Box Turtle Bulletin

The Trend Toward Acceptance

Prompted by yesterday’s CNN Poll, Nate Silver looked at public polls since 1988, and believes we are experiencing an accelerated trend toward broad acceptance of same-sex marriage:

One caveat is that LOESS regression tends to be fairly sensitive on the endpoints, and so yesterday’s CNN survey, which showed the pro-gay marriage position leading 50.5-48.5, makes a fair amount of difference. But even if we ignored that survey, support for gay marriage would instead be in the range of 45-46 percent (and opposition between 51-52 percent): that would reflect acceleration in the rate of support for gay marriage, about a 4-point gain over the past 16 months, faster than the long-term rate of increase, which has been between 1 and 1.5 points per year.

CNN Poll: half of Americans think Constitution requires marriage equality

Anti-gays like the National Organization for Marriage like to claim that Judge Walker thwarted the will of the vast majority of Americans by finding Proposition 8 to be in violation of the Constitution. Not so, according to a new poll from CNN:

37. Do you think gays and lesbians have a constitutional right to get married and have their marriage
recognized by law as valid?

Yes 49%
No 51%

37A. Do you think gays and lesbians should have a constitutional right to get married and have their
marriage recognized by law as valid?

Yes 52%
No 46%
No opinion 2%

Each question was asked of half their sample. The sampling error on these questions is +/- 4.5%

Costa Rica anti-marriage initiative declared unconstitutional

The Catholic Church in Costa Rica, though a political organization they sponsor, had collected enough signatures to put a proposition on the ballot to ban recognition of same-sex couples. The supreme court of that country has now declared that proposition unconstitutional. (Nacion)

The Constitutional Court was brought down on the referendum on the draft law on same-sex, which was scheduled for December.

By a majority of five votes, the Constitutional Court upheld the protections that have accrued against the decision of the Supreme Electoral Tribunal (TSE) of collecting signatures to organize such a referendum.

And why?

On the merits, the majority considered that the rights of minorities that arise from anti-majoritarian claims can not be subjected to a referendum process that is all about majority.

This does not mean that the court ruled for marriage equality. Indeed, in 2006 the court ruled that there was no constitutional right to same-sex marriage. However, the legislature is considering civil unions, and this clears their way to do so unencumbered by a reversing referendum.

Marriage equality comes to all of Mexico

According to the AP, all of Mexico is now subject to the New York State approach to marriage equality:

Mexico’s Supreme Court ruled Tuesday that all 31 states must recognize same-sex marriages performed in the capital, though its decision does not force those states to begin marrying gay couples in their territory.

In a 9-2 decision, the tribunal cited an article of the constitution requiring states to recognize legal contracts drawn up elsewhere.

American Bar Association endorses marriage equality

Today the American Bar Association, the nation’s leading legal organization, voted at their annual meeting to endorse marriage equality. (SF Sentinel)

RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.

Predictably, the Alliance Defense Fund chimed in with a declaration that the voice of the legal profession doesn’t speak for them. (Christian Post)

“The fact that ADF and other lawyers disagree with ABA on a number of controversial issues demonstrates the gross inaccuracy of ABA’s claim that it speaks for the U.S. legal profession,” remarked ADF Senior Legal Counsel Doug Napier, who resigned from the ABA because of its stance on controversial political issues.

Fox’s Margaret Hoover on Prop 8 Decision

One of the more interesting observations about Judge Walker’s decision overturning Proposition 8 is that outside of the Anti-Gay Industry, there has been very little objection from the Republican camp. (Seattle PI)

The Republican Party in 2004 used votes on gay and lesbian marriage in more than 20 states as a “wedge” issue to rouse the party faithful and turn out votes that reelected President Bush.

By contrast, GOP leaders appear to be following the maxim “Silence is Golden!” in reacting to a federal judge’s ruling against California’s Prop. 8, which banned same-sex marriage in America’s largest state.

Some radio and television commentators gave the decision some attention for a day, but political candidates, party officials, and pretty much everyone else appears to be hesitant to come out too strongly.

This is a reaction based, I believe, in a dawning recognition that anti-gay activism is a long-term losing strategy and may actually be harmful in the short term as well. As we can see from the phenomenally unsuccessful tour of the anti-gay National Organization for Marriage, there just is no public appetite for anti-gay rhetoric. And as recent public announcements have made clear, not only are the youth polling significantly pro-gay but also many Republican women have abandoned anti-gay positions.

One conservative who has not only left anti-gay rhetoric behind but has become an advocate for marriage equality is Fox commentator Margaret Hoover. She has now penned a commentary advising her fellow conservatives to think carefully about what accusations they fling about.

We conservatives have a well-founded narrative about judges and the courts. It is true that the federal bench is populated with liberals who view their role not as interpreting the law as it is written, but as policy makers empowered to sculpt social outcomes with which they agree.

