RECOGNIZING MARRIAGE IN NEW JERSEY
Not much new, except they are most visibly aggrieved, concerned about themselves, this time around, than they were last time.
Showing posts with label Gay Marriage. Show all posts
Showing posts with label Gay Marriage. Show all posts
Thursday, January 26, 2012
Latest, from the Most Reverend (and sinner) the Archbishop
Sunday, July 24, 2011
Amidst Gloom and Doom, Gays Bring Moments of Pure Joy
So, the kissing couples tied the knot legally in the Empire State, today, even as clouds gathered in Washington and the world was reeling from Norway's savage attack.
"... you better hold on tight ..."
Wednesday, June 29, 2011
Not Everyone Misunderstands Robert P. George
One doesn't have to worry about his lament that "intellectuals" give short shrift to his philosophy.
Here, in three points or so:
1. Andrew Koppleman put it best (paraphrase): on inspection, people can see that gays can and do coordinate with each other toward a fundamental human good. (This is what makes rejections of George and his travellers' conclusions so easy for so many, not just that they don't understand his purported sophistication, aims, or good intent).
2. The moral truth of marriage, even as George grounds it ('a community of adults coming together in a special way'), need not logically be grounded exclusively in hetero-sex. (I have come up with a new way to illustrate this, succinctly.)
3. The effort to locate "gay" as nothing more than a step in the long process of "sexual liberation" is a conceptual non-starter. No matter whether or when any particular society is "liberal" or "conservative", the question of gay abides, including marriage, because of the fundamental character of gay attraction. This is one reason why his Harvard journal article will not interest "intellectuals", except as an illustration of his ability to do apologetics, not analysis. (Recall the joke about the New Natural Lawyer who only brought a liberal consequentialists with him to a dialectical drinking party).
4. His own ideology has blocked him to the idea that parents of gays do not have to be "liberationists" and can, in fact, teach what we might otherwise think of as "conservative" sexual norms. His idea that parents of gays would have no reason/justification to counsel anything but promiscuity and hedonistic abandon is laughable on face.
Sullivan's reply/notice is brief and political.
Sullivan's reply/notice is brief and political.
Friday, June 24, 2011
EXCELSIOR!
The Empire State takes the lead.
First ever Republican controlled, elected body to vote to allow committed, loving, gay couples to marry. A Catholic state governor will sign the bill into law.
June 24, 2011, 10:30 p.m.
Monday, May 23, 2011
GOP-Tea Politics: Brain Drain America - No Quarter to Fulbright Scholar!
Read the story. You probably can guess the basic storyline ...
Another American discovering that worker-friendly and gay-friendly nations DO exist, and they are outside the ambit of GOP-Tea politics (or even Democratic politics, in many instances):
Friday, May 20, 2011
The 'Appeal to Prejudice': NOM Exposed
A LYING TONGUE
For groups like NOM, voter initiatives aren’t about democracy; They’re about spending millions of dollars lying to the public and scaring on-the-fence voters into opposing LGBT equality.
background
Thursday, May 19, 2011
Just the facts
NOM'S CAMPAIGN OF FEAR, LIES, AND INTIMIDATION
GLAD, often the purveyors of some of the most detailed advocacy, have issued a well compiled rebuttal to the DOMA testimony recently allowed to be propagated on the Hill by the new GOP-Tea chairman of the House judiciary committee.
Of special note is their documented section on what the facts are in the case of Catholic Charities in Massachusetts and adoption.
All of it here.
Thursday, February 10, 2011
Chrysovalantis Kefalas
Bringing it down in Maryland, a la Grecque ...
[Republican] Governor Ehrlich stated clearly his opposition to civil marriage freedom during his campaign for governor, and I do not purport to speak for him here. While I respect and agree with him on so many issues and respect the religious convictions of those opposed to same-sex marriage, as a conservative Republican, I believe history, law, reason, and experience will discredit opposition to civil marriage freedom. The United States Supreme Court has repeatedly held that marriage is one of the most fundamental civil rights that we have as Americans under our Constitution.....
Governor Ehrlich stated clearly his opposition to civil marriage freedom during his campaign for governor, and I do not purport to speak for him here. While I respect and agree with him on so many issues and respect the religious convictions of those opposed to same-sex marriage, as a conservative Republican, I believe history, law, reason, and experience will discredit opposition to civil marriage freedom. The United States Supreme Court has repeatedly held that marriage is one of the most fundamental civil rights that we have as Americans under our Constitution.
