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ORI GIN AL PA PER
From ‘‘Gay Marriage Controversy’’ (2004) to ‘‘Endorsement of Same-Sex Marriage’’ (2012): Framing Bisexuality in the Marriage Equality Discourse
Andrea M. Hackl • C. Reyn Boyer • M. Paz Galupo
Published online: 18 October 2012
� Springer Science+Business Media New York 2012
Abstract The current study analyzes the evolution of language used to discuss mar-
riage equality in The New York Times between February and May 2004 and February and
May 2012. Specifically, the study examines how sexual orientation labels were used as
modifiers for ‘‘marriage,’’ ‘‘couples,’’ and ‘‘individuals.’’ Results indicate that the lan-
guage evolved from a focus on the sexual orientation label gay in 2004 to a more
inclusive language, with same-sex as the predominant modifier for marriage and couples
in 2012. Further, while the overall language in The New York Times became more
inclusive of the Lesbian, Gay, Bisexual, and Transgender community at large, bisexual
women and men are still largely absent within the marriage equality discourse.
Keywords Same-sex marriage � New York Times � Bisexuality � Gay marriage � Marriage equality � Sexual orientation
Introduction
Ever since Massachusetts became the first state to legalize same-sex marriage in
2004, the marriage equality movement has made great strides with successful
legalization efforts in New York, Vermont, Connecticut, Iowa, New Hampshire, and
Washington, D.C. Today, same-sex relationships encounter heightened visibility in
the public sphere, making same-sex marriage a key political issue in the 2012
presidential elections. The relationship and marriage experiences of bisexual
women and men, however, are still largely invisible both in society at large and in
the media. Significantly impacting public opinion and cultural understanding of
sexual minorities, the media portrayal of bisexual women and men plays a
A. M. Hackl � C. R. Boyer � M. P. Galupo (&)
Towson University, Towson, MD, USA
e-mail: [email protected]
123
Sexuality & Culture (2013) 17:512–524
DOI 10.1007/s12119-012-9159-9
significant role in our understanding of their relationships, playing into stereotypes
of promiscuity and indecisiveness.
The following comparative study analyzes the language used to discuss same-sex
marriage in The New York Times in Spring 2004 and 2012. Analyzing the usage of
sexual orientation labels as modifiers, the study demonstrates how same-sex
marriage language has evolved across the 8-year time span. More importantly,
however, the analysis shows how experiences of bisexual individuals are still
largely absent in the print media’s marriage equality discourse. Considered a
national opinion maker, The New York Times’ portrayal may significantly impact
societal beliefs and stereotypes held towards bisexual women and men within the
context of marriage.
Attitudes Toward Bisexuality and Marriage
After a history of invisibility and discrimination, lesbian and gay individuals today
encounter more societal acceptance than ever before. A recent national survey
shows that in 2012, fifty-four percent of Americans consider lesbian and gay
relationships acceptable. Further, fifty percent support the legalization of same-sex
marriage (Saad 2012). With public support for lesbian and gay relationships steadily
increasing, bisexuality is still ‘‘invisible or marginalized at best, and demonized at
worst’’ (Galupo 2009, p. 3). While bisexual individuals encounter some of the same
stereotypes as lesbian and gay individuals based on heterosexist notions in society,
bisexuality is further stigmatized for several reasons. Based on the notion of
biphobia, society still considers bisexuality a non-existent category and a
preliminary stage in the coming out-process toward a lesbian and gay identity
(Ochs and Rowley 2005). A bisexual orientation is also more likely than a lesbian
and gay orientation to be associated with promiscuity and polygamy, and at times,
bisexual individuals are considered to be dubious and inauthentic (Israel and Mohr
2004; Ochs and Rowley 2005). Further, gender differences affect attitudes towards
bisexuality. A study among heterosexual women and men suggests that women
were more likely to hold positive attitudes towards bisexuality than their male
counterparts (Yost and Thomas 2012). Further, stereotypes toward bisexual men
were more strongly held than those toward bisexual women, a finding that is
consistent with the dominant culture’s ‘‘eroticization of female same-sex sexuality’’
(Yost and Thomas 2012, p. 691).
These stereotypes of bisexual women and men have likely impacted the ways in
which we regard bisexual individuals as potential partners. For example, past
research asked participants to match fictitious profiles of gay, lesbian, bisexual, and
heterosexual individuals for possible marriages. Bisexual individuals are more
likely to be seen as suitable partners for other bisexual individuals and are rarely
considered adequate partners for gay, lesbian, and heterosexual individuals (Breno
and Galupo 2007).
While the relationships of bisexual women and men still encounter societal
stereotypes of instability and polygamy, several studies demonstrate that a bisexual
identification does not suggest a lack of desire for committed relationships and
marriage. When compared to the attitudes of lesbian women and gay men, bisexual
Marriage Equality Discourse 513
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women and men hold similar positive attitudes towards same-sex marriage, with
bisexual women showing slightly more positive attitudes than bisexual men (Galupo
and Pearl 2007).
Bisexuality and Marriage
The invisibility of bisexuality in the marriage discourse is also reflected in the
academic engagement with marriage experiences of sexual minorities. While today
lesbian women’s and gay men’s relationships and marriages are under constant
scrutiny, the experiences of bisexual individuals in both cross-sex and same-sex
marriages remain largely unrecognized by mainstream academia. Studies examining
cross-sexual orientation marriages tend to focus on the negative consequences of the
partner’s bisexuality on the relationship (Buxton 2006), extra-marital same-gender
sexuality (Reinhardt 2011), and alternative relationship models like open marriages
(Wolf 1985). A more positive and stable image of cross-sex relationships is
presented by Edser and Shea (2002). Conducted among a sample of bisexual men in
cross-sex marriages, the study suggests that a majority of men considered their
relationships to be in ‘very good’ or ‘excellent’ condition, with gratification both on
a physical and emotional level and the wife’s understanding and acceptance
considered the most important factors for the success of the relationships.
Current research does not only primarily focus on bisexual men, but few studies
also go beyond the discussion of bisexual individuals in cross-sex marriage to
analyze bisexual experiences in same-sex relationships. One study examining the
relationships of married bisexual-lesbian couples found that while some women
were initially critical of the institution of marriage, the commitment had a positive
impact on their bisexual identity as they felt recognized by society. Marriage not
only had both positive and negative effects on the relationships among couples and
relations to social networks, but also on the feeling of connectedness to the LGBT
(Lesbian, Gay, Bisexual, and Transgender) community at large. While some couples
felt more recognized by the community due to their committed relationships and
increased political involvement in the same-sex marriage movement, others
reported that entering a marriage at times entailed the loss of bisexual identity
with the community’s discussion largely focusing on gay and lesbian marriage
(Lannutti 2007).
The Invisibility of Bisexuality in the Print Media
Today, the media play a significant role in our understanding of the experiences of
sexual minorities, largely influencing societal beliefs and misconceptions about the
lives and relationships of bisexual women and men. Since the marriage equality
movement challenged the constitutionality of a marriage ban in Hawaii in the mid-
90s, the media’s framing of same-sex relationships and marriage moved to the
center of several studies. One study analyzing the coverage of marriage equality in
The New York Times and The Chicago Tribune during the course of legalization
efforts in Massachusetts found that the newspapers framed the debate as an issue of
equality versus an issue of morality and traditional values, respectively. Further, the
514 A. M. Hackl et al.
123
study concluded that The New York Times became an active advocate for marriage
equality after same-sex marriage was legalized in Massachusetts (Pan et al. 2010).
A study conducted in the aftermath of San Francisco Mayor Newsom’s decision
to issue marriage licenses to same-sex couples in 2004 further analyzed whether five
national newspapers met the journalistic objectives of fairness and balance in their
coverage of the events (Xigen and Xudong 2010). According to the study’s results,
the same-sex marriage debate received fair and balanced coverage in all five
publications, with a majority of articles presenting viewpoints from both proponents
and opponents of same-sex marriage. Other studies analyzing media portrayal of
same-sex relationships identified the lack of lesbian and gay individuals’
perspectives on the marriage debate in television news stories (Moscowitz 2010),
heteronormative media frames in the portrayal of lesbian and gay couples’ children
(Landau 2009), and the media construction of a necessity for male role models for
lesbian couples’ children (Clarke and Kitzinger 2005). An analysis of the Los
Angeles Times examined the coverage of Proposition 6, a ballot measure introduced
in 1978 seeking to ban openly lesbian and gay teachers from teaching to the
coverage of the same-sex marriage ban Proposition 8 introduced in 2008. The study
finds that the language evolved from an ‘‘abundance of ridicule of homosexuals’’ to
a more inclusive language focusing on the relationships of same-sex couples
(Adams 2012). Again, bisexuality is largely absent in the study, failing to
acknowledge the relationship experiences of bisexual women and men.
While lesbian and gay couples today encounter heightened media attention, the
relationship experiences of bisexual women and men are still not explicitly
addressed in newspapers and other media outlets. One study comparing the media
portrayal of bisexuality among African American and White males following a Los
Angeles Times article and the release of Brokeback Mountain in 2001 and 2006,
respectively, also demonstrates the racial differences in the media portrayal of
bisexuality. Results suggest that media tend to portray ‘‘black bisexuals as
duplicitous heterosexuals while portraying white bisexuals as victimized homosex-
uals […]’’ (Pitt 2006, p. 255). Hence, constructing an image of deceitful bisexual
African American men threatening their community versus White bisexual males
that engage in emotional relationships and conceal their true feelings due to societal
pressures (Pitt 2006).
Gender and Sexual Orientation Inclusion in the Same-Sex Marriage Discourse
Central to our understanding of the cultural implications of bisexual invisibility
within the print media discourse of same-sex marriage is the analysis of how gender
marked language impacts individuals’ attitudes. A study conducted among
undergraduate students, for example, found that the use of the pronoun he as
generic term in sentences primarily evoked male images (Gastil 1990). Another
study comparing the use of the gender marked term mankind to the more gender-
inclusive term humankind in The New York Times found that between 1970 and
2000, the discourse evolved to a more gender-inclusive language. The 30 year
period did not only show an increase of the term humankind as compared to the use
Marriage Equality Discourse 515
123
of mankind, but also a significant increase in the use of the more inclusive pronouns
he or she (Earp 2012).
Within the framework of sexual orientation, the use of gay as umbrella term for
both gay men and lesbian women is problematic as it is likely to evoke images of
gay men only. At times, the adjective gay and the phrase gay persons/individuals
have been used with the intention of referring to both women and men. However, its
usage is not precise and can be interpreted as referring only to men (Herek et al.
1991). The APA (1991), for example, recommends the use of the term gay only
when it explicitly refers to gay men rather than using it in reference to both lesbian
women and gay men. Further, the APA points out that the lack of bisexual
inclusivity in the sexual orientation discourse may lead to misconceptions that
individuals can be attracted to one gender only.
A discourse based on the term same-sex can be understood as more inclusive as it
refers to the pairing of individuals based on sex rather than on sexual orientation.
The terms same-sex marriage or same-sex couple (vs. gay marriage or gay couples)
does not limit the sexual orientation of those involved. The present research
investigates the use of sexual orientation labels preceding ‘‘marriage’’ and
‘‘couples’’ in the same-sex marriage discourse. It also considers the larger
framework of the discourse by analyzing terms used to refer to ‘individuals’.
Because analysis of language bias involves consideration of what is both explicitly
stated and what is left out (who is directly referred to and who is not, in this case),
the use of sexual orientation labels in reference to ‘‘individuals’’ is particularly
important.
Statement of Problem
The media portrayal of same-sex relationships and marriage reflects the larger
societal marginalization of bisexual women and men in the marriage equality
discourse. The present study seeks to explore the representation of bisexuality
within the framework of the language used to depict same-sex marriage in The New
York Times. Further, the study investigates whether or not that representation has
changed in the past 8 years. The study analyzes language used to discuss same-sex
marriage in The New York Times between February and May 2004 and February and
May 2012, both years significant for the marriage equality movement in the United
States. In 2004, Massachusetts became the first state to legalize same-sex marriage,
making it a watershed year for the movement. In the following 8 years, marriage
equality supporters built significant momentum, once again bringing the issue into
the mainstream during the 2012 presidential campaigns, with President Obama
becoming the first U.S. president to officially endorse same-sex marriage.
The analysis investigates how sexual orientation labels were used in reference to
‘‘marriage,’’ ‘‘couples,’’ and ‘‘individuals’’ in the context of the same-sex marriage
discourse. The hypotheses for the current study predicted that: (1) In 2004, the
sexual orientation label gay will dominate The New York Times’ same-sex marriage
discourse, with ‘‘marriages,’’ ‘‘couples,’’ and ‘‘individuals’’ predominately modified
by the adjective gay; (2) In 2012, the language used to discuss same-sex marriage in
516 A. M. Hackl et al.
123
The New York Times will have evolved to a more inclusive discourse, with the
sexual orientation, label same-sex predominately modifying ‘‘marriage,’’ ‘‘couples,’’
and ‘‘individuals;’’ (3) The same-sex marriage discourse in 2012 will be more likely
than in 2004 to represent the LGBT-community at large, with a language more
inclusive of modifiers lesbian, bisexual, and transgender; and (4) While the same-
sex marriage discourse in 2012 will be more inclusive of the umbrella terms LGB
and LGBT, bisexual modifiers will be used significantly less often in reference to the
coding category ‘‘individuals.’’
Methods
Sampling Design
The present study explores the potential evolution of language used in The New
York Times to discuss same-sex marriage. Further, the analysis determines whether
the representation of relationship and marriage experiences of bisexual individuals
has changed in the marriage discourse. In order to determine whether the same-sex
marriage discourse has changed across the 8-year time span, content analysis was
conducted for all articles discussing same-sex marriage between February and May
2004 and February and May 2012.
For both time frames, articles were accessed through Towson University’s Cook
Library’s The New York Times database. After the key word ‘‘marriage’’ was used to
search for news stories, only those articles discussing same-sex marriage were
analyzed for the study. While the data set for Spring 2004 contained 82 news
articles, 199 articles covered the same-sex marriage discussion for the same time
frame in 2012. The 2004 data set contained 760 items to be coded as compared to
1,662 items in 2012.
Coding Categories
To analyze the use of sexual orientation labels in relation to how they were used as
modifiers, a range of coding categories was established. Sexual orientation labels/
modifiers included the following: Gay, Same-Sex, Lesbian, Bisexual, Lesbian and
Gay, Lesbian Gay and Bisexual (LGB), Lesbian, Gay, Bisexual, and Transgender
(LGBT), and the gender identity label Transgender. Each time modifiers were used,
their usage was coded according to seven following categories: (1) ‘‘Marriage’’ (e.g.
gay marriage), (2) ‘‘Couple’’ (e.g. same-sex couple), (3) ‘‘Union’’ (e.g. gay union),
(4) ‘‘Individual’’ (e.g. gay American), (5) ‘‘Community’’ (e.g. gay people), (6)
‘‘Issue’’ (e.g. same-sex desire), and (7) ‘‘Noun’’ (e.g. the Gays).
While the current study primarily focuses on the use of the sexual orientation
label bisexual within The New York Times’ marriage equality discourse, other
categories were included to investigate the overall evolution of the same-sex
marriage language. The analysis did not only include the sexual orientation labels
gay, lesbian, and bisexual, but also the gender identity label transgender. While the
inclusion of the gender identity label may seem incongruous at first, two main
Marriage Equality Discourse 517
123
reasons deemed it important. First, the increasing visibility of transgender issues
within the LGBT-community raises the question of whether this trend is reflected in
the media discourse. Second, the study also analyzes the use of the umbrella terms
LGB and LGBT, investigating the occurrence of bisexuality in conjunction with
community modifiers as compared to its exclusive usage.
Inter-Coder Reliability
In order to ensure reliability of data, two of the researchers independently coded the
news articles. For both years, one data set was used as a pretest to determine
questions and inconsistencies. For the following data sets, inter-coder reliability was
calculated, resulting in 0.86 reliability for 2004 and 0.92 reliability for 2012. Data
were analyzed using SPSS statistics software.
Results
Gay Modifiers Dominate Same-Sex Marriage Discourse in 2004
The top section of Table 1 displays the overall findings of the analysis of The New
York Times’ same-sex marriage discourse in 2004. As predicted, the sexual
orientation label gay was used in the majority of cases (55.26 %), and was used
significantly more often than same-sex (33.29 %), v2 (1, N = 673) = 1.44,
p \ 0.01. This pattern held true across the coding category of ‘‘marriage’’ with
51.97 % of coded items using the term gay as compared to the less frequent of
sexual orientation label same-sex (46.63 %). Even more frequently, the sexual
orientation label gay was used as a modifier for ‘‘individuals’’ (75 % as compared to
1.92 %). The category ‘‘couple,’’ by contrast, was more frequently modified by
same-sex, with 53.03 % of sexual orientation labels used referring to same-sex as
compared to 32.58 % of items referring to gay couples and partners.
Same-Sex Modifiers Dominate Same-Sex Marriage Discourse in 2012
As demonstrated in the bottom section of Table 1, articles discussing same-sex
marriage in 2012 predominately used the sexual orientation label same-sex, with
47.17 % of the coded items referring to same-sex as opposed to the use of gay as a
modifier in 39.23 % of cases, v2 (1, N = 1463) = 12.13, p \ 0.001. This pattern
held true across the category ‘‘marriage,’’ with 82.18 % of items referring to same-
sex as compared to the use of gay marriage in 17.82 % of cases. Further, results
indicate that the sexual orientation label same-sex was used as the predominant
modifier for ‘‘couples’’ (59.61 % as compared to 31.03 % of items referring to gay
couples). By contrast, the category ‘‘individual’’ was primarily modified by the
sexual orientation label gay, whereas 84.15 % of coded items referred to gay
individuals rather than same-sex individuals (3.02 %).
518 A. M. Hackl et al.
123
Between 2004 and 2012 the Overall Language Evolved to a More Inclusive
Discourse
Table 2 illustrates the evolution of same-sex marriage language into a more
inclusive discourse across the 8-year span. Chi square analysis found that in 2004,
the modifier gay was used more frequently (55.26 %) than in 2012 (39.23 %), v2 (1,
N = 2,422) = 6.05, p \ 0.01. Further, Chi square analysis indicates that in 2004,
The New York Times was less inclined to use the sexual orientation label same-sex
(33.29 %), than in 2012 (47.17 %), v2 (1, N = 2,422) = 41.05, p \ 0.001. The
inclusivity of the LGBT-community at large, however, is only limited. While results
indicate no significant change in lesbian inclusivity across the 8-year span (7.89 %
in 2004 to 6.92 % in 2012), transgender inclusivity significantly increased from 0.66
to 2.41 %, v2 (1, N = 2,422) = 8.75, p \ 0.001. As predicted, bisexual inclusivity
did not significantly change across the 8 year time span (1.05 % in 2004 vs. 1.38 %
in 2012), indicating that bisexual women and men are still absent in The New York
Times’ same-sex marriage discourse. The sexual orientation label bisexual was
predominately used in conjunction with other modifiers in the categories LGB and
LGBT. From the overall sample of 199 articles in 2012, only one article exclusively
used the sexual orientation label bisexual as modifier.
The Evolution of Language 2004–2012: Changing the Same-Sex Marriage
Discourse
Table 3 provides examples for the various ways in which the sexual orientation
labels gay and same-sex were used as modifiers in the same-sex marriage discourse.
The qualitative analysis supports the notion of a more inclusive language in 2012,
Table 1 Shift in modifiers used in SSM discourse from 2004 to 2012
Marriage
n = 356
Couple
n = 134
Union
n = 12
Individual
n = 52
Community
n = 32
Issue
n = 100
Noun
n = 74
Gay modifiers dominate same-sex marriage discourse in 2004 (N = 760)
Gay 51.97 32.58 16.66a 75 68.75 86 56.76
Same-sex 46.63 53.03 83.33a 1.92 15.63 – –
Other categoriesa 1.40 14.39 – 23.08 15.63 14 43.25
Marriage
n = 763
Couple
n = 203
Union
n = 26
Individual
n = 265
Community
n = 127
Issue
n = 187
Noun
n = 91
Same-sex modifiers dominate same-sex marriage discourse in 2012 (N = 1662)
Gay 17.82 31.03 38.46 84.15 74.02 55.08 25.27
Same-sex 82.18 59.61 61.54 3.02 2.36 4.81 –
Other categoriesa – 9.36 – 12.84 23.63 40.09 74.72
Values according to percentages a Other categories include items coded for sexual orientation labels: lesbian, lesbian and gay, LGB,
LGBT, bisexual, and transgender
Marriage Equality Discourse 519
123
with the discourse not only evolving from the predominant use of the sexual
orientation label gay to same-sex, but also showing a wider variety in the use of
sexual orientation labels. While in 2004 gay marriage was considered a
‘‘controversy’’ and supporters of same-sex marriage were considered ‘‘pro-gay,’’
the discourse in 2012 focused on same-sex marriage efforts, rights, and gay
Table 2 Between 2004 and 2012, language evolved to a more inclusive same-sex marriage discourse
2004
(N = 760)
2012
(N = 1,662)
v2
Gay 55.26 39.23 6.05*
Same-sex 33.29 47.17 41.05**
Lesbian inclusive (lesbian, lesbian and gay, LGB, LGBT) 7.89 6.92 0.74
Bisexual inclusive (bisexual, LGB, LGBT) 1.05 1.38 0.45
Trans* inclusive (transgender, LGBT) 0.66 2.41 8.75**
Values according to percentages. Because lesbian inclusive, bisexual inclusive, and trans* inclusive
categories have overlapping/shared data, percentage for each year exceeds 100 %
* p \ 0.01, ** p \ 0.001
Table 3 From ‘‘Gay Controversy’’ to the ‘‘Endorsement of Same-Sex Marriage’’: examples for the
evolution of same-sex marriage language
Coded item 2004 2012
Gay
Marriage Gay marriage controversy Gay marriage debate
Gay marriage movement Gay marriage law
Gay wedding Antigay marriage message
Couples Gay couples Gay couples
Gay partners Gay relationships
Gay relationships Gay partnerships
Individuals Gay American Gay legislators
Gay basher Openly gay service members
Gay rights supporter Gay employees
Same-sex
Marriage Same-sex marriage Endorsement of same-sex marriage
Same-sex marriage mess
Proponents of same-sex marriage
Couples Same-sex couples Spouses of the same sex
Same-sex partners Same-sex domestic partnerships
Same-sex relationships
Individuals Citizens of the same sex
Two legal parents of the same sex
Members of the same sex
Few descriptors are included under the same-sex column for 2004 as the term was used less frequently
and in a more narrow context
520 A. M. Hackl et al.
123
family-friendly policies, reflecting the victories of the marriage equality movement
across the 8 year time span.
Whereas the predominant and multifaceted use of same-sex as a modifier in 2012
suggests a more inclusive discourse, the language also shows a significant increase
in the variety of modifiers referring to gay individuals. In 2004, The New York Times
used twenty different ways to refer to gay individuals as compared to sixty-five
different modifiers in 2012, ranging from gay Americans to openly gay service
members and the openly gay popstar. By contrast, The New York Times showed less
variety in the items modified by sexual orientation labels lesbian, transgender, and
bisexual, suggesting that the label gay still dominates the discourse in regards to
‘‘individuals.’’
Conclusion
Throughout the last decade, the marriage equality movement has gained significant
momentum, with President Obama’s endorsement of same-sex marriage in May
2012 being a significant historic watershed moment for same-sex couples. As
demonstrated in the current study, this momentum is reflected in The New York
Times’ marriage equality discourse. While the discussion of same-sex marriage in
2004 was dominated by the sexual orientation label gay, the evolution to a language
predominately using same-sex in 2012 implies a more inclusive discourse. Across
the 8 year time span, the language also evolved to a more multifaceted language,
with a wider range of modifiers now used to discuss same-sex marriage,
relationships, and couples.
The Same-Sex Marriage Discourse in 2012: Bisexuality Remains Invisible
While the predominant use of the sexual orientation label same-sex suggests a more
inclusive discourse with regard to the LGBT-community at large, the use of the term
gay was still used the overwhelming proportion of the time when referring
specifically to individuals (84.15 %)—significantly more often than all other sexual
orientation labels combined (12.84 %). Bisexual, lesbian, and transgender identities
were primarily signaled linguistically with the umbrella terms LGB and LGBT. Only
one article exclusively used the sexual orientation label bisexual.
The present findings support not only the lack of bisexual specificity in the same-
sex marriage discourse, but also underscore that the overall linguistic context
presents a gendered and binary representation of the LGBT-community at large.
That is, bisexual invisibility in the same-sex marriage discourse is accompanied by
lesbian and transgender invisibility as well. Even in 2012, when the notion of gay
marriage has shifted to same-sex marriage, the language predominantly specifies
gay males when ‘‘individuals’’ are referenced.
The absence of bisexuality in The New York Times’ marriage equality discourse
once again perpetuates societal beliefs that bisexual men and women are not
adequate partners for committed relationships and that they are not relevant to
same-sex marriage. Today, bisexual media personalities like Tila Tequila have led
Marriage Equality Discourse 521
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to increased visibility of bisexuality in the media sphere. Depicting a highly
sexualized image of bisexuality, however, the media image feeds into societal
stereotypes of promiscuity and indecisiveness as means to attract viewers rather
than serving as educational channels about marginalized identities (Capulet 2010).
Again, the voices of bisexual women and men in committed relationships remain
largely unheard. The absence of bisexual individuals in committed relationships in
the media discourse is not only a reflection of societal marginalization at large, but
is also representative for the invisibility within the marriage equality movement.
The marriage equality discourse is based on binary conceptualizations of sex and
sexual orientation, rendering bisexual experiences of same-sex marriage invisible.
The present study supports Hidalgo et al’s. (2007) claim that the same-sex marriage
discourse fails in bringing the unique relationship experiences of bisexual
individuals to the forefront of the discussion.
Bringing Bisexual Relationship Experiences into the Mainstream: Implications
and Directions for Future Research
Bisexual individuals are uniquely positioned in relation to marriage. Although their
bisexual orientation does not bind them to partners solely on the basis of sex, the sex
of their partner does determine the degree of legal and cultural recognition
potentially bestowed upon their relationship should they desire marriage. In a cross-
sex partnership they could receive all of the benefits and responsibilities of legally
recognized marriage. However, those same benefits and responsibilities are not
similarly extended to their same-sex partnerships. Once partnered, bisexual identity
is usually obscured by the relationship type where either a heterosexual (cross-sex
relationship) or a lesbian/gay (same-sex relationship) identity becomes assumed
(Rust 1995). The current research investigates the way print media uses sexual
orientation labels when discussing same-sex marriage, and describes the ways in
which bisexual identity is obscured in this context.
The present results are limited as The New York Times was the only media source
analyzed. Considered a traditionally liberal newspaper, The New York Times’
evolution to a more inclusive language may not be altogether surprising. In fact,
past research has established that since the 2004 legalization of same-sex marriage
in Massachusetts, The New York Times had become an advocate for marriage
equality (Pan et al. 2010). Given this more liberal context, however, the invisibility
of bisexuality is of even more concern. Future research should consider the analysis
of language as it relates to the marriage equality discussion in traditionally
conservative media outlets. Especially the direct comparison of traditionally liberal
and conservative newspapers would allow for broader generalizations. An analysis
of arguments for and against same-sex marriage would provide further insights into
the national marriage equality discourse as would an analysis of media publications
within the marriage equality movement. Past research suggests that exposure to
certain types of media correlates with positive attitudes toward same-sex marriage,
with the preference of magazines over television and the following of web-blogs
suggesting a positive attitude towards same-sex marriage. Moreover, same-sex
522 A. M. Hackl et al.
123
marriage supporters consider television mainly a source for entertainment, where
political content is preferred over religious programming (Lee and Hicks 2011).
Future research should also investigate whether the language used by media has a
direct impact on attitudes toward marriage equality. Moreover, research could test
whether the use of different sexual orientation modifiers in the media representation
of LGBT individuals has a direct impact on individuals’ mental imaging in a way
that parallels past research on gendered language (Gastil 1990).
Bisexual individuals are marginalized not only by society at large, but also by the
LGBT-community, negatively impacting well-being and identity (Frost and Meyer
2012). Thus, the critical discussion of bi-invisibility within the marriage equality
movement is integral in order to make recommendations on how to strengthen the
community. Future studies may also benefit from media framing theory as it
provides further insights into the media construction of sexual identities. Nonethe-
less, the current study is unique in its approach as it is the first to demonstrate the
absence of bisexuality in the print media discourse of marriage equality. Thus, the
study seeks to be thought-provoking not only for those engaging in questions of
media representation and construction of sexual identities, but also for the marriage
equality movement.
Acknowledgments This work was supported, in part, by a grant from the American Institute of
Bisexuality awarded to M. Paz Galupo.
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524 A. M. Hackl et al.
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Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
- c.12119_2012_Article_9159.pdf
- From ‘‘Gay Marriage Controversy’’ (2004) to ‘‘Endorsement of Same-Sex Marriage’’ (2012): Framing Bisexuality in the Marriage Equality Discourse
- Abstract
- Introduction
- Attitudes Toward Bisexuality and Marriage
- Bisexuality and Marriage
- The Invisibility of Bisexuality in the Print Media
- Gender and Sexual Orientation Inclusion in the Same-Sex Marriage Discourse
- Statement of Problem
- Methods
- Sampling Design
- Coding Categories
- Inter-Coder Reliability
- Results
- Gay Modifiers Dominate Same-Sex Marriage Discourse in 2004
- Same-Sex Modifiers Dominate Same-Sex Marriage Discourse in 2012
- Between 2004 and 2012 the Overall Language Evolved to a More Inclusive Discourse
- The Evolution of Language 2004--2012: Changing the Same-Sex Marriage Discourse
- Conclusion
- The Same-Sex Marriage Discourse in 2012: Bisexuality Remains Invisible
- Bringing Bisexual Relationship Experiences into the Mainstream: Implications and Directions for Future Research
- Acknowledgments
- References
Sources/10.pdf
ORI GIN AL PA PER
Determinants of Electoral Support for Anti-Gay Marriage Constitutional Amendments: An Examination of Ballot Issues in California and Florida
William M. Salka • Raymond Christopher Burnett
Published online: 3 August 2011
� Springer Science+Business Media, LLC 2011
Abstract Between 1998 and 2006, twenty-seven states amended their constitu-
tions to prohibit same sex marriage. The 2008 elections again saw three states with
ballot measures aimed at banning gay marriage. This study examines the determi-
nants of support for those measures in California and Florida, and includes a similar
measure placed on the primary election ballot in California in 2000. Support is
measured as the county-wide vote in favor of each gay marriage ban. A number of
hypotheses are explored that examine the urban/rural nature of each county, as well
as the political and demographic characteristics of county residents. It is suggested
that states may be best viewed as relatively independent groupings of diverse
subcultures, rather than as homogenous populations with a single political culture.
The findings reported here indicate that a host of demographic, political and reli-
gious differences within each state influence residents’ votes on gay marriage bans.
Keywords Same-sex marriage � Gay marriage � Ballot initiatives � Homosexuality � Elections � State cultural differences
Over the past decade, state ballot initiatives to ban gay marriage either by statute or
by constitutional amendment have become a staple of the American political scene.
Between 1998 and 2006, twenty-seven states amended their constitutions to prohibit
same sex marriage. Gay rights groups, however, had reason for optimism that 2008
W. M. Salka
Department of Political Science, Eastern Connecticut State University,
Willimantic, CT 06226, USA
R. C. Burnett (&)
Department of Journalism, SSPA024, California State University at Long Beach,
1250 Bellflower Boulevard, Long Beach, CA 90840, USA
e-mail: [email protected]
123
Sexuality & Culture (2012) 16:59–75
DOI 10.1007/s12119-011-9099-9
would improve the prospect of blunting anti-gay marriage efforts. In 2008, the
battleground would be in Arizona, California, and Florida, three states with a high
degree of cultural and racial diversity.
California’s vote on Proposition 8, a constitutional amendment banning same-sex
marriage, would become the most watched test of this issue. The state Supreme
Court on May 15, 2008, made California the second state, after Massachusetts to
allow same-sex marriage, with Connecticut soon to follow as the third (Burnett
2008). Opponents of same-sex marriage, anticipating that the state Supreme Court
would rule in favor of gay rights activists, had already collected enough signatures
by May 15 to get a proposed marriage ban on the November ballot.
Arizona and Florida offered different tests of the issue. In 2008, Arizonans had
the second opportunity in as many years to consider the gay marriage issue. In
November 2006, Arizona had become the first state in the United States to defeat a
proposal to amend the state constitution to ban same-sex marriage (Burnett 2008).
Gay rights supporters were also optimistic about their prospects in Florida, where it
takes 60% support to pass a constitutional amendment through an initiative. Polls
showed the contest would be close (Burnett 2008).
The year 2008, however, continued the record of electoral defeat for gay
marriage supporters. The most visible race was California’s Proposition 8, which
trailed only the US presidential contest in the amount of money spent. Money raised
was split pretty evenly. Backers of Proposition 8 collected nearly $40 million for
their campaign, while opponents brought in more than $45 million (California
Secretary of State 2009). After Proposition 8 passed with a vote of 52–48%, gay
marriage backers held protests in the state’s major cities, with promises to continue
the fight in the courts. The Florida and Arizona votes also were disappointments for
supporters of gay marriage rights. In Florida, 61.9% of voters cast ballots in favor of
the Florida Marriage Protection Amendment, surpassing the 60% needed to put the
provision into the state’s Constitution. Only one of the state’s 67 counties, Monroe,
which includes Key West and other small communities in the Florida Keys, had a
majority of voters against the measure. Arizona voters, who in 2006 had defeated an
anti-gay marriage constitutional amendment by a 51–49% margin, reversed course
in 2008. Proposition 102 passed with 56.2% of the vote, losing only in one of the
state’s 15 counties. Pima County, which contains Tucson and the University of
Arizona, was the only county in Arizona to vote against the measure.
The results of the 2008 election raise an important question regarding the factors
that lead some voters to support a constitutional ban on gay marriage, while others
oppose them, within the same state. Voting on similar social and environmental
issues is often perceived to divide along rural–urban lines, with a state’s urban and
suburban voters deemed more likely to support issues such as gay rights and
environmental protection. More recent studies, however, have suggested that this
urban–rural divide may simply be a proxy for deeper demographic and political
variables, such as religion, race, and socioeconomic factors. More broadly, we
suggest that each state is best viewed not as a homogeneous group for residents
adhering to a single, unified state political culture. Rather, each state, at least large
ones like California and Florida, are better viewed as simple geographic boundaries
containing diverse groupings of residents. These groups, then, hold varying attitudes
60 W. M. Salka, R. C. Burnett
123
on a host of issues that can be explained, at least in part, by their differing
demographic, political and religious characteristics. This study will examine these
differences, paying particular attention to urban–rural differences, as well as other
variables, in an effort to explain variance in electoral support for gay marriage. Even
though societal tolerance and acceptance of same-sex relationships and homosex-
uality in general appears to be growing in the 21st century, significant divisions still
exist based on a number of factors. The study looks at a slice, voting on 2008 state
ballot initiatives involving same-sex marriage rights, in an attempt to shine a
brighter spotlight on the state of same-sex rights in the United States today. In so
doing, the authors hope to contribute to a better understanding of the factors that
explain divergent views on gay rights issues.
Literature Review
For generations homosexuals, defined as individuals with largely same-sex
attractions, have struggled in the United States to gain acceptance of their intimate
relationships within the bounds of historical prejudices contained within American
culture and racial communities. Despite the prevalence of same-sex relationships,
societal disapproval of homosexuality limited scholarly discussion of the issue until
the last three decades of the Twentieth Century (Chauncey et al. 1994, 2).
In the United States, gay-rights historians such as George Chauncey have
chronicled a thriving gay male culture in major urban areas such as New York as
early as the 1890s. By the 1920s, gay men had created neighborhood enclaves in
Greenwich Village, Harlem, and Times Square (Chauncey 1994). Even though
some gay men approached these neighborhoods and the gay scene at the time only
fleetingly, it played a central role in the lives of others (Chauncey 1994). Many
people used their gay social circle to find jobs, apartments, romance, and their
closest friendships (Chauncey 1994). The strength of the gay male subculture of the
early Twentieth century was so strong it provided the strength for many to reject the
dominant culture’s definition of homosexuality as ‘‘sick, criminal and unworthy’’
(Chauncey 1994).
Even though some homosexuals developed long-term relationships similar to
those of married couples, the dominant culture’s rejection of same-sex relationships
as a socially recognized lifestyle kept discussion of anything resembling marriage of
same-sex partners outside the public arena through most of the Twentieth century
(Chauncey 1994). In some communities, such as San Francisco in the post World
War II period, the development of the gay liberation and women’s liberation
movements allowed greater freedom from social convention. According to historian
John D’Emilio, the women’s movement in particular allowed females to openly
acknowledge same-sex feelings and relationships ‘‘unencumbered by primary and
social attachments to men. As opponents of feminism were quick to realize, the
women’s movement was, in fact, a ‘‘breeding ground’’ for lesbians (D’Emilio 1989,
467).
