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Marriage Equality in Prose and Poetry (or, “The Figuring-it-out at Kitchen Tables”)

April 4th, 2010 1 comment

Let’s start with this startling video. (Really, watch it. It’s only two minutes long and will amaze you if you’ve not seen it.)

So here we have the Iowa Senate’s Democratic Leader, Mike Gronstal, saying that:

(1) The battle over marriage equality will be over soon, once his daughter’s generation takes over. Nate Silver over at fivethirtyeight.com is just the latest to make this point in his usually quantifiably impressive style. Of course, her comment that “no one cares” is just the sort of statement that equality opponents love to jump all over, to wit: “That’s the problem; we need to care about the institution of marriage.” But that’s not what I think she meant. Rather, it’s that no one thinks that allowing same-sex couples to marry will do anything to harm marriage. This perception comes, in large part, from people under a certain age having grown up with and around openly gay people. That’s new, and it’s transformative.

(2) His marriage to his wife is stronger because same-sex couples can now marry. This is a point I’ve been trying to make for some time. Marriage opponents have been asserting that allowing same-sex couples to marry will destroy the institution (over time), as it will lose its historically rooted male/female definition. But it seems likely that many fair-minded, opposite-sex couples will come to the conclusion Sen. Gronstal did: The state’s embracing of relationships between two committed adults strengthens marriage. Keeping committed same-sex couples out of marriage might in fact weaken marriage for the next generation, by showcasing the state’s willingness to discriminate on a basis that, to many of them, is unsound.

The Senator’s reference to the talk he had with his daughter brought to mind Elizabeth Alexander’s Inaugural Poem, “Praise Song for the Day,” where she offered:

“Praise song for struggle, praise song for the day.

“Praise song for every hand-lettered sign, the figuring-it-out at kitchen tables.”

It’s this kind of conversation, going on at kitchen tables all over the country, that is quickly changing the terrain in this struggle. It’s not only 30-somethings and younger that support equality; because of these conversations, people like Mike Gronstal are “figuring it out” too.

Speaking of poetry… I came across a short poem that seems especially weighty right now. In the latest New Yorker, Spencer Reese’s “The Long-Term Marriage” describes an older couple (“[t]he dash between their dates is nearly done”) engaging in the most intimate kind of caring for each other (wife rubs cream on husband’s head to chase away “squamous-cell carcinomas”); but the creams are “FedExed from their adopted son’s boyfriend’s home, a relationship that remains, to them, unknown.”

The poem draws a striking contrast between the two relationships. The older couple at the center of this evanescent universe are portrayed in loving detail, while the son (likely “adopted” to suggest, somehow, the importance of the biological link for understanding between generations)  and his “boyfriend” are left undescribed at the other end of the FedEx transmission. Despite the physical and emotional distance, the son expresses his love by sending what his parents most need, and by the quickest means possible.

Equal dignity is both furnished and taught by law. I wonder if “The Long-Term Marriage” is a poem that could be written fifty years from now, after this struggle has been won. Will there still be straight couples this unaware of their children’s most important relationships? I doubt it.

Let me close with the final lines from “Praise Song”:

“What if the mightiest word is love?

“Love beyond marital, filial, national,
love that casts a widening pool of light,
love with no need to pre-empt grievance.

“In today’s sharp sparkle, this winter air,
any thing can be made, any sentence begun.
On the brink, on the brim, on the cusp,

praise song for walking forward in that light.”

This post was originally published on April 16, 2009.

New Hampshire, Marriage Equality, and Religious Exemptions

June 4th, 2009 3 comments

Late yesterday, New Hampshire became the sixth state to extend marriage equality to same-sex couples (seventh, if you include the now-you-have-it, now-you-don’t case of California). Here‘s a good, objective story about the law. It’s noteworthy that this isn’t even front-page news; at least in the tiny enclave of New England, equality is now the norm. Wait — Did I just write “Equality is now the norm.”? Who’d a thunk, just a couple of years ago?

The new battleground, apparently, is to be the scope of religious exemptions for those opposing marriage equality. Existing constitutional, legislative, and decisional law already make clear that no church is to be forced to marry a couple whose marriage offends its tenets, so the exemptions seek to go beyond that. New Hampshire’s, in fact, was required by the governor before he’d sign it. What does it do?

