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Tag Archives: Gay Marriage

Gay Marriage — The Final Countdown

Regular readers know my stance on this.  Gay marriage has in many ways replaced the death penalty as my personal litmus test for what I think about politicians and humanity in general.  For years, that test was the death penalty, but that’s a pretty hard test to apply when virtually every politician in America has to pay lip service to state sanctioned killing to be electable.  There are some exceptions to that, but it’s difficult to find politicians who actively campaign based on opposition to the death penalty.

Gay marriage is dramatically different, although that difference is getting remarkably smaller as well.

The United States Supreme Court will rule this year on a trio of cases that the pundits believe will produce an opinion that once and for all settles the question of whether there is a constitutional right in America for two consenting adults to marry, regardless of their gender or sexual orientation.  When appellate courts such as the Supreme Court hear cases, interested parties can file what are called amicus briefs, or friend of the court briefs.  The current gay marriage cases are bringing people out of the woodwork.

As reported in today’s Sacramento Bee, Meg Whitman and Neel Kashkari, the last two Republican nominees for governor in California, are among 300 conservatives who have filed an amicus brief with the Supreme Court.  Uh-oh.  The conservatives are lining up against gay marriage, trying to give the conservative wing of the court some backbone.  Right?  Ummm.  No.  This group of conservatives have filed a brief in support of gay marriage.

Maybe this isn’t such a litmus test anymore.  I also read something in the last few weeks that a lot of the fire-breathing right-wingers in Congress have recognized that silence on this topic is better than opposition.

But, wait there’s more.  Yes, the Tampa Bay Rays, New England Patriots, and San Francisco Giants have also signed on to a brief in support of gay marriage.  So, you know when the conservatives have started to come over to your side of things, something incredible may be happening.  And then when American professional sports franchises — one of the last bastions of intolerance to homosexuality in this country — are stating publicly their support of tolerance, humanity, and love for all.  Well, I’m just kind of gobsmacked.

Now, we can only hope that Scalia and Thomas are the only votes against this historic moment.

Things I Care Deeply About

Yes, I’m not supposed to be here.  But it’s 6:30 on a Sunday morning.  I’m in the backyard.  Sprinklers are running.  The crust for my blackberry cobbler is chilling and I have a couple of things to say.  Once I’m done with this post, I’ll be done with WordPress for the day, if not the week.  A couple of things happened this week that I care deeply about.  One that everybody knows about.  The other probably not.

First up … gay marriage is now legal in California.  It wasn’t the sweeping decision a lot of people wanted, but in California and a dozen other states, equality has prevailed.  The thing that bothers me is that it was decided on a technicality — standing — in a way that was the exact opposite of the exact same issue in the Defense of Marriage Act (DOMA) decided the same day.  I’ll try to say this in plain English.  Standing is a legal principle that says that a party bringing litigation must have been injured in some way, or have the potential to be injured in some way.  That’s the basic concept.  There are exceptions and corollaries and tangents to that, but that’s the basic idea behind standing.  A real basic example — I can’t sue you if you caused an accident that I wasn’t in, that I didn’t witness, and that did not result in any injury to me.

So, in the DOMA case, there was an issue regarding standing.  In the midst of the many appeals such cases have, the Federal government in the form of the Obama Administration announced that it would no longer defend DOMA in those appeals because they agreed with the plaintiffs that DOMA was unconstitutional.  Well, if the government (which is the defendant in a case challenging a federal law) and the plaintiffs a gree, then there is no controversy for the courts to decide.  The case is dismissed.  Not so fast.  A group of Congressional Republicans stepped in and defended DOMA.  The Supreme Court granted them standing because of their role in passing the legislation.  From there, the Supreme Court was able to decide the case on the merits.

