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Vermont Follows Iowa! (But in a Very Different Way)

April 7th, 2009 2 comments

I returned from class to learn that the Vermont legislature has just overridden Governor Douglas’s veto of marriage equality legislation. 100 votes in the House were needed for the override; exactly 100 were obtained. (The Senate’s override was by an overwhelming majority.) Now, we have the first state in which marriage for gay couples has been achieved by a legislature acting without being required or pressured to do so by a court. In this post, I offer some background and a few thoughts about what this might mean.

First I have to say that I was stunned. With all attention, including my own, focused on Iowa, I didn’t realize that the governor’s veto had already taken place (the Vermont house voted on the bill just last Friday, the same day as the decision in Iowa), much less that the override votes were taking place. Nor did I realize that there was a good chance of overriding the veto: When the bill passed, it did so with only 95 votes. Somehow supporters found the five additional votes they needed.

So Vermont now becomes the fifth state to recognize marriage equality.1  But it was the first to move very substantially in that direction. In 1999, the Vermont Supreme Court decided Baker v. State, the first sort-of-successful marriage equality case. The five justices were unanimous that same-sex couples were entitled to the benefits of marriage, but stopped just short of requiring the legislature to grant them the right to marry.2 Instead, they held, the law-makers might choose to provide access to some parallel institution conferring all or substantially all of the benefits of marriage — but not the label. Thus was the civil union born.

In an earlier post, I wrote tongue-in-cheekily about the significance attached to this label, wondering whether same-sex couples might be entitled to “mariage” — with one “r” — since the word “marriage” seemed to be the problem. But from a purely political perspective, the court’s decision turned out to be brilliant: The civil union didn’t generate the kind of oppositional heat that “marriage” would have, gave straight Vermont citizens some time to settle into the truth that same-sex couples’ unions didn’t threaten theirs, and eventually led to a commission report finding that civil unions weren’t leading to the full equality that the Vermont court had hoped for.  Ten years later, marriage equality is achieved.

The significance of equality through legislative means can’t be emphasized enough. One of the most effective (though wrong) criticisms of the push for marriage equality is that it’s been achieved through the courts: “activist judges,” “fascists in robes,” and “philosopher kings” have pushed this on the public, according to the opposition. What will they say now?

Some of the most extreme complain that the legislature isn’t democratic either, conveniently overlooking the whole notion of representative democracy. Traction, this will  have none. It’s particularly unconvincing in a small state like Vermont, where the state legislators have a great deal of contact with their constituents. Here is the link to this morning’s House vote in Vermont and the few comment that preceded it. Note the respect that both sides urge; one opponent says that, even if he loses, he will, as a Justice of the Peace, respect the law and perform same-sex marriages. Here are legislators who are very respectful and close to the voters.

The California legislature twice tried to enact marriage equality, only to have the governor veto both bills. So Vermont becomes the first state to grant basic equality to gay and lesbian couples; again, without judicial compulsion of any kind. What might it mean? I’m hesitant to say too much so soon, but let me try this: The Vermont move could well energize other somewhat progressive state legislatures to follow suit: the other New England states (especially New Hampshire and Maine); New Jersey; and New York are the likeliest. Once that happens, I think the push for marriage equality in California becomes even stronger; Prop 8 could be repealed as soon as next year, even if, as expected, the California Supreme Court allows it to stand.

And apres California, le deluge.

  1. I’m including California among the five, because equality was recognized for a time. It’s currently on hold pending the Supreme Court’s decision on Prop 8.
  2. One justice wrote that the couples were entitled to full marriage equality.

More on Prop 8: Quixotic Fundamental Rights

March 5th, 2009 No comments

Breaking my vow to blog only once a day, I can’t resist adding a few comments to my earlier, live-blogging post.First, calling something a “fundamental right” is essentially meaningless if it can be taken away by simple majority rule. Justice George’s opinion for the majority in last May’s In re Marriage Cases ruling contained lofty pronouncements about the right of all people to marry someone of their choosing, and about the clear message in the legislative approach of granting the rights of marriage while withholding the label. If I’m right in my prediction about Justice George’s vote based on his questioning at oral argument, he’s willing to let the people abrogate these rights by a simple majority vote, blaming it on the constitutional initiative process.

