California Proposition 8 Anniversary: Revisiting the (Bad) Arguments
The following is an editorial:
In the last year, we had some victories: marriage equality came to Iowa, Vermont, and New Hampshire, recognition came to Washington D.C., and Domestic Partnerships came to Nevada and were expanded in Washington. And then today, on the one year anniversary of California's Proposition 8, the constitutional amendment that took away same-sex marriage, gay and lesbian residents of Maine wake up with the news that Proposition 1 had passed and their marriage rights were revoked. The battle over Proposition 1 showed that opponents of marriage equality have not developed their arguments much since Proposition 8, but that, unfortunately, those arguments were still working. With that knowledge, I feel obligated to revisit some of the claims made in the debate surrounding same-sex marriage.
On November 18, two weeks after the passage of Proposition 8, The View featured a segment discussing the proposition and same-sex marriage generally. The show's two conservative members, Elisabeth Hasselbeck and Sherri Shepherd, took the stance against same-sex marriage. The video is to the right. I have extracted some of the two ladies' arguments to address:
"...this is minimizing [the struggle for racial equality]. To equate what's going on—and now these protests—and those situations during the civil rights moviement; it just shouldn't even be happening. It minimizes all what occurred."
Civil equality is not a competition; the winners are not the ones that suffered the greatest. Discrimination and the denial of rights should be addressed and remedied whenever it occurs, not just when it is the greatest example of discrimination. To discredit the gay rights movement in this way is to discredit the American feminist movement because women in the Middle East have it worse.
Promoting same-sex marriage does nothing to minimize the black civil rights movement. Rather, it is a continuation and the next step in the fight to win social equality regardless of race, sex, or sexual orientation.
"They should be fighting for the rights rather than the word 'marriage'. There are a lot of people who are arguing there were four judges who decided what was best for the country all of a sudden. This Prop 8 came as a result of that. These protesters, in essence, are protesting what the majority wants."
The rights of marriage and the word 'marriage' itself are entangled. It is impossible to impart all of the rights without also providing the word. This is because the concept of marriage is one that, for the purposes of law, is recognized uniformly through each of the states in the country. Civil Unions and Domestic Partnerships do not enjoy such ubiquity; a couple could not travel from Oregon to Nevada and have their relationship recognized even though both states have Domestic Partnerships. Even in states that provide comprehensive Domestic Partnerships, some benefits, like pension agreements, insurance policies, and other private offerings are available only to couples who are 'married'. So it is impossible to to fight for the rights without also fighting for the word.
Further, I believe it is a miscategorization to say that four judges decided what was best. The California Supreme Court did not make any value judgement on same-sex marriage; it simply held that the Equal Protections Clause of the California Constitution made the denial of marriage rights—a "basic civil right"—to a protected class unlawful. The ruling followed 4 years of procedural history and argumentation. To make it sound as if the judges woke up one morning and decided to judicially mandate marriage equality is misleading and dishonest.
The protestors were not protesting what the majority wanted; they were protesting the fact that a slim majority (52% of voters) could strip fundamental rights from a class of people in defiance of the state's three elected branches of government—executive, legislative, and judicial. They were protesting that the will of only 7 million voters in a state of 37 million could decide whether or not they were permitted to marry the person they love. They were protesting the frightening precedent that voters could decide civil rights. To characterize the protesters "in essence" as anti-democratic sore losers is an demeans their message.
"There are some people who go 'because I can, I want to have my dream wedding in a Church and you're saying 'no', so I might sue you because you're discriminating against me' And so you're impeding on their rights and their beliefs."
Gay and lesbian rights are no threat to religious freedom.
"If you're voting yes on Prop 8, then all of a sudden, you're a bigot."
Bigot is not a nice word, and it does not feel good to be called one. But if you did vote yes on Proposition 8, you chose to jealously keep a right that you enjoy from a group of people. It does not matter what your reasons are, because the outcome is the same. People who once could marry their partners are once again legally prohibited from doing so. Your marriage was not affected for better or worse as a result of your vote. The only thing that changed is that we could no longer have ours. You may claim no animus, but you can not strip away a right from a group of people while gaining nothing for yourself and call the action anything but malicious. You may not feel like a bigot, but your vote was one a bigot would cast. Love is not a limited commodity to be hoarded.
