Party First, Again (and Again)

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The Washington Post's "God in Government" blog takes note of the dismissive response from LGBT activists to former VP Dick Cheney's recently voiced support for same-sex marriage:

The Human Rights Campaign, a gay rights group, welcomed Cheney's comments through gritted teeth.

"It is unfortunate that it took the former vice president two terms in office, two terms that were the most anti-LGBT in history, before he decided to stand up for equality," said Joe Solmonese, president of the HRC. "That being said, we welcome his voice to the table on this issue and hope the remaining right-wing opponents of marriage equality see how completely out of touch they have become."

Of course, it might have been a more effective response in terms of swaying "remaining right-wing opponents" if Solmonese had been able to restrain himself from denigrating Cheney while welcoming his support.

And by the way, was the Bush-Cheney administration really the "most anti-LGBT in history?" Bush supported a federal amendment against gay marriage that failed to pass (Cheney broke with Bush and didn't support the amendment). But Bill Clinton signed the odious Defense of Marriage Act and bragged about it in campaign ads that ran in the South. Clinton also signed legislation to ban gays from openly serving in the military ("don't ask, don't tell"); previously, the ban on homosexuals had been military policy but not federal law.

More. Reader "Bobby" comments on whether Bush/Cheney was the most anti-gay administration ever, as Solmonese claims:

Here's what Concerned Women of America (an anti-gay group) has to say:
"In his first 100 days as President, Mr. Bush:
* appointed a homosexual activist to head the White House office on AIDS;
* failed to overturn a single Clinton executive order dealing with homosexuality;
* continued the Clinton policy of issuing U.S. Department of Defense regulations to combat "anti-gay harassment" in a military that is required by law to keep homosexuals out of the armed forces;
* presided over the appointment of a liberal homosexual activist and "gays"-in the-military crusader to oversee the choice of civilian personnel at the Pentagon. ...

Is there any doubt that Solmonese is engaging in Big Lie partisanship at the expense of creating a greater bi-partisan constituency for gay legal equality? And why is the "LGBT community" generously funding him in order to do so?

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Family Law

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San Jose (CA) Representative Mike Honda has introduced the Reuniting Families Act to allow the permanent partners of same-sex couples the same naturalization rights current law gives to married couples of the opposite sex - and it's about time. But he is running into the traditional circular reasoning that characterizes the debate over same-sex couples: some people just don't believe they're part of one another's family, and then ignore laws that recognize their relationships.

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, states the public policy difficulty: "Our whole immigration system is based on documents," she said -- documents like a marriage certificate. Without that, how can immigration officials know who is or is not a member of someone's family and who is trying to defraud the government?

That is a legitimate question - but it has an answer today for same-sex couples that it used to lack: getting married. Those who ignore history are doomed to repeat it, and this key part of the debate over Honda's bill is not a new one.

The fight over including same-sex couples within the definition of "family" got its national debut when the Carter administration convened its White House Conference on the Family in 1978. Carter soon found himself in the middle of a fight because gay rights advocates joined with others to rename it the White House Conference on Families. At the time, the formal definition of "family" was people related to one another by blood, marriage or adoption, none of which included, or reasonably could include same-sex couples. Use of the plural would avoid a complete exclusion of same-sex couples from the discussion. But the emerging religious right fought the proposed nomenclature. . . and lost. It is a loss they never got over.

Today, there are plenty of same-sex couples who have a marriage certificate. Many more have documentation from their states showing they are domestic partners or have a civil union. And that's not counting the ones whose employers provide them with domestic partner benefits and have the documentation to prove it. And some of them include a partner who could take advantage of U.S. law that applies to spouses -- but for DOMA.

It is clear that some religious groups oppose Honda's bill for its inclusion of same-sex couples. Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference, calls the gay issue "a death knell" for the bill, definitively adding, "We won't support legislation - period - that includes the Honda same-sex component." But that's no longer because people aren't sure same-sex couples are one another's family, it's because folks like Rev. Rodriguez would rather have no legislation at all than a bill that treats same-sex couples like human beings.

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God Looks at a Piece of Paper and Finds it Wanting

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The vestry at All Saints Episcopal church in Pasadena has just announced that its clergy will no longer sign California marriage certificates for any couples that it marries in a religious ceremony. They are doing this as a response to the discrimination Prop. 8 added to California's constitution. According to the vestry resolution, they wish to avoid "active participation in the discriminatory system of civil marriage," which they believe 'is inconsistent with Jesus' call to strive for justice and peace among all people."

