INTRODUCTION TO THE LEGAL ANALYSIS

In Memoriam: Mark Alan Koop, 1949-2008.

Mark Koop was a brilliant lawyer, a gay man who remained loyal to his life partner for 36 years, and who died unexpectedly in Berkeley, CA of a rare lung disorder. He was a man of stubborn religious faith and impressive classical scholarship. His final parish – where the funeral mass was conducted on Tuesday – is distinguished by its large number of faculty-members, its resident rabbi and long tradition of world class choral music. The place was packed with lawyers, family, faculty, friends and congregants from at least three faith communities.

JBG

About Gay MARRIAGE

INTRODUCTION TO THE LEGAL ANALYSIS

Let me begin with the end. Cultural history is not linear. There is no particular guarantee that what the “decent” people consider to be social progress will continue in a straight line or even continue at all during the lifetimes of the current crop of adults. This is particularly true of sexual mores. Particular cultures tend to go though ‘sex cycles’, if you will, from libertine to prudish and back again. There are cultural limits imposed on our humor at the moment, for example. Our politically correct nannies seek to impose what amounts to a form of neo-prudish repression of expression.

Not only does cultural history stubbornly defy predictions along a timeline, it always plays out differently in different places. Inevitably there are cultural bubbles, zones defined by a sort of encapsulated cultural consensus like that surrounding San Francisco. Bubble inhabitants tend to misunderstand the rest of the world.

The Gay and Lesbian civil rights struggle has been won as far as most people who live in the outside-the-bubble USA are concerned. Within the bubble, gay and lesbian civil rights are still seen through the lens of oppression. In the larger world, the issue of homosexual marriage is considered a boutique issue, one of marginal concern at best, affecting a tiny fragment of the larger population in a world torn by real repression, terror, plagues and brutal poverty.

When people try to address a moral – political – social issue of this heightened sensitivity, the approaches tend to sort into separate moral, realistic and prudential discussions. I’ve tried to do all three, folding in moral, theological and realistic analysis issues with a sort of prudent, “what’s next’ analysis. You can find that article posted in PDF format at

http://jaygaskill.com/AboutGaynessEcclesialAndSecular.pdf .

As almost everyone knows, the California Supreme Court ruled on May 15, 2008 in a narrowly split decision (In re Marriage Cases), that the California Constitution implicitly requires that same sex marriages be honored. A flood of gay marriages has followed, pending further electoral and possible legal action.

This is a legal Overview of —

The Marriage question

States enjoy complete control of the marriage laws within their jurisdiction.

As I write this, the California Supreme Court has interpreted the state constitution to require that all the legal incidents and benefits of the official marriage relationship (including formal marital status) that are available to heterosexual couples must be also made available to heterosexual couples. This action can be reversed at any time by the legislature (very unlikely) or by a voters’ initiative (too soon to tell). But the California legislature’s action (affirmed by the court) to extend the various economic benefits enjoyed by traditional married couples to same gender couples is probably here to stay.

[???] Should the United States attempt to redefine marriage to accommodate same gender couples or to prevent their marriages when allowed by individual states?

[???] Should it act to prevent some of the states from doing so?

The answer to the first and second questions is no, in my opinion. This is based on the historical fact that the determination of marital status is reserved to the states. As to the second question, the federal government could not actually bar gay marriage in the states without a constitutional amendment. That is very, very unlikely to happen.

Do the circumstances call for the development of other, parallel institutions, in effect of a new category of “almost-marriages” for gays and Lesbian couples? Again, that depends on individual state action, but I would argue that, yes, that is an appropriate avenue for gay/lesbian accommodation, especially when actual marriage is not permitted by a given state. [As I note in my larger article referenced above, no state, nor the federal government, can lawfully prohibit religious institutions from performing gay/lesbian marriage ceremonies or blessings any more than the government can prohibit or proscribe prayers inside any church.

How much local variation on an issue this sensitive will American public opinion accommodate to? The short answer is that the pattern of gradual accommodation will continue unless and until public opinion is roused by a perception of “overreaching”. The recent split decision by the California Supreme Court actually overturned a previous voter’s initiative that had been intended to preserve traditional marriage. The next election may or may not represent a backlash.