By the last decade of the Twentieth century, the political battle over recognition
had extended to a fight for legal rights for same-sex couples in committed
Determinants of Electoral Support for Anti-Gay 61
123
relationships. In 1993, the Hawaii Supreme Court ruled that limitation of marriage
to opposite-sex couples was discrimination on the basis of sex that violated the
state’s constitution. This led to the first statewide attempt to protect ‘‘traditional’’
marriage, as the Hawaiian Legislature proposed a state constitutional amendment,
ratified by Hawaiian voters in 1998, giving the legislature the power to ‘‘reserve
marriage to opposite sex couples’’ (Pinello 2006, 27). At the national level, in 1996,
Congress passed the Defense of Marriage Act (DOMA) which barred federal
recognition of same-sex marriages and permitted states to make their own decisions
on whether to do the same.
The next major legal decision occurred in 1999 when Vermont’s Supreme Court
ruled that limiting marriage to opposite-sex couples violated the state constitution’s
‘‘common benefits clause’’. However, instead of retreating from same-sex marriage
rights, as had occurred in Hawaii, Vermont’s Legislature in 2000 passed a civil
unions law with more than three hundred relationship rights and obligations given to
same-sex couples who wanted a civil union (Pinello 2006, 29). In 2003, with
Goodridge v. Department of Public Health, the Massachusetts Supreme Court
escalated the legal and political battle by declaring the state’s conferral of civil
marriage only on opposite-sex couples violated the state’s constitution. Three
months later the state Supreme Court determined that civil unions were an
inappropriate remedy (Pinello 2006, 19), thus making the state the first to give gays
and lesbians the right to marry.
Given that the Massachusetts ruling opened the political floodgates for divisive
debates in the 2004 and subsequent elections, which intensified the political fight
over same-sex marriage nationwide and in the individual states, this study’s value is
in many respects self evident. Currently, the legal status of same-sex marriage varies
among the states. According to the National Council on State Legislatures (2007),
41 states currently have statutory Defense of Marriage Acts, and three of those
states have statutory language that pre-dates the federal act. The 2008 elections
brought to thirty the number of states that have constitutionally defined marriage in
this manner.
This work specifically focuses on the determinants of state-wide election results,
with an emphasis on examining variables that explain the importance of urban–rural
divides in public policy preferences. It is important, however, to note that no study
that relies on data to measure attitudes and policy preferences can completely
explain the complexity of factors leading to support or opposition to same-sex
marriage. The literature suggests that a complex mix of factors, such as religious
attitudes and historical traditions involving marriage, have influenced the policy
debate in ways that are difficult if not impossible to quantify. Much of the research
on urban–rural differences is contained in studies of environmental politics. Positive
associations between urban residence and support for environmental protection
were reported by Lowe and Pinhey (1982), Van Liere and Dunlap (1980), and Buttel
and Flinn (1978). Urban residents tend to be exposed to greater environmental
degradation and, therefore, tend to be more supportive of government intervention
to address those problems. In contrast, rural residents are thought to view nature as
possessing the capacity to support greater resource exploitation, perceiving little
need for human intervention to correct problems. Further, rural residents have
62 W. M. Salka, R. C. Burnett
123
historically been exposed to greater use of the environment for economic gain, and
thus are more apt to view nature as exploitable. Other scholars have found that,
while urban and rural residents do display substantially different values regarding
environmental protection, these differences disappear when deeper political and
demographic characteristics are examined (Salka 2003; Salka 2001; Alm and Witt
1997; Witt and Alm 1995).
It is plausible to expect that urban/rural differences may also explain varying
positions on the gay marriage issue, but that these differences reflect diverse
underlying political cultures or attitudes. It could be argued that rural residents are
less likely to support gay rights because homosexuality is not a part of the dominant
culture of most rural communities in the United States. Support for the hypothesis
that rural and urban characteristics are significant indicators of support or opposition
to gay rights is widespread in the literature. Steinfels (1988) and Hunter (1991)
suggested that the United States is divided between traditionalists or cultural
conservatives, and modernizers or progressives, with the divides often falling on a
small town versus urban basis. Adam (1987) observed that groups that are actively
anti-gay also are opposed to other movements that would change the status quo,
whether it is equality for women, abortion rights, or an extension of civil rights
protections to disadvantaged groups. These anti-status quo groups tend to be most
prominent and vocal in rural communities, shaping those communities’ political
cultures.
Ormrod and Cole (1996) found a correlation between an area’s social traits and
the direction of the aggregate vote on Colorado’s Amendment Two in 1992. This
amendment, later struck down by the US Supreme Court, would have invalidated
local ordinances granting homosexuals equal protection in housing and employ-
ment. The authors found that localities supporting the amendment in Colorado
tended to be rural, have agricultural economic bases, histories of net out-migration,
and relatively smaller proportions of single-person households than the state as a
whole. Amendment Two found its greatest opposition in tourist resort areas,
university communities, and urban areas.
While urban/rural differences may explain variation among voters, other factors
may play a role in influencing voting behavior on gay rights issues. O’Reilly and
Webster (1998) found that patterns of support for three anti-gay referenda in Oregon
in 1988, 1992 and 1994 were closely associated with support for the Republican
Party in gubernatorial and presidential elections. Those backing gay rights, in
contrast, tended to be younger, secular, minorities, better educated, higher income,
and urban. Egan and Sherrill (2006) found that party identification and political
ideology were strong predictors in the 2006 national election, with gays and lesbians
a strong part of the Democratic voting bloc. Gay and lesbian voters cast 75% of their
ballots in 2006 for Democratic candidates, topped only by blacks (89%) and Jews
(87%). Burnett and Salka (2009), in a study of the seven states that passed
constitutional amendments banning gay marriage in 2006, found that countywide
support for the Republican Party, and lower income and education levels, are better
explanatory indicators of support for gay marriage bans than a county’s urban or
rural nature.
Determinants of Electoral Support for Anti-Gay 63
123
Studies have also linked negative attitudes toward gays and lesbians to age, with
older residents expressing lower levels of support for gay rights. This relationship is
hypothesized to exist because older people grew up in an era when homosexuality
was viewed as deviant and something to be hidden from public view (Herek 1984;
Hudson and Ricketts 1980; Lim and Johnson 2001; Oliver et al. 1993; Whitley
1987; Wills and Crawford 2000).
A number of studies also have maintained that higher education and income,
which are typically correlated with each other, lead to greater acceptance of
homosexuality. Bobo and Licari (1989) suggested that higher education tends to
raise peoples’ cognitive sophistication and tolerance for diverse groups. Astin
(1977) argued that these changes in attitudes persist long after people leave college,
with college graduates exhibiting a more liberal and global view toward society and
its members. More recently, Lambert et al. (2006) surveyed 364 students at a
Midwestern university and suggested that juniors and seniors had a significantly
more positive attitude toward gays and lesbians than did freshmen and sophomores.
The literature also suggests that race and sex may play a role in support for gay
rights measures. Egan and Sherrill (2009) found that African-American voters in
2008 in California opposed gay marriage rights by a higher margin than voters as a
whole. African-American support for Proposition Eight, the anti-gay marriage ballot
initiative, could be explained to their higher religiosity relative to other groups
(Egan and Sherrill 2009). Party affiliation, political ideology, frequency of attending
worship services and age were the most important indicators of support or
opposition to Proposition Eight (Egan and Sherrill 2009).
Earlier research had suggested (Egan and Sherrill 2006) that African-Americans
and Hispanics more readily identified with gays and lesbians than Caucasians and
Asians. Lewis (2003) found little evidence of African-American homophobia in a
study comparing survey results on white and black attitudes toward homosexuality.
Despite greater disapproval of homosexuality in general, blacks’ opinions on
sodomy laws, gay civil liberties, and employment discrimination were found to be
similar to whites’ opinions (Lewis 2003). In fact, once religious and educational
differences are controlled for, African-Americans were found to be stronger
supporters than whites of gay civil liberties. Blacks were also more likely to support
laws banning anti-gay employment discrimination based on polling done since the
early 1990s (Lewis 2003). These findings are likely due to blacks’ ability to
sympathize with the discrimination historically faced by gays and lesbians, leading
them to oppose efforts to openly discriminate against any minority. Similar findings
seem plausible for Hispanics, another minority group that has historically faced
discrimination.
Lewis (2003) also suggested that gender played a role in acceptance of
homosexuality among both blacks and whites. Black men are more likely than are
black women to call homosexual relations ‘‘always wrong’’. In contrast, white
women are even more likely than black women to favor gay rights (Lewis 2003).
The literature in general has consistently suggested that gender differences exist in
attitudes toward gay men, with women demonstrating less prejudice. The same
trend is also present in attitudes toward lesbians, though to a lesser extent (Herek
2003). Some studies have contended that women are more favorable toward lesbians
64 W. M. Salka, R. C. Burnett
123
than men, though other studies have argued that women and men respond toward
lesbians similarly (Kite and Whitley 1996).
As illustrated above, there is considerable variation in the literature with regard
to the factors that influence support for or opposition to gay marriage. Previous
scholars have typically examined this issue using case studies or opinion surveys.
This study examines aggregate voting behavior in an attempt to identify the
aggregate variables that seem to impact citizens’ preferences on this issue. An
examination of voting behavior may provide the ‘‘purest’’ assessment of attitudes, as
voting is a private act done in the secrecy of the voting booth. Thus, voters may be
more comfortable expressing either discriminatory views, or those that do not fit
with the culture of their community.
Data and Method
Using the above literature as a theoretical foundation, this study will examine the
factors that influence countywide support for the anti-gay marriage ballot measures
in California in 2000 and 2008, and Florida in 2008. Arizona is not included in this
study, as that state has too few counties to allow for statistical inferences. The
California vote in 2000 was a primary election, while the other two were general
elections. The dependent variable is the percentage of countywide votes on the
ballot measures that sought to ban gay marriage. The examination of ballot measure
votes in two states in 2008 should indicate whether the influence of independent
variables are consistent across states, while the inclusion of the ballot measure
election held in the California primary in 2000 should reveal whether different
independent variables are influential in different types of elections.
Independent variables expected to influence these votes include the urban or rural
nature of the county, partisanship, income, age, education, race, sex, and the
proportion of religious residents in each county. Election returns were obtained from
the Secretary of States’ offices in each state, while data for the independent
variables came from the US Census data reported in the 2000 and 2008 County and City Extra: Annual Metro, City, and County Data Book (Gaquin and DeBrandt
2000, 2008). Given the variance across counties in each state on a number of
demographic, political and religious variables, it seem plausible that these
differences, and the attitudes they produce, explain differing levels of support for
or opposition to gay marriage within each state. The first independent variable
measures the impact of the urban or rural nature of each county. This variable
measures the number of people per square kilometer in a county. It is expected that
rural counties will be more supportive of the gay marriage bans, while urban
counties will be less supportive. This expectation follows from the notion that rural
areas tend to have a higher percentage of traditionalists, or cultural conservatives,
who shape those counties’ political cultures, leading residents to oppose gay rights.
The partisan nature of each county is measured as the percentage of votes in each
county in favor of the Republican Party’s nominee in each year, George W. Bush in
both 2000 and 2004. Voter support for the Republican Party is expected to be
positively correlated with support for the constitutional amendments prohibiting gay
Determinants of Electoral Support for Anti-Gay 65
123
marriage. Given the more conservative and moralistic nature of the Republican
Party’s platform and historical opposition to any redefinition of the institution of
marriage, it is expected that counties that tend to express electoral support for the
Republican Party will also be more supportive of efforts to constitutionally prohibit
non-traditional forms of marriage.
Support for the Republican Party’s presidential nominee was used to measure
partisanship, as it provides a uniform measure across both states included in the
study. While the authors hope that this variable will provide information on the
influence of ideology on voting behavior, the variable cannot definitively measure
political ideology. Likewise, the variable is not an exact measure of political party
affiliation, but is one measure of countywide support for the Republican Party.
While this measure may be an imperfect proxy for party affiliation, it is the best
available at the county level.
Age is also expected to influence attitudes regarding gay rights. Older residents
are expected to be less accepting of same-sex marriage and the political rights of
gays and lesbians, as they were socialized at a time when homosexuality was less
accepted. Younger residents are expected to be more supportive of gay rights, as
these groups have come of age in an era when gay and lesbian rights have gained
greater acceptance. The age variable is measured as the percentage of residents in
each county between the ages of 18 and 34.
Race is also expected to influence county-wide support for gay marriage bans.
This variable measures the percentage of the county’s population identified by the
Census as white. The expectation is that counties with a higher proportion of non-
white residents (primarily African Americans and Hispanics in the states examined
here) will be more likely to oppose anti-gay ballot measures, thus expressing higher
levels of support for gay and lesbian rights. This hypothesis tests the theory that
racial minorities will be more likely to identify with gays and lesbians, two groups
that also share a history of discrimination.
The gender balance in each county is also expected to influence voting. The
variable used here is the percentage of the female population in each county. It is
expected that counties with a greater proportion of females will be less supportive of
the anti-gay marriage measures. Similar to race, this hypothesis is based on
sympathetic ties between women and other groups that have faced past
discrimination.
Counties with higher socioeconomic status (SES), measured as income and
education, are expected to be more supportive of gay rights, as higher SES has been
found to be associated with greater tolerance of diverse groups and support for
minority rights. Thus, it is expected that counties with relatively high SES levels
will be less supportive of the gay marriage bans.
The SES variable was created by combining education and income, because of
high levels of multicollinearity between those original variables. The SES variable
is an ordinal level index with scores ranging from 0 to 6. To create the index, the
median income and median percentage of residents over 25 years old with a 4 year
degree were determined for each state, along with standard deviations of each
measure. Income and education values for each county were then compared to the
income and education range that constituted one standard deviation above and
66 W. M. Salka, R. C. Burnett
123
below the median. If a particular county’s median income fell below one standard
deviation of the statewide median, the county received a score of zero. If it fell
within one standard deviation of the median, but was still below the median, the
county received a score of one. Counties with incomes that fell between the median
and one standard deviation above received a score of two. If the county median
income fell above one standard deviation of the statewide average, it received a
score of three. The same calculations were made for the education variable. The
index was then created by summing the income and education scores for each
county.
Finally, religion is expected to influence support for or opposition to gay rights
initiatives. This hypothesis drew support in a study of 2004 ballot initiatives
involving gay marriage. Campbell and Monson (2008) found that white evangelical
Protestants in 2004 had a higher level of mobilization for President George W. Bush
in the 13 states voting on a constitutional ban against gay marriage. In this study,
religion is measured with two variables, both using data from the 2000 Religious
Congregations and Membership Study conducted by the Association of Religion
Data Archives (2001). The Congregations study presents statistics on 149 religious
organizations with regard to the number of congregations and adherents in each
county across the United States. The large number of religious organizations in the
archive helps account for the wide variance in religious groups’ attitudes toward
same-sex marriage. Although it is sometimes assumed that religious groups form a
monolith of opposition to same-sex marriage, in fact religious organizations do not
speak with one voice (DeLaet and Caufield 2008). For example, the Unitarian
Universalist Association supports same-sex marriage as a civil right, and many
Religious Society of Friends (Quakers) affiliates across the country have made
statements of support for same-sex unions (DeLaet and Caufield 2008). Also, many
Jewish movements, with the exception of Orthodox Jewish groups, now support
same-sex unions.
The models themselves examined below include two measures of religious
adherents. One variable measures the proportion of each county’s residents that
adhere to any religion and, thus, belong to a congregation. The second measures the
proportion in each county that are members of a Catholic congregation. It is
expected that both variables will be positively correlated with support for each anti-
gay ballot measure. While not all religious denominations have the same position on
gay marriage, it is expected that those counties with relatively high proportions of
religious residents will be more likely to vote in favor of initiatives that protect the
traditional definition of marriage as between a man and woman. Similarly, it is
expected that those counties with relatively high numbers of Catholics will also vote
in favor of laws protecting that traditional definition.
Ordinary least squares (OLS) regression was used to determine the strength and
statistical significance of correlations between each of the above variables and
support for the three anti-gay marriage ballot measures included in this study. The
results should be interpreted as accurate only at the county level, as applying the
findings or theoretical conclusions to individual behavior would be problematic.
The reader is also reminded that California’s Proposition 22 from 2000 was on the
Determinants of Electoral Support for Anti-Gay 67
123
primary election ballot, while the other two initiatives were on the general election
ballots.1
Findings
Table 1 presents the OLS findings for the Marriage Protection Amendment in
Florida. In that model, the partisanship, SES and urban/rural variables exhibited
statistically significant relationships in the hypothesized directions. Counties in
which larger proportions of voters supported the Republican candidate in the 2004
presidential election tended to also express greater support for the ban on gay
marriage. Counties where residents tended to have higher socioeconomic status, and
Table 1 Determinants of
support for proposition 22
(2000) and proposition 8
(2008) in California
The first number represents the
unstandardized coefficient, the
second number, in parentheses,
represents the standard error of
the estimate # Variables transformed using
log base10 arithmetic function
to correct for kurtosis
* p \ .05; ** p \ .01
Variable Proposition 22
(2000)
Proposition 8
(2008)
% Republican 0.952**
(0.079)
0.801**
(0.04)
% 18–34 Years old -0.184
(0.188)
-0.294*
(0.113)
% White -0.101
(0.093)
-0.203**
(0.03)
% Female -0.638
(0.355)
0.254
(0.159)
SES -3.32**
(0.515)
-2.009**
(0.344)
Population# 1.933
(1.305)
0.591
(0.653)
% Catholic# 9.047**
(2.896)
0.011
(0.04)
Adjusted R squared .894 .962
Number of cases 58 58
1 Tolerance scores were calculated for all independent variables to test for problems with multicollin-
earity. With the exception of the income and education variables, which were combined into the SES
variable, and the variable measuring adherents to all congregations, all variables included in the models
had scores above 0.3 (with most above 0.4), indicating no significant problems existed. The variable
measuring the percentage of adherents to all congregations was strongly correlated with the percent
Catholic variable in California, creating problems with multicollinearity. To correct this problem, the
percentage of adherents to all congregations variable was removed from both California models. Further,
the reader should be aware of arithmetic transformations that were done on five variables to comply with
the assumptions of the OLS model. The urban/rural and age variables in California, and the age, urban/
rural and percent adherents variables in Florida all suffered from kurtosis (specifically leptokurtosis), to
degrees that violated the normality assumption. To correct this problem, Log-base 10 transformations
were conducted on these variables. While these transformations will not affect the measures of influence
between the dependent variables and each independent variable, the reader should be aware of these
transformations when interpreting the parameter estimates reported in Tables 1 and 2.
68 W. M. Salka, R. C. Burnett
123
those that were more densely populated, tended to show lower levels of support for
the ban.
Interestingly, the variable measuring race, while statistically significant, was
negatively related to support for the gay-marriage ban, opposite of the hypothesized
direction. This finding suggests that Florida counties with higher proportions of
residents classified as white tended to express lower levels of support for the gay
marriage ban. Conversely, counties with higher proportions of minority residents
tended to express greater support for the ban on gay marriage.
Finally, both religion variables exhibited statistically significant correlations with
the dependent variable, though the percent Catholic variable was in the opposite
direction from the one hypothesized. The variable measuring the percent of
religious adherents was positively correlated with support for the gay marriage ban.
This finding indicates that voters in Florida counties that have relatively large
proportions of residents that belong to congregations of any denomination tended to
express higher levels of support for a ban on gay marriage.
The negative coefficient for the percent Catholic variable indicates that voters in
counties with a relatively high proportion of residents that belong to the Catholic
Church tended to express lower levels of support for a gay-marriage ban, not the
higher levels of support that was predicted. This finding may be explained by the
possibility that the Florida counties that have the largest concentrations of Catholics
are the counties on the state’s coastlines, and many of the Catholics in Florida are
likely transplants from other regions of the country, particularly the Northeast. Thus,
the Catholics in Florida may tend to be more tolerant than the native Floridians that
live in the state’s interior counties.
The findings for the ballot measures in California are reported in Table 2. Across
the two models, the partisanship and SES variables, again, both showed statistically
significant relationships in the hypothesized directions. California counties where
voters tended to show higher levels of support for the Republican Party’s
presidential candidate in 2000 or 2004, also tended to show higher levels of support
for a ban on gay marriage. Similarly, counties with higher socioeconomic status
tended to express greater opposition to the bans. When the election returns on
Proposition 22 are examined, only one other independent variable was correlated
with that vote at statistically significant level. The finding in this regard suggests
that California counties with higher proportions of Catholics tended to be more
supportive of the gay marriage ban.
The more recent vote on Proposition 8 suggests that religion was not influential
in that election, at least on the aggregate level. However, age and race were. In that
2008 election, counties with a higher proportion of younger voters, those between
the ages of 18 and 34, tended to show greater opposition to the gay marriage ban.
Also, similar to the findings in Florida, counties with higher proportions of voters
classified as white tended to express lower levels of support for the ban.
Interestingly, the only variable included in all three models across both states that
was not significantly related to any of the votes was gender. This finding may
indicate that gender is not an important determinant in support for gay marriage
rights. Alternatively, it is likely that there is simply not enough variance in the
Determinants of Electoral Support for Anti-Gay 69
123
proportion of males to females across the counties in each state to reveal any
statistically significant differences.
Discussion
This study has sought to conceptualize states, particularly large ones like California
and Florida, not as homogenous populations with a distinct unified culture, but
rather as geographic collections of diverse enclaves where residents develop their
own subcultures. Due to the availability of data, each state was examined at the
county level in an effort to explore the cultural and attitudinal differences regarding
the rights of gays and lesbians within each state. The resulting analysis indicates that
the states, at least those included in this study, are best viewed not as homogenous
populations adhering to one state culture, but rather as collections of heterogeneous
groups living within the borders of each state. Compare for example Fresno and San
Francisco counties in California. Few would argue that the differences between
these two locales do not vastly overshadow their similarities. Yet, to examine
California’s passage of its anti-gay marriage constitutional amendment without
taking into account these differences is at best painting an incomplete picture of the
story.
Despite what seems, on close examination, to be an obvious point, little research
has been done that examines the distinct communities within each state, and the
bases for those distinctions. The evidence presented above suggests that these
differences stem, at least in part, from the demographic, political and religious
Table 2 Determinants of
support for the Florida marriage
protection act, 2008
The first number represents the
unstandardized coefficient, the
second number, in parentheses,
represents the standard error of
the estimate # Variables transformed using
log base10 arithmetic function
to correct for kurtosis
* p \ .05; ** p \ .01
Variable PROP
% Republican 0.435**
(0.075)
% 18–34 Years old# -6.088
(10.433)
% White -0.139**
(0.051)
% Female -0.066
(0.224)
SES -1.973**
(0.445)
Population# -4.719**
(1.577)
% Catholic -0.279*
(0.105)
% With religious affiliation# 17.678*
(6.691)
Adjusted R square .833
Number of cases 67
70 W. M. Salka, R. C. Burnett
123
diversity found within each state. While the county provides a convenient level of
measurement for data collection, it is likely that lower levels of analysis would also
prove fruitful.
Of the variables included in this study, partisanship and socioeconomic status
seem most influential. As predicted, counties that tend to support the Republican
Party presidential candidates also tended to oppose gay rights in all three models.
This is not surprising, given the moralistic, anti-gay nature of the Republican Party
platform. Conversely, counties that tend to support the Democratic Party, with its
platform more focused on individual rights in the social realm, tended to be more
supportive of gay rights. This finding suggests that gay marriage is an issue that
divides along partisan lines. Counties with voters who possess attitudes reflected in
the Republican Party platform or by Republican candidates seem to be more apt to
support the more traditional definitions of marriage as between a man and a woman.
Conversely, counties where voter preferences are more aligned with the Democratic
Party platform or with Democratic candidates seem more open to broader
definitions of marriage.
A county’s overall socioeconomic status was also clearly influential in voting
behavior on gay rights. Those counties with higher levels of income and education
tended to be more supportive of these rights, perhaps reflecting a greater tolerance
of minority groups and less traditional lifestyles among residents of those counties.
Here, it is likely the impact of education that is shaping voters’ attitudes toward gay
marriage. In counties where residents have higher levels of education, thus, greater
exposure to diverse perspectives, a more tolerant culture may prevail. It is important
to note here that the effects of party affiliation and SES are influential independent
of each other. This means that each is still significantly correlated with voting
behavior, even when controlling for the other variable.
Race was influential in the ballot measure votes in the general elections in both
states, but was not significantly related to the vote on Proposition 22 in the 2000
California primary. The finding that race was influential in California’s 2008 fight
over Proposition 8 makes sense, for backers of the initiative targeted African-
American groups for support in the final weeks of what turned out to be a close
52–48% contest. African-Americans turned out to vote in much higher numbers in
2008 as well with the presence of the first African-American presidential nominee,
Barack Obama, on the ballot as the Democratic Party candidate. The negative
relationship between the proportion of county residents who are classified as white
and support for the gay marriage bans suggests that counties with larger minority
populations tended to express lower levels of support for gay rights. This finding,
which is in the opposite direction of the hypothesis, indicates that the theory
suggesting racial minorities will identify with and be more supportive of the rights
of another minority facing discrimination, is inaccurate, at least in the case of
marriage rights for gay men and lesbians. The findings presented here indicate the
opposite may be true.
The findings for the age and urban/rural variables were mixed. Age was
influential in the California vote in the 2008 general election, but was not significant
in the California primary in 2000 or the Florida general election in 2008. The
significant finding in the model for Proposition 8 in California, however, does lend
Determinants of Electoral Support for Anti-Gay 71
123
support to the theory that younger generations are more supportive of gay rights,
and offers some hope for the future of that movement. The urban/rural variable,
then, was only significant in the Florida model. The negative correlation here
indicates that the more densely populated Florida counties were more supportive of
gay rights. This finding might be explained by the fact that the more densely
populated counties in Florida tend to be on the coasts. These counties also tend to
have a higher proportion of transplants from other regions of the United States.
These residents may be more tolerant than the Florida natives who tend to live in the
less densely populated interior counties.
Finally, the religion variables provide some interesting findings. Recall that the
variable measuring the proportion of members of any congregation had to be
removed from the California models due to problems with multicollinearity. That
variable was significant, however, in the Florida model, suggesting that counties
with a higher proportion of religious residents tended to express greater support for
the ban on gay marriage. This finding supports the theory that an individual’s
religious views have a significant effect on their attitudes toward gay rights.
The findings for the percent Catholic variable are also interesting. That variable
was statistically significant, and in the hypothesized direction, in the model
examining Proposition 22 in California, but not for Proposition 8 in the same state.
While it is likely that the 8 year difference between the two votes had some
influence on this finding, the key difference may stem from the fact that the vote on
Proposition 22 was held in a primary election, while the vote on Proposition 8 was
held in a general election. Given that primary elections tend to have considerably
lower voter turnouts and tend to attract only the most politically engaged voters, the
significance of the Catholic variable in the 2000 primary may indicate a successful
voter mobilization effort by the Catholic Church prior to that election. The
importance of the percent Catholic variable may have been diminished in the 2008
general election, an election with higher participation rates of more moderate and
less engaged voters. Increased turnout by moderates in a general election may have
reduced the influence of Catholic voters across California counties.
The percent Catholic variable was also statistically significant in the Florida
model, but in the opposite direction of the one hypothesized. This finding suggests
that Florida counties with higher proportions of Catholic voters actually tended to
express higher levels of support for gay rights. Similar to the urban/rural variable,
this may again be explained by the high proportion of Florida residents that grew up
in other regions of the country and migrated to the state later in life. Catholicism is
not the dominant religion in the South, and many of the Catholic residents may be
these transplants from other regions. These residents may simply be more tolerant of
gay rights than native Floridians, even with the influence of their Catholic faith.
Overall, despite the election defeats in 2008 in California and Florida, the results
offer hope for gay marriage proponents, and perhaps in the not so long term. The
California victory for gay marriage opponents required superior political mobili-
zation. Journalistic accounts of the race indicated the turning point came a couple of
weeks before the election, when Proposition 8 backers turned to the Church of Jesus
Christ of Latter Day Saints for the financial resources needed for advertising and a
get out the vote drive. In a public radio interview on November 5, former San
72 W. M. Salka, R. C. Burnett
123
Francisco Mayor and Assembly Speaker Willie Brown, an astute observer of
California politics over the past 30 years, said the Proposition 8 backers won
because they out organized and out hustled the pro-gay marriage forces at the
neighborhood level. The data in this study on minority voting appears to corroborate
this observation.
Turning the tide at the state level on a national scale may not be an easy task for
pro-gay marriage forces, but at least at the state level supporters are making gains.
The passage of Proposition 8 in California, a state whose judicial system just
5 months earlier had legalized gay marriage, showed in 2008 that even in one of the
most politically progressive states in the nation, victory for gay rights causes in
initiative campaigns is a tough battle. Gay rights advocates who cried foul on
Proposition 8 backers’ mobilization techniques do not point out that they had greater
financial resources and still lost. The results presented here suggest that proponents
of gay marriage may be more effective if they target their mobilization efforts to
those areas that are culturally or attitudinally predisposed to support their cause.
Nevertheless, the initiative is just one tool in the political arsenal. Following the
Proposition 8 victory, gay marriage supporters turned once again to the federal
courts. In August 2010, federal District Judge Vaughn Walker ruled in Perry v. Schwarzenegger that Proposition 8 was unconstitutional on due process and equal
protection clauses of the Constitution and prohibited its enforcement. Whatever the
outcome of this case, now before the 9th US Circuit Court of Appeals, California
appears likely to remain a battleground in the gay marriage debate.
In Florida, same-sex marriage supporters have less reason for optimism. The fact
that Florida voters, in a campaign with much lower expenditures and media
coverage, were able in 2008 to get an extraordinary majority, 61%, to oppose gay
marriage rights, appears to send a cautionary signal to gay rights supporters that
would indicate a national victory on the gay marriage issue will not be won anytime
soon. Florida may be a more culturally conservative state, with its high proportion
of older voters and relatively high percentage of African Americans, but it is
probably more representative than California of where the nation as a whole is on
the gay marriage rights issue, given all the anti-gay marriage victories of the
previous two decades.
Nevertheless, the authors believe it would be foolish to draw any broad
conclusions about the ability of gay rights opponents to continue to block what
appears to be a broader advance in society’s tolerance for same-sex marriage. From
an era a century ago when same-sex relationships were hidden from view, gays and
lesbians have especially in the past 20 years made significant gains in attaining
visibility and in articulating the case for same-sex marriage rights. The debate
remains highly contentious, with religious and cultural divisions in American
society over acceptance of same-sex relationships and exactly what constitutes a
meaningful same-sex relationship. Gays and lesbians of different ages and cultural
backgrounds disagree on the significance of marriage in their own lives.
The trend, as shown in this study, for younger people, independents, Democrats,
and women in general to more strongly embrace same-sex marriage not only for
themselves but also for others, gives backers reason for hope. An ABC-Washington
Post poll released in March 2011 showed a majority of Americans believe same-sex
Determinants of Electoral Support for Anti-Gay 73
123
marriage should be legal (Klepper 2011). That survey found 53% of those surveyed
support gay marriage. In 1996, a total of 27% of Americans backed gay marriage
(Klepper 2011).
However, initiatives do matter. The Florida vote in 2008 demonstrated that
mobilization of an extraordinary level of opposition to same-sex unions is possible
in a state with a significant African-American and older population. In California,
gay marriage opponents used religion and targeted demographic groups such as
African-Americans to succeed, at least temporarily, in blocking same-sex marriages
in one of the nation’s most diverse and supposedly liberal states. The initiative
venue is far from dead as a tool for those who choose to use it to achieve their ends.
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- Data and Method
- Findings
- Discussion
- References
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Fr nt B ll n L nd rr t r rld nd J t F t r
Therese Quinn, Erica R. Meiners
QED: A Journal in GLBTQ Worldmaking, Inaugural Issue, Fall 2013, pp. 149-175 (Article)
P bl h d b h n t t n v r t Pr DOI: 10.1353/qed.2013.0005
For additional information about this article
Access provided by UNC Wilmington (24 Mar 2016 04:16 GMT)
http://muse.jhu.edu/journals/qed/summary/v000/0.quinn.html
From Anti-Bullying Laws and Gay Marriages to Queer Worlds and Just Futures Therese Quinn and Erica R. Meiners1
ABSTRACT
Recent attention to youth suicides and violence framed as “bullying” has triggered a range of responses by schools and the state. In this article we locate and analyze the “gay wins” most noted in education, including the recent moves to establish gay-inclusive anti-bullying laws and policies, within a larger social justice framework to map contradictions. In particular, we question the efficacy of anti-bullying laws and ask how this initiative can mask the sources of punishing heteronormativity in schools and communities and potentially distract educators and others from identifying and addressing structural conditions that foster interpersonal forms of violence. We close by suggesting how and why a “queer” vision pushes those invested in LGBT lives to move beyond “equality” (or assimilation) as a goal for social justice struggles.
) ) ) Introduction
In , a -year-old boy named Lawrence (“Larry”) King was shot in the head and killed in his middle school computer lab by a classmate, Brandon McIner- ney, aged . Larry attended a weekly group for gay teens and enjoyed wearing makeup and high heels; Brandon was one of many youth and adults at Larry’s school who responded to his gender-play with aggression. Larry defended him- self by asserting his rights, and with an edgy humor: He flirted with the boys who insulted him—“It’s fun to see them squirm”—and invited Brandon to be his Valentine. A couple of days later Brandon brought a gun to school, and used it.
King’s murder was followed, in , by a concentrated and well-publicized wave of suicides by gay youth, including Tyler Clementi, Seth Walsh, Asher
Copyright © Michigan State University. Therese Quinn and Erica R. Meiners, “From Anti-Bullying Laws and Gay Marriages to Queer Worlds and Just Futures,” QED: A Journal in GLBTQ Worldmaking, Inaugural Issue (): –. ISSN -. All rights reserved.
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Brown, and Billy Lucas. These suicides, like Larry’s murder, were preceded by intense sexuality- and gender-policing interpersonal violence, and triggered a series of anti-bullying initiatives. “In response to a number of [lesbian, gay, bisexual and transgender] students taking their own lives after being bullied in school,” in late the writer Dan Savage started an online video campaign, the It Gets Better Project, which now has over , contributions. This highly visible platform, with statements from President Barak Obama, Secretary of State Hillary Clinton, Rep. Nancy Pelosi (D-CA), and a host of other politicians and celebrities, spotlighted anti-gay violence across the nation.
The high-profile media attention that focused on select (often White and male) examples of anti-gay bullying also spurred state legislatures to act. States that already had school anti-bullying programs, including character education or legislation, broadened them. For example, in , Georgia was the first state to pass an anti-bullying law; in , the state added a provision to its law that would allow “bullies” to be removed from schools. Also in , New Jersey implemented what has been described as “the strongest anti-bullying legislation in the country” after Rutgers University freshman Tyler Clementi’s suicide.
Called the “Anti-Bullying Bill of Rights,” the law requires teachers to report bullying to administrators, and school superintendents to report bullying to the State Board of Education, and allows the suspension or expulsion of students accused of bullying. In , a law criminalizing cyberbullying that specifically targets school personnel passed in North Carolina. In an effort to protect school employees this law makes it a crime for any student to post real images or make any statement online—even if it’s true—that provokes harassment. Other prohibited acts by students are signing teachers up to receive junk mail, posting pictures of teachers online, and making “fake” Web sites. In North Carolina, those who are are treated as adults under state law and therefore if convicted, a student could face days in jail or a $, fine. As we write in early ,
states (excluding only Montana) have anti-bullying laws on the books, according to the self-proclaimed watch-dog organization Bully Police USA, which defines school bullies as “small scale Terrorist[s].”
Meanwhile, despite the increased media focus on particular kinds of youth violence and focused support for anti-bullying legislation, in the last year nongender- conforming and nonheterosexual young people continued to harm and be harmed in classrooms, on playgrounds, and online. A New York -year-old, Jamey Rodemeyer, contributed a video statement to the It Gets Better archive in May and, after experiencing physical, verbal, and online harassment about his perceived sexuality, hanged himself in September . Also in , the beating of an Ohio gay teen in his classroom was captured as cellphone video footage, later uploaded to
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YouTube, and Tennessee teen Jacob Rogers, who was creative, loved Lady Gaga, and swapped clothes with girls, dropped out of school and killed himself after enduring years of anti-gay insults. On June , , Kardin Ulysse, a New York City middle-school student, was blinded in one eye after being assaulted by a group of boys shouting anti-gay taunts in the cafeteria of Roy Mann Junior High School. In , Pine Lake Elementary School (NJ) student C.O. routinely returned from school “bruised, crying, and depressed” from being verbally and physically harassed about his perceived sexual orientation. His parents asked the school to intervene in a culture of pervasive homophobia that included class- mates yelling homophobic slurs at C.O. from his own front lawn, and being called, “gay,” “fag,” and “girl” every day at school. C.O.’s parents were told that he “should attempt to ‘make new friends.’” When C.O. was assaulted on a school bus with a metal seat belt, and the school and the district still refused to intervene, the family moved and C.O. transferred to a different school. Although most of the attacks that become high-profile or receive media or other attention target gay boys, others, including trans youth in particular, are certainly not exempt from violence. In early , the parents of a transgender -year-old student at Eagleside Elementary School in Fountain, Colorado, Coy Mathias, filed a complaint with the Colorado Civil Rights Division because the school prohib- ited the first-grader from using the girls’ restroom.
