Nate Silver has an interesting post up on constitutional bans on same-sex marriage and divorce rates, the results of which may be surprising to some. Says Silver,

Overall, the states which had enacted a constitutional ban on same-sex marriage as of 1/1/08 saw their divorce rates rise by 0.9 percent over the five-year interval. States which had not adopted a constitutional ban, on the other hand, experienced an 8.0 percent decline, on average, in their divorce rates. Eleven of the 24 states (46 percent) to have altered their constitutions by 1/1/08 to ban gay marriage experienced an overall decline in their divorce rates, but 13 of the 19 which hadn’t did (68 percent).

Following up on the above table, Silver adds,

The differences are highly statistically significant. Nevertheless, they do not necessarily imply causation. The decision to ban same-sex marriage does not occur randomly throughout the states, but instead is strongly correlated with other factors, such as religiosity and political ideology, which we have made no attempt to account for. Nor do we know in which way the causal arrow might point. It could be that voters who have more marital problems of their own are more inclined to deny the right of marriage to same-sex couples.

Noting Silver’s comment about causation, what I think is most interesting about these numbers is that they seem to debunk the notion that the introduction of same-sex marriage into a given population will in some way devalue the institution of marriage, which, one would assume, would be likely to result in an increase in divorce rates.

The numbers north of the border seem to offer the same basic conclusion. A recent study from professor emeritus Anne-Marie Ambert for the Vanier Institute for the Family shows that divorce rates in Canada are down significantly from their peak in 1987, as the below graph from HRSDC demonstrates,

The drop in Canadian divorce rates between the late 1980s/1990s and present is less interesting to me vis-a-vis this discussion than is to note that Ambert’s study and the latest numbers from Statistics Canada place current rates of divorce in Canada at approximately 38%, as compared to 2003 rates of 35.3%. At a time when Canada’s overall population grew by approximately 5% between 2003-2008, those numbers strike me as statistically insignificant.

And what happened smack in the middle of that time frame? That’s right, on July 20, 2005 same-sex marriage was legalized in Canada.

The take home message? There might not be any reliable data demonstrating that legalizing same-sex marriage strengthens the insitution of marriage by reducing rates of divorce, but there is reliable data that demonstrates legalizing same-sex marriage does not weaken the insitution of marriage by increasing rates of divorce.

Time for some blawging.

Rod Dreher makes the case, once again, that same-sex marriage presents a unique and unavoidable conflict that will drastically undermine religious liberty in this nation, concluding that the ”conflict between gay rights and religious liberty is deep, serious and irresolvable to the satisfaction of both.”  Dreher further argues that:

“It’s one thing if the boundaries of gay rights are set by statute, as in the DC case. It’s another if they are set by a court in a constitutional case. In the former, exemptions for religious organizations can be carved out — but if the Supreme Court decides that gay marriage is a constitutional right, then religious organizations will be given much less room to move, and there’s nothing they will be able to do about it.”

On both counts, Rod misunderstands the nature of the conflict and the role of the legislature and courts in creating (or potentially alleviating) that conflict.

First, the conflict here is definitively not between gay marriage and religious liberty.  It is instead between laws regarding private discrimination and freedom of association, or perhaps between licensing laws and freedom of religion.  As they affect the private sphere and specifically religious organizations, gay rights, and specifically same-sex marriage, represent at most an expansion of existing conflicts rather than any new type of conflict.  Even here, the conflict arises not from whether or not same-sex marriage is permitted, but instead from whether or not statutory laws recognize sexual orientation as an impermissible basis for private discrimination (whether in an employment context, public accommodations context, or otherwise), which is independent of whether same-sex marriage is permitted.

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You may well have noticed that my Canadian content has been on the rise of late. I find myself in the grips of a sort of strange bout of nationalism at the moment, which I denote as strange for reasons that will be at least partially outlined in this post. I just can’t muster much enthusiasm for writing about US politics and feel drawn to contributing to the degree of critical dialogue in this frozen tundra I call home.

You’ll have to bear with me, but I’m trying to find ways to satisfy my own Canuck impulses while still making what I write accessible and, perhaps more importantly, engaging to our primarily American audience.

To wit, the revived discussion around same-sex marriage via the squeakers in either direction that have recently occurred in both Maine and Washington prompted me to do some thinking about the same issue north of the border.  Riffing off of Jamelle’s post, I decided to check my intuition around  the degree to which the issue of marriage equality is, in fact, a non-issue in Canada, contra the state of affairs in the US.  It would seem that my intuition is born out by the data of a recent Angus Reid poll on public opinion around same-sex marriage in Canada, Britain, and the US,

Canadians are generally more tolerant to the idea of same-sex marriages than Americans and Britons, according to a poll by Angus Reid Strategies. 61 per cent of Canadians say couples of the same gender should continue to be allowed to legally marry in their country.

