Tag Archives: marriage equality

Obama and the Gays

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I watched Obama’s speech to the Human Rights Campaign on Saturday night. I was underwhelmed.

Many others have pointed out that it was the same speech Obama could have given as a candidate. As Dan Savage wrote, “Imagine all the wonderful things this guy is going to accomplish if he ever actually gets elected president.” Ooh, Obama mentioned Stonewall in his speech! What is this, 1992? Mentioning Stonewall is like buying a Hallmark card. It means you don’t really give a shit, so you’re going to resort to a cliché. What about Frank Kameny? What about Harry Hay?

Then there was the appalling email that the head of the HRC, Joe Solmonese, sent out a few days ago, apparently saying that we shouldn’t judge Obama’s gay rights record until January 2017. I don’t think he was saying what some critics claim; I think he was merely making the point that by the end of Obama’s administration, we will have seen progress on gay rights, and hey, let’s be optimistic and hope Obama serves two terms instead of one. But that’s not how it came off to some influential people, such as Andrew Sullivan and Dan Savage and John Aravosis, and that’s not surprising given that the HRC has accomplished nothing except raising money and holding fancy dinners. To Sullivan and the others, Solmonese seems to be saying that we should wait until 2017 to see any progress. So we may as well have waited until 2012 to elect a Democrat.

Yes, Solmonese’s email was misinterpreted, but it serves him right. Oooh, hate crimes laws! Yay! As if hate crimes aren’t already prosecuted as crimes.

Meanwhile, my frustration with Obama is growing. I’m guessing that he’s waiting until health care passes before addressing gay rights, and that in early 2010, we’ll see him start to move on DADT. He’s afraid of bringing up any “touchy social issues” until health care’s out of the way, and he’s spooked by what happened to Clinton in 1993. But this is 2009, not 1993. Ending DADT is no longer controversial; nearly 70 percent of the public supports ending it.

To be honest, if the choice were between health care reform and gay rights, I’d choose health care reform, because that affects tens of millions of people and it’s one of the biggest problems our country faces. But who says there has to be a choice? Is gay rights really going to drain political capital from health care? Really? If it can survive fake death panels, it can survive DADT.

Obama, despite what the teapartiers think, is not a radical. He’s cautious about moving too quickly — in this case, perhaps too cautious. And nothing can excuse those awful legal briefs in which the administration defended DOMA. I’d be amazed if Obama actually takes any action against DOMA, especially since he’s on record as not supporting marriage equality. (Never mind that both Bill Clinton, who signed DOMA, and even Bob Barr, the former Republican congressman who wrote DOMA, think it should be repealed.) That said, if Congress passes the Respect for Marriage Act, I don’t doubt Obama would sign it.

Still — once again, we are lured for our votes and our money, but a Democratic president isn’t going to lift a finger to actually do anything to help us. If he doesn’t do anything next year, we’ll know Obama doesn’t give a shit about gay rights.

Judicial Liberalism Not Happening

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If you believe in judicial liberalism — which I sometimes do and, to be honest, sometimes don’t — the current direction of the Court is a little depressing. Tom Goldstein, Supreme Court analyst extraordinaire, points out that the conservatives on the Court are free to move at a measured pace in overturning liberal precedents, at least for a while:

For the moment, there is no reason to rush. Time permits a jurisprudence of not just originalism, or textualism, but actuarialism. The sand running through this hourglass will not expire for eight years.

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left. If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left. Nothing changes.

It isn’t until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court’s ideology. Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now). Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left. Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon. Again, no need to rush.

Unless something happens to Scalia, Thomas, Roberts, Alito, or Kennedy in the next few years, the Court is on a slow rightward trajectory.

On the issue dearest to my heart — gay rights — it probably doesn’t mean much. Kennedy has been pretty pro-gay (Romer, Lawrence), but I don’t expect the Court to take up same-sex marriage for a while. It didn’t overturn the nation’s sodomy laws until only 13 states were left with such laws; the Court is too cautious to constitutionalize same-sex marriage rights at this point, when only six states allow such marriage.