The text of the amendment is here. In sum, it bestows broad privileges on religious organizations and their affiliates to refuse to have anything to do with the celebration or solemnization of marriages that violate their precepts, and grants further protections with regard to promotion of these marriages in other contexts. For example, a religious university could exclude a validly married same-sex couple from student housing otherwise offered to married couples if the beliefs of that religion so demanded.

Some say the bill doesn’t go far enough, and should have also exempted those who provide services in connection with weddings; for example, florists, caterers, and the like.  Some of these advocates would go yet further; Tom Berg, for example, would allow even state employees, such as licensing clerks, to refuse to issue a marriage license to same-sex couple as long as another clerk was available to process the application.

There are many problems and issues with the breadth of these amendments, real and proposed, and I’ve committed to a more substantial post for another blog on this issue. For now, I want to address the very limited issue of allowing government workers to refuse to participate in this process. Here’s my bottom line: This is a very bad idea.

What makes denial of marriage equality so offensive in the first place? It’s that the state, without justification, is withholding a benefit to some that it grants to others. So those employed by the state — and who therefore represent it, certainly while on the job — should have to follow the rules that apply to everyone. Otherwise, the state is continuing to send the message of inequality.

Perhaps this dramatic (and admittedly unlikely) example will make the point: Imagine that New York passes a marriage equality bill that exempts marriage license clerks who have religious objections to same-sex marriages from having to perform their otherwise required duty. Further imagine that there’s one such clerk in the Manhattan office, and that there are ten available windows at which licenses are issued. To speed things up, and to avoid unpleasantness when same-sex couples walk up to the window, the city decides to post a sign at the one window where the religious objector is working: “Opposite-sex Marriages Only.” Would doing so be OK, in the interest of convenience?

Presumably, this example would make even advocates of the exemption uncomfortable, because it calls to mind “Colored Only” water fountains, rest rooms, lunch counters — you get the idea. But by allowing the clerk to refuse his or her civic duty, the state is allowing, in a more subtle way, exactly this sort of discrimination. The clerk’s actions are the city’s actions.

Given these comments, I’ll now try to surprise you by saying that I wouldn’t oppose other actions by this office to respect this worker’s religious beliefs. One option would be reassignment to an office that issues different kinds of licenses. I can’t see a cost there to either side, but I wouldn’t require the office to try doing so. Less formally, an objector who observed a same-sex couple waiting in line, or filling out an application, might step aside before his or her presence became known, and allow another clerk to take over temporarily. This might happen in any case, with or without legislation.

It’s very hard for me to be sympathetic to these kinds of beliefs, I should confess. Yet they’re deep and sincere in many cases, and I’m not opposed to efforts to respect them. But not when it comes to those employed by the government itself; then, the discrimination must either be eliminated, or somehow circumvented. Some things, I don’t want to know.

How Full the Glass?

May 28th, 2009 No comments

As I explained in my two posts on the Prop 8 decision (analyzing the majority and dissenting opinions), I was disheartened by the court’s retreat from the principle of equality it had so eloquently championed in In Re Marriage Cases. Dale Carpenter, among others, agrees with me on at least this point.

Not everyone sees the glass so empty, though. A regular reader invited me to comment on this reaction, from one of Andrew Sullivan’s readers:

“Have been through the Prop 8 opinion and dissents. It appears that this is a blockbuster pro-gay-rights decision, restricting the effect of Prop 8 to the effect of removing the designation of gay civil unions as ‘marriage,’ but upholding all equal rights previously declared by the Court; and, suggesting that if the opponents of gay rights were to try to restrict equal union rights for gays by constitutional change, such change would be an Amendment (not a revision) and thus would be procedurally much more difficult to accomplish.

“Being able to lay claim to the word ‘marriage’ is important, but in all other respects this appears to be a spectacular decision in favor of gay rights.

“The decision leaves intact the holding of the Marriage Cases that gays have the fundamental ‘right to marry’ under the California constitution, now and in the future; but unless and until the California constitution is again amended to the contrary, such unions cannot be called marriage.

“Opponents of gay civil union rights could try another ballot initiative to expressly amend the constitution to ban such rights, but under the Court’s ruling, that proposed amendment would have to ban such rights expressly to be effective. The Court’s opinion makes clear that generally, amendments will not be interpreted to repeal constitutional rights by implication. The disfavor of repeal by implication is a longstanding legal principle, and the Court’s use of it here is a deft way of sending this issue back to the political process while upholding gay civil union rights for the foreseeable future.  Under this approach by the Court, opponents of gay civil union rights would have to word any future proposed amendments in such a way as to expressly ban gay civil union rights, and as a result, their ability to secure a sufficient number of petition signatures to get the amendment on the ballot, and then a majority of votes at the polls, will be all the more difficult.

