Tennessee House Bill 1406 – Seriously?

Tennessee Republican House Members Terri Lynn Weaver and Joey Hensley introduced this obnoxious bill on February 9, 2017 that seeks to delegitimize children born of artificial insemination.

Tennessee House Bill 1406

Introduced February 9, 2017

Children – As introduced, repeals statute that deems a child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, to be the legitimate child of the husband and wife. – Repeals TCA Section 68-3-306.

Why? It is all about gay marriage. In 2016, there was a case in Tennessee of two lesbian women who were divorcing and arguing in court over custody of the child. The child and been conceived by one of the women through artificial insemination.

Weaver, Hensley and other Republicans joined with the conservative Christian group The Family Action Council of Tennessee to file a motion in the cases. Part of the legal arguments centered around whether that Tennessee law that recognizes rights of a child born to a married husband and wife should be interpreted to cover any legal married arrangement. The FACT motion argued that it should only apply to marriages between a man and a woman.

This bill is apparently their way of hedging their bets in case a court ultimately holds that the existing law applies even if the married couple are two women.

Odawa Indians Perform First Gay Marriage in Michigan

In Michigan, where I live, a 2004 ballot measure amended the state Constitution to prohibit the state for recognizing same-sex marriages. That restriction is being challenged in Federal court, but a ruling on it has been delayed until the US Supreme Court decides the two same-sex marriage cases it recently heard arguments on.

In the meantime, the Little Traverse Bay Band of Odawa Indians tribal council recently voted to allow gay marriages and tribal chairman Dexter McNamara quickly performed the first such marriage in Michigan.

And because of tribal sovereignty, the state’s constitutional ban doesn’t apply here,

Out of 500 federally recognized tribes in the country, and a dozen in Michigan, the Odawa tribe became the first ever to legalize gay marriage in the state and only the third in the nation.

And because of tribal sovereignty, neither the state’s constitutional amendment prohibiting gay marriage nor the federal Defense of Marriage Act can stop them.


The War Over Gay Marriage Is Already Won

Over at Reason, Cathy Young wrote an uncharacteristically weak opinion piece on gay marriage, The Culture War Over Gay Marriage Is Here to Stay. Young argues that the debate over gay marriage pits traditional American values against each other — equality vs. a long-standing Judeo-Christian moral standard, for one — and because of this argues that the “culture war is here to stay.”

In fact, I think the reality is that while there are surely battles ahead, the culture war itself is already over and traditionalist conservatives lost big time. Consider Young’s analysis,

There is no question that religion has often been used to promote virulent hatred and contempt toward gays. Yet traditionalist objections to same-sex marriage include not only religious scruples but concerns about the consequences of sexual liberation that are shared by many people on secular grounds — concerns about a cultural environment in which 40 percent of children are born out of wedlock and half of all marraiges end in divorce. Is it bigoted to believe that it is ideal for children is [sic] to have a mother and a father, or to worry that same-sex marriage will further uncouple marriage from childbearing and thus make it harder to answer the questions, “Why wait for marriage before having children?”

Don’t get me wrong — these are indeed serious issues. But from a purely descriptive point of view, hardly anything is being done about this. Everyone decries the out-of-wedlock and divorce figures, but it isn’t like there is a mass movement to stigmatize low-performing heterosexuals.

Few people on the right, for example, see Newt Gingrich’s multiple divorces and apparent acts of adultery as in any way deligitimizing his criticism of gay marriage. In fact it is all but unthinkable that anyone today would propose any sort of sanctions on “illicit” heterosexual relationships that used to be common in this country.

The reality is we might strongly dislike the divorce and out-of-wedlock birth rate, but we place a much higher value on our own personal sexual freedom. And that completely undermines all of the traditional arguments about gay and lesbian sexuality which is why the last 30 years have seen barrier after barrier restricting homosexuals fall. Barring the last minute rise of some anti-sexual freedom mass movement, the culture war is already over and it is just a matter of time before gay marriage becomes legalized throughout the U.S. despite the objections of its opponents.

