Reminder: California is a State in Which Same-Sex Marriages Are Legal

Having zoomed through the California Supreme Court ruling on same-sex marriage recognition, here’s my basic, I’m-so-totally-not-a-lawyer opinion:

It seems like the California Supreme Court has upheld the amendment to the California Constitution embodied in Prop 8 to the bare minimum that they could without actually throwing it out (which, I am led to understand by a number of lawyer friends, would have been very difficult to do), and in doing so have made it as toothless as they could. As I understand it, the court is basically saying “same-sex couples are allowed every right non-same-sex couples are allowed except to the actual word ‘marriage,’ unless of course they were already married before Prop 8 passed, in which case they get to use the word ‘marriage,’ too.”

Let’s not pretend that the pro-Prop 8 folks didn’t get a victory here in banning recognition of future same-sex marriages in California, because they have. However, the victory they did not get, the one that mattered the most from the point of view of delegitimizing same-sex marriage in California, and the one will make the Prop 8 ruling look increasingly foolish and bigoted as time goes on, is the one that would have invalidated the 18,000 previously-existing same-sex marriages in California. These marriages make a mockery out of the Prop 8 wording, because guess what? That part of the California constitution that says: “Only marriage between a man and a woman is valid or recognized in California”? Completely and totally false. California is in fact legally obliged to recognize marriages between two men or two women.

Fact is, these existing California same-sex marriages are real, they are legal, they are valid and recognized. The people in them have the same rights as the people in any other marriage. Prop 8 has fundamentally failed to erase the state recognition of same-sex marriages in California. California is a state in which same-sex marriages are legal. That the state will no longer legally sanction additional same-sex marriages is in a very real way aside the point from this.

I imagine there are all sorts of legal implications to this ruling that will have to be sussed out from here, specifically involving why some same-sex couples are allowed legal recognition of their marriages while others aren’t, and in the long run I see the people of California seeing the fundamental bigotry of not allowing the latter group of same-sex couples to joining the former group in a wedded state. But that’s to be dealt with in the future.

In the meantime, I will revel in the fact that every time one of the people in those 18,000 real live actual legally recognized in the State of California same-sex married couples does something associated with the state recognizing the legal status of their marriage, they will taking one of their fingers — the one with the wedding band on it — and poking it directly into the eye of bigotry. You tried to kill my marriage, but it and I am still here, I hear them saying to the Prop 8 supporters. You tried to kill my marriage. You failed.

Yes, they did. They failed spectacularly.

127 thoughts on “Reminder: California is a State in Which Same-Sex Marriages Are Legal

  1. Also: Reminder that the Mallet of Loving Correction is still being wielded. Play nice with each other, even if you disagree with each other.

    (Dave, you did not precipitate this comment; I merely posted after you did.)

  2. I would add that the decision also says that the state Constitution requires that gay couples be given access to all of the rights and responsibilities of marriage under a different name.

    One of the thing which is not clear is whether the existing domestic partnerships – which are almost but not quite *all* of the rights and responsibilities of marriage – are converted to this new form of not-marriage required by the court, or if they remain seperate and there is now not-marriage, as well.

  3. As I mentioned over on the other post: I think the easiest way around this now is to simply merge the two civil contracts (DP and marriage) and call ALL of them Domestic Partnerships. So when you go apply for a marriage license–whether you’re a ss or os couple–you’re instead applying for a Domestic Partnership license.

    There will, of course, be the usual tooth-gnashing from people who think the state owes them the M word, but they should simply be told that they now get that word granted by the clergy of their choice, instead of the state.

    Which is how it should be in the first place.

  4. Haven’t had time to read the decision, but if that’s what it actually says, then the argument is essentially over in California save for those who insist on having the label as well as all of the substance. The reasoning would seem to conform with the previous decision.

    I was wondering that myself, aphrael. Even some of the existing not-marriage DP’s might (conceivably) have objections to the changing of their DP contract by the state without their consent.

  5. I promise to post an IAAL opinion once I’ve read the full text – hopefully today – but from the buzz on law blogs, sounds like because Prop 8 did not clearly state that it applied retroactively, it doesn’t. (Courts disfavor using laws of any kind as an Undo button unless said laws are clear that’s their goal.)

    If accurate, the most entertaining part of this is that the Prop 8 cabal put a lot of effort into handwaving that – namely, their intent to forcibly divorce same-sex couples – and are hoist by their own lame petard.

  6. I think that by recognizing the 18k same-sex marriages already in existence on the state, California is setting a legal precedent for future attacks against the ban, eventually overturning. Yay, California bigots.

  7. I haven’t read much further than the basics of the ruling. What about same-sex marriages from other states? Does California recognize them? Or only from before November ’08? Or not at all? Or is that thorny issue yet to be decided?

    Dr. Phil

  8. I’ve read the first chunk of the decision, and the court’s reasoning seems pretty sound to me. And I appreciate them writing it in a way that a non-lawyer can follow.

    I still don’t like the situation this puts California in, and I’m already setting aside time and money to push to repeal this change in 2010. And I’ll be doing that every election until enough older Republicans die off so that my friends and family can get married, rather than separate-but-equal married.

    Also, I am planning to push for a constitutional amendment that all Republican legislators can only refer to themselves as doofuses, rather than legislators, representatives, leaders, or politicians. By the court’s reasoning, that should be allowed. And given the way the legislators have screwed up the state budget, it’ll pass by a lot more than 52%.

  9. In the meantime, I will revel in the fact that every time one of the people in those 18,000 real live actual legally recognized in the State of California same-sex married couples does something associated with the state recognizing the legal status of their marriage, they will taking one of their fingers — the one with the wedding band on it — and poking it directly into the eye of bigotry.

    No doubt that will go both ways. The traditional marriage advocates in California will have a test case population to point to if those 18,000 marriages don’t at least meet the average expectations of marriage in the general population — if those marriages fail at a rate substantially higher than the California norm, for example. (Apropos of nothing, now I’m envisioning the ‘survivors’ whiteboard number on Battlestar Galactica.)

  10. Gerrymander:

    Not really. You seem to be forgetting that several other states also allow same-sex marriage at this point, so treating California as the “test case” population would not only be methodologically unsound (it is by the nature of this ruling an exceptional case), it would also be ignoring these other several states.

    Secondly, if (likely, considering the loci of same-sex marriage opposition) religious conservatives want to make the argument that high divorce rates imply certain couples should not be married, they would need to remove the beam from their own eye first.

  11. tal@4: Perhaps that would be the cleanest solution if we were starting from scratch. Since we’re not starting from scratch, your solution may have some startling consequences. e.g., if no one in California is actually married in the eyes of the state, perhaps a lot of Californians may miss out on Federal benefits predicated on them having state recognition of their marriage.

    gerrymander@11: That sort of scrutiny of a selected population of married couple pretty much guarantees that atypical results. You really need to compare them to 18000 heterosexual married couples feeling some sort of equivalent scrutiny.

  12. I lean pretty libertarian, so this ruling was a pretty good one, letting people do what they want while hopefully avoiding other messy legal issues and most importantly staying within the bounds of the constitution and laws of California.

  13. That sort of scrutiny of a selected population of married couple pretty much guarantees that atypical results.

    Yep. For example, rather than comparing them to the state figures you should compare them to an 18K opposite-sex-marriage sample married in California at about the same time. The much larger already-married statistical universe is different than the just-married one. Aren’t marriages that are going to fail are at their highest likelihood of doing so in the first few years? Using the larger group as a comparitive would in that case automatically trend the 18K SSM sample to higher divorce rates than the much larger group, even if it were equal to or less the divorce rates of the properly-compared 18K OSM sample.

    Apples to apples.

  14. As a Californian, I feel like my State Supreme Court, which I vote for, is trying to cut the Gordian knot with an ‘even-Steven’ solution. It doesn’t work. You can’t put the Genie back in the bottle.

    My uncle was in Fresno at church in the parish where the Catholic priest came straight out and said that Proposition 8 was bad. The congregation did *not* rise up in protest – only outsiders who heard about it and were not there. If one Catholic priest can say that, sure there are others out there that would if they could.

    This is kind of rambling, but I am rather ashamed of my Supreme Court right now.

    Lauren
    ——-
    The ‘Esque: http://whateveresque.com/
    Check it out!

  15. John, I have to disagree with you on this quote:

    “That the state will no longer legally sanction additional same-sex marriages is in a very real way aside the point from this.”

    I understand what you mean — that it’s not as much a setback as it would first appear. But in my eyes, that’s the secondary point. The primary point is allowing those additional marriages.

  16. Tom:

    I certainly allow that not everyone is going to see that as I do. And to be clear, I think it’s tremendously important to get those unmarried same sex couples in California that right back.

  17. thepi@14

    I think I’m missing something here. Since when does saying “You can’t get married any more” allowing people to ‘do what they want’?

  18. @ thepi:

    What Nargel said.

    I also don’t see how your comment would reasonably come out of a libertarian mindset. (Speaking as someone who used to be a libertarian and still harbors significant libertarian leanings.)

    Oh yeah, and how is this ruling *not* legally messy?

