Box Turtle Bulletin

Making sense of the Mexico decision

Unlike the United States’ judiciary procedures, in Mexico judicial decisions have more of a cumulative or consensus impact. While the exact details are still murky (to me) it seems that court decisions apply only to the case at hand. However, if five cases (amparos) of a similar nature have five identical conclusions (without any differing conclusions) then this becomes the law.

In the Oaxaca decision, there were three cases which reached identical conclusion. Which means that if two more cases are pursued and the same conclusion is reached (as is likely), then all state laws excluding same-sex marriages are invalidated.

And, also unlike the US court decisions, this process can be quite a swift one; the cases decided yesterday were filed in August 2011.

But it is also possible that the three cases may prove, in practice, to be sufficient. As the intention of the court is pretty clear (unanimous decisions can give that impression), local officials may wish to avoid the hassle of upholding a law that they know has no high-court support and thus will simply issue marriage licenses.

And states may wish to avoid the hassle and cost of fighting a losing battle and will change their state laws to match what is clearly the new national standard. In fact, as I write this Oaxaca’s legislature is in the process of changing their laws.

Also interesting is that this was not the result of gay-rights groups making a strategic decision based on timing and friendly lower courts and bringing their best and most experienced legal team. These suits were brought by a law student, Alex Alí Méndez Díaz, who bucked the advice of the established LGBT groups and found in the Mexico City ruling language that encouraged him to pursue the cases.

However, the greatest boost to the cases probably came from outside Mexico. (Salon)

Méndez got an unexpected boost on Feb. 24, 2012, while the cases were in process: a landmark ruling from the Inter-American Court that the American Convention on Human Rights “prohibits … any rule, act, or discriminatory practice based on sexual orientation.” It came in a case brought by a Chilean lesbian who was denied custody of her children because of her sexual orientation, Karen Atala Riffo y Niñas v. Chile.

Mexico gives weight to international court rulings.

All of this is to say that Mexico has not become the twelfth country to offer nation-wide marriage equality, but it certainly has taken a large step in that direction. As I see it (though with this issue you can always be surprised) the other major likely contenders for that position are Colombia, Uruguay, New Zealand, and the various UK countries.

UPDATE: Michael Levers, writing at the Washington Blade, has an article that helps explain the case. Meanwhile, additional couples are pursuing marriage in Toluca, in an effort that will set the ball rolling for additional amparos.

Suburban Romney voters supported marriage equality

Walter Olson of the libertarian-leaning Cato Institute took a look at the voting results from this month and found something interesting: marriage equality passed in three states – and a ban was defeated in one – in part due to suburban Romney voters.

The Maryland ballot referendum, Question 6, essentially asked voters to confirm or reject a new law allowing same-sex marriage. In 11 of the 18 counties that Mitt Romney carried, Question 6 fared better than President Obama, a sign that GOP voters had crossed over in support. While the phenomenon could be seen everywhere from farm towns to blue-collar inner suburbs, the biggest swings tended to come in affluent bedroom communities. At one precinct in Hunt Valley, north of Baltimore, with 2,116 votes cast, there was a 28 percentage-point swing, leading to a landslide for Romney and the ballot question: Obama drew a paltry 37 percent, but Question 6 carried the precinct with a whopping 65 percent.

And it wasn’t just an odd quirk. Consistently, in all four states, a significant number of suburban Republicans went to the polls and voted for Mitt Romney and marriage equality.

This isn’t to say that Republicans supported marriage equality as a whole or that Democrats did not. Rather, it says that enough Republicans in suburban counties went against their party – exit polls suggested 20 to 25 percent – to make up for those rural conservative Democrats who voted to oppose our marriage rights.

It turns out that in 2012, demographics drove the marriage vote in significant ways. While party registration and presidential selection may have influenced most personal votes, the culture of the community voters live in had tremendous impact on Republicans (and to some extent Democrats).

