From the Archives: Virginia governor hopeful Tareq Salahi is 'pro-same-sex marriage,' pro-hemp

Virginia governor hopeful Tareq Salahi is 'pro-same-sex marriage,' pro-hemp
February 12, 2013 4:11 PM MST

While the two major parties have essentially decided on their nominees for governor of Virginia this year – Terry McAuliffe is the presumptive Democratic nominee and Ken Cuccinelli will be the Republican nominee, barring unforeseen events – there is also one declared independent in the race.

Warren County businessman Tareq Salahi originally entered the campaign for the Republican nomination but later announced he would be running in the general election for governor as an “independent Republican.”

Even though Salahi has served as a gubernatorial appointee to the Virginia Wine Board, the Virginia Wine Tourism Office, and the Virginia Tourism Office, he is best known as one of the “White House gatecrashers” who attended a state dinner without an invitation in 2009 -- an experience he does not omit in recounting his past.

'Socially moderate'
Salahi sat for an interview with the Charlottesville Libertarian Examiner in his home near Front Royal and answered questions on a wide range of issues, including transportation, legislative redistricting, and attracting new businesses to Virginia.

Describing himself as “fiscally conservative” and “socially moderate,” Salahi talked about his views on legalizing marijuana and same-sex marriage, two hot-button social issues.

He said he supports repealing the 2006 Marshall-Newman Amendment to the Virginia Constitution, which prohibits same-sex marriages and civil unions.

Government, he said, does not “belong in the bedroom. Love is love, a relationship is a relationship. There's just no room and no reason for the U.S. or state government to be involved. That [amendment] needs to be repealed. I'm just pro-same-sex marriage. I'm pro-gay rights.”

Salahi emphasized his point by adding, “My views on this are very clear. We haven't made that very loud yet. I'm sure that's going to be coming. I'm pro-same-sex marriage. Yeah, we need to move forward on this in Virginia”

He asserted that Virginia's ban on same-sex marriage hurts the state's economy.

“Virginia's a good leader in the country,” he said.

“We need to continue to be a good leader. We're a leader in many areas. We're one of the best places to do business. I don't want to see businesses not come to Virginia because we're against their [employees'] rights.”

'Hurting jobs'
Why, he asked, “would want to do that? Why would we want to discriminate against [them]? That's hurting jobs and that's hurting bringing more business to the Commonwealth of Virginia.”

Salahi suggested that continuing Virginia's ban on gay marriage was the result of shortsightedness among policymakers.

“People don't see the bigger picture sometimes,” he said. “They can have a very narrow mind because of the way they were taught or what they were told was the only way to be. But again,” he concluded, “government doesn't belong in the bedroom and I don't want to see it in there in any form.”

On the question of legalizing marijuana, which led to national headlines when Attorney General Ken Cuccinelli entertained it, Salahi said he is “open to the idea” but that his campaign team would want to study it by polling Virginia voters “o see what Virginians want.”

If he finds out that “Virginians want it and if it's good for Virginia,” he explained, and if legalizing marijuana “can make money for Virginia and become a profit tool for Virginia,” he will favor it.

'More jobs'
Salahi pointed out that in Colorado and Washington state, where personal use of marijuana was legalized by voter initiative last year, “they're talking about not just a few million, they're talking about hundreds of millions of dollars in revenue for their states.”

Therefore, he concluded, if “it's good for Virginia and Virginians want it and it brings more jobs and it brings more economic impact to the Commonwealth, then I'm not opposed to it.”

Salahi was unequivocal when asked a related question about ending the prohibition on producing industrial hemp on Virginia's farms.

“Yeah, no question,” he said. “There's no reason why we shouldn't” legalize the growing of hemp for industrial purposes.

“If it's positive, if it's good, if it's handled properly and done correctly, then yes,” he said, apologizing for "a long answer for that question.”


Publisher's note: This article was originally published on Examiner.com on February 12, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Guest Post: The Freedoms at Stake in the Gay Wedding Cake Case

by Marian L. Tupy

On December 5, 2017, the Supreme Court of the United States heard the case of Masterpiece Cakeshop v Colorado Civil Rights Commission. It’s a case that raises important questions about freedom of speech and of association that even the most fervent supporters of equality for gay people ought to take to heart.

