Gay marriage (1996) | THINK TANK

Ben Wattenberg: Hello, I’m Ben Wattenberg. Homosexuals could be on the verge of winning
a major legal victory, the right to marry. Now, society’s ideas about marriage have
evolved over the centuries, but is legalizing gay marriage a good idea? Joining us to sort through the conflict and
the consensus are William Eskridge, professor of law at Georgetown University and author
of “From Sexual Liberty to Civilized Commitment: The Case for Same-Sex Marriage”; Hadley
Arkes, professor of law at Amherst College and columnist for the journal Crisis; Torie
Osborn, author of the soon-to-be-published “Coming Home to America: A Road Map for
Gay and Lesbian Empowerment” and former executive director of the National Gay and
Lesbian Task Force; and Anita Blair, executive vice president and general counsel for the
Independent Women’s Forum and an attorney specializing in discrimination law. The topic before this house: gay marriage. This week on “Think Tank.” The debate over same-sex marriage is already
raging on the state level. In 1991, three gay couples in Hawaii were
denied marriage licenses by the state. They sued. Most legal scholars agree that when the Hawaiian
Supreme Court rules on the case in 1997, it will say that marriage between homosexuals
is indeed a right protected by the 14th Amendment of the Constitution. Other states might then have to honor such
marriages. In anticipation of the Hawaii ruling, five
state legislatures have already passed bills outlawing gay marriage, 14 have rejected so-called
antigay marriage laws, and in 13 states, the issue is under debate. If marriage between gays becomes the law of
the land, married gay couples will be afforded all the legal benefits that apply to heterosexual
married couples, including spousal rights to Social Security, Medicare, private pensions,
the right to file joint tax returns, and the right to inherit each other’s property. Many gays say it’s about time. Opponents say that allowing gays to wed is
wrong and will be harmful. Thank you, ladies and gentlemen, for joining
us. Let’s go around the room, starting with
you, Bill Eskridge. First obvious question: Is same-sex marriage
a good idea? William Eskridge: It is, Ben, primarily for
reasons of equality. Legal marriage entails dozens of rights, benefits,
and obligations which are routinely available to different-sex couples. Those same benefits, rights, and obligations
should be available on the same terms to lesbian and gay couples as a guarantee of their equal
rights in our polity. Ben Wattenberg: Okay. Torie Osborn. Torie Osborn: Yeah, I agree. I think it’s a question of fundamental fairness. Denying any people who are willing to accept
the responsibilities of marriage, which is about love, caring, commitment, long-term
commitment, should be able to have the right to be married. It’s a question of — I mean, denying our
fundamental humanity is not good for society. Ben Wattenberg: Okay. Hadley Arkes, I think you disagree. Hadley Arkes: Well, a fellow in Chicago wrote
me a letter saying, “I love my sister, but I don’t think it’s appropriate that that
love be manifested in a marriage. And there’s no diminution of equality or
denial of equality when we suggest it’s inappropriate.” When you ask about the good of marriage, we
used to understand that the good of the thing was implied in its nature and its end. And marriage has to be connected — and we’ll
have a chance to pursue this, but marriage has to be connected to that sense of sexuality
imprinted in our natures, in the ineffaceable fact that we are born men or women. The purpose or meaning implicit in that sexuality
is the notion of begetting, and for compelling reasons, we’ve found the prospect of begetting
— finding its most apt reflection in a framework of lawfulness that provides the ground on
which parents are committed to the nurturance of their children for the same that they are
committed to one another. Ben Wattenberg: Okay. Anita Blair. Anita Blair: There is no doubt that marriage
is the institution that civilizes men. But it civilizes them in relation to women
and children by requiring them to stay with them, protect them, and bring them on up into
adulthood. Thus, marriage is the foundation of our civilization. If we want to be around the day after tomorrow,
we need to maintain marriage as the structure that holds together a man and a woman and
their children. Ben Wattenberg: Okay. Let’s just begin and set a framework for
our viewers here about the legal situation, and then we will get on to some of these more
philosophical, cultural, and cosmic ideas. If the Hawaii Supreme Court rules that the
Constitution protects gay marriage, does that mean that all the other states have to acknowledge
such marriage? And could people then go to Hawaii, get married,
