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

[McKinneyTexas]

1) You care more about our opponents' feelings and sensibilities than about ours, and

I care about a consensus because, lacking a consensus, if the SCt goes with the trial court, the level of resentment, backlash and anger will be significantly ramped up over what it would be otherwise. I care a lot about bringing people around. IMHO, it's best for all concerned and takes a lot of the wind out of the "bitter ender" bigots' sails if, at the end of the day, they are outvoted rather than on the wrong end of a 5-4 decision.

2) You don't in fact respect us as grown-up people who can make our own political calculations, because we have said a gazillion times that our calculations come up with a different answer from yours, and you continue to just repeat yours.

While I would characterize my positions as mostly responsive to others' statements, I have a great deal of respect for most of the people who post here and I certainly respect anyone's right to assess their own interests and act as they see fit.

[McKinneyTexas]

Julian,

Do you deny that a fundamental right can be recognized by the courts? Now, I agree that SSM has not yet been recognized as a fundamental right. However, Interracial Marriage was not recognized as a fundamental right until Loving. I assume you agree that Loving was decidedly correcly.

Not at all. Fundamental rights are identified and expanded by the courts routinely; however, to distinguish Loving and SSM, the fundamental right identified in Loving was for a man and a woman to marry. That right existed in state law. What Loving held was that the pre-existing fundamental right of a man and a woman to marry could not be denied to a man and a woman of different races. The fundamental right was expanded to include race. Yes, Loving was decided correctly.

"It is not the province of the courts to fashion fundamental rights out of whole cloth."

What does this mean? What was it that the court did in Loving, if not fashioning a fundamental right? Would a right to SSM be fashioned out of "whole cloth" if it is based on the Equal Protection Clause?

First, what does creating something out of whole cloth mean? It means making something out of nothing. It's an expression common among trial lawyers--at least trial lawyers in Texas. A whole cloth creation of a right would the opposite of, for example, the right to free speech, which plainly and expressly exists. I am now restating what I tried to say earlier. On the continuum between whole cloth and an express right, there are inferred or complimentary or implied or extended readings of the constitution that lead to or away from additional or expanded rights. SSM is on that continuum. It is probably a bit closer to the whole cloth end, because it requires a reading of the equal protection clause totally out of context with a vast body of law and tradition that run counter to SSM. Still, the equal protection argument has plenty of heft. The plain language of the clause is hard to get around, even if it hasn't been expressly addressed in a modern context with a modern understanding of human sexuality. Clear as mud? Probably. That's me, not you.

Once again, the only majority that is significant in determining whether an issue falls within the Equal Protection clause is a majority of the Supreme Court.

Yes and no. Yes, the High Nine will make the final call on the case we're discussing. The legitimacy of that decision at this time, however, because it is made outside the democratic process, will be IMHO severely undermined, producing all the bad stuff I've previously raised. My hopefully somewhat informed guess is that ten years hence, a different SCt could do what is now being contemplated with a lot less fallout. Again, I'm repeating myself.

You have not responded to any of my prior posts asking you to illustrate how this issue is any different from interracial marriage.

I've tried to in other comments. Basically, Loving was in a long line of cases building off of disparate treatment on account of race. There was precedent for Loving and Loving was limited to a one man/one woman marriage that was otherwise available to everyone except African-Americans marrying outside their race (or with caucasions, I'm a bit hazy) IIRC. SSM was not on the radar screen then in any real sense. Marriage then and since has been defined by nearly every state and federal legislature to be one man/one woman. The analytical gap between the existing paradigm and SSM is much broader than man/woman, black/white. It's not an insurmountable gap, but it's still there. So, I guess my answer is that Loving offers some support for SSM, but the core of any decision will have to be pretty much the plain language of the equal protection clause.

[Nate]

McKinney: What you seem to be missing is this.

Is the outrage of the bitter enders really worth the suffering of the people who are denied the chance to see their sick partner, or to declare their love to the world? Should somebody be told they can't put their relationship on the same level as other people's, just to protect the feelings of the dead-enders? Or, more money-oriented, to share health insurance, tax breaks, and all the other civil benefits of marriage?

Also at question is your assertion that a judicial ruling will create more backlash than a legislation. Examples have been provided of legislation that produced even more backlash (civil rights, health care), judicial decisions that were more controversial but produced more backlash, and the way the same kind of backlash has been created by the opponents of same-sex marriage, no matter how people went about it.

Those are the two primary difference I see that people have with your backlash claims, and I haven't seen you address them very well, if at all.

[Phil]

IMHO, it's best for all concerned and takes a lot of the wind out of the "bitter ender" bigots' sails if, at the end of the day, they are outvoted rather than on the wrong end of a 5-4 decision.

I think what people have been trying to get through to you is that "all concerned" includes all the gay and lesbian people for whom this has a direct affect on their lives -- as opposed to, just for example, you, and me, for whom nothing changes no matter how this plays out.

So for you, or me, to decide what's best for "all concerned" starts to sound a lot like concern trolling, and white male privilege, and paternalism and a whole lot of other stuff that GLBT people are probably sick and damned tired of hearing by now.

[Tony P.]

Concerns about "process" remind me of a joke so ancient that it featured in the 1931 movie Ninotchka -- as an already-ancient joke.

A man at a restaurant asks the waiter for a cup of coffee without cream. The waiter returns a few minutes later and apologizes: "I'm sorry, sir. We are out of cream. Can it be without milk?"

If you chuckle at that joke, you probably see its relevance to this business about "process" versus "substance". If you don't chuckle, you're probaby a female Soviet commissar like Greta Garbo.

--TP

[Julian]

McKT, thank you for responding so thoroughly; I promise I did read the other comments, but I did not think I had seen you address my questions. I am sorry to make you repeat yourself and I will try not to do so again.

