Marriage by the numbers.

The 2010 census says the US population was 308,746,000. Of course, it has changed a bit since then but for my purposes is good enough.

What percentage of Americans have the legal right, even if they don't have the inclination, to enter a same-sex marriage?

As of now, citizens in Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York and Vermont have that right. Republicans are attempting to reimpose regulations in New Hampshire and Iowa to strip away that right. But it doesn't appear to me they will succeed.

According to the Census the population in those states amount to 33,774,000. That is about 11% of all Americans have this right as of now.

It is expected that the Washington state Senate will pass a marriage equality bill in the next few hours. The House will follow and the total should rise to 40,499,000 or 13% of the population. There is a very good chance that Maryland will also support marriage equality in the next few weeks, though not as good as in Washington, where it appears to be a done-deal. If Maryland joins in granting marriage freedom to same-sex couples the number of Americans with this right will grow to 46,273,000 or 15% of the population.

Gay 911 victims treated differently.

Another lie from NOM and Maggie Gallagher

NOM, the National Organization for (sic) Marriage, is one of the most deceitful Religious Right groups around. Often their lies are quite subtle, as they are in this ad. They claim: "After swearing on a Bible to uphold the law and defend the Constitution, he's (Obama) made a shocking move: he unilaterally decided to no longer defend our country's Defense of Marriage Act, or DOMA, which is the federal law that defines marriage as between one man and one woman."

One thing about this is true, this is a federal law that defines marriage! Ron Paul, pay attention, the State's Rights excuse to defend DOMA is bullshit, even the rotund Maggie Gallagher admits as much. This is a federal definition of marriage which strips the states of the right to define marriage locally.

As for Maggie's lie, notice the way they smuggled into the oath of office something that isn't there at all. The oath of office says:

"I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Maggie smuggled into the oath something that is not there. She has her voice over artist intone that Obama swore "to uphold the law and defend the Constitution." FALSE. No president swears to uphold the law, they all swear to uphold the Constitution. Why not both? Simple; sometimes laws violate the Constitution. The president's job is to uphold the Constitution and that sometimes means refusing to defend various laws.

There is another subtle lie in Maggie's new ad (how much Mormon money funded this?). Upholding the law and defending the law are not the same thing. The Obama administration, to their shame I might add, have said they would uphold DOMA, which means enforce it. What they aren't doing is defending it in court any longer.

This is actually rather pathetic if you think about it. As much as the Right pretends to be staunch defenders of the Constitution it is Obama who is on firmer ground here. First, DOMA does violate the jurisdiction of the state's to define marriage. DOMA created a federal definition for marriage, which had never been done before. Marriage was always a state issue. So Obama is defending the Constitutional separation of powers by refusing to defend a law that violates those principles. It is the Maggies and Ron Pauls on the Right who continued to defend the unconstitutional usurpation by the federal government to define marriage.

Second, Obama's oath to uphold the Constitution requires him to oppose laws that defy constitutional limits on power. No, Obama does not do that consistently. He, like Georgie Boy before him, is a power-hungry politicians who creates powers for himself which simply don't exist in the Constitution. He supports a plethora of unconstitutional laws, and wars I might add. That doesn't change the fact that in this case he is right, and the Right is wrong. So, not only is Obama not violating his oath of office, he is actually living up to it, in this one case.

What upsets Gallagher, Morse and other bigots with messages from God, is that Obama is not violating his oath by fighting to impose a religiously defined concept into the law. Listen for just two minutes to the anti-marriage crowd on the Right and you will constant invocations of the Bible, Jesus, God, the Catholic Church, the Mormon Church, ad nauseum. The simple truth is that their religion tells them what marriage ought to be and they then want their religious beliefs enforced on everyone in the country. That has Constitutional issues as well. As hard as they try they simply haven't not come up with anything remotely convincing to support their case, outside of religion.

I am not saying the religious arguments are convincing. Please! The magic man in the sky argument only goes so far and it just doesn't get the same traction it used when most people believed in witches, demons, magic spells, portions and prayers. But in watching this debate for the last few years I've seen little in the way of rational, factual argumentation on the part of the anti-equality lobby. In the end they resort to claims of the supernatural. It was once said that patriotism is the refuge of the scoundrel, well it seems that theology is the refuge of the moron.

Fisking Old Jenny and Her Clownish Comments.

In a previous life I knew Jenny Roback, now known as Jennifer Roback Morse, or as she likes to call herself, Dr. J. Here is a video she made of herself. Too bad, if someone else had done it she could have sued them for libel. Watch the video and then read the comments below.



The Jenny Roback I knew was a nice woman, a secularist and one who held fairly radical views about marriage. She and her hubby, Robb, held a ceremony denouncing the right of either church or state to declare themselves married. Jenny was a lapsed Catholic who was at war with her church—the altar-boy fondling sect won out. Jenny and Robb even participated in a gay pride march in Chicago.

But this is what she became when she went off the deep end into religious fanaticism. And I do mean fanaticism. She sits in adoration of hunks of plaster formed to look like what someone imagines the "Virgin" Mary to look like. She has said that she would do that for hours on end, just staring at the statue and adoring it. Even b.y normal religious standards that is pretty loony.

My first thought at looking at a still of the video is that Jenny is getting exactly what she deserves. She desperately needs a "queer eye" for the straight woman, but has so alienated the gay community that no one will tell her that her makeup belongs in a circus, not before a video camera. Adding to the clownish appearance is a multicolored scarf tied around her chins; this is part of her campaign to reclaim the rainbow for "God's people." She really does believe God created the rainbow for straight Christians—an absurdity on several levels.

We all age, I know that, but there is something really ridiculous when old women think they can cover up age with lots more makeup. It doesn't work. The cheeks don't look young and vibrant but bruised.

Let us go immediately to this bullshit about "Hi, I'm Dr. J." Jenny is allowing people to believe something that is, at best, deceptive. She got a doctorate in economics but was never really very good in the field. She was pretty much a second rate economist and not very productive. She wrote very little of substance and never made a contribution to that field worth mentioning. This was back when she was a libertarian and not a member of the Monster Raving Loony Party.

Then she accepted the Virgin Mary as her personal Lord and Savior, started adoring plaster, and hanging around with priests because she likes their sexual ethics. So she wrote a book attacking libertarianism called Love and Economics: Why the Laissez-Faire Family Doesn't Work. At this point she abandoned her commitment to human freedom and adopted the authoritarian Catholicism that now permeates her politics. Given that it was her first real book I read it and found it one of the most sadly argued books around, filled with the sort of logic that she would have pounced on only a few years earlier. But since she was blinded by the light she couldn't do that anymore. She has literally turned into an extreme caricature of the type of person she once found amusing. Now, the old Jennifer spends her time denouncing the young, wanton Jenny of University of Chicago days.

Calling herself Dr. J may fool the silly old women who flock around her anti-gay organization into thinking she has some sort of medical credentials. But the reality is that she studied economics, didn't exactly shine in that profession, and has since gone on to become a full time gay basher, which I suspect is far more lucrative than being a mediocre economist.

Now consider some of the gut-rot logic she uses and the implications of what she is saying.

"Previous generations of social experimenters have cause unimaginable misery for millions of people. Particular people advocated the policies that led to today’s 50% divorce rate and 40% out of wedlock childbearing rate. None of these people has (sic) ever been held accountable."


Ask yourself what the policies were that led to her phony 50% divorce rate statistic, a statistic so bad that it shows why she was never a particularly good economist. After years of making divorce difficult laws changed and the pent up demand for divorce was satiated. At the peak, in 1979, there was one divorce finalized for each two marriages performed. But that is not a 50% divorce rate. The divorce rate is the total number of divorces over the lifetime of marriages That claim ignores all the marriages that were already in existence that year. In addition, with the baby boom generation in decline demographically, the number of young people marrying would be lower than in previous years. But the numbers of people who were married already, and thus open to the possibility of divorce (you must be married before you can be divorced) was at a high. In particular years the numbers divorcing would be high compared to the total number of new marriages. But the total number of divorces, compared to the total number of marriages, has never reached 50%.

