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Losing California:

Last night I stood in the heart of San Francisco's Castro district, the epicenter of the gay-rights movement. Around me were thousands of people cheering and dancing for Barack Obama's victory and for the promise it brings gay America. Meanwhile, on a large screen broadcasting local news it became more apparent with every passing hour that 97% of Californians had voted on the marriages of the other 3%, and a majority had found them wanting.

Over the next few days there will be a strong temptation among gay-marriage supporters to put on a brave face. It will be noted that the vote was close, 52%-48% (with absentee ballots still uncounted), which is both heartbreaking because it was winnable now and encouraging because it is winnable soon. We narrowed a gap that stood at 22% eight years ago, when Californians last voted to ban gay marriage, to just 4% yesterday. "Don't worry about it," I was told by one reveler who noticed I wasn't exactly joining in the celebration swirling around me last night, "this will be back on the ballot again as 'Proposition Whatever' and we'll win."

Others are banking on a judicial end-around either through federal or state courts to overturn Prop 8. Gloria Allred, one of the attorneys spearheading the litigation that ended in the California Supreme Court marriage decision in May, has already imperiously announced she will file a lawsuit premised on what she's calling a "new and controversial legal argument" for why this constitutional amendment is "unconstitutional." Can't wait to see that one.

Civil rights movements, we are often and correctly reminded, are not linear projections moving inevitably into the future. They take two steps forward and one step back. Last night, we will be told, was just a "step back" in a long fight. Besides, we are often reminded that the trajectory is in our favor, with attitudes changing very rapidly, especially among younger voters who simply do not understand why anyone would oppose letting gay couples marry.

There is something to all of this. I have always believed the fight for gay marriage would be decades long: a few initial judicial victories to get the ball rolling, accompanied by a fierce backlash, and then a long slog through state legislatures (and sometimes courts). In the next couple of years, I expect we will see full recognition of gay marriage by the state legislatures in New Jersey and New York, where Democrats took the senate last night for the first time in decades. I can foresee in the next decade gay marriage in most if not all of New England and some of the other twenty states that haven't constitutionally banned it. California was a big prize, and would unquestionably have hastened things politically and legally, but there are others.

But the narrow margin of yesterday's loss masks some hard facts for the gay-marriage movement. Counting the losses for gay marriage in Arizona and Florida yesterday, we are now 0-30 in ballot fights. In California, we lost under circumstances that were as favorable to our side as they are likely to be for some time. We lost in deep blue territory on a blue night, when Obama carried the state by an astonishing 61% (running ahead of the opposition to Prop 8 by more than 13%). We lost despite being on the "no" side in a ballot fight, with the built-in advantage that gives you among those who vote "no" on everything out of understandable proposition fatigue. We lost despite the state attorney general changing the ballot title to reflect that it "eliminates rights," something most Americans don't like to do no matter the subject.

All of this suggests to me that actual support for gay marriage in California is something less than the 48% vote we got. My best guess is that actual electoral support for gay marriage in California is somewhere in the low 40s, when you factor out ballot fatigue, the blue tide, and the favorable ballot title -- all of which you would have to presume in trying to reverse Prop 8 in a future initiative requiring an actual "yes" to gay marriage. And, of course, to reverse Prop 8 we'll have to raise lots of money and put together a petition drive just to get to the ballot. My estimate is that last night's loss -- barring federal or state judicial intervention to undo Prop 8, which I regard as unlikely -- means there will be no gay marriage in California for at least a decade.

Something else, however, concerns me even more than whether particular tacticians can manipulate a vote by a sufficient few percentage points to eek out a narrow win in the next few years in California and other states. That something else is much deeper.

Over the past few days I've volunteered at various sites in the Bay Area trying to get people to come out and vote against Prop 8. This included speaking at a rally, distributing literature, and holding up signs to passing motorists. While I got an overwhelmingly favorable reception, not surprising for the Bay Area, I saw firsthand an angry and ugly underbelly of the opposition to gay marriage. I was called a "sicko," had the Bible cited to me more than once, was asked whether I'd want my "own child to be one," and was told that "they" molest lots of children, among other things.

The reality is that to a very large part of the country, and even in the bluest parts of the bluest states, homosexuality is not seen as normal and gay relationships are not seen as healthy and contributing to a society's well-being. Whether that's because of religion or because of the "ick" factor or some combination of the two, it doesn't much matter. It's there and it's only grudgingly and slowly giving up ground. This is especially true among blacks, some 70% of whom voted for Prop 8 yesterday even as they overwhelmingly supported Barack "God is in the mix" Obama. (Whites and Latinos narrowly opposed Prop 8.) It's also true of several major religious groups.

The smartest leaders of the gay-marriage movement know all of this. That's why gays were invisible in the No on 8 campaign. The literature I handed out talked in generalities about "discrimination" and about how it was "wrong" and "unfair" to take away marriage from some unnamed group of people. I scoured the literature and found no reference to "gays." The No on 8 ads featured almost no gay couples, and especially no gay-male couples, who are especially repugnant to many people according to polls. In one ad, Senator Feinstein was even agnostic about gay marriage itself ("However you feel about marriage . . . ").

I'm not faulting the No on 8 campaign for this strategy. I believe it was the only strategy that had any chance of winning under the circumstances. If the campaign had frankly presented the case for gay families and marriage we would have lost yesterday by a much larger margin. No on 8 leaders were trying to dislodge in five months what people have been taught for a lifetime about homosexuals and marriage. They were also trying to move a small group of people who don't know what they think about gay marriage. They raised about $40 million, a record for a social-issue proposition fight, and about on par with the largely Mormon-driven fund-raising on the other side. Given the size of the task, it's amazing that No on 8 nearly succeeded.

I also don't fault the California Supreme Court for yesterday's loss. Prop 8 was going to be on the ballot yesterday no matter what the court did, and, aside from the merits of their decision, the justices arguably helped the cause by setting a context in which a "fundamental right" was being "eliminated." Despite the ads by the Yes on 8 campaign trying to stoke populist resentment of activist judges, I doubt that many people who otherwise supported gay marriage voted for Prop 8 just to smite the arrogant tyrants in black robes.

Mostly, my heart breaks for the gay couples and their children who had a five-month window in which their families could celebrate the ultimate expression of commitment and love our culture knows. There was nothing academic about any of this for them. They don't really care whether they get to marry by court decree, or legislation, or proposition. They simply want the protection, security, and support they believe marriage gives them. They want their families and communities to understand how much their relationships mean and how fiercely they will fight to protect the children they love. Over the past few days, I've fielded questions from some of them looking for some reassurance about what happens now, but I do not know what is going to become of their marriages. (See Eugene's interesting speculation on that topic.) Today, they have no idea whether they have just been divorced by their fellow citizens.

On Sunday, I spoke to a rally of about 100 of them in Vallejo. It was held in a park bordered by rolling and largely barren, brown hills, which funneled a chilly wind onto us. The park was empty. It was all gay and lesbian couples, many of them with young children. Some had gotten married already and others were planning to do so before the vote, just in case. They were wearing red and carrying signs. They were full of hope. They would be heading out that day to form a human sign constituting the words "No on 8" by the side of the freeway, trying to capture the attention and hearts of thousands of passing motorists in a state of 40 million people. It seemed an impossibly small group taking on a lot for themselves.

We are going to get gay marriage in this country, but that day is now a little farther away.

Jamie (mail):
For those of us who are McCain supporters, it was a truly saddening last night. Obama has hope, but time will tell.

However, we're close. History is on our side. Given enough time, we will see equality.

On another note, I want to thank you. I'm not a Californian, but I contributed money to the effort. Still, you gave something more important: your time. I really respect that, and I appreciate it. So thank you.
11.5.2008 3:30pm
P (mail):
Thank you for your work on this and your great post. I am very sad about this.
11.5.2008 3:32pm
guy in the veal calf office (mail) (www):
Prop 8's success saddend me more than anything else yesterday. At a miraculous moment in time, when a historically oppressed minority saw one of its own win the biggest popularity contest in the world, 70% of them voted to eliminate rights from another historically oppressed minority.
11.5.2008 3:34pm
Jonathan Gardner (mail) (www):
I hope, pray, and work that you and people like you will never be able to enforce your morality upon us.

At least you are trying to use the proper paths to amend the constitutions of this land, which is through the people that are the government. Your openness about trying to use the courts to impose your morality on the people is appreciated.

I only wish more people understood the tyrannical intentions of you and people like you in using the courts.
11.5.2008 3:34pm
mls (www):
I was called a “sicko,” had the Bible cited to me more than once, was asked whether I’d want my "own child to be one,” and was told that “they” molest lots of children, among other things.


Imagine what you would have been called if you had been handing out McCain-Palin literature.
11.5.2008 3:36pm
amativus (mail):
I paid 3 U.S. dollars in postage to send my absentee ballot in, mostly in the hopes of defeating this monster, and it hasn't even been counted yet. I feel so useless and disgusted and utterly ashamed of the majority of my state right now. The only thing that makes me feel better is the knowledge that I am going to see gay marriage in my lifetime, that my generation is more tolerant than our predecessors, and that in the end as one generation supplants another good things are going to come to those who wait. I'm sad my gay friends have to wait longer, but I hope they remember that millions and millions of heterosexuals like myself are on their side, fighting and voting on their behalf, and we'll be around for the next battle too.
11.5.2008 3:37pm
Doc W (mail):
Ron Paul had this one right. It's not up to the government to define marriage. Let the government sanction civil unions (for all, not just gays) and let people call their union what they want.
11.5.2008 3:40pm
JohnK (mail):
Black people and evangelicals both object to gay marriage by large numbers. I can think of no other issue where a significant and powerful constituency in both parties agree so strongly. For that reason, I really can't see gay marriage going anywhere any time soon. The Dems talk a good game but they will never really do much because such an important constituency objects to it. Same with the Republicans. Until gay marriage becomes a real issue to people beyond gays and elite whites (a group that often over laps), it will never get any traction. I am not saying that is right. But that is the way it is and I don't see it changing any time soon.
11.5.2008 3:42pm
Questioner:
I can't say that I've ever seen a good answer to this question:

What benefits are there to being married that cannot be set up through other legal means, such as wills and powers of attorney?

Even this post doesn't deliver--the closest it gets is the rather bland "They simply want the protection, security, and support they believe marriage gives them." Ok, they believe that there's something mystical about the term marriage--but is there any "there" there?
11.5.2008 3:43pm
PatHMV (mail) (www):
So, as a tactical matter, why not enact "civil unions" instead of "gay marriage," with all the same rights, essentially attached to it. Even George W. Bush endorsed civil unions in his debate with John Kerry. Take that, spend a few years under that framework, and comeback to fight over the word "marriage" in a few election cycles? That would give the people time to absorb, time to see the truth, time to see that divorces don't suddenly increase, etc.

While there is certainly plenty of the "sicko" type of opposition, there are also very many decent people who, while they may have moral or religious principles against homosexual practices or the "gay community," are primarily motivated in their opposition to gay marriage because the word "marriage" has a pretty consistent history for several thousand years in our culture, and almost all the cultures which fed into our culture. It should not be redefined by a mere 51% support of the populace, and certainly not by judicial fiat.

So I say, take the civil union deal while you continue laying the ground work for long-term success. That route has much better odds of long-term political victory. Repeated voting on the SAME THING over and over, year after year, is not likely to wear people down. No, that's more likely to cause people to get fed up with the movement and its demonstrated contempt for anybody who opposes them on this political issue.
11.5.2008 3:44pm
Nate in Alice:
Dale,

Are you disappointed with Obama for his tepid support of the No on 8 campaign?

With such a landslide, it appears that he wouldn't have been hurt doing a last-minute ad geared specifically towards African-American voters. In some odd sense, he is responsible for this, as the increased turn-out among that constituency is what put Yes on 8 over the 50 percent mark.
11.5.2008 3:45pm
Answerer:
Questioner: Community property rights/protections, for one.
11.5.2008 3:48pm
Thomas_Holsinger:
I checked out some of the pro-Pop. 8 ads. I voted against it and Prop. 22. And I didn't have a dog in this fight - I generally vote no on initiatives.

IMO some of the issues raised in the pro-Pop. 8 ads are legitimate. Judicial action is not an effective subsitute for the political process in fashioning compromises between competing groups.

Proponents of gay marriage in California should examine the issues raised by the proponents of Proposition 8 and consider how to address those concerns if they ever want to have gay marriage in California. Bad-mouthing those concerns and the people who have them is not a winning technique.

You can work towards your goals or whine about the injustice of the universe.
11.5.2008 3:48pm
tim maguire (mail):
I remember the last time a host of states had anti-marriage initiatives. I knew that gay marriage was goign to lose in most but not all, but still I was shocked at the margin of the losses. 4% is a moral victory. Sure, moral victories are for losers, but recognition is inevitable. When, not if.

It will have more ligitamacy if it is done by the ballot rather than by the judge and so in my opinion the ballot is the better option even if it takes longer.

But when will gay groups wake up and realize that the Democratic position on gay marriage is no different than the Republican position and neither party will change so long as gay votes are guaranteed to one party over the other? There is no better way to get your issue recognized than to make them work for your vote.
11.5.2008 3:48pm
MisterBigTop (mail):
As a gay republican who is also pro-life, I have to admit that there was almost nothing good about yesterday's election. Gay marriage bans passed, abortion laws defeated, Democrat wins in Congress, and four years of Obama. The only positive will be if that blowhard Al Franken gets defeated in his bid to become a Senator. It's a very close race. A recount seems likely.
11.5.2008 3:49pm
Seamus (mail):
Ron Paul had this one right. It's not up to the government to define marriage. Let the government sanction civil unions (for all, not just gays) and let people call their union what they want.

That's all very fine, but let's get down to the nitty-gritty: what couples are allowed to file joint income tax returns (effectively allowing those with great disparity in income to lower their taxes)?

Conversely, which ones will be required to file under the onerous "'married' but filing separately" status if they can't get the other half of the couple to agree to file jointly?
11.5.2008 3:49pm
Rod Blaine (mail):
I guess if you're a fiscally conservative, gay libertarian, there was little consolation anywhere on Tuesday.
11.5.2008 3:51pm
Seamus (mail):
I can't say that I've ever seen a good answer to this question:

What benefits are there to being married that cannot be set up through other legal means, such as wills and powers of attorney?


I think I just answered your question. There's no way an unmarried couple can qualify for joint income tax filing status.
11.5.2008 3:51pm
Sweating Through Fog (mail) (www):
This will be challenged in the CA courts, and the courts will rule that it is not a valid amendment, or that it means something other than its plain text. The state constitution means only what the court says it means, regardless of what the voters think. The courts are determined to have their way in this matter.
11.5.2008 3:51pm
Maciej Stachowiak (www):
Questioner: some of the privileges of marriage cannot be contracted, for example potentially favorable federal income tax treatment by filing jointly. However, one important aspect of marriage is that it provides the appropriate bundle of mutual rights and responsibilities by default, even for those rights that you could contract separately. That is a big deal in itself.
11.5.2008 3:51pm
Preferred Customer:
Questioner:

Are you married? Do you plan on getting married? If so, what advantages does marriage have over using other legal means, such as wills and powers of attorney?

