Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyAugust 9th, 2010
So Perry v. Schwarzenegger has taken its first bold step. Assuming the Ninth Circuit Court of Appeals hears the case (the defendants of record have already said they won’t appeal, and there is the surprising possibility is that ADF may not have legal standing to do so) then the question becomes whether this case will be the Brown v. Board of Education for LGBT equality, or our Plessy v. Ferguson. Jon Rowe looks at the Supreme Court and believes he sees a setup for the latter:
Assuming Kagan is on the bench and the lineup remains, I predict there will be 4 votes for gay marriage, 4 against with Justice Kennedy breaking the tie AGAINST constitutionalizing gay marriage. BUT Kennedy being Kennedy he very likely would “split the baby” by demanding a federal constitutional right to civil unions that grant all the rights of marriage other than the name.
The return of “separate but equal”?
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sam
August 9th, 2010
So, if we get everything but the name “marriage” will there then be a new department created to follow gay couples around to make sure that they don’t refer to themselves as married? Will they issue citations?
And this is not to say I agree with the idea. At the same time, anti equality people would then have to finally admit whether it really is a simple matter of semantics or whether they really are bigots.
Burr
August 9th, 2010
How about instead of splitting the baby, rename the whole baby?
Would be nice to have the optimal decision in one fell swoop, civil unions for all.
Cooner
August 9th, 2010
Certainly federally sanctioned, nationwide, across-state-lines civil unions would be an improvement on what we have, a waste of resources (having to maintain two different bureaucracies), and a stepping stone towards true equality.
We fight for marriage because (1) it’s the right thing to do, and (2) anti-gay forces will never compromise anyway, so we may as well shoot for the gold.
Tho if the case really does break down like that, I hope that Kennedy (and maybe even Roberts?) will follow Judge Wright’s excellent legal logic.
hyhybt
August 9th, 2010
Burr: why would you prefer that? “Civil union” doesn’t have the built-in meanings of “marriage,” nor does it have the equivalent of the other simple, everyday related terms (husband, wife, wedding, spouse, etc), nor, likely, would it be portable if you moved to another country. That some people wish to limit marriage to those marriages that they happen to approve of is no reason to let them do so.
hyhybt
August 9th, 2010
Now I went and forgot what I’d meant to say in the first place: a Plessy-style decision would still be a far sight better than what so many of us have now, which is nothing at all. So, still no downside :)
Actually, I’m torn on this: is it better to hope that they DON’T have grounds for an appeal, meaning Californians could wed right away, or to hope that they DO, making Californians wait years longer in the hope of freeing the whole country?
Jonathan
August 9th, 2010
Question I’ve been wondering about:
Let’s say that the bast case happens. Kennedy interprets the 14th amendment the way it was intended, damn the popular vote. States are all legally required to recognize same sex marriage.
What happens to DOMA? Does the FEDERAL government have to recognize the right to marry as well, or is this narrow enough that the SCOTUS can rule it is unconstitutional for a state to exclude gay couples from marriage, but not for the federal government, despite the fact that the federal constitution is the basis of the ruling?
Jon Rowe
August 9th, 2010
Thanks for the link. If you don’t know, I, as a libertarian, support government getting out of the marriage business. That would mean everyone equally gets the “civil union” and churches and other private entities get to decide who is “married.”
Though re the “separate but equal” analogy consider that sexual orientation may be more analogous to gender discrimination than racial discrimination. And we do have, without a whole lot of ruckus separate but equal bathrooms and dormrooms on gender lines. I know this doesn’t fly with many hard core feminists though.
Bear
August 9th, 2010
Why not civil marriage or union for everyone and religious marriage or union for those that want it. Why fight over the word. I just want equal rights in taxation and all the federal benefits that go with my citizenship.
I will never set foot in a Catholic Church or Mormon temple. I don’t hate anyone enough to join those organizations. They need not worry about me.
If I was the devil, the first thing I would do is start a church and teach everyone to hate.
Burr
August 9th, 2010
Getting rid of marriage and calling everyone’s coupling a civil union would effectively neuter the entire debate as nobody could even talk about what the bible says any more or make other logical fallacies of appeal to tradition. Nothing would stop you from still saying you are married and are husband&husband or wife&wife and just had a wedding. Those are all personal terms between you, your family, and your church of choice (or no church at all of course). As for moving to another country, the only places where that would factor in are places where you could just get married again anyway.
