Court TV: Good evening, everybody. Welcome to Court TV's Debate on same-sex marriages. We're here on America Online's Center Stage with our guests Evan Wolfson and Rick Duncan. They are standing by, ready to debate questions from the audience.
First, a little about our guests: Rick Duncan is a professor at the University of Nebraska College of Law. He wrote a Supreme Court brief on behalf of several states that supported Colorado's anti-gay rights law. He has written extensively on the law of religion and constitutional law.
Evan Wolfson is the senior staff attorney at Lambda Legal Defense, the leading civil right group for gay men and lesbians. Good evening Mr. Duncan. Please tell us some more about yourself.
Rick: I've written three Law Review articles on gay rights, one on the religious freedom issue, one on Colorado Amendment 2, and one coming out this month on same-sex marriage. I teach constitutional law, and have a special interest in religious freedom and the culture war.
Court TV: Mr. Wolfson, tell us more about your work.
Evan: I'm director of The Marriage Project for Lambda Legal Defense and Education Fund, and I am co-counsel for the couples seeking freedom to marry in the case in Hawaii.
CourtTV9: Why don't we start with an update on that case.
Evan: Well, the Hawaii Supreme Court ruled in May of 1993 that the denial of marriage licenses to same-sex couples is discrimination. The court said that unless the government can show a compelling reason for this harsh discrimination it must stop discriminating. So we are in the lower court now and expect a final decision in the case about 2 years from now.
Rick: I'd like to point out two things: First, the Hawaii case does not involve the United States Constitution, but rather a provision of the Hawaii constitution that differs from federal rule.
Second, the court in the Hawaii case did not hold that the discrimination was based on homosexuality, but rather was based upon gender. I don't believe it is likely that this whole thing would be duplicated in Federal Courts.
Court TV: We will now take questions from the audience. Our guests will both respond to each question. To be fair, we will alternate the order in which they respond.
Question: Are there any Constitutional precedents that can be used to uphold gay marriages?
Rick: Well, the answer is no. The case that some proponents of gay marriage likely would refer to is Loving v. Virginia, the case that struck down laws prohibiting interracial marriages. That case is completely different from the same-sex marriage issue for a lot of reasons.
Evan: First of all, gay people are denied the freedom to marry in all 50 states. We are fighting to change that. The Hawaii court concluded that the ban on people marrying someone of the "the wrong sex" is clearly analogous to the ban on marrying someone of "the wrong race." In 1987, the Supreme Court defined the four key elements of marriage in striking down a ban on prisoners marrying. All four of the elements apply to gay and lesbian people in love who wish to marry. There is simply no good reason why the government should prevent couples in love from taking on the commitment of marriage.
Question: This country was founded on the belief of "Separation of Church and State." Beyond a moral argument solely based on religious beliefs, what POSSIBLE argument could you have against same-sex marriages?
Evan: We believe that government should not force any religion to perform or recognize any marriage it doesn't want to. At the same time, churches or religions should not dictate who gets a civil marriage license.
Rick: Churches do not dictate who gets a civil marriage license, the legislatures of all 50 states have defined a marriage as involving a relationship between one man and one woman. The institution of marriage is an attempt to encourage and promote an ideal way of life, and to channel procreation into a committed and complimentary relationship between husband and wife. In short, conventional marriage "gives full expression to the commitment through time and history evident in having and caring for children."
Question: Why do you two feel personally passionate about this issue?
Rick: I believe that the same-sex marriage issue is the most critical battle in the culture war. We are talking about the meaning of the most essential unit in the human community. The proponents of same-sex marriage are seeking a fundamental change in society that will have many unintended consequences.
Evan: It's clear that Prof. Duncan does not have a reason why gay people should be barred from marrying. He says it's about how legislatures define marriages. But less than 30 years ago legislatures defined marriage to exclude interracial couples. He says it's about children. But many non-gay married couples do not have children, while many same-sex couples are raising children. What's clear is that our opponents have nothing to say here, except their bottom line dislike of gay people.
Question: Let's say same-sex marriage becomes the law. What would America be like ten, 20 years down the road? Would the world be much different?