...
It is very difficult to express to you how hard it was coming to terms with who I am. Striving to succeed in business and professionally and be the best son, brother, grandson, godchild, nephew, cousin, and friend for so long enabled me to shield a side of me I wanted to ignore, to fight off, and to deny. Working endlessly on entrepreneurial activities in high school and college (for example, founding a weekly sports magazine once featured alongside ESPN.com in USA Today’s Baseball Weekly as one of the premier fantasy baseball websites in America), total commitment to my educational and professional pursuits, and filling my schedule entirely with family or work moments allowed me to go longer than many in denying this part of me. I did not need to date because I had work. I did not need to date because I had family commitments I wanted to keep. And, putting self-realization aside was necessary to protect my family and me from the stigma, stereotypes, and consequences of giving in to something triggered within me.
...
For me, not being able to experience the traditional Greek-American dream, or my take on it, felt for so long like a life lost.
As a result of all these concerns, I thought of and seriously came close to ending my life, with the medications to overdose with and die.
...
First, it is anti-conservative and antithetical to the principles of individual liberty and personal freedom to force government to stop me from partaking in a civil right essential to my place in the community. Second, this is decidedly a state issue, not a religious one. Marriage, under state law, is after all a civil bond, to provide a privilege and respected status, entitled to the state’s support and benefits. Moreover, under this proposed bill, religious institutions and groups can choose to endorse same-sex marriage or not as they see fit. Third, there is nothing more conservative than supporting freedom and there is nothing less conservative than forbidding the creation of families.
...
Despite fierce Democratic opposition, Republicans passed constitutional amendments banning slavery, extending the Bill of Rights to the states, guaranteeing equal protection of the laws and due process to all citizens, and extending the right to vote to persons of all races and backgrounds. Republicans in Congress enacted the first-ever Civil Rights Act, which extended citizenship and equal rights to people of all races, all colors, and all creeds. In 1875, Republicans led the expansion of these protections to give all citizens the right to access public accommodations. Republicans initially led the fight for women’s rights. And, it was a Republican justice, John Marshall Harlan, who in 1896 declared that our Constitution recognizes “no superior, dominant class of citizens . . . In respect of civil rights all citizens are equal before the law.”
Monday, December 6, 2010
Today's Headlines from Prop8 Hearing
There is going to be so much written on this, by those better than I, I'll just offer my take:
Part-1
"Alliance Defense Fund failed to enjoin California AG, Sinks Suit on Appeal"
Part-2
"Olson to Appellate Court: Prop8 fails constitutional challenge on any and all standards for review."
"Strategery" of Court Procedure
For the record: Scotusblog on LGBT Movement Lawyers
Sunday, December 5, 2010
Prop 8 This Week - Finale or Allegro ma no troppo?
All below the cut. Long and academic-ish.
Looking at the amicus curiae of the Robbie P. George brain trust in prep for this week’s oral contest on marriage for gays in California, one observes they continue to hold the view of rival goods, rather than the more intuitive and obvious complementary goods.
They argue that there is no value neutral marriage policy (even if their quoted assertion from Michael Sandel is easily falsifiable, because the government could have other, normative grounds to bar polygyny). Who would disagree, except perhaps those who believe that the only common good that is served by ‘marriage policy’, within reason, is to facilitate private, individual goods?
They suggest there are legitimate moral purposes for a discriminatory marriage policy, but they analogize to goods that are not obviously in conflict, such as the relationship of business partners compared to personal friendships. Elsewhere, in contrast, they suggest that the purpose for a retained prejudice against gay couples is to be found in the perceived conflict of goods, i.e. down the road the perceived social linkages or norms may be lost (a consequence both in dispute and not in evidence at trial and one that could be, nevertheless, easily addressed by propagating the appropriate ethic, rather than denying or hypothesizing that so much is impossible).
They suggest that one can’t reason from a ‘fundamental right’ to marriage to gay marriage, because the concept of fundamental right is contingent on the purposes of marriage. A contingent fundamental right is hardly intuitive, because what we would think of as grounding the word “fundamental” is what we should use to judge whether restricted purposes are legitimate. Thus, we might well consider fundamental expression of innate sexuality and associated partnership, as seen by evidence and testimony in court and so obviously related to “flourishing” and “human good”, as not quite in the same category as their choice example, an artist seeking contingent self-expression through antisemitic art, who nevertheless gets defunded.