What else could the Court tackle? Don’t Ask/Don’t Tell will be history in the next few years — I’m pretty sure Obama will get around to it after health care and energy are taken care of. DOMA (full faith and credit clause) is a possibility — which would be a sidelong way to rule on same-sex marriage. But I don’t think the Court will touch that right now. Again, the issue is just too volatile, and the Court generally knows when to stay out of things. (It has learned from abortion; would Roe v. Wade come out the same way today? Who knows; the opinion would at least be less intrusive if it were written today.)

Of course, I could be wrong. Issues have a way of showing up on the Court’s docket unexpectedly, especially since it only takes four Justices to vote to hear a case.

But for now, things seem to be in stasis, at least where gay rights are concerned. As for everything else — drifting right.

Repubs Take NY Senate

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Fucking fucking fuck. Two Democratic state senators have defected to the Republicans, giving Republicans control of the New York State Senate. So much for marriage equality in New York in the next year and a half.

The two who defected are a real couple of winners:

Why Mr. Espada and Mr. Monserrate suddenly defected on Monday afternoon was not immediately clear. Both men are under investigation by the authorities. The state attorney general’s office is investigating a health care agency, Soundview HealthCare Network, that Mr. Espada ran until recently. And Mr. Monserrate, who was indicted on felony assault charges in March stemming from an attack on his companion, would automatically be thrown out of office if convicted.

What the fuck is wrong with this state? Why is it so hard to get marriage equality in New York, of all places? First the state supreme court screws us, and now this. It’s not just upstate that’s the problem — these anti-gay Democrats are from New York City: the Bronx and Queens.

I am so pissed off right now.

Sotomayor

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This is a busy day for legal topics I’m interested in: the U.S. Supreme Court and gay rights law. Within the course of several hours we had the Sotomayor nomination and the California Supreme Court’s decision on Prop 8.

First, Sotomayor. She seems like a decent enough pick for the Court, but beyond her life story and the Jeff Rosen hack job on her, I don’t know much about her. I was hoping for a fierce liberal advocate to counter Scalia — I would have loved to see Obama pick Pam Karlan. Will Sotomayor be that fierce liberal advocate? Maybe, maybe not; I don’t know. You can read summaries of her past appellate rulings here. At any rate, it’s sure to be an interesting confirmation process.

As for the Prop 8 decision: no real surprise. The court upheld Prop 8 but kept the existing same-sex marriages intact. This is an incredibly long opinion — the main opinion alone is 135 pages — and I haven’t had a chance to read much of it. But the decision is ridiculous for the simple reason that it allows a majority of a population to strip a minority of equal protection of the laws. As the sole dissenting justice wrote today:

The equal protection clause is… by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.

This case is really about whether a particular method to change the California Constitution is itself a violation the California Constitution. I’ve skimmed the decision and it seems to spend a lot of ink on the difference between a constitutional “revision” (which requires the legislature’s imprimatur) and a constitutional “amendment” (which does not), but it doesn’t really matter, because whatever you call it, changing a constitution is supposed to be difficult. As I wrote last year, it should take more than a simple majority to change a constitution. The whole point of a constitution is to have a restraint on day-to-day political passions. A constitution is supposed to be higher than ordinary law and therefore harder to amend. If it’s no different to pass a constitutional amendment than to enact a popular initiative, then you have mob rule. If not for decisions by the United States Supreme Court that found race and sex discrimination to be violations of the U.S. Constitution — which outranks the California Constitution — then it would be possible for the general population of California to enshrine constitutional discrimination against blacks and women today. The process for amending the California Constitution is nonsensical.

Our founders didn’t believe in direct democracy; they believed in representative government. They believed in the wisdom of having a particular group of people, chosen by the populace, to legislate and act in their best interests. They believed that this political class had “virtue,” an amorphous concept that I don’t think really exists, but put virtue aside and the point remains that legislators are usually smarter and more thoughtful than the populace at large. (There are exceptions, of course, such as Michelle Bachman.) The stupidly simple California amendment process flies in the face of the constitutional and political theories in which our founders believed.

Nevertheless, although this decision is a big disappointment for supporters of gay rights, I find myself not too concerned in the long run. Constitutional jujitsu is possible here: since it’s so easy to amend the state constitution, all you need is a simple majority to overturn Prop 8. The vote in November was close, 52% to 48%. Attitudes continue to change, and at some point — hopefully soon — a majority of Californians will support same-sex marriage rights, and Prop 8 will lie in the dustbin of history.

