America Getting Back to Being America Again

by Eric Martin

Score one for civil rights, human decency and a celebration of life and those that live it:

In a major victory for gay rights advocates, a federal judge on Wednesday struck down a California ban on same-sex marriage.

Chief U.S. District Judge Vaughn Walker ruled that the voter-approved ban, known as Proposition 8, violates due process and equal-protection rights under the U.S. Constitution.

"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples," Walker wrote.

The judge added in the conclusion of the 136-page opinion: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

His ruling came in response to a lawsuit brought by two same-sex couples and the city of San Francisco seeking to invalidate the law as an unlawful infringement on the civil rights of gay men and lesbians. The landmark case is expected to be appealed and could eventually reach the U.S. Supreme Court.

Outside the federal courthouse in San Francisco, a cheer went up among a group of about 70 same-sex marriage supporters carrying small U.S. flags, as a large rainbow-striped flag — the symbol of the gay rights movement — waved overhead.

Good for you Judge Walker (and those that concurred).

Comments

[Mike Schilling]

One thing I haven't seen discussed. Assuming either that

1. This decision is appealed to SCOTUS and is upheld, or
2. This decision is upheld by the Circuit but not heard by SCOTUS

what will the effect on other states be?

[JanieM]

I cried and laughed all at the same time when it was announced. It makes me think of a passage from Lord of the Rings: "It was a great day and a great hour, whatever may come after."

[Jacob Davies]

I read the opinion, well the good parts. He was clearly unimpressed with the prop 8 proponent's arguments in every detail.

Also a victory for civic disobedience (not a typo).

[Morat20]

It'll get overturned by SCOTUS. The decision was quite interesting. The judge was rather blistering about the overall incompetence of the plaintiffs.

A shorter version would probably read: "Loving seems to apply directly. I was presented with many legal arguments and testimony that supported this, making a very solid 14th and Equal Protection case. I was presented with absolutely NOTHING against this. I swear, it's like I had one team of lawyers and then..I dunno, some people shouting random words at me. It was pathetic."

Mind you, I suspect the judge was inclined to rule in favor of tossing Prop 8 anyways, but he made it pretty clear in there that the plaintiffs gave him NOTHING to work with, at all.

[Marty]

"The judge was rather blistering about the overall incompetence of the plaintiffs."

Is there a set of arguments one could use to be a competent plaintiff?

Unfortunately, as my law school son constantly reminds me, Justice Roberts assumes the government always has an interest because, well, it's the government.

[JanieM]

The decision was quite interesting. The judge was rather blistering about the overall incompetence of the plaintiffs.

Huh? The gay couples who wanted to marry were the plaintiffs in this case.

[cofax]

It'll get overturned by SCOTUS.

If the proponents of Prop 8 gave the District Court judge NOTHING to work with, SCOTUS cannot summon new evidence supporting Prop 8 out of the air; they are bound by the administrative record established by the trial court.

... well, they should be, anyway. But I will put nothing past Scalia and Thomas, including making the Prop 8 folks' case for them.

[Don K]

IANAL but my impression is that, if upheld by the Supremes, the ruling would invalidate every state law or constitutional provision against same-sex marriage.

Of course, someone likely would have to go to court in each state to have the ruling enforced, so in that sense this is like the early civil rights rulings in the 50's and 60's. And I'd fully expect massive resistance from at least some states.

Wow, federal marshals escorting same-sex couples into the county clerk's office?

[Jesurgislac]

Morat20: A shorter version would probably read: "Loving seems to apply directly. I was presented with many legal arguments and testimony that supported this, making a very solid 14th and Equal Protection case. I was presented with absolutely NOTHING against this. I swear, it's like I had one team of lawyers and then..I dunno, some people shouting random words at me. It was pathetic."

But then - what have supporters of the ban on same-sex marriage got but random words?

As I noted in They're trying to 'protect marriage' with this dreck? nearly two years ago, and today in The Turning of the Tide, all the opponents of gay marriage have is fear, surprise, ruthless efficiency, an almost fanatical devotion to the Pope, and nice red uniforms. Actually they don't have ruthless efficiency and they don't have nice red uniforms. It would be unexpected if they did.

[Ugh]

Great news!

But, just cause I can't get over this slimy mudhole of a man, thrice married Newt Gingrich, showing that he's just as disgusting on this issue as he is on Cordoba House:

Judge Walker's ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife. In every state of the union from California to Maine to Georgia, where the people have had a chance to vote they've affirmed that marriage is the union of one man and one woman. Congress now has the responsibility to act immediately to reaffirm marriage as a union of one man and one woman as our national policy. Today’s notorious decision also underscores the importance of the Senate vote tomorrow on the nomination of Elena Kagan to the Supreme Court because judges who oppose the American people are a growing threat to our society.

I'd quote it in context but, that's the whole thing.

Dear Newt: Go fuck yourself.

[Tony P.]

It's assumed by most commentators that this case will end up in the Supreme Court. The Supreme Court consists of 9 Justices, at least some of who claim to be "strict constructionists", who merely "call balls and strikes" without reference to their personal preferences. In principle, we do not know how the Justices will vote on any particular case. Every one of them, I think, has testified to the Senate Judiciary Committee that they have not "prejudged" any issue.

Well. I am looking for somebody to take the other side of this bet:

Justice Antonin Scalia WILL vote to REVERSE Judge Walker's ruling.
Stakes: $200K.
Odds: even money.

Any takers?

--TP

[Ugh]

Well. I am looking for somebody to take the other side of this bet:

Justice Antonin Scalia WILL vote to REVERSE Judge Walker's ruling.

It seems he's pretty much announced where he stands on the issue, so you're not likely to get any takers.

[russell]

all the opponents of gay marriage have is fear, surprise, ruthless efficiency, an almost fanatical devotion to the Pope, and nice red uniforms.

Make them sit in the comfy chairs!

[sekaijin]

While the 'America getting back to being America' line is dramatic and urgent, and the sentiments I couldn't agree with more, the sad fact is that America-being-America means that legislated bigotry is the ice cream to the apple pie. For every landmark Supreme Court decision and piece of legislation there has ever been in the advancement of civil rights, there have been five or so douchebag decisions that have swept away such rights, or denied them from ever coming into being with all the jurisprudential gymnastics and rationalizatons you can shake a stick at, courtesy of lifetime-tenured douchebags with nice black robes.

[Tony P.]

Ugh,

1) Your link is broken, but I got to Sullivan's post anyway.

2) Don't prejudge. There might be somebody out there who believes in Scalia's "impartiality", or "originalism", or something.

3) Much as I'd like to win $200K, the silence of our "conservative" friends who are always railing about "results-oriented" liberal justices would be almost as sweet.

--TP

[bobbyp]

Tony,

Scalia might surprise, but I need better odds than even money. Surely you jest.

If you give me 200:1 for a thousand, I can securitize it, then write a CDO, take out a spread option position, short that same position, and get an SBA loan to boot.

This is what makes our country great.

[Sebastian]

I actually suspect that Scalia would vote not to hear the case...

[Svanströms]

Same-sex marriage is legal in Sweden, and if we had thought to have gay judges rule on it we would have had it here much sooner...

Very ingenious legal strategy to have a homosexual jurist hear the case!

Congratulations!!!

Now if we can think of a way to assign Muslim clerics to replace the Liberal Party education minister Jan Björklund, we can overturn any bans placed against students and teachers wearing face veils and avoid any more excitements and threats to kill school board members from our Islamic brothers and sisters...

And then, perhaps, we can appoint a Tourette Syndrome executive to run The Swedish Transport Agency (Transportstyrelsen), and overturn its recent rejection from a man in Stockholm for a auto registration plate which reads FCKU2MF (SEE HERE) because it would cause offense to some...

All these would be, as stated above, welcome improvements to civil rights, human decency and let us look at each other in the eye and face without recrimination, or the eye and the veil for those who choose to cover them...

[Jacob Davies]

A moose bit my sister once...

[ral]

No realli?

[wj]

Has anyone come up with an argument for overturning this decision which is not an equally good argument for overturning Loving? If not (and I certainly haven't seen one) obviously interracial marriage could be banned (at least locally) on the same grounds of "will of the people" and "no Federal grounds."

Just want to know if my marriage is now at risk....

[wj]

Mike, to answer your original question:
1) if the ruling is not appealed (which it will be, but just supposing), then it applies to this one case and nothing else.
2) if it is upheld by the 9th Circuit, then it applies anywhere in that Circuit, but not elsewhere in the US
3) if it is upheld by the supreme court, then it applies everywhere. (And probably voids the Federal Defense of Marriage Act as well.

Which is to say, the defendants are really going all in if they appeal.

