Friday, October 24, 2008

Why I Don't Care About Gay Marriage -- And You Shouldn't Either

I wasn't going to write about gay and lesbian marriage--and not just because no one cares what I think about same-sex marriage (no one really cares what I think about anything, so you knew THAT wasn't it). No, I have personal reasons for not wanting to write about this issue: Bad memories. Lots of bad memories.

Protect Marriage! After all, it worked for the dodo, passenger pigeons--and spilt milk.

Still, according to the powers that be at Yahoo, the California Culture War over their Ballot Measure 8 (BM 8 -- pun intended) has heated beyond the boiling point (if any physics or chemistry hard ons have their noses out of joint, just pretend the 'boiling' is under considerable pressure, so according to Boyle's Law, the temperature is in fact higher than the usual boiling point). In November, Californians can vote to overturn a decision of their state supreme court that held preventing same-sex marriage violates the California Constitution's guarantee of equal protection under California law. The argument in favor of Measure 8 is that traditional marriage will be destroyed, if anyone other than one 'man' and one 'woman' can marry.

Well--it's time for me to come out of the intellectual closet (so to speak). I've got news for you all: that ship has already done sailed. In the immortal almost words of the sitting Governor of the great state of California: "Hasta la vista, baby homophobe." Why? Because first, marriage as an institution was officially 'destroyed' over sixty years ago. And second, no matter what happens with the voting on Ballot Measure 8, California is going to have same-sex marriages. End of story. Sorry to be the one to break it to you.

California Governor Arnold Schwarzenegger. Even if Ballot Measure 8 passes, same-sex marriages will be bok.

If you care, the trigger man who killed the marriage fantasy is the U.S. federal Constitution, specifically article IV, section 1. That section reads "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." For the proponents of Ballot Measure 8, that means "D'OH!"

Article IV, section 1 is the full faith & credit clause, and has been hot source of litigation lo these many years. In recent times (meaning the latter half-ish of the 20th century), that clause was the problem and solution for one of the bitterest culture wars that our nation has seen: what exactly does a married couple have to prove in court, before they are allowed to divorce? That culture battle (in my personal opinion) was second only to the struggles over racial and gender discrimination.

This culture war over divorce started, as most wars do, over a simple economic issue. In the Great State of Nevada, a group of men had dropped large amounts of money building hotels, hoping to lure people with more money than sense to visit the Silver State, and leave behind their surplus capital. Success eluded Nevada's promoters, and bills started coming due. Unfortunately for the hoteliers, their 'bankers' were the kind of people who took defaults 'poy-son-al,' as they said back in the day. So, something had to happen. Soon. Nevada needed to offer something really fabulous to get America to come there and spend money----or people were going to get hurt. But what? More exploitation of fake Native American Culture? Not even close.

At that time, America was still shaking off both the trauma from the first World War and a few bad economic shake ups. Nevertheless, a new generation of grifters, grafters, and miscellaneous slimeball fixers would have everyone believe that America was ready to stand tall and proud--especially as we were the only industrial nation whose economy had not been bombed back to the stone age. There was serious money to be made, but first some changes needed to happen to the American psyche. In the 19th century, Yankee (and Dixie as well) values centered on thrift and self-reliance: a good American only bought something if they couldn't make it themselves. And if you didn't have the money to pay cash on the barrel, chances were you didn't really need it in the first place. In a world of cheap bastards, every American strove mightily to be the cheapest and bastardest. All well & good--but a lousy base from whence to build a consumer society.

Enter the evil genius of Advertising. In short order, American 'values' were turned on their head: thrift and self reliance was out, credit and consumer goods were in. If you want to see a good cultural example of this change, watch some episodes of the old Jackie Gleason, Art Carney television program 'The Honeymooners.' Most of that show takes place in Ralph Cramden's (Jackie Gleason) apartment, a real crappy place.

The Honeymooners. Ralph Cramdem may have been mocked for representing out-dated values -- but he did get with Audrey Meadows.

A frequent theme of the show was wife Alice Cramden's (Audrey Meadows) complaints about their quality of life. Ralph defended his frugality (okay--cheap bastardness) by bragging how they had 'financial security' ie ninety dollars in the bank. Ed Norton (Art Carney), on the other hand, lived in an apartment downstairs from Ralph, but the times when the story line moved to the Norton apartment, the difference was striking. Art Carney's character had a cornucopia of consumer goods: a record player that could also record, high quality kitchen appliances, nice furnishings--even the wall decorations and lighting were in sharp contrast to the bleak and dingy Cramden abode. Nevertheless, the show implied that Art Carney's job as a sewer worker and Jackie Gleason's as a bus driver had them both making roughly the same amount of money. The difference was that Ed Norton bought his consumer goods 'on credit,' which (according to Ralph Cramden) caused 'headaches' for Norton--because every week, money was taken out of Norton's paycheck to pay for that stuff. Ralph, not having bought anything on credit, had no such headaches. Of course, the Cramdens were completely miserable pretty much all the time, as opposed to the Nortons, who having abandoned 'traditional' American values ie they bought stuff on credit, were having a gay (no pun intended) ol' time.

