Category: Marriage Equality

It becomes the seventh state to adopt them. Doug Mataconis reflects:

In many ways, the debate over same-sex marriage began fifteen years ago in Hawaii, when the state’s Supreme Court legalized same-sex marriage. Voters responded by becoming the first state to outlaw same-sex marriage,  and the case also set off a nationwide debate that resulted in passage of the Defense of Marriage Act. So in many ways, with yesterday’s decision by the Obama Administration to not appeal the DOMA cases and this development in Hawaii, the gay marriage debate has come full circle. This time, though, its moving in the opposite direction.

Meanwhile, Maryland is on the cusp of getting marriage equality.

Both sides on the marriage equality front are hyper-ventilating about the Obama administration's decision not to defend  in court the third section of DOMA as constitutional with respect to already married same-sex couples in various states and DC. Here are two representative emails. From the Christianist right, a fundraising email from NOM:

This is it. The whole ball game. If we back down here, it will be all over.

From gay blogger, Rex Wockner:

DOMA can't withstand heightened scrutiny, Prop 8 can't withstand heightened scrutiny, and pretty much any governmental anti-gay thing ever simply cannot withstand heightened scrutiny. Huge.

But there are some obvious points against this analysis, it seems to me. The first two sections of DOMA remain. So no state will be forced to recognize civil marriages from another (something that  was the case and would be the case without DOMA, given legal precedents). Indeed, DOMA will remain in full and enforced by the DOJ until or unless the Supeme Court rules it as unconstitutional or the Congress repeals it in whole or in part.

What's left is the federal government's recognition of heterosexual civil marriages in one state but not of homosexual civil marriages in the same state – and it's here that attorney general Holder says that, given legal precedents already set, making such a distinction, as DOMA's Section 3 demands, violates equal protection rights under the Fifth Amendment. In the view of the Justice Department, laws discriminating in that way against gays as a class require "heightened scrutiny" in the Courts and when this is applied, it is clear that irrational discrimination is unconstitutional, and the Justice Department will no longer make that argument.

The reason Holder gives is that two new cases require the federal government to take "an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue." If forced to make such a judgment, which it hasn't had to make before, the Obama DOJ refuses. And so it withdraws from the defense of that provision of the law in the courts. Generally, the Obama administration has been punctilious in defending DOMA and even DADT in the courts, as well as other legislation on the books. But, Holder argues,

"this is the rare case where the proper course is to forgo the defense of this statute.   Moreover, the Department has declined to defend a statute 'in cases in which it is manifest that the President has concluded that the statute is unconstitutional,' as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001). "

Who can defend the statute? The Congress:

Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.

And so Obama has basically tossed the ball on this to the Speaker of the House, John Boehner. It's interesting that Boehner's immediate response is not to grandstand on the core issue but to change the subject to the timing:

"While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation."

But these cases are pending and the DOJ had to make a decision one way or the other. So will Boehner. This used to be a no-brainer. But as the polls show greater acceptance of gays and marriage equality, as the old arguments against it begin actually to repel previously anti-same-sex marriage legislators, as in Maryland, the Speaker is being offered to forge a defense of such discrimination in the courts. He seems queasy about that. And he should be.

 

I'm absorbing the statement, which you can read here. My thoughts soon. Meanwhile, Jim Burroway:

DOMA is still on the books, and it has not been declared unconstitutional. It does mean however that the Justice Department won’t defend section 3 of the statute which bars federal recognition of marriage of same-sex couples when that portion of the law is challenged in court. And so one possibility is that we may have a national patchwork of DOMA enforcement — it is kaput where Federal judges or their Appeals Courts have ruled against it, while it remains on the books where the courts have upheld the law or haven’t ruled. 

That would make, for example, the IRS’s administering the tax code a logistical nightmare, with some gay couples filing as married couples in some jurisdictions while others are barred from doing so elsewhere. Immigration can become a similar quagmire for transnational couples. Without, ultimately, either an appeal somewhere to the Supreme Court or repeal of DOMA itself, it’s going to be very intresting — and probably frustrating — for a very long time.

Dale Carpenter:

There are many questions to ponder, including: who will now defend DOMA and will they have standing to do so?  The DOJ suggests that members of Congress may be able to defend the federal law, but that is far from clear under the Court’s standing precedents, like Raines v. Byrd, written by Chief Justice Rehnquist. 

