Saturday, March 7, 2009

Laying a "Whoopsie" on their asses

On the eve of the Prop 8 court hearings, a New York Times op-ed offered a compromise that would grant relationship rights to gays and lesbians via Federal recognition of civil unions, while carving out a state by state religious exemption that reserves the term marriage to heterosexual relationships unless the state provides a religious exemption that explicitly protects churches from having to recognize gay marriage.

This quote, I think, is a key part of the article:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

Earlier this week a group of lawyers stood in front of seven judges debating whether 18,000 same sex marriages, including my own, will continue to exist as legal entities. As a result, I'm not in much of compromising mood. I think I've made it clear how important getting married has been to me.

Had this compromise been on the table prior to Prop 8 hitting the ballot, I'd probably have been amenable to it. Especially if all states would have been providing at least a basic level of same sex relationship protections. Then I look back on the Prop 8 campaign & wonder, who do I trust? The folks that flat out lied about my life and the lives of thousands of people like me, just to make a political point?

I'm tempted to say go ahead, carve out the religious exemption.

Then take away all governmental funding of religious/faith based programs. Emergency assistance, alcohol & drug programs, pre-school/headstart, etc.

That's the compromise. Churches get to discriminate, but they don't get another damn dime of governmental money. I'll even support letting the churches maintain their tax exemptions for their sanctuaries. But no more tax breaks for commercial activities. No more tax exempt 700 Club, CBN, syndicated radio shows, christian amusement parks, etc.

Because, otherwise, the "religious exemption" folks aren't compromising--that particular exemption already exists in the constitution. A compromise means both sides give up something.
In my calmer moments, I know that what I propose as a compromise is not that at all. Then I reflect on the fate of the proposed relationship protections recently dismissed out of hand by the Utah legislature and realize that in some cases, even a religious exemption isn't going to guarantee that gay and lesbian families receive the most basic of civil protections. Ultimately, however, removing those tax exemptions and federal dollars will do more harm than good. Too many people would lose assistance that is provided via religious organizations that allows them to get by on a day by day basis.

When asked if a fundamental inalienable right like free speech could be voted away by a simple majority of Californians, Ken Starr said today that the voters have that right. He went further to say that the court wouldn't and shouldn't be able to do anything about it. Ken Starr is lead counsel for the pro-Prop 8 side, dean of a law school and a supposed constitutional scholar, and we're supposed to accept his judgment that fundamental constitutional rights can be tossed aside by the whim of a slim majority? That's errant arrogance of the highest order (or as my father refers to it, bull****). Despite protestations to the contrary, the people Ken Starr is representing would like nothing more than to see all ss relationship protections and rights removed, e.g. the fate of the Utah bills.

I find myself in a position where my basic rights as a citizen of this country are negotiable. At this moment, I'm left with nothing but spite. People ask "At what cost should we provide marriage rights to gays and lesbians?" and right now I can only reply, not at the cost of my rights. Maybe I'll mellow after a couple more day's worth of distance from the court arguments.

I'm disappointed to see that Jerry Brown bailed on the oral arguments, and sent up his bumbling assistant to make the state's case to overturn Prop 8. It's like sending Barney Fife in to resolve the Israeli / Palestinian conflict. Damn it, if you're going to propose a precedent setting reading of the constitution, get your A-team ass in there to defend the proposal.

Meanwhile, I can't help but lose sleep over this. Until DOMA and Baker v. Nelson are overturned, federal recognition of my marriage is extremely unlikely. I'm not too optimistic about Prop 8 being overturned in the next sixty or ninety days, either. The first attempts at gay marriage took place at least 39 years ago, as demonstrated by Baker v. Nelson. I can't wait that long for full marriage rights on both the federal and state level, I may not be here 39 years from now. I'd be 85 years old, Steve would be 88. How many 88 year old diabetics do you know?

The court might uphold both the existing marriages and the validity of Prop 8. It just seems so nonsensical and self-contradictory. Maybe it's selfish. We didn't want to be marked out for special treatment, we just wanted to get married. Now, if existing gay marriages are upheld and future gay marriages are barred, we're going to be treated differently under state law than 99% of the rest of the gay community.

"Well, at least I got mine" is not a very pleasant or satisfying emotion.

I'm feeling depressed and anxious, and I don't like it. Nor am I looking forward to the rage I know I will feel if my marriage gets tossed by the court. My respect for the rule of law and the constitutional process only adds to the confusing welter of thoughts, feelings and emotions that are running through me right now.

But what if the judges throw out Prop 8 in its entirety? Wouldn't we be paying a steep a price to ensure marriage rights for gay couples? Judicial tyranny would be overriding the constitutionally valid will of the people. I realize that isn't a price I'm willing to pay. Amending the constitution in California is ridiculously easy. I didn't know how easy until the Chief Justice explained that the California Constitution had been amended 550+ times (a little research indicates that that number is since 1911). During the oral arguments, the justices noted that]Initiative amendments are a derived legislative power. I feel that Prop 8 is an example of that power having been abused, but I also respect that the justices must follow the constitution as it is written. So I see exactly why Prop 8 will most likely be upheld as a valid amendment. I may not like that decision, but I will respect it.