The message America sent to itself was "stop being miserable. Buy stuff. You deserve to be happy." Be happy--it was a revolutionary concept, alien to tight-fisted population of recent immigrants and frontierspeople (sic). Heady stuff.

So far so good. But, what was making Americans unhappy, besides not buying piles of crap? Well, ever since God got all pissy with Adam and Eve about eating apples, and Adam tried to weasel out by pinning the blame on Eve, marriages were bad news for lots of people. 'Traditional' marriages were strong (meaning long lasting), not so much because the couples were thrilled to be together, but because having a unit consisting of a 'homemaker' and a 'breadwinner' was an economic necessity. Being happy together was pretty much beside the point. However, in an industrial economy, the economic ties on marriage begin to disappear, leaving only the social bounds. In a word: what God (as opposed to Mammon) had joined together, let no man put asunder. That's why back in the day, divorce not only carried a social stigma (the children of broken homes was a social, as opposed to an architectual, phenomena), but carried serious legal baggage as well. Specifically, legal divorce was possible only with a judicial finding of 'fault' by one party--and that was what we call in the legal game "a big fat, hairy deal." If the wife was found "at fault" for the break up of the marriage, most states prohibited a court from awarding spousal support--a serious economic penalty at a time when women's roles in the workplace were marginal at best. Consequently, divorce trials were morality plays of joint burning humiliation. A Finding of Fault needed more than evidence that one party was unfaithful (that means "gettin' busy" with someone else, kids). The "innocent" party had to suffer some physical distress (beyond emotional distress) because of the affair. Finally, proof of fault usually required testimony of witnesses--like from private dectectives who peeped in windows or examining hotel sheets for telltale stains. Ugly stuff. An attorney once told me he read an old Oregon case, where a judge was so disgusted with the behavior of BOTH the husband and wife, the judge refused to find anyone at fault, and denied their petition for divorce.

Clearly, a need was there--if only some civic minded jurisdiction would be willing to make a pile of money fulfilling that need. Enter: Nevada!

What does an American court need to enter a decree of divorce? In a word: jurisdiction over the parties. I can't walk over to my local Portland, Oregon state court, and file a lawsuit against my high school EX-FRIENDS over the mean things they said about me at our recent class reunion in California. Those folks are not Oregon residents, so Oregon courts cannot issue a binding judgment against them. In general, state courts only have jurisdiction over residents, or people with a certain level of business and contact with that state.

Mr. Benjamin Siegel. He did more damage to the instution of marriage in America than a gross of same-sex marriage partisans. But he did dress really nice.

As for what constitutes a 'resident,' in most states, to establish residency for the purpose of having the ability to use the state court system (ie jurisidiction) you need to live in that state between six months and a year. But not in Nevada! The good people in the Nevada legislature decided that if half of a couple lived in the Silver State for SIX WEEKS, Nevada would have legal jurisdiction over not only husband and wife, but also the marriage as well (provided the other half of the couple agreed to Nevada's jurisdiction).

So what? you may ask. Here's what: if Nevada had jurisdiction over Mr. Adam, Ms. Eve, and their marriage, then Adam and Eve could get divorced under the laws of Nevada. And what did it take to get divorced in Nevada? Nevada became the first 'no-fault' divorce state. That means the divorce trial would go something like this:

Judge: "Mr. Adam, are you telling this court there are irreconcible differences between you and Mrs. Eve that have led to irreparable damage to your marriage?"
Adam: Yes.
Judge: Mrs. Eve, do you solemnly swear there are irreconciable differences between you and Mr. Adam that have let to irreparable damage to your marriage?
Eve: I do.
Judge: By the power invested in me by the Great State of Nevada, I pronounce you DIVORCED. You may now kiss whoever you damn well please.

Did this nefarious scheme to get unhappy people to plop down good money for a month and a half hotel stay, enjoy the varied attractions of life in Reno or Vegas, and then leave as a happily divorced ex-couple, actually work? Like gangbusters, to coin a phrase. But before you start thinking badly about Nevada sneakiness, Nevada is hardly unique in the hallowed halls of opportunism. For example, you might want to ask why Wyoming is the 'Equality State.' In 1869, Wyoming territory became the first American state/territory to allow women to vote, just because they felt so strongly about women's rights. Uh huh. Actually, Wyoming needed lots more folks to move there, before they could become a state. So just like Mars in those terrible 1950s sci fi movies: Wyoming needs women! The promise of universal sufferage proved a pretty good draw.

