Monday, September 8, 2003

Given recent trends at both local and federal levels, most notably the Supreme Court decision striking down the Texas antihomosexual sodomy law, it would appear that legal recognition of gay marriage may be just a matter of time. Should gay marriage be granted legal recognition? Are same-sex couples who are not allowed to marry under current law being denied equal protection of the law? How would recognition of gay marriage alter the traditional purpose of marriage? And would gay marriage erode support for families or strengthen it?

Recorded on Monday, September 8, 2003

Peter Robinson: Today on Uncommon Knowledge: gay marriage--a perfect wedding or an indecent proposal?

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today, gay marriage. This past spring in the case Lawrence v. Texas, the Supreme Court overruled a Texas anti-sodomy law. In his dissent, Justice Antonin Scalia argued that the Court had taken sides in the nation's culture wars and that, "Today's opinion dismantles the structure of Constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions." A number of municipalities in a couple of states already permit gay marriage in all but name and now the Supreme Court itself, according to Justice Scalia, has dismantled the primary Constitutional barrier to homosexual unions. Is the trend toward gay marriage to be welcomed or fought?

Joining us, two guests. Kate Kendell is executive director of the National Center for Lesbian Rights. Maggie Gallagher is president of the Institute for Marriage and Public Policy and editor of marriagedebate.com.

Title: What's Love Got to Do With It?

Peter Robinson: "Marriage has got historic, religious and moral content that goes back to the beginning of time and I think a marriage is as a marriage has always been, between a man and a woman." Spoken by Hillary Rodham Clinton. Are you with Mrs. Clinton or against her? Kate?

Kate Kendell: Well, I probably don't disagree with Mrs. Clinton on a whole lot but she's got it wrong there.

Peter Robinson: She's got it wrong there?

Kate Kendell: She's got it wrong there. Lesbian and gay people marry for the same mix of reasons any other couple marries. And what we would want to have in a society is the kind of social policy that would support commitment, that would support security and protection for children and that institution in this culture, is marriage. And there's no reason to deny it to lesbian and gay men.

Peter Robinson: Maggie?

Maggie Gallagher: Well, I think the only limitation is that it implies that the only reason we have marriage this way is because of religion, morals and tradition. And, in fact, I think the more basic question is why do we have laws about marriage? What purpose does it serve?

Peter Robinson: You have beautifully set up the next segment. Two views of marriage. First the High Court in Ontario, Canada in its decision this past spring in favor of gay marriage, in effect, mandating gay marriage in Canada. "Through this institution of marriage, society publicly recognizes expressions of love and commitment between individuals granting them respect and legitimacy as a couple." In other words, marriage is a form of expressive conduct between two people. Second view of marriage, I quote you to yourself, Maggie Gallagher, "Marriage is not merely individual expressive conduct. Marriage is the fundamental cross-cultural institution for bridging the male-female divide so children have loving, committed mothers and fathers." In other words, male and female and children are essential components of the ideal or the norm of marriage. Kate?

Kate Kendell: I agree with both of those views of marriage. But what I would suggest is that Ms. Gallagher's perspective on marriage is not mutually exclusive to recognizing and supporting marriages between gay and lesbian couples. People may not like homosexuality. They may have moral disapproval for lesbian and gay lifestyles but the fact is we form committed relationships, we commit and cast our lot together in the same way heterosexual couples do. Many of us are raising children. So the question becomes, given the existence of those families, that are going to continue, what kind of communitarian philosophy do we employ to assure that those children and those relationships have the protection and security that we give to all couples in relationships in a civic democracy.

Peter Robinson: Okay. So we have gay relationships and indeed families construed one way or another, already exist. What will society do about them?

