The heart of the Perry case and why LGBT families should not distance themselves from single mothers

If supporters of Prop 8 have standing to appeal Judge Walker's order in Perry v. Schwarzenegger (even though the state did not appeal it), the Ninth Circuit Court of Appeals will decide whether Prop 8 violates the federal constitution. If you listened to the oral argument yesterday, you heard the term "rational basis" used a lot. That term means something in constitutional law. Every time the state puts people in categories -- classifies them -- it must have at least a "rational basis" for doing so. Charles Cooper, arguing for the Prop 8 supporters, therefore had to say what the rational basis is for allowing different-sex couples to marry but denying that right to same-sex couples.

Here's what he said. The key purpose of marriage is to manage the one relationship that naturally produces children, often unintentionally. Society's interests are threatened by unwanted pregnancy because a child raised by "its" (his word) mother alone violates society's vital interests. Society will have to step in and assist that single parent. ("That is what usually happens," he said). He argued as an "undeniable fact" that children raised in that circumstance have poor outcomes. In the middle of this last sentence, Judge Reinhardt said that sounded like a good argument for prohibiting divorce, but how does it relate to same-sex couples raising children?

His question caused chuckles in the courtroom, but here is its constitutional significance: The rational basis test requires that the state's classification be rationally related to achieving a legitimate state interest. So, first, what is the legitimate state interest? In general, providing for the welfare of children is of course legitimate, but, in this context, Cooper, on behalf of opponents of same-sex marriage, is essentially saying that the state has a legitimate interest in preventing births to single mothers. I strenuously object to this, on its own terms. And I wish supporters of same-sex marriage would object to it as well.

Instead, the emphasis among gay rights advocates is the approach reflected in Judge Reinhardt's question. It assumes that the state does have a legitimate interest in preventing births to unmarried mothers but suggests that keeping same-sex couples from marrying does nothing to achieve that objective. Judge Reinhardt's comment about divorce doesn't directly tackle bearing a child outside of marriage but does explicitly address a corrolary principle that opponents of same-sex marriage adhere to, which is that children do best raised by their married mother and father. Banning divorce would result in more couples staying married, so it does bear a rational relationship to having children raised by their married parents. Of course there is no political support for banning divorce, so no state is going to do that.

As a matter of constitutional argument, it is completely proper to focus on the relationship between the classification and the state interest. If the classification is not rationally related to the state interest then it should fail as a matter of Equal Protection law. So if banning same-sex marriage won't result in fewer heterosexual pregnancies outside of marriage, then it is irrational. (Or if allowing same-sex marriage won't result in more heterosexual pregnancies outside of marriage, then it is irrational.)

But I want to directly address the alleged state interest in reducing births outside of marriage. I wish that gay rights advocates would say directly that the state has no business prefering heterosexual motherhood within marriage over heterosexual motherhood outside of marriage. I do not believe that should be considered a "legitimate state interest." The arguments from social science about the well-being of children, which Charles Cooper referred to as "undeniable fact," are overstated, mischaracterized, covertly political, and flat out wrong. I've written about this in many posts about spending federal dollars on "marriage promotion." Consistently, the right wing argues that poverty is the result of unmarried births and that marriage is the way to end poverty. When that reasoning prevails, poverty looks like the moral failing of individuals who do not marry, rather than the result of systemic policies that reinforce income inequality that could be addressed through laws and programs designed to reduce that inequality. We know how to end poverty but we lack the political will to do it.

Charles Cooper's argument about the rational basis for opposing same-sex marriage is that if you redefine the word "marriage" to include same-sex couples you change the institution of marriage and make it something other than the place society provides for the well-being of children born, often accidentally, from the sexual relationship of the two participants. Unfortunately, it's an argument that has been successful in some state courts. I believe it fails the rational basis test in the way that Prop 8 opponents argued, but I also wants the gay rights movement to recognize its common cause with single mothers. Family structure does not determine child outcome. All children need government policies that optimally serve their physical, emotional, and educational needs. That's the gay rights position I champion.