Divorce rates really increased in the late 60s hitting a peak around 1979. Since then they have been dropping. In 2008 10.8% of the population said they were divorced, 50.2% said they were married, 2.2% said they were separated and 30.8% said they were single. But those married includes some people who said they were divorced before. In 2001 it was estimated that 21% of men and 23% of women, over the age of 15, had been divorced at some point in their life.

Even assuming Jenny got it right what would she rather do, make divorce a crime? The "policies" she is attacking are laws that allow men and women to terminate the marriage contract. Is Jenny saying that there should be no freedom in contracts as well? Would she prefer that women be forced to stay in bad relationships?

My mother never divorced my father. She should have. He was abusive to her and to us. Had my mother left him she would have had fewer bruises, and so would I. The policies that Jenny is attacking because of her religious views are policies that allow women to flee abusive relationships and take the children with them. Jenny is horrified at that. Being an adult who suffered the abuse of a bad marriage I can only damn her for her cruelty and stupidity. I and my siblings would have been better off if the divorce rate was slightly higher because our mother got the courage to leave a violent, drunken husband. As bad as her anti-gay bigotry is, Jenny's desire to make divorce harder is even worse. It literally damns women and children to remain in abusive situations longer by making divorce more difficult.

Notice also she said she laments that the people who advocated legalized divorce were never "held accountable." What does that mean? Prison? Fines? Shunning? She doesn't even attack people who passed laws allowing divorce but is attacking everyone who "advocated" such things and wants them held accountable, in some unspecified way. Jenny doesn't just want state oppression of gay people. In her defense of marriage she wants the heavy hand of the state to prevent divorces for straight people as well. She wants everyone subjected to her twisted theology and is demanding that her religious views be made the law of the land.

Jenny then issues a warning that she will hold to account advocates of marriage equality, "for the predictable harms you will cause by redefining marriage." I suspect that didn't scare anyone, except those who suffer from coulrophobia.

Jenny defines marriage in a uniquely Catholic way, a way that other Christians didn't used to accept, though fundamentalists are now adopting that "papist" view because they hate gay people more than they hate Catholics. Jenny says: "Marriage attaches mothers and fathers to their children, and to one another." And what of marriages that contain men and women who are not mothers or fathers? The anti-equality crusaders have to ignore marriage as a relationship between loving spouses because they can't immediately exclude the group they despise: gay people. The Christian thinker, John Milton, took that argument on back in the 1600s when he advocate legalized divorce.

Milton, using Christian theology, noted that the first marriage was that of Adam and Eve and that the first purpose of the marriage was companionship. The mandate to reproduce and have children came later. Milton said marriage was "to comfort and refresh... against the evils of solitary life."

What Jenny is doing is defining marriage in a way that smuggles in her conclusion. She starts with her conclusion as her premise. Next, she ridicules any marriage that isn't focused on reproduction by calling them "inessential" and and focused on "frivolous private purposes."

Jenny's view is essentially that marriage exists only for procreation, that other issues, such a actual love and commitment are inessential and frivolous. She also claims marriage is a "public" institution and not a private one. Certainly marriage predates any concept of "public" institutions. Government did not create marriage for some public policy agenda. To paraphrase the great classical liberal, Frederic Bastiat: "Marriage does not exist because men have made laws. On the contrary, it was the fact that marriage existed beforehand that caused men to make laws in the first place." The "public" aspect of marriage flows from the pre-existing, private nature of marriage, not the other way around.

Since marriage predates the state and formal laws it is absurd to speak of marriage as having an essentially public purpose. Also note that Roback's (she only added the Morse after her religious conversion and I'm still inclined to call her as I knew her) assumption is that one's marriage exists for the sake of the community, not for the sake of the partners involved. It is a collectivist perspective and the very reason she found it necessary to attack the "laissez-faire" family. This principle alone is enough to say she has repudiated libertarian thinking entirely and gone to the dark side. She is a collectivist of a very authoritarian, communitarian bent.

Also, she is speaking about issues unrelated to her purpose—which is to deny equality of rights to gay people. She says "marriage attaches children to their biological parents." Of course, that is not inherently true, nor is it true that children are not attached to their parents even if the couple have forgone formal marriage—as Jenny and Robb did for numerous years before her mental decline into fanaticism. But, if she is referring to natural children then gay couples wouldn't have natural children. Remember she is speaking from a Catholic perspective so all other forms of having children are seen as unnatural.

If marriage attaches to children to parents and gay people don't have children, then no child is "hurt" by their marrying. A gay couple being married doesn't "detach" the natural children of heterosexuals from their parents. There is no risk to those children.

But if she is speaking about the children that are present in some gay relationships, the argument doesn't apply either. Those children also need the attachment to their parents that marriage helps give. Are the children of gay parents somehow superior to those of straight parents and thus not as reliant upon that sense of attachment? Of course not.

Roback then creates the claim that same-sex marriage doesn't attach "children to their biological parents" but is a "vehicle that separates children from a parent." Hey, God separated me from my father, eventually—which wasn't a bad thing as I noted earlier. Lots of kids are "separated" from a parent. Apparently Roback would want to prevent such separation by law. And I would take it that she also would want to use state power to prevent gay couples from adopting. An orphan has no parents and a gay couple adopting such a child is not "separating" the child from a parent. They are giving the child parents when Roback's God has denied them such. I can assure you, that in the grand scheme of things, "God" has denied more children their parents than gay couples could ever do. Roback doesn't find that a reason to go after her church which, of course, is known to have a rather strong interest in children, though not of a kind Roback would want to find acceptable.

Roback says that by allowing same-sex marriage legislators are "redefining parenthood." No. That is just silly. She seems to be ignorant of the fact that gay people could adopt long before they could marry. And many gay people, who were previously in heterosexual marriages, have custody of their own biological children. If anything marriage is following already widely accepted norms in parenting, it is not leading the change at all.

Roback talks about the presumption of paternity and how the "social practice of sexual exclusivity" meant that children were attached to their parents. But the social practice of exclusivity was widely ignored throughout history. Oddly, scientists have found women are more fertile is they are cheating than if they are with their husbands. Sexual evolution favors a diversity of genetic material which doesn't always go with Roback's Catholic view of the world.

Roback attacks gay couples who have children because the child in question doesn't have the genes of both parents. Yet she has a child who has none of her genes or her husband's. The law has granted her a presumption of parentage, the very thing she says "transforms parenthood."

How do gay couples become parents? First, some have their own children from previous relationships. That they are now in a gay relationship is not what separated the child from their other parent. Some are separated because the other parent died, or lost custody because of their own problems. Gay marriage didn't cause that to happen. Second, gay couples adopt a child who has no parent or who has parents who lost all custodial rights due to abuse or other issues. In these cases the married gay couple did NOT separate the child from anyone, but attached the child to care-givers who were absent in the child's life. Third, they may use a surrogate to conceive the child using or, for lesbians, conceive through in vitro fertilization.

In this case a child is created who otherwise would not have existed. The child did not lose a parent because the donor father or surrogate mother NEVER intended to be the child's parent. This child was created with two gay parents there, ready and willing to care for him. Nothing was taken because the child didn't have the other parent to begin with. And, without this couple, the child would have had nothing at all, including their own life.

Roback then leaves her bad logic for dishonest argumentation. I say dishonest because she is taking material about one situation and falsely applying to something very different. She uses a bait and switch tactic. In Iowa a court said that "the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else."