Indeed, they fail to meet the burden that the court should choose to impose on them. If they purport that there are legitimate moral purposes for discriminatory policy, it should have been proven at trial that these purposes can win the form of rationality, going beyond mere animus, reference to tradition, or belief in revealed truths. The trial record is pretty bare on this.
What’s more, it is closer to the time when the Supreme Court Justices ought to formally realize that, in finally removing “criminalization” as a penalty, they ought not to simply replace it with other forms of sad and uninspired penalties, that are often as damaging to the human spirit, even if they are not as physically threatening. This is the spirit of Romer, I think. If the court has the prescience to see the obvious complementarity of goods, we do not lose the past, we gain the future.
Their answer to these problems is not to delve into them much, but to provide a formalism: whatever the postulated legitimate and inevitable moral purposes of discriminatory marriage policy are, the court(s) should not assess them, because such purposes are only for the people to decide. (They confuse the legislature with the people, in citing Gregg v Georgia, p. 13, raising the vexing issue of judging the ‘legislative intent’ of a plebiscite and other issues besides.)
But, this is no answer, really.
If the moral purposes of the law are all left to a non-deliberative plebiscite, that makes a mockery of their statement about the majesty of the law, “instituted to preserve justice and secure the conditions under which individuals or communities can thrive or flourish” (p. 4), because a plebiscite could make a horse a Senator and more besides.
Even in that potential chaos, a court would still have to weigh competing and conflicting moral claims of the plebiscite, e.g. we want to live with equal protection and we want to discriminate against a minority (gays). To settle that question, with weighty matters at hand, a court would have to weigh consequential harms, look at the case in hand, examine the aptness of the discrimination in meeting the governmental interest, to see whether it rested on sheer animus or on supportable, evidential linkages. The trial court did that, in spades. The plaintiffs must and should win on appeal.
Thursday, October 7, 2010
The Phallacies of the NRO
It appears that the editors at NRO fancy that they can remember something about marriage that others cannot.
THE LOGIC OF MARRIAGE
Their reply is nothing more than what has long been on display:
- 1. narrowly define - even absurdly conjecture, given the fundamental character of marriage - and tailor public purposes in such a way that they can only be satisfied "intrinsically" (by penis-vagina), and
- 2. deliberately confuse purposes, by any means, to blur the line between what the current law actually allows, regulates, restricts, and endorses, and an aspirational norm/ethic for a marriage ideal in society, while
- 3. simultaneously making assertions about unsubstantiated consequential harms, that have currency only the court of public opinion, in prejudice, never passing real muster.
In other words, their arguments are not even state-of-the-art.
Consider their opening: "Our actual point was and is that same-sex marriage is a contradiction in terms that undermines the logic of the institution."
One would expect a tour de force of logic, after that. In all cases of X, Y results. Or, Y occurs, if and only if X occurs. But, no.
As an aside, one should read the amicus brief filed by Robbie P. George, et. al., to the appeals court for the Prop8 decision, substituting "primary purpose" everywhere the brief mentions "purpose" or "end" and see how different a brief one gets!
Instead, they make an imprecise, bald assertion about the governmental interest in marriage, marriage in general, perhaps as a norm, perhaps as a matter of law - it's simply not clear. Perhaps they mean all marriages, to be called such, must fit the government's interest in marriage? That hardly sounds convincing for a fundamental human right ...Anyway, they immediately concede that not all marriages meet this purpose. How? Well, they modify their terms, introducing a new concept, a delineation, the primary purpose of marriage: "If our critics are right, then the fact that infertile couples have always been considered eligible for marriage means that the institution has never had procreative sex at its heart [i.e. primary purpose],.."
As an aside, one should read the amicus brief filed by Robbie P. George, et. al., to the appeals court for the Prop8 decision, substituting "primary purpose" everywhere the brief mentions "purpose" or "end" and see how different a brief one gets!
In any case, given their concession, there must be room in the word "marriage" for gays, too, with the deliberate intent of strengthening 'marriage culture'.
Finally, the editors run what might be called their argument from prejudice or the populist argument. Two brothers raising an orphaned child or two, sexually involved, committed gay parents, which one should we call "marriage", if any?
LOL.
