Happenings

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One other thought about civil unions....

Civil unions have some major issues legally:

1) They are allowed only state by state. They may not include all the rights and priviledges of marriage (separate and UNequal).

2) Since they are state by state, they are not portable from one state to the next, as marriage is. If you move, you could loose your civil union (separate and UNequal).

3) They are not (and I assume never will be) honored by the Federal Government, which will disallow the 1,059 federal rights and priviledges of marriage to same-sex civil unions that is currently offered to marriages anywhere in the US (separate and UNequal).

How do you deal with these issues? The Constitution (unless we neuter and hack it to death), does not deal well with separate and UNequal by it's very nature. Bill at February 28, 2004 05:41 AM
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Bill,

The point of this law would not be to prohibit gay marriage. It would be to return the issue to the legislature and take it away from the courts.

If you think that the approach used by Vermont, Massachusetts, and San Francisco is the right way to go I think you are crazy - it stands a good chance of leading to a constitutional amendment that bans gay marriage for the next hundred years or longer. - Mike at February 28, 2004 10:36 PM
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No, I'm not saying that the way things are going is crazy. But you have to realize that if gay couples wait for popular vote in this country, we will never (NEVER) have equal rights to everyone else. And that is wrong! This country simply should not be about second-class citizens.

Blacks finally did get equal rights (after riots and a lot of bloodshed and lynchings). We have been waiting for 6 years in Connecticut for the legislature to even consider hearing us. They won't. Why? Not because it's not the right thing to do, but because they don't want the heat.

This is exactly what happened in Massachusetts. For ten+ years the speaker just wouldn't bring it to the floor. As a last resort, the state was sued. We tried to go through the constitutional process. The question is, if the legislatures will not act on an issue because of their own bigoted opinions on the subject, what recourse other than the courts do gay couples have?

Also, the amendment would not only prohibit gay marriage, it would also prohibit civil unions and domestic partnerships from happening. Read it very closely. - Bill at February 28, 2004 11:10 PM
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Bill,

Gays aren't second class citizens. And, in fact, gay marriage is a misnomer - two gays can get married as long as one is male and one is female, just like heterosexuals.

I know that isn't what you want but just because you want something that doesn't mean that a state constitution mandates it.

You are right - it will take a long time to get state legislatures to legalize same sex marriage. TFL - you are living in a democracy. If you try to push this through using undemocratic methods you're going to get a Constitutional Amendment stopping same sex marriage and civil unions until you can get it repealed which will be much harder than passing a law. - Mike at February 28, 2004 11:55 PM
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"Gays aren't second class citizens. And, in fact, gay marriage is a misnomer - two gays can get married as long as one is male and one is female, just like heterosexuals."

Do you have any idea how insulting that comment is to the relationship that I have had with my life partner for the last 28 years? I DON'T WANT TO MARRY A FEMALE. I DON'T HAPPEN TO BE IN LOVE WITH A FEMALE. Geez. I'm gay, get it? I wouldn't want you to marry a guy either. It's not that difficult of a concept to grasp.

We are second-class citizens because we can't marry the person we love, or does marriage no longer have anything to do with love?

Let's talk about marriage and what it has become. I have no interest in dictating to any religious body what their beliefs should be. In fact, if our government started demanding that say, the Catholic Church must now perform gay marriages when it was against their belief, I would have a huge problem with that. Church and state should be separate.

Unfortunately, the Federal Government along with the states decided to give benefits to this religious institution of marriage. At that point, marriage also became a civil institution and bound by the equal rights process demanded from the Constitution. The bottom line is, marriage on the civic level is now a country club with a membership status. You must be heterosexual to get in. I don't understand why this is so difficult to understand. You say we are living in a democracy. You are right. But, in a democracy, the sword cuts both ways! You can not be truly democratic if you create a second class of citizen and deny then rights and privileges that others receive, without some way of appealing that.

Let's talk about the "radical" judges on the Mass. Supreme Judicial Court. They simply put a shot across the bow, if you will. They told the legislature to get off it's collective ass and DO IT'S JOB! That doesn't mean that they have to come to the same conclusion as the court did. It means that we have to have due process and at least the CHANCE TO BE HEARD. In other words, they have to REPRESENT US. We didn't even get that. All of this could have avoided if the Mass. legislature didn't drag it's feet on this issue for over 10 years.

At any rate, as I've posted in my blog on many occasions, it really doesn't matter at this point. Actions have been set in motion and I have no idea how they could be stopped. At this point, this will take on it's own life. Bush will try to push the constitution amendment (which is nothing more than a smoke screen – also covered in my blog). It will fail to go anywhere, at least for a few years (assuming he keeps his office - he has a lot bigger issues than gay marriage). It will become a very divisive issue in this country and a lot of ugly things will probably happen.

We will fight for these rights because it is the right thing to do. Now, if the Federal and state governments want to strip away every single benefit afforded to marriage, I will sit down and shut up. - Bill at February 29, 2004 12:20 AM
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Bill,

It is established law that you do not automatically have the right to marry who you want. For example, this applies to cousins in many states and brothers and sisters in all states.