I do know the expression creating out of whole cloth, but I clumsily meant to be asking rhetorically, as a way of showing disbelief. I agree that there is a spectrum between whole cloth and completely grounded in the language of statute, I just thought SSM was sufficiently logically inferable from the Equal Protection clause that the phrase "whole cloth" was thoughtlessly dismissive. I apologize, I am not the kind of oaf you thought; I am a different sort of oaf.

"Yes, the High Nine will make the final call on the case we're discussing. The legitimacy of that decision at this time, however, because it is made outside the democratic process,"

My girlfriend took con law with a professor who thinks that the S.C. is, contrary to apparently popular belief, not countermajoritarian, and that they basically try to make decisions that the public supports. I haven't read his book on that view makes some sense, especially since the S.C. doesn't have an enforcement arm.

However, what you say in the immediately above quote seems like a false distinction, because every S.C. decision is made outside of the democratic process; this would/will be no different. However, that's nitpicky, and I see your point about a potential backlash/uproar, I merely disagree that the uproar's intensity, duration, and significance.

Here's what I take to be the plain language of the EP clause:

"nor deny to any person within its jurisdiction the equal protection of the laws."

I know that "plain language" is a tricky phrase, due to wildly different interpretations of it, but I do not see how

"The analytical gap between the existing paradigm and SSM is much broader than man/woman, black/white."

What analytical gap are you referring to? Do you mean claims that SSM does not produce biological children and therefore has no compelling interest in being protected? Compare that with sterile couples. Please do not elide over this point, because it seems to me your only cited constitutional argument (you made many pragmatic and consequentialist ones, and counterfactuals are hard for me). I do know that you agree that the EP clause encompasses SSM, but I do not see any gap at all, and I have not yet read a case for such a gap that was consistent with secular government. Can you provide one or link to it?

[elm]

McKinneyTexas, I would encourage you to re-read Dr King's Letter from a Birmingham Jail (paraphrased by Jesurgislac in this thread 4 days ago).

USian homosexuals should no more wait for a popular majority to recognize their rights than USian blacks 50 years ago. The calls to go slow or to eschew specific non-violent tactics are no more just at this time than in Dr. King's time. The "tragic misconception of time" -- that that progress is somehow inevitable -- is no more true now.

Letter from a Birmingham Jail dramatically changed my thinking on marriage equality from somewhat-squishy support to strong support.

[McKinneyTexas]

Is the outrage of the bitter enders really worth the suffering of the people who are denied the chance to see their sick partner, or to declare their love to the world? Should somebody be told they can't put their relationship on the same level as other people's, just to protect the feelings of the dead-enders? Or, more money-oriented, to share health insurance, tax breaks, and all the other civil benefits of marriage?

The very first thing I said, way back when, was if I was writing the law, none of this would be necessary. I have tried to distinguish between two, and possibly three groups of people who would likely backlash.

Group 1--the Bitter Enders. Screw them. You'll never make them happy.

Group 2--those who just don't yet get it. This is the growing group.

Group 3--people who aren't on board with SSM as a judicially created fundamental right, but who would support SSM (or CU) legislatively. They want their vote to count and they want respect for the electoral process. They are allies, for the most part. The disagreement is on means, not the end.

I care about Groups 2 and 3, for all of the reasons previously stated. I could amplify, but probably wouldn't add much that is really new or change any minds.

Also at question is your assertion that a judicial ruling will create more backlash than a legislation. Examples have been provided of legislation that produced even more backlash (civil rights, health care), judicial decisions that were more controversial but produced more backlash, and the way the same kind of backlash has been created by the opponents of same-sex marriage, no matter how people went about it.

Backlash is unavoidable, to some degree. However much there is will be loud and ugly and will get a lot of play in the media. If SSM is made the law of the land via fiat, the cry will be "Gays don't respect our democracy! Gays short circuited the electoral process! Blah, blah, blah." It will resonate a lot more than getting their (SSM opponents) asses kicked in a fair fight, or even by judicial fiat once a good piece of the country is on board with SSM/CU.

The civil rights example, I think, supports my argument. In addition to the SCt, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed. Within a couple of years, even douchebag Wallace had to change his tune from outright racism to fussing about "busin' little school chillin". It meant the same thing, but the legislative stamp took much of the wind out of the 'blame the courts' argument (that was a busing issue) and the dialogue, the conversation changed in fairly short order.

[Eric Martin]

But McTex, how big is Group 3 really?

To repeat myself, I know of very few individuals in Group 3 (none actually), and I know of no groups of people in Group 3.

And I certainly know of no groups in Group 3 that are large enough to have an impact on this issue.

Simply put, there is no big "process" constituency out there, but rather opponents that use the "process" argument to shroud their opposition in more exalted language/concept.

[McKinneyTexas]

I think what people have been trying to get through to you is that "all concerned" includes all the gay and lesbian people for whom this has a direct affect on their lives -- as opposed to, just for example, you, and me, for whom nothing changes no matter how this plays out.

So for you, or me, to decide what's best for "all concerned" starts to sound a lot like concern trolling, and white male privilege, and paternalism and a whole lot of other stuff that GLBT people are probably sick and damned tired of hearing by now.

Phil, I was expressing an opinion, not deciding anything for anyone. The Prop 8 decision was a big deal. It merits discussion. The option is say nothing, say something and retreat, or take heat. I am fine with heat. Yes, it's a lot easier for someone with no direct stake in the fight to counsel patience. FWIW, I make my living giving advice to people who have to live with the result. How many times do you think I've had clients begin a sentence, "That's easy for you to say . . ."? To me, what's patronizing is to say, "Yes, it's been awful and this is such a happy day. Let's celebrate."