You make the call, possums. Here's Griswold v. Connecticut, a "foundational case", to help you decide if the gay couple or the brothers better meet a commonsense standard, even if they don't meet the appeal-to-prejudice standard set by the NRO editors:
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.
Is that how you'd describe your adult brother?
One doesn't need to mock the editors at the NRO. They do it themselves...
Monday, January 25, 2010
Beyond Pedophilia/Ephebophilia
Last year, Dan Savage got the special award for this video, and Rob Tisinai takes the lead, this year, with his! (noticed here and here, as well)
I'm increasingly of the opinion, however, that what may be required of us is to walk nongay marriage advocates every step. of. the. way. down. the. isle. with. us.
We need more than just advocacy. (Although, getting your Gandhi on is a new high for Western Civilization).
Quite apart from lobby groups, perhaps something like a gay-straight alliance for families and couples suits an unmet need. Supporting that from behind, ways to institutionalize these bits of knowledge, these videos, in new ways, ways that can be accessed by those of goodwill who might yet have an open heart. In short, something other than individuals' advocacy that can propagate understanding and norms.
And some part of 'activism' ought to shift focus. The above example is fine, complete. By way of illustration, here is an exercise in practical wisdom.
- Q: My daughter says her scoutmaster is a lesbian. Should I send her on an overnight with this scoutleader or not?
- Q: Statistics say that there are pedophiles and ephebophiles. As a nongay parent, I admit that gay molestation freaks me out doubly. Anyway, assuming that I want to act fairly and rationally, what should I do, when I send my kid off to camp for the summer?
- Q: I saw a todler holding a sign that said, "Two boys can marry". Is that what I want to teach my kids? I'm a Christian parent of four kids. I'd like to think I'd love a gay son or lesbian daughter. But, at the same time, I'm not sure what I want to teach them, until I find out; and, it seems un-Christian to me to telegraph a message that everything is okay for everybody. What should I say, in advance of knowing if my kid is gay or not?
I think a book of wisdom on that score, built the right way, could cut like butter through the highbrow "battle" that is going on way above the Endor moon, right now. Not just a book, perhaps. The "our stories" campaign can be broadened to the social context of our lives, especially of the gay kids, i.e. the foundations of gay-friendly "social institutions".
Antigay marriage advocates seem so insular, they are unable to reconstruct these things for themselves. The few that capable of blocking out from blind religious doctrines want statements and attitudes that are potentially normative that they can latch onto, they are unaware of the breadth and depth of the LGBT community, it seems.
Btw, one suspects this need abides, whether the Supremes rule favorably or not.
The Compromise, One Year Later
About a year ago, in February, 2009, Jonathan Rauch and David Blankenhorn came to a public suggestion, well intoned, that one way to prevent religion from intruding on the public square in America in untoward ways would be to have Federal civil unions and robust religious-organization exemptions, that is, special conscientious-objector-at-large rights for the putatively devout.
Of course, they didn't put it that way... But, let us here not mince words. Gay couples are not the moral equivalent of war. (I'm ignoring, of course, those who believe they are worse - and make no mistake, that's not hyperbole).
A year later, what have we found out? Two things.
Religious exemption protections, no matter how sweeping, are not enough to quell opposition.
Even if the Supreme Court soon dooms gays to their own trail of tears, it's unlikely that this Hobson's choice will stand the test of time. I don't mean that as a statement of demographics. I mean it as an obvious injustice, that might will not make right of the situation.
A smart Republican State Senator, in New Jersey, proposed and got adopted, as a friendly amendment, that comprehensive, sweeping protections for anything that touches organized religion, even from 10,000 feet, would be "sacrosanct" in law.Every single other Republican voted the bill down.
Antigay Catholic bloggers indicated that they had received a back-channel communique to cast doubt on such protections. Indeed, the only "protection" they want is freedom from married gay or lesbian couples. Period. (I mean, at least for those who bother to voice an opinion at all).
As for civil union, the case for gay marriage continued to crystallize, as across the spectrum of political thought many nongays began to wonder aloud why on earth our social institutions couldn't be made to conform to what are obvious truths: gays are okay and meant for each other, gay kids have a right to full affirmation, and married gay parents couldn't possibly bring the downfall of society, at least not any more quickly than so many other things we face.
