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:
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.
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.”
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!
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.
* 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 6/1 ... oral arguments webcast]
The Supreme Judicial Court of Massachusetts finally issued its ruling on out-of-state residents marrying in Massachusetts, upholding a previously moribund statute that had been dusted off especially for same-sex marriages. [nyt 3/30; Cote-Whiteacre v. Mass. Dept. of Public Health, SJC-09436 (Mass. SJC 2006/3/30)]
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.
update: 5/19: nope, no apocalypse / heavenly wrath yet.
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
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:
11/29 update: not surprising but the Supreme Court denied a cert petition to overturn the Mass marriage ruling. [cnn 11/29]
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]