From a psychology and values standpoint, marriage is a show of commitment, both to yourself and to the world at large, that is impossible to replicate. Saying "this is my wife" has a deep and immediate meaning that cannot be duplicated by saying "this is my life partner, with whom I have a variety of legal arrangements including trusts, wills and powers of attorney."

From a practical standpoint, marriage is a relatively easy and streamlined process that allows couples to make a commitment to one another without a lot of transaction costs. Setting up individual legal arrangements to mimic marriage would be vastly more time consuming and expensive.

I'm sure there are other answers, but those are the ones that popped into my head.
11.5.2008 3:51pm
tim maguire (mail):
Questioner, what it is called does matter. Remember "seperate but equal"? Civil Unions is seperate but equal. With marriage as with military service--gays will not be full citizens until they are allowed full participation in society (and yes, a great many want just that--to marry and/or to serve). Semantics are powerful.
11.5.2008 3:52pm
R Gould-Saltman (mail):
Questioner:

there's a clear answer, which the State of California can do nothing about, by itself: all the rights reserved to "spouses" under Federal law, which cannot be conferred by contract, civil union, or domestic partnership. These include rights to an interest in various employee benefits under any plan governed by ERISA, joint bankruptcy filing rights, and certain tax benefits.

It's my impression that the intention of the litigants in the Marriage Cases, other than symbolic (which I do not gainsay) were to put California SS couples in a position such that IF the Federal Defense of Marriage Act is repealed, and the Feds leave determination of who's a "spouse' to the separate states, California SS couples would be situated identically to opposite sex couples, in respect to Federal law, i.e., under state law, they'd actually be "spouses", as contrasted with their status prior to July '08, when they were "domestic partners subject to all rights and responsibilities of spouses under the California Family Code"
11.5.2008 3:52pm
Seamus (mail):
You do know how this happened, don't you? If the Dems had nominated Hillary Clinton, there wouldn't have been nearly as big of an African American turnout, and thus there wouldn't have been nearly as many yes votes on Prop. 8.
11.5.2008 3:52pm
Lighten up Kansas:
I don't know about that JohnK, Obama specifically mentioned gays last night in his speech. It's not like it's off the radar like union card checks or something more wonky... Everyone wants to see which path makes the most sense - going with judges &Consitutions, civil unions only, making marriage religion-only, etc. I don't know that anyone knows the "right" answer where both sides are satisfied.
11.5.2008 3:54pm
hawkins:

That's all very fine, but let's get down to the nitty-gritty: what couples are allowed to file joint income tax returns (effectively allowing those with great disparity in income to lower their taxes)?


There should be no such thing. Everyone should have to file individually.
11.5.2008 3:55pm
Perseus (mail):
I doubt that many people who otherwise supported gay marriage voted for Prop 8 just to smite the arrogant tyrants in black robes.

Because the state legislature has gone so far in giving domestic partnerships virtually all of the substantive legal benefits of marriage, I viewed my vote in favor of Proposition 8 precisely as a way to "smite the arrogant tyrants in black robes."
11.5.2008 3:55pm
CLD (mail):
The irony should not be lost on anyone that at a time when our country is shattering discrimination in one respect by electing an African American president, simultaneously three states (including two where Obama won--California and Florida) have voted to enshrine discrimination in another respect into their constitutions by denying same-sex couples CIVIL marriage. It is a clear reminder that our country still has a long way to go before we, as Martin Luther King once stated in his "I Have a Dream" speech, "rise up and live out the true meaning of [this nation's] creed: 'We hold these truths to be self-evident: that all men are created equal'." As a white lesbian women who has long fought for civil rights of people of color, I can only feel immeasurable pain to learn that 70% of the black voting Californians would vote for such discrimination of any other human being.
11.5.2008 3:58pm
Andrew J. Lazarus (mail):
I didn't want to say anything until the election, not wishing to demoralize the good guys, but the OP's reference to the tepid, vapid No on 8 advertising campaign says what needs to be said. You would think after the failure of the Kerry campaign or the Bill McBride Fla governor's race, liberals would have learned that you don't fight emotionally gripping ads, whether they be true or false, with airy, empty buzzwords such as "equality" and "fair". Kos's indispensible Crashing the Gate has a devastating comparison of Democratic and Republican advertising strategies in 2004. This ad campaign was fashioned (like so many liberal campaigns) by people who just don't seem to care whether they say "We tried" or "We won". Who really cares what the Teacher's Union has to say on 8? Were they in the ads to win votes, or so that the gay movement and the Teacher's Union could feel solidarity in shared defeat?

Next time, try running ads of the two-mommy and two-daddy families. Would you rather lose with those pictures, or a shot of the State Superintendent of Education?
11.5.2008 4:00pm
Glenn W. Bowen (mail):
The fact is, I'm no great fan of anything at all- but I can't for the life of me see why it won't be recognized that we all have equal protection under the law- as a married heterosexual, I have more protections than someone else who is not married, or can't be.

...and that ain't the American deal.
11.5.2008 4:00pm
Oren:
Perseus, actually the state leg. voted for full gay marriage but Arnold vetoed it. If the amendment merely restored the status-quo-ante (legislative determination), it would be a very different ballgame.
11.5.2008 4:04pm
deathsinger:
I guess the real question now is: Would changing the constitution in regards to Prop 8 be considered a revision and require a supermajority?

If so, then Prop 8 effects might last longer than 10 years.
11.5.2008 4:07pm
einhverfr (mail) (www):
Well, I suppose there are two reasons why Proposition 8 could be argued to be unconstitutional (IANAL).

The first would be if one could find some technicality in the proceedings which would invalidate the petition process. One could in essence invalidate the process by which the proposition was enacted and hence invalidate the constitutional amendment. In my state, a number of initiatives had been invalidated in the courts because the initiatives failed to meet initiative requirements.

The second would be if the state overstepped its boundaries under the US Constitution. For example, if one had a state constitutional amendment banning African-Americans from moving to the state, that would be an unconstitutional amendment to the state constitution.

If this ended up at the supreme court, my immediate thought would be that the only justice who seems unconditionally opposed to homosexuality is Scalia (Read Thomas's dissent in Lawrence where he finds the sodomy law Constitutional, but "a waste of ... law enforcement resources" and "uncommonly silly"). One can't rely on fears of gays to drive the other 8 justices. Instead it would be a matter of actually deciding it based on their interpretations of the Constitution.

It seems to me that everyone's argument in favor of Prop. 8 and DOMA is that "gays are bad." Aside from Scalia (whom one Reason.com editor suggested was the only activist judge on SCOTUS), I don't think that argument alone will have much sway with the court. I think there would have to be a clear argument for Congressional authority, even in the absence of the idea of a right to privacy.
11.5.2008 4:10pm
Shouting Thomas (mail) (www):
Gay marriage is the ultimate spoiled brat tantrum.

This is silly, childish stuff.
11.5.2008 4:12pm
Duncan Frissell (mail):
The reality is that to a very large part of the country, and even in the redest parts of the redest states, religious orthodoxy is not seen as normal and the orthodox are not seen as healthy and contributing to a society’s well-being. Whether that’s because of ideology or because of the “ick” factor or some combination of the two, it doesn’t much matter.
11.5.2008 4:12pm
Serendipity:
Is the "controversial" constitutional argument a federal challenge under Romer v. Evans? Could the argument go something along the lines of a state needn't offer marriage rights to homosexuals, but once it has done so, it cannnot then go and revoke those rights when the reason for revocation was nothing more than "animus directed at the disfavored class." Since they'd already extended domestic partnerships, it seems that the state is almost unable to make any of the usual "protecting traditional families and keeping babies from being converted" arguments I don't know how much traction it could get, but it would make some sense maybe. Everyone in the majorty from Romer is still on SCOTUS except O'Connor so it could well be 5-4 if it ever made it that far.
11.5.2008 4:13pm
William Oliver (mail) (www):
"The fact is, I'm no great fan of anything at all- but I can't for the life of me see why it won't be recognized that we all have equal protection under the law- as a married heterosexual, I have more protections than someone else who is not married, or can't be. "

As someone who fundamentally objects to gay marriage, I agree with you.

Here's the deal. For people of faith, marriage is and always will be a religious sacrament. Some faiths don't have a problem with homosexual marriage. Others do. But as long as marriage is a sacrament, however defined, forcing people to accept some *other* definition as that sacrament will be a problem.

My solution is simple. The State should not recognize marriage at all as such. It should *only* recognize civil unions. It should recognize civil unions and give them all of the recognized legal status as what are currently called marriages, but should not be called marriages.

Gays are not the only folk who are hurt by the recognition of marriage in civil society. I have two elderly aunts who have lived together for a couple of decades after their husbands died. They are civil partners in every way -- they share property, costs, power of attorney, etc.

Simply speaking sexuality should play no part in the question -- homosexual, heterosexual, or in partnerships where sexuality is simply not there.

It *can* play a part in the sacrament of marriage, depending on one's particular faith.

However, as long as people try to force *me* to adjust my concept of a sacrament to fit *their* needs, I will oppose it.

The problem is that the flip side is just as valid -- I should not be in a position to tell *others* that my concept is the only valid one.

The answer is to remove the construct of marriage from the civil concept of union altogether.
11.5.2008 4:13pm
Randy R. (mail):
Lazarus: You hit the nail on the head. Heck, even Ellen couldn't use the word gay, gay marriage, girlfriend, or even mention her wife's name, Portia. I guess we were all supposed to be fooled into thinking she just got married to ..... someone.

The reason the No on Prop 8 did the timid ads was because of focus groups. Well, these damn focus groups kept the Dems in the minority for years, and have consistently failed us.

Looking at the ads, you would think that all the gays in California voluntarily closeted themselves. They were nowhere to be seen. The Yes people played to everyone's fears about gays, and our side totally ignored them.

AFter having read this blog for several years and learning from supporters and opponents alike regarding gay marriage, I've learned that you have to address the issues head on. You have to spell out why it won't lead to polygamy, that sexual orientation is not a choice, that we don't 'recruit' children, that gay couples currently have children, and those children deserve to have married parents, and so on.

But instead, they couched it in terms of 'fairness' and 'equality'. Nice buzzwords that mean nothing. And by dodging the issue, it just confirms people's worst fears that we are hiding the real agenda. Can't blame them, really.

The campaign was handled horribly, and you would like after several losses, we would come up with a better strategy. We need to educate people about what homosexuality is and isn't. We have to address their worst fears, and if that means saying that homosexuality has nothing to do with beastiality, then that's what we have to do.
11.5.2008 4:14pm
rjs:
I long for the day when we can all enjoy the fundamental right of being visually aroused by our sex partners in committed relationships built on mutual self gratification. Society will never be equal until religious bigotry is banned and we force the recognition by all people of our genuine human right of sexual expression.
11.5.2008 4:14pm
Brett:
I hope, when a definitive postmortem of the Proposition 8 campaign is finally written, Gavin Newsom comes in for some richly-deserved criticism for giving the pro-Prop-8 forces that obnoxious, "Whether you like it or not!" soundbite. I know people who voted for Proposition 8 solely because of that.
11.5.2008 4:15pm
Skorri:
Thanks for this post, DC.

I hate that Prop 8 is putting such a big cloud over what is otherwise a great day. Come on, already, America. Let people stand in front of their friends and family, to dedicate their lives to the man or woman they love, and be married. A marriage is not just a bundle of civil rights -- if it were, neither side would be fighting so hard over the word. The social capital it provides will just never exist in a "domestic union."
11.5.2008 4:15pm
Pragmatist:

As a white lesbian women who has long fought for civil rights of people of color, I can only feel immeasurable pain to learn that 70% of the black voting Californians would vote for such discrimination of any other human being.

Oh, yes, because being kidnapped, enslaved, and beaten is somehow comparable to not being able to affix the title of "marriage" to your otherwise fully recognized union.

Over half the country thinks you're a sick, twisted freak and wants to protect a *word* they consider sacred from taking on that taint, and that's too much? And at the same time you still have the temerity to scorn Polygamists and other deviants?

Get some perspective.
11.5.2008 4:16pm
Roger Schlafly (www):
[PatHMV] So, as a tactical matter, why not enact "civil unions" instead of "gay marriage," with all the same rights, essentially attached to it.
That is exactly what California did. Prop. 8 leaves same-sex couples with all the same rights as marriage under state law, except that it cannot be called "marriage".
11.5.2008 4:17pm
Seamus (mail):
There should be no such thing. Everyone should have to file individually.

And should there be no such thing as community property? (Remember that joint filing status was enacted because it had been held that in community property states, each member of a married couple was effectively the recipient of half the income that the two earned together. Congress decided to give married couples nationwide the benefit of the income-splitting regime in community property states.)
11.5.2008 4:17pm
Visitor Again:
Gays and lesbians deprived of the right to same sex marriage have my sympathy. My joy over Obama's victory last night was tempered this morning by the news that Proposition 8 had succeeded. I am saddened to see hopes and dreams of equal treatment dashed. All I can say is that struggles for civil rights are usually long and hard, and we must continue to fight the good fight.

The pro-Proposition 8 commercials were filled with scurrilous claims. I have seen people interviewed on the streets repeating these claims, and my girlfriend says she heard our neighbors regurgitating them, too. These folks had swallowed the propaganda whole, although admittledly they were probably predisposed to do so. The issue is simply too charged to get a fair resolution at the moment. But our time will come.

It seems to me people who are prospective parents and people who have children whose sexual identity is not yet clear ought to be asked what they would want were their children to turn out to be gay or lesbian.
11.5.2008 4:19pm
theobromophile (www):
I do think that the end-run around the legislative process, via lawsuit, creates a backlash. The woman who is planning on challenging the constitutionality of Prop 8 may be doing more harm than good.

Agree with PatHMV regarding moving from civil unions to marriage. While civil unions have often been called the ugly stepchild that neither side wants, they would serve to, first, cement the relationship between gay couples, and then to show the world that the sky does not fall when two men get hitched. Then, you can go in the liberal direction - marriage for everyone! - or the libertarian direction - civil unions for everyone!

As an aside, one of my friends in California said that she had no idea what Prop 8 was about (aside from gay marriage). She said that it was tough to find unbiased information about it, and she heard everything from it allowing the state legislature to create gay marriage to resulting in homosexuality being taught in schools.

Perhaps the teachers' unions were responsible for the latter. Don't count on getting over the "ick" factor when your support comes from people who have control over other people's children.
11.5.2008 4:23pm
DangerMouse:
Randy:


I've learned that you have to address the issues head on. You have to spell out why it won't lead to X, that A is not a choice, that we don't Y....

But instead, they couched it in terms of P and Q. Nice buzzwords that mean nothing. And by dodging the issue, it just confirms people's worst fears that we are hiding the real agenda. Can't blame them, really.

The campaign was handled horribly, and you would like after several losses, we would come up with a better strategy. We need to educate people about what A is and isn't. We have to address their worst fears, and if that means saying that A has nothing to do with Y, then that's what we have to do.


[edited for my own purposes...]

Randy, strategically, I agree with you. I think you have to address the issues head on, to educate people about what something REALLY is, to confront the slurs of the opposition head on.

