Last night I stood in the heart of San Francisco’s Castro district, the epicenter of the gay-rights movement. Around me were thousands of people cheering and dancing for Barack Obama’s victory and for the promise it brings gay America. Meanwhile, on a large screen broadcasting local news it became more apparent with every passing hour that 97% of Californians had voted on the marriages of the other 3%, and a majority had found them wanting.
Over the next few days there will be a strong temptation among gay-marriage supporters to put on a brave face. It will be noted that the vote was close, 52%-48% (with absentee ballots still uncounted), which is both heartbreaking because it was winnable now and encouraging because it is winnable soon. We narrowed a gap that stood at 22% eight years ago, when Californians last voted to ban gay marriage, to just 4% yesterday. “Don’t worry about it,” I was told by one reveler who noticed I wasn’t exactly joining in the celebration swirling around me last night, “this will be back on the ballot again as ‘Proposition Whatever’ and we’ll win.”
Others are banking on a judicial end-around either through federal or state courts to overturn Prop 8. Gloria Allred, one of the attorneys spearheading the litigation that ended in the California Supreme Court marriage decision in May, has already imperiously announced she will file a lawsuit premised on what she’s calling a “new and controversial legal argument” for why this constitutional amendment is “unconstitutional.” Can’t wait to see that one.
Civil rights movements, we are often and correctly reminded, are not linear projections moving inevitably into the future. They take two steps forward and one step back. Last night, we will be told, was just a “step back” in a long fight. Besides, we are often reminded that the trajectory is in our favor, with attitudes changing very rapidly, especially among younger voters who simply do not understand why anyone would oppose letting gay couples marry.
There is something to all of this. I have always believed the fight for gay marriage would be decades long: a few initial judicial victories to get the ball rolling, accompanied by a fierce backlash, and then a long slog through state legislatures (and sometimes courts). In the next couple of years, I expect we will see full recognition of gay marriage by the state legislatures in New Jersey and New York, where Democrats took the senate last night for the first time in decades. I can foresee in the next decade gay marriage in most if not all of New England and some of the other twenty states that haven’t constitutionally banned it. California was a big prize, and would unquestionably have hastened things politically and legally, but there are others.
But the narrow margin of yesterday’s loss masks some hard facts for the gay-marriage movement. Counting the losses for gay marriage in Arizona and Florida yesterday, we are now 0-30 in ballot fights. In California, we lost under circumstances that were as favorable to our side as they are likely to be for some time. We lost in deep blue territory on a blue night, when Obama carried the state by an astonishing 61% (running ahead of the opposition to Prop 8 by more than 13%). We lost despite being on the “no” side in a ballot fight, with the built-in advantage that gives you among those who vote “no” on everything out of understandable proposition fatigue. We lost despite the state attorney general changing the ballot title to reflect that it “eliminates rights,” something most Americans don’t like to do no matter the subject.
All of this suggests to me that actual support for gay marriage in California is something less than the 48% vote we got. My best guess is that actual electoral support for gay marriage in California is somewhere in the low 40s, when you factor out ballot fatigue, the blue tide, and the favorable ballot title – all of which you would have to presume in trying to reverse Prop 8 in a future initiative requiring an actual “yes” to gay marriage. And, of course, to reverse Prop 8 we'll have to raise lots of money and put together a petition drive just to get to the ballot. My estimate is that last night’s loss – barring federal or state judicial intervention to undo Prop 8, which I regard as unlikely – means there will be no gay marriage in California for at least a decade.
Something else, however, concerns me even more than whether particular tacticians can manipulate a vote by a sufficient few percentage points to eek out a narrow win in the next few years in California and other states. That something else is much deeper.
Over the past few days I’ve volunteered at various sites in the Bay Area trying to get people to come out and vote against Prop 8. This included speaking at a rally, distributing literature, and holding up signs to passing motorists. While I got an overwhelmingly favorable reception, not surprising for the Bay Area, I saw firsthand an angry and ugly underbelly of the opposition to gay marriage. I was called a “sicko,” had the Bible cited to me more than once, was asked whether I’d want my "own child to be one,” and was told that “they” molest lots of children, among other things.
The reality is that to a very large part of the country, and even in the bluest parts of the bluest states, homosexuality is not seen as normal and gay relationships are not seen as healthy and contributing to a society’s well-being. Whether that’s because of religion or because of the “ick” factor or some combination of the two, it doesn’t much matter. It’s there and it’s only grudgingly and slowly giving up ground. This is especially true among blacks, some 70% of whom voted for Prop 8 yesterday even as they overwhelmingly supported Barack “God is in the mix” Obama. (Whites and Latinos narrowly opposed Prop 8.) It's also true of several major religious groups.
The smartest leaders of the gay-marriage movement know all of this. That’s why gays were invisible in the No on 8 campaign. The literature I handed out talked in generalities about “discrimination” and about how it was “wrong” and “unfair” to take away marriage from some unnamed group of people. I scoured the literature and found no reference to “gays.” The No on 8 ads featured almost no gay couples, and especially no gay-male couples, who are especially repugnant to many people according to polls. In one ad, Senator Feinstein was even agnostic about gay marriage itself (“However you feel about marriage . . . “).
I’m not faulting the No on 8 campaign for this strategy. I believe it was the only strategy that had any chance of winning under the circumstances. If the campaign had frankly presented the case for gay families and marriage we would have lost yesterday by a much larger margin. No on 8 leaders were trying to dislodge in five months what people have been taught for a lifetime about homosexuals and marriage. They were also trying to move a small group of people who don’t know what they think about gay marriage. They raised about $40 million, a record for a social-issue proposition fight, and about on par with the largely Mormon-driven fund-raising on the other side. Given the size of the task, it’s amazing that No on 8 nearly succeeded.
