NY to Recognize Same-Sex Unions from Elsewhere

State agencies in New York are going to recognize same-sex marriages performed outside the state, thanks to a decision by Gov. David Paterson. “The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses,” according to the Times.

This is great news, but there are a couple of interesting things about it. One, the governor’s office issued a directive announcing the new policy on May 14 (the day before the California court decision, incidentally). Why did it take two weeks to get reported? The article states that the governor discussed the move in a videotaped message to a dinner of gay community leaders on May 17. (Here’s the video and text of the message.) So the people at the dinner knew about it. Why didn’t the Times, or any other news organization, report it until now?

The other interesting thing is the question of where the legal authority comes from. As much as I think it’s a great decision, at first it seemed odd to me that the governor could just do this unilaterally. Isn’t it such a big deal that the legislature should get involved?

But I realized it’s not. A state appellate court ruled on February 1 that there’s no reason not to recognize valid same-sex marriages performed out of state; state policy is to recognize any marriage validly performed out of state unless there’s a state law prohibiting it, and New York has no law prohibiting same-sex marriages. (Here’s the court decision.) If the legislature cared about banning same-sex marriage, it could have followed the lead of the numerous other states that have done so. But it hasn’t.

This is a beautiful move on the governor’s part. Because even though it’s a big deal for same-sex couples that want to get married, and even though it might seem like a big deal to people who think the world will fall apart if same-sex couples can get married, it’s just a run-of-the-mill policy interpretation. The governor is showing that it’s really not a big deal to just go ahead and treat people equally.

Hopefully the Republican-controlled state senate will realize this as well and stop blocking a marriage equality law.

Majority of Californians Favor Same-Sex Marriage

Wow! Things can change in a week. According to a new poll, 51% of Californians are in favor of same-sex marriage, while just 42% oppose it. A slight majority also opposes amending the state constitution to ban same-sex marriage. The pollsters found that the younger you are, the more likely you are to support marriage equality.

Just last week, a poll found that 54% of voters favored changing the state constitution. So this is good news.

Here are the full poll results.

On Emily Gould

I’ve been trying to organize my thoughts about the infamous Emily Gould essay that the New York Times Magazine ran as its cover story this past weekend. My thoughts about it are complicated.

Emily Gould is a 26-year-old New Yorker and used to be co-editor of Gawker, the snarky New York media blog. (I don’t read Gawker regularly, so I’d never heard of her.) Her Times piece is an 8,000-word essay about how she had a blog, then got popular, then got picked to be co-editor of Gawker, then couldn’t deal with all the attention, then left Gawker and tried to become a regular blogger again. This is the cover story of the New York Times Magazine, mind you. It’s been roundly criticized all over the web as a piece of whiny narcissism, and some are wondering why it got printed, let alone why it deserved 8,000 words and the cover slot. Here are some of the more high-profile reactions.

My first reaction was that I hated the piece. Then I realized that part of my hatred was due to envy. Then I berated myself because sometimes I can be so judgmental. I don’t like it when I’m judgmental. After all, I don’t like it when people judge me, do I? And wouldn’t the world be a better place if we would all stop being so negative? There’s something very human about the urge to bad-mouth and look down on others. But does that make it okay?

But that’s my superego talking. Let’s get back to my id.

I saw the essay on the Times website late last week — it appeared online a few days in advance of the magazine — and my first thought was that I definitely wanted to read it, since I’m a blogger and I like reading about blog culture. So I read it over the weekend.

By the end of the first paragraph, I was turned off.

Back in 2006, when I was 24, my life was cozy and safe. I had just been promoted to associate editor at the publishing house where I’d been working since I graduated from college,

Oh, god. Another twentyomething wannabe writer trying to make it in the New York publishing scene.

and I was living with my boyfriend, Henry, and two cats in a grubby but spacious two-bedroom apartment in Greenpoint, Brooklyn.

Cliché number 2: lives with boyfriend in Brooklyn. She’ll go on to describe Henry as “a lovably bumbling character, a bassist in a fledgling noise-rock band who said unexpectedly insightful things about the contestants on ‘Project Runway’ and then wondered aloud whether we had any snacks.” Great. Not only do they live in Brooklyn, but the boyfriend’s a hipster musician with an ironic sensibility. Is this real or is it from a fiction workshop? Too cute by half.

