A Different Take on Gay Marriage

It's been almost a decade since the unprecedented civil debate here in Vermont over the question of gay marriage, equal protection, and civil unions. I will always remember those evenings sitting in our kitchen listening to VPR live coverage of the statehouse open microphone sessions, as Vermont residents took turns speaking their minds for all to hear.

Struggling with my own thoughts, I came to appreciate the crucial difference between civil rights and social recognition.

Civil rights are those individual rights of conscience, choice, and self-determination which are protected by our laws. In Baker v. Vermont, the Vermont Supreme Court recognized the fundamenal inequity faced by homosexual couples who, as legally competent consenting adults, had chosen to share their lives with one another but whose choice had no legal protection. The Court, at that time, ruled that these couples must be given equal protection under the law, but left it to the legislature to devise the means.

The Baker decision framed the debate for the people of Vermont in terms of simple fairness. Whatever one's feelings regarding homosexuality in social or religious terms, one had to face a question of fundamental decency and, ultimately, privacy. If people choose to unite their lives as a household and family, how can our society deny them the right to share the complicated, difficult medical, financial, and end-of-life decisions that viscerally define household and family within broader society?

That argument is both effective and, ultimately, instructive. Doctrinal objections to homosexuality pale for most people in the face of the human choices and human struggle we all share, regardless of sexual orientation. Recognizing our common struggle with those fundamental questions begets greater tolerance of homosexuality and a better appreciation of the civil rights we all wish for ourselves and must afford one another. We saw as much here in Vermont as, in a matter of a couple years, civil unions went from being a controversial bill, to a contested law, to an election year rallying cry, to an uncontested matter of civil law.

That argument doesn't extend to gay marriage.

The problem is marriage. Marriage conflates the legal protections granted a couple's commitment to one another with the social recognition of that union.

Vermont's civil unions debate clearly delineated the two. Civil unions acknowledged that the state has no business discriminating against, or interfering in, the private decision to join oneself legally to another. Like the civil marriage license I got in Tracy Hall before we were married, civil unions do not guarantee that others will approve of that private decision, only that the state acknowledges that choice and the legal privileges that choice entails.

In terms of civil rights and equal protection, both Vermont and homosexual Americans would be better off if, rather than enshrining gay marriage, we instead extended civil unions to heterosexuals, replacing the marriage license with a civil union license. With a universal civil union license, both homosexual and heterosexual unions would be on an equal footing legally. The matter of social acceptance and definition of marriage would be left to the religious and social institutions those couples choose to sanctify and celebrate their union. Many faiths and institutions will allow "gay marriage" ceremonies and many will not. Whether a couple calls themselves married or partners is left to social norms, but the rights inherent in that choice to join together as a household and family would be supported by law.

It would also create the legal framework for extending similar rights throughout the country, not as an "assault on the institution of marriage," but as a matter of fairness and equality. That legal framework, firmly planted in the language and law of civil rights, can prevail across the country and in the federal courts. Both women's sufferage and the civil rights struggle of African-Americans followed a similar course, eventually recognizing that our laws should and must prohibit discrimination, but cannot legislate social acceptance.

In this respect, the gay marriage campaign can only become more entangled in the confusion between social acceptance and civil rights. The longer and harder proponents demand that the social institution of marriage be extended to gay couples as a matter of law, the more their campaign for civil rights will be stymied by a social backlash to an effort to redefine "marriage." A large number of states have already amended their constitutions to prohibit gay marriage. I don't see this Supreme Court striking down those state constitutional provisions on the basis that "marriage" is a fundamental right. I do see a real risk of the civil rights question being hijacked by social conservatives nationally and a long, acrimonious campaign to amend the federal constitution to prohibit gay marriage nationally.

The politics of gay marriage may work in Vermont, but it's a loser nationally. The civil rights struggle encapsulated in our pioneering civil unions law may not give good-hearted Vermonters the same sense of accomplishment, but it's a legal juggernaut that could and should eventually transform the nation. I am proud of my state for pioneering that path, forged from an open and difficult debate. This next step, I fear, is actually a step backwards.