If you read the actual decision you will see that they are speaking about a situation where a child is raised by two same-sex parents as compared to a child raised by two opposite-sex parents. This decision explicitly says they are looking at "children raised by same-sex couples, and same sex couples can raise children as well as opposite-sex couples." They noted that all the major studies done regarding these two sets of children showed no differences. But note that they are explicitly talking about children raised by a set of parents. There are two same-sex parents in one set, and two-opposite sex parents in the other set. And the results are the same.

Then Roback goes into blatant dishonesty. She then says theres are "mountains of data" that show "children do need their mothers and their fathers." Actually the mountains of data are not comparing children raise by two same-sex parents to children raised by two-opposite sex parents. The studies compared children of single mothers to children of married couples. It compared the results of having one parent to having two parents. It didn't compare gay to straight at all.

But conservatives have regularly mixed these studies up. They do this because studies comparing the children of gay couples and of straight couples showed no differences. When the Iowa Supreme Court was referring to mothers and fathers it was specifically referring to the genders of two parents. The studies Roback uses are not about the gender of parents but the number of parents involved.

Roback asks: "Are you ready for contract parenting, in which adults parcel out parental responsibilities amongst themselves?" Interesting, what is she suggesting? Straight parents routinely parcel out parental responsibilities. Some mothers take on some functions while others do not. Some fathers take on different functions than other fathers. Is Roback suggesting that government should mandate which parent is responsible for which function? If the parents do not parcel "out parental responsibilities amongst themselves" then who does?

She again implies her broader agenda, which is state control of marriage and divorce on a scale that she dare not make public. She tells the legislature:

The next generation of children of divorce may be shuttling between 3 or 4 households, with their backpacks and their sleeping bags. Whether you're ready not, I hold you accountable.

She acknowledges gays are not responsible for that but says they will be responsible for the next generation of children. Not really true, but what's truth when religion is involved? But what is she suggesting? Again it appears she wants to use the law to force people to stay in marital relationships that they wish to leave. Roback's main attack isn't on the small percentage of same-sex married couples. Her real target is every single married couple in America. She wants to strip everyone of the right to end a bad marriage. She wants what my mother apparently wanted: to make kids stay in a relationship even when a drunken father is beating his kids in alcohol-fueled rages. Thanks, Jenny, I'm sure the kids of abusive relationships will want to build a statue in your honor.

Roback says:

"And don't try to tell me 'nothing so terrible has happened in Massachusetts.' Redefining marriage redefines the way in which generations relate to one another. It is ludicrous to believe that we would feel the full impact of such a change in a few years. It will take at least a generation, a full thirty years or more, before the full effects of redefining marriage work themselves out throughout the social system."

Make your projection far enough ahead and you are always safe predicting dire consequences. If, in 30 years, she is wrong she won't be here (from my lips to God's ears) to take the brunt of it. And, of course, if she succeeds in denying equality of rights to gay couples she could never be proven wrong. Except for one problem—all those studies that look at individuals who are adults now and who were raised by gay couples and who are just as well-adjusted as everyone else.

There are hundreds of thousands of kids who were raised by gay parents and who can testify that Dr. J is full of crap. There are countless studies of these kids which shows they are no different. And legal gay marriage has existed for a full decade without any indication that any of Roback's imagined evils will take place.

Roback fails to provide any reasonable argument as to why such a "redefining" of marriage will lead to massive divorce. Exactly how does a gay couple marrying cause straight couples, who most likely don't even know them, to divorce? And apparently gay couples wouldn't just cause random straight couples to divorce, but to do so multiple times thus forcing children into "shuttling between 3 or 4 households." No study supports this and she doesn't even try to offer a reasonable explanation as to why this would happen. She simply asserts it.

Roback tells proponents of marriage equality: "The only argument you have is so-called equality." Well, if that were the case, it would still put us up by one. But Jenny is being dishonest again. She only has to remember back to her days when she believed in individual rights to think of other arguments. This is also a matter of individual rights and freedom of contract, for instance. It also is about something more than an undefined "equality" but is about equality of rights before the law, one of the most important principles of the tradition that Roback once held to. Roback knows this, which is why she attacked the "laissez-faire" family. In addition there are children in gay families already. Is she saying that they, unlike other children, are better off if their parents don't marry? The very arguments she makes, about the benefits of marriage to children, would apply to these children as well.

Roback tries to cloak her desire to intrude in the marriages of other people in small government rhetoric. She says that marriage equality doesn't limit "the state" but is "a tool for the hostile takeover of civil society by the state." To do support this she lies about the facts once again. She claims churches are "under attack for daring to dissent from the new state-imposed Orthodoxy that marriage is whatever the government says it is."

What churches are under attack? What does she mean by attack? And, who is supposedly doing the attacking? She doesn't say—for good reason. Churches may be criticized, but the state is not doing that, private people are. Is she implying that churches should be immune from criticism and that we should also regulate freedom of speech to protect her religious fantasies? As for marriage being whatever government says it is, isn't that precisely what she is fighting for? She doesn't want the "laissez-faire" family, or private contractual families. She is against that. She wants government to define marriage according to Catholic doctrine, in order to protect the kids. (Yep, that worked so well for all those altar boys, didn't it Jenny?)

Roback isn't defending freedom of contract from state intrusion. She is demanding the government restrict access to the contract to people who are of different sexes only! She wants the state to have the power to exclude millions of people from marriage.

Roback says parents are losing "the right to direct the education of their children." True, that is the result of state control of education, not the result of gay marriage. She says: "Foster parents in the UK must submit to the state's views about marriage." But foster parents are paid by the state to care for children. And the UK case wasn't about marriage at all. It was about foster parents using state funds to teach children to hate gay people as evil sinners. Not the same thing. No right was violated.

Roback lies totally by claiming, "Reputable adoption agencies have been put out of business." False. The agency that voluntarily closed was a Catholic adoption agency in Massachusetts. It was not "put out of busienss" but denied government subsidies and it choose to close down. The issue wasn't marriage at all, but the agency wanted government to pick the pockets of gay people to fund it, but said it would fire anyone found out to be gay.

The state said that if the agency wanted government funds then it couldn't discriminate but that it was free to operate and to discriminate if it didn't take tax money. The Catholic agency preferred government subisides. A Mormon agency that also wouldn't hire gays, but which didn't take subsidies, is still operating. The Mormons could run their agency without state funds because, so far at least, they aren't paying out hundreds of millions of dollars to compensate children who were sexually abused. Catholic churches are declaring bankruptcy because of the cases. Perhaps they could afford to keep their adoption agency afloat if Catholic priests didn't prey on children so much.

Roback calls gays petty because "Christian bed and breakfast owners have been sued for not allowing unmarried couples to stay in double rooms." Actually she lies again. The "owners" did allow unmarried couples to stay in double rooms, they just wouldn't allow gay couples to stay in rooms, married or not. And she mixes anti-discrimination laws with marriage laws, which are not at all related. And she ignores that the same laws are being used to investigate hotels that cater to gay clientele as well. That is a case against anti-discrimination laws, not proof that discriminating in the law is a good thing.

Roback's closing remarks are real gems. She tries to invoke the black community, saying they "are deeply offended by the highjacking of the moral authority of their civil rights movement." Excuse me! Since when did civil rights become the exclusive property of black people? They fought for civil rights because they were being treated unequally by conservatives like Roback. Gays are doing the same thing. Equality of rights before the law is not the exclusive property of anyone.

She also invokes "children's rights" with absurd and quite honestly ugly logic.

"When we come to our senses 30 years from now and realize that we have perpetrated a grotesque injustice, not a single child born fatherless or motherless within a same sex marriage will get his missing parent back. Only prevention will protect children's rights."

