Grammy’s, Gay Marriage, “Same Love”

During the Grammy Awards last night, hip-hop artist and marriage equality advocate Macklemore performed the hit song “Same Love” with Ryan Lewis and Mary Lambert. During the performance, Queen Latifah legally presided over the marriages of thirty-three couples, gay and straight alike. The song then resumed with Madonna transitioning to her song “Open Your Heart.”

As someone who cares deeply and has written academically about marriage equality, I found the performance to be quite moving. It reminded how art can capture dimensions of ongoing public policy debates in ways politicians, lawyers and even advocates often cannot. What struck me is just how apt “Same Love” is in encapsulating the essence of the marriage equality movement. Despite all of the legal arguments and political propaganda surrounding gay marriage, the debate, at bottom, boils down to a simple proposition:

  1. The reason the state, not only permits but, promotes marriage is to encourage love and loving relationships.
  2. Gay couples and straight couples share the “same love” and can enter into the same types of loving relationship.
  3. Therefore, the state should permit and promote same-sex marriage just as it does opposite sex ones.

Although the performance was a strong message of marriage equality, I question whether it was the best medium by which to purvey it. Initially, I was inspired by the performance, but my second thought was “And, the entire state of Kansas just changed the channel.” Making matters worse, the entire first verse of the song calls out “right wing conservatives” being naïve, fear mongering and “paraphrasing” the Bible. However, the marriage equality movement is currently turning its attention to more conservative populations. In the coming months and years, the movement will be attempting to overturn state constitutional amendments banning gay marriage in more conservative party of the country (than say Los Angeles, where the Grammy’s were held).

If the marriage equality movement is to continue to be successful, it must adapt its message in such a way as to appeal to a potentially skeptical audience. Once way in which the music community could assist in this re-branding there was a country version of “Same Love.” In past years, songs such as Florida Georgia Line’s “Cruise” have been successfully remixed by adding a hip hop element for broader consumption. In this case, the reverse would be appropriate. “Same Love” could be adapted by a country artist (excluding the first verse) for a more targeted audience.

In sum, while this year’s performance of “Same Love” at the Grammy Awards made an important statement (one that could not have been made just a few years ago); what will matter next year, and the years to come, is whether a pro-gay rights song can gain traction in the Country Music Awards. For it will be those who listen to country music and live in more conservative areas that will decide the future marriage equality movement.

This post was originally published on the SLACE Archive. For more public policy related video/audio, be sure to check out the SLACE Archive for daily podcast recommendations.

The Cheneys and Changing Attitudes Towards Same-Sex Marriage

The Cheneys and Changing Attitudes Towards Same-Sex Marriage

If you are interested in the same-sex marriage debate as it relates to the actual policy issues underpinning the debate–as opposed to the rhetoric and politics of the debate–I wholeheartedly urge you to listen today’s episode of The Diane Rehm Show.  Not only does the show contain a great panel of guests (see below), it also has some fantastic, passionate callers and emails.

Here is a description of the show:

Polls show that about half of Americans approve of allowing gay and lesbian couples to marry. But among Republicans, that percentage drops sharply. This week a public rift in the family of former Vice President Dick Cheney thrust the issue onto the front page again. One of Cheney’s daughters is married to a woman. The other, Liz Cheney, is running for office on the Republican ticket in Wyoming. On national TV over the over the weekend, Liz Cheney said she believes in the traditional definition of marriage. That puts her in line with most other Republicans –- but not most other Americans. Diane and her guests discuss changing perspectives on same-sex marriage.


Jonathan Rauchsenior fellow at the Brookings Institution; author of “Denial: My 25 Years Without a Soul” and “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.”

Michael Dimock: director, Pew Research Center for the People and the Press.

Maggie Gallagher: American Principles Project and co-author of “Debating Same-Sex Marriage.”

Special thanks to Matt McKeon, a regular contributor to the SLACE Blog, for bringing this podcast to my attention.  Matt writes about LGBTQ issues. His blog posts can be found here

Following Windsor, Lawsuits Take Aim At Pennsylvania Same-Sex Marriage Ban.

Like many other states, Pennsylvania bars same-sex marriage by statute.  23 Pa. Cons. Stat. §§ 1102 and 1704 (1996).  Unlike other states, Pennsylvania’s ban is currently being challenged at all levels of government.  This drive is even visible at the local level: Reuters reported that the county clerk of Montgomery County issued more than 170 marriage licenses to same-sex couples between late July and mid-September, when a state court ordered him to stop.  In the state legislature, two representatives in the lower house plan to introduce a bill on October 6 that would override the existing ban and permit same-sex marriages.

While acts of civil disobedience and bold legislative proposals may inspire marriage equality advocates, the Republican governor and the Republican majorities in both houses of the state legislature are unlikely to be so moved.  In the end, the most significant threat to the state ban is a pair of lawsuits filed in two different federal district courts.  Both suits are the direct result of the U.S. Supreme Court’s holding in United States v. Windsor, 133 S. Ct. 2675 (2013).  In Windsor, the Court struck down Section 3 of the federal Defense of Marriage Act (DOMA), which permitted the federal government to withhold federal recognition for same-sex marriages entered into in states and jurisdictions where same-sex marriage is legal.  Although Justice Anthony Kennedy based the Court’s holding in part on the traditional supremacy of states in regulating marriage, other parts of his reasoning paradoxically provided fertile ground for federal challenges to state same-sex marriage bans.        

