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Calif. Gay Marriage Ruling Raises Tough Questions
Legal experts address concerns over polygamy, church weddings and, of course, the health of the innocent children.

By Joey DiGuglielmo
Friday, June 06, 2008

Editor’s note: The Blade invited legal experts to address some of the arguments raised by opponents of same-sex marriage in light of the May 15 California marriage ruling.


If two men or two women can marry in some parts of the country, could it, in time, lead to a repeal of U.S. polygamy laws?

Esther Rothblum, a lesbian professor of women’s studies at San Diego State University who published a three-year study on the effects of Vermont’s civil unions law stresses that the California Supreme Court ruling has nothing to do with polygamy and says she doesn’t fear same-sex marriage leading to a repeal of polygamy laws.

“You hear people say that all the time,” she says. “‘Oh next they’ll rule that somebody can marry their dog,’ that kind of thing. But historically laws haven’t led to those kinds of things in other areas. For instance when women won the right to vote, it didn’t lead to children being able to vote, animals being able to vote. Nobody’s arguing for any of that. In a legal sense, I just don’t see that kind of thing happening.”

But there are thousands of polygamists in the U.S., as the removal of more than 400 children from the Fundamentalist Church of Jesus Christ of Latter-day Saints’ Yearning for Zion Ranch in Eldorado, Texas, illustrated.

Could polygamy have a legal future in the U.S.?

The experts who spoke to the Blade don’t see that happening.

“People bring that up and say then why can’t people marry their dog but I think that kind of argument says a lot about the individual bringing it up,” said Kimberly Richman, a sociology professor at the University of San Francisco who specializes in gay and lesbian parenting.

“This was the end of a decades-long struggle. I’m not sure polygamists have the political lobbying force to do that. I don’t see groups of polygamists gathering in New York and Washington and San Francisco. They’re mostly in Utah and don’t tend to have a lot of pull as a social movement. This wouldn’t have happened on its own.”

Feldblum doesn’t buy the “paving the way” argument.

“[The defendants in the California case] were coming into this arguing that marriage is still a relationship between two people,” she says. “I don’t see anything in this decision that would lend anything to [the polygamy] argument because it’s really like apples and oranges.”

First Amendment expert Jonathan Turley, who teaches at George Washington Law School, said any correlations between polygamy and same-sex marriage have been “overplayed.”
Turley said a more apt comparison would be the 2003 overturning of Lawrence v. Texas, in which the U.S. Supreme Court repealed sodomy laws, because polygamy laws would have to be overturned before marriage rights could be granted.

The comparison makes some gay activists uncomfortable because there are aspects of the same-sex marriage debate that Turley said could have ramifications for polygamists.

“There’s something ironic here because you’d think there’d be a natural alliance between the groups and yet they don’t want to have anything to do with each other,” Turley says. “Every time I write an op-ed about polygamy, gay and lesbian activists I know always say, ‘You’re making this tough for us.’”

Turley said consenting adult polygamists who “do not believe in child brides” should be allowed to formalize their relationships, a view he admits is unpopular.

“I don’t like polygamy but that’s not what’s important here,” he says. “What it means for gays and lesbians is that eventually they’ll have to unite on a single, cohesive principle about this. There will have to be a new definition of marriage because it’s disingenuous to say that gays and lesbians should be included in marriage but then for them to exclude others.”

Is it unfair for a slim majority of judges to vote against the will of the people of California who, in 2000, made their opposition to same-sex marriage known by approving Proposition 22 by 61 percent? Shouldn’t the people have the say on something so significant?

No, experts the Blade talked to say.

“There’s a reason we have separation of powers,” Richman says. “It’s because you can’t always trust the majority to protect the minority’s rights. If we left it to the majority, no minorities would have rights. That’s why we have lawmaking at the court level. They know more.”

Richman points to the landmark 1954 de-segregation case Brown v. the Board of Education.
“Most people at the time were not in favor of desegregation” she says. “They felt it was against the will of the people. Of course now it’s held up as one of the greatest Supreme Court decisions of all time. They were breaking with an unjust precedent that said segregation is OK. It was breaking with an unjust, unconstitutional law that was popular.”
Feldblum agrees.