Have a question, comment, or response? Share your thoughts.Gay leaders not happy about federal Prop 8 challenge. So what?
Yesterday, I wrote about Theodore Olson and David Boies, and their planned federal challenge to Proposition 8. Already, the leaders of nine prominent gay advocacy organizations, including Lambda Legal, HRC, Freedom to Marry, GLAD, and the ACLU have released a publication critical of the case. In the document, entitled Why the ballot box and not the courts should be the next step on marriage in California [pdf], the coalition says:
Since we lost Proposition 8 just six months ago, and since a ballot initiative to repeal is likely to require a huge investment in time and money, it is tempting to at least try a federal lawsuit first. But it's a temptation we should resist.
[. . .]
Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong. We need to build a vigorous, aggressive campaign to overturn Prop 8 and restore the freedom to marry in California. This is the moment to convince California and America that we should have the freedom to marry.
The core of the group's worries is that if a federal challenge were to fail — and they seem to think that it will given the conservative makeup of the current Supreme Court — bad legal precedent will be set that would negatively affect future attempts to win marriage equality.
While the concern is legitimate, I am uncomfortable with 'strategy' displacing the rights of individuals to bring their grievances to court. The plaintiffs believe that California's actions have harmed them, and they should be free to pursue whatever legal remedies are available without worrying about the potential ramifications for "the cause". Pressuring the very individuals whose rights these organizations purport to protect feels unseemly.
Further, the concerns the groups have may never materialize. It could take more than two years before this case makes its way to the US Supreme Court, well past Equality California's goal to place the issue back on the ballot in 2010. A vote to overturn Proposition 8 would render the case moot, killing it before it even makes it to the Court.
I fear that the real source of the organizations' disapproval is their discomfort with an old, straight, white man potentially succeeding where they thus far have not. But old, straight, white men are the ones who make up the Supreme Court — with apologies to Clarence Thomas who only votes like an old, straight, white man, and Ruth Bader Ginsberg to whom only 3 of the 4 criteria apply. But the unfortunate truth is that claims raised by old, straight, white men resonate with the Court, especially when they come from old, straight, white men who have been before them 55 times already as Olson has.
The gay community is not a monolith; we are filled with different insights and opinions, and we sometimes disagree. I can respect the Elite 9's strategic plans, but I do not believe it is appropriate for them to speak publicly against the efforts of others in our community. We have succeeded most when we have taken multiple approaches to the same problem, and I do not see how quashing alternative strategies will advance our mutual goals.
What do you think? Is Olson and Boies's case ill-timed, or should they continue with their litigation? Let me know in the comments.
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Illinois will soon begin to discuss the Religious Freedom Protection and Civil Union Act, a bill with the dual purpose of providing legal recognition for same-sex couples and permitting religious organizations to choose not to solemnize or officiate civil union ceremonies. The bill would also recognize marriages and other legal relationships between members of the same-sex performed in other jurisdictions as civil unions. Illinois currently offers no recognition for gay and lesbian couples.
Professor Geoffrey Stone of the University of Chicago Law School, like 60% of Americans according to recent polls, supports the legislation and wrote a very interesting opinion piece in the Chicago Tribune. He opines:
There has been a transformation in our thinking on this issue over the past half-century. What would once have been regarded as nothing short of weird now seems perfectly sensible. This is the American story. It is, in part, what makes us great. Over time, we have gradually recognized the common humanity of blacks, women, Hispanics, Asians, Jews, Catholics and gays, all of whom have been the victims of cruel discrimination.
The rights for each of these groups have come incrementally. For instance, women won suffrage in 1920, employment nondiscrimination in 1964, and school nondiscrimination in 1972. Professor Stone believes the incremental approach to legalized same-sex marriage is appropriate as well, saying, "it is a reasonable compromise at this time in our history."
I disagree. 'Reasonable compromises' are what have led many people to believe that the fight for women's equality ended in 1970 with the Equal Pay Act when, in reality, women today are still paid 15-40 percent less than their male colleagues. By taking an incremental approach and settling for civil unions, we run the risk of fostering a perception that the problem has been fixed by a separate-but-equal institution. So why not go straight for full marriage equality? Professor Stone points to fears of losing religious liberty:
The most obvious tension arises out of the fact that some religious people believe same-sex relationships are inherently sinful and immoral. They therefore insist that the state should not legitimate such relationships. The problem, though, is that in a society that values the separation of church and state, religious doctrine cannot be the source of our secular law. The framers of our Constitution certainly embraced this principle. It is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them.
