Box Turtle Bulletin

California marriages go civil

Yesterday the California state assembly approved SB 906, which will make the following changes to California’s marriage law:

300. (a) Marriage Civil marriage is a personal relation arising out of a civil contract between a man and a woman, established pursuant to a State of California marriage license issued by the county clerk, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute civil marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

and

400. Marriage Civil marriage may be solemnized by any of the following who is of the age of 18 years or older:
(a) A priest, minister, rabbi, or authorized person of any religious denomination. No person authorized by this subdivision, or his or her religious denomination, shall be required to solemnize a marriage that is contrary to the tenets of his, her, or its faith. Any refusal to solemnize a marriage under this subdivision shall not affect the tax exempt status of any entity.

The bill goes on to revise the rest of the law by replacing reference to “marriage” with “civil marriage.”

Officially this bill does nothing, but the symbolism is interesting. It says that the State of California isn’t interested in how your church defines marriage, only in the civil aspect. Further, it assures churches and clergy that they need not conduct any marriages that they don’t find appropriate to their faith, even though such assurances are unnecessary due to the US Constitution’s religious protections.

And the wing-nuts are furious.

You’d think that ensuring and emphasizing protection for clergy would be welcomed. But wing-nuts don’t want such protection; it distracts from their deceptive talking points. They want to be able to scare people into thinking that their church will be forced to conduct same-sex marriages and have discovered that most voters don’t really understand that the First Amendment already protects them. This revision would make it harder to lie.

As the Ruth Institute, the National Organization for Marriage’s college outreach, laments

The real intent behind this bill is to make it appear as though it eliminates one of the main objections to same-sex marriage, that it jeopardizes religious freedom, in what gay activists hope will be an effort to get gay marriage on the ballot in California in 2012. They think that doing this will make gay marriage seem more acceptable to the voters of California and make it easier for such an amendment to pass. The idea is that if this bill passes, they can claim that allowing same-sex marriage won’t have any affect on religious freedom.

And anything that makes it more difficult for NOM and their allies to deceive voters is a threat to their power. Going into a potential 2012 constitutional amendment to reverse Proposition 8 (assuming that this isn’t all resolved through Perry v. Schwarzenegger by then), they didn’t want to have to defend “civil marriage” or lose one of their biggest scare points.

The bill passed with support of virtually all Democrats along with two Republicans. It had previously passed the State Senate but will return for a concurrence vote before going to the governor for signature.

Rhode Islanders support marriage

Greenburg Quinlan Rosler has conducted a poll of Maine Rhode Island residents for the Gay and Lesbian Advocates & Defenders about marriage attitudes in Rhode Island. Although this is a gay-sponsored poll and I have a problem with one part, it does not appear to be conducted in a way that would provide significantly invalid results.

The first 15 questions were either demographic or related to general political issues. Then there were several questions on gay issues. The first three were:

Now, I’d like to rate your feelings toward some people and organizations, with one hundred meaning a VERY WARM, FAVORABLE feeling; zero meaning a VERY COLD, UNFAVORABLE feeling; and fifty meaning not particularly warm or cold. You can use any number from zero to one hundred, the higher the number the more favorable your feelings are toward that person or organization. If you have no opinion or never heard of that person or organization, please say so.

16. Gay and lesbian people

45% responded with warm feelings
18% responded with cool feelings
61% the average response number

17. Gay rights groups

35% responded with warm feelings
27% responded with cool feelings
52% the average response number

18. Currently there is a bill being considered in the State General Assembly that would allow equal access to marriage for same-sex couples. Churches, clergy and other religious institutions would NOT be required to perform same-sex marriages. Do you favor or oppose this bill?

34% – Strongly favor
23% – Somewhat favor
12% – Somewhat oppose
20% – Strongly oppose
10% – (Don’t know/refused)

I’m not sure to what extent that the warm/cold questions influenced the answers on marriage. As they were not particularly leading, I doubt by much. And “allow equal access to marriage” is somewhat more likely to yield positive results than “allow same-sex couples to legally marry”, but again this may not be consequential.

However, I do think that reminding participants that religious institutions are not required to perform same-sex marriages can play a roll in driving polling results. Though on an issue this divided, perhaps not by more than five or six points and then likely would mostly show movement between the “favors” and “don’t knows”.

So even with this poll’s flaws, I think it is probably fair to say that a majority of Rhode Islanders support marriage equality and that opposition to same-sex marriage in Rhode Island is weak.

And probably the most important contributor to the support in Rhode Island is found in question 30:

Do you personally know or work with someone who is gay or lesbian?

