Category Archives: marriage

Over the Boardwalk

It’s Labor Day in the United States, and in the US for most people that doesn’t mean “let’s celebrate workers,” it means “let’s get to the beach” so I was pleased to find a story in this morning’s New York Times that was a beach-related public/private space kind of story that touches on issues of sexuality and human rights.

The question is whether the Boardwalk Pavilion in Ocean Grove, NJ, is public space or private space, and whether the Ocean Grove Camp Meeting Association (a Methodist organization) must let the space be used by by gay and lesbian couples for the same purposes that straight couples use it: that is, for ceremonies celebrating their state-recognized unions.

The Camp Meeting Association owns all the property in Ocean Grove. Even home owners and business owners there don’t own the property their buildings sit on. According to the Times article, “all the land, beach and 1,000 feet of the sea itself” have belonged to the Camp Meeting Association starting with some purchases in 1870. Their ownership of the property is not really in question in question.

However, according to the Times, for the past 18 years the beach, boardwalk and oceanfront have been part of the NJ Department of Environmental Protection’s “Green Acres” program, which includes a tax exemption for the property owner in exchange for allowing privately owned space to be used for “public recreation and conservation.” The tax exemption reportedly saves the Camp Meeting Association half a million dollars in taxes per year.

Clearly the state realizes that public access to places like beaches, forests, deserts, lakes, and rivers is important. That’s why governments maintain parks. But sometimes important spaces are privately owned and then the government might create a program like the Green Acres program in order to increase public access to space that would otherwise be off limits. You can think of the tax exemption received by the Camp Meeting Association this way: The State of New Jersey is paying the Camp Meeting Association about $500,000 per year to assure that the land in question remains accessible to the public.

So, on the stretches of property covered by the tax-exemption should the CMA be able to discriminate in deciding who can use the property?

They think they can. In fact, the CMA has sued the State of New Jersey for abridging its First Amendment rights while receiving a half million dollar tax exemption for public use of its property. They make a comparison to disaster aid saying that the receipt of disaster aid money doesn’t obligate a church to operate differently than it otherwise would, and thus that receipt of this tax exemption should not require them to allow people to use their property for purposes that they would not allow in their church.

Put aside, for a moment, your visions of bikini-clad women and well-oiled men streaming in for Sunday services. We’re talking about marriage and civil union ceremonies, it is certainly true that receiving disaster aid might not obligate a church to start allowing civil unions to be performed in their building.

But the rules governing the Green Acres program cannot really be compared to those governing something like disaster relief money. The Green Acres program is all about enabling public use of private property. That’s why they give such big tax exemptions in return. Here is the definition of “Public Use” from the Eligibility document governing the Green Acres program:

“Public use” means a use or right of use available to the general public or some portion thereof for conservation or recreation purposes. Such use, and any limits thereon, shall be based on the uses best suited to the land, the capacity of the facility and the public benefits or advantages to be derived therefrom.

Further, in determining what property is eligible, the document specifies that eligible property “must be open for public use on an equal basis” (my emphasis).

And, in addressing what restrictions can be made on the use of the property, the document states:

Restrictions on the use of the real property by the public must be determined by the Commissioner to be necessary for proper maintenance and improvement of the property or because significant natural features of the land may be adversely affected by unrestricted access.

You can read a copy of the document here (MS Word file).

So back to the original question: In order to be eligible for this tax exemption can the CMA prevent some people from having civil union ceremonies on their Boardwalk but allow others to do so? That would seem to violate the “equal basis” clause of the guidelines. And it seems more than unlikely that allowing civil union ceremonies would interfere with “proper maintenance” or cause adverse affects in any way that marriage ceremonies would not. And in any case, the Commissioner didn’t make the decision. The CMA folks did.

If the CMA is unhappy with the deal it made, it needs to find a way to withdraw its participation in the Green Acres program and start paying its full share of taxes.
And the rest of us need to be mindful that the maintenance of public space is incredibly important not just so we can go to the beach, but more importantly to protect our civil rights.

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Note: This is also published on SexInThePublicSquare.org, our community-building site. If you haven’t dropped by yet, come on over!

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The “Biology v. Choice debate” has no place in a discussion of sexual freedom and civil rights

I’m more than tired of all the uproar over whether sexuality is biologically determined or chosen. Actually, that’s not true. It’s ultimately more complicated than that dichotomy would indicate, and the answer has no place in a discussion of rights for gays.