I spent most of my free time sitting with Henry in our cheery yellow living room on our stained Ikea couch, watching TV. And almost every day I updated my year-old blog, Emily Magazine, to let a few hundred people know what I was reading and watching and thinking about.

This is when the anger kicked in. WTF? Your blog has a few hundred readers? That’s not fair. If I exclude search engines, my blog probably gets no more than 100 hits a day.

Much later in the article, post-Gawker, Emily starts a new blog, and she writes:

Word had spread through my immediate circle of friends about the blog, and it was now getting a few hundred visitors a day

Jesus Christ. How big is your “immediate circle of friends”? You just toss that out there in passing, “a few hundred visitors a day,” as if it’s no biggie? Do you know how many bloggers would kill to have a few hundred visitors a day? Do you know that I’ve been blogging for more than seven years now and I give lots of care and attention to my posts and I can’t come near that number of visitors?

That’s when I started to think, hmm… do you think maybe you might be envious?

As I read on, my revulsion and envy were joined by fear, because I realized I had some things in common with Emily, some things that are not so attractive. I wondered: Is this what I sound like when I write about my thoughts and feelings? Do I sound this self-centered and whiny? Is this what a desire for attention gets you?

So reading the essay was like looking at a train wreck and into a funhouse mirror at the same time.

My question is, why did this essay get printed? At such length? And as the cover story? The editors probably thought it would be oh-so-insightful. Overthinkers and academics love to extrapolate from anecdotes and find Meaning everywhere, even when there isn’t any. See, New York Times readers? This is What Young People Are Like Today. People don’t care about privacy anymore! It’s true because this one person wrote about it in a first-person essay!

Indeed, it turns out that’s totally what they were trying to do:

Putting Emily’s story on the cover was not a tough call. One of the things we are most interested in at the magazine are those lifestyle issues — what we call Way We Live Now issues — that blend personal narratives with larger political or ethical or philosophical concerns. These are the kinds of things readers are engaged by on Sunday morning (or anytime, in cyberspace). How the Internet is re-describing how we understand privacy, intimacy and personal history is, I think, such an issue, and the fact that the story — an 8,000-word story — has already, in 6 [h]ours or so, attracted more than 600 comments (most of them having nothing to do with why we published the piece as a cover story) leads me to believe a lot of folks agree.

No. The reason it attracted more than 600 comments is because it was awful.

The thing is, it’s fine if you want to write about a cultural trend. But if a piece of art isn’t going to be informative, then it has to be aesthetically pleasing, and this one wasn’t. It can’t just be about the destination; it also has to be about the journey. And this journey was cringeworthy.

But can I tell you what really got me riled about this article? In case you thought I wasn’t riled up enough about it?

Emily Gould is taking readers’ questions and comments. Responses to selected questions will be posted at nytimes.com/magazine on Tuesday, May 27.

Cripes. Not only do you let her write an 8,000-word self-indulgent piece of crap, but then you’re going to have her respond to readers’ questions and comments? Wow, New York Times. Let’s just give her more attention. And you’re so hip and cool, aren’t you? You probably think that people are going to be oh so intrigued by her essay and are going to want to ask her all these Big Idea sorts of questions, since, you know, she’s clearly representative of this whole blogging culture? Since, you know, you’ve just proclaimed her as such?

Her responses are now posted. Okay — she seems to be very aware of how her piece has come across. Not a big surprise. But it’s nice to know she’s not clueless about it.

A couple more points.

The first point is, I know that I’m being judgmental here. And again, if I were in Emily’s shoes, I wouldn’t like it. I wouldn’t like having my essay called “an 8,000-word self-indulgent piece of crap.”

That’s what depresses me, though. Because this is my fantasy. I’m ashamed to say it, but part of me, some part deep down, the child that doesn’t feel it ever got enough love, craves this kind of attention. The kid in me would love to write the cover story for the New York Times Magazine and have it be all about me and my life and have it be read by thousands of people. Because it would mean that I exist, and I could make everyone love me! It’s an infantile urge — I don’t mean that in a bad way, I mean that it’s what an infant feels: that I am the center of attention and it’s all about me.

But look what happens when you get that attention. People rightfully attack you, because why the hell should other people care about you and your petty problems? What makes you so special? Because, you know, you’re not so special. And it turns out that even though you’ve gotten all this attention, people don’t love you.

