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California Gay Marriage: The Ruling and One Couple's View

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Larry Levine, with Stuart Gaffney and John Lewis
Law Professor, University of the Pacific; Newlyweds
Monday, June 16, 2008; 1:00 PM

University of the Pacific law professor Larry Levine, a frequent panelist, lecturer, and speaker on legal issues involving torts and sexual orientation, was online Monday, June 16 at 1 p.m. ET to discuss the implementation of the recent California Supreme Court ruling in favor of gay marriage, and the fight ahead. He was joined by Stuart Gaffney and John Lewis, plaintiffs in the Supreme Court lawsuit who have been partners for 21 years and will get married early Tuesday.

The transcript follows.

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John Lewis and Stuart Gaffney: Good afternoon. We are John and Stuart, and we have been a loving, committed couple for more than 21 years. We are looking forward to our wedding day -- we are getting married on Tuesday morning, and busy planning for the happy occasion.

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Larry Levine: Greetings. It is a pleasure to be here. I am a law professor at the University of the Pacific, McGeorge School of Law in Sacramento, CA, where I teach, among other things, about sexual orientation and law issues.

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Columbia, S.C.: I'll admit that I haven't read the court decision, but my understanding is that marriage is a religious institution, and a union is a government institution. This is why you get married and still have to sign the paperwork after the wedding. (I'm not married, but unfortunately all my annual leave time is spent going to weddings -- not bitter). When viewed in this light, couldn't we just call it a Gay Union instead of a Gay Marriage? Using the term marriage creates the image of government forcing churches to do something. A union only allows certain legal and tax status.

John Lewis and Stuart Gaffney: Hi. First, to clarify -- in America we have civil marriage, which is the purview of the government, and religious marriage, which is the purview of churches, synagogues and temples. The two institutions are separate. Today, our government in California recognizes that all human beings have the freedom to marry the person they choose, regardless of gender or sexual orientation.

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Washington: To the so-called holier-than-thou Christians, who say the Bible is against same sex marriages -- if they obey the Bible so much, why not use all of laws in it, i.e. stoning, having more than one wife, not eating and/or drinking certain foods and drinks, etc.? Be holy all the way, don't just pick out certain parts of the Bible that are suitable for you.

Larry Levine: It is important to understand that the California decision only affects civil marriage -- whether institutions of faith elect to marry couples of the same sex is their decision. Some will and some won't. But regardless of one's personal beliefs on the issue, the matter before the Supreme Court of California was whether loving, committed gay and lesbian couples could be prevented from entering the state institution of marriage under the state constitution.

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Los Angeles: My partner and I were married in Toronto in 2004. Will California automatically recognize our marriage? How can we get it registered in California? Should we get remarried in California to be safe?.

Larry Levine: It may well be that those marriages will be recognized at the close of business today, but it's not certain. It's likely that California will recognize valid out-of-state same sex marriage, but the safest route would be to marry in California. You may wish to check the web site of the National Center for Lesbian Rights for further details.

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Potomac, Md.: Professor Levine, what is unique to the California legal system that makes the state a testing ground for this kind of law?

Larry Levine: California is unique is several ways. Perhaps most critically, we have for a couple years provided virtually all of the benefits of marriage to same-sex couple registered in a domestic partnership. Thus, the issue before the California Supreme Court was simply whether giving a nearly parallel institution to California's gay and lesbian citizens could be justified legally. Also, California has been very protective of gay and lesbian families, making it virtually impossible to argue that the justification for limiting marriage to heterosexuals is some sort of protection of the family. Finally, it is not irrelevant that California struck down the ban on interracial marriages decades before the U.S. Supreme Court decided to do so.

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Rockville, Md.: First of all: I want to congratulate Stuart and John on your future life together ... as one. I just need a little clarification of the California ruling. I've heard that the California ruling for gay marriage is a little different from that of Massachusetts. It has been said that gay couples from around the United States can travel to California to get married there, whereas in Massachusetts, couples would have to reside in the state. How true is this? If this is in-fact true, my partner and I will be on the first flight to California. What some people fear is that gay couples will travel to California, get married and then force their state to recognize the marriage (which wouldn't be a bad thing).