It’s bad enough to hear the fundamentalists harp on the “gay lifestyle,” but LBGT groups also seem inclined to use the question of choice v. biology as a new potential litmus test for politicians. For example, In the HRC/Logo LBGT Presidential Forum, Melissa Etheridge asks Bill Richardson if he thinks sexual orientation is a choice or is biological. He’s been criticized for his answer but it’s actually not so far from mine: It really doesn’t matter. People should have rights whether they choose aspects of their identity or whether they are born with certain characteristics. (NB: There may be plenty of good reasons to be critical of Bill Richardson, but his answer to that question, which was essentially, and I’m paraphrasing, “It’s really complicated and so honestly I don’t really know, and besides it doesn’t really matter because people deserve rights either way.”)

You can see Bill Richardson’s segments of the forum here, and all the others here.

Intellectually, or scientifically, what factors shape a person’s sexuality is an interesting question. But in terms of the law it ought to be irrelevent. Discrimination against people based on the kinds of sex they have, or the genders of their partners ought to be illegal. Period. End of sentence.

It feels like another instance of where those in favor of sexual and reproductive freedom have ceded the framing of the debate to those who would like to lock sexuality down. Only this time the word “choice” has been adopted by the other side.

Conservatives focus a lot on their claim that sexual orientation is not an orientation at all but is rather a “chosen lifestyle” because they are fond of punishing people for what they see as “bad” or “immoral” choices. By that logic, they feel justified denying marriage to same sex couples because they should have ‘chosen’ differently.

That’s ridiculous. Even if sexuality is to some degree chosen — and I would argue that all kinds of sexual expression is chosen, and much is shaped by culture, even though some is likely influenced by biology — I should still be allowed to marry who I want, as long as that person is legally able to consent to the marriage. I should not be discriminated against at work or in housing matters or health care because of the partners I choose.

Why should sexual choices (between people capable of consent) be seen as somehow different from other choices we are freely able to make? Sexuality is complex and there are lots of desires that we choose to act on and explore and others we choose never to explore. And sexuality should not be reduced to sexual orientation, either. Go beyond the gender of your partner and think about explorations in bondage or flogging or sex at play parties. Do we need to argue that those desires or explorations are driven biological predispositions in order to assert that we should be free to act on them and that our rights should not be limited if we choose to do so? Should it be legal to deny housing to people who are polyamorous? Should it be legal to fire a person who is into leather and whips? Of course not. So why, when we talk about LGBT rights, which are extremely important, do we end up arguing based on biological determinism?

I think we do so because it’s easier to argue that people shouldn’t be denied rights because of something over which they have no control. The comparisons to race, ethnicity, disability should not be missed. But there are other “protected categories” that are seen as sacred in terms of rights and freedom and are certainly a matter of choice. Religion comes to mind first. Religious faith is a matter of conscience and culture and not at all something you are born with. (I know, some religions are “passed on” through families but there is generally a moment when the individual has to choose to become a full member of the religious community by way of some consciously engaged-in ritual.)

And even regarding race, which is not chosen but is a characteristic others ascribe to us based on physical appearances, there is precedent for adopting “choice” as a basis for rights, especially where sexual relationships are concerned.

In 1967 the Loving v. Virginia case made it clear that it is unconstitutional for states to prevent interracial couples from marrying. Does anybody argue about whether the partners in interracial couples are “born that way” (i.e., somehow biologically inclined to sexual attraction and love of people from other racial groups) or whether they’ve “chosen” to partner with people outside their own races? No. In fact the biology of sexual attraction never entered the picture in the Loving decision. The question was one of whether or not it was legal for the state to regulate marriage by taking race into account.

We should not allow a “biology v. choice” framing of the rights debate to continue. If we do, we will likely find ourselves backed into a very unpleasant corner. We will be forced to argue that we are helpless over our sexuality, and then will be faced with the very frightening prospect of arguing in favor of a medical definition of sexual orientation — which can then be used against us when people decide to start looking for “cures.” For make no mistake about it: if they think they can “cure” us by counseling us into making different choices, they will be no less likely to try to “cure” us of a sexual orientation that they can frame as a disease. If there is a “gay gene” we should be very wary of what happens if it’s found. It will then be possible for genetic testing to “discover” the sexual orientation of a child and gene therapy may be used to “fix” that child. We’ve been there before in less technologically sophisticated ways. Sexual orientation was only declassified as a disease in the 1970s!

Choice v. Biology is no way to have a debate about rights. When we fought for civil rights we didn’t ask what causes race (though we certainly have debated what defines race). We shouldn’t be arguing about what causes sexual orientation. Its an interesting scientific question, and probably has a very complex answer that combines biological and social factors, and I’d be very curious to know more about it. But it has no place in the politics of anti-discrimination policy.

Ultimately sexuality is a blend of biological, cultural, and individual factors. Rights, on the other hand, are determined through the political process, and sexual freedom and civil rights should not depend on whether we are born with a sexual orientation or choose how to express our sexual selves. Sexual freedom and civil rights should be granted to all. Period.