[Nate]

There was more than just the matter of a few years time on the Civil Rights act. There were judicial decisions, massive marches on DC, civil disobedience, the National Guard being sent in to enforce order and police and National Guard sent to protect schoolchildren (Norman Freaking Rockwell did a painting of it!)

As for if the matters of process will "resonate" more than hysterical lies about "schools will have to turn your kids gay and gay people will invade your church and force you to marry box turtles", it looks like we're going to have to agree to disagree, because I see no signs that the "judicial fiat" stuff is anything other than just one more fig leaf to hide behind.

[hairshirthedonist]

Group 1--the Bitter Enders. Screw them. You'll never make them happy.

Group 2--those who just don't yet get it. This is the growing group.

Group 3--people who aren't on board with SSM as a judicially created fundamental right, but who would support SSM (or CU) legislatively. They want their vote to count and they want respect for the electoral process. They are allies, for the most part. The disagreement is on means, not the end.

We agree about Group 1. I just don't see Group 2 or 3, regardless of how big or small those groups are, making that big of a marginal stink over process. Whatever additional backlash there would be, if any, would not outweigh, by a long shot, the benefits of a judicial decision in favor of SSM, IMO. We disagree on that, I suppose. That's about it, really, when you boil it all down. I wrote a more expansive comment this morning in response to Sebastian making the same point, but that's it in a nutshell. I don't just buy your premise, and there's really no way to definitively prove or disprove it. End of story.

[McKinneyTexas]

USian homosexuals should no more wait for a popular majority to recognize their rights than USian blacks 50 years ago. The calls to go slow or to eschew specific non-violent tactics are no more just at this time than in Dr. King's time. The "tragic misconception of time" -- that that progress is somehow inevitable -- is no more true now.

I read it. Thanks for the link. A point Dr. King made was that negotiations would have been the right thing, but that the Birmingham gov't wouldn't negotiate at all and the merchant community lied.

The America of 2010 is not the Alabama of 1963. Houston, Tx has a gay mayor. No one even notices. Dr. King was addressing the issue of why direct action was necessary: because all else had failed and there was systematic violence and oppression orchestrated by the gov't itself against African Americans. Is that a fair comparison of the status of gays in the US in 2010?

[russell]

I am fine with heat.

Indeed you are, sir. You take a pounding with good grace.

Well played, McK.

[McKinneyTexas]

and there's really no way to definitively prove or disprove it. End of story.

Exactly--it's all forecasting.

[John Thullen]

elm:

I agree with you about MLK. But look what happened to him.

regarding concern:

The best, most obvious example of a concern troll (I just looked up "concern troll" because I'm clueless about so many conventions on the internet) was a fellow 7th grader (I was 12; he was 16) too many years ago.

Let's just say he had been held back a few times. Very clever he was, but by the time junior high school rolled around, the school district had decided to give up and let him continue uninterrupted until graduation -- an event we shared -- he was 21 at the time, still four years older than me.

Dr. Tranquil (yup), a wonderful Principal told this kid's story (Richie was in the front row) at the final assembly for our class:

Richie cut school probably at least once a week for years, with new, more imaginative excuses each time.

One day, an overnight blizzard led to the cancellation of the school day, announced on the T.V. and radio. At 5:45 am that morning, Dr. Tranquil's home phone rang and he heard Richie's voice (normally whiny, but this time unbearably unctuous -- imagine a young Ben Stein from "Ferris Bueller's Day Off"), as follows:

"Dr. Tranquil, I'm deeply concerned. Students are missing valuable class time because of this piddly amount of precipitation (I'd say there was a good two feet of snow on the streets). Many of us, dare I say, may fall behind, never to catch up. Doctor, what may I ask, are you going to do about this? May I be of help?"

Which is to say, I don't think MacTX is a concern troll.

I think he's legitimately concerned.

I don't agree with him on process, but not as you might think. In fact, I think the repercussions of this decision, if it stands, along with all of the other Obama grievances of the usual suspects, will be much worse that MacTX envisions.

I mentioned some of the explicit threats above.

My instincts run opposite of MacTX's caution. I hope the decision stands and I want this and about ten other policy items rammed down the goose's throat right up to the elbow.

Threats have been made and the lines have been drawn, he said, in a toned-down sort of way.

On the upside, I think the suspects making the threats are much more cowardly than cowards James Earle Ray and John Wilkes Booth, who at least had the guts to change into street clothes from their jammies and bathrobes before undertaking THEIR cowardly acts.

[McKinneyTexas]

But McTex, how big is Group 3 really?

We won't know until we get there. I think it's going to be pretty big. I think there is polling data on public acceptance of SSM by judicial fiat. I could be wrong on this.

"The analytical gap between the existing paradigm and SSM is much broader than man/woman, black/white."

What analytical gap are you referring to?

You're no oaf at all. The analytical gap to which I refer is that, at the time Loving was handed down, every state had a statutory scheme for marriage: age of consent, dissolution, obligations, elements of a valid marriage etc. Co-existing with that structure was a near universal set of laws that variously made homosexual intimacy either a felony or a misdemeanor. The state law structures relating to homosexuality and marriage were reflected in a wide range of federal statutory schemes and underlying regulatory rules and guidelines. In those days, marriage was good, homosexuality was bad. Very bad. Few, if any, spoke out for gay people. Legally, the only recognition of same sex intimacy was to prosecute and convict.

Also in play when Loving was decided was the fact that Brown v Board, expressly overruling the separate but equal doctrine and further holding that 'equal means the same' with respect to race, was 13 years old and had a considerable body of underlying jurisprudence. Further in play was that the Civil Rights Act of 1964 and The Voting Rights Act of 1965 were on the books and were in force. Equality under the law was the consensus view in the US in 1967 when Loving was decided. Not the overwhelming consensus, but a solid, supportive consensus nonetheless. Loving, in 1967, was a six inch putt, a no brainer. It was unanimous.