When my father died, who violated my right to not be fatherless? A right is a moral claim against another person. If a child has a right to be "not fatherless" or "not motherless" than that right is against someone else. When friends of mine adopted an orphaned girl were they denying her the right to parents or giving her parents? When Roback adopted her child was she committing a crime against the child, or was she given the child parents? And after giving their child two parents, were my friends then somehow taking that way from her because they are a same-sex couple? Roback doesn't make sense. There is no violation of the rights of a child unless you completely distort the concept of rights, and you must do it precisely in a manner that is contrary to view of rights that Roback once held.

We have mature adults who are the children of gay parents. They are publicly defending their families and their parents. They don't feel like they were the victims of "grotesque injustice" and they don't feel as if their rights were violated. They feel loved and happy with the families they had. A friend of mine, in his 30s, is one such person. He was raised by a lesbian couple long before anyone thought gay marriage an option. These children of gay parents would vehemently disagree with Roback's vicious portrayal of their families. They would do what I happily do, call her a liar and a hate-monger. The one advantage they have is that don't have the unfortunate legacy of once calling her a friend.

Napolatino Slaps Down the Moronic Huckabee

Notice that Huckabee's arguments have zilch to do with the case he is trying to make. Huckabee is a real fascist, and I mean a fascist. He is big government all around.

Huckabee's logic is circular. Marriage doesn't apply to gay people because gay people can't get married. And, by the way, we have a "dad deficit." Somehow the alleged instability of straight couples is the reason that gay couples should not marry.

Huckabee is absolutely the worst of the worst. Notice that he is arguing for centralized control of marriage, against even a federalist approach to the topic, and for state intrusion into the contractual nature of marriage.

H. Kenneth Ranftle died of lung cancer in 2008. His will stipulated that the bulk of his estate would go to his partner of 25 years, J. Craig Leiby. For two years the estate has been in legal limbo because a brother, Richard, contested the will on the basis that Ranftle and Leiby are NOT allowed to marry in New York and therefore the will was void in recognizing Leiby as the surviving spouse.

The greedy brother argued that since the couple couldn't marry under New York law that he, not Leiby, was the closest surviving relative.

What clearly saved Leiby and allowed his partner's wishes to be done was that the couple had traveled to Canada and married there. And New York state, where the couple lived, respects valid marriages from other jurisdictions.

Of course, if the couple could have married in New York the issue would never have arisen. It would be a rare thing for a brother to challenge his sibling's will leaving his estate to his wife of 25 years.

But, because the couple couldn' t marry in New York the surviving partner had to spend two years in court.

A couple of bits of recent news regarding the battle for marriage equality. First, Illinois took a giant step in the right direction and recently passed civil union options for same-sex couples. Hawaii recently passed civil unions as well. By the way previously Hawaii considered gay marriage equality and it was there that the Mormon cult first tried their stealth anti-gay campaign and won. This isn't good for them.

Maryland is now on the verge of marriage equality. The Maryland state senate passed marriage for gay couples. This was the one house of the legislature where it was in doubt. The House has begun debate with Republicans united in defense of bigotry. One Republican got up to argue by praying. Perhaps he would cast curses and spells as well.

The member of God's Own Party (GOP) who chanted to his imaginary friend said that Republicans would raise millions of dollars to make sure that another effort is done to prevent life-long, loving couples from marrying each other. If you ever wonder why I never intend to vote Republican just watch the bigots in the party at work. The Republican Party is the organized political face of hatred: hatred of gays and immigrants both.

More from cloud cuckoo land.

Once people accept wacky religious theories to explain life, anything is possible. Here we have Robert Broadus, from Protect Marriage Maryland, testifying against marriage equal. The argument is simple: if you let gay people marry pretty soon people will want to marry androids! And, if you want proof, what better place to look than Star Trek!

Down in Virginia, Republican official Eugene Delgaudio, who raises lots of money scaring people into donating to him to fight "the homosexual agenda" warned about the annual Gasparilla Pirate Fest. He claims that "Radical Homosexuals" have infiltrated the event and even changed the parade route so it zig-zags so "no one one could call it a 'straight parade.'" He says that these "Radical Homosexuals" (capitalization his own) entice "unsuspecting college students" "to join their 'krewes' and help build parade floats in exchange for free alochol. Then: "When the young men are sufficiently intoxicated, homosexuals dressed as pirates whisk them away to God knows where to take advantage of them sexually." Things sure changed since I went to college: I never once worried about being ravaged by a gay pirate.

I guess if marriage equality isn't stopped now then college boys will be forced to marry gay android pirates in the future. Save the children!

Apparently these sorts of nonsensical statements aren't helping. In Maryland, which is considering marriage equality, is facing a tight vote in the state senate (both the house and the governor are supportive of equality). The vote need 24 supporters in the Senate to pass; 20 senators are on the record of voting yes with more than enough sitting on the fence to pass it.Today the measure has 21 votes. Sen. Jim Brochin, who had previously supported only civil unions, says he will vote for marriage equality after listening to opponents at a public hearing. He says the opponents were "appalling and disgusting. ...I just heard hate and venom coming out of that hearing." He said the vitriol was so nasty that he didn't want to be associated with it and was going to vote in support of the change in the law.

On this front, it also appears Rhode Island will pass marriage equality in the next few months. New York is still a strong possibility as well.

Bizarre testimony and Prop 8

Today the disgusting Proposition 8 had another day in court. As you may remember Prop 8 was thrown out of court as a violation of basic rights. The State of California has standing in the issue but Gov. Schwarzenegger made it clear he has no desire to defend Prop 8. The current Attorney General, Jerry Brown, has said he is not interested in defending this initiative either. Brown is now governor-elect and still has no interest in defending the law and in incoming Attorney General has also said she doesn't want to defend it.

So some of the hateful fundamentalists are petitioning the Court to grant them the right to defend the law on behalf of the State, which doesn't want to defend the law. There really is no limit to how far these Jesus-loves-you types will go to show they hate gay people.

Today's hearing was televised. I rudely neglected a friend from overseas who was visiting to take some time out today to watch the hearing. Some of the mental gymnastics were quite interesting.

The lawyer defending Prop 8 for these Christians argued that marriage is only meant to correspond with the procreative ability of men and women. They really do dismiss the idea that people can marry simply for love. The fundamental purpose of marriage is having babies—this is actually the claptrap the Popes have been pushing for years, only know fundamentalists have adopted it because their own theology didn't used to take this view. So they swapped theologies in because they really, really want to go after gay people.

The attorney acknowledged that there are plenty of couples who marry and can marry who will never be able to procreate. Infertile couples can marry. Elderly couples where the woman is past child-bearing age can marry. A woman without a uterus can marry. Men who can't produce sperm are allowed to marry. There are plenty of cases where heterosexual couples who have NO procreative ability are allowed to marry.

The attorney was asked about them by one the judges of the court. He acknowledged such couples existed but said that the ability to determine who they were was so cumbersome, intrusive and expensive, that it was intolerable for the State to prevent them from marrying.

Of course he could not defend their right in this case; he doesn't want to acknowledge marriage as a right. That would create problems for his case. So he basically seemed to concede that such couples should not technically be allowed to marry either but that the search costs, to determine who they were, would be too expensive and that government would have to intrude far too far into the lives of these people to determine that they can't procreate.

His implication seemed to be that same-sex couples are easy to identify. So it isn't expensive, it isn't cumbersome and it doesn't have to be intrusive. As I read this argument he seemed to be saying that it is alright to deny marriage to gay couples because same-sex couples don't reproduce. Similarly he seemed to concede that the same ought to apply to certain straight couples as well, and that they ought to be denied marriage except it is harder to figure them out. So, to avoid the cost of figuring which straight couples shouldn't marry it is easier to let them all marry, whether they will reproduce or not.