For over twenty years now, All Saints has been a national leader in the struggle for inclusion of lesbians and gay men, and particularly same-sex couples in church life. A church like All Saints has both a sacramental obligation and a moral imperative to treat homosexuals and heterosexuals equally, even if the law does not.

And this action illustrates how churches benefit by keeping church and state separate. As Timothy Hulsey once told me with the common sense that is so obvious it is often missed, same-sex marriage is, in fact, available today in all fifty states. No state does, or could, prohibit any church from marrying any two people in a religious ceremony that falls within its belief system. Whether a particular state views that marriage as legal is a matter for the state to determine. If the marriage violates criminal law related to, for example, the age of consent, the state can prosecute the crime; but criminal sanctions no longer apply to voluntary adult homosexual relationships. If a church in Virginia wishes to marry a same-sex couple, Virginia can constitutionally do nothing to stop it. Virginia can pass all the laws it wants to ignore or discourage that relationship in the civil society, but in the church's eyes that couple is as holy as any opposite-sex couple it chooses to bless.

Heterosexual couples married at All Saints will have to suffer the inconvenience of getting a secular signature on their California marriage certificate. But in return, they will have the assurance that, in the eyes of God, their marriage is on the same moral foundation as their homosexual brothers and sisters.

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The GOP’s Vocabulary Closet

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Republicans are getting better at talking about gay rights rather than talking around them. But you can still see a deep-seated discomfort in their stilted vocabulary.

Michael Steele, chair of the Republican National Committee, had this to say about Dick Cheney's recent sort-of comments about gay marriage, or same-sex relationships, or something along those lines:

Well, I think the vice president brings a very personal perspective to this issue and to the question of gay marriage and gay unions. And I think his comments are appropriate reflection of his family and a situation with his daughter.

You know? My view, personal view is, you know, marriage is between a man and a woman, very much in line with what the president has said. And I think that this battle should be appropriately worked out at the state level.

The states are the ones that are defining the question of marriage, and so they will be the ultimate arbiters, I think, of what constitutes marriage in a given state. So it is the appropriate reflection of the attitude and the culture of a particular community for that debate to take place. And I think the vice president has a legitimate point there.

The "legitimate point" seems to be that the GOP doesn't need to directly oppose state efforts to recognize same-sex relationships, and that is a huge step forward.

But can we stop for a second and ponder what Steele refers to as Dick Cheney's "situation with his daughter"? The situation, for those not in the know, is that Cheney's daughter is a lesbian. She has a similarly lesbian partner, and they live together, as people who have long-term relationships tend to do. My bet is they have sex sometimes. This is not "a situation," it's their life.

This is not as bad as Jeff Sessions talking about people with homosexual "tendencies," nor Cheney's inability to publicly mention gay marriage or civil unions when he intends everyone to understand those are what he is talking about. And all of these are better than George W. Bush's eight years as president -- during the 21st Century -- barely uttering the words "gay" or "lesbian," most notably absent as he was promoting an anti-gay marriage amendment to the U.S. Constitution.

The GOP is ever-so-slowly coming out of the vocabulary closet, and I wish them well. Perhaps they'll finally see how antique their arguments look when they finally phrase them in the actual words everyone else is using.

ADDENDUM: A commenter has raised the very good point about how Log Cabin Republicans fit into this. I think Steele's comments show both the magnitude of the problem Log Cabin has long faced, and the success they have had over the years. They are, in the end, trying to get better results from Republicans on gay issues, and that effort is now bearing fruit. It is, I admit, a bit churlish to criticize Republicans too much for the awkwardness with which they are -- grudgingly -- beginning to support gay equality. But that's kind of my point: the failure to use the ordinary vocubulary that the rest of the nation uses regularly to discuss gay equality -- including the word "equality" -- is what makes the GOP look so pitiful on this issue. I admire and respect Log Cabin for getting some GOPers to move away from direct opposition of state efforts toward equal rights. That's why I think these linguistic swerves and curlicues are less threatening than they have been in the past, and should be subject to a bit of ribbing.

