March 19, 2004
Report From The City Club Forum On Marriage
Panelists Offer Conversation And Context
Wednesday evening, the City Club of Portland sponsored Marriage: State of the Union, billed as "A thoughtful dialogue on the ties that bind families and divide a nation."
While The Oregonian did publish an article on the forum, it doesn't particularly do justice to how valuable was much of the conversation.
As was pointed out at the start of the forum, when the City Club began planning the event, same-sex marriages had not yet started even in San Francisco. Given the events since then, especially the sudden local front in the same-sex marriage debate which opened up here in Multnomah County, it all the more was thought that the event might help those interested in the issue involved some distance from immediate events, to provide some larger context.
"This is not a public hearing," said Dr. William Lunch, Professor and Chair of the Political Science Department at Oregon State University (and a political analyst for Oregon Public Broadcasting), who moderated the discussion. "We are not public officials -- we are here to inform, not to inflame."
Dr. Rebecca L. Warner, Professor and Chair of OSU's Department of Sociology, tackled the media reports of the decline of marriage.
"If we use the decline of marriage as an indicator," Warner joked, "then Multnomah County may have saved marriaged."
Warner explained that much of the discussion surrounding the decline of marriage looks at data from the 1950s to the present. But, she said, "the 1950s were an anomaly," in that if you go back to include everything since the turn of the last century, you'll find (for example) that marriage was in deeper "trouble" in the 1920s than it is today.
"Maybe things are changing," Warner said, "but in a non-linear fashion."
Warner cited polls which indicate that 90% of Americans beleive that marriage is very important -- moreso than health or family life, for example -- but that cultural and structural factors (for example, legal and economic constraints in the latter case) force them to put it off until later in life. She suggested that there's marriage is not in a decline, but merely in a delay.
Rabbi Emanuel Rose of Congregation Beth Israel in Portland offered something of an ethical and religious perspective on marriage.
"Religion he perhaps the most serious problem" when it comes to current events, he said. "Religion is slow to change." Although some individual religious institutions back civil unions or officiate at same-sex ceremonies, he said, "there is virtually no major religion in the world that supports gay marriage."
Rose suggested that religions are either rejecting same-sex marriage out of hand, or trying to find a way through the issue. "[This] may push religio to its limits," he said. "But in fact religions can and do change."
"Religions are not goign to be at the forefront of what we're talking about," Rose asserted, saying that it's going to be a "human face" that forces religions to grapple with the issue.
Leslie J. Harris, a professor at the University of Oregon School of Law, examined the issue from the standpoint of family law. "Law, like religion," Harris said, "is behind."
Harris explained that there are two major issues in the legal realm when it comes to marriage: The rights between the two people involved, and the relationship of the couple to third parties. And for these legal purposes, she said, marriage is the "gold standard."
Outside of the United States, Harris explained, there are at least four placed where same-sex couples can receive full marriage recognition. But inside the U.S., there is nowhere in which the issue is clear. She suggested that may change in May, when Massachusetts is supposed to begin honoring same-sex marriage rights.
Currently, in most of the U.S., Harris said that there is a patchwork of domestic partnerships at local levels and private companies providing same-sex benefits, and that when it comes to rights between same-sex couples most of what exists is judge-made law.
Stephen Kanter, a professor of Constitutional law at Lewis & Clark Law School, presented some constitutional context for same-sex marriage.
Kanter described the three divisions amongst the America populace when it comes to same-sex marriage: One group which supports same-sex marriage, one group which supports civil unions but not same-sex marriage, and one group which strongly opposes any recognition of same-sex relationships.
Those who support civil unions but not same-sex marriage, Kanter said, have "given away the game," revealing the underlying nature of marriage (on the one hand) being a matterof the private sphere, and the contract (on the other hand) being an institution of the state.
Supporters of civil unions, Kanter argued, are "in a little bit of a dilemma."
Returning to his field, Kanter said: "The constitutional question of whether same-sex marriage must be permitted ... is actually a diffcult and complex question." He added that the analyses of the Multnomah County Attorney, Legislative Counsel, and Attorney General were "very thoughtful opinions."
On the principle of anti-discrimination, Kanter pointed out that "every law discriminates on one level or another," but that the question is whether the law is discriminating when it comes to a fundamental right.