[DecidedFenceSitter]

What's amusing is that it appears the judge wrote this decision to swing Kennedy around if it makes it to the Supreme Court - ah the joys of a 4+4+1 court.

h/t Kevin Drum

[Bernard Yomtov]

Justice Antonin Scalia WILL vote to REVERSE Judge Walker's ruling.
Stakes: $200K.
Odds: even money.

Any takers?

Not me, Tony. But if you get more action than $200K and need to lay some off, let me know. Maybe we can work something out.

[efgoldman]

I don't go to wingnut sites, I have enough headaches.

But I'll [figuratively] bet that some of the wingers are ready to start a movement to repeal the 14th amendment totally.

I mean: how else would they be allowed to punish teh gays and teh brown immigrant people?

Of course they won't think through the consequences: that's how wingers roll.

And it would never pass.

But it will be fun. And also unpleasant.

[Jay C]

A little light reading: a screed on the Prop. 8 ruling from Maggie Gallagher of the Natl. Org. for Marriage (NOM) .

Noticeably light on cogent argument, that is; heavy on the "moral" indignation and self-righteous resentments. Sadly, these attitudes probably aren't the outliers a lot of us wish they were....

[russell]

Remember when the national motto was "e pluribus unum"?

Out of many, one.

Not "one nation of people just like me".

Out of many, one.

Good times.

[Julian]

@wj

My girlfriend is a rising 2L, and she says that the distinction between this and Loving is that Loving was subject to strict scrutiny (http://en.wikipedia.org/wiki/Strict_scrutiny)
because it was using racial classification. However, she also says that the prop 8 case doesn't qualify for intermediate scrutiny (gender discrimination triggers this) because it is not discriminating by gender, since both genders are discriminated against equally. I might be misunderstanding or misstating her points though.

Loving seems analogous to me, though, because it also discriminates against each race "equally" (white people can't marry black people and vice versa).

WP says courts have been reluctant to apply intermediate scrutiny to sexual orientation classification. I don't know the reasoning though.

[Eric Martin]

WP says courts have been reluctant to apply intermediate scrutiny to sexual orientation classification. I don't know the reasoning though.

Doesn't the scrutiny test depend on evidence of historical discrimination against the group in question?

Which is a bit inconsistent in my opinion.

While, yes, racial minorities have been historically discrimated against, and thus strict scrutiny should be applied...women? I mean, what was that John Lennon song again?

And homosexuals?

The test is misapplied to say the least.

[Nate]

I just want to say that reading that decision gives me warm fuzzies. It's one of the good parts of America.

One thing I've never, ever understood about the opponents of gay marriage is this. Their insistence that gay people getting married will attack regular marriage, or disrupt the social fabric, and that sort of thing. Letting people get married helps make stronger relationships, and strengthens the social fabric. And if other people getting married can disrupt a relationship, there were a lot of other problems there first, and something else would have been the straw that broke the camel's back.

[Jay C]

@ Nate:

Check out the link in my 11:03 post: the following excerpt pretty much sums up the "opposition" position in a nutshell:

Judge Walker has added insult to injury by suggesting that support for marriage is somehow irrational bigotry, akin to racial animus. The majority of Americans are not bigots or haters for supporting the commonsense view that marriage is the union of husband and wife, because children need moms and dads.

As usual, opponents of same-sex marriage are quite quick to dismiss or deny ANY suggestion that their positions might be based in ANY way on mere prejudice; but then, typically, have only the (rather thin) reed of "morality" to fall back on.

The legalistic niceties surrounding SSM are all just so much trimming around the core issue: societal approval of homosexuality: an issue which too many people (whether out of religious or secular distaste) are not (yet) willing to concede. As you point out, the trite old "Saving Marriage" trope doesn't make sense, but then, it's not supposed to: it is meant mainly as a figleaf over naked prejudice.

[hairshirthedonist]

The majority of Americans are not bigots or haters for supporting the commonsense view that marriage is the union of husband and wife, because children need moms and dads.

The screwed up logic of this is breathtaking. Even if you buy into the idea that one mom and one dad constitute some sort of ideal, how do you square that with all of the other parenting arrangements, with and without marriage being involved, that are increasingly common and allowed to occur (in a free society, mind you) with the notion that, somehow, two moms or two dads will be so problematic that we just can't let that happen - that undermining same-sex couples raising children trumps everything else? I mean, it doesn't even make much sense if you start from what is a fairly bigotted premise. Of course, the people most opposed to SSM start from a really bigotted premise and simply pretend that it's only mildly so (IMO, AFAICT, ISTM - can't read minds) to appear reasonable and thoughtful and concerned for others, when they're really just hating on teh gays.

[Eric Martin]

Right, I mean: single parents, divorces with kids, kids raised by g-parents, etc.

[3legcat]

Any takers?

no thank you

will an overturn also reverse NH (and other states) law allowing SSM? or can a scotus ruling be narrowed by say remanding it back?

[Nate]

JayC: I've read it, but I still don't get it. Maybe it is a skein over naked bigotry, but even in that case, it doesn't pass the smell test. Even less than the "Think of the children!", because that's dumb and wrong, but at least it's an expected kind of dumb and wrong. "Gay marriage threatens marriage!" is just Insane Troll Logic.

One other bit I liked in the judgment was the point that defining marriage just by procreation devalues marriage far more than allowing gay marriage.

[JanieM]

Nate, the best explanation of the persistence of the "gay marriage threatens marriage" idea (and it may have come from someone right here at ObWi, I don't remember) is that underneath it's the same thing as "they can't be allowed to swim in the white folks' pool, they'd contaminate it."

Some people seem to have a desperate need to think that someone isn't as good or as worthy of the ordinary blessings of daily life as they and their kind.

Gays, Muslims, people of color, Native Americans, formerly Catholics, Mormons, Jehovah's Witnesses, Seventh Day Adventists, the list is long.

One of the great ironies to me is the way groups like the Catholics and Mormons, who have been stigmatized, stereotyped, and discriminated against in the past, have come into their own as stigmatizers, stereotypers, and discriminators.

Humans being human, I suppose.

[Jesurgislac]

That would be We LOVE you: we just don’t want you in the pool with us!: "Marriage in their view is not about pledging to love, to honour, and to cherish the one your love till death to you part; it’s not a civil right necessary to the orderly pursuit of happiness, as the Supreme Court decreed 42 years ago; marriage is a privilege, a strictly limited pool, and allowing lesbians and gays in the pool will 'change the complexion of the club'."

[JanieM]

Thanks, Jes.

It's so hot and muggy where I am that I can barely form sentences. In better weather I might have been able to trace the thought train backwards and give credit where credit is due. :)

[Hogan]

"Marriage is the basic building block of society. And if gay men get married, that threatens my marriage immediately because I only got married as a taunt toward gay men because they couldn’t." -- Stephen Colbert

[Catsy]

I actually suspect that Scalia would vote not to hear the case...

This is my suspicion as well. From every legal analysis I've read--as well as my own layman's reading of the ruling and following the case--this decision is about as airtight as it gets. The higher courts are limited to findings of fact, not law, and the facts in this case are damning. Add in the blatant incompetence of the defense team and you have a decision that will be extremely hard to overturn.

I wouldn't put it past Scalia and the other judicial activists on the court to try, but my money would be on them denying cert in order to avoid the possibility that the SCOTUS will uphold. That would be a disaster for the anti-gay crowd, as it could directly threaten not only DOMA but every state law prohibiting gay marriage.

[Tony P.]

Catsy, I think you reversed "facts" and "law", above.

On the Scalia voting for cert question, do you think it depends on how the 9th Circuit rules, or do you take the 9th's ruling for granted?

--TP

[Catsy]

Catsy, I think you reversed "facts" and "law", above.

Yes, I did, thanks. Brainfart (rhymes with Breitbart).

I don't think it matters how the 9th Circuit rules. I am assuming it will uphold because I can't see a way for it to not, but I think any calculation concerning the risk (to the bigot crowd) of SCOTUS upholding is independent of that.

[Marty]

"Their insistence that gay people getting married will attack regular marriage, or disrupt the social fabric, and that sort of thing."

The biggest problem here is that if a woman can marry a woman then why would any of them ever put up with a man? That will certainly destroy the social fabric.

[Hogan]

The biggest problem here is that if a woman can marry a woman then why would any of them ever put up with a man?

That's certainly the basis of my marriage, and I'll thank you not to raise that question again.

[Eric Martin]

(rimshot emoticon x2)

[Catsy]

The biggest problem here is that if a woman can marry a woman then why would any of them ever put up with a man? That will certainly destroy the social fabric.

Then maybe men should stop being such douchebags?

(Myself included.)

[Eric Martin]

we can aspire

[Night of the Living Clueless, Inept Spammer]

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[Jesurgislac]

08:23 PM to 11:39 PM make an interesting set of comments on marriage: men and shoes. If you buy the right size, and take care to break them in, you can walk on them for years.