(Note: This post is also published on SexInThePublicSquare.Org, our community-building site. Come on over!)

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Loving and Marriage

Today is the 40th anniversary of the landmark Loving v. Virginia case, the case that finally declared laws against interracial marriage to be unconstitutional. Many thanks to Rachel Kramer Bussel for reminding us all that not only is this the anniversary, but that an organization exists that promotes its celebration! Here’s a link to her interview with Loving Day’s founder, Ken Tanabe.

Interracial marriages were still against the law in 16 states as recently as 1967, when the Supreme Court ruled that laws criminalizing them were unconstitutional. (They were illegal in 24 states in 1958 when Virginia residents Richard Loving, a white man, and Mildred Jeter, a black woman, traveled to Washington DC to get married.) Loving v. Virginia is an interesting case to think about. For one thing, the law being challenged did not prevent all interracial marriages, but only those that involved white people. An African American and a Native American could marry, but neither could marry a white person. The concern was clearly for protecting the “racial purity” of white people as the dominant race. Here’s an excerpt from the Supreme Court decision that quotes the law in question:

The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating 20-58 of the Virginia Code:

Leaving State to evade law. If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.”

Section 20-59, which defines the penalty for miscegenation, provides:

“Punishment for marriage. If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”

Not only were interracial marriages unrecognized, but to live together “as man and wife” was evidence of marriage and marriage was a felony crime punishable by up to five years in prison. In the case of the Lovings (aptly named!), who had gone to Washington DC to get married in 1958, the punishment had been 1 year in prison, suspended for 25 years as long as they left the state and didn’t return for 25 years. In other words, they must spend a year in prison or be banished from their home state. The Lovings pleaded guilty when they were charged in January 1959, moved to Washington DC after their banishment, and spent the next 8 years filing motions and appeals attempting to win their right to be married.

Their case is interesting also because it highlights the use of religion in decisions about marriage, and the way that God is invoked to justify socially-defined boundaries. The judge who ruled on the Loving’s original conviction wrote:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Of course many deeply religious people were activists in the civil rights movement, and that movement itself would have been impossible were it not for the part played by churches. The words of the judge in the Loving case reflect a narrowly defined understanding of Christianity and God held by a small but dominant group of people. We are seeing something very similar in our current fight for marriage equality today. When people oppose marriage between two people of the same gender, they often invoke a narrow understanding of god that is held by a shrinking but still dominant group of people.

When the Lovings’ case was heard by the Supreme Court, the question was really whether it was a violation of the 14th amendment to ban marriage between two people based only on their races. The first section of the 14th amendment reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th amendment is not one that deals only with questions of race. In fact, the only place that race is mentioned in the text of the amendment is a mention of “Indians” in Section 2 which deals with representation in Congress, and there it is not race on its own but “Indians not taxed” — read: Indians who are members of Native American Nations — and while the entire history of the treatment of Native Americans in North America is one of racial injustice, of course, the issue as presented in the 14th amendment is one of “no representation without taxation.”

Celebrating the Loving v. Virginia decision is important for at least two reasons. First, we should celebrate the step away from institutionalized racism that the decision represents. And we should notice the degree to which racial injustice still pervades our social structure, and should continue to work for racial equality. We are still a segregated society, with segregated schools and segregated social groups. We need reminders to cross boundaries we wouldn’t ordinarily cross and to make friends. Second, we should celebrate in order to reminds ourselves that injustices can be rectified, and that with courage, persistence, and activism, they are rectified.

Can you imagine if the federal government had passed a “Defense of Marriage Act” in the late 1950s or early 1960s such that no state would have to recognize any other state’s interracial marriages? Might that have changed the tenor of the Supreme Court such that the Loving case would have gone differently?

Can you imagine requiring interracial couples to endure civil unions rather than having full marriage rights?

We are again in the midst of a struggle for equal protection under the law as it relates to marriage rights, this time for couples where the partners belong to the same group, rather than to different groups.

Shouldn’t we grant couples of the same gender the kind of equal protection granted to couples of different races 40 years ago?

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Bonus points: I know some of you read from other countries. In addition to discussing the specific issues raised above, can anybody provide links or discussions of marriage segregation laws from other countries, or discuss how they’ve changed?

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Wage equality is a queer issue, too!

Yesterday I posted about Equal Pay Day, and the discussion was one that assumed heterosexual marriage as a foundation. But issues of wage inequality, and economic issues in general, are queer issues, too, and the gender wage gap is an interesting one.

Women typically earn less than men, so female-headed households are more likely to struggle financially than are male-headed households. In fact, 29% of families with female householders are officially poor. For female-headed households with children under 18, this jumps to 38%, and for female-headed households with young children (under five), the percentage that are officially poor is even higher: 47%.