In other words, it's okay to deny marriage only to the gay couples because it is easy to do. Yes, they want to deny marriage to many straight couples but don't want to be bothered figuring out who they are. Gays are just easier to figure out. That is really mind-boggling.

Shocks but no surprises in Illinois

The Illinois legislature took several steps closer to creating civil unions for gay couples. A Senate committee voted favorably on the measure and that afternoon the House passed the same measure by a 61-52 vote. Governor Pat Quinn sat in the House during the debate and has said he would sign the bill if passed. The president of the State Senate, John Cullerton, says the measure will come up in the Senate later today and that he expected it to easily pass.

First, the "no surprises" I promised in the headline. The Roman Catholic Church, that bastion of traditional marriage between men and women (and priests and altar boys) is using their tax-free privileges to lobby against the legislation. Cardinal Francis George said the measure has to be voted down because God wants it that way. Remember how often we've heard that these opponents ONLY want to defend marriage, and that if it is called something else, then it's fine. No, it's not. Their intent is to deny all such rights to gay couples as a means of punishing them for being sinners.

Many of the representatives who supported the legislation spoke of the first openly gay member of the legislature, Larry McKeon. McKeon's partner, Ray Korzinski, was in hospital dying. McKeon tried to be at his side but the hospital refused to admit him. informing him that he had to go home to get legal documents which proved he had the "legal right" to be with his dying partner. Without it he was legally defined as non-family and thus refused admission. McKeon rushed home to get the documents but it was too late. Korzinski died before he could get back with the papers, a requirement that married couples do NOT have to fulfill.

I had not heard this story before, for me it was shocking. There is no surprise that the Catholic Church, (and no doubt Mormons and fundamentalist Christians) are in opposition. In American religion those are the three main centers of indecency, inhumanity and bigotry. While many religious groups have more humane views on such things, these three groups are not among them.

The good news is that all three of them are in demographic trouble. Evangelicals are losing members right and left. Their congregations are aging and young people are fleeing. Christianity Today, a right-wing evangelical publication, has recently written about young people leaving the church. I have written several times on the shift toward a post-Christian America, here, here and here. These posts specifically covered the loss to fundamentalist sects.

The Mormons are also in trouble. Even though Mormons breed like rabbits their church has had zero growth in recent years. Heavy recruitment campaigns have kept them from losing numbers in total but the recruits they covert tend to be older, less educated and poorer. These converts merely replace young church members who have quit. Replacing young members with older coverts, and stagnating in membership, means they have a demographic time bomb ticking away. The death rate of the older members is bound to increase and then the true state of Mormonism will be exposed when membership goes into rapid decline.

Similarly Catholicism has seen membership stagnate. The number of Catholics in America has not been increasing. Yet most of the "illegal" immigrants coming to the United States come from Catholic nations and were, prior to coming to America, Catholics themselves. If massive immigration leaves Catholic numbers stagnant that means that native-born Catholics are leaving the church in numbers about equal to the numbers of immigrants who resume their faith here.

This means all three of the major religious centers of opposition for equality of marriage rights are losing members. In a nutshell this means the dynamics will continue to shift in favor of marriage equality. It also means that Republicans, who are intentionally catering to the god-minded bigot, have nailed their colors to a dwindling movement. About the only thing the Republicans can hope for is that the Democrats will disgust voters enough that they flock to the GOP out of anger. But that is not a long-term strategy: Obama won't be in office forever.

Obama, are you f.cking paying attention?

My heart goes out to this couple. I know how painful it must be for this to happen to them because the federal government refuses to recognize gay marriages, even when the couples are married in those states that recognize these relationships.

The Feds can stop the deportations but Obama doesn't care about gay couples. Surely the gay community has woken up to that fact. The man is all talk and no action.

One case that says a lot.

I still run across moronic conservatives and even some very stupid libertarians who argue that gay couples can get all the same rights as straight couples merely through private legal contract. Of course that is just so much bullshit. A private legal contract would not save this couple from forced separation. And while marriage laws are state issues, under the so-called state's rights doctrine, immigration law is not. So, yes Virginia, there is a need for federal recognition of gay relationships. Marriage would stop the deportation process if they were straight. It might not mean the spouse can stay since the Feds routinely separate legally married people in their zeal to keep the xenophobes happy, but it would stop the process until the individual case were adjudicated.

In addition this case smashes the claims made by the bigots at the National Organization for (sic) Marriage. NOM claims that gay marriages would be a push for special rights not equal rights. Equal rights would give both kinds of couples legal rights in regards to immigration. Special rights would give one set rights that are not enjoyed by the other set. The only people pushing for special rights is NOM, which uses the Mormon supplied funding it receives to deny gay couples even the right to be together, let alone marry.

Love and Let Love: A sentiment I agree with.

He died a married man

Nestor Berchot had wanted to marry his partner Adrian Garcia, but like so many places it was illegal for gay couples to marry. But just recently Argentina legalized same-sex marriages. He and his partner were the first same-sex couple to marry in Mar del Plata.

Following the happy event friends and family of the couple gathered for a reception and celebration, where Nestor collapsed, suffering from high blood pressure. Taken to the hospital he died a few hours latter.

While no doubt Nestor, like all of us, has contemplated his own death, there was one thing he may never have considered before—that he would die while married to the love of his life. I hope his partner takes some comfort in that. It is the sort of comforting fact that straight couples take for granted, many without ever thinking what it means to those denied that option.

Similarly I think of Phyllis Lyons, who I met when I took some courses that the Institute for the Advanced Study of Human Sexuality, where she worked. It was Phyllis who had to approve my application to take the courses and we sat in her office chatting about various things. Phyllis was a brave, early pioneer of the fight for gay equality. She and her partner Del Martin met in 1950. When gay marriage was legalized in San Francisco the two were the first couple to wed in San Francisco on June 16, 2008, more than half a century after they began their life together -- they were finally able to make it "legit." Only a few weeks later, on August 27 Dell died at the age of 83.

So many people just take it for granted that they will marry and one die they will depart this life after spending their life as the married partner of the person they love. Imagine thinking you would never have that right. Imagine that you watched all those around you being allowed that choice, but it was denied you.

For Del and Phyllis, they shared a few short weeks, out of more than half a century of love, together as a married couple. But they had it. Nester Berchot only enjoyed marriage for a few short hours before his life ended. But he was married. Yet the cemeteries are filled with loving gay men and lesbians who died never allowed to marry the person they love. That is a tragedy we can never undo, but it is one we can prevent from happening ever again.

Judge Napolitano on courts and gay marriage.

Prop 8 overturned

By now you know that the federal court judge in the Prop 8 case has ruled that the Proposition violates fundamental rights. I believe he is right. His ruling goes into great detail about the evidence offered and the conclusions he drew and why he drew them.

The ruling is 136 pages, which is not a quick read. I want to focus on one aspect of the decision: is there a compelling reason for the state to restrict marriage to opposite sex couples? Judge Walker wrote:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Now, I come at this as a libertarian, as someone who passionately believes in freedom of choice. What restricts choice in libertarian theory? The answer is anything that violates the equal rights of others to life, liberty and their property. In a perfectly privatized, stateless world, what would restrict marriage? Nothing. Marriage would be a private matter and outside the influence or control of any body of people.

This is how marriage was seen historically. Marriage predates the church so it was NOT a religious institution. And marriage predates the nation state as well. Marriage became a state institution at the explicit demand of Protestant Christians. Contrary to the false claims of Religious Right, the state didn't take marriage away from the church, but Christian Protestants demanded the state take the function of marriage in order to directly challenge Catholic claims that marriage was only valid if performed within the Catholic faith.