John Lewis and Stuart Gaffney: Hi. Thank you for your warm congratulations -- we're so happy right now -- we'll be married in less than 24 hours! Unlike Massachusetts, California permits out-of-state couples to come to California to get married -- so you are very welcome to do so! (In fact, Gov. Schwarzenegger has said that he hopes all loving, committed gay and lesbian couples who want to marry come to California and do so!) Then, we think it's best to go back to your home community, and live your lives as a proud, married couple. We believe that sooner than we think, many of the states will soon see the need for everyone to have the freedom to marry -- and many states will change their laws. Join Equality Maryland, which is leading efforts to secure marriage equality through the legislature right now! (Note, too, that if you live in New York, Massachusetts, Rhode Island and probably some other states, they will recognize your marriage fully now!)

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Washington: A friend and I were talking the other day about California gay marriage, and we were wondering whether or not a gay person would be able to gain U.S. citizenship by marrying a gay U.S. citizen. As a follow-up, do you think that California gay marriage will be limited to residents of California in the same way that it has been limited in Massachusetts?

Larry Levine: The California decision will not bring about a change in U.S. immigration law. Such a change would have to come from the federal government.

United States citizens from other jurisdictions, however, are coming to California, which (unlike Massachusetts) does not have a residency requirement to marry. When they return to their homes states, that state will have to decide whether (and to what degree) to recognize the legal California marriage. New York, for example, already has made clear it will do so, which is consistent with our general notions of full faith and credit. Some other states, especially those with "mini-DOMAs" that state same-sex marriages will not be recognized, are less likely to do so. I venture that there will be litigation soon on this issue.

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Washington: I read one conservative blog the claimed that the California Attorney General failed to make the argument that marriage is important for procreation and the family structure. That argument had been made in other gay marriage cases in other states. The blog suggested that Attorney General Jerry Brown's office sabotaged its case, because it supports gay marriage. What is your reaction, Professor Levine?

Larry Levine: It is true that the attorney general office's approach did not please some of the anti-marriage organizations because of its refusal to raise the procreation/welfare of children arguments. Those arguments were made at the oral argument by the lawyers for the conservative groups, however, and were forcefully rejected by all of the justices (even the dissenters). The justices made clear that California law supports gay and lesbian families as it does heterosexual families, and they noted that there is no fertility test to enter into the institution of marriage.

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Washington: Did you think this day would come? And how does it feel getting married again after you originally did in 2004?

John Lewis and Stuart Gaffney: Yes -- we truly have known in our hearts for the last four years that this day would come, although we were not entirely sure when.

On Feb. 12, 2004, we were one of the first 10 couples to be married here when San Francisco began issuing marriage licenses to same-sex couples. We'll never forget the moment when we heard these words: "By virtue of the authority vested in me by the State of California, I now pronounce you spouses for life." At that moment, we felt something transform within us. We felt for the first time in our lives that our government was treating us as fully equal human beings and recognizing us a loving couple worthy of the full respect of the law.

Four years ago, we got a "taste of equality" which was taken away from us shortly thereafter. But it provided a vision of where we were going -- and we knew we would achieve it sooner than later.

Now our getting married this week is about love and joy -- all of our parents (now in their 80s) and our close family members will be there with us. We are simply so happy -- just like anyone should be on their wedding day. Our friends and community have done so much to make this day a reality. What a wonderful thing -- today in California there is so much more equality, joy and happiness than there was just a month ago!

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Washington: Currently many states and the District are codifying same-sex relationships in different ways. Unfortunately, a civil union, a domestic partnership and a marriage all mean different things legally. Some states (such as New York) even are prepared to legally recognize marriages performed in other states, but will not permit them to be performed in their own. Does such a variety of laws mean this issue one day will end up at the U.S. Supreme Court? Does the Defense of Marriage Act hold up Constitutionally?

Larry Levine: You are right that the differences in nomenclature can be confusing. I don't think, however, this raises any issues for resolution by the U.S. Supreme Court. States have great latitude on how they elect to define marriage and marriage-like institutions.

I do predict that those states, like New Jersey, that offer full benefits to the marriage equivalent soon will follow the California Supreme Court lead and determine that "separate is not equal."

