Tuesday, November 16, 2004

Debate on Gay Marriage at Stanford Law School
Tonight’s speakers are speaking to an overflow crowd. We have Tobias Wolff on the left (“in more ways than one”). He has been very active in LGBT rights litigation and was part of the rapid response of the Kerry Campaign. (abbreviation – W) of UC Davis Law School, William Duncan is of the Sutherland Institute, and has been involved in many committees (that I missed) on marriage/family law(abbreviation – D). The event will be moderated by Pam Karlan (abbreviation – K). They are speaking for the upcoming symposium put out by the Stanford Law and Policy Review on Gay Marriage.

As usual, this is a rough “transcript” in that it is not a transcript, but rather my attempt to get the salient points down. I will email the speakers tonight so that they can double check this - so in other words this may be, or is likely to be, revised.

K: Thank you for coming out tonight – but I’d like to thank both Mike Kass for putting this event together, but also you the audience.
Is it possible to separate out personal views from legal/policy philosophy on this issue?
D: Yes. Much does of course go into our thought process of why we would choose one over another. It seems to me that the legislature v. court question is crucial as to what has gone on up to this point. At initial sense that they are parallel is that they are moving in the opposite directions – courts towards same sex marriage (generally) and legislature (generally) away from it (in bits and starts). Certainly since Goodrich in 2003 the momentum has……….

K: Why the difference?

D: I have struggled with that question – on the one hand you have what Scalia suggests (see romer) that legal elites see this differently (professional norms/biases) than legislative elites. [my note – aren’t these often people of similar background???] Clearly, there is a 60% 70% opinion against same sex marriage [i.e. they have tremendous incentives that unelected judges do not].

K: Are there facts that you can learn that would change your position on the issue, or whether it is primarily a gut issue.

W: Uh..NO. Framing the question in terms of facts is important to answer the question [????] Part of what has characterized the legal status of gay people in general . . . is an extraordinary posse of descriptions that are not condemnatory of gays/lesbians. Even today, when less socially acceptable to be discriminatory towards gay people (changed much in the past thirty years) . . . when that is the nature of the state of affairs, when the policy issues are so characterized by misinformation, by lack of a realistic facts of people’s lives, common barrier to right thinking [???] voices within the gay community that have different views of the desirability of marriage rights.

K: Is your view is that nobody could know the fact and could not take some position? That the only explanation for opposition is a lack of factual understanding?

W: No, that isn’t my position, but such a deficiency causes the discussions to be much broader and blunter. Its more difficult to have sensitive discussion of gay parenting in an atmosphere when gay parents are regularly threatened with removal of parental rights.

K: So in your view, if there was empirical evidence that children better with straight parents, would that affect your view of what adoption laws should be.

W: No, it wouldn’t. But I emphasize that evidence does not actually exist. What we do know of course, is that parents that are poor have much worse……………

K: Let’s stipulate than that lesbian couples have few assets than hetero couples on average – why shouldn’t that be taken into account?

W: The way things are taken into account in adoption law is by conducting a case-by-case best interest of child test. There are no, to the best of my knowledge, restrictions on the parental rights based upon wealth for adoption purposes.

K: How about as a tie-breaker for adoption – would that be a risk?

K: Are there facts that would change your view?

D: I think there are, that the facts are becoming more and more, well very little empirical evidence with any of this stuff……well, it depends how we frame the underlying opinion – there wouldn’t be anything that would for me change the def. of what marriage would be…

K: What do you think the strongest arguments against civil unions would be.

D: Lawyerly answer – it depends what you mean by civil unions…

K: Take California

D: Or Vermont

K: Yeah you get the same rights……. (something about over 62)

D: The over 62 category bothers me….

W: one of the things we hear a lot about is that there is a big problem, that it will devalue the concept of marriage. That straight couples will be less committed about marriage. What is your view of that.

D: The argument is that marriage has something of cultural currency – to the degree you have something of a competing institution, it cuts against the value of it. For Estridge, that means you just change definition of marriage as opposed to a separate institution

W: If I interrupt, I don’t get that argument

K: How can you not get it!!!!???!!! If we let 14,000 more people into Stanford Law, the educational experience changes.


W: If you suddenly open wide the favored status (Stanford law admittance), sure there is a loss of status of being a Stanford law student. But this analogy isn’t descriptive for the question of marriage – marriage is not thought to be exclusive – its more open. Gay couples, sure get marked as outsiders – but what I don’t get is that given the catholic definition of marriage – I don’t understand the cognitive moment a straight married couple…well we have had gay marriage now for six months in MA – are there straight couples who are now questioning their marriage’s value?