In the absence of state control would there be any real limitation on whether or not same-sex couples could marry? Clearly not. Civil society has been recognizing same-sex couples as "married" in everything but name only, but not so the State.

In a state of natural liberty same-sex couples would be free to form marriages. Under the demands of the Christian Right of the day (Calvin and his followers) the state took control of recognizing marriages and began doling out liberties and rights on the basis of ones marital status.

As long as that is the state of affairs, under US constitutional theory, then the state must justify its restriction on the freedom of same-sex couples to marry. Over the centuries the courts have outlined what would, or would not, legally justify a restriction of individual rights. And we must be clear that marriage laws restricted the rights of same-sex couples to marry, while granting the same right to opposite-sex couples.

Judge Walker asked whether there was some compelling state interest that justified this restriction on the rights of same-sex couples. He said that the proponents of Prop 8 were unable to justify such restrictions. As such he ruled that the State may not restrict the freedom of same-sex couples to legally marry. Walker wrote: "Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause. Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest."

In other words same-sex couples ought to have more freedom of choice than the law allowed. This ruling does not expand State power but says that the State can no longer restrict the rights of same-sex couples. This ruling limits State power and expands individual choice and freedom. That is something every libertarian ought to applaud.

Prop 8 Trial Ruling Expected

As many of my readers know there was an amazing trial about the constitutionality of the anti-marriage Prop 8 ballot measure, sponsored by the Mormon Church through various front groups.

By coincidence I was reading transcripts of the trial when I heard that the judge in the case is expected to issue his ruling today (August 4th).

Whatever he rules it is not going to be over, the losing side will appeal. Of course, the plan was to take this to the Supreme Court from the start, so this is only early innings in this political game.

That said, I still hope the Judge stands up for marriage equality and disappoints the Mormons and their antigay allies. I will try to blog on the ruling the moment I hear something.

Catholics, Protestants, Hispanics and Gays

First I wish to cover some poll numbers that are not surprising. Next I will follow with how a major Religious Right leader takes those numbers and makes an incredibly silly statement because of it, even by fundamentalist standards.

A survey of Californians was taken which showed that the Latino community was divided on the topic of marriage equality, with a small plurality of Latinos being supportive. But, it was found that Catholic Latinos were far more supportive of marriage rights than were Protestant Latinos. Among Catholics, 57% said they supported marriage equality while only 22% of Latino Protestants held that view.

I suspect the reason for this stark divide is that Latino Protestants tend to be fundamentalists, often Pentecostals. It is fundamentalist Protestantism that has most strongly infiltrated the Hispanic community. Non-fundamentalist Protestants tend to be Mormons or Jehovah's Witnesses, both extremely antigay religions. According to the National Hispanic Christian Leadership Conference, 85% of Latino Protestants are members of fundamentalist sects.

That Hispanic Catholics tend to be supportive of marriage rights for everyone upsets the Religious Right loon Bryan Fischer, of the American Family Association. (Note that fundamentalists use "family" much the way the Klan uses "race," as code for hate.) Fisher notes that a Baptist leader, Richard Land, has said he wants a way for immigrants (without permission slips) to become citizens.

Is this Southern Baptist mellowing and recognizing the common humanity of others as the source of all rights? No, not at all. His reasoning is that Hispanic values are conservative.

"Hispanics are hard-wired to be like us on sanctity of life, marriage and issues of faith," Land told CNN recently, describing political similarities between Hispanics and white Southern Baptists. "I'm concerned about being perceived as being unwelcoming to them."

Fischer says that Land thinks Hispanics "will be the natural allies of the conservative movement." In other words, Land isn't concerned about the rights of these people, just hoping to enlist them in a movement to deny other people rights and as a way of imposing "biblical" values on the country through coercive government.

But Fischer is aware of the polls showing Catholic Latinos are supportive of the rights of gay people while Protestant Latinos are the only safe enclave of bigotry that conservatives can count upon. So Fischer suggests that "perhaps Dr. Land can be persuaded to amend his recommendation and give preference to Protestant illegal aliens." But Fischer says that illegitimacy rates may show that Hispanic "pro-family values" are not "as strong... as Dr. Land wants to believe."

The idea that only Protestant immigrants should be given a path to citizenship is astounding if you think about it but consistent with the historic values of American fundamentalism. It is no accident that the virulently anti-immigration Ku Klux Klan was heavily fundamentalist in religious make up. If there has been one trend among fundamentalists over the last century is their unique ability to always hate some identifiable group. Over the years different groups have jockeyed for their attention and often the emphasis has changed but favorite targets of organized hate campaigns have been blacks, Jews, immigrants, Mexican immigrants in particular, gays, Catholics, "liberals," and feminists.

The error that Fischer and his fellow fundies make is that they equate "pro-family" with a fundamentalist morality system. Prof. Joseph Palacios, of the Center for Latin American Studies at Georgetown University said that the pro-family attitudes of Latino Catholics is precisely the reason so many support rights for gay people.

Latino Catholics orient their social lives around the family and extended family even in the context of high Latino single-parent households (estimated 33% of all U.S. Latino households; 36% of all Latino Children in California live in single-parent households). Family solidarity is strong and even though children may not follow "traditional family values" as projected by the church and the U.S. society, parents want to keep their children within the family. It is not surprising that Catholics in general and Latino Catholics in particular, as the Public Religion Research study shows, see that parents learn about gay issues from their children. Their moral and ethical judgments are primarily made through this social reality rather than abstract pronouncements from their church leaders.

While the Vatican wouldn't approve, these Catholics see marriage as a way of binding families and they want their gay relatives bound to the family as much as their straight relatives. In truth marriage equality is the pro-family position. It is fundamentalism that pushes people to reject family members and splinter families in the name of morality. Parents in fundamentalist sects are encourage to reject and cast out family members for a variety of sins including being Catholic.

One of the great ironies of modern politics is that the pro-family movement is made up of sects that are inherently anti-family. Fundamentalism puts adherence to the faith ahead of family unity. The "you're no son of mine" mentality is rampant in such circles. Daughters who get pregnant are often pushed out to fend on their own, sons who are gay are rejected and told to leave the family. Over and over high profile fundamentalists have rejected their own children because of their perceived moral shortcomings.

Fundamentalism is not pro-family at all. It is a force that rips families apart. Latino Catholics don't necessarily follow the fundamentalist moral code but they do embrace their families. And their families include homosexuals. One indication is that Catholics are more likely to listen to the views of family members regarding this issue than are fundamentalists, who are more likely to take their views from a church leader. The family, especially for Latino Catholics tends to be source for moral values, while for Protestant Latinos (read fundamentalists for the most part) tend to take religious dogma over family.

Prof. Palacios also has an observation that is of interest to my readers in particular.

It is important to note that modern Latin Catholicism has a dual nature: it is "conservative" in the sense of family communalism and tradition that the church offers, yet it is classically "liberal" in the sense of not wanting the Catholic Church to have power in political life-- particularly after the long historical experience of the Latin American Church "meddling in politics." As Mexicans put it: "No meta en la política." A sizeable majority of U.S. Latino Catholics shares these attitudes with them. Increasingly they are joining their Latin counterparts in accepting gays and lesbians as part of the social family that is both Catholic and liberal.

This is a simple truth that fundamentalists have trouble understanding. One can be supportive of basic moral values without wanting to a church/state alliance forcing people to be moral. One can be personally conservative and classically liberal politically. Just because a moral principle is a good one to follow doesn't mean that it must be imposed at the point of the gun.

Note: For the record, Argentina has now legalized gay marriage, joining Spain and Portugal and parts of Mexico, with Uruguay next most likely to include gays in marriage laws. The photo is from Argentina.

By the numbers: what the polls show.