“This is a very, very good day for the cause of gay marriage rights.”

I think the nub of our disagreement is this: I’m concerned about the constitutional implications of the court’s willingness to jettison the principle of true equality based on a simple majority vote (even though, it must be said, there is some precedential support for its holding), while this reader sees things from a practical standpoint: All of the rights are still intact, and any effort to further limit them will have to be carefully crafted. Moreover, the court will read any restrictions very strictly, and might even be unwilling to support further compromises to equality.

This reader is probably right as to most of the above. But as I’ve stated, I don’t know (nor can anyone) how far the court would be willing to go in supporting more far-reaching restrictions on the rights of the GLBT community, including revoking domestic partnership protections. Indeed, the majority expressly stated that it was not going to decide that issue. The court is doubtless hoping it won’t have to deal with a “parade of horribles,” but hope is hardly a sound principle for constitutional decision-making. In my view, the court’s actions revealed principle to be rhetoric, expendable at the first sign of trouble (read: the prospect that the justices might not be retained when they next appear on the ballot).

Now comes the federal lawsuit. More on this presently.

Analysis of Prop 8 Decision

May 26th, 2009 No comments

Here’s a good background to today’s decision on Prop 8 (Strauss v. Horton)  if you need to get up to speed before reading my layperson’s analysis of the court’s holding today.

First, the results: The court, by a 6-1 vote, has ruled that this ballot initiative was a valid exercise of the process to amend the state’s constitution. On the other hand, a unanimous court briskly disposed of the contention that Prop 8 should be read retroactively to strip those 18,000 or so already-married couples of their status.

The plaintiffs had argued that Prop 8 represented an unconstitutional revision of the constitution; unlike amendments, revisions require the legislature to first approve the measure — by a 2/3 vote — before the voters get to decide the question. So, what is the difference between an amendment and a revision?And what is the proper allocation (“separation,” in the argot) of powers between the branches of government? These were the principal points of contention on the substance of Prop 8.

The majority went on for almost 140 pages. In brief, their points — which I’ll next explore in somewhat greater depth — are these: (1) The California Constitution is easy to amend, and that’s not something we can change; (2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it; (3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution — not a more substantial revision, which would require prior submission to the legislature (and a 2/3 approval) before going to the voters; (4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and (5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction. Each point will be discussed under a separate heading.

Ease of Amending the California Constitution

The court began by situating the reader within the unusually amendable California Constitution. Comparing it to other Constitutions — especially with regard to marriage equality and the difficulty of withdrawing that right — the court characterized the petitioners’ claim thus: “[I]t is just too easy to amend the California Constitution through the initiative process.” (Pdf version of the case at page 12.) But it’s not our job to curtail the process, but “to uphold it,” said the court. In a sense, of course, this is an unfair characterization of the plea, which held that the process was not, in fact, as easy as the Prop 8 proponents were stating. Yet the court’s statement does capture some of the frustration many feel at the entire ballot initiative process in California.

Deemphasizing the Constitutional Importance of the “Marriage” Designation

The next point is worth careful parsing (get ready for the torrent of law review articles surely to follow). Was it the right to marry that was fundamental and worthy of protection in the court’s decision last year? We did call it that then, the court conceded, but that’s just a shorthand; now, it’s not the constitutional right to marry but “the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice.)” (p. 35) I guess that opposite-sex couples can still use the shorthand, though. (Some advice:  Same-sex couples, carry the preceding description of your constitutional rights with you at all times, along with your Organ Donor Card and, if applicable, your medical alert bracelet.)

By now deemphasizing the word “marriage”, the court is warring with its own decision in last year’s In Re Marriage Cases, in which the majority relentlessly hammered home the point that the word “marriage” is vital. The court couldn’t ignore that it was doing so, but note this important change from last year’s decision: “We by no means diminish or minimize the significance that the official designation of ‘marriage’ holds for both the proponents and opponents of Proposition 8.” (p. 7; emphasis added) Last year, the court was concerned about those deprived of marriage; now, they are equally solicitous of the views of those opposing equality.

