Marriage & the Law
Everyone has his own set of priorities, personal and political. For me, the most important issue in this campaign is the issue of the war in Iraq, which I opposed from the start and from which I believe we need to extricate ourselves now rather than later. See War in Iraq and War on Terror. While that ill-advised war is costing us the lives of more and more of our soldiers and hundreds of billions of dollars, it seems to me we ought to be talking of little else than how to end it on our own terms and bring home the brave troops -- many of whom are serving there against their will through the President's misuse of the National Guard and the so-called back-door draft, both of which I've opposed. Before we know it, despite the Administration's repeated denials, we'll be hearing about the reinstatement of the draft, which this time around will necessarily involve the conscription, on equal terms, of not just our sons but our daughters. Nonetheless, if you watch the vacuous campaign ads on TV and listen to the candidates' empty rhetoric, you'll hear as little about these things as the candidates think they can get away with saying.
Despite my priorities and despite the fact I might be tempted by the thought of saying as little as possible about certain issues, e.g., the so-called "gay marriage" issue, I believe I owe it to those who attach so much significance to these matters to address them -- to tell you what I think and tell it straight (pardon the pun).
First off, I think those of you who are attracted to the Republican party because of its position on this issue and related "social" issues are being toyed with by the party's leadership. In an Op-Ed piece titled "Failure Is Not an Option, It's Mandatory" in the New York Times on 07.16.2004, Thomas Frank, author of the book What's the Matter with Kansas? How Conservatives Won the Heart of America, wrote:
For three days this week the nation was transfixed by the spectacle of the United States Senate...debating the Federal Marriage Amendment, which...was doomed to defeat from the get-go. Everyone knew [the proposal] would never draw the two-thirds majority required for a constitutional amendment, and yet here were all these conservatives lining up to speak for it, wasting day after day with their meandering remarks about culture while more important business went unattended. What explains this folly?
In Frank's opinion, with which I agree, "the amendment was a classic election-year ploy," past examples of which include "Richard Nixon's campaign against the liberal news media [and] George H. W. Bush's campaign against the liberal flag-burners." The strategy is to create a "[cultural] divide...between 'regular people' and an endlessly scheming 'liberal elite," a strategy that "allows them to depict themselves as friends of the common people even as they gut workplace safety rules and lay plans to turn Social Security over to Wall Street. Most important, it has allowed Republicans to speak the language of populism...." According to Franks, "failure" in such an endeavor constitutes victory because "it mobilizes the base," "sharpens the distinctions between conservatives and liberals," and "allows for endless grandstanding without any real-world consequences that might upset more moderate Republicans or the party's all-important corporate wing."
A related examples of this "playing to the crowd" is the recent purported attempt by the House of Representatives, with my opponent's support, to remove the jurisdiction of the federal courts to pass on the constitutional validity of the so-called Defense of Marriage Act. As I've said elsewhere (click here), the bill is not "conservative" because to be conservative is above all to support our country's wonderful constitutional framework, including the separation of powers of the three branches of government, that has served us so well for more than 200 years.
In any event, on 08.21.2004 I received a letter from a political interest group asking me to sign a formal pledge that, if elected, I would support an amendment to the U. S. Constitution confining "marriage or its legal equivalent" to "the union of one man and one woman." It stated that Governor Pawlenty and many of our state legislators had signed the pledge. I wrote in my campaign journal that day that even if I agreed with the proposed amendment, I wouldn't sign the pledge and I explained why (more), but I said that I would be explaining in a later entry why I oppose the proposed amendment.
