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Gay Marriage

Think Tank Transcripts:Gay Marriage

ANNOUNCER: 'Think Tank' is made possible by Amgen, recipient ofthe Presidential National Medal of Technology. Amgen, helping cancerpatients through cellular and molecular biology, improving livestoday and bringing hope for tomorrow.

Additional funding is provided by the John M. Olin Foundation andthe Lynde and Harry Bradley Foundation.

MR. WATTENBERG: Hello, Iím Ben Wattenberg. Homosexuals could be onthe verge of winning a major legal victory, the right to marry. Now,societies ideas about marriage have evolved over the centuries, butis legalizing gay marriage a good idea?

Joining us to sort through the conflict and the consensus are:William Eskridge, professor of law at Georgetown University andauthor of 'From Sexual Liberty to Civilized Commitment: The Case forSame-Sex Marriage'; Hadley Arkes, professor of law at Amherst Collegeand columnist for the journal 'Crisis'; Torie Osborn, author of thesoon to be published 'Coming Home to America: A Road Map for Gay andLesbian Empowerment,' and former executive director of the NationalGay and Lesbian Task Force; and Anita Blair, executive vice presidentand general counsel for the Independent Womenís Forum and an attorneyspecializing in discrimination law.

The topic before this house: Gay marriage. This week on 'ThinkTank.'

The debate over same-sex marriage is already raging on the statelevel. In 1991, three gay couples in Hawaii were denied marriagelicenses by the state. They sued. Most legal scholars agree that whenthe Hawaiian Supreme Court rules on the case in 1997, it will saythat marriage between homosexuals is indeed a right protected by the14th Amendment of the Constitution.

Other states might then have to honor such marriages. Inanticipation of the Hawaii ruling, five state legislatures havealready passed bills outlawing gay marriage, 14 have rejectedso-called anti-gay marriage laws, and in 13 states, the issue isunder debate.

If marriage between gays becomes the law of the land, married gaycouples will be afforded all the legal benefits that apply toheterosexual married couples, including spousal rights to SocialSecurity, Medicare, private pensions, the right to file joint taxreturns, and the right to inherit each otherís property. Many gayssay itís about time. Opponents say that allowing gays to wed is wrongand will be harmful.

Thank you, ladies and gentlemen, for joining us. Letís go aroundthe room, starting with you, Bill Eskridge. First obvious question:Is same sex marriage a good idea?

MR. ESKRIDGE: It is, Ben, primarily for reasons of equality. Legalmarriage entails dozens of rights, benefits and obligations which areroutinely available to different-sex couples. Those same benefits,rights and obligations should be available on the same terms tolesbian and gay couples as a guarantee of their equal rights in ourpolity.

MR. WATTENBERG: Okay. Torie Osborn.

MS. OSBORN: Yeah, I agree. I think itís a question of fundamentalfairness. Denying any people who are willing to accept theresponsibilities of marriage, which is about love, caring,commitment, long-term commitment, should be able to have the right tobe married. Itís a question of -- I mean, denying our fundamentalhumanity is not good for society.

MR. WATTENBERG: Okay. Hadley Arkes, I think you disagree.

MR. ARKES: Well, a fellow in Chicago wrote me a letter saying, 'Ilove my sister, but I donít think itís appropriate that that love bemanifested in a marriage.' And thereís no diminution of equality ordenial of equality when we suggest itís inappropriate.

When you ask about the good of marriage, we used to understandthat the good of the thing was implied in its nature and its end. Andmarriage has to be connected -- and weíll have a chance to pursuethis, but marriage has to be connected to that sense of sexualityimprinted in our natures, in the ineffaceable fact that we are bornmen or women. The purpose or meaning implicit in that sexuality isthe notion of begetting, and for compelling reasons, weíve found theprospect of begetting finding its most apt reflection in a frameworkof lawfulness that provides the ground on which parents are committedto the nurturance of their children for the same that they arecommitted to one another.

MR. WATTENBERG: Okay. Anita Blair.

