Category: Marriage Equality

Axelrod has no option but this, I suppose:

"The president does oppose same-sex marriage, but he supports equality for gay and lesbian couples, and benefits and other issues, and that has been effectuated in federal agencies under his control." 

But the whole point of this ruling is to contradict this statement. If the president does not support my right to marry, then he does not support my equality, according to the ruling. And you will note that Axelrod does not provide an argument as to why the president does not support civil marriage equality. Because the real argument would be: a) I'm too afraid of the culture war to take a stand; or b) I find the notion of two women getting married icky; or c) unlike my former congregation and whole swathes of American Christianity, my religious viewpoint demands that gay people be separated from the institution of civil marriage because it offends religious sensibilities. So which is it, Mr President? Are you really for equality or not?

Walker's critical point (and beautifully put):

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

(Photo: the aisle of my own wedding ceremony.)

Ambinder lists them:

Here are the relevant facts Walker finds:

1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.
 
2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.

4. California has eliminated marital obligations based on gender.

5. Same-sex love and intimacy "are well-documented in human history."

6. Sexual orientation is a fundamental characteristic of a human being.

7. Prop 8 proponents' "assertion that sexual orientation cannot be defined is contrary to the weight of the evidence."

8. There is no evidence that sexual orientation is chosen, nor that it can be changed.

9. California has no interest in reducing the number of gays and lesbians in its population.

10. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union."

11. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

12. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

13. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the
stability of opposite-sex marriages."

Remember, these are the FACTS that Walker has determined from the testimony and evidence. These facts will serve as the grounding for the legal arguments yet to come.

And, yes, they are facts. But they are also arguments, irrefutable arguments that yield only to the principle that change to an existing institution should be considered carefully and prudently. It's now 21 years since I first articulated the conservative case for marriage equality. Today, the compelling logic of the case reaches what can only be called an apotheosis.

You can read the rulings here. Jack Balkin thinks they will be overturned:

I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not– and I do not– Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge– who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are–is in a very different position than I am.

Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

David Kopel agrees:

Balkin is right to point out that the new federal health control law could be found unconstitutional by any court which applies the Tenth Amendment as seriously as did Judge Tauro.

Dale Carpenter:

On the whole, I don’t think Gill is one of the stronger judicial opinions supporting SSM.  Its reasoning is too cursory.  It doesn’t rely on the more obvious and to me more defensible argument: that discrimination against gays and lesbians is constitutionally suspect, deserving strict scrutiny.  And unless reversed by the First Circuit, Gill could turn out to be a short-lived and expensive victory for SSM when it reaches the Supreme Court (assuming the Prop 8 case doesn’t get there first).

Adam Serwer:

Balkin writes that the ruling is "way ahead of the national consensus on the the equal protection issue." Probably. As Gabriel Arana reported, that's certainly a concern moving forward with Perry v. Schwarzenegger. But the window of time during which Democrats equivocate by supporting civil unions instead of marriage equality is coming to a close — at some point soon those politicians sitting on the fence are going to have to pick a definitive side and risk the political consequences of either alienating the LGBT vote or their other, more religious core constituencies. That may happen before there's a genuine "national consensus" in favor of marriage equality.

A key question is whether the Obama administration will appeal the ruling, and, as Jake Tapper reports, they probably will.

Jillian Weiss:

The effect of the decisions will probably be put on hold during the course of the appeal.

The decisions only affect sections 2 and 3 of DOMA — the federal benefits part. It does not require interstate recognition of marriage equality. People married in Massachusetts will still get no respect in Florida.

The decisions also only affect people in Massachusetts, though that could expand on appeal. The decisions are probably not retroactive, so that people who paid extra taxes or were denied federal benefits based on DOMA will probably not be able to get their money back. 

Ampersand:

I think this decision puts the folks who have been saying “let the states decide,” while really opposing marriage equality, in an interesting position. The ruling says that the Federal government has to respect state decisions on this — even if a state decides to recognize same-sex marriages. Now most of those folks will have to come up with some rationalization to explain why when they said they wanted the states to decide, they didn’t mean that they wanted the states to decide.

Timothy Kincaid:

Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.

I have now read Hadley Arkes' response. I'd like to quote it, but it doesn't seem to grapple with the issues at all. It relies on definitional arguments about "marriage" – arguments that have actually already been resolved in Massachusetts and upheld by its legislature, governor and Supreme Judicial Court. And there is no discussion as to why a state should be prevented by the federal government from providing full equality to its citizens, without violating core principles of federalism. Arkes seems to imply that because the federal courts struck down miscegenation bans, the federal government can enforce – against state law – inequality for gay citizens and non-citizens. Maybe you can understand his case better.