L. Junius Brutus
August 9th, 2010
Frankly, I’ll be happy with a Plessy-decision. It will grant gay couples everywhere the same rights, and allow states to grant gay couples full equality at their own pace. I shudder in horror what would happen in a state like Mississippi, if people realized. It would probably lead to the lynching of a few gay couples.
But a Plessy-decision will not be possible in this case, since California *already* grants all the rights that opposite-sex couples have to same-sex couples. Judicial minimalism dictates against deciding an issue that is not at stake here.
L. Junius Brutus
August 9th, 2010
“Getting rid of marriage and calling everyone’s coupling a civil union would effectively neuter the entire debate as nobody could even talk about what the bible says any more or make other logical fallacies of appeal to tradition.”
No, it would validate the right-wing attacks that gay people are out to undermine marriage, and it would extend the injustice done to gay couples to straight couples. Frankly, I believe in lessening injustice, not increasing it. I want to marry my love, not civil union him. And I also don’t want to be forced to become a member of a church to be able to marry someone.
Richard Rush
August 9th, 2010
While realizing I may be stepping into conspiracy theory la la land, I’ve been wondering if the Alliance Defence Fund may have deliberately chosen to lose this case at the district court level and may have no intention of appealing it. One reason I wonder is because of their dearth of witnesses and the pathetic performances of those who did testify. Another reason to wonder if they really want to take this particular case to SCOTUS is their knowing our side has the advantage of two superstar attorneys, and that the CA government is not defending Prop8 (at least not under the current administration).
My understanding is that if the case is not appealed, then the district court decision applies to California only. If SCOTUS were to decide in our favor, I assume the constitutional amendments in all states would be nullified. (At the Circuit Court level I don’t know if a decision in our favor would affect all the states in their jurisdiction.)
Not appealing could give them the opportunity of going to SCOTUS with a different case where they believe their chances are improved.
Or maybe they may just want to buy more time to continue milking the anti-gay cash-cow.
These are probably nutty ideas, but I just thought I’d through them out there.
Burr
August 9th, 2010
How is it an injustice if everyone is in the same boat? Nay, it expands freedom and liberty by leaving everyone up to define marriage for themselves as they see fit, or to receive the benefits of legal recognition without submitting themselves to the loaded terminology of marriage.
Burr
August 9th, 2010
And who said you’d have to join a church to marry someone? Just throw your wedding and call it a marriage, with the civil union documentation in your back pocket.
Varburg
August 9th, 2010
“Another reason to wonder if they really want to take this particular case to SCOTUS is their knowing our side has the advantage of two superstar attorneys, and that the CA government is not defending Prop8 (at least not under the current administration).”
If there is no appeal, I wonder if Boies and Olson will work on a similar case in a different venue.
L. Junius Brutus
August 9th, 2010
“How is it an injustice if everyone is in the same boat? ”
Removing rights that straight couples have is not a solution to injustice, since it only adds to the injustice. Is the solution to the fact that gay couples are not allowed hospital visitation rights to disallow that for straight couples as well? After all, it cannot possibly be unjust if everyone is in the same boat. Or would that just add to the injustice?
“And who said you’d have to join a church to marry someone? Just throw your wedding and call it a marriage, with the civil union documentation in your back pocket.”
And who says that gay couples can’t just get a “domestic partnership” in California and call it a marriage as it is? One of the reasons for this entire case is that marriage has powerful connotations, of love, fidelity and lifelong partnership – connotations that “civil unions” and “domestic partnerships” simply do not have. Gay couples who marry find their relationship completely changed, even if they had a “domestic partnership” or “civil union” before. Are you suggesting that this is only because of the unequal treatment that gay couples suffer, and that people would have the same feeling getting a civil union if only marriages were disallowed for straight couple as well?
No, it’s because they are *married* and not civil unionized.
Burr
August 9th, 2010
Fine I worded my response poorly, but the point remains that nothing is being taken away, instead the freedom to define marriage is given back to the people, therefore it is not an injustice. Nobody’s losing hospital visitation, the only change is the name of the contract that gives you those rights.
You’re putting too much importance on government decree. You shouldn’t depend on some arbitrary legal terminology to give your relationship meaning. This struggle only exists because people decided to codify cultural practice instead of being pragmatic in the first place.
I’m gonna drop it though because this argument is basically semantic. I will take progress in any form, especially marriage equality. At the very least, separate and unequal will only make the case for true equality even stronger down the road. I just think the most liberty affirming way out of it is to erase this notion of government being in the marriage business.