MS. BLAIR: There is no doubt that marriage is the institution thatcivilizes men. But it civilizes them in relation to women andchildren by requiring them to stay with them, protect them and bringthem on up into adulthood. Thus, marriage is the foundation of ourcivilization. If we want to be around the day after tomorrow, we needto maintain marriage as the structure that holds together a man and awoman and their children.

MR. WATTENBERG: Okay. Letís just begin and set a framework for ourviewers here about the legal situation, and then we will get on tosome of these more philosophical, cultural and cosmic ideas.

If the Hawaii Supreme Court rules that the Constitution protectsgay marriage, does that mean that all the other states have toacknowledge such marriage, and could people then go to Hawaii, getmarried, and then -- as people used to go to Las Vegas and getdivorced and then be divorced everywhere else?

MR. ESKRIDGE: Ben, thatís going to be a source of litigation andcontention. You would first look to state law. In some states, thereis a law that provides, if our citizens go to another state andengage in a valid marriage in that state, we will recognize thatmarriage as a matter of state law. Okay? So for many states, thestate law will solve the issue.

For some of the states, such as the five states that have passedstatutes specifically prohibiting same-sex marriages, then the issuewill be litigated at the federal level. There is a federal statute,28 U.S. Code, Section 1738, and then the federal constitutionalprovision, the full faith and credit clause.

MR. WATTENBERG: That full faith and credit clause meaning that thestates will extend full faith and credit to certain sorts oflegislation by other -- driverís licenses, that kind of thing.

MR. ESKRIDGE: Well, it particularly provides that public acts,records and judgments of one state will be accorded full faith andcredit by other states. And the question will be, is the Hawaiirecognition of a same-sex marriage entitled to such protection of thefull faith and credit clause? And then secondly, if it is entitled tothat protection, is there some kind of exception, such as a publicpolicy exception, which will trump that?

MR. ARKES: When states refuse to acknowledge incestuous marriagesand are not obliged to acknowledge them, it has nothing to do withthe records. Itís the question of whether there is something in thepolicy of the state which may set up a barrier to the recognition ofthat marriage?

MS. OSBORN: I think the best analogy, really, is interracialmarriages. I mean, weíre talking about an evolving social acceptanceof gays and lesbians as human beings. I mean until, you know, 10years ago, less than 25 percent of Americans even thought they knewsomebody who was gay or lesbian. This issue is one that is stillemerging, thatís just really come in front of the American people.Public opinion is very divided, but changing fairly rapidly, so --

MR. WATTENBERG: But for the moment, weíre talking about thecourts, which in theory are interpreting law, not interpreting publicopinion.

MS. OSBORN: Right, but in 1967, when the courts finally struckdown -- officially struck down the bans against interracial marriagethat were -- one by one, the states were working against them, but itwasnít until 1967 that the Supreme Court ruled. And in 1968, 70percent of Americans still opposed interracial marriage. So sometimesthe courts are ahead and sometimes the courts are behind, and whatweíre looking to is for the courts to lead on this.

MS. BLAIR: The court continues to treat race differently than sex,and even -- you know, you lumped together race, sex and sexualorientation before.

MR. ESKRIDGE: No, Hadley Arkes was doing that.

MS. BLAIR: Well, yeah, and the court continues to maintain verydistinct levels of review, as it were, between race classifications,which are subject, as you said, to very strictest scrutiny, andgender classifications, which are subject to something calledintermediate scrutiny, which allows government much more leeway indevising classifications and defining differences between people onthe basis of their sex.

MR. WATTENBERG: Would gay marriage, were it legalized, tend to,quotes, 'normalize' homosexuality?

MS. OSBORN: I think what it would do is -- I mean, normalize is afunny word -- I think what it would do is to provide the publicsupport for what is in fact a private commitment, long-termcommitment that exists out there. And I think itís unfair. I mean,you have hospital visitation issues, you have guardianship issues. Ican tell you story -- heartbreaking story after heartbreaking storyof people whose lovers have had strokes or aneurysms who havenít beenable to visit them in the hospital. And 70 percent of Americanssupport those kinds of rights for people.