In July 2012, Charlie Craig and David Mullins, a same-sex couple, visited Masterpiece Cakeshop in Denver to order a custom wedding cake to celebrate their nuptials. Jack Phillips, the shop’s owner and a practicing Christian, was happy to sell the couple any of the goods in the store, but he refused to create a bespoke cake for a gay wedding, arguing that it would contravene his religious beliefs.

Craig and Mullins bought their wedding cake from a different bakery and went ahead with their happy event. The couple also filed a complaint with the Colorado Civil Rights Commission that oversees the enforcement of the Colorado Anti-Discrimination Act – a law prohibiting businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation.

A lower court ruling decided in favor of the plaintiffs. The bakery was ordered to provide cakes for same-sex marriages and to “change its company policies, provide ‘comprehensive staff training’ regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers”.

The Cato Institute, where I work, has been at the forefront of the fight for gay equality, submitting amici curiae briefs in favor of the gay community in such ground-breaking cases as Lawrence v Texas, which decriminalized sodomy in the United States in 2003, and Obergefell v Hodges, which legalised gay marriage throughout the country in 2015. In Masterpiece Cakeshop v Colorado Civil Rights Commission, we have taken Phillips’s side.

There is no inconsistency here. Just as we would support a gay baker’s right to decline to convey a homophobic message, we support this Christian baker’s right to decline to celebrate a same-sex wedding. That is because Masterpiece isn’t really about religious liberty – apart from claims that the Colorado Civil Rights Commission itself treats the religious and nonreligious differently, something that concerned the swing Justice Anthony Kennedy at oral argument – but about freedom of speech.

As my learned colleagues wrote, the Supreme Court has repeatedly held “that what the First Amendment protects is a ‘freedom of the individual mind’, which the government violates whenever it tells a person what she must or must not say. Forcing a baker to create a unique piece of art violates that freedom of mind…

“Although making cakes may not initially appear to be speech to some, it is a form of artistic expression and therefore constitutionally protected… Indeed, the Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to this sort of baking – even if it’s not ideological and even if done to make money.”

No matter which side wins, the final decision in Masterpiece Cakeshop v Colorado Civil Rights Commission is likely to reverberate for many years to come. That’s because the case does not deal with government discrimination, which everyone abhors, but with private discrimination, which is, in some fashion, unavoidable. Each day, all of us discriminate against things (which car to buy), actions (where to eat) and people (who to go out with).

The law says that private discrimination is fine so long as it does not involve a business, which ought to be open to everyone. That’s a perfectly fine legal distinction, but not a logical or moral one. Consider the following scenario:

Suppose that you operate a private dining club – such as the one described by Dana Bate in her superb 2013 book Girls’ Guide to Love and Supper Clubs. You rent a space where you can indulge your passion for cooking and choose from a list of paying gourmands in accordance with your preference for, exempli gratia, straight people. Is that discrimination? No court has ruled so. Yet, Bate’s supper club is basically a business, except for incorporation. Were you to incorporate, you would be guilty of discrimination. Without it, you are free to do as you please.

So, private discrimination is not cut and dried. As one of the pioneers of gay marriage, the British-born writer Andrew Sullivan, noted, advocates of gay equality ought to acquire some perspective. “I think it was a prudential mistake to sue the baker,” he wrote. “Live and let live would have been a far better response.” That’s where Cato stands as well.

Reprinted from CapX.

Marian L. Tupy is the editor of HumanProgress.org and a senior policy analyst at the Center for Global Liberty and Prosperity.

This article was originally published on FEE.org. Read the original article.

From the Archives: Libertarians praise Supreme Court's gay marriage ruling in DOMA case

Libertarians praise Supreme Court's gay marriage ruling in DOMA case
June 27, 2013 4:01 PM MST

In separate news releases distributed on June 26, shortly after the U.S. Supreme Court handed down its decision in the case of Windsor v. United States, which overturned Section 3 of the 1996 Defense of Marriage Act, the national Libertarian Party and the Libertarian Party of Virginia both praised the Court's ruling.

Geoffrey J. Neale, chairman of the Libertarian National Committee, called the DOMA decision "a landmark victory for personal freedom."

The Democratic and Republican politicians who voted for the Defense of Marriage Act in 1996, he said, and who "let stand government intrusion into the private contracts and choices of consenting adults will be remembered for their inhumanity on this issue."

The national party's press release quoted the Libertarian Party platform, which says that "sexual orientation, preference, gender, or gender identity should have no impact on the government's treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws."

