same-sex marriage – Page 7

About Those Referenda….

Lots of encouraging things happened Tuesday.

Elections are always dicey propositions. People’s votes are affected by so many imponderables—I’d love to think, as someone who teaches public policy, that voters make their decisions after considering contending positions and evaluating them, but we all know better. Especially when measures affecting the lives of GLBT people are at issue, fear and homophobia and religious fanaticism have historically made a noxious—and effective—brew.

But not this year.

On Tuesday, same-sex marriage referenda were on the ballots in four states. In Washington, Maine and Maryland, voters endorsed marriage equality. In Minnesota, for the first time ever, they defeated an anti-marriage amendment.

Voters also reelected the first President who ever publicly supported the freedom to marry, along with a number of gay and gay-friendly legislators. In Wisconsin, they elected the first “out” United States Senator in American history. In a victory that particularly pleased me, Iowa voters rejected an effort to retire another of the Supreme Court justices who voted with the majority in that state’s freedom to marry case.

Now, let me be clear about one thing: fundamental rights should never be put to a vote of the electorate in the first place. No one got to vote on whether the government should recognize my marriage, and it is constitutionally improper to give me the power to vote on anyone else’s. But since, as usual, no one listens to me and my “ilk,” those decisions were put to a vote. They had to be dealt with.

Before November 6th, I think it is fair to say that most GLBT activists would have been happy to see a win of just one of these four ballot measures. The advance of marriage rights has thus far depended primarily upon the courts and occasionally legislatures—before now, every time the issue has been put to a popular vote, the gay community has lost. Winning one of these measures would have been hailed as real progress, a break in the drumbeat of constant popular defeat. Two would have been real cause for celebration. I think it is accurate to say that no one expected to win all four.

So there was a lot to cheer about in this year’s election. Bigotry lost across the board, not just anti-gay bigotry. Despite a distressing amount of racism directed toward the President, he won handily. Latinos flexed their electoral muscles. Women refused to be sent barefoot and pregnant back to the kitchen.

As elated as many of us are, however, it is well to remember that elections are just signals of change, not change agents. A lot of people who thought that Obama’s 2008 election would usher in a new era were disappointed because they failed to understand the way the system (not to mention reality) works. We don’t elect monarchs in the United States. Checks and balances mean that no matter what the intentions of the people we put in office, in order to implement the policies they champion, they must work through systems that were intended to force negotiation and compromise—systems that aren’t working very well right now. Voting was just the beginning. Changing the world takes time—and more effort than most of us realize.

But right now, we’re entitled to take some time to savor the results of this election. We’re entitled to entertain the possibility—indeed, the probability—that America has turned an important corner, and that genuine equality for gays and lesbians is closer than it has ever been.

Right now, it’s time for high fives.

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Little by Little….

A federal appeals court recently became the second such court to declare DOMA–the federal “Defense of Marriage Act”–unconstitutional. The challenge was brought by an 83-year-old resident of New York State, where same-sex marriage is legal. When her partner–pardon me, her wife–died, DOMA allowed the IRS to assess an estate tax nearly 400,000 higher than she would have owed had her spouse been a man.

The court ruled that DOMA violates equal protection, by treating couples (all of whom are legally married in New York) differently, based solely upon whether the marriage partners are of the same or opposite sex. But the ruling did something even more important: it analyzed the case under what is called “heightened scrutiny.” If this part of the ruling holds up, it will make cases alleging discrimination based upon sexual orientation much easier to win.

Doug Masson has posted an excellent summary of the case. As he reports

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” “Substantially related” means that the explanation must be “exceedingly persuasive.”. The justification must be genuine, not hypothetical and not invented after the fact in response to litigation.

The Court rejected BLAG’s argument that Congress had an important interest in passing DOMA to maintain uniformity on the issue of marriage-related benefits in protection of the treasury. The court observed that Congress has historically allowed states to go their own way on marriage. (For example, rules about age, divorce, consanguinity, and paternity.) Indeed, the sudden federal intrusion into marriage is, itself, suspicious. (All the states-rights advocates have been clamoring for repeal of DOMA, yes?)

Another justification was preserving the historical understanding of marriage. But, the court observed, ancient lineage doesn’t protect a law where it lacks a rational basis. Miscegenation and anti-sodomy laws had pretty long historical roots of their own.

Another justification was encouraging responsible procreation. The court recognized that this could be an important government interest but did not see that DOMA advanced that interest.

DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

The Court also dismissed as “far-fetched” the idea that the laws passed by Congress might actually make people gay or effect their sexual orientation. It was also not persuaded by the idea that merely getting to use the extra-special word “marriage” would, on its own, promote stable opposite-sex marriages.

Because the court concluded that same sex married couples constituted a “quasi-suspect” class and because DOMA was not “substantially related” to an important government interest, the Second Circuit concluded, it must be regarded as being in violation of the Equal Protection Clause of the 14th Amendment.

The ruling was satisfying. What was not satisfying–indeed, what was very disappointing–was the role of Indiana’s Attorney General, Greg Zoeller, who led the group of states arguing for DOMA and its constitutionality. I have generally been impressed with Zoeller; unlike the hot dogs and culture warriors and know-nothings we seem to elect, he has come across as thoughtful and modest, and willing to abide by precedent. (I realize that complimenting a lawyer on willingness to abide by the law is a bit odd, but these days, the bar is set really low.) His willingness to fight for a discriminatory law in a case that did not directly involve Indiana–a case where he was a volunteer–was disappointing.