I mean shoes, of course.

*grins*

More seriously (I'm truly sorry, I just can't resist a straight line): Amanda Marcotte:

There are many parts of Judge Walker’s decision overturning Prop 8 that are delicious reading, but the most interesting part was how Walker repeatedly stressed that marriage had already changed---that strict gender roles that justified restricted marriage in the past have already gone away. We all know what he’s talking about: men don’t legally own their wives anymore, no-fault divorce degenders divorce legally, women are allowed to work and men to care for children, the legal restrictions on women’s rights in marriage have mostly fallen away. Spouses aren’t legally distinct anymore, so there’s no reason to say they have to be different genders.

Lifting the ban on same-sex marriage follows equal marriage at glacial but inevitable pace.

[Slartibartfast]

Spouses aren’t legally distinct anymore

I remain legally distinct, I must say. And my wife? Legally distinct.

Not sure what she's talking about, here.

[Jesurgislac]

Slarti: I remain legally distinct, I must say. And my wife? Legally distinct.

What Amanda means is modern civil marriage husband and wife have equal rights, responsibilities, and obligations towards each other: the wife is not considered the adjunct of her husband - her name, her citizenship, her property, her work, and her body are her own, not legally her husband's.

This has not always been the case. Once upon a time, a wife had distinctly different legal obligations towards her husband than a husband did towards his wife.

The history of civil marriage in the US:

Before 1900, a wife might not have had the right to own property in her own name: as a married woman, until 1900 in many states of the US, anything a wife owned was the property of her husband and she might not even have the right to sign contracts in her own name: her husband would be required by law to do that for her.

There were states in which it was legally impossible for a woman to retain her surname after she married: she was required to change her name to her husband's.

Before 1933, a wife acquired the legal citizenship of her husband: if she married a non-US citizen, she lost her US citizenship.

Before 1976, a wife had no right to decide to have an abortion without her husband's consent: her uterus belonged to her husband, not to her.

Before 1991, in many states of the US, a wife had no right to refuse her husband sex: the sexual use of her body belonged to him, and in law, no matter if she said no, or fought to stop him, his use of her was not legally rape.

When marriage law presumes that a husband has legal rights over his wife which she does not have over him, and that she has obligations to her husband which he does not have to her, then the only way a same-sex couple can get married is if one takes the legal role of the husband, one that of the wife.

US marriage law now presumes no legal distinction between two spouses, so there's no reason not to allow same-sex couples to marry.

[JanieM]

To pick a nit a bit, I think it's a little confusing to say that spouses aren't legally distinct.

What has changed is that their roles that are no longer legally distinct. In fact, since in the old days the woman lost her separate/autonomous legal existence when she married, there's a way in which it would also be true to say that the people themselves are now legally distinct in a way that they weren't in the past. In the past, women lost their legal separateness; she became "Mrs. He." That has changed.

I spent some time in the Maine law library last year reading old statutes. There were of course all kinds of ways in which, when a woman married, her existence was subsumed under her husband's, and he in effect now owned her and it. (And not v.v.) But one interestingly different little twist was this, from the early 1800's:

And when a feme sole shall jointly with one or more persons, be appointed executrix, or administratrix, and after such appointment shall, during the life of the other co-executor or co-administrator, marry, such marriage shall not make the baron an executor or administrator in her right; but shall operate as an extinguishment or determination of such woman's power and authority. And the other executor or executors, administrator or administrators, may proceed to discharge the trust reposed in them in the same way and manner as if such woman were dead.

An unmarried woman could be a co-executor, but unlike her other roles/possessions, this role did not transfer to her husband if she married. Instead, it was as if she "were dead."

[Slartibartfast]

Once upon a time, a wife had distinctly different legal obligations towards her husband than a husband did towards his wife.

Ah. Thanks for explaining, J. The phrasing was misleading for someone who isn't in that conversation a great deal (me, for instance). Makes sense, now.

Thank you too, JanieM.

[wj]

@Julian
My girlfriend is a rising 2L, and she says that the distinction between this and Loving is that Loving was subject to strict scrutiny (http://en.wikipedia.org/wiki/Strict_scrutiny)
because it was using racial classification. However, she also says that the prop 8 case doesn't qualify for intermediate scrutiny (gender discrimination triggers this) because it is not discriminating by gender, since both genders are discriminated against equally. I might be misunderstanding or misstating her points though. [Sorry that quote is so long, but the original is quite a ways up.]

It appears that the judges decision states taht the Supreme Court has ruled that marriage is a fundamental right, and that triggers strict scrutiny. I can't say whether he is right on either the prior SC rulings, or as a matter of law. But he did take the trouble to address the issue. Which suggests that Loving may be relevant after all.

[Eric Martin]

Good point wj. Hadn't thought of it that way - was thinking more of the classification of the subject group.

[Catsy]

Thinking on it again this morning, I need to amend something I said upthread.

I don't think it matters how the 9th Circuit rules. I am assuming it will uphold because I can't see a way for it to not, but I think any calculation concerning the risk (to the bigot crowd) of SCOTUS upholding is independent of that.

Upon reflection this is very, very wrong. If I assume that the primary motivation of Scalia and the other right-wing activists on the SCOTUS is to deny cert if it looks like there's a risk it will be upheld, then it is critical that the 9th uphold the decision. Otherwise Scalia and his ilk have no reason to grant cert, and every reason to vote to deny it and let the prior decision stand.

Also, listening to the Stephanie Miller show this morning, they had Ted Olson's junior partner on and in the context of whether or not the judge stays his decision pending appeal he said that the opposition really seems to want to stop people from getting married, which he's never been able to fathom.

What he didn't say--and I don't know if it was a strategic omission or blindness--is that far more is at stake in the stay than simply keeping more of those icky gays from marrying. As I recall, one of the more powerful arguments against Prop 8 was that it created three distinct classes of Californian: heterosexuals who could marry and divorce freely, homosexuals who were legally married but could not remarry if they divorced, and homosexuals who could not legally marry at all.

The more gay people who get married in CA, the more indefensible Prop 8 becomes--and they know it.

[McKinneyTexas]

If I could write the law, this case would have been unnecessary. Any two adults, but no more than two, would be allowed to have a civil marriage in any state or territory of the US. Period.

That said, and hopefully understood, maybe affirmation is a slam dunk, maybe not. I am less sanguine about the trial court's findings of fact binding an appellate court than are most others here, nor am I convinced that, simply because a seemingly poor case was put on by the defense, that a plebiscite can be rescinded. First, there is the matter of judicial notice, by which courts take notice of matters outside the record if such matters fall within the court's 'knowledge', i.e. "facts so notorious as to be within the range of our judicial notice." The notion of what has historically and traditionally been a marriage falls well within a court's judicial notice. Whether a court takes such notice and what the court does with it are different matters altogether. Second, while marriage between a man and a woman is a recognized fundamental right, that does not mean that any marriage outside this paradigm is also a fundamental right. Third, there is the matter of federalism. Defining the terms of marriage is 'traditionally' the province of the states. Fourth, cases grounded on race face a higher standard of review (usually strict scrutiny) because race, as opposed to sexual orientation, is constitutionally proscribed as a basis for discriminatory state action.

Moving on from that limited discussion of the merits/procedure, etc., this decision may not play out as well as everyone would like. If the trial court is reversed, that could well put an end to any future 'equal protection' challenge to any state or federal law disallowing gay marriage/civil union or any such challenge to other statutes, etc. that discriminate against gay people. If affirmed, it will be Roe v Wade all over again, but likely worse. Can enough congress members/senators be depended on to vote against the inevitable constitutional amendment reversing this decision if affirmed by the High Nine? Can they survive their next election? The push back to gay marriage being made the law of the land by judicial fiat will be huge.

I am afraid this decision is a decade ahead of its time. I am even more afraid that, being born premature, it's survival is by no means a sure thing.

[Catsy]

The notion of what has historically and traditionally been a marriage falls well within a court's judicial notice.

I'm not qualified to speak on the legal question, but I can say with absolute certainty that there has never been any one answer to what marriage has "historically and traditionally" been--even if only within the United States.

I'm pretty sure we've hashed these out extensively, but at different points in history, marriage has evolved in ways including but not limited to the following:

- Once a joining sanctioned solely by religious institutions, it is now a legal contract in which religious doctrine carries no legal weight whatsoever
- women used to became the property of their husbands with few or no legal rights of their own; it is now a partnership of nominal equals
- Interracial marriage was once considered scandalous and disgusting and was against the law; it is now commonplace and unremarkable
- Divorce used to be difficult, impossible, or illegal; it is now a routine part of American law

The list goes on and on. The age at which one can marry, the degree of blood relationship allowable, intermarriage between religions... these things and more have all, at one point or another, been enshrined in tradition and law. Even today, they are not consistent from one state to another, let alone one country to another.