Good Faith . . .

I've been taking part in an interesting (to me at least) exchange over at "anemic volunteer":

http://anemicvolunteer.blogspot.com/2009/03/new-low-in-norwich.html

The anonymous anti-Alison May slogans were the spark for this exchange. As the discourse has developed, a familiar theme has emerged: How to participate "safely" in the public sphere.

This theme was echoed at Town Eating Day as people there discussed how disrespect and faction are disincentives to civic participation. One proposal floated would have the selectboard meet in open session, but without public comment, so the selectboard could engage with one another in a "safe" environment. The sincerity of that proposal speaks volumes to the state of public discourse in this town.

The "Anyone but Alison" sign author (AKA "Anemic Volunteer") articulates these concerns more personally:

The problem with "rational discourse" is that it is susceptible to being derailed by one party pretending not to understand what the other person says in order to derail the debate. It is the discursive analog to the old union trick of "working to rule." It happens all the time in dysfunctional families - and it happens in small town politics, and it happens at the national level as well. Reasonable discussion depends on good faith. But good faith is not always present.

Good faith is not always present, true enough. Worse, good faith is a fragile state, easily poisoned by even a hint of bad faith.

"Faith" is the operative term. Do we have faith in the good will of our neighbors sufficient to sustain us through their occasional bouts of ill will expressed out of frustration, impatience, or a loss of faith?

Anemic Volunteer suggests -- without meaning to offend -- that I have faith in public discourse because that discourse "works" for me:

Watt seems to think that I should have worked within the system, which is a natural perspective for those for whom the system works, and enjoy working it.

Without wishing to offend, I have to say statements such as these dumbfound me.

Where is this "system?" What am I doing that suggests I work effectively within it, or that it works for me?

This system is us, our legal authority to determine our own collective fate guaranteed by an exceptional Constitution and an enlightened state. What we do with that authority -- how we engage one another within those parameters -- is a rich and varied drama. At its best, it forces us to face our own provinciality as we learn to see other perspectives on an issue. At its worst, it forces us to face our own provinciality as we find we're unable or uninterested in seeing other perspectives. There is no end point, just the journey, because democracy must perpetually renew itself or lapse into something else. The journey is the reward. Faith in that journey, in the renewing capacity of engaging others with humility and respect, becomes good faith because there's really no other choice.

. . . and the Problem With Anonymity

Listening to Anemic Volunteer's justifications for posting anonymous signs has helped me understand my real gripe with anonymity.

There is something fundamentally wrong with feeling entitled to show disrespect towards an individual while hiding behind anonymity or a pen name to protect oneself from a reciprocal, disrespectful, reply. Why are you entitled to indulge your frustration and impatience while seeking to exempt yourself from the frustration and impatience your statements provoke? It's unfair.

But it's also self-deceiving in my opinion.

When we cloak our identity we no longer speak as ourselves. Knowing we're buffered from accountability, we're free to indulge ourselves to an extent we're unlikely to reach otherwise. It is said that character is who you are when no one is looking. The social constraints of our public identities may well be our strongest incentives towards decency and mutual respect. Accountability in the public sphere ultimately rounds off our sharper edges and intimidates the lesser angels of our spirits. What better education can there be for an adult than the consciousness that one be well advised to consider carefully one's words in light of how others may hear them? Anonymity negates those cares, to our collective detriment.

Seniority Preamble (Cross-Post)

(A comment to this blog post: http://anemicvolunteer.blogspot.com/2009/03/why-i-am-anemic-volunteer-part-1.html)

There is one important function to this seniority preamble in my opinion. It reveals whether an individual has lived in town long enough to have a reasonable chance of gathering why certain walls were built before advocating to tear them down.

The social necessity of testifying to one's term of residency is a nod to the cultural struggle occuring here in Norwich and throughout rural America to some degree. At its worst, that struggle flares up in the form of a Ruth Dwyer and the "Take Back Vermont" sloganeering of a few years back. At its core, the struggle is far less invidious, but probably much more important.