I oppose it for a number of reasons:
First, I oppose the federal amendment because it's inconsistent with President Bush's earlier statement that the regulation of marriage is a matter better left to the states. The conservative position on the division of authority between the states and the federal government, which I support, has long been that as a general matter it's best, to the extent reasonable, to leave to the states matters of crime control, education, family law and other traditionally local matters. Indeed, as reported on 08.24.2004 (AP story in Yahoo), Vice President Cheney himself publicly stated at a rally in Iowa that he disagreed with the President's call for an amendment. Cheney said:
Lynne [his wife] and I have a gay daughter, so it's an issue our family is very familiar with. With...respect to the question of relationships, my general view is freedom means freedom for everyone....People ought to be free to enter into any kind of relationship they want to. The question that comes up with the issue of marriage is what kind of official sanction or approval is going to be granted by government? Historically, that's been a relationship that has been handled by the states. The states have made that fundamental decision of what constitutes a marriage....I think [the President's] perception was that the courts, in effect, were beginning to change, without allowing the people to be involved. The courts were making the judgment for the entire country...At this point, my own preference is as I've stated, but the president makes policy for the administration. He's made it clear that he does, in fact, support a constitutional amendment on this issue.
President Bush's switch from the Cheney position to his current position in support of pushing for an amendment to the Constitution adds weight to Mr. Frank's opinion that pushing for an amendment, when he knew he would lose the vote, "was a classic election-year ploy." So was the House's vote, including that of my opponent, on the attempt to remove jurisdiction of the federal courts on the constitutionality of that other crowd pleaser, the Defense of Marriage Act.
There is much to be said for the Cheney position that such matters as regulation of marriage traditionally are matters left to the states and that we ought to let the issue of same-sex marriage play out on the political stages in the states, at least in the first instance. That, incidentally, was the gist of the published opinion for the court of one of my main mentors in the law, the late Justice C. Donald Peterson of the Minnesota Supreme Court, whom I served as personal law clerk during the 1970-1971 and 1972-1973 terms. During my first year as his law clerk, there came before the court an appeal of a decision by a functionary in Hennepin County District Court in Minneapolis refusing to issue a marriage license to two homosexual men who desired to get married. The court's decision, Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of federal question, 409 U.S. 810 (1972), is reproduced here. Justice Peterson's unanimous opinion for the court held that 1) the Minnesota legislature, in using the term "marriage" in the statute governing marriage, undoubtedly used the term in its commonly-understood meaning, as "the state of union between persons of the opposite sex," and 2) the statute, as interpreted, "does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution."
The effect of the decision, as I said, was to leave to the democratic political process in Minnesota the question whether to amend the statute to include same-sex unions within the definition of "marriage." As we all know, in the 33 years since Baker was decided, the legislature has not amended the statute [to change the result in Baker. Just the opposite: the legislature added a provision expressly prohibiting marriage "between persons of the same sex," Minn. St. 517.03, subd. 1(4)].
Nor is there any significant likelihood that our state supreme court will overturn Baker [or hold the express statutory prohibition unconstitutional]. Unlike the members of the Massachusetts Supreme Court, which recently issued the controversial ruling holding in Goodridge v. Department of Public Health that barring same-sex marriage violates the Massachusetts constitution, the members of our state supreme court, although typically appointed by the governor in the first instance, must run for election and potentially face opposition every six years if they wish to continue serving on the court. That they ultimately owe their offices to the electorate makes it extremely unlikely that they will overrule or distinguish Baker and hold that the statutory ban on same-sex marriage violates the Minnesota constitution. Like their predecessors who served on the court in 1971, they are likely to conclude that as a matter of Minnesota law the matter is one for the political process.