I'm not talking about gay marriage, but the strategy would be the same.
11.5.2008 4:24pm
Hoosier:
I just knew Randy would find a "gay angle" to this post!
11.5.2008 4:25pm
MisterBigTop (mail):
"I hope, when a definitive postmortem of the Proposition 8 campaign is finally written, Gavin Newsom comes in for some richly-deserved criticism for giving the pro-Prop-8 forces that obnoxious, "Whether you like it or not!" soundbite. I know people who voted for Proposition 8 solely because of that."

That's not the first time Newsom has caused problems for the gay rights movement. The activists need to be careful.
11.5.2008 4:26pm
Andrew J. Lazarus (mail):
Randy R nails it:
The reason the No on Prop 8 did the timid ads was because of focus groups. Well, these damn focus groups kept the Dems in the minority for years, and have consistently failed us.
See Kos for why the results of the focus groups are unreliable. And a shout out to Brett. You can't imagine Obama taunting people he had defeated. Which is why he is president and Newsom has reached his Peter Principle ceiling.
11.5.2008 4:26pm
einhverfr (mail) (www):
William Oliver wrote:


Here's the deal. For people of faith, marriage is and always will be a religious sacrament. Some faiths don't have a problem with homosexual marriage. Others do. But as long as marriage is a sacrament, however defined, forcing people to accept some *other* definition as that sacrament will be a problem.

My solution is simple. The State should not recognize marriage at all as such. It should *only* recognize civil unions. It should recognize civil unions and give them all of the recognized legal status as what are currently called marriages, but should not be called marriages.


I agree with that. Let's go beyond that to remarriages following a divorce. Some faiths allow this, some faiths don't. Forcing the Roman Catholic Church to recognize remarriages runs into the same problems.

In the end, marriage as a religious sacrament must remain a religious matter. If churches wish to object to same-sex, mixed-race, mixed-religion, etc. marriages (or those where one or both parties is divorced), they should be fundamentally free to do so. On the other hand, none of these should impact the legal status of people who fall outside what a specific religion or family of religions accepts.
11.5.2008 4:29pm
Happyshooter:
I think this is a big part of the pro-gay side's problem. They have burned normal folks one time too many.

When they first were all 'Keep the police out of our private bathhouses and bedrooms' I figured 'sure, that's fair'.

Without a second's thought they started doing street fairs in san fran and the tringle group in Michigan started enforcing a made-up court right to have sex in front of little kids in Meijers and rest area bathrooms. That slope wasn't slick, it was an iced sled run. The state supreme court had to step in on those cases, and the federal pro-gay judges may still give the 'right' back to them.

Now they want the right to marry and adopt little kids, that means within two years after they get the 'right' they will be demanding mandatory gay training in schools and the right to have relations with the little kids. They did it once, they will do it again.

If they had been reasonable after they won on the bathhouse/police busts, and had their bars just like the straight meat markets, but otherwise chilled out, they could have come back to society. 'Look, Ace and Lance have been together for 15 years and now that Lance is in a coma his brother who hates him is making decisions instead of the man who loves him'. They would have civil unions now.

Instead they wanted to race to the bottom in public, laugh, and give society the finger. Well, then they lose.
11.5.2008 4:30pm
einhverfr (mail) (www):

And should there be no such thing as community property? (Remember that joint filing status was enacted because it had been held that in community property states, each member of a married couple was effectively the recipient of half the income that the two earned together. Congress decided to give married couples nationwide the benefit of the income-splitting regime in community property states.)


Let's make community property applicable to common-law marriages as well!
11.5.2008 4:32pm
Perseus (mail):
Perseus, actually the state leg. voted for full gay marriage but Arnold vetoed it. If the amendment merely restored the status-quo-ante (legislative determination), it would be a very different ballgame.

I'm aware of that. But Proposition 8, unlike propositions in other states (e.g., Michigan), does not prohibit the state legislature from creating domestic partnerships or civil unions with virtually the same substantive legal benefits as marriage, which means that the fight is mainly a struggle for recognition.
11.5.2008 4:34pm
Cornellian (mail):
The Yes on 8 campaign was bankrolled by the Mormon Church in a vain attempt to purchase some "street cred" with the religious right. Considering same sex marriage has gone from basically zero support 20 years ago to about 40% support in California today I think it's an entirely reasonable prediction that SSM will be legal (once again) in California before people like James Dobson consider Mormons to be "one of us" rather than a cult useful only for things like bankrolling proposition campaigns.
11.5.2008 4:34pm
einhverfr (mail) (www):

Now they want the right to marry and adopt little kids, that means within two years after they get the 'right' they will be demanding mandatory gay training in schools and the right to have relations with the little kids. They did it once, they will do it again.


Umm...... Gays can adopt little kids..... As can single, unmarried men and women.
11.5.2008 4:35pm
Joshua Herring (mail) (www):

My solution is simple. The State should not recognize marriage at all as such. It should *only* recognize civil unions. It should recognize civil unions and give them all of the recognized legal status as what are currently called marriages, but should not be called marriages.


I COMPLETELY agree. It's hugely hypocritical that so many gay rights activists are all about state recognition for their own marriages as a "civil rights" struggle, but do not generally push for freedom in marriage across the board (say, to include polygamy, for which there is a well-established tradition). Personal relationships are none of the government's business. It is not the job of the government to stamp its approval or disapproval on the unions we freely enter into. It should merely enforce contracts. I will not support any voter initiative on marriage one way or the other that is not advocating exactly this position. Deny marriage "rights" to homosexuals, and deny them to heterosexuals too, because marriage is a derived "right" from the more general right of contract, and has no business on the law books.
11.5.2008 4:37pm
Sarcastro (www):
Happyshooter's "they" sure sounds like a zealous pervert. I hope "they" never get married.
11.5.2008 4:38pm
Happyshooter:
I'm aware of that. But Proposition 8, unlike propositions in other states (e.g., Michigan),

Michigan was kind of a special case. On the down low the biggest universities were already giving gay declarations of love that were just like marriage for students and employees for everything from insurance coverage to housing.

That hit the public just as the worst of the Triangle arguments hit here, and the voters were not happy.
11.5.2008 4:43pm
hey (mail):
The courts shouldn't be used to distort the Federal or State constitution. Lawrence, Roe, etc were all wrongly decided, and any movement that uses the courts rather than the legislature to change the constitution is fundamentally illegitimate.

I don't see a place for the state in marriage, but since those (ex DC) who support gay marriage support every horrible ting in existance, I'm opposed. The major proponents claim that to be gay you have to be marxist, just as Feminists claim that you have to be a marxist to be a woman and Jesse Jackson claims that you have to be a marxist to be black.

I'd advise DC to get allies who weren't inherently tyrannical fans of genocide and who possess some talent for politics.

Lawrence shouldn't have been pursued, legislative change in the idiotic law wsa the only right path. But now we'll get more judges who believe taht text doesn't matter, only feelings. Welcome to Mao's China!
11.5.2008 4:44pm
Crackmonkeyjr (www):
Based on the statistics you mentioned, isn't it possible that Obama's candidacy helped Prop 8? If it is true that Prop 8 was actually opposed by a majority of whites and Hispanics, but broadly supported by blacks, couldn't Obama bringing out the black vote have helped it to pass?
11.5.2008 4:46pm
Greg Q (mail) (www):
homosexuality is not seen as normal

Well, that's because it isn't. A behavior shared by only 3% of the population, by definition, isn't "normal."

and gay relationships are not seen as healthy and contributing to a society’s well-being.

And for that you can blame the pro-SSM side.

Have you written even a single post about how SSM benefits society? Not how it benefits the individuals participating in it, but how it benefits society? Has there been even one anti-SSM campaign where the pro-SSM side argued that SSM benefited society? Rather than whining about non-existent "rights" being "violated"?

(You want to claim it's a right, you have to say where the right came from. The Constitution? Fine. When did the voters knowingly place that "right" in there? Because if they didn't, then it's not there. God? Why is your God more important than the God of those who disagree with you?)

Homosexuals have the exact same marriage rights as heterosexuals: You can marry an unrelated and unmarried individual of the opposite sex who's more than a certain number of years old.

Whether or not you love them is not part of the legal definition of a marriage. If it was, none of those Russian mail-order brides could marry their American husbands.


Do you want SSM? Really? Is SSM more important to you than pushing the gay agenda (by that I mean pushing the lie that homosexuality is normal)?

Because Prop 8 won because it's supporters made some good points. The majority of parents don't want their kids reading "King and King" in school. They don't want to have discussions about homosexuality with their 12 year olds, let alone their 6 or 8 year olds.

Are you willing to "leave them alone", in exchange for getting SSM? Are you willing to let them believe that homosexuality is wrong, and teach that to their kids, so long as you can have SSM?

"Live and let live" goes both ways. The "homosexual rights" community hasn't been willing to accept that. You haven't been willing to let those who disagree with you keep their beliefs, and not be assaulted by the State over them.

Until you're willing to do that, you're going to keep on losing, and deserve to keep on losing.
11.5.2008 4:48pm
Denitsa (www):
That's very unfortunate. I really can't understand what the problem with gay-marriages is in the "public mind". They are living together already, having sex, having kids, having a decent family in all senses. If they can do all of that, why can't they marry?
Not to mention that I don't understand marriage at all. But even if I did, marriage is supposed to be a sacred union between souls, shouldn't it be only the soul's business?
11.5.2008 4:48pm
Happyshooter:
"they" sure sounds like a zealous pervert. I hope "they" never get married.

It is weird when we agree. "Someone you know and love is gay" doesn't fly when the Folson Street Fair hits the news.

Side story. A few years ago in Michigan in Dearborn (very arab area) a school kid showed up for class with the "Bush, wanted terrorist war criminal" tee on. The school kicked him out.

The media went running to some imam leader trying to get a good 'censorship is evil, America stinks quote', and he gave them "Good, punish the kid. A school is for learning, not making statements against the president."

What could have been nasty faded away quickly.
11.5.2008 4:49pm
Tpaul11:
Proposition 8 won because the American people do not want to see the institution of marriage forever altered and destroyed. In Kalifornia homosexuals have every single right of marriage. Yet this isn't enough. They want the word "marriage." They want governmental and societal approval of their behavior and relationships. They believe that by getting the title "marriage" they can then use government force to make the rest of society fall into line with their agenda.

Many Americans would be more than happy to give homosexuals the benefits of marriage. They just don't want the word marriage hijacked.

The fact that homosexuals keep waging this fight shows that the real battle is over the word. They don't want to accept that marriage is a unique institution. They don't want the word "marriage" to refer to the union of a man and woman who come together to bring new life into the world.

If the American people are more than happy to give you people "domestic partnerships" you should be content to leave the word "marriage" alone.
11.5.2008 4:53pm
Andrew J. Lazarus (mail):
A behavior shared by only 3% of the population, by definition, isn't "normal."
Next election, an initiative to ban Left-Handed People Marriage.

(OK, they're about 8 percent, but if Greg Q can explain to me where the magic cut-off is, I'll replace this comment with another snark that meets his standards.)
11.5.2008 4:54pm
MNPundit (mail):
I'm hard left.

I have to agree with the end of state-sanctioned marriage. Civil Unions for all, marriage if you want to go to a church but legally to the state, it means nothing.

That said, personally I do find homosexuality "icky." But heteros like me are just as icky and frankly, I find lots of things icky (speaking in tongues, etc.) but that doesn't mean they should be outlawed. As in the post above, I am in the 18-29 group that doesn't get why marriage for gays is a big deal.

If at some point the gay population gets so large that it starts interfering with the ability of the human race to perpetuate itself, we'll need to take a second look but there's no danger of that now!
11.5.2008 4:56pm
Freedom!:
Justice Zarella had it right in CT:

ZARELLA, J., dissenting. The majority concludes that
the marriage laws,1 which define marriage as the union
of one man and one woman,2 classify on the basis of
sexual orientation, that this classification is subject to
intermediate scrutiny under article first, §§ 1 and 20, of
the Connecticut constitution, as amended by articles
five and twenty-one of the amendments,3 and that, under
this heightened level of review, the state has failed to
provide sufficient justification for limiting marriage to
one man and one woman. The latter conclusion is based
primarily on the majority’s unsupported assumptions
that the essence of marriage is a loving, committed
relationship between two adults and that the sole reason
that marriage has been limited to one man and one
woman is society’s moral disapproval of or irrational
animus toward gay persons. Indeed, the majority fails,
during the entire course of its 129 page opinion, even
to identify, much less to discuss, the actual purpose of
the marriage laws, even though this is the first, critical
step in any equal protection analysis. I conclude, to the
contrary, that, because the long-standing, fundamental
purpose of our marriage laws is to privilege and regulate
procreative conduct, those laws do not classify on the
basis of sexual orientation and that persons who wish
to enter into a same sex marriage are not similarly
situated to persons who wish to enter into a traditional
marriage. The ancient definition of marriage as the
union of one man and one woman has its basis in biology,
not bigotry. If the state no longer has an interest
in the regulation of procreation, then that is a decision
for the legislature or the people of the state and not this
court. Therefore, I conclude that the equal protection
provisions of the state constitution are not triggered. I
further conclude that there is no fundamental right to
same sex marriage. Accordingly, I dissent...

