Beacon Broadside

Further Reading on Marriage Equality

If you're following the news today, or seeing all the red equality icons on Facebook, you areno doubt thinking about marriage equality. The Supreme Court hears arguments in two cases this week—Hollingsworth v. Perry and United States v. Windsor—that have the potential to tip the judicial scales in favor of greater legal equality for LGBT families. Here's a selection of reading that will help you dig deeper. 

How Bad Conservative Sociology is Used to Attack Gay Families

A Non-Bio Lesbian Mom's Adoption Story

Straight Talk About Gay Marriage

United for Marriage? Or for Equality?

What Kids Have to Say

 

Read all Beacon Broadside posts on Marriage Equality

 

Beacon Books on LGBT Equality

God vs. Gay?: The Religious Case for Equality by Jay Michaelson

Does the Bible prohibit homosexuality? No, says Bible scholar and activist Jay Michaelson. But not only that: Michaelson also shows that the vast majority of our shared religious traditions support the full equality and dignity of LGBT people. In this accessible, passionate, and provocative book, Michaelson argues for equality, not despite religion but because of it.

Follow Jay Michaelson on Twitter. 

Watch Jay Michaelson talk about the religous case for equality.

Read an excerpt of God vs. Gay?: The Religious Case for Equality.

 

 

Outlaw Marriages: The Hidden Histories of Fifteen Extraordinary Same-Sex Couples by Rodger Streitmatter

For more than a century before gay marriage became a hot-button political issue, same-sex unions flourished in America. Pairs of men and pairs of women joined together in committed unions, standing by each other “for richer for poorer, in sickness and in health” for periods of thirty or forty—sometimes as many as fifty—years. In short, they loved and supported each other every bit as much as any husband and wife.

In Outlaw Marriages, cultural historian Rodger Streitmatter reveals how some of these unions didn’t merely improve the quality of life for the two people involved but also enriched the American culture.

Among the high-profile couples whose lives and loves are illuminated in the following pages are Nobel Peace Prize winner Jane Addams and Mary Rozet Smith, literary icon Gertrude Stein and Alice B. Toklas, author James Baldwin and Lucien Happersberger, and artists Jasper Johns and Robert Rauschenberg.

Read an excerpt of Outlaw Marriages.

 

Beyond (Straight and Gay) Marriage: Valuing All Families under the Law by Nancy D. Polikoff

Beyond (Straight and Gay) Marriage reframes the family-rights debate by arguing that marriage shouldn't bestow special legal privileges upon couples because people, both heterosexual and LGBT, live in a variety of relationships-including unmarried couples of any sexual orientation, single-parent households, extended biological family units, and myriad other familial configurations. Nancy D. Polikoff shows how the law can value all families, and why it must.

Read an excerpt of Beyond (Straight and Gay) Marriage.

Read Nancy Polikoff's blog.

 

From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation by Carlos A. Ball

Engaging and largely untold, From the Closet to the Courtroom explores how five pivotal lawsuits have altered LGBT history. Beginning each case narrative at the center-with the litigants and their lawyers-law professor Carlos Ball follows the stories behind each crucial lawsuit. He traces the parties from their communities to the courtroom, while deftly weaving in rich sociohistorical context and analyzing the lasting legal and political impact of each judicial outcome.

Read an excerpt here.

 

What Is Marriage For?: The Strange Social History of Our Most Intimate Institution by E. J. Graff

Will same-sex couples destroy "traditional" marriage, soon to be followed by the collapse of all civilization? That charge has been leveled throughout history whenever the marriage rules change. But marriage, as E. J. Graff shows in this lively, fascinating tour through the history of marriage in the West, has always been a social battleground, its rules constantly shifting to fit each era and economy. The marriage debates have been especially tumultuous for the past hundred and fifty years-in ways that lead directly to today's debate over whether marriage could mean not just Boy + Girl = Babies, but also Girl + Girl = Love. 

Read the Discussion Guide here.

Related articles

Beacon Books at Audible: Outlaw Marriages by Rodger Streitmatter

How Bad Conservative Sociology is Used to Attack Gay Families

A Generational Divide Among Republicans on Gay Marriage

Which Politicians Supported Gay Marriage and When?

United for Marriage? Or for Equality?

Nancy D. Polikoff is the author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. She is professor of law at American University. This post originally appeared on her Beyond Straight and Gay Marriage blog.

