Gay marriage's fading light: What Nov. 3 in Maine really meant
When the voters of Maine rejected same-sex marriage, they helped make a record that same-sex marriage violates the state's public policy. This record could come back and bite gay-marriage advocates.
The Twilight of Gay Marriage is no accident, according to one scholar, and the State of Maine's Referendum Question One has made a powerful constitutional argument for state's to refuse recognition of gay marriages conducted where they have been legalized. . .
The Daily Beast's Linda Hirshman reveals the flaw in the gay marriage strategy: By pushing for gay marriage successes rapidly, proponents received the defeats of 2004, Proposition 8, and the slings and arrows of Maine, New York, and New Jersey.
Commentary, The Daily BeastThe rational thought that some people are wired in a non-standard way, homo instead of hetro, is beyond the capacity of many. . . . Finally, I can assure you, calling the many people who want to support gay marriage [but need further reasons to do so ]"bigots" will NEVER help your cause.
Interviewing Kevin Cathcart, a leading spokesman for LAMDA, and assessing the nearly 2 decades stall between the loss of Bowers vs Hardwick and the victory of Lawrence vs the State of Texas, Hirshman believes that patience is required for what will surely be the long and daunting road ahead.
According to Hirshman, the repeal of DOMA would not be enough to pass gay marriage in many states, due to the "public policy exception" to the Full Faith and Credit Clause of the Constitution.
Under that exception, Maine could refuse to recognize say, a Massachusetts marriage, arguing that it violates Maine's state public policy.
L Hirshman , Daily Beast Blog"The odds in the Supreme Court look a lot worse with the states having expressed themselves 44 to 6 as opposed to gay marriage," says Kevin Cathcart of the LAMBDA Legal Defense Fund.
And here is the crux: The referendum "Question One" which repealed gay marriage in the state of Maine did far more national damage than most gay advocates realize: When the voters of Maine rejected same-sex marriage, they were not merely showing, as California and New York have done, that a liberal state could support traditional marriage and reject the ideology of gay advocates:
They went further, in fact putting on record that same-sex marriage violates the state's public policy. This record, claims Hirshman, has been eyed by the nation, and could come back to fiercely haunt gay-marriage advocates.
Cathcart, LAMDA Legal Defense Fund"a certain degree of success is essential to keep people motivated, and, if they see that the promised successes are not forthcoming, they will stop believing the messengers."
Worse still, it is being found that many Americans simply do not grasp the "born that way" argument, or in what way gay marriage is akin to the civil rights fights of former times which involved African Americans. People see behavior, and it hits them intuitively that it is a behavior that is being advocated. Indeed, Tammy Bruce, the lesbian conservative writer, has gone out of her way to spread this very argument.
As a philosopher, I adhere to the idea that the genetic argument will ultimately fail in a nation like the US, and that the John Stuart Mill argument of "liberty which does no harm" is the American way to win the gay advocacy platform. This argument is defended beautifully by a philosopher in Missing the Point: The Failure of the Argument from Genetics and the Need for Alternative Arguments in Defense of the Moral Acceptability ofHomosexuality
L Hirshman, The Daily Best BlogIn effect, DOMA creates a kind of firewall, preventing the spread of same-marriage laws across state borders. But the state losses would hurt even if DOMA were repealed. [There exist state clauses, as in Maine, which could come back to haunt gay advocates]. . .
New Jersey is the latest state to bail on same-sex marriage. Linda Hirshman on how the gay community’s strategy is failing and why they’re running out of options.
Facing certain failure, the sponsors of a bill to legalize same-sex marriage pulled it from the state Senate schedule in New Jersey Thursday. The Garden State thus joined an ominously lengthening list of supposedly liberal states—most recently, California, Maine and New York—hostile to the proposal.
The defeats are obviously disheartening for the gay community. What's worse: the setbacks in the state-by-state strategy for winning same-sex marriage are taking a toll on other avenues for achieving the goal.
Maybe the U.S. Congress, dominated by Democrats and prodded by the Democratic president, could be persuaded to repeal the federal Defense of Marriage Act (DOMA), which allows all states to reject the marriages formed in the few favorable jurisdictions that allow them. Or maybe gays who want to marry should rely on the federal lawsuit started by camera-ready litigators David Boies and Ted Olson to challenge the constitutionality of California's anti gay-marriage law as a matter of fundamental right. But Congress and the courts aren't oblivious to what's happening in the states.
Though the federal courts are supposed to protect against bigoted majorities, the conventional wisdom is that the Supreme Court often actually does "follow the election returns." For instance, Kevin Cathcart, the longtime executive director of the gay advocacy group, Lambda Legal Defense Fund,. . . says: "the odds in the Supreme Court look a lot worse with the states having expressed themselves 44 to 6 as opposed to gay marriage." (At the moment, the count stands at 45 to 5, since Maine overturned its gay-marriage law.)
Certainly, Congress follows the election returns. The losses at the state level also imperil the already slim possibility of getting Congress to repeal the DOMA, EVEN now that the Democrats are in charge.
[. . . ]
The gay marriage movement turned to the state-by-state strategy only after the hit it took going federal early on—with the challenge to the sodomy laws in the 1980s that Cathcart mentioned. The states had slowly been eliminating their criminal sodomy laws, as a result of gay activism, in part, as well as a general move to eliminate victimless crimes, when the Georgia police caught Michael Hardwick in the act in his own bedroom, after coming into his house on another matter entirely. [Bowers versus Hardwick loss reversed things for 17 years until Lawrence vs Texas]
So the gay community's leadership decided to take the fight to the state level. The move made a certain amount of legal sense. Family law has, after all, traditionally been the province of the states. Nothing in the U.S. Constitution speaks obviously to the substance of family law, and, for most of American history, Congress has remained silent on the subject.. . . [Successes were followed by sharp reversals from 2000-04-08]. . .
So now what? Do strategists seek to take the fight to Washington? It's true, the new, more liberal Democratic crew in charge looks more promising. But the Obama administration, swamped with war, financial crises, and a massive health-care battle, has not done much for gay-rights activists so far.. . .
The Argument from Genetics is a flawed argument and should be abandoned. TheArgument from the Lack of Harm is superior both because it is a stronger, moresound argument and because it defends the moral acceptability of the entire gay community (gays, lesbians, bisexuals, et al). While biology and genetics almost certainly play a role in one's sexual orientation or preference, it is not and should not be the determining factor in whether homosexuality is morally permissible. Whether or not one chooses to lead his or her life as a gay man, a lesbian, or a bisexual isirrelevant—consenting adults should be allowed to do whatever they want so long as they do not harm others through their actions. This individual sovereignty is thecrux of freedom and therefore should not be inhibited without just cause. To continue to argue the Argument from Genetics is to argue against the Argument from the Lack of Harm because in doing so one suggests that there is an absolute morallitmus test (namely, whether something is genetically or biologically "natural") one must pass in order to justify being anything other than heterosexual. For this reason, its use in defense of gay and lesbian rights should be discontinued in lieu of other arguments, such as the Argument from the Lack of Harm, which impose no such demands and defend a broader range of sexual orientations and preferences.
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