In my view, the state’s interests in promoting and
regulating procreative conduct are legitimate. Indeed,
they are compelling. I further believe that limiting marriage
to one man and one woman is rationally related
to the advancement of those interests. First, the state
rationally could conclude that ‘‘[t]he power of biological
ties means that heterosexual families are most likely
to achieve stability and successfully perform the childrearing
function.’’ A. Wax, ‘‘The Conservative’s Dilemma:
Traditional Institutions, Social Change, and
Same-Sex Marriage,’’ 42 San Diego L. Rev. 1059, 1077
(2005). Second, and relatedly, the state rationally could
conclude that children do best when they are raised by
a mother and a father, a belief that finds great support
in life experience and common sense.20 See K. Young &
P. Nathanson, ‘‘Marriage a´ la mode: Answering the
Advocates of Gay Marriage’’ (2003), available at http://
www.marriageinstitute.ca/images/mmode.pdf.21 This
belief does not denigrate the parenting abilities of same
sex couples but merely recognizes that a high level of
individual parenting ability is no substitute for having
both a mother and a father. Third, the benefits and social
status associated with traditional marriage encourage
men and women to enter into a state, namely, long-term,
mutually supported cohabitation, that is conducive both
to procreation and responsible child rearing on the part
of the biological parents.22 I acknowledge that these
rationales, although supported by experience and common
sense, are fact based and are open to debate. The
burden is on the plaintiffs, however, to establish why
none of these reasons provides a conceivable basis for
the deeply rooted societal preference for families with
a mother and a father.
The plaintiffs rely on several sociological studies that
have concluded that ‘‘children of same sex parents are
as healthy, happy and well adjusted, and fare as well
on all measures of development, as their peers.’’ These
studies, however, are far from conclusive.23 Moreover,
‘‘[t]he story of the controversy surrounding out-of-wedlock
childbearing . . . illustrates the point that knowledge
often comes too late. There is a necessary lag
between the instigation of a social change and the generation
of persuasive evidence on its ultimate effects.’’
A. Wax, supra, 42 San Diego L. Rev. 1087. Thus, it is
entirely reasonable for the state to be cautious about
implementing genderless marriage, the long-term
effects of which cannot be known beforehand with any
degree of certainty.
The plaintiffs also contend that procreation has
‘‘[n]ever’’ been the purpose of marriage. (Emphasis
added.) In support of this startling claim, the plaintiffs
note that opposite sex couples who choose not to procreate
or who are incapable of procreating are not and
never have been prohibited from marrying. Even if the
institution of marriage is overinclusive, however, ‘‘[a]
[s]tate does not violate the [e]qual [p]rotection [c]lause
merely because the classifications made by its laws are
imperfect. If the classification has some ‘reasonable
basis,’ it does not offend the [c]onstitution simply
because the classification is not made with mathematical
nicety or because in practice it results in some
inequality. . . . The problems of government are practical
ones and may justify, if they do not require, rough
accommodations—illogical, [though] it may be, and
unscientific.’’ (Citation omitted; internal quotation
marks omitted.) Dallas v. Stanglin, 490 U.S. 19, 26–27,
109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989); see also Vance
v. Bradley, 440 U.S. 93, 108, 99 S. Ct. 939, 59 L. Ed. 2d
171 (1979) (‘‘[e]ven if the classification involved . . .
is to some extent . . . overinclusive, and hence the
line drawn by [the legislature] imperfect, it is nevertheless
the rule that . . . perfection is by no means
required’’ [internal quotation marks omitted]).
I also would note that married couples who choose
not to procreate can change their minds. In addition,
until very recently, the nature and causes of infertility
were not well understood and it was impossible to
predict with certainty whether a marriage that appeared
to be barren ultimately would prove to be so. Under
such circumstances, the requirement that a married
couple consist of one man and one woman was the
requirement that the couple be able to procreate.24 In
any event, requiring proof of intent and ability to procreate
prior to—and, presumably, during the course of—
marriage would entangle the state in procedures that
are grossly intrusive, ever-changing and counterproductive.
‘‘Marriage’s social role does not rest on any ironclad,
exceptionless demand that all couples actually
achieve the optimum arrangement. Nor does the channeling
function require the elimination of all relationships
that fall short of the ideal [of procreative
marriage]. After all, adhering to an airtight rule [that a
couple must be willing and able to procreate in order
to marry] would itself entail costs and intrusions. Such
adherence would fail to accommodate the untidy,
unpredictable nature of male-female relationships and
the imperfect state of knowledge that prevents infallible
prediction about biological functioning.’’ A. Wax, supra,
42 San Diego L. Rev. 1078–79.
The plaintiffs further claim that a state policy based
on a belief that marriage between one man and one
woman promotes responsible procreation is precluded
both by the civil union law, General Statutes § 46b-38aa
et seq., and by General Statutes § 45a-727a (3), which
provides that, for purposes of adoption, ‘‘[t]he best
interests of a child are promoted when the child is part
of a loving, supportive and stable family, whether that
family is a nuclear, extended, split, blended, single parent,
adoptive or foster family . . . .’’ Specifically, the
plaintiffs contend that, because ‘‘the civil union law
provides the same state based legal protections and
obligations with respect to children for same sex couples
as for married couples,’’ and because § 45a-727a (3)
evinces ‘‘a legislative policy that family configuration is
not a relevant factor in determining the best interests
of children . . . any proffered issue related to the welfare
of children must be legally irrelevant as a reason
that the state denies marriage to same sex couples.’’ I
am not persuaded. I see no reason why the state rationally
could not continue to promote the public’s vital
interest in responsible procreation by limiting marriage
to opposite sex couples while enacting a civil union
law in recognition of the legitimate interests of same
sex couples.25 In other words, the state reasonably could
believe that limiting marriage to a man and a woman
accomplishes vital social goods, while the institution
of civil union promotes the legitimate interests of those
who enter into it. Recognition of the latter private interests
does not necessarily entail abandonment of the
former public interests.
With respect to the adoption laws, the legislative history
of § 45a-727a (3) indicates that the statute was
intended to address the situation in which ‘‘a person
already sharing parental responsibility for a child [is
prevented] from adopting a child even when absolutely
everyone involved agrees that such an adoption would
be in the best interest of the child.’’ Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 9, 2000 Sess., p. 2773,
testimony of Reverend Mark Santucci; see also id., p.
2864, testimony of Representative Patrick Flaherty
(‘‘[t]he bill makes it possible for a child who has one
parent to be adopted by a second person who shares
parental responsibilities for that child’’).26 The state reasonably
could recognize that ‘‘[t]he best interests of a
child are promoted when the child is part of a loving,
supportive and stable family’’; General Statutes § 45a-
727a (3); regardless of the sex of the child’s statutory
and adoptive parents, while rationally concluding that
the ideal family consists of both a mother and a father.
In other words, if the choice is between one parent and
two parents, there is no reason for the state ever to
prefer one parent. If the choice is between two same
sex parents and two opposite sex parents, however,
there are reasons for the state to promote the latter.
Indeed, General Statutes § 45a-727a (4) expressly provides
that ‘‘the current public policy of the state of
Connecticut is now limited to a marriage between a
man and a woman.’’ The inclusion of this provision,
which defines the state’s policy regarding the best interests
of a child, in the adoption statutes clearly indicates
that the legislature believes that limiting marriage to
one man and one woman is in the best interests of
children as a class.27 This conclusion is further supported
by General Statutes § 45a-727b, which expressly
provides that ‘‘[n]othing in . . . section . . . 45a-727a
. . . shall be construed to establish or constitute an
endorsement of any public policy with respect to marriage,
civil union or any other form of relation between
unmarried persons . . . .’’ In addition, General Statutes
§ 45a-726a provides in relevant part that ‘‘[n]othing
in th[at] section shall be deemed to require the Commissioner
of Children and Families or a child-placing
agency to place a child for adoption or in foster care
with a prospective adoptive or foster parent or parents
who are homosexual or bisexual.’’
The plaintiffs also contend that the state could not
rationally conclude that extending marriage to same sex
couples would prevent procreation and child rearing by
opposite sex couples. I agree with the plaintiffs that
it is doubtful whether any state policy could entirely
prevent men and women from procreating. As I have
indicated, however, the state could rationally conclude
that honoring and privileging marriage between one
man and one woman as the ideal setting for procreation
is conducive both to procreation and to responsible
child rearing, and that redefining marriage to be a loving,
committed relationship between two adults could
have a significant effect on the number of opposite sex
couples who choose to procreate and raise children
together. See footnote 15 of this opinion.
Finally, I address the plaintiffs’ claim that, even if
there once was a link between procreation and marriage,
such a link was based on sexual stereotypes and
other outdated notions about the nature of family life,
and such notions are no longer viable in light of the
‘‘steady legal, sociological and economic developments
since the late nineteenth century . . . .’’ They contend
that ‘‘[m]arriage is now an institution of legal equality
between . . . two parties whose respective rights and
responsibilities are equal, mutual and reciprocal. The
state’s astonishing insistence on resurrecting legal
restrictions that pigeonhole individuals . . . on [the
basis of] broad generalizations about sex roles flies in
the face of rudimentary sex discrimination law.’’ It is
undisputed that the role of women in public and economic
life has increased dramatically in the last century
and that women have achieved an unprecedented
degree of equality with men in our nation. That does
not mean, however, that the procreative roles of men
and women have changed or that there is no distinction
between the parenting roles of men and women.28
In any event, even if the plaintiffs were correct that
procreation is no longer at the center of the institution
of marriage, that would not help them. As I have indicated,
the reason that marriage between one man and
one woman historically has had a privileged social status
and has been considered a constitutionally protected
fundamental right has been society’s special
concern with procreative conduct. If the link between
marriage and procreation were destroyed, then the elevated
social and constitutional status of marriage in our
society also would be destroyed, and marriage would be
nothing but a set of statutory rights and obligations,
which is exactly what civil union is. In that case, the
trial court would have been correct to conclude that
the difference between the two institutions was merely
a matter of nomenclature.
Accordingly, I reject the plaintiffs’ claim, and the
majority’s conclusion, that redefining marriage to
include same sex couples takes nothing away from the
institution. See part VI E of the majority opinion (redefining
marriage ‘‘would expand the right to marry without
any adverse effect on those already free to exercise
the right’’ [emphasis in original]). The redefinition of
marriage takes away society’s special concern with the
institution as one involving the great societal risks and
benefits of procreative conduct. The majority’s reliance
on Loving v. Virginia, supra, 388 U.S. 1, in support of
its conclusion to the contrary is entirely misplaced. See
part VI E of the majority opinion (recognizing right to
same sex marriage ‘‘[will] not disturb the fundamental
value of marriage in our society and . . . will not
diminish the validity or dignity of opposite-sex marriage
. . . any more than recognizing the right of an individual
to marry a person of a different race devalues the
marriage of a person who marries someone of [his or]
her own race’’ [internal quotation marks omitted]),
quoting Goodridge v. Dept. of Public Health, supra,
440 Mass. 337. The laws criminalizing miscegenation
intruded on the fundamental right to procreate, and the
constitutional prohibition against this intrusion recognizes
and enhances the special status of procreative
conduct. Redefining marriage to include same sex couples
has no such purpose or effect.
11.5.2008 5:00pm
A.S.:
This is especially true among blacks, some 70% of whom voted for Prop 8 yesterday.

Really? Wow.

I can't help but think that Barack Obama could have really made a difference if he had actively supported the "no" campaign and encouraged blacks to vote differently.
11.5.2008 5:00pm
Hoosier:
(OK, they're about 8 percent, but if Greg Q can explain to me where the magic cut-off is, I'll replace this comment with another snark that meets his standards.)

The cut-off is 6.313%. I'm surprised that you don't know that.
11.5.2008 5:03pm
mejmc (mail):
Think of it this way. The pro-8 mob pulled out every stop and raised every dollar they could, yet the best they got for all that enormous effort was 52%. Today in California there are some 18,000 married same-sex couples whose marriages will continue to be valid indefinitely; there are many others in domestic partnerships; the partnership law that is effectively marriage remains intact. We didn't win, but we didn't lose. The other side lost--they lost a full 9% of their supporters since Proposition 22. They're down to their last 2%, and their biggest demographic group by age--the old folks who want to rule from the grave--shrinks daily. They may be impervious to decency, fairness, and reason, but time is inexorable and mortality will settle the argument in our favor eventually. We must play the Romans to their Hannibal: never give up until the enemy is utterly defeated!
11.5.2008 5:07pm
Hoosier:
A.S.

I think you're right. With this issue, as with evolution, Obama's stronest demographic is on "the other side," and in significant numbers.

Could an Obama supporter on VC point me to any statement that he made during the campaign about evolution/creation? Not meaning to be snarky, honestly. I just never heard him say anything on this issue. Even when the question came up regarding Palin. I couldn't say that I know for certain what his church taught on evolution, if anything.

The assumption has been, I suppose, that a guy who went to two Ivies believes in evolution. But when I was asked about this by a friend recently, I had to admit that I have no evidence that Obama is an evolutionist. Just a presupposition.

We know from his comments in one debate that he is not a supporter of SSM rights. What about the other issue?

Any takers?
11.5.2008 5:09pm
Hoosier:
Anectdote regarding the previous post: The closest friend I have who is both black and Evangelical is off work today celebrating Obama's victory in Chicago.

Yet she will not allow her gay nephew in her home. And she can't believe that a Catholic like me can believe in evolution and yet profess to be a Christian. (The Pope believes in evolution. But I wouldn't expect that to be an argument in favor of evolution in her book. God love her.)
11.5.2008 5:13pm
Ming the Merciless Siamese Cat (mail):

"I saw firsthand an angry and ugly underbelly of the opposition to gay marriage. I . . . had the Bible cited to me more than once."


The horror. The horror.
11.5.2008 5:18pm
Lemmy Caution (mail):
The question has been asked, what benefits accrue to the married that can't be granted to domestic partners?

One very big one is the ability to have a foreign-born spouse enter the country as a resident. Along with tax status, it is something that no hodge-podge of contracts can grant, and it has affected the lives of many people I know, including one of my closest friends, a woman whose relationship ultimately collapsed after 4 years of trying to bring her partner into the US.

Not that state-awarded marriages can do anything about that, but it would have been an important step, instead of a step back.

I am not contemptuous of those who voted for the other candidate, or for those who voted differently than me on dozens of other issues. I am contemptuous of those who voted for Proposition 8, as contemptuous as I would be of an avid segregationist.
11.5.2008 5:20pm
Randy R. (mail):
"Proposition 8 won because the American people do not want to see the institution of marriage forever altered and destroyed."

You mean, like how it is destroyed in Massachusetts, Canada, Spain, and Belgium, among other places?

Last I checked, it's doing quite fine there.
11.5.2008 5:22pm
Gatito:
On this whole question, I have never seen a good historical treatment. The incorporation of marriage into the legal system of European countries seems to have been the work of canon law. In Roman times, marriage was a purely cultural institution; there was no law of marriage, and divorce was as consensual as marriage itself.

The hedging about of marriage with law, and its subjection to judicial process, was the work of the Church, and advanced little until the second millenium, when canon law took off as a full blown legal system.

In England, there was no secular law of marriage at all until Lord Hardwicke's Marriage Act of 1753, which required that there be a ceremony and registration. Before that date, nothing. From that date on, at least until the end of the century, very little: no divorce courts, for example.

As far as I can tell, the revolutions in Europe starting with the French resulted in an aping of the canon law of marriage by the various state legal systems. Until then, there was no such thing as a civil marriage.

Somehow -- a big gap in my understanding of the story -- these English and continental developments got imported piecemeal into the newly formed American states, during the nineteenth century.

In view of how recent and ad hoc this has all been, shouldn't we be asking ourselves whether, under the circumstances of today, it would be better just to undo the whole thing, and treat marriage as the Romans did? Leave it alone as a customary, voluntary affair, and have the state merely enforce child protection and support? Any property consequences could be handled by contract between the parties, as each couple chose to do or not do.
11.5.2008 5:25pm
Greg Q (mail) (www):
That's very unfortunate. I really can't understand what the problem with gay-marriages is in the "public mind". They are living together already, having sex, having kids, having a decent family in all senses. If they can do all of that, why can't they marry?

Well, if they're "having kids" together they're pretty clearly not part of an SSM.
11.5.2008 5:26pm
Pliny, the Elder (mail):
When the United States forced Utah to ban polyamorous marriages, was that based on religion of the ick factor?
11.5.2008 5:28pm
Thomas_Holsinger:
The proponents of gay marriage here are conspicuously failing to reach out to the other side to address their concerns about Chief Justice George's mistaken ruling forcing lots of things beside SSM down their throats.

This is pretty good evidence that their real objective is social approbation and not the direct benefits of SSM.

I also predict that professional fund-raisers will take over the issue and its lucrative fund-raising apparatus to keep the hoo-raw going as an income opportunity for them. The last thing these guys want is a compromise which would cut off their income.

Proponents of SSM would be wise to rely only on volunteers to keep the suits from taking over. I fearlessly predict that this advice will not be taken, and that gay rights/SSM groups will be dominated by their paid fund-raisers.
11.5.2008 5:31pm
glenalxndr:
"If the campaign had frankly presented the case for gay families and marriage we would have lost yesterday by a much larger margin."