By now everyone knows there are four same-sex marriage ballot initiatives coming up next month. Minnesota’s is the old-fashioned kind—a constitutional amendment to ban same-sex marriage. Maryland and Washington will vote on whether to keep from going into effect legislation passed last term allowing same-sex couples to marry. In Maine, voters will decide whether to enact marriage equality by popular vote; if it passes, it will be the first state to grant marriage equality this way. Three years ago, Maine voters rejected a marriage equality law passed by the legislature.

Of course I hope the Maine initiative is successful (and that the other measures fail). But I am deeply troubled by an apparent switch in focus by the campaign for marriage equality. According to Thursday’s Los Angeles Times, the campaign manager of Mainers United for Marriage, Matt McTighe, reports that campaign volunteers going door-to-door talking to voters “talk less about gay rights and more about marriage as a stabilizing force in society.” In other words, this fight for marriage equality is less about equality and more about marriage.

But what does it mean to sell same-sex marriage because marriage is a stabilizing force? If we denominate those who marry the virtuous ones, then those who don’t marry must be de-stabilizing. I have never understood how this can be a pro-gay message, when up until recently there have been no same-sex marriages but there have been a whole lot of long-term same-sex relationships, with and without children, contributing to civic life and their communities. The gay rights message can’t be that we think those families were a de-stabilizing force on society because they weren’t married. So the message must be a dig at heterosexuals who don’t marry, and that’s the same message right wing organizations use when they blame single mothers for all our social problems, thereby displacing responsibility from the income inequality, inadequate education system, race and sex discrimination, and lack of public support for childrearing that really cause our nation’s problems. (For more on this, read one of my early blog posts here.)

Long-time marriage equality opponent David Blankenhorn got a lot of attention this past summer for his conversion to marriage equality supporter. In a recent video opposing Minnesota’s constitutional amendment, Blankenhorn explains that he dropped his opposition because opposing gay marriage was not helping achieve his goals of having “society renew its commitment to the marital institution” and having more children grow up in stable two parent homes. In his New York Times piece explaining his conversion, he called for a coalition of gay and straight people who want to “strengthen marriage.” And he tells us what that means. His agenda is: people should marry before having children and should marry rather than “cohabit.” He also hopes this coalition will agree that children born from assisted reproduction should have a “right to know and be known by” those who donated the semen or eggs that resulted in their birth. (He calls those people “their biological parents,” but I am more critical of using the word “parent” in this context.) So by his account, same-sex couples should not live together until they marry; should not have children unless and until they marry; and should not use anonymous sperm or egg donors to procreate. With friends like that....

I’m not saying that Mainers United for Marriage believes those things. But consider its name. Not Mainers United for Marriage Equality, or even Mainers United for the Freedom to Marry. Mainers United for Marriage. If you didn’t know otherwise, that could be the name of a group opposing marriage for same-sex couples, because, after all, those groups say they are for marriage. I, on the other hand, am for equality. And proud of it.

Fathers? Mothers? What Really Matters in Child Development

Nancy D. Polikoff is the author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. She is professor of law at American University. This post originally appeared on her blog: beyondstraightandgaymarriage.blogspot.com.

Cambridge University Professor Michael E. Lamb has impeccable credentials as one of the world's leading experts on child development. Among other things, he was Chief of the Section on Social and Emotional Development of the National Institute of Child Health and Human Development for 17 years. His list of publications is about 50 pages long (that is not a typo!  check it out here). He is credited with, among other things, determining that fathers, as well as mothers, matter to child development. It is no doubt that early finding of his that endeared him to the "father's rights" movement and the fatherhood movement that sought to pathologize women raising children without father involvement.

Perhaps because of the mischaracterization of his research, Dr. Lamb was drawn into the public conversation about the relationship of family structure to child outcome. Turns out that his research supported the findings that when fathers are there, they matter; in other words that there is more to child adjustment than the mother-child bond.  What his research did not support was the assertion that optimal child adjustment demands that every child have a father in the home.