MR. WATTENBERG: Yeah, but you can have statutes to deal with thatshort of marriage. I mean, you know, thatís --

MS. OSBORN: You could, but I mean I can tell you many, manystories of people --

MS. BLAIR: Indeed, you could execute a power of attorney, it seemsto me.

MS. OSBORN: Right, but if you happen to leave it at home when --

MS. BLAIR: You can own your house in joint tenancy. I mean, Icould do that with anybody if I wanted to. I can write a will thatleaves my property with somebody.

MS. OSBORN: Still itís a question of fairness. Itís a question offairness.

MR. WATTENBERG: I mean, could there be something --

MS. BLAIR: Itís a question of paperwork, largely.

MR. WATTENBERG: Could there not be something, seeing as thisobviously is a very controversial issue, that was, I mean I guesscall it a domestic partnership, certificate, or whatever you want tocall it, that would be a legal instrument or it would be a contract,it would be like a blank contract and you filled it in and people cansay what they want to in a contract, but it would not involve thesymbolic legal sanction of the state?

MS. OSBORN: What are people afraid of?

MR. ESKRIDGE: No, no, let me object to that, Ben. Youíre assuming--

MR. WATTENBERG: You canít object to it. Itís only a question.

MR. ESKRIDGE: I want to resist your question about these benefitsbeing formed contractually, and I want to resist your question aboutwill this normalize homosexuals? And I start with the proposition, weare --

MR. WATTENBERG: I put normalize in quotes.

MR. ESKRIDGE: -- we are normal already.

MR. WATTENBERG: I put it in quotes.

MR. ESKRIDGE: I understand that, Ben.

MR. WATTENBERG: Okay. I purposely --

MR. ESKRIDGE: But we are normal already. And one of the thingsthatís normal about gays and lesbians is that we form lovingrelationships and weíre also overwhelmingly middle class. Very fewmiddle class people can afford the lawyers that you need to enterinto these contractual relationships.

MS. OSBORN: Oh, I think Ben is suggesting that it be --

MR. ESKRIDGE: And thatís one of the advantages of marriage is thatmarriage --

MS. OSBORN: -- simplified.

MR. ESKRIDGE: -- simply by entering into marriage, which is animportant step, you get dozens, if not hundreds of benefits off therack. You donít need a lawyer to get these benefits. And that is ofgreat importance the normal middle-class families, whether theyíresame sex or different sex.

MS. BLAIR: In that case, what do we do to hold marriage up? Whatdo we do to encourage our children, who 99 percent are going toexhibit heterosexual tendencies --

MR. ESKRIDGE: That figure is wrong.

MS. BLAIR: -- to enter into a lifelong --

MS. OSBORN: 95 percent.

MS. BLAIR: Well, whatever, far more than -- you know, the vast,vast majority of our children are going to be attracted to theopposite sex. What do we do to encourage them to form a lifelongcommitment to one individual and raise children safely and securelywithin that relationship?

MS. OSBORN: But thereís no scarcity economy of marriage ormarriage license. Thereís no scarcity of love. I mean, this notionthat somehow gay marriage threatens the heterosexual institution iscompletely illogical.

MR. WATTENBERG: Letís get into that because --

MS. BLAIR: Well, it does, in fact, if you have children because ifyou have two men or two women and they have a child or childrenbetween them, there are other people who are a part of that family.There has to be the mother or father, the biological mother or fatherof that child, who is again, you know, an extended part of thismenage, and so that is a threat to heterosexual marriage becauseheterosexual marriage is founded on two people only and their ownbiological child.

MR. WATTENBERG: Letís get into the question, if you legalize gaymarriage, arenít you saying to young people who may be somewhere onthis continuum, hey, itís okay, and encouraging youngsters who wouldnot otherwise be homosexual to be homosexual?

MR. ESKRIDGE: The controversy over genetic versus earlyenvironmental, very few, if any, respectable people believe thatparents or society can determine or much influence the sexualorientation of their children. Thatís why I resist the question. Theway I think -- the better question --

MR. WATTENBERG: Hold on. Wait a minute, wait a minute. Hold on.Hang on. Gay scholars and historians maintain, for example, that inancient Greece, homosexuality was much more prevalent than it istoday. They had the same genetic makeup that we have today. Whatcaused the difference?