I also don't fault the California Supreme Court for yesterday's loss. Prop 8 was going to be on the ballot yesterday no matter what the court did, and, aside from the merits of their decision, the justices arguably helped the cause by setting a context in which a "fundamental right" was being "eliminated." Despite the ads by the Yes on 8 campaign trying to stoke populist resentment of activist judges, I doubt that many people who otherwise supported gay marriage voted for Prop 8 just to smite the arrogant tyrants in black robes.
Mostly, my heart breaks for the gay couples and their children who had a five-month window in which their families could celebrate the ultimate expression of commitment and love our culture knows. There was nothing academic about any of this for them. They don’t really care whether they get to marry by court decree, or legislation, or proposition. They simply want the protection, security, and support they believe marriage gives them. They want their families and communities to understand how much their relationships mean and how fiercely they will fight to protect the children they love. Over the past few days, I’ve fielded questions from some of them looking for some reassurance about what happens now, but I do not know what is going to become of their marriages. (See Eugene's interesting speculation on that topic.) Today, they have no idea whether they have just been divorced by their fellow citizens.
On Sunday, I spoke to a rally of about 100 of them in Vallejo. It was held in a park bordered by rolling and largely barren, brown hills, which funneled a chilly wind onto us. The park was empty. It was all gay and lesbian couples, many of them with young children. Some had gotten married already and others were planning to do so before the vote, just in case. They were wearing red and carrying signs. They were full of hope. They would be heading out that day to form a human sign constituting the words “No on 8" by the side of the freeway, trying to capture the attention and hearts of thousands of passing motorists in a state of 40 million people. It seemed an impossibly small group taking on a lot for themselves.
We are going to get gay marriage in this country, but that day is now a little farther away.
However, we're close. History is on our side. Given enough time, we will see equality.
On another note, I want to thank you. I'm not a Californian, but I contributed money to the effort. Still, you gave something more important: your time. I really respect that, and I appreciate it. So thank you.
At least you are trying to use the proper paths to amend the constitutions of this land, which is through the people that are the government. Your openness about trying to use the courts to impose your morality on the people is appreciated.
I only wish more people understood the tyrannical intentions of you and people like you in using the courts.
Imagine what you would have been called if you had been handing out McCain-Palin literature.
What benefits are there to being married that cannot be set up through other legal means, such as wills and powers of attorney?
Even this post doesn't deliver--the closest it gets is the rather bland "They simply want the protection, security, and support they believe marriage gives them." Ok, they believe that there's something mystical about the term marriage--but is there any "there" there?
While there is certainly plenty of the "sicko" type of opposition, there are also very many decent people who, while they may have moral or religious principles against homosexual practices or the "gay community," are primarily motivated in their opposition to gay marriage because the word "marriage" has a pretty consistent history for several thousand years in our culture, and almost all the cultures which fed into our culture. It should not be redefined by a mere 51% support of the populace, and certainly not by judicial fiat.
So I say, take the civil union deal while you continue laying the ground work for long-term success. That route has much better odds of long-term political victory. Repeated voting on the SAME THING over and over, year after year, is not likely to wear people down. No, that's more likely to cause people to get fed up with the movement and its demonstrated contempt for anybody who opposes them on this political issue.
Are you disappointed with Obama for his tepid support of the No on 8 campaign?
With such a landslide, it appears that he wouldn't have been hurt doing a last-minute ad geared specifically towards African-American voters. In some odd sense, he is responsible for this, as the increased turn-out among that constituency is what put Yes on 8 over the 50 percent mark.
IMO some of the issues raised in the pro-Pop. 8 ads are legitimate. Judicial action is not an effective subsitute for the political process in fashioning compromises between competing groups.
Proponents of gay marriage in California should examine the issues raised by the proponents of Proposition 8 and consider how to address those concerns if they ever want to have gay marriage in California. Bad-mouthing those concerns and the people who have them is not a winning technique.
You can work towards your goals or whine about the injustice of the universe.
It will have more ligitamacy if it is done by the ballot rather than by the judge and so in my opinion the ballot is the better option even if it takes longer.
But when will gay groups wake up and realize that the Democratic position on gay marriage is no different than the Republican position and neither party will change so long as gay votes are guaranteed to one party over the other? There is no better way to get your issue recognized than to make them work for your vote.
That's all very fine, but let's get down to the nitty-gritty: what couples are allowed to file joint income tax returns (effectively allowing those with great disparity in income to lower their taxes)?
Conversely, which ones will be required to file under the onerous "'married' but filing separately" status if they can't get the other half of the couple to agree to file jointly?
What benefits are there to being married that cannot be set up through other legal means, such as wills and powers of attorney?
I think I just answered your question. There's no way an unmarried couple can qualify for joint income tax filing status.
Are you married? Do you plan on getting married? If so, what advantages does marriage have over using other legal means, such as wills and powers of attorney?
From a psychology and values standpoint, marriage is a show of commitment, both to yourself and to the world at large, that is impossible to replicate. Saying "this is my wife" has a deep and immediate meaning that cannot be duplicated by saying "this is my life partner, with whom I have a variety of legal arrangements including trusts, wills and powers of attorney."
From a practical standpoint, marriage is a relatively easy and streamlined process that allows couples to make a commitment to one another without a lot of transaction costs. Setting up individual legal arrangements to mimic marriage would be vastly more time consuming and expensive.
I'm sure there are other answers, but those are the ones that popped into my head.
there's a clear answer, which the State of California can do nothing about, by itself: all the rights reserved to "spouses" under Federal law, which cannot be conferred by contract, civil union, or domestic partnership. These include rights to an interest in various employee benefits under any plan governed by ERISA, joint bankruptcy filing rights, and certain tax benefits.