And, to be fair, there are still enough Democrats (I'm looking at you, New York) who have the desire and the power to prevent equality in words that are pretty straightforward.

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6 1/2!

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With New Hampshire now on board, there are 6 1/2 states that have (or will have by fall) lawful gay marriage. Of course I include California, where same-sex marriage is unconstitutional except for the 18,000 marriages that were entered into between the time of the Supreme Court's opinion in In Re Marriage Cases and the passage of Proposition 8.

In fact, we probably have more same-sex marriages in a state that prohibits them than even the reigning champion, Massachusetts -- and that's true even if you assume that a full 25% of our marriages were of out-of-state couples, an extremely generous margin.

To quote Shakespeare, "The course of true love never did run smooth," and the legal recognition of same-sex partners is following as erratic and meandering a path as any comic plot Shakespeare could have devised or stolen. The blessing is that we now have good reason to believe these preposterous incongruities are worth laughing about, rather than crying over.

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The Spark We Needed

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Years from now, Proposition 8 is going to be thought of as the tragedy that sparked a revolution.

We've seen it before. Stonewall, 40 years ago this month. AIDS 25 years ago. It has always been the case that our greatest community successes were built on the backs of what at first seemed like disasters.

Our strength is that setbacks prod us to work together even more closely.

Before last November, most gays and lesbians who wanted equal marriage weren't very active about it. We might talk to each other about inequality, but except for our activist wing, we weren't taking to the streets.

Marriage across the United States seemed like a pipe dream. When New England's Gay and Lesbian Advocates and Defenders launched their 6 X '12 campaign - pressing for gay marriage in all New England states by 2012 - I almost laughed. No way, I thought.

At the time, only Connecticut and Massachusetts had equal marriage. California was taking it away. And New York, while it recognized marriages performed elsewhere, looked blockaded by religious Democrats in the state senate.

But after the November vote for Proposition 8, gays, lesbians and our allies started marching in the street. We started boycotting. We started writing letters. We started telling our stories. And it became clear: there are ramifications if citizens and legislators vote against us. We are paying attention. And we will act.

Then we started to see states jump forward with equal marriage. Iowa. Maine. Vermont. Soon New Hampshire. The District of Columbia started recognizing marriages performed elsewhere - and Maryland might go the same way in a few weeks. The Nevada state legislature overturned the governor's veto of domestic partnership rights. Pennsylvania is taking up a marriage bill.

Some insiders are even predicting that New York may vote for equal marriage before Pride.

What felt like a Sisyphean struggle a year ago now feels like a landslide. Even last week's California state Supreme Court decision felt something like a victory. The judges, in upholding Prop 8, ruled as narrowly as they could. Minority rights can't be taken away, they said. They can only be called something else.

Said the opinion:

"Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term marriage for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

"Among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage - albeit significant - that has been removed by this initiative measure."

They didn't overturn the 18,000 marriages. And they didn't overturn gay rights. Gays and lesbians have all the rights of married couples, they said. Just not the word "marriage."

And yes, that's "separate but equal." But - good news! - that's SEPARATE BUT EQUAL. And in our country we have a 50-year understanding that separate but equal is not equal at all. Which means that the decision is even more likely to be overturned the next time voters head to the polls.

June is Pride month, and we have a lot to celebrate. We still have to fight. We still have to do the difficult personal and political work of reaching our to communities of faith and of color to reassure them that by supporting us, they don't lose anything.

Forty years ago this month, we had Stonewall. Now we have Prop H8. It is exactly what our movement needed.

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The Upside of 8

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No sooner had the supreme court of California issued its 6-1 ruling last week upholding the constitutionality of the voter-approved Proposition 8 than gay activists called for mass protests across the country. As legal experts pored over the decision on the courthouse steps, hundreds of demonstrators directed chants of "Shame on you, Shame on you" at the court's justices, four of whom, it should be remembered, ruled last May that the state's constitution obligated the government to allow same-sex couples to marry. That the legal reasoning for the court's decision to uphold Proposition 8 might have been sound - as the limiting of marriage rights to opposite-sex couples constitutes an "amendment" rather than a "revision" to the state's constitution and is thus subject to popular approval - did not factor into these preplanned rallies.

Emotion ruled triumphant.