There's your answer. If you keep pushing to redefine marriage into meaninglessness, then change will indeed be a long time coming.

Clearly, most people in California didn't see Prop 8 as a civil rights issue — despite having the explicit help of Jerry Brown, Barack Obama, the National Democratic Party, and millions of dollars of advertising.

What's wrong with state-recognized civil unions that have exactly the same privileges and protections as marriage?
11.5.2008 5:34pm
Greg Q (mail) (www):
Andrew J. Lazarus and Hoosier:

Are you always this poor at reading comprehension? Or is it just logic you're failing at?

Because, as my post made pretty clear (see the whole "do you really want SSM" part), the issue is not "you're not normal, therefore you can't get married."

The issue is that the "homosexual rights" community agenda is "you must treat us as if we are normal", and has used SSM in MA to advance that agenda, and would have used SSM the same way in CA.

Which is to say, they would have used SSM as another way to trample over the right of people who disagree with them to disagree with them.

BTW, "not normal" doesn't necessarily equal "wrong" or "bad". I've never been a "normal" individual, and I'm usually quite happy about that. I don't object to people just for being "not normal".

I do object to them trying to force a lie on other people.
11.5.2008 5:37pm
Gilbert (mail):
Hopefully now no one will have to endure those absurd arguments that for purposes of protected class definition homosexuality is not politically powerless.

And Happyshooter,


Now they want the right to marry and adopt little kids, that means within two years after they get the 'right' they will be demanding mandatory gay training in schools and the right to have relations with the little kids. They did it once, they will do it again.


That's perfectly absurd and you know it. Homosexuality does not lead to pedophilia. You want to justify denying equality to people based on crimes they never committed. That is just grotesque.

What exactly you mean by "they did it once, they will do it again," I can't pretend to understand.
11.5.2008 5:38pm
Paul B:
First of all, I would say that Prof. Carpenter's analysis of the politics of Proposition 8 is the most professional and clear sighted analysis I've read. One factual mistake that is in his piece and that has been mentioned elsewhere at this site today is the claim that it was only African Americans who voted heavily against the initiative. Take a look at the California Secretary of State's web site and you'll see that the most heavily Hispanic counties (e.g., Imperial on the Mexican border) had some of the highest no percentages. Even liberal Los Angeles County supported Prop 8. Anyone who thinks the continuing decline in the African-American population share in CA (which already is the smallest of the 10 largest states) will solve the election issue is deluding themselves.

I'm not a campaign manager so I hesitate to say that the strategy chosen by the No campaign was wrong, but every time I saw their ads (which far outweighed the Yes spending-stop with the 'Mormons bought the election' crap), I felt they were insulting the intelligence of the viewer, that we weren't smart enough to figure out that the issue was gay marriage. Maybe this strategy works with complex matters on health insurance, tort reform, alternative energy programs etc., but for something as simple and understandable as whether same sex couples should have the same opportunity for marriage as the rest of us, a little more honesty and directness might have made a difference.

Senator Obama had a different priority yesterday than the No on 8 campaign, so I understand him saying "I'm opposed to gay marriage but I oppose Proposition 8." The leaders of No on 8 have no excuse for their too clever by half message
11.5.2008 5:43pm
voter (mail):
I didn't have exceptionally strong feelings on Prop 8, but supported it through GOTV efforts. I take exception to the characterization of Prop 8 supporters:

"While I got an overwhelmingly favorable reception [as Dale Carpenter promoted No on 8], not surprising for the Bay Area, I saw firsthand an angry and ugly underbelly of the opposition to gay marriage."

People officially promoting Prop 8 were repeatedly told to engage in disrespectful behavior. Are you part of the group that calls anyone who didn't vote for Obama racist just because there are some racist people out there?

The reality is that it was the No on 8 supporters that were angry and ugly. I stood out on streets holding signs too. Wow, so you got called a "sicko". I've never been cursed at so violently in my life. I've also never had objects thrown at me from moving vehicles before. And we aren't trying to force our values on homosexuals. It is they who are trying to force their values on what is, at least at the present time, the majority of our society.

Calling this a civil rights issue is also absurd. So will you be fighting for the rights of polygamists, too? What about siblings who want to marry, or people who want to marry their children? What about marrying a child? What about an animal? There's an ick factor in all of these, too, because it goes against popular morality. So does homosexuality. It is 100% a moral issue.

With the direction moral values are going in this country, I'm sure your (lack of) values will prevail. But your movement deserves the defeat it got when it force its values--3% of the population--on everyone else through a court ruling rather than the legislative process.
11.5.2008 5:52pm
voter (mail):
OOPS! That should read "repeatedly told ***NOT*** to engage in disrespectful behavior."
11.5.2008 5:55pm
Thomas_Holsinger:
voter,

The downside of Proposition 8 is, AFAIK, that it can be changed only by election as opposed to legislation. Legislation allows compromise. The initiative/referendum process does not allow for compromise, just as Chief Justice George's opinion did not. Those are just zero-sum games.

The closeness of the vote on Proposition 8 shows that SSM would have come wihtin a few years had Chief Justice George not fatally over-reached. As it is, IMO we're now looking a generation away to SSM.

Because the proponents of SSM will be dominated by their fund-raising apparatus who will go to any extreme necssary to avoid a compromise which would cut off their income.
11.5.2008 6:14pm
whit:

What benefits are there to being married that cannot be set up through other legal means, such as wills and powers of attorney?



the right to speak freely to your spouse without fear that same spouse can be forced to be a witness against you based on your admissions to her.

you can't create that right in any way i am aware, unless your "partner" also happens to be your attorney.

also, i am not aware of the law in CA, but in WA state, one need not have consent to have sex with one's spouse. iow, it's implied in cases of extreme intoxication, etc.

in cases of the unmarried, sex w/o consent is (technically) rape. in cases of the married, it must be AGAINST consent in order to be rape.

that's two quick examples.
11.5.2008 6:16pm
BillfromSacto (mail):
Very thoughtful post. Thank you Professor Carpenter for this and your other posts. The passage of Prop. 8 is one of the most disappointing moments of my 54 years. I think it's hard for nongays to comprehend, but the legalization of gay marriage by our state Supreme Court meant we were finally first class citizens under the law. My middle-aged friends and I were thrilled that we finally had this right. I found it hard to get my mind around it after a lifetime of learning to live with second class status. I think you are correct that we lost under very favorable conditions and will not see these circumstances again for a long time. Thanks again for your insight and efforts.
11.5.2008 6:20pm
Andrew J. Lazarus (mail):
Greg Q, I think you have to choose between "It's OK to be not-normal" and "Only normal people can get married".

Even, BTW, if we agree that homosexuality is "not normal" in some sense, how do you get from that to not being allowed to marry?
11.5.2008 6:23pm
John D (mail):
Reading through the comments, I find the assertion that California Domestic Partnerships are identical to marriage.

Perseus claimed:
the state legislature has gone so far in giving domestic partnerships virtually all of the substantive legal benefits of marriage


Roger Schlafly claimed:

Prop. 8 leaves same-sex couples with all the same rights as marriage under state law, except that it cannot be called "marriage".


Let me make this clear: domestic partnerships are not equal in their rights to marriage. The court noted a number of substantial differences between the two. Domestic partnerships are separate and unequal (as so often happens when things are made separate).

I suspect the Prop 8 backers would object if the California Legislature offered a bill that gave all the same rights to same-sex couples under a parallel institution. We would hear that they were creating "marriage under another name, against the will of the people of California." We've heard that argument before from Prop 22 Defense Fund (essentially the same people), and that was when domestic partnerships were even more strongly differentiated from marriage.
11.5.2008 6:24pm
whit:

That said, personally I do find homosexuality "icky."


i find male homosexuality icky, but support gay marriage. i think female homosexuality, as long as they are hawt, otoh, to be intriguing. ime, any hetero male who claims otherwise about the latter point is probably lying :)

fwiw, i also find the idea of grossly obese people having sex, or seeing them in public in tight clothes to also to be "icky".

frankly, the visual of a grossly obese man and woman having sex is ickier to me than two (fit) men doing so.

I am not proposing any laws against any of these behaviors though.

otoh, i find the idea of a parent having sex with their child, or siblings having sex with each other to be icky, and DO think it should be illegal. does that make me an incestophobic bigot? if so, fine with me. i admit it. i'm an incestophobe.

i can find no compelling reason to outlaw incest (spare me the birth defect argument - that wouldn't work with same sex incest, for instance), EXCEPT the ick factor.

and that's good enough for me.
11.5.2008 6:26pm
einhverfr (mail) (www):
How can one be a libertarian and support state-sponsored sexual preference?

By this I mean as follows: I am heterosexual and married. If I were to engage in sexual practices outside of marriage (heterosexual or homosexual), that would be a violation of what is expected of me in this relationship and my own commitments (which in many states are legal commitments to monogamous sexual relationships).

Secondly, many states which require at-fault divorce complaints (for example New York) allow a complaint of "constrictive abandonment" which amounts to the at-fault party not engaging in expected sexual relations in the marriage over a set time (in New York, I think that is one year).

In short, heterosexual marriage in many parts of this country involves a sexual commitment with legal backing (for lack of a more savory way to put it, a contract where both parties agree to provide sexual favors to eachother and only to eachother), not only to abstain from sex outside the marriage, but also to engage in sexual relations inside the bounds of the marriage. In return for this commitment, the state and federal governments provide a number of tax and legal benefits to help stabilize families. These benefits IMO also discourage divorce because they add an additional practical cost to getting divorced. Some of these benefits are only available as a part of the sexual contract package.

The general arguments (seen on this board and elsewhere) are that homosexuality is dangerous to society and thus needs to be discouraged. These arguments were seen in Scalia's dissent in Lawrence v. Texas but were conspicuous in Thomas's dissent only by their absence. (His full dissent is quite short so here it is):

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.


As to the procreation issue.... I suppose if we allowed infertility to be grounds for divorce, or required all married couples to have children within the first, say, five years of marriage, I would agree that this would be quite defensible. However, in actual practice, we don't distinguish between adopted and natural-born children to mariage, and we don't punish an unwillingness or inability to have children by annulling marriages. However, just as most of the people on this board would see procreation requirements for marriage to be an unwelcome intrusion into personal lives, why wouldn't personal liberty here be an important consideration?
11.5.2008 6:27pm
einhverfr (mail) (www):
Whit wrote:

fwiw, i also find the idea of grossly obese people having sex, or seeing them in public in tight clothes to also to be "icky".


Let's pass a Constitutional Amendment requiring married individuals to maintain some level of physical fitness or lose legal benefits of marriage!
11.5.2008 6:29pm
whit:
heck, my dept. can't even pass a regulation requiring POLICE OFFICERS to maintain *a* level of physical fitness, however weak.
11.5.2008 6:35pm
einhverfr (mail) (www):
Whit wrote:

otoh, i find the idea of a parent having sex with their child, or siblings having sex with each other to be icky, and DO think it should be illegal. does that make me an incestophobic bigot? if so, fine with me. i admit it. i'm an incestophobe.

i can find no compelling reason to outlaw incest (spare me the birth defect argument - that wouldn't work with same sex incest, for instance), EXCEPT the ick factor.


Probably right on sibling incest, provided that it is an exception rather than a norm (if it is an exception, there is probably enough genetic diversity to prevent too much inbreeding-related illnesses). I am not really sure how one would enforce it in a truly consentual case, though...

However, going back to the issue of parent/child sexual relationships, I do think there is a compelling reason to ban them, even if both parties are consenting adults just because there are always lingering power differences in one's dealings with one's parents to the point where "consent" may have a different meaning. Of course, child abuse causes real harm and there is no question that on that basis it could and should be banned.
11.5.2008 6:36pm
whit:
well, for example, an 18 yr old female having sex with her 19 yr old sister?

I can find NO reason apart from the ick factor to make that illegal.

can anybody give me ONE reason, let alone a "compelling reason" to criminalize same?

to my knowledge, it's illegal in every state of the union, as it should be - long live the ick factor!

i think the power argument with parent/child is a decent one, although one could use the same argument to say it should be illegal to have sex with one's boss, or congressman.
11.5.2008 6:40pm
Sara R (mail):
I keep reading the argument that the state should stay out of the marriage business altogether. Before people start proposing that we throw out long-standing social traditions, they should consider that there might be a reason why those traditions were created in the first place. The state's interest in marriage is in connecting fathers and children. Heterosexual activity leads to children. Without a strong social tie to the child's mom, the father might not stick around. Children need both a father and a mother. It's in society's interest that children have a father and a mother. That's why the state got into the marriage business. Without state sponsored marriage, only religious people would get married, and only the children of religious families would have the stability that married parents provide.

If the state's interest in marriage only relates to providing stable homes for children, why would it be in the state's interest to place that label on homosexual couples? Homosexual activity does not naturally lead to children. Children can be produced or acquired by other means. But before placing the state's stamp of approval on that relationship, the state should determine that two parents (one of which is not biologically related) of the same sex is equivalent to a mother and a father. And that question can't be answered without experimenting on a large group of children and seeing how they turn out in 25 or so years.
11.5.2008 6:42pm
LM (mail):
When I voted against 8 (early by mail) I did so without animosity for its supporters. I understand why good people of conscience can support such a measure. But after I heard the mean-spirited, scare-mongering "Yes on 8" ads, I wished I had sent a large contribution to the "No" campaign.
11.5.2008 6:48pm
LM (mail):
Hoosier:

Could an Obama supporter on VC point me to any statement that he made during the campaign about evolution/creation?

Obama's views on evolution/creation are written out in exhaustive detail, longhand, on the back of his birth certificate.
11.5.2008 6:50pm
VincentPaul (mail):
Although I am disappointed about the passage of Prop 8, I know that it is only a matter of time until same sex marriage will be legal (and I am hopeful that this will be nationwide).
11.5.2008 7:03pm
alonzo portfolio (mail):
Professor Carpenter, it seems to me that you are glossing right over a huge "elephant in the room"-type issue. First my background: San Francisco native, public schools, labor background, plaintiff-side attorney. As a natural democrat (albeit small-d), ever since the early '60's I've swum in a steady stream of black-friendly social propositions, e.g. black people are more "authentic" than others (Norman Mailer), they are "warmer," they have a superior capacity to appreciate injury and suffering (staple of jury-picking strategy), they have better sex than whites, the list goes on and on. So how is it that, from within the left, blacks' overwhelming rejection of gay marriage is anything but a rigtheously arrived at position? I realize you're a younger person and haven't identified as "left" since the '60's, but for anyone who has, isn't criticism of the black Prop. 8 vote the height of hypocrisy?
11.5.2008 7:12pm
Perseus (mail):
Perseus claimed: the state legislature has gone so far in giving domestic partnerships virtually all of the substantive legal benefits of marriage

So I did. Here is what the CA Supreme Court wrote in its decision:

Although California statutes always have limited and continue to limit marriage to opposite-sex couples, as noted at the outset of this opinion California recently has enacted comprehensive domestic partnership legislation that affords same-sex couples the opportunity, by entering into a domestic partnership, to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples.--In re Marriage Cases (2008), p. 36.