Maine Governor Signs Marriage Bill

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Go Maine! The state’s governor decided to sign the same-sex marriage bill! It goes into effect in September.

Baldacci said in a statement that while he has opposed gay marriage in the past, “I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.”

When empathetic people realize that this is a question of constitutional rights, of equality, they come around.

Maybe this will put pressure on New Hampshire’s governor to sign his state legislature’s bill, too.

Same-Sex Marriage in Vermont

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Same-sex marriage is now legal in Vermont! I’ll have analysis of the court decision shortly. Oh, wait, no I won’t, because this was done by the legislature.

Overriding the governor’s veto, no less. Darn those antidemocratic legislatures!

There’s a push to legalize same-sex marriage in all six New England states by 2012. Three down, three to go.

(Update: in Vermont it will take effect on September 1.)

Thoughts on Iowa Opinion

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Some thoughts on the Iowa Supreme Court decision:

(1) Four state supreme courts have now mandated allowing same-sex couples to marry: Massachusetts, California, Connecticut, and Iowa. The latter three have come down in the past year.

(2) Of these, the Iowa opinion has the most extensive discussion of the religious aspect of the debate, as far as I can recall. It’s added almost as a postscript — see pages 63-67. The court says that religion is not relevant to the debate. In fact (as Andy and others will be happy to read), the court points out that there are religious groups and people who support same-sex marriage. The whole section is worth reading for a good explanation of why religious arguments have no place in a secular debate.

(3) Among its arguments, Polk County put forth one of the stupidest rationales I’ve seen for banning same-sex marriage (pp. 60-63): the conservation of state resources. As the court phrases the county’s argument, “couples who are married enjoy numerous governmental benefits, so the state’s fiscal burden associated with civil marriage is reduced if less people are allowed to marry.” (Fewer, not less! Sigh…) For example, since married couples get tax benefits, allowing same-sex couples to marry would deprive the state of tax revenue.

But as the Iowa Supreme Court says, “Excluding any group from civil marriage — African-Americans, illegitimates, aliens, even red-haired individuals — would conserve state resources in an equally ‘rational’ way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.” Additionally, the court states, “Indeed, under the County’s logic, more state resources would be conserved by excluding groups more numerous than Iowa’s estimated 5800 same-sex couples (for example, persons marrying for a second or subsequent time).”

One wonders if the county’s heart was really in this argument or if they were just feeling desperate.

(4) As for why civil unions would not be good enough, the court states (p. 68): “Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution.”

The court doesn’t explain it any further. It basically says, if there’s no reason to prevent same-sex couples from getting married, then let them get married — there’s no need for this civil union nonsense. The Massachusetts court went into much greater depth in its special statement about this distinction, but that was in response to a specific question from the Massachusetts senate. Neither of the parties in Iowa asked about civil unions, so there was no need for the Iowa court to say much about it.

I’m still embarrassed that Iowa has gone where New York and New Jersey didn’t go. But it shows how interesting our federal system of government is, where states work out so many of these issues for themselves. The patchwork quilt gets patchier!

Iowa

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The Iowa Supreme Court has ruled, unanimously, that banning same-sex marriage violates the Iowa constitution. Unanimously! Iowa!

See, New York Court of Appeals? See, New Jersey Supreme Court? That’s how it’s done.

And now I’d love to rewrite the “The Music Man” to make it a gay romance. Darien the Librarian, anyone?

Prop 8 Lawsuit

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A few weeks ago I wrote about the lawsuits that have been filed against Prop 8. The lawsuits made me uneasy. I wrote:

I don’t think this is a good idea. Not only is it awful public relations, but it will probably lose.

Well, I’ve changed my mind. I actually changed my mind a week or two ago. Here’s why.

First, I’ve decided that it’s not necessarily a losing proposition after all. The cramped legal reasoning I linked to on volokh.com ignores the following: if a bare majority of Californians can vote to strip a constitutionally protected right from one minority group, what’s to stop them from stripping a constitutionally protected right from another minority group? One of the points of a constitution is to prevent majorities from taking away certain rights of minority groups. Simply put: if a majority can take away your rights, then you have no rights to begin with. An unprotected right is an oxymoron.