Cooner
August 9th, 2010
I think the libertarian “civil unions for all, marriage from your church” concept is a good idea in principle, but wholly unpractical from a political and social standpoint.
Look how rabidly these group work to defend against a minority of same-sex couples joining the ranks of marriage … they’re never going to stand for having all of their marriages “demoted” to civil unions, no matter how much logic you throw at them or explanation that they still have a “marriage” through their own church.
Unfortunately it’s a case of letting the horse out of the barn about two centuries and change ago.
Timothy Kincaid
August 9th, 2010
What about the libertarian concept of “civil marriage from your state, religious marriage from your church”
Why should the state concede the use of the legal term “married”?
Lindoro Almaviva
August 9th, 2010
I don’t know, I don’t think that Kennedy would be that stupid as being known as the man who reinstated the doctrine of separate but equal based on a person’s sexuality. I just have to think that he has a LOT more sense to know that if he does that he will be vilified for the rest of his tenure and his entire legacy will be tainted.
I might be totally off base, but I just don’t see that happening.
L. Junius Brutus
August 9th, 2010
“Fine I worded my response poorly, but the point remains that nothing is being taken away, instead the freedom to define marriage is given back to the people, therefore it is not an injustice. ”
And how would letting people define marriage make things better?
“You’re putting too much importance on government decree. ”
I don’t. But words do matter. Can you get those expensive contracts lawyers offer to guarantee a paltry few of the rights of marriage, and then consider yourself married? Or the “reciprocal benefits” that Hawai’i offers, and which can be terminated by sending a letter and $10 to the Secretary of State? I’m not sure. Words do have meanings, which is why the religious right put $37 million into denying gay people the word “marriage”, even though it already offered all the rights of marriage.
“I’m gonna drop it though because this argument is basically semantic. I will take progress in any form”
Me too. Although I prefer that it be through the raising up of the rights of gay couples, and not of the demotion of the rights of straight couples.
Priya Lynn
August 9th, 2010
The “civil unions for all” idea is never going to happen so there is no point in even bringing it up.
paul j stein
August 9th, 2010
Either way if it means I can join the “get married and cash in” crowd like hot women have done for eons I’m all for it! Good looks and a huge package will finally have paid off for me!
cd
August 9th, 2010
I think there’s not going to be an appeal.
The pro-marriage side doesn’t want to risk going to Anthony Kennedy just yet.
The anti-marriage people have probably polled California and have discovered that even if they prevail on appeal, the voters would repeal Prop. 8 in November ’12.
They’re both going to hedge and obfuscate, but I suspect it’s Game Over in California.
Next up: Hawai’i, New York, and Rhode Island. Maybe a quick rerun of Perry in Maine.
The “family values” people are going to put fights, but they’re pretty much resigned that Blue States are going to go. They’re preparing a last ditch everything-but-the-kitchen-sink argument that they think will work in Red States. It’s that gay marriage is a last straw that means illegalization and collapse of conservative Christianity, and then collapse of government and civilization in Red States into violence and chaos. Followed by collapse of government and civilization all over the country. Europe then collapses after the U.S. does and it’s curtains for Western Civilization.
So know what you’re asking for, fellas. Somewhere Mike is gonna give Steve a kiss and Whoops! unwittingly that’s the final straw– Western Civilization is doomed to fall to rubble.
David Roberts
August 9th, 2010
7-2 upholding the Prop8 decision. Thomas and Scalia against. Write it down. And the whole “civil union for govt, marriage for churches” is like most things libertarian, interesting to ponder but not applicable to the real world.
Greg
August 9th, 2010
If this is going to have to go state by state for a bit, Colorado has the pathetic 5-rights designated beneficiaries.
The 10th Circuit looks a bit Conservative, though.
hyhybt
August 9th, 2010
“I’ve been wondering if the Alliance Defence Fund may have deliberately chosen to lose this case at the district court level and may have no intention of appealing it.”—Why would they have insisted on joining the case (remember, it was filed against the California government) if they wanted to lose? All they had to do was let the governor and attorney general decline to defend and that would have been the end of it, and they’d be no worse off than they are now.
Don
August 9th, 2010
When will folks recognise that “marriage” is a legal civil contract and not a religious contract. Clergy can quote all the religious text during a ceremony they want but you’re not married if there’s no license issued by the state. Clergy may bless a marriage and act as a witness for the state, but legally they are superfluous. In Florida a mere notary public can perform a marriage. Any unwed heterosexual couple can “marry” in a courthouse in any state and be recognised in every other state in our country.