I agree with Professor Stone on this point and I believe he has articulated it beautifully. However, we diverge in opinion on the appropriateness of the "Religious Freedom Protection" part of the Act. While he regards the language as "a respectful and very substantial acknowledgment of legitimate religious liberty interests," I see it as a merely symbolic and unnecessary inclusion simply for political appeasement.
The case that has spawned the fervor over religious liberty took place in New Jersey, where a religious organization refused to allow a lesbian couple to use a pavilion it owned. As a result of their decision, the New Jersey Department of Environmental Protection took away a tax break given to the organization for opening the pavilion to public use. This was a case involving not religious freedom, but a bland and straightforward taxation principle: you may not receive a public accommodation tax exemption on a location that is not actually accommodating the public.
I do not believe that the Illinois provision would have affected this outcome. Section 15 provides only that the law does not "interfere with or regulate the religious practice of any religious body" and that an organization "is free to choose whether or not to solemnize or officiate a civil union." However, this is already the state of the law in all 50 jurisdictions; no religious institution is forced to recognize any marriage it does not want to. Many Catholic churches, for instance, do not perform marriage ceremonies for divorcees, while Orthodox Jewish temples may refuse to join a jew and a gentile. No provision of law could be read to force religious organizations to conduct same-sex civil union ceremonies.
What an organization cannot do, however — and what they still cannot do even with Illinois's provision — is accept a public accommodations tax credit for a building that is not a public accommodation.
We are left, then, with a component of the Religious Freedom Protection and Civil Union Act that is superfluous and merely symbolic. I do not assert that religious organizations should be denied the ability to observe whatever tenants it wishes, I simply do not believe that Section 15 is necessary to achieve this end. I also fear what the law may be implying. If the legislature specifically exempts organizations from being forced to perform civil union ceremonies, is the implication that they can be required to perform marriages between divorcees or between jew and gentile? Why codify only a single exception while leaving other exceptions up to mere 'common understanding'?
Finally, I believe Section 15 reinforces the misunderstanding that civil rights are zero sum. The truth is that we can make one group — gays and lesbians — equal without making a second group — the religious — unequal. Equality is not a limited resource, but rather something we all can and should share.
In the end, both Professor Stone and I support the Religious Freedom Protection and Civil Union Act, albeit I with less gusto. I believe the Act is a step above nothing and is certainly a welcome relief for Illinoisan same-sex couples, but is absolutely not where Illinois should stop. A "compromise," as Professor Stone calls this bill, is not equality; equality is equality.
Have a question, comment, or response? 3 people do.Couple Raises First Amendment Claim Against Anti-Gay Marriage Amendment
A Louisiana couple is challenging their state's anti-gay marriage amendment in federal court by claiming a violation of the Establishment Clause of the First Amendment. While the couple is also claiming violations under the Fifth and Fourteenth Amendments — the amendments that guarantee equal protection — this is the first time to my knowledge an Establishment Clause claim has been raised against a state's marriage amendment, and one of the few times the federal constitution has been invoked. The previously won court battles in Iowa, Connecticut, Massachusetts, and California had all been based on equal protection within their respective state constitutions.
Louisiana voters amended their state constitution in 2004 with 78% of the vote to restrict marriage to one man and one woman. A challenge to the amendment failed in 2005, when the state Supreme Court upheld its constitutionality.
The First Amendment's Establishment Clause, which states that "Congress shall make no law respecting an establishment of religion" has been broadened to apply to state governments as a result of the Fourteenth Amendment. A claim is generally evaluated by examining the purpose of the law being challenged. In order to survive a challenge, the law must have a secular legislative purpose and must not advance any religion. Kristoffer Bonilla, who is one half of the plaintiff couple and is representing himself pro se, alleges that the law violates this test. He claims:
Moreover, the supporting Louisiana provisions run afoul of the Establishment Clause of the First Amendment by curtailing the right to marry based upon a religious interpretation of the nature and purpose of marriage itself. By failing to articulate a legitimate, compelling and secular interest for the restriction on marriage, the State has necessarily established a wholly religious civil institution.