Maggie Gallagher: My concern, Peter, the reason I'm in this debate at all is not my feelings about homosexuality but my 15-20 years of work on the marriage issue itself. And as I understand it, if we take the step, if law and the government says unisex couples are just the same as male-female couples, one of the things you'd be saying very strongly is that either marriage is not about children anymore or that children don't really need mothers and fathers. And, in fact, I think that it would be no longer the case that marriage is about--not just in this society or this tradition or this religion or that religion but in almost every known human culture. Marriage is about creating ties between men and women so that children have mothers and fathers. We're not doing a very good job at that in this culture and it has nothing to do with advocates for same-sex marriage.

Peter Robinson: That is to say, heterosexuals have done plenty of damage to the institution.

Maggie Gallagher: Well, cross-gender couples. Actually gays and lesbians occasionally marry too, members of the opposite sex. But yeah, it's a fragile institution. It's in crisis and the crisis is intimately involved with this question. How committed are we to the idea that children need mothers and fathers and that marriage has something to do with getting it…

Kate Kendell: But why can't that…

Maggie Gallagher: …and that's my concern.

Kate Kendell: …perspective live, along with the perspective that says we will support and protect lesbian and gay couples who choose to make this commitment to each other and many of them choosing to have children. There are lots of exceptions to this rule that marriage is only about children or providing children a mother and father. Of course, as you know, I mean, a…

Peter Robinson: Let me try…

Kate Kendell: …more than half of the couples in this country that are heterosexual…

Maggie Gallagher: Can I respond?

Peter Robinson: Oh sure, go ahead Maggie.

Kate Kendell: …do not have children. So that's not the central function. Why can't that exist at the same time?

Peter Robinson: Okay. Go ahead.

Maggie Gallagher: Every man and woman who marries is capable of giving any child they create or adopt, a mother and father. What the law and the government and the United States of America or the State of Massachusetts is going to be doing is saying essentially that radically motherless or radically fatherless families are just the same. There's no difference between these two kinds of relationships. This idea that children need mothers and fathers will become a private view, not a shared norm as it is now.

Peter Robinson: All right, that children need mothers and fathers is a shared norm but where does the norm come from?

Title: A Mom and Pop Operation

Peter Robinson: You derive the view that children need mothers and fathers from what? From Hillary Clinton, Judeo-Christian tradition, from research, is it an empirical question? How do you defend that notion?

Maggie Gallagher: First of all, I don't think there are very many people willing to get tested at this point. It is not only common sense but it is--you now have not dozens or hundreds but thousands of research studies, as you know, Peter, my last book, The Case For Marriage, with University of Chicago Professor Linda Waite, I spent some time documenting this. But I think that the broad consensus now, not only among regular people who really never doubted it, Peter, but even among social scientists now, is that family structure matters and the bulk of the evidence is that children do better when they are raised by their own married mother and father.

Peter Robinson: Okay. So you have common sense, the tradition of the ages and now empirical work suggesting that children need mothers and fathers.

Maggie Gallagher: In my opinion, yes.

Kate Kendell: Certainly there are children who thrive marvelously with a mother and father, assuming that that mother and father are committed to each other, committed to their children, are emotionally healthy and capable of raising children and giving them the proper nurturing environment. Lesbian and gay couples are also very capable of doing that. And if you look at the studies that talk about fatherlessness and how children suffer by not having both a mother and a father, it's less about the gender being one mother and the gender being one father, and more about the unity of commitment, financial support. These studies on fatherlessness…

Peter Robinson: So your point then would be that a lesbian and homo--that the gay marriage, let's use one term to encompass both, in fact, can be quite good at picking up the pieces of this broken heterosexual institution. It's so badly broken, we have what is it, thirty, forty percent of children now are being raised in single parent homes. And just to tease out this one question, let Maggie respond to it, isn't it better then to let lesbians and gays adopt, raise families, and pick up the pieces of this broken institution? What's wrong with that?

Maggie Gallagher: First of all, the argument I'm making is not that people who are heterosexual are better parents than other kinds of people…

Peter Robinson: Right.

