Dale Carpenter on Maryland high court's rejection of a gay marriage claim:
SSM [same-sex marriage] has lost in every state high court to consider the issue since the stunning success in Goodridge in Massachusetts in 2003... When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. It means that strong anti-SSM precedents are being created in the friendliest states, making pro-SSM rulings in other states even more unlikely in the near future... If SSM is to advance much in the near future, it will probably have to come legislatively.
Which is where advocates should have focused their efforts in the first place.
Larry Craig Watch: The ACLU has filed a brief on behalf of Sen. Larry Craig, arguing (correctly, in my view) that arresting someone for signaling a desire for sex is unconstitutional. Public sex is a crime, but that's too far a leap from merely expressing an interest in sex (which may or may not take place in public). Also correct: The aim of the police in conducting restroom stings "is to make as many arrests as possible-arrests that sometimes unconstitutionally trap innocent people."
Of course, this is not the defense that Larry (not signaling anything) Craig himself is putting forth.
49 Comments for “The Judicial Strategy: It’s Bankrupt”
posted by Brian Miller on
Well, if the judicial strategy is “dead,” then why are the Log Cabin Republicans missing in action in California?
California’s gay and lesbian couples are one signature away from full legal equality under the law.
The state assembly passed the bill.
Democrat Leno shepherded it through.
The Libertarian Party of California’s board unanimously called on the governor to sign it.
Log Cabin has been spreading effusive praise of Schwarzenegger over the last year. But they are completely missing in action in California even while the rest of the gay political establishment has put aside our differences to come together on this issue.
Even worse, they’re engaging in doublespeak. Even while Steven Miller complains that “advocates should have focused their efforts” legislatively, check out what his Republican compadres in THIS state are saying!
Log Cabin California has not demanded the governor sign the bill. In fact, here’s what they’re saying on the matter:
We are mindful that a decision is pending from the California Supreme Court on this matter next year as well and would prefer that the Court had weighed in first so that the Legislature could implement or respond to the court decision.
So once again, right-wing Republicans are low-down, useless, politically inept doublespeakers.
They complain that marriage lawsuits are “counterproductive” and that gay people should push for a legislative solution.
Then when we do — and get one — they refuse to lobby the Republican governor who is refusing the sign the bill and whine that. . . gay activists haven’t gotten a court ruling and so it’s just too risky for them to push the GOP to do the right thing.
This is even more absurd when one considers that even San Diego’s Republican mayor has changed his view on gay marriage and agreed to endorse gay marriage.
So once again, gay Republicans are MIA in the gay rights movement. I don’t want to hear a single PEEP of discontent from the gay right on the outcome of the California situation — legislatively or judicially. You guys have made a conscious effort to sit out of this civil rights struggle in order to protect your precious Republican party and buy a bit of time for your political hacks in Sacramento, even when other gay people from across the spectrum have put aside their differences to rally for equal rights.
Utterly disgusting.
posted by Richard J. Rosendall on
I have no objection to using the courts in principle. Courts exist for a reason, and people have a right to take their cases there. However, for the most part the marriage issue is not yet ripe for the courts, and what might have looked like a shortcut to equality has not worked out that way. We have a great deal of political organizing and advocacy yet to do at the state and local level. Like it or not (and I don’t like it), we are in a marathon and not a sprint.
We simply have to do the political legwork in state after state. From initial reviews of the Maryland court decision, it appears dreadfully ill-reasoned. But we are stuck with it, and the Maryland state senate president has unsurprisingly indicated his opposition to an SSM bill. The prospect of another decade or two of hard retail political work may be daunting, but that’s the reality. The local activist group I work in, GLAA in DC, has been attacked by some activists for our cautious approach (which is prompted by the power of the U.S. Congress over D.C.), as if wanting something passionately is enough to obtain it. Instead of attacking those of us who are dealing with reality, people who want marriage equality should help the Equality Federation build a stronger network of statewide advocacy groups. There are still several states with no organized gay lobbies at all, and that has to change. We have millions of votes to win, and fighting among ourselves won’t change a single one of them.
posted by Greg Capaldini on
Steve: “The ACLU has filed a brief … arguing (correctly, in my view) that arresting someone for signaling a desire for sex is unconstitutional. Public sex is a crime, but that’s too far a leap from merely expressing an interest in sex (which may or may not take place in public).”
Let me see if I get this right: Someone signals an interest in sex, and by any reasonable standard of expectation, plans to execute that act in the same location. However, he cannot be arrested for ANYTHING until he commences the anticipated act? Seems to fly in the face of common sense when the intent on the part of law enforcement is to discourage such activity. Sometimes enforcement is preventative, in my view.
posted by Jimbo on
I agree with Mr. Rosendall on this one. Whoever thought that winning marriage rights would be a walk in the park must have been dreaming. It’s going to be a long, tough slog & if we don’t have the “cojones” to do it, then maybe we should refocus on job discrimination measures. The courts should never have been our holy grail on the path to civil marriage equality. The community should beef up (significantly) its legislative network in their respective states & talk to voters. That’s what we’re doing in Maine. Educating the voters & putting a human face to the discussion is the best way to go.
posted by Karen on
Just because the Maryland court refused to do their job (just read the decision – it’s atrocious reasoning) doesn’t mean we shouldn’t have tried. The courts DO have a role – to overturn unconstitutional legislation – and it is as valid a solution as the legislative approach.