Second, it might not be awful public relations, and even if it is, who the hell cares? If the California Supreme Court throws out Prop 8, what can the anti-marriage crowd do? The state legislature won’t ban same-sex marriage; it’s already twice passed bills to legalize it, only to be vetoed by Schwarzenegger because he said, nonsensically, that the decision should be left to the courts. There’s not going to be a Federal Marriage Amendment to ban same-sex marriage nationwide: if it couldn’t even muster the necessary 2/3 of the House and Senate under Republican control, it’s not going to happen under Democratic control. (More here. I disagree with Andrew Sullivan on this. His reader is right.)

There’s still an iffy chance of success. But it’s possible the California Supreme Court will make the right decision. I hope so.

Reconstructionists Against Prop 8

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A little late, but… the Reconstructionists are against Prop 8.

I grew up belonging to a Reconstructionist synagogue, and although my parents have moved onto a new one, I still consider myself part of that denomination.

Just goes to show that not all religious groups want to ban same-sex marriage. Prop 8 imposes a particular religious view on practitioners of all religions.

Join the Impact

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If you haven’t heard, tomorrow there will be a simultaneous nationwide protest against the antigay measures that were passed in four states last week. Prop 8 in California, Prop 102 in Arizona, and Prop 2 of Florida all banned same-sex marriage, and Arkansas banned unmarried couples from adopting children (a measure aimed at same-sex couples).

The protests will be at 10:30 a.m. Pacific time, 1:30 pm Eastern. Go here to find a protest site in your state. Matt and I are planning to go to the protest at City Hall in Manhattan.

Gay Marriage: No Brick Wall

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Charles Kaiser writes today about why the same-sex marriage movement has not hit a brick wall, as the New York Times claimed this morning. The one point on which I disagree with him is New York. Although the Democrats have finally won a majority in the state senate, it’s not clear we’ll have a Democratic majority leader, because it’s only a one-vote majority and there are some rogue Democratic senators, like Ruben Díaz:

Mr. Díaz, a Pentecostal minister, has long been one of the most socially conservative voices in the Senate. He continued to say on Wednesday that he could not support as leader any lawmaker who would help make gay marriage become law, even if it were his own son, Assemblyman Ruben Díaz Jr.

“I would not support anybody, Malcolm Smith, my son Ruben Díaz Jr., anybody who supports that,” he said.

This makes me mad, but we’ll see what happens.

On Prop 8

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I haven’t written about Prop 8 yet.

Nothing can dim my utter euphoria at the election of Barack Obama as the 44th President of the United States, which will have much greater consequences for our country and the world than the passage of Prop 8. But Prop 8’s passage is very disappointing nonetheless.

Still, all is not lost. California’s gay couples will still have the option of domestic partnerships that approximate marriage in all but name. This is not ideal, but ain’t beanbag. Same-sex couples can get married in Massachusetts and Connecticut, and probably next year in New Jersey. New York recognizes same-sex marriage, as long as the marriage is performed elsewhere.

Also, it’s ridiculously easy to change the California constitution. As attitudes on marriage equality continue to progress, same-sex marriage in California is more likely to become permanently legal. We’ll just have to continue to fight, that’s all.

Gay rights groups have filed lawsuits against Prop 8. I don’t think this is a good idea. Not only is it awful public relations, but it will probably lose.

The reason civil unions and domestic partnerships are not good enough, and will never be good enough, is because of the intangible advantage marriage brings: social respect. There are tangible advantages to marriage as well, such as: while everyone knows what marriage is, civil unions and domestic partnerships are harder to explain to the hospital administrator when you need to visit your partner there. But in a large part, this is about the respect that equality brings.

The defeat of Prop 8 shows that we don’t have enough respect yet. (And the irony that black Californians voted 70-30 in favor of Prop 8 is painful.) Which comes first: respect, or the right to marriage? Or does one reinforce the other?

Time is on our side. It will take longer to achieve success than we thought.

But time is on our side.

Finally, Dale Carpenter has written the best thing I’ve seen so far about all this.

Write to Marry Day

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Write to Marry Day

Today is Write to Marry Day.

I’ve already written about Prop 8 in California, and how important it is for Californians to vote “No” in order to protect the right of same-sex couples to get married.

Two big fears of the anti-marriage crowd right now appear to be that (1) same-sex marriage violates freedom of religion, and (2) teachers will be required to teach little kids about gay people.