Two candidates for the Virginia House of Delegates were quoted in the LPVA's news release, which was distributed by email. Both said they will work to repeal Virginia's constitutional prohibition on same-sex marriage.

Arlington-based tax attorney Lindsey Bolton, who is running for the 47th House district seat now held by Democrat Patrick Hope, said that when she is elected she will “introduce a resolution that the Commonwealth's role regarding marriage is merely to respect and uphold a contract."

Liberty University alumnus Jonathan Parrish, who is seeking to unseat Republican Delegate T. Scott Garrett in the 23rd House district, said “it is nice to finally see a decision being made that ensure same sex couples will have access to the same benefits that straight couples do. As they pay the same taxes, this decision is long overdue.”

Earlier this week, Robert Sarvis, the Libertarian nominee for governor, released a campaign video stating his intention to "fight for marriage equality" in the Old Dominion.

“By protecting personal and economic freedom," Sarvis said on June 26 while announcing he had qualified for the November general election ballot, "we can make Virginia the envy of the world, with a growing economy that adds jobs and raises incomes, and a system of laws providing equality and justice for all. So let's buck the two-party system, bring people together, and build a Virginia that's open-minded and open for business.”

Publisher's note: This article is part of a series to mark June as Gay Pride Month. It was originally published on Examiner.com on June 27, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Guest Post: How families with 2 dads raise their kids

Andrew Leland, Rutgers University

Kentucky family court judge W. Mitchell Nance says he refuses to hold hearings on same-sex couples’ adoptions “as a matter of conscience.”

He’s not the only authority defying the 2015 Supreme Court ruling that made marriage equality the law of the land. So-called “religious freedom” bills in Texas, South Dakota and Alabama could let private adoption agencies discriminate against same-sex couples. When pressed on the question, Education Secretary Betsy DeVos recently refused to tell lawmakers whether she believes the federal government should deny government funds to schools that discriminate against the children of LGBT parents – or LGBT students.

The number of men married to each other who have children is rising following legal rulings about marriage equality.
Shutterstock

Maybe these officials, judges and lawmakers should check out the research on how gay parents differ from straight parents. So far, most of this scholarship has focused on the social, emotional and cognitive outcomes of children they raise. (Spoiler alert: These kids turn out fine.)

As a former teacher who now researches gay dads and their families while pursuing a doctorate in education, I am studying how the growing number of men married to other men are raising their children. So far, I’m finding few differences between them and their straight peers of similar socioeconomic status – especially regarding their children’s schooling.

A growing population

Since the Census Bureau estimates but does not count the number of households headed by two fathers, it’s hard to track them.

Plans were taking shape for the Census Bureau to begin counting same-sex-parented households in 2020. They seem unlikely to move forward due to recent budget cuts, the census director’s recent resignation and the political climate.

Nevertheless, The American Community Survey, the Census Bureau’s ongoing demographic survey of approximately three million households, already follows same-sex parenting. It estimates that in 2015, almost 40,000 two-dad households were raising children, compared to about 30,000 in 2010.

Actors Neil Patrick Harris and Gideon Scott Burtka-Harris, who are married to each other, brought their twins to the ‘Smurfs 2’ premiere in 2013.
John Shearer/Invision/AP

Parenting roles

How do parents in these families settle into specific roles? In short, just like heterosexual parents do.

Research suggests that affluent, white, two-father households adhere to traditional parenting roles. One is the primary breadwinner, while the other earns either less income or none at all and handles most of the caregiving and chores.

However, two-dad households can challenge the 1940s Norman Rockwell image of gendered parenting – just like heterosexual couples can.

Households with two fathers working full-time rely on daycare facilities, babysitters, housekeepers and nearby relatives for support. Some of these men even take on responsibilities based on skills and strengths, rather than who fits the socially and culturally constructed mold of being more “motherly” or “fatherly.”

Research suggests that two-dad households may not differ that much from the parenting patterns of heterosexual couples.
www.shutterstock.com

Community and school engagement

And that’s where the parenting of gay dads may differ from a traditional heterosexual household, as my research and the work of other scholars suggests.

While interviewing and spending time with 20 two-dad families living in the Northeast for my current study, I have learned that they’re apt to step up. Many become involved as classroom parents, voluntarily assisting teachers, reading books or leading singalongs. Some take leadership roles by becoming active PTA members or organizing events that go beyond their children’s classes. In some cases, gay fathers become PTA presidents or serve on school boards.