With the Prop. 8 case, the Court reached the exact opposite result.  With a twist.  In Prop. 8, as the case wound through the courts, the Governor and Attorney General of California announced they would not defend the constitutionality of the proposition, which enshrined the opposite sex definition of marriage in the California Constitution.  So, if State government was unwilling to defend a state law, there were no defendants.  No controversy.  Not so fast.  The proponents of the initiative that placed Prop. 8 on the ballot stepped in and sought to defend the proposition.  The Supreme Court said they didn’t have standing and, therefore, there was no controversy, no reason to reach the merits.  The Supreme Court concluded that the initiative’s proponents had no official standing because they had no official connection to the State, no official role in creating or defending the State’s laws, unlike, say, legislators like the Congressional Republicans in the DOMA case.  And that’s where the Court fundamentally screwed up and revealed itself as a results oriented body rather than interpreting and enforcing the law consistently.

For 100 years, California, like some other states, has had a robust initiative system which allows the people to place proposed laws on the ballot for the voters to decide.  Why?  To bypass the Legislature and the Governor.  To enact laws they won’t enact.  Yes, the initiative process has become monumentally screwed up — California voters are just as good at passing stupid laws as their elected representatives.  But, THE ENTIRE POINT of the initiative process is to give the voters of the State of California the ability to make law.  The ENTIRE POINT is to bypass the intransigence of elected representatives who won’t do their jobs.  So, when the voters pass an initiative — even one that I abhor — and government officials refuse to enforce it or defend it — a position I completely support — the proponents of that initiative should be able to stand in the same position on Prop. 8 as the Congressional Republicans who were allowed to defend DOMA in court.  Justice Kennedy is a lifelong California resident.  He got this.

Here’s what I think happened in my cynical little mind.  The majority decision in the Prop. 8 case was an odd combination of both conservative and liberal justices.  The Supreme Court has a few very old people.  Scalia is 77.  Kennedy is 76.  Ginsburg is 80.  Breyer is 74.  Kennedy has always been viewed as the key vote on the issue of gay marriage, as he typically is on these divisive social issue cases.  There has been speculation that other Justices are not sure how he will ultimately vote and that they ruled on the standing issue the way they did to avoid finding out.  I think it’s this:  they’re jockeying, stalling for time, waiting to see who will blink first.  Which one of those oldsters will retire first?  And will it be during the Obama administration or will the conservatives, particularly Scalia, retire before the next Presidential election.  The Court is so close in its votes and its split, every retirement is critical on issues like this.  I think they voted the way they did to kick the can down the road with the hope that the votes for their respective sides will improve before the issue comes back.  And, in the course of doing so, they made horrible law.

Second thing I really care about.

This is just stupid.  If you are really an atheis, if you are comfortable with that title, you don’t need a monument.  Atheism isn’t a religion.  It isn’t a set of beliefs.  It is the absence of belief.  It is … ergh … erecting a monument to atheists makes those who demanded its placement no better than the religious believers they are challenging.

Legalia

I made up that word just now.  As I type this, I’m on a train from Los Angeles to San Luis Obispo.  I’ve read a few things about the Supreme Court arguments over the past couple of days.  For those who don’t know, they’ve been hearing arguments involving Proposition 8, the ballot measure that outlawed gay marriage in California mere months after the California courts ruled that the law that existed pre-Proposition 8 that outlawed gay marriage was unconstitutional.

What does that mean?  For a few months gay marriage was legal in California.  Until voters outlawed it again.  Since then, the long and winding road that is our justice system has rolled along.

There are a number of issues that could decide the case that is before the Supreme Court this week.  People who read this blog regularly know where I stand on the issue.  For semi-regular visitors, look to the right, just below my picture.  My position should be clear.

I am not gay.  Never have been.  Never will be.  But, in the famous words of a Seinfeld episode.  “Not that there’s anything wrong with it.”