These acts of interpersonal and structural heteronormativity or transphobia are neither new nor surprising. Just as misogyny and White supremacy shape the institution of schooling, heteronormativity, the structures and systems “that legitimize and privilege heterosexuality and heterosexual relationships as funda- mental and ‘natural’ within society,” is pervasive in most institutions, including schools. Fear of the queer, or all the meanings and associations attached to nonheteronormativity, leads schools to suppress teachers and creates cultures that facilitate harm toward gender nonconforming and nonheteronomative youth. Trans- and homophobic cultures are persistent, and largely still normal- ized. The presidential aspirations of Mitt Romney were not dinted by the revelation that he, as a high school “prankster,” harassed a “soft spoken” gender nonconforming peer named John Lauber. Or, more specifically, Romney’s action, which he acknowledged and apologized for decades later and only after an exposé in the Washington Post, was that because he was disgusted by Lauber— “He can’t look like that. That’s wrong. Just look at him!”—he pinned Lauber down and forcibly cut his hair. Gendered anxieties such as those that fueled Romney’s violence expand beyond classroom walls and take shape in attempts to pass anti-gay educational policies and support school cultures where heteronor- mativity and gender policing are naturalized and embedded into playgrounds
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and staff rooms. Across the United States, schools are set up for social reproduc- tion purposes; however, by definition, queers disrupt the assumption of values congruence when they are known or “out.” And even when unknown and unlabeled in schools, queers can trigger a “moral” or “sex panic.”
Gender nonconforming and nonheterosexual youth are harmed in our com- munities and in our schools. This harm is substantial and has lasting significance, and as we have briefly indicated here, select representations of the damage done to these young people have mobilized a national discussion on bullying that tentatively includes sexual orientation and occasionally gender identity, yet leaves largely unmentioned other forms of structural violence. In this article we locate and analyze the “gay wins” most noted in education, including the recent moves to establish gay-inclusive anti-bullying laws and policies, within a larger social justice framework to map contradictions. In particular, we question the efficacy of anti-bullying laws and ask how this state initiative works to mask the sources of punishing heteronormativity in schools and communities, and to distract educators and others from identifying and addressing structural condi- tions that foster interpersonal forms of violence.
We close by suggesting how and why a “queer” vision pushes those invested in LGBT lives to move beyond “equality” (or assimilation) as a goal for social justice struggles and to choose and build intra-movement organizing over single issue strategies. Queerness, as Cohen and others have articulated, is anchored by a politics of radical social transformation and responds to assessments of the “identitarian gay rights movement” with its “privatize[d] notions of identity based in the homo/hetero language of sexual orientation.” Pushing back on equality as a goal of our movements, this article argues that a queer future demands that the public, and queer critiques of the private, have the potential to challenge neoliberal agendas while also imagining and building a future in which youth are not harmed for difference.
) ) ) Our Queer Political Moment
Our analysis is shaped by Palestinian and queer activists who coined the term “pinkwashing” to refer to Israel’s attempts to brand itself a queer-friendly nation and tourist destination. Sarah Schulman, in a Op-Ed piece in the New York Times, offers this definition: “The growing global gay movement against the Israeli occupation has named these tactics ‘pinkwashing’: a deliberate strategy to conceal the continuing violations of Palestinians’ human rights behind an image of modernity signified by Israeli gay life.” As Israel advances its occupation of
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Palestine, the shift to present Israel as a model of modernity and a haven for gay lives is contrasted with what are positioned as uncivilized and homophobic Muslim neighboring communities. Israel is promoted globally as a queer tourist destination because of the nation’s gay rights, including full participation in the military and marriage. Gay rights, in this framework, functions as a shield and a form of legitimation. Pro-gay policies are used to distract audiences from identifying human rights violations, to signify a state as cosmopolitan and liberal, and as circulated by Israel, this strategy also works to suggest that Palestine and other neighboring states are uncivilized, backward, and not worthy of sover- eignty or international support.
Although this could be a potentially challenging parallel for some audiences, we argue that current circulations of gay rights in educational discourses follow similar pathways. Although uneven, the last decade has seen a number of rapid changes surrounding lesbian, gay, bisexual, transgendered, and queer (LGBTQ) lives in schools including anti-bullying policies; an increase in school-based Gay-Straight Alliances (GSAs); pro-queer uses of social media, including the It Gets Better Project and archive; policies supporting “out” LGBT teachers; LGBT-inclusive curriculums; and trans-supportive policies and practices, such as the establishment of gender- neutral bathrooms. By no means are these changes widespread or uncontested. Yet, the gains of the LGBT movements in education—including visibility, policy, cur- riculum, and climate—were almost unimaginable a decade ago.
Absolutely, considered through one frame these gains are successes. However, when these shifts are viewed through a wider landscape—specifically, the increased privatization and the criminalization of schools and communities—these “gay edu- cational wins” seem less clear-cut. As this article will chart, although more LGBT teachers are supported through local and state laws to be “out at work,” a broader context of school privatization and attacks on labor that have reduced the number of unionized teaching positions and eroded workplace rights prompt us to ask: What good are “gay educational wins” to our nation’s increasing numbers of at-will, temporary, and precarious school employees? And, what does a focus on narrowly defined gay successes obscure?
Pinkwashing and precarious work—“part-time employment, self-employment, fixed-term work, temporary work, on-call work, homeworkers, and telecommut- ing”—are contemporary phenomena that are both possible through a constel- lation of social, political, and economic shifts. Central to the last three decades of economic and political restructuring, often referred to as neoliberalism, has been the demonization of public institutions, the push to “downsize” “big govern- ment” and, somewhat contradictorily, the buildup of a carceral state. Since Ronald Reagan’s presidency, there has been a bipartisan sentiment to reduce the
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financial burden of government, to have “smarter” government, to try, para- phrasing Reagan, to “get big government off the backs of the working people.” Yet, when some politicians and their supporters describe shrinking “big govern- ment,” they mean cutting specific components of government, typically social services for the poor and people of color, while drastically inflating spending in other areas. Indeed, in their discussion of the reframing of the welfare state into a neoliberal state, Rebecca Bohrman and Naomi Murakawa outline the inter- connectedness of these seemingly divergent frameworks. “[W]elfare retrench- ment and punishment expansion represent opposite trends in state spending, but they rely on the same ideology. This ideology holds that the liberal welfare state corrodes personal responsibility, divorces work from reward, and lets crime go without punishment; consequently, the lenient welfare regime attracts opportu- nistic immigrants and cultivates criminal values.” To be anti-big government in this climate is to oppose offering welfare benefits to those with drug felony convictions, but not to oppose the establishment of the Department of Home- land Security; it means blocking spending tax dollars on public schools that educate the poor and children of color, but not on the prisons that will house the children failed by our educational system. These shifts are not coincidental or arbitrary; rather, they are the hallmarks of neoliberalism, which pursues the wholesale remaking of nation-states and economies through the intertwined practices of deregulation and privatization, thus, supposedly fueling the rise of a now unencumbered free market—which, of course, leads to the decimation of the public sphere. In this sense, neoliberalism in the United States has been forged not through coups or military might, but, as David Harvey states, through the “long march” of corporations, media, think tanks, and other powerful forces that have sought not only to change economic and political policies but the cultural understandings that ground our relationship to democracy and everyday life itself. Indeed, from pursuing deregulation and privatization to engaging in a permanent war economy to building a prison nation, these changes in economic and political spheres have prompted transformations in the “private” sphere as well, including how we understand our identities, families, emotions, and relations to the state.
Neoliberalism, in other words, is the context for this queer political moment, in which rights and resources are selectively offered, and identity discourses are used to legitimate the dehumanization and punishment of others. These frameworks of neoliberalism and pinkwashing are the larger ideological structures that shape queer lives within schools. Just as activists and scholars track the use of gay rights discourses in Israel that shield broader human rights violations from view, we argue that it is critical to examine what other economic, political, and social practices are rendered
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less visible through the state’s focus on attacking bullying in schools. And, centrally, it is vital to ask whether these state responses that criminalize bullying actually make a material difference in the lives of young people in schools and communities, or if they increase communities’ vulnerability?
) ) ) Inefficacy of Legislation and the Erasure of Complex Roots of Harm
As highlighted at the start of this article, LGBTQ young people experience persistent aggressive violence in schools, with numerous reports also highlighting the interpersonal violence that nongender-conforming and nonheteronormative students experience in schools, perpetrated by peers, teachers, and other mem- bers of staff. As another snapshot of this violence we offer just a tiny representa- tion from one of the many groundbreaking and comprehensive reports authored by the Gay, Lesbian, and Straight Education Network (GLSEN). According to the national School Climate Survey conducted by GLSEN,
● . percent of LGBT students reported being verbally harassed, . percent reported being physically harassed, and . percent reported being physically assaulted at school in the past year because of their sexual orientation;
● . percent of LGBT students reported being verbally harassed, . percent reported being physically harassed, and . percent reported being physically assaulted at school in the past year because of their gender expression;
● Nearly two-thirds (. percent) of students reported that they felt unsafe in school because of their sexual orientation, and more than a third (. percent) felt unsafe because of their gender expression.
These findings are supported at the local level through numerous smaller-scale surveys and ethnographic research.
Further, these high rates of interpersonal violence are precipitated and shaped by forms of structural or state violence. A national study of LGBT students of color, Shared Differences: The Experiences of Lesbian, Gay, Bisexual, and Transgender Students of Color in Our Nation’s Schools, also developed and sup- ported by GLSEN, identified how erasure and marginalization of LGBTQ youth of color is built into schooling:
Few LGBT students of color had access to LGBT-inclusive curricular resources in school. Less than a fifth of students had been taught about LGBT-related people, history, or events in their classes, or had such information available in
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their textbooks (% each). Furthermore, only % reported that they could access LGBT-related resources in their school library. Less than a fifth of all LGBT students of color (%) reported that their school had a comprehensive policy to address in-school harassment and assault, which provided specific protections based on sexual orientation and gender identity/expression.
This research highlights the role that the state plays to create conditions that exacerbate the potential for interpersonal violence. For example, lack of access to LGBTQ adults, teachers, and administrators who have been educated about LGBTQ rights and lives, LGBTQ-inclusive curriculum and other resources create environments in which interpersonal acts of homophobia or transphobia are rife. These linkages between structural and interpersonal violence are almost always absent from media representations of anti-gay bullying and rarely present in the legislative responses. In fact, wider community and social practices and norms, although tough to legislate, are rarely addressed in the media coverage (or the resulting legislation) focusing on gender or sexuality motivated bullying. Instead, the school, the teacher, and the students become the units of analysis and intervention.
As is clear from the snapshots of research and media coverage we present, violence is a problem and queer youth are targeted, and yet the question is framed narrowly: If not anti-bullying laws, then what? We suggest that the state’s criminalizing responses mask the complex roots of queer violence and distract audiences from understanding the importance of structural factors that facilitate and naturalize violence targeted at queers. These anti-bullying laws overwhelm- ingly work to transfer structural factors that perpetuate and reward heteronor- mativity into individual pathologies and also suggest that the way to address homophobia is to punish individual perpetrators. The majority of responses to harm in school do not make connections between forms of structural violence— including the lack of LGBT teachers and curricula—and forms of interpersonal violence.
In a related area, a number of scholar activists have come out in opposition to hate crimes legislation arguing that not only is there no evidence that the existence of hate crimes legislation functions as a deterrent to reduce biased acts of violence, but that hate crimes legislation supports a culture of punishment that distracts us from understanding how LGBTQ and other folks have found themselves punished through hate crimes legislation. The Sylvia Rivera Law Project, a national organization that works to ensure that all people are free to self-determine gender identity and expression, in a statement opposing hate crimes legislation, states:
The evidence . . . shows that hate crime laws and other “get tough on crime” measures do not deter or prevent violence. Increased incarceration does not deter
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others from committing violent acts motivated by hate, does not rehabilitate those who have committed past acts of hate, and does not make anyone safer. As we see trans people profiled by police, disproportionately arrested and detained, caught in systems of poverty and detention, and facing extreme violence in prisons, jails and detention centers, we believe that this system itself is a main perpetrator of violence against our communities.
In a culture of pervasive homo- and transphobia, hate crimes laws, like anti-bullying laws, are seductive with their promise to punish perpetrators and distract us from an examination of the complex roots of harm. Activist and journalist Liliana Segura argues that politicians who voted in favor of the Matthew Shepard Act, the
legislation that amended the Hate Crimes Act to include sexual orientation and gender identity, many of whom also voted for the Defense of Marriage Act, used their vote as an opportunity to “appear tough on crime while also appearing to support gay rights.” Further, as social justice lawyer Andrea Ritchie has identified, anti- bullying laws are “mini hate crimes laws” likely to both reflect and reinforce dominant sets of power arrangements.
In fact, recent research highlights that queer youth, the targets of hetero- “norming” violence in schools, are also more severely punished in other institu- tional settings. Angela Irvine’s research with the National Council on Crime and Delinquency demonstrates that queer youth are disproportionately repre- sented in juvenile justice systems:
At least percent of the population in juvenile detention is LGBT. Dice the numbers according to gender and the statistics get worse: percent of girls booked into detention sites across the country disclosed lesbian or bisexual sexual orientations or otherwise failed to conform to expectations of how girls should behave. Like kids of color, LGBT youth are punished more often than their straight peers.
Not only are LGBT youth overrepresented in justice systems, Irvine’s multistate research shows that LGBT youth are targeted for harsher sanctions at every level of the system:
[LGB] and gender non-conforming youth in juvenile detention were twice as likely to have a history of home removal by a social worker, placement in a group or foster home, or homelessness when compared with their straight peers. They’re also twice as likely to face detention in the juvenile justice system for running away, prostitution, sex with someone of the same gender, and minor offenses like loitering and truancy. Lesbian, gay, and bisexual (but not gender non-conforming) youth are also more likely than their straight peers to face detention for a violent offense. The harshest disparities show up in punishments for running away: percent of gay and bisexual boys are detained for running away compared with percent of straight boys, and
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percent of lesbian and bisexual girls are detained for running away compared with
percent of straight girls.
Not only is there no evidence that anti-gay bullying laws, like other forms of hate crimes legislation, will act as a deterrent toward bias-related harm, this criminalizing response circulates in a landscape where LGBT youth are already disproportionately punished by state entities tasked with ensuring our collective safety and security.
) ) ) Strengthening a Punitive and Racialized Regime
Another “gay win” frequently identified is the increase in both the focus on bullying in schools and the resulting attempts by schools to institute anti- bullying regulations. The rationale for anti-bullying laws, often presented as necessary to protect children, is seemingly hard to contest. Yet, as previously noted, instead of excavating the heteronormativity, trans- and homophobia in schools and communities, state responses to bullying define the problem nar- rowly and posit punishment and criminalization as the response. Anti-bullying laws suggest that if we removed the few bad kids that are causing problems, schools would be safer for queers. However, these initiatives are not capable of identifying and addressing social inequality. For example, a Gallup survey showed that percent of those polled are not supportive of adoptive rights for gays and lesbians, and polls showed that percent of Americans oppose marriage for gay people. Attitudes like these indicate the prevalence of social anxieties about queer people. In particular, nonnormative forms of gender identity and expression continue to receive punishment.
Without acknowledgement of the structural and institutional context—forms of state violence—the individuated anti-bullying laws and other punitive sanc- tions operating in schools will target those who are already suspect within national logics of race, class, gender, and other marginalizing categories. For example, school suspension rates for African Americans, and in particular for African American boys, are significantly higher than for their White counter- parts. As summarized in a article in an Educational Researcher article that surveyed all available national research on disciplinary sanctions,
Males of all racial and ethnic groups are more likely than females to receive disciplinary sanctions. In , only % of Asian Pacific Islander females were suspended, compared with % of Asian Pacific Islander males. Expulsion data from that same year showed that White females were half as likely to be expelled as White males (p � .), and similarly, Black females were half as likely to be
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expelled as Black males (p � .). Black males are especially at risk for receiving discipline sanctions, with one study showing that Black males were times as likely as White females to be suspended.
These gendered and racialized practices of removing students from their educational settings—the most dramatic educational sanction available—start in preschools, as indicated in a survey of states’ prekindergarten programs.,
It is important to note that available data on school suspensions and expul- sions shows that these practices do not improve youth academic or behavioral performance, and suspensions are not reserved for acts of violence or actions that might be perceived as dangerous. In their review of the research on the reasons for suspensions, Losen and Skiba found wide variations among the reasons stu- dents were suspended nationwide and identified that suspensions were not the result of violent and “serious” behavior. In one state-wide study, “only % of all out-of-school suspensions were issued for disciplinary incidents that are typically considered serious or dangerous, such as possession of weapons or drugs. The remaining % of suspensions fell into two categories: disruptive behavior and other.” Excessively punitive school disciplinary measures that disproportion- ately target the most marginalized in school contexts made national headlines in , highlighting the educational cost to young people when they are pushed out of school. Within this landscape, it is not a stretch to predict that anti-bullying laws will be unevenly implemented and that certain students will continue to be disproportionately targeted and punished.
Although all laws are intended to prevent future harm, the measures that are most powerful generally have sanction and punishment components. For exam- ple, in California made bullying illegal with the passage of passed “Seth’s Law,” yet the final version of the bill was stripped of all language mandating counseling or restorative justice practices. Rather than being proactive, the law is retroactively punitive, involving “spot checks” of schools to see if they are in compliance. New Jersey’s anti-bullying legislation tightened relationships between schools and local law enforcement, forcing schools and officials to report incidences more quickly, to create school-based anti-bullying specialists, and to increase penalties for bullying. It also provides for a Crimestoppers telephone line, “to make reporting easier, but [which] also ups the ante by involving law enforcement rather than resolving issues in the principal’s office.” Because schools are sites of surveillance that are neither race nor gender neutral, these laws entrench extant relationships to law enforcement. Criminalization in and outside of schools is a process of racialization, through which youth of color are normalized as those who are “bad” and “in trouble.” These laws falsely assume
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that law enforcement is free of violence or bullying, yet police and other security forces are often key perpetrators of sexual and other forms of violence. Finally, this turn to criminalization as a response to homophobia and punishing gender normativity augments a carceral system that is deeply flawed, fundamentally shaped by racism, and actively reproductive of heteronormativity and gender conformity. Thus, it is a “solution” that fails to effectively address the immediate problem of anti-queer school-based violence, which we argue is exacerbated by new forms of privatized schooling.
Many schools and communities across the United States are making tentative turns towards approaches to harm in schools that do not reinforce a carceral or punitive logic. In schools, these practices are often framed as restorative or transformative justice practices and include peace circles, peer juries, motiva- tional interviewing, safety labs, and other forms of relationship and community building. Rather than punishment or isolation, the overarching goals for restor- ative justice practices are to try to heal the whole community from incidents in which people were harmed and, ideally, to help prevent the same sort of harm from happening again. These programs are underfunded and underresourced in schools, but are nevertheless emerging across the United States because parents, teachers, and young people know that punitive responses not only do not work to address harm, but actually harm young people and communities.
) ) ) Costs of Privatized Education for Queers
An often unexamined linkage is that between violence targeting LGBTQ youth and the shifting working conditions of public school personnel. Although public education has always been more promise than practice, with access and resources restricted and denied for many, today it is clear that the system itself is under assault. We have discussed how anti-bullying legislation, enacted to address the real problem of violence against queer youth—and often claimed as a success in the movement for LGBTQ rights—distracts attention from other structural forms of violence. In this section, we explore the effects of public education privatization on queers, and specifically youth who experience anti-LGBTQ harm in their public schools, using our home location, Chicago, as an example.
In , the National Education Association (NEA), the nation’s largest teachers union, reported that between and it lost over ,
members and predicted that by it will lose a total of , teachers and other workers. These numbers were released as the NEA held its annual meeting in Washington, D.C., an event previously popular among Democratic
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politicians, but which President Obama decided to skip, prompting speculation about the dwindling clout of organized education labor. Indeed, between – and – the number of largely nonunionized charter schools increased from to percent of all public schools, and this growth continues
despite reports that suggest negligible gains, if any, by students enrolled in charter schools. Charter schools, initiated first in Minnesota in , were created to pilot innovative educational reform in “high need” areas. Charters are public schools that, depending on state legislation, have flexibility surrounding the school calendar, curriculum, assessments, qualifications of teachers, compensa- tion for school personnel, and more. What is central to our point is that in most states employees at charter schools, including teachers, are nonunion workers and are not protected through any form of collective bargaining. In the over
years that charter schools have existed in the United States, their presence has created parallel public school systems and the original goal of using these schools to improve or “reform” traditional systems has been abandoned.
Chicago offers an example of the effects of the national trend of expanding charters. The number of charter schools doubled in the city between and , and in , percent of Chicago schools were charters and contract schools, and there are plans to open more, all privately run, while closing public schools with teachers who are able to become members of the Chicago Teachers Union. Although there is an aggressive move by the American Federation of Teachers to unionize workers at charter schools, the overwhelming majority of teachers at charter schools locally and nationally are not unionized, and in Chicago these teachers are prevented by law from joining the Chicago Teachers Union. It is no surprise, then, that Chicago’s Mayor Rahm Emanuel, who inaugurated his tenure in Chicago by privatizing the city’s garbage collection services, has now turned his attention to privatizing education by committing to the expansion of charter schools. A nonunion workforce is flexible, docile, and cheaper.
The increase in charter schools started prior to the presidential election, but the Obama administration’s Race To The Top (RTTP) legislation of
supported and accelerated the development of privatized education settings and organizations: RTTP linked state funding for education to the approval of charter schools. The backdrop for this funding scheme and the ongoing loss of unions and unionized workers is globalized free enterprise that endorses the worldwide replacement of public systems with private sector solutions.
Privatizing public spaces and institutions has long required the production of disposable identities as targets for anger and disgust. In dismantling welfare and public education, the targeting and dehumanizing of benefit recipients calls the
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legitimacy of a public institution or program in question and asserts the impor- tance of market-driven regulation. In current education policy, the image of the lazy, negligent, unionized female teacher has emerged as a figure to despise.
Beyond the educational work site and the profession of teaching, the workplace picture is grim. In January , the Bureau of Labor Statistics released data on rates of unionization in the United States “falling to . percent of the American work force in .” As queer employment activist and lawyer Richard Blum notes, the current labor reality is anti-union and anti-worker.
Unions represent less than percent of private-sector workers and fewer and fewer public sector workers. The few unions that remain often find themselves bargaining over how much will be cut. Where there are no unions, there is no one in the institutional role of shop floor watchdog, whether that “shop floor” is in a factory, an office, a restaurant or caterer, a school, a hospital or nursing home, a theater, or anywhere else that workers work. Arbitrary and abusive conduct, no matter how illegal, has no institutional check where there is no union.
We’ve taken the time to present a snapshot of the employment context for today’s education workers as a reminder that schools are increasingly sites of unprotected and temporary labor. Are teachers and other adults likely to advocate for queer youth and take other, often related, unpopular positions without rights to due process? Our own research indicates that they may not, leaving schools without “out” LGBTQ teachers and staff, advocates for queer youth, and facilitators for Gay Straight Alliances and other clubs supportive of youth exploring gender and sexuality. For example, in one Chicago charter high school with many LGBTQ-identified staff and faculty members, after the Board of Directors instituted a policy that forbade employees from talking about their “personal lives” at school, the lesbian advisor to the Gay Straight Alliance removed herself from that position. No other employee could be found to take on the role, and the previously active student club was disbanded.
From our experiences working and teaching in urban public schools and learning alongside both new and veteran teachers, we know that teachers are not lazy and incompetent workers who care little about children. What we observe is teachers negotiating the challenge of isolation in their profession, working hard to not let standardized tests dominate their curriculum, and struggling to support students who are growing up in communities devastated by decades of poverty, policing, and disenfranchisement. Yet, even with these conditions, we recognize
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that teachers are not unlike other workers. Employees in all sectors are often fearful of engagement beyond their daily tasks. Teachers, who already work long days—research shows that Chicago’s teachers work nearly hours each week— are reluctant to take stands on potentially controversial issues, worried about not being hired or promoted if they are “out” or “too gay,” and concerned that their principals might single them out for retribution; if they work at will, they will have little or no right to due process in these cases.
Yet, employment protections do not guarantee that teachers will speak out against compulsory heteronormativity, or include LGBTQ curriculum in courses. In our work assessing teacher education and social work programs in Illinois for inclusion of LGBTQ lives in policies, in content in curricula and an LGBTQ presence on campus, we know that teacher educators feel poorly prepared to address sexual orientation and gender identity, and that many programs include little or no information in these areas. In this context, it isn’t surprising that teachers may find addressing heteronormativity, homopho- bia, and related topics in their classrooms difficult. For us, this reinforces the fact that the employment protections offered by labor unions are crucial: they offer a measure of protection and collective support that create working conditions that would increase the possibility that workers could support social justice.
Although our discussion focuses on queer lives in schools, always through an intersectional lens, good working conditions built through collective bargaining have the potential to shape justice struggles and affect many communities. Although queer lives and views may be inflammatory in schools, there is an abundance of research showing that Black and Brown youth, disabled and immigrant children, girls, and others who have been rendered vulnerable socially suffer in educational, as well as other institu- tional settings and that they and queer youth are targeted for punishment and other abuses at rates disproportionate to their numbers. As we write this article, a report issued jointly by the American Civil Liberties Union and the NAACP in January details the harsh punishment, from paddlings to arrests, meted out to African American students in Mississippi, with youth subjected to police interventions for “offences” including peanut fights, flatulence, and dress code violations. The research has not yet been completed that will show how “right to work” laws that make it difficult for labor to organize, and shape how education employees feel able (or not) to identify and amend unjust school conditions. Yet, it seems safe to claim, that students will benefit when school employees have workplace protections that foster speech, independent thinking, and advocacy, not fear of job loss.
From Anti-Bullying Laws and Gay Marriages to Queer Worlds and Just Futures )
) ) ) From Equality to Liberation
The increased legitimacy and limited success of LGBT rights-based movements in the United States (and beyond) motivate us, and other allies, to step back and engage in a critical assessment of LGBT and other social justice organizing. By legitimacy, one example is Hillary Clinton’s contribution of a video statement to the It Gets Better Project online archive, “Tomorrow will be better,” and her statement in Geneva, in December , that “Gay rights are human rights, and human rights are gay rights,” at which time she announced a new $ million “global equality fund” for LGBT people worldwide. Just a few months later, in June , Clinton made a special statement of support for gay people in honor of the LGBT Month that President Obama had just made official. By Decem- ber , blogs were buzzing that soon Clinton would also endorse gay marriage.
Clinton’s statements and actions, through one framework, denote a gay success. Lesbian and gay lives are on the agenda of the U.S. Secretary of State. But, simultaneously, these steps toward recognition and legitimacy are the moments when LGBTQ movements must step back and assess: what are our goals? Equality—or full participation in the status quo—or liberation and collective transformation? We argue that over the last years the focus of mainstream lesbian and gay organizations in the United States, although never monolithic, has been assimilation, characterized by a prioritization of issues such as full and equal participation in the military and marriage. Along with many other grassroots justice organizations across the United States, including Queers for Economic Justice, the Sylvia Rivera Law Project, and Gender JUST, we question this focus. Although marriage brings with it a host of benefits, this access is offered at a moment when fewer individuals receive any state support or protection. Readers, we are sure, can name the markers of our crumbling public sphere: Ongoing struggles to access quality and affordable health care; the decimation of unions and concurrent explosion of contingent and “just in time” workers without any benefits; the eradication of public housing and challenges to rent control; the continued denial of child care and parental leave benefits. And who can forget drone strikes? Beginning in , strikes by the driverless aerial vehicles initiated by the Obama administration and endorsed by the U.S. Secretary of State Clinton have killed thousands of civilians, including children, in Pakistan, Yemen, and other parts of the world, even as these attacks have been described as a “mass torture” of residents of these and other countries. For us, the narrow goal of equality pursued by mainstream lesbian and gay organizations signifies acceptance of an unequal and unjust world.
( Therese Quinn and Erica R. Meiners
This trade-off, of goodies for some and crumbs for many (against the back- ground noise of drones), has never been more apparent than in schools. With stalled and impoverished conversations of the state’s abandonment of any form of wealth redistribution for K– public education, frontal assaults on teacher’s unions, bipartisan support of the privatization of schools through charters, consistently “disproportionately” high suspension and expulsion rates for Black and Latino/a students, LGBT educational justice movements are being officially invited to partially participate, and to de facto legitimate this “new normal” in education. It is at these moments, when those outside the dominant paradigm are promised access to power, that critical engagement and analysis are vital. As Audre Lorde noted, “There is no such thing as a single-issue struggle because we do not live single-issue lives.” Her statement and work remind us to link our permanent war economy to movements for queer rights and the emergent “pro gay” domestic policies to practices beyond our borders. In particular, as one of our sites of organizing and research is the public school, we apply this lens to public education. Gay equality might mean a network of strong and punitive anti-bullying laws, but an agenda of queer liberation and transformation trans- lates into building up democratic and well-resourced public schools in flourish- ing communities that are invested in challenging heteronormativity and other injustices.
The importance of critical engagement and reflexivity is heightened as select gay and lesbians are afforded political and economic privileges. As an example, opens with a report that David Blankenhorn, a conservative “traditional- marriage” activist who is a member of the Institute for American Values, is reorienting the work of his organization from opposition to “gay marriage” to broad-based pro-marriage advocacy that “bring[s] together gays and lesbians who want to strengthen marriage with heterosexuals who want to do the same.” A platform document issued by the Institute shifts attention from the immorality of queers to the impoverished values of the poor, noting that, “marriage is rapidly dividing along class lines” and asking, “What economic policies strengthen marriage?” and “What marriage policies create wealth?” Rich queers who want to marry, this formulation implies, aren’t the problem they were previously identified as; instead, the destroyers of “American values” are the economically unstable who increasingly choose not to marry. Again, assimilation is the goal for organizations such as the Institute for American Values; gays who get with “traditional” programs of wealth accumulation and gay marriage are just fine.
Recent work in queer theory that locates sexuality in practices of citizenship, statehood, and nationalism points to the demand for assimilation as a retraction of rights and, more important, as an acquiescence to deeply problematic
From Anti-Bullying Laws and Gay Marriages to Queer Worlds and Just Futures )
constructions of the state. “The collaboration between heteronormativity and patriotism allows for certain forms of queerness (or sexual ‘deviance’) to be incorporated into the project of national reproduction while others are rendered continually abject, unworthy, or unable to be assimilated into either hetero- or homonormative citizenship.” Following this logic, if you support the military, are prepared to “cover” and pass as if you do, or engage in marriage, home ownership, two-parent families, monogamy, and massive consumption, and in other “coverings” of difference or indicators of alignment with normative ways of living, you are worthy of incorporation into the state and might even be eligible for some social protections. If not? Oh, well, too bad—your family forms, living arrangements, and more will now be disparaged and framed as unworthy of support.
These trajectories towards state power and protection are not new and LGBTQ activists must continue to engage in a close examination of interrelated social movements that have faced similar tensions. We can point to the domestic violence movement as a telling example: Why—with thousands of shelters for women, training for police on how to recognize domestic violence, and eight professional journals that publish scholarship on violence against women—are women, particularly those of color, still harmed by men? Why are our prisons and courts overflowing with poor people—including our Black, First Nations, Latino/a, noncitizen, and queer neighbors—and yet people do not feel any safer? And how is it that the multiple and overlapping forms of violence that affect many marginalized women—particularly transwomen and Black, Latina, First Nations, queer, and disabled women—do not count as an alarming national epidemic of violence and ongoing harm?
) ) ) Building Queer and Just Futures
Because the state offers limited support of select gay lives, it is vitally important to examine what is masked or erased by moves toward assimilation and the accrual of limited rights. Our previous examples highlight how increased em- ployment protections for gay teachers and anti-bullying policies are more com- plex and less clear as successes when these gains are analyzed in a wider landscape. We have argued in this article that we must acknowledge the ways that youth are harmed by anti-LGBTQ bullying, that they need assistance, including social services, in the immediate moment; and we must also link these painful and damaging individual experiences to social structures, including heteronormativ- ity, misogyny, and transphobia, that foster violence. Further, we have used
( Therese Quinn and Erica R. Meiners
intersectional framing to insist that anti-bullying legislation is not just ineffec- tive, it supports institutions that reflect and reproduce racism, gender confor- mity, and class oppression. Bullying is pervasive; it is rampant in our schools and on our streets, within our places of employment and throughout our legal and judicial systems, and conveyed daily in our media and through corrosive dis- course that labels some young people, in the United States and across the globe, “terrorists,” and others “fags,” “dykes,” and “intrinsically disordered.” The violence is real and rife; addressing bullying demands immediate action, and also systemic analysis. Without this, our remedies are more likely to be flawed: Anti-bullying legislation advances criminalization as a response, but this neither addresses the root causes of harm nor creates safer schools for all, including queer youth. Short-term solutions that mask the real damage and potentially expand the problem are not solutions at all.
Because the stakes are so high, it is critical that we remember the strength of coalition politics, and of inter- and intra-movement organizing: Our strategies are more powerful when we listen to and work with each other. LGBTQ liberation work includes challenging what the state frames as a “gay” issue (e.g., marriage or bullying), and insisting that good working conditions for teachers are good learning environments for teachers, as the Chicago Teachers Union argued as it built toward its successful strike, but also flourishing living conditions for queers. In other words, LGBTQ justice depends on justice for others; our oppression and our freedom is linked.
Seneca Falls, Selma, Stonewall—these uprisings and affiliated justice move- ments, invoked by President Obama in his inaugural address, pushed back against the politics of patriarchy, White supremacy, and trans- and homophobia that structure our everyday lives and institutions, from schools to courtrooms, and fought to see these systems dismantled. To continue this work today is to not settle for the status quo or the crumbs offered but to put “our queer shoulders to the wheel,” to quote Allen Ginsberg, exercising our radical imaginations and working together to build the world we need.
In our schools, we might start by remembering and teaching the complexities of our radical queer history: The communist, pacifist strategist of the Civil Rights Movement, Bayard Rustin. The fabulous Harry Hay, who used skills he learned through labor organizing and in the Communist Party USA to co-found the Mattachine Society, the Gay Liberation Front, and the Radical Faeries. And Sylvia Rivera, the transgendered Latina sex worker involved in the Stonewall uprising who spoke powerfully against police repression and police brutality. And Adrienne Rich’s life of resistance, exemplified by her refusal to accept the National Book Award as an individual, instead claiming the award with her
From Anti-Bullying Laws and Gay Marriages to Queer Worlds and Just Futures )
other fierce, queer artist, and activist nominees, Alice Walker and Audre Lorde. These people remind us of the power of community, and of the importance of learning across locations of struggle.
Yet, our work extends beyond teaching about and learning from our queer elders and predecessors to include yet-to-be imagined tactics developed in the moment. We are enlivened by and try to see queer justice organizing in schooling as a part of a contemporary flare up of radical anti-racist, feminist, anti-capitalist queer scholarship produced by thinkers tied to racial, economic, and queer justice organizations such as Communities United Against Violence in San Francisco or the Transformative Justice Law Project in Chicago, that interrupt the politically narrowing moves of mainstream gay and lesbian movements, including the march towards “gay marriage.” We are also energized by networks of youth, parents, and teachers from Los Angeles to Atlanta, who are speaking out and pushing back against punishing and undemocratic schools, communi- ties, and organizations. The work can seem daunting and the interconnections endless, but many of these groups—including the Caucus of Rank and File Educators (CORE), the leadership of the Chicago Teachers Union that is committed to racial, gender, and economic justice, and democracy in action for its members; and New York’s Audre Lorde Project, organizing to make commu- nities safer and stronger for LGBTQ youth of color—offer rich, radical visions and models that should inform our efforts to build queer and just futures.
We close with a caution and a return to the use of queer as a verb: The apparent clarity and unassailability of demands for equality in education and everywhere else is an illusion. A queer vision must recognize the rightness of Audre Lorde’s reminder that humanness is never simple; we are linked to each other. This understanding pushes those invested in LGBTQ lives to move beyond equality, which is necessary, but never sufficient, as a goal for our social justice struggles.
N O T E S
Acknowledgement: We work alongside many, within and outside organizations, only some of which are referenced in this article. We are humbled and enlivened by these communities, always generative, and look forward to continued pleasures, challenges, and labors.
. Our name order reflects a publishing rotation and not an authorship hierarchy; this is a cowritten article.
. Rebecca Cathcart, “Boy’s Killing, Labeled a Hate Crime, Stuns Town,” New York Times, February , , http://www.nytimes.com////us/oxnard.html.
. Ramin Setoodeh, “Young, Gay and Murdered,” U.S. News, July , , http:// www.thedailybeast.com/newsweek////young-gay-and-murdered.html.
( Therese Quinn and Erica R. Meiners
. It Gets Better Project, “What is the It Gets Better Project?,” March , , http:// www.itgetsbetter.org/pages/about-it-gets-better-project/.
. Bully Police USA, “What is a School Bully?,” March , , http://www.bullypolice.org/. . Education Law Center, “Bullying,” March , , http://www.edlawcenter.org/issues/
bullying. html. . Matt Friedman, “Senate Pass ‘Anti-bullying Bill of Rights’ in Wake of Tyler Clementi’s
Death,” New Jersey Assembly, November , , http://www.nj.com/news/index.ssf/ //nj_assembly_ passes_anti-bullyi.html.