Like all civically engaged parents, gay fathers support their local museums and libraries and enroll their kids in camps and extracurricular activities. They sometimes do additional volunteer work for social justice groups.

The largest-scale survey to date was conducted in 2008 by the Gay Lesbian Straight Education Network, an organization focused on the safety of LGBT students in schools. That study, which included 588 LGBT parents, suggested that gay fathers could be more likely to be involved in school-based activities than heterosexual dads.

Aside from the simple fact that they love their children just like all parents do, Abbie Goldberg, a Clark University researcher, and her colleagues have shown that increased presence may be due, in part, to fathers’ initiatives to counter bias and assert more same-sex visibility and inclusion in schools. My current study, indicates the same. Many of the men taking part have told me that being actively involved helps them preemptively counteract potential negative encounters with school personnel and other families.

Gay dads prefer schools and communities that are safe and inclusive. Beyond that, they want judges like Nance and lawmakers bent on barring them from fatherhood to see that two-dad families are for the most part just like any other family.

Andrew Leland, Ph.D. Candidate, Graduate School of Education, Rutgers University

This article was originally published on The Conversation. Read the original article.

Guest Post: A same-sex marriage ceremony in... Renaissance Rome?

Gary Ferguson, University of Virginia

In the late 16th century, the famous French essayist Michel de Montaigne wrote about two marriages between people of the same sex. The first involved women in eastern France, the second a group of men in Rome. At the time, same-sex marriages were not recognized by religious or civil law, and sodomy – a term that included a wide range of sexual acts – was a crime. As a result, when those involved were discovered they were usually brought to trial and punished, sometimes by death.

These episodes, along with many others, reveal that even in Renaissance Europe, marriage was a highly contested issue.

Marriage between two men or two women might seem like a concept that has emerged only in recent decades. For centuries, however, same-sex couples have appropriated marriage in their own ways. I investigate a particularly notable example of this – the second of the two cases recounted by Montaigne – in my recent book “Same-Sex Marriage in Renaissance Rome: Sexuality, Identity and Community in Early Modern Europe.”

An evolving institution

Throughout the Middle Ages, marriage involved not only two individuals but also their relatives, local communities, and secular and religious authorities. Each of these had different – sometimes conflicting – ideas, priorities and goals.

From the 12th century on, the Catholic Church considered matrimony a sacrament that required only the free consent of the spouses, in the form of an exchange of vows. As a social institution, however, marriage was usually based on a legal contract for the transfer of property (the bride’s dowry), which was signed in front of a notary.

French essayist Michel de Montaigne once described a ceremony between two male lovers at Saint John at the Latin Gate in Rome.
Gary Ferguson, Author provided

The 16th century was a watershed period that saw sweeping changes and the introduction of stringent new requirements designed to prevent clandestine (or secret) unions that heads of families opposed. In countries converted to one of the new Reformed or Protestant faiths, marriage ceased to be a sacrament, and laws were passed strengthening parents’ control over their dependent children.

In response to pressure from secular governments, the Catholic Church also modified its position considerably in 1563, when the Council of Trent decreed that a wedding must henceforth be performed in a parish church, by an authorized priest, in the presence of witnesses, and following the proclamation of “banns” (the public announcement of the ceremony).

Changes in legislation did not always translate immediately into changes in practice, however. Situations of doubt or dispute were common and frequently ended up in court.

On the margins of the papal city

This is the volatile background against which the marriages between men in Rome were set.

After piecing together information from several sources – diplomatic dispatches, newsletters, fragments of a trial transcript and brief wills – a much fuller, if incomplete, picture of what took place emerges.

Michel de Montaigne.
Wikimedia Commons

On a Sunday afternoon in July 1578, a sizable group of men gathered at Saint John at the Latin Gate, a beautiful but remote church on the outer edge of Rome. Many of them were friends who had met there on previous occasions. They were mostly poor immigrants from Spain and Portugal but included several priests and friars. They ate and drank in an atmosphere that was festive, yet strangely subdued. It turned suddenly to confusion and fear with the arrival of the police, who arrested 11 of those present. The rest fled.