It's my impression that the intention of the litigants in the Marriage Cases, other than symbolic (which I do not gainsay) were to put California SS couples in a position such that IF the Federal Defense of Marriage Act is repealed, and the Feds leave determination of who's a "spouse' to the separate states, California SS couples would be situated identically to opposite sex couples, in respect to Federal law, i.e., under state law, they'd actually be "spouses", as contrasted with their status prior to July '08, when they were "domestic partners subject to all rights and responsibilities of spouses under the California Family Code"
There should be no such thing. Everyone should have to file individually.
Because the state legislature has gone so far in giving domestic partnerships virtually all of the substantive legal benefits of marriage, I viewed my vote in favor of Proposition 8 precisely as a way to "smite the arrogant tyrants in black robes."
Next time, try running ads of the two-mommy and two-daddy families. Would you rather lose with those pictures, or a shot of the State Superintendent of Education?
...and that ain't the American deal.
If so, then Prop 8 effects might last longer than 10 years.
The first would be if one could find some technicality in the proceedings which would invalidate the petition process. One could in essence invalidate the process by which the proposition was enacted and hence invalidate the constitutional amendment. In my state, a number of initiatives had been invalidated in the courts because the initiatives failed to meet initiative requirements.
The second would be if the state overstepped its boundaries under the US Constitution. For example, if one had a state constitutional amendment banning African-Americans from moving to the state, that would be an unconstitutional amendment to the state constitution.
If this ended up at the supreme court, my immediate thought would be that the only justice who seems unconditionally opposed to homosexuality is Scalia (Read Thomas's dissent in Lawrence where he finds the sodomy law Constitutional, but "a waste of ... law enforcement resources" and "uncommonly silly"). One can't rely on fears of gays to drive the other 8 justices. Instead it would be a matter of actually deciding it based on their interpretations of the Constitution.
It seems to me that everyone's argument in favor of Prop. 8 and DOMA is that "gays are bad." Aside from Scalia (whom one Reason.com editor suggested was the only activist judge on SCOTUS), I don't think that argument alone will have much sway with the court. I think there would have to be a clear argument for Congressional authority, even in the absence of the idea of a right to privacy.
This is silly, childish stuff.
As someone who fundamentally objects to gay marriage, I agree with you.
Here's the deal. For people of faith, marriage is and always will be a religious sacrament. Some faiths don't have a problem with homosexual marriage. Others do. But as long as marriage is a sacrament, however defined, forcing people to accept some *other* definition as that sacrament will be a problem.
My solution is simple. The State should not recognize marriage at all as such. It should *only* recognize civil unions. It should recognize civil unions and give them all of the recognized legal status as what are currently called marriages, but should not be called marriages.
Gays are not the only folk who are hurt by the recognition of marriage in civil society. I have two elderly aunts who have lived together for a couple of decades after their husbands died. They are civil partners in every way -- they share property, costs, power of attorney, etc.
Simply speaking sexuality should play no part in the question -- homosexual, heterosexual, or in partnerships where sexuality is simply not there.
It *can* play a part in the sacrament of marriage, depending on one's particular faith.
However, as long as people try to force *me* to adjust my concept of a sacrament to fit *their* needs, I will oppose it.
The problem is that the flip side is just as valid -- I should not be in a position to tell *others* that my concept is the only valid one.
The answer is to remove the construct of marriage from the civil concept of union altogether.
The reason the No on Prop 8 did the timid ads was because of focus groups. Well, these damn focus groups kept the Dems in the minority for years, and have consistently failed us.
Looking at the ads, you would think that all the gays in California voluntarily closeted themselves. They were nowhere to be seen. The Yes people played to everyone's fears about gays, and our side totally ignored them.
AFter having read this blog for several years and learning from supporters and opponents alike regarding gay marriage, I've learned that you have to address the issues head on. You have to spell out why it won't lead to polygamy, that sexual orientation is not a choice, that we don't 'recruit' children, that gay couples currently have children, and those children deserve to have married parents, and so on.
But instead, they couched it in terms of 'fairness' and 'equality'. Nice buzzwords that mean nothing. And by dodging the issue, it just confirms people's worst fears that we are hiding the real agenda. Can't blame them, really.
The campaign was handled horribly, and you would like after several losses, we would come up with a better strategy. We need to educate people about what homosexuality is and isn't. We have to address their worst fears, and if that means saying that homosexuality has nothing to do with beastiality, then that's what we have to do.
I hate that Prop 8 is putting such a big cloud over what is otherwise a great day. Come on, already, America. Let people stand in front of their friends and family, to dedicate their lives to the man or woman they love, and be married. A marriage is not just a bundle of civil rights -- if it were, neither side would be fighting so hard over the word. The social capital it provides will just never exist in a "domestic union."
Oh, yes, because being kidnapped, enslaved, and beaten is somehow comparable to not being able to affix the title of "marriage" to your otherwise fully recognized union.
Over half the country thinks you're a sick, twisted freak and wants to protect a *word* they consider sacred from taking on that taint, and that's too much? And at the same time you still have the temerity to scorn Polygamists and other deviants?
Get some perspective.
And should there be no such thing as community property? (Remember that joint filing status was enacted because it had been held that in community property states, each member of a married couple was effectively the recipient of half the income that the two earned together. Congress decided to give married couples nationwide the benefit of the income-splitting regime in community property states.)
The pro-Proposition 8 commercials were filled with scurrilous claims. I have seen people interviewed on the streets repeating these claims, and my girlfriend says she heard our neighbors regurgitating them, too. These folks had swallowed the propaganda whole, although admittledly they were probably predisposed to do so. The issue is simply too charged to get a fair resolution at the moment. But our time will come.
It seems to me people who are prospective parents and people who have children whose sexual identity is not yet clear ought to be asked what they would want were their children to turn out to be gay or lesbian.
