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May 14, 2004

Comments

Edward:

I share your joy at what looks likely to be the advent of same-sex marriage in MA next week.

Portland OR has ALREADY legally married over 2300 same-sex couples - but new marriages are on hold pending OR Supreme Court appeals. And the state court has ruled that these already performed marriages must be recorded and accepted by the State of Oregon.

But, I think your statement quoted below goes further than I think you intended, or would intend after more reflection:

"They should not have to lose anything so that I can gain something."

Those opposite-sex married people saying their marriage is somehow devalued should not be felt sorry for, IMO. This is just political/religious theatre for the largest part.

If many years ago men said that somehow their vote was now stained because women had gained their voting rights, their crocodile tears weren't worth carrying about.

When people gain rights, others rights are NOT diminished. This is NOT a zero-sum game.

For those who say same-sex marriage interferes in sacred religious affairs, we should respond by pointing out that marriage is a civil matter, authorized and performed under the auspices of elected public officials , state constitutions and state laws.

No church is forced to perform same-sex marriages, or to recognize them.

I think you know that there is lots of hypocrisy involved by many, but certainly not all, of those who oppose same-sex marriage. For instance, Randall Terry, the fierce opponent of gay everything, has his own issues to deal with.

Massachusetts has shown (in a closely divided state assembly and state senate) that the battle for an ever-expanding vision of human rights attracts a strong-contingent of heterosexuals in support of the American creed of "equal justice under the law".

May 17 is my birthday, and I couldn't be more pleased to have gay marriages legal somewhere in the U.S. starting then.

But I am not thrilled with how we got there. This is an important issue. This is a very important issue. But not all important issues are constitutional issues, and this one--even in the Massachusetts constitution--definitely is not one. For reasons which I think are obvious, even opponents of change in the U.S. end up accepting it more easily when it goes through the democratic process of legislatures. I suspect that like Roe v. Wade provided the charge to create a politicized Christian Right movement, this judicial activism will do the same. The saddest thing is that by choosing the most divisive method, these proponents of gay marriage have hastened it by I would suspect a couple of years. But it is likely that they have set into motion a re-energizing of the uglier parts of the Christian Right which had been fading in power for 10 or more years.

For reasons which I think are obvious, even opponents of change in the U.S. end up accepting it more easily when it goes through the democratic process of legislatures.

I could not agree more, in theory. As much as I have to lose personally by delay, I support a systematic legislative resolution here over any other. But I'll still be very happy for those couples who tie the knot in Mass come Monday.

Oh, and Happy Birthday! (Should have known, as stubborn as you are, that you're a fellow Taurean). ; )

Sebastian:

I agree that legislated broadening of civil and equal rights issues are preferred.

Historically this has rarely happened without courts first examining and deciding that previous practices violate those precious rights embodied in the US Constitution.

It's often said that majorities of voters could be marshalled to repeal most of the rights granted in the Bill of Rights.

Our Constitution's fathers understood that majorities can be oppressive. So they created a separation of powers arrangement that provides for courts to determine whether protected Constitutional rights have been violated.

Since Marbury v Madison over 200 years ago, the law is what the courts say it is. This tradition is older than the US, and was the backbone of the British unwritten constitution for centuries.

Change brings resistance. This week we celebrate the historic and unanimous Supreme Court decision in Brown v. Board of Education that declared that previous law and court rulings permitting separate but "equal" education was no longer permissible.

There was substantial opposition to Brown v. Board, but individuals, groups, and public officials.

But few today would say that this non-legislated decision was wrong, or that it would have happened if we depended solely on legislated action.

I'l accept some civil strife in the cause of enlarging our freedoms. It has been, and is today, the right thing to do.

I neglected to mention that my BD is May 16. So happy BD to you, Sebastian, and to all other Taureans as well.

Those opposite-sex married people saying their marriage is somehow devalued should not be felt sorry for, IMO. This is just political/religious theatre for the largest part.

You may be right Jim. I hope it's only theatre. Friends of mine who were married in San Francisco said they were totally unprepared for the emotional reaction they had to the event. They've been committed for ages, but they admitted that going down to be married was first of all a way to support the effort. It wasn't until they were standing their, exchanging vows, that it hit them how joyous they would feel about it. Other couples tell me that they were shocked at themselves as they broke into uncontrollable sobs of joy, a huge emotional weight they never knew they were carrying, lifted off their shoulders through their ceremony.

