Tag Archives: marriage equality

On Judge’s Walker’s Stay (or Whatever)

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As I said, despite my caution, Judge Walker’s decision on the stay is a nice read.

My favorite part is how he takes apart the anti-equality folks’ disingenuous plea not to harm those poor gay couples by letting them getting married under a cloud of uncertainty (how nice of them to show concern for gay couples when they’ve spent years demonstrating they don’t care about us at all):

Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved…. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse. Proponents admit that the harms they identify would be inflicted on “affected couples and * * * the State.” … [T]he court considers only whether the party seeking a stay faces harm, yet proponents do not identify a harm to them that would result from denial of their motion to stay.

. . .

If proponents had identified a harm they would face if the stay were not granted, the court would be able to consider how much weight to give [this] factor. Because proponents make no argument that they — as opposed to the state defendants or plaintiffs — will be irreparably injured absent a stay, proponents have not given the court any basis to exercise its discretion to grant a stay.

Boom.

Since the state government of California has decided to sit this thing out, there’s basically nobody defending Prop 8 except the anti-equality people. This also shows how crucial it is that the state government is choosing not to defend Prop 8. If only the Obama administration would do the same thing on the federal level.

Prop 8 and the Dangers of Twitter

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Like many people this afternoon, I was madly refreshing a Twitter search for “prop8” and reloading the California district court’s website, over and over. Finally, at about 3:15, unsubstantiated rumors began to show up on Twitter that Judge Walker was denying the motion for a stay, meaning that same-sex couples in California would be able to get married immediately. Other twitterers then retweeted those tweets, and a live online feed of local San Francisco TV outside city hall showed a crowd of pro-equality people cheering at the apparent denial.

But I was feeling cautious. There was no decision posted online, and no official word — just rumors, with no explanation of where the rumors came from or who was supplying them.

Finally, at about 3:40, the official decision appeared online. Yes, it grants a stay.

But not right now.

Judge Walker writes:

Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.

(Emphasis mine.)

On the last page, Judge Walker states that his decision to deny a stay is itself stayed, until August 18 at 5 p.m. PDT. That gives the Ninth Circuit six days to hear and decide an appeal of Walker’s decision to let gay couples immediately marry. Six days is a long time. It’s perfectly conceivable that the Ninth Circuit will overrule Judge Walker and issue a stay. Now, Judge Walker lays out a very strong case for why there should not be a stay, and at 11 pages it makes a great, short read. But who knows what the Ninth Circuit will do?

Yet there are still people all over Twitter expressing happiness and congratulations. I don’t get it. I don’t want to be a party pooper, but look, this thing is not over. The Ninth Circuit could slam it down before any gay couples can get married again.

This is exactly why you should take unsubstantiated tweets with a grain of salt until you actually see proof of something. It’s silly and irresponsible to tweet to all your followers that the motion has been denied, on an issue of this emotional magnitude, just to try and be the first person to break the news, unless you’ve actually read the decision yourself.

Maybe the Ninth Circuit will do the right thing. I hope so. But six days is ages. The Ninth Circuit could overturn Judge Walker tomorrow. Or even tonight.

Tweet responsibly.

The Prop 8 Ruling

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I’ve read the Prop 8 ruling, which was of course announced this afternoon.

And you know what? I found it boring.

This is not the first court to rule that a ban on marriage for same-sex couples violates the Constitution. Courts in Massachusetts, Connecticut, Iowa, Hawaii, and, of course, California, have issued similar rulings before, and judges in New York and New Jersey have put forth the same arguments in dissenting opinions. The arguments for marriage equality have been put forth over and over again. How many different ways are there of stating the obvious?

And that is why the arguments are boring — because they’re so obvious. Of course we deserve the right to marry. How can anyone not understand this?

And yet a large but steadily shrinking portion of the country doesn’t seem to get it. Or just plain refuses to.

It’s not really about marriage. It’s about thinking that gay people are just not as good as straight people.

To quote Judge Walker:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.

Not everyone who opposes marriage equality is a gay-hater. Not all of them spew out lies like Maggie Gallagher, who must be a really unhappy and unloved person to spend so much time trying to prevent other people from being happy.

Many people who oppose marriage equality say they have no problem with gay people. They may even say they like gay people. They may even say they like me. They may have gay friends or gay workers and think that they’re perfectly nice people.