. Lisa Miller, “Cyberbullying Law Shields Teachers From Student Tormentors,” WBEZ: National Public Radio, February , , http://www.npr.org//// /cyber-bulling-law-shields-teachers-from-student-tormentors.
. Bully Police USA, “Georgia,” March , , http://www.bullypolice.org/ga_law.html. . Dean Praetorious, “Jamey Rodemeyer, -year-old Boy, Commits Suicide After
Gay Bullying, Parents Carry on Message,” Huffington Post, September , , http://www.huffingtonpost.com////jamey-rodemeyer-suicide-gay- bullying_n_.html.
. Tony Gonzalez, “Stunned Community Looks for Justice After Gay Teen’s Suicide,” Tennessean, December , , http://www.tennessean.com/article// NEWS//Stunned-community-looks-justice-after-gay-teen-s-suicide; Jason Shaw, “Ohio gay teen beaten in class,” October , : http:// technorati.com/lifestyle/article/ohio-gay-teen-beaten-in-class/.
. Julie Cannold, “Teen Says Bullies Beat Him, Sues New York Schools,” CNN Justice, June , , http://www.cnn.com////justice/new-york-bullying- attack-blind.
. Cheryl Armstrong, “Heartbreaking School Bullying Complaint,” Courthouse News Service, June , , http://www.courthousenews.com////.htm.
. Armstrong, “Heartbreaking School Bully.” . Colleen O’Connor, “Colorado Parents of Transgender st-grader File Complaint Over
Restroom Ban,” Denver Post, February , , http://www.denverpost.com/breakingnews/ ci_/transgender-fountain-st-grader-banned-from-girls- bathroom#ixzzMCIfuO.
. Cathy J. Cohen, “Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?” in Black Queer Studies. A Critical Anthology, ed. E. Patrick Johnson and Mae G. Henderson (Durham, NC: Duke University Press, ), .
. Jason Horowitz, “Mitt Romney’s Prep School Classmates Recall Pranks, But Also Troubling Incidents,” Washington Post, May , , http://www.washingtonpost. com/politics/mitt-romneys-prep-school-classmates-recall-pranks-but-also- troubling-incidents////gIQAWOKFU_print.html.
. Horowitz, “Mitt Romney’s Prep School Classmates.” . Eric Rofes, A Radical Rethinking of Sexuality and Schooling: Status Quo or Status
Queer? (Lanham, MD: Rowman & Littlefield Publishers. Inc, ), .
From Anti-Bullying Laws and Gay Marriages to Queer Worlds and Just Futures )
. We use “queer” in two ways—as an adjective and as a noun that can, and here does, refer to all sexualities and gender identities that are outside and challenging of normative, binary categories. We also invoke the radical form of queer that Mary Bryson and Suzanne de Castell, Cohen, and others have urged, as a verb, or a stance and tactic that assumes and honors human complexities and demands action toward ending oppressive social systems that limit our gendered, sexual, and creative lives. Mary Bryson and Suzanne de Castell, “Queer Pedagogy: Praxis Makes Im/Perfect,” Canadian Journal of Education/Revue canadienne de l’éducation (): –; Cohen, “Punks, Bulldaggers, and Welfare Queens.”
. Cathy J. Cohen, “Race and Queer Theory in the Age of Obama,” Lecture, ICI Berlin, June .
. Michael Warner, Publics and Counterpublics (New York: Zone Books, ), . . Sarah Schulman, “Israel and ‘Pinkwashing,’” New York Times, November , ,
http://www.nytimes.com////opinion/pinkwashing-and-israels-use-of-gays- as-a-messaging-tool.html?_r�.
. Suzanne Eckes and Martha McCarthy, “Teachers’ Privacy Rights: A Legal Memorandum,” Quarterly Law Topics for School Leaders (): –.
. “At-will” is an employment status that means an employee can be terminated without notice, at any time, for any nondiscriminatory reason. Further, employers can change terms of employment at any time. National Conference of State Legislatures, “The At-Will presumption and exceptions to the rule” (): para. – , http://www.ncsl.org/issues-research/labor/at-will-employment-overview.aspx.
. Judy Fudge and Rosemary Owens, “Precarious Work, Women, and the New Economy: The Challenge to Legal Norms,” in Precarious Work, Women, and the New Economy, ed. Judy Fudge and Rosemary Owens (Oxford: Hart, ), –.
. Rebecca Bohrman and Naomi Murakawa, “Remaking Big Government: Immigration and Crime Control in the United States,” in Global Lockdown: Race, Gender, and the Prison-Industrial Complex Global Lockdown: Race, Gender, and the Prison-industrial Complex, ed. Julia Sudbury (New York: Taylor and Francis, ), .
. David Harvey, A Brief History of Neoliberalism (New York: Oxford University Press ), .
. Joseph G. Kosciw, Emily A. Greytak, Elizabeth M. Diaz, and Mark J. Bartkiewicz, “The National School Climate Survey: The Experience of Lesbian, Gay, Bisexual and Transgendered Students in Our Nation’s Schools,” GLSEN, http:// www.glsen.org/cgi-bin/iowa/all/news/record/.html.
. Kosciw, Greytak, Diaz, and Bartkiewicz, “The National School Climate Survey.”
. C. J. Pascoe, Dude, You’re a Fag: Masculinity and Sexuality in High School (Berkeley and Los Angeles: University of California Press, ); Lance T. McCready, Making Space for Diverse Masculinities: Difference, Intersectionality, and Engagement in an Urban High School (New York: Peter Lang, ).
( Therese Quinn and Erica R. Meiners
. Elizabeth M. Diaz and Joesph G. Kosciw, “Shared Differences: The Experience of Lesbian, Gay, Bisexual, and Transgender Students of Color in Our Nation’s Schools,” GLSEN, January , : , http://www.glsen.org/cgi-bin/iowa/all/ news/record/.html.
. Liliana Segura, “Do Hate Crimes Laws Do Any Good?” Alternet, August , , http://www.alternet.org/story//do_hate_crime_laws_do_any_good/? page�entire; Dean Spade, “Keynote Address: Trans Law and Politics on a Neoliberal Landscape,” Temple Political and Civil Rights Law Review (): –.
. Sylvia Rivera Law Project, “SLRP on Hate Crime Laws,” (), http://srlp.org/ our-strategy/policy-advocacy/hate-crimes/.
. Segura, “Do Hate Crimes.” . Andrea Ritchie, “Arrested Justice: A Conversation on Black Women, Violence, and
America’s Prison Nation,” Experimental Station, Chicago, IL, December , . . Kathryn E. W. Himmelstein and Hannah Bruckner, “Criminal-Justice and School
Sanctions against Nonheterosexual Youth: A National Longitudinal Study,” Pediatrics (): –; Angela Irvine, “LGBT kids in the prison pipeline,” May , , http://thepublicintellectual.org////lgbt-kids-in-the-school-to- prison-pipeline/.
. Irvine, “LGBT kids.” . Ibid. . Susan Page, “Poll: Attitudes towards gays changing fast,” USA Today, December ,
, http://www.usatoday.com/story/news/politics////poll-from-gay-marriage- to-adoption-attitudes-changing-fast//.
. Rebecca L. Stotzer, “Violence against Transgender People: A Review of United States Data,” Aggression and Violent Behavior (): –; Shannon E. Wyss, “‘This Was My Hell’: The Violence Experienced by Gender Non-Conforming Youth in U.S. High Schools,” International Journal of Qualitative Studies in Education (): –.
. Russell J. Skiba, Robert S. Michael, Abra Carroll Nardo, and Reece Peterson, “The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment,” Urban Review (): –; U.S. Department of Education, “Elementary and secondary school survey ,” (); Skiba et al., “The Color of Discipline.”
. Anne Gregory, Russell J. Skiba, and Pedro Noguera, “The Achievement Gap and the Discipline Gap: Two Sides of the Same Coin?” Educational Researcher
(): . . In one study of states’ prekindergarten programs published in , boys were
expelled at a rate over more than . times that of girls. African Americans attending state-funded prekindergarten were about twice as likely to be expelled as Latino/a and Caucasian children, and more than five times as likely to be expelled as Asian-American children; William Gilliam, “Prekindergarteners Left Behind:
From Anti-Bullying Laws and Gay Marriages to Queer Worlds and Just Futures )
Expulsion Rates in State PreKindergarten Programs,” FCD brief series No. , May :, http://www.fcd-us.org/PDFs/ExpulsionFinalProof.pdf.
. Gilliam, “Prekindergarteners Left Behind,” . . Daniel J. Losen, and Russell J. Skiba, “Discipline Policies, Successful Schools, and
Racial Justice,” The Civil Rights Project/Proyecto Derechos Civiles at UCLA, National Education Policy Center, Boulder, CO, October, .
. Losen and Skiba, “Discipline Policies.” . Ibid., . . Losen and Skiba, “Discipline Policies”; Alan Schwarz, “School Discipline Study
Raises Questions,” New York Times, http://www.nytimes.com//// education/discipline.html; Himmelstein and Bruckner, “Criminal Justice and School Sanctions.”
. Jens Erik Gould, “Seth’s Law: Can a Bullied Boy Leave California a Legal Legacy?,” Time, http://www.time.com/time/nation/article/,,,.html.
. Winnie Hu, “Bullying Law Puts New Jersey Schools on Spot,” New York Times, August , , http://www.nytimes.com////nyregion/bullying-law-puts- new-jersey-schools-on-spot.html?pagewanted�all.
. Damon T. Hewitt, Catherine Y. Kim, and Daniel J. Losen, The School to Prison Pipeline: Structuring Legal Reform (New York: New York University Press, ).
. Amanda E. Lewis, Race in the Schoolyard: Negotiating the Colorline in Classrooms and Communities (New Brunswick, NJ: Rutgers University Press, ); Angela Davis, Are Prisons Obsolete? (New York: Seven Stories Press, ); Ann Arnett Ferguson, Bad Boys: Public Schools and the Making of Black Masculinity (Ann Arbor: University of Michigan Press, ).
. Beth Richie, Arrested Justice: Black Women, Male Violence and the Build-up of a Prison Nation (New York: New York University Press, ).
. Jane Hereth, Mariame Kaba, Erica R. Meiners, and Lewis Wallace, “Restorative Justice Is Not Enough: School Based Interventions in the Carceral State,” in Disrupting the School-to-Prison Pipeline, ed. S. Bahena, P. Kuttner, and M. Ng (Cambridge, MA: Harvard Educational Review, ).
. William H. Watkins, ed., The Assault on Public Education: Confronting the Politics of Corporate School Reform (New York: Teachers College Press, ).
. Greg Toppo, “USA’s Top Teacher’s Union Losing Members,” USA Today, July , , http://usatoday.usatoday.com/news/education/story/--/Teacher- unions-education//.
. Toppo, “USA’s Top Teacher’s Union.” . National Center for Education Statistics, “Fast facts: Charter schools,” The
Condition of Education 2012, http://nces.ed.gov/fastfacts/display.asp?id�. . Gary Miron and Brooks Applegate, “Multiple Choice: Charter School Performance in
States,” Center for Research on Education Outcomes (CREDO), June, , http://greatlakescenter.org/docs/Think_Twice/TT_Miron_CREDO.pdf.
( Therese Quinn and Erica R. Meiners
. Pauline Lipman, “Neoliberal Urbanism, Race, and Urban School Reform,” in The Assault on Public Education: Confronting the Politics of Corporate School Reform, ed. W. Watkins (New York: Teachers College Press, ), –; Diane Ravitch, The Death and Life of the Great American School System: How Testing and Choice are Undermining Education (New York: Basic Books, ), .
. Anistasia Ustinova, “Charter-School Growth Fuels Chicago Teacher Fears,” Bloomberg Business Week, September , , http://www.businessweek.com/news/ --/charter-school-growth-fuels-chicago-teacher-fears.
. Becky Vevea, “The Proportion of Privately Run Chicago Public Schools to Increase,” WBEZ, December , , http://www.wbez.org/news/proportion- privately-run-chicago-public-schools-increase-.
. Mike Klonsky, “We’re Public . . . No, We’re Private,” In These Times, July , , http://www.inthesetimes.com/article//were_public_ . . . _no_were_private/.
. Linda Lutton, “ New Chicago Schools in Years . . . Again,” WBEZ, May , , http://www.wbez.org/news/education/-new-chicago-schools--yearsagain- .
. U.S. Department of Education, “States Open to Charters Start Fast in ‘Race to Top,’” December , , http://www.ed.gov/news/pressreleases/// a.html.
. Manfred B. Steger and Ravi K. Roy, Neoliberalism: A Very Short Introduction (New York: Oxford University, ).
. Lisa Duggan, The Twilight of Equality?: Neoliberalism, Cultural Politics, and the Attack on Democracy (Boston: Beacon Press Books ).
. Because percent of all teachers are women, we flag that not only is the attack on teachers an attempt to weaken or dismantle labor unions, it is also a gendered assault, as a editorial in Rethinking Schools highlighted: “The decimation of teachers’ unions and tenure structures seems aimed at forcing K– teaching back to the era before teaching became a profession, when young women—barely trained and constrained by regulations enforcing their clothing, living situations, and drinking—taught for a few years before they got married.” “Rethinking Schools Editors, The New Misogyny: What it Means for Teachers and Classrooms,” Rethinking Schools (Summer, ): para. , http:// www.rethinkingschools.org/archive/_/edit.shtml.
. Steven Greenhouse, “Union Membership Rate Fell Again in ,” New York Times, January , , http://topics.nytimes.com/top/reference/timestopics/ people/g/ steven_greenhouse/index.html ?inline�nyt-per.
. Richard Blum, “Equality with Power: Fighting for Economic Justice at Work,” A New Queer Agenda (): para. , http://sfonline.barnard.edu/a-new-queer- agenda/equality-with-power-fighting-for-economic-justice-at-work/.
. Therese Quinn, “‘You make Me erect!’: Queer Girls of Color Negotiating Heteronormative Leadership at an Urban All-Girls’ Public School,” Journal of Gay and Lesbian Issues in Education (): –.
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. Robert Bruno, Steven Ashby, and Frank Manzo, “Beyond the Classroom: An Analysis of a Chicago Public School Teacher’s Actual Workday,” University of Illinois at Urbana-Champaign, April , , http://www.ler.illinois.edu/labor/ images/Teachers%Activity-Time%Study%%%%-Final.pdf.
. Stacey S. Horn, Pamela Konkol, Kathleen McInerney, Erica R. Meiners, Connie North, Isabel Nuñez, Therese Quinn, and Shannon Sullivan, “Visibility Matters: Policy Work as Activism in Teacher Education,” Issues in Teacher Education
(Fall ): –. . Himmelstein & Bruc̈kner, “Criminal Justice and School Sanctions”; Tamar Lewin,
“Black Students Face More Discipline, Data Suggests,” New York Times, March , , http://www.nytimes.com////education/black-students-face-more- harsh-discipline-data-shows.html?_r�; Irvine, “LGBT kids in the prison pipeline.”
. “Handcuffs on Success: The Extreme School Discipline Crisis in Mississippi Schools,” January , http://naacpms.org/wp-content/uploads///Handcuffs-on-Success.pdf.
. Statevideo, “Tomorrow will be Better,” YouTube video, :, October , : http://www.youtube.com/watch?v�zXBpWGCDtY.
. Alex Alvarez, “Hillary Clinton Tells Diplomats in Geneva that ‘Gay Rights are Human Rights,’” MEDIAite, December , , http://www.mediaite.com/online/ hillary-clinton-tells-diplomats-in-geneva-that-gay-rights-are-human-rights/.
. Annie Pei, “Hillary Clinton’s Gay Pride Month Message: ‘We Will Not Rest Until Equal Rights Are a Reality,’” MEDIAite, June , : http://www.mediaite.com/online/hillary- clintons-gay-pride-month-message-we-will-not-rest-until-equal-rights-are-a-reality/.
. Paul Constant, “Hillary Clinton Will Soon Support Gay Marriage,” SLOG News and Arts, November , , http://slog.thestranger.com/slog/archives//// hillary-clinton-will-soon-support-gay-marriage.
. Queers for Economic Justice, http://qej.org/. . The Sylvia Rivera Law Project, http://srlp.org/. . Gender JUST, http://www.genderjust.org/. . New American Foundation, “Counterterrorism Strategy Initiative,” http://
counterterrorism.newamerica.net/drones/; Robert Greenwald, “U.S. Drone Strikes Are Causing Child Casualties: Report and Video,” Huffington Post, December , , http://www.huffingtonpost.com/robert-greenwald/us- drone-strikes-are-caus_b_.html; Ayobami Olugbemiga, “The Mass Torture of Drone Strikes,” Washington Times, December , , http://communities. washingtontimes.com/neighborhood/elections-fastbreak//dec//mass-torture- drone-strikes/; Adam Salazar, “Clinton Wants More Drone Surveillance Technology to Find Kony,” Info Wars, August , , http://www.infowars.com/clinton-wants-more- powerful-drone-surveillance-technology-to-find-kony/.
. Audre Lorde, Sister Outsider: Essays and Speeches (New York: Crossing Press, ), .
( Therese Quinn and Erica R. Meiners
. Mark Oppenheimer, “In shift, activist enlists same-sex couples in a pro-marriage coalition,” New York Times, January , : para. .
. Oppenheimer, “In shift,” para. , . . Kathryn Edin, and Maria Kefalas, Promises I Can Keep: Why Poor Women Put
Motherhood Before Marriage (Berkeley: University of California Press, ). . Anna M. Agathangelou, Daniel M. Bassichis, and Tamara L. Spira, “Intimate
Investments: Homonormativity, Global Lockdown, and the Seductions of Empire,” Radical History Review (): –; Jasbir Puar, Terrorist Assemblages: Homonationalism in Queer Times (Durham, NC: Duke University Press, ); Duggan, Twilight of Equality.
. Agathangelou, Bassichis, and Spira, “Intimate Investments,” . . Richie, Arrested Justice. . Will Saletan, “Gland inquisitor: Pope Benedict’s anti-gay tendencies,” Slate,
November , : para. , http://www.slate.com/articles/health_and_science/ human_nature///gland _inquisitor.html.
. Alan Ginsberg, Howl and Other Poems (San Francisco: City Lights Book, ), .
)))
Therese Quinn is Associate Professor of Art History and director of the Museum and Exhibition Studies Program at the University of Illinois at Chicago. She writes about the arts and cultural institutions as sites for democratic engagement and justice work; contributes a regular column to Yliopisto, the magazine of the University of Helsinki; and is a founding member of Chicagoland Researchers and Advocates for Transformative Education (CReATE, create.bogspot.com). Her most recent books, all collaboratively written and edited, are Art and Social Justice Education: Culture as Commons (Routledge, ), Sexualities in Education: A Reader (Peter Lang, ), and Teaching Toward Democracy (Paradigm, ).
Erica R. Meiners is Professor of Gender and Women’s Studies and Education at Northeastern Illinois University. She is the author of several books about educational, queer and anti-prison justice struggles including Flaunt It! Queers Organizing for Public Education and Justice (), Right to Be Hostile: Schools, Prisons and the Making of Public Enemies (), and articles in AREA Chicago, Meridians, Academe, Social Justice, Women’s Studies Quarterly and No More Potlucks. Her work is supported by funds and awards from national and local organizations such as the Illinois Humanities Council, Woodrow Wilson Foundation for Public Scholarship, Atlantic Philanthropies and the U.S. Department of Education. She is a member of her labor union, University Professionals of Illinois, and actively involved in a number of nontraditional and popular education projects.
From Anti-Bullying Laws and Gay Marriages to Queer Worlds and Just Futures )
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The Unintended Tax Advantages of Gay Marriage Seto, Theodore P Washington and Lee Law Review; Fall 2008; 65, 4; ProQuest Central pg. 1529
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Lesbian, Gay, Bisexual, and Transgender Families Biblarz, Timothy J;Savci, Evren Journal of Marriage and Family; Jun 2010; 72, 3; ProQuest Central pg. 480
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Gay RiGhts: Why DemocRacy matteRs
Omar G. Encarnación
Omar G. Encarnación is professor and chair of political studies at Bard College. He is the author of Latin America’s Gay Rights Revolu- tion, forthcoming from Oxford University Press.
Even before the year 2013 was officially over, gay activists were al- ready declaring it “the gayest year in gay history.” Barack Obama, hailed by Newsweek as “America’s First Gay President,” got the year off to an auspicious start in January by becoming the first U.S. president ever to make reference to gay rights in an inaugural address. “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” said the president as he opened his second term in office, adding that the struggle for marriage equality belonged in the pantheon of civil rights struggles in U.S. history, alongside those of women and African Americans. In June, in United States v. Windsor, the Supreme Court struck down the Defense of Marriage Act (DOMA), enacted into law in 1996 by veto-proof congressional majorities to prevent same-sex marriages from being recognized by the federal government, and also invalidated California’s ban on same-sex marriage (Prop 8), passed by popular referendum in 2008.
Post-Windsor, the political and judicial landscape has shifted dramati- cally in favor of gay rights in the United States. A virtual stampede of politicians—including some thirty U.S. senators (three of them Republi- cans)—has rushed to support same-sex marriage. New Jersey, Delaware, Hawaii, Illinois, New Mexico, and Pennsylvania have legalized same-sex marriage, bringing the total of gay-marriage states plus the District of Co- lumbia to nineteen (or roughly 45 percent of the U.S. population), and fed- eral and state courts in thirteen states, including deep-red Utah and Texas, have ruled that bans on same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. All this suggests what was once thought impossible: same-sex marriage becoming the law of the land without it being imposed by the Supreme Court.
Journal of Democracy Volume 25, Number 3 July 2014 © 2014 National Endowment for Democracy and Johns Hopkins University Press
91Omar G. Encarnación
Some developments abroad in 2013 were just as favorable to gay rights, if not more so. Same-sex marriage became legal in England, Wales, and France, leaving Italy and Greece as the only West European democracies that have failed to allow either marriage or civil unions to same-sex couples. Brazil and Uruguay joined Argentina and several Mexican states (plus the Federal District of Mexico City) in legaliz- ing same-sex marriage, and New Zealand became the first Asia-Pacific country to legalize same-sex marriage. These additions bring to fifteen the number of countries that have legalized same-sex marriage since the Netherlands was the first to do so in 2001.
Ironically, however, the year 2013 also featured a countervailing trend—the rise of some of the most odious anti-gay legislation in his- tory. Uganda passed a law that calls for life imprisonment for some homosexual acts and a seven-year jail term for anyone who conducts a same-sex marriage ceremony. This was actually less severe than the original 2009 legislation, the infamous “kill the gays bill” that called for the death penalty for gay Ugandans and sentences of up to seven years for family and friends who failed to report them to the authorities. Russia enacted a law banning the promotion of “sodomy, lesbianism, bi- sexuality, and transgenderism,” a law so broad that it outlaws gay-pride parades, public displays of affection by same-sex couples, gay symbols such as the rainbow flag, and even a public admission of homosexual- ity, unless made in a way that casts homosexuality in a negative light. India’s Supreme Court reinstated a colonial-era ban on homosexual sex that doubled “the number of gay people in the world who can be impris- oned for their sexuality.”1
The schizophrenic manner in which gay-rights politics played out in 2013 highlights the ambiguities in global trends: Gay rights are expand- ing in some countries while constricting in others. Moreover, the events of 2013 reveal the serious limitations of transnational factors in explain- ing the global spread of gay rights—like the growing acceptance of gay rights as a human-rights norm. It is apparent that we have to delve deep into the domestic environment to understand why gay rights are thriving in countries like Argentina and floundering in others such as Russia.
Wealth and religion are the most discussed factors behind the so- called global divide on homosexuality. On the whole, the more afflu- ent and secular the nation, the more likely it is to embrace gay rights; conversely, the poorer and more religious the nation, the more likely it is to repress homosexuality. Less studied and therefore less under- stood, however, is the effect of the political regime, especially whether the country is democratic or not. Although gay rights are not found in all democracies, gay rights are virtually nonexistent in nondemocracies. Among the many factors that make democracy an apparent prerequisite for gay rights are the opportunities that it provides for advocacy—in- cluding access to the courts, the party system, and the legislature—as
92 Journal of Democracy
well as a social environment that permits gay people to live their lives openly and honestly, a critical but often overlooked factor in advancing societal acceptance of homosexuality.
Not surprisingly, the most favorable environment for gay rights is found in places where political freedoms, civil society, and the rule of law have taken root, especially in recent decades, as in Spain, South Af- rica, and Latin America. By contrast, gay rights are languishing where authoritarianism is on the rise and civil society is under attack, as in Russia, most of Africa, and virtually the entire Middle East. These find- ings are important for understanding not only how gay rights develop, but even more so for thinking about how best to promote gay rights globally.
The Rise of Gay Rights
Although often thought of as an overnight phenomenon—a point famously underscored by U.S. Supreme Court Justice Samuel Alito’s remark during the DOMA deliberations that “same-sex marriage is newer than cell phones or the Internet”—the struggle for gay rights has had a long gestation. Germany’s Scientific Humanitarian Commit- tee, a Berlin-based organization founded in 1897 and shut down by the Nazis in 1933, is generally thought of as the world’s first gay-rights organization. It championed rights and equality for homosexuals. The organization’s long-term influence is reflected in the “homophile” movement ushered in by the Mattachine Society, a group founded in Los Angeles in 1950 and widely regarded as the first viable U.S. gay- rights organization, and the Daughters of Bilitis, founded in San Fran- cisco in 1955 as the first U.S. lesbian organization. These groups called on homosexuals to “dial down the gay” by avoiding gender-bending behavior and clothing, in keeping with an assimilationist agenda pre- mised on the idea that the only thing differentiating homosexuals from heterosexuals is what they do in bed.
New York’s 1969 Stonewall riots set off a second wave of gay activ- ism. This series of violent clashes between the police and ordinary gays, lesbians, and transvestites erupted after the police raided the Stonewall Inn, a bar on Manhattan’s West Side. These riots are generally con- sidered to have been the launch pad for today’s gay-rights movement. Post-Stonewall activism departed from the civility and passivity of the homophile movement by promoting an ideology of “sexual liberation.” Embodied most fully by New York’s Gay Liberation Front (GLF), this ideology held that only the outright destruction of the heterosexual pa- triarchy by means of a social revolution could end the oppression of sexual minorities. To that end, the GLF criticized dominant and restric- tive mainstream values and prejudices and embraced gay pride as a key component of sexual liberation.
93Omar G. Encarnación
The GLF helped to engineer a fundamental reorientation in gay rights, away from “negative” rights and toward “positive” rights. While nega- tive rights require little from the state other than allowing gay people to be themselves by ending legally sanctioned anti-gay discrimination, “positive” rights demand that the state extend civil rights to the ho- mosexual population, including legal protections against discrimination and the recognition of same-sex relationships. In its pursuit of posi- tive rights, the gay-rights movement took inspiration from other social movements. In the United States, groups like the National Gay and Les- bian Task Force emulated the U.S. civil rights movement and began to appeal to the courts to overturn discriminatory anti-gay laws, especially sodomy laws, arguing that they violated the U.S. Constitution’s guaran- tee of equal protection under the law.
In other countries, however, the campaign for gay rights was framed as part of a struggle for internationally recognized human rights. This was a pivotal development in the evolution of human rights, given that the 1948 Universal Declaration of Human Rights makes no mention of issues of sexual orientation, even while acknowledging things like hous- ing, education, and leisure as “basic” human rights.2 Nonetheless, gay activists have turned to several articles of the Declaration—especially Article 2, which states that every person “is entitled to the rights and freedoms set forth in the Declaration without distinction of any kind, in- cluding sex.” By the early 2000s, the human-rights strategy was paying dividends in spades, with courts in Europe, Canada, and Latin America ruling on issues of concern to homosexuals—especially adoption, immi- gration, and same-sex relationships—from the perspective that anti-gay discrimination was an affront to universal human rights.
Adding to the drive for positive rights that emerged after the Stone- wall riots was the devastation wrought by the HIV/AIDS epidemic, which began killing gay males by the thousands from its very onset in the early 1980s. From this crisis emerged a keen awareness within the gay community of the need to attain state recognition of same-sex rela- tionships. As never before, AIDS forced gays, especially gay males in the prime of their lives, to confront the legal limitations on their personal relationships with regard to such issues as hospital visitation, surrogate decisions regarding medical care, and estate inheritance. Fear of AIDS also turned anti-gay discrimination into an epidemic in its own right, as gay people from all walks of life faced unprecedented discrimination in government policies, housing, and the workplace.
In advocating for positive rights, gay activists began to reorient their activism away from “sexual liberalization” and toward “social integra- tion.” Key to advancing social integration was mainstreaming homo- sexuality by adopting the norms of society at large—most notably, mar- riage. This mainstreaming agenda, which constituted a third wave of gay-rights activism, was promoted by a new cadre of gay-rights orga-
94 Journal of Democracy
nizations led by the Human Rights Campaign, founded in 1980 to elect gay-friendly candidates to state and federal offices, and by conservative gay intellectuals such as Andrew Sullivan, who argued that “gay mar- riage” was not a radical idea intended to destroy heterosexual society but rather a conservative one that would work for the betterment of both gays and society overall. A noticeable change in rhetoric accompanied the justification for same-sex marriage by advocates of mainstream- ing. While early demands for marriage equality were couched in terms of equal rights, the new argument stressed that gay people’s desire for marriage was rooted in love, commitment, and responsibility—the same reasons that heterosexuals give to justify their own desire to marry.
Three distinct but complementary theoretical approaches can be drawn upon to explain how the arc of gay rights launched by the Stone- wall riots managed to find its way around the world. Arguably the most suggestive is “socialization,” or the process through which countries are inducted into international society.3 This process does not happen in a vacuum but rather in close interaction with other states and international nonstate actors. Its main engines are Western-based “transnational ad- vocacy networks.” Because of their status as “nonstate” actors, these networks have a unique ability to strategically mobilize information to persuade, pressure, and even shame countries into changing their be- havior on a wide range of issues, but especially those concerning human rights. The most influential international advocacy network devoted to gay rights is the International Gay and Lesbian Association (IGLA). Since its founding in 1973, in Coventry, England, IGLA has been very successful in pressuring the international human-rights community and Western governments into embracing gay rights as a human-rights norm, and in exposing the horrid treatment of the gay population in many parts of the world.
A second approach is “policy diffusion,” which contends that policy making is often marked by extraordinary moments when a cluster of similar policies appears within a relatively short period of time in many different states.4 At work here is nothing short of “contagion,” meaning something that erupts in one or a handful of countries and is rapidly transmitted to many other countries. Policy diffusion is promoted by a variety of means, including technocratic exchanges between govern- ments, transnational legalism, international consultants, interstate NGO activism, international think tanks, and multinational organizations. Re- cent examples of policy diffusion include democratization, economic reform (privatization in particular), healthcare reform, pension reform, and, of course, same-sex marriage.
Last but not least is “global queering.” Behind this idea is the notion that the gay community encapsulates a wide range of identities, cultures, and politics that are being disseminated around the globe by the inter- nationalization of American homosexuality, as driven by U.S. cultural
95Omar G. Encarnación
imperialism and U.S. economic hegemony.5 Among the forces fanning global queering from the United States into the rest of the world is the popularity of American television shows such as Modern Family and the influence of “gay-borhoods” such as Greenwich Village in New York and the Castro in San Francisco. Since their emergence in the 1970s, the cultural practices of these gay enclaves, especially gay-pride parades intended to increase gay visibility and affirm a gay identity, have spread to other U.S. cities and towns and across the world as a consequence of global capitalism, the Internet, international trade, and tourism.
HIV/AIDS is another influential source of global queering. The leg- acy of the epidemic for the globalization of gay culture is complex and far-reaching, and it extends well beyond the professionalization (and even the homogenization) of gay-rights activism around the world. In particular, ambitious and often controversial safe-sex campaigns de- signed to curb the spread of the epidemic are credited with disseminating a “Western model of homosexuality.” These campaigns—which origi- nated in the United States and Western Europe and were later exported to the developing world by NGOs, multilateral organizations such as the World Bank and the Pan American Health Organization, and private charities such as the American Foundation for Aids Research—shat- tered many taboos in regions such as Latin America by featuring images of same-sex couples, especially males, and frank sexual language about ways to prevent HIV infection.
A Global Divide
For all the transnational influence of socialization, policy diffusion, and global queering in fueling the spread of gay rights around the world, the contradictory developments in gay-rights politics in 2013 clearly demonstrate that gay rights are not spreading in an even fashion—far from it, actually. Indeed, for all the talk of a global spread of gay rights, the geographic span of this spread is a lot less impressive than is often assumed. Gay rights appear to be deepening more than spreading, inten- sifying in some regions while regressing in others.
“The Global Divide on Homosexuality,” a 2013 study by the Pew Research Center, examines the unevenness in the global spread of gay rights. Pew asked some 40,000 respondents from 39 countries, “Should society accept homosexuality?”6 The resulting data illustrate a stark split on the issue, with acceptance finding strong support across the Americas and Western Europe but lagging in the rest of the world (save for a few notable exceptions such as Australia, New Zealand, and Japan).
Topping the list of countries that believe society should accept ho- mosexuality is Spain (88 percent), followed closely by Germany (87 percent), Canada (80 percent), the Czech Republic (80 percent), Aus- tralia (79 percent), France (77 percent), Britain (76 percent), Argentina
96 Journal of Democracy
(74 percent), and Italy (74 percent). At the opposite end of the spectrum is Nigeria, where a whopping 98 percent of the public disapproves of homosexuality, followed by Jordan (97 percent), Senegal (96 percent), Uganda (96 percent), Ghana (96 percent), Egypt (95 percent), Tunisia (94 percent), Indonesia (93 percent), Palestine (93 percent), Kenya (90 percent), and Russia (84 percent).
Delving deeper into the Pew data gives us a more fine-grained view of the progression of societal acceptance of homosexuality across the globe. Since the mid-2000s, acceptance of homosexuality has steadily expanded in North America, Western Europe, and Latin America, with some countries, including the United States, registering double-digit in- creases. In 2007, less than half of Americans thought that gays should be accepted by society, compared with 60 percent today. By contrast, the Pew data show that societal attitudes toward homosexuality in Af- rica, the Middle East, most parts of Asia, and Russia have remained mostly unchanged. This consistency on the issue in so many parts of the world explains why the overall number of countries that criminalize homosexual behavior has declined only modestly in recent years, from 85 countries in 2007 to 76 in 2013. Understandably, decriminalizing homosexual behavior, rather than promoting same-sex marriage or civil unions, is the top priority for gay-rights activists at major international human-rights organizations.
According to Pew, at the heart of the global divide on homosexuality are two variables that often go hand in hand: wealth and the role of reli- gion in public life. The richer and more secular the country, the higher the level of acceptance of homosexuality is likely to be; conversely, the poorer and more religious the country, the less likely it is that homo- sexuality will find acceptance among the public. These findings mirror some dramatic changes in religious patterns observed in several parts of the world. Across Western Europe and Latin America, a much-discussed “fading of Catholicism” has taken place in recent decades.7 Spain and Argentina are among the most extreme cases. In these overwhelmingly Catholic societies, less than a fifth of Catholics claim that faith is an important part of their lives.8 In the United States, one-fifth of the public and a third of adults under the age of thirty are religiously unaffiliated— the highest percentages ever recorded.9
By contrast, in recent decades, in many parts of Asia, Africa, and the Middle East, the rising popularity of Islam is boosting efforts to make state laws conform to Islamic law (shari‘a), which makes homosexual- ity a capital offense. The latest attempt comes from the small Southeast Asian nation of Brunei, where new shari‘a-inspired laws make sodomy and adultery punishable by death, including stoning. In parts of Latin America where gay rights are lagging, as in Central America and the Ca- ribbean, there has been a rise of Protestantism, which is less approving of homosexuality than Catholicism. But the most surprising development
97Omar G. Encarnación
comes from Russia, where religion has made a spectacular comeback in recent years. According to Pew, between 1991 and 2008, the share of Russian adults identifying as Orthodox Christian rose from 31 percent to 72 percent.10 During the same period, the percentage of Russians who do not identify with any religion fell from 61 percent to 18 percent. There has also been an increase in commitment to religion. The share of Rus- sians who claimed to be at least somewhat religious skyrocketed from 11 percent in 1991 to 54 percent in 2008, while the portion of adults who said that they believe in God rose from 38 percent to 56 percent.
The Difference Democracy Makes
A decidedly less-examined factor in the global divide on homosexu- ality is the presence or absence of democracy. Certainly, democracy is not an insurance policy against anti-gay discrimination, much less a guarantee that gay rights will be protected, even after these rights have been enshrined in law. Democracy can just as easily be used by foes of the gay community to undermine gay rights as it can by gay-rights advocates to advance them, a point underscored by the U.S. experience.