This is not to downplay the legitimate frustration and sorrow of last Tuesday. The anger of gays nationwide - especially those in California, who saw their rights ripped away before their very eyes - is understandable. And publicly expressing that anger, albeit peacefully and with respect for those with opposing views, serves as a useful reminder to the country's straight majority that gay people face serious burdens due to the lack of equal protection under the law. For too many heterosexuals - especially those who do not count openly gay people among their family, friends, or coworkers - gay rights are an abstract subject, something to vote on once every four years.

But at this point, gay rights advocates in California have the opportunity to fulfill the inevitable promise of their movement: Convince the majority of their fellow citizens that their cause is just and win equality with a resounding - and democratic - victory.

To see the silver lining in last week's court decision, it's instructive to weigh the costs of the ruling against its (perhaps, to some, utterly inconceivable) benefits. Let's start with the bad news: Gay Californians have lost the right to marry. That's disappointing, but there is an even chance that Proposition 8 will be repealed by 2010, and if not then, 2012. For a variety of reasons - the increasing number of young people becoming part of the electorate, the slow acclimation of heterosexuals to gay people living normal lives - the inexorable trend of gay rights issues is progress toward the equality position.

But the best case for why equal marriage will soon become reality in the Golden State has nothing to do with changing voter demographics, sociology, or better organizing: It is the 18,000 gay couples whose marriages remain legally valid (some of these 18,000 are out-of-state, though just how many is unclear). Their loving commitments to one another, rearing of healthy children, and enriched involvement in their communities will be the best case for preserving and extending marriage equality to all of California's gays and will put to rest fears that allowing same-sex couples to marry will somehow bring the sky crashing down.

So let's keep things in perspective: The worst that gay Californians will suffer as a result of this ruling is the inability to marry for the next year and a half to three years, at most. Meanwhile, gays in California can still enter into domestic partnerships (as they have been able to since 2004), which afford "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law" as marriage, excepting, of course, the voluminous federal benefits. The inevitable bestowal of marriage rights to same-sex couples in California will be only a change in name, at least until the federal government repeals the Defense of Marriage Act or decides to recognize state-sanctioned legal partnerships.

The obsession with winning court decisions obscures the reality of how civil rights struggles are ultimately won. "While Brown v. Board enunciated important values, real change came through the politically enacted Civil Rights Act of 1964," writes Yale law student and gay marriage supporter Aaron Zelinsky at The Huffington Post. He also reminds us that insidious laws like the Defense of Marriage Act and the military's ban on openly gay soldiers must be repealed legislatively, that is, by the people's elected representatives. Convincing citizens in the country's largest state of the justice behind marriage equality will make that job much easier.

How is forcing gay marriage advocates to the ballot box a boon rather than a chore? Winning equal marriage democratically in the country's largest state will help the national gay rights movement. Immediately, the attack on "activist judges" will be neutralized. Since last November the gay activist community has been awash in controversy over the manifold failures and incompetence of the No on 8 campaign. Now comes the opportunity to right those wrongs and perfect the working model of a statewide pro-gay initiative campaign, the likes of which can be replicated by activists in states across the country. And however "fatigued" voters may about the issue of gay marriage, in the words of Sacramento Bee columnist Marcos Breton, that weariness is more likely to lend itself to support for what most people realize is its inevitable passage rather than continued opposition, which only ensures that the controversy is debated more and more.

Judging by the increasingly pathetic arguments of the anti-gay-marriage right, the momentum is well behind pro-equality forces. In the short time between the passage of Proposition 8 in November and the California supreme court's decision to uphold its enactment last week, Iowa, Maine, and Vermont legalized gay marriage and the New York State assembly passed a gay marriage bill championed by Gov. David Paterson. The New Hampshire legislature passed a marriage equality bill expected to become law this week after successful haggling between the governor and representatives. On Monday the Nevada legislature overrode the gubernatorial veto of a domestic-partnership bill, making it the 17th state to recognize same-sex unions. When the injustice of the status quo is so transparent, it can seem fruitless to counsel patience in a civil rights struggle. But in this case, determined patience in the short term will produce everlasting benefits.

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Cheney on Gay Marriage — Kind Of

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I'm not sure why Dick Cheney is getting as much credit as he does for being to the left of Obama on gay marriage. I certainly appreciate the fact that he has spoken up about the subject, but after reading and listening to his words, I'm still not entirely sure what he said.