In 2004, the ACLU, in a case litigated brilliantly by LGBT Rights Project attorney Leslie Cooper, called Dr. Lamb as a witness in a lawsuit in Arkansas state court successfully challenging the social services agency regulation against placing children with lesbian and gay foster parents. The trial judge referred to Dr. Lamb as the "most outstanding" expert witness in the case (coming close to saying he was the most outstanding expert witness he had ever heard), who answered questions fully with no "animus or bias" to any parties.  He testified about what did (quality of relationships, available resources), and did not (gender or sexual orientation of parents), matter to the well-being of children. Since then, Michael Lamb has participated in other litigation, most notably the Perry case challenging the constitutionality of Prop 8.

Last month, Dr. Lamb published in the journal Applied Development Science a summary of many hundreds of studies over the last four decades elucidating the factors that contribute to child adjustment. The article, Mothers, Fathers, Families, and Circumstances: Factors Affecting Children's Adjustment is available online here. This means that Dr. Lamb's professional opinion is now widely available for anyone who needs support for the following propositions:

*Social scientists have reached consensus that the following factors matter most to healthy child development: the quality of relationships with parents; the quality of relationships between the parents and other significant adults; and the availability of adequate economic, social, and physical resources.

*Family structure explains a "small (or even insignificant) portion" of differences in child outcomes

*Children in one-parent families have greater adjustment problems than children in two-parent families, but the primary causes of this increased maladjustment are disturbed relationships with one or both parents, reduced resources when there is only one wage-earner and care-giver, and unstable living arrangments and conflict around parental separation.  "The mere fact that the majority of children raised in single-parent or divorced families are well-adjusted," writes Dr. Lamb, "undercuts the argument that children 'need' to be raised in traditional families."

*Mothers and fathers are important to their children "as parents";  "father absence" is not itself important to adjustment.  (emphases in original)

*There is no support for the notion that both male and female role models in the home enhance child adjustment.

*The same factors affect child adjustment whatever the sexual orientation of parents; children with same-sex parents suffer no developmental disadvantages when compared with children of different-sex parents.

*Arguments from "some politicians and advocacy groups, especially those who oppose divorce and same-sex parenthood" that children need to be raised by "biological" parents have no empirical support.

Dr. Lamb concludes that discrimination against individuals and families on the basis of sexual orientation, gender, and marital status -- which he refers to as "outmoded beliefs in the superiority of traditional families" -- are harmful to individuals, families, and children.

To me, this is what is most important about this article. It places single-mother and same-sex couple families together and debunks the myths about both. Too often, advocates for LGBT families (especially for same-sex marriage) distance themselves from single-mother families. Those families, they say, are pathological, but not ours. I despise such arguments. The Lamb article makes clear that circumstances often associated with single motherhood, such as exposure of the child to parental conflict and lack of resources, can lead to child maladjustment. But it is not the structure of a family with children raised by a single mother that's the problem.

Time for Michael Lamb to get an "allies" award from some gay rights group....

End of Don't Ask Don't Tell is Good for Children

Nancy D. Polikoff is the author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. She is professor of law at American University. You can read her blog at http://beyondstraightandgaymarriage.blogspot.com/.

In all the glee over the end of Don't Ask, Don't Tell, there's a constituency that has received little notice: children with a gay service member nonbiological parent. Those parents have been unable to adopt their children, or sometimes even to live with them, for fear that knowledge about their family circumstances would trigger a discharge. That fear is now lifted. The children will now have greater economic and emotional security.

It's been bad enough when the couple raising the child stays together and does the best they can to nurture their children under a veil of secrecy. But it's been especially difficult if the couple splits up. The bio mom has had the heavy weapon of threatening to out her ex-partner if she tried to maintain a relationship with their children.

A case scheduled to be argued in the California Court of Appeal next week illustrates another insidious impact of DADT on gay and lesbian parents. California has some of the best law in the country for assuring that children do not lose one parent when their parents split up. But when S.B. and S.Y. split up, S.B. denied that S.Y. was a parent of the two children (now 11 and 6) adopted by S.B. during their thirteen-year relationship. Part of the evidence she used was that the couple were not registered domestic partners, S.Y. did not adopt the child, and S.Y., a Colonel in the U.S. Air Force Reserves, maintained a separate residence for most of their relationship, even though she spent evenings and several nights a week in the home with the children.

After a two day trial, the court found that S.Y. did qualify as a presumed parent under California law. To S.B.'s contention that S.Y. was nothing more than someone she was dating who sometimes spent the night, the trial court said the following: "The [respondent] made sacrifices at her job, personally, financially, to care for the children. A guy who is spending the night on the couch ... would not do all these things, would not clean up my kid’s puke or set up college accounts, pay for their therapy, volunteer at school and so forth." The court made numerous other factual findings in support of its ruling.

