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The difficulty of opposing gay marriage

marriageinwhite.JPG

When we talk about gay marriage, we should first be clear about what we're discussing: State-sanctioned marriage is a central element in American life. It includes both legal and substantial, important cultural benefits. Gay couples believe it applies to, and would enrich, their relationships. And as a country, we have already decided that gay relationships are legal, and it is undeniable that there are many of them, and they desperately want access to this institution. So the question is whether we legally -- and in an extremely important way, culturally -- discriminate against a form of relationship that is entirely accepted by the rest of the law. You need a pretty good reason to do that.

And Ross Douthat, as humane and thoughtful a supporter of traditional marriage as you'll find, is not able to present one. In essence, he argues that biology and reproduction charge heterosexual relationships with a unique complexity that necessitates a separate legal -- as opposed to religious -- institution. Or, to quote, "the interplay of fertility, reproductive impulses and gender differences in heterosexual relationships is, for want of a better word, 'thick.' All straight relationships are intimately affected by this interplay in ways that gay relationships are not."

But of course relationships are complex. The question is how thinly the law should slice itself to accommodate that complexity. And our answer up till now has been: not very. Marriage treats first, second, third, fourth, fifth, sixth and seventh marriages alike. It treats the marriages of fertile and infertile couples alike. It treats the marriages of people of different religions, nationalities and ages alike. Douthat tries to wave this away by saying that these couples are all bound together because they have "grown up and fallen in love as heterosexuals," but it's not at all clear why the law should care about that.

The closest Douthat comes to an answer is to quote Eve Tushnet saying that "marriage exists in large part to structure how you behave before you marry." The obvious response to this is that marriage does not obviously transform the way the unmarried behave, and the state does not enforced a behavior code as a precondition for marriage. No matter, Tushnet says, "in order for men and women to have sex with one another, to avoid causing a lot of disruption and wrong action in society, they have to do a lot of difficult things. The fact that a lot of them don’t want to do those things now and don’t even see those things as related to marriage is part of the problem, not an excuse to further move away from the idea of marriage as the structure."

In other words, America does not currently conceive of marriage in the way that Douthat and Tushnet would like it to conceive of marriage, and in the way it would need to conceive of marriage in order for there to be a good reason the institution can't accommodate gays. So to oppose gay marriage, Douthat and Tushnet must first construct an alternative version of marriage, and then argue that if real marriage opens to gays, that's another step away from the idealized marriage that would be closed to gays. It's like partisans of VCRs opposing improvements to DVDs because they make the widespread resurrection of VHS unlikely.

A preference for an institution we don't have and aren't moving toward is not good enough to justify legal discrimination in the here and now. Particularly when the option exists to create a cultural or religious version of marriage that accords precisely to Douthat and Tushnet's preferences.

Deep into his essay, Douthat admits that this is a difficult argument to mount. "This thickness issue also helps explain what often sounds like tongue-tiedness and/or desperation from social conservatives when they’re asked to explain what, exactly, it is about marriage that makes it distinctively heterosexual," he says. That's an important insight, but I think it cuts in the other direction. When you hold a position that you feel very deeply but can't justify with persuasive facts or clear theory, it's generally a signal that something is awry in the underlying position.

Photo credit: Eric Risberg/Ap.

By Ezra Klein  |  August 12, 2010; 5:38 PM ET
 
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Comments

I think any bill that bans gay marriage should be required to also ban divorce. If you want to defend "the institution of marriage", why limit yourself to gays?

Posted by: mschol17 | August 12, 2010 6:13 PM | Report abuse

You could just ditch "State-sanctioned marriage" and have everyone file tax returns as individuals and specify who has power of attorney for them.

I'd be interested in if Ezra thinks that there is a compelling justification to ban plural marriage at this point. Seems like religious discrimination against the Mormons to me.

My solutions is to get the government out of marriage entirely.

Posted by: jnc4p | August 12, 2010 6:20 PM | Report abuse

resides outlawing divorce, to "to structure how you behave before you marry.", you'd have to enforce virginity tests before marriage as well, would you not?

and, to go further, at least a signiture on a legal document testifying that no oral, anal, or other sex (whatever that might be) occured anytime before marriage. That might be difficult for your average post-teen marriage (and probably pre-marital age - which varies by state).