Elsewhere Carpenter asks whether the president now supports marriage equality. Adam Serwer:

Both of Holder's statements carefully state that they will cease to defend Section 3, without commenting on the constitutionality of the rest of the law. Section 2 still allows the states not to recognize same-sex marriages performed in other jurisdictions. But that doesn't mean that the administration necessarily believes Section 2 is constitutional. 

Jack Balkin:

Under these conditions, it becomes much more likely that DOMA will be struck down by at least one federal Court of Appeals– possibly the Second Circuit, where the latest cases are being brought–and therefore even more likely that DOMA will be struck down when it finally gets to the Supreme Court. All of my previous predictions as to how constitutional challenges to DOMA will go forward must be revised.

(Photo: Aleyna Stroud (L) and Mandy Harris kiss after requesting and being rejected for a marriage license at the County Clerk's Office in Los Angeles on Valentine's Day, February 14, 2011. By Robyn Beck/AFP/Getty Images)

National Catholic Reporter's Maureen Fielder reads a recent WaPo editorial:

[It] urged Maryland to live up to its moniker, “The Free State,” by approving marriage equality. I found some of The Post’s revelations especially interesting. It seems that the homophobic speech and false arguments touted by some opponents are turning skeptics into supporters. According to The Post, “several formerly undecided lawmakers have listened to the arguments of opponents – and recoiled at the vitriol they heard. State Sen. James Brochin, a Baltimore County Democrat who previously backed same-sex civil unions but not marriage, changed his mind after taking in what he called the "appalling" views of opponents at a Senate hearing. 'Witness after witness demonized homosexuals, vilified the gay community and described gays and lesbians as pedophiles,' he said in a statement …”

However, even if marriage equality becomes law, opponents can force a public referendum on the issue. That is, by any measure, a tougher struggle. But maybe, just maybe, too much vitriol from opponents can turn off voters as surely as it has turned off state legislators.

In the above Youtube, "Republican Sen Allan Kittleman (District 9) comes out in favor of SB 116, the Religious Freedom and Civil Marriage which would grant full marriage rights to gay and lesbian couples in the state of Maryland." Kevin Naff notes:

As the Senate inches closer to a vote, the concerns about a protracted, pitched battle have given way to a sense of inevitability. Maryland’s lieutenant governor, attorney general and former Senate minority leader have all spoken publicly about their support for marriage equality.

Earlier Dish coverage here.

A heads up from a reader:

My state, Maryland, is poised to take a big step forward this week by legalizing same sex marriage. The State Senate appears to have the 24 votes to advance the bill and the House of Delegates is more than ready to pass it.  The Governor will sign the bill without pause. 

I am proud of my state.  Our General Assembly meets only 90 days a year and passes only 1/3 of the introduced bills (by law, the only bill that must pass is the state budget).

Often, the GA will kick the ball down the street rather than tackle a difficult piece of legislation (they have been doing so with the death penalty for over a decade).  Many state senators who oppose gay marriage have stated publicly that while they oppose the bill, they will vote for it so they are on the right side of history, which amazes me.  They cite co-workers and family friends who they feel deserve the dignity of full equality.

As a heterosexual male who has been married for over 10 years, I am excited.  I live on a street with one gay couple, who this summer can be legally married (they married in their church years ago).  Their employers and the church recognize their union and now the state is catching up. Next stop – the Federal government!

More details here. From the above Youtube:

The interfaith council lead by the "Standing on the Side of Love" campaign, gathered together religious leaders of many faiths and denominations; from episcopal, to Catholics, to Jewish, to Southern Baptist and many others.  All spoke from a perspective as to why they feel their faith should support marriage equality for same-sex couples. This is father Joe Palacios comments from the Catholic perspective.

Money quote from Palacios:

Here in Maryland – the cradle of Catholicism, of the American Catholic Church – we have a long history of Catholics forging a new path for justice and freedom for all.

by Zoe Pollock

Mark Ketterson is allowed to bury his husband, a Marine, in a standard military funeral:

“They were always polite, but there was this moment of hesitation,” Ketterson recalled. “They said they’re going to need something in writing from a blood relative. They asked, ‘Are you listed on the death certificate?’ ‘Do you have a marriage license?’ ”

He was and they did, the couple having been married in Des Moines when gay marriage became legal in Iowa two years ago.