(“Riddle me this, Batman: When is a fundamental right not worth a sou?” “When it’s established by the California Supreme Court.”)

The second point is closely related: The process for amending the constitution in California, and indeed the entire direct democracy idea, is just plain loony. I know I’ll regret saying this when Prop 8 is reversed, as I predict will happen within a few years, at most. But even when that happens, one doesn’t need to restrict oneself to Prop 8 to find myriad reasons for questioning this whole process. I looked at the raft of propositions on last November’s ballot and was struck by their range and complexity. Are the voters really equipped to vote a simple “up or down” on a complex statute? Legislators, fed by committees and countless experts, are barely competent to engage in this high degree of difficulty  exercise. Leave the amateurs out of it, please.

Tomorrow I will have final thoughts on today’s arguments and where the movement goes, in California and elsewhere, from here. And although I  typically have no idea what I’m going to blog about in the future, I can state with assurance that next week’s blogs will be rife with withering analysis and condemnation of (some of the) anti-marriage-equality forces, whose sanctimonious dissembling I can no longer bear. First up will be Maggie Gallagher, whom no reasonably intelligent person should take seriously. (As a start, go to Andrew Sullivan‘s blog where he summarizes some of the reaction to today’s Prop 8 arguments, including hers.)         

Three Acts on Prop 8: I

March 4th, 2009 No comments

In advance of tomorrow’s argument on Prop 8, I offer this cautionary tale. My plan for tomorrow is to “blog live” as the oral argument unfolds, at 9 am PST (noon EST).  

News Item from California, November 5, 2008: “Yesterday, the voters of California approved Proposition 8, a measure that takes away the rights of gays and lesbians to marry someone of their own sex, a right that they had enjoyed since May of this year. Ron Prentice, Chairman of ProtectMarriage.com, which supported Prop 8, had this to say in celebration: “This is a great day for marriage. The people of California stood up for traditional marriage and reclaimed this great institution…. Proposition 8…doesn’t discriminate or take rights away from anyone….'”

Reader: Amen to that! “Gay marriage” isn’t even marriage..   

WordInEdgewise: So the voters could have done the same thing to interracial couples and it would have been OK under the California constitution?

Reader: It’s not the same thing. The right to marry is fundamental but it only applies to opposite-sex couples.

WordInEdgewise: Really? Consider this: The California Supreme Court has held that the fundamental right to marry is meaningless if one can’t marry the person of one’s choice. It further stated that denying gays and lesbians this fundamental right violates their right to equal protection of the laws. Finally, the court stated that any law discriminating against gays and lesbians has to be subjected to the same scrutiny as laws that discriminated on the basis of race or of gender.

Reader: Well, if anything it’s a “new” fundamental right. Prop 8 doesn’t affect any other rights.

WordInEdgewise: OK, then consider whether this would be permissible:

News Item from California, 2010:“In a vote that was not as close as had been expected, the California voters once again surprised the bloggers and bloviators by easily passing a ballot measure that amended the state’s constitution to remove the rights of free speech for gays, lesbians, and bisexuals. Maggie Eddings Bryant, spokeswoman for ‘Yes on Prop 4’ celebrated the voters’ wisdom: “Speech has limits, as the voters have demonstrated. And we don’t allow pornography, fraud, or lots of other kinds of speech. Too often, ‘gay speech’ is nothing more than incitement. We need to protect the institution of speech, so that children – who are somehow forgotten in all of this – learn the right lessons about its importance. And remember that we don’t necessarily know who is gay in these metrosexual times, so there isn’t a problem as long as people don’t identify as gay. ‘Don’t ask, don’t tell’ – it isn’t just for the military any more.’”