So the fantasy is worthless. I realized this a few years ago. If I can ever manage to become a published writer, I’d rather write about history and politics. Not only do I find it interesting, but it’s healthier, because it’s something external to yourself.

The second point is, I realize that I’ve just spent over a thousand words giving attention to an article that I claim deserves no attention.

Damn you, you New York Times and your jujitsu. You tricked me!

Crystal Skull

We saw Indiana Jones and the Kingdom of the Crystal Skull last night. (Spoilers below, after the jump, although they only involve stuff from the first part of the movie.)

I thoroughly enjoyed it. I loved that it was in many ways a throwback to 1980s movie-making, which is what Spielberg intended, as he said in Vanity Fair a few months ago:

Rather than update the franchise to match current styles, Lucas and Spielberg decided to stay true to the prior films’ look, tone, and pace. During pre-production, Spielberg watched the first three Indiana Jones movies at an Amblin screening room with Janusz Kaminski, who has shot the director’s last 10 films. He replaces Douglas Slocombe, who shot the first three Indy movies (and is now retired at age 94), as the man mainly responsible for the film’s look. “I needed to show them to Janusz,” Spielberg says, “because I didn’t want Janusz to modernize and bring us into the 21st century. I still wanted the film to have a lighting style not dissimilar to the work Doug Slocombe had achieved, which meant that both Janusz and I had to swallow our pride. Janusz had to approximate another cinematographer’s look, and I had to approximate this younger director’s look that I thought I had moved away from after almost two decades.”

Spielberg promises no tricky editing for the new one, saying, “I go for geography. I want the audience to know not only which side the good guy’s on and the bad guy’s on, but which side of the screen they’re in, and I want the audience to be able to edit as quickly as they want in a shot that I am loath to cut away from. And that’s been my style with all four of these Indiana Jones pictures. Quick-cutting is very effective in some movies, like the Bourne pictures, but you sacrifice geography when you go for quick-cutting. Which is fine, because audiences get a huge adrenaline rush from a cut every second and a half on The Bourne Ultimatum, and there’s just enough geography for the audience never to be lost, especially in the last Bourne film, which I thought was the best of the three. But, by the same token, Indy is a little more old-fashioned than the modern-day action adventure.”

Spoilers follow.
Continue reading

Pete Hamill on RFK

In the current issue of New York Magazine, veteran journalist Pete Hamill writes beautifully about being friends with Robert F. Kennedy and witnessing his assassination, which happened 40 years ago next month.

By 11 p.m., it seemed clear that Kennedy had won California, a huge triumph that would erase the comparatively minor shame of defeat in Oregon. Now we were in Kennedy’s own room: Schulberg, Brian, Cesar Chavez, Newfield, Breslin. I remember squatting with my back against a wall. Kennedy was on the floor, back to a sofa, one arm resting on a raised knee, the other leg stretched out. Others came and went. Frank Mankiewicz handed him a sheet of paper. Maybe words for a speech. Maybe more results. The TV set was on, the sound off, showing Kennedy ahead. Most people had glasses in their hands. Beer. Harder stuff. Soft drinks.

The mood was light, almost giddy. Kennedy smiled and smiled, and laughed out loud at Breslin’s interminable New York joking. Then someone said, glancing at a watch, that it was time to go down. Kennedy stood up, buttoned his cuffs and his collar, went into the bathroom. Everybody else was standing now. Some went back to the larger room across the hall where television might offer a better view. Kennedy came out of the men’s room. He had combed his hair and donned a jacket. He was smiling broadly.

“Let’s go down,” he said.

LA Times Marriage Poll

The L.A. Times did a poll on the proposed California constitutional amendment barring same-sex marriage. Right now the people who support the amendment are leading, 54%-37%. Boo. But apparently, “ballot measures on controversial topics often lose support during the course of a campaign,” according to the article.

One interesting fact:

[T]he poll found that views on gay marriage were greatly influenced by personal connections. Of those who said they knew a friend, a family member or a co-worker who was gay, nearly half approved of the court’s ruling — more than twice the proportion among those who said they were not acquainted with a gay person.

The divide was as stark when it came to the proposed constitutional amendment: 70% of voters who said they did not know a gay person would vote for it, a position taken by just 49% of voters who said they knew a gay person.

