June 26, 2008
On June 26, 2003, the US Supreme Court issued its opinion in the Lawrence v. Texas case, ruling that state laws restricting adults’ rights to engage in private, consenting sexual behavior are unconstitutional.
Today, on the fifth anniversary of that historic decision, it seems appropriate to recall the events leading up to it and to consider what has happened since.
Consistent with this blog’s focus, I’ll emphasize the social science research data relevant to the case as presented to the Court in an amicus brief filed by the American Psychological Association (APA) and other professional organizations. I had the privilege of helping to write the APA’s briefs for Lawrence and the other cases mentioned below, all of which sought to inform the Court about current scientific knowledge related to homosexuality and sexual orientation.
Bowers v. Hardwick
Before discussing Lawrence, it’s important to recall the Court’s decision 17 years earlier in Bowers v. Hardwick.
Michael Hardwick was arrested in his Atlanta home after a police officer (who had been admitted to the home by a houseguest) peered through Hardwick’s partially open bedroom door and saw him engaging in oral sex with a male companion. Georgia had a sodomy law that, like the laws in many other states at the time, criminalized oral and anal sex between same-sex and different-sex partners alike.
With assistance from the American Civil Liberties Union, Hardwick brought a suit against the state Attorney General, Michael Bowers, challenging the law’s constitutionality. The case reached the US Supreme Court in its 1985–1986 term, and the APA filed an amicus brief jointly with the American Public Health Association.
That brief detailed the current state of scientific thinking and empirical research about homosexuality, explaining that the sexual conduct made illegal by the Georgia statute was common in both heterosexual and homosexual relationships, and was neither pathological nor harmful to the individual. Rather, the brief argued, such behaviors play a key role in maintaining intimate relationships, which in turn are important for the psychological well-being of heterosexual and homosexual individuals alike. The brief also explained that homosexuality is not a psychological disorder and it rebutted arguments by the Georgia Attorney General that the statute was an effective deterrent to the spread of AIDS.
By a 5–4 majority, the Court upheld the Georgia statute, declaring that states can legally regulate the private sexual behavior of consenting adults. This outcome was made all the more disappointing by later revelations that Justice Powell had initially sided with the justices who wanted to overturn the statute but then changed his vote. Justice Powell commented that he had never personally known any gay people. Ironically, several of his law clerks over the years had been gay but, out of concern for their careers, none had disclosed that fact to Justice Powell.
Three aspects of the majority opinion by Justice White and the concurring opinion by Chief Justice Burger are especially noteworthy.
- First, the opinions framed the legal question very narrowly and addressed only homosexual conduct even though the Georgia statute made both heterosexual and homosexual sodomy illegal. As Justice White put it, “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time” (p. 190).
- Second, both opinions found justification for their legal reasoning in religious and moral traditions. Justice White wrote that proscriptions against homosexual conduct “have ancient roots” (p. 194). Chief Justice Burger asserted that “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching” (p. 197).
- Third, the opinions constructed same-sex sexuality as something very different from heterosexuality, declaring that it has no relationship to families. Justice White wrote, “No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent” (p. 191). Elaborating further on this theme, he equated homosexual behavior with incest and heterosexual adultery, predicting that if the court were to decide that the Constitution protects the right to “voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home” (p. 194).
The Bowers decision was a great blow to proponents of equality for sexual minorities. However, an opportunity to challenge it came surprisingly soon.
Lawrence v. Texas
In 1998, John Lawrence and Tyron Garner were arrested in Texas for having consensual sex in Lawrence’s bedroom. The Texas sodomy law was similar to Georgia’s in that it criminalized oral and anal sex. Unlike the Georgia statute, however, the Texas law applied only to conduct between people of the same sex. In a lengthy series of appeals, the lower courts refused to overturn the law, citing Bowers v. Hardwick as precedent. Lawrence and Garner finally appealed to the US Supreme Court, which heard the case in the spring of 2003.
For several reasons, legal experts believed it might be possible to overturn Bowers v. Hardwick at this time. Many states had eliminated their sodomy laws, either through the legislative process or because courts had found them to be in violation of the state constitution. Gay people had become much more openly integrated into American life, and public opinion surveys revealed widespread opposition to antigay discrimination. The membership of the Supreme Court had also changed since 1986, and the Court’s 1996 Romer v. Evans ruling suggested it was more receptive to gay issues than in the past. In addition, many legal scholars regarded the Bowers v. Hardwick opinion as not well reasoned and considered it an embarrassment to the Court.