In contrast, only 33 per cent of Americans and 41 per cent of Britons say that same-sex marriage should be made legal in their respective countries. 36 per cent of respondents in the United States say that such couples should not be granted any type of legal recognition, and 18 per cent of Britons agree.

The poll itself doesn’t go on to the explore the reasons behind the differences of opinion, but I have a working theory that first occurred to me when Reihan Salam made an offhanded comment about the number of South East Asian politicians represented in the Canadian political system at the end of the podcast on race and politics that he, Jamelle, and I recorded a ways back. Pivoting off of E.D’s post on the matter, for a lot of people, the obvious go to answer is religion — i.e. Canada is a lot less religious and, religion being a key factor in determining an individual’s stance on homosexuality, the degree of religiosity exhibited in a country will directly correlate to the attitudes of its citizens towards homosexuality and marriage equality. [Read more →]

Over at the Amercian Scene, Conor Friedersdorf penned a post challenging Rod Dreher on the idea that allowing same-sex couples to marry represents a “radical change”. I liked the post itself and, in fact, thought that the comments that followed were pretty interesting reading and really added to the original ideas posted by Conor. One comment that particularly caught my eye was Joe Carter’s weighing in on the issue with an argument that is standard fare for him on this topic,

It’s a radical change even from your own definition, which includes “and commit to do so monogamously.” As has been understood for decades, the homosexual (at least gay male) definition of monogamy does not entail sexual exclusivity. That this fact is dismissed or swept under the rug is not surprising since it would make the cause of SSM even more difficult to achieve. But it’s been well established and used to be the justifying reason why gays weren’t interested in marriage.

If this is an important component of your definition then you need to ask what happens when the majority of gay men refuse to include this in their own definition of “marriage.”

Despite the fact that I disagree with Joe wholeheartedly on this issue, I respect him a great deal and consider Joe to be an opponent of marriage equality who is worth engaging insofar as doing so generally leaves me feeling like I’ve learned a bit more and understand the topic at hand a bit better. As mentioned, I’ve seen Joe make the above argument on numerous different occasions and I don’t doubt that he has data to back up his assertions (Joe, in my experience, is a responsible writer in that way). But, I must admit, I myself have never sought out such data, so last night I decided to do so.

What I found has some bearing, I believe, on the veracity of Joe’s argument. [Read more →]

This exchange between Rod Dreher and Ta-Nehisi Coates on the basis of opposition to same-sex marriage is interesting, if only because it provides another striking example of how ones identity has an incredible impact on how one views the world and other human beings.  That is, it’s pretty easy to believe that bigotry drives political action against same-sex marriage when you yourself belong to a minority group that was a regular target of disenfranchisement (or worse) for more than a century.  That said, while I see where Dreher is coming from, if Pew has their numbers right, the data is firmly on Ta-Nehisi’s side:

49 percent of Americans believe that homosexuality is “morally wrong,” while only 9 percent view it as morally acceptable.  35 percent say that homosexuality isn’t a moral issue at all, and 7 percent say that it depends (and I’m not sure what that means, at all).  Broken down by age, the numbers tell a familiar story: a solid majority of Americans 50 and older view homosexuality as morally wrong (about 53 percent), whereas only 38 percent of the 29 and younger crowd feels similarly.  Surprisingly (to me at least) a slight majority – 51 percent – of Americans aged 30-49 view homosexuality as morally wrong.  Though if disaggregated, the number of people who disapprove of homosexuality might be greater at the end of the age distribution.

If there’s any takeaway from this, it’s that we really should stop underestimating the extent to which raw prejudice drives political decisions.  As Freddie remarked on Twitter recently:

It has become impolite to say so, in either direction, but never doubt many in this country hate and fear gay people.

The corollary to this, of course, is that in a country where a near-majority is morally opposed to homosexuality, it is ridiculous (and almost cruel) to expect gay people to rely exclusively on legislatures as they fight to secure their rights as American citizens.  And that’s especially the case when you realize that when legislative efforts are successful, there is almost always an immediate effort to rescind or overturn the legislation.  The simple fact is that if current demographic trends hold true, a majority of Americans will eventually support marriage equality.  In the meantime though, I think LGBT activist groups should take a page from the Civil Rights Movement and again begin focusing their challenges on the courts.  It simply doesn’t make any sense to rely on the generosity of the majority (indeed, if black people did, segregation would have lasted for a whole lot longer).