The Roman authorities had been tipped off about the group’s plans to celebrate a marriage, perhaps not for the first time, between two of its members. In the end, the wedding between Gasparo and Gioseffe hadn’t taken place: The latter – reportedly ill – failed to appear. But Gasparo was among those taken prisoner, and, following a trial that lasted three weeks, executed.

The exact nature and purpose of the intended ceremony remain uncertain. Some sources describe a marriage celebrated after Mass. Others refer to the giving of rings, a hermit who officiated or adolescents taking part under constraint or even disguised as women.

What we know for sure is that the afternoon was to culminate, like most weddings at the time, in a celebratory feast and the consummation of the union – that is, in the couple (and, in this instance, perhaps others) having sex.

Like husband and wife?

Although the same was not true of all the group’s members, Gasparo and Gioseffe conformed to established gender norms when having intercourse: According to evidence from the trial, the latter took a “male” (penetrative) role, the former a “female” (receptive) one.

In other respects, however, their relationship didn’t resemble that of traditional spouses. Most importantly, Gioseffe was a friar, prevented from marrying in the eyes of the Church. Gioseffe’s attachment to a convent also means that it’s unlikely the pair planned on living together. This distinguishes them not only from men and women who married but also from the female married couples we know about from the period, who – like the women described by Montaigne – often did establish a common household, with one cross-dressing and living as a man.

In light of the group’s generally promiscuous behavior, it seems equally unlikely that Gasparo and Gioseffe intended to embark on a sexually exclusive relationship and thus that they believed the sacrament would remove the sinfulness that the Church attached to all extramarital sex.

Finally, the purpose of the feast following the planned wedding was not personal or religious but communal. Despite the fact that it greatly increased the chances that the men would be caught, it was clearly important to them as a way to express and build a sense of community. The socially marginalized friends at the Latin Gate had, in fact, developed several of the characteristics of a sexual subculture, like those that would later be found in large European cities in the 18th century. In a number of ways, they anticipated the networks of “mollies” in London and Paris’ “gens de la manchette” (“men of the cuff”), with their regular meeting places, social activities and a shared slang.

The evidence, then, points to a handful of motivations behind the Roman weddings. Since the friends took the ceremony seriously enough to put themselves at considerable risk, it very likely served to recognize and sanction Gasparo and Gioseffe’s relationship, claiming that such a union should be possible. At the same time, it may also have had a playful element, parodying and subtly criticizing elements of a traditional wedding.

An argument for marriage equality?

In one sense, the context for extending marriage rights to same-sex couples today is very different from the 16th century, when most marriages weren’t based primarily on love and didn’t establish legal equality between the spouses.

It was after the changes effected by the women’s rights movement in the second half of the 20th century to make the institution more equitable that gay and lesbian activists adopted marriage equality as their major goal.

Nevertheless, the stories from the 16th century show that marriage has never been a universal and fixed phenomenon. It has a contested history, one that both excludes and includes same-sex couples, who have claimed marriage on their own terms.

When viewed through this lens, the ceremony planned that summer afternoon in Rome overturns the narrative that recent political victories were only the culmination of a modern, 20th-century campaign. The friends who met at the Latin Gate offer a striking example of how same-sex couples have long claimed the right to marry and, at the same time, challenged some of marriage’s traditional norms.

Gary Ferguson, Douglas Huntly Gordon Distinguished Professor of French, University of Virginia

This article was originally published on The Conversation. Read the original article.

From the Archives: GOP congresswoman headlines youthful same-sex marriage event on Capitol Hill

GOP congresswoman headlines youthful same-sex marriage event on Capitol Hill
July 11, 2012 8:18 PM MST

Young Conservatives for the Freedom to Marry is a new organization that was launched at a reception on July 10 at the Capitol Hill Club, the social club for Republican party members and activists mere blocks from the U.S. Capitol, Supreme Court Building, and Library of Congress.

The featured speaker at the reception was Congresswoman Ileana Ros-Lehtinen (R-Florida), who as chair of the House Foreign Affairs Committee is one of the highest-ranking women and Hispanics in Congress. (Ros-Lehtinen immigrated to the United States from Cuba.)

Calling the gathering of just over 100 people a “great celebration,” Ros-Lehtinen used her brief remarks to outline the shared values of Republicans and conservatives.

‘Core principles’
“This new initiative,” she said, “helps highlight the role of young conservatives and Republicans from around the country who agree on this issue and many others. We are all here because we believe in the same core principles.”