The APA — joined by the American Psychiatric Association and the National Association of Social Workers — filed an amicus brief, one of more than two dozen such briefs submitted in the Lawrence case. As in Bowers v. Hardwick, the APA brief summarized the current state of scientific knowledge relevant to the case, citing an extensive list of empirical studies and literature reviews in support of its conclusions.
Although some aspects of the Lawrence brief were very similar to the earlier Bowers brief, a much larger body of scientific research on sexual orientation was available than had been the case 17 years earlier. In addition, consistent with the Texas statute, the Lawrence brief focused on research about homosexuality. It stressed three major conclusions from behavioral and social science research findings:
- Homosexuality is a normal form of human sexuality. In connection with this point, the brief explained why and how sexual orientation is important to the individual; how sexual orientation develops, and the fact that most people do not perceive their sexual orientation to be a choice; and the mental health professions’ recognition that homosexuality is not a mental disorder.
- Trying to legally suppress sexual intimacy among same-sex partners deprives gay men and lesbians of the opportunity to participate in fundamental aspects of human experience. In this regard, the brief discussed the importance to gay men and lesbians of sexual intimacy and committed relationships; the centrality of the specific behaviors proscribed by the Texas statute to sexual intimacy and, therefore, to the intimate relationships that are at the core of lesbian and gay families; the similarities between same-sex and heterosexual intimate relationships; and the ability of gay men and lesbians to be good parents.
- Sodomy statutes — such as the Texas law — reinforce prejudice, discrimination, and violence against gay men and lesbians. Related to this point, the brief presented research findings on the discrimination, prejudice, and violence routinely encountered by gay people, and discussed how antisodomy statutes reinforce and help to perpetuate those enactments of sexual stigma.
Five years ago today, the Court declared the Texas law unconstitutional by a 6–3 majority, reversing Bowers v. Hardwick.
Justice Kennedy’s majority opinion was sweeping in its language and its recognition of the basic humanity of gay people. This is evident in his criticism of how the 1986 Court majority had approached Bowers v. Hardwick:
To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse…. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice (p. 567).
Justice Kennedy also noted that the continuance of Bowers as precedent “demeans the lives of homosexual persons” (p. 575), and asserted that “Bowers was not correct when it was decided, and it is not correct today” (p. 578). Near the end of the opinion, he wrote, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” (p. 578).
These statements represented a dramatic break with the Bowers Court’s view of gay people.
What was the impact of the APA briefs on the Court? In 1986, Justice Blackmun cited the APA brief in his impassioned dissent to Bowers v. Hardwick. Subsequently, in overturning their sodomy laws, some state courts relied on information from the APA amicus briefs submitted to them. The 2003 brief wasn’t explicitly cited in the written opinions for the Lawrence case, although some of Justice Kennedy’s recurring themes — his recognition of the humanity of gay men and lesbians, and the fact that sexuality is central to personal identity and intimate relationships — were repeatedly stressed in it.
Although we don’t know whether and to what extent the brief affected the Lawrence decision, what matters is that it was filed. As a joint effort by the largest mental health professional associations in the United States — whose memberships also include many of the country’s leading behavioral scientists — the brief illustrated just how far psychology and psychiatry have come in their understanding of human sexuality and their renunciation of sexual stigma.
The Marriage Equality Cases
The ink had barely dried on Justice Kennedy’s decision when questions began to be raised about its impact on marriage laws. Indeed, the justices directly addressed this question in their opinions, with Justice Scalia’s dissent interpreting the majority opinion as leading inevitably to marriage equality (an outcome not to his liking), and Justice Kennedy denying that such a conclusion was in any way inevitable. Justice O’Connor, who wrote a separate concurring opinion, made a point of separating the Lawrence decision from the marriage issue.
Less than six months after the Lawrence decision, the Massachusetts Supreme Judicial Court cited it in their ruling that prohibiting same-sex couples from marrying violated the state constitution. A few months later, Mayor Gavin Newsom directed the San Francisco County Assessor to issue marriage licenses to same-sex couples, and officials in a few other jurisdictions did likewise. Thus began a period of intense legal, political, and cultural focus on the issue of marriage equality.
In the past 4 years, several state courts have considered challenges to their marriage laws. The APA and other professional groups filed amicus briefs in those cases which summarized the social science research related to three major lines of argument:
- In psychological terms, intimate same-sex relationships are not fundamentally different from different-sex relationships.
- Gay and lesbian couples are currently raising children, and are just as capable as heterosexual couples in this regard.
- Marriage confers a variety of tangible and intangible benefits that have important effects on psychological and physical health; because they cannot marry, same-sex couples are currently denied these benefits.
I’ve discussed the social science data supporting these arguments in previous posts to this blog.
