Marriage and Constraint

Here's another conservative (or, in this case, neoconservative) case for gay marriage, from neocon Joshua Muravchik:
A substantial fraction of people feel carnal affinity exclusively or primarily with individuals of the same sex. Insofar as their sexuality is to be channeled it cannot be toward the goal of procreation. If society has a general interest in the constraint of the sexual instinct, then it has an interest in encouraging long-term monogamous relations regardless of whether one ostensible purpose is to bear offspring. ... The claim that we defend marriage by disallowing it to homosexuals is a non sequitur. Could it not equally be argued that we reaffirm the importance of marriage by making it available even to couples who have not traditionally had this opportunity?
And a libertarian argument (no talk here of "constraint of the sexual instinct") from Sheldon Richman:
Marriage has never been exclusively about procreation. If that were so, couples that were infertile, elderly, and uninterested in having children wouldn't have been allowed to get married. Many other values have been at the core of marriage: economic security, love and emotional fulfillment, and more.
Richman also takes on the objection that courts shouldn't overrule public referendums or legislatures, explaining:
It seem clear that if government exists, then there is nothing wrong with courts thwarting the public or the legislature when either oversteps the limits we hope are set for government and violates liberty.
Neo-cons and libertarians don't agree on much, so it's interesting to see these two finding their own way to argue in favor of same-sex marriage. In other words, marriage equality-it's not just for progressives.

Air

There's one big difference between the Ninth Circuit's order granting a stay of Judge Walker's decision and Judge Walker's opinion deciding that the decision should go into effect: reasons.

Walker's order is a brief 11 pages, but it sets out the four standards for issuing a stay, and then tests the arguments the Prop. 8 proponents made against those standards: Do the parties who want the stay have a good chance of winning on appeal? Will they be harmed - irreparably harmed - if the stay is not granted? Will other parties also be substantially injured? Is a stay generally in the public interest?

Eleven pages isn't a lot in the legal world, but Judge Walker does take each of these and argue why he thinks the proponents do not make the grade. Anyone can read his ruling and decide if they agree or not.

By contrast, the Ninth Circuit's order consists of two pages, with a single eighteen-word sentence devoted to the stay: "Appellants' motion for a stay of the district Court's order of August 4, 2010 pending appeal is GRANTED." The rest of the order sets an expedited briefing schedule for the first round of the appeal, specifically focusing on the question of standing.
And that's how gay equality proceeds. The people who support us are happy to lay out the reasons why, and engage a debate. But a whole lot of others are content not having to explain themselves. That, in fact, is the best answer to our arguments: silence or sidestepping.

The Ninth Circuit judges don't have to explain themselves in such hurry-up orders, of course, and they are obligated to set out their reasons once they get to the appeal itself. But for right now, we have once again found ourselves stopped short, armed with arguments unresponded to, just hanging in the air.

Targeted Protests

I can understand why Target Corp. would want to donate to politicians who support a pro-growth agenda and oppose the sort of job killing regulations, confiscatory taxation and anti-growth spending that aims to grow unionized government at the expense of the private sector. Unfortunately, many fiscal conservatives are also social conservatives and oppose legal equality for gay people.

That may describe Minnesota gubernatorial candidate Tom Emmer, a Republican who, as a legislator, supported amending the state consitutution to ban same-sex marriage. When Target donated to an independent political fund supporting Emmer (Best Buy did so as well), activists groups went into protest mode, including the Human Rights Campaign (HRC) and Moveon.org. According to one gay media report:

Activists angry at Target for supporting an anti-gay marriage gubernatorial candidate in Minnesota are pressing on with their protests after the company apologized.

The Minnesota-based retail giant apologized last week for contributing $150,000 to MN Forward, an independent political fund supporting anti-gay Republican Tom Emmer. Emmer clinched the GOP nomination for Minnesota governor Tuesday.

In a memo to employees, Target CEO Gregg Steinhafel wrote that he continues to believe that a "business climate conducive to growth is critical to our future," but added he had not anticipated how the donation would affect its employees. "And for that I am genuinely sorry," Steinhafel wrote.

Of course, if Emmer were a Democrat who opposed gay marriage it's doubtful that HRC would be targeting Target, given that HRC has itself supported the campaigns of candidates such as Virginia's Sen. Jim Webb, a Democrat who favors keeping "don't ask, don't tell," as well as a great many Democrats who oppose gay marriage to varying degrees. Maybe HRC should target itself?