All this deli-slicer qualification for marriage would, of course, do more to damage marriage than anything 'teh gays' could possibly do.

As to eliminating civil marriage (and relying on legal document to clarify mutual, familial and inheritance rights) as jnc4p suggests, would raise some interesting questions:
- would a religious marriage be enforced by any civil entity?
- who pays for the legal counsel to draft the required documents - or do the unable to pay people just be cast to the wind?
- would the 'bound by documents' (without civil marriage) people be exempt from testifying in court against each other? And what about the religiously marriaged? Would they have greater testimony exclusion rights than all others only bound by documents folks?
- how would employment benefits (health care, pensions, etc. ) be handled with no civil marriage?
- would existing civil marriages be dissolved? This would clearly be a violation of equality before the law, if some grandfathering occured.

This is all just silliness. Marriage of the civil kind (not just the religious) has been woven into our culture for hundreds of years. There are probably 10's of thousands of laws that would be affected. Does it make sense to start a no-civil-marriage war?

Can anyone point to any substantial harm to any person from the existing same-sex marriage laws in places like Mass or Calif.? They couldn't make this case in the current CA prop 8 legal suit, because they couldn't cite any substantive harm to any existing married couple or non-married person.

Posted by: JimPortlandOR | August 12, 2010 6:45 PM | Report abuse

I'd like to point out that there is absolutely no requirement to be heterosexual to enter an opposite sex marriage. One can be an avowed LGBT and still marry someone of the opposite sex and be privy to all the benefits thereof. Other than the possibility of some courts recognizing this as legitimate grounds for a divorce, during the course of a theoretical marriage of someone who is LGBT, the couple is entitled to 100% of the state and federal rights.

Ross is wrong. There is no "thickness" whatsoever to the relationships deemed worthy of opposite sex marriage, only tradition, or rather, habit. This is a very poor reason to deny civil rights.

Posted by: johnlsewell | August 12, 2010 6:47 PM | Report abuse

The reproductive argument against gay marriage is entirely specious. Consider two (opposite gender) senior citizens who wish to marry. There is no possibility for reproduction, but nary an eyelash is batted.

Anyone who missed the last episode or two of Boston Legal missed out on a brilliant (and hysterically funny) argument on the issue. William Shatner and James Spader, two straight guys who were always special friends, wished to marry so that the former (in the late stages of terminal "Mad Cow" disease) could
leave his money to the latter to start a legal clinic for poor people. The case went to the Supreme Court, where dead-ringer actors for everyone from Scalia to Ginsburg heard their case. The argument that they were straight and didn't even love each other was met by the retort that no one requires that heterosexual couples actually be in love. When accused of doing it only for the money, the answer was the same: like that doesn't happen every day in opposite-sex marriages? They won, and eventually "Antonin Scalia" was flown to New England to perform the ceremony. Finis.

Posted by: JJenkins2 | August 12, 2010 6:54 PM | Report abuse

This is a nicer version of what I said about Ross:

http://thehallofmirrors.com/?p=51

He's opposed to gay marriage, but he can't explain why without sounding like a bigot, so he'll throw out all this rhetorical detritus to distract until his opinion doesn't matter anymore.

Posted by: evvywevvy | August 12, 2010 6:54 PM | Report abuse

Now, if we could just get President Obama to pronounce gay marriage as the sensible, rational, and reasonable way to end codified gay discrimination, the professional left would have something to cheer about!

Posted by: goadri | August 12, 2010 7:01 PM | Report abuse

"the interplay of fertility, reproductive impulses and gender differences in heterosexual relationships is, for want of a better word, 'thick.' All straight relationships are intimately affected by this interplay in ways that gay relationships are not."

Maybe gay and straight relationships are intimately affected by these issues *differently*, but I'm quite certain that gay relationships are deeply and intimately affected by precisely these issues.

