With the California Supreme Court handing down Strauss v. Horton, the decision that upheld the constitutionality of California's ballot measure 8 (which banned same-sex marriage), the hallowed halls of demagoguery have exploded with the kind of pants wetting excitement that’s usually reserved for . . . well, for when courts decide sexually charged moral issues. Pretty much the only consensus on all sides is “THIS IS NOT OVER.” Which is pretty lucky, or I might have to write another hissy fit on the Miss (sic) USA Pageant—and nobody wants that (well, I do—but that’s beside the point).
Twice now I have written on same-sex marriage: What? Phil Spector Changed Parties? When that Happen? and Why I Don't Care About Same-Sex Marriage...and You Shouldn't Either. Both times I argued the issue will eventually resolve itself in favor of same-sex marriage, largely because of the precedent set by the Nevada “no fault” divorce case, Williams v. North Carolina, 317 U.S. 287 (1942), and the federal constitution’s full faith and credit clause. Even after Strauss v. Horton, I still believe that that will be the case.
Be that as it may, you probably have some questions.
1. If nobody cared what you wrote before—twice!—what makes you think anyone cares what you think a third time?
The first time I wrote about same-sex marriage, I had forgotten to take into account the Defense of Marriage Act (DOMA), 1 U.S.C. sec. 7 and 28 U.S.C. sec. 1738C. The bottom line is still the same, but involves another attack on same-sex marriage bans, not only through the equal protection clause, but also with the establishment clause.
2. No, I mean why do you think anyone cares what you think, period?
3. So what about DOMA?
As part of the wave of anti same-sex marriage legislation (WHAT ABOUT THE CHILDREN! DEAR GOD, WON’T SOMEBODY PLEASE THINK OF THE CHILDREN?), Congress in 1996 enacted the Defense of Marriage Act. That act now provides “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other state . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship.” Additionally, DOMA defined under federal law “. . . the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
While everyone who is a citizen is an “American,” every person is also a “resident” of the state that person lives in, and is subject to that state’s laws. Historically, you needed to live between six months to a year in a state before you were considered a “resident,” and then avail yourself to that state’s laws. The hotel and tourist interests in Nevada decided “year schmear!” and cut the length of time to establish Nevada residency to six weeks.
Here’s how it worked. Say you were married to someone you hated and wanted to get a divorce. Ordinarily that was just too bad, because at that time “we hate each other” was not a good enough reason for the state to allow you to divorce. But if one party went to Reno, and stayed in a hotel for six weeks, SHAZAM! That party had established "residency" in Nevada, then would file for divorce in the Nevada courts (where "I hate him/her" was more than good enough), and get a "no fault" divorce .
The trouble arose when that party (let’s call him “Mr. Williams”) left Nevada (all nice and tan after six weeks in the desert), went back to his original home state (let’s just say North Carolina), and tried to get married to someone else. The legal terms of art describing what happened next are a little technical, but it boils down to this:
North Carolina: “Yo mama, you think you’re getting married again here . . . You may be “divorced” in Nevada, but this here’s North Carolina!”
Mr. Williams: “Oh yeah? Well, the federal constitution says ‘Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every Other State.’ Article IV, section 1. I have here in my hand a judicial Proceeding (sic) from Nevada that says ‘Williams is single,’” MoFo!”
North Carolina: “Yeah, but Nevada is creating sham judicial Proceedings (sic) (“sham” under North Carolina law, but not Nevada law) to boost tourist business in Nevada, that’s not a bona fide ‘judicial Proceeding’ covered by the full faith and credit clause. Besides, North Carolina has a powerful, big interest in preserving our marriages…because WHAT ABOUT THE CHILDREN?
Time passed, and anyone rich enough to afford six weeks in Reno got a no-fault divorce. The earth did not jump off its axis, and god (sic) did not smote us down—despite the fact that what god (sic) had joined together, SOME men rendered asunder. More and more states adopted the no-fault standard for divorce, until now only New York (believe it or don’t) still clings to some nominal version of fault-based divorce.
So now, couples can truly get divorced for any reason or no reason. For example, in Oregon, all that needs to happen is one party allege that “irreconcilable differences have led to an irremediable breakdown of the marriage”—and nothing more specific than that. That can mean one party keeps squeezing the tube of toothpaste in the middle, instead of the end like you’re supposed to (I really hate that). Even if the other spouse hotly denies there are any differences—let alone irreconcilable ones—and any breakdowns of the marriage are very remediable…too bad. The state will grant the divorce.
With that background, let’s go back to same-sex marriages. Some states are making noises about allowing recognition of same. Say what you want about social conservatives (like “they’re ignorant, intellectually dishonest puss buckets”—I’m just saying here), but they do know their onions when it comes to full faith and credit litigation. Introducing: the Defense of Marriage Act. The express purpose of DOMA is to hang an asterisk on the end of the full faith and credit clause: while everybody KNOWS that Full Faith and Credit shall be given in each State to the public Acts, blah blah blah of every Other State, that NOW means public Acts, blah blah blah not named “same-sex marriage.”