Here is the precise analytical gap: there is no corresponding body of statutory and case law for sexual orientation that permits the law to take the next logical step and say that prohibitions against SSM are an outmoded vestige of an earlier, unfortunate and benighted time. If anything, it's the opposite. The last vestiges of the outright prohibitions against homosexual intimacy have only relatively recently been thrown out. For once, in large part due to the following generations' view of equality, society is ahead of the law. And getting more ahead pretty much everyday. But as for a an existing body of law addressing sexual orientation in a positive way, it isn't there. Not yet.

[Ugh]

Loving v. Virginia. It's been awhile since I've read the case. It's very short, people should read it in full.

Richard Loving and Mildred Jeter, residents of Virginia, were married in June 1958 in D.C., returning to Virginia shortly thereafter. That fall a grand jury was convened and charged them with violating Virginia's ban on interracial marriages, a charge to which they pleaded guilty in January, 1959. They were sentenced to one year in prison, which was suspended provided that they leave the state for 25 years. The Supreme Court handed down its decision that the Virginia statute was unconstitutional in June 1967, nine years after their marriage and forced exile from Virginia.

Other than the facts, which seem even more remarkable to me upon re-reading, one pertinent thing about the Court's decision is that not only did it hold that Virginia's statute violated the 14th Amendment's Equal Protection clause, but also the Amendment's Due Process clause. As to the latter, the Court stated (citations omitted):

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. ... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

I don't think the Court has to go too far to re-write that paragraph to read:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. ... To deny this fundamental freedom on so unsupportable a basis as the gender classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious gender discriminations. Under our Constitution, the freedom to marry, or not marry, a person of the same sex resides with the individual and cannot be infringed by the State.

Fairly simple, actually.

[Eric Martin]

We won't know until we get there. I think it's going to be pretty big. I think there is polling data on public acceptance of SSM by judicial fiat. I could be wrong on this.

I'd be willing to look at the polling data.

I've linked to various studies in this thread that cast doubt on that, but I can be swayed by empirical evidence if it's solidly grounded.

[McKinneyTexas]

I'd be willing to look at the polling data.

I've linked to various studies in this thread that cast doubt on that, but I can be swayed by empirical evidence if it's solidly grounded.

I think it depends on what the Supremes do. Like JanieM, this issue's been gnawing on me since early yesterday. I damn near got out of bed and posted around 2 a.m. this morning. I am leaning toward reversal with a bunch of fudge language to the effect, "don't take this to mean discrimination against gay people isn't reached by the equal protection clause, blah, blah, blah" essentially inviting other, less controversial cases to come up first before invalidating the mass of state and federal laws that do discriminate. IOW, I don't see a sweeping change, but I don't see the door being slammed shut either. Just me playing with my crystal ball. In public. Damn.

[nous]

McTX -- Backlash is unavoidable, to some degree. However much there is will be loud and ugly and will get a lot of play in the media. If SSM is made the law of the land via fiat, the cry will be "Gays don't respect our democracy! Gays short circuited the electoral process! Blah, blah, blah." It will resonate a lot more than getting their (SSM opponents) asses kicked in a fair fight, or even by judicial fiat once a good piece of the country is on board with SSM/CU.

Back to the substance of my earlier questions. You state here that "the cry will be..." and that "it will resonate more..." This is undoubtedly true. However, since you have identified three groups the question here is not whether your assertions are true, but whether any of them hold for anyone outside of the first group. Hence all the calls for you to identify an actual group that holds these positions so that people can evaluate how big a group this is and the motivation that they have for refusing to recognize a person's right to marry based solely upon process.

I think the actual splitting point here is over your categorization of this third group of people concerned with process.

Nate characterizes the argument that this group is making as a fig leaf and I can see why. I think that opposition to acknowledging same sex couples right to marry via judicial means and preference for CU legislation actually marks a group of people who are fine with same sex couples but who have all sorts of problems with them being given equal access to adoption, (or to any formal federal recognition that might make children question their parents moral opprobrium over homosexuality as a lifestyle, or any one of a host of other incremental sticking points that point precisely to the "moral disapproval" issue that Judge Walker ruled insufficient grounds). The process argument allows these conflicted, well-intentioned bigots to parcel out rights in a way that lets them withhold the ones they are uncomfortable with giving to gays (and which no one would dare withhold from any het couple) while still giving them the appearance of being progressive and noble. After all, they are *for* gay couples, just not for anything as radical as allowing bad gay couples the freedom to abuse their rights the way that bad het couples can.

At least that's how I see it.

[McKinneyTexas]

nous--how many voters in the US are over 70? How many more voters will there be in 10 years? How many people have had their views on SSM evolve over the years to becoming in favor (there is polling data on this one)? What is likely to happen to stop this progression? The trends are very favorable. But, I am so backed up at work, I have to lay down my keyboard and get back to making a living.

[Julian]

McKT, you say:

Also in play when Loving was decided was the fact that Brown v Board, expressly overruling the separate but equal doctrine and further holding that 'equal means the same' with respect to race, was 13 years old and had a considerable body of underlying jurisprudence. Further in play was that the Civil Rights Act of 1964 and The Voting Rights Act of 1965 were on the books and were in force. Equality under the law was the consensus view in the US in 1967 when Loving was decided. Not the overwhelming consensus, but a solid, supportive consensus nonetheless. Loving, in 1967, was a six inch putt, a no brainer. It was unanimous.

It seems like you're saying that for Perry to be decided like Loving, Perry would need a precedent like Brown, but it doesn't have that. The closest we have to supporting precedent is Lawrence, where Kennedy pretty explicitly excluded (based on my reading about the decision, I have not read his opinion myself) SSM from what he considered constitutionally protected conduct.