Democrats to lose big time

The latest poll data shows the Obama-led Democrats will suffer as badly as did the Bush-led Republicans. Obama has proven himself to be another Bush, albeit more articulate—but I have plants that are more articulate than Dubya.

Poll data shows that the Republicans may have reached the "tipping point" where the House of Representatives changes hands, back to the GOP. Over at Gallup they say:

Last week the re-percentaged share of the vote for Democrats among registered voters was 47%. Again, that’s among registered voters. If things go as usual, the percentage of the vote for Democrats among likely voters would be even lower. In other words, if the voter sentiment we picked up last week was to prevail up to Election Day, the Democratic control of the House would indeed be in peril.

I think it very likely that voters will punish the Democrats for Obama's power-grab in health care, a very unpopular move with around 2/3rds of voters wanting the measure repealed. Writers at Gallup were saying that 47% share of the vote the Democrats were on the cusp of losing the House. But since then, Gallup's own poll shows that support for the Democrats dropped down to 43%. Republicans are now 6 points ahead in the generic poll and with likely voters the spread would be even higher.

My own guesstimate would be that the Republicans are going to pick up 40 to 50 seats, given them comfortable control of the House of Representatives.

Other signs of Democratic weakness is that voters are now split three ways regarding party identification. Equal numbers say they are Democrats, Republicans and independents. The modern mugwumps are the independent voters, who have been vacillating between the parties, voting for whichever party least disgusts them at the moment, but never really voting for anyone. With independents the Republicans have a 14 point lead.

As far as I'm concerned, if you want a short cut method of predicting poltiical trends look at where the independents are on the issue. They are the swing voters and which way they swing determines elections. I still believe they are also the most libertarian of the three main voting blocks, but neither party gives them someone to vote for, only candidates to vote against.

The tipping point in gay acceptance.

Another milestone was reached, according to Gallup. For the first time a majority of Americans say that it is morally acceptable for someone to be gay—how nice of them! I find the whole idea that such a poll is necessary to be absurd. As I see it we don't ask if it is morally acceptable to be a Catholic, though with the actions of the Vatican, we might want to. The recent annual Values and Beliefs poll found that 52% of Americans say that being gay is morally acceptable while 43%, no doubt the god-besotted, say it is morally wrong for someone to be gay. In 2001 the numbers were 40% to 53%, so tolerance has gained 12 points in the meantime.

What is particularly interesting is that the gains have come predominantly from men, who tend to be less tolerant on such matters—perhaps less secure, but I won't go there. Since 2006 the percentage of men saying being gay is morally acceptable has increased from 39% to 53%, and for the first time men are more accepting of gay people than women, 53% to 51%. Where acceptance gained 14 points among men, since 2006, the gain among women was just 2 points.

The largest gains were among men under the age of 50, or those 18 to 49. Younger men are now the most gay-friendly of the gender/age groups, with 62% saying being gay is okay. For men older than 50 the number is just 44% but this is still a 9 point gain from 2006. Among women under 50 those who are tolerant has grown by 4 points in the last four years, to 49%, and for women over 50 it is 43%. Even among older people men are now more tolerant than women.

As for the bellweather independent voters, they are in tune with the younger voters: 61% of them of them say it is morally acceptable to be gay, which puts them in a tie with Democrats. Republcians, once again prove themselves to be the organized force of intolerance in America, with just 35% of them saying it is morally acceptable to be gay.

The religion split is also interesting. The most anti-gay group in religious terms would be Protestants, as a generic group. This is where we would find the fundamentalists, of course, so this is no suprise. Only 42% of Protestants saying being gay is morally acceptable, where 62% of Catholics, 84% of non-Christians and 85% of the non-religious say it is morally acceptable. Gallup reports:

There is a gradual cultural shift under way in Americans' views toward gay individuals and gay rights. While public attitudes haven't moved consistently in gays' and lesbians' favor every year, the general trend is clearly in that direction. This year, the shift is apparent in a record-high level of the public seeing gay and lesbian relations as morally acceptable. Meanwhile, support for legalizing gay marriage, and for the legality of gay and lesbian relations more generally, is near record highs.

Support for marriage equality is also approaching the tipping point. Already 56% of Democrats are on board, a gain of 23 points since 1996. Bellweather independents are at 49%, a gain of 17 points, and Republicans are at just 28%, which is still a gain of 12 points since 96. In the East and the West support for marriage equality is at 53%, in the Midwest it is at 40% and in the Bible-belt South support is just 35%. The tipping point on this issue is not far away.

Iowa is an interesting case on this issue, and seems to be following the Massachusetts pattern. Marriage equality enrages the religious who organize and shout, foam at the mouth, and spit venom. But most people just sit back and watch the events unfolding. As time progresses what they see worries them less and less. KCCI television in Des Moines polled Iowans recently and found that the majority now supported marriage equality: 53% to 41%. This comes after one full year of marriage equality in the state.

Health deform still very unpopular.

Obama's health care power-grab is highly unpopular among voters. Rasmussen polls show that 60% want it repealed and only 36% say they want to save the program. Most believe it will increase the federal deficit and most think it will increase health care costs, a small majority also being it will reduce the quality of care in the United States. I side with the majority on this one.

How politics follows social change, and doesn't lead it.

Politicians frequently have the courage to ban a dying practice, but only when it is on its deathbed. Of course, for centuries later they will continue to claim that it was legislative fiat that killed the practice and proof that their interventions are thus proper and necessary.

Child Labor

Child labor was not created by the capitalists as a means to exploit the working classes, contrary to the deluded history of Marxists. Child labor was widespread and rampant in the millenniums prior to the first capitalist-owned factory. The work was different, but the expectation that children would work, was common. Even today in peasant farming communities children are put to work in the fields the moment they can do anything useful.

The reason for child labor was simple: the productivity of any single laborer was relatively low, making it difficult for families to survive without every member of the family laboring for the food they needed. In pre-industrial Europe standards of living were extremely low, poverty rampant and starvation not uncommon.

The introduction of new modes of production offered families a means of actually starting to make progress in their death race with poverty. The new machinery made each worker more productive and more valuable. The children who flocked to the factories, along with their mothers and fathers, didn’t leave behind some idyllic childhood, roaming green valleys and picking flowers. They left behind hunger and death.

These “free labor” child workers were watched after by their parents and for the most part their lives improved dramatically. A second class of child laborers also existed, those under the care of various government agencies, usually at the local, or parish, level. It was these parish children who were the worst off, and the worst conditions described in relatively accurate, though exaggerated, tracts of the day were descriptions of the parish children—that is those children whose labor was being exploited by the local government. With bureaucrats, not parents, watching out for them, these children did have brutish and nasty lives.

As capital was invested in new production techniques the value of individual workers rose substantially. During this period there were steady and strong improvements in the standard of living of all working people. As wages rose, the ability of parents to care for their families, through their own wages alone, became more prevalent and the number of children working alongside parents declined. Increased productivity pushed up wages and the higher wages made child labor unnecessary. By the time the politicians got around to banning child labor the practice was no longer widely practiced. Had it been, it is unlikely the political classes would have banned it.

One unfortunate result of the labor laws that were passed, and which still exist today, is that young people find it difficult to secure employment. Part-time work is possible under certain conditions, but teens, who leave school for one reason or another, find it difficult to find full-time employment. Young people who are forced to leave violent and abusive homes find themselves on the streets with few legal options open to them. One result is that many teens turn to less than legal methods to earn a living—sometimes drug dealing and sometimes prostitution, as two examples.

In the zeal to abolish a practice that had largely died out already, legislation created legal straightjackets for young workers. The restrictions are so onerous that many young people needing full-time employment are forced into illegal occupations where “working conditions” are far more dangerous than from what the legislation was meant to save them.

Apartheid

Consider the matter of apartheid in South Africa. By the time apartheid was officially repealed it had already been dead.