One quick way to look for towns where Republicans were especially likely to approve same-sex marriage is to consult the state-by-state Yahoo.com “Best Places to Live” series, which highlights communities with high incomes, high education levels and low rates of property crime. The list of “Best Places to Live in Minnesota” is dominated by outlying Twin Cities suburbs, most of which tilt strongly GOP: Sixteen of the 20 supported Romney — six of them by 60 percent or more. But only one town among the 20 voted to ban same-sex marriage, and by an anemic 50.28 percent (had nine voters there switched sides, the outcome would have been different).

This sort of information is valuable in that causes us to nuance our thinking and opens possibilities that we might have been otherwise quick to dismiss.

SCOTUS deliberates

Today the Supreme Court of the United States will meet and discuss a number of cases of importance to our community. The two highest profile cases are California’s Proposition 8 (currently called Hollingsworth v. Perry), and the collective challenges to the Third Clause of the Defense of Marriage Act.

Today they will decide whether to hear challenges in those cases or to let them stand. For a case to be heard, four justices must agree that they wish to deliberate the appeal. Their decisions will be announced Monday.

It’s all guesswork at this time, but my prediction (a common one) is that the judges will refuse to hear the appeal to the overturn of Proosition 8, agreeing with the Ninth Circuit Court of Appeals that once a right has been granted to citizens, it then cannot be taken away from one group of people based on dislike or disapproval, thus returning marriage equality to California. Thus the Court can, for now, delay a decision on the larger question about the constitutionality of anti-gay marriage bans.

Should they decide to hear Perry, it may mean that the court is prepared to decide whether heterosexual and homosexual citizens have equal standing under the law.

As for DOMA3, that is clearly unconstitutional. It is almost certain to get a writ of certiorari. The cases will probably be clumped, but common wisdom suggests that the Edie Windsor case will be the vehicle through which the challenge is argued. On the face of it “gay couples should pay higher taxes than straight couples” is and argument that does not sit comfortably with pro-gay liberals or anti-tax conservatives. Also going against DOMA3 is that it is a federal usurpation of an area of law that has traditionally been left to the states.

Of course, there is a chance that the court will not even hear DOMA3 but will simply agree that this is an unconstitutional law and let it be stricken next week. Monday will be exciting no matter the decisions made today.

Arizona man files paperwork to start reversing marriage ban

I love Arizona politics. Half the stories I read, I have to check that I haven’t wandered onto The Onion’s satire page. (East Valley Tribune)

Tanner Pritts has formed Arizona Advocates for Marriage Equality. But he also has filed the necessary paperwork with the Secretary of State’s Office to allow him to start raising money for a 2014 campaign.

The initiative drive, if successful, would put the issue back on the ballot just six years after Arizonans voted by a 56-44 margin to define marriage in the state constitution as solely between one man and one woman.

…Pritts said he is a registered Republican and voted in 2008 for John McCain and just this year for Mitt Romney, both of whom are on record as opposing same-sex marriage. Pritts said, though, he is hoping to convince the GOP to alter its stance on the issue.

Okay, so Pritts is a bit naive.

But it’s Arizona. Anything could happen.

(ps. this should be a Jim Burroway story, but he’s enjoying family time where every third block is not a TimeWarner WiFi hotspot)

New South Wales cross-party work for marriage

From SMH

NSW is one step closer to a vote on legalising same-sex marriage, MPs from across the political spectrum giving official notice of new legislation.
A cross-party working group of MPs from the Coalition, Labor, the Greens and an independent have been working on a bill that would allow gay and lesbian couples to marry in this state, after the failure of three federal same-sex marriage bills earlier this year.
Coalition and Labor MPs will be allowed a conscience vote on the bill when it comes before Parliament next year.

Uruguay considering gay marriage bill

Uruguay has, since 2007, offered protection and recognition to same sex couples under a civil unions bill. It is now considering a law to offer full marriage. (AP)

Uruguay’s congress is considering a gay marriage law that would give same-sex couples all the same rights and responsibilities of heterosexual married couples.
…
The proposed “marriage equality” law would change Uruguay’s nearly-century-old civil code and give married gays and lesbians all the rights and responsibilities of heterosexual married couples, including the possibility of adopting children.

It was drafted by gay rights activists in the so-called “Black Sheep Collective” and now has the support of lawmakers in the ruling Broad Front coalition, which decided Wednesday to debate the measure next week in the House of Deputies’ constitutional commission.