To date, most of those laws have been upheld by state courts, although the New Jersey Supreme Court ruled that same-sex couples must be granted the same rights and responsibilities as different-sex married couples.
The important exception, of course, is California, whose Supreme Court ruled on May 15 that it is unconstitutional to deny marriage rights to Californians simply because they are gay.
That decision — which also declared that sexual orientation will now be considered a “suspect classification” and that laws and policies discriminating on the basis of sexual orientation will be subjected to strict judicial scrutiny — repeatedly cited the Lawrence v. Texas opinion. It also cited the APA amicus brief, as detailed in a previous post.
In the months ahead, Californians will debate whether or not the Court’s ruling should be undone by a constitutional amendment that has qualified for the November ballot. Meanwhile, a decision about Connecticut’s marriage law is expected from that state’s Supreme Court at any time, and an appeal is pending for an Iowa lower court judge’s opinion that the state’s ban on marriage rights for same-sex couples is unconstitutional.
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Back in 1975, soon after the American Psychiatric Association removed homosexuality from its official roster of mental illnesses, the American Psychological Association (APA) adopted a resolution that not only endorsed the psychiatrists’ action, but also recognized psychologists’ responsibility to undo the harm their profession had historically done to sexual minorities. That resolution committed psychologists to “to take the lead in removing the stigma of mental illness that has long been associated with homosexual orientations.”
The APA’s amicus briefs in the Bowers, Lawrence, and related cases were translations of that resolution into concrete action.
Because current debates about law and policy concerning sexual orientation inevitably raise questions about the nature of intimate relationships, parenting, family dynamics, and the personal impact of sexual stigma — phenomena that have been extensively studied by behavioral and social scientists — psychologists and other behavioral scientists have an ongoing role to play in communicating our knowledge to policy makers, jurists, and the public.
By doing so, we will continue to fulfill our longstanding commitment to take the lead in removing the stigma historically attached to homosexuality and same-sex intimate relationships.
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This essay is adapted from sections of a longer article titled “Confronting Sexual Stigma and Prejudice: Theory and Practice,” which was published in 2007 in the Journal of Social Issues, vol. 63, pp. 905-925. The original article is copyright © 2007 by Gregory M. Herek. Sources and bibliographic references can be found in the published article.
June 25, 2008
On Wednesday morning at 10 am (PDT), “pastors, friends and Christian leaders” from across California will join a Pastors Strategic Conference Call convened by Jim Garlow, the pastor of Skyline Church in San Diego.
As detailed on ProtectMarriageEquality.com, Garlow’s invitational letter promised that:
[T]he information shared [during the call] will be extremely beneficial for the future of the cause of Christ in California. Saying it another way, it is worth canceling all other appointments in order to be present….
The letter promises that “Christian attorneys will instruct and guide” participants on legal and public relations issues.
The letter also refers readers to a website registered to an Internet domain proxy service in Scottsdale, Arizona, located near the offices of the Alliance Defense Fund. (A Christian legal firm founded by James Dobson, D. James Kennedy, and other Christian Right leaders, the ADF has played a central role in promoting antigay laws and policies.)
That website (ProtectMarriageSD.com) provides resources for opponents of marriage equality in California, including a timeline of planned events leading up to the fall election.
Titled the “Civic Serve Strategy,” the timeline begins with this week’s conference call. The next major scheduled event is a 40-day statewide fast, beginning September 25 and continuing to November 2. During the fast, a “Family Voting Weekend” will be observed on October 18-19. The focus of that weekend apparently will be a push to get absentee ballots submitted. At the end of the 40 days will come “The Call” on November 1, a 12-hour prayer rally at San Diego’s Qualcomm Stadium. It will involve “men and women of God from every denomination — all united to create a climate of ongoing prayer and fasting in our state and across the nation.”
The California Challenge
The fact that the organizational impetus for the CaMP (California Marriage Protection) Act comes mainly from conservative Christians will come as no surprise to most observers. In California, however, anti-equality religionists face a special challenge, namely, how to convince a majority of voters — many of whom don’t subscribe to Christian Right principles — to amend their state Constitution to endorse a quintessentially religious proposition that disenfranchises an entire segment of the population.
In states where conservative Christians dominate electoral politics, winning majority votes on anti-marriage initiatives has not been a problem. But California is a more secular state than most, and the statewide politics tend to be moderate and Democratic.
Some relevant information about Californians’ religious preferences can be gleaned from the U.S. Religious Landscape Survey released this week by the Pew Forum on Religion & Public Life. According to the Pew survey, the population of California is less religious than the nation as a whole. For example,
- While 56% of all US adults say religion is very important in their lives, only 48% of Californians do so. And 23% of Californians say religion is not too important or not at all important, compared to 16% nationally.