Here is his latest comment, which repeats a theme using words he has articulated for years:

"I think that freedom means freedom for everyone. As many of you know, one of my daughters is gay and it is something we have lived with for a long time in our family. I think people ought to be free to enter into any kind of union they wish. Any kind of arrangement they wish. The question of whether or not there ought to be a federal statute to protect this, I don't support. I do believe that the historically the way marriage has been regulated is at the state level. It has always been a state issue and I think that is the way it ought to be handled, on a state-by-state basis. . . . But I don't have any problem with that. People ought to get a shot at that."

It's clear he means to (and does) support some kind of state recognition of same-sex marriage. Or does he? What he supports is a right for couples to "enter into any kind of union they wish." He doesn't "have any problem with that" (though he clearly does not support any federal equality for this "kind of union.") Still, "freedom means freedom for everyone."

So he won't be advocating for any state to pass a gay marriage bill, or a civil unions bill or pretty much anything. He'd be happy, it seems, if states simply enforced existing contract law that would allow his daughter and her partner to "enter into" some kind of partnership. If states want to do more than that, he wouldn't object.

The absence of opposition is certainly progress for a national, conservative Republican, but only because the bar is so impossibly low. While Cheney's statements are regularly reported as showing his support for same-sex marriage, I don't believe I've ever heard him use the phrase "same-sex marriage," much less "support for same-sex marriage." I'd be pleasantly surprised if he's ever said he supports civil unions, using the word "support" right next to "civil unions," in conjunction with some kind of first-person pronoun.

To his credit, he is able to use the word "gay," unlike some of his fellow Republicans who are still referring to people with "tendencies." And lord knows I wouldn't ask Cheney (or anyone) to get comfortable with lingo like "LGBTQ." But, given the fact that he and his family have "lived with" this issue for years, is it really too much to ask whether he can actually say whether he supports same-sex marriage or civil unions, using the terms that most high-school students today are comfortable with? Or to ask him whether he supports equality rather than just freedom? Because those are two very different things.

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Good Party, Bad Party?

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Dick Cheney "takes a position that places him at a more progressive tilt than President Obama" regarding same-sex marriage, according to Sam Stein at the left-liberal Huffington Post. Cheney supports allowing states to let gay couples wed, which Obama opposes, although Obama supports civil unions. As Stein observes:

Cheney has made similar arguments in support of gay marriage in the past, including during the run-up to the 2004 election. But his current comments come at a moment when the Republican Party and conservative movement is increasingly split on the issue. Bush recount lawyer Ted Olsen and John McCain campaign manager Steve Schmidt have both argued in favor of gay marriage. The religious right, as expected, remains opposed.

Those who think the Republican Party is hopeless are wrong, but repeated declarations by LGBT Democratic operatives that we MUST support, and only support, their party is a strategy bent on ensuring that the GOP remains the hand-maiden of the religious right, while assuring Obama that he need do only the most minimal in order to maintain the unconditional support of national LGBT fundraising fronts (since he is, after all, busy with far more important tasks such as nationalizing the economy, spending us into generational mega-debt and regulating how we sit at our desks).

And counting... Per the Washington Examiner, by one report, 218 gay service members have been discharged under the "don't ask, don't tell" (lie and hide) policy since Obama and the overwhelmingly Democratic Congress took office. But if they end the ban, what would they promise LGBT activists - again - in 2010...and 2012?

Furthermore. A revealing comment from reader "SStocky":

Every time I'm solicited for Equality Florida I ask for information on what they're doing with Republicans who control the state government - who have they met with lately, what potential allies are they grooming, who's their contact in the governor's office? No answers are forthcoming and, of course, my wallet stays closed. Let's face it, no major civil rights legislation has ever passed without significant bipartisan support, yet the professional gay activists would have us believe putting all our eggs in the Democratic-liberal, left basket is the path to victory.

When will the community wake up and see they're being taken? When will serious efforts be made to reach out to all reasonable people of both parties and independents rather than continually playing the insider Democrat game? I hope it will be in my lifetime, but I'm not holding my breath.

When both parties were unwelcoming, we had a more or less bipartisan movement. Since the Democrats learned to use inclusive rhetoric and toss in a few (very few) bones, "LGBT" fundraising has been taken over by Democratic operatives whose allegiance is to serving their party. Like this reader, I'm not overly optimistic that things will change soon.