Indeed, one year on, it seems that the compromise sought looks like the Hobson's choice variant it is for gays. Even if the Supreme Court soon dooms gays to their own trail of tears, it's unlikely that this Hobson's choice will stand the test of time. I don't mean that as a statement of demographics. I mean it as an obvious injustice, that might will not make right of the situation.
Saturday, January 23, 2010
NOM: Mormons are True Christians on Trial
AN OPPORTUNITY FOR LIBERALS TO ARTICULATE A MESSAGE TO "VALUES VOTERS"?
NOM blog flutters, "Christianity on trial". So Mormons are Christians these days? What else can Maggie mean, since the LDS were so heavily involved in Prop 8, with 20,000 feet on the ground, according to documents in evidence on Day 7? A day ago, she was talking about "traditional faiths". LDS are a traditional faith? Interesting. I suspect we'll see some fine print on that, you?
Clearly, it's not Christianity on trial. The problem is that referendums/plebiscites rather negate the constitutional promise of a Republic, in favor or a pure democracy that can discriminate against a minority group for any reason, so long as there is a flimsy one that can be asserted for formality.
Reading in the comments, some people just don't seem to understand why voting some tenants is not appropriate way to reach consensus in a pluralistic society, in a democratic Republic. Articulating a message to those people could be a way to strengthen the liberal and progressive appeal to self-identified "values voters".
Friday, January 22, 2010
Prop 8 Trial, Day 7 - My Stylized Summary
Today, we got to peek into two venues of the inner political sanctum of the unholy coalition that was forged to publicly smear and defame gays, while making pretenses to 'protecting marriage and children'. I agree with Shannon Minter it would have been a good day to televise.
Just as the lid is coming off the international coalition, including The Family, who pushed Uganda into consideration of laws to execute gays, we got a small peek at the internal-external Prop8 documents that show an astonishingly broad religious-political army and, perhaps, even rank hypocrisy, within the "moral" leadership council (what else am I to make of an election-morning e-mail entitled, "Go to confession", on face?).
Second, we got a first-hand account, a peek into NARTH, the evangelical spiritual-violence center run by Focus on the Family.
We got a first-hand view of the abdication of many (Blankenhorn, too?) of the birthright of gay kids, offered in public testimony by Ryan Kendall, despite any reasonable fear of reprisal and 'irreparable harm':
A. When I was 16, I separated myself from my family and surrendered myself to the Department of Human Services in Colorado Springs.
Q. And what happened when you surrendered yourself to that department?
A. I -- I went in, and I spoke with the case worker. And I told her what had been going on in my family, what had been going on with reversal therapy. And I told her that if I went back to that house, I was going to end up killing myself.
And so they started a dependency and neglect proceeding to revoke my parents' custody.
Q. So did you stop living with your parents and stop going to therapy?
A. That's correct.
Q. And did things get better?
A. I was a 16-year-old kid who had just lost everything he ever knew. I didn't really know what to do. I was very lost. And so the next few years I wandered in and out of jobs. I wandered in and out of attempts at school.
I was incredibly suicidal and depressed. I hated my entire life. At one point, I turned to drugs as an escape from reality and because I was, you know, trying to kill myself.
So, no, things did not get better.
Q. And what happened when you surrendered yourself to that department?
A. I -- I went in, and I spoke with the case worker. And I told her what had been going on in my family, what had been going on with reversal therapy. And I told her that if I went back to that house, I was going to end up killing myself.
And so they started a dependency and neglect proceeding to revoke my parents' custody.
Q. So did you stop living with your parents and stop going to therapy?
A. That's correct.
Q. And did things get better?
A. I was a 16-year-old kid who had just lost everything he ever knew. I didn't really know what to do. I was very lost. And so the next few years I wandered in and out of jobs. I wandered in and out of attempts at school.
I was incredibly suicidal and depressed. I hated my entire life. At one point, I turned to drugs as an escape from reality and because I was, you know, trying to kill myself.
So, no, things did not get better.
In case there were still some white-washed tombs left, or cold-hearted judges yet to come, or people who justified their foot-dragging by neatly separate buckets of discrimination, Boies offered up two more pieces of expert testimony, from Katherine Young and from Paul Nathanson. Nathanson testified to a long string of professional groups (including Anthropological) that endorse marriage for committed gay couples and as good for the kids of gay couples. He testified that "hatred" was cultural hostility, not just "an emotion". Young testified that the same 'protect the children' trope was used by religious groups to oppose the women's movement.
