9th Circuit, Books, David Boies, Family Law, Gay, Gay Marriage, SCOTUS, Supreme Court, Ted Olson

Debating Same-Sex Marriage: An Interview With John Corvino

Professor John Corvino is the co-author of an excellent new book, Debating Same-Sex Marriage. The book consists of a debate between Corvino, who supports gay marriage, and Maggie Gallagher, who opposes it — and who has, through her work for the National Organization for Marriage, vigorously resisted the legal recognition of same-sex marriage.

The issue of gay marriage can be divisive, but the book has in many ways been uniting. In addition to bringing together Corvino and Gallagher — who have done numerous joint events to promote the book, despite their very divergent views — even the book’s blurbs have made for strange bedfellows. In the words of Dan Savage, author of the Savage Love sex advice column, Debating Same-Sex Marriage “is the first and, without a doubt, the last book in the whole sordid history of books that will be blurbed by both me and Rick Santorum.”

Over the weekend, I interviewed Corvino about the issues discussed in the book, with a focus on legal issues relating to same sex-marriage….

DL: First of all, congratulations on the book, which is great — smart and engaging and a pleasure to read. You and Maggie do a superb job of taking a familiar debate and simultaneously making it fresh while also comprehensively covering the existing arguments for and against same-sex marriage.

Your background lies in philosophy, and your arguments in the book are primarily philosophical. Our readers here at ATL are primarily lawyers and law students. What role would you say the law has to play in the debate over marriage equality?

Professor John Corvino

JC: Thanks for the kind words. And I’m happy to talk to lawyers. After all, I’m married — well, “married” — to one. [Corvino lives in Michigan, which constitutionally prohibits same-sex marriage or similar unions; his partner is a privacy compliance attorney.]

Marriage is interesting in that it’s a legal construct, but not merely a legal construct: it’s also a personal commitment and a social institution and religious sacrament and so many other things. But one thing Maggie and I agree on is that the law is powerful in shaping the other facets of marriage. It simultaneously acknowledges a pre-existing institution and also re-shapes that institution.

Of course, the legal incidents of marriage can be crucial, especially during the “for worse” moments of “for better or for worse”: sickness, financial trouble, legal trouble, separation, death. But legalizing marriage for same-sex couples is only part of the picture. It’s one thing for the state to recognize your union, and another thing for your parents to show up at your wedding and be happy for you. I’m interested in both.

DL: On the subject of legalizing marriage for same-sex couples — just part of the picture, but certainly an important and interesting part — we’ve been closely following the progress of the Perry / Proposition 8 litigation. Ted Olson and David Boies just filed their opposition to Supreme Court review in the case. The case was controversial in LGBT advocacy circles when it was first filed. What are your views on it?

JC: On the merits, I agree with Olson and Boies. As a political matter, given the current makeup of the Supreme Court, I’m uneasy. But the fact that the Ninth Circuit ruling is very California-specific gives me some cautious hope that the Court may let it stand, or at least respond with a very narrow ruling if they do end up reviewing it.

DL: One of the witnesses who testified in favor of Prop 8 during the Perry trial, David Blankenhorn, recently announced a change in his views on same-sex marriage. This was, interestingly enough, shortly after he moderated a great event with you and Maggie here in New York — so I guess he found you persuasive! What do you make of Blankenhorn’s switch?

JC: I’d like to think I had a role in persuading Blankenhorn, but his evolution has been a long time coming. Blankenhorn has never been an “all or nothing” guy on this issue. He has long described the debate over marriage, not as a battle of good against evil, but as a battle of competing goods. So I was doubly encouraged by his shift: It was a victory for the pro-equality side, yes, but it was also a victory for nuance and thoughtful engagement. Blankenhorn grappled with the evidence, and he changed his mind as a result of it. Good for him.

DL: Speaking of nuance and thoughtful engagement, those are things I especially appreciated about the book — the rational and respectful engagement between you and Maggie Gallagher. That kind of discussion — which I would call “lawyerly,” in the best sense of the term — can change minds, as reflected in the evolution of Blankenhorn’s views. Which leads me to the future of this issue. Making predictions can be dangerous, but fun. Where do you see the courts or the legislatures going on same-sex marriage? How long will it take for same-sex couples to have the right to marry in every state?

JC: Even Mississippi? I think we’ll get many of them within the next decade, maybe fifteen years. There are a just a handful of states where I think it’s do-able in the next couple of years. After that, we’ll have to start working on the states that have passed anti-gay marriage amendments. My current home state of Michigan has a nasty “marriage-plus” amendment, prohibiting same-sex marriage “or similar union for any purpose.” One strategy we may see will be an attempt to knock out the “plus” in those marriage-plus states. That will take some effort, but the trends are pointing in the right direction. Of course, it’s unlikely to happen in certain deep red states without some help from the Supreme Court, and that will take a while.

It will be interesting to see what happens this fall, as Maine, Maryland, Minnesota, and Washington State vote on marriage amendments. Several of those are cases where voters will be directly deciding whether to allow same-sex couples to marry. I predict that for the first time, we’ll see marriage equality win at the ballot box, and that win will be significant. People can complain, however unfairly, about “activist judges” and “activist legislatures,” but they’ll have a hard time griping about “activist voter majorities.” Not that I think this should be put to a popular vote, but that’s where we are.

DL: As you noted earlier, law is just one piece of the puzzle here. Where do you see public opinion going? How long will it take for us to reach a point as a society where all — or almost all, or many — parents will show up to their kids’ same-sex weddings and be happy for them?

JC: The positive trend is clear. At the same time, it’s also clear that some of the remaining opposition is quite deep, and we don’t always do a good job of reaching across the divide. I’ve been doing gay-rights work for twenty years, and one thing I’ve noticed is that our rhetoric hasn’t quite caught up to our goals. When I started doing this work, we were still fighting anti-sodomy laws in many states. The rhetoric of privacy and “leave us alone” made sense in that context. But marriage isn’t about “leave us alone,” it’s about a kind of inclusion in the social fabric. So I think we need to do a better job of articulating the case for why same-sex relationships are a positive good in people’s lives, not just a right to be tolerated.

Our opponents spend a lot of time saying that this debate is about children’s needs. It is, but not in the way that they think. It’s in part about the needs of the quarter-million children in the U.S. who are currently being raised by same-sex couples, often without access to the protections of marriage. But it’s also about LGBT kids who need to know that they can aspire to “happily ever after” too. They’re the main reason I keep doing the work that I do.

DL: That’s absolutely right. Thanks for taking the time to chat, John. And congrats again on the book!

Debating Same-Sex Marriage [Amazon (affiliate link)]
Q&A With John Corvino [The Stranger / Dan Savage]
Prop 8 Opponents Urge Supreme Court To Pass On Appeal [BuzzFeed]
How My View on Gay Marriage Changed [New York Times]

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