  19. Lauren: I really think the state Supreme Court was in a bind here.

    Defining Proposition 8 to be a revision would not only have called into question numerous previous decisions – the decision about the repeal of the fair housing act, about the reinstitution of the death penalty, about the abolition of diminished capacity, etc – but it would have dramatically undermined the power of the initiative constitutional amendment.

    The change implicit in that decision goes way beyond just the issue of same sex marriage, implicating the very foundation of California’s direct democracy system. I think it would have been a revolutionary change.

    Given that, what can they do? Instituting that revolutionary change is not their job, especially when precedent points the other way. Overturning Proposition 8 on the revision/amendment grounds wasn’t really an option.

    So … instead they defined Proposition 8 as narrowly as possible, in effect saying that it was *entirely* about the name, and that gay couples retain the right to get not-married and have our not-marriages recognized by the state.

    Sure, seperate but equal is bad. But in this particular case it makes Proposition 8 laughable, takes out a lot of the sting of the discrimination (the concurrence basically says the legislature has a responsibility to find a solution in which gay and straight couples will be treated equally, even in name), and gets conservatives to cheer a court decision which constitutionalizes domestic partnerships.

    It’s not a full loaf; it’s not everything I want. But it is, I think, the most I could have gotten after Proposition 8 passed, and way more than I expected.

  20. aphrael: That’s very well put.

    There’s been some discussion of calling a CA constitutional convention to sort out all the idiocy surrounding our finances and budgeting process. I’m a little worried that the court’s effective gutting of Prop 8 could get undone as part of horse trading during that.

  21. My prediction is that this ruling – that some gay couples can be married in California and some can’t – will produce a federal lawsuit challenging it under the equal proection clause of the US Constitution (which will certainly trump anything in the state constitution). And that said lawsuit will succeed, with the US Supreme Court ruling that if some gay couple can be married in a give state, the state must allow all gay couples to marry.

    If I had to guess, I’d say this was exactly what the state Supreme Court intended, too. This way, they save face by saying “we’re obeying the will of the people, even if we personally don’t agree” without any real chance of it making a difference.

    I’ve expected this all along.

  22. Brightest Bulb, I think you’re wrong on that, mostly because 14th amendment equal protection law doesn’t sweep as broadly as you want it to.

    The classification in question – between couples marrying before date X and couples attempting to marry after date X – is not a suspect classification and would be subject to rational basis review. I think it’s next to impossible that such a classification would fail rational basis review.

    Now, there *is* a good argument that the gay / straight classification is a suspect classification – Lawrence and Romer both imply that it’s subject to some undefined sort of heightened scrutiny – but I think the current Supreme Court would be unlikely to say that.

  23. The Brightest Bulb @24 – what, precisely, is the equal-protection violation here? I mean one that would fail a ‘rational basis’ test.

    gerrymander @11, and if those 18,000 couples do spectacularly well, do you think that anti-marriage activists are going to throw up their hands and say “Well, darn it, we were wrong. Sorry, gay people, we had no idea you’d do this well, we talk it all back”? Seriously?

  24. So when you go apply for a marriage license–whether you’re a ss or os couple–you’re instead applying for a Domestic Partnership license.

    I have been married- it was a civil marriage, with no clergy involved- and see no reason why I should give up my rights to the term, just to make religious people happy. If they don’t like my marriage being equal to theirs, then they need to change their term to something else and perhaps get out of the legal marriage business entirely.

  25. John @ 12: treating California as the “test case” population would not only be methodologically unsound

    Yeah, if there’s one thing political lobbying is just rife with, it’s sound methodology.

  26. John Chu @13: Thanks to DOMA, Federal law won’t recognize same-sex couples regardless of the word used to describe their legally bound status. Merely calling them “married” on the state level doesn’t change federal law.

    Likewise, however, calling legally bound couplehood something else isn’t going to change the Federal status of that state of being. Just because Louisiana calls their counties “parishes” doesn’t mean those entities aren’t treated exactly the same as counties on the Federal level. Same with some places calling their city council members “aldermen.”

    And Pam, I understand what you’re saying, but honestly, I wish the semantic debate would go away. The word itself isn’t going to legitimize same-sex relationships in the eyes of the bigots, so what’s the point? If the legal status of civil unions is the same for both kinds of couples, because it’s the exact same process, contract, etc., what does it matter that only churches get to use the M word? My name is still legally my name even if the giving of it wasn’t legally called a Christening. A circumcized gentile boy is still just as circumcised even if the procedure for doing so isn’t called a Bris. If the fundies are satisfied with just getting the word, then by all means, let them have it so they’ll go away.

  27. I think the decision makes it very clear that the Supreme Court didn’t want to uphold Prop. 8, but that they didn’t have a choice. For better or worse, California does have a law that allows simple Constitutional amendment via ballot initiative, and Prop. 8 did win.

    So they interpreted it as narrowly as possible, and that’s better than it could have been. But I still feel like I’m reading Plessy vs. Ferguson, 113 years later. “You can’t have marriages, but you can have these other things, and we promise that they’ll be just the same.”

    Isn’t that “separate but equal” all over again?

  28. tal @29:
    1) We’re talking in large part about laws, where semantics are extremely important. What you call things does matter.

    2) It’s not the bigots; it’s the muddled middle who care. “Mom, dad, I’m getting unionized” just doesn’t have the same ring to it, even for parents who are OK with their children being LGBT.

    3) They’re not going to go away. There is a large wing of the bigot movement that doesn’t want civil unions, either. They were leaned on very hard to STFU during the Prop 8 campaign, because the separate-but-equal lie was a very important tool in winning over the undecided. “And we don’t want the sodomites to have any rights at all!” isn’t a ringing election cry, even in California.

  29. Dave H. : If, in practice, this does end up being “you here get marriage licenses and you over there get DP licenses and never the twain shall meet,” then yeah. I’m there.

    But it remains to be seen what the bureaucratic practicum of this will be. If folks want more streamlined government, they’ll be in favor of the merger/rename of civil marriage licenses. If they’re happy with the wasteful and ridiculous idea of two completely different sets of paperwork to do the exact same thing, then they’ll stick with the DP/marriage split.

    I’m guessing it’s in the leg’s court, now. Should be interesting to see.

  30. Tal: it’s not just the legislature, though, it’s also the governor. The legislature is squarely in the marriage equality camp (they’ve *twice* passed a gay marriage law only to see it vetoed); the governor, not so much.

  31. Dave H. @ 31

    “Isn’t that “separate but equal” all over again?”

    That’s pretty much how I see it. And, well, we all know how the laws went for that one in the end, don’t we? ;)

  32. Why are we at all concerned about whether the 18,000 married gay couples do better or worse, divorce-wise, than straight couples? If they do significantly better, will Californians outlaw heterosexual marriage?

    More interesting, I think, is that California has a nice test bed for the notion that gay marriage imperils straight marriage. In 2010–or whenever an anti-prop-8 initiative is placed on the ballot–shouldn’t we expect to see a parade of oafish straight ex-couples come forward and claim that the 18,000 gay marriages ruined theirs? And if such couples can’t be found, doesn’t that kill the claim? Either way, it ought to be a hoot.

  33. Mythago: I’ve yet to see a member of the mushy middle who, when educated about the reality of there being two completely different things (holy matrimony and civil marriage) doesn’t have a sudden lightbulb moment and get completely on board with the idea of ss couples being able to have the legal contract. But I do think some of such may well still exist. It’s mostly older folks, and those who were raised with a very traditional religion, who just can’t seem to get it out of their heads that the word “marriage” solely describes a man and a woman who are bound in the eyes of God, and that the state part of it is just a formality. Some of these people don’t even think opposite-sex couples who don’t get married in a church or by clergy are really “married” because they have so conflated religion and that state.

    Yes, these people are stupid and stubborn, but if those folks are the only people in the way of switching from 51% in favor of prop 8 and 51% against? Then what the heck: Concede the word.

    The hardcores, as you say, oppose any legal recognition of same-sex couples at all. And they always will, no matter what it’s called. But on their own, they’re simply not enough to get in the way of progress toward that legal recognition. They need that extra, clueless and stubborn but not hateful 5-10% to keep winning these measures. If we get those folks instead by just handing over the M word, then we win. Simple as that. And wouldn’t it make more sense to have a win than a word?

  34. Purple: Yeah, we do. But I’d rather not have to wait 58 years for the same-sex marriage “Brown vs Board of Education.”

  35. Aprhael: Perhaps by the time this makes its way through the slow machinery of government, there will be someone sane to replace the Governator (who has been completely useless to just about everyone, as far as I can tell.)

  36. Fantastic post, JS. I, too, am feeling very “glass half full” about the ruling today, and very optimistic about 2010.

    In the long run, taking care of this issue at the ballot box may be better anyhow, as it will quiet the calls of “judicial activism!” from the ignorant masses, and send the message that California, as a people, believe in and recognize civil rights, and we don’t have to be dragged kicking and screaming to do so. (At least, I hope we don’t…because it is apparent now that we will not be).