The rural agricultural traditions of this town and region are giving way to an urban/suburban ethos which values the physical rural character of the place, but runs roughshod over the rural character of the community and its institutions. In the past two decades this town has abandoned traditional town meeting, instituted a town manager form of government, and professionalized its police force and fire department. These changes aren't necessarily bad, but they signify a departure from the libertarian self-reliance and consensual interdependence of the community and institution which they replace.

I'm as guilty as anyone in town, spending some time on the town manager review committee and toiling for some years in an effort to bureaucratize land use regulation in town.

I don't think having spent my entire life in Norwich would have changed my views -- there have been plenty of life long residents behind these efforts as well.

I do think I've been around long enough to recognize some of the costs to these changes, enough to question those costs at least. And they aren't insignificant, but that's another topic.

Political Signs

An interesting question was raised this evening at Town Meeting by Jim Adler at the very end of the meeting. He rose to speak against a campaign sign which appeared in front of the Simpson townhouses Monday morning. The sign read something like "Alison May - Not!"

Jim spoke against the negative sentiment expressed in the sign, arguing that there was no place for negative campaigning such as this in a small town. He went on to state that he had removed the sign on his own initiative and, if anyone felt their First Amendment right to free speech had been infringed by that removal, they should speak to him directly.

I thought for a moment to rise and express my own view on the matter, particularly as Jim's statement received a good deal of applause, but it was late and people were ready to go home. So I'll state it here: I disagree with Jim on both points and believe his sentiments and actions ultimately illustrate why the First Amendment is necessary.

I first saw the sign in question driving out of town this morning. I do not endorse or support either Alison May or Sharon Racusin in this race so my susceptibility to partisan outrage may be rusty here. My first thought when I saw the sign was, "Does Sharon Racusin realize this sign is out here?" I don't know the answer but understand she is away.

To my mind, such a negative statement raised the question whether Sharon supported that kind of campaigning. If not, I felt, she had perhaps been done a disservice by whoever placed the sign. On the other hand, if Sharon actually supported that kind of campaigning, voters could make their own conclusions about her methods. The real menace of the sign was not, in my mind, the negative statement towards Alison May, but the implication Sharon Racusin was behind it -- an implication Sharon is not around to disavow or defend.

By removing the sign, Jim Adler unilaterally shut down a debate which might well have developed in a direction quite different from his initial, visceral reaction. Norwich voters have steadily punished divisive candidates over the past few election cycles and the possibility those signs might backfire would be a far stronger disincentive to that kind of campaigning than any scolding at the waning moments of town meeting might do. Instead we're left to decide between negative campaigning and self-anointed censors of political speech. Personally, I prefer negative campaigning because I can vote against them.

I also disagree with the implication of Jim's challenge to those who placed the signs -- taunting them to come speak to him directly if they felt he had infringed on their right to free speech. Want to know why Vermont towns continue to abandon open floor voting at town meeting for the secret Australian ballot? Look no further. The right to one's own conscience within a democracy does not easily survive the opprobrium of exposing one's views to the self-certain righteousness of certain neighbors. Jim may feel very strongly that there's no place for negative campaigning in Norwich, but why does that sentiment trump the sign-maker's apparently equally strong feeling that there's no place for Alison May on the Norwich Selectboard? In a nation of laws it does not. Our Constitution says protect the right to free speech and trust the people to determine whether the speaker is an idiot. Idiots can't keep their mouths shut for long. On the other hand, the power to silence deprives not simply the right to speak out, but also the right to hear what is said, think about it, and decide for oneself.

Jim, in my opinion you've acted rashly both in removing the sign and trumpeting the fact at town meeting. I hope some of the many who applauded you this evening will weigh in here to help me understand what was laudable about it.

And next time, please, instead of removing the sign that offends you, put up a sign right next to it saying, "Is this what we want in town government?" or "Is this leadership?" or maybe just a sign with an arrow pointing at the offender saying "I'm with stupid."