Maggie Gallagher: I mean, I was an unwed mother for 10 years, Peter. Lots of single mothers can be great parents for their children. But they can't be fathers for their children. They can't be mothers and fathers. And I think that if you lose the idea that there's something core and important, this is what I call the marriage idea, you know, it's kind of a dumb, little idea that people who make the baby are supposed to stick around and take care of the baby because children need mothers and fathers. If you say that, you know, one of the problems with the gay marriage debate is that it's really part of the stream of the family diversity argument. We're not doing as good at marriage as we used to be so why don't we just give up on this marriage idea that there's something important about mothers and fathers. And why don't we say instead, that, you know, whatever adults want to do, we should support.

Kate Kendell: To suggest that children need mothers and fathers and that is the exclusive and only model that should be promoted and therefore, it's perfectly appropriate to exclude an entire category of people from marrying, compares apples and oranges. The studies that talk about children who are at risk because they did not have a mother and father, never once has there been a study comparing children raised in a mother-father heterosexual married household and a lesbian or gay two-parent headed, committed household.

Maggie Gallagher: This is precisely true.

Kate Kendell: There are no studies that compare that. So what I'm arguing against…

Peter Robinson: Has never been investigated properly.

Kate Kendell: …are studies that say a child does better in a mother-father household rather than a broken home. Hey, I'm not going to dispute that point.

Peter Robinson: Let's look at a few proposals for amending the legal status of marriage.

Title: The Kinsley Report

Peter Robinson: Item one, marriage according to Michael Kinsley. Kinsley writes not long ago, in the Washington Post as I recall, that we ought to privatize marriage. The government should have nothing to do with it. Anybody who wants to get married to anybody else, man, woman, gay, any configuration they want, ought to be free to do so. The way to handle that problem is if you're Catholic, you go to a Catholic church. If you want to be blessed in some sort of new age ceremony, you set up a new age ceremony. It is a matter to be handled entirely by private institutions. The state gets out of it. It relieves us altogether of this argument about what the law ought to be regarding marriage. Do you like that idea?

Kate Kendell: Well, I'd have an additional question for Mr. Kinsley.

Peter Robinson: All right. Who's not here alas but…

Kate Kendell: And that is, what do you do when couples break up or how do you assure that there's continued community, social and legal support for attempting to keep that family together regardless of the configuration, assuming for the sake of argument that that is in the best interest of the children?

Peter Robinson: So you just shot Kinsley down in flames. You can't do it because…

Kate Kendell: Well, I do feel like marriage--that there are a number of approaches that we could take to assure that all families are supported and that children are protected and that they have a relationship with their parents and they recognize their parents are committed to each other. It's a possible model but there's unanswered questions.

Peter Robinson: Okay. So you're a lawyer and your notion would be that the legal profession could sort out questions of disposition of property, custody of children and so forth and that it's at least worth considering that the question of marriage itself ought to be left to the private sector.

Kate Kendell: Maybe.

Peter Robinson: Private realm, so to speak. Maybe.

Kate Kendell: Maybe. It's worth exploring.

Peter Robinson: Okay. Maggie?

Maggie Gallagher: Well, I think you'd only come close to that view if you thought of marriage as kind of private lifestyle choice. If you think it's a key institution that, in fact, you know, we don't know of any culture that's managed to survive without a reasonably well-functioning marriage system. We know that children suffer. We know that taxpayers pay enormous costs for all the social problems generated. We know there are huge inequalities of opportunities through no fault of their own. Some children are burdened and suffer the deprivations and some enjoy the advantage of reasonably good, intact married families. And it would only cross your mind if you didn't believe any of those things and you just instead thought well, you know, there's many sexual lifestyles and one of them is called marriage and it's just a religious institution. My view is we need marriage and that we need lots of good laws about marriage. We need good culture. We need to raise our children to respect marriage and people who are religious, all religions view a special importance to this kind of relationship too. So all of them need to be working together.

