Tag Archives: gay marriage

media annoyances part 1: Adam Nagourney

Two things annoyed me in the last 24 hours. Well, two media things.

First, this morning in an article about same-sex marriage in the NYT, there was utter stupid cluelessness that led me to conclude the article must have been written by a straight person. And indeed, But then I just looked at the byline and it was by Adam Nagourney, which explains this article. Why is Adam Nagourney so bad? Anyway today he wrote in paragraph 1:

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gay marriage & Equal Protection jurisprudence

Well, I loved the California same-sex marriage decision. Not just because it granted same-sex marriage, and not just because it said that the state needs to use the same term to refer to same-sex and opposite-sex unions, but because it significantly expanded Equal Protection jurisprudence.

For the non-law-geeks out there, federal and state constitutional guarantees of “equal protection” apply only to certain protected classes (“suspect classifications”), and now homosexuality, in California, gets the highest protection. Here’s how it works. When determining whether a law or action violates equal protection, a court will determine whether (a) a fundamental right is being violated, in which case the court will apply “strict scrutiny”; or (b) what classes of people are being treated differently. If the class is race, the court applies “strict scrutiny”, as it does with violations of fundamental rights. Gender gets “intermediate” scrutiny. The lowest level of scrutiny is a “rational basis review”. If the class has not been deemed a “discrete and insular minority” that has routinely and historically suffered discrimination, then the court applies a rational basis review — a much lower standard of review. Basically, a law that discriminates a class of people is okay under rational basis review, so long as the government has any rational basis for the action. Any law that creates multiple classes is subject, by default, to this review. For instance, “taxpayers” and “non-taxpayers”.

Courts have consistently declined to apply any heightened scrutiny to laws that discriminate on the basis of sexual orientation. Instead, they have applied “rational basis review with bite” — finding that some laws that discriminated against homosexuals did not even have a rational basis. For instance, Colorado’s Amendment 2 failed rational basis review. This is nice on the one hand, because it is an affirmative slap at the law, making it plain that really nasty discrimination is irrational. On the other hand, it makes it very hard to strike down such laws, because it doesn’t recognize the “class-ness” of homosexuality — the fact that gay people are treated as a class and routinely discriminated against.

So the California decision is the first to recognize that gay people are treated as a class and routinely discriminated against. Which means that, in California, we have a lot more protection now. And even if the right-wingers who are freaking out manage to define California’s marriage laws to exclude me and Michele, that won’t undo the strict scrutiny holding.

Ha.

mostly information law news round-up

* Judge White withdrew his order requiring the shutdown of wikileaks.org. See also 3/1 bits blog. (NYT 3/1)

* The music industry has yet to pay artists any of the money it has received in settlements and lawsuits; the artists are pissed. NY Post 2/27)

* The owners of the game scrabble are pissed off at Scrabulous. (NYT 3/2)

* Daniel Solove’s new book, The Future of Reputation, is available online with a creative commons license, thanks to Yale University Press. Annoyingly it’s chapter-by-chapter. badgerbag read it and promises a scathing review, so I’m looking forward to seeing what she has to say.

* Clay Shirky’s new book, Here Comes Everybody, has a hold list at least 3-deep at the Boston Public Library. )-8

* Paul Cash, the principal of Burleson High School in Burleson, Texas, is censoring the school yearbook’s article about students who are also parents, in part because it conflicts with the school’s “abstinence-only” education program. A program that was, umm, manifestly not successful. As illustrated by the kind of head-in-the-sand attitude that seems to think that if only the principal can censor the yearbook, he can change reality, or lie to the community about it. “I believe that as principal of the school it is my obligation to make sure that whatever our students put into press accurately reflects the ideals and values of the community.” Apparently the students think that the press should reflect reality. I guess the teachers have been doing their jobs. Student Press Law Center has the scoop (2/13). (link from pharyngula, 3/2)

* Schwarzenegger’s administration is defending California’s gay marriage ban before the California Supreme Court; a ruling is due by June. There’s a certain gross irony in this: A couple of years ago, Schwarzenegger vetoed a gay marriage act passed by California’s legislature, saying that this was something that should be left to the courts. That was itself yet another proof that the so-called federalist style of conservatism is really just window-dressing outcome-based politicking as principled ideological opposition to particular forms of government. (SJ Mercury, 3/2)

* Some people in Namibia are worried that schools and libraries are getting away with too much using information, so they’re starting a new copyright enforcement body just to go after the lucrative school and library market. Watch out for the Namibian Reproduction Rights Organization (NamRRO), which isn’t enforcing any rights to reproduce that I’d like to see enforced: The rights to reproduce for fair use, the rights to reproduce or not to reproduce biologically …. The organization is being started by “Moses Moses”, whose name seems a little reproductive itself. Good idea, Moses; way to start killing creativity at the most upstream possible place. (All Africa, 2/29)

* In Illinois, reproductive rights are being upheld: A very silly law that attempts to mandate good parent-child relationships and communications, specifically requiring that pregnant minors must tell their parents if they are having an abortion, continues to be enjoined. A “pro-life” group described the decision as, “a major defeat for the people of Illinois,” apparently forgetting that teenagers are people too. (AP 3/1)

* Heather Morrison at her awesome blog “Imaginary Journal of Poetic Economics” has pointed out that plagiarists should avoid open access like the, ah, plague, since it’s so much harder to catch them without open access. Peter Suber at Open Access News gathered several of her related posts in one excellent introduction to Morrison’s concept, “aiming for obscurity”. Read it or wish you had.