- 24% of Californians said they believe their religion’s holy book (e.g., the Bible, the Torah) is to be taken literally, word for word, compared to the national average of 33%. Such beliefs are often considered a defining feature of religious fundamentalism.
These comparisons understate the differences between Californians and other Americans because the figures for the entire nation include California. However, the differences are readily apparent from the national maps on the Pew web site, which reveal that California tilts decidedly toward the less religious end of the spectrum compared to many other states, especially those in the Midwest and South.
Californians also are somewhat less likely than the nation as a whole to belong to religious denominations whose members take a negative view of homosexuality.
- More than half of the Mormons, Christian Evangelicals, Jehovah’s Witnesses, and Muslims in the Pew sample believed that “Homosexuality is a way of life that should be discouraged by society.” These denominations comprise only about 22% of the California population, compared to about 30% nationally.
- By contrast, more than half of Mainline Protestants, Catholics, Jews, Buddhists, and those categorized as “other faith,” “other Christian” or “unaffiliated” believed “Homosexuality is a way of life that should be accepted by society.” These groups constitute about 73% of the California population, compared to about 62% nationally.
Data from the Field Poll published last month further confirm that conservative religious beliefs are linked with opposition to marriage equality in the Golden State. The problem for CaMP Act supporters is that religious conservatives don’t come close to constituting a majority of California voters. For example, marriage equality was opposed by 68% of self-described born-again Christians, but that group comprised only one fifth of the Field Poll sample. The other four-fifths supported marriage equality by 58%.
The CaMP Strategy
All of this suggests that marriage equality opponents can’t count on passing the amendment solely with votes from conservative Christians.
To be sure, they will work hard to turn out their religious base through events such as the 40-day fast, the Family Voting Weekend, the November 1 “Call,” and ongoing massive voter registration drives through churches.
However, they will also be trying to attract moderate voters. Recognizing that most Californians support marriage equality or, at least, civil unions and domestic partnerships, they’re already tailoring their tactics, trying not to appear extreme and mean-spirited.
For example, in a June 16 letter, ProtectMarriage.com urged anti-equality activists to present a tolerant face in public:
The major media would love to see us engage in fierce protests and hostile demonstrations of outrage against the licensing of same-sex “marriages”. Of course they will take any opportunity they can find to portray us as unreasonable. We must not fall into this trap.
In a similar vein, in his letter convening the Pastors Strategic Conference Call, Jim Garlow offered this advice about dealing with media when same-sex couples began to marry last week:
If (and I repeat “if”) you are (1) called of God to do it (don’t do it if you are not called by Him), and (2) if you are inherently media savvy, and (3) if you truly know the key issues upon which to focus for a secular audience, and (4) if you will not be inflammatory in your language, but loving in both speech and demeanor, then may I recommend you to go to your respective County Clerk’s office on Monday evening or Tuesday morning — or both. Hand your card to media personnel and let them know who you are and that you are willing to make comments. For the most part, they do prefer to attempt to present “opposing views.”
I cannot emphasize enough the importance of being firm, be loving. If you appear to be scared or angry or portraying “hate,” then that will be trumpeted by the anti-biblical crowd. It is imperative that we are as loving as Christ, while not flinching under pressure. My suggestion, do not go if you feel you cannot follow the four principles above.
And in Sacramento on Monday, Frank Schubert, a GOP consultant who will manage the pro-initiative campaign, said he will run a “positive, uplifting campaign”and pledged “There will not be any gay bashing in our campaign.”
CaMP Talking Points
If they avoid overt gay bashing and expressions of anger and hostility, what will they actually say? Jim Garlow’s letter offers 9 talking points, many of which will probably sound familiar. The three main points are:
- Four judges overruled the will of the people, Prop. 22 which passed by 61.4% in 2000, and was placed in the California Family Code indicating marriage is the union of a man and a woman. Key words: “usurping,” “tyranny of the judges,” “preempting the will of the people.” The judges overturned Prop. 22 on May 15. They were asked if they would put a stay on their ruling until the citizens of California could vote on the Marriage Amendment, since the necessary signatures were being validated (694,000 required; 1.1 million obtained). On June 4, the judges refused to do so, thus creating legal chaos for the state when the Marriage Amendment vote is successful. In other words, people will be married under the ruling of four judges, and those marriages will have to be reconsidered in the light of the Marriage Amendment in November. All of these are key issues that honest minded people find offensive.
- Children deserve a chance to have a father and a mother. This produces the best environment for producing healthy human beings.