"At the end of the day," Kanter concluded, "I would agree with the consensus that it is likely [true] that banning same-sex marriage violates Article I, Section 20 [of the Oregon Constitution]." But he said it is a "must closer question" from the standpoint of equal protection.
Mary Pitman Kitch, an associate editor at The Oregonian tried to provide a sense of her newspaper's editorial process on the issue of same-sex marriage -- an issue upon which, she said, they "have not taken a position up or down."
"Our opinions on gay marriage are still evolving," Kitch said. "[There is] great ambivalence on our editorial board."
In fact, she admitted, the board was struggling over "whether we marginilize ourselves by taking a position." She said the board was concerned with reflecting most of America rather than taking a clear position on the issue.
"Is it possible," Kitch asked rhetorically, "to fashion something that's short of marriage that can be fair?"
In an attempt to find "commonalities" in what all of the panelists had said before turning things over to audience questions, moderator Lunch offered this: "Change. And change which has come rapidly -- for some welcome, for some unwelcome, and for the middle unsettling."
First question from the audience centered on how the upcoming same-sex marriages in Massachusetts interacted with the so-called "full faith and credit" clause.
"Interstate recognition is obviously important," answered Leslie Harris. But, she said, "full faith and credit" has nothing to do with interstate recognition. And on the Federal level, the Defense of Marriage Act (signed by President Bill Clinton) would mean that no Federal marriage rights would be granted to any same-sex couples.
Harris also mentioned what she called a "common law rule" under which a marriage that's valid in one place would be valid in another place "unless it violates [some] strong public policy" of the latter jurisdiction.
Stephen Kanter pointed out that the Loving v. Virginia case, which involved an inter-racial couple, in fact was an "interstate recognition" case.
Another questioner said they were perplexed at an earlier assertion that the proposed amendment to the U.S. Constitution which would prohibit same-sex marriages was a "dead issue."
Kanter replied, "It is extremely difficult to amend the Constitution." And Lunch argued that he didn't see how "proponents can get two-thirds" of either the House of Representatives or the Senate.
Also raised was the question of a possible generational difference in how same-sex marriage is viewed, and whether that means the issue will become less controversial over time.
"The court is not an apolitical body," said Kanter, "[but it] responds on a much larger timescale."
Harris supported the notion of a generational difference. "Young people's attitude trends on this are very different," she said. And that, she argued, meant that the issue will not be controversial for that long.
Another questioner asked for an account of the sense of public surprise that the issue has suddenly become so prominent.
"I can't speak to the surprise element," said Kitch of The Oregonian. However, she added: "It has caught a lot of people by surprise."
Emanuel Rose added: "The mainstream gay and lesbian community was not yet ready ot desirous of pushing the marriage issue." But, she said, this year's State of the Union address was a "red flag."
"I'm a little surprised," coutnered Rebecca Warner, "that we think it's a surprise."
One audience member wondered if the issue would have any impact upon this year's Presidential and Congressional elections.
"Considerably less impact than a lot of people seem to think," offered moderator Lunch, explaining that the constiuencies within each major party that might consider the issue to be important enough are comparatively small and in essence cancel each other out.
Another question sought to address the "middle ground" of Americans who support what the questioner deemed the "separate but equal" concept of civil unions. "What is it about the M word," they asked, "that freaks people out?"
"It's perceived as ... such a fundamental change," offered Kitch. "People hear the word 'marriage' and are reacting emotionally." In fact, she added, it's "almost tribal."
"Marriage brings significant benefits," said Warner. "Those that have those benefits become threatened."
Emanuel Rose went further: "The word 'marriage' is at the heart of the controversy. ... Just the word goes right to religion for the most part."
In what became the discussion's closing remark, Rose added a reminder to place the religious aspect of marriage in perspective: "Even the first marriages performed on these shores were civil ceremonies."
Readers interested in thisforum should visit its City Club webpage for information on when the forum will be broadcast on Portland Community Media's CityNet Channel 30 during the remainder of March, as well for for an mp3 recording of the event. In addition, the City Club is expected to have its own report from the even posted in the near future.
Comments (1)
Jesse on 22 Mar 2004
Thanks for the great coverage, B!X.