However, the call for laying more precedent seems besides the point to me. I'm sure Brown cites precedent aplenty, but on civil rights issues, a court will have to eventually bite the bullet and be the Prime Mover if the plebiscite has eroded what the court recognizes as a fundamental right (I know that SSM has not yet been, and we only know how 8 of the justices will vote on it). As you said, when Brown was decided, it propagated a large body of supporting jurisprudence which laid the groundwork for Loving (a six inch putt). Why can't Perry be a new groundwork-laying case? How will we get an existing body of law without a first step towards creating it?

Also, I can't think of anything that sounds more separate-but-equal than "domestic partnerships." Was S-b-E ruled as being discriminatory only when applies to race?

[McKinneyTexas]

Why can't Perry be a new groundwork-laying case? How will we get an existing body of law without a first step towards creating it?

Also, I can't think of anything that sounds more separate-but-equal than "domestic partnerships." Was S-b-E ruled as being discriminatory only when applies to race?

Perry might be that case that gets the ball rolling. See my and my crystal ball's self gratification not too far above. But it will be a relatively slow crawl. Legislatures and state supreme courts will act more promptly and a lot of the momentum for the ultimate result will come from state action (my forecast).

As for CU's being separate but equal, maybe so, but maybe not. I'd bet on 'not' IF the state's are required to afford identical substantive rights, albeit under another name. Labels normally don't carry a lot of weight legally if the underlying effect is indistinguishable. I am with marriage because, having hung around here awhile, I have the advantage of seeing up close and personal the importance to people of being treated exactly the same. Not everyone out there has that advantage.

[nous]

McTX -- how many gay couples who would like to be able to marry the loves of their lives are over 70 or will have died over the next decade without being able to exercise their right to marry the person of their choice while waiting for begrudging, incremental change?

[McKinneyTexas]

Nous, having Jes' trenchant reminder to consider, I am sure the number is significant, but even if it is small, what happens in a decade is small comfort for those now in their last years or even those with many years to live. Not wearing those shoes, I can only imagine. I refer you to the very first words I wrote.

[hairshirthedonist]

Hence all the calls for you to identify an actual group that holds these positions so that people can evaluate how big a group this is and the motivation that they have for refusing to recognize a person's right to marry based solely upon process.

I think the actual splitting point here is over your categorization of this third group of people concerned with process.

I'm going to repeat what I wrote earlier with added emphasis, particularly in light of the idea of using polling data to make the point on backlash.

We agree about Group 1. I just don't see Group 2 or 3, regardless of how big or small those groups are, making that big of a marginal stink over process. Whatever additional backlash there would be, if any, would not outweigh, by a long shot, the benefits of a judicial decision in favor of SSM, IMO.

It's really not a question of how many people will favor or not favor a judicial ruling as opposed to some other process. It's a question of how much they will act upon their opinions. How many people will be so bothered by the process that they will actively discriminate against homosexuals or same-sex couples moreso than they otherwise would?

Why should same-sex couples who want to marry or their supporters care if some number, any number really, of people simply don't like a court decision in favor of SSM? That's all a poll is going to tell you. And even if there is some marginal difference in backlash because of process, the question is whether or not the gains are worth accepting that additional backlash, not that whether or not there will be additional backlash.

Italics!!!

[McKinneyTexas]

It's really not a question of how many people will favor or not favor a judicial ruling as opposed to some other process. It's a question of how much they will act upon their opinions. How many people will be so bothered by the process that they will actively discriminate against homosexuals or same-sex couples moreso than they otherwise would?

Yes, these are all unknowns. Here is a worst case scenario, with a very low probability IMHO: Perry is affirmed 5-4, all state statutory and constitutional anti-gay marriage structures are stricken and either a constitutional convention is called or an amendment gets through the house and senate and goes to the states. It passes and SSM is dead. Worth the risk? Not for me to say.

[Eric Martin]

Worth the risk?

Yes.

If there existed that level of anti-homosexual animus in the country, then there was really no risk at all since homosexuals didn't stand a chance until a massive, multi-decades sea change anyway - which will come about in a few decades.

But that is not the case. Heck, even 70% of Fox News viewers (!) are against Constitutional amendments banning SSM.

[Catsy]

either a constitutional convention is called or an amendment gets through the house and senate and goes to the states. It passes and SSM is dead

You are aware of what's required in order to amend the Constitution, right? Nagunnahappen. Not now, and probably not ever, not with support for SSM steadily climbing year after year.

Seriously. If you really think this is a plausible worst-case outcome, let me know which 75% of the state legislatures are likely to support this--after you clear the supermajority hurdle in both houses of Congress or the 2/3 of state legislatures necessary to call a convention.

This is a worst-case scenario with approximately the same level of probability as Democrats repealing the 22nd Amendment and electing Barack Obama president for life.

[Sebastian]

"Simply put, there is no big "process" constituency out there, but rather opponents that use the "process" argument to shroud their opposition in more exalted language/concept."

Do you believe that is true among liberals when they cite process too? They do it a lot. Is it just a function of conservatives to have skeptical process objections?

[Jesurgislac]

McKinneyTexas: Group 3--people who aren't on board with SSM as a judicially created fundamental right, but who would support SSM (or CU) legislatively. They want their vote to count and they want respect for the electoral process. They are allies, for the most part

Ah. They're your allies, maybe. That may be what confuses you: they're on your side, and in a fuzzy, comfortable, someday-it's-gonna-happen-but-I-don't-want-to-have-to-deal-with-it-now kind of way, you think you're on our side.

But you're actually an opponent. As noted in Letter From A Birmingham Jail: the kind of Nice Guy(TM) opponent who likes to think well of himself, but is in no way to be counted on as an ally. And that's you. You want to think of yourself as an ally?

Be an ally. Quit being one of the NiceGuy(TM) opponents, or at least quit trying to claim that your buds are our allies just because you like and respect them more than you like and respect queers.