Polititians don’t dare upset their religious constituents by using a culturally and emotionally charged term like “marriage” or “wedding”, but some will consider the legal and sterile sounding “civil union” as a legal equivilent.
As long as the legal contract uniting a homosexual couple is called by a different name, society will determine that our contract is different and therefore inherently less than a “real marriage” thereby rendering us unequal.
Ironically, the same judgemental right wing seems to have no problem when legally married same-gender couples decide to end their legal contract and part company. The term “divorce” is equally used then. Why don’t they insist on something like “breaking” or “dissolving” the civil union which would reinforce the stereotype that our contract was traditionally weaker or more fragile than a “real marriage”?
TampaZeke
August 9th, 2010
I’m with David Roberts. I think people are making assumptions that SCOTUS will come down to a 5-4 split. I really don’t see it coming down that way. I expect a 6-3 or even a 7-2 along the lines that David mentioned. I think the turning of the tide will be very obvious to the justices by the time they get the case (just look how things are turning toward our side NOW) and they will be very aware of their place in history. This will certainly motivate Kennedy and I think Roberts will find the same motivation.
And for the commenter who wonders why the ADF didn’t mount a stronger defense with better witnesses, THEY TRIED! They presented the BEST case that they possibly could and put the best witnesses they could find on the stand. People seem to not understand that they didn’t fail because they were incompetent, they failed because they were defending the defenseless. Like Boise said, you can lie, and make stuff up and make television ads that mislead all you want but when you have to back up your claims, UNDER OATH and under cross examination, you can’t get away with made up shit and scare tactics. They put up their best “experts” but their experts are experts at fear mongering with misinformation. On the stand, under cross examination, those tactics that were so effective in their campaign ads got shot down and they were forced to admit UNDER OATH that they not only couldn’t back up their scary claims but IN FACT the opposite of what they were claiming was more than likely true.
The ADF isn’t stupid. They argued their client’s case as well as it could have been argued in the bright sunlight of cross examination. Nor are they so clever as to strategize in the way you suspect. They will continue to fight gay rights with every legal weapon they can muster. Unfortunately for them, they will be showing up to a gun fight with plastic sporks.
TampaZeke
August 9th, 2010
“defenseless” should have been “indefensible”
hall
August 10th, 2010
A civil marriage is a civil union. The only reason why “civil union” exists is because legislatures didn’t want to treat gay relationships as equal.
If the case doesn’t get appealed, the best shot for another legal action would be a moderate state that constitutionally bans gay marriage but allows gay joint adoption. The only state similar to California that I can think of is Oregon.
If this case isn’t appealed there probably won’t be another case with as good of odds for a long time, all-in-all.
Muscat
August 10th, 2010
I’m not sure why you linked to Rowe’s comment on this since he gives no rationale whatsoever for his prediction.
Hunter
August 10th, 2010
“What about the libertarian concept of “civil marriage from your state, religious marriage from your churchâ€
Why should the state concede the use of the legal term “marriedâ€?” – Timothy Kincaid, above.
Absolutely. One need only look briefly at the history of marriage to understand that it has always been about two things: orderly transfer of property, and going even farther back, community recognition of a pair bond. It’s that community recognition that has always been the core, and considering that the Christian church didn’t even recognize marriage as a sacrament until the beginning of the 13th century, I see no reason to let religious bodies appropriate the term. Take it that the government now stands for the community, and civil marriage for all makes a lot more sense than “get the government out of the marriage business” — in which it has always been involved.
The logical extension of the libertarian point of view is not to hand “marriage” over to the churches, but to hand it back to the immediate community — move in together, tell your friends, and you’re married.
Richard Rush
August 10th, 2010
Arrrrh . . . Spell-check just doesn’t do the job:
“These are probably nutty ideas, but I just thought I’d
throughthrow them out there.”Matt
August 10th, 2010
Here’s my question for Rowe-
Why on earth would Kennedy reverse the ruling he made in Romer vs. Evans? That’s essentially what Rowe seems to think will happen.
Priya Lynn
August 10th, 2010
David said “7-2 upholding the Prop8 decision. Thomas and Scalia against. Write it down.”.
Thanks for the laugh David, that was a great way to start my day.
customartist
August 10th, 2010
I predict it would go in our favor.
The Prop 8 supproters Do Not Want this to go to the Supreme Court. They want to hold onto their “Special Rights”.