and then — as people used to go to Las Vegas and get divorced and then be divorced everywhere
else? William Eskridge: Ben, that’s going to be
a source of litigation and contention. You would first look to state law. In some states, there is a law that provides,
if our citizens go to another state and engage in a valid marriage in that state, we will
recognize that marriage as a matter of state law. Okay? So for many states, the state law will solve
the issue. For some of the states, such as the five states
that have passed statutes specifically prohibiting same-sex marriages, then the issue will be
litigated at the federal level. There is a federal statute, 28 US Code, Section
1738, and then the federal constitutional provision, the full faith and credit clause. Ben Wattenberg: That full faith and credit
clause meaning that the states will extend full faith and credit to certain sorts of
legislation by other — driver’s licenses, that kind of thing. William Eskridge: Well, it particularly provides
that public acts, records, and judgments of one state will be accorded full faith and
credit by other states. And the question will be: Is the Hawaii recognition
of a same-sex marriage entitled to such protection of the full faith and credit clause? And then secondly, if it is entitled to that
protection, is there some kind of exception, such as a public policy exception, which will
trump that? Hadley Arkes: When states refuse to acknowledge
incestuous marriages and are not obliged to acknowledge them, it has nothing to do with
the records. It’s the question of whether there is something
in the policy of the state which may set up a barrier to the recognition of that marriage. Torie Osborn: I think the best analogy, really,
is interracial marriages. I mean, we’re talking about an evolving
social acceptance of gays and lesbians as human beings. I mean until, you know, 10 years ago, less
than 25 percent of Americans even thought they knew somebody who was gay or lesbian. This issue is one that is still emerging,
that’s just really come in front of the American people. Public opinion is very divided, but changing
fairly rapidly, so — Ben Wattenberg: But for the moment, we’re
talking about the courts, which in theory are interpreting law, not interpreting public
opinion. Torie Osborn: Right, but in 1967, when the
courts finally struck down — officially struck down the bans against interracial marriage
that were — one by one, the states were working against them, but it wasn’t until
1967 that the Supreme Court ruled. And in 1968, 70 percent of Americans still
opposed interracial marriage. So sometimes the courts are ahead, and sometimes
the courts are behind. And what we’re looking to is for the courts
to lead on this. Anita Blair: The court continues to treat
race differently than sex, and even — you know, you lumped together race, sex, and sexual
orientation before. William Eskridge: No, Hadley Arkes was doing
that. Anita Blair: Well, yeah, and the court continues
to maintain very distinct levels of review, as it were, between race classifications,
which are subject, as you said, to very strictest scrutiny, and gender classifications, which
are subject to something called intermediate scrutiny, which allows government much more
leeway in devising classifications and defining differences between people on the basis of
their sex. Ben Wattenberg: Would gay marriage, were it
legalized, tend to, quotes, “normalize” homosexuality? Torie Osborn: I think what it would do is
— I mean, “normalize” is a funny word — I think what it would do is to provide
the public support for what is in fact a private commitment, long-term commitment that exists
out there. And I think it’s unfair. I mean, you have hospital visitation issues;
you have guardianship issues. I can tell you story — heartbreaking story
after heartbreaking story of people whose lovers have had strokes or aneurysms who haven’t
been able to visit them in the hospital. And 70 percent of Americans support those
kinds of rights for people. Ben Wattenberg: Yeah, but you can have statutes
to deal with that short of marriage. I mean, you know, that’s — Torie Osborn: You could, but I mean I can
tell you many, many stories of people — Anita Blair: Indeed, you could execute a power
of attorney, it seems to me. Torie Osborn: Right, but if you happen to
leave it at home when — Anita Blair: You can own your house in joint
tenancy. I mean, I could do that with anybody if I
wanted to. I can write a will that leaves my property
with somebody. Torie Osborn: Still it’s a question of fairness. It’s a question of fairness. Ben Wattenberg: I mean, could there be something
— Anita Blair: It’s a question of paperwork,
largely. Ben Wattenberg: Could there not be something,