That being said, it's probably good to send a message that businesses that donate to candidates opposing legal equality for gay people are going to be held to account. Whether the protests should continue after the donors subsequently apologize, in an effort to get them to cough up more funds for LGBT groups and their favored causes and/or to keep activists in the news and gin up their fundraising operations, is debatable.

On that matter, consider that the gay conservatives at GOProud are out and proud about violating the boycott by LGBT activists and unions of the Manchester Grand Hyatt in San Diego. Doug Manchester, the owner of the hotel, was a financial supporter of California's anti-gay-marriage Prop. 8. Manchester subsequently issued a statement saying "I am sorry for the pain and conflict I have caused and would like to take this time to apologize, clarify my views on the matter and share some background on Hyatt's long-standing and commendable support of the GLBT community" (it's quoted in the link above).

Again, I think there is value in protesting businesses that support opponents of gay equality. But at this point, GOProud believes the ongoing boycott has all to do with unions opposing the fact that Manchester's hotel remains non-union, and I suspect the group is right.

Changing Times

Last year, conservative superstar Glenn Beck said some truly stupid things about gay marriage, such as claiming it would lead to polygamy. Which is why it is so startling now to hear him refuse to condemn gay marriage, even as Bill O'Reilly tried to bait him into doing so:

O'Reilly: You are ignoring the profound change in the American family. ... Do you believe that gay marriage is a threat to the country in any way?

Beck: A threat to the country?

O'Reilly: Will it harm the country?

Beck: [Mockingly] Will the gays come and get us? I believe that Thomas Jefferson said if it neither breaks my leg nor picks my pocket, what difference is it to me....

O'Reilly: So you don't. That's interesting. I don't think a lot of people understand that. ... Ok, gay marriage to you, not a big threat to the nation.

Beck has become more libertarian as he educates himself, and apparently now sees attacking gay marriage as needlessly divisive. A growing number of conservatives (though clearly not Bill O'Reilly and Cal Thomas) recognize that beating the anti-gay drum drives away independents whose support is needed to roll back the gargantuan, deficit-skyrocketing (see here and here) expansion of government (and government mandates) under Obama, Pelosi and Reid. And that's a positive development.

More. David Boaz cast as critical eye on Cal Thomas and his fulmination against freedom.

The New Roe v. Wade?

In a Wall Street Journal op-ed, Berkeley law professor John Yoo takes issue with Judge Vaughn Walker's ruling that California's ban on same-sex marriage is unconstitutional. Yoo says that he favors gay marriage as a matter of policy, but that:

Federalism will produce the political durability that supporters of gay marriage want. If states steadily approve, a political consensus will form that will be difficult to undo.

Consider, by contrast, abortion. Roe v. Wade (1973) only intensified political conflict at a time when the nation was already moving in a pro-choice direction. That decision...poisoned our politics, introduced rounds of legislative defiance and judicial intervention, and undermined the neutral principles of constitutional law.

I don't disagree that relying on courts, rather than the political process, to advance our rights carries the risk of a backlash, and certainly Jon Rauch strikes a similar note in his recent column on the California ruling.

But I suspect abortion and marriage equality really don't resonate on the same level among most conservatives, apart for the hard-core religious right. Consider Glenn Beck's interview with Bill O'Reilly (discussed in my last post), in which Beck refused to label gay marriage as a threat and quoted Thomas Jefferson that "if it neither breaks my leg nor picks my pocket, what difference is it to me." But when O'Reilly asked him about abortion, Beck responded, "Abortion is killing, you're killing."

For most people who oppose marriage equality, their unease over giving a stamp of approval to gay relationships (and by that they mean gay sex) just isn't in the same league with stopping the abortion mills that result in the murder of unborn babies, sometimes just before birth and at taxpayer expense.

Gay Marriage Fight a Setback for Transgenders?

There is a sad story in the paper about a transgender woman in Texas, Nikki Araguz, who is being barred from collecting the death benefits of her husband, a firefighter killed in the line of duty. Her late husband's mother is arguing that Ms. Araguz was born a man and that since Texas defines marriage as the union of a man and a woman, the marriage is void and she has no rights to spousal and survivor benefits.