It must be noted, though, that the court in several places reiterated that distinctions based on sexual orientation will continue to be “suspect,” meaning that the highest level of justification will be needed to support them. This principle was one of the signal achievements of In Re Marriage Cases, as it made California the first state to grant the highest level of scrutiny to gays and lesbians. Thus, any statute that discriminates on this basis will likely fall; the constitutional issue is different, though, because Prop 8 carves out an exception to this principle for one issue. (More on this later.)

Amendment or Revision?

This is the heavy sledding, a long discourse on the history of California’s Constitution and on the elusive distinction between “amendments” and “revisions.” I’ll keep this as brief as accuracy will allow. Revisions are substantial changes to the constitution, while amendments are less so. (How’s that for clarity?) Whether a proposed change is one or the other is for the court to decide, not the drafters of the provision. A 1978 case, Amador Valley Joint Union High School District v State Board of Equalization, 22 Cal.3d 208 explained that a change will be considered a revision if it’s quantitatively extensive (like one proposed alteration, struck down by the court in 1948, that was less-than-lovingly referred to as the “ham and eggs” initiative for its muliplicity of subjects, sections, and articles) or qualitatively dramatic. As the court said in Amador, “even a relatively simple enactment may accomplish such far reaching changes in the nature our basic governmental plan as to amount to a revision….”  (p. 223)

Now we’re at the heart of the petitioners’ case: Prop 8 was a revision because it allows, at least in principle, the wholesale deprivation of fundamental rights — and allows this to happen to a class of people that the court itself has held are most in need of protection. Even though “just” one right is at stake here, if the court allows its ability to safeguard the minority’s rights to be overborne so easily, then there’s no limit to it. The voters could remove all legal protections from gays and lesbians — or for any other group, for that matter — as long as they did it in a piecemeal fashion. Strangely, the court declines to address this argument head-on. Instead, it does two things.

First, it exhaustively trudges through a host of cases testing the amendment/revision line, finding that almost any change has been upheld as an appropriate amendment (with the significant exception of a case that tried to deprive the court of the power to interpret its own state constitution in matters of criminal procedure, purporting to require the court to go no further than the U.S. Constitution requires).  But as even Ken Starr conceded at oral argument while defending Prop 8, none of these cases involves depriving a suspect class of fundamental rights. So what about that?

This brings us to the second point. The court simply sidestepped the broader concern about the potential for a step-by-step deprivation of rights:

“Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection…., there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public and private discrimination in all areas without legal recourse…would constitute a constitutional revision….” (P. 93, italcs in original)

But doesn’t Prop 8 itself create this possibility of a broader exclusion? I don’t see how it doesn’t. At least Justice Werdegar, in her concurrence, stated that a broader legal exclusion would amount to a revision, and took the majority to task for leaving open the opposite possibility. But her concurrence is itself unprincipled, because she offers no metric by which to measure whether a given act of constitutional discrimination would be “impermissible.”

Separation of Powers and Inalienable Rights

These two arguments got the quick brush-off. There’s no separation of powers argument, the court concluded, because we retain the right to interpret the state’s constitution; including, they noted (without apparent irony) the “new” one with Prop 8! This isn’t like the criminal procedure case we’ve discussed, because that was an attempt to strip the court of power to do what we do. But that power itself has constitutional limitations, and we remain able to enforce equal protection for gays and lesbians in every other area (at least until the electorate tells us not to).

The inalienable rights argument was intriguing; the AG had argued that the most fundamental guarantees of the state’s constitution transcend that document; the promise of “liberty” so eloquently defended by the U.S. Supreme Court in Lawrence v. Texas is at the very core of these rights. And these can’t be restricted without a compelling reason, not given here. (As you’ve likely guessed, this argument wasn’t dependent on the distinction between amendment and revision.)  The court found that this argument disregarded a line of cases that involved deprivations of liberty, and relied on “old school” notions of natural law to elevate “liberty” a higher order. The court had little patience for this effort.

Retroactivity Issue 

On the procedural issue of whether Prop 8 should apply retroactively to wipe out the 18,000 marriages that had already taken place, the court was clear and dismissive. The language of the amendment made no mention of retroactivity, and that’s required in order to overcome the presumption that laws only apply prospectively. Extrinsic sources (just in case they were relevant) didn’t help this argument, either: Prop 8 proponents stated that the amendment wouldn’t take away any rights, and the explanatory ballot materials were, at best, ambiguous. Not good enough.