“The point is that sometimes a constitutional analysis will find that the will of the people is unconstitutional,” she says. “In this case, they found that [Proposition 22] violates their own constitution.”

Kimberly Richman, a straight sociology professor and expert on same-sex marriage and parenting, says it’s also important to remember that the majority justices in this case “are not some lunatic fringe of left-wing activists.”

“[Chief Justice] Ronald George is a moderate Republican,” she says. “He’s very conservative in many ways. Almost everyone on the bench is Republican.”

Is same-sex marriage harmful to children? Opponents, such as Focus on the Family’s Jim Dobson, point to “more than 10,000 studies” that “have concluded that kids do best when they are raised by loving and committed mothers and fathers” in a presentation called “Eleven Arguments Against Same-Sex Marriage.”

Dobson’s claim is somewhere between misleading and factually incorrect according to Judith Stacey, a New York University professor whose research focuses on changes in family structure and gay and lesbian family issues.

Stacey, who’s straight, previously taught at the University of California and the University of Southern California and says the studies Dobson refers to didn’t look at same-sex parents but came to their conclusions after studying single-parent families, children born out of wedlock, etc.

Stacey, though, points to “a few dozen studies” that specifically explored how children fared with lesbian parents versus their counterparts raised by married, opposite-sex heterosexual couples. Stacey says there’s been “almost no research” done that explored the parenting skills of gay men.

While Stacey acknowledges “some debate” on the studies, one of which she co-authored that was published in 2001, she says there is “a great deal of consensus among researchers” that children raised by lesbians fare as well as their straight-parented counterparts.

“The one area where it seems there was some slight exception had to do with the area of stigma and teasing,” Stacey says. “But even there there’s some disagreement about whether they received more teasing because of that or if that just happened to be what they were teased about. I go a little further and say that gays probably make better parents on average because there’s a higher bar for them to cross to become parents in the first place. They have to want to be parents. It doesn’t happen by accident.”

But isn’t it common for any group that doesn’t like the findings of a study to attack its methodology? Will there ever be professional consensus on such controversial issues?
Stacey acknowledged that in her 2001 report.

“Because we personally oppose discrimination on the basis of sexual orientation or gender, we subject research claims by those sympathetic to our stance to a heightened degree of critical scrutiny and afford the fullest possible consideration to work by scholars opposed to parenting by lesbians and gay men,” Stacey and co-author Timothy Biblarz wrote.

The highly regarded American Sociological Review, the scholarly journal that published their report, is a peer-reviewed journal and is considered a standard in its field.

How are gays and lesbians being discriminated against when anyone in the U.S. who’s 18 or older can get married as long as it’s to a person of the opposite sex?

Richman says this argument “goes into the realm of absurdity.”

“It’s like they’re trying to invent a choice where none really exists,” she says. “It’s a false choice, a false sense of equality. Like Marie Antoinette and the paupers when she said, ‘Let them eat cake.’ It’s not within the realm of possibility.”

Feldblum says that as a lesbian, she finds the notion disrespectful.

“I mean in my case, I don’t see a whole lot of guys I want to get married to,” she says. “It’s very disingenuous for conservatives to say that to gay people just as it’s disingenuous for me to say that someone who has a different moral belief than me is a bigot. I think both sides need to take a more respectful, holistic manner and realize the government has to make a choice.”

Gay activists and pro-gay legislators have assured religious leaders whose churches and synagogues teach that homosexuality is forbidden that they won’t be forced to marry same-sex couples because gays are only interested in the civil benefits of marriage. But what about religious adoption agencies and daycare centers? Will they be forced to allow gay couples to adopt?

Experts say organizations that receive state and federal funding will not be allowed to oppose working with gays for religious reasons. Some, most notably Catholic Charities of Boston (gay marriage is legal in Massachusetts), have opted to get out of the adoption business rather than be forced to allow gays to adopt.

Esther Rothblum, a professor of women’s studies at San Diego State University who published a three-year study on the effects of Vermont’s civil unions, said Catholic Charities’ decision is “probably a good one.”

“You hear people say, ‘But what about those poor kids’ and all that,” said Rothblum, who is a lesbian. “What people seem to forget is that adoption is a big business in this country with lots of money at stake. The people at these agencies, the middle people, get a lot of money.”