More valid, in my opinion, for what is granted by the legislature can be taken away by the legislature. My right to marry my partner is not, in reality, dependent upon the whim of the American people, but by encouraging the legislative route, this is what you would have me say.
posted by Richard J. Rosendall on
Greg Capaldini wrote, “Sometimes enforcement is preventative, in my view.”
You should see the Spielberg movie, “Minority Report.” It involves people being punished for crimes they might commit in the future. You sound like you’re fine with that.
posted by Bill on
Yes, the courts have a constitutionally enshrined role. After a few victories, I remember seeing Phyllis Schlaffley use castrating language on Bill Maher’s show to sneer at gays after a few progay decisions came out of the courts. She said, “Gays shouldn’t skipping to the Supreme Court and hiding behind judicial skirts (every time they want a political fight).” Bill treated her with more than the due respect we give to our senior citizens, but I thought to myself that, actually, we can run, skip, jump rope, or rollerskate as much as we frickin want for as long as it takes (you dried up old lady). There are those with their ears pinned to the skirt on Schlaffley’s lap who might agree with her, but I think the judicial strategy may have changed attitudes enough to make the legislative strategy workable in more places.
posted by North Dallas Thirty on
So once again, gay Republicans are MIA in the gay rights movement. I don’t want to hear a single PEEP of discontent from the gay right on the outcome of the California situation — legislatively or judicially.
Two words, Brian Miller: Proposition 22.
And, to paraphrase the California Constitution, voter proposition trumps legislative act.
As I personally have said, call us back when you start your repeal campaign.
Until then, don’t bother us with pandering measures that have so much “support” that, even in the hilariously-gerrymandered Legislature, they can only be brought up in non-election years.
posted by Brian Miller on
Two words, Brian Miller: Proposition 22.
Another initiative, from 8 years ago, where the Republicans were AWOL.
to paraphrase the California Constitution, voter proposition trumps legislative act.
Proposition 22 only covers out-of-state marriages, doofus. The portion of the law it amended only applies to marriages conducted outside of California.
Of course, Republicans were AWOL on the Proposition 22 fight as well, claiming that they didn’t have the political capital to fight it.
So that’s 2 big fat 0s for the Republican gay groups. I fail to see why anyone in the LGBTQ community should take the GOP seriously now.
posted by Brian Miller on
For those who are interested in what the GOP is lying about in California, here’s some interesting information:
When Prop 22 came before voters, section 300 defined marriage as:
a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. [3]
Even though the definition governing who may marry explicitly precluded contracting a same-sex marriage in California, a separate provision, section 308, governed recognition of marriages contracted elsewhere:
A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state. [4]
Advocates of Prop 22 described section 308 as a ?loophole,? apparently forcing California to recognize a same-sex marriage validly contracted in some other state.[5] After passage, Prop 22 added a new section, codified at section 308.5, that reads:
Only marriage between a man and a woman is valid or recognized in California. [6]
Proposition 22 amended section 308 — the section of the statute that ONLY applies to out-of-state marriages. Prop 22 thus says that only out-of-state marriages must be between a “man and a woman.”
The bill that the governor refuses to sign would preserve the Prop 22 language and statute, in full.
The language defining marriage WITHIN California is in section 300 of the legislation, which Proposition 22 didn’t address. The statute presently reads:
a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.
The bill in front of Schwarzenegger would amend this section of the law to allow same-sex marriage (and reaffirm the rights of churches not to marry gay people they don’t want to marry).
Section 308, as amended by Prop 22, has nothing to do with California marriages — only out-of-state ones.
California’s Supreme Court has ruled this.
The voters of California know this.
The governor and gay Republicans know this too. Doesn’t stop them from lying about it, however. Too bad *every* other political party of substance in the state, and organized gay group, is calling them on it.
posted by Regan DuCasse on
Here in California, the high court batted the issue back to the legislature and in four years the legislature voted to allow marriage equality TWICE.
The first time the governor wouldn’t sign it, citing he didn’t want to go against the public vote on it and felt that it was up to the high court to do so.
The governor has vowed to also veto the newest legislative decision.
So, it’s become a circular issue and in the meantime, gay couples and their children are left with a legal patchwork of mostly ineffective options.
Can the Maryland high court tell me in what way marriage for gay couples DOESN’T encourage procreation for people who want to?
I mean, is there a DEARTH of babymaking?
If there is a dearth of it within marriage, gay people are not to blame.
And KEEPING a gay couple FROM doing what they SHOULD so that the state won’t have to take custody and care of the family, how is THAT justified?
I know that legislation didn’t help it here in CA.
So the only conclusion is that the federal law, the states all are more encouraged to do exactly what we say they are doing: discriminating SOLELY against gay people. Period.
posted by North Dallas Thirty on
Again, people, read that well; the “libertarian” is trying to argue that voters, who chose the clear language that “only marriage between a man and a woman is valid or recognized in California” meant that they fully supported in-state gay marriage, but were only banning out-of-state ones.
And the way to counter it is simple; ask the libertarian why he supports maintaining a law that invalidates the legal relationship of gay couples from Massachusetts, for example, especially in light of the “full faith and credit” clause.
Gay conservatives like myself see no point in passing a meaningless law that contradicts the clearly expressed will of the voters and which enshrines into law the theory that California will never recognize gay marriage from other states. Repealing Proposition 22 would solve both problems.