  37. SECTION 1. All people are by nature free and independent and have
    inalienable rights. Among these are enjoying and defending life and
    liberty, acquiring, possessing, and protecting property, and pursuing
    and obtaining safety, happiness, and privacy.

    First line of section one.
    You can’t see the problem with this ruling?

  38. tal@29: I apparently wasn’t clear. I was elaborating on what you had suggested: taking the marriage label away from heterosexual couples. I’m not as certain as you are that the legal relationship doesn’t actually need to be called “marriage.”

    I guess the relevant questions are whether any heterosexual couple have registered in a domestic partnership and whether the Federal government have granted those partnership marriage benefits at the Federal level. Or to go further afield, whether there are any heterosexual couples who have executed the legal agreements to mimic all the rights and responsibilities of marriage. (Just to be sporting, this ought to be in a jurisdiction which does not recognize common law marriage.) I’d be interested to know whether those couples are awarded Federal marriage benefits.

    In any case, as I said, it seems to me that if we were starting from scratch, the “nobody gets the marriage label from the state” solution would undoubtedly be the cleanest. (I note though that various bigots would probably still be miffed because it does not prevent same sex couples from receiving the marriage label.) However, since we aren’t starting from scratch, I don’t think it would be wise to enact this solution without a careful look at the laws it would affect.

    Certainly, in Massachusetts, when same sex marriage first became legal, the local NPR station was doing reports about the unexpected ramification due to the interaction with the Federal DOMA. I can only imagine what changing the status of every married couple in an entire state might be.

  39. John Chu:

    And not just in that state, since I have a California marriage license, and I live in Ohio.

    John:

    “The people” in this case got exactly what they were asking for, and not a damn thing more.

  40. This isn’t to disagree with anything you’ve written, John, so much as it is to just sigh and say, “It stinks to get yet another damn opportunity to practice patience.” (Trans woman here, not planning to get married anytime soon anyway, but with GLBT friends in California and concerned about their well-being.)

    I wish sometimes there were a way to bottle up the feeling of having one’s basic rights at others’ whim.

  41. “I’ve yet to see a member of the mushy middle who, when educated about the reality of there being two completely different things (holy matrimony and civil marriage) doesn’t have a sudden lightbulb moment and get completely on board with the idea of ss couples being able to have the legal contract. But I do think some of such may well still exist.”

    I was one of those people. I am opposed to ss marriage within my religious community. I no longer oppose ss marriage under US law. It’s too bad we can’t start from scratch and have different labels for the religious v legal forms, but it’s too late for that. As long as US law doesn’t interfere with my religion, I have no problem with US law recognizing the legal contract and calling it “marriage”.

  42. To clarify, this decision lets same-sex couples do all the same things opposite-sex couples can do, except call their relationship marrage. The only thing they are missing out on is the lable of “marrage” recognized by the state. And this preserves the right of the people to change their constitution as allowed by the constitution, the same right that will undoubtably be used to challenge the amendment enacted by prop 8.

  43. @thepi:
    o clarify, this decision lets same-sex couples do all the same things opposite-sex couples can do, except call their relationship marrage.

    So, can we expect to see a lot of alternate-word ceremonies soon? Perhaps they could ‘merry’ in a ‘merriage’ ceremony (although maybe ‘morry’, recognizing the Mormons that helped bring this all about, would be a better choice)?

  44. This was my reading of it, too, and it makes me very happy. It’s as if the California Supremes are giving the Prop-Eighters exactly what they asked for… whether it’s what they wanted or not.

  45. I guess another part of the strategy for the good guys in California would be working hard to find a viable candidate to run against that dumb musclehead in the Governor’s mansion. And even if they person who runs against him is another bonehead, work to defeat Arnie. He deserves to be punished for those vetos, even if his replacement is no better than he is.

    Now, if the potential replacement is worse than he is, that’s another story. But anyone worse than Ahnuld would be a challenger in the primary, so I wouldn’t worry about that.

  46. Arnie is termed out and cannot run for re-election.

    The likely candidates at this point are: Jerry Brown, Gavin Newsom, and Antonio Villairagosa (on the D side); Tom Campbell, Meg Whitman, and Steve Poizner (on the R side).

  47. Sometimes I dream of being part of a population that’s worth something more than being fodder for someone else’s notional hilarity. Sometimes I get to thinking about that a little much and remember a bit about why GLBT suicide rates are what they are. (Protip: Having to reappraise your whole sense of self when it comes to sex and gender is painful. In some ways it’s worse for people who care about you, since at least you know what’s going on inside your head, and they’re faced with all the other possibilities too. “Illuminating conflict ensues” wouldn’t have pushed the same button.)

    My gay friends in California aren’t having a particularly good day. Arguments within the GLBT community about how to proceed and what to aim for are intense, and there’s a general expectation of more homophobic violence as whatever the next round gets underway. That seems discouragingly plausible to me.

  48. My gay friends in California aren’t having a particularly good day.

    I can understand that; but, speaking as a gay California, I think it’s an overreaction. The true kick in the face was election day; the court case was always a long shot, a desperate hope that was unlikely to pan out.

    In a sense, nothing is different today than yesterday: our task remains to go back to the voters and convince them they were wrong, and this decision has not made that any harder.

  49. Aphrael, it sounds like what has them down is not the decision itself but the intensity of others’ reactions, and the stresses this puts on their social circle/community. Which is to say that they agree personally but still have to live among others.

  50. Tal: “If we get those folks instead by just handing over the M word, then we win. Simple as that. And wouldn’t it make more sense to have a win than a word?”

    We don’t win if we lose the word. No group can own a word in the English language, and marriage is a legal term besides, so we can’t give them the word anyway. Saying that religious groups are the only ones who can use the word marriage is not a win, it’s discrimination, not only to gays but to those who are not part of a religious community. It’s like saying that only white people can be called human because white people feel it’s their word traditionally, or that Latinos cannot be citizens because only Anglos own the word. Marriage is not religious, and people can claim it is until they are blue in the face, but that doesn’t mean that they get to make that claim law over the rest of us. I am a married straight atheist woman who was hitched by a judge, and no priest or rabbi gets to tell me I’m no longer married because it’s suddenly their word to control. That’s not democracy.

    Nor, as has been mentioned, will it satisfy them. They want more than marriage. They want to control how others who are not members of their group can operate under the civil law. Jonathan decided that as long as his religious community retained their religious freedom, he didn’t object to civil law. But most of the other people object not only to gay marriage in civil law, but want people who are not of their faith and do not obey the rulings of their church or temple to be penalized by the civil law. The old biddies who can’t stomach gay marriage also want to re-criminalize gay sex, to prevent interfaith marriage, reverse female reproductive rights, want laws restricting minorities from buying houses in their neighborhoods, and Muslims from building mosques, want to change rulings of other faiths that let women be clerics, etc. The RNC declared Obama a socialist in an attempt to restart 1950′s witchhunting, a Congressman running for governor of Georgia wants to reverse the right of anyone born here to automatically be a citizen of the U.S. Marriage is just one plank in the platform of those who oppose civil rights. It’s not just that they are uncomfortable with the idea of gay marriage; they want to control what rights various groups can have.

    So no, appeasing bigotry by giving them legal ownership of a word is not the way to go. I am not giving up the protection by law of my marriage, and doing so would get me nothing, and not resolve the basic desire to take away or restrict civil rights.

    So I don’t see Prop 8 as being defanged. Yes, it looks ridiculous. But it was upheld. It will be a hard fight to get rid of it. And Prop 8 was never about the word marriage. It was about who gets to control the law. It’s not just the gays that got screwed. Civil marriage got screwed too.

  51. tal @37: “concede the word” means giving in to the bigots in order to gain absolutely nothing. Same-sex couples in California already have “domestic partnerships” available to them, which satisfies the M Word crowd (who I don’t, myself, characterize as fence-sitters).

    Conceding the word gives the bigots exactly what they want in return for nothing. If the word is really such a no biggie, why can’t they concede it? Such not worth the fuss, isn’t it?

    But of course, it is worth the fuss. That’s why they fight so hard.

  52. I’m of the opinion that the California Supreme Court continues to do more damage than good. Whether to recognize same sex marriage is a matter which should have been left to the legislature or the people, not the courts. Having stuck their oar in, they retreat in the face of Prop. 8, but issue a ruling which is too clever by half. Being a cynic, I’m of the opinion that it will blow up in their face, yet again.

  53. . Whether to recognize same sex marriage is a matter which should have been left to the legislature or the people

    I’m going to start referring to this as the Nothin’ But Puppies viewpoint. You know: the idiotic belief that Marbury v. Madison did not grant the courts the power to review the constitutionality of all laws – just the ones that not too many people get excited about.

    So, if the Supreme Court wants to decide “does the Constitution allow the government to recognize that puppies are cute?”, well, that is the proper role of the judicial branch. You will never have marching in the streets or millions of dollars poured into ballot initiatives regarding the cuteness of puppies.

    But anything more than that…whoo, doggie. We don’t want courts to touch that stuff. Anything upsetting doesn’t belong in a courtroom, no way, no how. The judicial branch is for Nothin’ But Puppies, and other issues that are similarly brainless.