Posted by: AronB | August 12, 2010 7:15 PM | Report abuse

jnc4p ("My solutions is to get the government out of marriage entirely."), johnlsewell ("I'd like to point out that there is absolutely no requirement to be heterosexual to enter an opposite sex marriage. One can be an avowed LGBT and still marry someone of the opposite sex and be privy to all the benefits thereof."), and JJenkins2 ("The reproductive argument against gay marriage is entirely specious. Consider two (opposite gender) senior citizens who wish to marry. There is no possibility for reproduction, but nary an eyelash is batted.") above hit on important points.

Back in 1765, Sir William Blackstone wrote that "OUR law considers marriage in no other light than as a civil contract. The Holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience." Blackstone's analysis was quoted by James Madison and is the basis for the "Obligation of Contracts" clause in the US Constitution. The full text of Blackstone's commentary is available at http://avalon.law.yale.edu/18th_century/blackstone_bk1ch15.asp. The original text can be a bit difficult to read ("f" and "s" issues).

Posted by: rmgregory | August 12, 2010 7:27 PM | Report abuse

"I'd like to point out that there is absolutely no requirement to be heterosexual to enter an opposite sex marriage."

This suggests that one is free to enter marriage for the legal and tax benefits alone, that the devotion of a couple in love towards each other need not be a prerequisite. With this view, you can marry your neighbor just for legal and tax reasons. I'd say that goes against every argument regarding "preserving the sanctity of marriage" one can imagine.

Isn't this also saying that its perfectly fine to marry for the sole purpose of a greencard? Currently, to marry into citizenship, the state goes to great lengths to make you prove its not a "sham" marriage. If you make the argument that anyone is free to marry anyone else, even if everyone knows that it has nothing to do with sexual attraction, devotion as a couple, a relationship, then you've just thrown out every criteria the gov't uses to prevent people from marrying purely for citizenship. I know gay people who married straight people for citizenship. If the gov't found out, they'd lose their citizenship. According to this argument, such a marriage is perfectly and legally valid.

Many of the benefits of marriage include being able to visit your spouse in the ER and other such activities limited to "immediate family." The fact that a gay man can marry a woman does nothing towards solving the problem of allowing him access to see his long-time committed partner in the ER if that partner is not his legal spouse and cannot become his legal spouse.

In short, pointing out that a gay woman can marry a gay man does NOT solve the legal disparities, it undermines the sanctity of marriage argument, and it weakens (if not destroys) the arguments the government uses towards policies such as marrying for citizenship (and probably other issues such as the protection marriage offers against having to testify against your spouse in a criminal trial).

Many of the legal rights of marriage are entirely based on the presumed bond created by a loving and committed relationship, and when that bond is found not to exist, the legal rights are deemed null and void. To say that such a bond need not exist (which is what you're saying when you point out that a gay man can marry a gay woman), you're endangering the validity of a large number of laws.

Posted by: nylund | August 12, 2010 7:49 PM | Report abuse

"I'd like to point out that there is absolutely no requirement to be heterosexual to enter an opposite sex marriage."

If you do this and the government finds out you did this, you lose many of the rights of marriage, such as the ability to gain citizenship through marriage. Obviously, in the eyes of the law, this is not true. It is called, "marriage fraud". Should we change such laws so that you can do this? Would changing such laws strengthen or weaken the "sanctity of marriage?"

Posted by: nylund | August 12, 2010 7:56 PM | Report abuse

Nylund, you're reasoning is too narrow. Which of Liza Minelli's marriages would you call a sham? It's entirely possible, and perhaps wasn't that uncommon, for gay men to marry straight women. The state never considered such marriages as "less than."

My point is that we have determined, as a society, that we value civil marriage, but we always shy away from determining the moral or religious implications of such unions. We should maintain this consistency. Whether and how gay couples love each other should be irrelevant to the purpose of allowing them access to civil marriage.

We hope, of course, that marriage serves as the start of fruitful relationships that promote a healthy society. We take the gamble, however, knowing it's impossible to define this path to success. I'm all for that.

Posted by: johnlsewell | August 12, 2010 8:00 PM | Report abuse

What if all the colorblind people who could not distinguish between the colors green and blue decided that it was unfair to them that other people were capable of distinguishing between those two colors and they were not. Some jobs are denied to them because of their color distinction limitations. What if they demanded that the name “green” should now be used to describe both the color of grass and the color of the sky? This way the colorblind would have the same civil right to all the jobs that the normally sighted have. Some narrow minded people might say that this is silly because the color of the sky and the color of grass are two distinctly different things and should be labeled as such. But progressives care about the colorblind and will support any change to naming conventions even if it would go against thousands of years of history and counter the experience of every person who grew up using Crayola crayons.