Agree with PatHMV regarding moving from civil unions to marriage. While civil unions have often been called the ugly stepchild that neither side wants, they would serve to, first, cement the relationship between gay couples, and then to show the world that the sky does not fall when two men get hitched. Then, you can go in the liberal direction - marriage for everyone! - or the libertarian direction - civil unions for everyone!
As an aside, one of my friends in California said that she had no idea what Prop 8 was about (aside from gay marriage). She said that it was tough to find unbiased information about it, and she heard everything from it allowing the state legislature to create gay marriage to resulting in homosexuality being taught in schools.
Perhaps the teachers' unions were responsible for the latter. Don't count on getting over the "ick" factor when your support comes from people who have control over other people's children.
[edited for my own purposes...]
Randy, strategically, I agree with you. I think you have to address the issues head on, to educate people about what something REALLY is, to confront the slurs of the opposition head on.
I'm not talking about gay marriage, but the strategy would be the same.
That's not the first time Newsom has caused problems for the gay rights movement. The activists need to be careful.
I agree with that. Let's go beyond that to remarriages following a divorce. Some faiths allow this, some faiths don't. Forcing the Roman Catholic Church to recognize remarriages runs into the same problems.
In the end, marriage as a religious sacrament must remain a religious matter. If churches wish to object to same-sex, mixed-race, mixed-religion, etc. marriages (or those where one or both parties is divorced), they should be fundamentally free to do so. On the other hand, none of these should impact the legal status of people who fall outside what a specific religion or family of religions accepts.
When they first were all 'Keep the police out of our private bathhouses and bedrooms' I figured 'sure, that's fair'.
Without a second's thought they started doing street fairs in san fran and the tringle group in Michigan started enforcing a made-up court right to have sex in front of little kids in Meijers and rest area bathrooms. That slope wasn't slick, it was an iced sled run. The state supreme court had to step in on those cases, and the federal pro-gay judges may still give the 'right' back to them.
Now they want the right to marry and adopt little kids, that means within two years after they get the 'right' they will be demanding mandatory gay training in schools and the right to have relations with the little kids. They did it once, they will do it again.
If they had been reasonable after they won on the bathhouse/police busts, and had their bars just like the straight meat markets, but otherwise chilled out, they could have come back to society. 'Look, Ace and Lance have been together for 15 years and now that Lance is in a coma his brother who hates him is making decisions instead of the man who loves him'. They would have civil unions now.
Instead they wanted to race to the bottom in public, laugh, and give society the finger. Well, then they lose.
Let's make community property applicable to common-law marriages as well!
I'm aware of that. But Proposition 8, unlike propositions in other states (e.g., Michigan), does not prohibit the state legislature from creating domestic partnerships or civil unions with virtually the same substantive legal benefits as marriage, which means that the fight is mainly a struggle for recognition.
Umm...... Gays can adopt little kids..... As can single, unmarried men and women.
I COMPLETELY agree. It's hugely hypocritical that so many gay rights activists are all about state recognition for their own marriages as a "civil rights" struggle, but do not generally push for freedom in marriage across the board (say, to include polygamy, for which there is a well-established tradition). Personal relationships are none of the government's business. It is not the job of the government to stamp its approval or disapproval on the unions we freely enter into. It should merely enforce contracts. I will not support any voter initiative on marriage one way or the other that is not advocating exactly this position. Deny marriage "rights" to homosexuals, and deny them to heterosexuals too, because marriage is a derived "right" from the more general right of contract, and has no business on the law books.
Michigan was kind of a special case. On the down low the biggest universities were already giving gay declarations of love that were just like marriage for students and employees for everything from insurance coverage to housing.
That hit the public just as the worst of the Triangle arguments hit here, and the voters were not happy.
I don't see a place for the state in marriage, but since those (ex DC) who support gay marriage support every horrible ting in existance, I'm opposed. The major proponents claim that to be gay you have to be marxist, just as Feminists claim that you have to be a marxist to be a woman and Jesse Jackson claims that you have to be a marxist to be black.
I'd advise DC to get allies who weren't inherently tyrannical fans of genocide and who possess some talent for politics.
Lawrence shouldn't have been pursued, legislative change in the idiotic law wsa the only right path. But now we'll get more judges who believe taht text doesn't matter, only feelings. Welcome to Mao's China!
Well, that's because it isn't. A behavior shared by only 3% of the population, by definition, isn't "normal."
and gay relationships are not seen as healthy and contributing to a society’s well-being.
And for that you can blame the pro-SSM side.
Have you written even a single post about how SSM benefits society? Not how it benefits the individuals participating in it, but how it benefits society? Has there been even one anti-SSM campaign where the pro-SSM side argued that SSM benefited society? Rather than whining about non-existent "rights" being "violated"?
(You want to claim it's a right, you have to say where the right came from. The Constitution? Fine. When did the voters knowingly place that "right" in there? Because if they didn't, then it's not there. God? Why is your God more important than the God of those who disagree with you?)
Homosexuals have the exact same marriage rights as heterosexuals: You can marry an unrelated and unmarried individual of the opposite sex who's more than a certain number of years old.
Whether or not you love them is not part of the legal definition of a marriage. If it was, none of those Russian mail-order brides could marry their American husbands.
Do you want SSM? Really? Is SSM more important to you than pushing the gay agenda (by that I mean pushing the lie that homosexuality is normal)?
Because Prop 8 won because it's supporters made some good points. The majority of parents don't want their kids reading "King and King" in school. They don't want to have discussions about homosexuality with their 12 year olds, let alone their 6 or 8 year olds.
Are you willing to "leave them alone", in exchange for getting SSM? Are you willing to let them believe that homosexuality is wrong, and teach that to their kids, so long as you can have SSM?
"Live and let live" goes both ways. The "homosexual rights" community hasn't been willing to accept that. You haven't been willing to let those who disagree with you keep their beliefs, and not be assaulted by the State over them.