Of course, neither the existence of our statute, as authoritatively interpreted in 1971 [and as amended to reflect the Baker decision] nor the passage of a state constitutional amendment expressly defining "marriage" as being limited to members of the opposite sex would prevent the U. S. Supreme Court from ruling that, as a matter of federal constitutional law, any such state statutory or constitutional ban is null and void. But it is not clear that the Court would even elect to decide the issue until the states have had a substantial amount of time to address the issue. As reported in Adam Haslett in a piece on the history of marriage and the debate over gay marriage in The New Yorker (05.31.2004), Justice Ruth Bader Ginsburg, despite being a proponent of abortion rights, "has suggested that it may have been precipitate [for the Court] not to allow the states to come to a stronger consensus before the Court brought the reform process to an end" by deciding Roe v. Wade. More typically, the Court in the past has been, if anything, too slow to decide such issues, waiting until a consensus of opinion in the states supports the Court's decision. This, e.g., was the Court's approach with respect to the state bans on miscegenation or racial inter-marriage, waiting until 1967, in the Loving case, to declare such bans unconstitutional -- i.e., waiting nearly 20 years until most states, following the lead of California in 1948, had removed such bans through legislation or judicial decision. For further discussion, see the exchange between Professors Laurence Tribe and Richard Parker in the summer issue of my law school alumni magazine, Harvard Law Bulletin, in a piece titled "A Marriage Contrast -- Two Professors, Two Takes on the Massachusetts Gay Marriage Ruling" (click here).
Putting predictions aside, you deserve to know where I stand on the issue as a public policy matter.
I've already made it clear that either as a member of Congress or as a private citizen I will not support an amendment to the federal constitution banning same-sex marriage or its equivalent. Likewise, in my role as private citizen of the state, I will not support such an amendment to the state constitution.
But, having said this, I still haven't said how I'd vote in my role as a private citizen if the issue were not whether to amend our state constitution but whether to amend the Minnesota statute defining "marriage" to include the union of two people of the same sex. Normally, it'd be none of your business. But since I'm running for Congress, albeit with no realistic chance of "winning," I guess I ought to give you the "benefit" of my current thinking on this, qualifying what I say only with the caveat that I'm not being asked to vote directly on the matter as a private citizen right now and that I find my thoughts on the matter developing as time goes by.
My starting point on the matter is that tradition ought to count for a lot in the consideration of changing any long-standing institutional arrangement. There's a line by Robert Frost I like about it being wrong to be reactionary and against all change but that it's also wrong to be too ready to embrace the new just because it's new.
But I also can't help reminding myself of all the instances in which we as a people have been too slow to recognize that words such as "tradition" and "long-standing institutional arrangements" sometimes provide cowardly cover for practices that are prejudiced and discriminatory and unbecoming of us as sons and daughters of a loving God and as citizens of a country with our high aspirations and ideals. As the great depth psychologist Carl Jung said:
Observance of customs and laws can very easily be a cloak for a lie so subtle that our fellow human beings are unable to detect it. It may help us to escape all criticism, we may even be able to deceive ourselves in the belief of our obvious righteousness. But deep down, below the surface of the average man's conscience, he hears a voice whispering, 'There is something not right,' no matter how much his rightness is supported by public opinion or by the moral code.
Carl Jung, from his 1931 introduction to Frances Wickes, The Inner World of Childhood.
Looking back, we ask ourselves how we as a people could have been so blind as to: a) allow slavery to last as long as it did, b) wait until 1870 to extend the privileges of citizenship to black people, c) wait until 1920 to extend the vote to women, d) wait until 1954 in the Brown case to formally end so-called "separate but equal" segregation in public schools, e) wait until 1964 to end the poll tax, f) wait until 1967 to formally rule, in the Loving case, that state bans on inter-racial marriage were unconstitutional, and g) wait until 1971 to extend the vote to those old enough to be drafted and compelled to fight and die for their country in wars in far-away places like Viet Nam.
For reminding me of the dates of some of these collective blind spots, I acknowledge Professor Tribe's comments, linked to supra. Just for the heck of it, I'll remind him of another blind spot, to wit, that my alma mater, that great but harsh, rigid old institution, Harvard Law School, despite the presence in its corridors of some of the greatest legal minds in the world, didn't admit women until 1950 (and even then and for many years thereafter in only small numbers). Moreover, in the early years after women were first admitted, including when I was present as a student, the atmosphere of that austere place was even more unfriendly to female than to male students.