[hairshirthedonist]

Do you believe that is true among liberals when they cite process too? They do it a lot. Is it just a function of conservatives to have skeptical process objections?

I didn't know liberals were complaining about process with regard to the Walker ruling.

[JanieM]

I have been out since lunchtime and this conversation has been so present in my thoughts that I was writing notes on a newspaper as I drove down Route 1. (Carefully.) I see by a quick glance that the thread is still going and that McKinney hasn't gotten too fed up to continue, so I want to start by thanking everyone, but particularly McKinney. The dialogue (multilogue) is fascinating, challenging, frustrating, and deeply satisfying all at the same time.

I am going to toss in the thoughts behind the notes I was taking in the car before I catch up on the reading and give myself a whole new slew of thoughts to ponder. It will probably be clearer with several separate comments.

More to come.

[JanieM]

Responsibility:

I am not responsible for what that bulldozer driver decides to do if I stand up after I've been knocked down. The image is a cartoon, of course, and comically oversimplified; in reality we're talking about millions of people's opinions, hopes, fears, dreams, intentions, decisions, and plans, and I'm really not responsible for all that. All I can be responsible for in the end is me. Like everyone else, I'm always trying to make the best decisions I can, but I absolutely refuse to take the blame for other people's sh*t. If we try for SSM now and we don't get it yet, that will not be my fault. It will be the fault and the responsibility of the people who want me to remain a second-class citizen.

Also: in terms of risk analysis in relation to the timing of the SSM campaign, the political calculation is not about politics alone; it never is nor can it ever be. Especially, it isn't and couldn't with any integrity be only about manipulating the reactions of opponents (or proponents, for that matter). Besides strictly vote- and law-related considerations, there are also considerations of honesty, respect, self-respect, and integrity that come into play. There comes a point when -- making our best assessment based on everything we know and anything we hope we can predict -- we just have to say: Time to stand up. The next move is theirs.

[JanieM]

Crystal balls:

McKinney thinks that in a decade or so, the majority in the US will be on our side. McKinney doesn't know this, no one can know this. McKinney also thinks that by trying to move too fast, we are likely to make things worse instead of better. But McKinney doesn't know this, either, he's guessing to pretty much the same extent that anyone else is.

There is also no way to measure what the cost would be of waiting. The best we can do is inform ourselves and make the best guess we can of the risks and potential costs and benefits of the paths we might take.

Even if the worst-case scenario comes to pass (leaving out a nightmare descent into violent fascism again), and the Supreme Court upholds SSM and we then find ourselves with a Constitutional amendment outlawing it, there is still no way to know whether the situation might not have been even worse if we had done nothing. Doing nothing would have violated our own self-respect, dignity, and integrity, for one thing, but we also -- McKinney included -- have no way of knowing what other societal currents might have intervened to turn public opinion in an unexpected direction.

We just can't know. So we just do our best.

[JanieM]

I said here a few months ago that I believe we should be more careful to distinguish between rights in the abstract, and codified rights that we have some way of defending. Or to put it another way, we can talk all we want about rights as an abstract concept, but in practical daily life we don't have any rights that we don't have the firepower to defend.

Now I want to get at something a little different from that distinction. I have assumed all through this thread that McKinney does not believe that rights are more truly rights if the majority believes they are rights; that he is only talking about the extent to which people will go along with recognizing rights, however they have been established as rights that our legal system supports. So if McKinney really believes that rights aren't rights until the majority supports them, what follows is irrelevant.

I am imagining the law firm of McKinney, Olsen, Boies, and Bonauto.">http://www.glad.org/about/staff/">Bonauto. MOBB, if you will. Or maybe it's Bonauto, Olsen, McKinney and Boies -- BOMB. Take your pick. ;)

(Also, I know zip about how law firms operate in real life, so maybe my question isn't going to be answerable as asked.)

I'm asking McKinney: Suppose Olsen, Boies, and Bonauto were your law partners. Olsen and Boies are well-known, one might even say highfalutin lawyers. Mary Bonauto has devoted her life to civil rights issues and "was lead counsel in Goodridge v. Dept. of Public Health, which resulted in the Massachusetts Supreme Judicial Court declaring that prohibiting civil marriage for same-sex couples is unconstitutional." She is also on the GLAD legal team that's challenging DOMA.

Suppose you four partners had been talking about whether to bring the Prop 8 case for a long time. Suppose, as in real life it looks like would have been the case, the other three felt that it should be brought, and you didn't. Suppose you operated on a simple majority vote, and you lost. If your three partners wanted to go ahead with the suit and you didn't, presumably you would have plenty of other things to work on, so you wouldn't actually have to be part of the legal team challenging Prop 8. But you were still a law partner of the people who were.

You would go along with your own cases, but how would you behave toward your partners? Would you wish them well? Would you give them useful input if you had areas of expertise that might be valuable to them? Or would you just keep after them with your opinion that they were doin' it rong, and you had every intention of continuing to remind them of that fact even though they were going forward with the case?

I ask about this (perhaps silly) hypothetical for two reasons.

One is: maybe things have changed this afternoon, but I'm not sure you've heard a lot of the things I (and others) have been saying in respose to your doom and gloom and disapproval about the timing of the SSM campaign: the fact that no one can predict the future; the fact that no one is in charge, but rather we're moving along with the incalculable effects of the decisions of thousands of people; the fact that this isn't just about narrow political or legal goals. I'm just wondering if you would respond differently to actual partners in a situation where your opinion had been overruled in relation to a decision to bring this lawsuit.

The other is: Olsen and Boies are (sort of) famous lawyers. They are probably reasonably intelligent, and I doubt you would want to suggest that they know less about the law (or about American politics) than you do. Mary Bonauto has spent her entire working life on these issues and might be assumed to know something about it, and also about the politics surrounding the legalities.