THE POLITICAL ARMY OF GOD
Professor Gary Segura, a political scientist, spoke about an 'expert report' that he had prepared for the trial. He gave various theories about how gays could be visible, but lack political power. For instance, the new mayor of Houston, a lesbian, cannot get domestic partner benefits, because those have been denied directly by the voters, via referendum/plebiscite. He talked about the special case of plebiscite, which links local with national opposition. On cross, he talked about gay political action groups overstating their influence to donors. Asked about the recent Federal Hate crimes law signed by the President, he said it was a 20 year goal achieved, but it still had to be attached to the must-do Defense Authorization bill, afterwhich it still lost 75% of GOP support. [I did not check his numbers.] He spoke about the use of persuasion as a "weakest form" of political power.
There was a long list of other topics. Frank Kameny and the Mattachine society. Colorado's Amendment 2. Prop 187 in CA. How the amendment process has been used to target minorities, in general. He guessed at 0.005% of local officials were gay and circa 1% of state officials (445 is the total number offered on cross for all office holders). Far too much to recap. The role of the Judiciary in prompting legislative changes. Disposable income. Access. Lobbyist awards...National AIDS/HIV strategy. The ACLU, the TV set, the NYT, the HRC's claim to have reached 90% of the US population with a message, legislative scorecards, labor unions,
Some real courtroom tension came, however, when Plaintiffs tried to start introducing documents from the Prop8 campaign.
From the documents that made the cut we learned:
- 20,000 LDS-related volunteers walking around, at one point, on a Saturday
- conference calls, one with 1,700 listeners in 101 locations in June, 3000 in July and a goal of 5,000 (!!!)
- kick off letters from the First Presidency of the LDS
- "The Pastor's rapid response team"
- the heretofore unknown involvement of a polling specialist who was actually a point-person within the campaign for organizing "public affairs"
- "John Does" who are yet to be named
- An election morning e-mail that has a subject line, "Go to confession"
- The Catholic Conference "Led by the Knights of Columbus national donation of $1.15 million, other million-dollar donors, and countless major donors,"
- tax-law troubles in spades: "As you know from the first Presidency letter, this campaign is entirely under priesthood direction - in concert with leaders of many other faiths and community groups forming part of the ProtectMarriage.com Coalition."
- "We have the political and financial support of groups such as Focus on the Family, Family Research Council, American Family Association, The Arlington Group, and many others."
THE COURT: Does losing elections or failing to obtain legislation denote political powerlessness to require extraordinary protection against majoritarian political processes?
THE WITNESS: Losing an individual election, in my view, would not because in the Democratic process someone losses all contests.
The initiative process, however, is a little bit different because it is the only circumstance where we put individual rights up to a popular vote.
So we have 150 or more instances in a decade and a half where anti-discrimination protections are voted on by the population and overturned, even though the legislature or its city council or county board had granted them.
We have uniform passage of constitutional amendments to exclude one group of citizens from a civil institution. And that's extraordinary, in my view.
Now, does -- would each individual act by itself be determinative of whether or not there should be judicial intervention? I would say, just as I said to Mr. Thompson, that an outcome by itself is a piece of information, but we would want to know the context in which it passed.
So if we look at the passage of a particular bill in the Assembly, if we have the passage of a bill where the majority party votes for it and the minority party votes against it, then we might reasonably expect that should that majority change, we could see a reversal on that. We could contrast that with an outcome which is bipartisan, for example.
We can see examples where a legislature passes a bill and the public then files an initiative to overturn it.
So I would want to look at the range of events rather than a single event. And in my view when you look at the range of events that have occurred in terms of the, you know, public voting directly on questions of gay and lesbian rights, that their loss rates suggests that longstanding prejudice against gays and lesbians is shaping what their political opportunities are.
THE WITNESS: Losing an individual election, in my view, would not because in the Democratic process someone losses all contests.
The initiative process, however, is a little bit different because it is the only circumstance where we put individual rights up to a popular vote.
So we have 150 or more instances in a decade and a half where anti-discrimination protections are voted on by the population and overturned, even though the legislature or its city council or county board had granted them.
We have uniform passage of constitutional amendments to exclude one group of citizens from a civil institution. And that's extraordinary, in my view.
Now, does -- would each individual act by itself be determinative of whether or not there should be judicial intervention? I would say, just as I said to Mr. Thompson, that an outcome by itself is a piece of information, but we would want to know the context in which it passed.