As I said, I considered the greatest merit of Proposition 8 to be that it took the decision away from the hands of 4 arrogant, black-robed tyrants.
11.5.2008 7:16pm
einhverfr (mail) (www):

i think the power argument with parent/child is a decent one, although one could use the same argument to say it should be illegal to have sex with one's boss, or congressman.


Now, just think of how much better US politics would be if we criminalized entering into adulterous relationships with elected officials!

Finally, note that having sex with one's boss in many states can open one up to sexual harassment claims if there is an impression that you get promoted because of your connections.
11.5.2008 7:29pm
einhverfr (mail) (www):
Sara R:

Do you oppose allowing single people to adopt children out of foster homes or orphanages?

Do you oppose allowing gay couples to adopt children?

Would you favor a Constitutional Amendment to your state's constitution which would void adoptions by gay parents done in other states (aside from legal issues)?
11.5.2008 7:38pm
einhverfr (mail) (www):
I guess what bothers me is that a lot of people here who support restricting state benefits of marriage to heterosexual couples are the same people who claim to support a lack of government intrusion into peoples' lives.

Opposed to state programs as a philosophy... unless they agree with them for whatever reason (maybe abortion, gay marriage, anti-sodomy laws, whatever). This strikes me as extremely dishonest, intellectually.

I think that, in the words of Dick Cheney, "Freedom means freedom for everyone."
11.5.2008 7:41pm
skyywise (mail):

I can't say that I've ever seen a good answer to this question:

What benefits are there to being married that cannot be set up through other legal means, such as wills and powers of attorney?


Respect.

If you don't understand that, then there is no point in continuing the conversation.
11.5.2008 7:51pm
IT (mail):
Activist judges? Activist tyrants? Thwarting the will of the people?

Think Brown V Board of Education.
Think Loving V Virginia

If the electorate had voted on those "activist decisions" we would still be segregated, and Barack Obama would not be president elect.

Direct democracy is two foxes and a chicken discussing what's for lunch. the legislature and Constitution exist for the chicken.

IT
11.5.2008 8:27pm
CLD (mail):
"I can't say that I've ever seen a good answer to this question:

What benefits are there to being married that cannot be set up through other legal means, such as wills and powers of attorney?"

To name a few:
• Social Security benefits. Married people receive Social Security payments upon the death of a spouse. Despite paying payroll taxes, gay and lesbian workers receive no Social Security survivor benefits.
• Health insurance. Many public and private employers provide medical coverage to the spouses of their employees, but most employers do not provide coverage to the life partners of gay and lesbian employees. Gay employees who do receive health coverage for their partners must pay federal income taxes on the value of the insurance.
• Estate taxes. A married person automatically inherits all the property of his or her deceased spouse without paying estate taxes. A gay or lesbian taxpayer is forced to pay estate taxes on property inherited from a deceased partner.
• Retirement savings. While a married person can roll a deceased spouse’s 401(k) funds into an IRA without paying taxes, a gay or lesbian American who inherits a 401(k) can end up paying up to 70 percent of it in taxes and penalties.
• Family leave. Married workers are legally entitled to unpaid leave from their jobs to care for an ill spouse. Gay and lesbian workers are not entitled to family leave to care for their partners.
• Immigration rights. Bi-national families are commonly broken up or forced to leave the country to stay together. The reason: U.S. immigration law does not permit American citizens to petition for their same-sex partners to immigrate.
• Nursing homes. Married couples have a legal right to live together in nursing homes. Because they are not legal spouses, elderly gay or lesbian couples do not have the right to spend their last days living together in nursing homes.
• Home protection. Laws protect married seniors from being forced to sell their homes to pay high nursing home bills; gay and lesbian seniors have no such protection.
• Pensions. After the death of a worker, most pension plans pay survivor benefits only to a legal spouse of the participant. Gay and lesbian partners are excluded from such pension benefits.

Granted most of these are federal rights but until a large number of states support gay marriage it is unlikely that that the Feds will ever provide any of these rights to gay couples.

Regarding the procreation issue, many heterosexual marriages do not produce children either because the couples are infertile, not interested in having children or are second or third marriages of people past a reasonable age/desire to procreate.
11.5.2008 8:40pm
Perseus (mail):
Activist judges? Activist tyrants? Thwarting the will of the people?

Think Brown V Board of Education.
Think Loving V Virginia


Think Dred Scott v. Sandford or Plessy v. Ferguson before placing so much faith in the judiciary.
11.5.2008 9:09pm
Russ (mail):
The people of California have spoken.

Too many SSM folks here seem to believe that democracy is great, until the people vote against something you were for.

BTW Dale, gay activists can be every bit as mean spirited as folks calling you a "sicko." SSM advocates could have done better were it not for some of their allies alienating people they need to be on their side with their "all or nothing" approach.

If you really believe that history is on your side, then work at it through the democratic process. But SSM was doomed the moment the California SC struck down 61% of the voters wishes.

Laws can be changed easier than constitutional amendments. Overreach here is what set your bar for success so much higher.
11.5.2008 9:16pm
Mike S.:
I keep hearing the phrase "gay marriage" being thrown around. The usage is sloppy. Gays, both "out" and "in the closet" are married to people of the opposite sex in many places where same sex marriage is not recognized, for a variety of reasons. This includes gay men married to lesbians. Conversely, here in Massachusetts, where same sex marriages are recognized, they are open to all same sex couples regardless of sexual orientation. And that is as it should be, I think. We don't want town clerks inquiring about people's sex lives before issuing a license. I am sure the overwhelming majority of people who enter into same-sex marriages are gay, but one can easily imagine, say, two widows marrying so one can watch the kids while the other works and gets health insurance for everyone involved. Please be careful to speak of "same-sex marriage" rather than "gay marriage." I know of no jurisdiction where the clerk is supposed to ask about sexual orienation before issuing a marriage license.

I am not sure how this affects civil rights arguments, whether in court or with public opinion. It cannot be said that gays lack the right to marry without same-sex marriage. On the other hand, the impact of restricting marriage to opposite-sex couples is plainly far greater for gays than for straights.
11.5.2008 9:49pm
William Oliver (mail) (www):
"I keep reading the argument that the state should stay out of the marriage business altogether. Before people start proposing that we throw out long-standing social traditions, they should consider that there might be a reason why those traditions were created in the first place. The state's interest in marriage is in connecting fathers and children. Heterosexual activity leads to children... Without state sponsored marriage, only religious people would get married, and only the children of religious families would have the stability that married parents provide."

Pish posh. And I say that as a conservative Christian who not only opposes gay "marriage" but does not believe it will exist regardless of what the State says (though I strongly support the right of people of other, or no, faith to recognize the existence of such).

Yes, yes. Families are great. Christian families, I believe, are super great. But we cannot use the State to do the work by force of arms that we as Christians should be doing through spiritual transformation. The US should be a free market, not only in goods, but in ideas -- including religions ideas. My faith is a brand (the best in the universe in my opinion, of course), and I can show the superiority of that brand through innovative marketing and demonstration of that superiority. And, if it is God's will, I will help make my ideas universal.

And others with other ideas will try to do the same. If my ideas can't win in the marketplace of ideas, then I certainly don't deserve to force them on people with billy clubs and TASERs.

One of the more common beliefs of Christianity is that the relationship between God and man is private and individual. The State has no business mucking with it -- either in forcing or denying expression.
11.5.2008 10:20pm
therut (mail):
After reading the analysis it reminds me of why I have such a distate for politics and lawyers. He practically gloats over the deception used. Reminds me of the saying "Oh the wicked web we weave when we practice to deceive". Now I hear that publicity hounding lawyer Gloria is going to use some new thought up maybe "legal" theory to go back to the Crows in black robes to again see if the truth can be twisted into a ugly knot. I really do not know what to say except I do not like liars.
11.5.2008 10:31pm
A. Nuther:
I doubt that many people who otherwise supported gay marriage voted for Prop 8 just to smite the arrogant tyrants in black robes.


Go on doubting, but find some evidence. I donated money for just that reason. In my own state, I'm quite happy to donate money to politicians who support gay marriage.
11.5.2008 11:06pm
Glenn W. Bowen (mail):
William Oliver:

The State should not recognize marriage at all as such. It should *only* recognize civil unions. It should recognize civil unions and give them all of the recognized legal status as what are currently called marriages, but should not be called marriages.

Gays are not the only folk who are hurt by the recognition of marriage in civil society. I have two elderly aunts who have lived together for a couple of decades after their husbands died. They are civil partners in every way -- they share property, costs, power of attorney, etc.

Simply speaking sexuality should play no part in the question -- homosexual, heterosexual, or in partnerships where sexuality is simply not there.


I agree, I think anyone should be able to designate spousal rights to whoever they chose to, however, i would not want spousal rights eliminated altogether in the name of "fairness":

There is the matter of lucrative taxes taken from those not married and protected, and the fight to keep that taxation by the government, should that taxation be threatened- or, God forbid, the protections are lost to all... damned if ya do, damned if ya don't :)
11.5.2008 11:15pm
nelamm:
"Respect.

If you don't understand that, then there is no point in continuing the conversation."

You're not going to get respect from everyone until you're able to somehow get into their heads and change their way of thinking.

Do you want to do that forcefully?

On second thought, better not answer that.
11.5.2008 11:16pm
Pon Raul (mail):
Well, the benefits are overrated. I keep on telling my wife that it would be better financially if we weren't, but she doesn't exactly like that line of talk. As for the psycho benefits, I think that we could all do without those. As for everything else, standard form contracts. Lets pass an initive to end all marriage. Now, if we could only get the wording right. A Ban of Homo Sapien Marriange???
11.6.2008 12:23am
Hoosier:
Greg Q
"Andrew J. Lazarus and Hoosier:

Are you always this poor at reading comprehension?"

Since I am not opposed to gay marriage, and never said that I was, I find your attack on me rather ironic. No?

But you probably assumed that I was an ignorant, Bible-thumping rube due to my being a Hoosier. Actually, I'm very enlightened on these matters. Geez, you homos are sensitive!

Here's my suggestion: Next time, call it "Geyh Marriage." It may confuse enough voters to pass.

If this works, you have to invite me to the wedding. But only if you promise not to play techno-rave music at the reception. Because that stuff just blows.
11.6.2008 12:44am
Ken Wagner (mail) (www):
Same-sex marriage is not just about equal rights or lifestyle or shared love or a positive example. It is about sneaking into your brother’s room at night and taking back the baseball mitt he he stole from you the day before. It’s taking back what’s mine. My word. My marriage. Keep your laws off my language.

This country has voted for “Change We Can Believe In“, but is not yet ready to change what we believe. We are a careful and comfortable people, in words and deed. We like to think we are livingfree, but we are not yet thinkingfree.

Ken Wagner
http://childfreemarriage.com
11.6.2008 1:01am
The General:
I was called a “sicko,” had the Bible cited to me more than once, was asked whether I’d want my "own child to be one,” and was told that “they” molest lots of children, among other things.


I bet that wasn't very persuasive. Well, neither is being called a bigot all day long because you believe in traditional marriage, i.e., you like the status quo, think it exists for a reason and think society as a whole benefits from its special place. So long as gay marriage advocates keep insulting the people they're supposedly trying to persuade, they're gonna keep losing.
11.6.2008 1:23am
einhverfr (mail) (www):

Activist judges? Activist tyrants? Thwarting the will of the people?


Actually, the only judge I can see on the court who seems to be an activist is Scalia. Contrast his dissent with that of Thomas in Lawrence v. Texas to see what I mean.

Scalia is sometimes 100% right (for example, in Hamdi v. Bush) and sometimes 100% wrong (Lawrence v. Texas) but because he puts his social values sometimes ahead of his legal analysis, there is not a great deal of stability to his interpretation of the Constitution.

On the other hand, sometimes I think Thomas errs gravely too, but he never comes across as ideologically driven in the way Scalia does. Heck his dissent in Lawrence suggested that he was willing to concede the right of the states to have anti-sodomy laws despite the fact that if he were an elected legislature he would try to have such laws repealed.
11.6.2008 1:34am
einhverfr (mail) (www):
The General:

I think that one of the areas our country needs our help is in providing for civil discourse relating to controversial policy issues (of which gay marriage is one, abortion is another, etc). Allegations of bigotry often are intended to stop conversation rather than let it continue. Think of how boring this country would be if everyone agreed with eachother all the time!

It is far better to disagree and do so in a respectful fashion than to try to silence opposition. Yet in this country the latter has become the norm on both sides of many issues and it is time that we all worked together, whatever the issue, on pushing past this problem.
11.6.2008 2:47am
Bikerdad:
Dress it up however you want, gay (more accurately, lesbian, as they make up the overwhelming majority of same-sex couples who have married) marriage is not about legal rights. Its not about equality under the law.

Its about feeling that the relationship is of equal value. And because of the narcissism of most gays and many lesbians, if they don't have the approval of society, then they just ain't gonna feel right about their relationship.

To have a massive political effort in order to soothe the troubled feelings of a small minority is perfectly understandable, in an age where self-esteem is valued so highly. Understandable, yes. Rational, no.
11.6.2008 3:35am
JE:
Hang in there. There's no legislative or judicial silver bullet that will magically make homosexuality accepted. Like all other expansions of what it means to be fully human, it must be done by convincing individual people, one at a time. Over generations, if necessary. When enough people agree, the laws can be changed without any effort at all. But until that point, efforts to change the laws are ultimately futile.
11.6.2008 4:22am
whit:

Heck his dissent in Lawrence suggested that he was willing to concede the right of the states to have anti-sodomy laws despite the fact that if he were an elected legislature he would try to have such laws repealed.



there is nothing inconsistent at all in that position.

i, for one think lawrence was a ridiculous decision, yet I 100% support people's right to sodomize whomever they please (or be sodomized by whomever). I also support gay marriage.

It is another thing entirely to think (as lawrence v. texas decided), that there is a CONSTITUTIONAL RIGHT to sodomy.

otoh, i disagree with scalia in the medical mj decision, since i don't think the commerce clause applies to people growing their own medical mj in their own household. that was a ridiculous decision.

being a judge who rules on the constitution means you often have to rule stuff constitutional that you would want to repeal in a heartbeat if you were in a position to do so.

heck, i can think of dozens of laws I'd repeal if i was in the legislature, that are all constitutional.
11.6.2008 4:26am
Zoe E Brain (mail) (www):
As I understand it - and correct me if I'm wrong....

The wording on Proposition 8 inserts the following into the Californian constitution:

A marriage between a man and a woman is the only legal union that shall be valid or recognized in this state.

Proposition 8 invalidates existing "civil partnerships"- be they mixed-sex or same-sex - too.

Proposition 8 has two parts -
The only union that is valid is marriage.
Marriage must be between a man and a woman.

Proposition 8 was put on the ballot before the judicial decision that allowed same-sex marriage, and was designed to invalidate existing civil partnerships as well as prevent any future legislation that would allow same-sex marriage.

I'll quote the ProtectMarriage FAQ
6. Would the ProtectMarriage Amendment allow “homosexual marriage by a different name”?

Answer: No. By recognizing marriage between a man and a woman as the only legal union in California , this amendment would prevent any law from recognizing, or giving rights on the basis of, other personal relationships that attempt to imitate marriage, such as homosexual “domestic partnerships” or “civil unions.”
Didn't people here know what the intent was? The wording is quite clear.
11.6.2008 4:45am
Zoe E Brain (mail) (www):
As you were... the final wording is crucially different.