No argument appealing to "tradition" would survive in conflict with the facts laid out in this case.

[Marty]

"but no more than two"

Why

[JanieM]

Addressing this to McKinney in response to his 5:33:

Some of my friends in Maine think that the vote here was just two or three years too soon. Maybe it was, I don't know.

But as I've said here and elsewhere many times, neither I nor anyone else is in charge of how this kind of change is approached. When some gay couples in Hawaii initiated a law suit in 1991, there were self-appointed gay activists who said very loudly that it was too soon. For all practical purposes Olsen and Boies appointed themselves to bring the current lawsuit. I don't think any major gay activist organization signed them up. It goes for all of us that we have very little control over what the people next door do, much less over millions of our fellow-citizens nationwide.

That said, I too am uneasy about what the Supreme Court will do if they get this. I would like to be optimistic but I'm not, really.

Maine will be an interesting laboratory this fall for the role same-sex marriage is likely to play in political campaigns in the next few years. SSM opponents held a rally this summer (I was traveling, not that I would have gone near it if I was here), trying to keep the issue alive and visible. Both sides, I'm sure, are working feverishly in the background to try to get voters to reward/punish state legislators for how they voted. My own state rep, a longtime acquaintance, was one of 7 Republicans in the House (out of 55) to vote in favor of marriage. He will be targeted, but he is very well-liked, a moderate Republican and a hard-working local guy who has done a good and truly good faith reach-across-the-aisle kind of job in the legislature for 6 years already (this will be his last term in the House, if he wins, because of term limits). But even if he's defeated, it will be hard to tell whether it's because of the SSM vote, or because the district, like most of Maine, tends to lean Democratic at the state legislature level.

In the last gubernatorial election, the Republicans nominated their most right-leaning candidate, and he was defeated soundly. In June's primary they did it again, though this nominee happens to be very well-liked, unlike the previous one. In fact, both parties went to their extremes for candidates for governor, and there's a strong independent running as well, so no one I know is doing any predicting at this stage. But my hopeful side says that given the economy, the wars, the price of heating oil, the eternal Maine wrangling over taxes and education policy, it will be quite a feat for opponents of same-sex marriage to turn a couple hundred legislature contests into single-issue referenda on marriage. And if they succeed, then as a polity we deserve what we get.

There's no campaigning going on yet, so I can't even give a report on how much SSM is being played up by campaigns (in either direction). Hopefully we'll have a thread or two on the subject in the fall.

I still believe what I said early in this thread: "It was a great day and a great hour, whatever may come after." I have by now read the decision, and as a gay person (and I'm not a lawyer) it is a balm to read a calm, cold-blooded, intelligent dismantling of all the idiotic hate-filled b*llsh*t that filled the airwaves in my state last fall. (Kind of like the warm fuzzy memories I get of Kitzmiller v. Dover, though I never actually read that decision in full, I just read the reporting on it.)

The campaign to legalize birth control went on for 70 or 80 years, sometimes in legislatures, sometimes in the courts. Too bad for all the people who'd like to get married if this one takes that long, or, in your (McKinney's) most pessimistic imaginings, if we for all practical purposes never get there because of backlash.

I have to say that I get tired -- in myself just as much as when it comes from someone else -- of what seems to me to be a kind of good faith concern trolling. This applies to life in general, to all my activist friends and their might-have-beens, as much as to internet discussions, blog posts, pundits, etc. If only we were perfect, and made perfect decisions at all times, and especially if only other people would perfectly follow our methods, the world would be fixed in a jiffy. Insofar as you're making predictions or speculating about likelihoods, I pretty much agree. Insofar as you're saying people screwed up by the timing of the lawsuit, all I can say is eh, talk to me about something useful. People do what they do. Other people often criticize and second-guess as if hindsight is 20/20. Hindsight is just as blind as foresight; no one knows what might have been if someone had done something different last week or last month or last year.

[Phil]

If I could write the law, this case would have been unnecessary. Any two adults, but no more than two, would be allowed to have a civil marriage in any state or territory of the US. Period.

Frankly, that should be the case now, since a) there are states where gay marriage is completely, uncontroversially legal and b) the Full Faith & Credit clause of the Constitution still exists. Unfortunately, we have an entire class of people who want to pretend that DOMA somehow supersedes the Constitution, and so if you're married in Massachusetts, you're somehow not married in North Carolina or Texas or wherever.

I sorta kinda want to start a legal movement to allow states not to recognize driver's licenses or car registrations from other states. Just to see how "principled" some of these people are.

nor am I convinced that, simply because a seemingly poor case was put on by the defense, that a plebiscite can be rescinded.

If something's a right, it's a right, and all the votes in the world can't take it away. The state may be able to prevent you from exercising it or punish you for doing so, but that doesn't make it any less a right.

If affirmed, it will be Roe v Wade all over again, but likely worse.

Even though you're probably correct, I find this indescribably sad. That people can get that angry and worked up about complete strangers getting married to each other. It's just . . . wrong. That's the only word for it. It's wrong.

And it goes beyond sad into angry-making that people who in every other circumstance you can think of would cry, "Keep the government out of my life!" want to flex that tool in order to prevent complete strangers from getting married.

[Jesurgislac]

Hindsight is just as blind as foresight; no one knows what might have been if someone had done something different last week or last month or last year.

Sing it.

"First, I must confess that over the past few years I have been gravely disappointed with the straight moderate. I have almost reached the regrettable conclusion that the great stumbling block in the stride toward LGBT equality is not the Mission America or the NOMer, but the straight moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another couple's marriage; who lives by a mythical concept of time and who constantly advises LGBT people to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection."

Or something like that.

[Nate]

The greatest problem with the "too soon" argument, as I see it, is simple. First, someone can always say "it's too soon, there will be backlash", no matter what the conditions on the ground are. second, no matter how the changes are made, there will be backlash. Conservatives like to say Roe v. Wade was wrongly decided, or decided too soon, and caused the backlash of the Fundamentalist Right. Maybe, but does anyone really think the fundamentalists wouldn't have flipped out if it was done by Congress? Of course they would have. Then it would just have been those damn activists/Yankees/liberals/FakeAmericans in Congress that did it, rather than those damn liberal judges. And if it had been done through Congress, then there still would have been a court challenge, that would have gone to the Supreme Court, with exactly the same results.

There's times you have to stop worrying about people flipping out who are always going to flip out, and just do what's right. That's something too many of the Democrats in DC (including Obama, at least so far) don't seem to get. And there's only so long you can tell people to keep suffering because some percentage of their neighbors are reactionaries you don't want to offend.

[Marty]

I grew up a very left leaning somewhat radical hippie type, in the days of Lennon, Neil Young, Baez, young Dylan, and a plethora of folk singers and beat poets. Free love became a mantra and excuse for really ill thought out behavior but there was a moment when CSN sang Triad that you could believe it.

All of that to say this:

Every day is the right time to do what you believe is right and stand up for those beliefs. Tomorrow is just a day to do it again. There is no reason to wait for the perfect time because the perfect time is created by standing up every day until it works.

[Jesurgislac]

Just for once...

Every day is the right time to do what you believe is right and stand up for those beliefs. Tomorrow is just a day to do it again. There is no reason to wait for the perfect time because the perfect time is created by standing up every day until it works.

What Marty said.

[Marty]

"If I could write the law, this case would have been unnecessary. Any two adults, but no more than two, would be allowed to have a civil marriage in any state or territory of the US. Period."

(bold mine)

I still wonder why this is considered ok. (simple question ignored above)

[Jay C]

@ Nate:

And there's only so long you can tell people to keep suffering because some percentage of their neighbors are reactionaries you don't want to offend.

Unless, of course, you are one or the other of the Houses of the United States Congress: in which case "so long" can stretch out into time periods so extensive you'd need a geologist to time them.

@Phil:

And it goes beyond sad into angry-making that people who in every other circumstance you can think of would cry, "Keep the government out of my life!" want to flex that tool in order to prevent complete strangers from getting married.

I think you've hit on something here: the "complete strangers" part, It's a lot easier to hold to positions or ideologies of prejudice - even severe prejudice - when the target of said bias is an abstracted "Other" - as gays have been (and sadly, continue to be) characterized as for centuries: when it's your own family/friends/co-workers.... well, maybe not so much.

Oh, and when you get constant reinforcement from your selected selective media that your bigoted attitudes are sanctioned and smiled upon by God, directly; it doesn't help, either.

[JanieM]

It's a lot easier to hold to positions or ideologies of prejudice - even severe prejudice - when the target of said bias is an abstracted "Other" ... when it's your own family/friends/co-workers.... well, maybe not so much.

I think this is generally true; certainly my own experiences and those of most of my gay friends and acquaintances would suggest so.