But the issue there is that gays like Brian Miller have so completely alienated people with their blatant antireligious bigotry and clear intent to dismantle marriage completely that such a repeal would never pass. Indeed, they have so little support in the Legislature that they can only bring up Leno’s discriminatory “marriage” bill in odd-numbered non-election years — because their Democrat masters know it would kill them at the polls.
posted by North Dallas Thirty on
So, it’s become a circular issue and in the meantime, gay couples and their children are left with a legal patchwork of mostly ineffective options.
That’s odd; both domestic partnership, with all the state rights and responsibilities of marriage, and second-parent adoption are completely legal in California.
Which means that “legal patchwork of mostly ineffective options” is what straight people in similar situations are dealing with as well.
posted by Karen on
“straight people in similar situations”
Which straight people have relationships that are perfectly legal (read: consensual, adult, non-consanguinious), wish to marry, and yet are PREVENTED from doing so by state law?
posted by Karen on
And anything less than marriage and automatic parenting recognition will always leave gay peoples’ wishes about their estates, biological children, and remains more vulnerable to extended-family meddling than straight couples. Why do we not deserve the same protections?
It is blatantly unfair that I am not able to arrange things so that my child (conceived through donor sperm) will have two legal parents when she’s born (not 6 months later) and yet a straight couple in the exact same situation can.
posted by Last Of The Moderate Gays on
Events like those in MD & CA make me feel (unfortunately) vindicated in my belief that we’re far from winning the battle of hearts and minds (sorry, Brian). I’ve said it before & I’ll say it again, folks . . . this is a marathon; it ain’t a sprint.
Yesterday, the Washington Post held a discussion with Professor William N. Eskridge that’s worth a look if you haven’t seen it:
http://www.washingtonpost.com/wp-dyn/content/discussion/2007/09/18/DI2007091801050.html
I totally agree with his premise — we are going to have to use the “baby steps” approach by getting domestic partnerships now and THEN going for marriage later. This predictable, “all-or-nothing” approach by the gay rights groups has pretty much given us the latter, rather than the former.
Brian, am not trying to pick at you, but as a Libertarian, you have made it abundantly clear in other posts that you consider efforts like a gay marriage bill to be moot because the Constitution guarantees us the freedom to associate. Thus, I don’t understand why you have (apparently) been so active on the state level with this issue? Seems like a contradiction to me . . .
posted by North Dallas Thirty on
And anything less than marriage and automatic parenting recognition will always leave gay peoples’ wishes about their estates, biological children, and remains more vulnerable to extended-family meddling than straight couples.
Odd; STRAIGHT couples don’t have “automatic parenting recognition” of non-biological children, as anyone who has divorced and remarried can tell you. Even in Massachusetts, as GLAD points out, gay couples should still carry out a second-parent adoption — something that straight couples who use artificial means are advised to do as well, since it provides the most ironclad guarantee.
Furthermore, as the Terri Schiavo case should have made blatantly obvious to all, marriage is no guarantee of “extended-family meddling”; indeed, it is careless for married couples to not have wills and healthcare proxies for that exact reason, just like you can take out today.
Finally, your domestic partnership (assuming you have it), according to the state of California, carries all the rights and responsibilities thereof.
So what’s your point?
posted by Karen on
No, donor-sperm and adopted children of married women are assumed, legally, to be the children of their spouse as well (assuming they are married at the time of birth/adoption). At least, this is the case in Maryland, where I live (you seem to think I’m a Californian?)
I can’t be legally married to my wife, so she won’t be automatically recognized as the parent of my donor-sperm or adopted child.
Maybe married people should do second-parent adoption as well, as an *extra* measure of security, but that doesn’t change the fact that they should, by law, both be recognized as parents automatically, and we can’t be.
I didn’t say marriage was a guarantee, I said it was MORE protection than any kind of domestic partnership agreement.
As to whether or not I have one, as I’ve said, I live in Maryland. Supposedly a law was passed in 2005 providing some kind of registry for us, but f*ck if I can find any information about how to do it. And regardless, as long as it is “less than” marriage, it will be MORE assailable in probate.
So, my point is, this is a civil rights issue. It’s MY civil rights issue. Have fun sitting back and letting the rest of us do all the work.
posted by North Dallas Thirty on
I should, Karen.
After all, it was sort of a pain in the butt to lobby last year for the provision in the Pension Protection Act to allow preferential tax treatment for beneficiaries regardless of marriage status, just for example — a provision that passed with strong Republican support.
And it is tempting, with all the flack that I take, to let you and yours continue down this path of screaming for your “rights” — fairly ironic when your own statements (“consensual, adult, non-consanguinious”) indicate that you do NOT believe that all Americans have the right to marry whomever they choose.
Instead, I go down a simpler route. You should not have to marry to be able to pass property along to who you prefer, or designate someone to make your medical decisions, or even grant rights of parental decisionmaking; we should standardize and simplify wills, probate, health and financial proxies, and guardianship laws so that these sort of things work and work similarly in all 50 states.
posted by CPT_Doom on
So, when do we see actual enforcement of these marriage laws? Right now, there is no enforcement – if you look like a man and a woman, you can get a license. When are allegedly “one man/one woman” couples going to be forced to undergo genetic testing to prove they are actually man and woman? When are anti-gay legislators going to be forced to undergo such testing to prove their marriages meet the legal requirements (which were in place when they were “married”)?
Until and unless we see that kind of requirements for allegedly “normal” couples, these discriminatory decisions, constitutional amendments and laws remain nothing more than legislative gay bashing.
posted by Brian Miller on
Brian, am not trying to pick at you, but as a Libertarian, you have made it abundantly clear in other posts that you consider efforts like a gay marriage bill to be moot because the Constitution guarantees us the freedom to associate.