S.B. has appealed. The appeals court is supposed to accept the facts as determined by the trial judge, who was in the best position to judge the credibility of the witnesses and weigh the evidence. Hopefully, that will be enough to sustain these children's rights to a relationship with both their parents.

From now on, fewer children should be in this position, as the end of DADT removes one more barrier to recognition of their families.

Marriage Equality Gets the Seven-Year Itch

It was seven years ago today that the first legal same-sex marriages began in Massachusetts. We asked three of our authors how they think things have changed in seven years, and what challenges still lie ahead. 

We are also celebrating the anniversary on our Facebook page, where you can see an album of photos from Courting Equality: A Documentary History of America's First Legal Same-Sex Marriages.

 

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Amie Klempnauer Miller is the author of She Looks Just Like You: A Memoir of (Nonbiological Lesbian) Motherhood. She is a frequent speaker about gay and lesbian families, and her writing has appeared on Salon, in Brain, Child and Greater Good magazines, and elsewhere. Miller works as a development consultant to the public media industry and lives with her partner and daughter in St. Paul, Minnesota.

Massachusetts legalized same-sex marriage seven years ago and what has changed? Well, let me point out that the marriage rate nationwide has declined – a-ha! –  perhaps same-sex marriage does undermine heterosexual marriage after all. But the divorce rate nationwide has also declined – so maybe same-sex marriage actually strengthens heterosexual unions. Or, here’s a thought, maybe it does neither.

Meanwhile, here in the heartland, we’re having none of it. Six years and 49 weeks after Massachusetts’ action, some Minnesota legislators introduced a bill to define marriage as between one man and one woman in the state Constitution. The bill has been moving quickly through legislative committees and, despite the fact that Minnesota already denies marriage to same-sex couples, it will likely go to the popular vote in the 2012 election. The bill’s advocates are positioning it in the usual ways, of course:  giving “the people” the chance for a “dialogue”; protecting children; upholding the will of God. What is clear is that the “dialogue,” when it happens, is likely to play out heavily in the media, to cost millions of dollars, to pit different communities against each other, and to take up a whole lot of time and energy that could be put into other things like – oh, I don’t know – solving the budget deficit, planting gardens, playing with our kids.

Meanwhile, the real dialogue continues, mostly quietly, in communities across our state and the nation.  Since Massachusetts (and Connecticut, New Hampshire, Vermont, Iowa and Washington, DC) legalized same-sex marriage, more gay and lesbian couples across the nation have become willing to be honest about who they are. In Massachusetts – but also in places like Alabama, Mississippi and Kentucky –same-sex couples are increasingly admitting that they are, in fact, not just roommates.

Maybe this is what the supporters of the Minnesota amendment fear most: that people across the country will increasingly discover that gay men and lesbians really are pretty much like everyone else. And there’s a reason for their fear. Three national polls have now shown that more than half of Americans think that gay men and lesbians should have equal marriage rights. This shift is not occurring only among the young and the liberal, but across religious and demographic groups (though, admittedly, more slowly in some places than others). The primary driver is familiarity. As more people have realized that they are related to, live near, work and volunteer with gay men and lesbians, they have also realized that gay men and lesbians are really just people who deserve to be treated fairly.

That, more than anything, is what has changed since the decision in Massachusetts.  

Author photo by Terry Gydesen.

 

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Nancy D. Polikoff is the author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. She is professor of law at American University. You can read her blog at http://beyondstraightandgaymarriage.blogspot.com/.

I won’t lie. I never imagined when the weddings began in Massachusetts seven years ago that in 2011 we would have 5 states and the District of Columbia permitting same-sex marriage, at least two other states recognizing marriages performed where allowed, and 8 more allowing (or about to allow) civil unions or comprehensive domestic partnership (the two most recent civil union statutes, Hawaii and Delaware, go into effect January 1, 2012). Nor could I have imagined that one of the lawyers most responsible for the travesty that resulted in the Supreme Court “selecting” George Bush to be President in 2000 would become a leading advocate of marriage equality.

