Dear Brian and Maggie,

I watched the recent video of Brian's discussion with Rick Jacobs of the Courage Campaign and was left wishing that Brian had devoted more time to discussing the practical and real impact of marriage restrictions on gays and lesbians.

Both of you have spoken at length about your normative vision of ideal marital and child-rearing policies, as if we were deciding such policies in a vacuum.  We all know where you stand on the policy questions.

But you've never really addressed what should happen to existing gay and lesbian families.  See, your normative argument about how things should be ignores the practical lived experience of legally-married same-sex couples and of LGBT parents raising biological and adopted children.

And this omission, I believe, lies at the root of your public-relations difficulties.  So what can you do about it?

Well, you would go a long way toward building good will with the LGBT community if you would propose a meaningful alternative legal arrangement to govern their lives and families.  You oppose civil unions, domestic partnerships, and similar state-sponsored arrangements.  Are there any arrangements that you favor?  If so, why?  If not, why not?

And while you may not think that NOM should be in the business of offering alternatives, by treating marriage and the incidents of marriage as a zero-sum game, you practically beg for gays and lesbians to call you “bigots”–because you are lobbying for a restriction of their rights while refusing to offer up anything that's relevant to their actual lives.

Granted, Maggie has in the past suggested that LGBT couples could obtain the legal incidents of marriage through private contracts, wills, and similar personal legal documents.  But what about those incidents of marriage that can't be contracted into?  What about, for example, federal or state marital exemptions from gift tax or estate tax?  What about the spousal testimonial privilege?  There are no legal documents that can bestow these (and other) non-contractual legal benefits onto private individuals, absent state licensure or intervention.

In other words, benefits like these only attach to a “marriage.”  Should LGBT couples not have these benefits?  If they should, then how should they get them?  And would you lobby for the necessary legal changes?  If they shouldn't, why not?

Moreover, even if, arguendo, all of the benefits of marriage could be obtained through private contract, the average couple cannot afford the thousands of dollars needed to acquire the limited protection offered by, for example, a will or a power of attorney–both of which, legally speaking, are rather poor substitutes for marriage, as both are subject to facial legal challenges, whereas intestate succession and spousal power of attorney are conferred by law and can only be denied if the entire marriage is nullified.  Why should LGBT couples alone be required to bear this legal risk at a prohibitive cost?

By failing to offer a meaningful, viable alternative, you leave your critics with no choice but to question your motives.  I understand that being called a “bigot” offers you ample opportunity to play the victim card and to ply for attention and donations in the short term, but it's a remarkably short-sighted strategy.  You can only cry “wolf” so many times.  People will eventually tire of the hysterics.

So permit me to ask Rick's question one more time:  In light of the reality that several states have issued valid, legal marriage licenses to same-sex couples, and in light of the reality that many states permit LGBT couples and individuals to raise biological or adopted children, what do you propose?  Should we void or nullify all legal same-sex marriages?  Should we outlaw LGBTs from having biological children?  Should we outlaw LGBT adoption, whether as primary parent or as second parent?  Should we remove children from LGBT homes?

I invite you to clarify your position on this matter.



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