  54. I’ve yet to see a member of the mushy middle who, when educated about the reality of there being two completely different things (holy matrimony and civil marriage) doesn’t have a sudden lightbulb moment and get completely on board with the idea of ss couples being able to have the legal contract. But I do think some of such may well still exist.

    I think my 86-year-old grandmother falls in this category. And even when I pointed out that the name matters – see New Jersey, where civil unionized couples are screwed over by asshole corporations – my grandmother was just “I don’t know”. And she’s pretty accepting of gays – one of her cousins was gay – but this, sadly, is her blind spot. (That, and she’s rather binary about sexual preference. By the way, does anyone know of a book that gives advice on explaining non-monosexuality to the elderly?)

  55. I blogged at some length about this here — I just want to repost what I see as the crux of the reason why “civil union” is not really good enough: Suppose you were having to argue with some bigot over whether your same-sex life partner got to take advantage of one of the many little privileges of marriage. Which argument would you rather advance?

    1. The government says we’re married, so fuck off.
    2. The government says we’re civilly united and you have to treat that the same as marriage, so fuck off.

  56. Also, I’d just like to encourage all Whatever readers who are planning a wedding to marry in a state that recognizes marriage equality. It’s a step that even the straightest among us can do to promote the recognition of same-sex marriage; you can explain to your Nevada family and your fiance’s family in Oregon why you’re having the wedding in Iowa. Besides, by boycotting states that don’t recognize marriage equality, you’re putting economic pressure on wedding venues and related services to advocate for marriage equality (hopefully with money and votes).

  57. Maureen:

    As long as the bride’s mom is on board, word. Otherwise, well, tough chicken.

  58. Not only that, mythago, but they’ve had it explained to them over and over. It’s like each thread is a brand new world to them. stevem, there, has heard it at least three or four times, from lawyers, and still keeps spouting that same old stuff.

    What a weird species we are. The people whose beliefs are fixed regardless of facts believe they’re superior, in fact, to the people who believe that facts are fixed regardless of belief.

    Uh…

    There are two kinds of people (at least): the kind who have their beliefs, and never change them; they reject facts that don’t fit. Then there’s the kind who strive to make their beliefs fit all available facts, and therefore their beliefs change (slightly) all the time. The first group really, honestly believes they’re better than the second group.l

  59. Xopher @67, but remember, we don’t care what the stevem sorts of the world think, or at least I don’t. I’m more concerned about other folks, who may be undecided, or who are dealing with those arguments in real life. Remember the scene in Thank You for Smoking where Naylor takes his son out for ice cream?

    As has been said before, it is difficult to get a person to understand something when their being right on the Internet depends upon their not understanding it.

  60. JS’s OP absolutely hits the nail on the head. The California Supreme Court dealt a HUGE blow to supporters of Prop 8 today, and they are so busy celebrating that they don’t even realize what happened.

    What happened is that the entire goal of Prop 8 — to eliminate gay marriage in California — was defeated. And in that defeat, Prop 8 went from being a devastating blow to gay rights in California to being a mere speed bump on the road to marriage equality.

    All the headlines say “Gay Marriage Ban Upheld” and “Prop 8 Upheld”…and those headlines are dead wrong. Prop 8 says that “only marriage between a man and woman is valid and recognized in California.” And, as JS points out, that is absolutely not the law in California now. Thousands of same sex marriages are valid and recognized in California. Real, live, tangible marriages involving real human beings enjoying the very same rights, privileges, and obligations of marriage that heterosexual married couples enjoy, right down to the semantics of how the relationship is described and recognized by the state. They are married, and there isn’t a damn thing Ken Starr can do about it now.

    Essentially, all Prop 8 accomplished was a temporary suspension in the rights of same sex couples to get married, until such time as the issue can be raised again by ballot initiative…because, in the process of creating that temporary suspension, Prop 8 also managed to awaken many to what may be the most significant civil rights issue of our time. Same sex marriage opponents pushed their agenda through fear mongering and misleading the public…but fear dissipates over time, and lies get exposed. And the Mormons run out of money. And it’s awfully hard to argue that the sky will fall if same sex marriage is legal when thousands of same sex marriages will have been legal for years, and the sky stayed right where it was.

    I’m bullish on same sex marriage. There are some battles still to be fought, but the outcome is now inevitable. My guess is Prop 8 is overturned by a 55%/45% vote in 2010.

  61. Jonathan, #47: “I am opposed to ss marriage within my religious community. I no longer oppose ss marriage under US law. It’s too bad we can’t start from scratch and have different labels for the religious v legal forms, but it’s too late for that. As long as US law doesn’t interfere with my religion, I have no problem with US law recognizing the legal contract and calling it ‘marriage’.”

    The other side of that, though, is that the state has no say about religious same-sex marriages, and your religious community has very limited ways to enforce any prohibition of same. It can’t stop other denominations from recognizing same-sex marriages, for instance; it can excommunicate members who participate in such a rite, but I think people are going to have to get used to the question of why they’re working hard to stay in a sect that hates them. This is perhaps more powerful for Protestants than for Catholics, but there is nothing to stop any two people from having a ceremony, exchanging vows, and declaring themselves married in the sight of their god. It has no legal standing, but for those who just have to have the word “marriage,” and nothing else will do, it is a reminder that apart from the legal status, it’s true that nobody owns marriage.

    By the way, it’s my understanding that in some European countries, there is no civil marriage, only civil unions, and marriage is a purely religious rite and realm. So it can be done; it would be interesting to know more about this state of affairs came about.

    I’m increasingly dubious, though, about this obsession with the word “marriage” and the invocation of “separate but equal.” It really does seem to connect to a devaluation of relationships that aren’t marriage, of people who want to be partnered without the specific baggage that goes with marriage — civil unions, domestic partnership, and the like. For all that many marriage advocates insist that marriage is culturally determined, changes historically, and so on, they seem to think that the word “marriage” has some sort of magical essence.

    Yes, marriage has and gives status in this country, but that’s not necessarily a good thing. I’m glad that “legitimacy” has lost most or all of its legal force, for example, that divorce is easier to get, that fornication and adultery are no longer against the secular law, that wives don’t lose their legal selfhood as they used to. From time to time I’ve argued with other gay men who said that they wanted a “traditional” marriage like their parents supposedly had, but they had only vague and mistaken ideas of what “traditional” meant. I’d be very happy to let the cultists have marriage and go with civil unions — for everybody — plus other alternatives and recognition of different kinds of families. I think it’s as archaic, and as mistaken, to see marriage as the consummation devoutly to be wished, as it is to see heterosexuality as the ideal human erotic arrangement.

    Ceri, #54: “Sometimes I get to thinking about that a little much and remember a bit about why GLBT suicide rates are what they are.” From what I’ve seen, it’s because gay kids — usually gender-nonconformist ones — are teased, harassed, tormented and assaulted, and it gets worse as they get older. Not because “Having to reappraise your whole sense of self when it comes to sex and gender is painful.” But demonizing of sissies and bulldykes in the gay community continues apace, as “the stereotype” we don’t want to be or fit.

  62. @DavidK #49

    That sentence was overly broad, and I thought clarified in the next sentence. However, no one will be stopping same-sex couples from calling their unions “marriage” in everyday use, nor can anyone stop them from having private “marriage” ceremonies in private even though it will not be recognized as “marriage” by the state. Basically at this point, it is wrangling over a legal label which the government shouldn’t have anything to do with in the first place. <-By that I mean I think that govenment should not sanction any marriage, merely enforce private contracts between people. Also, to avoid further issues, I use the word "should" to indicate what my ideal would be, not that I think it is or ever will be reality.

  63. Kendall — thanks, it’s not often I get praised for venting frustration. I’m grateful to Scalzi for turning his blog over periodically to allow us to do this.

    The gay marriage fight is not only about marriage, gay or straight. What anti-gay activists fear is that if gays have actual marriage, it legitimizes gays and gay relationships in society. It subjects them to less demonization and harassment, especially in schools. It makes the target on gays’ backs, whether they are “stereotypical” or not, smaller. And anti-gay activists don’t want that. A lot of them are trying to make the target bigger, by claiming that gays are pedophiles or open the door to pedophiles — criminality, since legally being gay is no longer criminal.

    Marriage is considered the height of normalcy and respect. So it has to be “defended” or gays will be considered normal and their relationships respected. It is cool that we have 18,000 couples in California that have successfully invaded. But they’re now marooned on an island — pioneers.

  64. KatG: Re. your previous comment, I was so happy to see you directly and logically argue against the “oh, just give up the M word” lunacy. Re. your latest comment–as some would say: “Yes. This.” :-)

  65. stevem: Whether to recognize same sex marriage is a matter which should have been left to the legislature or the people, not the courts.

    Please stop. You’re not describing the three branches of government as they are laid out in the US constitution.

  66. “The gay marriage fight is not only about marriage, gay or straight. What anti-gay activists fear is that if gays have actual marriage, it legitimizes gays and gay relationships in society.”