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A Suit Too Soon?

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President Truman's quip about wanting a one-handed economist-so that he would cease being told, "On the one hand…on the other hand…"-pretty well sums up my reaction to the news that Ted Olson and David Boies are spearheading a federal lawsuit challenging California's Prop. 8.

Olson and Boies are two of the most prominent constitutional lawyers in the country-as evidenced by the fact that they represented George W. Bush and Al Gore, respectively, before the U.S. Supreme Court in "Bush v. Gore," which decided the 2000 election. And yes, they are from opposite sides of the political spectrum.

Olson-who initiated the alliance-is a well known conservative heavyweight. In addition to representing Bush against Gore, he was the 43rd president's first solicitor general, has served on the board of the right-wing American Spectator, and defended President Reagan during the Iran-Contra scandal.

On the one hand, WTF?

On the other hand, there are increasing numbers of political conservatives who think that the standard right-wing position on gays is not just silly, but profoundly unjust. Olson appeared sincere and determined as he announced the lawsuit, together with Boies, at a press conference last Wednesday. As he put it,

I suspect there's not a single person in this room that doesn't have a friend or family member of close acquaintance or professional colleague and many of them who are gay. And if you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally like the rest of us and not be denied the fundamental rights of our Constitution.

I couldn't have said it better (which is exactly how Boies responded to Olson's words, patting his colleague and erstwhile nemesis on the back.)

On the other hand (that's three, and there will be more), doesn't the timing seem wrong? That's what many veterans in this fight-including folks at Lambda Legal and the ACLU-are saying. Olson and Boies seem determined to press this all the way to the U.S. Supreme Court. Call me a pessimist, but I can't imagine the current or any near-future SCOTUS deciding in favor of full marriage equality. (I'd of course love to be wrong about this.)

Pushing this case too soon could be both judicially and politically risky. A loss at the Supreme Court would create binding negative precedent for ALL states, not just California. Such precedent is hard to undo. Moreover, if the case is pending during the 2012 presidential election, it could be a rallying cry for right-wingers.

On the other hand, assuming this case does reach SCOTUS, much will depend on the idiosyncratic Justice Kennedy-a swing vote who stood up for gays in both Romer v. Evans (which struck down Colorado's amendment barring pro-gay ordinances) and Lawrence v. Texas (which reversed Bowers v. Hardwick and eliminated laws against sodomy). Romer, in particular, may be key backdrop for this case.

And even if we lose, forcing justices to put their arguments against equality in writing, for generations of legal theorists and law students to dissect, is bound to have a salutary effect long-term.

Moreover, the bipartisan nature of this legal team, and particularly Olson's conservative bona-fides, could be just what's needed to nudge pro-gay conservatives out of the closet in supporting marriage equality. If-and I mean IF; a big, fat, entirely hypothetical IF-anyone could convince someone like Chief Justice Roberts to reject the constitutionality of Prop 8, Olson's the guy to do it.

Olson is no fool. This is a high-profile case, and that's doubtless part of his and Boies's motivation for taking it. They will be working "partly" pro-bono. It is unclear who's paying for the other part, which surely won't be cheap.

On the other hand, unlike the push for a ballot initiative to overturn Prop. 8 in 2010 or 2012, this case won't require substantial monetary contributions from the cash-strapped grass roots. And if Olson and Boies don't take up the case, someone else less well-positioned would likely do so.

On the other hand, Prop. 8 may not be the ideal case on which to pin this battle. Olson and Boies plan to argue on equal protection and due process grounds. But California still allows gays and lesbians to enjoy virtually all the statewide legal incidents of marriage, just without the name "marriage." I'm not suggesting that the name is unimportant, or that "virtually" and "statewide" are the same as "all." I am saying that it seems easier to make an equal protection case where the legal incidents, and not just the name, are substantially unequal.

On the other hand, I'm no constitutional scholar. And there's momentum surrounding Prop. 8. And you gotta dance with them what brung you.

And it's the momentum, more than anything, that gives me hope here. A super-prominent conservative attorney makes a strong and very public stand in favor of marriage equality, recognizing it at the key civil rights issue of our day. Even if we end up losing this particular battle, it's hard not to grow more optimistic regarding the war.

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