seeing as this obviously is a very controversial issue, that was, I mean I guess call it a
domestic partnership, certificate, or whatever you want to call it, that would be a legal
instrument? Or it would be a contract — it would be
like a blank contract and you filled it in and people can say what they want to in a
contract, but it would not involve the symbolic legal sanction of the state. Torie Osborn: What are people afraid of? William Eskridge: No, no, let me object to
that, Ben. You’re assuming — Ben Wattenberg: You can’t object to it. It’s only a question. William Eskridge: I want to resist your question
about these benefits being formed contractually, and I want to resist your question about will
this normalize homosexuals. And I start with the proposition, we are — Ben Wattenberg: I put “normalize” in quotes. William Eskridge: — we are normal already. Ben Wattenberg: I put it in quotes. William Eskridge: I understand that, Ben. Ben Wattenberg: Okay. I purposely — William Eskridge: But we are normal already. And one of the things that’s normal about
gays and lesbians is that we form loving relationships, and we’re also overwhelmingly middle class. Very few middle-class people can afford the
lawyers that you need to enter into these contractual relationships. Torie Osborn: Oh, I think Ben is suggesting
that it be — William Eskridge: And that’s one of the
advantages of marriage is that marriage — Torie Osborn: — simplified. William Eskridge: — simply by entering into
marriage, which is an important step, you get dozens, if not hundreds of benefits off
the rack. You don’t need a lawyer to get these benefits. And that is of great importance to the normal
middle-class families, whether they’re same sex or different sex. Anita Blair: In that case, what do we do to
hold marriage up? What do we do to encourage our children, who
99 percent are going to exhibit heterosexual tendencies — William Eskridge: That figure is wrong. Anita Blair: — to enter into a lifelong
— Torie Osborn: 95 percent. Anita Blair: Well, whatever, far more than
— you know, the vast, vast majority of our children are going to be attracted to the
opposite sex. What do we do to encourage them to form a
lifelong commitment to one individual and raise children safely and securely within
that relationship? Torie Osborn: But there’s no scarcity economy
of marriage or marriage license. There’s no scarcity of love. I mean, this notion that somehow gay marriage
threatens the heterosexual institution is completely illogical. Ben Wattenberg: Let’s get into that because
— Anita Blair: Well, it does, in fact, if you
have children. Because if you have two men or two women and
they have a child or children between them, there are other people who are a part of that
family. There has to be the mother or father, the
biological mother or father of that child, who is again, you know, an extended part of
this marrige, and so that is a threat to heterosexual marriage because heterosexual marriage is
founded on two people only and their own biological child. Ben Wattenberg: Let’s get into the question. If you legalize gay marriage, aren’t you
saying to young people who may be somewhere on this continuum, hey, it’s okay, and encouraging
youngsters who would not otherwise be homosexual to be homosexual? William Eskridge: The controversy over genetic
versus early environmental, very few, if any, respectable people believe that parents or
society can determine or much influence the sexual orientation of their children. That’s why I resist the question. The way I think — the better question — Ben Wattenberg: Hold on. Wait a minute, wait a minute. Hold on. Hang on. Gay scholars and historians maintain, for
example, that in ancient Greece, homosexuality was much more prevalent than it is today. They had the same genetic makeup that we have
today. What caused the difference? Torie Osborn: It wasn’t more prevalent. Ben Wattenberg: Excuse me? Torie Osborn: It was not more prevalent. It was more sanctioned; it was allowed, social
sanctioned, and it was more out in the open. It isn’t as if there were in fact more people
with sexual orientation or with gay or lesbian ideation. I mean, there’s been pretty much a constant
prevalence. The question is whether the society has recognized
it, whether those relationships are out in the open. And where we are historically is that this
is an issue that is still being grappled with. People don’t even know that their teachers,
their social workers, their librarians, their neighbors are gay or lesbian, and until they
confront that, the prejudice will continue. Ben Wattenberg: All right, let’s hear from
this side of the semicircle for a moment here. Anita Blair: Well, does knowing it make any
difference? It shouldn’t. Honestly, it shouldn’t. I mean, if I’m dealing with someone who