How does this have anything to do with sexuality? For one thing, women are more likely than men to have low incomes, and female-headed households are more likely to be poor, so women in same sex partnerships are more likely to struggle than are their male counterparts, and women living alone are in even worse shape.

Remember the big push for marriage-supportive policies during the 1996 Welfare Reform and again during Bush’s “Faith-based initiatives” agenda? It seems that the Bush administration, especially, believes that if people would just “do the right thing” and get married (and stay married), we’d have a lot less poverty. And the data appear to support that conclusion on the surface. Only 5% of married-couple families are officially poor, and if you look only at married couple families with children, the percentage only jumps to 7%. Quite different from the situation of single mothers, for example.

But there is a correlation/causation problem here: it isn’t marriage as a state of being that makes a difference. Marriage makes a difference because of the way that it is defined and the way it is treated by the state. Married couple families are less likely to be poor and more likely to have higher incomes in part because they are by definition going to have a man’s income to add to the ledger, and they are quite possibly going to have two incomes to add together. And then there are the many rights and benefits that married couple families are given. Lesbian couples, women or men living alone, or not having the privileges of marriage, are not going to have the same chances.

Making income and poverty politically a “queer issue” is not necessarily easy. For one thing, once it’s seen as an issue for queer folk, it has the potential to divide gay men from lesbians. In fact, single straight women and lesbians have more in common, and even married-couple families have more common ground with lesbian couples on this issue than would gay male couples. (This is not to suggest that there is no poverty among gay men, or that gay men raising children don’t face many of the same challenges that opposite-sex couples or lesbians raising children will face, but just to point out that where wages and occupations are concerned, gay men tend to benefit by being men.)

There is another reason to consider income and poverty from the perspective of sexuality: people have more sexual agency when they are not constrained by poverty. Women and men make choices about whether or not to begin or end sexual relationships in part based on economic factors. They are more or less free to leave abusive relationships depending on economic options. They are more or less free to remain single. Constrained income options are also among the reasons some people perform sex work. And then, of course, people who have to work multiple jobs or take on lots of extra hours to make a living are less likely to have the time and energy to sustain a satisfying sex life in the first place.

Wage equity is an important step toward gender equality, but also an important step toward equality for queer folk. But there are a lot of other steps that need to be taken as well.

One of the most important things I think we need to do is to de-emphasize marriage as the basic ‘family’ structure, and a focusing on households. Policies that took households, instead of marriages, into account would help single moms, cohabiting lovers, polyamorous people, communal households, same-sex couples, and would level the playing field dramatically. But that would mean lending tacit social approval to people who have sexual and intimate relationships that challenge the dominant heteronormative model wherein marriage rules.

This is why I have mixed feelings about the same-sex marriage agenda. As long as marriage is the only family form that is given privileges, of course I want people to have access to it regardless of the gender of their partners, but as long as we keep marriage at the center of our definition of “legal family,” we will have to continue to deny recognition and rights to all those people who choose other forms of intimate commitment and interdependence.

Economic justice and social justice need to be considered together. Economic issues are queer issues. The politics of sexuality and the economics of family life are inseparable when it comes to social change.

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Here are some links to a couple of organizations that frame economic justice issues as queer issues:

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Coming Soon …

I know, I know, I just got back, and now here I am headed out again for a couple of days. I thought it might be nice to let you know what I’m working on so that you’ll know what’s coming up when I return:

  • A discussion on the treatment of sex offenders, specifically dealing with the recent signing of a law in New York allowing for ‘civil commitment’ of certain sex offenders after their prison terms are up. I’ll be asking whether we should treat pedophiles like regular criminals or like people who are considered too disturbed to be responsible their crimes, but who need treatment and to be confined. It seems in New York we want to have it both ways.
  • Some happier posts! My mother says I don’t write enough upbeat stuff, so in the coming week look for a review of the book “Everything you never wanted your kids to know about sex but were afraid they’d ask.” And also look for an interview with the guys from Nekked, a great electronica/pop band that I first mentioned back in September. (I’m thinking about making book reviews a more regular feature of Sex in the Public Square. Feel free to send recommendations. I’m thinking about books that contribute something interesting and useful to public discourse around sexuality, and that have a down-to-earth, sex-positive spin.)
  • A first post in a series about monogamy. Specifically, I’m talking about the kinds of nonmonogamous commitments people make in serious long term sexual relationships. (If you have a nonmonogamous relationship you’d like to talk about, drop me an email using the link on the sidebar!)

So that’s what’s coming up. If you’ve had a comment moderated and posted already, you can comment without moderation while I’m away. (Otherwise comments will be held until I can get to a computer.)

I’ll be back soon. Be good! (That means you, JanieBelle!)
Elizabeth

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