Posted by: cummije5 | August 12, 2010 8:36 PM | Report abuse

Nylund, as far as my research tells me, immigration marriage fraud is the only type that is illegal and, as such, would result in a limit of government recognition and/or benefits. Of course, regardless of this extension of marriage recognition to same-sex couples, marriage fraud for purposes of immigration would be unchanged.

As far as I can tell, even if you fragrantly announce your homosexuality ten years into a "straight" marriage, the government wouldn't challenge your marriage status or remove any of your rights.

The bottom line here, in my opinion, is that we tread in murky waters whenever the government tries to decide what makes a good marriage. The truth is, at the end of the day, we really don't know what makes a good marriage and are often surprised at contra-indicated results.

Posted by: johnlsewell | August 12, 2010 8:46 PM | Report abuse

Ezra, will you gay marry me?

Posted by: thehersch | August 12, 2010 9:18 PM | Report abuse

Arguments against the legal right of same-sex couples to marry ring more self-serving than ever in light of the brilliant argument Ted Olson made on behalf of the gay couples in the California case. Olson showed, quite clearly, that "equal justice under the law" means just that--not equal justice for the heterosexual and those of whom they approve. Heterosexual men are terrified by the loss of power and prestige they will experience by finally being required (forced is a more accurate word) to recognize the full equality of all Americans, including homosexual Americans. For the rest of us, though, we see America taking another big step in its ongoing evolution to live into the promise of equality for all people.

Posted by: ctgreek | August 12, 2010 9:53 PM | Report abuse

@AronB: Right on. Gays bring their own thickness to the culture, and the culture benefits thereby. Douthat is OK poetry but terrible argument because he begs at least two questions: is thickness the gravamen of civil marriage and, if so, do same-sex marriages lack thickness?

Posted by: CrowIII | August 12, 2010 11:43 PM | Report abuse

Homosexuality is not a sin according to the Bible. Scholars who have studied the Bible in context of the times and in relation to other passages have shown those passages (Leviticus, Corinthians, Romans, etc) have nothing to do with homosexuality. These passages often cherry-picked while ignoring the rest of the Bible. The sins theses passages are referring to are idolatry, prostitution, and rape, not homosexuality.

(Change *** to www)
***.soulfoodministry.org/docs/English/NotASin.htm
***.jesus21.com/content/sex/bible_homosexuality_print.html
***.christchapel.com/reclaiming.html
***.stjohnsmcc.org/new/BibleAbuse/BiblicalReferences.php
***.gaychristian101.com/

Posted by: shadow_man | August 13, 2010 12:49 AM | Report abuse

Homosexuality is not a choice. Just like you don't choose the color of your skin, you cannot choose whom you are sexually attracted to. If you can, sorry, but you are not heterosexual, you are bi-sexual. Virtually all major psychological and medical experts agree that sexual orientation is NOT a choice. Most gay people will tell you its not a choice. Common sense will tell you its not a choice. While science is relatively new to studying homosexuality, studies tend to indicate that its biological.

(Change *** to www)
***-news.uchicago.edu/releases/03/differential-brain-activation.pdf
***.newscientist.com/channel/sex/dn14146-gay-brains-structured-like-those-of-the-opposite-sex.html
Gay, Straight Men's Brain Responses Differ
***.foxnews.com/story/0,2933,155990,00.html
***.livescience.com/health/060224_gay_genes.html
***.springerlink.com/content/w27453600k586276/

Posted by: shadow_man | August 13, 2010 12:50 AM | Report abuse

that homosexuality is even an issue, that after 2000 years, it should even be considered a sin in mainline churches shows that christendom, is still struggling to fully embrace the new covenant of christ.

Posted by: feetxxxl1 | August 13, 2010 9:12 AM | Report abuse

The hetero/homosexual phenomenon deserves some expansion. Or perhaps just the whole discussion of "sexual". Consider these aspects: asexual, ambisexual, bisexual, metrosexual, and the list goes on. Let the deepening discussion roll so that we can all know better this marvelous dimension of human nature and personality. Let's not limit ourselves to the marriage aspect.