Until you're willing to do that, you're going to keep on losing, and deserve to keep on losing.
Not to mention that I don't understand marriage at all. But even if I did, marriage is supposed to be a sacred union between souls, shouldn't it be only the soul's business?
It is weird when we agree. "Someone you know and love is gay" doesn't fly when the Folson Street Fair hits the news.
Side story. A few years ago in Michigan in Dearborn (very arab area) a school kid showed up for class with the "Bush, wanted terrorist war criminal" tee on. The school kicked him out.
The media went running to some imam leader trying to get a good 'censorship is evil, America stinks quote', and he gave them "Good, punish the kid. A school is for learning, not making statements against the president."
What could have been nasty faded away quickly.
Many Americans would be more than happy to give homosexuals the benefits of marriage. They just don't want the word marriage hijacked.
The fact that homosexuals keep waging this fight shows that the real battle is over the word. They don't want to accept that marriage is a unique institution. They don't want the word "marriage" to refer to the union of a man and woman who come together to bring new life into the world.
If the American people are more than happy to give you people "domestic partnerships" you should be content to leave the word "marriage" alone.
(OK, they're about 8 percent, but if Greg Q can explain to me where the magic cut-off is, I'll replace this comment with another snark that meets his standards.)
I have to agree with the end of state-sanctioned marriage. Civil Unions for all, marriage if you want to go to a church but legally to the state, it means nothing.
That said, personally I do find homosexuality "icky." But heteros like me are just as icky and frankly, I find lots of things icky (speaking in tongues, etc.) but that doesn't mean they should be outlawed. As in the post above, I am in the 18-29 group that doesn't get why marriage for gays is a big deal.
If at some point the gay population gets so large that it starts interfering with the ability of the human race to perpetuate itself, we'll need to take a second look but there's no danger of that now!
ZARELLA, J., dissenting. The majority concludes that
the marriage laws,1 which define marriage as the union
of one man and one woman,2 classify on the basis of
sexual orientation, that this classification is subject to
intermediate scrutiny under article first, §§ 1 and 20, of
the Connecticut constitution, as amended by articles
five and twenty-one of the amendments,3 and that, under
this heightened level of review, the state has failed to
provide sufficient justification for limiting marriage to
one man and one woman. The latter conclusion is based
primarily on the majority’s unsupported assumptions
that the essence of marriage is a loving, committed
relationship between two adults and that the sole reason
that marriage has been limited to one man and one
woman is society’s moral disapproval of or irrational
animus toward gay persons. Indeed, the majority fails,
during the entire course of its 129 page opinion, even
to identify, much less to discuss, the actual purpose of
the marriage laws, even though this is the first, critical
step in any equal protection analysis. I conclude, to the
contrary, that, because the long-standing, fundamental
purpose of our marriage laws is to privilege and regulate
procreative conduct, those laws do not classify on the
basis of sexual orientation and that persons who wish
to enter into a same sex marriage are not similarly
situated to persons who wish to enter into a traditional
marriage. The ancient definition of marriage as the
union of one man and one woman has its basis in biology,
not bigotry. If the state no longer has an interest
in the regulation of procreation, then that is a decision
for the legislature or the people of the state and not this
court. Therefore, I conclude that the equal protection
provisions of the state constitution are not triggered. I
further conclude that there is no fundamental right to
same sex marriage. Accordingly, I dissent...
In my view, the state’s interests in promoting and
regulating procreative conduct are legitimate. Indeed,
they are compelling. I further believe that limiting marriage
to one man and one woman is rationally related
to the advancement of those interests. First, the state
rationally could conclude that ‘‘[t]he power of biological
ties means that heterosexual families are most likely
to achieve stability and successfully perform the childrearing
function.’’ A. Wax, ‘‘The Conservative’s Dilemma:
Traditional Institutions, Social Change, and
Same-Sex Marriage,’’ 42 San Diego L. Rev. 1059, 1077
(2005). Second, and relatedly, the state rationally could
conclude that children do best when they are raised by
a mother and a father, a belief that finds great support
in life experience and common sense.20 See K. Young &
P. Nathanson, ‘‘Marriage a´ la mode: Answering the
Advocates of Gay Marriage’’ (2003), available at http://
www.marriageinstitute.ca/images/mmode.pdf.21 This
belief does not denigrate the parenting abilities of same
sex couples but merely recognizes that a high level of
individual parenting ability is no substitute for having
both a mother and a father. Third, the benefits and social
status associated with traditional marriage encourage
men and women to enter into a state, namely, long-term,
mutually supported cohabitation, that is conducive both
to procreation and responsible child rearing on the part
of the biological parents.22 I acknowledge that these
rationales, although supported by experience and common
sense, are fact based and are open to debate. The
burden is on the plaintiffs, however, to establish why
none of these reasons provides a conceivable basis for
the deeply rooted societal preference for families with
a mother and a father.
The plaintiffs rely on several sociological studies that
have concluded that ‘‘children of same sex parents are
as healthy, happy and well adjusted, and fare as well
on all measures of development, as their peers.’’ These
studies, however, are far from conclusive.23 Moreover,
‘‘[t]he story of the controversy surrounding out-of-wedlock
childbearing . . . illustrates the point that knowledge
often comes too late. There is a necessary lag
between the instigation of a social change and the generation
of persuasive evidence on its ultimate effects.’’
A. Wax, supra, 42 San Diego L. Rev. 1087. Thus, it is
entirely reasonable for the state to be cautious about
implementing genderless marriage, the long-term
effects of which cannot be known beforehand with any
degree of certainty.