Naturally the Catholic Church opposes it.

And it what surely has to be considered for some award for truly astonishing arrogance and supremist attitudes, Bishop Jaime Fuentes had this to say: “Giving this kind of union the same obligations and rights as marriage would represent serious discrimination against a married man and woman.”

Oh, gosh, how dreadfully unfair. Idiot.

Ireland’s Tánaiste pushing for marriage equality

From Irish Times

Tánaiste [deputy prime minister] Eamon Gilmore would like to see a referendum on same-sex marriage “as soon as possible”, he said today.

Mr Gilmore said his own view was the “time has come” for marriage of same-sex couples. “I don’t believe we should postpone what is a human right,” he told RTÉ radio.

The referendum would come in advance of Ireland’s upcoming constitutional convention.

Vatican: we are not losing the marriage battle

Forget all those election results you saw on Tuesday. Ignore what the legislature is doing in France. And as for Belgium, Denmark, Iceland, the Netherlands, Norway, Sweden, Canada, and South Africa, they are inconsequential. And the Catholic countries of Portugal, Spain, Argentina and Mexico… oh, please, that’s just silly posturing.

Because none of that matters. The Vatican has declared that it is not losing the marriage battle. (WaPo)

On the contrary, according to an article in L’Osservatore Romano by historian Lucetta Scaraffia, the church has emerged in recent years as the only institution on the global stage that’s capable of resisting the forces that threaten to “break up … human society.”
…
According to the historian, the church’s fight on moral issues such as gay marriage and abortion has drawn support and “admiration” from many non-Catholics.

Well there you have it. The Vatican is winning. And if you try to argue, we’ll just stick our fingers in our ears and say, “la la la la la, I can’t hear you”!!

NOM’s fantasyland poll

Cue the calliope, Kellyanne Conway is back with some more charmingly imaginative polling numbers. And just as a creative mind can almost believe that the beribboned wood-carved creations bobbing up and down are a real pack of wild horses, if you dream real hard and listen to the music, Conway’s polls can almost seem just like real ones.

But even at the Happiest Place on Earth, the music stops. And the wooden horse is just a wooden horse.

And, so too, when the giddy moment of make-believe ends, Kellyanne Conway’s “polls” remain nothing but tools for frauds and manipulators to try and convince themselves and others of things that simply are not true. And so it is to Conway’s ‘the polling company, inc.’ that the National Organization for Marriage has turned for consolation over Tuesday’s losses.

In some sad delusional effort to flash bright lights and play jingly music, NOM brings us this:

The National Organization for Marriage (NOM) today released the results of a nationwide survey of voters conducted on Election Day that shows 60% of Americans who voted in the election favor marriage being the union of one man and one woman. The survey, conducted by respected pollster Kellyanne Conway’s firm ‘the polling company, inc.’ is consistent with a national survey they conducted this past September showing 57% of Americans then believed marriage should only be the union of one man and one woman.

“The outcome of the marriage votes in four very liberal states has caused some to speculate as to whether the American people have changed their views on marriage. This scientific poll shows that the answer to that is, ‘no’ they have not changed,” said Brian Brown, NOM’s president. “This survey shows that 60% of voters believe marriage is one man and one woman, which is consistent with the 57% result ‘the polling company’ found in September.”

How was that poll conducted?

Conducted by the polling company, inc., the survey interviewed 800 randomly selected people who actually voted.

You may note that the familiar language about “statistically valid random sampling methodology” was not used. Instead they opted for that phrase most associated with convenience sampling. And cues one that their results have about the same reliability as one would find by “randomly selecting” people at your local mall. That is, not much.

And the question?

Do you (ROTATED) agree or disagree that “marriage is between one man and one woman”?

Well let me ask you, do YOU disagree that marriage is between one man and one woman? I don’t. I’ve been to several marriages that were between one man and one woman. I just also happen to believe that marriage is between one man and one man or one woman and one woman.

Which pretty much means that this means nothing. It’s a garbled response to a deliberately confusing question asked to people that were not selected to reflect the populace or the voters. But it’s presented as though it has meaning.