Reader: “That’s just nutty! A fundamental right is a fundamental right, no matter who’s being singled out.”

WordInEdgewise: “Really? Can’t we say this is just a limited exception, too? And if it is, consider this:

News Item from California, 2012: “In a closely contested vote, the California voters shocked the pollsters and pundits by approving a ballot measure that amended the state’s constitution to remove the right of free speech for all men. Ernestine Bledsoe, spokeswoman for ‘Yes on Prop 1’, celebrated the decision: ‘For too long, the institution of Free Speech has been under assault from a minority promoting their own agenda of coarse speech. We needed to protect the institution of speech for future generations.’“’The No on 1’ forces were furious. Several thousand of them – mostly but not all men – marched in front of the headquarters of organizations that supported the measure. (The men were promptly arrested for exercising the right to free speech they no longer enjoyed.) Bledsoe was outraged by the protest: ‘We are at a dangerous time, when law-abiding citizens feel threatened and intimated for exercising their most precious right – to express themselves at the ballot box. What is happening to our democracy and for the basic notion of respect for opposing points of view?'”

Reader: “That’s crazy! You can’t take away a basic right that way. No court would ever put up with that.”

WordInEdgewise: “I guess it depends on whose ox is being gored.”

Stop.

February 20th, 2009 No comments

“Stop.”

This was the simple but powerful reaction of an old friend when I described the effort to overthrow California’s guarantee of marriage equality through Proposition 8.

After almost twenty years, Annie and I saw each other this past summer at the funeral service of one of the fathers of a group of childhood friends, an assortment of families brought together by competitive swimming but soon to be as closely knit as cousins.  We were sitting at a large round table with my sister and a few of her (many) siblings, sharing a few drinks and catching up.

Like many busy people not directly affected by the marriage equality movement, Annie hadn’t really kept up on what was going on. But she was surprised and appalled at the effort to take away a right that people were already (and finally!) able to enjoy. Her monosyllabic response was eventually articulated more fully, and in just the way I had taken the original reaction: Is it really so important to devote all of this time, and all of these resources, into stopping this movement? People just want to be treated with dignity. Can’t you just leave it alone, at long last?

I was reminded of this conversation after writing yesterday’s post, in which I criticized Kris Mineau of the Massachusetts Family Institute for his nasty remarks directed at the soon-to-be-divorced Goodridges. (Earlier, if this website is accurate, he had called for civility in the way that “both sides need to conduct themselves.” That didn’t last long.) He was unable to resist mentioning the “pain” that the Goodridges had caused through their efforts to gain simple equality.

I’m sorry, but to paraphrase Carly Simon (and to date myself hopelessly), I haven’t got time for that pain. Here’s the pain that Annie and many others see, even if they’re not focusing on it as relentlessly as some of us do: the pain of not being able to describe your life to fellow soldiers, and of needing to hide your relationship from them; the pain of not being able to sponsor your spouse (in all but name) into the country; the economic pain that results from the denial of benefits that married couples take for granted; the pain of not being able to see your loved one in a hospital, or not without needless extra drama; the pain of having your intimate life together negated during life (no claim for loss of consortium) and after death (denial of death benefits, inability to take under the laws of intestacy, lack of standing to sue in wrongful death); the pain of families denied the legal vocabulary of family; and, worst, the pain and humiliation of subordination and second-class citizenship.

Even after all this time, I continue to be amazed that this pain — real, quantifiable, and constant — is ignored, especially by many of those who argue from a religious perspective. If they might not be expected to support us, are there no other causes more worthy of their time and attention? How might the human condition have been improved by now if the energy devoted to the King Canute-like effort to hold back the tide of marriage equality had been dedicated to the amelioration of local, national, and global ills?

Stop.  

    

Golden State Vortex

February 10th, 2009 No comments

“As goes California, so goes the nation.”

I don’t know whether anyone has stated the proposition in such cliched language, but it reflects a view many share. Whether on environmental issues, the post-racial society, or the healthy lifestyle, California often spits out trends that later come to be more generally accepted.