* Rebecca MacKinnon reviews the latest round of lawsuits against Yahoo! by Chinese dissidents who, among other things, got screwed over by Yahoo!’s release of their information. (RConversation, 3/3)

positive about civil unions

In last night’s Democratic candidate debate about The Gays, Clinton explained that she’s not anti-gay marriage: “I prefer to think of it as being very positive about civil unions.”

As Michele (my Massachusetts spouse) said: “If she’s so positive, why doesn’t *she* get one.”

political grandstanding: SO annoying

I really can’t stand it when politicians engage in cheap & sleazy grandstanding, knowing that what they’re doing is actually irrelevant. I’m speaking of Mitt Romney’s “lawsuit” to get the Mass. courts to step in to force the Mass. legislature to vote on an anti-same-sex-marriage amendment. [nyt 11/25]

Cheap & sleazy political grandstanding may be characterized by (a) someone making a gesture that appears potentially functional, but (b) is actually known to be ineffective, and (c) is undertaken for purposes of making a point.

I have no objection to Romney just making the frickin’ point, already. He could, and should, decry the legislature for not voting on the amendment. Sure, it’s tedious, hateful, and boring, but it’s to the point.

On the other hand, filing an obviously meritless lawsuit, rather than just making speeches, wastes government resources. I honestly think Romney and his co-litigants should be sanctioned for filing frivolous litigation.

Not only is this lawsuit legally frivolous, but it’s stupid: Even if he did force a vote, he doesn’t have the votes!

Thanksgiving weekend research questions: (1) Does Massachusetts have a political question doctrine to get this thing done with quickly; and (2) what are the possible sanctions for filing frivolous litigation.

Update 10 minutes later:

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NJ SSM decision

The NJ Supreme Court is releasing its SSM decision today @ 3pm. [available at NJSC website]

Will they help us out but energize the Republicans and lead to queers being blamed if the Dems don’t take the House or Senate? or will they fuck us over leaving everyone, but us, happy?

(And if I’m writing to a general audience comprised mostly of non-queers, should I really use the pronoun “us”? I’m doing it anyway—learn to read as The Other.)

update: A winnah!

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what is rational: rationally angry about irrational decisions

NY’s Court of Appeals just handed down its no-same-sex-marriage decision, holding that denying marriage licenses on the basis of gender to same-sex partners does not violate New York’s Constitution. In my opinion, this is a big setback for equal protection and individual autonomy. We had a certain momentum going forward in terms of courts accepting the logic, and this decision slows that down. The decision is also remarkably retrograde in some of its reasoning.

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gayness

* Alas (a blog) has deemed Father’s Day “queer sex day” for very good reasons.

* Jon Stewart points out the obvious to Bill Bennett’s proffered state rationale for recognizing only male-female marriages:

Divorce doesn’t occur because 50% of marriages end in gayness.

* New York’s highest court (the confusingly named “Court of Appeals”) heard arguments in Hernandez v. Robles on Wed 5/31:

Chief Judge Judith S. Kaye said the court would have to decide the constitutional questions, ”whether we do it frontally or whether we do it in some more subversive way,” like changing language about gender.

To which Terence Kindlon, a lawyer for same-sex couples in Albany, replied, ”Subversive is one of the words I’ve liked all my life, your honor.”

[NYT 6/1oral arguments webcast]

where is the heavenly response?

on may 17th, it will have been a whole year since Mass. started providing same-sex marriage licenses, and i’m still waiting for the quick and appropriate heavenly response. maybe the very cold weather here in mass., which seems unseasonable to me, is the heavenly response? my same-sex semi-lawfully wed spouse & i will keep a close eye out tomorrow for further developments.

<smirk>

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update: 5/19: nope, no apocalypse / heavenly wrath yet.