Moreover, you are incorrect that you need to be heterosexual to take advantage of the legal benefits of marriage. Many homosexuals through the ages have married people of the opposite sex.

You also appear to be unclear on the meaning of the word "democracy". Same sex marriage's existence or non-existence has no relevance to whether we are a democracy. You have always had the same ways to appeal legislative decisions you do not like that everyone else has - political organizing, protests, and voting.

You are incorrect about what happened in Massachusetts. The Massachusetts court has stated that only one conclusion is acceptable - same sex marriage.

Finally, I think you are incorrect about the prospects for an FMA. I think you underestimate the anger that is brewing over the way this decision is being forced on the American people by the judiciary rather than being settled by the people's elected representatives. - Mike at February 29, 2004 12:41 AM
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"You are incorrect about what happened in Massachusetts. The Massachusetts court has stated that only one conclusion is acceptable - same sex marriage."

Yes... in their interpretation of the Massachusetts Constitution, that is the conclusion they came to. I'm truely sorry that some find that decision wrong and distasteful, but that is democracy for you; it may just not turn out the way you want it too. President Bush doesn't seem to like what judges rule, unless of course they are determining who wins a presidential campaign.

I'm very clear on the anger that is brewing over this decision. It would not surprise me if there were riots in our future, or even some people died. That would be very unfortunate and tragic.

But you underestimate the power of freedom and equality, once it is realized by a marginalized group who have long since been discriminated against through the ages. This is a fact. I'm not some whiny liberal who is bitching and moaning about how much better life could be. We are past that. We are coming into an age that people are going to demand equality. There are simply some in our society who want to pick and choose who can have that freedom. That is not how democracy works. So, it's going to get nasty. This is out of our power or will at this point. It has a life now.

"San Francisco files suit to challenge the constitutionality of the state's discrimination against gay couples in marriage. There is nothing illegal about this. But it opens a whole new front in the legal and constitutional fight for equal marriage rights. Not so long ago, I thought I had a handle on this movement. But now it has a life of its own. When freedom begins to emerge, its momentum is hard to stop." - Andrew Sullivan - Bill at February 29, 2004 03:19 AM
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Bill,

I think you and I have different ideas about the role of the judiciary. You seem to have the idea that it has something to do with being our conscience, doing the right thing, protecting rights and freedoms, etc.

I have a much simpler view. The judiciary's responsibility is to interpret the constitution and the laws hewing as closely as possible to what was meant by their authors.

Your expansive view of judicial power may certainly gain you some advantages when judges you agree with are appointed, but what will you say when judges who are violently anti-homosexual start making equally activist rulings?

I think everyone is better off keeping this fight in the legislatures, not the courts.

If you demand "equality" from the legislature that's fine - that's their job. It is not the job of the Massachusetts Supreme Court.

I also think you underestimate the extent to which the methods being used to promote gay marriage are alienating people who would otherwise not really care.

For example, although I oppose gay marriage it really isn't very important to me - I care much more about taxes, gun rights, etc. If the legislatures of Massachusetts or California legalized gay marriage I would not be happy but I certainly would not support cluttering up the US Constitution with the FMA.

However, I violently oppose allowing judges to make these decisions. If the only way to roll back these decisions is an FMA then I will support it. Not because gay marriage is so important but because the principle of legislative, not judicial, rule is so important and because a Constitutional Amendment would be a ringing slap in the face to those who thought that they could achieve their goals through law making judges instead of through their elected representatives. - Mike at February 29, 2004 04:52 PM
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"Your expansive view of judicial power may certainly gain you some advantages when judges you agree with are appointed, but what will you say when judges who are violently anti-homosexual start making equally activist rulings?"

They have. Have you read Bowers vs. Hardwick (1986) in which the Supreme Court of the US ruled that homosexual citizens did not have the same right to privacy as everyone else. Last year, the court reversed it's ruling (the sodomy case).

I felt lousy about it when they ruled against gay citizens, but I accepted it. How do you think President Bush would have felt if the judges ruled that he did not win the presidency? Do you really think he would have taken that lying down?

I'm not going to beat this debate to death, because everything I have to say on this topic has been talked about extensively on my website (http://billandkent.com). Blacks did not achieve equality by waiting for the legislatures to do the right thing. It finally happened - after riots and extreme activism. Lives were lost and ruined. Was it worth it? Was freedom worth it? I suspect this may well turn into the same thing. We will not sit in the back of the bus any longer. That is all this is about.

The fact of the matter is, gay marriage will happen because freedom and civil rights are not negotiable, unless of course, you want to change the Constitution to make that so. If that happens, I will relocate to Canada, because the US will no longer represent the land of the free. It will have become something less.

