the gay rights movement to be an unsophisticated conglomeration of angry drag queens who seem bereft of the slightest notion of how to operate a politically effective campaign. This picture is furthered both through the substance of his argument and through his tone.

Consider, for example, his assertion that LGBT people are on the verge of “squander[ing] the sympathetic sentiment of the moment by being belligerent and combative.” Consider further still his description of certain gay demonstrations as “manic” and “scary.” Perhaps even more infuriating is his chastisement of the gay community in the final line of the article: “…don’t fight hate with hate. It won’t work, and it’s counterproductive. If you’re fighting for love, use love.” I do not know what movement Paul is referring to. In my eyes, proponents of gay equality have been very quick to turn the other cheek.

Considerations of tone aside, the substantive analysis in Paul’s post is completely off as well. As a gay man who sat on the Board of Directors for Charlotte’s largest queer youth outreach organization, a former community organizer for Equality NC and a student who’s research focuses on same-sex marriage, I wish to put forth my own view of the Gay Rights Movement while focusing on the role that pride celebrations play in that campaign.

The Gay Rights Movement is not motivated by hate or, for that matter, by any of its close relatives – “combativeness” or “belligerence,” nor has it created a tone exuding those passions. Instead, it is a movement intent upon liberating queer men and women from the conventional morals that severely restrict the everyday pursuit of happiness of an incredibly diverse group of people – people ranging from gay Republicans to persons engaged in master/slave relationships. After the Stonewall Riots, that mission has been carried out in the most civil of ways and with an unyielding commitment to nonviolence in the face of stinging homophobia.

The Human Rights Campaign, Lambda Legal, and Equality Federation – the three largest organizations working for the civil rights of lesbians, gays, bisexuals, and transgender people – have all carried out their respective missions through nonviolent protest. Indeed, they each have incorporated lessons in nonviolence as crucial components of their field organizing. What is more, all three organizations have sophisticated public relations boards to ensure the tone of their campaigning remains positive.

How is it then that Paul manages to jump from the FCKH8 campaign to his overarching claim that the Gay Rights Movement as a whole exhibits the “vulgar, rude, borderline offensive, and purposefully combative” characteristics he associates with FCKH8? In two words: pride demonstrations. Demonstrations he regards as useless “parading…in tights and bright pink boas [that] isn’t helping anything or anyone.”

“The gay community” continues Paul, “needs to mount a serious political movement to further gay rights. This fight, this movement, is about showing that you’re the same.”

Firstly, I resent the belief that the gay community has yet to mount “a serious political movement to further gay rights.” I believe our endeavors have been very serious and that our victories have been real. What is more, I reject the intimation that the leaders of our movement are somehow amateurs who do not possess the mental faculties to engage in serious campaigning.

Secondly, the movement as a whole should not be said to exude a hateful tone simply because of the actions of a small periphery campaign. The Gay Rights Movement is not centrally planned. At a time when online campaigns can be created in seconds with a simple click, it is unfair to criticize the tone of an entire movement solely based off a small group of online bloggers.

Lastly, Paul should realize that gay people are already very well acquainted with the maxim that it is possible to attract more bees with honey than it is with vinegar (indeed, so is the rest of humanity). We also know that playing up similarities to the heterosexual majority makes for good politics. Those understandings are simple enough and not beyond our abilities to grasp. In fact, the very notion of “identity politics” is a concept that sociologists have derived in large part from the gay rights movement. For example, in her essay “Celebration and Suppression: The Strategic Uses of Identity by the Lesbian and Gay Movement” sociologist Mary Bernstein observes the following:

“Critics of identity politics decry the celebration of difference within identity movements, yet many activists underscore their similarities to, rather than differences from, the majority…“identity deployment” [however,] is as a form of strategic collective action… identity movements’ [continuously] shift their emphasis between celebrating and suppressing differences from the majority.”

It is this insight that is missing from Paul’s analysis and what subsequently allows him to make the fallacious argument that pride celebrations “[aren’t] helping anyone or anything.” Pride events are necessary demonstrations, which strategically wield identity as means for empowerment and mobilization. Such events are held annually and represent a time for everyone within the gay community to come together as one. They promote a sense of solidarity, all the while allowing each of us to recognize just how diverse our community is. Although there are certainly many people fashioning boas, there are also representatives from all segments of the gay community: religious leaders, gay couples and their children, queer/straight alliances, LGBT friendly businesses, HIV support groups, gay Republicans, gay Democrats, and, most recently, gay service men and women in military uniform. These events are thus not only microcosms of the diversity in the LGBT community, but also a snap shot of our past, present, and future. That there are “seedy” elements to parts of the event reflects the origins of the gay rights movement itself: a movement started by people in dingy bars and clubs who bonded together in created kinship ties after they found the doors to their synagogues, mosques, churches, and even homes, bolted shut.

Read More…

No Comments »

custom writing