Tag Archives: Georgia Equality

Arguing Equality Chapter 4: Gay Marriage and Interracial Marriage

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This is a nine-part installment designed to help everyone understand marriage equality.  For some, it will be an education, for others, it will be helpful when discussing the subject.  I have included links to each chapter at the end, as well as information about the author.

CHAPTER 4: 

THE RACIAL ANALOGY

While there are significant differences between antiquated bans on interracial marriage and contemporaneous bans on same-sex marriage, the similarity in rhetoric which has been used to defend both is striking. Indeed, many of the same moral and religious arguments originally utilized to oppose miscegenation have simply been recycled in recent times and inserted into the gay marriage debate.

Take rhetoric which employs definitive assertions about “nature,” rhetoric which is all too commonly, if erroneously, relied upon to oppose gay marriage. Not surprisingly, claims about “nature” were also made by those who advocated miscegenation bans thirty years ago. In opposing the legalization of interracial marriage, for instance, the Supreme Court of Georgia held that:

Amalgamation of the races is… unnatural, [yielding offspring who are] generally sickly and effeminate, and… inferior in physical development and strength to the full-blood of either race.

Religious objections to same-sex marriage, frequently utilized by gay marriage opponents, also played a primary role in creating a moral justification for miscegenation bans. Take, for example, a Virginia trial judge’s religious objection to mixed-race marriages:

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

Finally, the “slippery slope” argument so often cited by gay marriage opponents originated, not surprisingly, in the miscegenation debate. Virginia courts declared, for instance, that interracial marriage, by definition, simply could not exist because it had theretofore “never been the ‘custom’ of the state to recognize mixed marriages, marriage ‘always’ having been construed to presuppose a different configuration.”  If these traditional customs changed, another court argued, America could not “preserve the racial integrity of its citizens,” nor prevent “the corruption of blood” and “a mongrel breed of citizens.”

Indeed, the fear which once surrounded a commingling of the races can not be overestimated in a country whose entire social order was founded upon notions of racial hierarchy and racial purity for the better part of its history. The legalization of miscegenation was thought to represent nothing less than the downfall of Western civilization, an overinflated claim which bears a striking resemblance to contemporary auguries about the legalization of gay marriage.

It should come as no surprise then that many African-American leaders are among the strongest supporters of gay marriage. When the Mississippi House of Representatives passed a measure in March 2004 to ban gay marriage via the state Constitution, only 17 legislators voted against the measure; every one of them were black. And in nearby Georgia, my current home, a similar measure handily passed through the Georgia Senate, but it remarkably each and every one of the 10 black members of the Senate voted against it.

“We cannot keep turning our backs on gay and lesbian Americans. I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation.” – African-American Civil Rights Leader, and Congressman, John Lewis.

HISTORY, RECYCLED

The current heated topic on the subject of gay rights lately seems center around the Defense of Marriage Act, which would amend the Constitution of the United States to ban same-sex marriage. The topic, which has driven conservatives to the polls in mass droves, is widely seen as having helped George W. Bush’s re-election campaign. In understanding the amendment, one would be wise to recall another proposed amendment to the Constitution introduced in 1912. It stated: “Intermarriage between negros or persons of color and Caucasians …  within the United States … is forever prohibited.” i Representative Seaborn Roddenberry of Georgia, who proposed the amendment, argued in his appeal to Congress that: “Intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant. It is subversive to social peace. It is destructive of moral supremacy… Sound familiar?

via Gay Marriage and Interracial Marriage.

ABOUT THE AUTHOR:

Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.

Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.

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Arguing Equality Chapter 3: Sexism and Gay Marriage

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This is a nine-part installment designed to help everyone understand marriage equality.  For some, it will be an education, for others, it will be helpful when discussing the subject.  I have included links to each chapter at the end, as well as information about the author.

CHAPTER 3:

SEXISM AND GAY MARRIAGE

In recent years, feminist scholars and gay theorists have developed a body of thought which explores homophobia as a manifestation of sexism. One basic tenet of this line of thought is that strict gender roles, hierarchically constructed, serve to subordinate women to men — economically, culturally, and politically.

In order to maintain the status quo, these gender roles must be strictly adhered to, an adhesion which is maintained by punishing gender non-conformity (effeminacy in men, tomboyish qualities in women) by labeling that non-conformity, stigmatizing it, as “queer.”