In other words, if you get your same-sex marriage in Iowa, Maine, Vermont, Massachusetts Connecticut, and California before May 26, 2009, other states CAN recognize your marriage (Maine: No problem! You are welcome), but they don’t have to (Utah: Screw you, jerk faces!).
In the immortal words of Gene Autry: Nope. There are three areas that spell trouble with a capital T that rhymes with E, F, and another E—and that’s stands for equal protection, fundamental rights, and the establishment clause.
All those terrible 1950s era Henny Youngman and Alan King jokes about marriage aside, there are genuine secular legal and political reasons for two people living together as partners to be “married:” insurance, estate, property, custody of children—lots of stuff. So, many states are responding by creating the ever popular “civil unions.” What is the purpose of civil unions? To give unmarried people (like same-sex couples) somewhere between all and some of the benefits of marriage, without calling it “marriage.”
Without going into the long rap about different levels of equal protection analysis (which is interesting only to me), the bottom line is the state must demonstrate some legitimate interest, some good reason, if a state is going to treat similarly situated groups differently. Now, for those states that are going to allow SOME of the benefits and privileges of marriage under civil unions (draw the line wherever you like), what is the state’s interest in denying whatever benefits of marriage are excluded from civil unions? That’s going to be a real head scratcher.
But what about civil unions that give ALL the protection of marriage, only the unions aren’t called “marriage.” That way, same sex couples can be separate but equal from “married” couples. Oh oh.
Given that every state (except for those weirdos in New York) allows “no fault” divorce, how can states now claim some legitimate interest in guy & gal marriage, to the exclusion of same-sex marriage? By sanctioning “no-fault” divorce, state legislatures have already declared that the state’s interest in preserving marriages is very low. That’s another “whoopsie,” as they say where I come from. Or as the unanimous Iowa Supreme Court phrased it: “We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective.”
Unless state’s can come up with some “important governmental objective” that is advanced by prohibiting same-sex marriage, I can’t imagine how prohibiting those “marriages” does not violate the fourteenth amendment’s guarantee of equal protection.
Under American law, we enjoy a battery of rights: some are expressly stated, some are implied, and some are “fundamental.” For example, the right to travel is a fundamental right: you can pick up and drive into Wyoming any time you feel like it—without having to use an internal passport, like many nations require. How do I know the right to travel is a fundamental right? Because Edwards v. California, 314 U.S. 160 (1941) says so. Another fundamental right is Rube Goldberg combination of abortion, and the right to privacy in consulting with your doctor about having an abortion (don’t ask).
Is being gay and lesbian a fundamental right? I know--Let’s start a fight! Technically . . . not exactly. In Lawrence v. Texas, 539 U.S. 558 (2003), five and a half members of the Supreme Court held the federal constitution’s right to privacy is extended to same-sex sexual partners—meaning sex acts between consenting adults cannot be made criminal. (Justice O’Connor was the half vote). If states cannot criminalize making the same-sex beast with two backs (which violates the beast’s right to privacy), would not a complete ban on marriage or any form of civil union also violate each half of the beast’s right to privacy? I would say so—again, unless the state could come up with some good reason why same-sex marriage was “bad.”
In other words, if states allow civil unions giving some or all the protections of marriage to gay and lesbian couples, I think the states run afoul of the equal protection clause. If states try to enforce a complete ban on any form of civil unions, I think those restrictions are going to be hard sledding against the strong holding in Lawrence.
The argument on the other side is that a same-sex marriage ban in no way prevents anyone from making the same-sex beast with two backs, which gives you all the privacy guaranteed by Lawrence. The express language in Lawrence in no way extends its protections to gay marriage. Kind of. Antonin “Cassandra” Scalia, in his dissent, rends his black dress (more in sorrow than in anger), and introduces a parade of horribles how the Lawrence Court is ignoring democracy, taking sides in the “culture wars,” and making it intellectually impossible to uphold bans on same-sex marriage. Oh oh. Don’t get me wrong—I still hate the guy, but I think Fat Tony has a point. But while I would have agreed with Fat Tony about Lawrence cracking the door for same-sex marriage, I would have gone further and held absent any legitimate state interest to prohibit same-sex marriages (and I can’t think of any), then have at it kids!
The bottom line is, the future of bans on same-sex marriage are going to ride on whatever argument same-sex marriage opponents can dream up as a legitimate state interest to prevent gay and lesbian couples from marrying. Best of British luck, social conservatives.