    I suggest you get to know your opponents’ motivations better than this, and begin to take them at their word. No matter what opponents say their motivation is, there’s always this rush to claim the real motivation must be something else. It, too, is a form of attempted demonizing: to attribute only obviously wrong, obviously sinister, obviously irrational, or obviously uninformed motivations to one’s opponents, while discounting the possibility that the opponents’ real motivations could be complex, rational, made in good faith, or based on true information.

    Of course, it also makes it much more uncomfortable, since one only has to engage with the imaginary evil simpleton opponent, and never has to meet anyone real.

  67. no one will be stopping same-sex couples from calling their unions “marriage” in everyday use, nor can anyone stop them from having private “marriage” ceremonies in private even though it will not be recognized as “marriage” by the state.

    Right. I am married to my husband. My marriage is recognized as such by my friends, family, and community, regardless of what the state thinks.

  68. bearing, imaginary motivations are one thing; real motivations are another. It’s really not a big secret that a large (if not the dominant) wing of the organized anti-SSM movement is not pro-civil unions, but sees homosexuality as morally wrong. Are you really claiming that this is not true?

    Duncan @71, the religious argument is a red herring because there have always been conflicts between civil marriage law and religious law – and there has never been an instance of a religion forced to marry people in violation of its tenets. Never.

    I have repeatedly asked Prop 8 advocates to point me to a single case where somebody tried to sue a religious body for refusing to marry them. All I’ve gotten is a lot of foot-shuffling and an occasional reference lawsuits against churches operating a secular business.

    So the church-will-have-to-marry-those people question is not a new issue, and it’s not a real issue. Congress could make SSM legal everywhere in America tomorrow, and your church still would never need to perform a same-sex wedding – just like no Orthodox synagogue will ever need to marry a Jew and a Gentile, and no Catholic church will ever be forced by law to sanctify the union of a divorced Catholic and a practicing Wiccan.

  69. You list a good example of the sort of straw man I write about.

    You have, perhaps heard it said by some of your opponents that “homosexuality” is not the same thing as “sex acts between opposite-sex people,” and that it is the sex acts that are morally wrong?

    When someone insists that this is a distinction without a difference, and that the opponents must in fact believe that “homosexuality is morally wrong,” this is an example of inaccurately assessing the motivation of the opponents. It is, perhaps, easier to engage with the belief that the opponents think “homosexuality is morally wrong” than with the opponents’ real belief about homosexuality, about homosexual acts, and about the persons involved. Which is more complex than that. I don’t doubt that almost everyone here would disagree with the set of real beliefs, but I certainly think it would be more honest to engage with those beliefs as they are instead of engaging with an internally satisfying and simplified caricature of them.

    I also think it’d be more successful.

  70. bearing@81,

    It doesn’t matter if SSM oponents believe that homosexuality is morally wrong, or that sex acts between same sex partners is morally wrong, or that they just don’t like us. The truth is that your moral judgements should not be allowed to affect my civil rights, including the right to marry the consenting adult of my choice.

  71. The word “marriage,” and the right to marry, is still very important. To understand why, try applying for a green card with your same-sex partner.

    It’s worse than that: try applying for a green card with your same-sex spouse (whose relationship to you is legally recognized in the state you live in). Maine might recognize your relationship, but the federal government does not, so you still have to wait for a hearing on a bill.

  72. @ John, sorry for the double post…feel free to combine or w/e

    @KatG #58 “The old biddies who can’t stomach gay marriage also want to re-criminalize gay sex, to prevent interfaith marriage, reverse female reproductive rights, want laws restricting minorities from buying houses in their neighborhoods, and Muslims from building mosques, want to change rulings of other faiths that let women be clerics, etc.”

    That is a rather large and broad characterization of “most” of the people supporting prop 8. I’ll take on each of these assertions one at a time.

    I’ve heard little of any sort of action to re-criminalize gay sex. I don’t doubt there are some within the pro-prop 8 crowd who would support such action, but I certainly would not say it would be “most” of them. However, this is probably your most accurate collerary issue.

    Trying to prevent interfaith marriage meaning that they don’t want their members marrying people with other religous views? Or don’t want anyone marrying someone from another faith? The former interpretation gets a “so what?” from me. Its up to the members of a faith to decide to allow members to marry non-members or to kick them out. I personally don’t think they should, but it is their perogative to determine what constitutes a heresy and what deserves excommunication. As I don’t hear anyone clamoring for any sort of civil penalty in addition to banishment from their church, I have no issue with that. The latter interpretation is rather extreme, I doubt it is anything more than a strawman. I don’t see or hear about any sort of push to make interfaith marriage illegal coming from pro-prop 8 people or otherwise.

    Reversing female reproductive rights is a euphemism for what exactly in this case? If you mean “opposes completely unrestriced abortion with taxpayer funding” then not only do “most” pro-prop 8 people want that, most of the general population wants to reverse female reproductive rights too; not exactly a fringe position. However, you could be meaning a varity of things. The abortion debate is held on a sliding scale with most people disagreeing with both extremes of the debate (“no abortion ever” and “abortions on demand, paid for with taxes”) and a decent majority in the middle for abortions to be legal in some or most of the time. You clearly portraited “reverse female reproductive rights” as a negative thing without specifing what that entails. Most people support some restrictions on abortions, does that qualify for your label? Pro-prop 8 people are clearly for more restrictions on abortion, but there is a wide diversity of opinion, and your label seems to lump them all into the strawman of completely banning abortion, which “most” of the pro-prop 8 people would not push for.

    Wow, that “most” pro-prop 8 people “want laws restricting minorities from buying houses in their neighborhoods” is a rather strong charge. For starters, a majority of the minorities that voted went pro-prop 8, I can’t see them ever supporting such a law. This is the first time I’ve ever even seen such a law suggested. For the purpose of arguement, I’ll water down your statement to “don’t want minorities in their neighborhoods”, which I am sure is true for some very tiny racist minority of the population. Thankfully, today such people are on the fringe of the population. If “most” people who voted for prop 8 thought like that, we’d have far, far bigger problems with 30-40% of the population being racist than any issue over gay “marriage” vs. civil unions. Most people don’t care what color their neighbors are, however they do care that the neighbors don’t leave trash and broken, rusted cars in their unmowed lawn; if you were suggesting that any sort of community laws were aimed at keeping minorities out. They just want their neighbors to maintain their house and lawn white or black, such matters are disputes over conduct rather than race. If you were not implying the opposite then I’m sorry for disputing it, I just have never seen any support or suggestion of what you claimed “most” pro-prop 8 people also support.

    I also haven’t heard of anything about keeping Muslims from building mosques. Such action is the antithesis of the religious freedom which most pro-prop 8 people enjoy and support. If you have anything to back up such an assertion I’d like to see it.

    I don’t see anything wrong with wanting “to change rulings of other faiths that let women be clerics”. Wanting something causes no problems, they can want this all they’d like. I see no problem with them wanting other faiths to be more like theirs, making a case for their views, and opening dialog between religions for reconciliation of such views. The “other faiths” are free to go on ignoring or refuting these views as well. None of this is a problem until and unless they try to compel the other faiths to obey their own beliefs. Of that I see no evidence, disagreement is not a crime. My biggest issue is that you seem to have used this as an insult, feel free to correct me.

    Overall I was rather taken aback by the breadth of your charges against “most” of the pro-prop 8 people. Please don’t attach all sorts of opinions and posistions to a large portion of the population (to clarify “most” to me means 66% at the very least, prop 8 got ~50%, making it 30%+ of the population of CA). It doesn’t help discussions and honest debate to try to tar and feather your opponents.

    All that said, I was neutral on prop 8 and I am an atheist. I just felt I had to counter what I see as unfair attacks in this case.

  73. bearing @81: actually, I was thinking more of remarks like comparing the requirement that civil servants perform same-sex marriages if such were legal (you know, because it’s their job and all) to forcing German soldiers to gas the Jews in WWII. And of the wing of the Proposition 8 movement that wanted to ban not only same-sex marriage, but same-sex civil unions. (The more practical folks – i.e. the ones with all the money – shut that down darned fast. It didn’t poll well.)

    If a fundamentalist Christian religious group were trying to ban civil marriage between Jews and Christians, I doubt you’d be urging me to sit down and explore with those people whether they really hated Jews, or whether they maybe just felt that God was offended by certain Jewish religious practices.

    As we both know, it’s a distraction and a tangent. If someone thinks a group ought to be second-class citizens, why should members of that group waste time with some kind of political version of mass therapy, to find out their feelings?

  74. “It doesn’t matter if SSM oponents believe that homosexuality is morally wrong, or that sex acts between same sex partners is morally wrong, or that they just don’t like us. The truth is that your moral judgements should not be allowed to affect my civil rights, including the right to marry the consenting adult of my choice.”

    Examination of your last statement (“your moral judgments should not be allowed to affect my civil rights”) indicates that it should be classified as an opinion, rather than a truth.

    Perhaps you’re correct that it does not matter what your opponents think, and therefore it does not matter if you characterize them accurately or if you don’t. That seems, however, an odd position to take for someone who hopes to convince a large number of people in the undecided middle.