If you’re a closeted Californian, please come out to your families, friends, and co-workers between now and November. Your fellow gays need you.

Originalism

How should we decide dicey constitutional issues? How should we decide whether or not a constitution requires that same-sex couples have the right to get married?

I was thinking about different ways judges interpreting the Constitution, and more specifically, about originalism. I noticed that the prolific judge Richard Posner has a new book out (as he always does), How Judges Think, and I was reading some discussion about it on Volokh.com. One commenter wrote:

[A particular critic of the book] asks why we shouldn’t choose the rules [for interpreting the Constitution] that are most “faithful” to history and text. Rules that are most “faithful” to separation of powers “principles.” Rules that are most “faithful” to the “properly” limited role of the judiciary.

… First, lets examine which of these things can be resolved with reference to the “original public meaning” of the Constitution and nothing else. First, the assertion that there even IS an original public meaning is somewhat retarded, because the “public” is an abstraction, not a real thing. Different individuals that constitute that thing we call the “public” have had different understandings of the Constitutions text (beyond the easy questions) from the very beginning. Exactly whose understanding do we privilege by labeling it as the “original public meaning.” You don’t really get anywhere with this move.

The originalist point of view says that because judges are not democratically elected, they should exercise restraint in interpreting ambiguous parts of the Constitution. As Odysseus straps himself to the mast in order to keep himself from heeding the Sirens’ call, judges need to grasp something so they don’t veer off course. What’s the “safest” way to interpret the Constitution? Once again, for instance: what’s the safest way for a judge to decide, without overstepping the bounds of judging, whether or not a constitution requires that same-sex couples and opposite-sex couples be treated equally for the purpose of marriage?

I tend to agree with the commenter above about the problems of “original public meaning.” But in addition to the question of whether there is an ascertainable “original public meaning,” there’s another question: why should judges try to be faithful to the “original public meaning” of the Constitution in the first place? Why should the “dead hand of the past,” is it is often called, carry more weight than the present?

The response is that the Constitution was ratified by “We the People,” and that when in doubt, you should defer to the people, because the Constitution should mean one specific thing unless “we the people” amend it. If we haven’t amended it, that means we don’t want the Constitution interpreted in a particular way. Judges aren’t elected, so they should defer to these majorities.

But that presumes that the desires of the majority are the most important factor. Yet as Glenn Greenwald points out, “strictly speaking, the U.S. is not a ‘democracy’ as much as it a ‘constitutional republic,’ precisely because constitutional guarantees trump democratic majorities.”

In other words, individual rights are important, and majorities can’t take them away.

The problem, though, is that if judges needn’t follow the majority will, but should instead try to apply constitutional rights, then you’re going to get a different result depending on who the actual judges are.

But what other way works, really? I respect originalism, because it attempts to give judges something to guide those decisions. But originalism doesn’t work because it can’t explain why a narrower interpretation of the Constitution is better than a wider interpretation without appealing to the founders and some notion of safety and conservatism, and in order to do that, it has to explain why those notions are the best things to appeal to.

Is it inherently better for judges to find that there is no constitutional right for same-sex couples to get married, or that there is such a right? You can’t answer that question without making a value judgment. Even if you try to escape that task by making a process-oriented judgment (i.e., when in doubt, listen to “We the People”) instead of a substantive value judgment, the decision to use one process or another still requires a value judgment, because you need a reason for choosing one process over another. So much of the quest of judicial theory is about finding ways for judges to make the safest decisions possible. But you can’t decide what criteria to use for that decisionmaking process without making a value judgment.

Judges can’t escape making value judgments. It’s inherent in judging, because it’s inherent in being human. There really is no solid, absolute answer out there. As strongly as I believe in same-sex couples’ right to get married, that’s the dirty little secret.

In a world without God — which I believe is our world — we humans have to decide all this stuff for ourselves.

Clinton as VP

Misleading headling of the day: As Race Wanes, Talk of Clinton as No. 2 Grows.

If you saw this headline, what would you expect to read? You might expect to read an article in which a whole bunch of Democrats and pundits are increasingly talking about the prospects of Obama choosing Hillary Clinton as his running mate.

Instead, the only person in the article who seems to be talking about her prospects as VP is Bill Clinton. There’s sentence after sentence about what Bill Clinton wants.