Hey, they have such great fashion sense and they’re so entertaining to watch! But, you know, they don’t deserve the same rights that we have. Because, I like them and all, but gay couples are still not as good as real couples. Two men or two women together just aren’t as real or good as a man and woman’s relationship.

I like gay people, but I sure hope my son or daughter doesn’t turn out to be one!

They don’t realize that this doesn’t make any sense, and that it is in fact contradictory. If you oppose marriage equality, then you oppose gay people. If you think, even in a small part of your brain, that gay people are not as good as straight people, then you oppose gay people.

Don’t patronize me. If you don’t think I deserve equal rights, then you have no respect for me, and you have no respect for gay people. Don’t pretend that you do. I don’t want to be friends with you.

So yes, this decision was boring. Nothing new here. Just the same old, crystal clear, logical, obvious arguments.

Even if this case gets to the Supreme Court and we lose — come on, Anthony Kennedy, we’re counting on you! — Judge Walker’s decision will still be right. People need to read it, so they can understand the obvious, self-evident truths.

Stating the obvious is not always interesting. But it is often necessary.

Doe v. Reed

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The Supreme Court issued a fascinating decision this morning in connection with the marriage equality movement. It pits Justice Scalia against the anti-gay folks, and I’m not totally sure which side I agree with here.

Last year, in Washington State, the governor signed a same-sex domestic partnership bill into law. In response, a group called Protect Marriage Washington tried to get an initiative onto the ballot to repeal the law. They managed to get enough signatures to do so. In response to that, a coalition of groups sued under the state’s Public Records Act to learn the names of everyone who signed the petition.

Protect Marriage Washington argued that this would be a violation of the First Amendment rights of everyone who signed the petition, because it would have a chilling effect on speech. They argued that if you can’t sign a petition without staying anonymous, this will discourage people from signing petitions and thereby their free speech rights will be curtailed. They also argued that in this particular instance, the signers of the petition were subject to threats from gay-rights people.

This morning, the Court, in Doe v. Reed, ruled that there is no blanket right to anonymity if you sign a petition. But they refrained from ruling on the particular circumstances of this case; they kicked back to the lower court the issue of whether there’s a legitimate threat against the petition signers that would necessitate keeping their identities secret.

Chief Justice Roberts wrote the majority opinion, which was 6-3, although the lineup is a little splintered. Only Justice Thomas dissented completely, arguing that the First Amendment in all cases protects the anonymity of petition signers.

Scalia’s concurrence is the most interesting, though. He argues that there is no protection of anonymity regardless of whether there are threats; he examines American history and finds that there is not even a First Amendment right to a secret ballot in an ordinary election, because until the late 19th century, most states didn’t have secret ballots, and the secret ballot was instituted not because of First Amendment concerns, but in order to minimize election fraud.

The highlight of his concurrence is at the end:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously… and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

He’s basically saying to the anti-equality people: don’t be such wimps. Have the courage to argue your opinions in public.

And I kind of respect that.

I’m still not sure if I agree whether petition signers should have the right to their anonymity. I think I’d say, no, except in certain circumstances, such as someone signing a petition for racial equality in the South during the 1960s, in a time and place where there was a history and demonstrated threat of racial violence.

And I don’t like the idea that you can sign a petition to take away someone’s rights and then turn around and falsely complain that you’re subject to the threat of violence for doing so.

Finally, it’s interesting to read this decision alongside the Court’s January ruling that the Prop 8 trial in California shouldn’t be broadcast because it could cause “irreparable harm” to the anti-equality side’s witnesses.

It’s always funny to me that lots of anti-gay people make fun of gay men for being sissies and yet cower in fear of physical harm from them.

Prothalamia

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I sing with a gay men’s chorus called the Empire City Men’s Chorus, and I really should plug our upcoming spring concerts, where we’ll be premiering a newly-commissioned work about marriage equality.

The name of the piece, Prothalamia, translates as “songs in celebration of marriage.” In concept it’s a bit subversive: its structure mirrors the Latin mass (its five movements are called Kyrie, Gloria, Credo, Sanctus, Agnus Dei), but the texts are secular, by Walt Whitman, Gertrude Stein, the ancient Roman writer Martial, and others. The music, by Charles Norman Mason and Dorothy Hindman (who are themselves married), is very modern and complex and quite beautiful.