Sound confusing? Let’s break it down: Those who have ever watched adolescents on a playground will attest that the boy who wants to play hopscotch rather than baseball will be strictly, and often relentlessly, teased as a “faggot.” Homophobia thus promotes sexism — a fear of being labeled homosexual enforces strict adherence to gender roles, which in turn solidifies male dominance over women.

Deriving from this interplay between sexism and homophobia is a line of argumentation which attacks the ban on same-sex marriage not because it is homophobic, but rather because it is sexist. The Supreme Court of Hawaii illustrated this argument utilizing a simple analogy between a same-sex couple in Baehr v. Mike and a mixed-race couple in Loving v. Virginia.

In Loving, the court argued, a black woman could marry a black man, but not a white man. The difference was race — indisputable racism. In Baehr, a woman could marry a man, but not a woman. The difference was sex — indisputable sexism.

On this basis, just as bans on miscegenation were outlawed as racist, the court argued that bans on gay marriage should be outlawed as sexist. Especially in those states which have adopted the Equal Rights Amendment and subject gender bias to the highest levels of scrutiny, reasoning which exposes the ban on gay marriage as a form of sex discrimination may bear great weight in convincing legislators or judges that same-sex marriage should be declared unconstitutional.

via Sexism and Gay Marriage.

ABOUT THE AUTHOR:

Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.

Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.

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Arguing Equality Chapter 2: Marriage is a Civilizing Influence

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This is a nine-part installment designed to help everyone understand marriage equality.  For some, it will be an education, for others, it will be helpful when discussing the subject.  I have included links to each chapter at the end, as well as information about the author.

CHAPTER 2:

MARRIAGE AS A “CIVILIZING INFLUENCE”

An argument which has gained considerable appeal in some communities rallies around the irony that the very same people who crucify gays as promiscuous in one breath often vilify gay marriage in the next. If promiscuity is anathema and gay marriage is immoral, then what alternatives do gay men and lesbians have? All too often, what appears to be the appealing alternative is to conceal one’s sexuality and marry someone of the opposite sex. Andrew Sullivan makes quick work of this option:

Presumably, it is against the interest of heterosexual families to force homosexuals into roles they are not equipped to play and may disastrously perform. This is not an abstract matter. It is quite common that homosexual fathers and mothers who are encouraged into heterosexual marriages subsequently find the charade and dishonesty too great to bear: spouses are betrayed, children are abandoned, families are broken, and lives are ruined.

A second choice for the gay individual, and that which is advocated by the Roman Catholic Church and many Protestant denominations, is to live a life of celibacy. Of course, this alternative is largely unrealistic, highly arbitrary, and definitively inequitable. Under this schema the heterosexual is permitted, indeed encouraged, to lead a fruitful, healthy, loving life while the homosexual is expected to live a life of loneliness and isolation. As Bruce Bawer explains: “[G]ay Christians simply cannot conceive of a God who would bless them with the ability to love and yet demand that they spend their lives alone.”

The last viable option, then, is homosexual monogamy. To be sure, this is a sound choice for many, but lifelong commitment is no easy task – with all the social, religious, and government assistance that heterosexual couples receive, over half of all marriages still end in divorce. A monogamous gay couple, receiving none of this assistance, certainly faces an uphill battle.

And thus society, through its laws, pushes the gay individual away from monogamy towards solitary promiscuity or unstable roles in heterosexual family units. It is as if, as one author put it, “it is somehow in the interest of traditional families that gay men be encouraged to lead lonely, promiscuous lives rather than be permitted to marry each other.

Instead of placing obstacles in the path of gay couples, it seems that the smarter, more palatable alternative from a societal perspective would be to encourage monogamy and stability. As the editors of The Economist put it: “Homosexuals need emotional and economic stability no less than heterosexuals — and society surely benefits when they have it.”

In a sentence: legalizing gay marriage is not only a matter of justice, it is smart common sense.

“How ironic that promiscuity and instability are stereotypes associated with a group in society that has been trying to gain recognition of their stable relationships. And, how ironic it is that a society that embraces these stereotypes will not offer the mechanism, marriage, by which same-sex partners could demonstrate their commitments to each other and to their relationship.” – Deborah Gray, “Marriage: Homosexual Couples Need Not Apply”

via Marriage is a Civilizing Influence.

ABOUT THE AUTHOR:

Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.

Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.