Later in the article is this:

The growing discussion about a ticket of Mr. Obama and Mrs. Clinton is largely being fueled by Clinton supporters, although it is a suggestion that Obama supporters do not dismiss.

Again, the article mentions exactly one of those Clinton supporters: the candidate’s husband. And the fact that Obama supporters “do not dismiss” the suggestion doesn’t mean that they’re actively talking about it.

There’s also this:

Jerry Crawford, a Des Moines lawyer who is the Midwest co-chairman of the Clinton campaign, said in an interview Thursday that he supported the notion of Mrs. Clinton serving as a vice presidential candidate for Mr. Obama should he become the nominee.

It sounds like reporter Patrick Healy asked Jerry Crawford about this in order to gin up a story. Again, it doesn’t sound like this is a grass-roots movement.

Worst headline ever.

Lurkers

My blog has a bunch of readers who are mysterious to me.

I know that I’ve got visitors beyond those who leave comments or send emails — I can tell from my referral stats. I’m not talking about the visits that come from search engines; I get a bunch of hits from people who come to my site via Google and don’t find what they’re looking for. I’m talking about the visits that come without any URL attached. Presumably these are people who come to my site by clicking on a browser bookmark or typing in the URL directly. I know nothing about them but their IP addresses.

I love it when readers, new or old, leave comments. And I love finding out who my readers are.

So, mysterious readers, this is your chance to tell me: who are you?

Older Jews and Obama

This disgusts me and worries me. All these elderly Florida Jews who won’t vote for Obama because he’s black. I don’t know what bothers me more — those who are prejudiced, or those who are misinformed.

Come on, people. You’re retired. Pick up a goddamn newspaper.

He’s going to have to work hard to win Florida. Hopefully he can make it up by winning states like Colorado and Virginia.

Jimmy Stewart Centenary

Jimmy Stewart, one of my favorite actors, would have turned 100 years old today. I didn’t even realize it until I got home from work, flipped through the TV listings, saw that Turner Classic Movies was airing Jimmy Stewart movies all day, wondered why, and checked to see if it was his birthday.

Stewart is best known these days for Frank Capra’s It’s a Wonderful Life, but he also starred in two of my favorite Alfred Hitchcock movies — Rear Window and Vertigo (as well as the less celebrated Rope). Hitchcock famously cast him against type; in Rear Window and Vertigo, Stewart departs from his innocent, aw-shucks persona to play obsessive characters whose fixation verges on creepiness.

Stewart died in July 1997. I remember learning that he had died. Here’s his New York Times obituary.

R.I.P., Jimmy Stewart.

Hillary as Woman

There’s been so much talk in this presidential race about Hillary Clinton as a woman: about whether her campaign has been hurt by sexism, about her campaign’s effect on future female presidential candidates, about her effect on the women of tomorrow, and so on. I’ve seen this discussed most often by Salon.com editor Joan Walsh, who seems obsessed with sexism against Clinton to an unhealthy degree.

The most recent piece I’ve read on the subject is this one by Peggy Orenstein from the Sunday Times Magazine, in which she wonders what effect Clinton’s campaign will have on her daughter.

So it is not the attacks themselves that give me pause, but the form they consistently have taken, the default position of incessant, even gleeful (and, I admit it, sometimes clever) misogyny. Staring down the sightline of my daughter’s index finger, I wondered what to tell her — not only at this moment, but in years to come — about Hillary and about herself. Will the senator be my example of how far we’ve come as women or how far we have to go? Is she proof to my daughter that “you can do anything” or of the hell that will rain down on you if you try?

I have to admit — I just don’t see it. I’m baffled by those who say that Clinton’s treatment will discourage females from running for president in the future, or that it has anything at all to say about future female candidates. I don’t know if it’s because I’m a Gen-Xer or because I’m male, but to me, Clinton’s gender has barely registered as an issue in this race. Stephen Colbert sometimes jokes about how he “doesn’t see race”; me, I haven’t seen gender in this campaign.

It’s not that there haven’t been some isolated sexist attacks against her. But “Iron my shirts!” was something yelled out by a couple of yahoos at a campaign event, and “How do we beat the bitch?” was a question asked by a single voter at a McCain event a few months back, and although Chris Matthews of MSNBC has said some dumb things (including some allegedly sexist comments that were not actually sexist), he’s one anchor. There are always going to be sexist people and attitudes in the world, just as there will always be racists and homophobes and antisemites and anticatholics. There will always be unenlightened idiots.

