Prop 8 Ruling

This is a longish post taken in large chunks from a conversation with a friend who is understandably quite upset about the news from California.

My friend takes cold comfort in the fact that existing marriages stand. To paraphrase him, why should those 18k couples have valid marriages and the rest of the GLBT community not. He has a point: it is offensive to most sensibilities of justice that some GLBT couples get "marriage' whereas the rest must settle for "separate but equal."

I say the blow to equality was dealt in November, and today's opinion merely reminded us of that problem, but didn't itself strike an additional one unless you put all your hopes onto a slim, almost impossible chance of reversal.

I have not read the full 186 page opinion, so I may still be mistaken, but it seemed that the controversies at issue were about amendment versus revision of the California State Constitution and not directly Equal Protection Jurisprudence, such a ground seemed shaky one at best, but the only one that could really assert that the "constitution is itself unconstitutional."

As for Equal Protection, although California recognizes the GLBT community as a suspect class deserving strict scrutiny (this designation allows courts more easily to overturn discriminatory laws and is why the court was able to overturn the legislative ban on same-sex marriage in the first place), currently the Federal courts do not. Romer v. Evans and Lawrence v. Texas came out our way despite this (thankfully), but in the case of marriage I fear that the opponents have arguments that can reach the very low bar of "rational basis" (which doesn't even require factually correct basis).

The fact is that Equal Protection Jurisprudence does a good job of mocking itself, and the California Supreme Court, as far as I can tell, didn't have much choice except to uphold the odious amendment. If we want to continue through the courts, the real challenge is to convince the federal courts that the GLBT community deserves "suspect class" designation. By my count, we seem to fit all the criteria: a discrete and insular minority who possess an immutable trait, share a history of discrimination and cannot adequately protect themselves via the political process.*

But, my friend reminds me, good reasoning or bad, the outcome is morally wrong.

And my firend is absolutely correct, but sadly the strength of the reasoning matters a great deal. A good result on flimsy grounds is in many ways worse than a bad result on solid ground.

A poorly reasoned result intensifies the resolve of opponents and creates the kind of legal and political minefield we have seen with regards to abortion jurisprudence. A good result on bad reasoning becomes a talisman for both sides, who perceived it as being forever vulnerable to the whimsy of the court. Therefore both sides devote resources to either upholding it or defeating it, making it difficult for the matter to be settled socially or addressed through sustainably long term means. Also, it may have the consequence of lowering the bar for both sides, meaning it becomes easier for our opponents to win their battles.

On the other hand, a bad result on good reasoning (like this) allows the losing side to accept the defeat and work to either change the circumstances of future battles (remember California still has unbelievably lax constitutional amendment procedures) or find battles within the current circumstances that are more winnable. Once we change the circumstances or the battles, battles won are much more robust than if they rested on flimsy opinions.

In a generation, Prop 8 and amendments like it will be remembered as disappointing and embarrassing hiccups on the road to true equality, if they are remembered at all.

*Update: Someone is moving forward on making the Equal Protection arguments in Federal Court (as well as Due Process arguments). Read the complaint here (PDF). Also note that the attorneys filing are the attorneys who argued each side of Bush v. Gore, and according to Ted Olson (the Republican) "This is about the rights of individuals to be treated equally and not be stigmatized." And that the two attorneys from each side side of the political spectrum "wanted to be a symbol of the fact that this not a conservative or a liberal issue. We want to send a signal that this is an important constitutional issue involving equal rights for all Americans."

Iowa

First the good news:

As most gay people in the U.S. are already aware, the Iowa Supreme Court unanimously declared Iowa's defense of marriage statute to be unconstitutional on equal protection grounds.

Further a Proposition 8 type backlash in Iowa is unlikely because Iowa has properly stringent procedural requirements to amend the state constitution. There are only two procedures, the first is that the amendment must pass both houses in two consecutive legislative sessions, and then be approved by a majority of voters in a general election. Unless the democratic Iowa legislature passes a Prop 8 type amendment in the current session, the earliest such an amendment would appear before voters would be 2012. The second is via constitutional convention. In 2010, the voters of Iowa can vote to have constitutional convention, and if they so vote, in the following session (beginning in 2011) the legislature determine when to have such a convention.

Either way, there is good amount of time for the citizens to realize that allowing gay marriage does not lead to rampant bestiality, polygamy, child abuse, and whatever else the gay marriage opponents pretend to worry about.

Now the bad news:
It is still likely to galvanize efforts in other states, perhaps making marriage equality across the nation more difficult to achieve. Outrage will be directed towards "activist courts," and states without marriage amendments are likely to see a push for such. States with marriage amendments that allow for the possibility of civil union may see a push to explicitly prohibit civil unions, perhaps even to the Virginia extreme.