What’s less surprising, however, is the downside of obtaining access to state recognition.  Although the fight for marriage equality has been framed as obtaining the choice to marry, the predictable consequence of having that choice is that the state feels justified in maintaining and even solidifying the bright line between those who marry and everyone else.  The choice to marry isn’t much a choice if marriage is the only way to protect a family’s financial and emotional well being.

I’m particularly disturbed about this bright line when it comes to raising children. Right now a child born to a lesbian couple in Massachusetts has two mothers if the couple is married and one mother if the couple is not. Although second parent adoption is available, that is an expensive and time consuming process. For more than 40 years it’s been a basic tenet of family law that a child should not suffer because her parents did not marry.  Yet that is precisely what happens in Massachusetts. A child can lose access to financial support and to the love and care of a nonbiological mother, solely because her parents did not marry.

At this point the solution needs to come from the legislature. Here in the District of Columbia we have a statute that says when two people plan for a child together and intend to parent together, and when conception takes place through donor insemination, then they are both parents. The law is gender neutral and marital status neutral. The names of the two intended parents appear on the child’s birth certificate. Although same-sex couples can marry in the District of Columbia, they do not have to marry to give their child two legal parents from birth.

I hope Massachusetts follows our lead.

Author photo by Lauren R. Taylor.

 

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Karen Kahn is co-author, with Pat Gozemba, of Courting Equality: A Documentary History of America's First Legal Same-Sex Marriages. The former editor of Sojourner: The Women's Forum, she also edited Frontline Feminism: Essays from Sojourner's First Twenty Years. Kahn and Patricia Gozemba got married in September 2005; they live in Salem, Massachusetts.

Karen Kahn (l) with Pat Gozemba.

Is marriage equality subject to the seven-year itch? Are we losing interest in it? From all the evidence, it looks to me that, in Massachusetts at least, our commitment to marriage equality remains strong. In fact, in our home state, marriage of same-sex couples has become so ordinary that when you hear that someone is about to tie the knot, you can make no assumptions about the gender of the bride/groom to be.

About the only conflict there seems to be around same-sex couples marrying in Massachusetts is what to call your same-sex spouse. Though men have become quite comfortable with “husband,” two professors at Salem State University find that women are still working out the linguistic issues. For many old-time feminists, “wife” just carries too much baggage, “partner” doesn’t infer marriage, and “spouse” sounds a bit legalistic. But give us another seven years, and I’m sure we’ll find the right vocabulary!

Of course, same-sex couples in Massachusetts still face discrimination, which is why GLAD attorney Mary Bonauto and the Massachusetts Attorney General Martha Coakley are challenging the federal Defense of Marriage Act (DOMA). Those suits, which argue that DOMA is unconstitutional because it forces states to treat same-sex couples differently than heterosexual couples, got a big boost this spring when the Obama administration announced that it would not defend DOMA in court. 

This was great news for same-sex families who currently are denied thousands of federal marriage benefits, including Social Security survivor benefits, the right to file joint tax returns, and the right to sponsor citizenship for foreign same-sex partners. It affirmed the administration’s commitment to supporting LGBT equality, and put into sharp relief the country’s shift in attitude since 1996, when then-President Bill Clinton signed DOMA into law. Though there remains strong opposition in many parts of the country, the latest national Washington Post-ABC poll shows a majority of Americans (53 percent) now support gay marriage. That’s up from 36 percent just five years ago.

That shift in public opinion is in no small part due to the “reality TV show” now playing in four New England states (Connecticut, Massachusetts, New Hampshire, and Vermont), Iowa, and the District of Columbia, all of which grant marriage licenses to same-sex couples. As thousands of same-sex couples have married, none of the dire predictions by the National Organization for Marriage and other right-wing evangelicals such as Pat Robertson and Chuck Colson have come true. Though some want to blame Katrina, the Great Recession, the Japanese quake/tsunami, and this year’s tornado season on the acceptance of same-sex families, most Americans find that treating people equally aligns with their most cherished values.

Of course that doesn’t mean that the road to marriage equality has been without obstacles. There were the painful setbacks in California (2008) and Maine (2009), when these states passed ballot measures that blocked previous decisions to grant same-sex couples marriage licenses. Proposition 8 in California was especially disheartening since it took away rights granted by the state’s high court, and ended a flood of same-sex marriages that had begun the previous spring. In November 2010, the anti-marriage equality movement focused on Iowa, where they convinced voters to oust three Supreme Court justices who had ruled in favor of marriage equality the previous year. New York, Rhode Island, and Maryland have all come close to passing marriage equality legislation but all have fallen short.