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Consistency question: In the name of consistency, shouldn't opponents of same-sex marriage who base their view on marriage as a child-rearing institution also oppose opposite-sex weddings where at least one of the partners is sterile (e.g. a woman who's either past menopause or who's had a hysterectomy)? I don't see that happening.

John Lewis and Stuart Gaffney: We think your analysis makes a lot of sense -- the freedom to marry is about our common humanity, and our common instinct to love another person and to have kin. All people deserve the freedom to marry the person they love.

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Arlington, Va.: For Mr. Levine -- do you have any concerns the religious right will get so mad at this definition of marriage that they find a political way to keep homosexual couples from even getting property or inheritance rights, or other benefits?

Larry Levine: Some have criticized the California Supreme Court for deciding this case the way they did exactly because they fear a backlash. Even some of the dissenting justices suggested that the issue simply should play out in the political process, aware that support in California for gay and lesbian equality has been growing quickly.

The point missed by these folks, however, is that the state supreme court really didn't have the luxury of side-stepping the issue just because it is controversial. The court is charged with the responsibility of applying the constitution to the issue before it.

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Bethesda, Md.: I'm a gay father of an 8-year-old daughter. My daughter and I are both from the Caribbean, and my partner of four years, is an American. I currently have permanent residency, and my daughter's is pending (it has been a long hard road). If my partner and I were to get married in California, would it be legally binding for the government to grant my daughter and I citizenship (just as heterosexuals receive it)?

Larry Levine: I am sad to say that a marriage in California will not have any impact on immigration status, as that is purely a federal matter. The California Supreme Court only can deal with California legal issues.

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Washington: Professor Levine, I understand you practice at the McGeorge School of Law in Sacramento; how much does this topic dominate your discussions with students? Do you think the way California handled this case will impact the state Supreme Court's appetite for ruling on any appeals for a vote in November?

Larry Levine: Well, I guess it's fair to say that the topic comes up very little in my torts course (in which I teach the law of civil injuries). But you can be equally sure that my sexual orientation course focuses in great detail on these developments. Further, there is great interest among the student, administration, staff and faculty on the topic.

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Washington: Congratulations and yay -- and c'mon, tell us some wedding plans. Big wedding? Small? Flowers? Beach?

John Lewis and Stuart Gaffney: Hi -- We just picked up John's dad from the airport last night. He's really excited to be here for the big day. Unfortunately, John's mom died two years ago, so she won't be able to be with us. Stuart's family is flying in today, and we are planning a rehearsal dinner with them and our close friends tonight. Our family is both Chinese American and European American, and our dinner tonight will include traditional elements from Chinese weddings -- a Double Happiness centerpiece, and an auspicious number of dishes for the happy couple. And we plan a reception to include other traditions in a wonderful celebration. We can't wait for the festivities to begin!

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Washington: The question of families gets really interesting. I understand that Florida is going to vote on an initiative this fall that not only will outlaw same-sex marriage but also will prohibit same-sex couples from adopting. And that even may invalidate any such adoptions already finalized. And that might even (taken to its logical conclusion) invalidate such adoptions that had been finalized before the same-sex couple moved to Florida.

I have to wonder what the people who drew up the initiative really want to achieve. They claim that they are trying to protect families, but this kind of legislation really makes their claims suspect. (These are the same folks who argue that a child is better off living in an orphanage than in being adopted by a single person or a same-sex couple.)

Larry Levine: It is telling that the first effort to put a constitutional amendment on the ballot in California included a ban on same-sex marriage as well as domestic partnerships. On could interpret that the motivation of these groups is some sort of anti-gay animus. They were unable to get the signatures to put the initiative on the ballot, so they came back with the current version that only applies to same-sex marriages.

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Washington: Congratulations to Stuart and John. I'm confused about what the ruling means for domestic partnerships in California. Have these been "promoted" to marriage, or are there two systems in place for same-sex couples now? If you were a gay couple, why would you choose to get a domestic partnership if marriage is an option?

John Lewis and Stuart Gaffney: Domestic partnerships still exist in California -- because (as the Court observed) they are not equal to marriage. So people in domestic partnerships can choose whether or not to marry.