We’re doing two concerts:

Sunday, May 23, 2010, 3:00 pm
Riverside Church
490 Riverside Drive, New York, NY

Tuesday, May 25, 2010, 8:00 pm
Church of St. Ann & The Holy Trinity
157 Montague St., Brooklyn, NY 11201

You can buy tickets online or at the door.

A Constitutional Law Primer on the Prop 8 Case

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It strikes me that some of what’s going on in the Prop 8 trial can be hard to follow. So I’m going to put on my constitutional law hat here and give a little primer. We’ll see how well I’ve remembered most of this stuff from law school.

Broadly, the plaintiffs in the Prop 8 case — the lawyers who are trying to get Prop 8 overturned — are trying to prove two things: (1) that marriage is a fundamental right that should be open to gay couples as well as to straight couples, and (2) that gays as a group are deserving of equal protection. Basically, discriminatory laws are subject to a high level of scrutiny if (1) they involve a fundamental right (like marriage) or (2) the discrimination is against certain protected groups (like blacks).

(Very little of this doctrine is actually set forth in the Constitution; it has been enumerated in bits and pieces by the Supreme Court over the decades in various constitutional law cases.)

To use a classic example: a state can allow optometrists to conduct eye exams but prevent opthamologists from doing so, because there is a rational reason for the law (one group has the expertise to conduct eye exams, the other does not). But you can’t pass a law permitting optometrists to get married but prohibiting opthamologists from doing so, because marriage is a fundamental right. And you can’t pass a law preventing black people from conducting eye exams, because they are a protected class with a long history of discrimination against them. You also can’t do either of these things because on a minimal level, there is no rational basis for the discrimination.

So this case is, to put it very simply, about (1) whether treating gays differently from straights in the area of marriage is the same as treating optometrists differently from opthamologists in the area of eye exams (i.e. is there a good reason for letting straights get married but not gays), and/or (2) whether sexual orientation should be a protected class like race is.

So here’s how that all plays out:

One, the lawyers on our side are trying to show that sexual orientation should be a protected class, i.e. a “suspect classification.” In other words, they are trying to prove that laws that discriminate on the basis of sexual orientation should be subject to a higher level of scrutiny just as laws that discriminate on the basis of race are subject to higher scrutiny.

Now, one of the characteristics of a group that is subject to this special protection is that the group lacks the political power to achieve its goals through the democratic system. So our side is trying to show that gays lack political power and therefore deserve protection, whereas the other side is trying to show that gays have adequate political power so what’s the big deal. The theory is that the courts will only look out for groups for whom the political system is rigged against them: i.e. blacks in the mid-20th century (who in many cases were being prevented from voting). Basically, the anti-gay folks are saying, “Look, gays have just as much political power as anyone else — see, people like watching TV shows and movies about gay people and there are lots of politicians who support them! Therefore, if they can’t win ballot measures about same-sex marriage, it’s not because of a fault in the political system, it’s just that they lost in a fair democratic vote!”

The whole thing about lacking political power is silly, because it’s paradoxical. Basically, we have to prove simultaneously that (1) gays are getting screwed by the political system and (2) society has evolved enough so that same-sex marriage isn’t that much of a further step. It’s never made much sense to me.

Another characteristic of a group that gets special protection is that that group has an immutable characteristic. So, some of the testimony has been about what makes people gay, can gay people change, etc.

So that’s the “suspect classification” argument.

But if they fail on that point, there is another tack: they are trying to show that Prop 8 does not even have a rational basis and is therefore unconstitutional.

One way to do this is to show that it was motivated by animus. The Supreme Court said in Romer v. Evans that even if a particular group does not deserve special protection, you can never constitutionally discriminate against a group merely because of animus and nothing else. Romer was the 1996 case in which the Court threw out a Colorado constitutional amendment that banned any laws protecting gay people from discrimination; there, the Court found that the reason the people of Colorado passed that amendment had no basis other than animus. That’s one of the reasons why our guys wanted to put William Tam on the stand — to show that he had a hand in the Prop 8 fight and that his reasoning was based on irrational, animus-driven prejudice (i.e. gays are child molesters, gays want children to be able to get married, etc.), and that his thinking reflects the thinking of most of the Prop 8 forces generally.

Another way to show that it lacks a rational basis is to go into the substantive stuff about why gays should be able to get married, why it does not harm children, etc.

So, all of that is the “equal protection” strand of the argument.