But there’s a big difference between isolated examples of sexism and systematic sexism. And I haven’t seen any systematic sexism in this campaign. Some people see any attacks against Clinton as sexist, particularly attacks by those in the media. Well, that’s the way politics goes. Cable news anchors are opinionated and they say dumb things about all candidates. Romney, Edwards, Giuliani, Thompson, McCain (sometimes), and even media darlings Huckabee and Obama have had to go through this.

There are at least ten reasons why Clinton isn’t going to be the nominee that have nothing to do with her gender. I don’t buy any of the crap about how “Americans are uncomfortable with an ambitious woman.” It’s not that she’s a woman, and it’s certainly not that she’s ambitious. It’s that she doesn’t know when to stop, which is an obnoxious quality in anyone, man or woman. Were Clinton a man, I would be just as scornful of her for the way she’s run and is continuing to run her campaign. Were the two remaining candidates Obama and Edwards instead of Obama and Clinton, and Edwards weres doing what Clinton has done over the last few months, I would still be thinking, “Come on, get out of the race already.” I feel the same way about Ralph Nader, who runs narcissistic and delusional campaigns. I feel contempt for him. It’s not sexism.

Perceptions of sexism in this race are primarily a generational thing: I didn’t live through the sexist ’50s and wasn’t scarred by the battles of the ’60s or ’70s. And it’s a gender thing: I’m a man, so I’ve never directly experienced sexism. (Some say anti-gay attitudes have ties to sexism, but it’s not the same.)

Which of us is correct? Are those of us who are younger, or male, or both, blind to the sexism that exists because we’re not its target? Or are those of the older generation paranoid, seeing sexism when it’s not there? I suspect it’s the latter.

We’re dealing with (1) people who want a female president more than anything, versus (2) people who are completely happy and even eager to vote for a female president but not if she’s not the best candidate. Some people in group #1 see people in group #2 as sexist, and some people in group #2 see people in group #1 as sexist in their own way.

This is how it always works with identity politics. Some claim A is just as good as B, some claim A is different and therefore better than B, some claim A needs an extra boost to make up for past injustice, some claim that true justice lies in treating A and B the same. Thus will it ever be.

Perhaps if I understand that, I can get over my irritation at the people who see nothing but gender in Clinton’s candidacy. I haven’t yet. But we’ll see.

(Update: I missed this in the Times today.)

CA Chief Justice Interview

The L.A. Times interviewed the Chief Justice of the California Supreme Court, Ronald George, who wrote the majority opinion in the marriage cases.

In the days leading up to the California Supreme Court’s historic same-sex marriage ruling Thursday, the decision “weighed most heavily” on Chief Justice Ronald M. George — more so, he said, than any previous case in his nearly 17 years on the court. …

[A]s he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled in a wide-ranging interview Friday.

“I think,” he concluded, “there are times when doing the right thing means not playing it safe.”

Yet he described his thinking on the constitutional status of state marriage laws as more of an evolution than an epiphany, the result of his reading and long discussions with staff lawyers. …

He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.

California’s decision, in a case called Perez vs. Sharp, preceded the U.S. Supreme Court’s action on the issue by 19 years. Even after that ruling, Californians passed an initiative that would permit racial discrimination in housing. The state high court again responded by overturning the law, George said.

Rather than ignoring voters, “what you are doing is applying the Constitution, the ultimate expression of the people’s will,” George said. …

“When is it that a court should act?” George mused. “When is it that a court is shirking its responsibility by not acting, and when is a court overreaching? That’s a real conundrum. I have respect for people coming out on different sides of this issue.”

George’s reputation for caution is based on the court’s tendency, under him, to decide cases narrowly, refusing to reach issues not necessary to the case at hand. Advocates thrust the central constitutional question of equality for gay people on the court; there was no way to avoid it. …

Santa Clara University law professor Gerald Uelmen, who has closely followed George’s court tenure, said “the biggest surprise” of the marriage ruling was that George favored it. Uelmen said George must have done “some real soul searching.”

The “very carefully written opinion” reflects that George “is very sensitive to how this will be perceived,” Uelmen said. “He realized that this more than any other thing he does as chief justice will define his legacy. He’ll certainly take a good deal of political heat over this.”