Regarding the point about freedom of religion: Andy convincingly shows why this argument is wrong.

I would add that religious groups in this country have always had to deal with secular laws that might discriminate against them. This is not a new thing. “[R]eligious entities have no right under the First Amendment’s Religion Clauses to avoid neutral, generally-applicable anti-discrimination laws,” according to this commentary. These things have a way of being worked out in courts and legislatures. Yes, a religious organization might be sued, but the threat of a lawsuit in and of itself does not mean that your rights are being denied.

Regarding the second point, about children: I will never understand the fears about children being exposed to the concept of homosexuality. When little kids learn about Prince Charming and Cinderella, do they hop into bed and start fucking each other? No. Do Disney movies or fairy tales about couples living “happily ever after” teach them about penises and vaginas? No.

Anyway, kids tend to be curious about penises and vaginas on their own, since every kid has one or the other. Kids want to know about their equipment. It’s the parents who are afraid to talk about it.

Certain ignorant people think that homosexuality is contagious. That’s ridiculous. I didn’t “learn to be gay” from gay people. I didn’t even know any gay people growing up. Almost every gay person grows up with straight parents and is surrounded by straight couples, and yet still turns out to be gay.

Why don’t they look at the Massachusetts education system and see what’s happening there, instead of just tossing around fear and hysteria?

Aw, enough. I’m preaching to the choir. Just get out and vote “No” on Prop 8 on Tuesday if you’re a Californian, and donate money if you haven’t already, whether you’re a Californian or not.

Worried About Prop 8

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I’m really worried that California Prop 8 will pass on November 4, writing marriage discrimination into the California constitution. Election Night could be bittersweet in California, as Obama wins but marriage equality loses. The polls right now don’t look good.

If Prop 8 passes, then same-sex marriage rights in California are gone for good — unless the U.S. Supreme Court someday rules on the issue, or future California voters someday amend the state constitution in the other direction.

I don’t live in California, of course, but I know at least one couple who does, and there are more than 100,000 others.

I don’t know what to do, other than donate money. I was reluctant to donate, because I thought, what can my own little contribution do?

But I’ve decided I have to donate to this. I’ve never donated to a political cause before. I didn’t even donate to Obama, although I thought about it last spring.

But this cannot pass.

My contribution alone won’t affect things, but combined with the contributions of others, it might.

Please donate to help defeat Prop 8. I just did.

Del Martin Dies

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Del Martin, a gay rights pioneer who founded the Daughters of Bilitis and who recently married her partner of 55 years, Phyllis Lyon, died this morning.

Martin and Lyon were the first couple who San Francisco mayor Gavin Newsom married during the city’s powerful act of civil disobedience in 2004. Just a few weeks ago, they were one of the first same-sex couples in California to finally be legally married.

Del Martin and Phyllis Lyon have been special, powerful faces of the same-sex marriage movement. May Del Martin rest in peace.

Uncle Bobby’s Wedding

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A parent complained to a public library about a children’s book, Uncle Bobby’s Wedding, which is about a same-sex marriage. Here’s the librarian’s mind-blowingly awesome response. I don’t even know which part to quote. Here’s one excerpt:

You say that the book is inappropriate, and I infer that your reason is the topic itself: gay marriage. I think a lot of adults imagine that what defines a children’s book is the subject. But that’s not the case. Children’s books deal with anything and everything. There are children’s books about death (even suicide), adult alcoholism, family violence, and more. Even the most common fairy tales have their grim side: the father and stepmother of Hansel and Gretel, facing hunger and poverty, take the children into the woods, and abandon them to die! Little Red Riding Hood (in the original version, anyhow) was eaten by the wolf along with granny. There’s a fascinating book about this, by the bye, called “The Uses of Enchantment: the Meaning and Importance of Fairy Tales,” by psychologist Bruno Bettelheim. His thesis is that both the purpose and power of children’s literature is to help young people begin to make sense of the world. There is a lot out there that is confusing, or faintly threatening, and even dangerous in the world. Stories help children name their fears, understand them, work out strategies for dealing with life. In Hansel and Gretel, children learn that cleverness and mutual support might help you to escape bad situations. In Little Red Riding Hood, they learn not to talk to big bad strangers. Of course, not all children’s books deal with “difficult issues,” maybe not even most of them. But it’s not unusual.

[via kottke]