- Do not use the phrase “ban same sex marriage;” that plays into the opposition’s court. Use correct phrasing: “destroying the definition of marriage that has existed in California’s 158 year history — since 1850, and the history of most of Western Civilization.”
Garlow’s letter offers 6 more points “only if you need them” and advises that this likely won’t be the case:
- Virtually every culture has affirmed the role of heterosexual marriage. There is a reason. It works.
- Two pronged approach: (a) for people who see themselves as Christians, the Bible speaks clearly on this; (b) for those who are not concerned with the Bible or Christianity, there is an awareness of “natural law,” in that males and females function together in a particular role that sustains and provides health to the human race.
- Loss of religious liberties; loss of freedom of speech, in that Canada and Sweden, for example, are now ruling that the Bible is “hate speech,” at some point, pastors will lose their right to speak out on this issue; pastors will be forced to perform homosexual weddings or face imprisonment and fines;
- Social experiments are costly and devastating to the health of humans and societies.
- If we redefine marriage, why stop with same sex? Why not polygamy? Why not incest (under age)? What is the basis for stopping with this definition of marriage? Why not further expand it?
- Do we need public school curriculum to advocate homosexual activity?
Whether or not following this plan will ultimately persuade a majority of California voters to support the anti-equality amendment remains to be seen. And, no doubt, the conservative Christians promoting the marriage ban will adjust and modify their tactics as the campaign develops in the months ahead.
At the moment, it appears that the amendment’s proponents face an uphill battle. But it would be foolish to underestimate their ability to meet this challenge in November.
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ProtectMarriageEquality.com is a resource for recent news about Marriage Equality, in California and elsewhere.
June 21, 2008
On Thursday, President Bush awarded the Presidential Medal of Freedom to General Peter Pace, the former Chairman of the Joint Chiefs of Staff, “for his steadfast leadership, his selfless devotion to keeping Americans safe, and his great courage.”
The award was greeted with widespread criticism because of remarks made by Gen. Pace last year about homosexuality and the “Don’t Ask, Don’t Tell” (DADT) policy.
In a March 12, 2007, interview with the Chicago Tribune, he likened homosexuality to adultery and asserted, “I believe homosexual acts between two individuals are immoral and that we should not condone immoral acts…. I do not believe the United States is well served by a policy that says it is okay to be immoral in any way.”
His remarks sparked outrage among congressional Democrats and gay advocacy groups. According to a National Public Radio report, senior Pentagon officials privately disclosed that the Secretary of Defense summoned Pace to his office after the comments were made public and demanded that he issue a statement. The following day, the Pentagon released the General’s statement, in which he downplayed the importance of his own moral views, but did not apologize for his remarks:
I made two points in support of the policy during the interview. One, “Don’t Ask Don’t Tell” allows individuals to serve this nation; and two, it does not make a judgment about the morality of individual acts. In expressing my support for the current policy, I also offered some personal opinions about moral conduct. I should have focused more on my support of the policy and less on my personal moral views.
Six months later, shortly before retiring, Gen. Pace reiterated his sentiments at a September Senate Appropriations Committee hearing. Saying he sought to clarify his earlier remarks, Pace noted that there are “wonderful Americans who happen to be homosexual serving in the military.” He continued:
We need to be very precise then, about what I said wearing my stars and being very conscious of it…. And that is, very simply, that we should respect those who want to serve the nation but not through the law of the land, condone activity that, in my upbringing, is counter to God’s law.
* * * * *
In response to Pres. Bush’s decision to award Gen. Pace with Presidential Medal of Freedom this week, Aubrey Sarvis, Executive Director of the Servicemembers’ Legal Defense Network (SLDN) said:
Honoring General Pace with the country’s highest civilian award is outrageous, insensitive and disrespectful to the 65,000 lesbian and gay troops currently serving on active duty in the armed forces. Our men and women in uniform are making tremendous sacrifices for our country and are looking for the President to recognize leaders who offer them praise and vision, not condemnation and scorn.
Mr. Sarvis makes a valid point, but perhaps we should actually be grateful to Gen. Pace. After all, most previous attempts to defend DADT have tried to justify the policy with spurious claims — for example:
- that the presence of openly gay and lesbian military personnel would damage unit cohesion and impair the military’s ability to complete its mission
- that sharing living quarters with gay and lesbian personnel would intrude unacceptably on the privacy of heterosexual personnel
- that allowing sexual minority personnel to serve openly would damage the military’s reputation and reduce reenlistment rates.