Now, Olsen and Boies may just be grandstanding and Bonauto may be too close to the situation to see straight, since she's a lesbian. But if we tentatively assume that the first two are acting in good faith and Bonauto is a sharp and competent lawyer, then we have a situation where three very good lawyers are coming to one set of conclusions and one other very good lawyer is coming to another set of conclusions.

I understand that this happens a lot in real life, and that in a way it's why we have lawyers in the first place. But I'm really curious as to what you think these three (particularly Olsen and Boies, since this thread is about the Prop 8 case) are missing. Are they stupid? Deluded? Operating out of ulterior motives of some sort? Or are they just calculating the odds differently, or reading the public mood differently? I'm really curious to know what you think, this isn't meant to be a trick question.

[JanieM]

Me: Can anyone name me one unfettered fundamental right?

McKinney: The right to believe.
The right to carry a child to term.
The right to notice and a hearing in a criminal proceeding.

Again, maybe this has been touched upon; a control-f finds many further instances of the phrase "fundamental right." So I'll catch up on my reading later.

Meanwhile, I was in my own fuzzy non-lawyerish way thinking about Constitutionally protected/defined rights in particular. Are these three on that list?

Does the Constitution say we have a right to believe, as such? It seems to me to be at the level of a tautology, since we don't have mind-control technology yet and anyone can believe anything they want, and say they don't. To pass a law saying that people had to believe some particular thing would be like passing a law saying that pi=3.14. Good luck with that.

As for the third, it seems like our last and present presidents are chipping away at this one, but I'm not qualified to go on with that topic, so I won't.

As to the middle one: Is there case law about a woman's right to carry a child to term? (I googled "the right to carry a child to term" and wow...what do I get but a lot about "the right to carry..." you know what. I'm not going there either.)

[JanieM]

So if McKinney really believes that rights aren't rights until the majority supports them, what follows is irrelevant.

I see that I'm still not being clear. Hopefully it's obvious that I agree that if the majority vehemently doesn't support something, to the tune of a Constitutional Amendment, then however much we might believe we have that right in the abstract, we don't have it in practice.

[JanieM]

Finally -- for now -- I want to turn in the other direction and mention that I on my side have actually been listening to McKinney in a way that might not be obvious from my argumentativeness, and that there is a level at which I agree with some of what he is suggesting, though I don't agree with all the conclusions he draws about how to go forward.

I am not unmindful of the need to take thought for how other people see the world that we all have to share. My life's greatest teacher was a guy named Danaan">http://www.earthstewards.org/ESN-Danaan.asp">Danaan Parry, who was, among other things and not all at the same time, a Coast Guard helicopter pilot, a physicist, a counselor, and a citizen diplomacy and conflict resolution teacher/leader. Danaan also spent decades practicing aikido, and many of the things he taught in his workshops were framed in aikido terms. (For all you martial artists in the commentariat.) (Several of the people I consider my great teachers had their foot in both caps: physics and New Age foo-fa. Balance is a wonderful thing. ;)

Danaan said a lot of things that function as part of my own personal ten commandments suggestions, and one of the most profound and challenging was this:

You have to make it safe for the other guy to make it safe for you to tell your truth.

I've tried. I still try, sometimes and in some ways, though I'm angrier and more despairing (at least about human nature and our prospects for living peaceably together) than I used to be.

But I'm not the Dalai Lama ("Poor Chinese, they make such bad karma for themselves"). I'm not saintly, or very patient. And as the years have gone by I've decided that if I can't stand up and say it's my world too until I'm a saint -- and I can't support political campaigns until everyone involved in them is a saint and omniscient to boot -- then I might just as well go sit on the beach til I die.

I spent a lot of time in Danaan Parry's world (I think of it as "conflict resolution and weekend group therapy") during the years when I was coming out of the closet in the broader world (i.e. not just among my friends). In fact, Danaan's workshops helped me find the courage to do that.

In those days I was more idealistic than I am now; there was actually a time when I thought that making it safe for the other guy to make it safe for me to tell my truth was the fastest way to get where I wanted to go. But the more I (and we all) came out of the closet, the more some varieties of homophobia also came out of the closet, and the more I learned just how messy the real world can be.

At this point, what I see is that not very many people operate on the assumption that "you have to make it safe...," and I'm not Archimedes with a lever that can move the whole world. I think Ugh's press release would be the more likely result of the Civil War never having been fought, and I think there's some parallel there with the need to get on with this business of insisting on the fact that it's my world too regardless of how much of the voting public is ready to accept that fact.

In other words: for better and worse, I'm not on the beach.

[Phil]

people who aren't on board with SSM as a judicially created fundamental right, but who would support SSM (or CU) legislatively. They want their vote to count and they want respect for the electoral process. They are allies, for the most part

Ugh. A position that can be encapsulated as, "I'd like for you to be able to get married, but only if I can give you permission, not if they give you permission," is not alliance. It's arrogance combined with some perverted notion of noblesse oblige. "If I don't get to bestow this privilege on you, you can't have it."

It's like Ralph Fiennes deranged Nazi commandant in Schindler's List, discovering the notion of mercy, and granting it on a lark, then shooting its recipient anyway.

[Ugh]

The worst case scenario I can see to the Court upholding Walker's ruling is that (a) it is made in June 2012 (which seems to be the correct timing) so that (b) it swimgs the presidential election to whatever creature the Republicans nominate for the Presidency that year who then (c) appoints a justice or two that are reliable pro-sex discrimination votes on the court on this issue and (d) such a newly configured Court overturns the 2012 precedent in june 2015 (or perhaps 2016), in which case we return to where we are today except (I) the trend towards popular recognition of SSM has another 6 years behind it (II) tens (if not hundreds) of thousands of gay marriages have been performed without the heavens falling, both making congressional action prohibiting the states from re-enacting bans on SSM highly likely.