  75. bearing @86 – the pro-Proposition 8 forces repeatedly and deliberately misrepresented what their opponents thought and intended, and it didn’t seem to hurt them any.

    So either you’re factually incorrect, or you’re suggesting that people in favor of same-sex marriage play by Marquis of Queensbury rules against people who think that eye-gouging is a fine technique.

  76. mythago@87: “the pro-Proposition 8 forces repeatedly and deliberately misrepresented what their opponents thought and intended, and it didn’t seem to hurt them any.
    So either you’re factually incorrect, or you’re suggesting that people in favor of same-sex marriage play by Marquis of Queensbury rules against people who think that eye-gouging is a fine technique.”

    The third possibility, of course, is that there are many different people who oppose legally enshrined marriage between people of the same sex, that some of them play dirty and some of them would rather not, and that the subset that gets (and buys) the most news coverage is not necessarily representative of the whole.

    You are continuing to fall into the rhetorical trap of imputing inaccurate but easy-to-pigeonhole motivations to your opponents. In this case, you are doing it by selecting a subset who engage in dirty propagandizing, and assuming that the whole approves, and from there making inferences about the whole.

  77. bearing @88: but that “rhetorical trap” worked awfully well for Prop 8′s proponents, why shouldn’t it work for us?

    More seriously, you’re asking same-sex marriage proponents to engage with precisely that segment of the Prop 8 community that is dishonest and ill-intentioned – and it does exist. Why waste energy on that?

  78. bearing@86,

    Sorry, it’s a truth, you know, as in “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Sound familiar?

  79. Pam Adams @90:

    The problem is, they love the 1st Amendment for guaranteeing their religious freedom, but when you try to turn it around and say “Yeah, but just because your religion has this view doesn’t mean we should be legally bound by it,” then suddenly it’s not a truth anymore. It’s just your opinion.

  80. Mythago, I can certainly see that it takes more energy to engage with a real opponent than with a straw man. The question is, is it effective? And what does it say about you if you refuse?

    Pam, it’s a moral judgment that all men are created equal, is it not? The founders called their moral judgment a “self-evident truth” as a rhetorical device, much as you have classified your own opinion as a “self-evident truth.” It is a way of shutting down the discussion, is it not?

    Recall that not long afterward, the nation would go to war over a clash about this moral judgment — this self-evident truth. I happen to agree with the moral judgment that all men were created equal. But the irony does not escape me that the same statement regarding “your moral judgments vs. my civil rights” went down hard on the wrong side in that particular instance.

  81. Bearing — If the Catholic bishop of Rhode Island says in print that homosexuals are morally wrong and therefore gay marriage is not a civil rights issue, I’m inclined to believe that he is not lying when he says it. He is a Catholic bishop, after all.

    Thepi — I’m not characterizing all yes voters on Prop 8. I’m talking about anti-gay activists who fought to get Prop 8 passed who are part of a broader social conservative movement that is attempting to curtail civil rights on a variety of issues.

    One of the arguments used to encourage yes votes on Prop 8 was that gays are pedophiles who endanger our children. This link has been widely brought up in the media for many years of this civil rights fight. Anti-gay activists have openly expressed this view in the press. Some of them have changed their minds — Rick Warren apologized for doing it recently — but many of them haven’t.

    There is a wide segment of the activists who are not just against gay marriage, but are theocrats. They want to replace the U.S. Constitution with Christian Biblical law as interpreted by them as a theocracy. This would include re-criminalizing gays and preventing marriages of other faiths, or differing faiths throughout the country, not just in their own churches. These people are well funded and connected to evangelical churches. The mainstream media documented their involvement in the efforts to pass Prop 8.

    Female reproductive rights isn’t a euphenism. It’s the rights that are being debated regarding a number of thorny issues, the number one being abortion, but also things like birth control. Numerous anti-abortion opponents have not said that they are only against taxpayer funded abortions. What they say is that they want to criminalize all abortions, so that no woman can legally get an abortion, even if she pays for it. They want to reverse Roe vs. Wade, they want to get Supreme Court justices on the bench who will do so, and they have stated this clearly and frequently to the press. They are not extremists off in the hinterlands, but leaders of the social conservative movement and quite prominent.

    Additionally, we have politicians with connections to Aryan nation movements and the former KKK, a massive anti-immigration movement that extends not only to illegal immigrants but to legal immigrants and naturalized citizens. Yes, different factions have differing views and may team up only part of the time, but these factions have not been shy about expressing what their goals are.

    As for racism in the U.S., 30% of the population being openly and deliberately racist (as opposed to unconscious white privilege sort of stuff,) sounds about right. They aren’t on the fringe of the population, as we saw during the presidential election. (I did enjoy the many people polled who said that they were racist but they were still going to vote for Obama.) When Bill O’Riley is talking about how black people are training their children to be a militant army on his radio show, I don’t think you can say that it’s a fringe issue.

    I don’t need to demonize these people. I’m simply accepting what they say to the press about gays, women’s rights, Latinos, etc. Now maybe Bearing is right and they’re lying. Maybe the evangelical church leaders don’t really represent the 30% of the population in evangelical churches as they claim to do. I know many Mormons were upset with the Mormon Church’s involvement in Prop 8. But these leaders are using the power of these churches and organizations like Focus on the Family to advance social conservative causes in politics and in policy making, including but not limited to gay marriage, and they have not been shy about saying that’s what they are doing.

    The old biddies term was sarcastic, because I think the stereotype of opponents to gay marriage being mostly old church ladies who just can’t wrap their heads around the idea is misleading and creates the complacency that allowed Prop 8 to pass when it was expected to fail. There is a social conservative political movement in this country, and while it’s taken some body blows, it’s not out for the count, it’s got a lot of money, and it’s still pretty good at moblizing, as Prop 8 proved.

    But, it’s getting interesting. Ted Olson, the ultra-conservative Solicitor General of the Bush years, the guy who argued before the Supreme Court on Bush getting the presidency, is teaming up with David Boies to launch a federal legal challenge against Prop 8. He said to Bryan York of the Washington Examiner:

    “I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation and that a grave injustice is being done to people by making these distinctions,” Olson told me Tuesday night. “I thought their cause was just.”

    I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. “It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution,” Olson said. “The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation.”

  82. bearing@77:I suggest you get to know your opponents’ motivations better than this,

    motivation is irrelevant when the action is real-world discrimination.

    and begin to take them at their word.

    No. Because bigots always dress up their actions in pretty ribbons and bows that is what they claim are their good and just feelings behind their actions.

    No matter what opponents say their motivation is,

    no matter what their motivation is, it is irrelevant and is overridden by the real-world discrimination it creates.

    there’s always this rush to claim the real motivation must be something else.

    The saying is: Bigot is as bigot does.
    NOT: Bigot is as bigot feels.

    It, too, is a form of attempted demonizing

    Oh, horsepucky. It’s an attempt to call a spade a spade and a bigot a bigot based on their actions, rather than letting bigots dress up their bigotry in fancy dress, pomp, and circumstance, and pretend that it’s OK to be a bigot as long as you’re fucking polite about it while you do it.

    to attribute only obviously wrong, obviously sinister, obviously irrational, or obviously uninformed motivations to one’s opponents, while discounting the possibility that the opponents’ real motivations could be complex, rational, made in good faith, or based on true information.

    Yeah, and people use “nigger” in good faith. Right.

    You can’t defend this based on actions, so you retreat to feelings and “good intentions” behind the actions. but the actions remain the actions of a bigot, and we simply have to take your word for it that you somehow arrived their based on good feelings, so it’s OK? No thanks.

    Of course, it also makes it much more uncomfortable, since one only has to engage with the imaginary evil simpleton opponent, and never has to meet anyone real.

    You know what makes this conversation uncomfortable?

    It’s when a bigot, as defined by his actions, feels uncomfortable being compared with another bigot, as defined by his actions.

    You don’t feel comfortable being compared with a bigot, based on your actions being the same, so you invent some new metric: your feelings.

    You say that those bigots are real bigots because they feel a certain way about their bigotry, but you claim you don’t feel that way, therefore you’re not a bigot.

    You’re not comfortable seeing your actions matching the actions of a blatant bigot, so you invent some imaginary measuring stick that somehow distinguishes you as an “acceptable” kind of bigot while allowing that “other” guy to be a “bad” kind of bigot. You don’t feel the same way he does, you claim, so you’re different.

    You act like a bigot and you’re not comfortable with that so you make it about feelings.

    doesn’t fly.

  83. Bearing @ 88 – The third possibility, of course, is that there are many different people who oppose legally enshrined marriage between people of the same sex, that some of them play dirty and some of them would rather not, and that the subset that gets (and buys) the most news coverage is not necessarily representative of the whole. [emphasis mine]

    Have you proof that the “subset” is really a subset, and not a majority? Because I’ve never seen a discussion about same sex marriage where the anti-SSM side didn’t eventually derail into comparisons about incest, polygamy and bestiality, claim invisible “gay friends” who don’t think they’re all that bad, or some other such nonsense that proves bigotry as far as I’m concerned.

