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Thursday, December 2, 2010

Culhane: Why civil unions tie Maggie Gallagher in knots

You’ve probably come here expecting a piece on DADT. That’s understandable, but given that I’m finishing this piece before the hearings have started, I’m going to wait until we see how the Defense Department’s impressive report is received by the quixotic Senate.

Expect something on that, as well as on the Prop 8 oral argument, soon.

Something else has attracted my interest: Two more states – Illinois  and Hawaii – seem poised to enact civil union legislation soon.

While the civil union – a cold creature of statute – falls far short of marriage equality, it does yield a guilty pleasure: It ties the right up in knots.

Consider the representative case of Maggie Gallagher, whose evolving position on civil unions it’s been my sad duty to track.

Her initial position was to simply ignore or finesse the issue of how to protect gay and lesbian couples and their families. She preferred to make general statements like “Whatever we should do for gay and lesbian couples and their children, it’s not marriage.” (I’m paraphrasing). The “whatever” was unspoken, but pointedly did not include civil unions.
 Then I heard her in an infuriating debate earlier this year with a Pennsylvania State Senator, Daylin Leach, where she appeared to support something like civil unions but expressed the concern that civil unions would lead to marriage.
And what about the benefit of marriage to kids of same-sex couples? Well, we don’t know if such benefits will accrue, she claimed: “It’s not clear that children of gay couples will benefit if their parents marry.” That’s a direct – if counterintuitive – quotation.
She claimed that the social science research wasn’t in.

Then, in yet another debate – this time with Evan Wolfson, at Yale – she somehow forgot about the need for social science support, and simply declared that she didn’t think the kids of gay parents cared whether their parents were married or civilly united.

Note that, implicit in this last statement is a recognition that civil unions, at least, are needed for same-sex couples – she seemed to be saying that the choice was one or the other. And then there’s the assumption she makes – kids don’t care if their parents are married — which is just plain absurd.

But what matters to parents, matters to their children.

Apparently Maggie Gallagher has “forgotten” this simple fact about families – even though, as she never tires of mentioning, she was herself a single parent for some years who understood the importance of marriage and has been beating the drum in favor of it – er, except the same-sex ones – ever since.
 Is she willing to say that marriage didn’t matter to her child? That a civil union would have been just as good in the kid’s eyes?

Like other equality opponents who pretend to sound reasonable, this doyenne of doom is trying to figure out how to seem charitable in the face of now overwhelming public support  at least the formal equality that civil unions (try to) confer. It’s clear she doesn’t like them, but risks being swept away on the same swiftly moving current of public opinion that she relentlessly cites in support of her anti-equality position.

 For now, the civil union is a rock to be grabbed and held onto for dear life, while the river moves faster and faster. But make sure the rock is at least partially submerged.

This metaphor was also in play in Lewis v. Harris, where the New Jersey Supreme Court expressed concern about requiring full marriage equality in these terms: “We must steer clear of the swift and treacherous currents of social policy.”

Well, we can’t avoid these currents– and that applies to courts, to legislatures, and even to NOM. The tide of history is rising, and won’t be held back by unsupported fears. There are simply too many LGBT families doing the hard – and rewarding – work that similarly situated straight families are celebrated for taking on.

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Del. He blogs about the role of law in everyday life, and about a bunch of other things at: He is the editor of and contributor to a just-released book, Reconsidering Law and Policy Debates: A Public Health Perspective, now available on Amazon.  His chapter is on marriage equality.

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