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Gay Marriage Amendment

Against an Amendment Banning Same Sex Marriage

Praveen Fernandes
Public Policy Advocate, Human Rights Campaign
Tuesday, February 24, 2004; 4:00 PM

President Bush today urged Congress to send to the states a proposed constitutional amendment banning same sex marriages throughout the country.

Praveen Fernandes, public policy advocate at the Human Rights Campaign, said in an interview with washingtonpost.com, "The Human Rights Campaign is profoundly disappointed with the president's statement supporting efforts to amend the constitution. The president has thrown his support behind an attempt to write discrimination into the Constitution and to deny protections for LGBT [Gay, Lesbian, Bisexual and Transgendered] families."

Fernandes was online to discuss his organization's reasons against banning same sex marriage.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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Peoria, Ill.: Peter Sprigg stated in the previous exchange that the amendment is necessary because "The role of marriage in bringing together men and women for the natural reproduction of the human race and for raising the children of their unions to maturity in a mother-father household is central to the PUBLIC purpose of marriage." This makes no sense to me as it would mean no single parents or male-male or female-female parenting situations. Am I missing something?

Praveen Fernandes: I absolutely agree with you. Such a simple conception of marriage denies the reality that our government permits marriages that do not result in children. Thus, infertile couples are permitted to marry; postmenapausal women are permitted to marry.

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A Straight Ally in Washington, D.C.: I have long been a gay rights supporter. I am straight -- and I am profoundly dissapointed in the gay community for not bringing straight people into this debate. You will not win this fight without us. And many of us are willing to walk shoulder to shoulder with you to stop this travesty. PLEASE, I'm begging, create an outlet for us to join you. Because PFLAG just isn't cutting it.

Praveen Fernandes: The Human Rights Campaign has more than 500,000 members, which includes individuals who identify as heterosexual. So HRC itself is made up of straight allies. In addition, there are a variety of wonderful political allies who have worked with us to address civil rights issues that affect the GLBT community. People for the American Way, the Leadership Conference on Civil Rights, the National Council of Jewish Women, Americans United for Separation of Church and State are just a few of the "non-gay" groups that are working with us. HRC would welcome your assistance, as would any of these groups. (Thanks for the support--you're right, we do need you!)

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Harrisburg, Pa.: A pollster claimed the only significant shift of groups of voters he has found from the 2000 to the 2004 Presidential elections are people who tend to vote Democrats on economic issues and Republican on social issues. This group, which tended to vote Republican in 2000, is trending more Democratic as the unemployment rate increases. Yet, polls find many of the voters switch back to the Republican column when the gay marriage is mentioned. Do you see political advantage as a reason why Bush may try and make gay marriage an issue in the upcoming elections?

Praveen Fernandes: I don't want to presume to know why the Administration is pushing this issue. However, personally, it does seem like political opportunism in its most base form. Some of our political allies have referred to LGBT issues as "weapons of mass distraction," meant to focus voters away from issues that polls tell us are the true concerns of Americans---the economy, health care access, and foreign policy.

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College Park, Md.: It seems like the fundamental logical difference between the arguments of people who are for and against homosexual marriage lies in the definition of marriage itself. How would you defend homosexual marriage to those who think of marriage as a union for the purpose of procreation, rather than a union for the purpose of love between two people?

Praveen Fernandes: I think that I touched upon this question in my response to another question. For those who see marriage as solely for purposes of procreation, I would ask whether they support denial of marriage licenses to infertile couples or to post-menapausal women. The truth is that marriage serves many purposes, not simply procreation. Our legal system seems to recognize this. Further, it is important to point out that LGBT have children and healthy families. These families are sometimes created used assisted reproductive technologies (the same fertility technologies used by heterosexual couples who have trouble conceiving children) and are sometimes created through adoption.

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Staten Island, N.Y.: Thank you for taking the time to chat with us. What is the difference between civil unions and marriage? Why isn't civil unions enough?

Praveen Fernandes: Great question. There are many differences between civil unions and marriage. However, let me just touch upon some of them. First, civil unions are not portable. The protections that Vermont civil unions afford to those who partake of them in Vermont are NOT transferrable if the couple moves. Second, civil unions do not exist on a federal level and therefore would not currently be able to get you any federal benefits (social security survivor benefits, etc.). Third, a whole host of state statutes and protections are phrased in terms that invoke marriage (such as "spouse"). These laws (such as laws that prevent a spouse from having to testify against another spouse in a legal proceeding) have uncertain application to couples who have had a civil union. Lastly, international laws protect marriages and spouses, but don't mention civil unions. It is quite unclear how Vermont civil unions would be recognized, if at all, by foreign countries when couples travel or move.