It seems to me that, however this plays out in the courts, the reasoning in these cases, and the principles they inject into the discourse, are helpful. It does seem to me bizarre that I am married in both my places of residence – DC and Massachusetts – and my marriage license is identical to every other straight couple's. But the federal government – in a way unique in its entire history – refuses to acknowledge these clear state licenses solely on the basis of the fact that I'm gay.

The federal government is both refusing to recognize what it always recognized, and creating a two-tier system where gay couples are officially designated as worth less under the law than straight ones. And this is the position of the Obama administration. And they say they are pro-gay. They aren't. They like us kept very firmly in our place. And they will now argue in the courts that second class citizenship for two percent of the population is a principle they embrace and will continue to advance – even when the states have decided otherwise.

That's their prerogative. But they're full of it. Their position on marriage is about as coherent as their position on Afghanistan.

(Photo: Same-sex couple Alexandra Khalaf (R) and Amy Sokal share a monent after they exchanged vows during a group wedding March 20, 2010 at the Andrew W. Mellon Auditorium in Washington, DC. Ten same-sex couples participated in the mass wedding after the nation's capital became the sixth place in the nation that recognized same-sex marriage. By Alex Wong/Getty Images.)

That's what Maggie Gallagher is arguing:

Kagan waded into the DOMA case, amending a brief that offered “responsible procreation” as a reason for DOMA to instead explicitly reject procreation and child wellbeing as a reason for defining marriage as one man and one woman — undermining the law she claims to be defending. We’ve seen this tactic in state litigation before: Attorneys general pretend to defend the marriage law but sabotage the case by explicitly rejecting procreation as a reason for marriage. (See Jerry Brown in California.)

If you doubt my reading of Kagan’s record, see the Human Rights Campaign’s press release, which specifically cites her support for “marriage equality” in cases before the Supreme Court as a reason for voting for her. HRC and Maggie Gallagher agree: A vote for Elena Kagan is a vote for finding a constitutional right to gay marriage that will overturn marriage laws in every state.

Every state? And when you read HRC's statement, it says "issues related to marriage equality" not marriage equality itself. Althouse examines Kagan's record on the issue. I think she makes some fair points.

After pegging her article to Pew data on America's falling marriage rate, Emily Gould reviews recent books by women on marriage:

Why would a single woman write a whole book admonishing others to marry whomever they can? Why are those who are barred from the institution clamouring to swell the dwindling ranks of the legally bound? Why, when most marriages end in divorce, are weddings more fetishised than ever? To these niggling questions, Gilbert provides a kernel of an answer. Describing the decision to take a solo trip to Cambodia after a few particularly tense weeks of travel with her fiancé, she acknowledges that it is a mistake to believe we can have "equal parts intimacy and autonomy in our lives."

"Marriage has a bonsai energy," she writes. "It's a tree in a pot with trimmed roots and clipped limbs. Mind you, bonsai can live for centuries, and their unearthly beauty is a direct result of such constriction, but nobody would ever mistake a bonsai for a free-climbing vine." After spending so much time with Gottlieb's unequivocal endorsement of marriage and horror of singleness, it was a relief to read such a perfect evocation of the virtues and drawbacks endemic to both states.

But the real collective import of these recent books about marriage may just be that it’s impossible to read them and not think about how lucky women are to be able to live in a time when marriage is no longer compulsory. Now that women have a real choice about whether or not to enter the institution, statistics reveal the results of practical cost-benefit analyses. In this light, even the exhortation to “Marry Him!” reads like progress; implicit in it, after all, is the suggestion that, unless hectored, we very well might not.

I take all these points, and of course remain devoted to the idea that this is a choice and that making a marriage work should be left to the two spouses involved, not the government or society. But I also believe that as we mature as human beings, the idea of some clipped wings can be an expansion of freedom rather than a diminution of it. We benefit from trust and mutual love and support; we are freer because of it. And freedom is not compromised by a free choice to limit our options and train our virtues in a committed relationship. That goes for gays as well as straights. And oddly enough, I think gay men of all people could benefit the most.

by Chris Bodenner

Dan Savage counters those who say that marriage equality should not be a priority for poor minorities:

Wealthy gay couples—whatever their color—can hire lawyers to draw up wills and powers of attorney and jerry-rig some of the protections of marriage. Full marriage equality will allow all gay couples—regardless of color, regardless of economic resources—to access all of the protections of marriage. Marriage equality is a social justice issue.

Towleroad on the photo:

[DC residents] Sinjoyla Townsend and Angelisa Young, partnered for 12 years, were the first couple to receive a same-sex marriage license. Young said that "It's like waking up Christmas morning."