Witness the some thirty state constitutional amendments banning same-sex marriage enacted in the United States by popular referendum since 2004, making a mockery of democracy by putting the rights of a minority at the whim of the majority. The best known of these referenda, California’s Prop 8, invalidated a 2008 ruling by the Supreme Court of California that found the exclusion of same-sex couples from marriage to be a violation of the state’s constitution. The campaign left a poison- ous cultural legacy. According to Slate’s Mark Joseph Stern, Prop 8 was “the most traumatic and degrading anti-gay event in recent American history.” He adds that the campaign’s tactics “were not merely homo- phobic. They were laser-focused to exploit Californians’ deepest and most irrational fears about gay people, indoctrinating an entire state with cruelly anti-gay propaganda.”11
Yet, as several datasets show, there is a correlation between gay rights and democracy. The “Gay Friendliness Index,”12 which quantifies respect for gay rights around the world, ranks 117 countries based on such criteria as legal toleration of same-sex sexual activity, recognition of same-sex relationships and same-sex adoptions, open participation by gays in the military, and whether the country has on its books legislation protecting against discrimination. According to this index, the nature of the political regime is a better predictor of gay rights than either economic develop- ment or cultural factors such as religion. Human Dignity Trust, a British NGO that works for the decriminalization of homosexuality around the world, reports that the absence of political freedoms is the one common feature shared by most of the 82 jurisdictions with laws criminalizing private and consensual sexual conduct between adults of the same sex.
98 Journal of Democracy
A correlation between gay rights and democracy is also suggested by the fate of gay rights within the “third wave” of democratization—the spate of democratic transitions that took place in the last quarter of the twentieth century.13 It is notable that gay rights have progressed most in the very parts of the world where the third wave has been most suc- cessful, and that gay rights have struggled the hardest in the very places where the third wave itself has faced difficulty in advancing, or has not advanced at all. Spain—often regarded as the most successful of all third-wave democracies for having overcome the legacy of a brutal civil war and forty years of dictatorship—became in 2005 the first Catholic- majority country to enact a same-sex-marriage law. This law was a key component of the “second-transition” policies of the Zapatero adminis- tration (2004–11), which were intended to complete the unfinished “first transition” that began after Franco died in 1975. In 2006, South Af- rica, another democratization “miracle,” became the first country in the developing world to legalize same-sex marriage, after enacting a new constitution that bars discrimination on the basis of sexual orientation.
Across Latin America, where the third wave virtually wiped out au- thoritarian rule during the 1980s and 1990s, the rise of gay rights has been nothing short of spectacular. Since Panama removed sodomy as a crime from its penal code in 2008, homosexuality has been completely decriminalized in Latin America, and today virtually every Latin Ameri- can country has on its books laws banning discrimination on the basis of sexual orientation. With the legalization of same-sex marriage in Brazil, in 2013, the percentage of the Latin American population that enjoys the right to same-sex marriage or same-sex civil unions is now near 50 percent. These developments put much of Latin America ahead of the United States in legislating gay rights at the national level. Indeed, the few spots in Latin America where gay rights have yet to take root are those rare places untouched by the third wave, such as communist Cuba, or where democracy is under extreme duress, as in Venezuela.
Tellingly, gay rights have had a difficult time gaining any traction where the third wave made relatively few, if any, inroads, as in most parts of Africa and the Middle East, and China, where homosexuality was decriminalized in 1997, but gay activism remains essentially out- lawed, being viewed as subversive by the state. More telling, perhaps, are places where democracy has stalled, as in Russia. Gay rights got off to a promising start in Russia in 1991, following the collapse of com- munism, when the country decriminalized homosexuality and earned a Freedom House rating of Partly Free. Homosexual conduct had been banned under communism, in keeping with the view of homosexuality as the ultimate sign of bourgeois decadence. But gay rights began to falter as democracy started to backslide, a process marked by Freedom House’s demotion of Russia in 2004 from Partly Free to Not Free, where it remains today. Ever since, but especially during Vladimir Putin’s sec-
99Omar G. Encarnación
ond term as president beginning in 2012, political and civil freedoms in Russia have been under severe attack.
The Effects of Democracy
Of course, correlation does not imply causation. But there appear to be a number of ways in which democracy induces and undergirds gay rights. For starters, the process of democratization appears to go hand in hand with the evolution of “citizenship,” or membership in the polity. Citizenship protections for repressed or marginalized groups (such as the working poor, women, racial and ethnic minorities, and homosexu- als) seem to be predicated on the consolidation of political and econom- ic rights, a point first suggested by British sociologist T.H. Marshall, whose works link citizenship to the development of civil, political, and social rights.14
Democracy also facilitates gay rights by making possible a vibrant and robust civil society that can exist only within a political framework allowing for freedom of association. Even in socially and economically advanced societies such as the United States, gay rights have not evolved without considerable advocacy, contention, and even civil disobedience on the part of gay activists. Stonewall’s legacy readily comes to mind. Journalist Linda Hirshman, who has written about the gay-rights move- ment, argues that what gave Stonewall its fame was not the riot itself but what happened a year later: the world’s first gay-pride parade. According to Hirshman, “The march was a brilliant piece of political theater. . . . The march had everything—pageantry, national ambition, outing, crowd psychology, simplicity, existence precedes essence.”15
The struggle for gay rights also reveals the importance of intra–civil society collaboration, a point underlined by the successful marriage be- tween the gay-rights movement and the human-rights movement. No- where in recent history have these movements worked together more creatively and effectively than in Argentina. By July 2010, when the Argentine Congress approved a same-sex-marriage bill, gay-rights or- ganizations were fully incorporated into the fabric of the human-rights movement. That process had begun in the mid-1980s, when gay activ- ists joined the effort to bring accountability to the military regime for the thousands who “disappeared” during the country’s infamous “dirty war.”16 One of the most influential developments in the same-sex-mar- riage debate was a letter written to national legislators by some seventy human-rights organizations—including Las Madres de la Plaza Mayo, the world-famous group of mothers and grandmothers that turned the issue of the disappeared into a cause cél`ebre. The letter made the case for same-sex marriage and against civil unions, which, human-rights organizations argued, condemned gays to second-class citizenship.
Gay rights also depend on a strong judiciary and the rule of law,
100 Journal of Democracy
hallmarks of any healthy democratic polity. The role of the courts in advancing gay rights historically has been ambiguous since judicial rul- ings can go in many directions, a reason why gay activists generally have been leery of approaching the courts, especially on the issue of marriage. Yet across the West, court rulings have been pivotal in ad- vancing gay rights. The 1981 Dudgeon v. United Kingdom ruling by the European Court of Human Rights decriminalized male homosexual acts in Northern Ireland, the only part of the United Kingdom where such acts were still illegal. This ruling set the legal foundation for demand- ing that no member state of the Council of Europe could criminalize homosexual behavior and influenced the U.S. Supreme Court’s 2003 landmark decision in Lawrence v. Texas, which struck down the last remaining sodomy laws in the United States.
But the real surprise comes from Latin America, where high courts without any history of progressive jurisprudence have helped to usher in gay rights. Reflecting a cascade of constitutional reforms intended to enhance judicial independence that accompanied the democratization process, the high courts of Brazil, Colombia, and Mexico have in re- cent years found a constitutional right to same-sex marriage, something the U.S. Supreme Court has yet to do. In ruling in favor of same-sex marriage, these Latin American high courts have relied on decisions from the European Court of Human Rights and, ironically enough, the U.S. Supreme Court. The 2010 ruling by the Mexican Supreme Court that affirmed the constitutionality of a same-sex-marriage law passed by Mexico City officials in 2009 pointedly drew on Loving v. Virginia, the landmark case that ended the ban on interracial marriage in the United States. The U.S. case, the Mexican ruling noted, “was relevant because the historical disadvantages that homosexuals have suffered create an analogy with the discrimination that interracial couples endured in an- other era.”17
All this said, the most compelling way in which democracy facili- tates gay rights is to provide gay people with the most socially tolerant environment in which to live their sexuality openly and honestly. The opportunity to live “outside the closet” is a key factor in accounting for rapidly changing public attitudes toward homosexuality. According to the World Values Survey, between 1993 and 2006, the portion of the world’s population that thought homosexuality was never justifiable fell from an average of 50 percent to 34 percent.18 The same survey found that in 2006, the percentage of the public that objected to having a gay neighbor stood at 16 percent, versus the 44 percent who objected to hav- ing a neighbor of a different religion. Not by happenstance, the period covered by the survey coincides with the emergence of the first genera- tion of gays and lesbians choosing to live their lives in the open, with results that broadly confirm the argument attributed to slain gay-rights leader Harvey Milk, one of the first openly gay people elected to public
101Omar G. Encarnación
office in the United States. Milk held that the most politically powerful thing that gay people can do is to reveal the truth about their sexuality to relatives, neighbors, friends, and coworkers.
Milk’s thesis is supported by a wealth of surveys showing that those who know gay people are more likely to be accepting of homosexual- ity than those who do not. They are also more likely to support gay rights, including same-sex marriage. A 2009 Gallup study confirmed that “many views toward gay and lesbian issues are related—in some instances, strongly so—to personal experience with individuals who are gay or lesbian.” The study raises two plausible explanations. One is that exposure to gays and lesbians leads to greater acceptance of them, regardless of one’s ideological leanings. The other is that people who are more accepting of gays and lesbians are more likely to put them- selves into situations in which they are exposed to gays and lesbians. Regardless of the direction of causality, the data strongly support the proposition “that knowing someone who is gay or lesbian fosters more accepting attitudes on many of the issues surrounding gay and lesbian relations today.”19
Similarly, a 2013 Pew study found that “more people today have gay or lesbian acquaintances, which is associated with acceptance of homo- sexuality and support for gay marriage.” The study further noted that nearly nine in ten Americans (87 percent) know someone who is gay or lesbian, up from 61 percent in 1993, and that almost half of Americans (49 percent) have a close family member or close friend who is gay or lesbian. The study concluded that “the link between these experiences and attitudes about homosexuality is strong.” Roughly two-thirds (68 percent) of those who know many people who are homosexual favor gay marriage, compared with just 32 percent of those who do not know any gays or lesbians.20
Promoting Gay Rights Abroad
With gay rights now well ensconced in the developed West, it is only natural that efforts are underway by Western nations and organiza- tions to seek to bridge the global divide on homosexuality. The Neth- erlands, Denmark, Norway, and Sweden have suspended their foreign aid to Uganda, with the intention of forcing that country into rescinding its draconian anti-gay legislation. The World Bank has put a hold on a US$90 million healthcare loan to Uganda as part of a new policy meant “to eliminate institutionalized discrimination,” including anti-gay dis- crimination, which the Bank has deemed an “urgent task.” More signifi- cant, perhaps, is that the West’s leading powers have already announced that promoting gay rights is a priority of their foreign policy.
In a 2011 speech to the UN Human Rights Commission, Secretary of State Hillary Clinton made an impassioned case for gay rights. Bor-
102 Journal of Democracy
rowing from her famous 1995 Beijing speech in which she argued that “women’s rights are human rights and human rights are women’s rights,” she intoned, “Gay rights are human rights, and human rights are gay rights.” She added that gay rights are “not a Western invention but rather a human reality.” Soon thereafter, Clinton instructed U.S. embas- sies across the globe to make gay rights a diplomatic priority. Not to be outdone by the Americans, British prime minister David Cameron an- nounced in 2013 that he wants the team of ministers and officials who worked on the bill to legalize gay marriage in England to “now work on exporting same-sex marriage around the world.”
The West’s newfound stress on gay rights faces an uphill battle. Given the West’s own checkered history with homosexuality, many countries targeted by the West for their anti-gay policies have pointedly questioned whether Western leaders have the moral authority to lead the world on the issue of gay rights, as Obama discovered during his 2013 visit to Africa. Although the president was greeted like a rock star everywhere he went, he was pointedly rebuked whenever he raised the issue of gay rights. A memorable clash with Senegal’s President Macky Sall took place at a joint press conference. After Obama urged the coun- try to decriminalize homosexuality, he was told that Senegal was in no hurry to do so. “On homosexuality, Mr. President, you did make a long development on this issue,” Sall noted. The retort alluded to the fact that Obama did not officially embrace same-sex marriage until the 2012 presidential campaign.
It is also the case that within the West the issue of homosexuality remains far from being settled, a fact demonstrated by the rise of a ro- bust international anti–gay-rights movement. Having experienced sig- nificant setbacks at home, U.S. organizations opposed to gay rights have been fanning the flames of homophobia abroad, and their handiwork is evident in the string of anti-gay legislation currently making its way through several African states. According to Mother Jones, “perhaps the biggest actors in Uganda’s gay rights drama are American evangeli- cals who travel there every year by the thousands to spread their Gos- pel from the far pastures of Charismatic Christianity.” Principal among these groups is the International House of Prayer, a Kansas City–based mega church that since 1999 has “poured millions of dollars into Ugan- da—much of it filtered into local churches and missions with explicitly anti-gay agendas.”21
But even supporters of gay rights have found the West’s push for gay rights problematic. The Economist, which brands itself as “one of the earliest supporters of same-sex marriage,” notes that there is “a rain- bow of reasons” why the global push for gay rights is “misguided.” The magazine highlights the fact that some countries, such as Uganda, are penalized by the West for their assault on homosexuals, whereas other countries that are equally severe in their treatment of homosexuals suf-
103Omar G. Encarnación
fer no similar retribution. Nigeria’s recently passed anti-gay law is just as odious as Uganda’s, but so far it has received little international criti- cism. Moreover, notes the Economist, “Of the many forms of bigotry the [World] Bank could battle, it is not clear that anti-gay laws are the most harmful to the poor. The bank lends to plenty of places that discriminate against women under Islamic law.” Finally, the magazine cautions that the World Bank’s new lending policies could have “perverse” results, sending Uganda and other African countries into the arms of the “no- questions-asked Chinese.”22
There are also many other unintended yet negative consequences of promoting gay rights abroad, including, most notably, putting at risk the very lives that international gay-rights promoters are seeking to im- prove. Media reports noted a spike in homophobic legislation and anti- gay violence in several African countries following Clinton’s calls for the end of anti-gay discrimination. Attempts by the West to export gay rights, especially across Africa, also often play directly into the hands of local politicians eager to brand gay rights as “foreign values” and to rationalize their anti-gay policies as a defense against “Western in- fluences.” Ironically, in some African countries, the laws criminalizing homosexuality are actually a legacy of British colonialism—in other words, a direct product of Western influence.
So what is the West to do? The most sensible approach would be to fortify existing programs to promote democracy, civil society, and the rule of law. These programs have a twofold advantage over more tar- geted policies aimed at promoting gay rights: First, these programs are less likely to be attacked as “foreign meddling.” Second, and even more important, a robust democracy provides the best environment for nurtur- ing the rise of gay rights.
NOTES
1. Uri Friedman, “How Sochi Became the Gay Olympics,” Atlantic.com, 28 January 2014, www.theatlantic.com/international/archive/2014/01/how-sochi-became-the-gay- olympics/283398.
2. Omar G. Encarnación, “Human Rights and Gay Rights,” Current History, January 2014, 36.
3. See Thomas Risse and Kathryn Sikkink, “The Socialization of International Hu- man Rights Norms into Domestic Practices,” in Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds., The Power of Human Rights (New York: Cambridge University Press, 1999).
4. See Everett M. Rogers, Diffusion of Innovations (New York: Free Press, 2003).
5. See Peter A. Jackson, “Capitalism and Global Queering: National Markets, Parallels Among Sexual Cultures, and Multiple Queer Modernities,” Gay and Lesbian Quarterly 15, no. 3 (2009): 357–95.
104 Journal of Democracy
6. Pew Global Attitudes Project, “The Global Divide on Homosexuality: Greater Ac- ceptance in More Secular and Affluent Countries,” Pew Research Center, 4 June 2013, www.pewglobal.org/2013/06/04/the-global-divide-on-homosexuality.
7. Omar G. Encarnación, “The Catholic Crisis in Latin America,” Foreign Affairs, 19 March 2013, www.foreignaffairs.com/articles/139066/omar-encarnacion/the-catholic- crisis-in-latin-america.
8. See Ronald Inglehart and Christian Welzel, Modernization, Cultural Change, and Democracy: The Human Development Sequence (New York: Cambridge University Press, 2005).
9. Pew Research, Religion and Public Life Project, “‘Nones’ on the Rise,” 9 October 2012, www.pewforum.org/2012/10/09/nones-on-the-rise.
10. Pew Research, Religion and Public Life Project, “Russians Return to Religion but not to Church,” 10 February 2014, www.pewforum.org/2014/02/10/russians-return- to-religion-but-not-to-church.
11. Mark Joseph Stern, “Just a Reminder: The Campaign for Prop 8 Was Unprecedent- edly Cruel,” Slate, 4 April 2014.
12. Javier Corrales, Mari Crook, and Mario Pecheny, “Argentina: World Champion in LGBT Rights: How Did This Happen?” Paper presented at the annual meeting of the American Political Science Association, Seattle, September 2011.
13. Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991).
14. T.H. Marshall and Tom Bottomore, Citizenship and Social Class (London: Pluto Press, 1987).
15. Neal Broverman, “The History of Gay Rights in 348 Pages,” Advocate.com, 3 July 2012, www.advocate.com/arts-entertainment/books/2012/07/03/victory-author-linda-hirsh- man-discusses-meaning-stonewall-and.
16. Omar G. Encarnación, “International Influence, Domestic Activism, and Gay Rights in Argentina,” Political Science Quarterly 128 (Winter 2013–14): 687–716.
17. Omar G. Encarnación, “High Courts Have Taken a Stance,” New York Times, 29 January 2014, www.nytimes.com/roomfordebate/2014/01/29/why-is-latin-america-so- progressive-on-gay-rights.
18. Charles Kenny, “The Global Gay-Rights Revolution,” Bloomberg Business News, 31 March 2013, www.businessweek.com/articles/2013-03-31/the-global-gay-rights-revo- lution.
19. Lymari Morales, “Knowing Someone Gay/Lesbian Affects Views of Gay Issues,” Gallup.com, 29 May 2009.
20. Pew Research Center for the People and the Press, “In Gay Marriage Debate, Both Supporters and Opponents See Legal Recognition as ‘Inevitable,’” 6 June 2013, www.people-press.org/files/legacy-pdf/06-06-13%20LGBT%20General%20Public%20 FINAL%20Release.pdf.
21. Jeremy Lybarger, “Foiled in the United States, Anti-Gay Evangelicals Spread Hate in Africa,” Mother Jones, 9 July 2013.
22. “The World Bank: Right Cause, Wrong Battle,” Economist, 12 April 2014.
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Document 1 of 1 States Renew Fight to Stop Gay Marriage Author: Fausset, Richard; Blinder, Alan ProQuest document link Abstract: Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional in those states and questions about the constitutionality of the proposed state laws. Links: Get it From UNCW Full text: COLUMBIA, S.C. -- As the nation waits for the Supreme Court to decide whether same-sex marriages should be legal nationwide, another, more mundane front has opened in the wedding wars: the offices of the state and local officials who perform civil marriages and issue licenses. Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional in those states and questions about the constitutionality of the proposed state laws. The bills would also strip the salaries of employees who issued the licenses. A second South Carolina bill would give some government employees the ability to opt out of issuing marriage licenses to same-sex couples if they objected on the basis of a "sincerely held religious belief." In Utah, a bill would allow officials like judges, mayors and county clerks who solemnize marriages to opt out on religious grounds. In North Carolina, the president pro tempore of the State Senate, Phil Berger, a Republican, filed a similar bill Wednesday that would apply to "magistrates and registers of deeds." And in Alabama, a rift developed among probate judges who could not agree on whether a federal judge's ruling Friday, which called the state's current bans on same-sex marriage unconstitutional, meant that they actually had to begin issuing licenses. In a letter Tuesday that cited Thomas Jefferson and the Bible, the chief justice of the State Supreme Court, Roy S. Moore, said he intended to continue recognizing Alabama's same-sex marriage ban, in part because "nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage." The federal judge, Callie V. S. Granade of United States District Court in Mobile, issued a second ruling in favor of same-sex marriage in a separate Alabama case on Tuesday but has stayed both rulings until Feb. 9. And in a three-page order Wednesday, Judge Granade signaled that she expected jurists to carry out her order if the stay is lifted. Proponents of same-sex marriage contend that most of the state bills are almost certainly unconstitutional. And even in conservative-dominated statehouses, the chances of passage are unclear, given disagreements within the Republican Party on whether same-sex marriage should be a priority issue. Some experts say they could face sharp rebukes from judges who have ruled in favor of same-sex marriage. "I think they'll be angry," said Risa L. Goluboff, a law professor at the University of Virginia who studies American legal history. "I think they'll see this as outright defiance and treat it that way." Professor Goluboff said she expected the bills to be struck down if approved, although she said their authors might enjoy immediate political benefits. "It seems like, as a long-term strategy, this is not a good step," she said. "But as something short-term to organize people around, it might not be a bad one." Still, the bills probably foreshadow the kinds of fights that may continue to rage even if the United States
Supreme Court eventually rules that same-sex marriages must be allowed in all 50 states. This month, the Supreme Court justices agreed to hear a case that could resolve whether same-sex marriage, currently allowed in 36 states and the District of Columbia, should be the law of the land. Although polls have shown growing support for same-sex marriage nationwide, a large number of Americans remain opposed on religious grounds, and in many states, voters have approved constitutional amendments defining marriage as between a man and a woman. Brian S. Brown, the president of the National Organization for Marriage, which opposes same-sex marriage, said Tuesday that these voters' minds were not changed by recent federal rulings overturning state bans. "The millions of people who voted that marriage is a union of a man and a woman are not simply going to throw their beliefs away," he said. "This fight will continue on regardless of which way the Supreme Court rules." As they look beyond the Supreme Court ruling, some opponents of same-sex marriage see parallels to the fight over abortion, which did not die down after the 1973 Roe v. Wade decision legalized the procedure. State Senator Lee Bright, a South Carolina Republican who represents Greenville and Spartanburg Counties, is the sponsor of the bill to allow state government employees to opt out of issuing marriage licenses on religious grounds. Mr. Bright said he expected that his bill would pass constitutional muster, citing existing laws that allow health care workers to decline to provide reproductive health services on religious grounds. "We have similar language for folks that work in health care that don't want to participate in abortions," Mr. Bright said Tuesday. "You know, many Christians believe the biblical design, and that is that marriage is between a man and a woman." Mr. Bright also noted that 78 percent of South Carolina voters approved a 2006 constitutional amendment limiting marriage to a man and a woman. A federal judge struck down that ban in November. Sarah Warbelow, the legal director of the Human Rights Campaign, a gay rights group, said that the bills, particularly the ones that would punish state employees for following federal law, would not be likely to withstand a legal challenge. "In many of these states where we're seeing these bills pop up, they really didn't believe marriage equality was coming to their state, despite court after court affirming a constitutional right for same-sex couples to marry," she said. For legislators, she added, "there was a little bit of ostrich-with-his-head-in-the-sand kind of action going on." The clash of religious principle with the rulings of the federal courts is perhaps most evident in North Carolina, where at least six magistrate judges, who are called upon to perform civil marriages, quit their jobs after a federal judge approved same-sex marriage there in October. Among them was John Kallam Jr. Mr. Kallam, a Baptist minister, said he had gone to the judge who served as his supervisor to see if there was a way he could opt out of marrying gay couples, but had been unable to work out a solution. On Oct. 31, Mr. Kallam resigned after nearly 12 years on the job. "I felt, and still feel, that that is stepping on my right of religious freedom," he said. He compared his situation to that of a Sikh soldier, with whom he served in the United States Army, who was allowed to wear a turban and grow his beard because these were central to his religion. "Does not the federal government allow for different people to have different religious beliefs?" he asked. Credit: RICHARD FAUSSET and ALAN BLINDER; Richard Fausset reported from Columbia, and Alan Blinder from Atlanta. Photograph Cari Searcy, Left, and Her Wife, Kim Mckeand, Were Plaintiffs in the Case That Struck Down Alabama's Same- Sex Marriage Ban. (Photograph by Sharon Steinmann/Al.Com, Via Associated Press); State Senator Lee Bright (A18) Subject: Same sex marriage; Gays & lesbians; Litigation; Licenses; Religion & politics; Voter behavior;
Location: Alabama South Carolina North Carolina Company / organization: Name: Republican Party; NAICS: 813940; Publication title: New York Times, Late Edition (East Coast) Pages: A.1 Publication year: 2015 Publication date: Jan 29, 2015 Year: 2015 Section: A Publisher: New York Times Company Place of publication: New York, N.Y. Country of publication: United States Publication subject: General Interest Periodicals--United States ISSN: 03624331 CODEN: NYTIAO Source type: Newspapers Language of publication: English Document type: News ProQuest document ID: 1648840539 Document URL: http://search.proquest.com/docview/1648840539?accountid=14606 Copyright: Copyright New York Times Company Jan 29, 2015 Last updated: 2015-03-02 Database: ProQuest Central
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Document 1 of 1 'Bathroom Battles' Erupt Over Transgender Issue; New North Carolina law requires transgender people to use public restroom corresponding to the gender on birth certificate Author: Bauerlein, Valerie ProQuest document link Abstract: The flurry of proposals on LGBT issues could be a backlash to changes playing out in federal court, particularly the recent legalization of gay marriage, said Maxine Eichner, a professor at the University of North Carolina School of Law. Links: Get it From UNCW Full text: RALEIGH, N. C.--A broad new law here requires transgender people to use the public bathroom corresponding to the gender on their birth certificate, a rebuke of a move by the state's largest city and the latest skirmish in the "bathroom battles" popping up in statehouses and city halls. North Carolina on Wednesday became the first state to enact legislation restricting access to sex-segregated facilities on the basis of sex assigned at birth, according to the National Conference of State Legislatures. At least 13 other states are considering similar bills, according to the nonpartisan group. Several big cities have moved in the opposite direction. Earlier this month, New York City Mayor Bill de Blasio signed an executive order requiring city agencies to allow people to use the city's 2,200 public restrooms based on their self-declared gender identity. Philadelphia recently required private businesses to use gender-neutral signs on single-occupancy bathrooms. But Houston voters overwhelmingly rejected a ballot measure last year to extend nondiscrimination protections to gay and transgender people. Ten states are considering "religious-freedom" laws, according to NCSL, which could allow businesses to refuse to work with gay couples on religious grounds. North Carolina approved a law last year allowing magistrates to opt out of performing same-sex marriages. The flurry of proposals on LGBT issues could be a backlash to changes playing out in federal court, particularly the recent legalization of gay marriage, said Maxine Eichner, a professor at the University of North Carolina School of Law. But, she added, "The story with LGBT rights has been surprising--not in that there's backlash given how quickly views on this issue have changed, but that there hasn't been more backlash." The Republican National Committee, the Washington, D.C.-based group that sets the national Republican platform, is encouraging state legislatures to push back against what it describes as the Obama administration's federal overreach on "gender identity politics," particularly in schools. The RNC adopted a resolution in February encouraging legislatures "to enact laws that protect student privacy and limit the use of restrooms, locker rooms and similar facilities to members of the sex to whom the facility is designated." The Republican-led North Carolina General Assembly passed the bathroom bill in an emergency session Wednesday night. The move came in response to an ordinance passed last month by the predominantly Democratic Charlotte City Council. State lawmakers debated, approved and had the signature of Republican Gov. Pat McCrory within 12 hours. Civil-rights advocates say the fast track left no room for public debate and resulted in a mishmash that repeals local protections against discrimination based on race, national origin, sex and sexual orientation. These advocates say that means it puts at risk billions of dollars in federal Title IX funding, which goes to an array of public programs, including education, and prohibits discrimination. Ricky Diaz, a spokesman for Gov. McCrory's re-election campaign and longtime aide to the governor, said that
"the argument we hear from the far left is akin to fear-mongering." He said there is federal-court precedent saying Title IX funds wouldn't be in jeopardy. North Carolina "is on the wrong side of history," said Charlotte Mayor Jennifer Roberts, a Democrat. She said the city has long allowed transgender people to use any bathroom at city facilities, including the convention center during the 2012 Democratic National Convention. "North Carolina is better than this," she said. Republican leaders, including Gov. McCrory, a former Charlotte mayor, said they were trying to protect children from confusing and potentially predatory situations. Charlotte's ordinance "defied common sense," and would have allowed men to use the women's locker room, Mr. McCrory said in a tweet. The North Carolina law prompted some LGBT advocates to call for boycotts of the state, including actor George Takei in a post to his 9.6 million Facebook followers. A similar bill stalled in Tennessee this week. Earlier this month, South Dakota Gov. Dennis Daugaard vetoed a bill designating which bathrooms transgender students can use in public schools, after being lobbied in person by transgender students and on social media by Caitlyn Jenner, the former Bruce Jenner, who advocates say has brought attention and acceptance to transgender issues since coming out last summer. Some 300,000 transgender people would be affected by state legislation under consideration nationally, according to the Williams Institute, a think tank that studies sexual orientation and gender-identity public policy at the University of California, Los Angeles, School of Law. "On the heels of seeing a veto in South Dakota, this law in North Carolina is a really big deal," said Christy Mallory, senior counsel at the Williams Institute. In North Carorlina, she said, approximately 37,800 transgender people will be affected by the new state law-- 15,600 youth aged 13 to 19, and 22,200 adults aged 20 and over. Write to Valerie Bauerlein at [email protected] Credit: By Valerie Bauerlein Subject: Transgender persons; Gays & lesbians; Gender identity; Political conventions; Location: North Carolina Company / organization: Name: University of North Carolina; NAICS: 611310; Publication title: Wall Street Journal (Online) Pages: n/a Publication year: 2016 Publication date: Mar 24, 2016 Section: US Place of publication: New York, N.Y. Publication subject: Business And Economics Source type: Newspapers Language of publication: English Document type: News ProQuest document ID: 1775523019 Document URL: http://search.proquest.com/docview/1775523019?accountid=14606 Copyright: (c) 2016 Dow Jones & Company, Inc. Reproduced with permission of copyright owner. Further reproduction or distribution is prohibited without permission.
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Bauerlein, Valerie. "'Bathroom Battles' Erupt Over Transgender Issue; New North Carolina Law Requires Transgender People to use Public Restroom Corresponding to the Gender on Birth Certificate." Wall Street Journal (Online)Mar 24 2016. ProQuest. Web. 23 Apr. 2016 <http://search.proquest.com/docview/1775523019?accountid=14606>.
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Schools 'must teach gay marriage' All pupils 'should learn about gay marriage
Daily Telegraph (London, England) . (May 9, 2014): News: p1.
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Byline: Simon Johnson Scottish Political Editor
SNP ministers were last night under major pressure from Scotland's health chiefs to ensure all pupils learn about gay marriage in sex education lessons even where it is against their teachers' or parents' religious beliefs.
The country's largest NHS boards have written to the Scottish Government protesting against new draft guidance for sex education lessons that would allow teachers or pupils to opt out on the grounds of "conscience".
They argued it would be "extremely concerning" if teachers could refuse to oversee such an essential part of the school curriculum and "alternative arrangements" should always be made to ensure children to study gay marriage.
Allowing children to withdraw from sex education lessons on the grounds of conscience risks them coming under pressure from parents opposed to gay marriage, the health boards warned.
Instead they argued that the guidance should include greater protections against parents mounting campaigns against the content of the lessons. Children should be given the power to overrule their mothers and fathers, it was suggested.
Health chiefs also protested against the guidance recommending pupils learn about "the values of a stable and loving family life", arguing this was insensitive to those youngsters who did not grow up in such an environment.
Some objected to the phrase "both sexes" being used, stating this was "problematic" for youngsters who are transgender or transsexual.
Their intervention means ministers are already under pressure to water down the protections they promised for opponents of gay marriage barely three months after the controversial legislation was passed at Holyrood.
The updated sex education guidance is being issued to teachers to take account of the new Curriculum for Excellence and the introduction of same–sex marriages.
A draft version issued for consultation stated that "if a teacher, child or young person is asked to do something against his or her conscience, he or she should be able to raise this with the school or local authority."
Ministers expect "alternative arrangements" to be made but only "where possible". This would mean schools should, but are not compelled to, get a different teacher to take the class.
In a written submission to ministers, NHS Greater Glasgow and Clyde, the country's largest health board, said: "It is extremely concerning that teaching staff would be provided an opportunity to refuse to participate in this particular aspect of the curriculum "There are other areas of the taught curriculum where "conscience" may be a factor – eg modern studies or religious education – where no option to withdraw is provided."
The board argued that staff who opt out from sex education lessons on the grounds of "conscience" may only need training to overcome their objections.
It was particularly concerned about opposition from primary school teachers, citing some at one school who were unhappy with teaching their P1 pupils the proper names for male and female genitals.
The board also took umbrage at the guidance recommending children are taught to "appreciate the values of a stable and loving family life, parental responsibility and the importance of family relationships in planning for and bringing up children".
"Many young people do not grow up in a family context at all and therefore the guidance risks unintentionally facilitating insensitive practice," it said.
A submission from NHS Lothian also cited "strong concerns" about teachers being able to opt out, arguing that ministers should ensure it was compulsory for schools to have "alternative arrangements" in place for the information to be imparted even in religious schools.
Dumfries and Galloway health board warned against allowing pupils to opt out of lessons using a "conscience clause", arguing this could lead to intimidation by parents of their children and the "entire basis" of sex education being undermined.
NHS Lanarkshire called for the guidance to be changed so that "no child is denied the right of access to this education because of the personal beliefs of a professional, a fellow pupil, or the parents of another pupil."
Arguing that pupils should be allowed to veto their mothers and fathers, its submission added: "Where there is a conflict between the views of the child and the parents, the rights of the child should be paramount."
But Scotland for Marriage, a collection of religious organisations opposed to gay marriage, warned that even the draft guidance "falls woefully short" of the Scottish Government's promise to protect those opposed to the change.
Calling for freedom of conscience to be given statutory force, its submission said the guidance could allow children to be given information about gay marriage "via the back door" regardless of their parents' views.
By Simon Johnson Scottish Political Editor
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Gay marriage is 'assault on religion'
Tim Ross
Daily Telegraph (London, England) . (Mar. 20, 2012): News: p2.
Copyright: COPYRIGHT 2012 Telegraph Group Ltd.. Daily Telegraph
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Byline: Tim Ross, Political Correspondent
DAVID CAMERON'S plan to legalise same–sex marriage is "unnecessary and unhelpful", the country's largest Muslim organisation said yesterday.
The Muslim Council of Britain said that the Government's proposals were "strikingly weak" and said that Islam defined marriage as a "union between a man and a woman".
The leader of the Sikh community also attacked the proposal to extend the defi–nition of marriage to same–sex couples, describing it as an "assault on religion".
Senior Roman Catholic and Anglican bishops have already warned that the move will undermine social structures dating back thousands of years.
Mr Cameron is facing a backlash from his own supporters, with seniorTory MPs, including several ministers, expected to vote against the reforms in Parliament.
The Prime Minister argues that the Conservatives should support it on the grounds that stability and commitment in relationships of any kind should be encouraged.
Last week, ministers published a consultation document on how the changes to civil marriage laws will be introduced.
The plans explicitly rule out alterations to religious marriage. Farooq Murad, secretary general of the Muslim Council, said: "While we remain opposed to all forms of discrimination, including homophobia, redefining the meaning of marriage is in our opinion unnecessary and unhelpful.
"With the advent of civil partnerships, both homosexual and heterosexual couples have equal rights in the eyes of the law.
"Therefore, the case to change the definition of marriage, as accepted throughout time and across cultures, is strikingly weak. In common with other Abrahamic faiths, marriage in Islam is defined as a union between a man and a woman. So while the state has accommodated gay couples, such unions will not be blessed as marriage by the Islamic institutions."
Lord Singh, head of the Network of Sikh Organisations, said the proposed reforms represented "a sideways assault on religion". "It is an attempt by a vocal, secular minority to attack religion," he told BBC Radio 4's Today programme.
Sikhs believe in marriage as the union of a man and a woman and changing the definition was an attack on the English language, he said.
"We have total respect for gays and lesbians and we are delighted that there is a Civil Partnership Act. We believe that this gives gays and lesbians everything they need."
Lord Singh's criticism followed similar concerns from leaders of the Roman Catholic Church in Britain and the Church of England. Senior Conservatives have also expressed their alarm at the plan, on which MPs have been promised a free vote. Writing in his Telegraph blog yesterday, Lord Tebbit, the former Tory Cabinet minister, attacked Mr Cameron's blueprint for a "politically correct new order".
By Tim Ross, Political Correspondent
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www.futureofchildren.org
William Meezan is dean of the College of Social Work at the Ohio State University. Jonathan Rauch is writer in residence in the Government Studies program at the Brookings Institution.
Gay Marriage, Same-Sex Parenting, and America’s Children
William Meezan and Jonathan Rauch
Summary Same-sex marriage, barely on the political radar a decade ago, is a reality in America. How will it affect the well-being of children? Some observers worry that legalizing same-sex marriage would send the message that same-sex parenting and opposite-sex parenting are interchange- able, when in fact they may lead to different outcomes for children.
To evaluate that concern, William Meezan and Jonathan Rauch review the growing body of re- search on how same-sex parenting affects children. After considering the methodological prob- lems inherent in studying small, hard-to-locate populations—problems that have bedeviled this literature—the authors find that the children who have been studied are doing about as well as children normally do. What the research does not yet show is whether the children studied are typical of the general population of children raised by gay and lesbian couples.