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Boston, Mass.: To stop this amendment, we need either 34 Senators or 13 statehouses. Is this realistic? I think 14 or 15 Senators voted against DOMA and we could pick up a many more on the grounds that this is an AMENDMENT, and because it would actually strip away rights from couples in Vermont (and soon, Mass.) who complied with the laws of their states.

Praveen Fernandes: I hope that this is realistic. We have certainly spoken with a good number of Senators who believe in the sanctity of the constitution and who would oppose an attempt to use the constitutional amendment process in an unprecedented way to deny rights to a group of Americans. (The amendment process has never been used to do this!!!) I think you are right that more individuals would (hopefully) oppose a Constitutional amendment than would oppose a statute like DOMA. Your last point is critical, too---I think that Members of Congress are realizing that the amendment's language could strip rights whether or not they are connected with formal "marriage" status. The amendment's vague "legal incidents" language could render unenforceable the protections that civil unions and piece-meal benefits legislation afford LGBT couples.

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Annandale, Va.: The meaning of the word marriage, both in common usage and in law, is the union of man and woman. The Massachusetts Supreme Court even acknowledged this, then proceeded to ignore that definition, in a ruling that is self-contradictory, presumptuous, overreaching, and conflicted; it is a fantastic example of results-oriented judging. Still, I won't dispute a legitimate interest in conferring "social and legal protections, benefits, and obligations" upon accepted relationships.

Do you agree that regulating marriage is an issue that should be left to the states? That seems like the most sensible solution.

Praveen Fernandes: I personally thought that the Massachusetts opinion was great. On the federalism issue, we are in total agreement. At this point, I don't see any need to change the basic structure of family law, which is that it is a product of STATE law. For instance, the requisite age to permit marriage varies from state to state. I cannot see a present need to federalize family law. It is interesting to note that many conservatives (many of whom are similarly not fans of the Massachusetts Goodridge court decision) have the same problem with the constitutional amendment---they want to leave family law to the states.

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Laurel, Md.: What would your stance on the amendment be if there was a provision that guaranteed homosexual 'married' couples the same rights and priviliges as traditional married couples, but with a different label like "civil unions," so that "marriage" still referred only to exclusively heterosexual couples? That is, to what extent do you view this struggle as semantic?

Praveen Fernandes: I think that this was answered in an earlier response. I don't view this struggle as semantic. Marriage and quasi-marriage terms (like "spouse" for instance) are associated with over 1000 benefits and protections. I cannot imagine the massive legal rewriting and overhaul that would be required to permit these benefits to be conferred to couples whose relationships were recognized by another term.

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Re; not enough senators: A senate vote is one way of passing an ammendment. The second is 2/3rds of the states in a state convention. 2/3 is only 33 states, and considering that 38 have passed DOMA laws I can see the law passing. Do you?

Praveen Fernandes: I think that some states that have DOMA laws still wouldn't be keen on the idea of amending the constitution. After all, a state DOMA law is exactly that---a state law, which can be easily overturned or struck down on a state level. A constitutional amendment would be taking state family law and making it a product of federal law (here, the highest federal law--the US Constitution). Thus, I could see how someone who supported a state DOMA could still oppose a US Constitutional amendment. Further, as I've said before, the amendment (HJ Res 56/ SJRes 26) is broad in its language and could render unenforceable the protections extended by civil unions or other piece-meal legislation. Thus, even if a state had decided that it didn't want to permit same-sex couples to marry per se, that same state could reasonably be offended by the notion that its hospital visitation legislation (for example) would be rendered unenforceable. The fact that a state decides that it doesn't want to permit same-sex couples to marry does not mean that they might not want to extend some benefits to these couples and their families. The current amendment would threaten this ability.

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Washington, D.C.: In response to Annandale's comment about results-oriented judging, you said you thought 'that decision was great'. Please -- is THAT the best you can do? I'm straight, married, and mildly pro-gay marriage, but you give me doubts. If there are problems with the Massachusetts Supreme Court's decision (as I know am inclined to believe there are), you should address them honestly, and not skirt the issue. We got Congress for that.

Praveen Fernandes: Fair enough. However, I should point out that one can think that a decision is great without saying that it is perfect. I haven't read a perfect judicial opinion in any subject area, nor one that didn't have some element that could be fairly critiqued (law reviews and legal journals would be out of business if this were to be the case).

