Monday, February 15, 2010

Opposing measures by two Pennyslvania state Senators on same-sex marriage: Part 1 in a series

Last year, Senator Daylin Leach became the first state legislator in Pennsylvania to introduce marriage-equality legislation (SB 935). His colleague, state Senator John Eichelberger, has recently introduced a resolution (SB 707) calling for a constitutional ban on same-sex marriage, even though Pennsylvania is one of 45 states that already bans same-sex marriage by statute (23 Pa.C.S.A. § 1704).

In 2006, Republican state legislators in Pennsylvania tried to make a ban part of the state constitution, and they tried to do so again in 2008. A year later, Eichleberger proposed (permanent link) re-introduction of a constitutional amendment to ban same-sex marriages. Having acted on his proposal, he now joins legislators in New Mexico, Indiana, New Hampshire, West Virginia, and Iowa who seek legislative approval of amendments to "defend marriage," and voter adoption of the amendments.

This is the first part in a series on why Senators Leach and Eichelberger have pursued their rival measures. I will summarize their debate on a June 19, 2009, program of WHYY Radio Times with Marty Moss-Coane. I have the honor of a guest contribution from Senator Leach, and a tentative commitment for a guest contribution from Senator Eichelberger. I am still hopeful that Senator Eichelberger will participate. A second part will follow tomorrow, featuring commentary by Senator Leach. He will explain why voters should not be allowed to determine whether same-sex couples have a right to marry.

In the WHYY debate, Eichleberger expressed his concern that the ACLU, or other advocacy organization, will represent Pennsylvanian same-sex couples in a lawsuit to overturn the state DOMA. He did not identify any plans of a lawsuit, and he does not expect one to succeed, but to prevent a challenge based on state law, he thinks that Pennsylvania must add the ban to the state constitution. He repeatedly derided "activist courts" as those that have upheld marriage equality under their respective state constitutions. (These states include Iowa, Massachusetts, Connecticut, and - until Prop. 8 - California.)

Eichelberger believes that heterosexual marriage represents a "proven model" of stability for families and of benefits to society. He referred to a number of studies showing that children do best with a mom and dad as parents, and that divorce and "out-of-wedlock" births have increased in "Scandinavian countries" with legalized same-sex marriage. He also believes that marriage equality for same-sex couples entails marriage equality for polygamy. Finally, he holds that same-sex relationships represent "lifestyle" choices that the state should not sanction.

Leach praised Eichelberger as a friend and as one of the smartest members of the state Senate, even if he finds that Eichelberger has positioned himself on "the wrong side of history." Leach made an impassioned, eloquent case for marriage equality. He compares discrimination against same-sex couples with prior discrimination against interracial couples, noting that the U.S. Supreme Court - then considered an "activist court" - invalidated anti-miscegenation laws in 1967. [Loving v. Virginia, 388 U.S. 1 (1967)] He observes that the same objections once raised against interracial couples have now been raised against same-sex couples. [footnote 1]

Having tried to exhaust research on the subject, Leach found that that same-sex couples are no less capable of parenting than opposite-sex couples. He challenged his colleague to identify the studies he relies on for his claims about heterosexual child rearing and adverse effects of same-sex marriage. Leach argued that same-sex marriages would bring the same benefits to society as heterosexual marriages do; that the current ban harms same-sex parents who would otherwise marry and their children; that sexual orientation does not depend on a deliberative choice but on a person's core identity; and that society should encourage stable, monogamous relationships regardless of sexual orientation.

Of course, my summary of the debate represents no substitute for listening to it. Eichelberger strikes me as a very able advocate for "traditional marriage," capitalizing on divided public opinion. Leach, on the other hand, seeks to build public support for marriage equality. He rejects civil unions even as an interim alternative to marriage, because they would "stigmatize" same-sex couples and perpetuate their inequality. He sees his legislation as a hopeful part of a larger civil rights "struggle."

Leach said during the program that voter majorities must not be allowed to deprive unpopular minorities of fundamental rights, including the right to marry. Tomorrow's post will include Leach's comments on just that issue - comments he prepared in the aftermath of Maine's referendum on Question 1. And I very much hope that Senator Eichelberger will honor this site with his comments.

Footnote 1

See also: Gregory Johnson, We’ve Heard this Before: The Legacy of Interracial Marriage Bans and the Implications for Today’s Marriage Equality Debates, 34 Vt. L. Rev. 277 (2009)

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