The irony of this case is that Judge Walker is not a liberal activist judge but one whose career has proven him to be a tempered judge, true to the Reagan-Bush conservative jurisprudence that he was nominated to represent on the bench.

And she warns of the perils of putting anti-gay animus ahead of sound judicial reasoning.

The potential consequence that conservatives land on the wrong side of civil rights history again is the alienation of an entire generation of voters. With polling definitively indicating that Americans under age 30 overwhelmingly favor gay rights, with a majority supporting gay marriage according to the Pew Millennial Attitudes report published in February this year, there are multiple reasons for conservatives to think carefully before digging in their heels against gay marriage.

What Marriage Is All About

A one minute instructional video for opponents of marriage equality:

[Hat tip: Autumn Sandeen]

California politicians weigh in on Prop 8 ruling

Unsurprisingly, the Democratic and Republican responses to Judge Walker’s rulings were different.

In the Senatorial race, Democratic incumbent Barbara Boxer released the following statement:

This historic decision is a step forward in the march toward equal rights and reflects a growing legal consensus that marriage equality is protected by the U.S. Constitution.

Carly Fiorina, the Republican nominee, is quoted by AP as disapproving of the decision.

Republican U.S. Senate candidate Carly Fiorina says she disagrees with a federal judge’s decision overturning California’s gay-marriage ban.

Fiorina says California voters spoke clearly against same-sex unions when a majority approved Proposition 8 in 2008.

In the gubernatorial race, Jerry Brown – who at Attorney General refused to defend the proposition – released the following statement:

In striking down Proposition 8, Judge Walker came to the same conclusion I did when I declined to defend it: Proposition 8 violates the equal protection guarantee of the Fourteenth Amendment of the United States Constitution by taking away the right of same-sex couples to marry, without a sufficient governmental interest.

Republican Meg Whitman’s campaing, on the other hand, released the following statement:

Meg supported Proposition 8 and believes marriage is between a man and a woman. Meg also strongly supports California’s civil union laws. Today’s ruling is the first step in a process that will continue.

Hunh? A process that will continue?

So everyone has now made their statements. But with California voters so evenly split over marriage and not one breathing fire over the decision, I think it extremely unlikely that Whitman – or even Fiorona – will make gay marriage an issue in their campaigns.

Mexico City’s marriage equality law is legal

When Mexico City changed their law so as to allow same-sex couples to marry, anti-gay activists sued. They wanted the nation’s supreme court to find it unconstitutional to provide equality. The court has now ruled (CBS):

The Mexican Supreme Court has upheld the constitutionality of gay marriages in Mexico City. Gay marriages have been legal in Mexico City since March, but have drawn opposition from the Catholic Church and the Mexican government.

The 8-2 vote not only upheld gay marriage in Mexico City, it also said the law was valid to allow homosexuals to possibly adopt children.

They found that while the Constitution does protect the family, it doesn’t define “family”.

Proposition 8 found unconstitutional

The word has just come in on Perry v. Schwarzenegger. Judge Walker Vaughn has found that Proposition 8, the constitutional amendment that banned same-sex marriage in California, is in violation of the US Constitution.

I’ll provide more information once I review the ruling, but meanwhile, go to Rex Wockner’s site to find where to celebrate. There are rallies planned throughout California and in several other states.

Ted Olson and David Boies will be holding a livestream press conference here.

UPDATE: It appears (to me) that there will be no hold placed on the ruling by Judge Vaughn.

UPDATE TWO: Items of interest:

Testimony:

From the judge’s summary of their deposition, the supporters of Prop 8 didn’t call their witnesses because their testimony would only bolster our side.

The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.
…
Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable.

Findings of Fact:

Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.
…
California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.

Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.

a biggie:

Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertions that sexual orientation cannot be defined is contrary to the weight of evidence.

another biggie:

Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

and he gets it:

Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

The finding that conservative Christians will latch onto in demonizing Vaughn:

Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

and the core of the case:

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriages may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

Remember “I heard that a prince could marry a prince and I can marry a princess”?

UPDATE THREE: The conclusions, and they are BIG

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny.

But Proposition lacks even a legitimate – much less compelling – reason and cannot even withstand rational basis review. In other words, orientation deserves the same level of protection as race, but Proposition 8 would not hold up under any level of inspection.

Thus Proposition 8 fails under the Due Process constitutional provisions.

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legislative state interest.

Thus Proposition 8 also fails under the Equal Protection constitutional provisions.

CONCLUSION:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligations to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

UPDATE FOUR:

Judge Vaughn has stayed his decision until August 6 at which time he will consider arguments to determine whether he should put a stay on the case until it reaches appeal before the 9th Circuit appeals court.

UPDATE FIVE:

You can read the full decision here.