This is a battle won, and an encouraging one at that, but the war continues.

It wasn't just the Mormons

Read this post about problems with the No on Prop 8 campaign along with recommendations for the future. Rather than just throwing tantrums at Mormon Churches or Mormon-affiliated businesses, maybe we should look at how the opposition won and see what strategies we should adopt for the next fight.

Women

It's strange, I think that I have come to terms with my homosexuality personally. I may not be ready to tell some people, but I have accepted that I like men. Nonetheless, every so often I catch myself thinking about being married to a woman. Part of me rather misses the idea of having the picture perfect suburban life.

I know I can still find a partner, move to an upper middle class suburb, adopt a couple kids and have an enjoyable and satisfying life. Perhaps it's an internalized prejudice, but secretly it feels like a consolation prize. Maybe that's why I am not gung ho about my current relationship (I'm going to break it off, though I may pin the blame on graduation and "going in different directions" blah blah blah).

Occasionally I'll see a woman I think would make a "good wife." She's lovely (but not model beautiful), Southern (not redneck) in dress and manners, with an upbeat personality and a wry, sometimes sarcastic sense of humor. Indeed, I had just the girl picked out in undergrad. She was all those things plus my best friend. Add a cock and she'd have been perfect.

I wonder if these hang-ups come from being closeted to my family. Perhaps when I'm out to them, I'll be more comfortable. Even so, life would be a lot easier if I were straight.

This isn't about marriage

By this, I mean this post. Surely, at this point, you are all familiar with my position on gay marriage (indifferent) as opposed to civil unions (support).* However, I find this video encouraging:



Why do I find it encouraging? Not because I care that much about marriage, but because Mayor Sanders is a Republican. Another Republican who is more amenable to gay rights is someone everyone loves to compare to Emperor Palpatine, the Vice President. What do these two men have in common? Gay daughters.

These kinds of things show that while it may easy for some people to think of gays and lesbians as "the others," proximity and experience causes second thoughts. This isn't the case of "we're queer, we're here, get used to it" being shouted from outside their homes. Rather, the proximity comes from inside the home, the office, the country club. It's not a question of numbers or visibility, per se. The experience comes from the happy times they spend with people before realizing they are gay. It's about people learning that gays and lesbians are their sons, daughters, brothers, sisters, parents, friends, neighbors, colleagues, etc.

It's quite difficult to be gay and then get close to someone who is a homophobe. Instead it seems to be more effective to be close first and then come out as gay. Sure there are still cases of "no son of mine," and I personally dread coming out to my old-guard Republican family, but seeing things like Mayor Sanders have a change of heart because he realized he loves his daughter more than the party line gives me great hope.

On a grander scale that's why I still refuse to leave the Republican Party. If I leave and become an elephant hunter, it's like my shouting gay pride slogans right outside their home. Republicans won't change their minds from angry outside opposition, instead they will get defensive and even more steadfast in their homophobia. I honestly think that well within my lifetime we are going to see the Republican fear of gays and lesbians go the way of opposition to fear of interracial marriage. But that it's only going to happen through relationship and bridge building; it's positive experience with gays and lesbians that will make the difference.

P.S. This isn't the post I can't remember. I fear that one may have evaporated forever.

(H/T: Richard J. Rosendall at Independent Gay Forum)

* According to Towleroad, some New Jersey same-sex couples are reporting that civil unions as opposed to marriage are not enough. An excerpt:

Craig Ross, of Somerset, said his employer refused to give health coverage to his partner, Richard Cash, after the two formed a civil union in April. They were one of several couples who described how business have cited federal laws that refer to 'marriage' or 'spouses' in order to deny health coverage to gay and lesbian employees who have tried to obtain benefits for their partners under New Jersey's civil union law. "They're looking at it as a ceremony, not even a relationship or a legal status," Ross said. "It's just words."

This seems like a) poor drafting of the New Jersey law or b) poor lawyering by the businesses. I don't have a copy (and am too lazy to find one) of the New Jersey law, so I cannot say for sure. Simply creating a ceremony recognized by the state called a civil union but does not afford that union equal legal status with a marriage, is as Craig Ross argues, "just words."

If, however, it does afford civil unions the same legal status as a marriage, then I am not sure how citing Federal statutes that refer to "marriage" and "spouse" will help these businesses. State law may (usually) afford more rights to its citizens than does federal law. I doubt that any judge is going to accept the argument "regardless of what the state of New Jersey says about health coverage by companies doing business in New Jersey, since Federal law requires no more than to recognize opposite sex spouses, our business must only meet that standard."

Before you worry about the cost of litigating the issue, let me assure you that this would be ripe for a non-profit gay law group to do pro-bono.