Interestingly related, though: I think that the fear that one's own child might be gay is one of the strongest, most intractable driving forces behind the opposition to anything that would affirm that gay people have a place in the world just like anyone else.

See, if being gay is okay for some people, then it's probably okay for any people, and if it's just another ordinary way of being human, then it might -- GOD FORBID(S) -- be a way that anyone's child might be human, even mine.

And that's not possible. It doesn't really even rise to the level of dread or fear, it's much deeper and more inaccessible than that. Better dead, see?

Yet another twist on the possibilities was illustrated by this speech from the debate on marriage in the Maine House on May 5, 2009. This woman cried while she made her speech. Well, we all make our own choices and it's obvious that hers are painful, and not just for her.

The SPEAKER: The Chair recognizes the Representative from Mexico, Representative Briggs.

Representative BRIGGS: Thank you, Madam Speaker. Madam Speaker, Ladies and Gentlemen of the House. Today I feel that I have to make the most difficult decision I have ever made in my life. As a legislator, in this legislative body as we make history today, I cannot believe that we are in the position we are in as far as voting on such a sensitive and, for most of us, personal issue.

I have been struggling with this bill for months knowing that it is going to come forward and I am really going to have to choose and make this decision publicly known. I am so sorry I will hurt my family, friends, and citizens of the State of Maine.

You see, my daughter is gay. I have known this for about fifteen years. Throughout all this time, I have kept my personal feelings on this matter separate from my love for her. She has never ever heard me express my opposition with this decision in her life. I have always loved her, respected her, and never judged her for the path she has chosen for herself. My daughter has been through a tremendous amount of, sometimes, life-threatening issues in her life and never once did I ever say to her "You shouldn't have done that" or "That was a poor choice on your part, or "How could you." I have always been there for her, to support her, and to encourage her, and to help her pick herself back up to get back on track. I would never hurt her. I would go to the ends of the earth for her.

But, because I feel so strongly in opposition of this bill, blame it on my upbringing or the good book, but the deepest part of my soul tells me that this is wrong. I can't change how I feel. These feelings run very deep. I have kept this secret within me for fifteen years. But because of who I am, and where I am today, and as a member of this legislative body, ethically, it is my duty and responsibility to have to publicly say to my daughter that I do not support her way of life. I just had to finally confess to her on just exactly how I feel as now I had no choice. I have to hit that button.

Although, I could say that the majority of my constituents are in opposition of this bill, to which they are, and to use that as my excuse as to my decision-making process. But that would not be fair to me, my daughter, or my constituents. I am sorry that there is no other way we could compromise, to make things better for everyone, because that's what we do as legislators; we are here to fix things, to make things better for everybody.

I feel that I need to let every citizen know that the decision that each one of us makes here today is not an easy one. We have respect and compassion for each one of you. I ask each citizen in the State of Maine, on both sides of the aisle, to please respect our individual decisions. Thank you, Madam Speaker.

If anyone is interested in poking around in the transcript, check out Representative Flood and Representative Sirois. They'are among the ones that made me cry.

[Phil]

I still wonder why this is considered ok. (simple question ignored above)

I don't know that I think it's OK, but in total throwing-darts-in-the-dark mode, I'd guess that the benefits, rights and obligations of marriage that people generally think about aren't scalable? Maybe? That's just a total guess of why most people wave away polygamy and polyandry in these discussions.

[JanieM]

That's just a total guess of why most people wave away polygamy and polyandry in these discussions.

I suppose this follows on McKinney's statement, above -- Any two adults, but no more than two, would be allowed to have a civil marriage in any state or territory of the US. Period -- as to the reasons for which I'm content to let McKinney can answer for himself if he wishes and when he gets around to it.

As for myself: I personally would prefer to "wave away polygamy and polyandry" in these discussions because as far as my own participation goes, that's not what I'm discussing. (Kind of a tautology, right? There are more to come.) The following is not aimed at Phil, but rather grows out of having been here before again and again and again, including http://obsidianwings.blogs.com/obsidian_wings/2009/11/wanted-thread-or-alive.html#comments>here at ObWi..

The idea that every time we talk about same-sex marriage we've got to talk about polygamy and polyandry -- and often by extension that if we're working to legalize same-sex marriage we're dishonest or hypocritical if we're not also working to legalize polygamy and polyandry and even, for crying out loud, some kind of rights for unmarried opposite-sex couples -- is objectionable for two major reasons that I can think of off the top of my head.

1) If people want to talk about polyandry, polygamy, and a general reform of the marriage laws, by all means go for it. I might even participate in that discussion. But that's not what the Walker decision is about, it's not what the same-sex marriage campaign is about, and it's not what we started out talking about right here. To anyone who is unhappy about the first two items on that list, I would say (not for the first time): feel free to start your own campaign for the legalization of polygamy and polyandry and/or a general reform of the marriage laws, but don't try either to drown out my voice talking about same-sex marriage, or drag my campaign down by hanging onto my coattails with your far more quixotic and (possibly?) far more unpopular goals.

As to the third thing, the discussion right here, yes, blog threads drift, and they often drift into interesting places. But to imply [as people have on this very blog] that there is something nefarious or selfish about prefering to focus on same-sex marriage when we're, ah, focusing on same-sex marriage, is BS, and suspiciously familiar in the effect it has of implying that gay people should just pipe down and fade back into the closet.

2) The people working to legalize same-sex marriage are, wonder of all wonders, working to legalize same-sex marriage. There is no reason in the world why they should also be working to legalize, or even discussing, polygamy or polyandry. For one thing, it is an absolute certainty that they don't all agree about polygamy and polyandry -- and vice versa, it's important to point out. Same-sex marriage on the one hand and polygamy, polyandry, and/or a general reform of the marriage laws are different topics, and different campaigns. They attract different people, they require different approaches, they have differing chances of success, and they have differing levels of interest in the general population.

It's as if someone started a campaign to legalize riding a motorcycle without a helmet, and every time that subject was brought up some other people started jumping up and down about weight limits for trucks on the highway, and by extension about reforming the American transportation system. No doubt some people have a sincere interest in polygamy and polyandry and some people have a sincere interest in a general overhaul of the marriage laws, just as some people have a sincere interest in truck weight limits and some people have a sincere interest in general transportation reform.

But the people working for same-sex marriage and a change in the helmet law are working on what they're working on, not on other or bigger picture issues. I don't give a flying banana about polygamy, polyandry, or a general reform of the marriage laws (though I would love to see a general reform of the transportation system: more trains, please). And working for and talking about same-sex marriage does not obligate me to take a stand on, much less work for, polygamy or polyandry.

Over to McKinney if he wants to talk about why he would allow same-sex marriage but not polygamy or polyandry. I'm going outside.

[russell]

Second try on this, an earlier comment seems to have gone missing. My apologies if this ends up being redundant.

the deepest part of my soul tells me that this is wrong.

I'm sure that this is true, and that Briggs is sincerely troubled by her daughter's homosexuality.

The thing is, her personal beliefs are keeping other people from living their lives.

Nobody is trying to make her approve of gay marriage, or of homosexuality. Nobody is trying to change her mind about whether gay marriage is desirable, or not.

What she, and folks like her, are being asked to do is to let other folks have, and live by, *their* own understanding of the issues.

And they can't bring themselves to do that.

All different kinds of people live in this country. We will never, ever, ever all agree about stuff like this. And we don't have to.

But what we do have to do is let other people live by their own understanding of things, unless there is some real, concrete harm caused by their doing so.

I do not share Brigg's discomfort with her daughter's, or anyone else's, homosexuality, but I am sympathetic to the difficulty it causes here.

It's hard to live together with people whose point of view you do not share.

But that is *the* project of public life in a society as various as ours. We have to let other people live as *they* see fit.

If there is some real, concrete harm, different story. But nobody has ever demonstrated that in the case of gay marriage.

And that, in turn, is because there is no such harm to demonstrate.

On the contrary.

[Hogan]

I think there are a lot fewer people bringing up polygamy/polyandry to express support than there are bringing it up as a slippery-slope argument against same-sex marriage. Apparently there are box turtles even farther down the slope.

[Marty]

Hogan,

Let's be clear, McK was very specific. He added the "only 2" portion in very specifically. I was just curious why he was that specific in his writing of the law.

No slippery slope, no alternate motive, no hidden agenda, no threadjack, it just struck me in it's specificity, and then lack of notice.

[Hogan]

Marty, I didn't mean to attribute that motive to you, and I'm sorry I gave you that impression. I was responding to JanieM's desire for the SSM discussion more generally not to get sidetracked into other issues, and noting that it's not always a sidetrack so much as an effort to derail. Of course it's possible to discuss the issue without necessarily doing either of those things. Please carry on.

[Marty]

No problem Hogan. The answer I expected was somewhere between, "just to ensure focus on SSM" and "I don't know, I just put it in". No big deal in this context anyway.

