Another reason the CA decision hurts gay people
CommentsLGBT people who have applauded last week’s California Supreme Court decision implementing same-sex marriage should think very carefully about the following sentence from the decision:
Because the California Legislature already has enacted a comprehensive
domestic partnership law which broadly grants to same-sex couples virtually all of
the substantive legal rights and benefits enjoyed by opposite-sex married couples,
plaintiffs have been relieved of the burden of successfully prosecuting a
constitutional challenge to obtain those substantive rights and benefits.
In other words, the “marriage equality” side had a much lower burden of proof because of California’s domestic partnership law. What message does that send to Americans in every other state who want to relieve the distress of same-sex couples but who also believe marriage is a male-female union (I’m thinking people like Hillary Clinton and Barack Obama, for example)? It seems to me that many such people will now be forced to reluctantly oppose domestic partnerships, civil unions, and all other non-marriage measures to ease the burdens faced by LGBT couples.
The California Supreme Court could have easily reasoned that the fact domestic partnerships were signed into law while same-sex marriage was not shows that Californians want to treat same-sex couples fairly while keeping the longstanding definition of marriage. Instead, in the name of nothing but giving California gays their first-choice moniker (”marriage”), it took a step that will probably make it harder for less progressive states to give same-sex couples any protection at all.
Nice going, guys.
The likely long-term effects of In Re Marriage Cases will be to restrict the progress of the LGBT people who face the most homophobia already in exchange for nothing more than a pat on the head for the gays and lesbians who are already the most free.
You see the “comments” button. Please, please, explain to me why this decision on balance does more good for our community than harm.
You make a valid point.
However, assuming that the marriage equality movement does not stop dead in the water, along with the associated acceptance of gays and lesbians as normal and natural, I’m not going to lose much sleep worrying about what might maybe happen in conservative states. I know that everyone in my family (conservatives and liberals alike) accepts gay marriage as an approaching reality, and they’ve all made their peace with it.
While I do think that those states who really fear gay marriage wouldn’t be much more comforted by civil unions even before this ruling, I imagine this fear of civil unions leading to full-scale gay marriage -will- make an impact on a few state’s decisions. But it’s not like conservatives didn’t fear that before -anyway-.
In any case, however, it’s not like we’re weak little puppies who are tossed about in the unforgiving tide that is the heterosexual world. If I were -really- sick of being ‘injured’ by my state’s lack of respect for my completely valid relationship, I can do what countless oppressed humans have done before, namely, pack my things up and move to where I’m not persecuted. (I live in New England, though, so I’m all right for now.)
As such, I fully expect that homosexuals who desire equality will take their own method for it; rally for equality in their home state, or move to a state that already practices it.
If they are ‘injured’ in the former path of action, they chose it. They fought for respect in an unpopular place; and I don’t think that’s something to be cautioned against.
I’ll wait and see how this plays out.
Andy
The way I view the DP law is that it was for those who’d choose a nonmarital alternative arrangement.
Remember, that both-sexed couples were also eligible, if they met the age requirement. They expressly chose to form a nonmarital union.
If the court ruling stands, then, does that negate this choice? Is DP merged with marital status such that DP as a nonmarital alternative is now abolished?
Or are all DPers now dragged into marriage in the eyes of the state government, the federal government, and the governments of the other states?
The DP law provided for recognition of DP-like statuses from out-of-state. Since the court ruled that marriage is DP-like such that the two might as well be merged into one thing, what does that mean for Civil Union in Vermont or SSM in Massachusetts?
Well, the court also said that the language of Proposition 22 prohibited recognition of SSMs from outside of California. The proposed state marriage amendment is likely to be approved and it uses the same language.
Here is the main problem. The court, and the courtcentric SSM campaign, has tried to make Civil Union or DP look like a halfway house by claiming that these localized nonmarital arrangements are marriage in all but name. They have tried to reduce the social institution to a mere label.
But voters on Proposition 22 understood there to be substance designated by that name. The Legislative Branch, against this expressed intent of the People, rapidly transformed DP into a merger with marital status — in all but name. Then came the two attempts to unconstitutonally over-ride Proposition 22. And now we have what is intended to be the coupe-de-grace by four justices of the state supreme court.
Marriage is not just the label.
But the one-sexed nonmarital alternative seeks to replace marriage with recognition of somelthing else and in doing this the advocates seek to appropriate the word marriage after it has been wrestled from the social institution itself.
This hurts society, and not just the rather narrow goal of protecting gay people, when the principles of governance are corrupted, the marriage culture is corrupted, and the language is abused.
If there is special merit in the one-sexed arrangement, then, it should be stated, very clearly, such that society can identify the type of relationship and determine if that ought to be tolerated, protected, or privileged in some manner — legally, culturally, and in social policy.
I doubt very much that it has merit apart from what other nonmarital arrangements would share.
Did you craft your original piece on the CAL decision only for the Seattle PI? If so, lucky for your Web host. It appears problematic.
I’d like to hear a clarification on your assertion that Sen. Murray (D-Seattle) told you that “people who continue to act as if marriage is a union between a man and a woman should face being fined, fired and even jailed until they relent.”