One note about how different the experience of getting a domestic partnership is from getting married: We got our domestic partnership at a local photocopy shop that had a notary. Our "domestic partnership gift" was a free photocopy! Now that we're getting married, our friends and family are coming to celebrate -- it's a wonderful joyous occasion!

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Arlington, Va.: Hello, everyone. I wholeheartedly congratulate California on their landmark decision and applaud the recognition of residents from other states, something Massachusetts did not do. My question is, how does California's decision impact the equal rights fight in the rest of the country? Will this groundbreaking decision make it easier for other states to follow suit? Do we have to sit back and wait until each state finally comes around -- and I do believe one day they all will -- or will it need to build and become an issue that will be decided by the U.S. Supreme Court?

Larry Levine: California is an influential state. Further, what we've learned from the Massachusetts experience (the only state with full marriage equality before the California decision) is that opposition to same-sex marriage diminishes with the passage of time. The opponents of marriage equality list a parade of horrors that will befall society should gays and lesbians be permitted to marry, but the Massachusetts experience is that it's just no big deal. I very much expect other states to follow suit soon (and indeed, the issue is pending in Connecticut and Iowa).

The U.S. Supreme Court really has no jurisdiction over how a state elects to define the institution, but they may get involved regarding interstate issues.

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New York: Unlike many states, California has no residency requirement prior to eligibility for marriage. One way opponents of the gay marriage ruling could block it without making a direct attack would be to simply impose one. Is there any movement for doing so in the state at present?

Larry Levine: It may be that the reach of the opinion could be limited by putting in some sort of residency requirement. It may not pass constitutional muster, however, if the only reason for doing so is to limit gay and lesbian access to marriage.

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Minneapolis: Thank you for taking my question. This may be more of a political rather than a legal question, but as a gay man in a committed relationship, it continually galls me to no end to hear politicians (Sen. McCain, among them) talk about the sanctity of marriage, etc. etc., when they themselves have less than stellar histories in that arena. Legalities aside, do you have any sense that the public is starting to recognize this hypocrisy, or is it still conveniently overlooked for the sake of continuing the same old argument?

John Lewis and Stuart Gaffney: We are feeling really, really encouraged. Things are different here in California after the decision applying the constitution's guarantees of equality to all. The first politician to speak in favor of the decision -- our Republican Gov. Arnold Schwarzenegger -- said he fully supported the decision! Note too that six of the seven members of the California Supreme Court were appointed by the Republican governors. We think people from all over the political spectrum are coming to see that everyone deserves the fundamental freedom to marry the person they love.

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Lowell, Mass.: I just asked this in another chat, but wanted to get your take. What are the pro-gay activists doing to fight the anti-gay amendment? And what effect do you think the presidential campaign will have on the vote? I think that it will be the opposite of what Republicans have said in past campaigns. Instead of bringing out more conservatives and driving up support for McCain, I think Obama will bring out more young people and liberals and increase the no vote for the initiative. Does that make sense to you? Also, if the amendment should pass, would it just return California to where it is before 5 p.m. today?

Larry Levine: I increasingly am convinced that the initiative will not pass, especially because there will be thousands of married same sex couples in California starting later today. The marriage equality opponents know this and did all they could to block the court's decision from coming to a reality.

I don't have any greater expertise on predicting the impact of marriage equality on the November presidential election. My sense is that the issue is losing traction as more and more Americans are coming to accept the humanity of our gay and lesbian citizens.

If the initiative were to pass, you are correct that we return to a regime where we have domestic partnerships conferring virtually all of the benefits of marriage. But there's much more -- we will have thousands of legally married same-sex couples, and a court decision that mandates a compelling state interest on the part of the state if it seeks to discriminate against gays and lesbians.

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Los Angeles: I'm as straight as the day is long, but I couldn't be prouder of my state for being such a great leader in this movement. I'll be cheering when the first couples get to say their "I dos"!

John Lewis and Stuart Gaffney: Thank you for your kind words. This is not the first time California has been a leader in equal marriage rights. Stuart's mother, who is Chinese American, and his father, who is white, were only able to marry almost 60 years ago because the California led the way in overturning the state law prohibiting interracial couples from marrying. Had it not been for that decision, Stuart's parents would not have been able to marry, and we might not be here today. We all can be proud of this history.