Though the argument is interesting and cuts to the core of anti-gay marriage amendments, I do not expect it to succeed. Unlike equal protection challenges that have required a law to be rationally related (or, in some cases, narrowly tailored) to a legitimate governmental interest, an Establishment Clause claim requires only a showing of a secular interest. The states that have acted as defendants in these cases have already put forward a number of secular interests served by their marriage amendments, the prevailing one being an interest in raising children in heterosexual, two parent homes. Though such a claim is subpar in an equal protection analysis, it and other advanced secular purposes will likely be sufficient to defeat an Establishment Clause claim. The First Amendment does not require that there be no religious motivation, just that the secular purpose dominates. There is likely not sufficient proof that the state was primarily motivated by religion, or that the primary effect of the law was religious advancement.
I do not believe the plaintiffs in will win much headway fighting Louisiana's law in federal court. Even if they win at trial, I doubt that the current US Supreme Court would be amenable to their arguments. While I believe in the right for any individual to fight to win their rights in court, I fear that Mr. Bonilla will not prevail with his claims. There will be a time that an equal protection challenge will succeed under the federal Constitution, but I do not think that this time is yet upon us.
There has been no public commentary yet from the large impact litigators like HRC or Lambda Legal about this case, and it does not appear that they are involved in any way. And while Forum for Equality — the organization that led the failed 2005 challenge — has made a statement about Mr. Bonilla's petition, they do not appear to be participants in the suit either.
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I came across an editorial posted by a blogger at a site called Conservative Colloquialism entitled "Flawed Premises of the Homosexual Agenda" that I feel the need to respond to. The basis of his argument is that because gay and lesbian individuals choose their sexual behaviors, discrimination in marriage on the basis of sexual orientation is justifiable:
It is crucial to establish that people freely choose to engage in sexual relations, that human beings are not mere animals that cannot control themselves. In this way, one makes a fundamental distinction between a person’s freely chosen behavior and a person’s urges, feelings, desires, and attractions. Surely, a woman would not say that human beings are unable to control their sexual desires. To say such a thing is to give license to the rapist, the supreme violator of sexual morality. If the homosexual cannot control his or her own sexual urges, neither can the rapist or the pedophile. So if all sexual acts are freely chosen, then all homosexual behavior is freely chosen.
I guess the left would argue, more or less explicitly, that anal and oral sex with someone of the same sex are necessary for “individual self-fulfillment,” for reasons of “authenticity.” But this kind of talk merely turns the individual ego into the arbiter of morality, thus destroying any notion of morality. For what is morality if not independent of individual egos and wills?
This excerpt is edited. Full article here.
I believe that there is some confusion here about why marriage equality is important. It is not about equating “urges, feelings, desires, and attractions” with some universal tenant of morality, but recognizing the basic right of an individual to choose his or her own destiny. This is the fundamental basis of liberty, the ideal upon which our Constitution is founded.
Like Loving v. Virginia, the 1967 case that struck down prohibitions on interracial marriage, the struggle for marriage equality focuses less on individual same-sex relationships and more on a general provision of liberty: one's freedom to join in a loving union with the person of their choosing.
It is not about being “unable to control your sexual urges,” but rather the fact that there is no valid reason to expect that people should have to. Rapists, as this person cited, are not prosecuted for their sexual urges or 'immorality', but for their acts of violence. Pedophiles are shunned not for their desire, but for the tangible harm inflicted on children. Morality is simply not a relevant issue. Even more bizarre, neither rapists nor pedophiles are restricted from marriage on the basis of their 'urges', yet this person justifies denying the institution to same-sex couples for theirs.
Simply, marriage is not rooted merely in sexual acts, but in a loving partnership between two people. Sex is neither a prerequisite nor a disqualifier for marriage. Though an individual may temper his or her sexual desires, they cannot control feelings of love toward another human being. To expect that of a same-sex couple is as cruel as it was when it was expected of an interracial couple. That someone disagrees with their choice of partner is not a valid justification to deny them their right to choose.
The feud here is not in differing definitions of morality, but in the fallacious belief that a relationship must be 'moral' to earn state civil recognition. Such an argument is a distracting red herring. If this author wishes to deny the benefits of a civil, legal marriage to same-sex couples, there must be a civil, legal reason to do so. Arguments about sexual morality are irrelevant to the discussion.