A second important question is how same-sex marriage might affect children who are already being raised by same-sex couples. Meezan and Rauch observe that marriage confers on children three types of benefits that seem likely to carry over to children in same-sex families. First, mar- riage may increase children’s material well-being through such benefits as family leave from work and spousal health insurance eligibility. It may also help ensure financial continuity, should a spouse die or be disabled. Second, same-sex marriage may benefit children by increasing the durability and stability of their parents’ relationship. Finally, marriage may bring increased social acceptance of and support for same-sex families, although those benefits might not materialize in communities that meet same-sex marriage with rejection or hostility.
The authors note that the best way to ascertain the costs and benefits of the effects of same-sex marriage on children is to compare it with the alternatives. Massachusetts is marrying same-sex couples, Vermont and Connecticut are offering civil unions, and several states offer partner- benefit programs. Studying the effect of these various forms of unions on children could inform the debate over gay marriage to the benefit of all sides of the argument.
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Although Americans are deeply divided over same-sex mar- riage, on one point most would agree: the issue has moved from the obscure fringes to the
roiling center of the family-policy debate in a startlingly brief time. In May of 1970, Jack Baker and Mike McConnell applied for a marriage license in Hennepin County, Min- nesota. They were turned down. For a gener- ation, subsequent efforts in other venues met the same fate. In the 1990s, Hawaii’s state supreme court seemed, for a time, likely to order same-sex marriage, but a state constitu- tional amendment preemptively overruled the court. Vermont’s civil-union program, adopted in 2000 by order of Vermont’s high court, offered state (though not federal) ben- efits to same-sex couples. That program, however, was seen as a substitute for full- fledged marriage. No state, it seemed, was prepared to grant legal matrimony to same- sex couples.
Last year, that taboo broke. Under order of its state supreme court, Massachusetts began offering marriage licenses to same-sex cou- ples. More than forty states, by contrast, have enacted laws or, in some cases, consti- tutional amendments declaring they would not recognize same-sex marriage—a trend that escalated in 2004 when thirteen states passed constitutional amendments banning same-sex marriage.1 The issue pits left against right and, perhaps more significant, old against young: Americans over age forty- four oppose same-sex marriage by a decisive majority, but a plurality of Americans under age thirty support it.2 Today, across genera- tions and geography, the country is divided over the meaning of marriage as it has not been since the days when states were at odds over interracial marriages and no-fault di- vorces—if then.
For many of its advocates, same-sex marriage is a civil rights issue, plain and simple. For many of its opponents, it is just as simply a moral issue. In reality, it is both, but it is also a family-policy issue—one of the most impor- tant, yet least studied, family-policy issues on the American scene today. The most contro- versial of its family-policy aspects is the ques- tion: how might same-sex marriage affect the well-being of American children?
Counting the Children To begin thinking about gay marriage and children, it is useful to pose another question: which children? Consider three groups of children. First, there are those who are now being raised, or who would in the future be raised, by same-sex couples even if same-sex marriage were unavailable. No one knows just how many American children are being raised by same-sex couples today. The 2000 census counted about 594,000 households headed by same-sex couples, and it found children living in 27 percent of such house- holds.3 The census did not, however, count the number of children in each home. So all we can say is that, conservatively, at least 166,000 children are being raised by gay and lesbian couples.4 Many of these children, whatever their number, would be directly af- fected by the introduction of same-sex mar- riage—a point we will return to later in this article.
On the obverse is a second group that is much larger but on which the effects, if any, of same-sex marriage are entirely unclear: children not being raised by same-sex cou- ples—which is to say, children being raised by opposite-sex couples, married or unmar- ried, or by single parents. How might same- sex marriage affect these children? Or, to put it another way, how (if at all) might homosex- ual marriage affect heterosexual behavior?
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Some opponents, such as the journalist Mag- gie Gallagher and Massachusetts Governor Mitt Romney, argue that same-sex marriage will signal governmental indifference to whether families contain both a mother and a father.5 Such legal and cultural indifference, they fear, would further erode the norm of childrearing by both biological parents; more children would end up in fatherless homes. On the other hand, some advocates, such as Jonathan Rauch, argue that same-sex mar- riage will signal the government’s (and soci- ety’s) preference for marriage over other family arrangements, reinforcing marriage’s status at a time when that status is under strain.6 Same-sex marriage, in this view, would encourage marriage over nonmarriage and thus would benefit adults and children alike. Still others believe that same-sex mar- riage will have little or no effect of any sort on heterosexual families, if only because the number of gay and lesbian couples is small. There is, however, no evidence at all that bears directly on this question, at least in the American context, because until last year same-sex marriage had never been tried in the United States.7
In principle, a third class of children might be affected by same-sex marriage: additional children, so to speak, who might grow up with same-sex couples as a direct or indirect result of the legalization of same-sex mar- riage. Although even many opponents of same-sex marriage believe that gay and les- bian people should be allowed to foster and adopt children under certain circumstances, they worry that legalizing same-sex marriage would send an irrevocable cultural signal that same-sex parenting and opposite-sex parent- ing are interchangeable, when in fact they may not be equally good for children. In any case, the advent of same-sex marriage would probably make same-sex parenting easier
legally and more widely accepted socially, particularly for couples adopting children from the child welfare system. It is thus not surprising that questions about same-sex par- enting come up time and again in discussions of same-sex marriage. To those questions we turn next.
What Are Same-Sex Families? To speak of same-sex parenting is, almost by definition, to bundle together an assortment of family arrangements. Most children of op- posite-sex parents got there the old-fashioned way, by being the biological children of both parents. Because same-sex couples cannot conceive together, their children arrive by a multiplicity of routes into families that as- sume a variety of shapes. In many cases (no one knows just how many), children living with gay and lesbian couples are the biologi- cal offspring of one member of the couple, whether by an earlier marriage or relation- ship, by arrangement with a known or anony- mous sperm donor (in the case of lesbian couples), or by arrangement with a surrogate birth mother (in the case of male couples). Though, again, numbers are unavailable, male couples seem more likely than female couples to adopt children who are not biolog- ically related to either custodial parent. It is worth noting that these different paths to par- enthood lead to disparate destinations. The family dynamics of a female couple raising one partner’s biological son from a previous marriage may be quite different from the dy- namics of, say, a male couple raising a biolog- ically unrelated son adopted from foster care.
Legal arrangements vary, too. Nonbiological parents in same-sex couples who seek to be legally recognized as parents must adopt, and the rules that govern adoption are as diverse as the state legislatures that pass adoption laws, the state agencies that promulgate
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adoption regulations, and the state courts that interpret them. All the states allow mar- ried couples to apply jointly—as couples—for adoption (but marriage is no guarantee that the adoption will be approved); and all the states allow unmarried individuals to apply for adoption. Only one state, Utah, denies adoption to unmarried couples (heterosexual and homosexual). And so marriage and adop- tion, though intertwined, are treated as dis- tinct matters by the law and the courts.
Beyond that point, the rules diverge, espe- cially for same-sex couples. Florida, uniquely, bans homosexual individuals from adopting. Mississippi explicitly bans adoption by same- sex couples. At the other end of the spec- trum, as of mid-2004 nine states and the Dis- trict of Columbia permitted same-sex couples to apply jointly for adoption, meaning that both members of the couple could be simul- taneously granted parental status. In almost two dozen other states, courts in either the whole state or in some jurisdictions allow “second-parent” adoptions, under which one gay or lesbian partner can petition to become the second parent of the first partner’s bio- logical or previously adopted child. (For in- stance, a gay man could first adopt as a single parent, and then his partner could apply to become the child’s other legal parent.) In the remaining states, same-sex couples are not el-
igible for either joint or second-parent adop- tion, which means that any children they might be raising are legally related to only one custodial parent.8
To study same-sex parenting, then, is to study not one phenomenon but many. As of this writing, indeed, the many same-sex couples whom researchers have studied share just one common trait: not one of them was legally married.9 So—with suitable caveats about the diversity of same-sex family rela- tionships and structures—what can we say about same-sex parenting and its impact on children? As it happens, the literature on same-sex parenting and its effects on chil- dren is significant and growing. For the pres- ent article, we reviewed most of it: more than fifty studies, many literature reviews, and ac- counts of a number of dissertations and con- ference papers dating back to the 1970s.
Why Same-Sex Parenting Is Hard to Study This body of research grew partly out of court cases in which lesbian and gay parents (or co-parents) sought to defend or obtain custody of children.10 Many researchers ap- proached the subject with a sympathetic or protective attitude toward the children and families they studied. Critics have accused researchers of downplaying differences be- tween children of gay and straight parents, especially if those differences could be inter- preted unfavorably—a charge that has been debated in the field.11 We will not enter that debate here, beyond noting that the best de- fense against bias is always to judge each study, whatever its author’s motivation, criti- cally and on its merits.
More significant, we believe, are the daunt- ing methodological challenges that the re- searchers faced, especially at first.
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As of this writing, the many same-sex couples whom researchers have studied share just one common trait: not one of them was legally married.
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Difficulty Finding Representative Samples Perhaps the most important such challenge is that researchers have no complete listing of gay and lesbian parents from which to draw representative samples (probability samples, as researchers call them). To find study par- ticipants, they have often had to rely on word-of-mouth referrals, advertisements, and other recruiting tools that may produce samples not at all like the full population of gay and lesbian parents. All but one of the studies we examined employed samples com- posed of either totally or predominantly white participants. Almost all the participants were middle- to upper-middle-class, urban, well educated, and “out.” Most were lesbians, not gay men. Participants were often clus- tered in a single place. It may be that most same-sex parents are white, relatively afflu- ent lesbians, or it may be merely that these parents are the easiest for researchers to find and recruit, or both may be partly true. No one knows. Absent probability samples, gen- eralizing findings is impossible.
Small Sample Sizes Gay- and lesbian-headed families can be dif- ficult to locate, and funding for this research has been sparse.12 Those factors and others have forced researchers to deal with the chal- lenge of small samples. Most studies describ- ing the development of children raised in gay or lesbian homes report findings on fewer than twenty-five children, and most compara- tive studies compare fewer than thirty chil- dren in each of the groups studied. Other things being equal, the smaller the number of subjects in the groups studied, the harder it is to detect differences between those groups.13
Comparison Groups The question is often not just how well same- sex parents and their children fare, but com-
pared with whom? Should a single lesbian mother be compared with a single heterosex- ual mother? If so, divorced or never married? Should a two-mother family be compared with a two-biological-parent family, a mother- father family headed by one biological parent and one stepparent, or a single-parent fam- ily? It all depends on what the researcher wants to know. Identifying appropriate com- parison groups has proved vexing, and no consistent or wholly convincing approach has emerged. Many studies mix family forms in both their homosexual and heterosexual groups, blurring the meaning of the compari- son being made. Some studies do not use comparison groups at all and simply describe children or adults in same-sex households. Some, in fact, have argued that comparing gay and straight families, no matter how closely matched the groups, is inappropriate inasmuch as it assumes a “heterosexual norm” against which same-sex parents and their children should be judged.14
Subject-Group Heterogeneity As we noted, families headed by same-sex parents are structurally very different from one another. That fact presents researchers with another challenge, because studies are most accurate when each of the groups being examined or compared is made up of similar individuals or families. When the pool of po- tential subjects is small, as it is for same-sex parents, assuring within-group homogeneity is often difficult. Thus some studies use “mixed” groups of lesbian-headed house- holds, yielding results that are difficult to in- terpret. For example, partnered lesbians are often included with single lesbians, with all called “single” by the author; children who live both in and outside the home are dis- cussed as a single group; children born into homes that originated both as heterosexual marriages and as lesbian households are in-
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which group of children fared better. Most failed to control for potentially confounding factors, such as divorce stress or the status of a current relationship with a former partner.
Putting the Research Challenges in Perspective This is an imposing catalog of challenges and shortcomings, and it needs to be seen in con- text. The challenges we describe are by no means unique to the research on same-sex parenting, and neither are the flaws that re- sult.16 Studying small, hard-to-locate popula- tions is inherently difficult, especially if the subject pool is reticent. One of us, Meezan, has been conducting and reviewing field re- search on foster and adoptive families since the 1970s; he finds that the studies reviewed here are not under par by the standards of their discipline at the time they were con- ducted.
What the Evidence Shows— and Means So what do the studies find? Summarizing the research, the American Psychological As- sociation concluded in its July 2004 “Resolu- tion on Sexual Orientation, Parents, and Children,”
There is no scientific basis for conclud- ing that lesbian mothers or gay fathers are unfit parents on the basis of their sexual orientation. . . . On the contrary, results of research suggest that lesbian and gay parents are as likely as hetero- sexual parents to provide supportive and healthy environments for their chil- dren. . . . Overall, results of research suggest that the development, adjust- ment, and well-being of children with lesbian and gay parents do not differ markedly from that of children with heterosexual parents.17
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cluded in the same sample; and separated and divorced women are mixed with never- married women and called “single.” In at least one of the studies reviewed, children of transsexuals and lesbians, children who are both biological and adopted, and parents who are both biological and adopters are treated as a single group.
Measurement Issues Another challenge is to gauge how well chil- dren are faring. Few studies collect data from the children directly, and even fewer observe the children’s behavior—the gold standard for research of this kind, but more expensive and time-consuming than asking parents and chil- dren to evaluate themselves. Some studies use nonstandardized measures, while others use either measures with poor reliability and validity or measures whose reliability and va- lidity were either not known or not reported.
Another measurement issue arises from the sometimes dated content of the measures used. In one 1986 study, for example, dress- ing in pants and wanting to be a doctor or lawyer were considered masculine for girls, and seeking leadership roles was considered a display of dominance.15 Those classifica- tions look rather quaint today.
Statistical Issues To some extent, researchers can compensate for heterogeneous samples and nonequiva- lent comparison groups by using statistical methods that control for differences, particu- larly in studies with larger samples. Not all studies have done so, especially in the era be- fore today’s advanced software made statisti- cal work considerably easier. Some studies thus did not perform appropriate statistical analyses when that was possible. Others did not report the direction of the significant re- lationships that they found, leaving unclear
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Our own review of the evidence is consistent with that characterization. Specifically, the research supports four conclusions.
First, lesbian mothers, and gay fathers (about whom less is known), are much like other parents. Where differences are found, they sometimes favor same-sex parents. For in- stance, although one study finds that hetero- sexual fathers had greater emotional involve- ment with their children than did lesbian co-mothers, others find either no difference or that lesbian co-mothers seem to be more involved in the lives of their children than are heterosexual fathers.18
Second, there is no evidence that children of lesbian and gay parents are confused about their gender identity, either in child- hood or adulthood, or that they are more likely to be homosexual. Evidence on gen- der behavior (as opposed to identification) is mixed; some studies find no differences, whereas others find that girls raised by les- bians may be more “masculine” in play and aspirations and that boys of lesbian parents are less aggressive.19 Finally, some interest- ing differences have been noted in sexual behavior and attitudes (as opposed to orien- tation). Some studies report that children, particularly daughters, of lesbian parents adopt more accepting and open attitudes to- ward various sexual identities and are more willing to question their own sexuality. Oth- ers report that young women raised in lesbian-headed families are more likely to have homosexual friends and to disclose that they have had or would consider having same-sex sexual relationships.20 (Just how to view such differences in behavior and atti- tude is a matter of disagreement. Where conservatives may see lax or immoral sexual standards, liberals may see commendably open-minded attitudes.)
Third, in general, children raised in same-sex environments show no differences in cogni- tive abilities, behavior, general emotional development, or such specific areas of emo- tional development as self-esteem, depres- sion, or anxiety. In the few cases where dif- ferences in emotional development are found, they tend to favor children raised in
lesbian families. For example, one study re- ports that preschool children of lesbian mothers tend to be less aggressive, bossy, and domineering than children of heterosexual mothers. Another finds more psychiatric dif- ficulties and a greater number of psychiatric referrals among children of heterosexual par- ents.21 The only negative suggestion to have been uncovered about the emotional devel- opment of children of same-sex parents is a fear on the part of the children—which seems to dissipate during adolescence when sexual orientation is first expressed—that they might be homosexual.22
Finally, many gay and lesbian parents worry about their children being teased, and children often expend emotional energy hiding or oth- erwise controlling information about their par- ents, mainly to avoid ridicule. The evidence is mixed, however, on whether the children have
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There is no evidence that children of lesbian and gay parents are confused about their gender identity, either in childhood or adulthood, or that they are more likely to be homosexual.
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heightened difficulty with peers, with more studies finding no particular problems.23
The significance of this body of evidence is a matter of contention, to say the least. Steven Nock, a prominent scholar reviewing the liter- ature in 2001 as an expert witness in a Cana- dian court case, found it so flawed method- ologically that the “only acceptable conclusion at this point is that the literature on this topic does not constitute a solid body of scientific evidence,” and that “all of the articles I re- viewed contained at least one fatal flaw of de- sign or execution. . . . Not a single one was conducted according to generally accepted standards of scientific research.”24 Two equally prominent scholars, Judith Stacey and Timo- thy Biblarz, vigorously disputed the point: “He is simply wrong to say that all of the studies published to date are virtually worthless and unscientific. . . . If the Court were to accept Professor Nock’s primary criticisms of these studies, it would have to dismiss virtually the entire discipline of psychology.”25
We believe that both sides of that argument are right, at least partially. The evidence pro- vides a great deal of information about the particular families and children studied, and the children now number more than a thou- sand.26 They are doing about as well as chil- dren normally do. What the evidence does not provide, because of the methodological difficulties we outlined, is much knowledge about whether those studied are typical or atypical of the general population of children raised by gay and lesbian couples. We do not know how the normative child in a same-sex family compares with other children. To make the same point a little differently, those who say the evidence shows that many same- sex parents do an excellent job of parenting are right. Those who say the evidence falls short of showing that same-sex parenting is
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equivalent to opposite-sex parenting (or bet- ter, or worse) are also right.
Fortunately, the research situation is improv- ing, so we may soon have clearer answers. Over the past several decades researchers have worked to improve their methods, and the population of gay and lesbian parents has become easier to study. Studies using larger samples are appearing in the literature, the first long-term study following the same group of people over time has been pub- lished, and studies using representative, pop- ulation-based samples have appeared. More studies now use standardized instruments with acceptable reliability and validity. Re- cent studies are much more likely to match comparison groups closely and are also more likely to use statistical methods to control for differences both within and between the study groups.
We identified four studies—all comparatively recent (dating from 1997)—that we believe represent the state of the art, studies that are as rigorous as such research could today rea- sonably be expected to be (see box). Their conclusions do not differ from those of the main body of research.
It bears emphasizing that the issue of same- sex parenting is directly relevant to same-sex marriage only to the extent that the latter ex- tends the scope of the former. Gay and les- bian couples make up only a small share of the population, not all of those couples have or want children, and many who do have or want children are likely to raise them whether or not same-sex marriage is legal. The number of additional children who might be raised by same-sex couples as a re- sult of same-sex marriage is probably small. Moreover, an important question, where family arrangements are concerned, is al-
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Four Strong Studies How do children of lesbian or gay parents fare and compare? Following are summaries of four methodologically rigorous studies.
Wainwright, Russell, and Patterson (2004) Methodology: Drawing on a nationally representative sample of more than 12,105 adolescents in the National Study of Adolescent Health, the authors compared forty-four adolescents being raised by female same-sex couples with forty-four raised by heterosexual couples. The comparison groups were matched child for child (not on group averages) on many traits, and the study sam- ples did not differ on numerous demographic characteristics from the national sample of 12,105. Metrics were mostly standardized instruments with good reliability and validity, and many were the most commonly used measures in the field. Multivariate analysis was used to determine the im- pact of family type, controlling for other demographic and social factors.
Findings: “No differences in adolescents’ psychosocial adjustment,” including depressive symp- toms, anxiety, and self-esteem; no differences in grade-point averages or problems in school. Adolescents with same-sex parents reported feeling more connected to school. The authors found that “it was the qualities of adolescent-parent relationships rather than the structural features of families (for example, same- versus opposite-sex parents) that were significantly associated with adolescent adjustment. . . . Across a diverse array of assessments, we found that the personal, family, and school adjustment of adolescents living with same-sex parents did not differ from that of adolescents living with opposite-sex parents.”
Golombok and others (2003) Methodology: In southwest England, researchers drew on a geographic population study of almost 14,000 mothers and their children to identify eighteen lesbian-mother families (headed both by lesbian couples and single mothers) and then added twenty-one lesbian mothers identified through personal referrals, a lesbian mothers’ support organization, and advertisements. The twenty-one supplementary subjects were “closely comparable” to the eighteen drawn from the population study. The resulting sample of thirty-nine “cannot be deemed truly representative of the population of lesbian-mother families” but “constitutes the closest approximation achieved so far.” Those families were compared with seventy-four families headed by heterosexual couples and sixty families headed by single heterosexual mothers. Standardized measures were adminis- tered and interview data were coded by personnel blind to the family’s type and structure and were checked for reliability.
Findings: “Children reared by lesbian mothers appear to be functioning well and do not experience negative psychological consequences arising from the nature of their family environment.” After the authors controlled for initial differences between groups (age of children, number of siblings) and the number of statistical comparisons made, “the only finding that remained significant . . . was greater smacking of children by fathers than by co-mothers.” Also, “boys and girls in lesbian- mother families were not found to differ in gender-typed behavior from their counterparts from
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heterosexual homes.” Children did better psychologically with two parents, regardless of whether the parents were same-sex or opposite-sex couples, than with a single mother.
Chan, Raboy, and Patterson (1998) Methodology: Using a sample drawn from people who used the same sperm bank (in California), and thus controlling for the effects of biological relatedness, the researchers compared four fam- ily structures: lesbian couples (thirty-four), lesbian single mothers (twenty-one), heterosexual cou- ples (sixteen), and single heterosexual mothers (nine). Participation rates were significantly higher for lesbian couples than for others. Though education and income levels were above average for all groups, lesbian parents had completed more education, and lesbian and coupled families had higher incomes; otherwise group demographics were similar. Information on children’s adjustment was collected from parents and teachers, using standardized measures with good reliability and validity.
Findings: “Children’s outcomes were unrelated to parental sexual orientation,” for both single- parent and coupled families. “On the basis of assessments of children’s social competence and behavior problems that we collected, it was impossible to distinguish children born to and brought up by lesbian versus heterosexual parents.” Sample size was large enough to detect large or medium effects but not small ones, so family structure had either small or nonexistent effects.
Brewaeys and others (1997) Methodology: Using a sample drawn from the fertility clinic at Brussels University Hospital, thirty lesbian-couple families who conceived through donor insemination (DI) were compared with thirty-eight heterosexual families who conceived through DI and thirty heterosexual families who conceived naturally. Response rates were generally good, but better for lesbian co-mothers than for heterosexual fathers. Statistical analysis controlled for demographic differences between com- parison groups and for number of comparisons made, and good metrics were used.
Findings: Children’s emotional and behavior adjustment “did not differ” between lesbian and op- posite-sex families, and “boys and girls born in lesbian mother families showed similar gender-role behaviour compared to boys and girls born in heterosexual families.” The quality of parents’ rela- tionship with each other did not differ across the two family types, nor did the quality of interac- tion between children and biological parents. “However, one striking difference was found be- tween lesbian and heterosexual families: social mothers [that is, nonbiological lesbian parents] showed greater interaction with their children than did fathers.”
Sources: Jennifer L. Wainwright, Stephen T. Russell, and Charlotte J. Patterson, “Psychosocial Adjustment, School Outcomes, and Roman- tic Relationships of Adolescents with Same-Sex Parents,” Child Development 75, no. 6 (December 2004): 1886–98, quotes pp. 1892, 1895; Susan Golombok and others, “Children with Lesbian Parents: A Community Study,” Developmental Psychology 39, no. 1 (January 2003): 20–33, quotes pp. 30, 31; Raymond Chan, Barbara Raboy, and Charlotte J. Patterson, “Psychosocial Adjustment among Children Conceived via Donor Insemination by Lesbian and Heterosexual Mothers,” Child Development 69, no. 2 (April 1998): 443–57, quotes p. 453; A. Brewaeys and others, “Donor Insemination: Child Development and Family Functioning in Lesbian Mother Families,” Human Repro- duction 12, no. 6 (1997): 1349–59, quotes pp. 1356, 1357.
Four Strong Studies (continued)
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ways, “Compared with what?” We doubt that same-sex marriage would shift any significant number of children out of the homes of lov- ing heterosexual parents and into same-sex households; and, to the extent that same-sex marriage helps move children out of foster care and into caring adoptive homes, the prospect should be welcomed. If the past several decades’ research establishes any- thing, it is that the less time children spend in the public child welfare system, the better. Put simply, research shows that the state makes a poor parent for many of the children in its custody, particularly compared with sta- ble, loving, developmentally appropriate en- vironments.
Will Kids Benefit When Same-Sex Parents Marry? We turn, finally, to a group of children to whom same-sex marriage, per se, is directly and immediately relevant—the children we mentioned early on and then set aside. These are children who are being raised, or who would be raised, by same-sex couples even without same-sex marriage. For them, the advent of legal same-sex marriage would mean that their parents could get married. Whether or not same-sex marriage would ex- pand the scope of same-sex parenting, it clearly would expand the scope of same-sex married parenting. Marriage would also af- fect family dynamics. Some gay and lesbian cohabitants with children would become spouses; others might find that the prospect of marriage deepened their bond; still others might break up in disagreement over whether to tie the knot.
We know of no reputable scholar who believes that their parents’ getting married would harm these children on average (though par- ticular marriages may be bad for children). The pertinent question is: to what extent, and
in what ways, might children benefit from the marriage of their lesbian and gay parents? This question turns out to be somewhat more difficult to answer than it may appear.
There is a vast literature on how marriage benefits children, and this is not the place to rehash it. Admirable discussions may be found in the articles by Paul Amato and by Adam Thomas and Isabel Sawhill elsewhere in this volume.27 Of necessity, however, the literature pertains to heterosexual couples, not homosexual ones. Moreover, most such studies look at what happens when children’s two biological parents marry. In same-sex families, of course, at least one parent is not the child’s biological parent. Research on whether children of heterosexual couples do better in married than in cohabiting step- families (where only one parent is the child’s biological parent) is sparse and inconclu- sive.28 Whether that research is pertinent to same-sex couples—who may be more likely than cohabiting straight couples to bring chil- dren into the home as a carefully considered joint decision—is at best unclear.
In other words, virtually no empirical evi- dence exists on how same-sex parents’ mar- riage might affect their children. Nonethe- less, we can do some theoretical probing, if only to understand how the introduction of marriage might affect the dynamics of same- sex families.
One benefit of traditional marriage—some would argue the central benefit—is that it helps tie fathers and mothers to their biological children. Obviously, that would not be the case with same-sex marriage, where one or both parents are, by definition, nonbiological. There are three other broad areas, however, where benefits to children of opposite-sex marriage might carry over to same-sex families.
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The first is material well-being. In general, heterosexual marriage increases the eco- nomic capital available to children. Marriage conveys such public and private economic benefits as family leave from work and spousal health insurance eligibility (though it can also raise tax burdens; see the article by Adam Carasso and Eugene Steuerle in this volume). Marriage also entails a host of provi- sions that help ensure financial continuity if a spouse dies or is disabled. As Evan Wolfson
notes in Why Marriage Matters, “If one of the parents in a marriage dies, the law pro- vides financial security not only for the sur- viving spouse, but for the children as well, by ensuring eligibility for all appropriate entitle- ments, such as Social Security survivor bene- fits, and inheritance rights.”29
The family dynamics of marriage also seem to bring material benefits, partly because mar- ried couples are more likely to pool their re- sources, and partly because they engage in economic specialization, with one partner fo- cusing primarily on work outside the home and the other primarily on work inside the home.
No doubt some of these advantages would carry over to homosexual marriages. Cer- tainly the availability of various forms of spousal survivors’ benefits, such as Social Se- curity and tax-free inheritance of a home,
would benefit the child of a surviving same- sex spouse. The same would be true of dis- ability and medical benefits, which cushion families—and thus children—from economic shocks. Resource pooling may also increase somewhat. On the other hand, to whatever extent same-sex couples have already com- pensated for the unavailability of marriage by arranging their affairs to mimic marriage, the transition from cohabitation to marriage may bring them less of an economic “bonus.” Spe- cialization gains might also be smaller for same-sex couples, to whatever extent the in- side-outside division of labor is a function of gender roles rather than marriage as such.30
The second area where same-sex marriage might benefit children is in the durability and stability of the parental relationship. In the heterosexual world, a substantial body of research shows that, other things held equal, marriages are more durable and stable than cohabitation; and stability is, most scholars agree, of vital importance to children. To some extent, marriage may owe its greater durability to the simple fact that it is legally much harder to get out of than cohabitation. That may give couples an incentive to work out their problems. Yet there is reason to be- lieve that the act of marriage, in particular its status as a solemn commitment in the eyes of the couple and their community (and, for many, their God), fortifies as well as deepens couples’ bonds.
To what extent this would be true of same-sex couples is not as yet known in any rigorous way, but anecdotal evidence suggests that a similar dynamic may apply. Gay couples who have been formally married in Massachu- setts, Canada, and San Francisco (the city briefly allowed such marriages, subsequently ruled invalid) have attested that the act of marriage has deepened their relationship—
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Another area where same-sex marriage might benefit children is in the durability and stability of the parental relationship.
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often to no one’s surprise more than their own.31 Some people have predicted that mar- ried same-sex couples (especially male ones) will be less stable than married opposite-sex couples, but few if any have questioned that married same-sex couples will likely be more stable than unmarried same-sex couples.32
Finally, same-sex marriage might benefit children through social investment. Hetero- sexual marriage benefits children by bringing with it a host of social resources, some as tan- gible as legal and regulatory protections (spouses do not have to testify in court against each other, for example, and can per- manently reside together in the United States even if one is not a citizen), others as intangi- ble as social prestige and unquestioned parental authority. Explaining why she wished she could marry her lesbian partner, one woman said, “We’re tired of having to ex- plain our relationship. When you say you’re married, everyone understands that.”33 The very fact that people routinely ask their friends and co-workers “How’s your hus- band?” or “How’s your wife?” tells couples— and their children—that they are perceived and treated as a family unit, with the auton- omy and clear responsibility that this implies. Marriage also brings closer and more formal relationships with in-laws and grandparents, who are more likely to relate to a nonbiologi- cal child as a full-fledged grandchild or niece or nephew if the parents’ union is formalized (and children who have more contact with grandparents tend to be better adjusted).34
Though less stigma attaches to cohabitation today than in the past, married families still benefit from stronger community support and kinship networks, easing the burden on parents and children alike.
Some of these benefits would no doubt carry over to same-sex married couples. For in-
stance, it seems reasonable to imagine that the formal, socially recognized bond of mar- riage may strengthen the emotional attach- ments between children and their nonbiolog- ical same-sex parents and grandparents. Marriage might also induce more jurisdic- tions to permit second-parent adoptions by gay and lesbian families. Such adoptions can be very meaningful, bringing the nonbiologi- cal parent closer to the child. As one parent put it, “I really didn’t feel Jon was my son until I got that stupid piece of paper.” An- other couple felt that formal adoption put a “seal of legitimacy” on the parent-child rela- tionship.35
Beyond the circle of kin, however, the social dynamics of same-sex marriage may be rather complicated. In communities that embrace the notion of same-sex marriage, marriage might bring added support and investment from neighbors, teachers, employers, peers, and others on whom children and parents rely. Indeed, the very existence of same-sex mar- riage may reduce the stigmatization or per- ceived peculiarity of same-sex families, which would presumably reduce the social pressure on the children. On the other hand, social ac- ceptance of same-sex marriages as “real” mar- riages—marriages viewed as authentic by family, friends, and such institutions as churches and neighborhood groups—cannot be forced. In Massachusetts, for example, a labor union declared that its members’ same- sex spouses would not be eligible for health and pension benefits.36 If imposed legally over the resistance of a community, same-sex mar- riage might bring little additional social invest- ment; indeed, it might become a new source of backlash against same-sex couples and their children. For children, same-sex marriage might in some places bring closer and warmer relationships with extended families and com- munities, but in other places it might relieve
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one form of stigma or hostility only to replace it with another.
Our own belief, on balance, is that society’s time-honored preference for marriage over nonmarriage as a context for raising children would prove as justified for same-sex couples as for opposite-sex couples, for many of the same reasons. One piece of evidence is that many same-sex couples who are raising chil- dren say they need marriage. If it is true that parents are generally competent judges of what is good for their children, then their opinion deserves some weight.
An Opportunity to Learn It is important, we think, to recognize that social science cannot settle the debate over same-sex marriage, even in principle. Some people believe the United States should have same-sex marriage as a matter of basic right even if the change proves deleterious for children; others believe the country should reject same-sex marriage as a matter of morality or faith even if the change would benefit kids. Consequential factors are but one piece of a larger puzzle; and, as is almost always the case, social research will for the most part follow rather than lead the national debate.
Both authors of this paper are openly gay and advocates of same-sex marriage, a fact that readers should weigh as they see fit. In any case, our personal judgments about the facts presented here are no better than anyone else’s. Two points, however, seem to us to be both incontrovertible and important.
First, whether same-sex marriage would prove socially beneficial, socially harmful, or trivial is an empirical question that cannot be settled by any amount of armchair theorizing. There are plausible arguments on all sides of
the issue, and as yet there is no evidence suf- ficient to settle them.
Second, the costs and benefits of same-sex marriage cannot be weighed if it cannot be tried—and, preferably, compared with other alternatives (such as civil unions). Either a national constitutional ban on same-sex mar- riage or a national judicial mandate would, for all practical purposes, throw away the chance to collect the information the country needs in order to make a properly informed decision.
As it happens, the United States is well situ- ated, politically and legally, to try same-sex marriage on a limited scale—without, so to speak, betting the whole country. As of this writing, one state (Massachusetts) is marry- ing same-sex couples, two others (Vermont and Connecticut) offer civil unions, and sev- eral more (notably California) offer partner- benefit programs of one sort or another. Most other states have preemptively banned gay marriage, and some have banned civil unions as well. The upshot is that the nation is run- ning exactly the sort of limited, localized ex- periment that can repay intensive study.
In particular, the clustering in four neighbor- ing states of all three kinds of arrangement— same-sex marriage in Massachusetts, civil unions in Vermont and Connecticut, and neither in New Hampshire—offers a near- ideal natural laboratory. A rigorous study of how children fare when they are raised in these various arrangements and environ- ments would not be easy to design and exe- cute, and it would require a considerable amount of time and money; but the knowl- edge gained would make the debate over gay marriage better lit and perhaps less heated, to the benefit of all sides of the argument.
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Endnotes
1. The thirteen were Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana,
North Dakota, Oklahoma, Ohio, Oregon, and Utah.
2. Los Angeles Times poll, March 27–30, 2004. Among respondents under age thirty, 44 percent supported
same-sex marriage and 31 percent supported civil unions; 22 percent favored neither.
3. U.S. Census Bureau, Married-Couple and Unmarried-Partner Households: 2000 (February 2003). See also
Gary J. Gates and Jason Ost, The Gay and Lesbian Atlas (Washington: Urban Institute, 2004), p. 45.
4. Because same-sex couples, especially those with children, may be reluctant to identify themselves to cen-
sus takers, and because small populations are inherently difficult to count, this number is likely to be an un-
dercount. See Gates and Ost, The Gay and Lesbian Atlas (see note 3) . Other estimates range much higher.
See, for example, Frederick W. Bozett, “Gay Fathers: A Review of the Literature,” in Psychological Per-
spectives on Lesbian and Gay Male Experiences, edited by Linda Garnets and Douglas Kimmel (Columbia
University Press, 1993), pp. 437–57.
5. See, for example, Maggie Gallagher, “What Is Marriage For?” Weekly Standard, August 4–11, 2003; and
Mitt Romney, testimony before the U.S. Senate Judiciary Committee, June 22, 2004.
6. Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (New
York: Times Books, 2004).
7. As of this writing, the Netherlands, Belgium, and several Canadian provinces had adopted same-sex mar-
riage, but only recently. The effects, if any, on the welfare of children and families are both unclear and dis-
puted. See, for example, Stanley Kurtz, “The End of Marriage in Scandinavia,” Weekly Standard, February
2, 2004; and in rebuttal, M. V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Under-
mine Heterosexual Marriage? Evidence from Scandinavia and the Netherlands, Discussion Paper (Council
on Contemporary Families and Institute for Gay and Lesbian Strategic Studies, July 2004). Also in rebut-
tal, William N. Eskridge, Darren R. Spedale, and Hans Ytterberg, “Nordic Bliss? Scandinavian Registered
Partnerships and the Same-Sex Marriage Debate,” Issues in Legal Scholarship, Article 4, available at
www.bepress.com/ils/iss5/art4/.
8. The authors are indebted to the Human Rights Campaign, the Lambda Legal Defense and Education
Fund, and the National Adoption Information Clearinghouse for information on state adoption policies.
Because adoption policies are often set by courts on a case-by-case basis, adoption rules are in flux and vary
within as well as between states. The summary counts presented here are subject to interpretation and may
have changed by the time of publication.
9. At this writing, same-sex marriage was too new in Massachusetts to have generated any research results.
10. “A third perspective from which [research] interest in lesbian and gay families with children has arisen is
that of the law. . . . Because judicial and legislative bodies in some states have found lesbians and gay men
unfit as parents because of their sexual orientation, lesbian mothers and gay fathers have often been denied
custody or visitation with their children following divorce.” Charlotte Patterson, “Lesbian Mothers, Gay
Fathers, and Their Children,” in Lesbian, Gay and Bisexual Identities over the Lifespan: Psychological Per-
spectives, edited by Anthony R. D’Augelli and Charlotte Patterson (Oxford University Press, 1995), p. 264.