Apartheid was itself a web of regulations and laws restricting voluntary markets in order to force a result that the central planners didn’t deem possible without coercion. That result was not just segregation of whites from blacks, but the reservation of particular occupations to white workers, or more accurately to Afrikaner workers. Apartheid was seen by its architects as a temporary system of racial preferences necessary to end the problem of “poor whiteism.” Of course, with the normal nature of bureaucratic expansionism it evolved into a system that was much more than this, and much worse.

Throughout the history of apartheid, legislation was used to force results into the marketplace. Companies that hired black workers were punished. This didn’t end them from hiring black workers, but it made it much more difficult. The trade unions in South Africa, including those backed by the Communist Party, were explicitly racist. And during the ill-fated Rand Rebellion of 1922 these workers marched through the streets of Johannesburg carrying signs saying: “Workers of the World Unite and Keep South Africa White.” Note: If you look carefully in the lower left of the photo you can see this sign being carried by the revolutionary unionists during the rebellion.

Prior to the election of the first clearly “apartheid” Nationalist government in 1948, earlier attempts at government-mandated racism were being pushed by the Communist dominated trade unions. The Mines and Work Act created job reservations for whites in 1923. But these laws were soon replaced with other pieces of legislation doing the same thing. Following the Rand Rebellion, a coalition government of the communist-dominated Labour Party and the white, racialist Nationalist Party came to power.

The enemy of this system was a class of men despised by the unionists and the nationalists alike: entrepreneurs and businessmen. The business classes in South Africa were primarily made of two minorities: individuals of English descent and Jews. And the Nationalist Party despised both. Virtually all the architects of apartheid were open haters of capitalism and free markets and immediately set about to politicize markets. The purpose was simple: excluding rural blacks from moving to the cities kept wages higher in the cities, benefiting trade unionists, and it suppressed wages for farm workers, benefiting Afrikaner farmers who were the backbone of the National Party. Together these two groups politicized the marketplace in order to transfer wealth from two despised classes—businessmen and blacks—to their supporters, farmers and unionists.

By the time I first visited South Africa, well before the release of Mandela and the end of apartheid, economic reality has already eroded the laws to a large extent. The Group Areas Act, which restricted where the races could live, had collapsed and “grey” areas were thriving. Blacks were flocking to the city, begging employers to “exploit” them at double the wages they would received in the homelands—that is if they were lucky enough to find employment there. With many Afrikaners having escaped the government-created jobs and becoming businessmen themselves, the pressure was on to loosen the laws that restricted labor supplies.

When Nelson Mandela walked out of prison the laws creating apartheid were still on the books, but the actual practice of apartheid had died long before. When these laws were repealed officially they had already been repealed unofficially throughout the country, by the natural forces of marketplace transactions. (Merle Lipton’s book Capitalism and Apartheid: 1910-1986 is a must read for this history.)

Jim Crow and the Civil Rights Act

In light of the recent debate about the Civil Rights Act, and whether or not it was necessary to ban private discrimination, this sort of history has some relevance. Based on what I’ve said it could be assumed that the Civil Rights Act didn’t create the change, as the modern Left claims, but was a result of a change that already taken place. Is that true?

Ilya Somin, points out the evidence that Americans had already changed their views on race by the time the Civil Rights Act was passed. He writes:

The Civil Rights Act was enacted in 1964 because “the thinking of the white portion of the country” had already changed over the previous 20–30 years. As Howard Schuman and his coauthors document in their comprehensive book Racial Attitudes in America, there was an enormous liberalization in white opinion on race from the 1940s to the 1960s. By 1963, one year before the enactment of the Civil Rights Act, 85% of whites polled in a National Opinion Research Center survey endorsed the view that “Negroes should have as good a chance to get any kind of job” and rejected the position that “white people should have the first chance at any kind of job” (endorsed by only 15%). This contrasts with 55% who said that “white people should have the first chance” on the same question in 1942 and 51% who said so in 1944.

Similarly, 73% whites questioned in a 1963 NORC poll embraced the view that “Negroes should have the right to use the same parks, restaurants, and hotels, as white people.” The same 1963 study also showed that 79% of whites rejected the idea that transportation in streetcars and buses should be segregated, compared to 54% who had endorsed it in 1942 (both the 1942 and 1963 questions used the same wording). The 1963 figures probably overstate the actual degree of white support for integration and equal opportunity. But it’s hard to avoid the conclusion that white opinion had moved strongly in an integrationist direction relative to previous years, and that discrimination against blacks in employment and public accommodations was opposed by a majority of white voters by 1964.

Schuman and his coauthors show that white racial attitudes continued to move in a more liberal direction after 1964. But the enactment of the Civil Rights Act does not seem to have accelerated the pace of change.

None of this means that the Civil Rights Act was insignificant. Although national white opinion was generally favorable to integration by 1964, southern whites were still much more hostile. Moreover, southern businesses that wanted to employ black workers on an equal basis with whites and/or serve black customers in an integrated setting were often prevented from doing so by state law and government and private violence. On these fronts, the Act really did make a major positive difference. The South probably would not have desegregated anywhere near as fast without it.

Somin is correct that violence against businesses that integrated was a possibility but it should also be noted that such violence indicates a failure of the state to fulfill its primary function: the protection of the life, liberty and property of the citizens. Discrimination existed because government in the South actively intervened in the marketplace to secure results that the politicians felt would not be possible without that intervention: in this case segregation. And for integration to fail to evolve it was necessary for government to turn a blind eye when it came to protecting the rights of businesses to act in a non-discriminatory way. For instance, Southern Streetcar companies actively fought racial segregation of their customers. Like the businessmen in South Africa, these companies preferred to act in a manner far less discriminatory than the politicians wanted.

To secure segregation Southern politicians actively politicized the labor market, without that intervention they would have found their segregationist cause severely hampered.

On unfortunate result of this debate is that everyone is concentrating on the aspect of the Civil Rights Act that criminalized private discrimination, as if that was the main thrust of the law. In reality the Civil Rights Act, for the most part, was a massive roll-back in governmental power. Law professor Richard Epstein wrote:

The primary feature of the Civil Rights Act was the removal of the formal barriers to entry that had been erected by the Jim Crow legislation. At this point the historical evidence tells a libertarian story, not a government intervention story. …The successes of the civil rights movement derived from the shrinkage, not the expansion of total government power, both state and federal.

The Civil Rights Act abolished the web of laws which Southern racists had erected in order to force people to act as if they were racists, whether or not they were.

Marriage Equality

We can again turn to one active civil rights struggle in America today—that of marriage equality for gay couples. A handful of states have ended the discrimination that existed against gay couples. But throughout the country private businesses have granted equal benefits to gay employees and their spouses—whether or not the law requires such things. The roadblock to marriage equality is NOT the private sector but the governmental sector.

Not only do laws exist which explicitly forbid the recognition of same-sex marriages but the legal system often interferes with private decisions to recognize such relationships, at least on equal terms. No private policy can remove the differential tax rates at which gay couples are taxed, nor can such policies remove the discrimination inherent in the social security system, US immigration laws, or other similar areas.

These policies will change, but they will change after the public has changed. As we already saw public opinion has shifted dramatically on this issue, and I suspect that shift will continue as the opponents to equality tend to be old and the old die out. In addition opponents tend to be strong Christians and religion, Christianity in particular, is also on the decline in the United States. This means that many of the young aren’t joining sects that would encourage them to be prejudiced.

So, reform is possible. But history seems to show that political reform rarely tips the social scales. Politicians rarely lead, they look for the trends and then try to jump in front of them, only at the last minute, and then claim credit for shifts that had already taken place. In reality, they do very little to change society, and in each of these areas the political classes actively worked to prevent the change that had taken place without them.