The other strand of the argument is the “fundamental right” strand, which also involves much of the substantive stuff about gays and marriage. But the main thrust on the “fundamental right” issue is that the Supreme Court has already, in the past, declared that marriage is a fundamental right: you can’t deny interracial couples the right to marriage, and you can’t even deny someone in prison the right to get married, even though the prisoner might never be able to have conjugal relations with the spouse. So the lawyers are trying to show that this already-declared fundamental right of marriage should not be denied to same-sex couples.

So this is basically what’s going on in the Prop 8 trial.

Prop 8 Trial Continues

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During the Prop 8 trial, I’ve been following the Prop 8 Trial Tracker blog created by the Courage Campaign. It seems like our side has been putting on a great case, and the Prop 8 folks have been putting on a pretty lackluster case.

Of course, none of this really matters, because even if Judge Walker rules in our favor, and even if the Ninth Circuit upholds that decision, this will eventually wind up in the U.S. Supreme Court, where Justice Kennedy will be the deciding vote. No matter how rational our side’s arguments are, we’ll never get the votes of Roberts, Scalia, Thomas or Alito.

It’s really unclear what side Kennedy would be on. He’s written a couple of seminal pro-gay decisions — Romer and Lawrence. But what would he think about the validity of marriage equality?

No matter what happens in the Supreme Court, though, this trial has been a net plus. While I don’t know how much publicity the trial has had since the first week, it can only change people’s minds in favor of equality. I seriously doubt it would turn anyone againstmarriage equality who wasn’t already opposed.

Even if we lose in the Supreme Court, that’s not so bad. The Court wouldn’t outlaw marriage equality; it would just leave everything up to the states, which is where we are now. And any state-based marriage case that involved the interpretation of a state’s constitution would be unaffected, because the U.S. Supreme Court has no legal say over how to interpret a state constitution.

There are some who say that an adverse decision in the Supreme Court would set back the cause of equality, but that’s not necessarily so. As last week’s campaign finance case shows, the Court has no compunction about overturning its own precedents, even if those precedents are less than ten years old.

So I think that whatever happens, this trial has been a net win.

There’s a Martin Luther King quote that Obama has often used in the last couple of years:

The arc of history is long… but it bends towards justice.

In the long run, we’re moving toward equality.

William Tam Admits He’s “Paranoid”

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There was some highly entertaining testimony yesterday in the Prop 8 trial. It was from William Tam, who worked on behalf of Prop 8. Tam had originally been a party to the case, but he dropped out because his theories would have come off as too batshit crazy. But Olson and Boies subpoenaed him as a witness anyway to showcase how nutty some of the Prop 8 people are. And Tam certainly delivered. He even admitted that his fears about marriage equality are “paranoid.”

His testimony starts on page 145 of yesterday’s transcript. Below is the first example I saw of how reasoned argument can be used to demolish inflammatory rhetoric; this starts on page 182. The questions were asked by David Boies.

Q. And you say: “The San Francisco city government is under the rule of homosexuals.” Do you see that?

A. Yes.

Q. Did you believe that, sir?

A. Yes, I believed that.

Q. Who are the homosexuals that San Francisco is under the rule of?

A. Uhm, at that time, supervisor Tom Ammiano was a supervisor there.

Q. And there was also a mayor, right?

A. Yes.

Q. The mayor was a homosexual, was he, according to you?

A. I don’t think so.

Q. You don’t think so? No, I don’t think so either, actually. So if you knew the mayor wasn’t homosexual, why are you telling people in part of the Proposition 8 campaign that San Francisco is under the rule of homosexuals?

A. Uhm, well, you see, Mayor Newsom pass out the same-sex marriage licenses in 2004. And if he is not a friend of them, why would he do that?

Q. When you say that San Francisco was under the rule of homosexuals, did you mean San Francisco was under the rule of heterosexuals that were friends of homosexuals? Is that what you meant?

A. Could be.

Q. Could be.

A. Yeah, you know, I’m not a lawyer. I don’t write things so specifically. You know, that well-defined.

Yes, if you’re having a debate about the civil rights of human beings, it would be silly for the arguments to be “well-defined.” It’s much better to distort the truth.

You know, instead of allowing nutjobs to argue on cable TV and make outlandish claims that don’t get refuted, we should require every debate to be conducted in front of a judge, in a civilized, rational manner, because that’s how the truth really comes out.