I have said or done no such thing. You’re confusing my arguments about ENDA and marriage equality. I’ve always been an impassioned supporter of marriage equality.
vindicated in my belief that we’re far from winning the battle of hearts and minds
The conservative Republican mayor of San Diego has switched from opposing marriage equality to publicly embracing it.
Where were the gay Republicans? Nowhere to be found.
Hell, even AFTER the Mayor of San Diego announced his change of heart, public praise and applause came from Democrats, Libertarians and nonpartisan groups — but not from gay Republicans, who remain missing in action.
chose the clear language that “only marriage between a man and a woman is valid or recognized in California”
The voters of California voted to amend section 308 of the law, not section 200 of the law. That’s a fact. Spin it all you want, but your argument is retarded.
Have fun sitting back and letting the rest of us do all the work.
I have no doubt they will — jumping in from time to time to “critique” it. Notice that faithful GOP shills like ND-30 keep changing the criteria.
First, they whined that the “judicial strategy is failing.” They rushed in to demand that we get a legislative solution to the problem.
Then, when we delivered a legislative solution to the problem, they refuse to lobby the governor, stating that they’d have preferred a court ruling.
Then, when they’re called on that, they invent some assinine excuse about how a law irrelevant to the question at hand, which amended the out-of-state marriage criteria, now somehow applies to an entirely separate section of the law. They demand we overturn this law, without offering any help, resources or support.
Then, they shill for Republican candidates and when they’re ignored, whine and complain about how “oppressed” they are by the “left.” They haven’t earned a place at the table, as far as I’m concerned — they haven’t done a single substantive thing to get a place there.
it was sort of a pain in the butt to lobby last year for the provision in the Pension Protection Act to allow preferential tax treatment for beneficiaries
Outright Libertarians supported this law, and we showed up to express our support. I didn’t see you — or any other Log Cabin Republicans — at that event. Nice of you to take credit for our efforts, though.
You should not have to marry to be able to pass property along to who you prefer, or designate someone to make your medical decisions, or even grant rights of parental decisionmaking
Another Libertarian position you’re trying to claim as a Republican one — however, you’re not winning any points for originality here, either.
The GOP, including Log Cabin, are busy pushing ENDA and “hate crimes” laws, rather than demanding equality under our marriage laws. The GOP has done no reform lobbying of interest in any of these areas, Log Cabin Republicans are nowhere to be found on any of these areas, and they continue to promote Arnie as some “open minded moderate” when they know that’s a lie.
Once again, you guys are MIA. Nowhere to be found. You’re not doing a lick of lobbying, and those of us who ARE lobbying — from whatever side of the issue in whatever party — are going to start calling you out on that.
posted by North Dallas Thirty on
Outright Libertarians supported this law, and we showed up to express our support. I didn’t see you — or any other Log Cabin Republicans — at that event.
Which event?
And, since you don’t know who I am, how do you know whether or not I was there?
And I love this:
Then, when we delivered a legislative solution to the problem, they refuse to lobby the governor, stating that they’d have preferred a court ruling.
Of course, that “legislative solution to the problem” requires two unusual suspensions of disbelief: one, that, in Proposition 22, voters only wanted to ban out-of-state gay marriages, and two, that gays like yourself support that ban.
Repealing Proposition 22 fixes both problems and is far more consistent. But that would require you to demonstrate to the general populace why gay marriage is advantageous, and for people like yourself who have publicly stated their antireligious bigotry and that gay marriage is their first step towards abolishing marriage completely, that ain’t happening.
Like I said last year, we’ll be happy to help when you actually do something intelligent. But for now you’re wasting your time on the courts and you’re whoring for Democrat politicians who “support” you so much that you won’t see a whisper of the marriage bill during next year’s, aka the pre-election, session.
posted by Mark on
North Dallas 30 (and I do know who you are) is correct. The Legislature is clearly acting illegally in attempting an end run around Proposition 22. Supporters of gay marriage need to repeal Prop 22. It’s quite simple.
posted by Brian Miller on
The Legislature is clearly acting illegally in attempting an end run around Proposition 22.
Incorrect — and proven so in a California court ruling. Period. Much as the Republicans wish they were the courts, they are not.
Supporters of gay marriage need to repeal Prop 22.
As I mentioned before, not only is this wrong, but it’s the Republicans changing their views *yet again.*
First, they demanded court action.
Then they demanded legislative action — and when they got it, complained that the legislative action wasn’t preceded by a court ruling.
Now that this hypocrisy has been pointed out, they keep returning to the idea that Section 300 of the statute applies to in-state gay marriages. It doesn’t. Period.
So although the gay Republican arguments keep shifting, there’s one consistent thread: inaction and excuses.
1) When the gay Republicans demanded court action in California, not ONE of them joined in the court action or contributed anything of substance to the effort.
2) When they condemned the court actions and demanded legislative action, the Log Cabin Republicans and their proxies were nowhere to be found in Sacramento.
3) Now that they are demanding a repeal of Proposition 22 (which is irrelevant to the law in question), rather than announce their own plan to implement the course of action they’re advocating, they’re simply demanding that the entire rest of the gay community do it for them.
In other words, the GOP’s gay apologists are all talk, anonymity, and fury — and no action. This is one reason why so many frustrated gay former Republicans in California have quit the GOP and joined the Democrats or Libertarians.
