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February 17, 2004

No Plain Dealing

One way in which Andrew Sullivan's advocacy-over-argument approach becomes apparent is in how he reacts when he begins to see where he's been arguing from a mistaken premise. For example, it seems that he no longer feels secure in denying that the FMA will do exactly as I and others have said it will do, but rather than openly explore the foundations of his heated rhetoric, unpacking the new implications, he tweaks his language:

The possibility of civil unions - as the equivalent or simulacrum of civil marriage for gay couples - would be removed everywhere by this amendment.

Exactly. But by simply inserting the phrase, "as the equivalent or simulacrum of civil marriage," he avoids defining the boundaries of the forms that civil unions could take. Thus, he still feels comfortable sliding right back into his erroneous demagoguery:

In practice, those civil unions could contain nothing that marriage contains, because none of these "incidents" could be upheld or enforced by the courts. Yes, we'll allow you to have a car, but you have to remove the engine and the wheels. That appears to be the real agenda. The FMA is one of the most radical attempts to disenfranchise a group of citizens in history. No air-brushing or spin or sloppy journalism should be allowed to disguise that naked and alarming fact.

The sleight of hand is readily apparent in the way he argues himself from statement to implication. Moreover, he inadvertently illustrates the reason that "simulacrum unions" must be barred if our system of government is to handle this issue effectively.

As evidence that "the religious right would spring into action and sue to gut" civil unions, he cites litigation against California's "gay marriage" law, AB 205. Of course, it requires Sullivan to make recourse to a peculiar form of paranoia to forget that the religious right isn't the only interest group poised to "spring into action." Moreover, it requires an astounding degree of chutzpa for him to point to a legal case that the religious right is losing for this purpose. All he can do, therefore, is suggest with heavy breath (where he uses italics), "imagine that such a suit occurs after the FMA."

But this case is evidence that an amendment imposing some restrictions on civil unions is necessary and desirable. As you may or may not know, California's citizens passed Prop. 22 to legislate that:

Only marriage between a man and a women is valid or recognized in California.

To the extent that lawmakers aren't willing to openly defy that mandate, they have already attempted to work around the law as created through referendum. Consider the text of AB 205:

This bill would extend the rights and duties of marriage to persons registered as domestic partners on and after January 1, 2005. ...

297.5. (a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

Thus, the legislature has played, and the judiciary is in the process of allowing, word games to thwart the clearly expressed will of the people of California. Such an action would — and should — be barred by the FMA. However, that certainly doesn't mean that every "incident" of marriage is thereby untouchable. That simply couldn't be true, because many incidents of marriage are and always have been shared by other legal entities (e.g., a will or a power of attorney agreement).

What the FMA will require is for the legislature to take the time to describe all of those rights, protections, benefits, responsibilities, obligations, and duties within the law creating civil unions. How closely they'll be able to come to simply writing out a simulacrum of marriage will be a matter of debate and litigation. Quite obviously, in California, both the legislature and the judiciary would work to get pretty close to marriage. The only danger to the civil-union project, therefore, would be that the people of California would object more strenuously to clearer changes in the law. Fearing such a reality is to distrust our system of government.

Other states would draw a wider margin around marriage, into which civil unions could not penetrate. And through this federalist project, the country would by necessity pursue debate and encourage consideration of the roles of both marriage and homosexuals in society. What conclusion would be reached only time will tell. On one end, perhaps civil unions would carry little more weight (although many more legal benefits) than pinning once did. On the other end, perhaps the country will define them so closely to marriage that the FMA would be repealed.

Either way, that the question is open at all is a testament to the strides that homosexuals have made over the past decades. To allow them to avoid this process of public definition — and perhaps what Sullivan truly desires — is to allow them to avoid the work of cultural assimilation now that they have secured public tolerance.

Posted by Justin Katz at February 17, 2004 12:18 PM
Marriage & Family

Aren't homosexuals and lesbians different from heterosexuals? Why in the world would they want the same kind of liason????? Beats me, indeed. If I were gay I wouldn't give a hoot about heterosexual mores. But I'm a libertarian (to use an easy label) while I have the impression that most same-sex practicants have a socialist mind, i.e. communal more than individual. And, if the community says: this is the way to go, they behehehehe! like sheep will do it. What a lack of own personality, really.

Posted by: Miguel at February 18, 2004 6:18 AM

Comments unreadable 'coz of black zone :P

Posted by: Miguel at February 18, 2004 6:19 AM


Of course, the gay community is as varied in opinions and sociopolitical perspectives as the society at large. However, it is a valid question where the gay mainstream lies within that range.

Regarding gay marriage, there was a lot of debate in the '80s and '90s following exactly the line that you suggest, but it sort of just dissipated in the late '90s. Not sure why, though.

Posted by: Justin Katz at February 18, 2004 5:17 PM