Perry v. Schwarzenegger -- week three preview -- the defendants will make it about gender

The argument that children need to grow up with a father is not an argument aimed primarily at lesbian couples raising children. It's the argument at the core of the right-wing "marriage movement" whose agenda includes federal funding for a "marriage promotion" industry, restrictions on no-fault divorce, and increased stigma for births outside marriage. The primary tenet of this movement is that the decline of life-long marriage is responsible for all our social problems, a point of view that deliberately ignores poverty, income inequality, poor education, and inadequate health care, for example, as root causes of poor outcomes for children.

This movement gained traction throughout the 1990's, before any state allowed same-sex couples to marry or even enter civil unions. As the movement for marriage equality grew, it challenged opposition from these "marriage movement" organizations by saying, essentially, if you think marriage is so important for children then you should support same-sex marriage as better for the children those couples raise. To continue opposing same-sex marriage, these groups had to shift their argument from "marriage is crucial to the well-being of children and society" to "heterosexual marriage is crucial to the well-being of children and society," and to do this they had to talk about how much gender matters. It's not marriage, they now say, but marriage between a man and a woman. And then they refined the argument even further to stress the importance to a child of being raised by his/her married biological parents.

So as the defenders of Proposition 8 present their witnesses this week, expect testimony on gender differences to play a significant role. That makes the study published last week by Tim Biblarz and Judith Stacey especially timely. In How Does the Gender of Parents Matter?, published in the February issue of Journal of Marriage and Family, these two sociologists review all the research used to support the proposition that families headed by married, biological parents are best for children, and they reach a different conclusion. They conclude that the best scientific evidence shows instead that "compared to all other family forms, families headed by (at least) two committed, compatible parents are generally best for children." This is true, they conclude, "irrespective of parental gender, marital status, sexual identity, or biogenetic status."

They write, "Current claims that children need both a mother and father are spurious because they attribute to the gender of the parents benefits that correlate primarily with the number and marital status of a child's parents since infancy. At this point no research supports the widely held conviction that the gender of parents matters for child well-being." (emphasis mine). This is exactly what renowned child development expert Michael Lamb testified to last week at the Prop 8 trial. Expect pro-Prop 8 witness David Blankenhorn to testify how much gender does matter, although I wonder how he will qualify as an expert. He is certainly a writer and an advocate, but he is not a social scientist or mental health clinician or researcher. I am truly looking forward to his cross-examination, and I expect this latest Biblarz/Stacey article -- from a peer-reviewed professional journal -- to play a prominent role.

Perry v. Schwarzenegger -- week one -- the "beyond marriage" perspective

The last time we saw a full-blown trial on the constitutionality of a ban on same-sex marriage it was 1996 in Hawaii. The Hawaii Supreme Court had ruled that the state would need to show a "compelling state interest" in excluding same-sex couples from marriage and that the exclusion was necessary to achieve that interest. At the trial on remand, the state claimed that children do best with their married biological mother and father. After hearing the evidence, including the state's expert witnesses -- all of whom agreed that same-sex couples could be good parents -- the trial court ruled that the state had failed to show that banning same-sex marriage furthered the state's interests in providing for the welfare of children. The opinion is a great read. (The people of Hawaii later passed a constitutional amendment giving the state legislature the right to ban same-sex marriage, which it promptly did. That made the litigation moot.)

Since then, the state courts ruling on the constitutionality of the same-sex marriage ban have reviewed evidence in writing -- affidavits or deposition transcripts from plaintiff couples and from experts.

So the trial that began this week in a San Francisco federal courtroom is unusual, and not only because conservative lawyer Ted Olson is one of the attorneys for the plaintiff couples. The judge is hearing actual testimony, including cross-examination, of individuals and expert witnesses. After the US Supreme Court blocked broadcast of the proceedings (a terrible and unprincipled ruling), even into courtrooms in other jurisdictions, the best way to follow the trial is through one of the numerous blog post summarizing each day's proceedings. My favorites are the one by National Center for Lesbian Rights legal director Shannon Minter and Prop8trialtracker.com. From the mainstream press, I like the one by San Jose Mercury News reporter Howard Mintz.