Let’s just say there is some rational, legitimate state interest in banning same sex marriage. “Rational” is actually a key, legal term, meaning roughly “not insane.” In other words, IN GENERAL, unless laws interfere with some basic or fundamental right, federal courts will not prohibit the legislature from enacting any law that has a “rational basis.” At another time, I’m going to go off on the bullshit about so-called partial birth abortions—but not now. Suffice to say, you have to be the dumbest legislative monkey ever, if you can’t dream up SOME reason why any law is at least “rational.”
But, if being gay or lesbian, and wanting to get married is either a fundamental right at some level, or covered by the federal right to privacy, then the state must demonstrate a stronger interest, a better reason for a same-sex marriage ban (besides the fact that it is not “irrational” to ban those unions).
Offhand, I have no idea what could even be a non-irrational reason to ban same-sex marriages (especially given the states’ demonstrated lack of interest in preserving “different-sex” marriages), but let’s just say for the sake of argument, one does exist.
So far so good. Now, the first amendment of the federal constitution says “Congreff (sic) shall make no law respecting an establishment of religion,” which is known in the circles I travel as “the establishment clause.” What does that mean? It means the federal government (nor the state governments) cannot declare everyone must be an unspecified Protestant fundamentalist Christian. Sorry. It also means that the legislative branch cannot pass laws that “excessively entangle” the state with a religion. If there is a law that excessively entangles the state with religion, then that law will violate the establishment clause UNLESS 1) the state can show a secular legislative purpose, and 2) the primary effect of the law neither advances nor inhibits religion. And that, sports fans, is my summary of the Lemon test, from Lemon v. Kurtzman 403 U.S. 602 (1971).
Now, let’s apply the Lemon test to same sex marriages. Is a ban on same-sex marriage an excessive entanglement with the state and a religion? I would argue yes, given the very strong religion vibes and weak secular rationales. Then, same-sex marriage bans will fall unless the same-sex marriage opponents can show BOTH a secular legislative purpose AND how a same-sex marriage ban neither advances nor inhibits religion.
Looking at the states that allow “civil unions” that give all the protections of “marriage,” with the only practical difference being one is called “civil union” and the other “marriage,” what is the secular legislative purpose for the distinction? And how does a same-sex marriage ban not advance the religious views of those who think god hates same-sex marriages, and inhibit the views of those who think god loves same-sex marriages? Talk about things that make you say “Hmmmmm.”
In conclusion, I am arguing that even under the best of circumstances, same-sex marriage bans have to fail under the equal protection clause, and/or as a violation of the federal right to privacy under Lawrence v. Texas, and/or a violation of the establishment clause under Lemon v. Kurtzman.
I hate you. Lynch involved an action brought against the city of Pawtucket, R.I. Every year at winter solstice (cough cough), the city would bring out a pile of “holiday” (ahem) decorations purchased and maintained with public funds. These decorations included coloured lights, Santa and Santa’s house, a Christmas tree, reindeer and other cute animals—Oh yeah: and a life-sized nativity scene of Joseph, Mary, Baby Jesus…big bang, the whole gang. Now riddle me this, pals and gals: is the purpose or primary effect of a nativity scene to affiliate the city of Pawtucket with Christian beliefs associated with Christmas? Not if your name is Warren Burger. Quoting from the Oxford Guide to U. S. Supreme Court Decisions (second edition): the court held the nativity scene “served the legitimate secular purpose of symbolically depicting the historical origins of the Christmas holiday”—when viewed within the scene’s “context.” Which means (I guess), as long as you have Santa standing with either the shepherds or the wise men, then it’s not a “Christian” display. Sure. (If you’re a wiseguy yourself, see Allegheny County v. American Civil Liberties Union, 492 US 573 (1989)—and good luck).
The point is, like everything else in life, sometimes the Supreme Court will do the stupid thing ie ignoring the unanswerable and unassailable arguments in Samsara Samizdat.
6. But What About the Children? Won’t Somebody Please Think of the Children?
The pro-segregation opponents of inter-racial marriage really missed an opportunity to push the civil rights movement back about five years, if only they had thought to shout this asinine refrain.
What ABOUT the children? Opponents to same-sex marriage claim there is a state interest in protecting “the children,” because the children from same-sex marriages are all twisted, depraved maniacs. While some of those children certainly are (I am thinking of one in particular), there is no support—at all—for that claim. But even if it were true, same-sex couples will still have the virtually the same number of children—married or no. Additionally, states cannot argue the purpose of marriage is the promotion of Ozzie and Harriet-style families, with child procreation. Sorry, that argument’s a loser. Lots of people get married for lots of reasons besides having children. I would argue the state has no more ability to prevent those people from getting married than the same-sex couples.
But what about the children? Just this: it’s a great example of hysterical demagoguery …. but beyond that, feel free to stop thinking about the children at any time. I know I have.