So if we look at the passage of a particular bill in the Assembly, if we have the passage of a bill where the majority party votes for it and the minority party votes against it, then we might reasonably expect that should that majority change, we could see a reversal on that. We could contrast that with an outcome which is bipartisan, for example.
We can see examples where a legislature passes a bill and the public then files an initiative to overturn it.
So I would want to look at the range of events rather than a single event. And in my view when you look at the range of events that have occurred in terms of the, you know, public voting directly on questions of gay and lesbian rights, that their loss rates suggests that longstanding prejudice against gays and lesbians is shaping what their political opportunities are.
Thursday, January 21, 2010
Prop 8 Trial, Day 6 - My Stylized Summary
[I'm waiting now for transcripts to be available, even at the loss of timeliness.]
Today, I'm thinking about the Sosman dissent in the historic Goodrigde v Dept. of Health. (pdf, wikipedia).
In that dissent, the late Justice Martha Sosman argued that, basically, 'science' was conflicted and in its infancy regarding what we know about gay parents, so it was "rational" for legislators to wait on gay marriage.
Before making a fundamental alteration to that cornerstone, it is eminently rational for the Legislature to require a high degree of certainty as to the precise consequences of that alteration, to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice. The court today blithely assumes that there are no such dangers and that it is safe to proceed (see ante at--), an assumption that is not supported by anything more than the court's blind faith that it is so.
[opinion written in 2003]
[opinion written in 2003]
If the Prop 8 defense intend to argue the same thing, then both sides will see progress today.
I DECIDED TO LEAD WITH MY HEART
Compelling testimony from Republican Mayor Jerry Sanders, who has a close daughter who knows more about Home Depot than he does (yes, that's his characterization, not mine). "I decided to lead with my heart", he told an audience at the time he reversed a position on civil unions. (He went on, after that, to win re-election.)
Sosman says that "emotion" is equaled by the antigay side; and, therefore, it is irrelevant. Her view, of the aspects of the law called into question by the facts, allowed that cold of a reception on matters as fundamental as human relations. (Justice Kennedy - has he made the transition from tolerance -Lawrence- to something better than cold heartedness? Who knows?)
From the cross-examination (pun intended), it appears that the Prop8 defense will argue that Sanders is swayed, but not others, and, even if they are, the right way to handle societal changes in opinion exemplified by Sanders is to let the legislature and the people vote on them, not the courts.
On the Constitutional matters at question, Prop8 will likely twist or use Sanders as probative of their view, having got him to admit that ordinary people of goodwill can disagree and that gay and lesbian couples have sufficient equal protection under the law with civil union (or DP). Sanders will be less probative of the question of how much political influence gays and lesbians have, other than his recognition that the trend is toward non-discrimination.
Herrera missed an opportunity on re-direct, I thought, after Prop8 attempted to paint Sanders a corner with a question about whether it would be "fair" if no one had civil marriage. That may be an attempt to make Sanders sound like he's the one who hasn't thought things through, rather than the other way around, that "fairness" is not the point of discrimination in marriage law. We'll see.
THE TIME HAS COME, THE WALRUS SAID
The testimony of Professor Lee Badgett was much harder for the Prop8 folks to impeach. I mean, the facts and figures just don't seem to be there, to justify a coherent worry about the harm from committed couples, to themselves, the children or others. Badgett was unequivocal that the data, in her opinion, do not support continued, informed worry.
So, what to do?
Well, two impressions were left on me. Give the appearance of confusion, by wearing everyone out with facts and statistics and methodologies and estimate uncertainties and long questions that put pounds and pounds of paper in from of weary Justices, while impugning researcher's motives, because they donated to this-or-that campaign for "equality". Raise doubt whether a suspect class could be defined in law around "orientation", even, because researchers look at sexual behavior, not just sexual identity. (uncertainty-check, doubt-check, fear-next step).
Set up for a rival goods argument, a put-down of issue of marriage, even if it has speculative merits: there are so few gay couples, even less who are interested in marriage, the "greater good" in California has judged itself imperiled by them, and harms are mitigated with the civil unions law. To me, this is the most pernicious of arguments on the table. If Justice was ever equality-at-law, it would be to refuse these 'lessor of' arguments or set them to the highest standard of proof.