MS. OSBORN: It wasnít more prevalent.

MR. WATTENBERG: Excuse me?

MS. OSBORN: It was not more prevalent. It was more sanctioned; itwas allowed, social sanctioned, and it was more out in the open. Itisnít as if there were in fact more people with sexual orientation orwith gay or lesbian ideation. I mean, thereís been pretty much aconstant prevalence. The question is whether the society hasrecognized it, whether those relationships are out in the open. Andwhere we are historically is that this is an issue that is stillbeing grappled with. People donít even know that their teachers,their social workers, their librarians, their neighbors are gay orlesbian, and until they confront that, the prejudice will continue.

MR. WATTENBERG: All right, letís hear from this side of thesemicircle for a moment here.

MS. BLAIR: Well, does knowing it make any difference? Itshouldnít. Honestly, it shouldnít. I mean, if Iím dealing withsomeone who happens to have a different sexual orientation than I do,I donít care. If that person does his job, we can be friends. But Ibelieve that our society --

MS. OSBORN: Then they ought to be able to get married.

MS. BLAIR: No. Marriage is about reproductive sex.

MS. OSBORN: Well, then you would deny marriage licenses tostraight people who donít have kids.

MS. BLAIR: I wouldnít object to a law that said that. I wouldnítobject to a law that said weíre not going to give you the benefits ofmarriage unless youíre intending to have children. Itís just verydifficult to --

MS. OSBORN: Well, I think that wouldnít fly.

MS. BLAIR: Itís just very difficult to parse out those people fromthe other people.

MR. WATTENBERG: So you would say that a person who is sterileshould not have a right to get married?

MS. BLAIR: Well, not -- I wouldnít -- I would not find anobjection in social benefit to saying that marriage should bereserved for people who have children or are intending to havechildren, because that is why we give people these benefits. We donítgive people benefits merely for living together or loving each other.

MR. WATTENBERG: So you are --

MS. BLAIR: We give them benefits because theyíre likely to havechildren.


MS. BLAIR: Yeah, sorry.

MR. WATTENBERG: Are you answering my question in the affirmative,that yes, you would approve of a law that would not allow a sterilepartner to engage in a marriage?

MS. BLAIR: I would not propose such a law, but if someone came upand said, you know, 'Social Security is going broke, weíre going tohave to reduce the number of marriages in this country and weíd liketo do it by this method, which is going to meet the same kinds of --itís going to be narrowly tailored to help us conserve our welfareand Social Security resources,' I would be hard-pressed to argueagainst it.

MR. ARKES: We understand that the crime of rape would not bediminished in the slightest in significance if we found out that thewoman happened to be sterile. The assault, the intrusion on herreproductive faculties would be -- the event would carry the samemeaning because itís implicit in the bodily act.

We used to understand that there was this natural correspondence-- even the dimmest among us could understand -- between the notionof a wedding and the coupling of the persons which then expressesitself in the begetting of a child who represents, who embodies themerging of both of them. Now, thatís implicit in the act.

Now, again, we have to -- that informs the understanding of themarital act, even if the couples happen to be sterile.

MS. OSBORN: But we also assumed that they were both white untilthe í50s in this country.

MR. ARKES: Yeah, but -- no, that is -- you know, thatís anotherthing that just inflames black people, to make a connection betweenrace, where we cannot determine anything about the character ofpeople, versus, you know, homosexuality, in which you identify peopleby the acts they perform.

MS. OSBORN: No, it inflames conservatives and bigots.

MR. ARKES: The acts they perform, not making assumptions about --well, look, I just -- I want to keep the thread of these questions.Once again, itís not a matter -- no oneís doubting relations of lovebetween men and men, as no one doubts the genuine relations of lovebetween grandparents and grandchildren. And we donít think thoseloves are diminished as loves by the fact that theyíre not recordedin marriage. The difficulty here for us is this, that in principle itmay not be possible for us to detach the notion of marriage from thenatural teleology of the bodies, from the fact that it takes two tobeget a child. We canít do that, we cannot be able to accommodatewhat youíre after here without bending out of shape, so to speak, thelogic of marriage so that we have to license many other things.