In many jurisdictions transgender people are legally the sex they've transitioned to and have been able to marry someone of the (now) opposite sex. What's interesting about this story is that a transgender activist is decrying the confusion between the rights of transgenders and the fight for marriage equality for gays:

Shannon Price Minter, legal director for the National Center for Transgender Equality, said the national push for gay marriage has unintentionally hurt transgendered people and resulted in cases like this.

"I think it's very unfortunate that, perhaps because of the visibility of lesbian and gay couples seeking marriage, that transgendered people have been caught up in that frame and have been hurt by that and have actually, in some respects, are more vulnerable now than they have been in the past," he said. "I think it's really only in the past few years that we see pretty ugly cases like this coming up because people are, I think, exploiting homophobia."

Okay, but who was it that insisted that transgender people be conflated with gays and lesbians under the LGBT rubric, if not transgender activists?

Bought and Sold

Two prominent articles today - one from the NY Times and one in Politico - get right to the core of the problem that minorities face in a democracy. In the NY Times, Lou Cannon offers an interesting view of how Perry v. Schwarzenegger could play out in the gubernatorial race in California. At Politico, Maggie Haberman reports on how the national GOP is avoiding gay marriage as it focuses on the economy as its primary theme. In trying to attract independent voters, gay marriage and other social issues might be a distraction. Larry Sabato, from the University of Virginia sums it up: ""I don't think that moderates and independents get very excited about this."

What neither article discusses - or even mentions - is the question of whether gay marriage is a good thing or a bad thing; whether the constitution's guarantee of equal treatment of the law should apply to same-sex couples or not; whether heterosexual marriage will be affected by same-sex marriage; or any other of those nit-picky little issues that gays keep harping on.

For writers whose focus is politics, that's not too surprising. But that is exactly what the equal protection clause exists to address. In a universe of issues that affect people generally, it is easy for a majority (and in the case of heterosexuals a majority of unprecedented size) to not have much interest in how the law treats a very tiny minority. The economy affects every one of us irrespective of sexual orientation, and that is certainly what this upcoming election is about. That's how politics must work.

But it is not so easy - it is, in fact, virtually impossible -- for the minority to set aside its interest in its own rights until a better time comes along. America is at the stage where moderate and independent voters hold the political balance of power for gay rights. They have the luxury (their own rights not being affected one way or the other) to focus on bigger issues. Or bigger issues to them.

But for lesbians and gay men, the lack of equality we face in the law, and specifically the lack of legal recognition for our marriages, is a very big deal. We have fought for our role in society, and have taken it even as some continue to oppose even our simple, open and proud existence as fellow Americans. We are different from the majority in one thing, sexual orientation, but as varied as everyone in everything else. We have not been given anything, but have had to argue and convince and cajole every step of the way, armed with nothing but the facts and justice and pride and the promises in the Constitution. And we have had successes.

The Constitution guarantees that we have every available opportunity to make our case to the public, and to our elected representatives. But it also recognizes that for a minority - and specifically for a minority that many people simply refuse to accept as having any moral worth - the purely political burden may be unfair. The majority may have other things, what they view as bigger things, on their minds, and may not "get very excited" about the fight for equal treatment. If they feel they have nothing to lose, and nothing tangible to gain from a debate over the rights of the minority, their wishes (which, to democratically elected politicians, are a command) will predominate. If a discussion of gay marriage won't benefit a majority of people politically, then politicians won't bring it up.

That is itself evidence of our progress, of course. During George W. Bush's presidency, the discussion of gay marriage was, indeed, politically profitable, but the profit was for those seeking to keep marriage a restricted club. Today that calculation is a wash. A marriage will be valuable in some states and some districts, but as the Politico article notes, there are places where the benefit will accrue to politicians who oppose same-sex marriage, and there are places where it will accrue to our supporters.

But I hope heterosexuals can read these two articles and perhaps see what it feels like to be a political chit as part of your existence as an individual citizen. To politicians, and to political writers, our rights are a commodity, have a value that can be discussed in the abstract and with a sharp eye for the market. This is certainly not slavery, but it does make you understand what it's like to be bought and sold.

The Right Marriage Question

Andrew Sullivan's Dissent of the Day questions this observation from Judge Walker:

"Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage."

This is (the writer argues) nonsense, since there were no such eras, unless you are talking about all of recorded history up to the late 20th Century.