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Washington, D.C.: Many proponents of this ammendment suggest that homosexual marriage would be damaging to the social institution of marriage and greater society in general. They offer the examples of Denmark and other studies as proof. How do you repudiate these notions?

Praveen Fernandes: I cannot comment with authority on international issues. However, I am unaware of large scale social problems related to marriage for same-sex couples in the Netherlands, where this has been legal for a significant amount of time. Further, our neighbor to the North, Canada, has permitted same-sex couples to marry since this summer, and there has been no evidence of the parade of horribles that conservatives love to cite. The truth is that for the majority of Canadians, life continued as it always has. However, for a small minority of Canadians--the LGBT individuals who wanted to get married--life was enriched. These couples were able to gain recognition for their longstanding relationships and they were able to strengthen their families with the benefits that marriage confers.

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Laurel, Md.: To point out a flaw in a previous post of yours, you referred to the 'sanctity' of the Constitution as a rationale for opposing a proposed amendment.

The Constitution guarantees the process for future amendments, which will be followed. Bush isn't saying the Congress or the states won't need vote on it, is he?

But if you mean the sanctity of the original unamended Constitution, you are by default opposing the Bill of Rights and subsequent amendments.

Clearly you have better ways to argue your case.

Praveen Fernandes: I meant it as "a" rationale, not as "the" rationale. I understand your point about amendments and I do not categorically oppose amendments to the constitution. However, I do think that given the slim nature of the US Constitution (elegant in its simplicity) and the relatively small number of amendments (in the Bill of Rights, as you correctly point out), there is a wisdom to saying that we should rush out to amend the constitution on every contentious social issue. I think that there is a nuanced social dialogue that is occuring in America about relationships and how same-sex couples are treated. I am not sure that this nuanced and ever-evolving discussion is best addressed through a constitutional amendment.

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Washington, D.C.: It seems to me that the issue of gay marriage really boils down to the accrual of benefits. If the federal government or private employers should be forced to give benefits to married gay people, why stop there? Why shouldn't I, as a single person, simply be able to pick any random person off the street and say "this is the person with whom I want to share my benefits"? As Tina Turner once said, "What's love got to do with it?"

Praveen Fernandes: I'm not sure about how to answer this, really. I'm not trying to be rude, but the truth is that you COULD pick someone off the street and share benefits with them currently, as long as that person was of a different sex. You could walk up to a total stranger on the street and marry that person. (We can think of certain celebrity marriages that were fleeting, yet legal...but it wouldn't be polite to mention this, would it?) In contrast, gay and lesbian couples could be in decades-long relationships, with children, and still not be permited to marry. These LGBT individuals pay into the social security system, yet if one of them passes away before retirement age, their partner and their children get absolutely none of the benefits. Pretty unfair, huh?

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Washington, D.C.: Where does Kerry stand on this issue?

Praveen Fernandes: John Kerry released a statement this morning stating that he opposes (and would vote against) a US constitutional amendment. HRC is very appreciative of this clear position statement.

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Takoma Park, Md.: You mentioned earlier that marriages are in essence transferable overseas. Is this true in all countries? Is a Canadian or Norwegan gay marriage respected in the US or Saudia Arabia?

Praveen Fernandes: There is ordinary reciprocity for foreign marriages. When a heterosexual British couple moves to US soil, the United States respects that marriage and doesn't force them to get re-married in the United States.

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Rockville, Md.: What other countries allow and disallow same-sex marriages that you know of?

Praveen Fernandes: I apologize for what I know is an incomplete list, as I am not an international law expert....Canada and the Netherlands definitely permit same-sex couples to marry. I know that Germany and the UK have extended many of the benefits of marriage to same-sex couples. I know that I must be missing some others on this list. My apologies.

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Washington, D.C.: Why is this a federal issue, much less a constitutional one? Marriages are licensed by states, not by the federal government. What is wrong with the idea that state constitutions might offer more protection or rights than the federal constitution (state constitutions -- like the one interpreted by the Massachusetts court, drafted by state citizens, are often different than the federal one and can offer more protections -- but never less -- than the federal constitution). Or with the idea that state legislators and state citizens can decide whether to recognize gay marriage, civil unions or neither. Whatever your feelings about the substantive issue of gay marriage, it seems to me that the federal level, and particularly the federal constitution, is not the place for dealing with the issue. Why are people not out there making this point? Is it too arcane and steeped in governmental structure for people to understand?

Praveen Fernandes: I cannot add anything to this eloquent comment. I fully agree.