———–

Standing firm was Justice Moreno. I will post on his dissent separately. For now, I offer these words of inspiration to close this long post. They’re from the Iowa Supreme Court’s decision in Varnum v. Brien, and were quoted by Justice Moreno in beginning his opinion:

“The absolute equality of all persons before the law [is] the very foundation principle of our government.”

Prop 8 Decision Set for Tuesday, May 26: One More Thought

May 22nd, 2009 No comments

Well, this time it’s really happening: Next Tuesday, we’ll return from the holiday weekend to face the (probably funereal) music, as the California Supreme Court has announced the filing of its opinion in the Proposition 8 case for that date (see embedded link).

Just a couple of days ago, speculation that the opinion was about to issue caused me to issue this post. There, I suggested questions that the court would likely need to answer in deciding that the ballot initiative process had been properly used in passing Prop 8, which  purports to amend the state’s constitution to deprive same-sex couples of a right — marriage — that the court had just stated was “fundamental.”

To those thoughts, let me just add a quick supplement here. It will be interesting to see how the court handles the question of domestic partnership — the marriage equivalent without the name or the social approbation —  that remains in effect in California after Prop 8. In their decision in In Re Marriage Cases, the justices weren’t gulled by the argument that domestic partnership was “just as good” as marriage. Although there are many problems with the status, the court leveled the most telling criticism at it: If it’s just the same thing, why  go to the trouble to create it? The whole idea is to fence same-sex couples out, thereby purposefully creating a class of second-class citizens. In one sense (not a practical one), this is even worse than a complete denial of marriage benefits to same-sex couples, which at least have been supported with legal and social arguments (however weak).

Yet during the oral argument in March (I live-blogged it here), at least one Justice (Kennard) seemed to suggest that Prop 8 might be less objectionable because it doesn’t remove the rights of marriage, “just” the title. Will the court stand on that point? If so, what was all the shouting about last year?

Look for a summary here shortly after the opinion issues.

“The Paparazzi Clapped”

May 12th, 2009 No comments

My best efforts to retain a level of smug detachment from the whole Miss California/Carrie Prejean issue have been swamped by the Donald.

As  you probably know by now, Mr. Hair Sculpture co-owns the Miss Universe Organization. So the decision whether to allow Prejean to retain her shimmering tiara was left to him. Here’s what he had to say at the press conference:

There’s a lot to marvel at here. Note the logo, with Trump’s name repeated endlessly under that of the pageant corporation. Given his relentless self-promotion — not to mention his unsteady financial position these days — did we really expect him to strip her (of her crown)? After all, as he kept reminding us, “this is the 21st century.”1 Keep this in the news, with more and racier photos emerging every day, and the pageant (“a monster” hit, as he says in the video) stays in the public eye. Cashier her, and some nameless replacement steps in, relegating the pageant to the obscurity it richly deserves.

Consider this revealing statement, given by Trump in response to questions from the avuncular Larry King, on what he thought about the all-out-war on “Celebrity Apprentice” between Annie “Poker Face” Duke and Joan “Impossible Face” Rivers: “Well, I liked it very much…. Especially…when the ratings came in, because it was a ratings bonanza last night for NBC.”

If you have interest in the integrity of your enterprise, don’t let Bud Selig or Donald Trump run it. You’ll end up with steroids, or subsidized breast enhancements and the paparazzi will clap, to  Trump’s approval, demanding more redeemable fodder. (They’d clap themselves bloody for a case of steroids and breast enhancements.)

Note that the Donald defended Prejean’s right to her opinion on marriage equality (so do I), but didn’t mention whether her current advocacy for the evil National Organization for Marriage violates her contract. It does seem an unusually controversial ‘platform’ for a pageant winner. Most choose The Scourge of...[fill-in-the-blank], ensuring wide support but little real traction or interest. (Have you ever met one of these young women? Me neither.) Unless it clearly violates some contractual provision, though, I  say: Let her keep the silly crown. Did you listen to her answer to the question?  If we can’t deal with Miss California’s stream-of-babble against marriage equality, the movement is in big trouble.

Just don’t let her carry a concealed weapon in a national park.

  1. Where idiocy and vapidity rule, apparently.

Dignity: Who Has It, and Why Do We Care (or, Dignity, Schmignity?)

May 11th, 2009 No comments

How much would I care about my dignity if no else had any, either?

The question scarcely makes any sense, because dignity is valued only in relation to others, of course. It’s closely related to “esteem,” a regard in which most of us want to be held; I’d rather be the “estimable me” than not.

