(Court TV) —
Court TV Host: While gay marriage threatens to become an issue in
this year's presidential campaign, it is already a big issue in
Massachusetts, whose legislators are meeting today to debate an amendment to
the state constitution that would prohibit same-sex marriages. Discuss the
issues with Pulitzer Prize winning journalist David Moats, author of Civil
Wars: A Battle For Gay Marriage.
Court TV Host: Welcome, David Moats...thanks for being our guest
today.
David Moats: Happy to be with you today.
Question from Judgemental: What are the
differences between civil union and marriage?
David Moats: The only difference is in the word, really. The
Vermont civil union law says at the top that all rights and privileges
provided by marriages also apply to unions. The big difference is that civil
unions aren't recognized by other states or the federal government.
Question from unorthodox: What is the compelling
state interest in prohibiting gay marriage?
David Moats: The opponents of gay marriage argue that
the state has an interest in promoting stable families and the welfare of
children and, because marriage is linked to procreation, they believe that
it should be limited to heterosexuals. So the procreation argument was the
one argument that the lower court in Vermont said had merit, and the Supreme
Court in Vermont disagreed, pointing out that there are plenty of
heterosexual couples who have no interest in procreation, while there are a
lot of lesbian and gay couples who are raising children, and that their
families deserve any of the protections of any other family. Other than the
procreation argument, the opponents rely mainly on tradition and what they
called the "plain" meaning of the word marriage. So that is the argument the
state made.
David Moats: For example, I describe in my book one lesbian couple
who had a fourteen month old child. They were in a car crash, and the
biological mother died, and the other mother had to fight in court to
maintain custody. The parents of the woman who died had taken over custody,
but the will of the woman who died had assigned custody to her partner. So
that was a good example for one of the lawyers in the Baker case in Vermont,
of why lesbian and gay couples needed the rights of marriage.
Question from JK2004: President Clinton already
signed the Defense of Marriage act in 1996, which outlaws gay marriage. What
else would a U.S. constitutional amendment do that the DoMA doesn't?
David Moats: The Defense of Marriage Act allows states to refuse
to recognize gay marriages from other states -- but it doesn't outlaw gay
marriage. A constitutional amendment could outlaw gay marriage, and it could
even outlaw civil unions. If people from other states go to Massachusetts
and get married, and return to their home states, and seek to have their gay
marriage recognized, the Defense of Marriage Act may well be challenged in
court on the basis of the "full faith and credit" clause of the
Constitution.
Question from Judgemental: Is Massachusetts the
only state at the present time considering making gay marriage legal?
David Moats: There are court cases in New Jersey and Indiana that
could also legalize gay marriage. The New Jersey case is further advanced
than the Indiana case, and freedom-to-marry advocates are hopeful about the
NJ case. In other states such as California, the legislatures have approved
domestic partnership benefits, for partners who register with the state.
These are not the same as civil unions, because they don't entail
marriage-like ceremonies, but California's benefits are broader than
anywhere else.
Question from eowyn: Our country is built on a
Judeo-Christian government The bible itself says marriage is the union of a
man and woman to be one and to procreate, Why should we change these beliefs
for one group of people?
Question from Incognito: Doesn't gay marriage
make a mockery marriage between a man and woman who want to have
children?
David Moats: Our rights are secured by the Constitution, which is
the secular charter of our nation and our states, and no religion has the
right to impose inequality; and where courts find impermissible inequality,
it is their job to correct it. Many heterosexuals in Vermont point out that
their marriage is damaged in no way when their homosexual neighbors gained
state recognition for their partnerships. They argue that marriage is such
an important institution that gay and lesbian couples can benefit from it as
well. No one is hurt by extending rights to everyone.
Question from Incognito: Does the gay marriage
issue have to be approved state by state?
David Moats: Freedom-to-marry advocates are pursuing it state by
state, because they don't trust the federal courts, and they don't trust the
conservative Supreme Court. Often state constitutions can be construed to
provide more expansive rights than the federal constitution. So, also a
state by state strategy allows people from one state to travel to a state
where gay marriage has been approved, and then challenged the laws in their
home state.
Question from Missed_Q_Schizophrenic: David do
you think that by signing the bill in Vermont that Governor Dean ended his
political career, as it looks like it did based on these primaries?
David Moats: When he signed it, I wrote an editorial saying he had
probably signed away any chance to run for president. But he turned it to
his advantage, portraying himself as a civil rights champion, saying, who
else would have had the courage to sign such a bill? He won a significant
support early on among gay rights groups, and that helped him get started in
his campaign. It's hard to say how this would have played out in the
campaign if he had continued as front runner. I don't think it was much of a
factor in the decline of his campaign. He was unwavering in his support for
the civil unions law during the legislative debate. He came out early for
civil unions, as opposed to marriage, and stuck with it. When the Senate
leadership wanted to delay action, he told them no, they needed to move
ahead.
Question from AndyB: Really, if you really
consider the separation of church and state, isn't marriage itself
unconstitutional?
David Moats: Marriage is a confusing issue because church and
state are entangled. Priests and ministers are commissioned by the state to
carry out both a secular and a sacred function. So people have a hard time
separating the civil from the religious aspects of marriage. In fact,
religious leaders are free to carry out civil unions or not, according to
the teachings of their faith. And judges and justices of the peace are also
empowered to carry out civil unions. Some people argue that anyone getting
married by a civil official should be given a civil union, gay or straight,
and that anyone getting married in a religious ceremony, gay or straight,
should be given a marriage. That argument has certain logical appeal but is
not politically likely.