Nonetheless, as Massachusetts abolitionist Theodore Parker said, “the arc of the moral universe bends toward justice.” In the latest round of victories, Hawaii, Illinois, and Delaware have all passed civil union bills in their current legislative sessions. Though these laws fall short of full marriage equality, they offer same-sex couples and their children significant social and economic benefits. Additionally, in a show of bipartisan support, New York marriage equality activists have raised millions of dollars from Wall Street Republicans, enlisting their support, along with that of Mayor Bloomberg, to pressure the state’s Republican-led Senate to stop blocking marriage equality legislation. Finally, just this week, Freedom to Marry announced that Caroline Kennedy had become the 100,000 signer of a petition asking President Obama to explicitly state his support for marriage equality. 

Indeed one hardly needs a poll to know that we are experiencing a seismic shift in attitudes toward LGBT people. In 2004, when same-sex couples first married in Massachusetts, Vermont was the only other state where equal rights and benefits were available to same-sex couples (through civil unions). Today, 13 states and the District of Columbia–or more than one-quarter of the United States of America—recognize same-sex couples and their families. That is astounding progress in a nation that is deeply divided on a great many social and political issues. In fact, the movement for marriage equality offers hope that our nation will find its way back to a vision of the future that truly values equality and justice for all.  

Author photo by Marilyn Humphries.

LGBT Families Should Not Distance Themselves from Single Mothers

Nancy D. Polikoff is Professor of Law at American University Washington College of Law, where she teaches in the areas of family law, civil procedure, and sexuality and the law. She is the author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Get 10% off on this and all other Beacon Press titles at our Holiday Sale, running through December 31st. This post originally appeared on Polikoff's blog.

If supporters of Prop 8 have standing to appeal Judge Walker's order in Perry v. Schwarzenegger (even though the state did not appeal it), the Ninth Circuit Court of Appeals will decide whether Prop 8 violates the federal constitution. If you listened to the oral argument yesterday, you heard the term "rational basis" used a lot. That term means something in constitutional law. Every time the state puts people in categories -- classifies them -- it must have at least a "rational basis" for doing so. Charles Cooper, arguing for the Prop 8 supporters, therefore had to say what the rational basis is for allowing different-sex couples to marry but denying that right to same-sex couples.

Here's what he said. The key purpose of marriage is to manage the one relationship that naturally produces children, often unintentionally. Society's interests are threatened by unwanted pregnancy because a child raised by "its" (his word) mother alone violates society's vital interests. Society will have to step in and assist that single parent. ("That is what usually happens," he said). He argued as an "undeniable fact" that children raised in that circumstance have poor outcomes. In the middle of this last sentence, Judge Reinhardt said that sounded like a good argument for prohibiting divorce, but how does it relate to same-sex couples raising children?

His question caused chuckles in the courtroom, but here is its constitutional significance: The rational basis test requires that the state's classification be rationally related to achieving a legitimate state interest. So, first, what is the legitimate state interest? In general, providing for the welfare of children is of course legitimate, but, in this context, Cooper, on behalf of opponents of same-sex marriage, is essentially saying that the state has a legitimate interest in preventing births to single mothers. I strenuously object to this, on its own terms. And I wish supporters of same-sex marriage would object to it as well.

Instead, the emphasis among gay rights advocates is the approach reflected in Judge Reinhardt's question. It assumes that the state does have a legitimate interest in preventing births to unmarried mothers but suggests that keeping same-sex couples from marrying does nothing to achieve that objective. Judge Reinhardt's comment about divorce doesn't directly tackle bearing a child outside of marriage but does explicitly address a corrolary principle that opponents of same-sex marriage adhere to, which is that children do best raised by their married mother and father. Banning divorce would result in more couples staying married, so it does bear a rational relationship to having children raised by their married parents. Of course there is no political support for banning divorce, so no state is going to do that.

As a matter of constitutional argument, it is completely proper to focus on the relationship between the classification and the state interest. If the classification is not rationally related to the state interest then it should fail as a matter of Equal Protection law. So if banning same-sex marriage won't result in fewer heterosexual pregnancies outside of marriage, then it is irrational. (Or if allowing same-sex marriage won't result in more heterosexual pregnancies outside of marriage, then it is irrational.)