    Or perhaps you don’t class those things as bigotry. Creating a “subset” that you’re not willing to define and prove exists is a lousy rhetorical trick.

  84. I wonder if there’s some way in which, by changing names, people could treat these 18,000 legal same-sex marriages the way New Yorkers treat rent-controlled apartments.

    Hopefully, Prop 8 will be overturned or revoked soon. But if not, it’d be kind of funny if, 150 years from now, the same 18,000 marriages still exist, with spouses of the same names, but only because new couples have exchanged identities in order to take over the old licenses.

    Might make an amusing novel.

  85. bearing @92: the passive-aggressive swipe in your post aside, we’re not talking about a straw man, which is to say a fictional construct that doesn’t exist, but what you perceive as an overgeneralization.

    I am correct on that, aren’t I? You’re not actually claiming that the ‘people who hate gays’ contigent and the ‘people who think gays should be second-class citizens’ contingent are nonexistent, are you? If you’re being intellectually honest, you’re really claiming that there are many points of view among Prop 8 supporters and it’s unfair to assume they’re all bigots.

    So, let’s take that as a given. Why do you then insist that same-sex marriage proponents should engage with the least likely converts? A how-many-angels discussion about whether they hate gays or merely ‘the gay lifestyle’ is an energy drain that does nothing at all to address the confused middle.

  86. Ted Olson, the ultra-conservative Solicitor General of the Bush years, the guy who argued before the Supreme Court on Bush getting the presidency, is teaming up with David Boies to launch a federal legal challenge against Prop 8.

    That suggests to me that Ted Olson is afraid that the state-by-state method is going to succeed in having SSM everywhere, so he’s hoping it gets dragged into the federal courts pronto, he can kill it before that happens, or before Obama appoints federal judges who may actually agree with arguments for SSM.

    I have absolutely no illusions that he is a stupid man, or that he has suddenly had a change of heart. SSM advocates are not rushing to get to federal court. Are they all entirely stupid and Olson sees something they overlooked? Doubtful.

  87. Actually, none of this clears up the question of what do you do if you’ve got contradictory parts of your constitution?

  88. I’m also not sure this actually works. The ruling states that same-sex couples must be given all the same rights and responsibilities, with only the word “marriage” being withheld. But marriage, by that name and only by that name, has legal effect across state and national borders. In short, it seems that it’s actually impossible to withhold the name and still provide the same rights and responsibilities.

  89. @KatG #92

    I’m glad to hear you are restricting these comments to the activists. No doubt there is a higher prevalence of nuts in their ranks. I’m sure you can point to perhaps dozens of crazy people espousing rediculous posisitions on a number of these issues who also supported prop 8. The thing is that these people have very little to no support on most of their issues because they are so far out of the mainstream, that is what gets them all the media attention as someone pointed out earlier. Maybe some of them do want a theocratic government but they have little to no public support there.

    As for “womens reproductive rights”, yes there are some crazies out there that say no contraceptives or abortions that also fall on the side of pro-prop 8. But the most extreme posistion within the mainstream is “contraceptives not allowed for minors and abortion only for rape/incest or if the womens life is in danger”. I think that is too far personally, but this is certainly within reason and it is about as far as you can go and maintain a fair (20% roughly) level of support for your ideas. And while Roe v Wade puts into practice my views on abortion (that its ok for 7 months, then it is possible to be restricted state by state or federally). I find it’s reasoning a little troubling and would actually like it repealed, which merely would allow further restrictions (that I don’t support), rather than banning it wholesale.

    To start with the racism/racist thing, since this has been brought up before here I’d rather not delve to deeply. But we can agree that there are degrees of racism and that they are all more or less destructive. I’d definitely dispute that 30% are “openly and deliberately racist” where they consider someone less of a person because of their skin color. And I would think this election showed that while racism is not completely gone, the “openly and deliberately racists” are very much on the fringe. As for the poll, it sounds interesting and I’d like to see it if you can point me to it. Also the Bill O’Riley thing…I’ve seen him and other misquoted horribly, and often…so I have to reserve judgement until I at least read the transcript or preferably listen/watch it.

    I also would like to keep this mainly confined to CA, since this is where all the prop 8 voting and such is going on. But I do realize this has played out on a national stage and the activists are spread out everywhere.

    As has been said earlier, the craziest people get the most air time by the media because of how “sensational” they are.

    At this point it kinda feels like we are batting about strawmen. Picking out the most extreme positions a few people hold, and attaching them to the whole doesn’t discredit the vote. Just because the KKK wanted OJ Simpson to be judged guilty didn’t make him any more or less guilty.

  90. Picking out the most extreme positions a few people hold, and attaching them to the whole doesn’t discredit the vote.

    bigotry, be it actively violent or passively hidden, is still bigotry. Where a person lands on the spectrum of bigotry still makes it bigotry.

    Just because the KKK wanted OJ Simpson to be judged guilty didn’t make him any more or less guilty.

    that’s an interesting analogy. You put gay marriage on par with homicide.

    And the moral I extract from your analogy is that the ends (convicting a murderer or stopping gay marriage) justify the means (having Klansman on OJ’s jury, having homophobes stop consenting adults from marrying).

    I don’t know about you, but if OJ had been convicted and then it came out later that one of the jury had lied and hidden the fact that he was a KKK member, I’d support a retrial with a new jury. Your analogy suggests you’d be fine with it.

    And if enough bigots voted to stop two consenting adults from marrying because they’re bigots, apparently, you seem to be fine with that too.

    The objection seems to be calling the bigots the name “bigots”, because, apparently, we’re supposed to reserve that name for only the most extreme, sensational, bigots that end up on the news or something.

  91. I’m also not sure this actually works. The ruling states that same-sex couples must be given all the same rights and responsibilities, with only the word “marriage” being withheld. But marriage, by that name and only by that name, has legal effect across state and national borders.

    Right, but the State of California cannot be held responsible for the fact that other jurisdictions don’t treat marriage and not-marriage equally.

    That said, it’s totally unclear if the not-marriage demanded by the opinion is the same as our current almost-marriage Domestic Partnerships, or if there’s some third beast just created by the Supreme Court.

    Which provides the federal courts with an easy way to duck Olson’s lawsuit, incidentally: a case challenging seperate-but-equal in California is not ripe for adjudication because nobody has a clue what the new statutory scheme actually is.

  92. I’m afraid that you’re wrong, thepi. You want to say that all the people who hold these views are nutty fringe people. But they’re not. They are politicians in major positions state and federal, such as Oklahoma state lawmaker Sally Kern who actively campaigned for Prop 8, ministers of mega-sized churches, the Catholic and Mormon churches and the Catholic League, media figures such as Rush Limbaugh and O’Riley, wealthy individuals and business owners who pour money into social conservative causes, such as the owner of Dominos Pizza who wants abortion criminalized, and major mainstream groups like Focus on Family and the Family Research Council. Social conservatism is not a fringe movement. Christian Reconstructionist theory — the theocrats — has been espoused by Jerry Falwell, James Dobson, and Lou Engle, prominent evangelicals who rallied thousands of people to work for Prop 8. Lou Engle held a Prop 8 rally in November of 80,000 Pentecostals in San Diego to pray against the “sexual insanity” of gay people. And one of the campaign for Prop 8′s biggest financial donors? Millionaire Howard F. Ahmanson Jr. who has worked tirelessly to get as much political influence for Christian Reconstructionism as possible. Sarah Palin belonged to a church that espoused the same views, and she was almost our vice president. It’s not fringe if these people have tremendous financial and political power and lead millions of people in following their views. Such a head in the sand view may comfort you, but it does not have much to do with reality, in my opinion.

  93. @ GregLondon #102

    “that’s an interesting analogy. You put gay marriage on par with homicide.

    And the moral I extract from your analogy is that the ends (convicting a murderer or stopping gay marriage) justify the means (having Klansman on OJ’s jury, having homophobes stop consenting adults from marrying).

    I don’t know about you, but if OJ had been convicted and then it came out later that one of the jury had lied and hidden the fact that he was a KKK member, I’d support a retrial with a new jury. Your analogy suggests you’d be fine with it.”

    Nice twist, the point was that it doesn’t matter where the nuts are. How about I alter the analogy….Just because KKK supports Ricci in Ricci v DeStefano doesn’t make it more or less right. (I’m not sure if the KKK has anything at all left at this point, but I think we can agree they would side with Ricci.)

  94. thepi: Nice twist, the point was that it doesn’t matter where the nuts are. How about I alter the analogy….Just because KKK supports …

    No, you missed the point completely. The point is it doesn’t matter what the KKK supports at all. What matters is you’re trying to say that a bigotry is OK as long as it doesn’t dress up in white sheets and burn crosses.

    You’re trying to put bigotry in a suit and tie, teach it some polite conversational tricks, and say “See! That isn’t bigotry! Bigotry is ugly. This is Joe Shmoe, regular guy, doing what he thinks is right. You can’t call that bigotry”

    And the point is, yeah, I can call it bigotry. Because it is bigotry. You might as well be arguing that someone is only a little bit pregnant.