Those principles, she continued, include limited government.

“We believe that the best way that the federal government can help in spurring economic growth, which we so badly need in this country, is to get out of the way and let the small and medium businesses thrive.”

Another shared principle is, she said, “the equality of opportunity that’s available for each and every one of us, no matter where we come from, no matter our circumstances.”

She emphasized a third principle, “that the individual and the family are the central engines in our society. The right of individuals to lead their lives without government intrusion is a bedrock Republican, conservative value.”

More than sex
That central principle, Ros-Lehtinen said, “is more than just about sexual orientation.”

It is, she explained, “about the fundamental rights that we all share as Americans. It’s bad enough that we have to deal with the overregulation of our economy. No one should have to deal with government red tape when it comes to committing themselves to those whom they love.”

After her remarks, in an informal press gaggle that included the Charlottesville Libertarian Examiner, the twelve-term congresswoman pointed out that an organization like Young Conservatives for the Freedom to Marry represents “a generational shift.”

The question of whether to expand marriage equality in the United States, she predicted, is “a problem that many years down the road, we’ll look back upon this time and say, ‘This was a problem? This was an issue? This was a ballot initiative?’”

‘New image for Republicans’
Ros-Lehtinen, who is seeking re-election this year in Florida's 18th congressional district, said that “things are moving in the right direction thanks to the young people who are making a difference. To harness this energy on this issue,” she said, “is very important” because it presents “a whole new image for Republicans and we’ve got to win the minds and hearts of the next generation.”

From her perspective, she explained, “things are changing slowly -- too slowly for me, but you’ve got to be working the issues at the local level in order to get to the very top.”

She pointed out that the reception was being held in the Capitol Hill Club, a traditional Republican gathering place, yet “everybody’s here and there’s no problem. Maybe even only 20 years ago, this would have created a ruckus.” (Indeed, the room where the reception was held had a portrait of the late Senator Jesse Helms, an ardent opponent of gay rights, hanging on the wall.)

Young Conservatives for the Freedom to Marry, she said, “is organic. It’s from the bottom up. It’s going to change attitudes.”

Pressed by a reporter as to whether she is a supporter of gay marriage, Ros-Lehtinen said firmly, “I am” and then repeated, as if for more emphasis, “No, I am.”


Publisher's note: This article is part of a series to mark June as Gay Pride Month. It was originally published on Examiner.com on July 11, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Obama’s announcement prompts question, Is gay marriage a ‘new right’?

Obama’s announcement prompts question, Is gay marriage a ‘new right’?
May 9, 2012 4:02 PM MST

With President Barack Obama’s surprise announcement today that he supports the rights of gay and lesbian couples to legally wed, political pundits are debating whether this was a calculated move designed to help the president’s re-election bid, or whether it will help presumptive Republican nominee Mitt Romney, instead.

Obama’s statement came on the heels of North Carolina voters decisively adding a constitutional amendment to prohibit same-sex marriage and civil unions in that state. The president said, perhaps with that news in mind, that he thinks legalizing gay marriage should be decided on a state-by-state basis, without intervention from the federal government – or, presumably, through judicial decisions by the courts.

Some opponents of same-sex marriage assert that the Founders, in drawing up the Constitution, did not intend its protections to include gay individuals who wish to marry each other.

‘Life, liberty, or property’

Since the Fourteenth Amendment is usually cited by those who believe the Constitution does, in fact, protect a right to same-sex marriage (“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”), opponents of gay marriage argue that the post-Civil War amendments were intended only to extend constitutional protections on the basis of race and that their authors would not have also extended those protections on the basis of sexual orientation.

To be fair, there are also people who favor extending equal marriage rights to all citizens but who argue that this should be done legislatively, because, they say, courts should not be creating new rights not present in the language of the Constitution or the minds of its authors.

Since the “new rights” meme is so common, it may be useful to consult a different analogy (unrelated to race) to reveal why this objection is logically flawed.

The argument of the opponents of same-sex marriage is that it is an entirely new concept and therefore courts should not extend the right of marriage to gay people.

‘Not a new concept’
Yet “marriage” is not a new concept, and it may be engaged in legally by most, but not all, people who desire opposite-sex marriages.

In every state except Mississippi and Nebraska, any adult from the age of 18 may wed another person without parental permission. (In Mississippi, the legal age to freely marry is 21; in Nebraska, it is 19.) In many of the states, the marriageable age was once 21 but has been changed to 18.