California’s Proposition 8 and the Double-Edged Sword of Judicial Activism

The Los Angeles Times ran an interesting story last week analyzing why Proposition 8 passed in California. Among other things, the story highlights the strategy by Proposition 8 supporters of trumpeting the alleged long-term effects of allowing gay marriage above and beyond the fact of the marriages themselves,

They were able to focus the debate on their assertion that without the ban, public school children would be indoctrinated into accepting gay marriage against their parents’ wishes, churches would be sanctioned for not performing same-sex weddings and the institution of marriage would be irreparably harmed.

Supporters of gay marriage, along with political leaders including Sen. Dianne Feinstein (D-San Francisco) and the state’s superintendent of public instruction, denounced those messages as scare tactics, but they were not able to sway voters. Preliminary returns showed Proposition 8 passing 52% to 48%.

Repeatedly opponents of Proposition 8 said the idea that courts would force churches to perform same sex marraiges was absurd. But is it really any more absurd that a future court might require churches to perform same sex marraiges than it was that the California Supreme Court found a right to gay marriage in the state’s constitution to begin with?

After all, at one time it was probably considered absurd that courts would require Catholic charities Catholic Charities of Sacramento to cover birth control for their employees, but in 2004 the California Supreme Court ruled that, in fact, they were legally obligated to do so.

Or switch the positions here. In 2004, Michigan was one of 11 states that passed ballot initiatives banning gay marriage. One of the arguments that opponents of that ban made in Michigan was that the ban would have far-reaching effects including making it illegal for government agencies to offer health care benefits, etc. to domestic partners of gays and lesbians. Proponents of the ban ridiculed that claim and said all the initiative would do was ban marriage.

But in 2007, the Michigan Court of Appeals ruled that all domestic partner benefits (whether for heterosexual or homosexual couples) was unconstitutional under the marriage ban language, and earlier this year the Michigan Supreme Court agreed.

That’s the problem with this wave of judicial activism, whether it be for conservative or liberal purposes — it creates a great deal of uncertainty so that claims that a piece of legislation will or will not have a specific effects are largely meaningless.

Would the California Supreme Court require churches to marry gay couples? Almost certainly not, but who is to really say in an era of judicial activism on all sides.

Gay Marriage Is Inevitable

Glenn Reynolds has some interesting thoughts about gay marriage as a campaign issue. Bottom line — there seems to be little substantive difference between Kerry and Bush on the topic. The main difference is that Bush supports a defense of marriage amendment to the Constitution which he can do because he knows it has no chance of coming to pass (much as he has endorsed re-upping the assault weapons ban largely because he knows it’s just not going to happen).

I’ve posted before about the inconsistency of gay marriage supporters, but whether you support or oppose it, it is clear that legalization of gay marraige is all but inevitable.

Reynolds quotes Julian Sanchez as writing,

I spot the one Ben Sherman in a solidly Brooks Brothers room (actually Benetton, I discover, but Benetton trying to look like Ben Sherman) and try to suss out how gay Republicans are feeling in light of the Federal Marriage Amendment push. And his answer’s a pretty good one: That the gay rights issue is largely a generational one, and that it’ll be won inside of 10 or 15 years as a result of demographic changes regardless of which party’s in power.

In the late 1980s I was sitting in a philosophy class in which the topic had turned to forms of government and balancing civil liberties with other interests. The topic of homosexuality came up, and the professor asked how many people in the class of about 50 thought there should be laws against homosexuality. Not a single person, even the conservative Christians in the class, thought these were a good idea. To me the question was almost incomprehensible, similar to asking whether or not there should be laws against blasphemy.

It seem to me all but inevitable that laws that define marriage as only between a man and a woman are destined to fall, though I’d pushed the timeline out further to 25 years.

BTW, this is unrelated, but I got my first glimpse at just how odd this sort of tolerance is in another philosophy class. The first day of the class there were a number of Muslim women in full conservative dress. They all got up and left about 15 minutes into the course and never came back. Why? According to the instructor, this philosophy of science course would consider the implications of Big Bang cosmology on theistic arguments for the creation of the universe, and these women did not want to sit in any class in which they might have to read or consider arguments that they believed went against the Koran.