Years from now I'm convinced we'll look back on what I believe is another blind spot, this one a current one, age discrimination. One example of this is in our state supreme court's embrace of mandatory retirement at age 70 of judges. Once again, our legal gyros, who should be able to recognize discrimination when they see it, in fact are proud supporters of it, just as they were staunch defenders of rules limiting the free speech of judicial candidates, rules that were correctly declared unconstitutional by the United States Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002). Speaking for the majority of the Court in White, Justice Scalia made mincemeat of the arguments advanced in support of the Minnesota court's censorious policy. The Minnesota court ought to have apologized to the people of Minnesota. Instead, it promptly issued a sanctimonious, self-serving, and presumably-canned statement to the effect that principles of impartiality and integrity and competence of judges "are the very life-blood of the public's trust and confidence in the judiciary," as if those principles were the matter in dispute.
To get more personal, I will tell a little tale about Ragnhilda Harvey (Horveid) Herfindahl, one of my great-grandmothers, whom I have listed elsewhere on this website as one of my political heroes. Like the best of immigrant parents, she didn't limit her children's sights to the Norwegian immigrant subculture but raised them to succeed in the larger American English-speaking culture. However, she was also very proud not just to be a Norwegian by birth but, more particularly, a "Vossing," that is, one from the Voss area of Norway. And, when it came time for her children to select spouses she wasn't merely hopeful that they would pick Norwegian-Americans -- she hoped they would pick Vossings. My grandfather, Otto, from the early days in rural school, had his eye on a beautiful girl named Pauline Pederson, whose parents were from South Trondheim and Valdres Valley in Norway. Otto and Pauline's daughter, my mother, married my dad, whose ancestors came from Sogn og fjordane and the Oslo area. I stretched things farther outside the Voss orbit, marrying a woman (now my ex-wife) who is half English and half German. My cousin Grant, who is also one of Ragnhilda's great-grandchildren, and his Norwegian wife have a son who stretched things a little bit farther, marrying a beautiful and intelligent Kenyan woman, whom he met while studying in Kenya. They now have a son whose middle name is Mowendo. "Mowendo" means "journey" in the Kamba language.
It's fair to say that, when you look at all her descendants, Ragnhilda's genes now have journeyed, figuratively and literally, far outside the little Voss orbit. Had she been able to foresee this and had she been asked if it was what she wanted, she presumably (if it's fair to presume such things) would have said no. But if now she were with us and knew what we know and could give her approval, I like to think she would do so. I say this because I like to think (and she might have agreed) that her genes have benefited from the travel and the intermingling and crossing with genes from other parts of the world. Emerson I know would agree; he wrote that "Nature loves crosses." And modern Mendelian genetics has proven Emerson's poetic perception to be correct. Mendelian genetics speaks of the effect of this genetic traveling and intermingling and crossing as "hybrid vigor," which is typically defined as "Increased vigor or other superior qualities arising from the crossbreeding of genetically different plants or animals."
Ragnhilda had her plans for her members of the next generation, and the next and the next. And so it seems to go. Each generation, more or less sure of its ways, tends to have plans for the next generation, plans that often are worth considering and even following but plans that more often than not are unreasonably restrictive in some sense and not necessarily to be followed in every particular.
Whether or not one is comfortable contemplating it, it is entirely possible (perhaps even likely) that somewhere down the line, later if not sooner, each of us will have a descendant whose genetic makeup predetermines his or her gender preference in a lifelong partner to be someone who is of the same gender or sex. Contemplating this possibility or probability makes me want to do everything possible to help ensure that that hypothetical descendant of mine not only will feel my love across the gulf, in years and generations, that separates us but will have the same good life, wonderful liberty and plentiful opportunities to pursue happiness that I have had and that I hope all of my descendants will have.