Tam unintentionally admits the real truth on pages 221-222:

[I]f the name of “marriage” is not so narrow, which is between people of different — different blood, of different — of age above 18, then our children — you know, I always, we always look at things from the angle of a parent — that they would fantasize. Everyone fantasize whom they will marry when they grow up. So children will fantasize about marrying either a man or a woman. And to us parents — you may say that I’m a paranoid Chinese parent — we get very, very upset about that.

Many a true word is spoken in jest.

I Wonder…

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Do you ever wonder if the reason some people are against marriage equality is because they will no longer be assumed to be straight if someone sees them wearing a wedding ring? That if they say “I am married,” someone will respond, “Oh, to a man or to a woman?”

Throw in a little insecurity over your own sexual orientation and there you go.

Obama Has Me Feeling Down

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For a while I’ve had the idea of writing a post from an alternate universe, where Hillary Clinton is president, and things are going horribly for the Democrats, and we all say, “Darn, if only we’d only elected Obama, things would be going so much better for us!”

I’m feeling down about politics again — Democrat Martha Coakley is in danger of losing her Senate race against Republican Scott Brown, in Massachusetts of all places. If Coakley loses, that leaves only 59 Democrats in the Senate, which means that health care is dead unless the House passes the Senate bill as is. (Or unless both houses get their shit together and vote on a compromise bill already. The Senate passed its bill three weeks ago! What’s taking them so long?)

In the past I’ve blamed Harry Reid for the Democrats’ problems. But I also blame Obama. Things should never have gotten to the point they did last summer, when the “death panel” rumor ran rampant. The New Yorker article on marriage equality that I linked to yesterday has a part that struck me, about Chad Griffin’s experiences working on Bill Clinton’s 1992 campaign:

But the Clinton “war room” remained Griffin’s model of how to make noise in the world. “Every single hour was strategic,” he recalled. “I was this little freakin’ kid hanging around watching Paul Begala and James Carville and George Stephanopoulos. They did not let the opposition gain an inch, and if it did they knocked it down with firepower.”

Can anyone describe the White House efforts at health care reform that way? No.

It’s funny. In 2008, all the anti-Obama people were saying, “Obama’s an idiot, he’s all flash and no substance, all he knows how to do is give a speech.” But in fact, that wasn’t true. I can’t remember where I read this, but there was an article in 2008 saying that Obama as a candidate actually started out really wonky and earthbound and uninspiring, and his campaign managers had to convince him to spice things up a bit, inspire people, use more poetry instead of prose. But now that he’s president, he seems to be just a policy wonk again. Candidate Obama was full of inspiration and hope, but President Obama is just boresville. He’s Calvin Coolidge.

Sometimes lately, I find myself wishing that Hillary Clinton had been elected president. But who’s to say that things would be better if she were in the White House? It’s tempting to say, “Darn, Hillary Clinton would have been a much better president than Obama! She would have kicked ass!” But there’s no way of knowing. She might have turned out to be a bad president: remember her disorganized primary campaign, her wooden speaking ability, the landing-in-Bosnia-under-fire thing. Could she have gotten health care legislation as far along as Obama has? I can just as easily see her overplaying her hand and screwing it up as I can see her intimidating the Republicans and keeping all the Democrats in line.

When we imagine that things would have been better only if things had turned out differently, it’s basically “hope” aimed in a different direction. “Regret” and “hope” are cousins. In each case, we’re imagining some alternative world where things are going much better than they are now: it’s either the future (hope) or an alternate universe (regret).

There are, of course, factors outside of Obama’s control here. If Ted Kennedy hadn’t gotten cancer, there would be no special election in Massachusetts to worry about right now. If tons of white people weren’t racist and xenophobic, there would be no Tea Party movement to deal with. But there’s a lot more Obama could have been doing these last few months other than being idealistic.

Anyway, there is nothing that I, myself, can do to change anything going on in politics right now. So I can continue to follow it and get depressed about it; or I can just ignore it, which isn’t going to happen, because I’m a politics junkie. Finally, there’s the third option, which is that I can continue to follow it and realize that there’s nothing I can do about it so there’s no point in getting depressed about it.

I will probably choose the last one.

New Yorker on Marriage Equality Lawsuit

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The New Yorker has a terrific article by Margaret Talbot on the marriage equality case, Perry v. Schwarzenegger, that began yesterday in San Francisco. It has pretty much everything you need to know about the case from soup to nuts.