7. What about the will of the People? Why are all those ACTIVIST JUDGES imposing their PERSONAL FEELINGS on the majority? Why don’t judges FOLLOW THE LAW, the way our founding FATHERS intended?
Don’t let me shock you: life at the beginning of the 21st century is different from life at the end of the 18th century. Some stuff has happened since then. Like what? Well, just for giggles: in 1803, then Chief Justice John Marshall wrote Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), which created the principle of “judicial review”—meaning it would now be the role of the courts to interpret the laws, and decide if those laws were consistent with the constitution. Big deal, huh? I mean, isn’t that what the founding fathers intended? Actually, no it’s not. At the time the constitution was drafted, judicial review was proposed twice, and both times expressly rejected. So am I saying that John Marshall was an “activist” judge? Oh baby, and how. But after two hundred years of building up a body of law, you have to be an even BIGGER activist idiot to insist that the constitution is “dead,” and that the constitution has not evolved and changed, both with each session of the court—and with the times.
Back in the day (before the constitution was drafted), a captain from the continental army by the name of Daniel Shays got all pissed off about how life was worse AFTER the revolution, so he and about a thousand other guys in Massachusetts got their guns and did something about it.
For our founding fathers, Shays’s Rebellion was the living example of a majority (people who owed lots of money) banding together to oppress a minority (people who were owed lots of money). What if the debtors used their greater numbers, and just voted to erase all their debts? OH NO!
The solution was to create a central government, with the power to ensure that the rights of the “minority” (in this case, the rich white guys) would always be preserved. Ta dah!
Well, since then, other stuff happened: the civil war was fought, the thirteenth, fourteenth, and fifteenth amendments of the constitution were enacted…cowabunga! But that basic principle is still adhered to: all Americans (in theory) are guaranteed a certain level of basic, fundamental rights; and regardless of the passions of whatever “majorities” exist, those rights cannot be imposed on.
The biggest difference is that in 1792, that minority who had their rights preserved were the rich white guys who owned property. Now, those rights are extended to everyone…even if that one is someone wanting a same-sex marriage.
Recognizing same-sex marriage is not a case of judicial “activism.” Allowing same-sex marriage is a continuation of the basic beliefs of those patron saint founding fathers. The only difference is, the rights that were first intended for the rich white guys are now extended to everyone.
In short: if it’s none of your (or the government’s) business, then butt out.
8. Your (sic) ignorant. What the founder (sic) father’s (sic) called “liberal” is not what is called “liberal” today. Its (sic) just the opposite in fact.
I’ve had people write various permutations of this at me dozens of times. What they all have in common (besides no knowledge of basic grammar), is a complete misunderstanding of “liberal” and “pluralism.”
The founding fathers (as Bill Maher would say “And by ‘fathers,’ I mean people with penises”) did not want the “government” sticking the government’s nose in their private lives. “Liberals” believe the same today. You don’t believe in abortion? Fine—don’t have one. But why are you trying to keep me from having one? Same-sex marriage is a turn off for you? Then marry someone from the opposite sex—but don’t tell me who I can and cannot marry.
“Liberalism,” meaning a basic tolerance of others’ beliefs, has the same meaning it had in 1792 that it does today. But there are some differences. For example, because of various bodies of statutes (Title VII, Title IX, Fair Housing Act, etc) you can no longer discriminate against another person on the basis of race, gender, age, national origin, etc etc. Which means while you are certainly free to be a bigot, you can’t act on it to the extent it hurts someone else.
So no, I am not ignorant. But thanks for asking.
9. So what you’re saying is that everyone has freedom of speech except Christians.
I’m saying two things. First, keeping you from imposing your beliefs on me is NOT the same thing as me imposing my beliefs on you.
Second, when was the last time you actually took a peekie at Leviticus? Yahweh certainly hates gay people. But he also hates people who weave cloth with different types of fibre, shellfish, pork, lighting fires on the Sabbath, moving around on the Sabbath, picking up sticks on the Sabbath—lots of stuff. On the plus side, Yahweh does seem to approve of slavery, genocide, subjugation of women—so he’s not all negative.
Before you go kvetching at me about how your “Christian” beliefs are getting all trod upon, do some homework about just what exactly your Good (brand, registered trademark) Book actually says, before you get in my grill about what “God says.”
Your (sic) ignorant.
10. So what?
Here’s what. If you don’t like same-sex marriage, then it sucks to be you. First, as I outlined it above, legally I think your days are numbered.
Second, and more importantly, if you look at the real politic of the situation, a majority of people under age thirty support same-sex marriage (largely under the rational of “What the hell do I care if gays and lesbians want to get married?”). From a demographic perspective, those politicians and organizations that continue to actively oppose same-sex marriage are going to be painting themselves into a corner they’re not going to like.
11. Okay, but why couldn’t you have just said that eight pages ago?
Fine. I’m ignorant.