Posted by: cypbend202 | August 13, 2010 9:30 AM | Report abuse

I think the sentence "It's like partisans of VCRs opposing improvements to DVDs because they make the widespread resurrection of VHS unlikely" should be amended - it's more like wanting the resurrection of Beta, an arguably superior format, but one that never was the norm.

Posted by: CMDove | August 13, 2010 9:54 AM | Report abuse

The State has no stake in enforcing the Biblical premise that "marriage is honorable in all, and the bed undefiled, but fornicators and adulterors God will judge" (Heb 13:4). In modern/postmodern America, fornication and adultery isn't punished, or even frowned upon, chastity is. This is the reason that Klein is able to write this article.

I oppose homosexual marriage for the same reason that I oppose polygamy. I also oppose it for the same reason that I oppose adultery, bestiality, and pedophilia. The first reason relates to the initial structure of marriage, and is biblical - "For this cause, a man shall leave his father and mother, and be joined to his wife, and the two shall become one flesh." The second relates to the walls that marriage is supposed to build in protection regarding gender and sex.

In reality, even though we have tried intensely to ignore this, childbirth does put women at a disadvantage. We recognize that a woman who has a child is affected to a greater negative economic degree than a man is. This is why we have child support laws, and why we assume that the mother should get custody of the children in most cases unless the father can prove that she should not.

In our quest to avoid even the taint of inequality, we no longer wish to acknowledge these things. As a result, as Klein writes, "it has become difficult to oppose homosexual marriage" without being called a bigot. Quite frankly, I resent the label, but that doesn't matter in our present culture. An idea that came into existence to challenge the fact that blacks were prevented from economic sustainability except in ways that did not challenge white dominance of society has now been hijacked to benefit others who have had no such comparable experience.

We now live in a society where the only sins appear to be those against wrongful taking. You cannot wrongfully take someone else's property or life, nor can you wrongfully take that which the government feels belongs to it (the taxable portion of your income).

Since the State claims no right to enforcing moral laws, perhaps, other than the fact that it would take away a sizable income for lawyers, we should take the State out of the marriage licensing business. Since there are no moral issues that should be upheld, why should the State be allowed any say whatsoever regarding marriage? In essence, that is the only reason homosexuals want to marry - because the State says they can't.

As this nation continues its slide to debauchery, it makes sense that we resent moral boundaries, it makes sense that we now justify behavior that we once condemned as immoral. I know that there is a segment of our society that will dismiss my comments as unfair, unjust, and based in fear. It doesn't matter. As an old black church spiritual says, "God is right, and somebody's wrong," and, as an old black man, I'm singing that song everyday, as this nation suffers the consequence of that statement.

Posted by: DXC1 | August 13, 2010 10:06 AM | Report abuse

Sen. McCain has the same reasoning as Douthat, but on a much simpler scale, "I believe that marriage is between a man and a woman." In other words, I grew up believing it so it must be true. It's a pathetic and cowardly position to take, especially when the civil rights of millions of Americans is at stake.

Posted by: obtusegoose | August 13, 2010 10:07 AM | Report abuse

Why must some people insist that they magically have a right to muck around in other people's lives? This shouldn't even be an issue.

The real issue is what can be done to help the muckers? Hating other people is bad for your health. What's the best way to help these poor, sick people? If we just let them get sicker, they're going to cost all of us a lot of money just to take care of their hate-induced illnesses, not to mention the cost of fighting off their power-seizing hate campaigns.

Posted by: LoathVulpineVomit | August 13, 2010 10:09 AM | Report abuse

gay marriage concerns are a cover for homophobia, in the same way that concerns over miscegenation was a cover for racism.

the last survey on church going prenuptials indicated that 95% were sexually intimate prior to marriage.

the last time there was an attempt to mandate a signed abstinence declaration of the clergy from premarital sex , the clergy themselves voted it down.

i never heard of any heterosexuals having to sign a no open marriage declaration, in order to have a legally sanctioned marriage.

individuals are smart, general masses are incredibly irrational

Posted by: feetxxxl1 | August 13, 2010 10:37 AM | Report abuse

Judges are supposed to "interpert" the Constitution. However, when such interpertation leads to the discovery of a "new right" (or elimination of an enumaredted right) or changing the long and commonly held meaning of a particular part of Constitution (in effect amending it) judges cannot make those changes by judicial fiat. Such changes must be left to the People and their elected representatives using the amendment process proscribed in the Constitution.