I have to admit that while I was very leery of this lawsuit and thought it was a terrible idea, the more I read and think about it the more excited I am. It feels good to be going on the offensive. Ted Olson may be a Dark Lord, but in this case he’s our Dark Lord. By which I mean that he’s a top-notch lawyer, and it’s great that he’s finally using his powers for good. If there’s going to be a marriage equality case before the Supreme Court, we couldn’t have stronger legal representation.

And yes, it’s possible that the case will wind up in the Supreme Court and that we will lose. On our side: Ginsburg, Breyer, hopefully Sotomayor, and hopefully whoever replaces Stevens after he likely retires this summer. On the other side: Scalia, Thomas, Roberts, Alito. In the middle: Anthony Kennedy, who wrote Romer and Lawrence and therefore would seem to be on our side, but you never know, especially since it would be a really big deal for the Court to overturn the laws of 39 states. Some say that if we lose, it will set gay rights back for years. On the other hand, what do we really have to lose? And if not now, when? Roberts, Alito and Thomas are all young, and Scalia could be on the Court for another 10-15 years. The makeup of the Court isn’t going to change in our favor anytime soon.

More importantly, this case is a great teaching moment. From the list of witnesses that Ted Olson and David Boies have put together, it looks like the case will touch on everything from marriage to discrimination to child-rearing to children’s education to so-called “conversion therapy.” Despite the ballot initiatives and the state legislatures that keep going against us, the more we discuss marriage equality, the more the public gets on our side.

On the other hand, if the Supreme Court rules in our favor, it could give fuel to the movement to pass the Federal Marriage Amendment. But you know what? I can’t see 67 U.S. senators voting to enshrine discrimination in the Constitution. And I’m tired of worrying about what our opponents are going to do if we fight for our rights. We’ve been timid for too long. What happens, happens.

Interestingly, there’s another federal marriage equality case going on right now, Gill v. Office of Personnel Management, which seeks not to overturn state laws against marriage equality but rather to overturn part of the Defense of Marriage Act. Gill seeks to force the federal government to recognize same-sex marriages that were validly performed in a state that recognizes them. Normally, if, say, Massachusetts allows a marriage to take place, the federal government doesn’t second-guess Massachusetts and refuse to recognize that marriage. Why should it be any different in the case of same-sex couples? This is what the Gill plaintiffs argue, and in a sense it’s a more palatable case, because it seeks not to overturn state laws but rather to strengthen them. It’s not clear which case will get to the Supreme Court first, Gill or Perry.

In the meantime — still waiting for Obama to stop discharging U.S. soldiers for being gay, and for Congress to repeal Don’t Ask, Don’t Tell.

Damn, I’m tired of waiting.

Thank you, Bill Baroni

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I went to law school with Bill Baroni. He graduated a year or two ahead of me. He didn’t know me, but I knew who he was. He was nicknamed “mayor of the law school,” because he was apparently a nice guy who seemed to know everybody. He was from New Jersey, and everybody said he would go into politics.

He did. He got elected to the New Jersey Assembly, and then he got elected to the New Jersey Senate. And now he’s on the New Jersey Senate Judiciary Committee.

Last night, the Judiciary Committee approved a bill to allow marriage equality in New Jersey, which allows it go to the full New Jersey Senate on Thursday.

The committee passed the bill 7-6. One Republican voted for the bill. That Republican was Bill Baroni. Had he voted against the bill, it would have died.

Senate passage is by no means guaranteed, but it has passed a crucial step with Bill Baroni’s help. I want to thank him for doing what is right. And I hope some of his fellow Republicans in the senate do the same thing on Thursday.

More about Bill here.

On the Other Hand

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This all happened so fast. Until a few hours ago, I didn’t even expect the state senate to vote on marriage equality this session. And then I glanced at the NYTimes.com late this morning and saw the surprising news that they’d be voting today. All the marriage equality proponents have been arguing that no matter how the senate voted, it would be progress if they at least held a vote.

And that’s true. Holding a vote and losing is better than not holding a vote at all. (I think.) Now every senator is on record with a position on marriage rights, so we know whom to target next time. The senate has broken the taboo against voting on it. Progress comes in slow steps — sometimes agonizingly slow steps.

But that doesn’t mean it doesn’t hurt.

Marriage Equality and Red Herrings

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My friend Tim Jarrett has posted about an incident in Massachusetts where an employee of Brookstone was fired, ostensibly for opposing marriage between same-sex couples. But further examination shows that this was not the case.