The first challenge, Whitewood v. Corbett, was filed in the U.S. District Court for the Middle District of Pennsylvania just days after the Supreme Court handed down its opinion in Windsor.  In their complaint, the plaintiffs challenge Pennsylvania’s ban on same-sex marriage on the grounds that denying same-sex couples the right to marry in Pennsylvania violates the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause.

Quoting Kennedy, the plaintiff’s complaint alleges that the state ban “‘tells [same-sex] couples and all the world- that their relationships are unworthy’ of recognition.”  The complaint also references the part of Kennedy’s reasoning which addressed a significant group of people affected by  government’s refusal to recognize same-sex marriage: the children of same-sex couples.  The plaintiffs claim that the state ban “‘humiliates the…children now being raised by same-sex couples’ and ‘makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’” Governor Tom Corbett—himself the primary defendant in Whitewood–has moved to dismiss the case.

The second challenge, Palladino v. Corbett, was filed in the U.S. District Court for the Eastern District of Pennsylvania in late September.  Although a record of their complaint was not available at the time of this article’s posting, Alfred Lubrano of the Philadelphia Inquirer reports that the plaintiffs in Palladino are challenging the state ban on the grounds that it violates Full Faith and Credit.  The plaintiffs, two women who were lawfully married in Massachusetts, assert that it is unconstitutional for Pennsylvania to not recognize their marriage.  While it remains unclear if the plaintiff’s will reference Kennedy’s reasoning in Windsor, they echoed Kennedy’s consideration for children of same-sex couples at a recent press conference, stating that their young son “doesn’t know he’s a second-class citizen in Pennsylvania, where we’re not considered married.”

On top of the suits themselves, a high-profile schism in Pennsylvania’s executive branch may complicate the state’s defense of the law.  Despite being named as a defendant in both Whitewood and Palladino, Pennsylvania’s Attorney General Kathleen Kane, a Democrat, has publically denounced the state ban as unconstitutional and has stated that she will not defend it in federal court.  Kane’s position puts her at odds with Governor Tom Corbett, a Republican who supports the state ban and – perhaps at the suggestion of Rick Santorum – recently compared same-sex marriage to incest.  With developments in both cases on a weekly basis, Pennsylvania remains at the center of the nation’s debate over same-sex marriage.

Tushnet and Eskridge on Same-Sex Marriage Cases

Tushnet and Eskridge on Same-Sex Marriage Cases

On the most recent episode of Lawyer2Lawyer,

hosts Bob Ambrogi and J. Craig Williams will talk with Constitutional Law Professors Mark Tushnet and William Eskridge about what the history of both the gay rights and the civil rights movements have to say for the future of gay rights in America.

• Harvard Law Professor Mark Tushnet specializes in constitutional law and theory, with a focus in examining the practice of judicial review in the U.S. and worldwide. He has served as a law clerk to Justice Thurgood Marshall. Currently, his focus is in constitutional history and the development of civil liberties. He is known for his critical and controversial analysis of Supreme Court rulings, including Brown v. The Board of Education and Roe v. Wade.

• William Eskridge, Yale Law Professor, focuses in statutory interpretation. He represented a same-sex-married couple from 1990-1995 who sued for recognition of their marriage and has published many books covering the political framework of gay rights. The historical component of his book GayLaw was the basis of an amicus brief he drafted for the Cato Institute and for much of the Court’s (and dissenting opinion’s) analysis in Lawrence vs. Texas, the decision which made same-sex sexual activity legal in every U.S. state.

Andrew Sullivan on Gay Marriage and SCOTUS Cases

Andrew Sullivan on Gay Marriage and SCOTUS Cases

Last Sunday, Fareed Zarakia interviewed Anderew Sullivan about the conservative case for gay marriage and the recent same-sex marriage Supreme Court cases. 

Here is a description of the interview: 

Sullivan: We’re part of families. Gay people don’t – they’re not born under a gooseberry bush in San Francisco and then just unleashed on the country to improve your dinner party conversations and interior design. You know, that’s not what happens. They’re born and bred in Texas, in Oklahoma, in Alabama. And they’re in the military and they’re part of this country’s entire diversity. And they want to be a part of their own families. And they’re more traditional than you realize.

So then began the battle you’re still battling, which is with conservatives.

Sullivan: I think the great disappointment, the great disappointment is that this was a really, in some ways, a conservative argument. This was a minority group seeking responsibility, commitment, pooling resources.  If you’re a couple and something happens to one of you, you have someone else to take care of you, not the government. There’s a really powerful conservative case for this. And so many of the Republican Party just never grappled with it until it was too late.

But in Kennedy, you know, Anthony Kennedy, Reagan appointee, I think you see the last strains of that moderate conservatism, which is, we do have this new emergent population. How do we integrate them? How do we make them part? I don’t want us to have a separate but equal institution in civil unions. And that was the big threat. And then Bush, when he actually endorsed a federal marriage amendment, suddenly the entire gay establishment were like, oh, we’re with you.