However, empirical research has consistently failed to support these assertions. A few examples:
- A 2006 Zogby poll conducted with active-duty personnel and veterans indicated that DADT isn’t strongly supported by combat personnel and veterans, and that allowing openly gay and lesbian personnel to serve is unlikely to reduce reenlistment or impair future recruitment. In addition, the poll showed that many military personnel know or suspect that their unit includes gay or lesbian members, and that most of those who knew for certain that their unit included one or more gay members did not believe that the latter’s presence affected either the respondent’s personal morale or the morale of the unit. Based on these and other data, Prof. Belkin argues in a paper recently published in Armed Forces & Society that the policy actually harms the military’s reputation.
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Rather than trying to justify DADT on bogus factual grounds, Gen. Pace gave the world a refreshingly honest account of the real reasons why the US government still clings to the policy. By highlighting the moral worldview on which it is based, he showed that the policy is mainly about religious beliefs and longstanding prejudices, not the laundry list of concerns about the practical impact of a policy change that are routinely cited by DADT defenders.
Of course, it may not have been Gen. Pace’s intention to provide such clarity about the real roots of DADT. But perhaps he nevertheless deserves recognition for it.
And, since past Medal of Freedom awardees from within the Bush administration have included former CIA Director George Tenet, former Iraq administrator L. Paul Bremer, and Gen. Tommy Franks — all of whom have been strongly criticized for their roles in the current Administration’s early Iraq decisionmaking and policies — perhaps Gen. Pace is in the right company.
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For further discussions of social science research relevant to DADT, consult the “Publications” page on the Michael D. Palm Center website at the University of California, Santa Barbara
For more information about DADT, consult the Servicemembers’ Legal Defense Network website.
June 17, 2008
Monday evening, at 5:01 pm, California became the second state to legally recognize marriages between same-sex couples.
Some Biblical literalists may be disappointed that no natural disasters befell the state in the hours immediately following the implementation of the state Supreme Court’s May 15th decision. Indeed, in this quake-prone land where seismologists warn that the next Big One can happen at any time, the first notable earthquake that occurred after 5 pm had a relatively small magnitude — 3.1 on the Richter Scale.
Ironically, the epicenter of that quake was in Kern County, one of only two counties where the Clerk announced that, once marriage equality becomes the law, she will stop performing marriages for any couple — different-sex or same-sex. (In a few other California counties, Clerks didn’t perform marriages prior to the Court ruling and won’t begin to do so now that the law has changed.) The Kern County Clerk reportedly made her decision after consulting with the Arizona-based Alliance Defense Fund, a Christian Right legal organization that opposes gay rights.
Marriage equality opponents who are inclined to seek omens in natural occurrences may be scratching their heads about this one.
Supporting Marriage Equality versus Endorsing Discrimination
Despite the general absence of literal temblors (so far), the next five months promise plenty of figurative groundshaking as religious and political conservatives try to convince Californians to undo the Supreme Court ruling by amending the state’s constitution on November 4.
Statewide opinion polls will be a major source of information about the attitudes of California voters during that time, and many of them will focus on the percentages of Californians who endorse marriage equality versus those who don’t.
However, it’s probably inaccurate to assume that the NO votes on the proposed constitutional amendment will come solely from voters who support marriage equality. Although that bloc constitutes a reliable foundation for the NO vote, they will also be joined by other Californians who, while not ready to endorse marriage equality, aren’t willing to write discrimination into the state constitution.
Interestingly, some data relevant to this point come from two recent polls that sampled residents of New York State. Both surveys included questions about general attitudes toward marriage equality and about New York Governer David Paterson’s recent announcement that he has directed state agencies to implement a February ruling by a State Appellate Court and recognize the marriages of same-sex couples performed outside New York. Paterson issued the order on May 14, the day before the California marriage decision was announced. New York does not currently issue marriage licenses to same-sex couples.
The polls — conducted by the Quinnipiac University Polling Institute from June 3-8, and the New York Times from June 6-11 — differed slightly in their findings. The Quinnipiac poll found a bit more support for marriage equality among New Yorkers than the Times poll (42% vs. 38%), and somewhat greater approval for Gov. Paterson’s order to state agencies (53% approved, compared to 48% in the Times poll). These differences are within the polls’ margins of error.
What’s interesting, however, is that both polls revealed a (roughly) 10-point gap between general support for marriage equality and support for the Governor’s order. If we assume that Gov. Paterson’s action was endorsed by all New Yorkers who support marriage equality, we still must account for another 10 percentage points in support for it. That support had to come from survey respondents who said they don’t favor marriage equality.
In other words, some members of the public don’t endorse full marriage rights for same-sex couples, but nevertheless are supportive of government actions that will effectively provide those rights.