Only marriage between a man and a woman is valid or recognized in California.
11.6.2008 5:16am
Plumb Bob (mail):
Perhaps some lawyer here can set me straight, but it seems to me that gays can marry anybody they choose already. A gay man can marry any woman he desires to marry, and a gay woman can marry any man she chooses, without legal impediment. They simply choose not to, for their own reasons.

What gays cannot do, but seem to want very badly to do, is change the language to make words in laws mean whatever they choose for them to mean. I can call my leg a tree, but that does not make it a tree. They can call their homosexual relationship a marriage, but that does not make it a marriage.

It seems obvious to me, a layman and not a lawyer, that if words can be made fluid in the manner they (and the California Supreme Court) have attempted, then no law has any meaning, no liberty has any protection, and no citizen is safe from government.

This argument is not about "rights," nor about "marriage," nor about "love." It's about intellectual precision and liberty. Words have meanings, and laws are based on those meanings. Make words meaningless, and laws become meaningless.
11.6.2008 9:02am
martinned (mail) (www):
@Plumb Bob: That sounds like the Henry Ford Rule of Marketing to me: You can have your car in any color, as long as it's black.
Anti-SSM version: You can marry any person you like, as long as it's a woman. (Or a man, if you are yourself a woman.)

I suppose this ballot intitiative result in California is a blessing in disguise: without it, the rest of the world might mistakenly think that with the election of Obama, the US (re-)joined civilisation. After all, very few people outside the US know anything about Obama's actual positions. This result should serve to remind everyone that there's still an ocean between the US and the rest of the world.
11.6.2008 9:07am
robert75:


Regarding the procreation issue, many heterosexual marriages do not produce children either because the couples are infertile, not interested in having children or are second or third marriages of people past a reasonable age/desire to procreate.


The belief "that procreation is a primary purpose of marriage" does not entail an insistence "that only people who can and will have children be allowed to marry." The critical distinction is that "for heterosexuals, barrenness is the exception. For homosexuals, it is the rule." (42 San Diego L. Rev. 1059)
11.6.2008 9:33am
Seamus (mail):
In England, there was no secular law of marriage at all until Lord Hardwicke's Marriage Act of 1753, which required that there be a ceremony and registration. Before that date, nothing.

Except that ecclesiastical law, which included the law on marriage, was part of the law of England. It had consequences on secular law, too, such as determining who had rights of dower and curtesy, who could claim the privilege for spousal communications, etc. I don't think the fact that the secular courts simply deferred to the judgments of the Church of England on who was married isn't really a precedent you want to rely on here.
11.6.2008 9:52am
Seamus (mail):
There should be no such thing. Everyone should have to file individually.

Once again, the omnipotent state would be undermining any of the mediating institutions (in this case, the family) that stand as buffers between it and the individual. If you enacted your proposal, you would effectively be putting the weight of the state against the traditional family, in which there is a division of labor between husband and white. You would be telling those who have stay-at-home spouses that they'd be better off ditching those spouses and cohabitating with someone who makes about the same as they do. Perhaps for you, however, that's not a bug but a feature.
11.6.2008 9:57am
martinned (mail) (www):
Re: Separation of church and state in the marriage business:

How about the system used in many continental European countries, including my own? Here, it is a misdemeanor for a member of the clergy to perform a marriage before the civil ceremony has taken place. This civil ceremony is usually at city hall, performed by a government official, and if the couple wish, they can afterwards have their marriage blessed, repeated, etc. in a church. (Most don't.) This way, there is no religious problem with gay marriage (which we've had without difficulty for 10 years). The only place to get married, as far as the law is concerned, is city hall, which is available to all couples, regardless of their sex.
11.6.2008 10:00am
Plumb Bob (mail):

You can marry any person you like, as long as it's a woman. (Or a man, if you are yourself a woman.)


Thus spake Big Brother.

Whether you like it or not, that's what the English word "marriage" means.

And that's not just an English convention, although, for legal purposes, it being an English convention is sufficient. Look in any culture you like, from any time period you like, and you will find that their linguistic equivalent of "marriage" refers to unions between males and females. It's a human constant.

If a law creating civil unions specified that the union could be between individuals of any gender, then same-sex unions would be legal. That's the honest way to make this happen, and if same-sex "marriage" proponents had any regard for law and liberty, that's how they'd approach it. Making it happen by redefining words at will renders our liberties insecure, and makes absolute despots of whoever has the power to redefine the language.

By the way, I already made this argument, and notice that you didn't even try to rebut it. That's the tactic of demagogues. Allow me to request that you adhere to the generally accepted rules of civilized discourse, and actually address the arguments that have been presented.
11.6.2008 10:01am
martinned (mail) (www):
@Plumb Bob: O, there are many valid arguments to be made against a constitutional right to SSM. In fact, in all countries that have SSM, it has been enacted by the legislature, since not even the ECHR's "right to family life" has been interpreted as a right to (same sex) marriage. I suspect the only reason why marriage ended up being a constitutional issue in the US is Loving, which clearly concerned a law infinitely more unjust than the absence of SSM, and was therefore difficult for an anti-segregation court to avoid.

My objection to your earlier comment was merely that you cannot claim with a straight face that, in the absence of SSM, gays are nonetheless treated equally. That is just patently untrue. The legally relevant question is simply whether this inequality is forbidden by the constitution. (Which, by my understanding of the California constitution, was not an unreasonable conclusion. At the federal level, however, it's a different story.)
11.6.2008 10:14am
jrose:
The belief "that procreation is a primary purpose of marriage" does not entail an insistence "that only people who can and will have children be allowed to marry." The critical distinction is that "for heterosexuals, barrenness is the exception. For homosexuals, it is the rule." (42 San Diego L. Rev. 1059)

Hypothetical: a state's majority chooses to bar the infertile from marrying. A lawsuit by an infertile couple wishing to marry is filed. How do you rule?
11.6.2008 10:22am
Sparky:
The No on 8 campaign was abysmal.

You do not win over the undecided by telling them that, if they're even considering voting the other way, they are bigoted and intolerant. (Indeed, that approach is bigoted and intolerant in its own way.)

You have to overcome the "ick" factor. And you do that by telling the undecided that the gays who want to get married are the "good" gays -- not like the Castro Street freaks in nun outfits and assless chaps who gross you out.
11.6.2008 10:59am
einhverfr (mail) (www):
RJS wrote:

Society will never be equal until religious bigotry is banned and we force the recognition by all people of our genuine human right of sexual expression.


Although I am saddened by the passage of proposition 8, and concerned about what it means for our country, I must point out that if it is a choice between a free society (where bigotry is allowed, but legal status is equal) and a society which is equal (where bigotry is not allowed), I will choose freedom over equality.

In essence, RJS seems to think that the real solution is a Constitutional Amendment reducing the impact of every right granted by the First Amendment in both scope and impact.

In the words of Dick Cheney, "Freedom means freedom for everybody." That sword cuts both ways.
11.6.2008 11:10am
einhverfr (mail) (www):

Proposition 8 has two parts -
The only union that is valid is marriage.
Marriage must be between a man and a woman.


In Washington State, that might be invalid as a petition because no petition can address more than one policy issue. In short, in my state, you can't have an initiative tying these two parts together. If that is the case in California, it might be easy to get this invalidated.
11.6.2008 11:15am
M:
The wording is: "Only marriage between a man and a woman is valid or recognized in California."

That reads as one part to me. It says nothing about whether any other union other than marriage is valid.

The opponents of Prop 8 should not underestimate the persuasiveness of the ads about "King and King." Opponents of Prop 8 assured everyone that recognizing gay marriage would in no way require any teaching about the topic in public schools. The very groups opposing Prop 8 in California filed amicus briefs in litigation in Massachusetts over this very issue.

Parents of a student in Lexington, Ma were upset to find out that their son's teacher had read a book called "King and King" in school. They asked that it not be read, or that they be offered an opportunity to opt their child out. They were told no. They filed suit. They lost -- partially for reasons argued in the amicus briefs. Gay marriage is a fact of life in Massachusetts -- therefore, we must teach our children about it. And no, you may not opt your children out.

I am not against gay marriage, and would vote for its legalization in a heartbeat. I objected to the SJC in Massachusetts making that decision for the citizens of Massachusetts. And I really object to the insistence of some that public school children will be taught about this whether parents like it or not.
11.6.2008 11:47am
martinned (mail) (www):
@M: While there are certainly some plausible arguments as to the rational basis of not allowing same sex marriage, what exactly is the harm of teaching kids that homosexuality exist? (Which, incidentally, is an issue quite separate from SSM.)
11.6.2008 11:56am
M:
martinned,

I'm not an expert on the ins and outs of the litigation, but from what I can remember and what a quick google is telling me, the children in question were 7 years old. The parents objected because they felt the school was teaching homosexuality as a norm, not just of existence, and that their family did not support that value. In Massachusetts, parents can opt their kids out of sex ed. But sex ed doesn't start until 5th grade.

I am not saying I agree with these parents. I'm not a parent. I have no idea what I would think. But I do understand their argument. They don't want their children taught that homosexual marriage is the norm. SSM was just legalized in Massachusetts about four years ago by judicial fiat. People felt they had no voice or input, and now their children come home with books about it. They feel that their children are being forcibly inculcated with values they do not believe in. I think there are a large number of MA parents who disagree. Same group that would want their children opted out of any lesson that taught homosexuality was immoral.
11.6.2008 12:10pm
martinned (mail) (www):
@M: First of all, whether same sex marriage is legal or not has nothing to do with how schools should approach homosexuality. Like it or not, but part of the purpose of schools is to socialise kids, to raise them to be good, peaceful citizen, i.e. to turn them into "another brick in the wall". This means teaching them respect for other citizens, regardless of differences and regardless of what the parents think. Objection to this very fact explains the prevalence of home schooling in the US compared to other countries; a lot of parents who are not big fans of respect for all.

The analogy between teaching kids about homosexuality and teaching them how sex works isn't even close. (Except in the minds of the religious right, who seem to have all sorts of difficulty grasping the distinction. Look at the movie reviews on Focus on Family's Plugged in Online, for example. They discuss movies based on a whole list of categories, including "sexual content". Oddly enough, any mention of homosexuality in a movie, even if it is only referred to verbally instead of visually, gets mentioned under "sexual content". For example.)
11.6.2008 12:25pm
M:
Then I look forward to the part of the curriculum which explain that there are groups of people in the country and whole religions that find homosexuality immoral, and how children should have respect for these other "citizens, regardless of differences and regardless of what the parents think." After all, the existence of these beliefs is not in question. Why shouldn't children be taught to be respectful of these beliefs?

Or is the definition of "good and peaceful citizen" whatever you think it is?
11.6.2008 12:35pm
martinned (mail) (www):
@M: I'm not sure how all of this would fit in a curriculum, but yes, of course they should learn to respect such beliefs, too. It is a basic civic value to respect (even)those you disagree with, and schools should encourage this in all circumstances.

It does raise the ancient Old Testament vs. New Testament question, though: Should we do as Jesus did and love even those that hate us, or is that too much to ask? How should society approach those that seek to undermine it? After all, even though one might think differently judging from the retoric deployed, it is clear whose freedom to live as they choose is under attack here.
11.6.2008 12:56pm
Hoosier:
We like to think we are livingfree, but we are not yet thinkingfree.

Speak for yourself.
11.6.2008 1:59pm
M:
I think if the curriculum included such a point of view, the parents would not have flipped out as they did.

As to your questions: (1) Yes -- would we all have the grace to do so; (2) I have no idea -- a question that should be decided in a democratic fashion. As to your last sentence, I'm not sure it is clear. I see both sides infringing on one another and it makes it very hard for me to draw bright lines. I argue these things with people because it makes my thinking clearer and I learn.

I do know, however, that if those that supported or opposed Prop 8 argued in the manner in which you do, things would be a heck of a lot further along than they are and a lot less acrimonious.
11.6.2008 2:04pm
einhverfr (mail) (www):

New Testament question, though: Should we do as Jesus did and love even those that hate us, or is that too much to ask? How should society approach those that seek to undermine it?


The bigger question is which side is seeking to undermine society?
11.6.2008 2:05pm
martinned (mail) (www):

The bigger question is which side is seeking to undermine society?

If you'll forgive me for answering with a question: which side is passing moral judgement with an intensity ranging from lack of respect to outright hatred on the other? (And, incidentally, seeking to use the law to interfere in the private life of the other?)
11.6.2008 2:43pm
einhverfr (mail) (www):

If you'll forgive me for answering with a question: which side is passing moral judgement with an intensity ranging from lack of respect to outright hatred on the other? (And, incidentally, seeking to use the law to interfere in the private life of the other?)


I didn't ask which side was undermining society. I asked which side was trying to undermine society. The difference is intention.

IMO, the core issue is not that that both sides want to destroy society, but rather that some of our cultural values are in conflict and this leads both sides to emphasize the ones they prefer and undermine the other values. However, I think that both sides are motivated by a sense of loyalty to our country and society.

IMO, I think the anti-gay-rights crowd has undermined our society in this sort of amendment. However I don't accuse them of what essentially amounts to a cultural treason, and I believe that the damage is largely unintentional.
11.6.2008 2:57pm
martinned (mail) (www):
@einhverfr: You're right, of course. But this issue came up because someone brought up the question of homosexuality &schools. (Which is tangetial to the topic of this thread because it is one of the arguments used by the Yes campaign in California.) I offered that the duty of the school to teach the students in the way their parents want them taught is not only limited by practical considerations, but also by the fact that schools should instill positive civic values in their students, i.e. values that are conducive to the functioning of society, such as respect for those that are different, respect for ideas you don't necessarily agree with, respect for the law, respect for the government, patriotism, etc. From this POV, the intention of each side of the culture war is less interesting than actual consequences. Teaching children that homosexuality exists, and that it is nothing to fear or hate is conducive to the harmony, etc. of society, regardless of whether SSM is the law or not.
11.6.2008 3:06pm
Hoosier:
Teleological education?

Please, don't do that to us.

(And I'm on your side on the bigger issue. But not when it comes to what schools should be teaching about values.)
11.6.2008 3:45pm
Bikerdad:

However, I think that both sides are motivated by a sense of loyalty to our country and society.


I have to disagree with you. At their cores, one side is motivated by loyalty to self, the other motivated by loyalty to society. No benefit accrues to SSM opponents if they are victorious. This is self-evident, otherwise SSM advocates would be all over their opponents charging them with selfishness. Even more damning is the frequent charge that "SSM isn't going to hurt you, what do you care?" usually followed by charges of homophobia, bigotry and hatred. Right up front though, the SSM advocates themselves admit that their opponents are not motivated by selfishness.

In contrast, for the most vocal SSM advocates, it is about benefiting themselves. Not all will benefit, of course, but straight folks who claim "its about fairness" ignore that for gays, its not about fairness, its whether or not they benefit.