Apparently Peter Vadala was talking with a female coworker, and she referred to her upcoming honeymoon. Vadala congratulated her and asked where “he” was taking her. She responded that her fiancée was a woman. He became a little uncomfortable, and she noticed, so apparently she brought it up in front of him a few more times that day. Finally, at the end of the day, when she brought it up for a fourth time, he claims to have responded that he believed homosexuality was bad and immoral. Someone else overheard him, and he was brought to HR and was subsequently fired for violating Brookstone’s antidiscrimination policy.

Mass Resistance, an anti-marriage organization, has raised the alarm, claiming that this is what happens when marriage for same-sex couples becomes legal: Christians start getting fired for expressing their beliefs!

That’s bunk.

Now, one could argue whether or not Vadala should have been fired for expressing a personal opinion about homosexuality and whether his statements actually constituted discrimination. Maybe, maybe not.

But that’s not the issue here, because that’s not the point Mass Resistance is trying to make. Mass Resistance is trying to turn this into an argument against same-sex marriage, when same-sex marriage is actually a huge red herring here. It has nothing to do with what happened.

In the video on that page, Mr. Vadala himself states that he was fired “because I expressed my belief that homosexuality is wrong. That’s the reason that I was fired.”

He also says that at the end of the workday, after the employee again brought up her fiancee, he told her, “Regarding homosexuality, I believe that’s ‘bad stuff.'”

He then refers to the fact that he was just “expressing my sincere belief that homosexuality is wrong.”

What Mr. Vadala is really trying to do is defend a right to speak out against homosexuals, not a right to speak out against married gay couples. Mr. Vadala would have been fired even if same-sex couples could not legally marry in Massachusetts. Here’s why.

What if the incident took place in, say, Maine, where the marriage of same-sex couples remains illegal? Suppose the employee had repeatedly mentioned not her fiancée, but her female life partner, and Mr. Vadala got tired of it and decided to respond, “Regarding homosexuality, I believe that’s ‘bad stuff,'” and then later stated, “I was just expressing my sincere belief that homosexuality is wrong”?

The termination letter from Brookstone states that “we maintain a healthy, safe and production work environment free from discrimination based on race, religion, gender, sexual orientation, age, national origin, physical or mental disability.” Presumably this policy existed even before same-sex couples had the legal right to get married in Massachusetts; most companies have had such anti-discrimination policies in place for years, since long before same-sex couples could legally marry in any U.S. state.

One could argue whether or not Vadala’s statement constituted a firing offense. But one cannot argue that the facts of this incident have anything to do with marriage. The outcome would have been the same either way.

So let’s not pretend that legal marriage between same-sex partners is going to oppress people because of their religious beliefs. Our society has long enshrined the principles of both religious liberty and civil rights. Occasionally they conflict; this is nothing new. Over the years, we have developed rules to deal with such situations. Discrimination against gay people is already illegal in many states and will remain so. And that’s what groups like Mass Resistance are really interested in: not discrimination against same-sex marriage, but discrimination against gay people, plain and simple.

Popular Initiatives

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This result in Maine makes me think about the complicated issue of popular initiatives and referenda. Any time marriage equality goes to the people for a direct statewide vote, it loses. The exception was one time in Arizona, but then the anti-gay side tried again and they won. Loss after loss leaves me frustrated and hurt, and I’m sick of these things getting onto the ballot. Popular initiatives are stupid, I tell myself, because the general public is too uninformed to vote on an issue directly.

But I don’t know. On the one hand, we are not a democracy, we are a representative democracy. We elect people to govern us and make policy decisions, because there are certain people who have a better grasp of the issues than Joe Q. Public does. It’s a principle of a representative democracy that you entrust governance to the representatives you’ve voted for.

But a hundred years ago, referenda and initiatives became popular. Why? Because legislative bodies were seen to be taken over by special interests. Obviously, this is still true today on many issues.

But shouldn’t you only resort to public initiatives when it involves an issue where the legislature is captive to special interests? This is often the case with economic issues, but how is it the case with gay rights? If anything, the people who oppose gay equality are better organized than those who support it. Aren’t they the special interest?