We can see a similar pattern in the recent California Field Poll. When presented with a choice between (A) full marriage, (B) civil unions or domestic partnerships, and (C) no legal recognition for same-sex couples, 45% of Californians chose Option A, that “gay and lesbian couples should be allowed to legally marry.” The interviewers subsequently asked one of two versions of a question about a ballot initiative. For both versions, majorities of respondents (51% and 54%) said they opposed changing the California Constitution to prohibit same-sex marriage. Here again, there’s a gap — 6 or 9 points, depending on how the ballot measure was described. Thus, some Californians who don’t fully support marriage equality are nevertheless unwilling to vote to ban it.
This pattern highlights the strategic importance of distinguishing between opposition to marriage equality and support for an anti-gay ballot measure that tampers with the state constitution. We shouldn’t assume that Californians will vote for the anti-equality amendment simply because they aren’t personally ready to embrace marriages between same-sex couples.
Minding the Gap
One colleague suggested to me that the gap might reflect the fact that many adults believe legal recognition of same-sex marriages is inevitable, and thus see recent events as part of an inexorable trend, one that they don’t wish to resist. There are data to back up this idea. For example, a 2004 LA Times poll found that 59% of adults in a national sample believed that “recognition of same-sex marriage is inevitable.”
In addition, the patterns are reminiscent of a consistent finding in public opinion research. Although not allowing something would appear to be equivalent to forbidding it, people are generally more reluctant to “forbid” than to “not allow.”
In 1941, on the eve of World War II, Donald Rugg published a now classic study in which survey respondents were asked their opinion about public speeches against democracy. Roughly half were asked if they believed “the United States should allow public speeches against democracy,” and the other half were asked “Do you think the United States should forbid public speeches against democracy?” While 62% said the US should not allow such speeches, only 46% said they should be forbidden. This finding has been replicated in numerous other surveys in the years since Rugg’s article appeared.
A similar dynamic seems to be operating in the domain of marriage equality. Voters are less willing to endorse banning marriage between same-sex couples than they are to support simply defining marriage as between a man and a woman.
In 2004, for example, researchers at CBS News conducted an experiment. Roughly half of 1545 poll respondents were asked “Would you favor or oppose an amendment to the U.S. (United States) Constitution that would allow marriage only between a man and a woman?” The other half were asked “Would you favor or oppose an amendment to the U.S. (United States) Constitution that would allow marriage only between a man and a woman, and outlaw marriages between people of the same sex?” (emphasis added by me).
While 59% favored the proposed amendment when it was described simply as allowing only different-sex marriage, only 51% favored it when the language about outlawing same-sex marriage was included.
These differences aren’t huge, but they suggest that voters are less likely to forbid marriage than to simply refrain from allowing it.
Framing the CaMP Act
Thus, it is probably no accident that the proposed constitutional amendment on the November 4 ballot, labeled the “California Marriage Protection Act,” was crafted to avoid explicit references to banning marriage for same-sex couples or denying rights to gay and lesbian Californians. Instead, it is worded to say simply that “only marriage between a man and a woman is valid or recognized in California.”
Opponents of the CaMP Act will do well to stress that voting for the amendment means Californians will be permanently banning (or forbidding or outlawing) all marriages between lesbian and gay couples.
Voters might be reluctant to take the affirmative step of enacting marriage equality through the ballot box. But, now that the Supreme Court has declared the denial of such equality unconstitutional, Californians may also be unwilling to forbid same-sex couples from marrying.
* * * * *
Here are some useful readings about the “forbid/not allow” distinction:
Rugg, D. (1941). Experiments in wording questions: II. Public Opinion Quarterly, 5, 91-92.
Bishop, G. F., Hippler, H.-J., Schwarz, N., & Strack, F. (1988). A comparison of response effects in self-administered and telephone surveys. In R.M. Groves et al. (Eds.), Telephone survey methodology (pp. 321-340). New York: John Wiley & Sons.
Hippler, H.-J., & Schwarz, N. (1986). Not forbidding isn’t allowing: The cognitive basis of the forbid-allow asymmetry. Public Opinion Quarterly, 50, 87-96.
Narayan, S., & Krosnick, J. A. (1996). Education moderates some response effects in attitude measurement. Public Opinion Quarterly, 60, 58-88.
June 12, 2008
On Wednesday, Norway’s Parliament voted 84-41 to make that country’s marriage law gender-neutral, thereby granting same-sex couples the right to marry and to adopt children on an equal basis with heterosexual couples. The new law will also allow the Church of Norway to bless same-sex marriages, although each congregation may be permitted to decide for itself whether to conduct weddings for gay and lesbian couples.