  95. By the way, it’s my understanding that in some European countries, there is no civil marriage, only civil unions, and marriage is a purely religious rite and realm. So it can be done; it would be interesting to know more about this state of affairs came about.

    I don’t think this is actually the case. To the extent that Wikipedia can be trusted:

    http://en.wikipedia.org/wiki/Civil_marriage

    “Every country maintaining a population registry of its residents keeps track of marital status, and most countries believe that it is their responsibility to register married couples. Most countries define the conditions of civil marriage separately from religious requirements.”

    I can’t find any references to a European country actually abolishing civil marriage in favor of some sort of civil union. What is true is that in several European countries, religious authorities don’t legally solemnize marriages; you need to have a separate civil ceremony at some clerk’s office. But that civil arrangement is still called marriage.

    What is also true is that in several European countries, there is a civil-union status separate from marriage, usually instituted so that same-sex couples can avail themselves of it (just like in several American states that lack same-sex marriage); but in a few countries opposite-sex couples can also get these civil unions. However, these opposite-sex couples also have the option of getting married.

  96. The United States – all of them – also maintain civil marriage separate from religious requirements. Nobody has to have a religious marriage. Religious officials are allowed to solemnize marriages, just like county clerks, because they do enough marriages that it just makes sense to allow it.

  97. Perhaps before we go too far off on tangents on all the other issues like abortion and KKK, we look at redefining the win in this ruling. It’s really simplified and everything, but I’m not interested in looking for conspiracy theories.

    What Prop 8 really wanted: Legally revoke and ban a group of people from having the same basic civil rights they themselves enjoy.

    What Prop 8 got: A word that they really can’t enforced people from not using. Got scolded like bad children for trying to kick other kids out of “their” sandbox. The CA Supreme Court gave the LGBT the civil rights Prop 8 was trying to take away in the first place.

    What the LGBT people in CA or otherwise should do next is:

    Educate the 5-10% of people who were undecided or misinformed about Prop 8 to join their side. Holy Matrimony does not equal Civil Marriage.

    Get hetrosexual couples to sign the new can’t-call-it-marriage license instead of a marriage license to show support. The other point being it’ll also confuse the masses and blur the lines between civil union and marriage some more.

    Fight Prop 8. Be better informed/armed and show the uninformed or misinformed people the ugly hateful face of bigotry.

  98. It’s not really a conspiracy theory if they come right out and say that’s what they are doing. It’s not like I’m an investigative journalist digging up skeletons — they state flat out in media interviews: we are against gay marriage, we think homosexuality should be stopped, we will work against gay rights and to make abortion illegal, etc. Bishop Thomas Tobin of Rhode Island, a state that’s over 40% Catholic, calls homosexuality a perversion of natural law and the idea of gay marriage a violation. In an interview, he said, “We don’t see it as a civil rights issue, because there’s never a right to do something that’s morally wrong.” He’s not a powerless nutball on the fringe. He’s the guy keeping the Rhode Island legislature from legalizing gay marriage for the last five years.

    These people have the right, by freedom of speech and freedom of religion, to say that they want to abolish freedom of speech and freedom of religion in the U.S.. But under the same law, I have the right to speak out against their views. Pretending that they don’t have political power and man power behind them is what got Prop 8 passed in the first place.

    The goal of Prop 8 wasn’t just to ban gay marriage in California. It was also to flex political muscle, to influence state legislators and to keep gay rights advocates from political power and getting legislation passed. They made it very clear that they were attempting to eventually revive the homosexuals shouldn’t be teaching our children debate from the 1970′s as well.

    And they got some of what they wanted. Gays now have this large political obstacle they have to plow through and spend their time on. They may be able to use the fight to get gay or gay-friendly politicians in office or it may prevent them from doing so. And while it may be a “toothless” victory, the people who were roused by their churches or families to vote “Yes” don’t necessarily realize it wasn’t a successful campaign and will be sent out again to defend it.

    Gays got to keep most of the civil rights the court had given them last year from this ruling, yes. But the Prop 8 supporters showed they are a political force to be reckoned with, even if the court scolded them, and they are very good at finding funding sources. I’m positive gay rights will prevail over time, and they were ready for this ruling, but it’s still a blow. And pretending social conservatives aren’t organized, influential or don’t have ambitious social agendas when they openly say that they do to the press is not, I feel, an effective strategy for countering them.

  99. But WHY were the 18k marriages not thrown out along with the ability to use the word marriage for everyone else? Grandfathered in, blah blah.

    It’s so that the Supreme Court will take one look at the situation and say, “Not on your life.”

    When 18k people can enjoy absolutely legal, real, honest-to-god officially state-sanctioned marriage, but nobody else gets to… yeah, that’s never gonna pass Constitutional muster when it gets to the federal level.

  100. “I think the easiest way around this now is to simply merge the two civil contracts (DP and marriage) and call ALL of them Domestic Partnerships.”

    I’d like to see everything just called “marriage” because (to me) it implies a longer-standing ‘contract’, if you will. Domestic Partnership is like saying Cohabitation – it seems to imply a temporary situation. (Again: SEEMS this way to ME.) I have an uncle who has been living with his partner for 20+ years – I think something that can stand the test of time like that deserves the same name I call my relationship with my husband.

    That said, I’ll take an partial win — calling them DP’s and giving the same legal rights as a marriage is a step in the right direction. As Scalzi notes in his post, in time I think it’ll become clear how bigoted the law is, and change will happen.

  101. What is the national position for recognising same-sex marriages from other countries for purposes of visas and immigration?

  102. Mike: Doesn’t the federal DOMA law mean the Federal government doesn’t/can’t recognize same-sex marriages, even from other countries? (I’m not sure this is a “national position”–it’s a law, plain and simple.)

  103. A federal law would make it a national position from the perspective of anyone outside the US. That might mean that some US marriages are recognised overseas where they are not recognised in other US states.

    I’m sure some diplomatic incidents are brewing then – Iceland now has a lesbian head of state. Special treatment for diplomats or military officers ( from countries without a DADT policy or analogue) starts to create additional cracks in any US policy of fair dealing.

  104. Mike, as far as I can tell, they are recognized overseas. You can get married in Vermont, Massachusetts, etc… as a same sex couple, and move to Canada, where your marriage is considered to be valid. But you can’t move to Kansas, for example, and have your marriage recognized.

    Same sex couples coming into states where same sex marriage is recognized is a different issue. If a Canadian same sex coupe moves to Massachusetts, I think the state will recognize the marriage, but the federal government certainly won’t.

  105. Mike, the US doesn’t have any policy of fair dealing. I had hopes that Obama would be more likely to deal fairly with people, at least our allies, but those hopes are dimming now.

  106. WHY were the 18k marriages not thrown out along with the ability to use the word marriage for everyone else?

    The basic idea is that when laws regarding marriage requirements change, they aren’t retroactive. So, for example, a state which allows people to marry at age 12 decides to change the minimum age for marriage to age 16; the handful of 13-year olds married when this change is made stay married.

    The reason for this seems to be that marriage carries with it vested property rights which can’t be nullified.

  107. It was also to flex political muscle, to influence state legislators and to keep gay rights advocates from political power and getting legislation passed. They made it very clear that they were attempting to eventually revive the homosexuals shouldn’t be teaching our children debate from the 1970’s as well.

    They’re deluded if they think they stand a chance. Even after Proposition 8, sexual orientation remains a suspect classification under the California constitution, and laws which treat gays and straights differently must be narrowly tailored to meet a compelling state interest.

    Which means the only way to get such a rule is via an initiative constitutional amendment.

    The odds of such a thing passing are tiny.

  108. aphrael, if they were rational, they wouldn’t be haters in the first place. So of course they indulge in the fantasy that they can command the tide to hold back.

    Personally, I think we would do tell to present marriage not merely as a right, but a responsibility. Do the fence-sitters really want to say “No, we don’t think gay men should settle down together, we think they should still be going to bars in the Castro until they’re well into their nineties?”

  109. Frankly, I think this decision is a cop-out. Is it not the role of the supreme court, be it state or federal, to interpret and clarify the governing constitution given the case brought to it? This decision clearly did not exhibit that approach. Instead, the CA supreme court pointedly narrowed the scope of their consideration and rendered their decision with such specificity so as not to have to consider the wider ramifications. It was a clever way of momentarily getting out of the hot seat.

  110. http://news.yahoo.com/s/ap/20090603/ap_on_re_us/us_xgr_gay_marriage_new_hampshire

    New Hampshire joined the club.

    they had to put in a clause saying that churches will not be required to officiate a gay marriage if they don’t want to. Apparently the FUD that the government would somehow have the legal power to invade the church and tell the church what to do has gotten traction.

    I suppose it makes sense though. Opponents of gay marriage want to take their religious beliefs and put them into law. Given they can’t see a distinction between church and state, it makes sense, in a weird way, that they fear that the state would tell the church what to do.

  111. GL – I expect there will be a movement for a referendum soon to ban same sex marriage, just like there was in CA.

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