happens to have a different sexual orientation than I do, I don’t care. If that person does his job, we can be friends. But I believe that our society — Torie Osborn: Then they ought to be able to
get married. Anita Blair: No. Marriage is about reproductive sex. Torie Osborn: Well, then you would deny marriage
licenses to straight people who don’t have kids. Anita Blair: I wouldn’t object to a law
that said that. I wouldn’t object to a law that said we’re
not going to give you the benefits of marriage unless you’re intending to have children. It’s just very difficult to — Torie Osborn: Well, I think that wouldn’t
fly. Anita Blair: It’s just very difficult to
parse out those people from the other people. Ben Wattenberg: So you would say that a person
who is sterile should not have a right to get married? Anita Blair: Well, not — I wouldn’t — I
would not find an objection in social benefit to saying that marriage should be reserved
for people who have children or are intending to have children, because that is why we give
people these benefits. We don’t give people benefits merely for
living together or loving each other. Ben Wattenberg: So you are — Anita Blair: We give them benefits because
they’re likely to have children. Ben Wattenberg: Anita? Anita Blair: Yeah, sorry. Ben Wattenberg: Are you answering my question
in the affirmative, that yes, you would approve of a law that would not allow a sterile partner
to engage in a marriage? Anita Blair: I would not propose such a law,
but if someone came up and said, you know, “Social Security is going broke. We’re going to have to reduce the number
of marriages in this country, and we’d like to do it by this method, which is going to
meet the same kinds of — it’s going to be narrowly tailored to help us conserve our
welfare and Social Security resources.” I would be hard-pressed to argue against it. Hadley Arkes: We understand that the crime
of rape would not be diminished in the slightest in significance if we found out that the woman
happened to be sterile. The assault, the intrusion on her reproductive
faculties would be — the event would carry the same meaning because it’s implicit in
the bodily act. We used to understand that there was this
natural correspondence — even the dimmest among us could understand — between the
notion of a wedding and the coupling of the persons which then expresses itself in the
begetting of a child who represents, who embodies the merging of both of them. Now, that’s implicit in the act. Now, again, we have to — that informs the
understanding of the marital act, even if the couples happen to be sterile. Torie Osborn: But we also assumed that they
were both white until the ’50s in this country. Hadley Arkes: Yeah, but — no, that is — you
know, that’s another thing that just inflames black people, to make a connection between
race, where we cannot determine anything about the character of people, versus, you know,
homosexuality, in which you identify people by the acts they perform. Torie Osborn: No, it inflames conservatives
and bigots. Hadley Arkes: The acts they perform, not making
assumptions about — well, look, I just — I want to keep the thread of these questions. Once again, it’s not a matter — no one’s
doubting relations of love between men and men, as no one doubts the genuine relations
of love between grandparents and grandchildren. And we don’t think those loves are diminished
as loves by the fact that they’re not recorded in marriage. The difficulty here for us is this: that in
principle it may not be possible for us to detach the notion of marriage from the natural
teleology of the bodies, from the fact that it takes two to beget a child. We can’t do that. We cannot be able to accommodate what you’re
after here without bending out of shape, so to speak, the logic of marriage so that we
have to license many other things. So, for example, to pose the question you
know I’ve posed, once we detach marriage from the relations between a man and a woman,
what is it that confines marriage to couples? What is the ground of principle on which the
law then says to the people who come in saying, “Our love is not confined to a duo. It’s woven together in a larger ensemble
of three or four.” And I assume if we permit that, we can’t
confine it only to people of the same sex. It has to be — [Cross talk.] Torie Osborn: But this assumes a domino effect. Ben Wattenberg: As in fact, polygamy was once
legal, and it is now illegal. Hadley Arkes: Yes. Ben Wattenberg: So society does — I mean,
let me ask this side, would you propose that — Torie Osborn: But there’s no natural domino
— Ben Wattenberg: — polygamy be — Hadley Arkes: What’s the ground of principle
on which you say that? William Eskridge: If I may answer that question? Ben Wattenberg: Go ahead. William Eskridge: There is a — Hadley Arkes: No, because the answer is not