I cannot vouch for the Stonewall folks, but I know that Outright’s membership rolls are swelling in the last six months from frustrated gay Republicans who quit the party (and Log Cabin) in disgust. Even the moderates in the GOP are fed up with the shell game. They want honesty, credibility and accountability — something the GOP’s anonymous advocates and cowardly apologists in LCR alike are unwilling and unable to provide.
The situation is so pathetic now that the gay Republican group isn’t even showing up at gay Republican events — leaving gay groups from *other parties* as the sole representatives of gay people at those events.
There’s significant reason to wonder if LCR is even a gay group anymore, or just a front group for straight Republicans trying to make up apologies for their homophobic policies. After all, their public faces aren’t returning anyone’s calls (including from the gay press) over these issues, and their sole defenders are posting under pseudonyms and not standing behind their statements.
posted by North Dallas Thirty on
Again, “Brian Miller”, you are good at making smears, but not good at providing facts.
Outright Libertarians supported this law, and we showed up to express our support. I didn’t see you — or any other Log Cabin Republicans — at that event.
Which event?
And, since you don’t know who I am, how do you know whether or not I was there?
You keep claiming people were not at these events, but you refuse to identify the event OR how, since you don’t know their identity, you knew whether or not they were there.
Meanwhile:
Incorrect — and proven so in a California court ruling. Period.
Oh really? Which one?
If you’re talking about the challenge to the domestic-partnership law that was based on Proposition 22, what that decision said is that Proposition 22’s language is clearly limited to marriage, and thus does not apply to domestic partnerships.
Meanwhile, the libertarian keeps belittling and mocking those who would repeal Proposition 22 first — a way that is constitutional, removes all vestiges of discrimination against both in-state and out-of-state couples instead of, as Leno’s bill does, reinforcing discrimination against out-of-state couples, and allows Californians to vote on the matter.
Surprising. Or perhaps not.
posted by Karen on
ND30, clearly you live in some fantasy world (maybe you ARE a libertarian.)
When there’s a snowball’s chance in hell of “standardizing” the thousands and thousands of state and federal laws so that none of them are at all related to marital status (Hi, this is the idea that will ACTUALLY strip legal marriage of its usefulness) then maybe ignoring our right to marry our partners will make sense.
In the meantime, my family and children exist.
“you do NOT believe that all Americans have the right to marry whomever they choose.”
Never said I did, Mr. Put Words In My Mouth.
What I do say is that I and all Americans, as individuals, have the right not to have their legal rights constricted based solely on their sex classification. This is a no-brainer and is supported by the case law in Maryland. Therefore, seeing as there is no reason other than my sex that I can’t get a marriage license with R, that particular law is unconstitutional.
See, you don’t even have to admit that it’s an egregious injustice against gay people. It’s all right their in our state and federal constitutions! And you don’t even have to mention orientation, just sex!
posted by Karen on
Dang, must be late, I never mix up “their” and “there”.
posted by ColoradoPatriot on
ND30: “…you are good at making smears, but not good at providing facts.”
Oh God, the irony of ND30 making such a claim is almost too much. I literally can’t stop laughing. Thanks for the comedy.
posted by North Dallas Thirty on
What I do say is that I and all Americans, as individuals, have the right not to have their legal rights constricted based solely on their sex classification.
Both genders are allowed to marry someone of the opposite gender; both genders are not allowed to marry someone of the same gender.
Your problem is that there is no guarantee in the Constitution of marriage at all, and there is certainly no guarantee that you can marry whomever or whatever with which you wish to have sex.
When there’s a snowball’s chance in hell of “standardizing” the thousands and thousands of state and federal laws so that none of them are at all related to marital status (Hi, this is the idea that will ACTUALLY strip legal marriage of its usefulness) then maybe ignoring our right to marry our partners will make sense.
Yes, well, gay leftists and Democrats said we’d never get the non-spousal beneficiary provision through the Republican Congress, either.
What you don’t realize, Karen, is that standardization of those things benefits more than gay people. It benefits children who are caregivers for their elderly parents. It benefits straight people who, for their own reasons, choose not to or don’t have marriage as an option.
Thus, as a result, because it has an appeal beyond gay people, as did the non-spousal beneficiary provision, it has a much better chance of passing. Indeed, were you paying attention, you would have realized that the reason the Arizona marriage ban was blocked (barely) was because it would abolish domestic partnerships as well, and there were a significant number of older people who were taking advantage of the fact that a DP standardizes the healthcare and financial proxies process without invoking the Social Security household limit on benefits, as does marriage.
posted by Amicus on
another 2-cents
On the other hand, if you guesstimate, as I do, that the issue is headed for referendum repeal at some point, then Schwarzenegger should be expected to take a stand of his own on the issue, and let it go on to the courts and the people, post facto, even if it involves the messy process of an injunction, etc.
On this reading, the courts will make their determination, eventually, no matter how Schwarzenegger decides, now. Therefore, he should not continue tacitly endorsing a status quo when something better is available. The timeline of the courts should not be the timeline for the Governor.
posted by North Dallas Thirty on
Brian Miller has been awfully quiet concerning my challenge to him to provide the court ruling that he claims “proves” that the legislature is not acting illegally by trying to pass a marriage law.
Perhaps he’s finally read Knight v. Superior Court (Schwarzenegger) (2005).
The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state.