In all these states, the legal age of majority is 18 – people who have reached that age can enter into contracts, buy and sell goods and services, own a home, join the military, pay taxes, vote in elections and – in some cases – serve in elective public office, including the state legislature.

If someone in Mississippi sued for the right to marry at the age of 18 or 19, it would not be unreasonable for a court to rule that the current prohibition on marriage there before the age of 21 is unconstitutional, because it deprives that person of a liberty (to marry) guaranteed by the Fourteenth Amendment.

Nobody would argue that that court was creating a “new,” previously non-existent right. It would simply be expanding the pool of otherwise eligible adult citizens who can enjoy that right.

That is because, for virtually every other person in the country older than 18 years of age, marriage is legal and available to them.

‘Extending a right’
The point is that judges who recognize the right of gay couples to marry are not creating a “new right.” Rather, they are extending a right that is already recognized for all other adults.

“Marriage” is legal for all adults, except those who are gay or lesbian. To recognize that being gay or lesbian is no impediment to marriage is no more creating a “new right” than to say that 18-year-old adult citizens of Mississippi should be able to marry today rather than wait three years.

There may be compelling arguments, on policy grounds, to continue to prohibit gay marriage. Seven states, the District of Columbia, Canada, several European countries, and South Africa (among other governments) have rejected those arguments, if they exist.

But one argument that does not stand up to scrutiny is that same-sex marriage is a “judge-created right.” With President Obama’s return to a position he first held in 1996, the political debate over the rights of gay citizens to marry takes a new direction.


Publisher's note: This article is part of a series to mark June as Gay Pride Month. It was originally published on Examiner.com on May 9, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Attorneys Ted Olson, David Boies discuss Proposition 8 and gay marriage at Cato

Publisher's note: This article was originally published on Examiner.com on May 18, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Attorneys Ted Olson, David Boies discuss Proposition 8 and gay marriage at Cato
May 18, 2011 2:40 PM MST

Two veteran Supreme Court litigators – former U.S. Solicitor General Theodore Olson and David Boies (twice named Lawyer of the Year by the National Law Journal) – spoke at the Cato Institute on May 18. Their topic was not the National Football League’s labor dispute, in which they are each representing opposing sides, but rather a case on which they serve on the same team.

In May 2009, Olson and Boies – who had earlier represented opposite sides in the U.S. Supreme Court’s 2000 presidential election case, Bush v. Gore – together filed suit in the state of California to challenge Proposition 8, a ballot measure from the previous November that prohibited same-sex marriage in that state. In August 2010, federal district judge Vaughn Walker ruled that Prop 8 was unconstitutional; its proponents have appealed the decision.

Observers immediately dubbed the two lawyers an “odd couple,” since it seemed unlikely, on its face, that a conservative Republican like Olson (who had served in the administrations of Ronald Reagan and George W. Bush) would join forces with a Democrat like Boies (who represented Al Gore and worked for the late Senator Edward Kennedy on Capitol Hill) to uphold the rights of gay and lesbian individuals to marry.


‘History of discrimination’

It became clear during the panel discussion at the Cato Institute that both Olson and Boies are equally passionate about this issue. Olson noted that the “history of discrimination [against gay people] is quite unpleasant to reflect on,” and that denying individuals the right to marry on the basis of sexual orientation is akin to granting a person all the rights and responsibilities of citizenship but, by dint of his nationality, denying him the right to call himself a citizen.

Ted Olson

He pointed out that in the pre-Civil War slave era, slaves were prohibited from marrying because marriage would be a symbol of their independence, and that when emancipation came, slaves rushed to be married because it was a way of asserting their new freedom.

Similarly, Boies asserted that “we all have an interest in protecting individual rights against government discrimination.” He pointed out that his clients and the proponents of Prop 8 both agree that marriage is a fundamental right that has been confirmed 14 times by the U.S. Supreme Court.

Boies said that depriving gay and lesbian citizens of the right to marry seriously harms them and the children they are raising. And, he pointed out, there is no benefit to other people from depriving gay men and lesbians of the right to marry.

After the panel discussion – which also included comments from former White House chief of staff John Podesta and Cato Institute chairman Robert Levy – Ted Olson spoke briefly with the Charlottesville Libertarian Examiner about the case, which was originally designated Perry v. Schwarzenegger but is now called Perry v. Brown because of the change in governors in California.