79% – Yes
19% – No

Mexican Catholic Church goes wackadoodle

The Roman Catholic Church in Mexico is going wackadoodle in a way seldom seen outside the circus (or some of the US’ more colorful anti-gay activists).

Last Sunday, Cardinal Juan Sandoval Iniguez of Guadalajara accused the mayor of Mexico City of bribing the nation’s Supreme Court to find that Mexico City’s marriage equality law did not violate the constitution. Although the Supreme Court unanimously censured his statements, rather than distance themselves from such extremism the rest of the Church hierarchy jumped onboard for a ride on the Wackadoodle Train.

And now Cardinal Iniguez is claiming “proof”. (LA Times)

Mayor Marcelo Ebrard of Mexico City on Wednesday filed a civil suit claiming defamation against Cardinal Juan Sandoval Iniguez of Guadalajara, upping the ante in a high-profile political spat over gay marriage in Mexico that pits emboldened secular institutions against the country’s influential Roman Catholic clergy.
…
Church authorities were not backing down. Sandoval said Monday he would not retract his comments, and the archdiocese in Guadalajara later said it had proof of the allegations against the Supreme Court justices. Statements in support were issued from the archdiocese in Mexico City, while the Bishops’ Conference of Mexico also said it supports Sandoval.

Now, this is Mexico; anything is possible. But considering that the Bishops also declared same sex marriage to be worse than narcotrafficking, I’m not much inclined to think that they will be able to prove their case.

Stupidest argument against marriage, maybe ever

Mario Almonte has an opinion piece on Huffington Post that takes my breath away. Oh, not in its brilliance, but in its astonishing lack of knowledge, factual accuracy, or logical conclusion. In fact, its mind-numbingly stupid.

Almonte argues that gay folks should just settle for civil unions and be happy. Okay, I understand the argument for civil unions (though I reject it). But Almonte seems to be under the impression that this astonishing revelation was his own epiphany and an amazing new idea which will just solve the problem.

In fact, he comes across as someone who woke up this morning and, for the very first time, considered the concept of same-sex marriage but didn’t let his lack of context, knowledge, or contemplation slow him down in sharing his new-found perspectives. Consider his opening sentence:

In the movement to legalize same-sex marriages in the United States, the religious right has proven a formidable and unwavering foe, and their victory in delaying the repeal of California’s Proposition 8 is persuasive evidence.

Really? Because I don’t know of any legal scholars – outside the wackadoodle variety – that think that the language of the Ninth Circuit’s stay is a victory for the religious right, much less persuasive evidence of their formidability. For heaven sake, man, it even questioned their ability to appeal.

Stupid? Kinda. But it really goes downhill from there. He looks over the past 30 years and sees the community as having “lost substantial ground” (hello?) and seems to honestly think that the religious right does not oppose civil unions (he seems never to have heard of Hawaii).

I can’t even begin to list all the ways in which Almonte fails. But I do recommend that you take a glance at this essay. It’s rare that you find something that is so far off the mark that it would be far easier to pick out the bits that are factually accurate, logically consistent, or historically aware than it would be to isolate those that are laughably wrong.

I suspect that Almonte sees himself as the wise benevolent counselor. But, Lordy this guy comes across as stupid.

Hasselbeck clears up misconception on marriage

In an interview with Adam Buckman posted on Fancast, The View co-host Elizabeth Hasselbeck clears up some misconceptions about her views as the conservative on the panel:

What are some common misperceptions about you?

Oh, gosh, there are so many… I am not ultra-ultra-conservative on every issue. I actually support gay marriage.

That may be an opinion that would surprise people.

I think the gay marriage thing would definitely surprise people. I mean, for some people, it will surprise them to the point that they won’t want to hear it. “No, that can’t be, I really want to have this sort of idea of her in my head,” so I sort of rain on their parade there. I am a person that does believe that life begins at conception, but I also don’t believe that the government should tell women what to do with their bodies. So I’m torn there in terms of supporting laws [for or against abortion]. I always say I would rather change a heart than a law. I think it has to start there. Always trying to mandate, mandate, mandate this or that is not the way that I believe this country should run.

“Conservative” is a label people plaster on this person or that one. Is it more complicated than that when we’re talking about you?

I tend to be more of a federalist than anything else, and I do think there’s more of an independent streak in me that I just get genetically from my parents. But on many issues, sure, I guess I would be classified … as conservative. But like I mentioned before, there’s so many gray issues, be it abortion or gay marriage…. There’s a lot of discussion to be had and that’s why I love ‘The View’ and I wish that there was more focus on that in-between, gray area than [just] smacking a label on somebody. That’s the easy thing to do.