Question from habias: Are there any other
countries world wide that recognize gay marriages?
David Moats: The Netherlands, Belgium and Canada recognize gay
marriages. Most of the other Western European countries recognize some form
of domestic partnership. France has something called "pactes civiles" which
are open to heterosexual and homosexual couples. It is a status short of
marriage.
Question from Judgemental: What was the law in
Ohio which was just passed? How does that affect the Massachusetts case?
David Moats: Ohio passed a law last week refusing to recognize any
gay marriage from any other state, and refusing to provide any domestic
partnership benefits to state employees, gay or straight, who are not
married. That was probably a reaction to Massachusetts. A similar backlash
is moving forward in other states, I believe, including Missouri. In all, 38
states have passed laws refusing to recognize gay marriages.
Court TV Host: Your book focuses on the court battle and then the
legislative battle in Vermont -- could you compare it to the battle now
being fought in Massachusetts?
David Moats: The arguments were somewhat different. The plaintiffs
in Vermont were seeking equal rights under a clause in the Vermont
constitution which prevents benefits from going to particular groups and not
others. So the Vermont Supreme Court ruled that the legislature could
provide those benefits equally through marriage or something like marriage.
In Massachusetts the arguments were based more on the right to privacy, and
the freedom to make choices about one's intimate relationships. And it was
based on the declaration of rights in the Massachusetts constitution. So it
was more a matter of equal rights than of equal benefits. And the courts
found that civil unions would not provide equality of marriage rights,
because the plaintiffs wanted to marry. The court found that civil union
would be a second-class status. The lawyer who argued the case in
Massachusetts was part of the team that worked on the Vermont case, and she
crafted her argument to avoid an outcome like that in Vermont -- she didn't
want the court to settle for civil union. And the court refused to do
so.
Question from Missed_Q_Schizophrenic: David, do
you foresee in the future, theSouthern states ever approving of gay
marriages?
David Moats: It's a question of what their state constitutions say
and the kind of case that plaintiffs in those states can mount. I think the
assumption is that because the southern states are more conservative and
more religious that they would not approve of such a thing, but equal rights
are an issue in all states, and there are significant gay populations in all
states. Judges in southern states may take into account public sentiment and
conclude that the public is not ready -- those kinds of considerations often
play a role -- but the issues of principle are the same.
Question from Judgemental: Do you think that
there is a way to help heterosexuals feel more comfortable with the
homosexual marriage, isn't that the core of the problem? People tend to not
accept things they are uncomfortable with?
David Moats: In Vermont, many gay and lesbian people came forward
very bravely with their stories, testifying before the legislature, showing
that gay and lesbian people were like anyone else. Their sincerity and
honesty and courage persuaded many middle-of-the-road legislators to support
civil unions. The more that the human story is told, the less threatening
that gay rights issues become. But it's hard, and a number of people who
came forward to tell their stories, acknowledged that it is hard. In my
book, I quote Martin Luther King, who used the phrase, moral force -- the
moral force of the testimony of regular people was persuasive.
Question from Judgemental: Do you think civil
unions will be put in place, to keep peace so to speak the same way that
"don't ask don't tell" was put in place to calm the military issue?
David Moats: Civil unions are a compromise that provides a zone of
comfort for people uncomfortable with gay marriage. In that sense, it helps
keep the peace. In Massachusetts, civil union is not sufficient, according
to the court, so the issue is in danger of becoming polarized. In Vermont,
even the issue of civil unions was bitterly contested, and the state become
extremely polarized. But now, civil unions have become an acceptable "middle
of the road" step, supported by a broad public, while gay marriage remains
extremely volatile.
Question from unorthodox: civil union separate
but equal
David Moats: Those who support gay marriage as opposed to civil
unions equate the second class status of civil union with the separate but
equal doctrine used to justify the Jim Crow South. In fact, separate but
equal was a doctrine used to mask inequality -- civil union is a name used
to mask equality. The fact that that masking seems necessary is hurtful to
many gays and lesbians, but the equality of civil unions is far different
from the inequality of the Jim Crow South.
Question from eowyn: If a gay couple is married
in another country is it recognized here In the US?
David Moats: No, as far as I know. I haven't read about any
challenges to that so far. I would expect that people married in Canada may
try to seek recognition -- I don't know where that question stands.
Court TV Host: We've heard a lot of people predicting that the
issue of gay marriage will figure prominently in the presidential election
-- what's your view?
David Moats: The religious right will try to make an issue of it.
President Bush will try to gain advantage from it. He runs the risk as
coming across as mean spirited and intolerant. John Kerry and the other
Democrats support civil unions, which has brought acceptance -- there is no
reason to believe that a wide majority of Americans supports a
constitutional amendment banning gay marriage. So Kerry may not suffer from
opposing one. The strong feelings among the religious right may help bring
out voters that are part of Bush's conservative base -- so that may work to
his advantage. Opposition to gay marriage among some African-Americans and
Hispanics may also hurt the Democrats. So there is real potential danger for
the Democrats. President Bush is playing it cagey on this issue, suggesting
he might support a constitutional amendment, though he refused to say
anything about it in his State of the Union address. He continues to suggest
he might support an amendment -- he suggests that judges are imposing their
arbitrary will. Freedom to marry advocates would argue that it is the
dictates of tradition that are arbitrary.
Court TV Host: Any closing thoughts?
David Moats: The Vermont example shows that democracy can work
when people are respectful. Respect means really listening and hearing what
your neighbors have to say about their lives and their demands for equal
rights.