That's true, but it misses the point. Here is the more salient conclusion from the opinion:

"The evidence did not show any historical purpose for
 excluding same-sex couples from marriage, as states have never 
required spouses to have an ability or willingness to procreate in
 order to marry. Rather, the exclusion exists as an
 artifact of a time when the genders were seen as having distinct
 roles in society and in marriage. That time has passed."

The proponents of Prop. 8 want to focus exclusively on justifying heterosexual marriage, but the court was being asked to decide something else. Heterosexual marriage is not at issue in this case. It will continue with or without a decision in Perry v. Schwarzenegger, or any other case. No one is challenging heterosexual marriage.

The relevant question is this: Are there reasons, historically or in the present, to exclude same-sex couples from marriage? That is both a different question from the one most people are accustomed to asking, and a vital one for the constitutional analysis of the issue lesbians and gay men are facing.

The U.S. Supreme Court has long held, very explicitly, that the constitution recognizes a fundamental right to marry. But that can be viewed in at least two ways. First, it could mean the right to marry someone of the opposite sex. That would be a right that only heterosexuals could exercise meaningfully. "Fundamental" in the constitutional sense, means that the government cannot interfere with the right's exercise except for the most compelling reasons. If the right is exclusive to heterosexuals (because it is not just "the right to marry," but "the right to marry someone of the opposite sex") then voters or legislatures can exclude homosexuals from exercising the right.

But it can also be viewed as the courts have actually stated it: a fundamental right to marry. Period. The question is whether the phrase, "someone of the opposite sex" is inherently included in the right.

That was what Judge Walker's opinion was examining. Marriage between heterosexuals has been taken for granted for all of recorded history, not because anyone ever made a decision to exclude homosexuals, but because no homosexuals had the visibility or political strength or will to even try. It was not until the late 20th Century when lesbians and gay men were able to become visible and politically active enough to challenge even laws that made them criminals -- the obvious first priority. And that task is accomplished.

Now is the time to ask the marriage question -- but it needs to be the right question. The anti-marriage forces have been enormously successful in keeping the focus on heterosexuals, and off of homosexuals. The political battles over same-sex marriages are battles focusing on heterosexual grievance, anxiety and privilege. Homosexuals do not play any role onstage in the fight against same-sex marriage. The Prop. 8 campaign was a classic example of an argument of, by and for heterosexuals.

Political battles can be over anything, or nothing. That is the nature of politics. But when it comes to some rare things that are important enough to be set out in our collective aspirations, known as the Constitution, real and substantial justifications are required along with a vote. Fundamental rights cannot be taken away by majority vote. And the equal protection of the law, by definition, cannot be abridged by a majority of any size.

Perry v. Schwarzenegger is the first opportunity in a federal court for exploring and answering that kind of question. No one is asking whether heterosexuals have to defend their marriages. They don't. The question - the only question - is whether there are reasons to exclude homosexuals from that vital and deeply human institution.

Opponents of same-sex marriage had every opportunity to offer any such reasons. And any one would have done. But in the end, they continued their pathological focus only on themselves, and failed to answer the question they were being asked.

Facts Machine

Here's the only really striking thing about Judge Vaughan Walker's opinion in Perry v. Schwarzenegger: Its 136 page length includes 108 pages of facts -- 108 pages of dry, straightforward, meticulous, and ordered citations to the evidence in the trial.

It might be easy for a layperson to misunderstand that. This is not a sexy opinion. There are no rhetorical fireworks, no forging of new and creative legal theories, no soundbite-worthy quotes, and not a trace of grandstanding. This is a very competent and workmanlike opinion from a trial court judge who was doing his job.

That job is to (1) allow both sides ample and fair opportunities to present the facts in the dispute; (2) determine which are the most credible and relevant facts, given the existing law on the subject; and (3) apply those facts to that law in order to reach a decision about which side should prevail.

Mission accomplished.

Most people will focus on this as a legal opinion, but that isn't its strength, and it shouldn't be. Trial judges are primarily there to gather the facts, not theorize about the law. Despite temptations from some excellent lawyers who know their way around the caselaw, Judge Walker didn't accept any offers to kick the tires on novel and edgy legal theories. Instead, he relied on longstanding federal constitutional law - specifically that old workhorse, the Fourteenth Amendment -- and applied it in the most modest way possible, using the most generous standard available to the proponents of Prop 8: they only had to show that there was some rational basis for the voters to distinguish between same-sex couples and opposite-sex couples. Any rational basis would do.