The great majority of the US population and separate majorities within an overwhelming majority the 50 states would still reserve “marriage” to the traditional man-woman family alliance. As long as this state of opinion obtains, the politics of democracy will prevent a national redefinition, but it hardly bars individual states from reaching differing levels of accommodation. Given the weight of public opinion (allowing for the obvious exceptions) it unreasonable to expect the majority of the states to acquiesce in a developing legal situation that might ultimately compel them to make that accommodation against the will of their own constituencies. It was precisely to prevent the latter scenario that impelled to Clinton administration to support the Defense of Marriage Act, designed to permit state experimentation, while insulating the non-participating states from required recognition of an arrangement not sanctioned within their own borders

The contemporary institution of marriage, after we straights have fought over it in court all these years, carries a huge accumulated weight of social and legal baggage. I have made a very short list of some of the recurring problems associated with our venerable and valued institution.

Alimony fights. Either spouse may get lifetime alimony payments from the other in a divorce, particularly when the marriage is a long one and there is a disparity of income between the two.  Subsequent marriages are made vastly more problematic when a former spouse, motivated more by greed and anger than authentic need, plays the “alimony card” in a destructive way.
Marriage as hostage.  Divorce and the desire to make a new life in subsequent relationship are facts of life in the modern culture. Divorce lawyers prosper because of human nature. A recurring phenomenon is the “I’m not giving you a divorce as long as you’re living with X” stance.
Bitter, destructive child custody battles. Consider point five as it relates to this thorny issue.
Unpredictable court outcomes. Regrettably, no jurisdiction I know of has managed to come up with fair, objective, easily administrated rules for resolution of divorce related issues.  Consider that in commercial and criminal law, millions of dollars and multi-decade jail sentences are meted out every week with less fuss and anger than in a typical divorce case. I believe that a major reason for this is the absence of objective rules. This explains the otherwise perplexing fact that more judges and lawyers are murdered by litigants every year in divorce cases than all other legal proceedings combined.  That which is not rule-driven becomes personal.

With that distressing preamble is out of the way, let me outline how I understand how the real issues may play out:

[1] All other things equal, the law will support a deeply rooted social tradition that does no affirmative harm.

Marriage (warts included) has been a remarkably stable social model for several thousand years. This remains true in spite of the divorce rate and all of the changes over the last few centuries. The classic marital model has remained the same in its most essential elements. What are those elements?

For all recorded history (before the last few years), marriage in the classic model has been the sole officially sanctioned union of a human couple, consisting primarily of one man and one woman (even in the more primitive polygamy model, the marriage relationship was heterosexual), for the purpose of establishing a family unit tied together by mutual promises of support, monogamous fidelity, and loyalty.

Yes, there were some variations from the classic model. But they have been minimal over five millennia, mostly limited to peripheral matters: think of the age-definition of “woman” (e.g., the betrothed pre-pubescent teen); the issues concerning which man or woman could marry which man or woman (referring to the parental consent and marrying outside class, religious and racial barrier issues); and the varying modalities of “official sanction” (i.e., tribal chief, shaman, judge, priest, mayor, ship’s captain, county clerk, and, of course, the number of women married to the man. After all this time, we can say with confidence that the classic model is so pervasive and so dominant for so long that the few counterexamples can reasonably be characterized as mere experiments. But never (until now) has there been real dispute about the core concept, the idea that marriage is the sole, official social/legal unit of the family, the recognized union of men and women.

Marriage has been historically unique, differing from the various other personal contractual arrangements by at least these four features:

(a) Open notoriety [That is, marriage is open, public and proclaimed, conferring a recognized status on its members, that of wife and husband.]

(b) Non-reservation [That is, the marriage arrangement is open-ended in time, and its inherent mutual obligations are not qualified by reserved exceptions, like “as long as we have male children”.]

(c) Creation of a family unit;

(d) The requirement of official sanction to establish it and to dissolve it. [Unlike an ordinary contract, marriage can’t be terminated at will by the parties.]

In ancient times there was little or no distinction between religious and civil authorities, so the official sanction of marriage always had religious overtones. Over time, marriage mutated in and out of the exclusive domain of religious sacramental authority, arriving at a hybrid, where it was created jointly by secular and religious authority. In later years, marriage has become a stand-alone civil institution legally effective and recognized with or without specific religious sanction. In the modern, U.S. version, there are at least six currently recognized legal consequences created by the official marital status:

Mutual property allocation rules (which vary between jurisdictions);
Joint parenting authority;
Joint parenting obligation;
Joint and several child support obligation;
Inheritance;
Mutual spousal support obligation.