Ketterson sent a copy of the marriage license. That changed everything. “I was respected,” he said. “From that moment on, I was next of kin. They were amazing.”

by Zoe Pollock

A reader writes in to correct the media's take on the Oregon State study:

This study was intended to look at risk factors for contracting HIV. The researchers, therefore, selected heterosexual couples they deemed to be at risk. They chose subjects based on interviews of the female members of each couple. In order to be eligible for the study, the women had to be between the ages of 18 and 25 and indicate that either: they had engaged in risky behavior in the last year, such as intravenous drug use or sex with another man; they suspected their partner of engaging in such risky behavior; or they expected that either they or their partner would have sex with someone else in the next year while they were still together. In other words, the researchers selected for people who were unlikely to maintain a monogamous relationship. Everyone needs to stop treating this like a representative population. Science reporting should be more responsible than this.

You can read Dr. Pisaster's full response here.

by Zoe Pollock

JD mocks it, using the results of an Oregon State University study:

Some 40 percent of the 434 couples surveyed, whose partners were ages 18-25, had differing views on whether their relationships were exclusive or not. And among those couples where both partners agreed to be monogamous? In 30 percent of the relationships, at least one partner cheated. The gays have already found two solutions for this: by eliminating the word "monogamy" from their vernacular all together, or calling bullshit on the concept.

Given shifts in public opinion, Paul Waldman wants to know what 2012 GOP candidates will say about marriage equality. Bernstein expects more of the same:

Primary electorates are invariably smaller and more ideologically extreme (for both parties) than are parties as a whole. Moreover, nominations are won by winning support of party elites — activists, campaign professionals, party-aligned interest groups, party politicians. Opinions tend to flow down from those most active to the somewhat larger primary electorates. And as far as I can see, there are no changes either within the groups and leaders that make up the GOP, or in the opinions of those groups and leaders. So within the Republican nomination fight, opposition to same-sex marriage is still going to be a must-adopt position.

 

While he gives up some ground, Poulos largely defends "traditional marriage":

Like Christmas, marriage is an institutionalized tradition. And like Christmas, marriage flourishes today in a variety of forms imbued with a range of meanings. But marriage is the more important test case for contemporary traditions because the practice of marriage which we recognize as “traditional marriage” is itself the product of an immensely complicated adjudication of traditions, moralities, and aspects of human personhood. Among them we can count the following: a natural capacity for monogamy; a cultural appreciation for the noble morality of “good matches” made over generations; a separate cultural appreciation for the moral dignity of love, and the democratic character of freely made romantic matches; and a Christian (and post-Christian) appreciation for the power of a spiritual union to transcend, fulfill, discipline, educate, and redeem all our natural capacities and our cultural particularities.

I agree with much of this, although "a natural capacity for monogamy" seems a bit of a stretch for homo sapiens. But the central question James addresses is whether an institution like civil marriage can both retain its connection to its inegalitarian, undemocratic, exclusive past and also be democratized so that everyone can participate (such as women on equal footing, couples of different races, gays).

As Poulos notes, Tocqueville believed this balancing act between tradition and modernity was possible (partly through Christianity). Nietzsche didn't. I'm with Tockers, as we used to call him at Oxford (yep, freshmen history majors were once required to read all of the Ancien Regime in the original, elegant French.) But I don't believe the radical differences between marital experiences today in the West – gay, lesbian and countless variations of straight – can be fully culturally reconciled in modernity.

But they can be lived with – and we do.

Legally, we accept voluntary arranged marriages as civil marriages in America; we accept self-consciously childless marriages; we embrace Mormon marriages and totally secular civil sexually open marriages; we accept second and third marriages as legit; and we accept Santorum-style marriages where reproduction is the core goal and divorce unthinkable. How do we do manage to include all these experiences as part of the same core institution? James has an expression that captures my view:

If our democratic age cannot abide such a closed system [of strictly traditional marriage], the alternative may be a tacit agreement to keep two sets of cultural books, so to speak—with official and unofficial spheres of life largely replacing the customary public and private.

This is the argument in the closing chapter of Virtually Normal – and also explains why I put that "virtually" in the title. Civil equality need not mean an erasure of cultural or religious difference. That is why, as a longtime activist for marriage equality for gays, I also strongly support and respect much more traditional marriages. And any civil attempt to delegitimize the truly traditional should be fought, in my view, by the marriage equality movement.

Modernity requires living with cultural contradictions. And the worst response to modernity is to try and stamp those contradictions out, rather than finding ways to live them, with mutual respect, and civility.

(Photo: a bas relief in Cana, Lebanon, where the famous marriage in the Gospels is believed to have taken place.)