[McKinneyTexas]

I've been either away from my computer or hosting out of town guests (son and future daughter in law).

I put "only two" in to forestall an anti-SSM argument grounded on the slippery slope argument. That said, the slippery slope argument is one that needs to be confronted rationally by SSM supporters. In brief, unions of more than 2 adults can and should be rejected by civil authorities as administratively unwieldy, overly complex and not subject to rational formation and dissolution. Specifically, property rights and custody are problematical enough with only two partners. Add a 3rd or a 4th and our already strained domestic judiciary will likely to be unable to cope, i.e. to fashion a set of rules and precedents for multiple partners. I could go on, but in a nutshell, the practical problems emanating from polygamy far outweigh that status' claim to being a fundamental right.

A related argument is that the only fundamental right we are talking about is that between two people, currently a man and a woman. SSM advocates support extending that right to same sex couples. Nothing more, no hidden agenda.

On the 'too soon' subject, I would be delighted to be wrong. Remembering the fall out from Clinton's very first days when he was going to allow gays to serve openly, you can look back and see a lot of progress. Not as much as JanieM or Jes or Uncle K or many others would like (and who can question that), but real progress nonetheless.

Now, we have the specter of a thumbs up/thumbs down ruling by 9 appointed judges. Either way the court goes, unless they can somehow split the baby, it will likely be bad. Bad either because a ruling against could/would mean there is no equal protection argument to be made for gays or bad because the opposition could go as far as forcing a constitutional amendment outlawing for all time SSM. In that event, today's victory would be worse than hollow.

In ten years, maybe less, present trends continuing, SSM will be much more widely accepted. It will be adopted by legislatures, at first a few at a time, but more as time goes by. Publicly vocal opponents will lose more and more credibility and a consensus will build.

Far better than judicial fiat.

[Jesurgislac]

McKinney, when people argue against "judical fiat", I think: they're people who have never, ever, ever had to turn to the judiciary to protect their rights against a majority who would vote them out of existence.

If the Supreme Court decides that the US is a country in which LGBT people are forever to be unequal citizens, that will be bad. But it was the hazard in 1967, over thirty years before the majority of people in the US were prepared to grant that Mildred and Richard Loving were and should be legally married and their marriage recognized everywhere: and the Supremes still decided for justice and equality, against prejudice and discrimination.

It's easy and simple for you to say "wait". You aren't being denied any rights. Your wife is not being forcibly divorced from you by majority vote. You and your wife are not at risk of losing your home, your possessions, and each other, because one of you fell down a flight of steps and the local county authorities decided to take it all from you while you were helpless.

For you to say "wait" comes across as stupidly arrogant or uncaring. You don't have the right to say "wait" because you are not hoping the change comes within the next year so that you can legally marry the woman you love before you die. I have a friend who is dying in Washington State, where anti-marriage conservatives have voted she shan't have the right to marry.

She's got 18 months. Maybe more, maybe less, My first thought was: unlikely, but maybe, if this case gets to the Supremes promptly, if they decide according to the facts of the law, if the bigots on the court get outvoted - maybe my friend can marry before she dies.

So just STFA with your "oh wait" crap, please. You really don't have the right, sitting in your ease and comfort, to look at people crying out for justice before death and say "hey, maybe in ten years it'll be better, but right now I don't think you'll win so you shouldn't even try."

[Eric Martin]

Judicial decision is a perfectly acceptable way to enforce minority rights in a democracy.

Because they are minorities, they frequently lose out via the ballot box. Without judicial checks, you end up with the tyranny of the majority.

If given the choice between the tyranny of the majority, and recognizing fundamental minority rights, I'll side with the latter. In the intervening years, the public can go ahead and catch up while people are not being denied. Same thing for the public.

[Sebastian]

"Judicial decision is a perfectly acceptable way to enforce minority rights in a democracy."

Enforce, yes. Create? No. I don't believe that the judicial branch has some sort of general anti-majority mandate. And of course the question of whether this is creation or mere enforcement is *the* question. But considering already existing Supreme Court precedent, it looks a lot like creation.

I like the outcome of this decision, I'm skeptical of the process. This decision looks like an all-in gambling strategy. If it works, fantastic. If it doesn't, you really screwed the whole thing up. I wouldn't have chosen that approach, especially with SSM well in reach legislatively or through proposition in the near future. And I especially wouldn't have chosen the totalizing approach taken by Walker. We are in an all or nothing gamble now, I hope for all. But I wouldn't have chosen the gamble.

Also, it would be interesting to see some of the liberal jurisprudence take on Walker's reaching far beyond the question presented vis-a-vis a non-similar take on Citizens United. It can be jarring from the Supreme Court, but isn't it even more so from a trial judge?

Result, definitely good. Process, pretty crappy.

[Uncle Kvetch]

Now, we have the specter of a thumbs up/thumbs down ruling by 9 appointed judges. Either way the court goes, unless they can somehow split the baby, it will likely be bad.

I've been seeing this argument a lot over the last few days, coming from strong SSM supporters who know a hell of a lot more about the legal intricacies than I do, and I have to say it's very worrisome. I have no qualms about the propriety of the judiciary being out in front on this issue -- I'm with Eric on that -- but I hate to think of what's at stake should things not go our way at the next stage.

That said, I've never understood why SSM (or DADT, for that matter) are so widely seen as the crucial legal issues for LGBTs when we still haven't gotten ENDA passed, and there are still wide swaths of the country where fundamental areas like housing and employment are subject to a patchwork of local and state anti-discrimination laws that leave people in wide swaths of the country unprotected. That always seemed like Job 1 to me, and I sometimes wonder if it doesn't come down to the fact that the people with the money and influence in the LGBT movement already live in places where those rights have been secured and can be taken for granted.

[Jesurgislac]

Uncle Kvetch: That said, I've never understood why SSM (or DADT, for that matter) are so widely seen as the crucial legal issues for LGBTs

Ending discrimination at work or in provision of services is important, but the reason why (as an LGBT activist and a pacifist!) I see the freedom to marry and the right to military service as key issues is that they are both opening-doors rights.

Even if it's illegal to be discriminated against at work, that doesn't mean people who want to discriminate won't be able to. That doesn't mean the law shouldn't be there: it should. But to use the law, there has to be an individual who's been discriminated against at work and is willing to take up the case against their employer. That can mean being outed, rather publicly: it can also mean all of the other issues that a whistleblower has to consider. ENDA is a necessary starting point from which accomplishments can be built, not an end in itself.

But anyone who wants to join the military, should be able to. (I say this as a pacifist. I may wish nobody would, but if anyone's going to, I don't see why lesbians and gays shouldn't.) And if DADT is abolished, then anyone can. Door open. Doesn't require any special effort more than anyone else to join the military: just means that when you're in, you don't have to lie.

And anyone who wants to be able to marry, should: it's an even wider door-opening right. It's key because it's the access to about a thousand other federal rights and probably around five hundred state rights. But it's also key because it's a civil right that just entails opening the door, and once open, requiring no special further effort (beyond what any marriage requires).

Both military service and marriage are also a means by which many straight people who might say they don't know any gay people, will find they do: not unusual weirdoes wanting "special rights", but just ordinary people living in the same block, going into the army or going nuts over the wedding, just like anyone else.

That's why they're key. And that's why Obama is hanging back on both of them: they both mean change, and we all know Obama stands for continuity with the Bush administration, not sudden change...

[Uncle Kvetch]

ENDA is a necessary starting point from which accomplishments can be built, not an end in itself.

I agree, it's exactly that: a starting point. My sense is that ENDA (which, if the polls on the subject are to be believed, would be far less fraught with controversy than marriage equality or ending discrimination in the military*) would make those other changes more likely in its wake.

I could be totally wrong about that, but it's curious that this question doesn't get discussed more.

*Not that it would be a walk in the park, mind you...we'd still have to contend with Rand Paul invoking the sacrosanct rights of employers and landlords to discriminate on any basis or no basis at all...

[JanieM]

My sense is that ENDA ... would make those other changes more likely in its wake.

I think it's just as likely to work the other way around, as Jes has suggested. And this is one of those big multi-stranded social questions that I just don't think we can answer in any sure way.

Also, though I don't have any long-term super-activist credentials (except for a certain stubborn insistence on writing newspaper columns as an openly gay person many years before most of my friends thought it was (relatively) safe to do so), and I'm not a student of political history, I'm pretty sure the movement for marriage came originally from the grassroots in defiance of the political calculations of activists.

People want to get married. It matters in a concrete way and it affects practically everyone. Job discrimination is fuzzier, more variable, and particularized to specific situations, and you can maneuver around some of it by being discreet. (Not that you should have to be, but still.) With marriage -- you're either married or you're not. There's no gray area and no way to be half-married, or married as long as you're careful to keep one foot (or more) in the closet.