Gay marriage may not mean that much to you. But it should. Beyond all the rhetoric about gays being able to get married is the very essence of freedom and equal civil rights. That should mean everything to you. - Bill at February 29, 2004 10:53 PM
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Bill,

Same thing... the ruling that gay sex is constitutionally protected is more judicial activism.

Privacy had never been held to make any desired sexual act legal. For example, anal sex, oral sex and bestiality were illegal in many states.

I would really appreciate it if you could point to the particular clause in the Constitution that you think protects gay sex.

Anyway, I disagree with you that "same sex marriage is the very essence of freedom and equal civil rights". You would have a point if states tried to prevent gays from marrying anyone. However an orientation-neutral rule that all marriages must be between a pair of opposite sex parties is just that - neutral. - Mike at February 29, 2004 11:06 PM
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Lawrence et al. v Texas

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

U.S. Constitution, 14th Amendment, Section 1 (in part): No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Seems to me that the Supreme Court has made it pretty clear and that your disagreeing with at least five people who know a lot more about the law than either of us. And as for judicial activism, think back to the early 1950s. Blacks in many parts of the United States were taught in schools that were "separate but equal." Legislatures in many states thought that was just fine, but in 1954 some "activist" judges considered cases arising from Kansas, South Carolina, Virginia, and Delaware. In their opinion they wrote "We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does" (Brown et al. v. Board of Education of Topeka et al., 347 U.S. 483). Was it wrong for courts to decide that racial segregation was wrong?

As for your "orientation-neutral" rule, how about a "race-neutral" rule that says white people can only marry white people and black people can only marry black people, or a religion-neutral rule that says Catholics can only marry Catholics and Protestants can only marry Protestants? Or, to make the analogy even better, suppose we said that Jews are free to marry as long as they choose to marry a Christian?

If that seems fanciful, consider this: Until 1967 the State of Virginia made it illegal for blacks to marry whites. In June of that year more "activist" judges considered whether "a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment." Their decision? "For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment" (Loving et ux. v. Virginia, 388 U.S. 1). I'm sure a vote in the legislature or a referendum among registered voters would have supported the ban. Was it wrong for an "activist" Supreme Court to point out that the ban was contrary to the clear meaning of the Constitution? - Bill at March 1, 2004 01:04 AM
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Lawrence et al. v Texas
Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

U.S. Constitution, 14th Amendment, Section 1 (in part): No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Bill,
Mind explaining to me how this invalidates a law banning oral and/or anal sex?

I agree with you that the Justices of the Supreme Court know more law than you and I put together but do you really believe that they were basing their decision on the law instead of what they thought was right?

As for your other examples, let me point out that at the time the Supreme Court laid down those decisions the country was already moving in the right direction - the various Civil Rights acts followed soon after. The Court, by short circuiting democratic debate and making many manifestly illegitimate decisions arguably stiffened resistance to integration and slowed down racial equality rather than speeding it up.

You might want to read Abner Mikva's comments on the political effect of the Court's abortion law rulings for an analogous case.

The Court's rulings also left us with a bunch of very difficult precedents. For example, decisions based on Brown still threaten black colleges and have been used to invalidate segregated programs designed to keep young black men in school.

The Constitution is an imperfect document written over 200 years ago by a bunch of rich men, many of whom were slave owners. It would be stunning if it said all the things that we would like it to say.

In the places where it doesn't the solution is legislation, not creative judges who can read something that is not there. - Mike at March 1, 2004 09:55 PM
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How does the 14th amendment invalidate sodomy laws? “The case [Lawrence v. Texas] does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government” (Justice Kennedy delivering the opinion of the court in Lawrence v. Texas). That certainly sounds to me as if the Court based its decision on the law.

And I’m afraid your appeal to history doesn’t work. The Voting Rights Act was passed in 1965 and the Civil Rights Act was passed in 1964 – more than ten years after Brown v. Board of Education. Even the Montgomery bus boycott, sparked by Rosa Parks’ refusal to give up her seat to a white man on December 1st, 1955, came more than a year after the decision in Brown v. Board of Education was announced (May 17, 1954) and almost three years after it was initially heard (December 9, 1952). Brown v. Board of Education preceded many of the most important events in the civil rights movement in this country.

Even if the country was already moving in the direction suggested by Brown v Board of Education when it was decided, do you really want to argue that the Court should have decided that “separate but equal” is just fine and let legislators vote to undo segregation? Are you willing to claim that it was wrong for the Court to write that “Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment - even though the physical facilities and other ‘tangible’ factors of white and Negro schools may be equal” (Brown v. Board of Education)?

As for your contention that “The Constitution is an imperfect document written over 200 years ago by a bunch of rich men, many of whom were slave owners. It would be stunning if it said all the things that we would like it to say,” here’s what Justice Kennedy wrote in Lawrence v. Texas: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

The Constitution is an astounding document precisely because its principles still hold and allow “every generation [to] invoke its principles in their own search for greater freedom,” even though it was “written over 200 years ago by a bunch of rich [white] men.” - Bill at March 3, 2004 09:44 AM