Canada Supreme Court OKs SSM

Canada’s Supreme Court has given its official advisory opinion re: same-sex marriage, basically giving the green light to federal legislation to authorize same-sex marriage nation-wide. The Yukon Territory and six of ten provinces have already struck down opposite-sex-only marriage requirements, allowing couples to marry regardless of gender. [cite – from ping]

News | canada.com network

alabama determined to drive itself into a deep, deep hole

god what a great state i come from. on nov 2 they — unbelievable — actually retained the state constitutional language mandating segregation. now this:

MONTGOMERY, Ala. (AP) – A lawmaker seeking to ban gay marriages also wants to prohibit state money from being spent on any materials or programs that “recognize” or “promote” homosexuality.

Republican Representative Gerald Allen says, quote, “We have a culture that’s in deep trouble.”

But Representative Alvin Holmes, a Democrat, says Allen’s measure was an unconstitutional form of censorship aimed at enhancing Allen’s standing with the right-wing conservatives.

If the bill became law, public school textbooks could not present homosexuality as an alternative lifestyle, college theater groups would not be able to perform plays like the Tennessee Williams classic “Cat On A Hot Tin Roof” where homosexuality is a theme, and public school libraries could not display books that include lesbianism like Alice Walker’s “The Color Purple.”

Allen says the method of weeding out objectionable material and programs was still to be determined. His bill has been prefiled for action in the 2005 session.

— AP, 2004-11-30 Bill Would Bar State Funds Used to Foster Homosexuality

great posts on this issue:

defense of marriage

The Christian Right and the Sanctity of Marriage

As we all know, the Christian Right has now made defense of the institution of marriage, as defined as a union of a man and woman, not only its top political priority, but the very touchstone of Christian moral responsibility.

I’ve always found this rather ironic, since the Protestant Reformation, to which most Christian Right leaders continue to swear fealty, made one of its own touchstones the derogation of marriage as a purely religious, as opposed to civic, obligation. Virtually all of the leaders of the Reformation denounced the idea of marriage as a scripturally-sanctioned church sacrament, holding that baptism and the Eucharist were the only valid sacraments. Luther called marriage “a secular and outward thing,”which he did not mean as a compliment. Calvin treated marriage as a “union of pious persons,” and while he did consider marriage a “covenant,” he used the same term for virtually every significant human relationship.

More tellingly, throughout Protestant Europe, from the earliest days, one of the most common “reforms” was the liberalization of divorce laws. And even today, in America, conservative Protestants have the highest divorce rates of any faith community, or un-faith community.

My point is not to accuse today’s conservative Christians of hypocrisy, though there’s room for that; it’s that the Christian Right has made a habit of confusing secular cultural conservatism–the simple and understandable impulse to resist unsettling change–with fidelity to their own religious traditions. “Defending marriage” is far down the list of concerns, historically, of the Reformation tradition, and indeed, that tradition has done far more to loosen the bonds of matrimony, for good or for ill, and to “de-sanctify” the institution, than all the gays and lesbians who have ever lived.

NewDonkey.com 11/19 [link from mike]

same-sex marriage decisions

  • Newfoundland, Canada: lawsuit launched for same-sex marriage [365gay.com 11/5]
  • 2004-11-05: Saskatchewan legalized same-sex marriage, the 7th Canadian province to do so (British Columbia, Ontario, Quebec, Manitoba, Nova Scotia, and the Yukon Territory). Four of the plaintiff couples sought to get married in Saskatchewan and a fifth couple sought recognition of its British Columbian marriage. Oral arguments heard Wed, 11/3. [365gay.com 11/5]
  • 2004-11-04: Oral arguments before Judge Kramer, in the California Superior Court, where the City of San Francisco is challenging Prop. 22 (the “Knight” Initiative) on state Constitutional equal protection grounds. California AG Lockyer defended Prop 22 as did intervenor Alliance Defense Fund.
  • 2004-11-03: Every freakin’ anti-SSM amendment passed.
  • 2004-10-29 Friday: Germany expanded rights for same-sex couples, allowing registered DPs to adopt each other’s children. Germany retained restrictions on non-stepparent adoption. Germany also extended various marriage laws governing the dissolution of marriages to same-sex couples. [365gay.com 10/29]
  • 2004-10-27: Georgia said it won’t consider the validity of its opposite-sex-only marriage amendment until it’s been voted on. [nyt]
  • Louisiana said its recently-passed opposite-sex-only marriage amendment didn’t pass muster, because it had multiple purposes. (Amendments can have only one purpose.) Still looking for a copy of the decision …
  • 2004-Sept: Canadian provinces Manitoba and Nova Scotia ruled for same-sex marriage.
  • California Superior Court, 2004-Sept-8, ruling that California AB 205 did not violate Proposition 22. [decision posted at NCLR] Prop 22, the “Knight Initiative”, statutorily defined marrage in California as between a man and a woman. The court held that domestic partnerships are distinct from marriage.
  • California Supreme Court, 2004-Aug-12, ruling that San Francisco Mayor Gavin Newsom exceeded his authority in permitting city officials to marry same-sex couples, and holding the several thousand marriages legally void. [decision posted at NCLR]