So, for example, to pose the question you know Iíve posed, once wedetach marriage from the relations between a man and a woman, what isit that confines marriage to couples? What is the ground of principleon which the law then says to the people who come in saying, 'Ourlove is not confined to a duo, itís woven together in a largerensemble of three or four,' and I assume if we permit that, we canítconfine it only to people of the same sex, it has to be --

(Cross talk.)

MS. OSBORN: But this assumes a domino effect.

MR. WATTENBERG: As in fact, polygamy was once legal and it is nowillegal.


MR. WATTENBERG: So society does -- I mean, let me ask this side,would you propose that --

MS. OSBORN: But thereís no natural domino --

MR. WATTENBERG: -- polygamy be --

MR. ARKES: Whatís the ground of principle on which you say that?

MR. ESKRIDGE: If I may answer that question?


MR. ESKRIDGE: There is a --

MR. ARKES: No, because the answer is not --

MR. ESKRIDGE: Well, if I may answer that question.

MR. ARKES: Yes, but Professor Eskridge --

MR. ESKRIDGE: The answer to that question is the following, andthat is that the Hawaii decision says that same-sex marriage isrequired, based upon the sex discrimination entailed in Hawaiiís banof a same-sex couple from getting a marriage license. By making, asHawaii does, the decision turn upon the sexual classification, youare not opening the way to extending marriage in the directions thatHadley is talking about.

MR. WATTENBERG: The case is made that were homosexual marriageallowed, it would tend to make homosexuals more traditionally minded,more conservative, more family-oriented. Why are you all againstthat?

MR. ARKES: Well, you could apply, again, the same sort of thing toall these other relationships. A mother and her grown son, it couldmake them more committed more stable. The question is what are theappropriate relations for marriage, and can we accommodate thisarrangement, once again, without obliterating the principles thatconfine marriage to the coupling?

Now, I donít think that my friends here are really -- I donítthink that gay activists are really interested in licensing polygamyand incestuous marriage. I donít think thatís the concern. But Ithink youíve revealed what the problem is. You donít think there is anatural ground that defines the limits or the channels of sexuality.You think it really is a matter of convention and positive law. Andif it is merely a matter of convention and positive law, then wecould have, as Ben suggests, the incestuous marriage if you felt morelike it, if you were less unhappy about it, or you could license themarriage of three or four, or cross-species involvements.

MR. WATTENBERG: Let me -- am I interpreting your positioncorrectly on this side of the semicircle, to say that you areanti-discrimination and anti-legitimization and glorification ofhomosexuality? Is that -- if we strip away all of everybodyísarguments on both sides of it, you all donít want to furtherlegitimize and perhaps, as you might phrase it, glorifyhomosexuality.

MS. BLAIR: As you said, normalize.

MR. WATTENBERG: Yeah. And you are really saying, after we takeaway all the arguments, yes we should. Is that fair to say thatís the-- beneath this argument?

MS. OSBORN: Itís fundamentally about fairness and humanity andpeopleís right to love. If a society controls peopleís right to love,they can, you know, infinitely degrade them. Slaves were not allowedto marry; people of color and white people were not allowed to marryuntil the í50s began to fall away. And we are exactly in that sameplace. We are an issue that is new. Public opinion is in flux on theissue. Forty-five percent of Americans donít know quite what theythink on this issue, and itís a question of evolution.

MR. WATTENBERG: New topic and last topic. Headline: 'Gay MarriagesLikely to Become Hot-Button Issue in Presidential Race.' There seemsto be, should I say, a seminal difference between the parties?(Laughter.)

Now, how is this going to play out? Is that going to be -- youívebeen in the political wars, Torie. Is that going to be a so-calledwedge issue, hot-button issue?

MS. OSBORN: Well, already what weíve seen --

MR. WATTENBERG: If you were a Republican, would you say, 'Whoo, Igot one.'