On the other hand, there's more than a little irony in the fact that 18,000 same-sex marriages will most likely remain valid because Prop 8 was written so ambiguously. At the time I got married, same sex marriage was legal. Same sex marriage was allowed in California, because the court overturned Prop 22 as a statutory provision, rather than a constitutional provision. That's well within the purview of the court. With the passage of Prop 8, a constitutional bar to same sex marriage now exists. This means that the court must follow the constitution as it is written. Now we're in a situation where new same sex marriages won't be legal, but those performed prior to Nov 4th 2008 will most likely retain their validity. This bizarre situation arises because Prop 8 is fuzzily written.

These fourteen words are the entire text of Prop 8:

"Only marriage between a man and a woman is valid or recognized in California."

It seems pretty clear, doesn't it? Only heterosexual marriage is to be allowed in California. Yet one of the questions the court considered this week is whether existing gay marriages will continue to be valid. This questions arises because the court made same sex marriage legal in California last May. 18,000 odd couples counted upon the courts decision to get legally married. One interpretation of Prop 8 could be that these marriages are no longer valid. However there is a significant amount of case law that holds that in order to be retroactive, an amendment to the California constitution must clearly demonstrate that retroactivity. The court seems to be leaning towards concluding that Prop 8 did not have a retroactive component, therefore the existing marriages must remain valid.

Here's one way Prop 8 could have been written to meet the retroactivity test:

"Only marriage between a man and a woman is valid or recognized in California, including those performed prior to the passage of this amendment."


"Only marriage between a man and a woman is valid or recognized in California, regardless of when or where performed."

I'm firmly convinced that Prop 8 was fuzzily written because the writers felt that clearly retroactive language wouldn't be supported by California voters. So the writers settled for preventing future same sex marriages. The method may seem underhanded, but it's legally valid. More importantly, it's constitutionally valid. So we're left with the situation where the future exercise of a legitimately judicially declared liberty/equal access right of a protected class has been removed by a slim majority of California citizens. That the majority was driven by an ineffective anti-Prop 8 campaign and an effective, but demonstrably deceitful, pro-Prop 8 campaign only adds salt to the wound. The slim majority issue can be fixed in the future by changing the CA constitution to require a super majority (60, 66 or 75%) to pass an amendment. This is already being done in regards to certain tax increases. Why not have the same requirement for all amendments? Granted, I hope that change doesn't happen until after Prop 8 is repealed--but before a replacement anti-same sex marriage initiative can be placed on the ballot.

Meanwhile, there are hundreds, if not thousands, of out of state couples who came to get married in California. Their marriages are going to remain legally valid in California, too.
The writers of Prop 8 have made a fatal mistake with their fuzzy writing by going for the short term gain of blocking most recognition of gay marriages in California. That's where we've got 'em. The gay community is going to be able to clutch our collective beads to our breasts and we're gonna lay a "whoopsie" on their asses. It's going to take a while, but it's going to be worth it.

nevitably, some of those legally married non-Californian couples are going to be suing in their home states for legal recognition of their married status. As a result, DOMA is going down in the next four or eight years, whether or not President Obama and the Congress get around to repealing it; Baker v. Nelson will go down with it. Federal recognition will come, and will be preceded by the reversal of Prop 8 by Californa voters.

Prop 8 is an attempt to force gay marriage back into the closet. But the writers of Prop 8 have left the closet door just that little bit open. That door will eventually get kicked off it's hinges, probably by a fierce queen in a pair of amazing sequined pumps. Or maybe by a lipstick lesbian who dons a pair of doc martens just for the occassion. More likely, it'll be the average gay folks who do it: we're done waiting and are taking action, and we're determined to be the ones who lay a big old gay "Whoopsie" on the asses of Messrs. Pugno, Starr & Dobson, et al.

Edward Everett Horton and Franklin Pangborn, wherever they are, are going to be so proud of us.

1 comment:

  1. It's important not to put too much weight on Oral Arguments. Plenty of the "Oral Argument Tea-Leaf Readers" made the wrong call on In Re: MC.

    There is still the slim possibility that the Justices will stick to their Guns, and follow the Reasoning of RE: MC - if "Marriage", as defined in California, violates the Equal Access Clause...then no one gets one.

    We all get Civil Unions instead.

    Not likely, but possible. If it happens, I will fall down laughing for a few minutes before getting to work trying to get a Proposition through to fix the whole mess.

    The other possibilities are

    1) To remove a fundemental right is a revision.

    This has never been adressed. It's still an open question. Personally, I think it's a valid one.

    2) Inalianable Rights are just that. We can no more modify the Constitution to restrict Equal Access to Marriage than we could modify it to legalize the murder of all red-heads. (Jerry Browns argument)

    As far as "Strict Religious Protection" goes, it's redundant. If redundant makes folks feel good, who cares.

    I talked to an awfull lot of elderly people (particularly the educationaly disadvantaged and first generation immigrants) last fall who completely bought the "Your Church will be forced to Marry teh Gayz" BS. For more than a few of them it was a prime driver in their voting.

    Sometimes...we atribute to the heart what is better atributed to ignorance.

    The Freedom to Marry Act will probably gain 5-6% if it reads

    "Civil marriage, as enacted by the State of California, shall be defined as the union of two consenting adults at or above 18 years of age, regardless of gender.

    No church or other religious organization shall ever be compelled by force of law to sanctify any civil marriage."

    than if it goes on the ballot without the caveat...and after all, the caveat is redundant.