During the 20th century, a number of special economic benefits were granted to married couples, including joint income filing status (not always a benefit as the advocates of eliminating the “marriage penalty” will tell you), shared health plans and pension benefits. And in the last two decades, some “domestic partner” benefits (primarily shared health insurance) have been afforded non-married couples by some private companies and municipalities. Inheritance issues of non-married couples are typically handles via wills, a legal solution readily available to gay couples as well.

[2] The law will always be able to allow local experimentation and variation at the state level; indeed, state law will always be able to allow local experimentation and variation at the local level (think Nevada). The federal drug laws are a notable but irrelevant exception to the larger generalization.

In this new century, European social experimentation altering core elements of the traditional marital relationship has already begun. Gay marriages are now sanctioned in some Scandinavian countries and other, “almost marriage” arrangements, such as time-limited marital style contracts, are being tried out elsewhere in Europe for heterosexual couples.

[3] The “full faith and credit” clause of the constitution is a possible loophole that may or may not have been closed.

The “local option” alternative makes perfect sense in our federal system. But, given the sensitivity of the issue, the option may need to actually stay local, lest the exceptions swamp the rule. The problem here is that the “full faith and credit” clause of the US constitution requires each state to honor the contractual arrangements validly entered into in a sister state, even when that state might not have approved the contract itself. Applied to marriages, the result would be similar to that of a Nevada divorce, required to be immediately honored in all 50 states, even those with longer waiting periods and stricter divorce requirements.

Should Vermont, Massachusetts and California, say, allow gay marriages, the remaining 47 states would arguably be flooded with married gay couples whose marital status would then be valid everywhere in the union. This is why the Congress (with the full support of the Clinton administration) enacted the “Defense of Marriage Act” of 1996. [The Wikipedia article is an excellent summary. Link: http://en.wikipedia.org/wiki/Defense_of_Marriage_Act .]

That act does not prevent any state from approving gay marriages, but it does prevent the “full faith and credit” clause from requiring them to be honored in those states that choose not to do so.

The social conservatives who oppose broad legalization of gay marriage have raised a concern that the 1996 act may be overturned by a federal judge at any point to the extent that it is seen to conflict with the Full Faith and Credit clause. This group would immediately press for a constitutional amendment to ‘plug the loophole”. Given public sentiment at the time, the amendment process would be a huge wild card, and the possibility of a successful attempt to outlaw all gay marriages, however remote, is a caution light for those who might press the case that the 1996 Defense of Marriage Act is unconstitutional. So at present, there is an uneasy legal truce while public opinion sorts itself out.

[4] Equal protection arguments may occasionally succeed at the state level but are likely to fail at the federal level – at least in the near and mid term.

We often hear the gay marriage issue posed as a civil right’s issue under the equal protection of the law, as guaranteed by the 14th Amendment to the U.S. constitution. The hope for some sort of “Brown vs. Board of Education” Supreme Court intervention is an unreasonable “in the bubble” expectation – at least for the foreseeable future.

There are three distinct, but slightly overlapping legal tests of equal protection, only one of which — the so called “strict scrutiny” test — would reasonably be construed to support an analysis that granting marriage only to the traditional “one woman marries one man” model denies the equal protection of the law to same gender marital candidates. But the strict scrutiny test so far applies to invidious discrimination based on race or arbitrary discrimination that burden’s a fundamental right. No U. S. Supreme Court decision has yet identified the right of two males to marry each other as fundamental, or even a cognizable right at all. So we have the classic bootstrap problem: the right to marry within the same gender must be a fundamental right before it is a 14th Amendment right.

Of course, this does not prohibit states or even the deferral government to allow such marriages to take place, but the federal constitution cannot require it.

Here is part of the argument: An adult gay male is not (and cannot be) forbidden by virtue of his homosexual status to marry an adult female; therefore he is treated, at least formally, exactly the same as a heterosexual male. The same reasoning holds for lesbians, of course. But two heterosexual males could be forbidden to marry each other, just as two homosexual males are forbidden (and ditto for women).