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Arguing Equality Chapter 1: Gay Marriage as a Matter of Justice

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This is a nine-part installment designed to help everyone understand marriage equality.  For some, it will be an education, for others, it will be helpful when discussing the subject.  I have included a direct link to the chapter at the end, as well as information about the author.

CHAPTER 1:

A MATTER OF JUSTICE

Imagine if tomorrow, Congress enacted a law denying Jews the right to raise children together in a legally protected relationship. Or if by act of law, African-American couples who had lived together for years would no longer be permitted joint filing of tax returns, joint policies for their home, health or auto insurance.

Of course, this is a daily reality for millions of gay Americans. While it may not be readily apparent, marriage comes with a host of legal rights — 1,049 to be exact,1 ranging from the ability to collect Social Security survivor’s benefits to the right not to have to testify against a spouse in court. Listed below is a small sampling of some of these rights and benefits, each of which are currently denied to gay couples:

  • Priority in being appointed guardian of an incapacitated spouse or in being recognized as acting for an incapacitated spouse in making health care decisions
  • The right to invoke special state protection for “intrafamily offenses.”
  • The right to receive, or the obligation to provide, spousal support and (in the event of divorce) alimony and an equitable division of property.
  • The right to receive additional Social Security benefits based on a spouse’s contribution.
  • The right to spousal benefits guaranteed to public employees, including health insurance, life insurance and disability payments, plus similar contractual benefits for private sector employees.
  • The right to survivor’s benefits following the death of a veteran spouse.
  • Numerous rights relating to the involuntary hospitalization of a spouse, including the right to be notified, and the right to initiate proceedings leading to release.
  • The right to conjugal visits with a spouse who is incarcerated in prison.
  • The right to priority in claiming human remains and in making anatomical donations on behalf of a deceased spouse.
  • The right for a non-American spouse to qualify as an “immediate relative” and gain American citizenship under federal law.
  • The right to bring a lawsuit for the wrongful death of a spouse and for the intentional infliction of emotional distress through harm to a spouse.
  • The right to file a joint bankruptcy petition with a spouse.
  • The right to 59 distinct income tax deductions, credits, and exemptions.
  • A multitude of inheritance rights, including priority in inheriting the property of a spouse who dies without a will, the right to a family allowance, and the right to dower.

The denial of these rights to gay and lesbian couples is no academic matter – it has palpable consequences in everyday lives. Take, for example, the case of Holly Gunner, who began advocating for the right to marry when she came to realize that, in the eyes of the law, lifelong gay and lesbian couples could be treated as little more than roommates.

Following the death of Eileen, her partner of fifteen years, Holly discovered that she did not have the legal authority to carry out Eileen’s wishes to be cremated. In fact, she came to discover that doctors could even have barred her from seeing her dying spouse in the hospital. At work, Holly was not permitted to take bereavement leave. Then she was forced to pay taxes on Eileen’s property without any benefit of a marital tax deduction, and to make matters worse, even though Holly inherited most of Eileen’s estate, Eileen’s family refused to permit her to be the administrator of the estate.

“As if this wasn’t [sic] all galling enough,” Holly later told a reporter, “it was happening at the most painful, awful time in my life.” Holly’s story provides a stark reminder that granting 1,049 federal rights and privileges to one class of persons and categorically denying them to another is a gross violation of fundamental principles of equality. The fight for equal access to the institution of marriage is a fight for justice. Indeed, if our constitution’s promise of “equal protection under the law” stands for anything, it surely stands for the principle that if lesbian, gay, bisexual and transgender citizens work and pay taxes, then they deserve the same financial and other benefits that all other Americans receive.

On February 27, 2004, Rosie O’Donnell traveled to San Francisco to wed her partner, Kelli Carpenter. Appearing on Good Morning America, she explained that previously, during a court battle with the publisher of Rosie magazine, O’Donnell’s attorneys requested that communications between her and her partner be excluded from testimony. Although communications between a husband and wife routinely receive this “spousal privilege,” the court rejected her request. “As a result,” O’Donnell explained, “everything that I said to Kelli, every letter that I wrote her, every e-mail, every correspondence and conversation was entered into the record. After the trial, I am now and will forever be a total proponent of gay marriage.”

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”  – U.S. Supreme Court Justice Earl Warren, writing for the majority in Loving v. Virginia

via Gay Marriage as a Matter of Justice.

ABOUT THE AUTHOR:

Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.

Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.