It’s kinda sad, really.

When your best bet is to present a fantasy, a whimsical ride on a merry-go-round, you pretty much have no reality to rely on. And you know it. When you resort to candyfloss polling, it’s because you know, you know with certainty, that any real poll would show you a world much more real than you can stand seeing.

And while this kind of nonsensical fairy-tale alternate reality may be appropriate for light lifters like Brian Brown, it’s embarrassing to see educated once-thoughtful people like Robert George or Maggie Gallagher associated with this level of story telling and myth mongering.

Maggie’s Freudian slip

Writing in National Review Online, the National Organization for Marriage’s Maggie Gallagher opined with her observations about what drove last night’s election results:

The Obama electorate defeated marriage. I’m guessing we lose at least three of tonight’s four races, and maybe four of the four. We were outspent eight-to-one — and no one was willing to speak for marriage, while the whole Democratic establishment and Hollywood campaigned for marriage. Last night really is a big loss, no way to spin it.

Catch it?

“…the whole Democratic establishment and Hollywood campaigned for marriage.”

Not “campaigned against traditional marriage”, not “campaigned for articifical marriage”. No, Maggie got it right.

The Democratic establishment and Hollywood (and a whole lot of others) campaigned FOR MARRIAGE, for the integrity and dignity of a treasured institution that it not be sullied by exclusion or animus or smug superiority.

(oh, and someone slip Brian Brown a note about spinning)

The French symbol of anti-equality

The National Organization for Marriage is joyously reporting that France’s faithful Catholics are in opposition to marriage. And accompanying that article is this rather perplexing photograph:

I have no idea what this guy is doing, but it does raise an interesting question: Why wear neck-to-knee underwear under your skin tight body suit if your junk is going to show anyway?

Meanwhile, in France…

New York Times

The French cabinet approved a draft bill legalizing same-sex marriage on Wednesday after weeks of loud opposition, especially from religious figures and the political right.
…
The draft law redefines marriage to stipulate that it is “contracted between two persons of different sex or of the same sex,” and the words “father” and “mother” in existing legislation are replaced by “parents.” The bill would also allow married gay couples to adopt children.

The states of marriage and the state of the marriage fight

For some reason I woke up humming this song:

Winning four marriage battles last night was a victory I had not dared expect. It’s a joyous day, a true turning point, and a moment in history I think we will all remember.

But our fight isn’t over, and the battles we won yesterday were fought on our own turf. And while they are enormously important, we need to see them in context.

Here is the map of American states which offer some recognition of same-sex couples as of January 2013. Green states offer full marriage equality, blue states offer domestic partnerships or civil unions with all or nearly all the rights of marriage, and orange states offer some form of formal registration with limited rights. (There is also some legal argument that New Mexico and Wyoming might recognize out-of-state marriages).

It is great to see three more green states. However, yesterday’s vote did not color in any states that were not already in one of these categories. Washington had all-but-the-name domestic partnership rights, Maine had limited domestic partnership rights, and Maryland recognized out-of-state marriage.

I don’t bring up this point to throw a wet blanket on our celebration, but to remind us that the hardest battles will still be in front of us and encourage us to be prepared. We will win (time and justice are on our side) but it will not be easy.

Frankly, the quick and easy numbers say that we should have done better. National polls have shown for a few years now that a majority of Americans support marriage equality. And as we know our supporters aren’t dominating Texas and Alabama, it would seem logical that the blue states should support marriage in numbers around sixty percent or more.

But I don’t think that this means that the polls are wrong. I think it means that the polls and the votes reflect two different things. Polls taken away from election cycles reflect the emotional “what I want to believe” response while votes reflect “what I think is best” response and, at the moment, those who oppose equality are able to deceive or scare those who want to support equality into thinking it is a threat.

In other words, a hefty chunk of our support is weak support. And, other than a few states, the upcoming battles will be in places where scare tactics and lies may be most effective.

Of course the courts could rule marriage-bans to be unconstitutional (as they obviously are), and our legal issues would be over. And yesterday’s vote will heavily weigh in our favor in their upcoming deliberations.