I see that E.D. has already written something about the decision to repeal same-sex marriage in Maine, specifically as regards the involvement of the Catholic Church. Here’s what jumped for me vis-a-vis the decision,

Maine voters also decided to expand the state’s 10-year-old medical marijuana law, approving a ballot question to allow state-regulated dispensaries to grow the drug and sell it to patients. The vote comes weeks after the Obama administration announced it would not prosecute patients and distributors who are in “clear and unambiguous” compliance with state laws. Maine will be the third state, after New Mexico and Rhode Island, to allow tightly regulated, nonprofit marijuana dispensaries.

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Rather than go through and pen something new in regards to Vermont’s landmark decision on marriage equality, I thought instead I would reprint my first contribution at The Moderate Voice back in December here at the League with some tweakage to bring it up to speed. I remain squarely behind everything expressed in this piece and think that the suggestions offered are more relevant than ever.

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The passage of Proposition 8 in California on November 4 seems to have vaulted the issue of same sex marriage into the spotlight of America’s culture wars,  stirring a variety of emotions amongst Americans coast to coast. Arguments from opponents to marriage equality have varied in focus and quality, but perhaps one of the more sincere and thoughtful refrains has come from conservatives like Rod Dreher.

Recently Dreher has been engaged in a back and forth with Damion Linker where he has once again fleshed out his concerns around the larger issue of moral decay, of which non-traditional definitions of marriage that include same-sex couples are both symptomatic and contributory. Dreher writes,

We’ve been over this a thousand times, and I don’t know how to make it plainer but than to say that changing the law to permit same-sex marriages teaches a lesson about the meaning of marriage that I think is untruthful, and ultimately deconstructive (if that’s a word) of the concept of marriage. We legislate morality all the time; except for procedural laws, that’s what law-making is. Making same-sex marriage legal teaches a different moral lesson, one Damon believes is salutary. I think it tells a lie about human nature, and the nature and purpose of sex and sexuality. I don’t fear that my children will “turn out gay,” or whatever paranoid nonsense some liberals impute to us conservatives. What I do fear is that they will grow up in a culture that tells them by example that marriage means whatever we want it to mean.

I do not disagree with Dreher that as the foundations of our traditional institutions erode in the face of complex social dynamics, we are forced to grapple with increasingly hazy moral clarity. That such moral haziness represents an assault on the signifiers of meaning against which we pin our lives is, as well, not a controversial statement in my mind. However, contra Dreher I see the legalization of same-sex marriahe and the institutionalization of marriage equality as an effective redress to our contemporary ethical dilemma. [Read more →]

 I wanted to give a lawyer’s perspective to the discussion of judicial activism the decision has spawned between William, John, and E.D., arising in part due to Mr. Sullum and Mr. Whelan.  To be sure, I think E.D. is wrong to the extent he argues that the Iowa decision is justified because it reaches a rights-enhancing, morally just result; William is exactly right in arguing that the process by which the Court reached its decision is more important than whether the result is just an essential element of whether a decision is “undeniably good.” 

Where I get frustrated with cries of “activism,” though, is that they rarely engage the text of the very documents that underly their concern for separation of powers.  Certainly “results-oriented” judging is something that is deeply problematic and improperly usurps the role of the legislature, but such judging is far more rare than believed (by critics of both the Right and Left, I might add), and complaints of “results-orientation” usually bespeak a lack of familiarity with the subject at hand. 

The most honest definition of activism as a perjorative, and the one advanced by Sullum, John, Daniel Larison in the comments to John’s post, and (I think) William, is that activism is a defiance of the original intent of a Constitution’s drafters, that creates a sort of lawless judiciary that usurps the role of the other branches.

There are a number of problems with this argument, and a focus on “original intent” is far from the exclusive means of putting forth a jurisprudence that relies on a static set of rules for what is and is not within the realm of the judiciary. 

The first problem, as Br. Dave so beautifully explained in this must-read post, is that arguments for originalism are typically based on a conception of originalism that really has its roots in the New Deal – and thus is not originalism at all. 

The second problem is that “original intent” is a meaningless standard that itself engenders the very sort of judicial activism that it purports to avoid.   Constitutions are the result of numerous contributions and compromises from and between individual drafters; the idea that these drafters had any kind of uniform “intent” is, frankly, absurd.  All we have to go by are the actual words that they chose to use to express their contributions and compromises.

To be sure, if we are to have any set standards, we may need to look at the definitions of those words as they were understood at the time.  But if we stop at those definitions, then we will often wind up with results that are far more libertarian than most originalists, including even some libertarians, are willing to concede.  Indeed, sometimes those results can be so libertarian as to be absurd – what if, for instance, Justice Scalia had chosen a strictly textual interpretation of the 2nd Amendment in Heller, resulting in a right to own even a nuclear weapon?   What, then, becomes the limiting principle? 