The proponents had every opportunity to build their case over the many months of discovery, depositions, witness-preparation and actual testimony at the weeks-long trial. Virtually all of their evidence is laid out in those 108 pages of facts.

And it isn't much. In fact, at one point one of their lawyers simply said they shouldn't have to present evidence, shouldn't have to come up with actual facts to support their case.
Contrast that with the plaintiffs challenging Prop. 8, who brought forward a small battalion of witnesses, both civilians and experts, introduced what we can only imagine to be millions of pages of documents and depositions, hours of video and taped recordings, and enough motions, counter-motions, memoranda and oppositions to memoranda to - well, to win their case.

And in a nutshell, that's where we now stand as a nation on the issue of same-sex marriage. Those of us who support same-sex marriage not only believe we are right, we are making that case based on evidence in the world around us. Those who oppose same-sex marriage deeply believe they are right and have always been right, and have a very hard time comprehending that they actually have to defend themselves. Where is the need for evidence, for facts?

But what they have historically taken for granted is now in question. Yes, marriage has always been understood as being between one man and one woman (with biblical polygamy confusing this simplicity), but why? What is it about marriage that makes it an unsuitable - to some, an unimaginable - legal and social institution for same-sex couples?

During all those centuries when no one asked these questions, no one ever needed to answer them. But we are asking the questions now. And under the rules that govern our country - under the constitution - we have charged the courts with providing the forum to provide the answers.

Judge Walker's opinion does exactly that, and not a thing more. He opened the court - our court - to both the proponents of Prop. 8 and its challengers, and let them do the best they could to answer the questions we may not have asked in centuries past, but have a profound need of asking now.

Anyone can read those 108 pages (though few will), and find little to criticize there. The only criticism from same-sex marriage opponents will be the bottom line, the conclusion that there really isn't a rational reason, today, for the law to treat heterosexual couples as a favored class over homosexual couples.

Perry v. Schwarzenegger lays out all the reasons offered, and each one erodes under the steady drip of the evidence that was presented. In the end, all that is left is fear and superstition about homosexuals. Those are things that can motivate voters, but the constitution does not credit them as justifications for the law.

Judge Walker: A Reagan Appointee, Opposed by Progressives and Gays

The Cato Institute's David Boaz blogs that Judge Vaughn Walker, who just struck down the California ban on same-sex marriage, is no "San Francisco liberal" (as some marriage equality opponents are claiming). In fact, "progressives" and gay activists fought his appointment. As Boaz writes:

Judge Walker was first appointed to the federal bench by President Ronald Reagan in 1987, at the recommendation of Attorney General Edwin Meese III. ... Democratic opposition led by Sen. Alan Cranston (D-CA) prevented the nomination from coming to a vote during Reagan's term. Walker was renominated by President George H. W. Bush in February 1989. Again the Democratic Senate refused to act on the nomination. Finally Bush renominated Walker in August, and the Senate confirmed him in December. ...

[C]oalitions including such groups as the NAACP, the National Organization for Women, the Human Rights Campaign, the Lambda Legal Defense Fund, and the National Gay and Lesbian Task Force worked to block the nomination.

In other words, this "liberal San Francisco judge" was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It's a good thing for advocates of marriage equality that those forces were only able to block Walker twice.

It almost makes you doubt whether progressives really are smarter and more insightful than the rest of us.

More. James Taranto of the Wall Street Journal predicts that Justice Kennedy, based on the consistency of his pro-gay equality rulings, will vote to uphold Judge Walker's decision:

Yet while Kennedy cannot be pigeonholed in terms of "ideology," on this specific topic, he has been consistent in taking a very broad view of the rights of homosexuals. He not only voted with the majority but wrote the majority opinions in two crucial cases: Romer v. Evans (1996) and Lawrence v. Texas (2003). ... Those who see Justice Kennedy's position in Perry as difficult to predict in effect entertain "the belief that principle and logic have nothing to do" with his decisions on the court.

Kennedy, too, was a Reagan appointee opposed by liberal advocacy groups.

Furthermore. Jon Rowe has a different prediction.

It will be interesting to see if Perry meets up with July's federal district court ruling in Boston that found parts of the Defense of Marriage Act to be unconstitutional.