To be honest, I kinda suspected that.

Legal marriage may matter most when it’s over

Yes, I know that you and your beloved plan on being together until death do you part. And no doubt many of you will make it there. But some of you lovebirds will squabble over worm and want to fly in different directions, and when it comes to how to split the nestegg, it matters very very much whether the IRS recognizes your marriage.

Robert Wood, writing for Forbes, gives us a few examples.

In fact, the biggest tax issues often come up on the unraveling of a marriage. Whether a couple is heterosexual or gay, the tax aspects of unraveling a relationship are very different inside and outside marriage. You might be shocked how these tax rules work.
…
A divorcing couple can divvy up property tax free. Again, there’s no limit. So if you jointly bought a house, you can transfer your interest to your ex without tax.

Not married? In that case, you’ll likely face income or gift taxes. If you give your half of the house to your ex-partner and receive nothing in exchange, you’ve made a taxable gift.

Suppose you’re not feeling that generous and instead are deeding your half of the house to your ex in exchange for some of your ex-partner’s stock holdings? Then you both could be hit with income taxes.

I wish this information were more central to our arguments over equality. Most folks find it surprising when we point out that not only are we denied protections and rights by our government, but we pay far more taxes then they do for the few we get.

Who knows, perhaps those who so oppose our rights on “moral grounds” might find tax inequalities an argument they could consider. After all, it was in the context of paying taxes that some fellow once said, “Give Caesar what is Caesar’s, and God what is God’s”

Mexican Catholic Archdiocese completely jumps the shark

You think Mexico’s drug cartels are a problem? Well you ain’t seen anything so bad as what’s really destroying the country: Teh Gehs!! (On-Top)

The Roman Catholic Archdiocese of Mexico has called gay marriage worse than drug trafficking, Mexico daily El Universal reported.

Kidnapping, executions, intimidation, and the all-out war on the Mexican government? Pshaw! That’s nothing compared to Anita and Isabel tying the knot.

Something must be done! The Church must get involved and tell the people how to vote!

The church called for the ouster of the government of Mexico City Mayor Marcelo Ebrard.

“He and his government have created laws destructive to the family, the laws do worse damage than drug trafficking,” Hugo Valdemar, spokesman for the Archdiocese, said. “Marcelo Ebrard and his party, the PRD, are determined to destroy us.”
…
Last Sunday, the cardinal of Guadalajara, Juan Sandoval Iniguez, accused Ebrard of bribing the court to rule in the city’s favor.

Speaking in Aguascalientes, Iniguez said the court would not reach such an “absurd” conclusion unless it was motivated by a large sum of money.

“I do not know of any of you who would like to be adopted by a pair of lesbians or a pair of fags,” he said. “I think not.”

Bring back good ol’ fashioned morality. Bring back the old ways when life was simpler and everyone knew their place, and stayed in it. It’s the Real Catholic way.

German life partners get inheritance equality

Germany has allowed same-sex couples to register Life Partnerships since 2001. However, this recognition was significantly lower than that of married couples. In 2008 revisions were made to bring about greater equality. But a court has ruled that the inequalities in taxation of inheritance between 2001 and 2008 must be rectified. (AFP):

The judges said that although heterosexual marriage still enjoys a unique status under the German Basic Law, it was unconstitutional for couples who had made a long-term commitment — and a pledge to pay maintenance if they separated — to face bias in inheritance.

It set a deadline of December 31 for the parliament to produce new legislation to rectify the “unconstitutional” disadvantage for gay partners in the years 2001 to 2008.

The Trib spins their own poll in an odd way

Rex Huppke, writing in the Chicago Tribune, has an article today about a Chicago area poll they conducted on same sex marriage. I can’t find the poll results themselves, but the way they report it is downright peculiar.

They start and end with how immoral some find same-sex relationships, but their numbers – when they show them – don’t back that up. But even the numbers seem to be elusive.

Look at paragraph two:

Young, of Oak Lawn, says his opinions on homosexuality are grounded in his Christian faith, but his willingness to support gay marriage puts him in the minority among Chicago-area suburbanites. In a recent Tribune/WGN poll, 46 percent of suburban residents said they oppose legalizing same-sex marriage, while 40 percent approve and 14 percent have no opinion.

OK. Now look at paragraph six:

The overall opinion on legalizing same-sex marriage, when city respondents are factored in, is split: 42 percent oppose it, 42 percent support it and 15 percent have no opinion. The Market Shares Corp. telephone poll of 800 male and female heads of household from the six-county Chicago area has a margin of error of plus or minus 3.5 percentage points.