The bottom line, however, is that despite the efforts of Zoeller and those who agree with him, equality for GLBT folks is coming.

Little by little, the barricades are coming down.

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Culture War Governor

I see from the morning news that Mike Pence is promising to attack Indiana’s economic woes by focusing like a laser on “protecting marriage.” If the nexus between those things seems a bit…shall we say “attenuated”…he explains that children of intact marriages are less likely to live in poverty.

That’s true enough. The question is whether we elect a governor to address a long-standing social issue with complex causes rooted in social change–social change a Governor is unable to affect (or evidently, in Pence’s case, understand), or whether we elect a chief executive of our state to manage budgets, pave roads, maintain state parks and improve underperforming social service agencies. Those mundane tasks clearly do not interest Mr. Pence.

We all recognize that Pence’s interest in the health of the institution of marriage rests less on his belief that intact families will lead to a better Indiana economy than on his determination to keep GLBT folks from forming those families. If Pence really cared about the health of families, he wouldn’t be waging war against Planned Parenthood, opposing access to contraception, or even more adamantly opposing the Affordable Care Act. The availability of affordable health care and family planning do have a demonstrable impact on families. Same-sex marriage just as demonstrably does not.

If Pence’s unctuous concern for the state of Hoosier marriages actually extends to the prevalence of divorce, how does he plan to insert the Governor’s office into that issue? Will he make it more difficult for the woman leaving an abusive spouse to exit that relationship? Work toward restrictive divorce policies that keep children in intact, unhappy homes?

There really are public policies that are family-friendly, that support women and children and ameliorate some of the predictable effects of single-parenting. Income supports and social services for impoverished children would make a real difference. SChip has been a godsend to thousands of them. But those aren’t policies Mike Pence has ever supported. In his case, “concern for marriage” is just a euphemism for policies that discriminate against gay people.

If Pence becomes Governor, it is going to be a long four years.

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Speaking of Love…

A friend of mine takes some sort of twisted delight in sending me the Indiana Family Institute’s newsletters. I think he just enjoys my incredulous reactions.

The latest one was filled with “the usual suspects.” Planned Parenthood is prowling the state killing babies, the poor economy is another consequence of our departure from morality–or something. And of course, allowing same-sex couples to marry is no different from incest or pedophilia.

Really?

Are people really unable to distinguish between a relationship that rests on the mutual love and desire of willing, consenting adults and those in which a person in a position of power abuses that power to exploit someone younger and/or weaker?

I’m not a fan of government intrusion into private, consensual relationships. If you and your significant other get your kicks hanging from the chandeliers or making love in wet suits, it really isn’t the business of the state to intervene. If, on the other hand, realizing your fantasies requires the “participation” of children under the age of consent, government has the duty and obligation to prevent that. The difference isn’t that hard to see.

Those who insist that same-sex marriage is a slippery slope to a hellish society in which marriage itself has lost all value have been making that argument at every social turn. Divorce would destroy the family. Women working outside the home and birth control would thwart God’s plan.

These attitudes are part of a fantasy world–a remembrance of imagined times past when children weren’t born out of wedlock, grandma and grandpa’s marriage lasted sixty glorious years, and grandpa went to work every day to support a passel of kids (none of whom, of course, were gay). As social scientists remind us, that wasn’t the way it ever was. At the turn of the last century (1900), thanks to death and (common) desertions, the average marriage lasted 12 years. Fully a third of women were pregnant at the time of their very early marriage. Men had no legal obligation to support their children until the 1920s, and plenty didn’t.

Every social change makes people uncomfortable. Those who simply can’t deal with the discomfort–those who feel diminished by changes in the culture and by efforts to the include others at the table–are sad reminders of how fragile the human ego can be, and a cautionary tale about how and why people hate.

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I’m Conflicted

A recent decision by the Illinois Attorney General has thrown me into one of those “On this hand…but on the other hand..” internal conflicts.

The Attorney General and another Illinois prosecutor have announced that they will not defend that state’s ban on same-sex marriage against a challenge being brought by couples whose application for marriage licenses were denied. Their reasoning was that they believe the ban to be unconstitutional under the equal protection clauses of both the state and federal constitutions.

I agree with that conclusion, but that doesn’t resolve the conflict.

The duty of an Attorney General is to defend the laws of his jurisdiction. It’s the duty of the judiciary to decide whether those laws are proper. Separation of powers is one of the most fundamental elements of American government, and our courts depend on the adversarial system to sharpen clarify the questions presented. And even criminals and legislators (whose ranks are not always as distinguishable as we might wish) deserve representation. It is the job of Attorneys General to defend laws whether they personally believe those laws are fair or prudent.

On the other hand, criminal prosecutors who proceed with cases against people they know to be innocent violate their oaths of office, and their duty to justice, and we rightly condemn them. They aren’t duty bound to prosecute everyone initially charged with a crime; we expect them to apply their best judgment and to proceed only when there is a substantial likelihood of guilt.

Our elected officials are sworn to uphold the Constitution. When they are convinced that a particular enactment cannot survive constitutional scrutiny, must they spend time and resources defending it? What is the weight of evidence required before such a decision is appropriate?

There are also questions of credibility: wouldn’t the people of Illinois be more likely to accept a decision by a court than one by the state’s chief lawyer?

I agree with the Illinois AG about the ban’s unconstitutionality. I’m not entirely sure I agree with her decision to forgo its defense.

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