The discussion here and elsewhere keeps turning on these vast big picture questions, like which goals should come first, and whether activism should be directed at legislatures or courts or "the people," and what kind of grand strategy would be best, as if there's actually someone in charge who is making all these decisions.

But there's no one in charge. No one was in charge of the people in Hawaii who tried to get married in 1991. No one was in charge of Boies and Olsen and their clients deciding to bring the Prop 8 lawsuit. No one can give GLAD orders about when to bring lawsuits. No one had the right to muzzle Equality Maine in the fall of 2008 when they started gathering supporters for a marriage campaign.

This is no different from any other longlasting political campaign: women's voting rights, civil rights in relation to race, birth control.

There's no commander in chief. We each do our bit and hope for the best.

[Uncle Kvetch]

I'm pretty sure the movement for marriage came originally from the grassroots in defiance of the political calculations of activists.

That could very well be the case, JanieM. You probably know more than I do about these things than I do. I don't follow the movement(s) closely, precisely because I can afford not to -- I'm one of those fortunate people who can be just about as out as it's possible to be anywhere in the US right now. I admit that.

Job discrimination is fuzzier, more variable, and particularized to specific situations, and you can maneuver around some of it by being discreet. (Not that you should have to be, but still.) With marriage -- you're either married or you're not. There's no gray area and no way to be half-married, or married as long as you're careful to keep one foot (or more) in the closet.

Very true. Good point.

But there's no one in charge.

Also true. I was going to say in response to this that the big national organizations like HRC and NGLTF do play a major role in setting agendas and priorities for the broader movement. But then again, if I'm not mistaken NGLTF has made ENDA their top priority for years now. Which neatly disproves my point.

Consider me schooled. 8^)

[JanieM]

UK, I didn't mean to come off as trying to school you. Thanks for taking my lecturing lightheartedly. ;)

*****

Since you mentioned HRC and NGLTF: Andrew Sullivan, of course, never tires of crapping on HRC for precisely that fact -- that ENDA is their top priority and it has been so for years, and it's still not passed. I truly do not pay all that much attention at that level, and I am a far way from taking Andrew Sullivan's word as gospel. But maybe HRC is like the activist whose raison d'etre would go away if the goals were actually reached, and so....

[McKinneyTexas]

You really don't have the right, sitting in your ease and comfort, to look at people crying out for justice before death and say "hey, maybe in ten years it'll be better, but right now I don't think you'll win so you shouldn't even try."

Jes, how many fence sitters has your particular style of suasion brought over to your side? I am thinking not so many. You seem to think it's okay to simply ram things through. And maybe that works in the UK. Here, you get push back. You get two kinds of push back. The first is the predictable backlash from the religious opponents to pretty much any legal protection for gays (how Prop 8 came into being, pushback to judicial fiat). The second is the resentment that many Americans feel when they perceive judicial fiat is shortcutting the legislative process. They don't like it on principle.

The decision set aside a state wide plebiscite. That is no small thing. It holds, effectively, that the citizens of a state may not define marriage any way other than to allow gay marriage. In a democracy, this is troubling, even for some people who support SSM.

You can dismiss the consequences of government by mandamus if you like. Others won't be so sanguine.

[McKinneyTexas]

If given the choice between the tyranny of the majority, and recognizing fundamental minority rights, I'll side with the latter. In the intervening years, the public can go ahead and catch up while people are not being denied. Same thing for the public.

And suppose the tyrannical majority passes an amendment to the US constitution, leaving the definition of marriage up to the several states and expressly withdrawing the "full faith and credit" protections from SSM? You will have won a battle and lost the war. A war that is currently being won in statehouses around the country. Absent a fairly strong and widespread consensus on SSM, this decision could well prove to be a bridge too far.

[Julian]

"The decision set aside a state wide plebiscite. That is no small thing. It holds, effectively, that the citizens of a state may not define marriage any way other than to allow gay marriage. In a democracy, this is troubling, even for some people who support SSM."

Let's imagine a hypo where, before the Loving decision, a state effectively banned interracial marriage by passing a Proposition defining marriage as "between a man and a woman of the same race." Would a court decision compelling the state to define marriage in a way that permitted interracial marriage be "troubling?" If so, why? If it is not troubling, why does the same decision w/r/t SSM trouble you?

I know that Strict Scrutiny and Intermediate Scrutiny haven't yet been extended to laws using sexual orientation as a classification, but is that the basis of your objection?

[Jesurgislac]

Jes, how many fence sitters has your particular style of suasion brought over to your side?

Oh, poor poor you, did I put you off supporting equal civil rights because I wasn't nice to you? Oh well. Guess your support was meaningless.

The first is the predictable backlash from the religious opponents to pretty much any legal protection for gays (how Prop 8 came into being, pushback to judicial fiat).

Yeah, but so what? Bigots will oppose any legal protection for LGBT people however presented. The same kind of Christians are found in the UK flailing madly against civil partnership and arguing they should have the right to discriminate because their religious practice of homophobia overrides civil and human rights for LGBT people. They don't get as far as they do in the US because no major political party needs them enough to get into bed with them the way the Republican Party needs the Christian Right.

The second is the resentment that many Americans feel when they perceive judicial fiat is shortcutting the legislative process. They don't like it on principle.

Yeah. Americans who have never experienced having their rights voted away from them by majority rule resent being told by the judicial branch that, regardless of their beliefs, they've just got to treat everyone equally. So what? Do you seriously think Mildred and Richard Loving ought to have bowed to majority American resentment and given up on the idea of getting married until a majority of Americans thought they should be allowed to?

FWIW, the Founders disagreed with you. Not on these specific cases, but on the general principle: rule by democracy does not mean that the majority get to vote basic rights away from minorities. One role of the judiciary in a democracy is to protect minority rights against majority rule. That "many Americans" resent this ideal that the Founders set up, is why there are checks and balances set into your Constitution to curb their resentment.

It holds, effectively, that the citizens of a state may not define marriage any way other than to allow gay marriage. In a democracy, this is troubling, even for some people who support SSM.

Ah. So the Founders, in your view, got it wrong: majority rule should govern what rights minorities are permitted. If a Protestant majority vote to de-recognize Catholic marriages, you find it "troubling" that a proper judicial decision would refuse to recognize this vote: If a white majority vote to de-recognize marriages between black people, you find it "troubling" that a proper judicial decision would refuse to allow a majority to define marriage as "a relationship only white people can have".

Because for you, it's "troubling" that in a democracy, minority rights can be protected against majority bigotry.

To me, that's not troubling at all. But I guess your trouble over the idea that a majority don't get to decide what civil rights a minority is allowed, is a measure of how little you're actually prepared to support lifting the ban on same-sex marriage.

[Jesurgislac]

An ad based on McKinney's kind of feeling that minorities ought to have to ask permission of the majority before they have the right to marry:

Sinead's Hand

[Jesurgislac]

And suppose the tyrannical majority passes an amendment to the US constitution, leaving the definition of marriage up to the several states and expressly withdrawing the "full faith and credit" protections from SSM? You will have won a battle and lost the war. A war that is currently being won in statehouses around the country. Absent a fairly strong and widespread consensus on SSM, this decision could well prove to be a bridge too far.

*calming down a bit*

It's not my country. Beyond a personal interest in multiple friends who have no legal right to marry and would like to, it's not my business.

But where it is and was my business, in my own country, yes, we lost individual fights and individual cases: we lost rights, we gained them back. Sometimes the forces of evil look impossibly strong. Sometimes they are, and we lost. Sometimes they looked too strong to fight, and we won anyway.

It's up to each individual person to decide for themselves how far it's worth fighting for their rights and what price might be exacted if they lose. But when someone who's already got the rights that others are fighting for, counsels surrender because the forces arrayed against them are too strong, well: why listen? If you were forcibly divorced from your wife by majority vote, McKinney, and told you and she would never be recognized as married again, would you tamely surrender your marriage to the majority vote, and counsel others in the same predicament to surrender because you are sure they could not win?

[JanieM]

In a democracy, this is troubling, even for some people who support SSM.

Even "in a democracy," or at least our democracy, some things have been put beyond the reach of plebiscite. For good reason, in fact precisely the reason we are seeing so well illustrated here (animus toward those who are "different").

So unless you object to the foundational assumptions of our "democracy," there is nothing unusual about having some things kept out of reach of the vote, even though most Americans, especially the ones who want to ensure rights and goodies for themselves while taking them away from people they don't like, are too dim and/or uneducated to understand that, or too self-regarding to care.

Just to get a sense of the territory, I'm curious as to whether "some people" includes you, McKinney. And also, is it just decisions in relation to SSM (or LGBT people in general) that trouble you (or "some people") this way, or is it the general principle of having some things in a democracy placed beyond the reach of plebiscite?