Another, whinier excerpt:

Tom Walton, of East Brunswick, said the difference in name — civil unions versus marriage — sends a message that gay couples are inferior. "Having to explain it automatically devalues it," Walton said. "Even if it gives us the same rights marriage, it doesn't give us the respect."

The government can't make people respect you (and whining like this won't help either). If people don't respect same-sex unions, they probably won't respect them if you call them marriages either. The minute a male talks about his "husband" instead of his "wife," people are going to hear "partner." Whether they respect the coupling has nothing to do with what it's called.

Marriage in Iowa

An Iowa Court ruled that same-sex couple can marry. The ruling was based on equal protection. Before Iowans jump for joy, I must disclose it is a district court decision--meaning appealable. The Court also struck down an Iowa law that decreed a marriage could only be between one man and one woman.

Because I have no connection to Iowa or have much of a sense of the judiciary there, I cannot predict what will happen to the case as it inevitably makes its way through the appeals process. For at least a minute, though, Iowan gay couples get the same civil benefits as straight married couples. The fact that this is accomplished by calling the union a "marriage" is just gravy.

Aside: On the Federal side, I think the only thing the government needs to do is recognize gay couples as equal to straight ones. So far as I can tell, the department that needs to do so most urgently is the Department of the Treasury. Especially once the estate tax comes back. Yes, once again, it all comes down to money for me.

UPDATE: Kip has a much more detailed analysis of the court decision than I will ever do here. First off, the decision is 63 pages long. I'm now a third year law student with a job (read: coasting), so I'm only going to read the decision if I'm paid to.

States Rights = bigotry (?!)

Sen. Mike Gravel, who is apparently seeking the Democratic Nomination for president in 2008 (excuse me while I try to remember exactly who Mike Gravel is . . .), is not happy that Hillary Clinton deferred to states rights in defining "marriage," though she strongly supports equality of benefits (incidentally, though Hills' stance mirrors my position, this one issue is not enough to make me even consider supporting her in anything other than retirement). You can see a video of the statements to which Gravel refers at the bottom of this page.

Mike Gravel states, in part:

By drawing upon the language of states rights, Hillary embraces the tradition of John Calhoun and the defenders of slavery along with Strom Thurmond and the segregationists. Throughout our nation's history, every time national public opinion turns against oppression, opponents of progress use states rights to present themselves as defenders of liberty in the face of federal power.

States rights has always been the last refuge of the bigots. Now Hillary has given rhetorical cover to the homophobes. If she wins the Democratic nomination, opponents of gay marriage will cite her statement to justify their opposition to national marriage equality over the next decade.

Now I much beg Senator Gravel's pardon, but it seems a little dangerous to put all our eggs in the Federal basket. Why, isn't DOMA federal legislation? Didn't the FMA start in federal government (and admittedly die there)? Or the Federal Estate Tax that will hit gay couples quite significantly once it is reinstated? Has the Senator from Alaska noticed that at least 16 states plus the District of Columbia have workplace protection from discrimination based on sexual orientation while ENDA continues to languish in a Democrat controlled Congress?

OH wait, I get what Gravel's doing: he's trying to get attention by using a relatively insignificant issue to compare the front-runner in his race to a defender of slavery. And we trust people like this with our government?

PS, I NEVER thought I would be defending Hills on this blog. That Sen. Gravel made me do that is the most irritating thing of all.

That's nice!

As I'll bet any casual reader of this blog will guess, I'm not likely to move to Massachusetts soon. Nonetheless I, like every single other gay blogger in the country, am pleased that the state legislature voted against an amendment to the state constitution to limit marriage to people of the opposite sex. The vote was more than 3 to 1 against the amendment. (The picture to the right comes from the link--I happen to like it).

Again, it's nice. It's a good thing. But was it necessary?

I FULLY support equal civil rights, and any constitutional amendments, plain Jane every day laws, or even regulations, state or federal, that limits certain civil benefits to couple of the opposite sex and denies them to couple of the same sex are anathema to me. ANATHEMA (I like that word and can't believe I haven't used it yet). But I never jumped onto the "civil unions aren't enough" bandwagon.

However, the fight for gay marriage seems to be as much about language as rights. But even without equal civil benefits, many committed gay couples call their partnership a marriage, refer to each other husbands (or wives) and so forth (I personally prefer "partner," maybe because I work in a law firm). So once you have equal civil benefits in the form of a civil union or domestic partnership, how does the quality of your life change once the state starts officially calling it a marriage, even though you have been doing so for years?

Sure it's a victory, and sometimes even symbolic ones are important. But were substantive rights really in danger in Massachusetts? If not, maybe we should focus our energy on other states, like Virginia, where they are.

Addendum: This is the kind of story that is really important for gay rights. Sure it's in Australia, not the U.S., nonetheless, it's both encouraging and heartwarming. Read the birth grandmother's lovely comment here.