— William Eskridge: Well, if I may answer that
question. Hadley Arkes: Yes, but Professor Eskridge
— William Eskridge: The answer to that question
is the following, and that is that the Hawaii decision says that same-sex marriage is required,
based upon the sex discrimination entailed in Hawaii’s ban of a same-sex couple from
getting a marriage license. By making, as Hawaii does, the decision turn
upon the sexual classification, you are not opening the way to extending marriage in the
directions that Hadley is talking about. Ben Wattenberg: The case is made that were
homosexual marriage allowed, it would tend to make homosexuals more traditionally minded,
more conservative, more family oriented. Why are you all against that? Hadley Arkes: Well, you could apply, again,
the same sort of thing to all these other relationships. A mother and her grown son, it could make
them more committed, more stable. The question is: What are the appropriate
relations for marriage, and can we accommodate this arrangement, once again, without obliterating
the principles that confine marriage to the coupling? Now, I don’t think that my friends here
are really — I don’t think that gay activists are really interested in licensing polygamy
and incestuous marriage. I don’t think that’s the concern. But I think you’ve revealed what the problem
is. You don’t think there is a natural ground
that defines the limits or the channels of sexuality. You think it really is a matter of convention
and positive law. And if it is merely a matter of convention
and positive law, then we could have, as Ben suggests, the incestuous marriage if you felt
more like it, if you were less unhappy about it, or you could license the marriage of three
or four or cross-species involvements. Ben Wattenberg: Let me — am I interpreting
your position correctly on this side of the semicircle, to say that you are antidiscrimination
and anti-legitimization and glorification of homosexuality? Is that — if we strip away all of everybody’s
arguments on both sides of it, you all don’t want to further legitimize and perhaps, as
you might phrase it, glorify homosexuality. Anita Blair: As you said, normalize. Ben Wattenberg: Yeah. And you are really saying, after we take away
all the arguments, yes we should. Is that fair to say that’s the — beneath
this argument? Torie Osborn: It’s fundamentally about fairness
and humanity and people’s right to love. If a society controls people’s right to
love, they can, you know, infinitely degrade them. Slaves were not allowed to marry; people of
color and white people were not allowed to marry until the ’50s began to fall away. And we are exactly in that same place. We are an issue that is new. Public opinion is in flux on the issue. Forty-five percent of Americans don’t know
quite what they think on this issue, and it’s a question of evolution. Ben Wattenberg: New topic and last topic. Headline: “Gay Marriages Likely to Become
Hot-Button Issue in Presidential Race.” There seems to be, should I say, a seminal
difference between the parties? [Laughter.] Now, how is this going to play out? Is that going to be — you’ve been in the
political wars, Torie. Is that going to be a so-called wedge issue,
hot-button issue? Torie Osborn: Well, already what we’ve seen
— Ben Wattenberg: If you were a Republican,
would you say, “Whoo, I got one.” Torie Osborn: Well, what we’ve seen — there’s
been some polling, actually. The religious political extremists have consistently
tried to put this issue forward in Iowa during the primary season, and so forth. What we’ve found is the voters, frankly,
don’t want to hear about it. They don’t think that this is an issue. Seventy-five percent of them either don’t
care what a candidate’s position is on the gay marriage issue or they are against even
it being politicized. Ben Wattenberg: As a political tactician — Torie Osborn: I would advise and I think we’re
already seeing this — I don’t know what’s going to happen in Congress in the next month,
but I would advise that the Republicans as well as the Democrats basically not make this
issue a hot-button issue and — Ben Wattenberg: No, but suppose one side makes
it a hot-button issue and you are advising a Democratic candidate, let us say. What do tell him to do, or her? Torie Osborn: Well, I would love to tell President
Clinton to take a stronger position in favor of letting the Hawaii Supreme Court decide
in favor of gay marriage and — Ben Wattenberg: And you think that would be
politically helpful to him? Torie Osborn: I think it wouldn’t matter. I don’t think it will hurt him. I think the radical right and political religious
extremists are trying to make it a bigger issue than the voters really care about, which