The matter of dignity came to mind earlier today when reading an account of yet another marriage equality update, this one at the New York City Bar late last week.  (H/t Michael Ginsborg) Towards the end of the program, Katherine Franke, a Columbia law professor, was sounding a cautionary note about the amount of time and effort devoted to the issue. One problem with this “marriage-equality-eats-through-everything” approach is that it runs the substantial risk of marking for inferior treatment other forms of family. That’s right, and as Nancy Polikoff, in particular, has eloquently argued, we need to “value all families,” however defined, and to create structures that respond to people’s real needs. (BTW, here is her analysis of what’s going on in D.C., complete with discussion of parts of related District laws that “value all families.”)

To Franke, the idea that marriage “ennobles and enriches human life” is limiting: “[T]o cloak marriage in this kind of teleological frame that all of us as adults should hope and aspire to obtain, communicates something that I think violates the movement that I joined many, many years ago.” Perhaps we can fuse Polikoff’s insights to Franke’s caution to state that marriage is just one of many ways to achieve one’s own authenticity, and that the continued trumpeting of “all marriage, all the time” risks drowning out that basic insight.

Then, though, Franke said something else that seemed to me just….wrong. She expressed a strong preference for marriage equality decisions that focus on equality, finding the focus on “dignity” that comes with fundamental rights analysis to be troubling. She cited the California and Massachusetts decisions in making her point. What she’s missing, though, is that both courts expressly connected fundamental rights and equality. This connection especially permeates In Re Marriage Cases, the California decision.

This isn’t the place to get into an extended discussion of the text, but a few passages illustrate the point. For example: “one of the core elements embodied in the state constitutional right to marry is the right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationship of other couples.” (183 P.3d at 444.)

Recall that the California Supreme Court was making its decision in a state that already had a domestic partnership law that conferred substantially the same benefits on same-sex couples as marriage does on opposite-sex couples. So, “in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.” (Id. at 445.) The court went on to remind us that this thoroughly discredited idea that “separate is equal” has been tried, and rejected, in the case of race and gender.

Perhaps Franke was simply making the point that marriage equality is just the first step in a more comprehensive assessment of legal fairness and social significance, and her point was lost in translation from panel to report. In any case, it’s worth remembering that courts can and do only address the controversy before them; in so doing, they’re right to insist that likes be treated as likes, and to fuse the related pillars of equality and basic rights.

You’ve got dignity. Where’s mine? And then, what about everyone else?

Governor Baldacci’s Journey

May 6th, 2009 No comments

Here’s how marriage equality came to Maine:

Neighboring states began to recognize marriage equality. In two cases (Massachusetts and Connecticut), the recognition followed a court order. But in the other (Vermont), the legislature, after an experiment with civil unions, engaged in a lengthy and mostly respectful debate about whether such unions fully honor the loving relationships of same-sex couples. Concluding that only full marriage equality can achieve this compassionate end, the legislators last month overrode the governor’s veto, making marriage equality reality.

John Baldacci, a reasonable, centrist governor in the hard-Yankee state of Maine reflected on all of this, and on the impassioned testimony on both sides of this emotionally charged issue. He candidly stated that the goings-on in Vermont had made him reconsider his position, and that he’d moved from “no” on the issue, to undecided — in other words, persuadable. As was true about Iowa State Senator Mike Gronstal, Baldacci showed himself to be interested and fair-minded. It turns out he’s also accessible in a way that may pull you up short.

He read all emails sent to him on both sides of the issue, including a rather nasty one in favor of marriage equality. He then picked up the phone and called the sender of that email. Instead of rising to the level of anger invited by the email, he took the pot off the stove.

Here are his remarkable comments to this constituent:

“I was extremely impressed by the arguments for both sides, but especially by the proponents.

They were very respectful- I liked that they turned their backs when they disagreed.

I was truly impressed by the people who spoke for the bill.

I was opposed to this for a long time, but people evolve, people change as time goes by.”

This isn’t abortion, or religion, or any of the many issues on which a solid majority of the electorate is unlikely to change their opinions. The Governor, and millions of practical and empathetic Americans like him, are coming to see that allowing same-sex couples to marry isn’t destructive, or scary — it’s affirming and wonderful. The rock is almost at the top of the hill.