The plaintiffs also contend that procreation has
‘‘[n]ever’’ been the purpose of marriage. (Emphasis
added.) In support of this startling claim, the plaintiffs
note that opposite sex couples who choose not to procreate
or who are incapable of procreating are not and
never have been prohibited from marrying. Even if the
institution of marriage is overinclusive, however, ‘‘[a]
[s]tate does not violate the [e]qual [p]rotection [c]lause
merely because the classifications made by its laws are
imperfect. If the classification has some ‘reasonable
basis,’ it does not offend the [c]onstitution simply
because the classification is not made with mathematical
nicety or because in practice it results in some
inequality. . . . The problems of government are practical
ones and may justify, if they do not require, rough
accommodations—illogical, [though] it may be, and
unscientific.’’ (Citation omitted; internal quotation
marks omitted.) Dallas v. Stanglin, 490 U.S. 19, 26–27,
109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989); see also Vance
v. Bradley, 440 U.S. 93, 108, 99 S. Ct. 939, 59 L. Ed. 2d
171 (1979) (‘‘[e]ven if the classification involved . . .
is to some extent . . . overinclusive, and hence the
line drawn by [the legislature] imperfect, it is nevertheless
the rule that . . . perfection is by no means
required’’ [internal quotation marks omitted]).
I also would note that married couples who choose
not to procreate can change their minds. In addition,
until very recently, the nature and causes of infertility
were not well understood and it was impossible to
predict with certainty whether a marriage that appeared
to be barren ultimately would prove to be so. Under
such circumstances, the requirement that a married
couple consist of one man and one woman was the
requirement that the couple be able to procreate.24 In
any event, requiring proof of intent and ability to procreate
prior to—and, presumably, during the course of—
marriage would entangle the state in procedures that
are grossly intrusive, ever-changing and counterproductive.
‘‘Marriage’s social role does not rest on any ironclad,
exceptionless demand that all couples actually
achieve the optimum arrangement. Nor does the channeling
function require the elimination of all relationships
that fall short of the ideal [of procreative
marriage]. After all, adhering to an airtight rule [that a
couple must be willing and able to procreate in order
to marry] would itself entail costs and intrusions. Such
adherence would fail to accommodate the untidy,
unpredictable nature of male-female relationships and
the imperfect state of knowledge that prevents infallible
prediction about biological functioning.’’ A. Wax, supra,
42 San Diego L. Rev. 1078–79.
The plaintiffs further claim that a state policy based
on a belief that marriage between one man and one
woman promotes responsible procreation is precluded
both by the civil union law, General Statutes § 46b-38aa
et seq., and by General Statutes § 45a-727a (3), which
provides that, for purposes of adoption, ‘‘[t]he best
interests of a child are promoted when the child is part
of a loving, supportive and stable family, whether that
family is a nuclear, extended, split, blended, single parent,
adoptive or foster family . . . .’’ Specifically, the
plaintiffs contend that, because ‘‘the civil union law
provides the same state based legal protections and
obligations with respect to children for same sex couples
as for married couples,’’ and because § 45a-727a (3)
evinces ‘‘a legislative policy that family configuration is
not a relevant factor in determining the best interests
of children . . . any proffered issue related to the welfare
of children must be legally irrelevant as a reason
that the state denies marriage to same sex couples.’’ I
am not persuaded. I see no reason why the state rationally
could not continue to promote the public’s vital
interest in responsible procreation by limiting marriage
to opposite sex couples while enacting a civil union
law in recognition of the legitimate interests of same
sex couples.25 In other words, the state reasonably could
believe that limiting marriage to a man and a woman
accomplishes vital social goods, while the institution
of civil union promotes the legitimate interests of those
who enter into it. Recognition of the latter private interests
does not necessarily entail abandonment of the
former public interests.
With respect to the adoption laws, the legislative history
of § 45a-727a (3) indicates that the statute was
intended to address the situation in which ‘‘a person
already sharing parental responsibility for a child [is
prevented] from adopting a child even when absolutely
everyone involved agrees that such an adoption would
be in the best interest of the child.’’ Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 9, 2000 Sess., p. 2773,
testimony of Reverend Mark Santucci; see also id., p.
2864, testimony of Representative Patrick Flaherty
(‘‘[t]he bill makes it possible for a child who has one
parent to be adopted by a second person who shares
parental responsibilities for that child’’).26 The state reasonably
could recognize that ‘‘[t]he best interests of a
child are promoted when the child is part of a loving,
supportive and stable family’’; General Statutes § 45a-
727a (3); regardless of the sex of the child’s statutory
and adoptive parents, while rationally concluding that
the ideal family consists of both a mother and a father.
In other words, if the choice is between one parent and
two parents, there is no reason for the state ever to
prefer one parent. If the choice is between two same
sex parents and two opposite sex parents, however,
there are reasons for the state to promote the latter.
Indeed, General Statutes § 45a-727a (4) expressly provides
that ‘‘the current public policy of the state of
Connecticut is now limited to a marriage between a
man and a woman.’’ The inclusion of this provision,
which defines the state’s policy regarding the best interests
of a child, in the adoption statutes clearly indicates
that the legislature believes that limiting marriage to
one man and one woman is in the best interests of
children as a class.27 This conclusion is further supported
by General Statutes § 45a-727b, which expressly
provides that ‘‘[n]othing in . . . section . . . 45a-727a
. . . shall be construed to establish or constitute an
endorsement of any public policy with respect to marriage,
civil union or any other form of relation between
unmarried persons . . . .’’ In addition, General Statutes
§ 45a-726a provides in relevant part that ‘‘[n]othing
in th[at] section shall be deemed to require the Commissioner
of Children and Families or a child-placing
agency to place a child for adoption or in foster care
with a prospective adoptive or foster parent or parents
who are homosexual or bisexual.’’