is why I think we’re seeing it, in fact, die down. Ben Wattenberg: We’ve used some tough words
here — radicals, extremists. Anita Blair: Well, the polls in Hawaii, where
this is a top-of-mind issue, show about 70 percent of people opposed to gay marriage. Not that they don’t care, but that they
are opposed to it. And I did a little sampling just walking down
the street the other day, and people invariably say no. Hadley Arkes: People are aware of the fact
that this is going to be — pardon the expression —thrust upon us during this season, and
once again, the court is going to prepare it for us. This is way for the political class to bring
this back into the political arena. I don’t see your advice to Clinton as to
what he’s going to do about this bill when it comes down the pike. My hunch is that he’s going to make the
sounds of the new Democrat and find some way of signing it. Anita Blair: Call it states’ rights or something. William Eskridge: I think — Anita Blair: It will be his, you know — William Eskridge: Ben, the discussion you’ve
introduced I think greatly overstates the value of this issue in the coming presidential
campaign. Ben Wattenberg: That is what they said about
the Pledge of Allegiance and about Willie Horton and about a lot of other things. Anita Blair: I think you will be surprised. William Eskridge: Well, the Willie Horton
did end up being a big issue. The Pledge of Allegiance didn’t, okay? My prediction, for what it’s worth — Ben Wattenberg: We can argue about that. Yes? William Eskridge: — is a Republican prediction,
is that a primary principle of the Republican Party today is federalism. Marriage is defined at the state level. There certainly are federal statutes, yes,
but marriage is, on the whole, defined and thought out at the state level. Ben Wattenberg: He’s talking about federal
— Hadley Arkes: That federal law does not impair
the federal structure. [Cross talk.] William Eskridge: And I think Clinton will
sign a bill if it goes to him, and I think there will not be a big deal about it. And then in the general election, there might
be some noise made about it, but this is going to be decided in Hawaii, and not until after
the election. Ben Wattenberg: Okay. It is quite an issue — legal, cultural,
political. We will be hearing a lot more about it this
year. Thank you, William Eskridge, Anita Blair,
Torie Osborn, and Hadley Arkes. And thank you. Please send your comments and questions to
New River Media, 1150 17th Street, NW, Washington, DC 20036. Or we can be reached by email at [email protected]
or on the World Wide Web at For “Think Tank,” I’m Ben Wattenberg. Announcer: This has been a production of BJW
Inc., in association with New River Media, which are solely responsible for its content.

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  1. Define marriage, please. A man & a man cannot conceive. If you have rejected Biblical and social norms, why would you want to engage in a religious ceremony before God?

    The adjective marīt-us -a, -um meaning matrimonial or nuptial could also be used in the masculine form as a noun for "husband" and in the feminine form for "wife".[4]

  2. Marriage is garbage. Any straight or gay couple with a inkling of brain cells between them can figure this out. Take the state out of marriage and it becomes a personal symbolism, but when the state is involved it becomes a contractual obligation for the weaker of the partners to hold against the stronger.

    This leads to embitterment from the stronger spouse. It gives the weaker spouse incentive to not only continue being weaker, but to screw over the stronger spouse when they are no longer jumping through all the hoops they have inadvertently put up. The state should have never been involved with marriage to begin with, but hey when has that ever stopped them.

    Again, marriage is garbage.

  3. At 17:40 he starts questioning what would happen next with marriage.
    The pro gay marriage side of the argument trys to say "oh such a thing would never happen" when he looks at marriage being between two parties. Yet, we can look at what has happened in present time and see marriage can be literally anything now.

    Between a man and a woman, a man and a man, a woman and herself, a man and robot, even a woman marrying a ghost. It no longer holds any sacred ground that it claims to hold. If someone is reading this and has any sort of critical thinking ability they would be able to see this is the case.

    The joke is on all those who try to hold these same values true. As if we are still living in generations past. If your smart you won't get married, but if your a fool or utterly ignorant of what goes on around you, you will run towards it.

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