{The defense have not brought up the (godless?) 'reproductive industry' concerns that they usually do, yet.}
Last, the Prop 8 defense attempted to neutralize the question of money, related to marriage, in two ways. First, they showed the Prop8 ballot, which had a false statement that there would be no significant, anticipated financial impact, long or short term. I'm not sure how that will be summarized, yet.
Second, it seemed as though they were attempting a moral equalivalence argument, in the spirit of Sosman. Prop8 had Badgett testify that no one on the same-sex marriage side would see the issue differently, if marriages were to cost the state revenue, rather than generate it (at least in her experience). In other words, their questioning suggests they intend to argue that both sides recognize this is a 'moral issue' or a 'principled issue', so that money calculations do not matter. Put another way, there is animus on both sides, if any is to be shown, by the indifferent attitude to pecuniary costs. Boies did not do redirect on this Q&A, for good or ill.
Tuesday, January 19, 2010
Overheard on the internet
On the process of reforming cherished beliefs, reinforced by NOM-induced anxiety, fear, and intimidation:
I am trying to discern why someone would want to hide their opinion, and in this case, a strong enough opinion that would compel him (or her) to sign a petition [required by law] that would potentially deny a sizable segment of Americans a right that all heterosexual Americans possess.
I know that when I want to hide an opinion, it is because it think that it will cost me something, either my reputation, or a friendship, or I will lose a work opportunity. And then, there is the specter of shame...and the cost of finding that I am not the person I want to be. No one wants to discover that they are a bigot, that they hold opinions that they can only seek to justify through flimsy religious basis, or by simply decrying "it just ain't right."
-MMcShane, Dallas on NYT blog
I know that when I want to hide an opinion, it is because it think that it will cost me something, either my reputation, or a friendship, or I will lose a work opportunity. And then, there is the specter of shame...and the cost of finding that I am not the person I want to be. No one wants to discover that they are a bigot, that they hold opinions that they can only seek to justify through flimsy religious basis, or by simply decrying "it just ain't right."
-MMcShane, Dallas on NYT blog
Compare:
Like everyone, my political and ethical views have evolved over time. From a somewhat racialist milieu in rural Louisiana, I consciously rejected racism when I was in my young teens. From a devout Catholic youth I became a secularist and freethinker at a fairly young age. From libertarian-conservative hawkish Reaganism at 18, I quickly became a die-hard libertarian minarchist, then an anarchist. ...
...
And so it is with gay marriage. My views evolved from mild ambivalence and recommendation of civil unions (see ...) to an increasingly pro-gay marriage position (Second Thoughts on Gay Marriage, Nov. 2006). And it’s become even clearer to me now; I’m no longer reluctant.
Not only should libertarians support gay marriage, but of course they should.
From The Libertarian Case for Gay Marriage, Kinsella
...
And so it is with gay marriage. My views evolved from mild ambivalence and recommendation of civil unions (see ...) to an increasingly pro-gay marriage position (Second Thoughts on Gay Marriage, Nov. 2006). And it’s become even clearer to me now; I’m no longer reluctant.
Not only should libertarians support gay marriage, but of course they should.
From The Libertarian Case for Gay Marriage, Kinsella
Saturday, January 16, 2010
Prop 8 Trial, Day 5 - Other Notes
Today would have been an especially good day for the trial to have been televised.
Today was shocking because one wonders how it is that every Congresscritter can probably recite what the Right says about Adam&Steve and their Tippecanoe on family, but how so few can probably summarize the key findings of decades of serious research into the matter, in three points, as did Dr. Lamb today:
[the foundations of good parents, of good family outcomes]
1. The quality of the relationship that children have with their parents and those that come after them. Large body of evidence that children do best when with loving parents and do worse without.
2. The quality of the relationship between the parents or other significant adults. Kids do better when parents are happy with each other than not.
3. The availability of adequate economic and social resources.
It doesn't mean that someone cannot have a faith belief or a sociological belief that "ideals" are useful. It does certainly mean that idealists should temper their views when making public policy for the whole of God's creation, for all of society... They might gravitate, instead, to a 'balance of liberties' approach, rather than generate grave harms in blind or headstrong pursuit of ideals/doctrine.
Also, it seems a pity that the gay community has to wait for a trial of this magnitude to marshall the huge array of competent argumentation and studied review of the opposition, as has been done here. That doesn't slight any other efforts, even those focused differently. It's just an observation.
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