Mathew Staver, founder of Liberty Counsel, said he had long expected George to vote against same-sex marriage.

“His change from where I thought he would be is baffling,” said Staver, whose group promotes traditional marriage.

UCLA law professor Brad Sears said, “Definitely what created the majority was George’s support.”

Art Leonard Weighs In

New York Law School professor Art Leonard, who edits the monthly Lesbian/Gay Law Notes, has written a fascinating look at the little-discussed parts of the California marriage decision. Some highlights:

When/if the court’s decision goes into effect, California will be the third largest polity in the world that has embraced marriage equality by allowing same-sex couples to marry. The largest is South Africa, with a population of almost 48 million, then Spain with about 45 million, then California, with about 38 million, followed by Canada, 33 million…

California freely allows out-of-state residents to marry there, regardless of what their home states will do in the way of marriage recognition, so we are likely to see plenty of action as out-of-staters flock to California to marry, then go home and try to assert their rights. Additionally, of course, with a population almost six times as large as Massachusetts and an enormous LGBT community, California will generate an enormous number of married same-sex spouses, some of whom will travel to and through other states, relocate for employment or other reasons, and find themselves embroiled in situations calling for marriage recognition.

[T]he California Supreme Court’s holding that sexual orientation is a suspect classification is really huge, far beyond the marriage issue, because it makes any state policy or practice that discriminates based on sexual orientation presumptively unconstitutional. At one fell swoop, it says that gay public employees in California have the same level of constitutional protection from workplace discrimination on the basis of their sexual orientation that racial minority employees have from race discrimination, for example. (To judge by the cases I see popping up on my regular westlaw searches, this could make a big difference, for example, in pro se litigation by state prisoners challenging homophobic treatment by guards and prison administrators, and could also be used to mount challenges against recalcitrant public school administrators. . .)

There’s more that con law nerds like me will enjoy.

Sully Says

Andrew Sullivan writes:

People can talk about activist liberal judges all they want. But the simple truth is that what has changed these past twenty years is not the nature of judges, but our collective understanding of what sexual orientation is. Behind all this is a deep, deep shift in our consciousness from thinking of gay people as defective straight people who perform certain sexual acts to their being the moral equivalent of heterosexuals, capable of forming relationships and building families as well as anyone. This is at the core of the generational divide: not that young people are more “liberal” or “progressive” than their parents. On an issue like abortion, they’re not. It is simply that the next generation has grown up with a different definition of who gay people are. They see gay people as interchangeable with straight people. They don’t think we’re inferior to them. Because they know us. …

Is this shift an ideological one? I don’t believe so. It’s an empirical one, based on increased knowledge of who gay people are. …

CA Marriage Decision: Equal Protection Analysis

There’s one aspect of the California marriage decision that’s almost as important as the outcome: the legal reasoning the court used in reaching its result. The opinion contains great news for gays and lesbians in California — and perhaps elsewhere — that goes beyond marriage.

The California Supreme Court didn’t just state yesterday that marriage is a fundamental right open to gay and lesbian couples. It also became the first high court in the nation to state that any law that discriminates against gay people will be treated with the same skepticism as laws that discriminate on the basis of race or gender. Any such laws will have to survive a heightened level of scrutiny in order not to be found unconstitutional. Not even the U.S. Supreme Court uses that heightened standard for sexual orientation discrimination.

In deciding cases involving equal protection violations, the U.S. Supreme Court uses different levels of scrutiny depending on the characteristic that is being discriminated against. Under the lowest level of scrutiny, “rational basis” scrutiny, a government entity merely has to show that the discrimination is rationally related to a legitimate government interest. The classic case comes from the 1950s, in which the Court upheld an Oklahoma law stating that optometrists were allowed to replace lenses but opticians were not. The Court found that the state legislature could have put forth a rational reason for the law.

The Court uses higher levels of scrutiny in evaluating laws that discriminate against certain groups. While the criteria seems flexible, these are generally groups that have a long history of suffering from discrimination. The most common are racial minorities and women. But the Supreme Court has never stated that gays and lesbians deserve the same heightened protection. Even when it’s struck down laws that discriminate against gays — such as the sodomy laws and the Colorado constitutional amendment that outlawed any laws that bar gay discrimination — the Court used rational basis scrutiny, finding that there was no rational reason for these laws.