Peter Robinson: Let me quote another Maggie Gallagher passage to you, Kate. This is just on the question of marriage as a legal matter, the need for legal norms, "We have seen what has happened in our communities where marriage norms have failed. What has happened is not a flowering of libertarian freedom," take that Mike Kinsley, "but a breakdown of social and civic order. There is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation, crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems." In other words, we do need marriage as a legal norm. You going to grant that?

Kate Kendell: Why not.

Peter Robinson: Okay.

Kate Kendell: But then the issue becomes, and this is where this sort of talking past happens in this debate, especially when the argument rests on children need a mother and father and that's the only model we will promote.

Peter Robinson: Okay.

Kate Kendell: First of all, I think the studies are dubious because there's no direct comparison with two-parent lesbian or gay households. Number two, the fact is lesbian or gay couples are coming together and they're having children. My own situation is a perfect example of that. What are we going to do in a constitutional democracy that, like it or not, has diverse and different peoples and how are we going to assure that those couples and children are protected?

Peter Robinson: Kate has very nicely set up our next proposal, marriage according to Andrew Sullivan.

Title: Let's Make a Deal

Peter Robinson: Andrew Sullivan grants the entire weight of your argument and says marriage is tremendously important. It must be preserved. Precisely so, we need marriage extended to gays. "Legalizing gay marriage would offer homosexuals the same deal society now offers heterosexuals, general social approval and specific legal advantages in exchange for deeper and harder to extract yourself from, commitment to another human being. Like straight marriage, it would foster social cohesion, emotional security and economic prudence." And Andrew Sullivan says he makes a conservative case for gay marriage. Maggie?

Maggie Gallagher: You know, I think that if you look at states that have had either marriage or marriage equivalents, you don't find what Andrew Sullivan hopes. You don't find that this is becoming…

Peter Robinson: We've got what about half a dozen municipalities in a couple states?

Maggie Gallagher: Well, for example, in the Netherlands…

Peter Robinson: Oh I see, different countries. All right.

Maggie Gallagher: …which has marital benefits since 1997, about one out of seven of partnered gays and lesbians have registered their relationships. This doesn't surprise me because I think marriage grows out of thousands of years of cross-gender experience. And it's not clear that you can just translate this all into a different culture and different community and that it will suit the needs of that community in the same way. But secondly, you know, in the 2000 census, there are exactly 172,000 households that are same-sex partners with a child, not necessarily a child of the union. Most of those are children of divorce. Meanwhile there's 25 million children who will go to sleep in fatherless homes. And I think that there's a real issue, Kate, of proportionality.

Peter Robinson: What harm does it do to the institution of marriage if those 172,000 households are permitted legally to marry?

Maggie Gallagher: It changes what marriage is legally, publicly and shared. And it is no longer about getting mothers and fathers for children. Every time…

Peter Robinson: And from that, what follows, the divorce rate goes up, legitimacy increases?

Maggie Gallagher: I think it will block the marriage recovery that we're doing right now and that you will continue to see a deterioration in marriage as you're seeing in European countries. There is no marriage movement in European countries and you're seeing a continued decline in marriage.

Peter Robinson: Okay. So now, Kate, let me ask you, if marriage is denied to gay couples, we've already got 172,000 households in which there's a gay relationship raising children. You've said several times now that this discriminates or there's a kind of prejudice or there's a kind of positive animus--I think I'm understanding you to say--against gays who attempt to raise children under the current structure. But specifically what damage does it do?

Kate Kendell: First thing, the U.S. census number is notoriously low because I know dozens and dozens of couples just personally, who would never on a government form, acknowledge that they're a lesbian couple raising a child because of concerns of discrimination, depending on where they live. Let's accept the figure just for the sake of argument. The real damage that's done is damage that the National Center for Lesbian Rights sees every day and that I've seen in my time as a lawyer and an advocate for lesbian and gay couples. A parent dies and there's no social security survivor's benefits because there was no recognition of the fundamental relationship between the two adults. The couple splits up and there's no obligation to pay child support or spousal support.