But I want to directly address the alleged state interest in reducing births outside of marriage. I wish that gay rights advocates would say directly that the state has no business prefering heterosexual motherhood within marriage over heterosexual motherhood outside of marriage. I do not believe that should be considered a "legitimate state interest." The arguments from social science about the well-being of children, which Charles Cooper referred to as "undeniable fact," are overstated, mischaracterized, covertly political, and flat out wrong. I've written about this in many posts about spending federal dollars on "marriage promotion." Consistently, the right wing argues that poverty is the result of unmarried births and that marriage is the way to end poverty. When that reasoning prevails, poverty looks like the moral failing of individuals who do not marry, rather than the result of systemic policies that reinforce income inequality that could be addressed through laws and programs designed to reduce that inequality. We know how to end poverty but we lack the political will to do it.

Charles Cooper's argument about the rational basis for opposing same-sex marriage is that if you redefine the word "marriage" to include same-sex couples you change the institution of marriage and make it something other than the place society provides for the well-being of children born, often accidentally, from the sexual relationship of the two participants. Unfortunately, it's an argument that has been successful in some state courts. I believe it fails the rational basis test in the way that Prop 8 opponents argued, but I also wants the gay rights movement to recognize its common cause with single mothers. Family structure does not determine child outcome. All children need government policies that optimally serve their physical, emotional, and educational needs. That's the gay rights position I champion.

What Married Same-Sex Couples Owe to Hippie Communes

Today's post is from Nancy D. Polikoff, author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Polikoff is a Professor of Law at American University Washington College of Law, where she teaches Sexuality and the Law and has taught Family Law for more than 20 years. This post originally appeared on her Beyond (Straight and Gay) Marriage blog.

I'm guessing most married same-sex couples think they have little in common with the hippie communes of the 1960's and 70's. Free-loving hippies challenged the fabric of American society, including the nuclear family, while most married same-sex couples, or at least the organizations that speak for them, are busy presenting gay marriage as anything but a threat to heterosexual family life.

Well, think again. Last week's ruling in Gill v. OPM demonstrates just how much debt all gay rights advocacy owes those hippies.

After rejecting every asserted justification for excluding Massachusetts married couples from the legal consequences of being married under federal law, US District Court Judge Joseph Tauro said this:

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."

The citation for the last sentence in that paragraph is a case called USDA v. Moreno, decided in 1973. It's the case that formed the primary precedent for the Court's landmark gay rights ruling in 1996, Romer v. Evans.

Moreno was a challenge to an amendment to the statute governing the federal food stamp program. When enacted in 1964, eligibility for food stamps was determined on the basis of household size and income. A "household" included any group of related or unrelated individuals who basically shopped for food and cooked in common. In 1971, Congress amended the law to exclude households whose members were not all related.

Nancy Polikoff: Same-Sex Marriage and the 2010 Census

Nancy D. Polikoff, author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Polikoff is a Professor of Law at American University Washington College of Law, where she teaches Sexuality and the Law and has taught Family Law for more than 20 years. For more, read her Beyond (Straight and Gay) Marriage blog.

If thinking of yourself as married to your partner turned you into husband and husband or wife and wife, then we wouldn't need a marriage equality movement, right? So imagine my puzzlement to find gay organizations instructing us to fill out the 2010 census based on how we think of our relationships. The Williams Institute, to whom I turn for all things demographic about gay men and lesbians, offers this advice, which other groups are repeating:

Same-sex couples who have been legally married or consider themselves to be spouses should identify one person as a "husband or wife".

Other same-sex couples may be more comfortable using the term "unmarried partner". In general, this designation is designed to capture couples who are in a "close personal relationship" and are not legally married or do not think of themselves as spouses. (emphasis mine).

Now I understand the census is an imperfect instrument (very) for counting our relationships. If a couple does not live together, they will not be counted, because the census counts households and the relationships of the people in each household. There is also no option for those who are registered as domestic partners or in civil unions. I applauded when the Williams Institute and others won from the Obama administration the right to be counted as same-sex spouses when they were same-sex spouses.

But now it appears that labeling the person you live with your husband or wife is actually not going to measure the number of same-sex married couples but rather the number of couples who consider themselves spouses, whatever that means -- and I truly do not know what it means.