To the originalist (including originalists who acknowledge the lack of a definable “original intent”), the limiting principle is whether a particular restriction was common at the time the Constitutional provision entered into law.  The presumption here is that if a law was common at the time, then a constitutional provision cannot be deemed to prohibit that practice.  But this is ultimately no different from the problems with divining the “intent” of the drafters.  It limits the power of their words without any reference to the words themselves, in effect assuming an ambiguity and resolving it in favor of the legislative body where no ambiguity exists. 

Sullum is guilty of making this assumption when he writes:

It’s clear that the Iowa constitution’s equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible).

But the issue probably was NOT intelligible, and even if it was, it was certainly not considered during the drafting of the amendment! Yet originalism assumes that the drafters’ failure to consider the issue means that the language cannot be read to reach that issue.  As such, the language is to be read as if it specifically exempted that issue from its reach.  This gives drafters entirely too much credit, to say the least, and without justification reads into the provision limiting language the drafters hypothetically would have inserted had they known how the provision would be applied.

A Constitution is only as good as the words it uses, just as a contract is only as good as the words it uses.   And just as with any contract, attempts to create ambiguities based on facts that were never incorporated into the document’s language are the truly problematic – and indeed “activist” - endeavors.   The far more appropriate role for the judiciary in each instance is to interpret the contract/Constitution only as written, and to insist that, if the parties wish to account for some sort of a changed or unconsidered circumstance, they amend the agreement. 

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…Given my predilection for all things Madison, it should be no surprise that I thought this was one of the more interesting things I’ve read in a long while.

Regarding Andrew’s post about the full-page anti-gay-marriage ad run in the Salt Lake Tribune, I find I am once again conflicted over the use of the term “Christianist.”  While I do think it rightly applies to many in the politically active fundamentalist, evangelical movement, and certain factions within the Catholic Church, can it really be applied to Mormons?  Mormons are not, by any definition of the word, Christian, so can they truly be labeled Christianists?  I think this an example of labels taking precedence over substance. Do we risk muddying up our own causes when we paint with such broad strokes as to wholly mislabel a group of people that justifiably deserve our criticism?

I think it’s easy to get so caught up in our themes – and in this case, the theme is Christianism, or the politicization of religion and Christianity in general – that we lose sight of the larger issue.  It doesn’t really matter if it’s Christianists or Mormons or Confucianists that oppose gay marriage. The point is that they oppose it on religious grounds, a position antithetical to our nation’s canon of laws.  Certainly religion is taken into account whenever we make judgments based on tradition, and such was the case when our Constitution was founded, but that is not at the heart of this issue.  This sort of reasoning may apply to cultural or personal decisions, but not to political or legal ones.

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A couple of days ago, Freddie advanced his arguments around the struggle to legalize same-sex marriage saying,

[T]hey (ed. John Schwenkler and Helen Rittelmeyer) believe that there is a difference between a union between two people of the same sex, and two people of different sexes. I can only say that, of course, there are some differences in those unions, some obvious, some not, but that those differences don’t need to be recognized by government in a way that changes our nomenclature for permanent romantic pairing.

I think Freddie has a good point here. I find John’s arguments around needing to create distinctive linguistic set for gay relationships and marriage as a means of sincerely recognizing their dignity to be philosophically intriguing. But practically speaking, I’m not sure how you go about ensuring that said nomenclature doesn’t become immediately devalued given the predominance towards viewing same-sex couples as less than, in some fashion, heterosexual couples.

However, I think John accurately points out one of the short comings in Freddie’s analysis, that is in fact implied in the above agreement, when he says,

I think it’s clear that one of the chief disagreements between me and Freddie concerns the question of what exactly is at stake in the drive for legal recognition of same-sex marriage. By my lights, the goals are primarily cultural: a particular sort of social recognition is (rightly, I think!) sought, and entry into the institution of civil marriage provides a natural vehicle for achieving that. Freddie, however, views it as a struggle for a strictly legal sort of equality, and so is insistent that no sort of “separateness” should be tolerated.

Of course, the struggle for marriage equality isn’t an either or affair: it is a struggle for both legal and social equality in the respect afforded same-sex couples. By my lights, Freddie gives the cultural challenges short shrift by focusing exclusively on the legal battles. Certainly I would argue that the first step in achieving some kind of all-around equality lies in securing legal equality of same-sex marriages, but I can’t imagine that anyone who has experienced discrimination based on their sexual orientation would suggest that being recognized in law will eradicate the day-to-day symptoms of inequality they encounter. [Read more →]