Nor will any victories won in the courts be reversed by Congress. There simply will not be sufficient political will to get a two-thirds vote in the Democratic Senate – or even in the Republican House – for a Federal Marriage Amendment. And ratification by three-fourths of the states is a near impossibility.

But should such legal protection not be forthcoming in the next year or so, let’s consider at our political choices. Looking at the map, I cannot identify too many white states that are poised to join the equality states.

Minnesota has a long history of support for liberal ideas and politicians and, having just defeated an anti-gay amendment, is ripe for some legislation for civil unions or perhaps even marriage equality. New Mexico and Arizona are also likely candidates for some recognition of same-sex couples. Arizona has a constitutional ban on marriage, but the people rejected a ban on other forms of recognition. I suspect that these two states might be receptive to domestic partnership legislation.

I’m going to offer one odd possibility that may seem bizarre: Utah. Right now this state has a constitutional ban on marriages and civil unions. But Utah is unique in that public opinion on pretty much any issue can change in one day due to the announcement of one church’s leadership. And it is my belief that the Mormon Church hates that it is to a great extent considered to be the voice of intolerance and bigotry. I would not be entirely surprised to see the Mormon Church seek to diffuse this impression by having Utah change their constitution to provide some limited measure of rights to same-sex couples.

Beyond that, the only states where I think we hold much hope right now are Indiana, Pennsylvania, and West Virginia and I may well be delusional about those. And, some distance down the road, Ohio, Michigan, Idaho, Montana, Wyoming and the Dakotas. As some of these will require reversing constitutional amendments, this won’t be easy or straight forward. Otherwise, the geography doesn’t look good.

Our strategy will likely be to seek increased status in domestic partnership or civil union states. A legislative vote in Hawaii, Delaware and Rhode Island seems likely and 2014 will probably see an effort in Oregon to reverse their constitutional ban. And so on.

The likely eventual scenario is one in which there are states which offer marriage and states which offer nothing. And I believe that at that point, the civil union compromise would be off the table and our fight will be all-or-nothing battles state by state. We will eventually win, but it won’t be easy in Alabama and Texas. Or even Nebraska and Florida.

But I don’t want to leave us in a gloomy spot on this glorious day. Should they not do so before, it is almost certain that after we have won victory in the popular vote in several states, the Supreme Court will discover that there is no asterisk in the Constitution that excludes gay people from the rights granted to citizens (they tend to delay civil justice until there is healthy support). And, if nothing else, time favors us. Younger voters are overwhelmingly supportive of equality.

We have a hard difficult road ahead of us, but yesterday’s voting was the best possible stride down that road that we could have hoped for. We are energized and our opponents are shocked.

Oh what a beautiful day.

Spain’s high court upholds marriage

From Fox News Latino (an oddly useful source for non-US gay related stories) :

The Spanish Constitutional Court defended same-sex marriage in rejecting a challenge filed by the conservative Popular Party against the law authorizing such unions, which was enacted by a Socialist administration.

Nearly 25,000 couples have been wed under the law since it was enacted in 2005 by Spain’s then-Socialist government.

According to court officials, the verdict was passed by a vote of 8-3.

El Pais covers the story in more detail. (google translation)

One conservative joined seven progressives to support marriage. One conservative abstained from the decision and three opposed the court’s finding.

The conservative Popular Party railed against the bill when it passed in 2005. But now that they have control of the government, they are finding that legislation to overturn the popular law is a very very low priority. They have decided that their real objection was to the word “marriage” and now that the court has ruled, the government will abide by its decision.

Slovakia rejects partnership law

From Reuters

Slovakia’s parliament rejected on Tuesday an opposition proposal to recognise homosexual partnerships in the strongly Catholic country, where coming out as gay remains relatively rare.

During two days of heated debate, conservatives accused the opposition of blasphemy, and said granting same-sex relationships equivalent legal status as heterosexual marriage was against traditional family values and a risk for society.

Only 14 of 129 deputies present voted to send the bill to a second reading, 94 were against and 20 abstained.

I think the news here is that Slovakian parliamentarians proposed and voted on considering partnership laws. It’s all movement in the right direction.