Categories: Gay Rights, Marriage Equality Tags: , , , ,

Maine Becomes Fifth State to Recognize Marriage Equality

May 6th, 2009 No comments

The argument that marriage equality is being foisted on the people by the anti-democratic judiciary now has two “exhibits” for the other side: Maine has just joined Vermont in the sudden surge of marriage equality victories. Governor John Baldacci signed the measure just hours after it received final approval by the State Legislature. The story just came across the wire services, and I will have much more to say, soon.

Categories: Gay Rights, Marriage Equality Tags: , , , ,

Cloudy with a Chance of Meatheads

April 14th, 2009 No comments

The silly season may be upon us.

The serious arguments against marriage equality are falling fast, leaving only nonsense and fear behind. Even many  conservatives who formerly opposed equality have come around (sometimes only by recognizing that, whatever the perils of allowing same-sex marriages, they pale as threats to the institution next to divorce and the declining percentage of kids born to married couples). And the overwhelmingly supportive views of younger people are filtering up to the generations above, working through surprisingly permeable soil. It turns out that older people can and do change their views as they’re educated by the next generation, by courts, and by the lives of those around them. New York Senator Charles Schumer is a recent convert, and the Governor of Maine, John Baldacci, has gone from “no” to “hmmm…. let me think about this some more.”

So, expect increasingly desperate, and probably inadvertently humorous, tactics to forestall the march towards equality. Let’s talk about two examples. This petition was being circulated at a Town Hall meeting yesterday in Iowa. (Thanks to  Iowan Kyle Payne, who was at the meeting, for posting this and for letting me know what’s going on there.) It’s just one page, and it “argues” that, just as Abraham Lincoln defied the Supreme Court’s Dred Scott decision in issuing the Emancipation Proclamation, so too could Iowa’s Governor, Chet Culver, ignore his own supreme court and simply executively order overturning Varnum v. Brien (the decision by the unanimous Iowa Supreme Court ruling in favor of marriage equality). I suppose they believe the state’s citizens need to be “emancipated” from judicial tyranny.

In looking over the petition, it initially seemed that it was the work not of runaway citizen zealots, but of duly elected legislators: Rep. Jason Schultz and Sen. James Seymour. But Rep. Schultz e-mailed me to assure me that neither he nor anyone in his office had anything to do with it.1 This assurance was heartening, but also serves as a reminder of the perils of direct democracy on an issue this highly charged; because whoever wrote this petition didn’t bother doing any actual research, unless you include the reference to Wikipedia. 2

In fact, Lincoln had campaigned on a promise to abide by the Court’s decision in Dred Scott, much though he disagreed with it. (Norm Coleman, are you reading this?) For that reason, as well as because of his belief that he could not rely on his inherent war powers to emancipate slaves, the Emancipation Proclamation was limited to those slaves in the states in rebellion, and did not even apply to the border states: Only the insurrection gave him the power to do so, as an incident of his power as Commander in Chief. Is this really the Civil War (in caps)? It would be laughable were it not disturbing, countenancing, as it does, the deracination of the separation of powers.

Along these lines of “disturbing yet somehow funny” is the newly issued video by Maggie Gallagher’s National Organization for Marriage, which is by now viral — both in its original form and in the inevitable and sometimes revealing mash-ups and parodies. (Here are a couple of keepers.) Instead of the original, which you can find here, the following audition tape really says it all:

Note that these actors are saying exactly the same things that are uttered in the final, wrenchingly risible, version. But this audition tape, through its repetition of the awkward statements in the actual video, points to its own absurdity.

Take this example: “I am a California doctor forced to choose between my faith and my job.”

Huh? What, exactly, are these actor/not-real-doctors talking about? Honestly, I have no idea. Are they saying that they don’t want to treat gays who are legally married? But refusal to treat on that basis would run afoul of the state’s antidiscrimination law, whether there’s marriage equality or not. So what else could they be talking about? Nothing that you can identify, and that’s the point. Plant the fear, and don’t diminish it by being specific (doing so might — not incidentally — also make your statements inaccurate).

“There is a storm gathering. The clouds are dark and the winds are strong. And I am afraid.”

To paraphrase my kids’ current favorite book: It’s cloudy, all right — cloudy with a chance of meatheads.

  1. I haven’t yet heard from Sen. Seymour, but I have to believe that if Schultz didn’t draft it, neither did Seymour.
  2. Luckily for me, my colleague Bob Hayman is a rich repository of knowledge on this subject. My thanks to him for his insights and contribution.