To be clear, I'm not making any judgement about whether or not SSM adovcates are loyal to their country, or loyal to society.

martinned (mail) (www):

I suppose this ballot intitiative result in California is a blessing in disguise: without it, the rest of the world might mistakenly think that with the election of Obama, the US (re-)joined civilisation....This result should serve to remind everyone that there's still an ocean between the US and the rest of the world.


uh, martinned, you do know that contracting a same sex marriage is legal in only 5 countries, with Norway getting on board on Jan 1? On this issue, the United States, or at least California, Florida, Arizona, and the 27 other states who have explicitly forbidden it, are firmly on the same side of the ocean as the rest of the world. Seriously dude, if you're going to make an argument "everybody's doing it, its the cool thing", you should at least have enough common sense to confirm that "everybody is doing it" first!
11.6.2008 3:49pm
martinned (mail) (www):
@Hoosier: It worries me, too. (Go Pink Floyd!) But, then again, why make school children recite the pledge of allegiance in the morning? (As a foreigner, that one would have to rank pretty high on my list of things that creep me out about the US.) Clearly, school is, and should be, about more than the simple transfer of knowledge and skill.
11.6.2008 3:51pm
martinned (mail) (www):
@Bikerdad: First of all, the remark of mine that you quote was meant to reflect on Obama, not SSM. It is my distinct impression that people all over the world are forgetting that the difference between him and McCain is much smaller than the difference between him and the average mainstream European politician. That goes even more for their respective median voters. By European (Canadian, Australian, etc.) standards, Obama is a conservative, and so are most US voters. The fact that they voted against SSM in 3 states is a good reminder of that.

As for selfishness: Maybe working from the presumption that your values should be enacted into law for all to follow isn't selfish, but do you mind if I consider it egocentric? Or arrogant?
You can't treat those who seek to forbid certain behavior equivalently to those seeking to permit. (That works for abortion even more: not everyone who is in favor of allowing abortion is necessarily a fan of the concept.)
11.6.2008 3:58pm
Greg Q (mail) (www):
Andrew J. Lazarus,

Greg Q, I think you have to choose between "It's OK to be not-normal" and "Only normal people can get married".

Nope. Plenty of not-normal people are allowed to get married. But their marriages have two characteristics that SSM does not:
1: They don't claim that getting married makes them "normal".
2: They don't try to use their marriages as a bludgeon with which they beat on those who disagree with them.

SSM will happen when, and only when, it meets the above two criteria.

Even, BTW, if we agree that homosexuality is "not normal" in some sense, how do you get from that to not being allowed to marry?

They are allowed to marry. They're not allowed to marry members of the same sex, because that's not a real marriage.

I know more people who are poly, than who are gay. And, unlike SSM, which is essentially unknown in human history, polygamous marriage has occurred in many times and many different societies.

If the only person in the world you want to marry is already married, the law says you can't marry him / her. Is that a violation of your rights? Are polyamorous people being denied equal protection under the laws because they can't marry the people they love?

If you don't want to marry anyone who you're legally allowed to marry, that's not "not being allowed to marry." That's "sucks to be you."

If the pro-SSM crowd got out of the Courts, squashed any of their "supporters" that insisted all those who disagree are bigots, and decided to make an actual case as to why society should decide to create SSM, I'd have some sympathy for them.

But until you all accept that people have the right to disagree with you, and you bear the burden of giving them reasons to change their minds, if you want sympathy I invite you to look in the dictionary for it. You'll find it somewhere between shit and syphilis.
11.6.2008 4:10pm
Greg Q (mail) (www):
Hoosier,

Since I never said anything to imply that you were against SSM, I guess my question is answered. Yes, you are that bad at reading comprehension.

Thanks for clearing that up.
11.6.2008 4:12pm
Greg Q (mail) (www):
martinned,

My objection to your earlier comment was merely that you cannot claim with a straight face that, in the absence of SSM, gays are nonetheless treated equally.

You left off a phrase there: being treated equally under the law.

If it's illegal to sleep on the streets at night, both those who own houses, and those who have no place to go, are treated equally under the law. The law affects mainly those who have no place to go. But all are equally restricted.

If the rule is all must be equal, then I want half of George Soros' money, right now. I want to be "equal" to him. Why not? That's no more ridiculous than saying "you have to change the legal and societal definition of marriage, because otherwise it won't be fair to me."
11.6.2008 4:23pm
Greg Q (mail) (www):
You can't treat those who seek to forbid certain behavior equivalently to those seeking to permit.

Why not? Let's consider a list of activities:

rape
murder
arson
fraud
gay bashing
vote fraud
vote suppression
SSM
polygamy
condemning homosexuality
condemning terrorism
condemning racism
condemning anti-homosexuality

Should all be allowed? Should all be prohibited? Some each way? Which ones?

When you decide which to prohibit, and which to allow, ou are making a moral judgment. Can you give us any reason why we should think that your moral judgment, or the moral judgment of 4 judges, or 5 justices, is more important than the judgment's of millions of voters?
11.6.2008 4:31pm
martinned (mail) (www):
@Greg Q: Yes, thank you for paraphrasing the other half of my comment. The comment I reacted to implied that there was no inequality. There is, but the question is whether this is a problem under the law (and, most importantly, the constitution). I'm not sure if parsing the difference between a law that is explicitly discriminatory and a law that simply has disparate effects is really the way to go here. As you have so ably shown, the SSM case can easily be phrased as either. Which is only one of the reasons why it would have been better if the courts hadn't touched this one.
11.6.2008 4:39pm
martinned (mail) (www):

Let's consider a list of activities:

rape
murder
arson
fraud
gay bashing
vote fraud
vote suppression
SSM
polygamy
condemning homosexuality
condemning terrorism
condemning racism
condemning anti-homosexuality

Should all be allowed? Should all be prohibited? Some each way? Which ones?

When you decide which to prohibit, and which to allow, ou are making a moral judgment. Can you give us any reason why we should think that your moral judgment, or the moral judgment of 4 judges, or 5 justices, is more important than the judgment's of millions of voters?

I'm starting to get an idea why some others were complaining about reading comprehension.

My point was simply that someone looking to forbid something should bear a heavier burden of proof than someone looking to allow something. Also, I'm not sure why you're throwing condemning (=not law) on one heap with banning things (=law).

P.S. Is Webster's paying attention? I'm thinking this might very well be the first recorded use of the word "anti-homosexuality"...
11.6.2008 4:42pm
Seamus (mail):
Hypothetical: a state's majority chooses to bar the infertile from marrying. A lawsuit by an infertile couple wishing to marry is filed. How do you rule?

Easy. Rule that every heterosexual couple is presumed to be fertile (citing to fertile octogenarian rule) and point out that for the state to establish the contrary would require a gross invasion of privacy, quite different from the simple observation needed to conclude that a union of two men or two women would be infertile.
11.6.2008 4:54pm
Seamus (mail):
well, for example, an 18 yr old female having sex with her 19 yr old sister?

I can find NO reason apart from the ick factor to make that illegal.

can anybody give me ONE reason, let alone a "compelling reason" to criminalize same?


Hell, I can't think of a compelling reason for forbidding those two sisters from marrying. At least, not one that's consistent with the arguments in favor of SSM.
11.6.2008 5:03pm
jrose:
Hypothetical: a state's majority chooses to bar the infertile from marrying. A lawsuit by an infertile couple wishing to marry is filed. How do you rule?

Easy. Rule that every heterosexual couple is presumed to be fertile (citing to fertile octogenarian rule) and point out that for the state to establish the contrary would require a gross invasion of privacy, quite different from the simple observation needed to conclude that a union of two men or two women would be infertile.

I further stipulate that the couple in question freely stipulates they are infertile.
11.6.2008 5:08pm
Paul A'Barge (mail):
"We are going to get gay marriage in this country"

No, you're not.

Your group has been way to fanatical about shoving your lifestyle down everyone else's throat. And you've not been honest about it.

So, now we've decided that you can't be trusted with limits and we've drawn the line.

Please feel free to have the privacy of your lifestyle in your own homes. But you can't have marriage.
11.6.2008 5:32pm
LM (mail):
Seamus:

well, for example, an 18 yr old female having sex with her 19 yr old sister?

I can find NO reason apart from the ick factor to make that illegal.

can anybody give me ONE reason, let alone a "compelling reason" to criminalize same?


Hell, I can't think of a compelling reason for forbidding those two sisters from marrying.

... and if only as a token of my support for SSM, I'd pay to watch a webcam of the honeymoon.
11.6.2008 5:33pm
jrose:

Let's consider a list of activities:

rape
murder
arson
fraud
gay bashing
vote fraud
vote suppression
SSM
polygamy
condemning homosexuality
condemning terrorism
condemning racism
condemning anti-homosexuality

Should all be allowed? Should all be prohibited? Some each way? Which ones?

When you decide which to prohibit, and which to allow, ou are making a moral judgment. Can you give us any reason why we should think that your moral judgment, or the moral judgment of 4 judges, or 5 justices, is more important than the judgment's of millions of voters?
If the issue is covered in a constitution, then the justices should decide (e.g., aren't the last four clearly First Amendment issues)?
11.6.2008 5:37pm
einhverfr (mail) (www):

rape
murder
arson
fraud
gay bashing
vote fraud
vote suppression
SSM
polygamy
condemning homosexuality
condemning terrorism
condemning racism
condemning anti-homosexuality


Should all be allowed? Should all be prohibited? Some each way? Which ones?


Let's add a few.....

defending homosexuality.
defending terrorism
arguing for segregation
arguing at a KKK rally that Hitler was right in trying to exterminate the Jews and that someone, some day, should finish the job and do the same to the N!@#$%s as well....

Ok.... On the last four of your list and all of the ones I added, they are Constitutionally protected and with good reason. This does not say that the last one I added is not to be morally condemned.

The law should not be tied too closely to morality. It should be based on the idea that, within certain limits, we should be trying to prevent our citizens from being harmed by others.

I personally am not sure that, aside from cases where one has nonsupport or fraud claims, that polygamy laws could withstand the test put forth in Lawrence v. Texas.
11.6.2008 5:48pm
NickM (mail) (www):
The exit polling numbers I saw indicate that Hispanic voters supported Prop. 8, not opposed it. Asian and non-Hispanic white voters opposed it.

BTW, the latest figures show a 5 point margin (52.5 to 47.5).

Nick
11.6.2008 6:49pm
Hoosier:
Greg Q

Sorry, but I can't answer your question. The only (so-called) "jungle cat" that I know anything about is the Colocolo. And also the Capybara (which isn't a cat).
11.6.2008 10:34pm
Greg Q (mail) (www):
MaRTINNED,

My point was simply that someone looking to forbid something should bear a heavier burden of proof than someone looking to allow something.

That is certainly one way to look at it. Another way to look at it is "when society has done something one way for essentially all of recorded history, and you want to change that, the burden of proof is on you."

I'll agree your way is best when encountering something new. Marriage is quite old. So, if you want to change it, I'd say any reasonable analysis is going to go for the second way of assigning the burden of proof.

Also, I'm not sure why you're throwing condemning (=not law) on one heap with banning things (=law).

I'm not. I'm talking about laws prohibiting people from condemning homosexuality, for example. Such as has been happening in Canada.
11.7.2008 1:31am
Greg Q (mail) (www):
jrose,

If the issue is actually covered in the Constitution (like the last four), then judges should decide. Most things aren't covered by the US Constitution.
11.7.2008 1:33am
Greg Q (mail) (www):
einhverfr,

The law should not be tied too closely to morality. It should be based on the idea that, within certain limits, we should be trying to prevent our citizens from being harmed by others.

So torturing terrorists who aren't citizens of the US, in order to find out their plans and defeat them before they harm US citizens, should be perfectly legal? Good to know.

The vast majority of law is tied to morality. Any time someone talks about "fairness" they are talking morality, because it is your moral and ethical code that determines whether or not something is "fair". For that matter, your dictum that the law shouldn't be tied to closely to morality is a statement from your morality.

Limit the Federal Government, and let the States do (mostly) what they please. Let people move to the States whose rules best match their desires. Let competition, and Federalism, bloom.
11.7.2008 1:40am
einhverfr (mail) (www):

Easy. Rule that every heterosexual couple is presumed to be fertile (citing to fertile octogenarian rule) and point out that for the state to establish the contrary would require a gross invasion of privacy, quite different from the simple observation needed to conclude that a union of two men or two women would be infertile.


Couple notes that both members have been surgically sterilized.

Do they still have the right to get married under a case like this if the law were to forbid infertile people from getting married?
11.7.2008 2:22am
einhverfr (mail) (www):

So torturing terrorists who aren't citizens of the US, in order to find out their plans and defeat them before they harm US citizens, should be perfectly legal? Good to know.


I suppose I should have said "citizens and residents."

But, that is a slippery slope. I would argue against the practice on the fact that it would eventually be applied either accidently or intentionally to citizens and residents, and that it undermines our security from the abuses of over-reaching executive authority.
11.7.2008 11:23am
jrose:
If the issue is actually covered in the Constitution (like the last four), then judges should decide

What's the process for deciding whether an issue is covered in the Constitution?
11.7.2008 11:35am
einhverfr (mail) (www):
Greg Q wrote:


The vast majority of law is tied to morality. Any time someone talks about "fairness" they are talking morality, because it is your moral and ethical code that determines whether or not something is "fair". For that matter, your dictum that the law shouldn't be tied to closely to morality is a statement from your morality.


I disagree.

Law is largely based on questions of community ethics, which is a matter of systematic philosophy. This is somewhat severable from personal ethics, and it is more severable from personal morality by any definition.

Consider defending the holocaust as morally right at a KKK rally. I see that as greatly immoral and against any ideals of personal ethics, but the harm to our society (and hence to citizens and residents being harmed by other citizens and residents, but particularly by officials of the government) by banning the discussion of abstract ideas is greater than the harm done by having those ideas around, and I think one can prove this historically. Hence collective ethics precludes criminalizing this sort of speech, but personal ethics and morality might go very differently.

The fact is that cities cannot function if everyone is preying on everyone else. Civilization depends on certain things and we embody these things in law. While personal ethics and morality may be related questions, the fact that something is immoral itself has no bearing on whether it should be illegal. This is what I mean by ensuring that it is not too closely tied.

Fairness is a necessary social principle for social interactions. The fact that it also is a personal ethical principle and even a moral one can be seen as a separate issue. Same with murder, etc....

There is overlap. I will grant you that. But that does not mean that the concepts should be closely tied.

For the sake of discussion, here are some of my definitions:

Community ethics: The discussion of what is Good for society and public policy.

Personal ethics: The question of what is Good behavior for a person.

Personal morality: The question of what is Good for the person's spiritual and emotional health. I see this as having a personal component which is aesthetically based as well as a universal component of personal ethics.
11.7.2008 11:42am
Seamus (mail):
I further stipulate that the couple in question freely stipulates they are infertile.

If they walk into the licensing office and announce, "We're infertile; now will you give us a license," the licensing clerk should say, "I have no reason to believe you're telling the truth. In fact, I have every reason to believe you're making this announcement just to make trouble. So I'm going to issue this license on the basis of the information that is both available to me and reliable. And don't bother showing me a bunch of medical records, because I'm not a qualified judge of such things. And I'm sure as hell not going to commission an independent medical evaluation, just because you want to make an issue of it. So either take this license or get the hell out of my office so I can serve the next person in line."
11.7.2008 2:31pm