Now, one would find this an outlandish statement when coming from even a conservative blogger, but a sitting State Senator?
I contacted his office and, to the best of his knowlege, the senator’s aide said he most certainly would never make such an assertion.
I suggest you revisit your notes and make a clarification, or retraction, through the PI’s editorial channel, before they contact you.
Why isn’t DP, without marriage as an option, just a 21st cen jim crow law?
Jan-
The piece has appeared so far in four publications - The LA Daily News, the Philadelphia Inquirer, the Seattle Post-Intelligencer, and the Milwaukee Journal-Sentinel. It will also appear in at least one more major newspaper. Below are some of the things Senator Murray wrote to me:
“I would add the religious argument was used regarding religion and race in the past on the part of business owners; “I don’t have to serve a negro” or “I don’t have to rent to a Jew.” Today religious organizations can still discriminate against Jews or African Americans if they choose and so can businesses with ten or fewer employees. So if marriage equality did exist for lesbians and gays, you could (only) if your business was small enough discriminate against them.”
“If we ever pass a law that allows for marriage equality for same sex couples, then whatever current law states regarding discrimination against any married couples, should apply to them.”
As to a business owner who in an act of civil disobedience absolutely refused to behave as if a wife-wife couple were married because he believes deeply that they are not, “The law should be enforced, just as it was when either King of Gandhi engaged in civil disobedience. Both ended up in jail despite the righteousness of their cause.”
Do you think a clarification or retraction is called for? What specifically did I say he said that isn’t supported by the quotes?
Billy-
The Jim Crow laws were terrible. Laws upholding man-woman marriage are terrific. I understand that you may agree. You should speak out, and lobby, and vote using your beliefs and I will do the same using my beliefs. Since we do not agree that the laws I support are as bad as Jim Crow, or even that they are bad at all, your resorting to the race argument (which gays love to do, even when it irks African-Americans) is going to be a complete failure at persuading me.
You should also understand that while I am sympathetic to some sort of relationship recognition, if I am forced to choose between same-sex marriage and no recognition whatsoever for gay couples, I’m going to choose the latter.
So your paraphrase was wildly exaggerated. Figures.
Look for the PI to retract.
Jan-
What was “wildly exaggerated”? Do you not think “The law should be enforced, just as it was when either King of Gandhi engaged in civil disobedience. Both ended up in jail despite the righteousness of their cause” means he thinks traditionally religious people should be jailed if they absolutely refuse to toe the same-sex marriage line?
Don’t focus on getting a retraction; this piece is still slated to run in several more newspapers (today’s Milwaukee Journal-Sentinel is number four). If you can show me what’s incorrect, I still have time to fix it before the other publications go to press.
I find it odd when folks take umbridge at any comparisons between gay rights and other civil rights movements, most of which in this country revolve around race and ethnicity. I certainly agree that there are profound differences between the movement from slavery to equality for African-Americans and the struggle for equal treatment under the law for gay people. But, come on, there are also some general experiences shared by all stigmitized minorities that are relevant. Further, it’s clear that some courts (certainly the California Supreme Court) view rulings associated with racial discrimination as relevant to jurisprudence associated with gay rights.
So David, I think its a little unfair of you to duck the Jim Crow question simply based on the assertion that you don’t think the comparison with race is relevant. Why is it not relevant? Just because some African-Americans don’t like when gay people make comparisons to their civil rights struggles? Does it matter then that civil rights leaders like Coretta Scott King were perfectly comfortable with such comparisons?
If a state establishes an institution that is explicitly designed to mimic marriage (as CA did for domestic partnerships) for a select set of people deemed inappropriate for actual marriage, do you really see no similarities with laws that established a system of schools for black kids that were explicitly designed to mimic schools for white kids because the black kids were deemed innappropriate for participation in white schools? The comparison was certainly relavent for the CA Supreme Court when they explicitly mentioned the difficulties associated with “separate but equal” policy schemes.
I’m curious to hear why you seem to dismiss this seemingly logical comparison so easily.
Dan, the CA court made the same mistake you have made. DP is not a subset of marriage. Indeed, according to the four Supremes, they mistakenly believe that marriage is now merged with DP.
So what happens to those who purposefully chose DP as an explicitly nonmarital alternative?
The anti-miscegenation system which made “inter-racial” marriage a felony, intruded upon the preferential status of the core of marriage. It selectively segregated the sexes. It was an affront to responsible procreation.
It did so in the name of identity politics and misused marriage to entrench a caste system based on features that are superficial.
But sex differentation is high relevant.
On the other hand, Gay identity is not.
Or maybe you can explain how the gay-identified one-sex arrangement merits special treatment among other nonmarital arrangements, including those which are one-sexed but not gay-identified.
I suspect that it is you, and other SSMers, Dan, who effectively supports seperate-but-equal.
Dan-
You are correct that I owe my readers are more extensive treatment of the reasons for my dismissal of civil rights analogies. I will try to write a complete blog post this week on that subject. Your request for a full response is totally legitimate. I appreciate your patience.