Overwhelming evidence

With regard to the prospects for the case, which is now stalled in the Ninth Circuit Court of Appeals while some peripheral matters are being litigated, Olson said, “We hope that we’ll get ultimately to the Supreme Court and have the Supreme Court affirm the rights of gay and lesbian individuals to be treated equally and with decency and dignity, not just in the state of California but everywhere else. The badge of discrimination that’s engraved in the California constitution has to be eliminated.”

He added that the most surprising thing he encountered during the trial was the power of his team’s case.

“We were overwhelmed by the strength of our own case,” Olson said.

“Just to listen to the expert witnesses and to hear the evidence was overwhelming,” he explained. “We had strong convictions about our arguments but the fact that the evidence was so compelling beyond our expectations was very gratifying.”

Boies and Olson predicted that a ruling from the Ninth Circuit will come late this year or in early 2012, and that if the U.S. Supreme Court chooses to hear a further appeal, the high court’s decision is not likely for at least two years.

From the Archives: Senate candidate E.W. Jackson defends anti-gay stance as ‘fundamental’

Publisher's note: This article was originally published on Examiner.com on April 29, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Senate candidate E.W. Jackson defends anti-gay stance as ‘fundamental’
April 29, 2012 7:26 PM MST

In a previous interview on Examiner.com, which he featured on his campaign Twitter feed, Virginia Senate candidate E.W. Jackson said that he thinks “we maximize individual freedom [and] we let people make their own choices, where those choices don’t impinge on the life, the liberty, or the property of others,” adding that under those conditions, “we’re going to always be a better country for it. We persuade people of what is right and decent and good and moral; we don’t try to force it on them.”

Jackson was one of the participants in a debate on April 28 in Roanoke sponsored by the Republican Party of Virginia. He and other GOP primary candidates George Allen, Bob Marshall, and Jamie Radtke answered questions about policy topics from a panel of political activists.

‘Fundamental rights’
After the debate, the Charlottesville Libertarian Examiner asked Jackson to restate his position on government non-interference in the moral lives of citizens.

“Where life is concerned, where property rights are concerned, in other words, when the fundamental rights of other citizens are concerned,” Jackson said, “I think government certainly has a role and our constitution indicates it’s supposed to secure those rights for other citizens.”

He added, however, that “if that’s not what’s at stake, then yes, I tend to believe that we are better off when we are freer to make our own decisions and to chart the course of our own lives without the government telling us what we should and should not do and, frankly, I think most Americans feel that way, given the overreach of this government.”

Not a libertarian

To follow up, Jackson was asked how that position is consistent with his stated policy stance on prohibiting same-sex marriage and supporting the 1996 Defense of Marriage Act (DOMA).

“For me,” he replied, “the issue of marriage is a fundamental issue. It’s a fundamental moral and spiritual issue and I don’t think that the state should be sanctioning marriage between other than a man and a woman.”

Jackson conceded that he would not call himself a libertarian and added that “I don’t know that libertarians would call me a libertarian,” but that what he had said previously is that “libertarians like me because they know I lean very strongly into keeping government out of the lives of people.”

With regard to gay marriage, he added, “you’ve got to remember, what is really happening there is that people who want homosexual marriage are inviting the government to put its imprimatur on what they want to do and to change 6,000 years of human history and 200 years of American policy. So in my view, they’re the ones who are trying to use the government to intrude upon those of us who believe that marriage as it is is just fine.”

‘Affecting our culture’
The next question was how Jackson would be affected if the gay couple next door were to get married.

“I’m talking about it affecting society, affecting our culture in the long term,” he answered.

“I would turn the question around and say, if you’re going to upend 6,000 years of human history, it is incumbent upon you to prove to me that somehow we’re going to be better off with that.”

Asked whether “gay people and abortion” are the only exceptions to his general view that the government should not interfere in citizens’ private lives, Jackson replied:

“Well, I don’t know that I would limit it, as you put it, ‘gay people and abortion.’ I think it would have to be something you’d have to look at on a case by case basis. Look, you have to remember something. We’re called to represent the constitution, to represent the people of the United States. We’re also called to represent our own consciences.”

Podcast available
A complete audio recording of this interview with E.W. Jackson is available as a Bearing Drift podcast.