In the run-up to the vote on Proposition 8, I saw friends for whom this issue was so emotional.  I realized what had been my somewhat laissez faire approach to it was misplaced and I became equally passionate about what seems so fundamental now.  I wrote last week attacking some people who evolve on issues and only come to the “right” position if they know somebody who is impacted on the matter.  A friend and commenter, Kathy, pointed out that sometimes that evolution makes sense.  Her comment forced me to recognize that I have done that on this issue.  Just as Barack Obama did.  There are some issues that break the mold for which change and progress and evolution may be necessary.

I’ve evolved on this.  I believe deeply and passionately that two adults who love each other and want to make the commitment to each other that marriage involves should be afforded the right to do so.  I believe that government needs to get out of this.  That for purposes of the law, and the benefits the law provides, the only term that need apply is civil unions, whether heterosexual or homosexual.  Whether something constitutes a “marriage” is to be determined by the two individuals and their faith, their beliefs.

That said, here’s where legalia comes into play.  In law, a foundational issue for any matter brought before the courts is standing.  A plaintiff must have standing to bring their complaint.  To put it in the simplest terms, they must be able to show an actual harm to them personally to be able to file the lawsuit.  In other words, if John violates his contract with Susan, I can’t sue to protect John’s interests.  John has to do so.

In the case of enforcing laws, the typical plaintiff is the government itself.  Proposition 8 involved an amendment to California’s Constitution.  If a court struck it down, it’s the responsibility of the State to continue the appeals process to attempt to enforce a law the voters enacted.  That’s how it’s supposed to work.

Problem is, from the perspective of the Proposition 8 supporters, is that in 2010, Jerry Brown was elected Governor and Kamala Harris was elected Attorney General.  Both Democrats, both supporters of gay marriage.  When it came time to pursue an appeal of a lower court’s ruling on this, Brown and Harris refused to do so because of their position and their belief that Proposition 8 was unconstitutional.

In stepped the individuals who had written Proposition 8 and supported its passage.  But, where’s there harm?  Where’s their interest that justifies their participation in the litigation?  In other words, what is their standing to sue?

This is a core issue the Supreme Court must decide — do the Proposition 8 proponents have standing to enforce a constitutional provision where state officials refuse to do so?

Here’s my fear, as a means of avoiding the substantive issues in this case, as a means of avoiding a ruling that will inflame one half of the nation, as a means of finding a majority of five on this difficult issue, the Court will punt and rule that the plaintiffs don’t have standing.

I hope they don’t.  Not because of what it will mean in this case — such a ruling would end up legalizing gay marriage in California, although not in the rest of the country — but what it would mean for our democracy.  If government officials refuse to take every step necessary to enforce laws, particularly those passed by the voters in a valid election, somebody must have the right to step in and do so in their place.

Yes, I don’t want gay marriage to be outlaws.  I abhor the position the Proposition 8 proponents are pushing, but I value the idea of democracy, of voters and elections.  I hope, rather than taking the easy way out via the standing issue, that the Supreme Court addresses this case on its merits, rendering a decision that may put this issue to rest.  At least somewhat.

An “Expert” Prediction

If George Will says it, it must be true.  Right?  He apparently now believes there is “an emerging consensus” on gay marriage because the “opposition to gay marriage is dying.  It’s old people.”

Whew, I’m glad we have the great and all-knowing Mr. Will pontificating on this now and letting us now the reality that is coming.  I mean, he is after all, the prognosticator who confidently predicted that Mitt Romney would win the electoral college vote 321-217, including that Minnesota, a traditionally blue state, would go for Mr. Romney.

I also love the fact that the consensus is emerging not because people are changing their minds on the issue, but because the people who oppose it are all old and, therefore, are dying.  Nothing like demonstrating you don’t get it, Mr. Will.

Why do people like him get to keep spewing their crap on morning shows and on the editorial pages?

Equality in Washington

I can’t begin to put into words just how absolutely cool this picture is.

And, here’s another one … the couple in this picture have been together for 35 years, meeting on a blind date in 1977.  They never believed they would get to marry before they died.  One is 77 and the other is 85.

Again, how absolutely cool is this?

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