The plaintiffs also contend that the state could not
rationally conclude that extending marriage to same sex
couples would prevent procreation and child rearing by
opposite sex couples. I agree with the plaintiffs that
it is doubtful whether any state policy could entirely
prevent men and women from procreating. As I have
indicated, however, the state could rationally conclude
that honoring and privileging marriage between one
man and one woman as the ideal setting for procreation
is conducive both to procreation and to responsible
child rearing, and that redefining marriage to be a loving,
committed relationship between two adults could
have a significant effect on the number of opposite sex
couples who choose to procreate and raise children
together. See footnote 15 of this opinion.
Finally, I address the plaintiffs’ claim that, even if
there once was a link between procreation and marriage,
such a link was based on sexual stereotypes and
other outdated notions about the nature of family life,
and such notions are no longer viable in light of the
‘‘steady legal, sociological and economic developments
since the late nineteenth century . . . .’’ They contend
that ‘‘[m]arriage is now an institution of legal equality
between . . . two parties whose respective rights and
responsibilities are equal, mutual and reciprocal. The
state’s astonishing insistence on resurrecting legal
restrictions that pigeonhole individuals . . . on [the
basis of] broad generalizations about sex roles flies in
the face of rudimentary sex discrimination law.’’ It is
undisputed that the role of women in public and economic
life has increased dramatically in the last century
and that women have achieved an unprecedented
degree of equality with men in our nation. That does
not mean, however, that the procreative roles of men
and women have changed or that there is no distinction
between the parenting roles of men and women.28
In any event, even if the plaintiffs were correct that
procreation is no longer at the center of the institution
of marriage, that would not help them. As I have indicated,
the reason that marriage between one man and
one woman historically has had a privileged social status
and has been considered a constitutionally protected
fundamental right has been society’s special
concern with procreative conduct. If the link between
marriage and procreation were destroyed, then the elevated
social and constitutional status of marriage in our
society also would be destroyed, and marriage would be
nothing but a set of statutory rights and obligations,
which is exactly what civil union is. In that case, the
trial court would have been correct to conclude that
the difference between the two institutions was merely
a matter of nomenclature.
Accordingly, I reject the plaintiffs’ claim, and the
majority’s conclusion, that redefining marriage to
include same sex couples takes nothing away from the
institution. See part VI E of the majority opinion (redefining
marriage ‘‘would expand the right to marry without
any adverse effect on those already free to exercise
the right’’ [emphasis in original]). The redefinition of
marriage takes away society’s special concern with the
institution as one involving the great societal risks and
benefits of procreative conduct. The majority’s reliance
on Loving v. Virginia, supra, 388 U.S. 1, in support of
its conclusion to the contrary is entirely misplaced. See
part VI E of the majority opinion (recognizing right to
same sex marriage ‘‘[will] not disturb the fundamental
value of marriage in our society and . . . will not
diminish the validity or dignity of opposite-sex marriage
. . . any more than recognizing the right of an individual
to marry a person of a different race devalues the
marriage of a person who marries someone of [his or]
her own race’’ [internal quotation marks omitted]),
quoting Goodridge v. Dept. of Public Health, supra,
440 Mass. 337. The laws criminalizing miscegenation
intruded on the fundamental right to procreate, and the
constitutional prohibition against this intrusion recognizes
and enhances the special status of procreative
conduct. Redefining marriage to include same sex couples
has no such purpose or effect.
Really? Wow.
I can't help but think that Barack Obama could have really made a difference if he had actively supported the "no" campaign and encouraged blacks to vote differently.
The cut-off is 6.313%. I'm surprised that you don't know that.
I think you're right. With this issue, as with evolution, Obama's stronest demographic is on "the other side," and in significant numbers.
Could an Obama supporter on VC point me to any statement that he made during the campaign about evolution/creation? Not meaning to be snarky, honestly. I just never heard him say anything on this issue. Even when the question came up regarding Palin. I couldn't say that I know for certain what his church taught on evolution, if anything.
The assumption has been, I suppose, that a guy who went to two Ivies believes in evolution. But when I was asked about this by a friend recently, I had to admit that I have no evidence that Obama is an evolutionist. Just a presupposition.
We know from his comments in one debate that he is not a supporter of SSM rights. What about the other issue?
Any takers?
Yet she will not allow her gay nephew in her home. And she can't believe that a Catholic like me can believe in evolution and yet profess to be a Christian. (The Pope believes in evolution. But I wouldn't expect that to be an argument in favor of evolution in her book. God love her.)
The horror. The horror.
One very big one is the ability to have a foreign-born spouse enter the country as a resident. Along with tax status, it is something that no hodge-podge of contracts can grant, and it has affected the lives of many people I know, including one of my closest friends, a woman whose relationship ultimately collapsed after 4 years of trying to bring her partner into the US.
Not that state-awarded marriages can do anything about that, but it would have been an important step, instead of a step back.
I am not contemptuous of those who voted for the other candidate, or for those who voted differently than me on dozens of other issues. I am contemptuous of those who voted for Proposition 8, as contemptuous as I would be of an avid segregationist.
You mean, like how it is destroyed in Massachusetts, Canada, Spain, and Belgium, among other places?
Last I checked, it's doing quite fine there.
The hedging about of marriage with law, and its subjection to judicial process, was the work of the Church, and advanced little until the second millenium, when canon law took off as a full blown legal system.
In England, there was no secular law of marriage at all until Lord Hardwicke's Marriage Act of 1753, which required that there be a ceremony and registration. Before that date, nothing. From that date on, at least until the end of the century, very little: no divorce courts, for example.
As far as I can tell, the revolutions in Europe starting with the French resulted in an aping of the canon law of marriage by the various state legal systems. Until then, there was no such thing as a civil marriage.
Somehow -- a big gap in my understanding of the story -- these English and continental developments got imported piecemeal into the newly formed American states, during the nineteenth century.