Early in the trial the judge raised the question I have discussed in an earlier post: could the state eliminate the word "marriage" and call the legal status for all couples something different? (My favorite choice: civil partnership). There's no equal protection violation if the name of the status is the same for both gay and straight couples, so the answer to the question turns on whether there is a constitutional right to the word marriage, something I dispute.

Anyway, I was surprised to see the issue come up immediately in this trial. Judge Walker interrupted Olson's opening statement to ask (among other things) if California could get out of the marriage business altogether and just provide domestic partnership for all couples. He pressed the point through additional questions, even though Olson said the state would never "get out of the marriage business."

Subsequently, according to Prop8trialtracker.com, (scroll down to 3:20 pm update), the judge asked one of the plaintiffs, Sandy Stier,

"If the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?

Sandy: I believe so. Yes. If we had the same access, I’d feel equal.

Judge: Even though the term marriage is not used?

Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, I'd not have to worry about access to it because no one else would either."

Note that this is not the common answer from proponents of marriage equality. Yet it is precisely the glorification of marriage that I find so disturbing about same-sex marriage advocacy. On the same day of testimony, Sandy's partner, Kris Perry, (scroll to 2:46 pm)testified that:

"I don’t have access to the word to describe our relationship. Marriage appears to be really important to people. I’d like to use the word, too. You chose that person over everyone else. You feel that it should stick. You want the public support and inclusion that comes with marriage. If we got married, it would be an enormous relief to our straight friends who feel sorry for us. I can’t stand it. They have a word. They belong to this institution. Sandy and I went to a school football game. I realized they were all married and we’re not."

And in what I find the most disturbing portrayal of marriage, plaintiff Jeff Zarrillo said (scroll to 11;34 am):

"We have not had children because Paul and I believe that it’s an important step for us to be married before we have children. It would make it easier for us and our children to explain our relationship. It would afford different protections for our child. If we enter into that institution, we would want all of the protections so nothing could eradicate that nuclear family."

Of course this is completely in keeping with the argument that children do best with married parents, but that's an argument with its origin in opposition to same-sex marriage (Just look at the Hawaii litigation, for example.) Back when marriage equality was not a prominent item on the gay rights agenda, LGBT rights advocates opposed that reasoning, arguing that children do just as well with a gay or lesbian parent or with a same-sex couple. Now in furtherance of marriage equality, advocates assert that children with same-sex parents will be better off if those parents are married. Let me tear my hair out now. The tangible benefits of having two parents are not supposed to turn on whether those parents are married. I've written about this at length.

Many folks may think that the goal of marriage equality is important enough to win with any argument, and if glorifying marriage and/or the superiority of married parents does the trick then that's fine. I disagree. Equality is an important legal doctrine, and gay couples deserve it. So as long as marriage exists we should have access to it. But an argument that marriage is superior is fundamentally an argument that hurts the vast number of LGBT people (and striaght ones!) whose families are organized in other ways. It is also a license to discriminate against the unmarried once same-sex couples do win the right to marry. I cannot get behind that.

Prop 8 stands. Now what?

Thanks to Yasmin Nair at Bilerico for saying so much of what I was thinking about where we go after the California Supreme Court ruling upholding Prop 8.

Don't get me wrong. I feel for the advocates who devoted so much time to this effort. The defeat is painful. But that says nothing about the way forward.

I gave money -- more than once -- to defeat Prop 8. I saw it as an attack on me and on all LGBT people, as I noted in this post. But I resent the efforts to place a pro-gay marriage initiative on the California ballot and force the issue to the forefront of public attention again. Californians don't have equality, but they have the legal protection of domestic partnership. How about we improve the quality of life for LGBT people elsewhere?