Have a question, comment, or response? Share your thoughts.Why Losing the Proposition 8 Challenge in California Might Be a Good Thing
Many legal organizations that champion LGBT rights are more focused on the cause than the individual. At Family Fairness, we pride ourselves on putting the needs of the individual above the cause. This because while the cause will be won in time, we believe an individual client deserves a committed, focused advocate now. I understand that losing the Proposition 8 challenge in California would be bad news to the many same-sex couples currently residing in the state. We certainly do not hope that any loving, committed couple would have their marriage overturned. But solely for the purposes of this post, I would like to pull back a bit and look at the greater picture of the fight for marriage equality, and explore why losing the court battle may be a good thing for the cause as a whole.
Following Massachusetts's 2003 ruling in favor of marriage inclusion, the charges of "activist court" were levied en masse. California's ruling in 2008 refueled these accusations, and those who opposed marriage inclusion took up the mantle of 'Democracy Defenders' and claimed that courts should never overrule the will of the people. Ads characterizing the pro-gay movement as arrogant and pushing their agenda through an elitist, democracy-hating court system were effective with California voters, who voted on narrow margins shortly after the ruling to re-restrict marriage.
The current court battle to overturn Proposition 8 led, again, to these claims of anti-democratic rule with corrupt "activist courts" imposing their will on a dissenting majority. The "will of the people" expressed through a vote, they argued, should never be overruled.
Connecticut and Iowa faced their own similar attacks, and the self-proclaimed 'marriage defenders' continued to be highly critical of the same-sex marriage movement and its use of the court system to promote equality. Opponents characterized the movement as a scary juggernaut intent on assimilating the country state-by-state. They were now casting themselves as the real victims, whose freedoms were being taken away by a panel of unelected dictators who cared more for minority interests than the majority voice. Despite the courts historically being the protectors of liberty, they successfully portrayed them as undemocratic and anti-American for acting in this role. People continued to scoff at the elitists who were "legislating from the bench".
However, these sails began to lose wind as soon as Vermont's legislature passed a bill in favor of marriage equality. At once, the criticisms were robbed of credibility; accusing Vermont of "legislating from the legislature" simply did not have the same dismissive ring to it. Same-sex marriage could not longer be labeled an undemocratic endeavor when a supermajority of 70% of a state's elected officials approved it. And then, partly because the number of states offering marriage inclusion quadrupled in the span of only a few months, and partly because the victories were no longer confined to the courts, many 'marriage defenders' began to give up and admit defeat. The arguments they had used to win so many times suddenly no longer seemed as poignant. The tide had started to turn.
But we cannot rest on the momentum of victory for long. The Proposition 8 court battle will likely reinvigorate the anti-marriage crowd regardless of the outcome. If we win the case, it may again give strength to the claims of "activist courts" that has previously energized voters to repeal marriage rights and enact discriminatory constitutional amendments. If the courts are seen "invalidating the will of the people" once again, the 'marriage defenders' will have incentive to continue to use it as ammunition against our cause. And as the newest ad from the National Organization for Marriage shows, our opponents have not yet stopped stooping to fear and misinformation to make their case.
If we are to fight the portrayal of the "storm" of same-sex marriage as a juggernaut bred by elitists to feed on the the helpless masses, the battle cannot return to the courts. If we lose the Proposition 8 challenge, the issue will go to the voters in 2010. Opinion polls are already showing that voters who originally approved of Proposition 8 now believe they were misled. And if history is to be a guide, we can only conclude that the number of people supporting same-sex marriage will increase with time. At present, California is probably the state most able to win inclusive marriage by vote. If by 2010 we have states that have enacted equality through the court system, through the legislature, and through a direct vote, the arguments that marriage inclusion is contrary to the will of the people will be successfully refuted.
In the end, our cause will be better furthered by a winning vote than by a winning court case, and California is the most likely place for this to happen in the near future.
While I do not mean to suggest that I hope to lose the challenge of Proposition 8, I do not believe that outcome would be a bad thing. To the contrary, I think our cause may be helped by returning the issue to increasingly gay-friendly voters in 2010. And while we may all have to again endure months of million dollar campaigns of ads, winning voter-approved equality may be the final stake in the heart of the slowly dying 'marriage defender' beast.
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