Norway thus becomes the world’s sixth nation to grant marriage equality to same-sex couples, joining the Netherlands, Belgium, Spain, Canada, and South Africa.
With the exception of South Africa, all of those countries are members of the North Atlantic Treaty Organization (NATO). The Norwegian Parliament’s vote is the most recent sign of the widening gap between the United States and its NATO allies on national policies concerning human rights for sexual minorities, exemplified by laws concerning committed relationships and military service.
In addition to the 5 countries with marriage equality, 9 other NATO member countries allow same-sex couples to register their partnerships and thereby enjoy many of the same rights and obligations as married couples — the United Kingdom, France, Germany, Slovenia, the Czech Republic, Denmark, Hungary, Iceland, and Luxembourg. And Portugal recognizes unregistered cohabitation, which gives same-sex couples some of the limited rights (excluding joint adoption) enjoyed by different-sex couples living in a de facto union for more than two years.
Most of the NATO members that recognize marriage or same-sex registered partnerships also permit military service by gay people. In addition, some NATO countries that don’t recognize same-sex relationships nevertheless permit gay personnel to serve in their military. Estonia, Italy, and Lithuania are in this group.
[Note: Greece bans gay officers but permits gay enlisted conscripts, and Portugal has no formal ban on gay personnel but may screen out homosexuals during the induction process. As Profs. Aaron Belkin and Melissa Sheridan Embser-Herbert point out in a recent review of international military policies, "Because of the range of policies, it is, indeed, a complex task to track the status of regulations and customs concerning gays and lesbians in the armed forces around the world." Thus, "it is incredibly labor intensive to determine with great accuracy what a country permits or prohibits by law and what really happens on a day-to-day basis. Not only do laws change, but the application of the law may vary from one location to another."]
Some NATO countries neither recognize same-sex relationships nor permit military service by sexual minorities. They include Bulgaria, Latvia, Poland, Romania, and Turkey.
And, of course, the United States.
Our federal Defense of Marriage Act (DOMA) expressly prohibits the federal government from recognizing legal marriages or civil unions between same-sex couples. And our military policy (known as “Don’t Ask, Don’t Tell” or DADT), while ostensibly allowing gay and lesbian personnel to serve in secrecy, has resulted in widespread antigay harassment and discharge of sexual minorities. This has continued even as the military has lowered its standards in order to meet enlistment goals — for example, by granting “moral waivers” to convicted felons and recruiting individuals lacking a high school diploma.
Social science research has failed to support the premises on which DADT is based, and opinion polls generally indicate that the US public favors allowing sexual minority military personnel to serve openly. Even onetime supporters of DADT have recognized that it hasn’t worked. Former Senator Sam Nunn and the late Charles Moskos both expressed second thoughts about the policy’s implementation. Gen. John M. Shalikashvili, chairman of the Joint Chiefs of Staff when DADT was adopted, now argues for its repeal.
And, while a majority of the US public still opposes marriage equality, most American adults favor some form of legal recognition for same-sex couples.
Yet, Congress has shown little willingness to change current laws. In an Associated Press story today, Anne Flaherty reported that congressional Democrats have been reluctant to push a legislative repeal of the DADT law, citing resistance from their more conservative members and the inevitability of a veto by President Bush. There are no immediate prospects for Congress to repeal DOMA.
All of this might change if Barack Obama is elected and the Democrats gain a significant number of new congressional seats in November. Whereas presumptive Republican nominee John McCain has endorsed DADT, Sen. Obama has called for its repeal. Nevertheless, Sen. Obama hasn’t made DADT a major talking point in his campaign, probably because he wants to avoid repeating President Bill Clinton’s missteps in 1993 when DADT was enacted into law. (Prior to that time, the military’s ban on service by gay personnel was a matter of Executive Branch policy, not federal law.) Sen. Obama has also expressed support for limited recognition of same-sex couples and the repeal of DOMA, although he opposes marriage equality. Sen. McCain opposes marriage equality and, apparently, civil unions and similar legal recognition for same-sex couples.
For now, the gay citizens of Norway — including those in the military — can look forward to marrying. Meanwhile, in the US, marriage equality exists in only two states, with its status in California threatened by a major ballot initiative. And the Servicemembers’ Legal Defense Network (SLDN) has had to warn active-duty military personnel that marrying someone of the same sex in California or Massachusetts means risking their military careers, noting that the federal statute enacting Don’t Ask, Don’t Tell clearly states “A member of the armed forces shall be separated from the armed forces” if “the member has married or attempted to marry a person known to be of the same biological sex.”
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