Evan: The world would be much different for gay people, our families, our children, and our loved ones. It will also be different for non-gay people who are opposed to sexism and who support equality. But the sky will not fall, non-gay people will still get married, and the government will not run out of marriage licenses. These people always predict the end of the world. They said it about contraception. They said it about women's equality. And they said it about interracial marriage.
Rick: I don't know who "these people" are that Mr. Wolfson refers to. My view of the same-sex marriage issue is that it's a demand not for tolerance, but for public endorsement and subsidization of homosexual relationships. Conventional marriage laws do not cruelly prevent same-sex partners from living together, loving each other and even considering themselves married. All conventional marriage laws do, is point toward an ideal, a committed relationship between one man and one woman for procreation and rearing of children.
Question: If you support gay marriage because it is love between consenting adults, why not condone polygamy -- as long as it's polygamy among three or more consenting adults.
Rick: I think the poster makes a good point. There are many loving relationships. Those between brothers and sisters who live together, between roommates, and indeed among several people who live together and love one another that are not recognized as marriages, and that do not receive the public benefits that are provided to married couples. If we allow same-sex couples to marry, there seems no good reason to deny marriages to all these other relationships.
Evan: Once again that is exactly the argument that people made against interracial marriage. They said that if we allow interracial marriage, we'll have to allow polygamy. It wasn't true then, and it's not true now. The number of people who can get married should be the same for gay and non-gay people. And when you say it's two, that's a different question from whether the government can add an additional restriction based on race, or religion or sex or sexual orientation. Talking about polygamy is just a scare tactic, not an argument.
Question: Considering the conservative legislation to ban gay marriage on a Federal level and President Clinton's willingness to sign it, how will gay marriage ever pass? The Supreme Court tends to be more conservative than liberal.
Evan: Well, first of all, the Federal Anti-Marriage Bill has not passed, and people should urge their senators and the president to oppose this radical discriminatory, cruel election year legislation. Second, regardless of whether we win or lose one particular battle, we will win the freedom to marry. We must stick with the fight through setbacks as well as through victories.
Rick: The Defense of Marriage Act is neither cruel nor radical. It takes the position that the people of each state should decide their own marriage policy, not the activist court in Hawaii. All the act does is make clear that Federal Law does not require any state to recognize any out-state-marriage that is contrary to it's public policy. In terms of the United States Supreme Court, there is absolutely no chance that the court would mandate same-sex marriage under the Constitution.
Question: If we allow gay marriages, how would we prevent abuse and exploitation of the system? For example, roommates claiming married status?
Rick: If we allow same-sex marriage, there is no reason to not to allow any two people who love one another to claim the benefits of marriage. Why should we deny the benefits of marriage to two sisters who live together, while granting it to a homosexual couple? If the argument is that the state recognizes to encourage committed and loving relationships, then there is no
Evan: First of all, the now 100's of cities, companies, universities and employers who are providing domestic partner benefits (almost all voluntarily, by the way) have reported no problem of abuse, fraud or cost. Second, gay people are no more likely to abuse marriage rights than non-gay people. Third, when two people come to get a marriage license, they do not have to sign a letter of intent to procreate. They do not have to swear a legal affidavit about their sex lives. They get married, and the state respects their marriage.
That's how it should be for non-gay and gay couples alike.
Question: Where is gay marriage legal? How has it worked out?
Evan: No country permits equal marriage, however a number of countries recognize a marriage-like relationship called "registered partnership." Countries like Denmark, Norway, Sweden, and so on have reported absolutely no bad consequences and according to the Wall Street Journal, even people who opposed registered partnership (including some religious figures) now think it was the right decision.
Rick: The strong worldwide consensus supporting the heterosexual norm in marriage is itself significant.
No country or state in the world recognizes same-sex marriage. Moreover, a recent survey by international scholars concluded it's unlikely that a foreign same-sex marriage (such as might happen if the Hawaii courts mandate same-sex marriage) "would be fully recognized at the present time as a marriage in any jurisdiction in the world". It is Mr. Wolfson who is proposing the truly radical ideas.
Court TV: We've run out of time. Thanks to both of you. Any final thoughts, Mr. Duncan.
Rick: Thanks for the opportunity to take part in this forum.
Evan: Equality always seems radical to those who oppose it. I urge people to not let this important public discussion get shut down or distorted by anti-marriage election year attacks. Thank you.