Not sure what the current Court would do, and it will probably have a new member or two before it even hears the current case on appeal, but if it does uphold Walker's ruling my bet would be that that would be the end of the matter legally.

[Eric Martin]

Do you believe that is true among liberals when they cite process too? They do it a lot. Is it just a function of conservatives to have skeptical process objections?

To the extent that liberals argue that they don't oppose right X, but only oppose right X when it is guaranteed by the courts, rather than by legislative act, then yeah.

Or even that they oppose right X, and that it's particularly egregious that right X was guaranteed by court decision, not legislative act.

[McKinneyTexas]

If your three partners wanted to go ahead with the suit and you didn't, presumably you would have plenty of other things to work on, so you wouldn't actually have to be part of the legal team challenging Prop 8.

Using this quote, I will try to address your overall post.

First, as caveat-ed below, I would back my partners. That's what partners do as a general rule.

Second, I would make the point privately to them that the thrust of their case is to overturn, in one single, judicial fell swoop a huge body of popularly voted-in anti-gay legislation and state constitutional amendments. If successful, the blow back would be fierce. (Yes, I continue to chew on this and refine my own thoughts) Here is my take on Americans: first and foremost, they collectively value the right to vote. They have a vague concept of judicial review, but in the collective mind, the courts are a distant third, and not a co-equal branch of gov't. The president is a big deal, for most Americans. So, you throw out state law in 35-40 states, it looks to the average person like an end run around democracy, like their votes don't count. They don't get that on a fundamental right, in fact, no one's vote counts. So, the blow back would be partially anti-gay (can't cure bigotry, at least not very easily) but mostly anti-end run. Perception is reality, for the most part. Once I said my piece, I'd be in for the ride with them.

You are also entirely correct that this is a very dynamic situation with the potential for all kinds of shifts and movements. One potential silver lining is that the Perry decision will have the true bigots, the one's with a national presence, out foaming at the mouth at the speed of light. It seems to me that every time one of these yahoos tees off, five or six individuals wonder if maybe he/she isn't actually nuts after all.

Now, you also asked about me and how lawyers roll when confronted with potentially divisive, controversial issues. The answer is: it depends.

Until late '99, I was the de facto managing shareholder in a 40 plus lawyer firm. Not huge, but not the 6 person shop I run today either. Our forte was civil trials and collectively, we tried far more civil cases annually than pretty much any firm in town. For a number of personal and professional reasons, I was not happy at this firm. I was on the bubble about leaving in the fall of '99 when it was announced that a certain state legislator would be joining the firm. This prick was totally in the pocket of certain business and anti-lawsuit groups and his coming on board was one of two tipping points that put me over the top. I started my own shop on Feb. 1, 2000.

So, the general rule is to support your partners, but if the issue matters enough, you have to go with what you think is right.

But, to be completely honest, my views on SSM in 2000, pre-ObiWi, pre-Jes kicking my ass, were just beginning to change from archaic to coming around slowly. No personal animus toward gay people individually, I just didn't see any reason why two people of the same sex should be allowed to marry. Obviously, this was not a well thought out position and it was obviously wrong. I know a lot of people who felt that way then, who feel the opposite today. Which is why I am optimistic about the future.

But I'm really curious as to what you think these three (particularly Olsen and Boies, since this thread is about the Prop 8 case) are missing. Are they stupid? Deluded? Operating out of ulterior motives of some sort? Or are they just calculating the odds differently, or reading the public mood differently?

I am no mind reader, but my best guess is it's a combination of (1) a different perspective and (2) they probably followed the Prop 8 campaign much more closely than I did and they were probably so pissed off and offended by the bigotry and the lying that they did what good lawyers do when they get really angry about something: they decided to kick over the table and shoot out the lights (I kind of imagine Boies and Olsen getting a bit of a load on, getting really angry and saying to themselves, "we gotta do something, this is bullshit", but that could just be me projecting--most of my really good ideas, along with my really bad ones, are alcohol-induced).

One the three unfettered rights: there aren't many rights that are truly unfettered, because most rights, if taken far enough, run over someone else. Your question was fascinating and so I tried to think of as many things as I could that I cannot imagine a court ruling were not rights. Your point about notice and hearing is valid and I should qualify that by saying it is presently such a right when applied to domestic crimes. Unfettered for some, but not for all. So, probably not unfettered.

Big day today on a tough case. Gotta run.

[cleek]

my bet would be that that would be the end of the matter legally.

i think the GOP would love to keep the issue alive by pretending to want to pass the Federal Marriage Amendment.

[hairshirthedonist]

most of my really good ideas, along with my really bad ones, are alcohol-induced

Let me know if you're ever going to be in the Philly/South Jersey area. We should hang out.

[JanieM]

Thanks, McKinney.

I'm still thinking about all of it (natch), but I still haven't caught up from yesterday and am finding myself busier today than I expected.

Maybe we can pick up the thread (so to speak) later...we'll see. I just didn't want to let your lengthy reply go unacknowledged.

[McKinneyTexas]

Let me know if you're ever going to be in the Philly/South Jersey area. We should hang out.

Absolutely. My son is in Morristown NJ. I'll try to get up there. I'm in Houston. Drop in anytime.

Maybe we can pick up the thread (so to speak) later...we'll see. I just didn't want to let your lengthy reply go unacknowledged.

Understood and very kind. JanieM, it's always good to exchange views with you. Always.

[liberal japonicus]

A harbinger of change

[JanieM]

From here:

CNN's latest poll, in the wake of the Walker decision, is easily the most promising to date for those of us in support of marriage rights for all. For the first time, a slim majority of all Americans backs not just marriage, but a constitutional right to marriage for gay couples.

Heh.