Without submitting the matter to the voters, the Legislature cannot change this absolute refusal to recognize marriages between persons of the same sex. (Cal. Const., art. II,
posted by grendel on
It should be noted that the cited language is only dicta. It is not the holding of the case, and as such is not legal precedent.
The actual holding of the case is that Prop. 22 did not bar the legislature from enacting domestic partnership legislation. (see the bottom of page 3 of the decision).
The question of whether or not the prop. 22 would bar the legislature from enacting equal marriage legislation was not before the court, and so did not and could not rule on that question.
Also, it is not entirely clear what the court meant in the cited passage. Later in the decision, the court says, “These ballot materials directly support the interpretation that Proposition 22 was intended solely to preserve the status of marriage in California for persons of the opposite sex by preventing the recognition of marriages from other jurisdictions if those marriage are between homosexuals.”
Whatever the court was trying to say in it’s dicta though, it’s still only dicta. The issue has not yet been decided by a court to my knowledge. A reasonable argument can be made that Prop. 22 does not prohibit the legislature from passing equal marriage legislation. And that’s good enough for me. If Arnie really supported equality, he would sign the bill. Executives sign legislation of uncertain constitutionality all the time. Questionable constitutionality seldom stops anyone from signing a bill they support. Arnie’s excuse is nothing but a cop out.
posted by North Dallas Thirty on
The actual holding of the case is that Prop. 22 did not bar the legislature from enacting domestic partnership legislation. (see the bottom of page 3 of the decision).
Yes — because, as the court pointed out, California’s initial domestic partnership laws were created by the Legislature and occurred prior to the passage of Proposition 22, and Proposition 22 itself doesn’t say anything about domestic partnerships or civil unions; it relates only to marriage. Thus, it wouldn’t apply to the domestic partner law at all.
However, the gay leftist argument that Proposition 22 doesn’t cover in-state marriage is nicely refuted by the fact that, as the court pointed out, since the law had already been changed to bar such things, there was no need for a separate voter proposition to deal with that section of the Family Code; thus, as the point I cited states, Proposition 22’s intent was to reaffirm the definition of marriage and ensure that it was extended across all portions of the Family Code dealing with marriage.
But this is my favorite statement:
If Arnie really supported equality, he would sign the bill.
Sorry; Democrat gays have already established that you can “support equality” and still push the FMA and state constitutional amendments. Indeed, Mark Leno himself endorsed and promoted the last supporting equality.
If Leno truly supported equality, he would be raising a ballot initiative to repeal Proposition 22. However, he and his fellow leftist lapdogs have been ordered NOT to do so by the state Democrat Party, who does not want a vote that they cannot control taking place.
posted by Amicus on
Schwarzenegger would thus be signing a law that the courts have already proclaimed to be illegal under the premise that an existing decision would be reversed …
========
My point is that this is exactly what he should do.
He cannot have it both ways, saying that the issue is NOT decided before the courts and then saying that the law IS “decided”, so he won’t sign the bill.
So long as the state of the current law is in flux, he’s on the hook to make his own decision, IMO, and not to hide behind the court’s timeline on the issue.
He should sign the bill and send it to the court.
posted by Hank on
You know, ND30, when you say things like “since liberal gays…have proudly proclaimed that this is phase one of their goal to completely eliminate marriage” you come across as just silly. I’m one – a liberal gay – (I don’t feel you can be a follower of Jesus Christ and NOT be a liberal) – and I sure don’t want to eliminate marriage. And yeah I know you’ll be able to post some link from some obscure gay person who said just that. But you know that “liberal gays” don’t want to eliminate marriage – you’re not dumb. And you’re not convincing anyone – most of the people who post here also aren’t dumb. So why do you spout nonsense?
posted by Brian Miller on
Once ND-30 descends into his bullshit about “leftists,” he’s conceded the argument. No honest individual would ever paint me as a “leftist” — in fact, ND-30 supports more leftist policies than I do! 😉
The reality is that the gay Republican lobby has been completely MIA on this debate.
They haven’t even shown up at community forums to argue the points that ND-30 keeps inventing on this list.
They’re cowards. They didn’t have the courage in their principles to engage the rest of the community — agreeing or disagreeing — in real life. Their arguments kept changing to defend their man and their party rather than honestly engage the issue at hand.
And apparently, the only place they’re willing to debate the issue is under pseudonyms on an anonymous bulletin board hosted in another state.
So the next time they complain they’re being ignored, I’ll laugh. They’re not being ignored, they’ve dropped out of the debate — willingly.
posted by Brian Miller on
These ballot materials directly support the interpretation that Proposition 22 was intended solely to preserve the status of marriage in California for persons of the opposite sex
“Intention” is not a factor in law — statute is. The proponents of proposition 22 had the ability to create a new “marriage defining” section in the law, but didn’t take it. They specifically amended the section of the law entitled “Marriages from out of California” and also did not amend the title to add “and the definition of marriage.”
The legal impact is pretty clear. They amended a subset of the law.
There’s nothing to stop them from pursuing another amendment that would define the gender of marriage in the super-arching law, and not a minor subset of it. But they won’t, because they know they’d lose.
And incidentally, “North Dallas 30” and other pseudonyms are demanding that the rest of the LGBTQ community do things their way and repeal Prop 22 with another prop.
But questions remain unanswered.
1) Where are the Republicans — with real names — who are willing to join (and fundraise) for such an effort? Nowhere to be found, from what I see.
2) Where are the Republicans — with real names — who are willing to get Arnie to declare that he’ll sign a gay marriage law immediately after Prop 22 is overturned in referendum? Nowhere to be found, from what I see.