MS. OSBORN: Well, what weíve seen -- thereís been some polling,actually -- the religious political extremists have consistentlytried to put this issue forward in Iowa during the primary season,and so forth. What weíve found is the voters, frankly, donít want tohear about it. They donít think that this is an issue. Seventy-fivepercent of them either donít care what a candidateís position is onthe gay marriage issue or they are against even it being politicized.

MR. WATTENBERG: As a political tactician --

MS. OSBORN: I would advise and I think weíre already seeing this-- I donít know whatís going to happen in Congress in the next month,but I would advise that the Republicans as well as the Democratsbasically not make this issue a hot-button issue and --

MR. WATTENBERG: No, but suppose one side makes it a hot-buttonissue and you are advising a Democratic candidate, let us say. Whatdo tell him to do, or her?

MS. OSBORN: Well, I would love to tell President Clinton to take astronger position in favor of letting the Hawaii Supreme Court decidein favor of gay marriage and --

MR. WATTENBERG: And you think that would be politically helpful tohim?

MS. OSBORN: I think it wouldnít matter. I donít think it will hurthim. I think the radical right and political religious extremists aretrying to make it a bigger issue than the voters really care about,which is why I think weíre seeing it, in fact, die down.

MR. WATTENBERG: Weíve used some tough words here -- radicals,extremists.

MS. BLAIR: Well, the polls in Hawaii, where this is a top-of-mindissue, show about 70 percent of people opposed to gay marriage. Notthat they donít care, but that they are opposed to it. And I did alittle sampling just walking down the street the other day, andpeople invariably say no.

MR. ARKES: People are aware of the fact that this is going to be-- pardon the expression --thrust upon us during this season, andonce again, the court is going to prepare it for us. This is way forthe political class to bring this back into the political arena.

I donít see your advice to Clinton as to what heís going to doabout this bill when it comes down the pike. My hunch is that heísgoing to make the sounds of the new Democrat and find some way ofsigning it.

MS. BLAIR: Call it statesí rights or something.

MR. ESKRIDGE: I think --

MS. BLAIR: It will be his, you know --

MR. ESKRIDGE: Ben, the discussion youíve introduced I thinkgreatly overstates the value of this issue in the coming presidentialcampaign.

MR. WATTENBERG: That is what they said about the Pledge ofAllegiance and about Willie Horton and about a lot of other things.

MS. BLAIR: I think you will be surprised.

MR. ESKRIDGE: Well, the Willie Horton did end up being a bigissue. The Pledge of Allegiance didnít, okay? My prediction, for whatitís worth -- MR. WATTENBERG: We can argue about that. Yes?

MR. ESKRIDGE: -- is a Republican prediction, is that a primaryprinciple of the Republican Party today is federalism. Marriage isdefined at the state level. There certainly are federal statutes,yes, but marriage is, on the whole, defined and thought out at thestate level.

MR. WATTENBERG: Heís talking about federal --

MR. ARKES: That federal law does not impair the federal structure.

(Cross talk.)

MR. ESKRIDGE: And I think Clinton will sign a bill if it goes tohim, and I think there will not be a big deal about it. And then inthe general election, there might be some noise made about it, butthis is going to be decided in Hawaii, and not until after theelection.

MR. WATTENBERG: Okay. It is quite an issue -- legal, cultural,political. We will be hearing a lot more about it this year. Thankyou, William Eskridge, Anita Blair, Torie Osborn, and Hadley Arkes.

And thank you. Please send your comments and questions to: NewRiver Media, 1150 17th Street, NW, Washington, DC 20036. Or we can bereached by e-mail at thinktv@aol.com or on the World Wide Web atwww.thinktank.com.

For 'Think Tank,' Iím Ben Wattenberg.

ANNOUNCER: This has been a production of BJW, Incorporated, inassociation with New River Media, which are solely responsible forits content.

'Think Tank' is made possible by Amgen, recipient of thePresidential National Medal of Technology. Amgen, helping cancerpatients through cellular and molecular biology, improving livestoday and bringing hope for tomorrow.

Additional funding is provided by the John M. Olin Foundation andthe Lynde and Harry Bradley Foundation. END

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