K: What about Polygamists?

W: Well you can say the same thing about incest…

K: Well I see the argument against incest (laughter) harm, genetics, exclusivity of famility relationship, but about polygamy – what is your argument there

W: (1) Law that prohibt gays from getting married deny them any meaningful opportunity to get benefits from state. It is a social fact that sexual orientation is both a fixed fact of life and exclusive -

K: But how does that differ from people whose religion tells them what meaning is?

W: Polygamists can still get some satisfaction. Yes there are those who think they are religious required to be polygamous – but that is a different question. Prohibitions on gay people take a class people, who have only one . . . pool in which to fish, deny them the right to fish [not the same for polygmists]

D: Concerns about polygamy – this doesn’t strike me as a crucial argument – we can all draw lines. But the argument is slightly different than often framed. That the logic that those is used to justify same sex marriage would apply in other settings. I was at University of Utah – argument made by one side of table was that people who want to marry should be able to marry. The audience than said why not apply that LOGIC [marriage defined by choice/consent] to polygamy. It becomes difficulty to cabin logic. This brings us to question of what is Marriage. Historically, culturally, marriage is very tied up in the reality of children/child rearing.

K: I see that argument – but does that argue for a more tailored def. of marriage – where we would only allow marriage for those who can have children – and bare those who can’t. I think as a policy matter, yes we as a society have interest in children’s welfare….

D: As a practical matter how do you cabin that definition. The other thing is that things change……

K: We certainly could say that women over 50 can’t marry, or if they can’t get pregnant in five years, we “unmarry” them

D: The distinction has been on couples who have been at least “theoretically capable” of having children

W: There is a fantasy – that gay people can be made not to exist. A lot of conversations about child rearing – often seem to proceed on the assumption of whether it is a good idea to have gay parents or not. There are gay parents. Women who are bisexual have the same fundamental rights as other women – to chose to get pregnant. The question is not whether should they exist, but rather whether we are BETTER OFF AS A SOCIETY to give these families the same support structure as other families. It seems that your framing of the issue is a way of disappearing gay people from the question.

K: What if anything of these policy arguments, should be relevant to courts in making decisions, or should these arguments be left to legislatures?

D: I think some of this is of limited relevance. The relevance is that this is a core social institution – this is not a state creation. Been around before the state. What the policy arguments say is that this issue is so fundamental that courts should be EXCEEDINGLY cautious before doing anything.

W: Couple things I want to respond to. First, the marriage that we are talking about is a series of state laws, like any other series of state laws, that create rights/obligations and doll out benefits. We are not litigating the rest – what churches say marriage is. People often conflate these two which is a mistake. One possibility is that in definitions of who is able to be married, with bans on gay marriage, for the first time since the civil war, there will be discrimination against a CLASS of people in the constitution. Second thing is that you are using a classification to define marriage. Not only would you be using that classification, but you would also be using it give [approval] to long standing social mores in the constitution at the expense of others. The case is still being made that discrimination on sexual orientation should receive judicial scrutiny. There is a misperception that gay people are white/rich because those people are more visible – so we end up with the judiciary being cautious. Why – because idea that these are privileged non-needy people that are getting special rights.

K: Suppose you were to win a case – and Supreme Court says that all bans on gay marriage are unconstitutional – good thing or bad?

W: I’m against it – the backlash would be huge and the momentum for an amendment would be tremendous which would be far more damaging in the long-run. I think, personally, that gay-people have a constitutional right to marry, but I think there are more important things in the short run.

Questions – these will be even more rough – because they are fast paced and I want to ask things myself. But I’ll try and get a few things down.

Q (Nolan Reichl) – to Duncan – if there was incontrovertible evidence that being gay is genetic and irreversible, would it change your view. And the opposite to you for Wolf.

D: No, it wouldn’t change my view
W: Nor mine. Its not helpful conversation [genetics and choice in this context]

I’m taking a break:
I’m back

My Question: To Duncan – You said that one argument against civil unions is that some are afraid it will cheapen marriage. Which rights, in this bundle of rights that constitute civil unions, would be seen by social conservatives as cheapening marriage?

He dodges.

Follow up. What about property inheritance, visitation, for example?
D: Well those rights would are barely challenged outside marriage
W: Like hell they are not! Read some of the gay marriage bans.

I missed a bit of the rest because I had to type.

Next question: To Duncan – you said no facts would change you view. What if the divorce rate plummets in MA and couples there (heterosexual) find themselves more committed than ever before, would that change your mind.

D: Yep, you got me. That would probably cause me to rethink.

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