It's this basic human impulse -- that our love and good fortune should descend along with our genes -- that, I believe, underlies the fact that a man as conventionally "conservative" in his thinking and acting as Vice President Dick Cheney, who has a "gay" daughter, feels as he said he did the other day: "With...respect to the question of relationships, my general view is freedom means freedom for everyone....People ought to be free to enter into any kind of relationship they want to." In short, he feels about his daughter the same way I feel about that still hypothetical descendant of mine.
I don't stop there, with my personal hypothetical-descendant "take" on this matter. I am not "just" concerned with my hypothetical descendant's happiness. I'm also concerned, as I take it every one involved in this debate is, about the future of the institution of marriage. And on this, I can only agree with the fairly numerous conservative proponents -- yes, conservative proponents -- of allowing same-sex civil marriage. Foremost among them is Jonathan Rauch, whose argument is that Gay Marriage is Risky, but Banning it is Riskier, National Journal (05.15.2004). He argues, in part:
Today, a third of all American children are born out of wedlock, cohabitation is soaring, and nearly half of marriages end in divorce. Marriage's problem is not that gay couples want to get married but that straight couples don't want to get married or don't manage to stay married. At long last, gay marriage provides an opportunity to climb back up the slippery slope by reaffirming marriage's status as a norm -- not just as a right but as a rite, the gold standard for committed relationships. Gay marriage dramatically affirms that love, sex, and marriage go together -- that if you really care, you marry. No exclusions, no excuses....
Because society has an interest in seeing same-sex couples settle down and look after one another, and because gay couples' friends and family care about their well-being, committed gay couples are winning increasing social support. One way or another, legal support will follow. Banning gay marriage guarantees that the country will busy itself creating gay-inclusive alternatives to marriage (which will be tempting to heterosexuals) and bestowing legal rights and social recognition on cohabitation (which is open to heterosexuals by definition). The result will be to diminish marriage's special status among a plethora of "lifestyle alternatives" -- the last thing marriage needs.
Moreover, the gay exclusion risks marginalizing marriage by tainting it as discriminatory. A March Los Angeles Times poll finds that more than 80 percent of young people (ages 18 to 29) favor anti-discrimination protections for gay people. More than 70 percent believe gays should receive the same kinds of civil-rights protections that are afforded to racial minorities and women. More than half favor gay adoption, three-fourths believe that "a gay person can be a good role model for a child," and more than 70 percent can "accept two men or two women living together like a married couple." Seventy percent describe themselves as sympathetic to the gay community (versus 43 percent of people 65 and older). And three-fourths support gay marriage or civil unions -- with the plurality favoring marriage.
In other words, America's young are much more hostile to discrimination than to gays or gay marriage. They will increasingly view straights-only marriage the way their parents have come to view men-only clubs: as marginal, anachronistic, even ridiculous....
The perceptive reader will have noted that I have spoken of "allowing same-sex civil marriage." I still like to call myself a "Norwegian Lutheran." While I'm no theologian, back in the 1950's, for two years during the school term, I spent my Saturday mornings in confirmation classes run by a rather stern old-school Norwegian Lutheran pastor, Harold Nasheim. Luther spoke of Christians as living in two realms, that of the church and that of civil life or society. Both realms ultimately belong equally to God, one being subject to his right hand, the other to his left hand, but they are nonetheless separate. Christians live in both realms and should see God's handiwork in both realms and should feel that in public life, whether in their trades or in serving in public office, they are called upon to do God's work. But, again, they are separate realms.
Consistent with this dichotomy, I believe it makes sense to distinguish in this context between church or canon marriage and civil marriage. The idea of so-called "companionate marriage" is a product of the Reformation, and it is an idea that has spread to other religions as well as to the secular realm. But not all religions or, for that matter, Christian churches accept this notion. In America that is their right, under the First Amendment. Recognition that civil marriage is not restricted to the traditional union of a man and a woman does nothing to diminish any church's right to recognize only such a traditional union or, for that matter, to recognize other restrictions as well. That is for each church to decide. Thus it was that the Lutherans of the Reformation period rejected many of the Catholic church's numerous restrictions on who could get married, including the ban on clergy marriage. It would be inappropriate for our government to bar Catholic priests from getting married in the civil sphere, but the Catholic church is free to continue its long-standing adherence to such a ban and to enforce it in the canonical courts, though not in the civil or secular courts.