Prop 8 Rallies Planned

As Timothy mentioned yesterday afternoon, we received word that a decision in Perry v. Schwarzenegger is expected this afternoon between 1:00 and 3:00 pm (PDT). Already, Prop 8 supporters have already filed a request for stay of judgment pending appeal, in case Judge Walker strikes down Prop 8. If granted, this would prevent any marriages taking until the Court of Appeals hears the case.

Meanwhile, a large number of rallies are planned in California and across the U.S., forty so far and counting. Rex Wockner is keeping up to date with the latest additions.

Same-Sex Marriage and Loving v. Virginia

Ta-Nehisi Coates provides some cultural context to Loving v. Virginia, the 1967 Supreme Court ruling striking down state anti-miscegenation laws. (He offers a surprising rationale for why some Blacks thought the law should be kept intact.) And while noting that some (and he emphasises some) African-Americans oppose linking gay rights to civil rights, he finds the link compelling and then some:

[T]he comparison with interracial marriage actually understates the evil of reserving marriage rights for certain classes of people. Banning interracial marriage meant that most black people could not marry outside of their race. This was morally indefensible, but very different than a total exclusion of gays from the institution of marriage. Throughout much of America, gays are effectively banned from marrying, not simply certain types of people, but any another compatible partner period. …

A more compelling analogy would be a law barring blacks, not from marrying other whites, but effectively from marrying anyone at all. In fact we have just such an analogy. In the antebellum South, the marriages of the vast majority of African-Americans, much like gays today, held no legal standing. Slavery is obviously, itself, a problem–but abolitionists often, and accurately, noted that among its most heinous features was its utter disrespect for the families of the enslaved. Likewise, systemic homophobia is, itself, a problem–but among its most heinous features is its utter disrespect for the families formed by gays and lesbians.

Chilean parliamentarian to propose marriage equality law

From Reuters:

The head of Chile’s Socialist party, Fulvio Rossi, told reporters on Sunday that he planned to sponsor a bill to legalize gay marriage in the country, as occurred last month in neighboring Argentina.

The bill does not have the support of the President and the Church will put up a fight. However, this step may put pressure on the legislature to pass a civil unions bill.

Gay couples sue Hawaii for rights

In 1993, the Supreme Court of Hawaii found that it was discriminatory to deny marriage licenses to same-sex couples. This set off a wave of “defense of marriage acts” which limited marriage to opposite sex couples in 60% of the states.

However, Hawaii was the first to amend its constitution in 1998, and their approach was different from those which would follow. It did not ban same-sex marriage or any benefits. Rather, it simply said

The legislature shall have the power to reserve marriage to opposite-sex couples.

And the state legislature promptly did so. But as a token effort to pretend that it was not discriminating, it created something called reciprocal beneficial registration.

This unique system would allow any two adults, be they a couple, a parent and child, bowling buddies, or anyone else, to mail a form to the Department of Health and thereby become a beneficiary of the other. Benefits are very limited and include rights, workers compensation, the right to sue for wrongful death, health insurance and pension benefits for state employees, hospital visitation, and healthcare decisionmaking.

These are not in any way equivalent to marriage. And, indeed, they seem to have been crafted specifically to deny state recognition to couples. While there are a few pass-through benefits, there are no mutual obligations of support or protection.

So this week six same-sex couples sued the state for equivalent rights. (AP)

Six gay couples in Hawaii are filing a lawsuit Thursday asking for the same rights as married couples, three weeks after Gov. Linda Lingle vetoed a same-sex civil unions measure.

The lawsuit doesn’t seek the titles of “marriage” or “civil unions” for gay partners. Instead, it requests that the court system extend them the benefits and responsibilities of marriage based on the Hawaii Constitution’s prohibition against sex discrimination.

Should Neil Abercrombie win the Democratic Primary for Hawaii Governor, he is expected to win the general election. Then the legislature will probably pass civil unions in 2011 and Abercrombie will sign such a bill. At that time the lawsuit would be dropped.

However, if Abercrombie does not win the primary, the case will probably continue to the state supreme court. His opponent Mufi Hannemann has said that he would veto such a bill, as would the Repulican nominees.

Two of the five Supreme Court Justices were part of the court when Baehr v. Lewin, the case that determined Hawaii to be in violation of its constition, was decided; both sided with equality. One justice was appointed by a Democrat, and two were appointed by Governor Lingle – who just vetoed civil unions – though only one of them is a Republican.

Argentinans begin to marry

Marriage equality has begun in Argentina (Star-Telegram)

After a 27-year courtship, two men on Friday became the first gay couple to wed under Argentina’s historic same-sex marriage law – the first of its kind for a Latin American nation.

Jose Luis Navarro, 54, and Miguel Angel Calefato, 65, tied the knot in provincial Santiago del Estero in an early morning ceremony where a civil registry official used a pen to cross out “man and woman” on the marriage license and wrote in “contracting parties.”

Their honeymoon is being provided by the Mexico City tourism agency. (Mexico City is the only other locality in Latin America to provide marriage equality.)