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11. Judith Stacey and Timothy J. Biblarz examine twenty-one studies and find that “researchers frequently
downplay findings indicating difference regarding children’s gender and sexual preferences and behavior.”
Judith Stacey and Timothy Biblarz, “(How) Does the Sexual Orientation of Parents Matter?” American So-
ciological Review 66 (April 2001): 159–83. Golombok and others reply that it is Stacey and Biblarz who
“have overemphasized the differences that have been reported between children with lesbian and hetero-
sexual parents.” Susan Golombok and others, “Children with Lesbian Parents: A Community Study,” De-
velopmental Psychology 39, no. 1 (January 2003): 21.
12. For example, as best we can discern, none of the studies reviewed for this article was funded by the federal
government, the major source of social science research funding in the United States.
13. For example, Tasker and Golombok note that there was only a 51 percent chance of detecting a moderate
effect size in their sample, and an even lower possibility (if any at all) of detecting a small effect size. See
Fiona Tasker and Susan Golombok, Growing Up in a Lesbian Family (New York: Guilford Press, 1997).
14. From the perspective of gay men, Gerald Mallon states, “Usually, explorations of gay parenting focus on
the differences between gay and straight parents. [I] approach this topic through a gay-affirming lens,
meaning that I do not take heterosexuality as the norm and then compare gay parenting to that model and
discuss how it measures up. In most cases heterosexually oriented men become fathers for different rea-
sons and in different ways than do gay men. Comparisons of gay fathers to heterosexual fathers are there-
fore inappropriate.” Gerald Mallon, Gay Men Choosing Parenthood (Columbia University Press, 2004), p.
xii. From a lesbian perspective, Victoria Clarke states, “In the rush to prove . . . our similarities to hetero-
sexual families, oppressive norms of femininity, masculinity, and heterosexuality are reinforced. The use of
sameness arguments suppresses feminist critiques of the family as a prime site of hetero-patriarchal op-
pression. . . . By taking mainstream concerns seriously, lesbian and gay psychologists inadvertently invest
them with validity and reinforce the anti-lesbian agendas informing popular debates about lesbian parent-
ing.” Victoria Clarke, “Sameness and Differences in Lesbian Parenting,” Journal of Community and Ap-
plied Social Psychology 12 (2002): 218.
15. Richard Green and others, “Lesbian Mothers and Their Children: A Comparison with Solo Parent Hetero-
sexual Mothers and Their Children,” Archives of Sexual Behavior 15, no. 2 (1986): 167–83.
16. For example, similar issues arise in the study of transracial adoption: “Study findings that support greater
use of transracial adoption as a placement option . . . are fraught with conceptual and methodological limi-
tations. . . . For instance, many have small sample sizes and no—or inappropriate—comparison groups.
While they tend to be cross-sectional, those that are longitudinal are potentially biased from sample attri-
tion.” Devon Brooks and Richard P. Barth, “Adult Transracial and Inracial Adoptees: Effects of Race, Gen-
der, Adoptive Family Structure, and Placement History on Adjustment Outcomes,” American Journal of
Orthopsychiatry 69 (January 1999): 88.
17. Available at www.apa.org/pi/lgbc/.
18. A. Brewaeys and others, “Donor Insemination: Child Development and Family Functioning in Lesbian
Mother Families,” Human Reproduction 12 (1997): 1349–59; David K. Flaks and others, “Lesbians Choosing
Motherhood: A Comparative Study of Heterosexual Parents and Their Children,” Developmental Psychology
31 (1995): 105–14; Golombok and others, “Children with Lesbian Parents” (see note 11), pp. 20–33; Katrien
Vanfraussen, Ingrid Ponjaert-Kristoffersen, and Anne Brewaeys. “Family Functioning in Lesbian Families
Created by Donor Insemination,” American Journal of Orthopsychiatry 73, no. 1 (January 2003): 78–90.
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19. Green and others, “Lesbian Mothers and Their Children” (see note 15); Beverly Hoeffer, “Children’s Acqui-
sition of Sex Role Behavior in Lesbian-Mother Families,” American Journal of Orthopsychiatry 51, no. 3
(1981): 536–44; Ailsa Steckel, “Psychosocial Development of Children of Lesbian Mothers,” in Gay and Les-
bian Parents, edited by Frederick W. Bozett (New York: Praeger, 1987), pp. 75–85.
20. Lisa Saffron, “What about the Children?” Sons and Daughters of Lesbian and Gay Parents Talk about Their
Lives (London: Cassell, 1996); Tasker and Golombok, Growing Up in a Lesbian Family (see note 13). It is
unclear whether the young women are more likely to engage in same-sex relations, more likely to disclose
them, or some combination of the two.
21. Steckel, “Psychosocial Development of Children of Lesbian Mothers” (see note 19); Susan Golombok, Ann
Spencer, and Michael Rutter, “Children in Lesbian and Single-Parent Households: Psychosexual and Psychi-
atric Appraisal,” Journal of Child Psychology and Psychiatry 24, no. 4 (1983): 551–72.
22. Karen G. Lewis, “Children of Lesbians: Their Point of View,” Social Work 25 (May 1980): 198–203; Ann
O’Connell, “Voices from the Heart: The Developmental Impact of Mother’s Lesbianism on Her Adolescent
Children,” Smith College Studies in Social Work 63, no. 3 (June 1993): 281–99; S. J. Pennington, “Children
of Lesbian Mothers,” in Gay and Lesbian Parents, edited by Bozett (see note 19), pp. 58–74.
23. Phillip A. Belcastro and others, “A Review of Data Based Studies Addressing the Effects of Homosexual
Parenting on Children’s Sexual and Social Functioning,” Journal of Divorce and Remarriage 20, nos. 1–2
(1993): 105–22; Frederick W. Bozett, “Children of Gay Fathers,” Gay and Lesbian Parents, edited by Bozett
(see note 19), pp. 39–57; Margaret Crosbie-Burnett and Lawrence Helmbrecht, “A Descriptive Empirical
Study of Gay Male Stepfamilies,” Family Relations 42 (1993): 256–62; Nanette Gatrell and others, “The Na-
tional Lesbian Family Study: Interviews with Mothers of Five-Year-Olds,” American Journal of Orthopsy-
chiatry 70, no. 4 (October 2000): 542–48; Tamar D. Gershon, Jeanne M. Tschann, and John M. Jemerin,
“Stigmatization, Self-Esteem, and Coping among the Adolescent Children of Lesbian Mothers,” Journal of
Adolescent Health 24, no. 6 (June 1999): 437–45; Golombok, Spencer, and Rutter, “Children in Lesbian and
Single-Parent Households” (see note 21); Golombok and others, “Children with Lesbian Parents”(see note
11); Jan Hare, “Concerns and Issues Faced by Families Headed by a Lesbian Couple,” Families in Society
75 (1994): 27–35; Ghazala Afzal Javaid, “The Children of Homosexual and Heterosexual Single Mothers,”
Child Psychiatry and Human Development 24 (1993): 235–48; Suzanne M. Johnson and Elizabeth O’Con-
nor, The Gay Baby Boom: The Psychology of Gay Parenthood (New York University Press, 2002); Lewis,
“Children of Lesbians” (see note 22); O’Connell, “Voices from the Heart” (see note 22); Pennington, “Chil-
dren of Lesbian Mothers” (see note 22); Tasker and Golombok, Growing Up in a Lesbian Family (see note
13); Norman Wyers, “Homosexuality and the Family: Lesbian and Gay Spouses,” Social Work 32 (1987):
143–48.
24. Steven L. Nock, affidavit in the superior court of Ontario, Canada, Halpern et al. v. Canada and MCCT v.
Canada (2001), at items 141 (p. 47) and 115 (p. 39).
25. Judith Stacey and Timothy Biblarz, affidavit in the superior court of Ontario, Canada, Halpern et al. v.
Canada and MCCT v. Canada (2001), at items 4 (p. 3) and 14 (p. 7).
26. Anderssen and others’ review of the literature up until 2000, which did not cover all of the studies through
that date, puts the number of children studied at 615. Norman Anderssen, Christine Amlie, and Erling
Andre Ytteroy, “Outcomes for Children with Lesbian or Gay Parents: A Review of Studies from 1978 to
2000,” Scandinavian Journal of Psychology 43 (2002): 335–51. Since that time, larger-scale studies, some
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with samples larger than 200, have been undertaken. Stacey and Biblarz, in their affidavit (see note 25) at
item 41 (p. 19), cite more than 1,000 children, and 500 observed in “22 of the best studies.”
27. A useful compilation is Why Marriage Matters: Twenty-One Conclusions from the Social Sciences, by a
consortium of thirteen family scholars; available at www.marriagemovement.org/WhyMarriageMatters.
html.
28. See Susan L. Brown, “Family Structure and Child Well-Being: The Significance of Parental Cohabitation,”
Journal of Marriage and the Family 66 (May 2004): 351–67; Wendy D. Manning and Kathleen A. Lamb,
“Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families,” Journal of Marriage and the
Family 65 (November 2003): 876–93. According to Manning and Lamb, “The findings from empirical work
suggest that teenagers and children in cohabiting parent step-families sometimes fare worse in terms of be-
havior problems and academic performance than children in married stepparent families. . . . Other re-
search suggests that adolescents and children in cohabiting stepparent families share similar levels of be-
havior problems and academic achievement as children in married stepparent families. . . . The findings
seem to depend on the gender and age of the child as well as the specific dependent or outcome variable”
(p. 878).
29. Evan Wolfson, Why Marriage Matters: America, Equality, and Gay People’s Right to Marry (New York:
Simon and Schuster, 2004), pp. 95–96.
30. Research has shown that gay and lesbian couples are more equal in their division of labor than heterosexual
couples. See Henny M. W. Bos, Frank van Balen, and Dymphna C. van den Boom, “Experience of Parent-
hood, Couple Relationship, Social Support, and Child-Rearing Goals in Planned Lesbian Mother Families,”
Journal of Child Psychology and Psychiatry 45, no. 4 (2004): 755–64; Raymond W. Chan and others, “Divi-
sion of Labor among Lesbian and Heterosexual Parents: Associations with Children’s Adjustment,” Journal
of Family Psychology 12, no. 3 (1998): 402–19; Claudia Ciano-Boyce and Lynn Shelley-Sireci, “Who Is
Mommy Tonight? Lesbian Parenting Issues,” Journal of Homosexuality 43 (2002): 1–13; Daniel W. McPher-
son, “Gay Parenting Couples: Parenting Arrangements, Arrangement Satisfaction, and Relationship Satisfac-
tion,” Ph.D. diss., Pacific Graduate School of Psychology, 1993; Charlotte J. Patterson, “Families of the Les-
bian Baby Boom: Parents’ Division of Labor and Children’s Adjustment,” Developmental Psychology 31
(1995): 115–23; Charlotte J. Patterson and Raymond W. Chan, “Families Headed by Gay and Lesbian Par-
ents,” in Parenting and Child Development in “Nontraditional” Families, edited by Michael Lamb (Mah-
wah, N.J.: Lawrence Erlbaum Associates, 1999), pp. 191–219.
31. See, for example, Shawn Hubler, “Nothing but ‘I Do’ Will Do Now for Many Gays,” Los Angeles Times,
March 21, 2004. One man who married his male partner in San Francisco said, “It has reconnected our re-
lationship in ways I wasn’t expecting, and to have a whole city reinforce it was amazing. I used to refer to
Dave as my partner or boyfriend. Now I refer to him as my husband.” One of the present authors (Rauch),
while on a book tour last year, personally heard a number of such testimonials from gay couples.
32. For example, Stanley Kurtz has argued that male couples, if allowed to marry, would “help redefine mar-
riage as a non-monogamous institution.” “Beyond Gay Marriage: The Road to Polyamory,” Weekly Stan-
dard, August 4–11, 2003.
33. Andrew Jacobs, “More than Mere Partners: By Example, Lesbian Couple Try to State Case for Marriage,”
New York Times, December 20, 2003.
W i l l i a m M e e z a n a n d J o n a t h a n R a u c h
114 T H E F U T U R E O F C H I L D R E N
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34. See, for example, Charlotte J. Patterson, Susan Hurt, and Chandra D. Mason, “Families of the Lesbian Baby
Boom: Children’s Contact with Grandparents and Other Adults,” American Journal of Orthopsychiatry 68,
no. 3 (July 1998): 390–99.
35. Catherine Connolly, “The Voice of the Petitioner: The Experiences of Gay and Lesbian Parents in Success-
ful Second-Parent Adoption Proceedings,” Law and Society Review 36, no. 2 (2002): 325–46, quotes
p. 337.
36. Donovan Slack, “Union Denies Benefits to Gay Couples,” Boston Globe, May 11, 2004.
G a y M a r r i a g e , S a m e - S e x P a r e n t i n g , a n d A m e r i c a ’s C h i l d r e n
V O L . 1 5 / N O. 2 / FA L L 2 0 0 5 115
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Gay Marriage as a Religious Right: Reframing the Legal Debate over Gay Marriage in the United States Authors(s): Debra L. DeLaet and Rachel Paine Caufield Source: Polity, Vol. 40, No. 3 (Jul., 2008), pp. 297-320 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/40213478 Accessed: 24-03-2016 03:03 UTC
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Polity • Volume 40, Number 3 * July 2008
© 2008 Northeastern Political Science Association 0032-3497/08 $30.00 www.palgravfrjournals.com/polity
Gay Marriage as a Religious Right: Ref ranting the Legal Debate over Gay Marriage in the United States*
Debra L. DeLaet
Drake University
Rachel Paine Caufield
Drake University
The definition of marriage as a union between a man and a woman has origins in sectarian religious views of marriage. Nevertheless, proponents of gay marriage have not yet fully explored the religious discrimination inherent in public
policies that embrace this sectarian definition of marriage. Instead, advocates of gay marriage have largely relied on "equal rights" arguments or claims based on substantive due process and the equal protection clause of the 14th Amendment to
make the case that gay marriage should be legalized. In an effort to address the religious underpinnings of arguments against gay marriage, this article will consider
the implications of using a "religious rights" as opposed to an "equal rights" frame-
work to analyze the debate over gay marriage. This piece will examine pertinent
U.S. legal cases related to religious freedom, particularly Establishment Clause jurisprudence, and their applicability to the argument that gay marriage can be framed as a religious right. It also will consider the limitations of framing gay marriage as a religious right.
Pblity (2008) 40, 297-320; doi:10.1057/palgrave.polity.2300103; published online 18 February 2008
Keywords gay marriage; religious rights; religious freedom; Establishment Clause
*The authors would like to acknowledge the very helpful feedback and constructive criticism from their colleague and friend, Art Sanders, at Drake University and from Susan Burgess, the discussant on the Midwestern Political Science Association panel on which they first presented their paper. They also would like to thank the anonymous reviewers for Polity who provided invaluable feedback on the manuscript. Finally, the authors would like to thank Andrew Pblsky and the rest of the editorial staff at Polity for all of their help.
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298 GAY MARRIAGE AS A RELIGIOUS RIGHT
Debra DeLaet is a professor of Politics and International Relations at Drake University. Her teaching and research interests focus primarily on international human rights, justice in war-torn societies, and international migration. DeLaet is co-director of a 2006-2008 U.S. Department of Education grant project on the theme
of uEthics in a Globalizing World" at Drake University. The author can be contacted at [email protected].
Rachel Paine Caufield is an associate professor in the Department of Politics and International Relations at Drake University. Her teaching and research interests
focus on American political institutions, including judicial politics, legislative politics, and the American presidency as well as inter-branch relationships and empirical research methods. She has served as a Visiting Fellow at The Brookings Institution in Washington, DC. She also currently serves as the research and program consultant to the Hunter Center for Judicial Selection at the American
Judicature Society and as principal organizer for an effort to educate citizens about issues and processes related to the 2008 Iowa Caucuses. The author can be contacted at rachel. caufield@drake. edu.
Introduction
Proponents of gay marriage in the United States have framed gay marriage as an "equal rights" issue emphasizing same-sex couples' lack of access to the funda- mental rights and legal securities associated with marriage. Despite the moral appeal of claims grounded in equality, a religious rights framework provides an alternative strategy that may offer new perspectives in the legal debate over gay marriage in the United States. Specifically, gay marriage can be considered a fundamental religious right derived from First Amendment guarantees of religious
liberty and non-establishment of religion. We do not intend to undermine either the legal or moral arguments for equality for same-sex couples. Rather, we seek to
offer an alternative and complementary legal strategy to advance claims for marriage rights for same-sex couples.
Because religious actors have been a driving force behind opposition to gay marriage, it seems counter-intuitive to argue that gay marriage can be considered a religious right. However, religious actors in the United States do not speak with one voice. The Unitarian Universalist Association (UUA) has taken a strong public stand in favor of same-sex marriage as a civil right. Although the UUA has a congregational organization that allows for divergent practices among member congregations, many Unitarian Universalist congregations solemnize same-sex relationships, and some UU ministers have been performing same-sex ceremo- nies of union since the mid-1970s.1 Interestingly, seven of the fourteen plaintiffs in
1. Neil Miller, "We Do," UU World XVIII (May/June 2004): 28.
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Debra L. DeLaet and Rachel Paine Caufield 299
Goodridge v. Massachusetts Department of Public Health (2003)2 were Unitarian Universalists.3 Similarly, some Quaker congregations have been performing wedding ceremonies for same-sex couples for almost twenty years.4 The Religious Society of Friends (Quakers) in the United States has not taken a formal position on same-sex marriage,5 but regional and local Quaker meetings have made statements in support of legal recognition for same-sex marriages.6 In July 2005, the general synod of the United Church of Christ passed a resolution affirming equal marriage rights for same-sex couples.7 The Metropolitan Community Church has blessed same-sex unions for several decades and has been at the
forefront of the movement to legalize same-sex marriages. In addition to support for same-sex marriage among mainline Christian
denominations, major Jewish movements now support some form of marriage equality for same-sex couples. The Central Conference of American Rabbis, the professional association of rabbis associated with the Reform Movement within Judaism, voted in 2000 to support rabbis who perform same-sex commitment ceremonies. The Reconstructionist movement also supports the legalization of same-sex civil marriage.8 In December 2006, the central legal body of Conservative Judaism voted to allow local congregations to decide to perform same-sex commitment ceremonies as well as to ordain gay rabbis. This vote left only Orthodox Jewish groups opposed to gay marriage.9
To date, these are the only widely recognized religious traditions to explicitly
recognize a right to same-sex marriage. However, lively and typically contentious debates over gay marriage continue to evolve in other mainline Christian denominations, including the Episcopal Church in the United States (which has
2. 440 Mass. 309, at 331-43. 3. Miller, "We Do," 27.
4. BBC, Religion and Ethics, "Recent Developments in the Same-Sex Marriage Debate," online at: http://www. bbc.co.uk/religion/ethics/samesexmarriage/latest.shtml.
5. Human Rights Campaign, information on the Religious Society of Friends and LGBT issues, available online at: http://www.hrc.org/Template.cfm7Section = Home&Template = /ContentManagement/ ContentDisplay.cfm&ContentID = 25802.
6. For example, the North Pacific Yearly Meeting of the Religious Society of Friends made a public statement in favor of legal recognition for same-sex marriage in 1997. North Pacific Yearly Meeting, Ad Hoc Committee on Marriage, "Quaker Support for Legal Recognition of Same-Sex Marriage," (July 1997), statement available online at http://www.buddybuddy.com/churchO4.html. Notably, the organization of Quakers is highly decentralized and democratic. Thus, the positions of Quakers on gay marriage will vary from congregation to congregation. Nevertheless, it is noteworthy that many Quakers embrace a right to gay marriage on religious grounds.
7. Shaila Dewan, "United Church of Christ Backs Same-Sex Marriage," The New York Times online, July 5, 2005.
8. Amber Powers, "Judaism and Same-Sex Marriage," MyJewishLearning.Com, available online at: http://www.myjewishlearning.com/ideas_belief/sex_sexuality/Overview_Homosexuality/Sex_SameSex_ Powers.htm.
9. Laurie Goodstein, "Conservative Jews Allow Gay Rabbis and Unions," The New York Times online, December 7, 2006.
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300 GAY MARRIAGE AS A RELIGIOUS RIGHT
given ministers the authority to bless same-sex unions within their congrega- tions), the Evangelical Lutheran Church in America (which also gives individual congregations some flexibility to sanctify same-sex unions), the United Methodist
Church, and the Presbyterian Church (U.S.A.).10 A religious rights frame for the debate over gay marriage suggests that the
federal and state governments inappropriately violate the Religion Clauses of the First Amendment with marriage licensing and benefits policies that give preferential status to heterosexual unions sanctified in religious ceremonies but deny the same recognition and rights to same-sex unions, even those that are blessed by churches that support gay marriage. In particular, such discriminatory practices violate the "neutrality principle" by privileging a religious conception of
marriage favored by some religious traditions but not universally shared by all mainline religions. In this regard, it is important to note that religious conservatives
have been the driving force behind the movement to define marriage as a union between a man and a woman, and this definition of marriage is unquestionably shaped by sectarian, religious beliefs.
Framing gay marriage as a religious right suggests that the parties who are harmed by marriage laws discriminating against same-sex couples include not only the individual men and women in these relationships but also the churches who support gay marriage and their members, regardless of their sexual orientation. Although the government does not inhibit churches from sanctifying same-sex unions, it does not give these unions the same legal status as other marriages. In this way, the denial of equal marriage rights to same-sex couples violates the religious liberty of churches and religious people who support gay marriage out of religious conviction, as well as non-religious citizens.
Strategic Choices in Applying a Religious Rights Framework to the U.S. Debate over Gay Marriage
Given the counter-intuitive nature of the argument, any effort to apply a religious rights framework to the debate over gay marriage in the United States is
likely to engender a certain amount of skepticism. Two strategic questions, in particular, arise upon initial consideration of the merits of a religious rights legal
strategy. First, why should proponents of gay marriage consider a strategy based on religious rights rather than the arguably more universal and inclusive equal rights strategy? Second, how should a religious rights strategy confront the delicate tension between the "free exercise" and "establishment" clauses of the First
Amendment? We would like to confront these strategic dilemmas at the outset.
10. Jane Lampman, "A Church's Struggle over Gay Marriage," The Christian Science Monitor online, July 1, 2005.
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Debra L. DeLaet and Rachel Paine Caufield 301
To date, an equal rights framework clearly has predominated in legal efforts to advance the cause of same-sex marriage rights. It is important to note that this approach to gay marriage has met with some success. Proponents of equal rights for same-sex couples scored prominent victories in the landmark Goodridge v. Massachusetts Department of Public Health (2003) case,11 in which the Massachusetts Supreme Court ruled that the denial of the protections
and benefits of marriage to same-sex couples violated the state's constitution, and in Baker v. State (1999), 12 in which the Vermont Supreme Court ruled that the
state could not deprive same-sex couples of the benefits and privileges stemming
from marriage. These judicial decisions led to the passage of equal marriage rights legislation in Massachusetts and to the high-profile adoption of civil union legislation in Vermont. Similar legal victories have been achieved in New York and California state courts, though these cases are currently on appeal. More recently, in January 2006, the Baltimore Circuit Court ruled that Maryland's law prohibiting same-sex marriage constitutes discrimination in violation of provi- sions guaranteeing equality in Maryland's constitution.
Given some preliminary victories based on equal rights, why should pro- ponents of marriage rights for same-sex couples consider using a religious rights framework? We argue that there are two advantages to this strategy. First, religious
liberty, as a core value explicitly enshrined in the First Amendment to the U.S. Constitution, is a right of the highest order in U.S. constitutional jurisprudence. States and the federal government must pass the most stringent constitutional tests in order to adopt laws that impinge upon religious liberty. In contrast, the U.S. Constitution is not as clear in explicitly identifying the set of rights that are considered to be fundamental under the 14th Amendment's equal protection and
due process clauses. Equal protection claims that rely on the controversial doctrine of substantive due process that has emerged from legal interpretation of
the 14th Amendment therefore face more significant legal difficulties absent social consensus about whether a category of citizens is to be protected. Such a lack of consensus clearly applies in the case of rights for same-sex couples. Therefore, a religious rights framework may provide a more compelling legal strategy for advancing the cause of gay marriage in the context of the US. legal system.
Second, despite the fact that an equal rights approach to gay marriage has dominated in the United States to date and has achieved at least some legal success, certain political developments suggest that the equal rights strategy may
face significant obstacles in future legal battles over gay marriage at both the state and federal level. In November 2004, thirteen states passed constitutional amendments banning same-sex marriage (a political phenomena driven in part
11. 440 Mass. 309, at 331-43. 12. 98-032.
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302 GAY MARRIAGE AS A RELIGIOUS RIGHT
by a strong reaction among religious conservatives to the Goodridge decision in Massachusetts). Opponents of gay marriage also have endorsed the proposed Federal Marriage Amendment that would constitutionally define marriage as a union between a man and a woman.
Given this political and social context, a religious rights framework not only recognizes religious liberty but uses it as the core principle upon which to base arguments to liberalize marriage rights. In doing so, it bridges the perceived divide between supporters and opponents of same-sex marriage. Typically, the debate over gay marriage has been framed as one between the faithful and the secular. By embracing the notion of religious liberty, arguing for explicit recognition of the rights of faith communities to govern their religious rituals, ceremonies, and sacraments, and endorsing the idea that all forms of religious marriage should be treated equally by government (absent a compelling state interest that would justify unequal treatment), a religious rights approach can shift the terms of this legal debate to form new coalitions between people of faith
who may have different visions of what marriage means to their religious com- munities but who will nonetheless agree on the principle of religious freedom. In these ways, a religious rights approach can serve to strengthen existing legal strategies.
The tension between the "free exercise" and "establishment" clauses of the
First Amendment presents perhaps thornier issues for a religious rights frame- work. At first glance, it might appear that the "free exercise" clause is not at stake
in this debate because the federal and state governments do not interfere with church ceremonies that sanctify same-sex unions. As a result, same-sex couples may freely participate in religious ceremonies sanctifying same-sex relationships in churches that conduct them even in the absence of state and federal laws that
give same-sex unions the same legal status as heterosexual unions. Such reasoning is demonstrated by the U.S. Supreme Court's 1879 ruling in Reynolds v.
United States, in which the Court rejected the claims of a group of Mormons that laws against polygamy violated their rights under the free exercise clause. In its ruling, the Supreme Court distinguished between religious beliefs protected under the free exercise clause and religious conduct, such as polygamous marriage, that was not protected.13 Given the distinction between "belief" and "conduct" in legal precedent, free exercise claims may not gain much traction. Thus, free exercise claims might not be central to a religious rights framework for legalizing same-sex marriage.
Although it might be tempting to dismiss free exercise arguments, these cannot be ignored in an application of First Amendment jurisprudence to the
13. Alison Dundes Renteln, "When Rites are Rights: Cultural Challenges to Marriage Laws," Human Rights Dialogue 2:12 (Spring 2005): 22-24.
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Debra L. DeLaet and Rachel Paine Caufield 303
debate over gay marriage. Indeed, there is a distinct possibility that religious groups on either side of the debate over gay marriage might make "free exercise"
claims to bolster their case. For religious traditions that support gay marriage, the
absence of formal legal recognition for same-sex relationships solemnized by churches places clergy in the difficult, for some untenable, position of applying differential standards to same-sex and heterosexual couples in their congrega- tions. The implications of bans on gay marriage for religious liberty are underscored by the refusal of some Unitarian Universalist ministers to marry any couples, heterosexual or same-sex, so long as discriminatory laws are in place that would lead to the differential legal and social status of these relationships after marriage.14 A proponent of gay marriage could certainly argue
that individuals and clergy in certain religious traditions are unable to "freely exercise" their religious beliefs when the law precludes legal recognition of marriages solemnized by a member of the clergy, a ritual that is central to the activities of most religious institutions.
At the same time, religious opponents of gay marriage have begun to converge
on the argument that legal recognition of same-sex marriage would hinder the free exercise of their religious beliefs given that they consider gay relationships sinful.15 For example, opponents of gay marriage might argue that the free exercise rights of individuals who oppose gay marriage within congregations that solemnize same-sex relationships would be violated if these relationships were given legal status. Because religious communities are almost always divided over questions of religious interpretation and principle, we are dubious of such claims and would suggest that free exercise does not entitle an individual to belong to a religious institution that embraces every one of his or her religious beliefs. A political community built on respect for religious freedom must, at some level, defer to the decision-making processes of particular religious institutions. Indeed,
genuine religious pluralism is incompatible with the idea that the religious beliefs of individuals and the churches to which they belong can or should be brought into perfect alignment.
Regardless of our skepticism of the argument that legalization of same- sex marriage would violate the free exercise rights of individuals who oppose same-sex marriage (they are, after all, not being forced to marry a person of the opposite sex in violation of their religious beliefs), these competing arguments
14. In a notable case in point, a UU minister in Kentucky was fired from his job as a video producer for the Kentucky Farm Bureau after publicly announcing to his congregation that he would no longer perform marriage ceremonies while legal prohibitions against same-sex marriage remained in place. In this case, the lack of marriage equality for same-sex couples not only limited the free religious expression of the minister and his parishioners but also contributed to employment discrimination against the minister. "Minister Fired for Same-Sex Marriage Stance," UU World XIX (March/ April 2003): 47.
15. David D. Kirkpatrick, "Christian Conservatives Look to Re-energize Base," The New York Times, September 25, 2006.
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304 GAY MARRIAGE AS A RELIGIOUS RIGHT
indicate that it might be difficult to resolve free exercise claims when applying a religious rights framework to the debate over gay marriage. However, efforts to advance basic rights within a legal framework almost always involve competing claims. The lack of consensus on how to apply the free exercise clause does not inevitably lead to the conclusion that the free exercise clause is not pertinent. Nevertheless, although free exercise considerations are clearly applicable to the debate over gay marriage, the previous discussion indicates that the application of free exercise jurisprudence to the debate over gay marriage involves a number of complications.
Therefore, although we acknowledge the relevance of free exercise consi- derations, the analysis here will be centered on the establishment clause. We contend that prohibitions against the legal recognition of same-sex marriages violate establishment clause norms in a far less ambiguous way than in the case of free exercise claims. Although it is true that same-sex couples may still freely solemnize their relationships even in the absence of legal recognition (i.e. the prohibition may not violate free exercise rights), the failure to grant same-
sex unions the same legal status as heterosexual unions violates the establish- ment clause's "neutrality principle" by privileging a religious conception of marriage favored by some religious traditions but not universally shared by all mainline religions.
The suggestion that religious rights be featured as a centerpiece of a legal strategy to advance gay marriage is not unprecedented, nor have religious rights been ignored in the literature on other social movements. Peter Wenz has argued that legal restrictions on abortion rights might violate religious freedom.16
Although Wenz develops a tightly reasoned argument, the fact that it has not gained traction in the legal debate over abortion might suggest that a religious rights framework as applied to the debate over gay marriage might face similar obstacles.
However, abortion and gay marriage are not completely analogous in this regard. Unlike abortion, religious officials play a legal role in recognizing not only
religious marriage but also civil marriage. Government regulations allow religious officials to perform a distinctively civil role - that is, completing and filing legal
documents that create civil marriage. In this capacity, religious officials have a recognized role in establishing civil marriage in the same way that judges do. In contrast, religious officials do not have a recognized legal or civil role in decisions regarding abortion. For example, a minor seeking abortion in a state that requires parental notification may request that a judge review her case to exempt her from this requirement. A priest or minister cannot perform the same
16. Peter Wenz, Abortion Rights as Religious Freedom (Philadelphia: Temple University Press, 1991).
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Debra L. DeLaet and Rachel Paine Caufield 305
function in this situation. The point, of course, is that governmental policy has created a system where civil marriage and religious marriage are intercon- nected - giving religious officials a distinctive role in the recognition of civil marriage - whereas governmental policy has not recognized any role for religious
figures in decisions to seek or perform an abortion. Thus, the fact that a religious rights framework has not gained traction in the debate over abortion does not necessarily diminish its potential for advancing marriage equality for same-sex couples.
In sum, a religious rights framework offers a potentially compelling strategic complement to equal rights arguments in the case of gay marriage. An equal protection argument restricts the focus of the question to the individual rights of those who wish to be married. While we believe this is an important social, moral,
and political question to address, layering equal protection claims with religious liberties claims helps us to recognize that we are, in fact, debating individual rights as well as the rights of faith-based communities. Thus, advocates for gay marriage may find that framing gay marriage as a religious right has greater potential for changing the legal landscape in the United States than a legal strategy relying exclusively on equal rights arguments.
Marriage as a Union between a Man and a Woman: a Sectarian Definition
The Defense of Marriage Act, passed by Congress in 1996, defines marriage as
the legal union between one man and one woman as man and wife. This legislation was passed by an overwhelming majority in Congress (three hundred and forty-two to sixty-seven in the House and eighty-five to fourteen in the Senate)
and was signed into law by President Clinton. Owing to what they view as an aggressive judicial assault on traditional marriage, religious conservatives have sought to enshrine this definition more absolutely in the legal fabric of the U.S. political system by advocating for the Federal Marriage Amendment, which would constitutionally define marriage as a legal union between one man and one woman. As the title of the Defense of Marriage Act suggests, proponents of
this definition of marriage believe that they are defending the traditional institution of marriage from attack by modern forces and actors. In their view,
they are not advocating on behalf of a specific form of marriage or a particular ideological or religious perspective on marriage. Rather, they are simply defending the essential meaning of marriage as commonly understood throughout history.
In a 2004 speech calling for a constitutional amendment that would essentially make the Defense of Marriage Act part of the Constitution, President George W
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306 GAY MARRIAGE AS A RELIGIOUS RIGHT
Bush articulated this view of the need to defend the traditional meaning of marriage:
The union of a man and a woman is the most enduring human institution, honoring - honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and
the stability of society. Marriage cannot be severed from its cultural, religious,
and natural roots without weakening the good influence of society. Govern- ment, by recognizing and protecting marriage, serves the interests of all.17
In this speech, the President encapsulates the core of a prominent conservative argument for codifying a traditional definition of marriage into law. In the traditionalist view, marriage, defined as the union between a man and a women, is the most enduring and fundamental institution of human civilization.
Accordingly, any change to this meaning of marriage is an assault not only on marriage but also on social order, stability, and civilization itself. Moreover, President Bush's remarks illustrate the belief that religious conservatives are defending a universal, "neutral" vision of marriage rather than a particularistic vision of marriage, one shaped by cultural, religious, and ideological views.
A majority of Americans have embraced the view of heterosexual, mono- gamous marriage as a universal institution. A February 2004 poll by the Pew Research Center found that 63 percent of Americans opposed the legalization of gay marriage.18 A May 2004 Gallup poll found that a smaller majority (51 percent) of Americans favored a constitutional amendment that would define marriage "as being between a man and a woman."19 Recent polls suggest lower issue salience and declining public support for a constitutional amendment enshrining a traditional definition of marriage. Nevertheless, a May 2007 Gallup poll found that
53 percent of Americans oppose the legalization of gay marriage.20 As these polls indicate, there is still strong if declining public opposition to gay marriage. However, it cannot be argued that a broad public consensus exists.
Despite the importance of a traditional definition of marriage for the religious conservative worldview and its political appeal to many Americans, the conception
17. "President Calls for Constitutional Amendment to Protect Marriage," remarks by the President on February 24, 2004, available online at: http://www.whitehouse.gov/news/releases/2004/02/ 20040224-2.html.
18. The Pew Research Center for the People & the Press, news release (March 22, 2006), "Less Opposition to Gay Marriage, Adoption, and Military Service," available online at http://www. people-press.org.
19. Pew Research Center Pollwatch, "Reading the Polls on Gay Marriage and the Constitution," July 13, 2004, available online at: http://people-press.org/commentary/display.php37AnalysisID = 92.
20. Lydia Saad, "Tolerance for Gay Rights at High Water Mark," Gallup Poll News Service, May 29, 2007, available online at http://www.gallupppoll.com.
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Debra L. DeLaet and Rachel Paine Caufield 307
of heterosexual, monogamous marriage as a universal, cross-cultural institution throughout history does not hold up under scrutiny. The meaning and specific forms of marriage have varied dramatically across time and place.21 Most marriages
throughout history have been heterosexual. Nevertheless, same-sex marriages have been recognized in various historical periods and cultures.22 Similarly, various cultures and religions historically endorsed polygamous marriages. Polygamy continues to be practiced in various parts of the world today, including Utah where
it is officially illegal. In short, marriage in both law and social practice has a far more rich and complex history than is captured by the "traditional" definition of
marriage as a permanent union between one man and one woman. The claim by religious conservatives that they are defending a traditional
definition of marriage belies historical reality The definition of marriage as a union between a man and a woman is not a neutral, universal claim devoid of
political, religious, or ideological content. Rather, this definition of marriage as a heterosexual union evolved out of particular religious and historical contexts. Historically, the Christian tradition has widely embraced the view of marriage as a
monogamous, heterosexual institution.23 However, this historically dominant Christian interpretation of marriage represents particular and not universal values,24 and any claims derived from this religious tradition should be acknowledged as such and not represented as universal and timeless truths.25
Moreover, today mainline Christian churches in the United States are deeply divided over the issue of gay marriage.26 Most of the churches that have either explicitly endorsed gay marriage (the Religious Society of Friends, the Unitarian Universalist Association, and the United Church of Christ) or that have begun to seriously debate the issue (the Episcopal Church, the United Methodist Church, the Evangelical Lutheran Church, and the Presbyterian Church) have roots in the Christian tradition.