Timothy Kincaid
August 10th, 2010
Like Zeke, I’m thinking 6-3 (with Alito against), but I’ll not be shocked out of my boots by either 5-4 or 7-2.
There’s even a WILD possibility of Scalia saying, “well that’s the precedent the court set with Lawrence, so fine!” in an angry spiteful way (OK, not very likely). But Thomas will never find that gay people are human, American, or have a single right – unless the Vatican calls and tells him to.
And also like Zeke I think they really did want to win and worked with what they had.
We tend to see all of our enemies quacking away on TV and think that this indicates something. But court requires credible witnesses and legitimate experts. Folks who take their careers seriously don’t want to get on the stand and say nonsense. And most are genuinely interested in what the studies and literature say, not in what they want to win in court.
Remember when O’Connell said that George Rekers was the best he could get? He wasn’t kidding.
Pender
August 10th, 2010
Unless a journalist personally knows Anthony Kennedy or has spoken with someone who has, absolutely everything there is to know about him is right there in the public record. This is not something on which we need experts.
I can tell you that Kennedy wrote both pro-gay decisions in the past — Lawrence and Romer — and while he inveighed against cameras in the courtroom during the Prop 8 trial, he has been on the record as vehemently opposing cameras in the Supreme Court for ages, so it’s not clear that that position had anything to do with his attitude toward gay people.
If I had to guess, I’d say he votes with us, but one could easily imagine him taking any other conceivable position. There’s no reason to think that he’ll allow civil unions but not marriage; he might, but where’s the evidence that it’s likely?
L. Junius Brutus
August 10th, 2010
Alito is even more conservative than Thomas and Scalia (according to the New York Times). There is zero chance that he would vote for gay marriage rights. Roberts is a movement conservative. While he probably doesn’t have any problems with gay people himself, he will do the religious right’s bidding. MAYBE… maybe Ted Olson could persuade John Roberts. But I’m not holding my breath.
Barring an extraordinary conversion, the best-case scenario is a 5-4 decision for marriage rights. Roberts’ influence on Kennedy is rather worrisome in that regard. People here seem to be somewhat too optimistic – wishful thinking? But even granting that he will care about his “legacy”, there is no guarantee that he sees gay marriage as a *good* thing. It could very well be that he regards it as something bad, in which case, the legacy-argument will cut against us. If he cares about his legacy, would he want to be known as the justice who wrecked marriage and imposed same-sex marriage on 45 unwilling states?
I think that he will decide the case on his principles. Don’t forget that he is pro-life, but that he upheld Roe v. Wade in the Casey-decision, because it was the law.
L. Junius Brutus
August 10th, 2010
“But Thomas will never find that gay people are human, American, or have a single right – unless the Vatican calls and tells him to.”
I think this is actually Scalia’s position, not Thomas’. If you read Thomas’ dissent and Scalia’s dissent in Lawrence, it’s easy to see which one is more hateful. It’s shocking to read the things that Scalia writes, coming from a Supreme Court Justice.
Burr
August 10th, 2010
I agree Scalia is worse than Thomas. Thomas outright called sodomy laws “silly” he just didn’t agree with the process of getting rid of them.
Mark F.
August 10th, 2010
Thomas seems very libertarian on many issues, and it is clear he personally opposes sodomy laws and may even be personally favorable to same sex marriage, but he can’t seem to find any specific Constitutional Rights for gay people. Scalia is just nasty towards gays, although he has an interesting way of looking at certain things.
Helen in Ireland
August 11th, 2010
I only know about the US Supreme Court Justices through what I have read on this site and other US-based websites, but I find it appalling that the Justices, the men and women who rule on the cases that will carried forward to impact on ALL your lives for decades to come, can be so easily ‘allowed’ to maintain many such vile prejudices as Justices Scalia, Alito and Thomas are accepted to have.
“But Thomas will never find that gay people are human, American, or have a single right – unless the Vatican calls and tells him to.â€
Good grief, the Religious Wrong are screaming (incorrectly and incoherently)that because Judge Walker is alleged to be gay, he ‘should’ have recused himself from the Perry case. Why no similar protests with regard to the Catholic/extreme conservatives on the Supreme Court bench? [I do understand that their appointments are for life, sadly]. They are supposed to rule on the merits and legality of the cases, surely – and NOT defer to the demands of their churches…
When it is recognized even by laymen that the highest judges in the land will place their personal belief systems ABOVE the civil and constitutional rights, is there not something rotten in the ‘state of Denmark’ – or the Supreme Court, at least?
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