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Washington, D.C.: Thank you for having this important discussion. Peter Sprigg from the Family Research Council just said in response to a question on the last chat:

"If love and commitment were the only grounds for marriage, then there would be no reason for limiting it to couples, if groups of three or more desired it--perhaps a better and more immediate example of the "slippery slope" than the incest argument you allude to."

How do you respond to this?

Praveen Fernandes: I think that there are more complicated issues associated with groups of more than 2 individuals wanting to get married. Complicated issues related to custody, survivorship benefits, alimony, palimony are involved with polygamous couples. Polygamy is different, and I think is often lofted up to distract people fromt the fact that government hasn't shown sound public policy reasons for denying rights and benefits to LGBT couples and their families.

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Fairfax, Va.: Thirty five years ago, I would not have been allowed to marry my wife because we are not the same race. In the case of Loving vs. Virginia, it took the efforts of "activist judges" to give us that right. The definition of marriage can and does change over time. Why is this change considered so much of a threat?

Praveen Fernandes: Thanks for correctly pointing out that, in fact, courts have stepped in to protect the rights of political minorities before. The Loving v. Virginia decision was very contentious, was not supported by the majority of the electorate and was viewed, at the time, as changing the institution of marriage. In retrospect, of course, we recognize that marriage as an institution has not crumbled due to interracial marriage.

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Arlington, Va.: "A senate vote is one way of passing an ammendment. The second is 2/3rds of the states in a state convention. 2/3 is only 33 states, and considering that 38 have passed DOMA laws I can see the law passing."

This seems to be a misconception a lot of people have. In order for the amendment to be ratified, 3/4 of the states must agree, not 2/3. 2/3 of the states is enough for the question to come up for ratification, but then you still need 3/4th to actually ratify.

washingtonpost.com: The Constitutional Amendment Process (U.S. National Archives and Records Administration)

Praveen Fernandes: Thanks for the information. I didn't address the factual information, so I appreciate someone's eagle eyes.

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Southern Maryland: I think that 200 years from now, Bush's amendment will be seen in the same light as Plessy vs. Ferguson and the Dred Scott decision.

Praveen Fernandes: There are many commentators who share your belief.

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Arlington, Va.: Do you see this issue as rebounding on the Republicans come convention time in New York City? Yeah, they will energize their base, but will it end up turning off swing suburban voters? Do you think there could be another Pat Buchanan "culture war" speech (1992 Republican convention), which Molly Ivins commented "it probably sounded better in its original German."

Praveen Fernandes: I honestly do not think that this will be a good thing for either the American people or the Republican party. Politics of division are rarely productive. Further, I really think that Americans of both parties are far more concerned about other issues---the economy, health care access, poverty, and the war/foreign affairs.

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Fredericksburg, Va.: Dear Mr. Fernandes,

As a young lesbian American, I am concerned, confused and deeply saddened by the implications of President Bush's recent endorsement of a federal marriage amendment. Could this proposed amendment to the US constitution nullify existing laws (like civil unions) protecting same-sex couples? Could it further be invoked in rolling back other benefits like health care for same-sex partners of federal government workers and things of that nature? Doesn't DOMA already "protect" states from having to recognize gay marriages from Massachusetts or San Francisco? Furthermore, what does the HRC plan on doing following the presidents announcement to try to unify Americans that don't have a vested interest in gay rights against this discriminatory message?

Thank you for taking my questions,

Praveen Fernandes: Thanks for sharing your concerns. I think I've addressed some of this question earlier. Yes, the proposed US constitutional amendment could render unenforceable existing laws (such as civil unions) protecting same-sex couples. This could roll back some of the incremental state initiatives that address piece-meal benefits. Yes, currently, many experts say that DOMA would prevent one state from having to recognize marriages performed by other states. As far as what HRC plans...political organizing, press conferences, and lots of work with our invaluable political allies. We have heard that there is a planned Senate hearing on the constitutional amendment next week. It will be a hearing of the Consitutional subcommittee of the Senate Judiciary Committee, and is being convened by Senator John Cornyn (R-TX). We will definitely be doing an event around the time of that hearing. This event will use our wonderful allies from LGBT and non-LGBT organizations. Please check our website (www.hrc.org) for more information.

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Praveen Fernandes: Thanks for the great questions today. I really appreciate your participation. I've tried to answer as many questions as possible. I am truly sorry if I did not get the chance to answer your question. Unfortunately, we are out of time.
Respectfully,
Praveen Fernandes

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