Saturday, March 27, 2010

A Pennsylvania legislator advocates marriage equality in debate with Maggie Gallagher: mishegas and the heckler's veto

Daylin Leach, a Pennsylvania state Senator, advocated marriage equality in a March 24th debate with Maggie Gallagher, executive of the National Organization for Marriage. (Proposition 8 and the Right to Marry) Senator Leach is author of the first bill (SB 935) to overturn the state DOMA (23 Pa.C.S.A. § 1704), even though a state judge recently upheld the DOMA's constitutionality.

You can watch the debate here. At, Senator Leach summarizes Gallagher's arguments and how he answered them. Gallagher is a cogent debater, but she more than met her match. Senator Leach graces his intellect with rapier wit and disarming charm. These are rare gifts for an elected official.

Of course, my comments represent no substitute for watching the debate or reading Leach's post. I offer my own selective summary to highlight particular points of interest.

Leach identified grave harm to same-sex couples and their children from marriage inequality. Given the nature and extent of this harm, he said that government's continued unequal treatment of same-sex couples requires compelling justification. To justify current bans on same-sex marriage, Gallagher relied on the familiar arguments that are her hallmark. She predicted that if the state allows same-sex couples to marry, state protection of their right to marry would undermine what she understands as marriage's unique and fundamental purpose - to ensure that a child will have a mother and a father. As a result, fewer families will have mothers and fathers, and children will be harmed. Her prediction depends on speculation. She speculates that, in at least two ways, the government would "marginalize" marriage's alleged purpose. The state would require public schools to teach students that society has no reason to privilege different-sex marriages; and the state would penalize religious believers in traditional marriage.

Gallagher raised the canard of "public school indoctrination" that, in their respective campaigns, Prop. 8 and Yes on 1 proponents successfully deployed against marriage equality. If same-sex couples can marry, then public schools will be required to teach students that a child does not need a mother and a father, and that anyone who believes otherwise is a bigot. When these students reach adulthood, they will have less incentive to form two-parent families, leading to more "fragmented" families. Presumably because more children will grow up in single-parent households, Gallagher concludes that "down the road...a lot of kids will be hurt."

Gallagher also claimed that if Leach's legislation was enacted, the state would "impose" a "definition" of marriage on organizations and individuals that offends their religious principles. She invoked the case of a lesbian who sued a California evangelical physician for refusing to carry out artificial insemination, even though he identified alternative providers. However, in North Coast Woman's Medical Care Center, Inc., v. Superior Court, the California Supreme Court ruled that constitutional protection of their religious speech does not exempt physicians from the Unruh Civil Rights Act, which bans discrimination on the basis of sexual orientation. Same-sex marriage was never at issue in the case, although Gallagher implies that it was because it was decided at almost the same time as In re Marriage Cases. Moreover, Gallagher warned that religious charities could lose their tax-exempt status, and that Catholic Charities would do what it did in Massachusetts and D.C., by withdrawing its adoption and foster care services. But whether or not Massachusetts and D.C. had adopted marriage equality, each has laws barring Catholic Charities from discriminating on the basis of sexual orientation.

Leach observed that same-sex marriages will not stop opposite-sex couples from marrying and raising children, and will not somehow dispose heterosexuals to change their orientation to pursue same-sex marriage. Public schools already have a responsibility to instill respect for tolerance, but their curricula need not incorporate discussion of same-sex marriages. Just as the Texas Board of Education recently adapted public curriculum to conservative ideology, voters could elect education officials to prohibit any instruction involving the subject of same-sex marriage.

Leach characterized Gallagher's objections as mishegas - "crazy talk" about the terrible things that would happen from same-sex marriage. He reduced the objections to variations of the "heckler's veto." The fallacy here involves those who disapprove of civil rights for an unpopular minority. They demand that discrimination continue because otherwise their less rational allies may resort to deplorable forms of confrontation, including violence. Here the heckler's veto applies by analogy to Gallagher's warning about alleged dangers to public school students, and evangelical physicians and Catholic Charities. To prevent the horribile dictu, Gallagher insists that same-sex couples must be deprived of a fundamental right. Leach contends that she and her supporters are not entitled to a version of the heckler's veto.

No comments:

Commentators, Subjects and Cases