Obviously, the Prop 22 thing is a fig leaf. Arnie CAN’T support marriage equality without losing the religious right (and his hold on the state Republican Party). So he’s pandering to homophobia, and gay Republicans are more terrified of their man losing power than they are disgusted by their party’s sell-out, yet again, of gay people.
So the GOP concerns should be ignored — especially if the idiots making them are doing so behind pseudonyms while attacking the honesty and intentions of people with the scruples to stand behind their own actions with their own names and affiliations in the open.
posted by North Dallas Thirty on
And yeah I know you’ll be able to post some link from some obscure gay person who said just that.
Gay persons, yes.
Obscure no.
Heck, ask Brian Miller. He’ll tell you that marriage is a “statist construct” and that his goal is to abolish it.
Speaking of which……
“Intention” is not a factor in law — statute is.
Please provide your credentials as a judge and lawyer, Brian Miller.
Because .
The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state.
Without submitting the matter to the voters, the Legislature cannot change this absolute refusal to recognize marriages between persons of the same sex. (Cal. Const., art. II,
posted by North Dallas Thirty on
And yeah I know you’ll be able to post some link from some obscure gay person who said just that.
Gay persons, yes.
Obscure no.
Heck, ask Brian Miller. He’ll tell you that marriage is a “statist construct” and that his goal is to abolish it.
Speaking of which……
“Intention” is not a factor in law — statute is.
Please provide your credentials as a judge and lawyer, Brian Miller.
Because here’s what real judges and lawyers said.
The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state.
Without submitting the matter to the voters, the Legislature cannot change this absolute refusal to recognize marriages between persons of the same sex. (Cal. Const., art. II,
posted by Amicus on
wasting our money and time on fruitless and flawed ideological efforts ..
Ha! If Brian is right about Log Cabin CA being AWOL, then they may have well just put up a sign, “We’re for separate but equal”.
If ever there was a time to take a firm “ideological” stance, this seems like it.
What’s the downside?
posted by North Dallas Thirty on
Odd, these same people seemingly have nothing to say when Stonewall and HRC endorse “separate but equal” — or even more.
And the downside is that, as leaders like Brian Miller have publicly stated, their reason for doing this is both antireligious bigotry and to ultimately abolish marriage — as pointed out in Beyond Marriage.
That’s why they won’t put anything to a public vote, even though the California Constitution requires it; it’s quicker and cheaper to buy corrupt legislators, even if it doesn’t solve the problem.
posted by Brian Miller on
these same people seemingly have nothing to say when Stonewall and HRC endorse “separate but equal”
Wrong.
Our blog and commentary are full of condemnations of this sort of posturing on their part. Outright commented in favor of full marriage equality at every opportunity in Vermont, Connecticut and California.
Lying about our record isn’t going to help your cause.
And despite HRC’s (and Stonewall’s) prevarication on this issue, they’re still leagues more honest than you are — they’re actually showing up to the debate and using their real names. You, and your Republican group, are doing neither.
they won’t put anything to a public vote
Another lie.
This is the second time that marriage equality legislation has been passed by the California legislature. Not one member of the legislature who voted in favor of the bill lost his seat because of his vote in the prior session, and not one will lose his seat this time, either.
Besides, you Republicans sure don’t care about “public votes” on other issues — Iraq, or even presidential elections. So you’ll forgive my rejection of your silly “argument.”
Here are the facts:
1) Gay Republicans won’t go on the record, with their real names, on this issue;
2) Gay Republicans will argue against marriage equality, and the civil rights of gay people, with a “majority vote” basis — even when a majority vote endorses marriage equality;
3) Gay Republicans will distort the records of gay groups on the issues, including attacks on Outright Libertarians claiming that we’re uncritical supporters of HRC and Stonewall (a laughable contention — perhaps winning Comedy of the Year);
4) Gay Republicans and their groups will not show up to participate in any meaningful, open debate — preferring dishonest attacks behind pseudonyms to open debate where real names (and real agendas) are out on the table).
No wonder so many former Republicans are joining us (and other groups) and leaving the GOP behind. I guess the only queer folks left in the GOP are sycophantic cowards.
posted by Brian Miller on
If Brian is right about Log Cabin CA being AWOL, then they may have well just put up a sign, “We’re for separate but equal”.
And then signed it with a pseudonym, and scrawled in on the bottom that “Anti-gay Arnie is just The Best!!!”
(Note the complete absence of marriage equality activity on their blog — their leader in California promised to “lobby the governor” on this issue to multiple groups, but hasn’t returned a single call from ANYONE since then explaining how he lobbied them. And the governor went on the record saying he’d never heard from Log Cabin. So someone lied — definitely a Republican.)
posted by Brian Miller on
I can argue that you’re a coward because you aren’t out debating Fred Phelps
Tell you what, ND-30.
Next time Fred Phelps is in San Francisco, I will be happy to join you in a debate with him.
I will bring my video camera. You bring your real name and proof that you are a San Francisco registered voter. Then we can go and debate Fred Phelps while he is in California. If he’s elsewhere in the state, I will even buy you a plane ticket for the event.
If you refuse my offer, I’ll happily accept your apology for smearing my character.
posted by North Dallas Thirty on
LOL….you missed the paragraph that follows, Brian Miller — and the statement that precedes it.
If that were the case, I can argue that you’re a coward because you aren’t out debating Fred Phelps right at this moment.