Maggie Gallagher: That's not true…

Kate Kendell: That's absolutely true. There's an entire safety net…

Maggie Gallagher: I'll respond.

Kate Kendell: …that marriage provides around supporting a couple and have the community support them, have the family support them. And if marriage makes it more difficult to walk away and thereby leave a child with the trauma of a broken household, why in the world would you not provide the same protection and security to children being raised in lesbian or gay head of households.

Maggie Gallagher: Marriage doesn't protect the relationships of same-sex couples. The way marriage protects the parenting relationship of heterosexual couples is the law assumes that the mother and the father in this marriage are the biological parents. You know, there's still the problem for gay and lesbians of establishing relationships with their children for the non-biological parent. And actually marriage will have nothing to do with it. I think it's actually second parent adoption…

Kate Kendell: And if a couple is married--if I were to be able to marry my partner of ten years, she gave birth to our daughter 22 months ago, if we were a married couple, I would automatically have been a…

Maggie Gallagher: A father?

Kate Kendell: …a parent.

Maggie Gallagher: No, I don't think that that's true actually.

Kate Kendell: I'm the second parent of her now. I would absolutely be the second parent of her under law. That's the way it would operate.

Peter Robinson: Let's turn from what ought to be to where we're actually headed.

Title: The Gay Naughties

Peter Robinson: Decision in Lawrence v. Texas this past spring. Supreme Court strikes down the Texas homosexual anti-sodomy law. It only applied to homosexuals. In his dissent, Justice Antonin Scalia writes as follows, "The court today pretends that we need not fear judicial imposition of homosexual marriage, do not believe it. Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions insofar as a formal recognition in marriage is concerned." Highest court in Canada has already said, in effect, that Canada must recognize gay marriages. In this country, we have half a dozen or so municipalities, including San Francisco recognizes some form of civil unions, certain states, Vermont, Massachusetts, there's a case pending that appears likely to establish the right of gay marriage in Massachusetts.

Kate Kendell: And AB 205 here in California that would grant all rights and benefits under state law to lesbian and gay couples.

Peter Robinson: Okay. So and now Justice Scalia tells us that the Supreme Court itself has already dismantled the basic constitutional barriers to gay marriage. Is gay marriage all but inevitable?

Maggie Gallagher: I don't think so. The future is undiscovered territory. You know Peter, since I started in this in the late Eighties talking about marriage; the argument from despair has always been the principal argument. You know, oh there's trend lines on a graph. It's the modern condition. We have all these alternative family forms. There's nothing we can do about marriage. And I think that the turnaround in marriage in the last ten years proves that that's not true. And I think ultimately the future of same-sex marriage is in the opinion of policy elites but also the American people.

Peter Robinson: Okay. So now as a practical matter, what's the next step for your side? Do you have any recourse other than to back a constitutional amendment on marriage?

Maggie Gallagher: I think there's a growing consensus that that's a good idea, whether because you're going to pass a constitutional amendment or whether because you may, in fact, affect who comes to the Senate, which will affect who is appointed to the next Supreme Court. But definitely there's very little recourse now. We have courts radically stepping in and taking this out of the hands of the voters.

Kate Kendell: Well, now that's what's radical.

Peter Robinson: What's that?

Kate Kendell: To amend the U.S. Constitution to deny an entire class of people the ability to legally make a commitment to each other. It is beyond the pale that that is the level at which we would resort. The fact is I believe that the essence of the American spirit is not the fomentation of discrimination and prejudice but it is to embrace, to support, to wish for people to make commitments and to support them in those commitments.

Peter Robinson: Practical judgment. How do you think things are going?

Kate Kendell: I believe it's only a matter of time.

Peter Robinson: Are you encouraged?

Kate Kendell: I am encouraged. I am encouraged. I always believe because I believe the glass is half full, that right will prevail and that fairness will win out.

Maggie Gallagher: On that we agree.

Peter Robinson: Last topic, the disparity on gay marriage between public opinion and judicial action.