In interpreting their own state constitutions, state supreme courts tend to follow the lead of the U.S. Supreme Court. State constitutions can’t provide fewer rights than the U.S. Constitution does. But since constitutional rights are a floor and not a ceiling, state constitutions are free to grant more rights than the U.S. Constitution does. To my knowledge, and to the knowledge of most commentators I’ve read since yesterday, until yesterday no state supreme court had treated sexual orientation as a suspect classification in a law. But now the California Supreme Court – allegedly the most influential state court in the nation — has done so.

Even if the proposed constitutional amendment restricting marriage to opposite-sex couples passes in November, that ruling will stand. (Except in the area of marriage, of course.) And perhaps other state supreme courts will eventually follow California’s lead.

Summary of the California Marriage Decision

Summary of the main opinion in the California marriage decision:

pp. 1-12: intro; summary of the conclusion.

pp. 12-18: history of the litigation, which began in 2004.

pp. 19-22: procedural point on the mootness of a challenge involving a previous stay.

pp. 23-28: history of California marriage statutes from 1849 to 1992.

pp. 28-36: discussion of whether Prop 22, passed in 2000, was intended to ban same-sex marriages from being performed in the state, or just to ban recognition of same-sex marriages performed out of state. The court says: both, therefore this case involves a challenge to Prop 22 as well as to legislatively-enacted marriage statutes.

pp. 36-47: history of California’s domestic partnership legislation as it evolved from 1999 to present.

p. 48: intro to substantive discussion.

pp. 49-51: beginning of discussion of marriage as a fundamental right; the right touches on liberty and privacy/autonomy.

pp. 51-53: The proper scope of analysis is the fundamental right to marry, not the fundamental right to same-sex marriage:

[Plaintiffs] are not seeking to create a new constitutional right — the right to “same-sex marriage” — or to change, modify, or (as some have suggested) “deinstitutionalize” the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits — accompanied by the same mutual responsibilities and obligations — as this constitutional right affords to opposite-sex couples.

pp. 53-66: examination of the nature and substance of the interests that the right to marriage protects. Marriage has both societal and individual benefits.

pp. 66-72: the state constitution guarantees this fundamental right to everyone, regardless of sexual orientation.

pp. 72-79: procreation is irrelevant to the right of marriage. Married couples are not required to have children (pp. 73-77); some couples raise their non-biological children (couples who adopt; same-sex couples) (pp. 77-78); conclusion of fundamental-rights analysis.

pp. 80-82: the word “marriage” is important here because opposite-sex couples have been allowed to use it but same-sex couples have not.

pp. 82-84: beginning of equal protection analysis; what standard of review is appropriate: rational-basis scrutiny (where discriminated party has burden of proof), or strict scrutiny (where discriminator has burden of proof)?

pp. 85-93: same-sex marriage discrimination cannot be considered sex discrimination, so no strict scrutiny on that basis.

pp. 93-95: same-sex marriage discrimination is discrimination on the basis of sexual orientation.

pp. 95-101: sexual orientation discrimination deserves strict scrutiny because it is a suspect classification (first time CA Supreme Court has stated this! yay!).

pp. 101-106: the classification also impinges on a fundamental right, marriage; this is a further reason why strict scrutiny is required.

pp. 106-119: under strict scrutiny analysis, the discrimination — denying same-sex couples the right to marry — is unconstitutional because it is not a necessary classification that furthers a compelling government interest, as follows:

pp. 107-108: the CA constitution does not require that marriage be limited to a man and a woman.

pp. 108-111: courts are not precluded from weighing in on the matter but rather are obligated to do so.

pp. 111-114: laws passed by popular initiative are not exempt from constitutional scrutiny, because a constitution is a higher expression of the people’s will than a popular initiative.

pp. 114-116: historic and well-established nature of the marriage discrimination is not compelling, because values can change over time, as has been shown with other issues.

pp. 116-119: allowing same-sex couples to get married does not harm opposite-sex couples or their children, and it does help same-sex couples and their children; therefore, no compelling interest in marriage discrimation against same-sex couples.

pp. 119-121: what is the proper remedy: deny marriage rights to everyone, or extend marriage rights to same-sex couples? The latter. The marriage limitation as set forth in state law and in Prop 22 falls. State officials are ordered to take all actions necessary to effectuate this ruling.