They tell us that suburbanites don’t like gay marriage so much, but that when city residents are included, the response is split. But look what’s missing.

Clearly – though the Trib doesn’t tell us so – the math requires that city residents split the other way; more city residents have to approve of marriage equality than disapprove. But since the Trib decided not to share that fact, we don’t know by what extent.

You would think that “Chicago residents support gay marriage” would be an interesting headline. Or at least worthy of making the story.

And the three examples that the Trib ran with to share the residents’ perspective: One supports civil unions but not marriage (but only as a live and let live idea), one opposes both marriage and civil unions, and the sole supporter of marriage thinks that same-sex relationships are immoral. Not a single example was given of those who think that same-sex relationships are a good thing.

If 42% of the area’s residents support marriage, you’d think that maybe the author could find one of them to interview. It’s odd, Huppke has written a number of articles that address gay issues and he doesn’t seem to have a history of animosity towards the gay community.

“Gender no longer forms an essential part of marriage.” OH MY!

Oh, the “traditional” marriage people are upset. So upset. And this sentence from Judge Walker’s ruling on Prop 8 has them especially upset:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Here are some upset reactions from those upset people:

I believe gender matters, and I believe that gender plays a role in what makes marriage different from relationships. But Judge Walker has decided that his interpretation of the Constitution trumps all that.

If gender is no longer “an essential part of marriage,” then marriage has been essentially redefined right before our eyes.

Can you believe you are reading these words, not merely as the private opinion of a moral reprobate, a cultural revolutionary, but as the conclusions of a “judge” in the United States of America? … This kind of homosexual propaganda has no place in the legal system of a moral culture, but there it is.

Apparently they think Walker is advancing some radical theory and that his opinion introduces a new concept of marriage into our legal system.

They’re talking nonsense.

Walker is merely noting an indisputable truth: traditional gender roles in marriage used to be mandated by law — the man was legally put in charge of his wife, and his wife’s rights were severely limited by the law — but this is no longer the case. Marriage today, in the eyes of the law, is a union of equals.

Who can claim that this change hasn’t happened? Apparently, it’s invisible to those who believe marriage has been constant and unchanging since Adam and Eve. They need a little history lesson, so here goes.

William Blackstone was an 18th Century English judge who shaped British common law and was a tremendous influence in early American law. The Prop 8 lawyers love him. In their emergency request to stay (i.e., delay) enforcement of Walker’s verdict, they write:

This understanding of the central purposes of marriage is well expressed by William Blackstone, who, speaking of the “great relations in private life,” describes the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.”

Yep, Blackstone’s their man. Of course, Blackstone also wrote this:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything.

Guess what? That’s not true in 2010 America. Wives won the right to own property in 1848 (in New York, at least). Men can now be prosecuted for beating their wives. Women can refuse to have sex with their husbands, and those husbands can no longer rape them them at their pleasure. So look again at that upsetting Walker quote:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

It’s simply true. Granted, a married couple can choose to live as if “the very being or legal existence of the woman is suspended during the marriage,” but the law will no longer enforce it. Marriage under law is now a union of equals. That leads to Walker’s point: If we no longer see the need for men to have one legally-defined set of marital rights while women have another, much smaller set, then the law sees no distinction between men and women in marriage, and therefore should see no distinction between opposite- and same-sex couples.

Let’s boil this down to one sentence (one question, actually): If someone’s outraged over Walker’s statement, simply ask, Oh, so you think wives can’t own property, and that men are still allowed to beat and rape their wives? Unless they answer you bet!, they’re admitting the truth in Walker’s verdict.

H/T to Brad Parr for pointing out Blackstone in the pro-Prop 8 brief, and to Ms. Magazine for the history lesson.

Fox poll on marriage equality

Fox News has conducted a poll about same-sex couple recognition

Do you believe gays and lesbians should be:
1. Allowed to get legally married,
2. Allowed a legal partnership similar to but not called marriage, or
3. Should there be no legal recognition given to gay and lesbian relationships?
4. (Don’t know)

37% – married
29% – partnership
28% – no recognition
6% – don’t know

This poll shows improvement over past polls. For the first time in Fox’s polling, marriage was the favored option.

Less than half of Nevadans oppose marriage equality

The Las Vegas Review-Journal commissioned a poll of Nevada’s voters:

QUESTION: Do you support or oppose legalizing gay marriage in Nevada?

35% – Support
46% – Oppose
19% – Undecided

Although only 35% support legalizing gay marriage, the large undecided block suggests political shift in the past few years.