God grant all the couples that wed in Massachusetts a similar relief and joy.

Edward:

I've read and heard of many stories of joyful same-sex marriages both here in Portland and in San Francisco (my home until Nov. 2003). One of the gay members of the web team I led at a big corporation in SF was married in SF. Officers of the corporation (a public utility) had a reception for all those who were married.

Here in Portland, the first marriage was presided over by a retired State Supreme Court justice.

In both SF and Portland, the most amazing thing to me was the very unexpected reaction by the vast majority of non-gay people. Those standing in line outside the county building were constantly greeted with car-horns and thumbs up by passing motorists. Heterosexuals brought flowers and snacks to those in line.

Freedom gets bigger the more we increase those who are free. And everyone can feel it, and benefit.

"Since Marbury v Madison over 200 years ago, the law is what the courts say it is. This tradition is older than the US, and was the backbone of the British unwritten constitution for centuries."

I don't agree with this AT ALL. It is completely wrong about US Constitutional history and it is even more wrong about how common law worked. Common law is related to customary practice. It came from judges trying to regularize the customs of legal dealings between people. It did so by adhering to the common understanding of how things worked in the past. Common law practice is an awful justification for changes in the law.

The Constitution was written down for a reason. It has an amendment process available to make changes. It lets lawmakers make social changes in certain frameworks. If we think something new is important enough to be constitutional we should use the process. Finding judges who like you is a subversion of the process which can be easily used by your political opponents. And after we have ruined the process how will we complain that it isn't fair to find judges who will ignore the text and support their own political agendas? And let us not pretend that gay marriage is anything but new.

The Civil Rights Act was at least as important as Brown v. Board of Education. And the Civil Rights Act was passed through normal channels, against great opposition, but it passed. If we can't do that with gay marriage what right to we have to pretend that it is real social change? How many times to we have to ignore the Constitution before ignoring it will come back to bite us?

And I do mean us. I've started dating again. Someday I might want to utilize gay marriage. But I don't see the need to subvert one of the best political systems in the world to get it a few years earlier.

In case I forget it then, Happy Upcoming Birthday Sebastian.

But I don't see the need to subvert one of the best political systems in the world to get it a few years earlier.

Not all people have that much time, Sebastian. I'm patient, but others have fewer years left. I don't say that justifies bucking the system, but it explains some of the civil disobedience.

Good luck with the dating btw. : )

"and to all other Taureans as well"

Hoo-ah. Apr 27.

it's a virtual astrological stampede

Sebastian:

Please re-read my first four paragraphs in my post directed to you. I like laws. I also like freedom from oppression.

I'm not a lawyer, but I've watched closely since college days (Pol. Sc. major). Rather than argue the law, here's another example.

Years before Row v. Wade, the US Supreme Court ruled in a CT case that there was a right to privacy in the Constitution, although not explicitly. The case involved a state law forbidding the sale of condoms even to married people. The court ruled that the state could not enter into this area of person's lives: their privacy.

Hard to believe that contraception was illegal in many places in the US. It took this ruling to make it legal. No legislature acted on this matter. Was the court correct? At the time it was controversial. Today most people would laugh at the thought that condoms were illegal.

Remember however, that some powerful religious groups would argue that it should be illegal, because it violates their religious doctrine. That was the original power behind the Connecticut anti-condom law.

Courts are there to protect (and enlarge, when necessary) the rights of individual people to be free, particularly to not be oppressed by majorities willing to impose their will on minorities.

It is clear you believe in freedom. The history of landmark cases in US constitutional law shows that sometimes freedom can ONLY be enlarged by courts interpreting and protecting our rights.

The Civil Rights Act was at least as important as Brown v. Board of Education. And the Civil Rights Act was passed through normal channels, against great opposition, but it passed.

I completely agree, but I haven't yet seen you (or others who've made similar arguments) address this point: do you think the Civil Rights Act would have passed without Brown v. Board of Education? And even if so, would it have passed in anything like the same time-frame?

Atta boy, Ararch!

Have a beer or drink on me. And don't forget your condoms.

Have a beer or drink on me.

Way ahead of you: my semester ended two days ago ;)

Wow, color me bullish, April 25th....

This explains a lot.

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