I've got a long list of priorities. Marriage in California isn't anywhere on the list. I'm encouraging everyone I know not to fund this effort. Support Family Equality, which advocates for all LGBT families. Support Equality Florida in its efforts to end the ban on adoption by gay men and lesbians there. Support the work of the Alternatives to Marriage Project which is fighting for a health care decisionmaking law designed to further the autonomy of all people, not only those who marry or enter formal civil unions.

But not another cent for marriage in California. Not now and not soon.

If you read ONE article on Prop 8, make it this one

I've been silent about the Prop 8 debacle because I had nothing to add, but today I read a piece that is so good I have to recommend it to everyone. Surina Khan, who was once the ED of the International Gay and Lesbian Human Rights Commission, has written an article on how the right got Prop 8 passed. It appears on the website of Political Research Associates, whose research on the right is must reading for anyone working for progressive social change.

The organizing efforts she describes were amazing, rivaling the organizing that got Barack Obama elected. In fact, the Yes on Prop 8 folks implemented the same strategy on election day that I was involved in as part of the Hampton, VA Obama organizing effort. Pre-election day, 100,000 Prop 8 supporters identified voters who were with them. On election day, they made sure those voters turned out; five workers in every precinct contacted those who had not yet voted to get them to the polls. (In Hampton, the woman I stayed with received 5 phone calls from Obama volunteers -- this because she had not cast her vote before 1:30 pm, when volunteers at the precincts delivered to volunteers on the phones the names of those who had voted so that those who hadn't could be contacted.)

Surina Kahn's article does more than describe the superior organizing work of the right wing leaders who developed the Yes on 8 strategy. She says:

it’s important to recognize that the Christian Right’s opposition to same-sex marriage is only one part of a broader pro- (heterosexual) marriage, “family values” agenda that includes abstinence-only sex education, stringent divorce laws, coercive marriage promotion policies directed toward women on welfare, and attacks on reproductive freedom.

She criticizes marriage equality as a stand alone issue and urges a broad coalition effort to strengthen diverse households and families. Among the issues she names are economic security, immigration status, incarceration, and health benefit for non-married family members.

Too often, when the marriage equality movement talks about coalition building, what it means is getting organizations with other primary missions to support marriage for same-sex couples. That is not real coalition building. Real coalition building is getting groups to work together on common concerns, recognizing the ways they rise and fall together. In the early days of the gay rights movement, we did this. The coalition that fought the attempt of the right to capture the 1979 White House Conference on Families included gay rights groups, feminist groups, reproductive rights groups, and about fifty moderate and liberal mainstream organizations. (I discuss this in my book, but for all the details you'll have to go to get an out-of-print book (try your library) -- Creating Change: Sexuality, Public Policy, and Civil Rights, edited by John D'Emilio, William Turner, and Urvashi Vaid, and read the chapter by Thomas J. Burrows, who was there through it all.)

Surina Khan was one of the drafters of the Beyond Marriage statement. She's a wise woman and this is a wise piece.

IT'S THE YOUNG PEOPLE, STUPID...

You can't have avoided hearing about race and Prop 8. I'm not repeating the coverage here. (I do recommend you read Richard Kim in The Nation.)

But have you heard this? 61% of people 65 and older voted for Prop 8. 61% of people under 30 voted against it. Click here for the full exit polling on Prop 8. So why no press coverage on this angle? The future is ours...and no amount of Mormon money or blatant disinformation will stop that.

And on the matter of race and sexual orientation...Thanks to Alex Blaze at Bilerico for pointing out that only 72% of self-identified lesbian, gay, and bisexual voters choose Barack Obama, while 77% voted for John Kerry in 2004. This is astonishing. Review the exit polls for 2004 and the exit polls for 2008, and you find that in 2008, more men, more women, more whites, more blacks, more latinos, more asians, more protestants, more catholics, and more jews voted for Obama than voted for Kerry in 2004. But fewer gay people did. What explains this do you think? There was no increase in the percentage of self-identified LGB voters; it was 4% in both 2004 and 2008. 2008 was an overwhelmingly democratic year, but more gay people picked McCain than picked Bush in 2004. Had Obama lost (heaven forbid!), could Obama supporters of all races have looked towards racism among gay people as a reason? Is there some other plausible explanation? Oh, and in the same post, Alex Blaze notes that a higher percentage of whites than blacks voted to ban unmarried couples from adopting in Arkansas, but you haven't heard anyone decry white homophobia there, have you?

