So You Think You're Smarter than a Same-Sex Marriage Militant?

Mr. Homer J. Simpson. Former pretty much anything you can imagine activist--current activist of just about nothing. But he is militant.

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?

Shut up.

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.”

Ms. Veronica Lake. She never has anything
to do with anything I write. But you can tell
she gets me.......

So what? Here’s what: during the first conflict over what was the role for the government in marriage, pretty much every state not named Nevada believed that sound marriages were an integral part of that state’s society. Therefore, the state had a strong interest in keeping married people together—unless there was a damn good reason for the parties to “break” their wedding vows. Nevada split (no pun intended) from that tendency—not because the people of Nevada particularly cared one way or the other about marriage, but because allowing unhappy couples to get divorced for any or even no reason (“no fault” meaning no judicial finding that one party was at “fault” for the break up of the marriage) was a great way for Nevada to get hotel business. 

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?

Ms. Beverly Garland. This was from back in
the day when getting to first base was
really serious.

And the Supreme Court, in Williams v. North Carolina, ruled that for whatever bogus reason Nevada dreamed up to convince divorcing rich people to spend six weeks in their hotels, as Gertrude Stein meant to say: a judicial Proceeding is a judicial Proceeding is a judicial Proceeding. Sucks to be North Carolina, and it sucks even more about the children—Sorry.

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!).

Ms. Shirley Jones. Sing it, babe! "...and
that spells trouble, with a capital T that
rhymes with E and F and another E. And
that spells..." Oh nevermind.

4. So, with DOMA, it doesn’t matter right? If a state wants to allow same-sex marriage, fine; and if it doesn’t, it doesn’t have to. Problem solved (unless you’re one of those people who want a same-sex marriage).

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.

Equal Protection

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.

Ms. Joi Lansing. This is so boring, I have to introduce an ALMOST dirty picture, just to keep ME reading. Luckily, I think Ms. Lansing's feet are still touching the ground.

Fundamental Rights

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.

Ms. Lori Nelson. This is back when leaning
on a stool with one foot raised was really
cool. I'm not sure why.

Establishment Clause

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.

Ms. Rita Hayworth. You can never go 
wrong with Rita Hayworth. That's a tip,
kids.

5. Are you sure about the establishment clause? What about Lynch v. Donnelly, 465 U.S. 668 (1984)?

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.

Ms. Virgina Mayo. Any time you start
talking about the Federalist Papers, that's
a good time to bring in someone with 
opera gloves.

So what DID the founding fathers intend, and how is that relevant today? Well, the Federalist Papers were a series of (essentially) “Letters to the Editor,” advocating for a strong, central federal government over the states. Written by James Madison, Alexander Hamilton, and John Jay, a reoccurring theme throughout the Papers is how to build a “democracy,” but still preserve the minority from the “tyranny of the majority.” Who was the minority whose rights the Federalist Papers wanted to preserve? Rich white guys. 

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.

Ms. Merle Oberon. She is NOT doing the
cowboy Buddha dance, FYI.

Who are the ones trying to use the authority of the state to impose their values? I don’t want my tax money spent on nativity scenes, because they promote the Christian religion. Am I engaging in a “war on Christmas”? No—if you want to pay for some crazy display on private property, have at it. But just like you would never pay for a ceremony commemorating the cowboy Buddha, don’t expect me to pay for your pantheons to the generic, unspecified Supreme Being (shhh! It’s really Baby Jesus. But don’t tell).

“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.

Ms. Peggy Castle. I'm not exactly sure this is what they mean when they say "it all comes out in the wash".......

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.