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Procreation: If marriage is important for raising kids in a healthy family, then why wouldn't gay people's kids deserve a healthy family with married parents? Banning gay marriage doesn't do anything whatsoever for the kids of heterosexuals -- it just tells gay peoples' kids that because their parents don't fit some folks' "ideal" in terms of gender balance, they are also going to be barred from meeting the "ideal" in terms of marriage status. Helps no kids, hurts some -- how is that "pro-family?"

Larry Levine: One of the most powerful aspects of the Massachusetts Supreme Court opinion, which was the first to mandate marriage equality, was to take the "welfare of children" argument used by opponents of marriage equality and to turn it on its head (much as you do). The Massachusetts court (and the California court) note that providing a marriage right to the many children already living in homes with same sex parents strengthens those relationship to the benefit of the children.

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Arlington, Va.: I read last week that most of the national LGBT groups were urging non-California couples to not sue in their home state, as it's too soon. My partner and I already have a California vacation planned for later this month, but we probably won't get married. I tend to agree it's not a good time to start suing...

Larry Levine: This is a personal decision on your part. No movement can control the timing of litigation, and it's inevitable that state DOMA laws will be challenged (I believe with varying degrees of success). Some felt that it was too early to bring the marriage decision to the California Supreme Court.

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Palo Alto, Calif.: Congrats, John and Stuart! To John and Stuart: Are you planning a City Hall ceremony like in 2004, or are you doing something different? (By the way, did you register as domestic partners prior to 2004?) Larry: Does the domestic partnership system now coexist with marriage in California? I don't understand how that works.

John Lewis and Stuart Gaffney: Thanks a lot! We will be exchanging the same, universal vows -- to love and comfort, honor and keep, in sickness and in health, for richer, for poorer -- as we did in 2004. Then it was just the two of us alone in City Hall -- this time we'll be surrounded by our parents, brothers and sisters, cousins and close friends, sharing the moment together.

And yes -- domestic partnerships still exist in California, although they do not provide all the same benefits/responsibilities as marriage, and do not have the same status at home or in some other states and countries people may move too. We are domestic partners, and then will marry on Tuesday.

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Re: Fertility Testing: Washington state has gay-rights groups advocating that marriages be subject to the objections raised by anti-gay-rights advocates. Will such laws as requiring "fertility testing" and having children in wedlock as a condition of keeping the marriage pass any sort of legal scrutiny?

Larry Levine: Interesting point. I believe that the fertility testing legislation is not intended to become law (as it surely would be unconstitutional as an invasion of privacy among other things) but to point out the hollow reasoning of the Washington Supreme Court majority that used procreation as a reason for limiting marriage to a hetero-only institution.

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Washington: I know this is beside the point in a legal discussion but I'd like to say, for any who are not aware, that there a number of religious communities that celebrate gay marriage -- Unitarians, some liberal Christians and some reformed Jews to name a few. So it needn't be only a legal victory. Many of us do believe that God is standing on the side of love!

John Lewis and Stuart Gaffney: Yes -- hundreds and hundreds of religious institutions filed a friend of the court brief in California supporting the freedom to marry. We are very encouraged by all the support we are receiving from so many diverse parts of America!

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Seattle: Would any attempt to overturn the ruling by amending the state Constitution run into a Romer v. Evans problem?

Larry Levine: Wow! You ask a proverbial million-dollar question.

If the California anti-marriage equality initiative passes, it immediately will generate litigation. There may be state grounds to challenge the initiative that would keep the legal challenge out of the federal realm. If it is dealt with federally, then you are right that Romer becomes relevant. In Romer, the U.S. Supreme Court determined that a constitutional amendment passed by the voters in Colorado designed to limit the rights of Colorado's gay and lesbian citizens was unconstitutional because it was solely the product of anti-gay animus. Thus, the federal issue would be whether there were other bases beyond anti-gay animus to justify the ban on same sex marriage.

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Sykesville, Md.: To be honest, I have no problem with two adults getting wed. I truly don't understand the whole "it has to be for procreation" stance, either. After all, heterosexual couples can be infertile at any point -- and will be if they both live long enough. So the whole stricture on sex purely being for procreation is tossed out the window eventually anyway. Unless someone wants to stick their neck out and state that once she's too old to take, then it's off to the divorce lawyers everyone goes.