The recent California case arose under the state constitution. In an earlier case, the California Supreme Court held that the economic benefits granted to traditional man -woman marriages could not be withheld from same gender domestic partner couples. The court at that time declined to go further and impose a requirement that the entire body of marriage laws, including the marriage designation, be applied to these same gender couples. But the recent decision taking that final step has provoked a ballot measure that – if passed – would nullify the recent decision, but presumably not the first.

The real genius of American federalism is that it contemplates and accommodates just this sort of creative experimentation on otherwise divisive social issues. We can expect this recognition trend to continue, whatever the fate of any proposed federal constitutional amendment or local initiatives on either side of the issue.

JBG

What’s in my 22 page article?

Excerpt One:

Many biologists tend to assert strongly that human behavioral patterns are not inherited. That is far too simplistic. Left handedness, musical aptitude and any number of temperamental characteristics manifest well in advance of socialization. Clearly, while our specific behaviors are not genetically predetermined, many of our behavioral tendencies are the result of our “wiring” (metaphorically specking).

A tendency not to affiliate reproductively with members of the opposite gender – when consistently carried out – amounts to genetic suicide. Moreover, male homosexuality runs against the prevalent social grain. Manifestly, biology is at work.

We therefore have a prima facie case for a set of inherited biochemical features that can trigger or predispose some males to manifest a gay orientation at some point in their adolescent development. Yes, whether this orientation results in specific sexual behaviors is a separate question, just as whether predispositions to temper outbursts, irritability or amiability result in specific social behaviors.

Excerpt Two:

The rate of occurrence of true homosexuality (as opposed to situational homosexuality in some prison environments) is roughly one in fifty, two or three per hundred. Assuming these numbers are about right, we might expect the adaptation to serve a group purpose that would be useful to a clan of fifty to one hundred individuals (all genetically related), and that this utility would be sufficiently valuable to ensure the perpetuation of the “gay” genetic tendency as a recessive within several reproducing members in the clan at all times.

I believe that “clan utility” is the key to the preservation of the gay male genetic predisposition ‘package’ as it persists within the larger population. As I will develop, I am persuaded that gay males fostered prehistoric clan survival by mitigating intra-clan conflict among competing males.

This a reasonable conjecture based on the understanding that in humans, sexual conduct facilitates year-round affiliations, primarily but not exclusively directed to recruiting the male into child rearing cooperation. When males compete with other males for mates, and when females compete for males, various forms of destructive social conflict are engendered. At the clan level, we can infer that this conflict was sometimes destructive enough to impose a survival disadvantage. Put another way, the internally peaceful clans probably had a selective advantage over the internally warring ones. To the extent that the presence of one or more gay males in the clan-group fulfilled a peacemaking or mediating role, the favored clan would tend to prosper – provided all other factors were equal. The families within the clan that tended to produce occasional peacemakers would preferentially survive and reproduce to the extent that the clan did the same.

In clan males, the adaptive contribution of a same sex affiliation orientation (to the exclusion of females) would produce at least one potential leader-mediator unencumbered by the competition for female mates. That same trait (or suite of linked traits) may well be linked to a talent for or predisposition to mediative functions. If this conjecture bears out, we would a higher than random incidence of homosexuality among males whose clan role was/is shaman, mediator, or clown. That may well be the case. Reportedly a disproportionate percentage of gay males serve in the Roman Catholic priesthood, an example that certainly suggests (but does not “prove”) the persistence of this gay role specialization. Cultural anthropologists report a similar role for gays among many surviving Paleolithic cultures (oral traditions among the current aboriginal peoples preserve the memory of the meditative role of gay males within clans and tribes). I’m not aware of any comprehensive data other than a large number of anecdotal accounts. Solving the data collection problems will probably remain elusive for decades.

Excerpt Three:

I know of no thoughtful ethicist, secular or religious, who can defend every prohibition and precept in Leviticus. Even when we entertain that the entire body of Biblical scripture originated with divine inspiration, the resulting collection (with all the inevitable translation and decoding errors) is more like a closet full of letters from several generations of the previous owners, some having to do with house maintenance, some with health issues and still others setting out principles of moral wisdom that you can take on the road and live by wherever and whenever you journey.

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More – Follow the LINK: http://jaygaskill.com/AboutGaynessEcclesialAndSecular.pdf .

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