But in California, where gay adoption and custody laws were already in place before last week, the state’s Supreme Court ruling will have no impact (Catholic Charities in San Francisco previously tangled with the Catholic Church when it was discovered that it had facilitated some gay adoptions; the organization now works as a referral-type service).

Apart from state- or federally funded religious programs, could the legalization of same-sex marriage in California prevent priests and ministers from preaching that homosexuality is biblically forbidden? Could churches in time risk their tax-exempt status by refusing to marry gays?

That remains to be seen and will likely result in a steady stream of court battles.

Chai Feldblum, a lesbian and professor of law at Georgetown University, said lawsuits in this area are inevitable but that she’s confident the courts will exercise “common sense.”
“The state will have trouble with some of these things,” she says. “Let’s say it’s a Christian daycare center. I think it will depend. If your daycare looks like any other daycare except the owners happen to be Christians and they don’t want to take the kid with the gay parents, that’s quite a different thing from a place where it’s a very religions setting with religious instruction. What it comes down to is a clash of constitutional rights. The law is developing in this area and it will be interesting to see how it unfolds.”

The Employment Non-Discrimination Act (ENDA), which passed in the House but hasn’t been introduced in the Senate, includes exemptions for small and/or religious businesses like Christian bookstores.

But in terms of churches and their teachings, Feldblum says, religion hasn’t been a basis for discrimination that’s held up well in court.

“It comes down to how compelling the courts feel an argument is,” she said. “In issues of race, [religious-justified teachings] haven’t been seen as very compelling. In issues of sex, that’s been slightly less the case.”

She predicts courts will evaluate how integral religion is to a particular job such as a professor at a conservative Bible college.

“On the other hand, it’s pretty hard to argue that the janitor at your Christian company can’t be a lesbian,” she said.

“I think it’s pretty clear in the decision that the judges aren’t saying anything about anyone’s religious freedom,” said Kimberly Richman, a sociology professor at the University of San Francisco whose specialty is gay and lesbian parenting.

“People talk about the civil institution and the religious institution of marriage, and it’s kind of interesting here in the United States that we have both,” said Richman, who’s straight. “But the ruling is clear that people can have whatever kind of ceremony they want and no clergy person will ever be forced to perform a ceremony they don’t believe in.”

First Amendment expert Jonathan Turley who teaches at George Washington Law School thinks having faith-based organizations working with the government has been “a huge mistake” and thinks the distinction between an organization that’s government-subsidized versus one that’s tax exempt is significant.

“I definitely don’t believe the government should be subsidizing programs that are discriminatory,” Turley, who’s straight, said. “But I think it’s a different thing altogether for an organization to maintain its tax-exempt status, which isn’t an endorsement from the government … tax-exempt entities shouldn’t be forced to abide by social standards.”
Turley cites a 1983 Supreme Court ruling against the fundamentalist Christian college Bob Jones University that its controversial racial policies were discriminatory and thus rendered the school ineligible for tax exemption.

“You look at their admission policy from then and it’s full of just hateful racism,” Turley says. “But the government should remain neutral. There are lots of tax-exempt organizations that have completely moronic and repulsive policies but that’s the price you pay by having this law. The same would be true for a gay and lesbian activist organization. They shouldn’t be forced to hire a conservative person who opposes same-sex marriage. Getting rid of a group’s tax exemption as a form of federal punishment isn’t the answer.”

Some religious Americans resent being accused of discrimination or being called bigots because they believe homosexuality is forbidden by their religions. Is that fair?

“Everything’s on a continuum,” Rothblum says. “You have to remember that the Bible has been used historically as a justification for slavery,” she says. “It was a way of institutionalized racism to continue in churches … I do agree, there are well-meaning Christians who say they have nothing against gays, their beliefs just don’t condone that and so on, but I think they could be doing a lot more to make gays and lesbians feel included.”
Feldblum says it’s not necessarily a matter of bigotry, though it can be.

“Some people have deeply held moral beliefs and religions that teach that homosexuality is wrong. That’s just a reality,” she says. “I don’t call them bigots. I say they have moral positions that are different from my moral positions. I simply see it as a clash of moral beliefs, but the government has to take a stand and come down on the other side of somebody’s moral beliefs. That doesn’t mean these people should be disrespected or denigrated, but that is one thing government is supposed to do.”

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