Oh, and another demographic voting more for McCain in 2008 than for Bush in 2004...people over 65. Even in California, with its overwhelming support for Obama, only 48% of people over 65 voted for Obama; 50% voted for McCain.

I'm old enough to remember "Don't trust anyone over 30." Today at the very least we should think twice about the 65 and over crowd.

OBAMA TAKES GAY RIGHTS STAND FOUR DAYS BEFORE THE ELECTION -- CAN THIS BE REAL?

In a move drawing outrage from gay rights leaders and the San Francisco District Attorney, the campaign to eliminate marriage for same-sex couples in California mailed flyers to voters with a picture of Barack Obama -- and Michele -- and a quote: "I'm not in favor of gay marriage." The message "Vote Yes on Prop 8" appears under Obama's image.

But Obama had gone on record AGAINST Prop 8, and the flyer was a blatant attempt to mislead California voters into believing to the contrary.

When National Center for Lesbian Rights legal director Shannon Minter brought this to my attention earlier today, I said it was especially infuriating because four days before the election Obama could not afford to publicly disavow it. Well I was selling short the man I hope will be our next President. In fact, late Friday evening his campaign put out a statement reaffirming his opposition to Prop 8. It gave me a pinch-me-I-must-be-dreaming moment.

When Congress passed DOMA weeks before the 1996 election, President Clinton signed it. It was widely believed that a veto would torpedo his reelection. Obama's response to this one misleading flyer is nowhere near as consequential as vetoing a law passed by Congress, but, still, I expected caution on Obama's part, and therefore silence.

I'm writing tonight from Hampton, Virginia, where I've been working this week on Get Out The Vote. The volunteers range from young people to 92. We work tirelessly. We have fun. We have faith in the future. And tonight my faith just deepened.

CALIFORNIA DREAMIN'

The National Lesbian and Gay Law Association is holding its annual Lavender Law conference in San Francisco this weekend. I took some time off from conference sessions to do some sightseeing today. Dale Chihuly at the deYoung Museum. A walk along the spectacular coastline. A lesbian wedding.

Nashville lawyer Abby Rubenfeld, a Lambda Legal staff attorney more than two decades ago, was in town for Lavender Law and for the meeting of the National Center for Lesbian Rights National Family Law Advisory Council (I'm on it too). So she thought while she was here she'd take advantage of the opportunity to marry her partner, and she invited all us fellow NFLACers to join her. It took place at 1 pm, in between conference sessions, in blue jeans, at the courthouse, performed by out lesbian judge Nancy Davis. Words were said, rings exchanged, and then most of us went back to the conference.

I don't usually go to weddings. So why did I go to this one? Best I can tell, it was indeed about being a tourist here...a chance to do something I can't do at home...or anywhere else in the country other than Massachusetts. I'm glad I went.

Being here in California does impress upon me the importance of defeating Proposition 8 on the November ballot. If it passes, marriage for same-sex couples ends in California. I don't think of it as a vote on marriage; I think of it as a vote on our humanity. If Prop 8 passes, it will energize anti-gay forces across the country to go after us on any issue they can. If Prop 8 is defeated, it will slow those forces down and inspire hope in gay activists and in gay folks too scared to be activists. The No on 8 campaign needs to raise lots of money and to raise it fast. The vote is expected to be very close. Every dollar will be put to good use. Find out how to donate here. I hesitate to overuse the reference, but when it comes to the fight over Prop 8, we are all Californians.