I would not require such a thing of you because it would be wasting valuable time and money on an irrational person who insists he knows better than any court, any law, or constitutional judgment what is right.
Next:
Wrong.
Our blog and commentary are full of condemnations of this sort of posturing on their part.
Which is why you’re carrying water and giving thousands of dollars for the gay Democrats who support them, like Mark Leno, and supporting them as you did in your post, in which you babble that you don’t care about their lies and support them because they use their “real names”.
This is the second time that marriage equality legislation has been passed by the California legislature. Not one member of the legislature who voted in favor of the bill lost his seat because of his vote in the prior session, and not one will lose his seat this time, either.
Twice, eh?
Oh, that’s right — in 2005 and 2007.
You see, it has so much “support” that it can’t be passed in election years, when even California’s absurdly-gerrymandered districts might not be able to protect the politicians on which gays waste millions in “campaign contributions”.
And that enormous amount of “support” is also why Brian Miller and his ilk have all sorts of amazing excuses as to why a repeal campaign for Proposition 22 is impossible.
All of which add up to, “We can’t win because we can’t bribe that many voters into ignoring our antireligious bigotry and clear statements that our goal is to abolish marriage.”
Meanwhile, as to your attempt to say what “gay Republicans” are doing, I shall simply remind people that:
1) You accuse gay Republicans of not showing up for events — but refuse to name the event or to explain how you know they weren’t there when you don’t know their names
2) You claimed that California court decisions supported your interpretation of Proposition 22 — but refused to cite cases, and then, when given a clear example that the court did not, tried to argue that you knew more than the judges who decided the case about California law.
Some of us prefer, rather than wasting our money and time on fruitless and flawed ideological efforts led by those who want to abolish marriage and who are plainly antireligious bigots, to give both to places where they are needed — to those organizations helping people with AIDS find jobs, find housing, and pay their bills, as I was doing this afternoon.
And again, when you have something better than excuses as to why you can’t push for a repeal of Proposition 22, call us. I suggest you do it quickly, though, given that there likely WILL be a constitutional initiative next year on the ballot to permanently enshrine it in state law, and it has an excellent chance of passing — especially, Brian Miller, given the admittance of yourself and the Beyond Marriage folks that you wish to ultimately abolish marriage, and that you consider this the first step in doing so.
posted by Last Of The Moderate Gays on
“I have said or done no such thing. You’re confusing my arguments about ENDA and marriage equality. I’ve always been an impassioned supporter of marriage equality.”
Thanks for your clarification. However, I do have another question another question . . . Shouldn’t you use the same arguments for not supporting gay marriage as you do for not supporting ENDA? It seems to me that there’s not a bit of difference between the two. It seems like you’re engaging in “cafeteria Libertarianism.” Perhaps marriage is more of a personal issue for you than ENDA? For me, it’s the complete opposite. I don’t need to get married by the state. I do need a job and to be protected from discrimination.
“The conservative Republican mayor of San Diego has switched from opposing marriage equality to publicly embracing it. Where were the gay Republicans? Nowhere to be found.”
Brian, one mayor’s conversion hardly makes a groundswell. I’m not saying it’s not a good thing, but, again, we’re far from that Utopia you believe is right around the corner. Again, remember this:
http://www.13wham.com/news/local/story.aspx?content_id=3504260a-a851-4e7f-938f-8f0319a531b1
and this:
http://miamiherald.typepad.com/gaysouthflorida/2007/09/miami-top-chef-.html
and this:
http://www.towleroad.com/2007/09/man-assaulted-d.html
and this:
http://www.washingtonpost.com/wp-dyn/content/article/2007/09/18/AR2007091802177.html
Once again, sorry to bring you back to Earth. I wish it wasn’t true anymore than I’m sure you do; nevertheless, it IS the truth.
posted by Amicus on
their reason for doing this is both antireligious bigotry and to ultimately abolish marriage…
Wow! If that’s any indication of how deep the rot has set in at the California chapter, then a National intervention may be required.
Truly, they seem to be on the verge of falling apart and not knowing it. Someone ought to help them (not out of sympathy for their politics, but out of concern for their humanity).
Here are some people who know how to act:
Diane Ravitch resigns
Log Cabins vote to withhold endorsement from Bush
If there is an “interpretation” to be made, then sign the Bill and send it along. The final “interpretation” will come along, in time, just as it should. There’s no holding it up.
posted by ETJB on
“Both genders are allowed to marry someone of the opposite gender; both genders are not allowed to marry someone of the same gender.”
Yeah and all races were allowed to marry…or all Jews were allowed to marry…
The U.S.S.C. ruled that civil marriage is a fundamental right. The reason that does not apply — yet — to same-sex couples is that the equal protection clause in the U.S. Constitution has been interpreted (by precedent) to mean that some forms of state sponsored discrimination is more constitutional then others.
Thus for now, most of what will or will not happen when it comes to gay couples and civil marriage comes down to career interest group leaders and two-party politicans.
Arnold is trying to have his cake and eat it to. He wants to appear to be the ‘socially liberal’ governor, while also keeping his career door open (by opposing civil marriage for gay couples) for either another term of office or something in Washington D.C.
posted by North Dallas Thirty on
The U.S.S.C. ruled that civil marriage is a fundamental right.
Then argue with intellectual honesty, ETJB, and state publicly that any restriction on marriage whatsoever is unconstitutional and a violation of rights and equal protection.
That includes restrictions by age, by number of sex partners, by species, by blood relationship, and by anything else.