When evangelical Protestants oppose gay marriage and evangelical organiza- tions try to enshrine a traditional definition of marriage in the Constitution, they
are putting forward a sectarian definition of marriage not supported by other mainline Christian churches or major Jewish movements. Evangelicals claim to
21. Stephanie Coontz, Marriage, a History (New York: Viking, 2005), 24. 22. Coontz, Marriage, a History, 10-11, 27-28. 23. Jonathan Rauch, Gay Marriage (New York: Times Books, 2004), 40-41. 24. Cott, Public Vows, 9-10. 25. Lawrence v. Texas (2003) signaled that the Supreme Court might be responsive to arguments that
problematize historical or traditional conceptions of social norms, in this case, sexual mores. Thus, this case may bode well for a legal argument that recognizes the complex history of marriage as a social institution.
26. Christian denominations are internally divided not only on the question of gay marriage but on the subject of homosexuality in general. Janet R. Jakobsen and Ann Pellegrini, Love the Sin: Sexual Regulation and the Limits of Tolerance (New York: New York University Press, 2003), 100.
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308 GAY MARRIAGE AS A RELIGIOUS RIGHT
be the authentic voice of the common Christian tradition and, even more to the
point, of a cross-cultural, universal tradition. To the extent that the state endorses
a sectarian definition of marriage that privileges some religious views over others,
it violates First Amendment religious rights.
Gay Marriage as a Religious Right: Legal Precedent
Contemporary legal arguments in favor of same-sex marriage have focused almost exclusively on the Equal Protection Clause of the 14th Amendment. Historically, this approach has been used successfully to advance individual rights to engage in sexual relationships and marry, particularly in Mclaughlin v. Florida (1964), Loving v. Virginia (1967) and Turner a Safely (1987). In each case, the U.S. Supreme Court found that sexual relations and marriage are fundamental rights that cannot be denied to any citizen based upon race {Mclaughlin and Loving) or incarceration (Turner) under the Equal Protection Clause. Taken together, these cases form a well-established precedent; while state legislatures have the prerogative to impose limitations on marriage, they may not do so in a way that violates the Fourteenth Amendment's Equal Protection Clause without demon- strating a compelling state interest. (Although the rulings in these cases were grounded in equal protection arguments, Justice Sandra Day O'Connor, writing for the majority in Turner, highlighted the religious importance of marriage in pointing out that "many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. . ."27 A similar logic could hold for same-sex couples.)
Given the changing societal status of gays and lesbians and the Supreme Court's willingness to recognize the legal rights of gay men and lesbians, it should come as no surprise that equal protection-based precedent has been the lynchpin of current legal efforts to overturn state bans on same-sex marriage. In particular, the Court's recent precedents in Romer a Evans (1996) and Lawrence v. Texas (2003) have both embraced the argument that state laws singling out gay men and lesbians as a class are unconstitutional.
Recent state court challenges based upon these Equal Protection claims have met with some success.28 The Supreme Court of Hawaii ruled in 1993 that the equal rights clause in the Hawaii Constitution required the state to recognize same-sex marriages (Baehr v. Lewin) by reasoning that prohibition of same-sex marriage was, in effect, discrimination based on sex. The Hawaii Supreme Court
27. 482 US. 78, at 83.
28. Notably, states are often far more expansive in the protections they afford than the federal government. Brennan, "Guardians of Our Liberties."
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Debra L. DeLaet and Rachel Paine Caufield 309
argued that a same-sex couple was denied state-sponsored legal status that conferred rights and benefits unique to married couples - legal status that they would receive if one member of the couple were of a different sex. Furthermore,
the justices found that, under a strict scrutiny analysis, the sex discrimination inherent in the state's marriage law could not pass constitutional muster and that the decision was "in complete harmony with the Loving Court's observation that
any state's powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of the laws."29
In Massachusetts, the state's Supreme Judicial Court ruled in Goodridge v. Department of Public Health (2003) that state law prohibiting same-sex couples from entering into civil marriage violated the equal protection and due process provisions found in the state's constitution. The court makes a clear distinction between civil marriage and religious marriage, noting that "the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. . . ."30 The Massachusetts court goes on to evaluate three "legislative rationales for prohibiting same-sex couples from marrying," and concludes that none are convincing enough to justify the state's ban. Instead, it finds that the rationales are
either unfairly applied only to same-sex couples ("providing a 'favorable setting for procreation'"), that the law actually undermines the goals ("ensuring the optimal setting for child rearing"), or that it is simply irrelevant ("preserving scarce State and private financial resources").31
While these state court decisions represent significant gains for advocates of same-sex marriage, they also illustrate some gaps in a state-based legal strategy. First, the decisions have provoked a backlash in some states and have helped fuel the movement to amend state constitutions to prohibit same-sex marriage. Furthermore, state constitutions are often broader in the civil liberties that they confer on citizens than is the federal constitution.32 Therefore, while the
arguments may be persuasive under state constitutional jurisprudence, they may be less successful at the federal level. Until federal case law embraces arguments
in favor of same-sex marriage, there will continue to be wide disparity in the rights conferred by state constitutions or state courts.
The strategy that we propose here shifts the constitutional analysis away from the Fourteenth Amendment and instead relies upon the First Amendment's establishment clause. First Amendment freedom of religion jurisprudence is muddled at best, but there are good reasons to believe that claims based on religious freedom could provide opportunities for legal challenges at the federal
29. 74 Haw. 530, at 582. 30. 440 Mass. 309, at 321. 31. 440 Mass. 309, at 331-43. 32. Brennan, "Guardians of Our Liberties."
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310 GAY MARRIAGE AS A RELIGIOUS RIGHT
level. Even if one only considers marriage as a civil institution, rather than a religious institution, the government's definition of marriage is based exclusively upon the definition provided by particular mainline religious traditions. Thus, the
government is endorsing one religious conception of marriage, giving preferential
status to the practices and beliefs of some religious traditions over all others (and to religion over nonreligion), conditioning the receipt of benefits upon adherence to the practices and beliefs of sectarian religious doctrine, and violating the establishment clause.
Most early analysis of establishment clause jurisprudence focused on the extent to which church and state are separated. Modern establishment clause jurisprudence began in 1947, when the Court incorporated the establishment clause, applying it to the states through the Fourteenth Amendment. As a result, the
Supreme Court became the center of the storm in the debate over religious freedom
in the states.33 Since that time, uthe Court has developed a number of unique, and
often sharply juxtaposed, approaches."34 Not only has the Court changed course on many occasions, but the standards that are used to judge specific claims under the
establishment clause have been inconsistent over time. Shifting interpretations have
produced a patchwork of conflicting and often confusing precedents that complicate any legal analysis in this area. Here, we focus on two distinctive historical perspectives adopted by the U.S. Supreme Court and how these perspectives have informed recent decision-making on the establishment clause.
Everson a Board of Education (1947) provided the clearest modern statement of separationism, or the notion that government and religion should be kept apart - that is, government cannot aid religion, should not make laws based upon religious
ideals, and should not interfere with religious communities. Instead, "religion should be left alone to flourish in the conscience of each individual and in the
voluntary assemblies that individuals convene."35 Thus, although government could
not directly aid religion, Everson allowed that the government was constitutionally
permitted to achieve secular purposes even within religious settings.36 In his now famous majority opinion, Justice Black laid out the uno preference doctrine":
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither
can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go [to] or remain
33. Robert Fowler, Allen Hertzke, Laura Olson, and Kevin den Dulk, Religion and Politics in America: Faith, Culture, and Strategic Choices (Boulder, CO: Westview Press, 2004), 198.
34. John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties (Boulder, CO: Westview Press, 2000), 153.
35. Witte, Religion and the American Constitutional Experiment, 153. 36. Domino, Civil Rights & Liberties, 134.
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Debra L. DeLaet and Rachel Paine Caufield 31 1
away from church against his will or force him to profess a belief or disbelief
in any religion. . . In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and state"37
Shortly after Everson, the Supreme Court decided the case of Zorach v. Clauson (1952), which is recognized as one of the first statements of accommo- dationism, an interpretation widely considered to be in direct opposition to separationism. Accommodationists argue that religious and moral principles are fundamental to society and, as such, government must support and accom- modate religious communities in order to promote the moral and ethical development of the nation. Accommodationism "urges government to protect the
nation's Judeo-Christian heritage. . . [and] extend benefits to religion in a non- discriminatory manner."38 In other words, while government should refrain from
direct interference in religion or preference for any one religion, the Constitution
does not mandate that the state be hostile to religion or religious principles. In sharp contrast to separationism, accommodationism not only respects
religious belief, but seeks to promote public religion among the populace. It is important, however, to note that accommodationism can still embrace the principle
of neutrality. In the words of Justice William 0. Douglas: "the government must be neutral when it comes to competition between sects" - that is, the government cannot endorse one religious organization or belief over any other.39
Between these competing doctrines, the Justices have offered any number of variants based on unique case facts and selective application of precedent. Perhaps the most widely known religion cases are Engel a Vitale (1962), Abington v. Schempp (1963) and Lemon a Kurtzman (1971). All three cases represent examples of the justices' attempts to find middle ground between accomodation- ism and separationism, and each represents an attempt to define a new judicial doctrine of neutrality. Engel a Vitale (1962), a case questioning the constitution-
ality of prayer in schools, set the stage for a new era in religion jurisprudence. The Court determined that government could not establish or promote specific religious practices but went on to address religion as a political and social force, one that may produce deep divisions and seriously harm political minorities by coercing citizens to behave in a way that is consistent with majority beliefs: "When the power, prestige, and financial support of government is placed behind
a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain."40
37. 330 US. 1, at 15, emphasis added. 38. Wald, Religion and Politics, 88. 39. 343 US. 306, at 314. 40. 370 US. 421, at 431.
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312 GAY MARRIAGE AS A RELIGIOUS RIGHT
In Abington a Schempp (1963), the Court struck down mandated Bible readings in a Pennsylvania school and further explicated the notion of government neutrality. While he noted that "the place of religion in our society is an exalted one," Justice Clark (writing for the majority) also argued that government neutrality in religion is not only consistent with the establishment clause but also assures that all citizens are able to freely choose religious practice or nonpractice. By contrast, non-neutrality poses the risk that individuals would be compelled to participate in religious activities, thus violating the free exercise clause. Although the Court has not consistently adopted "coercion" as an element of nonestablishment, it has recognized that the danger of coercion is an important justification for neutrality in governmental policy.41
The best known articulation of this doctrine came in Chief Justice Warren
Burger's opinion in Lemon v. Kurtzman (1971), commonly referred to as the "Lemon test." In order to be constitutionally permissible under the Lemon test, a policy (1) must have a secular purpose; (2) must produce primarily secular effects; and (3) must not promote an excessive entanglement of church and state.42 In declaring two state laws unconstitutional, one a Pennsylvania statute that provided reimbursement for educational materials for all schools (including parochial schools) and one a Rhode Island law that supplemented teacher salaries in under-funded private schools, Justice Burger wrote, "Ordinary political
debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect."43 Thus, Burger reasoned, because the programs would "force the citizens of those states to align themselves with candidates and parties on the basis of their religious beliefs, which is exactly what the framers hoped to avoid," it promoted excessive entanglement between government and religion.44 The debate over same-sex marriage involves analogous political and religious divisions, and governmental prohibitions against same-sex marriage arguably promote excessive entanglement between government and religion in the same vein.
41. The Court continued to include coercion as an important part of free exercise analysis. Domino, Civil Rights & Liberties, 138. Justice Kennedy has also continued to view the notion of coercion as a central component of disestablishment. In Allegheny County v. ACLU, he wrote that "government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact 'establishes' a religion or religious faith, or tends to do so." Witte, p. 160, quoting in part Lynch v. Donnelly.
42. Kenneth D. Wald, Religion and Politics in the United States (Lanham, MD: Rowman & Littlefield, 2003), 94.
43. 403 US. 602, at 622.
44. Domino, Civil Rights & Liberties, 141.
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Debra L. DeLaet and Rachel Paine Caufield 313
Separationism, which calls for a high wall between church and state, had slowly morphed into the doctrine of neutrality, and Lemon became a dominant fixture in religion jurisprudence. In the mid-1980s and early 1990s, this trend shifted dramatically as conservative presidents Nixon, Reagan, and Bush were able to place new justices on the Court. Gradually, the Court began narrowing the
interpretation of the religion clauses, embracing variants of the accommoda- tionist argument, and propagating a wide variety of new doctrines. With some notable exceptions,45 the majority of cases throughout the 1980s and 1990s embraced accommodationism in some form, combined with the principle of government neutrality.
Although the Lemon test has remained intact, its application has been inconsistent, and several justices have advocated abandoning Lemon. The most notable recent decisions in establishment clause jurisprudence have presented a mixed bag of accomodationism, separationism, and the abstract notions of government neutrality and government endorsement. In 1984, the Court accepted the argument that a city-sponsored holiday display in Rhode Island that featured Santa Clause and reindeer, a giant teddy bear, a Christmas tree, and a creche was,
in fact, secular in its purpose (Lynch v. Donnelly). Interestingly, the Court majority
reasoned in part that other religious traditions had the opportunity to ask for inclusion of their symbols in future displays, and that therefore there was no "endorsement" of Christianity inherent in the display. Just four years later, how-
ever, a narrowly divided Court held that a creche displayed with a banner reading Gloria in Excelsis was unconstitutional because it did endorse Christianity (Allegheny a ACLU). In doing so, the majority opinion, written by Justice William Brennan, argued that the government could use religious symbols when they are used for secular reasons or when they are a form of ceremony (as is the case with "In God We Trust" on currency) that has become devoid of explicitly religious content.46
Similarly, Wallace v. Jaffree (1985) overturned Alabama's "moment of silence or voluntary prayer" in schools based on the notion that it was a legislative effort to reintroduce school prayer and had no secular purpose. The Court has since upheld the Equal Access Act, which mandates that schools allow religious organizations to meet on school grounds (Board of Education v. Mergens (1990)) for purposes of prayer or other religious activity but has struck down provisions
45. The exceptions include Edwards v. Aguillard (482 US. 578 (1987)) and Texas Monthly u. Bullock (489 U.S. 1 (1989)), both of which embraced a standard similar to that proposed in Lemon, Lee v. Weisman (505 U.S. 577 (1992)), which outlined the "coercion test" and argued that government could not explicitly or implicitly "coerce" citizens to support, participate in, or abandon religious organization or activity, and KiryasJoel v. Grumet (512 U.S. 687 (1994)), which again returned to a neutrality test. See John Witte, Religion and the American Constitutional Experiment, 153, 160-62.
46. Domino, Civil Rights & Liberties, 151-54.
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314 GAY MARRIAGE AS A RELIGIOUS RIGHT
that allowed for student-led "prayer" at school sporting events (Santa Fe Independent School District v. Doe (2000) ,47
Given the muddled state of the Court's religion jurisprudence, it is particularly
important that our argument embraces a broad range of legal perspectives regarding religious liberty. From a separationist perspective, there is no doubt that
government has adopted a definition of civil marriage that is derived from sectarian religious practices and beliefs, therefore privileging a particular religious perspective, in violation of Everson's "no preference doctrine." Accommodationists argue that religious communities should be allowed to flourish free from excessive government interference. If this is the case, however, they must recognize the right of all religious traditions to be free from government
interference, including religious communities that wish to support and sanctify same-sex unions. The neutrality standard, which mandates "government neutrality among religions and between religion and nonreligion,"48 would certainly recognize the importance of providing rights to all religious commu- nities (as well as nonreligious citizens). Currently, by legally defining marriage to be a union of one man and one woman, the state and federal governments are endorsing one set of religious beliefs - a set that is not universally accepted - which clearly violates any "endorsement" test.49
Justifications for the current civil marriage laws have rested almost entirely on
religious grounds. When the government codifies one religious tradition's practices into law and confers governmental recognition (and benefits) only upon those who conform, it is (1) commingling church and state (a violation of separationism), (2) being openly hostile to some mainline religious organizations (a violation of accommodationism), and (3) giving preferential treatment to some religions over other religions and to religion over non-religion (a violation of neutrality). As Justice Brennan wrote in dissent in Goldman u. Weinberger (475 U.S. 503 (1986)):
A critical function of the Religion Clauses of the First Amendment is to protect
the rights of members of minority religions against quiet erosion by majoritarian social institutions that dismiss minority beliefs and practices as unimportant, because unfamiliar. It is the constitutional role of this Court to
ensure that this purpose of the First Amendment be realized.50
47. Domino, Civil Rights & Liberties, 145-50; 154-57. 48. John Witte, Religion and the American Constitutional Experiment, 161. 49. It is worth noting that Justice O'Connor has advocated abandoning Lemon in favor of an
"endorsement" test alone - whereby the Court determines whether a given policy has the purpose of endorsing religion or sends a clear message of endorsement, which then would create a deep division between "favored insiders and disfavored outsiders." Domino, Civil Rights & Liberties, 146.
50. 475 US. 503, at 524.
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Debra L. DeLaet and Rachel Paine Caufield 315
Criticisms of Framing Gay Marriage as a Religious Right
Despite the prospective benefits of a religious rights framework, it also faces important criticisms that need to be taken seriously. Among these criticisms, three
stand out and will be dealt with here: (1) framing gay marriage as a religious right
opens the door to the legalization of polygamy and other "non-traditional" marital
practices; (2) a religious rights framework is not neutral and will result in the state
endorsing liberal religious views on gay marriage; and (3) a religious rights approach does not extend protection to all same-sex couples who wish to be legally married, only to those who participate in a religious community that supports same-sex marriage.
Critics have long argued that one of the dangers inherent in legalizing gay marriage is that it is a step down a slippery slope that will lead to legalized polygamy.51 A strong counter-argument against the "slippery slope" critique is that
legalizing gay marriage on equal rights grounds does not necessitate legalization of polygamy. In this view, marriage could legally be defined as a union between one person and one other person. Under this definition, any person would be free to marry another person of his/her choice regardless of gender; s/he would not be free to marry multiple persons. Using an equal-rights framework, this distinction need not be considered discriminatory because no suspect class of persons is excluded from marriage.
However, the danger of the slippery slope becomes more real if one applies a religious rights framework. The practice of polygamy is typically rooted in an explicitly religious context. Although the present-day Church of Jesus Christ of the
Latter Day Saints prohibits polygamy, Mormons historically not only condoned polygamy but considered it a religious ideal. The Church of Jesus Christ of Latter-
day Saints (LDS Church) did not ban polygamy until 1896 and only then as a condition for Utah being admitted to statehood. Today, the LDS Church not only
prohibits polygamy but excommunicates anyone who enters into a polygamous marriage. However, it is worth remembering that the LDS Church relinquished its support for political reasons and not on theological grounds. Thus, it is at least theoretically possible that the LDS Church would again embrace support for polygamy if legal obstacles to such a policy were removed.52 Moreover, some individuals who have either been excommunicated or have left the official LDS
Church continue to practice polygamy and believe that in doing so they are
51. Stanley Kurtz, "Beyond Gay Marriage," The Weekly Standard Vol. 8, No. 45 (August 4, 2003), available online at http://www.weeklystandard.com.
52. As helpfully noted by one of our anonymous reviewers, policy change in the hierarchical structure of the LDS Church is unilaterally initiated through "revelations" to the Church president. In this
way, a sudden and dramatic shift in LDS policy on polygamy in the context of a changing legal environment is not outside of the realm of possibility.
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316 GAY MARRIAGE AS A RELIGIOUS RIGHT
practicing an authentic version of the Mormon faith. Some of these individuals are not a part of any formal religious group. Others are part of what they view as official religious institutions, including the Fundamentalist Church of Jesus Christ
of Latter-day Saints (FLDS Church). Given the explicit connections between religious beliefs and the practice of polygamy in this case, it is certainly plausible
that such groups would seek to legalize polygamy by relying on a religious rights framework.53
There are at least two possible responses to the problem of the "slippery slope"
in this context. First, one could argue that the distinctions between gay marriage and polygamy in practice would allow for differential treatment that would be consistent with U.S. legal precedents applying the First Amendment's establish- ment clause. Although U.S. courts have been highly deferential to the norm of religious liberty, they have allowed for restrictions on religions provided that such
restrictions are subject to strict scrutiny and are enacted to further a compelling state interest. In this regard, one could argue that problems that have been associated with polygamy, including sexual abuse of minors, incest, domestic violence, and the creation of a class of low-status, unmarried young men who are
marginalized within their religious community, rise to the level of "compelling state interest" and, hence, would justify prohibitions against polygamous marriage.54 To date, efforts to explicate state interests that are strong enough to
justify limitations on marriage rights have generally been found inadequate by state courts in those equal protection cases that have been litigated.
Alternatively, one could simply accept the fact that legalizing gay marriage on the grounds that it is a religious right would necessitate giving the same status to
polygamous marriages claimed on religious grounds.55 This approach has both limitations and potential benefits. On the one hand, this approach risks condoning the problems, as mentioned in the previous paragraph, frequently associated with polygamy. These problems are especially prevalent when polygamy is practiced by "fringe" groups living at the margins of society.56 On the other hand, one could argue that legalization might provide an attractive approach for addressing these problems. It is important to remember that even though polygamy is illegal and prohibited by the official Church of Jesus Christ of
Latter-day Saints, it is still being widely practiced in remote areas of Utah,
53. Muslim immigrants to the United States who practice polygamy on religious grounds might make similar arguments.
54. Rauch, Gay Marriage, 128-31. 55. A person could not claim the right to enter a polygamous marriage unless he or she were doing
so as part of a religious practice. This is analogous to claims for conscientious objector status in wartime which require a religious or spiritual belief as a precondition.
56. See Jon Krakauer, Under the Banner of Heaven: a Story of Violent Faith (New York: Doubleday, 2003) for a journalistic account of the violence and exploitation that is prevalent in some fundamentalist Mormon communities where polygamy is practiced.
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Debra L. DeLaet and Rachel Paine Caufield 317
Colorado, and elsewhere. If polygamy were legalized, polygamists might find it easier and more appealing to live in the public light. As a result, the government might find it easier to enforce existing laws against statutory rape, incest, and domestic violence. Regardless of the response, it must be acknowledged that a religious rights framework for gay marriage does have a logical connection to polygamous marriage in ways that an equal rights framework does not.
The criticism that a religious rights framework is not neutral and will lead to state endorsement of liberal religious views highlights a tension in establishment clause jurisprudence that has generally advanced two seemingly incompatible goals: separation of church and state and government neutrality with respect to religion (or nonreligion). If government truly separates itself from any and all religious organizations, it will inevitably mean that religious organizations are treated differently than nonreligious organizations, thereby violating the principle
of neutrality. This argument has been central to accommodationists' claims that separation is not a constitutionally acceptable position. As Frederick Mark Gedicks writes:
an establishment clause doctrine informed by separation presupposes that the
involvement of government in matters of religious belief and practice threatens liberty in ways that government involvement in secular matters does not. Separationist doctrine thus subjects relationships between religion and government to special scrutiny, which may result in religion's being subjected to legal and regulatory burdens not imposed on secular activities, or relieved from burdens that are generally imposed on such activities.57
Thus, one could argue that, by seeking to recognize the right of religious organizations to perform same-sex marriages and to have these marriages recognized by the state, we are proposing, in effect, to diminish the religious rights of other religious organizations that oppose same-sex unions.58
The argument that we present here certainly confronts this tension between neutrality and separation. By asking government to accept same-sex marriage as a
religious right (the principle of neutrality), we are necessarily asking government to extend benefits to religious communities and religious people (violating the principle of separation). What is unique about this argument, however, is that it embraces the religious views of mainline Christian denominations and Jewish movements (as well as other religious communities) that support same-sex
57. Frederick Mark Gedicks, "A Two-Track Theory of the Establishment Clause," Boston College Law Review 43 (2002): 1071-1110.
58. This argument was prominent in Justice Rehnquist's dissent in Thomas v. Indiana Employment Security Review Board (450 U.S. 707 (1981)), a case that questioned the legality of restricting unemployment benefits for Jehovah's Witnesses. Domino, Civil Rights and Liberties, 124-25.
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318 GAY MARRIAGE AS A RELIGIOUS RIGHT
marriage. It asks government to accommodate religious beliefs (i.e. non- separation), but to do so in a nondiscriminatory manner (i.e. neutrality). This moves us away from the separationist doctrine that has typically given rise to this
particular argument and allows us to embrace an accommodationist perspective. A final criticism of a religious rights framework is that it would not result in
universal legal protections of the rights of same-sex couples in the same way that an equal rights framework could. Establishing a religious right to gay marriage would protect the marriage rights of same-sex couples who sought to marry within a religious tradition but would not as clearly protect the marriage rights of
non-religious same sex couples who sought to marry outside of the context of an organized religious institution. Therefore, a religious rights framework might not provide comprehensive, equitable protection in the same way that equal rights would. This, however, may not be the case. For example, any legal case that were to argue that current limitations on the rights of same-sex couples to marry constitutes an unconstitutional establishment of religion would apply to same-sex couples within a supportive religious tradition as well as those outside of any religion. Regardless, it is certainly not our intention to signal that we find a religious rights framework morally preferable to equal protection arguments. Rather, we simply propose that framing gay marriage as a religious right has the potential to alter the legal landscape on this question in a productive way.
Conclusions
A religious rights framework provides an innovative and compelling alternative to the equal protection claims that have predominated among advocates of legal recognition for same-sex marriage.59 The religious rights framework proposed here,
built primarily on a foundation of establishment clause jurisprudence, emphasizes freedom from government-imposed religious belief or practice and liberty of conscience as central to religious liberty under the First Amendment.
As such, a religious rights framework supports innovative policy approaches to
marriage law. Policies that distinguish between "religious marriages" and "civil marriages," with the difference being the institution that formalizes a marriage (a church in the former, the state in the latter) rather than who is being married,
are consistent with a religious rights framework. In a similar vein, the term
59. It is important to note that the religious rights frame has already been used successfully in Canada where the Metropolitan Community Church of Toronto saw limitations on same-sex marriage as "an infringement on MCCTs ability to perform holy unions" constituting both religious and sexual orientation discrimination. Kevin Bourassa and Joe Varnell, Just Married: Gay Marriage and the Expansion of Human Rights (Madison: The University of Wisconsin Press, 2002), 8. The lawsuit put forward by the church successfully challenged Ontario's prohibitions against same-sex marriage and sparked a national debate over same-sex marriage that ultimately culminated in the adoption of national legislation legalizing same-sex marriage in Canada in July 2005.
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Debra L. DeLaet and Rachel Paine Caufield 319
"marriage" could apply to couples (heterosexual or same-sex) married in a church and "civil unions" to couples (heterosexual or same-sex) joined in civil ceremonies.60 Religious institutions would have complete control over the marriages that they sanctify whereas the state would be responsible for regulating civil unions in a non-discriminatory manner. Alternatively, the state could get out
of the business of regulating marriage altogether. Marriage could be treated as an
entirely private matter. Churches could bless unions as they see fit, and couples could enter into private contracts to negotiate the terms of their marriage (and the consequences of dissolution should it fail). This "contractualist" approach to marriage has been favored by prominent feminist critics of marriage as an inherently conservative institution.61 Thus, this framework could potentially lead
to policy that not only protects the religious freedoms of churches and religious people who support gay marriage out of religious conviction but also non- religious citizens. In this way, a religious rights framework could provide equally comprehensive protection to same-sex couples as an equal rights/substantive due
process approach, just through a different path of legal reasoning. Although these solutions to the problem may not be feasible in the current
political climate (at least at the national level and in many states), they illustrate precisely what is at stake in the battle over who gets to define marriage. If marriage is an institution with inherently religious roots, as many religious conservatives claim, then churches should have authority over who may marry.
However, contrary to the expectations of religious conservatives, this develop- ment would lead to a pluralist rather than a singular definition of marriage. If
marriage is not a religious institution but a civil one, then it should be available to all persons as citizens with full equality under the law. If it is neither a religious nor
a civil institution but rather a private relationship, then perhaps the state should
not be involved in regulating it at all. Framing gay marriage as a religious right does not provide a definitive solution to this dilemma, but it does help to bring into focus the centrality of politics, religion, and ideology in the debate.
Politically, a religious rights framework draws attention to the reality that not
only same-sex couples but also churches and religious people who support same- sex marriage are discriminated against when the state favors some religious views over others. In this way, this argument could be lauded for breaking down a presumed (and false) opposition between heterosexual and gay, lesbian, and bisexual persons. It is not homosexuals promoting a "gay agenda" on one side
60. Mary Lyndon Shanley, "Afterward," in Just Marriage, ed. Mary Lyndon Shanley (Oxford: Oxford University Press, 2004), 113.
61. Martha Fmemore, The Neutered Mother: the Sexual Family and other Twentieth Century Tragedies
(New York: Routledge, 1995) and Lenore Weitzman, The Marriage Contract: Spouses, Lovers, and the Law (New York: MacMillan, 1983) as cited in Mary Lyndon Shanley, "Just Marriage: On the Public Importance of Private Unions," in Just Marriage, 13.
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320 GAY MARRIAGE AS A RELIGIOUS RIGHT
and heterosexuals defending traditional marriage on the other. Rather, this framework helps to highlight the fact that political divisions on this issue are more
about differences in religious and ideological views than sexual orientation. Notably, the framework proposed here might open a new political space for advancing claims for same-sex marriage by generating new sources of support for gay marriage among religious people whose religious traditions support same-sex marriage and even some religious conservatives who oppose same-sex marriage but value religious liberty.62
Even if a religious rights framework does not gain legal traction in the courts, it
provides us with a unique lens for viewing the debate over gay marriage in the United States that could change the way we think and talk about this issue. Denial
of equal marriage rights to same-sex couples not only involves discrimination against same-sex couples and their families - it also constitutes religious establishment. Most religious conservatives opposed to gay marriage embrace religious liberty as a core value. Therefore, their support of state-imposed sectarian definitions of marriage represents an inconsistency. Why shouldn't religious liberty protect the right of mainline American religious communities to
sanctify same-sex unions as they see fit and to have such recognitions given the same legal status as marriages blessed by other churches? In this context, we must ask ourselves - religious conservatives, religious liberals, and the non-religious alike - what religious liberty means. A religious rights framework applied to the issue of gay marriage suggests that the government violates disestablishment norms when it endorses a sectarian definition of marriage. In doing so, the government is promoting a very selective form of religious liberty indeed.
62. ttA Conservative Christian Case for Civil Same-Sex Marriage," available online at: http:// www.musingson.com/ccCase.html.
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- Contents
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- Issue Table of Contents
- Polity, Vol. 40, No. 3 (Jul., 2008), pp. 273-409
- Front Matter
- Spectacular Resistance: The Billionaires for Bush and the Art of Political Culture Jamming [pp. 273-296]
- Gay Marriage as a Religious Right: Reframing the Legal Debate over Gay Marriage in the United States [pp. 297-320]
- Polity Forum: Politics, History, and the State of the State
- Introduction [pp. 321-325]
- The Old Institutionalism and the New [pp. 326-331]
- Rethinking the Early American State [pp. 332-339]
- A State of Legislatures [pp. 340-347]
- The State in a Blue Uniform [pp. 348-354]
- American Political Development, State-Building, and the "Security State": Reviving a Research Agenda [pp. 355-367]
- Finding the American State: Transcending the "Statelessness" Account [pp. 368-378]
- Government, the State, and Governance [pp. 379-385]
- Valor and Valkyries: Why the State Needs Valhalla [pp. 386-393]
- Review Essay
- Review: Appointing Federal Judges: Law, Politics, and Democracy [pp. 394-409]
- Back Matter
Sources/7.pdf
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Marriage (In)equality: The Perspectives of Adolescents and Emerging ... Goldberg, Abbie E;Kuvalanka, Katherine A Journal of Marriage and Family; Feb 2012; 74, 1; ProQuest Central pg. 34
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The Power and Limits of Marriage: Married Gay Men's Family Relationships Ocobock, Abigail Journal of Marriage and Family; Feb 2013; 75, 1; ProQuest Central pg. 191
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Attitudes Toward Gay Marriage in States Undergoing Marriage Law Transformation Brumbaugh, Stacey M;Sanchez, Laura A;Nock, Steven L;Wright, James D Journal of Marriage and Family; May 2008; 70, 2; ProQuest Central pg. 345
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Sources/Cited.docx
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2. "Schools 'must teach gay marriage' All pupils 'should learn about gay marriage." Daily Telegraph [London, England] 9 May 2014: 1. Infotrac Newsstand. Web. 23 Mar. 2016.
3. Ross, Tim. "Gay marriage is 'assault on religion'." Daily Telegraph [London, England] 20 Mar. 2012: 2. Infotrac Newsstand. Web. 23 Mar. 2016.
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7. Goldberg, A. E., & Kuvalanka, K. A. (2012). Marriage (in)equality: The perspectives of adolescents and emerging adults with lesbian, gay, and bisexual parents. Journal of Marriage and Family, 74(1), 34-52. Retrieved from http://search.proquest.com.liblink.uncw.edu/docview/1324623511?accountid=14606
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9. Brumbaugh, S. M., Sanchez, L. A., Nock, S. L., & Wright, J. D. (2008). Attitudes toward gay marriage in states undergoing marriage law transformation. Journal of Marriage and Family, 70(2), 345-359. Retrieved from http://search.proquest.com.liblink.uncw.edu/docview/219748394?accountid=14606
10. Salka, W. M., & Burnett, R. C. (2012). Determinants of electoral support for anti-gay marriage constitutional amendments: An examination of ballot issues in california and florida. Sexuality & Culture, 16(1), 59-75. doi:http://dx.doi.org.liblink.uncw.edu/10.1007/s12119-011-9099-9
11. Gonzalez, K. (2010). CIVIL MARRIAGE AND GAY UNION LAW IN THE AMERICAS. Law and Business Review of the Americas, 16(2), 285-309. Retrieved from http://search.proquest.com.liblink.uncw.edu/docview/1316135859?accountid=14606
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15. Encarnación, O.,G. (2014). GAY RIGHTS: WHY DEMOCRACY MATTERS. Journal of Democracy, 25(3), 90-104. Retrieved from http://search.proquest.com.liblink.uncw.edu/docview/1546003339?accountid=14606
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18. Bauerlein, Valerie. "'Bathroom Battles' Erupt Over Transgender Issue; New North Carolina Law Requires Transgender People to use Public Restroom Corresponding to the Gender on Birth Certificate." Wall Street Journal (Online)Mar 24 2016. ProQuest. Web. 23 Apr. 2016 .
Sources/Guildline Essay IV.pdf
ESSAY IV: RESEARCH-BASED ARGUMENT ESSAY The fourth Formal Writing Assignment, “Essay IV,” will be a “deep-web” Research-Based Argument Essay. Essay IV is worth 200 points because it functions as our “Final Exam.” Students will identify a topic of their choice to research and write about, develop an argumentative thesis statement, and craft an argument supported with evidence exclusively from Randall Library’s resources. Essay IV could be characterized as a “standard college research paper.” This essay and all related assignments are designed to prepare you for the body of academic research and writing in your future. More specifically, Essay IV is designed to bring about the following learning outcomes:
1. Through a variety of writing and speaking opportunities, students will demonstrate how multiple assigned readings are “in conversation” with one another. Students will conduct research based upon the questions that develop through their own analyses of assigned texts, thereby furthering their own learning processes and developing their own information literacies.
2. Students will conduct research, thereby familiarizing themselves with online databases, web-based materials, and print-based sources. Students will summarize an array of viewpoints they have read on a given topic. Students will synthesize these viewpoints as a means of 'mapping' a field of perspectives. Students will analyze these viewpoints in order to assess how and where their own views and experiences relate to those they've encountered in their reading.
To meet these demands, you will research the topic using WMR Library’s resources. Once you have selected a topic, familiarize yourself with the conversation(s) and formulate your position on the topic as a response to others. Develop a claim based upon your position and support it with evidence from scholarly sources exclusively from Randall Library. COMPOSITION GUIDELINES
• Follow MLA guidelines for the mechanics of writing, formatting the document, citing sources in the text (in-text citation), and formatting the list of Works Cited
• 6-10 pages (1500-2000 words) • 12 pt., Times New Roman or Cambria font • Double-space the entire document; remove “extra space between paragraphs” • At least 6 scholarly sources from Randall Library should be referenced in-text • A corresponding Works Cited page is required (no annotations)
SUBMISSION GUIDELINES
• Submit your final draft as an attachment o (attach the document, rather than typing in the Blackboard text editor)
• Deadline: listed in the Schedule EVALUATION INFORMATION
• Essay IV is worth 200 Points • Evaluation criteria is outlined in the “Essay IV Rubric”
RESOURCES
• William Madison Randall Library: http://library.uncw.edu/ • UNCW Writing Center: http://uncw.edu/ulc/writing/center.html • MLAHandbook.org: http://www.mlahandbook.org/