If Tennessee (picking not entirely at random but because of a protest I read about the other day) voted by plebiscite to say that Islam isn't really a religion and therefore doesn't come under the protection of the First Amendment, and a court overturned the vote, would this be "troubling"?

Given that the Constitution is amendable, in theory the entire Bill of Rights could be amended away. Would this trouble you, or the "some people" who are troubled by the possibility that the right to vote away my having the same rights they do might be taken away from them?

I do understand that in a way the current open question is whether LGBT people are the kind of group that has a right to fundamental rights. Though that reasoning in itself is suspect if you ask me.

More later. I haven't had breakfast yet.

[Phil]

Being a straight white male, I will readily admit that straight white male privilege includes being able to safely assume that my fundamental rights will, in all likelihood, never be voted away by a bigoted majority. The difference between me and many other straight white males is that I understand that people who aren't me deserve the same privilege.

[JanieM]

Cross-posted with Jes.

As to Sinead's Hand -- I've seen that lovely ad before, but not recently. Eerily enough, I just dreamed about Ireland (literally, just before I got up this morning)...now you're breaking my heart. I haven't been back in 16 years. Maybe it's time.

[russell]

I appreciate McKinney's call for persuasion and building consensus, rather than having the courts impose a particular reading on the situation.

The problem is that there are a huge number of people in this country who will, quite simply, never be persuaded that being gay is not something that should be actively discouraged, as a matter of public policy.

Lots of folks think being gay is an aberrant lifestyle choice. Lots of these folks know gay people, interact with them, etc. It's not due to lack of information, it's just an article of faith to them, in some cases literally.

They think of being gay is analogous to being a junkie, or to having a fetish for sex with animals, or to be being a pedophile.

What kind of kind of conversation are gays going to have with people like that?

And time doesn't always make a difference.

There are millions of people, lo these 45 years after the Civil Rights act, that think blacks are stupid, lazy, ignorant layabouts who are sucking the lifeblood out of the body politic.

There are millions of people who think that Jews are greedy moneygrubbing parasites who killed Our Lord And Savior Jesus Christ.

Etc etc etc.

If you wait for folks like that to come around, you wait forever. They ain't coming around.

So yeah, it's highly likely this will be appealed, and were I gay this is not the particular SCOTUS I'd like to make my argument before. It could all go badly.

But sometimes you just have to push the freaking envelope, or nothing happens at all.

[Eric Martin]

You seem to think it's okay to simply ram things through. And maybe that works in the UK. Here, you get push back. You get two kinds of push back. The first is the predictable backlash from the religious opponents to pretty much any legal protection for gays (how Prop 8 came into being, pushback to judicial fiat). The second is the resentment that many Americans feel when they perceive judicial fiat is shortcutting the legislative process. They don't like it on principle.

While this argument seems intuitively correct, there have been studies conducted in recent years that seem to disprove it. That is, there is no discernible pushback. Just the same committed opponents opposing the policy in question, though perhaps with more fervor now, but not more fervor than a legislative loss provides.

That is, if they lose at the ballot box, they get fired up in the same way that they do with losses in the judiciary. The differences are negligible.

And suppose the tyrannical majority passes an amendment to the US constitution, leaving the definition of marriage up to the several states and expressly withdrawing the "full faith and credit" protections from SSM? You will have won a battle and lost the war. A war that is currently being won in statehouses around the country. Absent a fairly strong and widespread consensus on SSM, this decision could well prove to be a bridge too far.

Not worried. The Constitution amending process is so onerous, so time consuming and there are so many veto points, that this doesn't really concern me much. Not gonna happen.

[hairshirthedonist]

I think it would be as valid for me to make the argument that McKinney should stop making the argument he is because it makes him sound like a concern troll as it is for McKinney to make the argument that people shouldn't push so hard for SSM because of the risk of backlash.

And, maybe I'm wrong about this, but the risk of a constitutional amendment specifically carving out SSM as a federal matter and leaving it entirely up to the states seems remote enough not to consider it when attempting to determine whether or not to support a current favorable ruling (you know, something that's actually happening in the real world). If such an amendment does start to look like a serious possibility, that's just another fight to be had, something to push hard against if/when it happens.

(I think the "don't be happy about the good things happening right now because they will lead to far worse thing in the future" line of reasoning should be called "Monkey's Paw Arguments.")

[Eric Martin]

Regarding backlash, from a post on Matt Y's site:

In Lawyering for Marriage Equality, Scott Cummings and Douglas NeJaime address this head-on:

Finally, we find that the evidence in support of the backlash account’s causal claim is weak…By focusing solely on court decisions, the backlash thesis fails to account for the influence of nonjudicial factors. Specifically, the legislative push for domestic partnership in California motivated, at least in part, the statutory prohibition on marriage for same-sex couples embodied in Proposition 22. And during their television advertising campaign, Proposition 8 proponents emphasized the specter of same-sex marriage being taught in schools over the fact that the right to marry for same-sex couples derived from a court decision, suggesting that the schools issue resonated more powerfully with voters.

Now, a new report empirically validates this thesis: Prop 8 was almost certainly approved due to false and misleading advertising that had absolutely nothing to do with any sort of backlash against “activist judges.” Cummings and NeJaime also hit on a key point that somehow constantly gets ignored by the process nitpickers: “Opponents were mobilized to place a constitutional ban on the ballot irrespective of the form in which marriage equality was passed.”

In other words, marriage equality opponents use every possible tool at their disposal to advance their agenda, and supporters should do likewise. When marriage equality is mandated via court decision, opponents argue that it should be up to the legislature. When a legislature passes a marriage equality bill, opponents suddenly discover direct democracy. And if a majority of voters in a state eventually do approve marriage equality via ballot initiative, opponents are already geared up to sue on the grounds that they are being discriminated against. Complaints about process are simply a red herring — anti-gay marriage activists care only about results.

http://yglesias.thinkprogress.org/2010/08/the-win-win-nature-of-lgbt-impact-litigation/

[Marty]

"I will readily admit that straight white male privilege includes being able to safely assume that my fundamental rights will, in all likelihood, never be voted away by a bigoted majority"

Oddly, I am not quite so sure of this. It is why I believe that all of the remedies in our system of checks and balances should be available to any minority.

I have had a few seemingly (or actually) insignificant rights taken away over the years*, in various places, that remind me that even straight white males can be part of a minority at times.

*Please don't misunderstand, these don't compare to the topic at hand.

The right to having a good tasting meal in NYC for example(no trans fats). I could also have a drink and a cigarette together in the past, now, not so often. There are probably a few more but, as I said, they are small reminders.

[McKinneyTexas]

So the Founders, in your view, got it wrong: majority rule should govern what rights minorities are permitted.

Jes, this is a weak argument, technically and substantively. The concept of minority rights didn’t even begin to evolve under 13th-15th Amendments were adopted post-Civil War. When those amendments were adopted, and before and well after, homosexuality was a felony. The notion that the drafters of either the Bill or Rights or the 13th-15th Amendments had sexual orientation or SSM in their sights is laughable.

If you were forcibly divorced from your wife by majority vote, McKinney, and told you and she would never be recognized as married again, would you tamely surrender your marriage to the majority vote, and counsel others in the same predicament to surrender because you are sure they could not win?

You are asking the question out of context, at least as it applies to California. SSM was the result of judicial fiat, which predictably produced a backlash, which predictably produced Prop 8. Anyone who married pending the outcome of Prop 8 did so subject to being divorced by plebiscite. It was a risk. My marriage was the product of existing laws passed by the legislature. There was no “notice”, actual or constructive, that the legal underpinnings of my marriage were under attack.

Just to get a sense of the territory, I'm curious as to whether "some people" includes you, McKinney.

It does not. I am in the minority that believes sexual orientation falls under the equal protection clause. The operative word here is minority.

If Tennessee (picking not entirely at random but because of a protest I read about the other day) voted by plebiscite to say that Islam isn't really a religion and therefore doesn't come under the protection of the First Amendment, and a court overturned the vote, would this be "troubling"?

If any state were to outlaw a specific religion by popular vote or by legislative act, it would and should be reversed under long standing First Amendment precedent.

in theory the entire Bill of Rights could be amended away. Would this trouble you[?]

It would trouble me to the point of armed revolt.

Look, I am not saying it will all go to hell in a hand basket, for sure and for certain. I am simply noting that it could, and that the chances of it doing so are not small. There is another direction this could take—still a gamble, but ultimately a happy ending—the Supremes could do a reprise of Brown v. Board of Education and include something akin to “all deliberate speed” with respect to enforcement. The ensuing debate—which is a year or two away—could well be won by SSM supporters. The debate would also serve the salutary purpose of forcing a lot of people to be questioned hard on their bigotry.

You are entirely right, the Constitution is subject to amendment. The failure to pass an amendment overturning such a decision would be a victory.