Getting married has never, ever been strictly for one purpose alone. It has been about money, land, money, status, politics, money and more recently love (in theory). Best wishes to all who choose this path. It's extraordinarily difficult, particularly now that people are living so long. Death isn't providing anyone with some natural stirring of the pot.

John Lewis and Stuart Gaffney: Thank you for your comments. Finding a life partner isn't easy, and when you find someone to love and cherish it should be celebrated. The fundamental freedom to marry is about two people who love each other and want to make a commitment to share their lives together.

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Washington: It seems I recall reading here in The Post some years ago that it was the goal of one same-sex marriage activist (I am sorry I do not know the name of this activist currently) to remove the right of churches and other religious institutions/representatives to confer marriage, and for marriage to become a civil type of partnership (akin to a business partnership). Are you familiar with any such efforts currently?

Larry Levine: Much of the reason for the celebratory mood in California is the recognition of the specialness of "marriage." That gay and lesbian couples had virtually all of the same rights under a different name was seen as demeaning to gays and lesbians by the California Supreme Court.

The California Supreme Court did make reference to the possibility that the state could elect to create some institution named something other than marriage (e.g., domestic partnerships), suggesting that such an action would be constitutionally acceptable provided that gays/lesbians were treated the same as heterosexuals.

My sense is that marriage has great meaning and that there is little support for a drastic altering of the institution, which making it only a religious one would be.

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San Francisco: To Stuart and John: I've followed your story with interest for the past four years, and by now I almost think of you as old friends. Just wanted to thank you for being out front on this issue, and to offer my sincere congratulations!

John Lewis and Stuart Gaffney: We really appreciate your kind words, and our families too will be glad to hear of your support as we prepare for our wedding day. Truly, a marriage is a time when a community comes together to support the loving couple, and this is what we have experienced as we've gone through our wedding preparations -- so many kind words, from strangers to our closest friends. We've experienced this outpouring of good wishes at other peoples' weddings, and now we are finally going to experience it at our own.

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Alexandria, Va.: Felicitations John and Stuart. I'll be watching "The Wedding Banquet" tonight in your honor. Larry (please pardon the familiarity), what is your opinion of the law in Virginia that not only prevents same-sex marriage and civil unions, but contracts that "confer the rights and responsibilities of marriage" between members of the same sex? Can this possibly pass constitutional muster?

Larry Levine: That is a far-reaching prohibition, indeed, but not necessarily one that will be found to be unconstitutional, at least in the short term. While many celebrate the marriage equality victory in California, we should remain mindful that in most U.S. states people can be fired from their jobs just because they are gay. The process of conferring benefits on gay and lesbian couples will be a long one, though there will be more and more successes.

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West Hollywood, Calif.: I have been married to my wife for almost 31 years. If men married men and women married women, my marriage would not change! Those who claim that they want to "defend marriage" lie. They simply want to promote hate and use that hate to save money! Right now, 10 percent of the U.S. population does not have the same "family benefits" as heterosexuals! This is wrong!

If you believe that gay marriage will harm your straight marriage, you have a very weak marriage! Perhaps you need to fix that? It is time to free the other 10 percent of the population and end discrimination where and when we see it! America was the land of the free to many. Let us make it the land of the free for all Americans!

John Lewis and Stuart Gaffney: Thank you so much for your clarity and your values! And congrats to you for 31 years of marriage. We're looking forward to being newlyweds after 21 years together! On the day the decision was announced in May, one of the things John's dad said was simply "logic prevailed" -- and he arrived last night from Chicago to celebrated both logic and love! Many of the arguments used today against marriages like ours were the same arguments used against the marriages of interracial couples like Stuart's mom and dad. Two generations in our family are now going to experience the freedom to marry, and we are overjoyed as we continue our final wedding preparations.

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Larry Levine: It was a pleasure to respond to these excellent questions. Best regards.

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John Lewis and Stuart Gaffney: Thank you all for your thoughtful questions and comments. Also, we would like to thank Professor Levine for his legal analysis. Now we will return to preparing for more family coming into town this afternoon, and then for the marriage ceremony on Tuesday.

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