But what if an issue gets stuck in a Golden State Vortex, and isn’t resolved and spit out? What meaning for the rest of us, then? That’s just where we are on marriage equality in California today.

Only the most dedicated partisans on the issue have any hope of keeping up with the swirl of news relating to the marriage struggle. Perhaps doing so requires the kind of skills usually associated with following the plot developments on “Lost.”

Here’s a brief recap to ground some observations that follow. Get your scorecard ready.

In 2000, California voters approved Proposition 22, which statutorily defined marriage as the union of one man and one woman. In 2004, San Francisco mayor Gavin Newsom began performing same-sex marriages; he was soon ordered to stop by the California Supreme Court. The California legislature several times expanded the rights of domestic partners until they approached those of married couples, and twice passed marriage equality bills. Both of these were vetoed by Gov. Schwarzenegger, who opined that the court should resolve the issue; he turns out to have been correct, as the California Supreme Court held that Proposition 22 barred marriage equality legislation.

In May, 2008, the California Supreme Court held that marriage equality was required by the state’s constitutional guarantees of fundamental rights and equal protection, and directed the state to begin granting marriage licenses to same-sex couples, forthwith. In June, 2008, the first of these licenses were issued. At the same time, though, the anti-marriage forces had succeeded in placing Proposition 8 on the November 4 ballot. Prop 8 purports to amend the state’s constitution by removing marriage equality from the otherwise unqualified guarantee of  fundamental rights and equality: “Only marriage between a man and a woman is valid or recognized in California.”

In a highly bitter and contentious campaign occasionally redolent of “eau de Jerry Springer,” over $80 million was spent on Prop 8, divided roughly equally between the two camps. Prop 8 passed, 52% to 48%. Nationwide protests followed, as did litigation seeking to throw out Prop 8 as improperly passed through the initiative process. (I discuss the legal issues involved in that litigation in more detail here; search archive for 12/2/08.) The California Supreme Court has taken up the case; it will hear oral arguments next month (March 5) and must, under California law, render a decision within 90 days of that argument. At the same time, Equality California and other groups are following a multi-pronged approach to achieving marriage equality: supporting the litigation challenging Prop 8; organizing to place repeal of Prop 8 on the ballot for 2010; educating fellow citizens about the real human costs of marriage exclusion; and organizing peaceful protests.

To say the future of marriage equality in California is uncertain is to state the painfully obvious. So what can be drawn, if anything, from this confusion? Is the California experience in any way instructive, given its uniqueness? (For one thing, the state’s ballot initiative process complicates things greatly. Not (just) because of Prop 8, I’ve come to be convinced that the process is just nutty. Just look at the kinds of things the voters are asked to vote up or down.)

Here are just a few observations about lessons from California:

(1) Even in a progressive state, marriage equality is a tough sell. I was frankly amazed that the voters would vote to undo what the California Supreme Court said was a fundamental right.

(2) Most of the problem concerns the word “marriage” itself. Domestic partnerships conveying the same rights are greeted by Californians, and indeed by a national majority, with a “ho hum.”

(3) Taking the “gay and lesbian” out of marriage equality is a doomed strategy. The campaign in opposition to Prop 8 relied mostly on straight people (the quasi-sainted Diane Feinstein, the parents of a gay daughter) to opine gauzily on the ills of discrimination. Here is a more visceral and effective approach, precisely because of its amateur construction:

httpv://www.youtube.com/watch?v=u67v7wParas&feature=related

(4) California is playing out, at relative warp speed, a debate that will proceed more slowly as it moves across the country in the ensuing generation or sue. After that, given the support for marriage equality by younger voters, the issue will disappear. One day the struggle for marriage equality will be just after the fight for interracial marriages in history books.

As I make these observations, it seems to me they’re all of the “d-uh” variety; many have been made by others. California, can you please spit equality out a bit faster so the rest of us can follow? With Priuses all over the road, we’re ready for the next Big Thing.