Moreover, some who oppose allowing same-sex marriage on religious grounds speak as if the doctrines of the Christian church are unchanging. I know of no better or eloquent counter-argument than that provided in an 1841 sermon titled "The Transient and Permanent in Chriatianity" by the great Rev. Theodore Parker, a contemporary of Emerson:
Any one, who traces the history of what is called Christianity, will see that nothing changes more from
age to age than the doctrines taught as Christian, and insisted on as essential to Christianity and
personal salvation. What is falsehood in one province passes for truth in another. The heresy of one age
is the orthodox belief and "only infallible rule" of the next.... Men are burned for professing what men are [later] burned for denying.
In respect of doctrines, as well as forms we see, all is transitory. "Everywhere is instability and insecurity."
Opinions have changed most, on points deemed most vital. Could we bring up a Christian teacher of any
age, -- from the sixth to the fourteenth century, for example, though a teacher of undoubted soundness
of faith, whose word filled the churches of Christendom, clergymen would scarce allow him to kneel at
their altar, or sit down with them at the Lord's table. His notions of Christianity could not be expressed in
our forms; nor could our notions be made intelligible to his ears. The questions of his age, those on
which Christianity was thought to depend, -- questions which perplexed and divided the subtle doctors, --
are no questions to us. The quarrels which then drove wise men mad, now only excite a smile or a tear,
as we are disposed to laugh or weep at the frailty of man. To look back but a short period, the theological
speculations of our fathers during the last two centuries; their "practical divinity;" even the sermons
written by genius and piety, are, with rare exceptions, found unreadable; such a change is there in the
Now who shall tell us that the change is to stop here? That this sect or that, or even all sects united, have
exhausted the river of life, and received it all in their canonized urns, so that we need draw no more out
of the eternal well, but get refreshment nearer at hand? Who shall tell us that another age will not smile
at our doctrines, disputes, and quarrels, and make wide the mouth at men who walked brave in orthodox
raiment, delighting to blacken the names of heretics, and repeat again the old charge "he hath
blasphemed"? Who shall tell us they will not weep at the folly of all such as fancied Truth shone only into
the contracted nook of their school, or sect, or coterie? Men of other times may look down equally on the
heresy-hunters, and men hunted for heresy, and wonder at both. The men of all ages before us, were
quite as confident as we, that their opinion was truth; that their notion was Christianity and the whole
thereof. The question puts itself to each person, "Will you cling to what is perishing, or embrace what is
From The Transient and the Permanent in Christianity sermon delivered by Theodore Parker at the Ordination of Rev. Charles C. Shackford in the Hawes Place Church, Boston on May 19, 1841.
Parker also wrote, at another time:
Look at the facts of the world. You see a continual and progressive triumph of the right. I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; [but] I can divine it by conscience. And from what I see I am sure it bends towards justice....
There are many voices calling to us at any one time on an issue like this -- the voices of the past, the voices of the crowd, the voices that are being shouted down by the crowd, that still small voice within each of us, the voices of the future. I've tried to listen to all these voices. Like Rev. Parker, I'm not sure where the arc will bend in the short term. But I like to believe, in fact I'm pretty sure, that Parker was right and that in the long run it bends toward justice. In any event, in the unlikely event that I am elected, I will do my best to see it bends that way. But then I'll do that even if I'm not elected.
Copyright (c) 2004 by Burton Randall Hanson. Prepared & published by candidate on his own behalf and at his own expense. Candidate may be reached by e-mail at firstname.lastname@example.org. Candidate does not solicit or accept contributions or endorsements.