And yet, you can argue that it was the people’s decision to entrust most of its power to the legislatures, and that the people can choose to reserve certain issues for themselves if they want to. You can argue that if enough people feel passionately about a particular issue, rightly or wrongly, then the people can validly decide to reserve the decisionmaking power on that issue to themselves. Clearly there are plenty of people who are passionately opposed to gay equality, and even though they are guided by mistaken impressions of gay people, can provide no logical reason to prevent gay couples from marrying, and can provide no clear answer why other people’s marriages affect them, they are still the people. Or at least they are a portion of the people. And if they can get a majority of voters to agree with them, well, maybe we have to accept that this is a valid expression of democracy?

Except that individual rights should not be subject to democratic vote. Majorities should not be able to take away the rights of minorities.

Also, you can argue that legislators are better informed than the public, because they actually have to debate the issues, whereas the public is too busy with their daily lives. Except… there are plenty of stupid, uninformed legislators out there.

In the end, it’s pointless to argue whether the popular initiative process is valid or not. It’s a reality, and supporters of gay equality have to deal with them.

They can actually be a good thing in the long run, because they provide an opportunity for us to interact with voters — our fellow citizens — and to try to convince them that we’re right. Courts are sometimes necessary as a last resort, but achieving social change through litigation can lead to lazy activism. It’s one thing to convince four or five judges to rule in your favor; it’s another thing to convince your neighbors, and ultimately, the latter is more important, because it is more lasting. Court decisions can be reversed by amendment or by massive social resistance. Ten years after Brown v. Board of Education, virtually no schools in the South were racially integrated. It took the popular uprisings of the late 1950s and the 1960s to lead to real change.

Yes, there are plenty of people who just want the legal rights we are entitled to as Americans. When you’re out of work and in poor health and you can’t get onto your partner’s health insurance plan because the insurance company doesn’t consider you to be married, you don’t particularly care about winning over the hearts and minds of your neighbors; you just want your rights. But ultimately, because we live in a civil society, it’s important to have the support of your fellow citizens, or even just a grudging tolerance — if only to ensure that once a right is acknowledged, the people won’t decide to take that right away from you.

Popular initiatives may be a pain in the ass, and they may clash with the idea of representative democracy. But they give us a chance to change public opinion. And with public opinion on your side, you have a much stronger foundation for real, permanent change.

Election Night 2009

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This is turning out to be a depressing election night. My home state, New Jersey, has elected a Republican governor for the first time in eight years. (I no longer live there but I do work there.) Maine seems to be rejecting marriage equality. And the Republicans have retaken the governorship of Virginia, another state where I used to live.

Matt and I voted today for NYC mayor. Apparently we were among the pathetically small percentage of New Yorkers who did so. We both supported Bloomberg, but at the last minute Matt decided to vote for Thompson in order to send Bloomberg a message and keep him from getting too cocky about his victory. Bloomberg’s margin of victory is surprisingly thin — apparently lots of other people either did the same thing as Matt or just stayed home because they assumed it would be a blowout.

The only bright spots tonight are that Bill Owens has beat the know-nothing right-winger Doug Hoffman in upstate New York, dealing a blow to Palinism, and that Washington State voters have preserved expansive domestic partnership rights for same-sex couples on par with marriage. These both make me happy.

As for Maine: marriage equality is a generational thing. I’m so sick and tired of seeing gay equality voted down again and again in this country. But younger people support it, and the elderly who oppose it are dying off or heading into nursing homes. The tide is slowly turning in our favor. Our day will come.

And as for New Jersey and Virginia, my consolation is that governors don’t make foreign policy. Christie won’t invade Pennsylvania or something. He hasn’t made clear what he plans to do to fix New Jersey’s economy; Corzine cut government spending and raised taxes. Is Christie planning to do something different? Is there some super-secret non-entitlement spending he plans to cut that Corzine didn’t know about?

Finally, these results are not a reflection on Obama: he still has decent approval ratings in both Virginia and New Jersey. People are pissed off about the economy, but they still support the president. Jon Corzine is an incredibly poor communicator. Virginia, well, Virginia is Virginia.

Sigh. Good night.

Federal Marriage Suit

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The Times has an article today about a judge’s refusal to dismiss the federal marriage equality lawsuit:

In the courtroom, Mr. Cooper’s arguments seemed to fall of their own weight. The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”

Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95 and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

Mr. Cooper said no.

“And I might say it was a very happy relationship,” Judge Walker said.

“I rejoice to hear that,” Mr. Cooper responded, returning to his theme that only procreation matters.