So, here we are: Adam and Eve live in say Virginia. They decide the marriage thing isn't working out. Adam, he spends six weeks in Nevada (and drops a pile of money there as well), then hops a train back home with a piece of paper that says DIVORCED. For the people of the Great Commonwealth of Virginia, that was bad. But it got worse: Adam, freshly rid of Eve, decided to marry Lilith. Would Virginia not only recognize a 'quickee Nevada divorce' (I'm not making that term up) breaking the bonds of a VIRGINIA marriage for no reason, but also then be forced to recognize a NEW marriage? Not bloody likely. I mean, Sic Semper Tyrannis (Virginia's state motto) and all, but that was just too much. Not to put too fine a point on it, but the concensus of American state courts was: 'SCREW YOU, NEVADA!'

Lilith, painted by John Collier in 1892. You know that this is 'art' and not 'porno,' because it's over 100 years old.

Now, for Nevada, that was bad. I mean, six weeks in Reno was loads of fun & great for the sinuses and all--but that wasn't going to get Adam married to Lilith back home in Virginia. And if Adam couldn't get Lilith, Adam wouldn't be coming to Nevada. Time to call in the big dogs, Nevada.

After finding a Nevada resident who could read good, Nevada marched in the federal court system and pointed out that full faith & credit given to JUDICIAL PROCEEDINGS of every other state MEANS full faith & credit for ALL judicial proceedings--including Nevada judicial proceedings that granted divorces. The gauntlet was thrown! America then responded in two ways. First and foremost, there was the usual wailing and gnashing of teeth over the sanctity of marriage, the need to preserve marriage as an institution, marriage as a bedrock for our civilization, God hates people who get 'no-fault' divorces...all the same crap that's now used to attack same-sex marriage today. The better argument, though, was that the Nevada divorces were not really 'judicial proceedings.' Returning to the earlier example, Adam and Eve's marriage in Virginia meant that Virginia retained jurisdiction of the marriage. The good people of the Commonwealth of Virginia used their state political process to both define what makes a valid marriage, and what it takes to dissolve that marriage. So if Virginia wanted her citizens to stay both married and bloody miserable, that was Virgina's perogative. A six week vacation in Reno should not be enough to erase Virginia's decision to take an interest in defing and preserving marriage.

A pretty good argument--but no cigar. In 1942, the US Supreme Court in Williams v. North Carolina, 317 US 287 (1942) ordered the state of North Carolina to honor a Nevada no-fault divorce, based on the full faith & credit clause, allowing Mr. Williams to marry the Lilith of his dreams.

Ms. Elizabeth Taylor. I have no idea what her views are on same-sex marriage, but she sure knows her onions about divorce.

So, if Americans could get a divorce judgment for any reason (or even no reason) in Nevada, and that judgment was good everywhere, what does that mean for states who wanted to make divorce hard to get? It means those stringent divorce laws become meaningless--except for the people who couldn't afford to go to Nevada. But 'sucks to be poor' has always been a deep seated, fundamental American value. Nevertheless, the handwriting was on the wall, and the handwritng said "Mene Mene Tekel u-Sorry Charlie!" By 1983, every state but South Dakota and New York had adopted Nevada's no-fault rule for divorce. In 1985, South Dakota finally enacted no-fault divorce, leaving only New York with a watered down version of fault-based requirement for divorce.

But even with everyone having the same basic requirements (or lack thereof) for divorce, family law litigation around full faith and credit is still cooking up a storm. For example, the Parental Kidnapping Prevention Act (PKPA), a 1980 federal statute, tried to keep non-custodial parents from snatching their own kids, running to the courts of another state, and grabbing a conflicting judgment for child custody. Following passage of the PKPA, a proposed state statute called the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), set clear guidelines as to which of several competing states should have jurisdiction in deciding matters of child custody. To date, 46 states and the District of Columbia have adopted the UCCJEA, meaning in virtually the entire nation, there is a clear answer as to what state court has jurisidiction to resolve any disputes over child custody, visitation, and support.

What does all this have to do with same-sex marriage? Given the chain of court cases following Williams v. North Carolina, if one state (or even a jurisdiction) allows for same-sex marriage, that marriage must be recognized everywhere else in America. A couple cannot be married only in Massachusetts, Connecticut, and California, but not married anywhere else. And if the parties to same-sex marriages are themselves divorced and have kids, there is a body of law that dictates who has what rights where--regardless of one man and one woman, or any combination thereof. So if those fiesty states that allow same-sex marriage want to provoke a constitutional crisis, they can. But do they? Big Time, as Dick Cheney would say.