Posted by: acahorvath | August 13, 2010 11:14 AM | Report abuse

Loved the article Ezra. I got a great chuckle out of the DVD/VCR analogy.
As for you folks that think the government should get out of marriage; I must ask, do you really think the government (state and federal) can simply cut roughly 2000 'tentacles' (laws, regulations and benefits) without any repercussion?
I like 'pie in the sky' solutions just as much as anyone else. But we really should reach for that which is obtainable/realistic!

Posted by: tomcwa | August 13, 2010 12:33 PM | Report abuse

If I were you, Ezra, I would have had a hard time writing a column about this pseudo-rationale without using the word "clusterf__k" because that's exactly what it is. Usually cf is the product of writhing around trying to find a rationale for an indefensible position, using one argument after another, recognizing that each one falls short, but piling them up in hopes someone sees the pile as persuasive. But this is special -- in describing heterosexual marriage relationships as "thick," the author brings weaves cf right into the heart of the argument. Giving it a sort of layered effect. Quite decorative, actually.

Posted by: richgilman | August 13, 2010 4:32 PM | Report abuse

Who cares... the government shouldn't involved in "marriage" or any religious mugly-bugly anyway. You should be able to file a standard civil union contract with whomever you wish. Should three people be allowed to marry? Should people be allowed to participate in more than one civil union? We just don't the legal framework for these kinds of things, but we might as well let the traditional two person legal framework apply to whomever wants it. Can close relatives participate in civil unions? If so, could it be used to avoid the death tax if you civil-unioned an heir?

Posted by: staticvars | August 13, 2010 4:43 PM | Report abuse

This should be interesting in the long run as the courts will now have to take another look at USA vs. Reynolds, where the court actually said in this case we believe the separation of church and state is not in the country's best interest.
The arguments against Polygamy are even more specious than the feminists arguments against Gay marriage.
Because the pro-polygamy groundswell is small gay marriage backers will use pretzel logic to say the discussion is diversionary, but if go beyond the predictable virulent dismissive the legal ground is very similary. If there is nothing sacrosanct about a man and woman there is nothing sacrosanct about the number 2?
Consenting adults is consenting adults.
Favor both or drop the argument about civil rights.

Posted by: meadowgold | August 13, 2010 5:04 PM | Report abuse

Actually, the reason why the two characters in the Boston Legal series wanted to marry was so health and end-of-life decisions could be made for the man with Alzheimer's Disease, by the other man. And they always said they loved each other, just not sexually. There was definitely humor, given what it appeared to be, but underneath was the very sad and serious fact that unless one is a spouse or related, one cannot make decisions for a good friend, or a lover who is no longer capable of making decisions.

Posted by: dianefromPlantation | August 13, 2010 5:31 PM | Report abuse

How is Ross Douthat "humane" if he wants to treat a large portion of the population as second-class citizens?

For a smart guy, Ezra, you sure can write some stupid things.

Posted by: B405 | August 13, 2010 5:38 PM | Report abuse

Judge Walker seems to have pushed the marriage discussion over the tipping point. Rather than forcing gays to defend their rights, he laid bare the shallow arguments of the homophobes. Any person or religion can decide for themselves whether homosexuality is acceptable or not. However, the US Constitution does not afford the Federal or state governments such latitude.

In Lawrence v. Texas 2003, Justice Kennedy stated that the government cannot simply discriminate against gays because of moral approbation or a visceral dislike. The government must demonstrate a real harm to society. The Prop 8 proponents failed miserably, demonstrating that their only motivation is religious or personal, neither of which are allowable under the Constitution.

Mormons and Catholics can still hate gays, they just can't force their beliefs onto others via the ballot box.

Posted by: AxelDC | August 14, 2010 12:46 PM | Report abuse

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