Opposition to legalizing gay marriage in Nevada appears to have thawed somewhat in the years since voters approved a state constitutional amendment that defines marriage as between a man and a woman.

A 2002 poll showed 60 percent of Nevadans supported a ban on gay marriage and 36 percent opposed the ban. Also that year, two-thirds of Nevadans approved the Protection of Marriage constitutional amendment.

The large undecided block may also reflect the timing of the poll, which was taken after Judge Walker found Proposition 8 to be in violation of the US Constitution. Nevada has domestic partnerships which provide all of the state rights and obligations of marriage under a separate name, similar to California.

The poll also found that gubernatorial candidate Brian Sandoval, a pro-choice Hispanic Republican who supported the Domestic Partnership bill, has a significant lead over Rory Reid, the Democratic candidate for Governor. As best I can tell, neither support full marriage equality.

Luxembourg takes next step towards marriage equality

On Tuesday a bill was entered into the Luxembourg Chamber of Deputies to allow for same-sex marriage on the same terms as heterosexual marriage. The bill would also allow for simple (but not full) adoption by same-sex couples and would raise the marriage age for women from 16 to 18 so as to have equality between the sexes. (Wort)

The Civil Code is amended in two material respects: First, the marriage allows same-sex couples. This is the reform of the current legislation beyond that allowed for same-sex couples only registered partnerships. All rights and obligations arising from marriage, should also arise for same-sex couples.

The bill will come for debate this fall and likely come into force next year. The Grand Duchy of Luxembourg is the likeliest contender for being the eleventh nation to enact same-sex marriage.

(Much thanks to Jutta Zalud for providing this update)

Voters are really really (not) concerned about “protecting marriage”

The latest Pew Research Center survey is in and they’ve found that when it comes to same-sex marriage, voters could not care less. Literally. Of the thirteen categories of concern, same-sex marriage was at the very bottom, in both parties.

The reason we haven’t heard the politicians screaming about Judge Walker’s ruling is because they have figured out that their constituents aren’t interested, don’t want to talk about it, and are probably suspicious about anyone who wants to rant about gays instead of the economy.

The stay is denied, but extended one week to allow for appeal

From the LA Times

A federal judge Thursday refused to permanently stay his ruling overturning Proposition 8’s ban of gay marriage but extended a temporary hold to give supporters time to appeal the historic ruling.

U.S. District Court Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. No new marriages can take place until then.

This is perhaps the most appropriate response. When we get the order we will know the language, but it appears that the Judge has ruled that the defendants have no likelihood of winning at the Ninth Circuit Court of Appeals, and therefore no stay on his ruling should be held, but he also is allowing time for the Ninth Circuit to weigh in and not create a situation in which marriages occur that may be ruled invalid within days or weeks.

Should the Ninth Circuit refuse to grant a stay, then they are unlikely to consider any intermediate marriages to be invalid regardless of their ruling.

There is not yet any word as to whether the defendant-intervenors has standing to appeal the judge’s ruling.

UPDATE:

The order reads (PDF: 40 KB/11 pages)

Judge Walker also suggests that the supporters of Proposition 8 may not have standing to request a stay:

To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). Standing requires a showing of a concrete and particularized injury that is actual or imminent. Lujan v Defenders of Wildlife, 504 US 555, 560 (1992). If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing.

The state defendants have chosen not to appeal.

The Judge’s logic is that only the state is involved with the implementation of marriage licenses. And to prove his point he relies on the decision made in 2004 to stop the City of San Francisco from issuing marriage licenses.

In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal 4th 1055, 1080 (2004). Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages.

And if the ruling does not impact them in any way – they don’t have to issue licenses or register them or do anything they don’t want to do – then they haven’t experienced harm. And not having not “suffered an injury in fact”, they have no standing to appeal.

It appears that the earlier decision to allow the Prop 8 Supporters to intervene was based on the recognition that they had an interest in Proposition 8. But that interest may not extend to marriage law, per se. For the case to go forward, the State must appeal, or the interveners “need to show standing in the court of appeals.”

In short, being allowed to bring in your lawyers to argue the state’s case (because you think they will not do a good job) does not magically make this your case.

And this is not without precedent

The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 US at 67.

Basically the judge said: you have no standing, if you are allowed to appeal you likely won’t win, you can’t argue on the behalf of the state any more – you aren’t the state and both the Governor and AG disagree with you, you aren’t harmed in any way but staying the decision would harm both gay people and the state as a whole. But I’ll give you a week to convince the Ninth Circuit otherwise.