NOTE FROM PAM: This is the second of two reports for the Blend by Tony Varona, Professor of Law and the Academic Dean of American University’s Washington College of Law (right). He contacted me a few weeks ago because he was invited to participate in a symposium on marriage equality and religion at St. John’s Law School, held this past weekend. As a reader and fan of the Blend he wanted to contribute an account of the event from his unique perspective. This report is about the panel he served on with Maggie Gallagher of the National Organization for Marriage.
In addition to former representative Bob Barr’s interesting address on how his views have evolved on DOMA (the subject of my earlier post, the St. John’s U. School of Law Nov. 12th symposium, “Legal, Secular, and Religious Perspectives on Marriage Equality/Marriage Protection/Same-sex Marriage,” brought a number of other notable advocates and scholars to debate marriage equality and analyze the aftermath of the 2008 and 2009 ballot initiative losses for proponents of marriage equality in California, Arkansas, Arizona, Florida and Maine.
Besides Bob Barr, the “pro” side included Yale Law School Professor Ian Ayres discussing his new book, Straightforward: How to Mobilize Heterosexual Support for Gay Rights, as well as a variety of activists and scholars — like Chapman’s Katherine Darmer, UC-Davis’s Courtney Joslin, Thomas Jefferson’s Kaimi Wenger, and UCLA’s Devon Carbado and Russell Robinson. Those opposed to same-sex marriage included Ave Maria Law School’s Jane Adolphe, who insisted that same-sex marriage was “inauthentic” and therefore unworthy of legal protections. The University of Pennsylvania’s Amy Wax, a renowned conservative, sparked a number of negative audience reactions when she revealed that she would be “disappointed” if one of her children came out as gay or lesbian since that would mean that they likely would have to resort to adoption of biologically unrelated children, rather than enjoy what she characterized as the superior experience of natural heterosexual procreation.
I had the privilege of sharing a panel with Maggie Gallagher, founder of the National Organization for Marriage, and perhaps the most prominent opponent of same-sex marriage today. Although I did not agree with almost everything she said, she struck me as more thoughtful and reflective than she has been in other contexts, especially in short media interviews.
Responding to earlier comments about how the Prop 8 supporters’ messages were often misleading and distorting, she said, “I assure you that the arguments that were made by the people who supported Prop 8 believed that they were true. So they were not misleading. They are part of our ongoing disagreement about whether changing the public and legal definition of marriage to include same-sex couples matters.” Of course, Maggie seemed to overlook that it was possible for Prop 8 supporters to have believed their arguments and for those arguments to have been misleading, but I won’t quibble.
Gallagher said, “I too favor marriage equality and I oppose discrimination,” but then clarified that same-sex unions are not marriages and thus “it is not discrimination to treat different things differently.” She added, “I do not think that equality requires the recognition of same-sex unions as marriages.”
According to Gallagher, marriage must be defined as being between a man and a woman because “deeply disconnected societies with not the same religion, economy, ecology — with nothing in common…come up again and again with something that has this basic marriage shape.” She summarized her position in this way:
Marriage as a universal human idea has its roots in three persistent truths about human beings everywhere. The overwhelming majority of us are powerfully attracted, and not without reason, to an act that makes new human life. So newsflash!, sex between men and women makes babies. The second truth is that society needs babies. Reproduction is optional for the individual. Not everybody has to do it. But only those cultures that manage to regulate the procreative implications of male-female sexual attraction survived…. The third idea in which marriage is based is that children ought to have a mother and a father. …Put it this way: when a baby is born there is bound to be a mother somewhere close by, right? If we want fathers to be there for their children, and for the mothers of their children, biology alone is not going to take us very far. We need a cultural mechanism for attaching fathers to the mother-child bond.
Later in her remarks, she added: “Sex makes babies, society needs babies, babies need a mother and father. Out of these truths, an institution arises to try to grapple with a problem to direct human behavior towards the ideal.”
Gallagher’s arguments were not new. They were some of the same arguments resoundingly rejected by a number of courts examining the various justifications for the same-sex marriage prohibitions — most notably the Goodridge decision in Massachusetts and California Federal District Court Judge Vaughn Walker’s opinion in Perry v. Schwarzenegger striking down Prop 8 as unconstitutional.
Gallagher’s arguments also are not hard to refute. I opened my remarks by pointing out that I did not see, and would have liked Maggie to explain, how prohibiting same-sex couples from getting civil marriage protections undermines traditional marriage. Could one not be in favor of both traditional marriage for heterosexuals and civil marriage protections for gays and lesbians for whom a “traditional” marriage is out of the question? And if indeed the crux of her argument is now the protection and well-being of children, how exactly does denying same-sex couples the protections of civil marriage protect the children born to heterosexuals and protect the children born to those same-sex unions? Of course, banning civil same-sex marriage does the exact opposite. It harms children, straight and gay, for no good reason. And it denies the reality that same-sex couples can, and do, procreate, and can, and do, adopt children who would be much better off if their parents were not barred from the many important protections offered by civil marriage.
I also wanted to challenge the circularity of Maggie’s and her anti-marriage equality colleagues’ arguments. At its essence, Maggie’s argument is that same-sex marriage is not marriage because only man-woman marriage is marriage. But why exactly can a same-sex union not ever qualify as a marriage? Because, Maggie argues, marriage is only between a man and a woman. The reality, of course, is that the term “marriage” has been a contested and fluid one throughout history, with many forms of marriage (plural, intergenerational, interracial, homosexual, etc.) either solemnized or marginalized by civil and religious authorities in accordance with the social and cultural dynamics of the respective eras.
Sadly, we were unable to enjoy a true debate during the Q&A portion of our panel because Maggie had to leave early, but it was an interesting exchange nevertheless. Most interesting to me was how Maggie started her remarks with a request of the audience to identify their positions by raising their hands, first if they were supporters of same-sex marriage, and then if they were opponents or were undecided. There were approximately 80 audience members in the moot court room of St. John’s Law School, a Roman Catholic institution. All but 6 or 7 attendees raised their hands in support of marriage equality. About 5 hands went up in opposition. A telling result, surely dispiriting for Maggie and her colleagues, and a very positive harbinger of what lies ahead on the road to universal marriage equality.
Professor Tony Varona teaches Contracts, Administrative Law, Media Law, and Introduction to Public Law. Before joining the WCL faculty, he was an associate professor of law at Pace Law School in New York. Before that, he served as general counsel and legal director for the Human Rights Campaign, the nation’s largest gay civil rights organization. He built HRC’s legal department, directed its legislative and regulatory lawyering and appellate amicus work, launched national law fellow and pro bono attorney programs, and served as counsel to HRC’s board of directors and the organization’s corporate, educational, and media initiatives.
Professor Varona taught as an adjunct law professor for three years at Georgetown University, and served as a Wasserstein Fellow at Harvard Law School. He serves on the board of directors of the Gay and Lesbian Alliance Against Defamation (GLAAD), and is a member of the Society of American Law Teachers and the Hispanic Bar Association of Washington. He has served on the boards of the Human Rights Campaign and the Alliance for Justice, was on the New York Advisory Board for the American Constitution Society, was founding chairperson of the AIDS Action Council’s Legal Advisory Board, and served as a member of the Judicial Selection Steering Committee of the Leadership Conference on Civil Rights.