Title: Courtly Behavior

Peter Robinson: By and large, what you look at when you look at the country is that the public is against gay marriage. Poll after poll after poll indicates that. And the action, the incremental movement toward gay marriage is taking place almost exclusively in the judiciary. Doesn't that make you queasy?

Kate Kendell: Oh, the courts have always been the…

Peter Robinson: That the courts are attempting…

Kate Kendell: …arbiter of individual liberty and protection. I mean, Brown v. Board of Education never would have happened if we were going to wait for Alabama's citizens to decide they were going to allow the schools to be integrated. I mean, that's what courts do. But the other thing about those poll numbers…

Peter Robinson: This doesn't make you queasy at all?

Kate Kendell: It's a mile wide and two inches deep. When people understand the real issues and they don't consider marriage to be part of a dangerous "homosexual agenda," just those words people don't even know what they really mean. But if people will sit down and have a dialogue and a discourse and most importantly, if they know real gay people in their lives, those numbers start to change very quickly. Ten years ago, it was a 40% split. Now in many states it's a 20% or even a 15% difference.

Maggie Gallagher: You know, I think a weakness has been that the issue has been defined primarily as about homosexuality. And I think that as we begin to talk about its importance as a marriage issue, for marriage and for children, you're going to see as we saw in the last few months, a strong increase in opposition to gay marriage and support for the traditional understanding of marriage.

Peter Robinson: So there are two different--I suppose there's a certain sense in which you're arguing about the same relatively small but terribly important set of issues. But you say it's discrimination. Why not us? And you say, I'm not trying to discriminate against anyone. It's a vital institution and it needs help.

Maggie Gallagher: And it's no more discrimination than to say Social Security goes to old people is age discrimination. It's intrinsic part of what the purpose of this institution is. It's no more discrimination than to say public education goes to school children. It doesn't go to forty-year-olds who want to retrain. I mean, sometimes not every difference is a discrimination. And this is a difference that makes a real difference and makes sense.

Kate Kendell: But you don't engage in any balancing of the welfare of tens of thousands--I would suggest hundreds of thousands--and those numbers will bear out as people feel safer coming out--hundreds of thousands--you don't balance the welfare of those couples and those children and those families. And what it's balanced against is a histrionic notion of what might happen or could happen. Lesbian and gay people have had no part in whatever the danger and damage that has been done to marriage and yet everything is rested at our feet.

Maggie Gallagher: You know, I have no moral qualms at all of standing up and speaking for the twenty-five million children who are going to bed without their fathers, none at all. And I think adults who are not interested in this form of marriage but want alternative family forms, should also put more weight than I hear anyone giving on the--among advocates of same-sex marriage--to what this might at least potentially do. And I'll tell you there are a number of advocates of same-sex marriage who agree with me that this is a radical transformation in the purposes of marriage. You know, that the reason that they support it is that it's going to radically alter an archaic institution. And either you're right and it makes no difference or I'm right and it makes a profound difference. But let's not belittle or minimize the importance of this…

Kate Kendell: But if the essence of it is fatherlessness, then what you're talking about is a family where there was expected to be a father, there was intended to be a father and he abandoned that family.

Maggie Gallagher: That is exact…

Peter Robinson: It's television. I have to ask the last question. Yes-ish or no-ish answers. That is to say give me a one word or a sentence but no more than that because we're running out of time fast. A decade from now, will gay marriage have become a legal reality in the United States? We know what you both think ought to happen. I'm now asking for a cold call on what you think will happen? Kate?

Kate Kendell: Yes, and the sky won't fall and the communities will be better and stronger because of it.

Peter Robinson: Maggie?

Maggie Gallagher: I've given up forecasting the future.

Peter Robinson: You have?

Maggie Gallagher: I just don't know but I know that we haven't yet begun to fight on this one and I hope for the sake of this country that we win.

Peter Robinson: Maggie Gallagher, Kate Kendell, thank you very much.

Kate Kendal: Thank you.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.