Look at Massachusetts. In 2003, their Supreme Judicial Court held that preventing same-sex marriages violated the state constitution, opening the door for gay marriage. But that door stopped opening in 2006, when the Supreme Judicial Court upheld a 1913 statute that prohibited non-residents from getting married in Massachusetts, if that marriage would be void in their home state. So, same-sex couples could get married--but only if they were Massachusetts residents. Bad news, same-sex marrying types--NOT! After five years of failed voter initiatives and legislative hijinks, Governor Deval Patrick signed a bill on July 31 2008, repealing that 1913 statute--meaning that anyone who wants to can go to Massachusetts and get a same-sex marriage, recognized as a public act (or judicial proceeding--you pick) not only in Massachusetts, but now everywhere else.

But let's say (just for poops & giggles), Californians this November do pass their Ballot Measure 8, and California no longer recognizes same-sex marriage. Even assuming every same-sex marriage in California is then voided, what would happen if all those couples hopped a plane to the Commonwealth of the Bay State, got married, and caught the red eye back home? WHOOPS! NOW they're married.

Ms. Annette Benning and an unidentified man, plotting to destroy marriage -- and then pin it on the gay and lesbian rights movement!

The only thing opponents of same sex marriage can do is have the nation adopt an amendment to the federal constitution, banning same sex marriage. How easy is that? Without going into specifics, the last amendment to the federal constitution was ratified in 1992--some silly amendment about timing of legislators' pay raises. Before that, the 26th Amendment (giving 18 year olds the vote) was ratified in 1971. And before that, the 25th Amendment (clarifying Presidental succession) was ratified in 1967. Amending the federal constitution is not something that happens real regular (just ask your grandmother about the ERA).

So here's where we are. Since 1942, marriages can be dissolved for no reason, and states who don't like it can't stop it. Today, roughly half of all US marriages end in divorce. Dennis Rodman marries Carmen Electra--for ten days. Britney Spears marries Jason Allen Alexander for 55 hours. By any objective measure, 'marriage' as an institution has already been destroyed by no-fault divorce. Any and all damage our nation and culture can suffer from 'ruining' marriage as an institution--either from same-sex marriage or whatever else--that's already happened.

But even if all that whole sordid history of no-fault divorce had not happened, and different-sex marriage retained all its value and power from the good ol' days when people who hated each other stayed together and just drank themselves to death, how exactly how would allowing couples of the same sex marry damage heterosexual marriage? Does anyone oppose gay marriage, because they think they personally might accidently marry someone of the same gender? No, they are afraid that the other people--the STUPID PEOPLE--will suddenly start marrying the same sex with abandon. And that would be 'bad.' (See previous post: "Dumb People Ruin Everything").

So------that's why I am not getting all worked up about California's Ballot Measure 8: No matter how hard you try or how much you care, you're going to have same-sex peoples getting married and living in California.

* * * * *

I began my long march through the history of divorce, by alluding to the fact that I still carry some painful baggage on this issue. Now, a normal person who's a two time loser at matrimony (cough cough) might be expected to be skittish on all things marital. But that's not my problem. No, my pain runs deeper.

The year is 1988, and I'm a second year law student, living la vida jurisprudence and lovin' it. I'm taking the long Constitutional Law class, and enjoy it to the point that there are audible groans all over the class every time I raise my hand. But then came Bad Day at Full Faith and Credit Rock. The professor gave a brief background on Williams v. North Carolina, and some wisenheimer had to ask what the heck difference it made to a state if a couple got a no-fault Nevada divorce, and then married someone else. On behalf of the forces of truth, justice, and historical accuracy, I then tried to explain WHY a state would have an interest in making people who hated each other stay married--a principle I did not believe in, because it's (in a word) wacked. While not technically a violation of the Mark Twain Rule ("Never argue with an idiot: people watching might get confused which one of you is the idiot"), there was no doubt just who was the class idiot that day.

On the plus side, after that awful day, I pretty much stopped talking in that class--which I guess was good news for everyone else.

But let me tell you: fifty years from now, there will be Constitutional Law classes talking about same-sex marriage and the full faith and credit clause, and some joker sitting in the back will say 'What the heck is the state interest in keeping gays and lesbians from marrying? Does anyone really think they're going to accidentally marry someone of the wrong sex? I mean, after the wedding and all the rice is thrown and the little brothers all get drunk and puke at the reception, the couple gets to the hotel--will one guy say 'What the hell--You're a DUDE?' and the other guy says 'What? You mean YOU'RE a dude? OH NO! And now it's TOO LATE! Not even an annulment can save us, because our dream of a nice church wedding is shattered forever!"

Dramatization of law school nerd -- only more fashionably dressed.

And everybody will laugh. I pray to the cowboy buddha that the class nerd-o just laughs with everyone else, and doesn't try to explain the social and political importance of an institution where over half end in divorce in less than five years. Sometimes we learn from other peoples' mistakes--and sometimes, we're the other people.

But we digress.

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