In view of how recent and ad hoc this has all been, shouldn't we be asking ourselves whether, under the circumstances of today, it would be better just to undo the whole thing, and treat marriage as the Romans did? Leave it alone as a customary, voluntary affair, and have the state merely enforce child protection and support? Any property consequences could be handled by contract between the parties, as each couple chose to do or not do.
Well, if they're "having kids" together they're pretty clearly not part of an SSM.
This is pretty good evidence that their real objective is social approbation and not the direct benefits of SSM.
I also predict that professional fund-raisers will take over the issue and its lucrative fund-raising apparatus to keep the hoo-raw going as an income opportunity for them. The last thing these guys want is a compromise which would cut off their income.
Proponents of SSM would be wise to rely only on volunteers to keep the suits from taking over. I fearlessly predict that this advice will not be taken, and that gay rights/SSM groups will be dominated by their paid fund-raisers.
There's your answer. If you keep pushing to redefine marriage into meaninglessness, then change will indeed be a long time coming.
Clearly, most people in California didn't see Prop 8 as a civil rights issue — despite having the explicit help of Jerry Brown, Barack Obama, the National Democratic Party, and millions of dollars of advertising.
What's wrong with state-recognized civil unions that have exactly the same privileges and protections as marriage?
Are you always this poor at reading comprehension? Or is it just logic you're failing at?
Because, as my post made pretty clear (see the whole "do you really want SSM" part), the issue is not "you're not normal, therefore you can't get married."
The issue is that the "homosexual rights" community agenda is "you must treat us as if we are normal", and has used SSM in MA to advance that agenda, and would have used SSM the same way in CA.
Which is to say, they would have used SSM as another way to trample over the right of people who disagree with them to disagree with them.
BTW, "not normal" doesn't necessarily equal "wrong" or "bad". I've never been a "normal" individual, and I'm usually quite happy about that. I don't object to people just for being "not normal".
I do object to them trying to force a lie on other people.
And Happyshooter,
That's perfectly absurd and you know it. Homosexuality does not lead to pedophilia. You want to justify denying equality to people based on crimes they never committed. That is just grotesque.
What exactly you mean by "they did it once, they will do it again," I can't pretend to understand.
I'm not a campaign manager so I hesitate to say that the strategy chosen by the No campaign was wrong, but every time I saw their ads (which far outweighed the Yes spending-stop with the 'Mormons bought the election' crap), I felt they were insulting the intelligence of the viewer, that we weren't smart enough to figure out that the issue was gay marriage. Maybe this strategy works with complex matters on health insurance, tort reform, alternative energy programs etc., but for something as simple and understandable as whether same sex couples should have the same opportunity for marriage as the rest of us, a little more honesty and directness might have made a difference.
Senator Obama had a different priority yesterday than the No on 8 campaign, so I understand him saying "I'm opposed to gay marriage but I oppose Proposition 8." The leaders of No on 8 have no excuse for their too clever by half message
"While I got an overwhelmingly favorable reception [as Dale Carpenter promoted No on 8], not surprising for the Bay Area, I saw firsthand an angry and ugly underbelly of the opposition to gay marriage."
People officially promoting Prop 8 were repeatedly told to engage in disrespectful behavior. Are you part of the group that calls anyone who didn't vote for Obama racist just because there are some racist people out there?
The reality is that it was the No on 8 supporters that were angry and ugly. I stood out on streets holding signs too. Wow, so you got called a "sicko". I've never been cursed at so violently in my life. I've also never had objects thrown at me from moving vehicles before. And we aren't trying to force our values on homosexuals. It is they who are trying to force their values on what is, at least at the present time, the majority of our society.
Calling this a civil rights issue is also absurd. So will you be fighting for the rights of polygamists, too? What about siblings who want to marry, or people who want to marry their children? What about marrying a child? What about an animal? There's an ick factor in all of these, too, because it goes against popular morality. So does homosexuality. It is 100% a moral issue.
With the direction moral values are going in this country, I'm sure your (lack of) values will prevail. But your movement deserves the defeat it got when it force its values--3% of the population--on everyone else through a court ruling rather than the legislative process.
The downside of Proposition 8 is, AFAIK, that it can be changed only by election as opposed to legislation. Legislation allows compromise. The initiative/referendum process does not allow for compromise, just as Chief Justice George's opinion did not. Those are just zero-sum games.
The closeness of the vote on Proposition 8 shows that SSM would have come wihtin a few years had Chief Justice George not fatally over-reached. As it is, IMO we're now looking a generation away to SSM.
Because the proponents of SSM will be dominated by their fund-raising apparatus who will go to any extreme necssary to avoid a compromise which would cut off their income.
the right to speak freely to your spouse without fear that same spouse can be forced to be a witness against you based on your admissions to her.
you can't create that right in any way i am aware, unless your "partner" also happens to be your attorney.
also, i am not aware of the law in CA, but in WA state, one need not have consent to have sex with one's spouse. iow, it's implied in cases of extreme intoxication, etc.
in cases of the unmarried, sex w/o consent is (technically) rape. in cases of the married, it must be AGAINST consent in order to be rape.
that's two quick examples.
Even, BTW, if we agree that homosexuality is "not normal" in some sense, how do you get from that to not being allowed to marry?
Perseus claimed:
Roger Schlafly claimed:
Let me make this clear: domestic partnerships are not equal in their rights to marriage. The court noted a number of substantial differences between the two. Domestic partnerships are separate and unequal (as so often happens when things are made separate).
I suspect the Prop 8 backers would object if the California Legislature offered a bill that gave all the same rights to same-sex couples under a parallel institution. We would hear that they were creating "marriage under another name, against the will of the people of California." We've heard that argument before from Prop 22 Defense Fund (essentially the same people), and that was when domestic partnerships were even more strongly differentiated from marriage.
i find male homosexuality icky, but support gay marriage. i think female homosexuality, as long as they are hawt, otoh, to be intriguing. ime, any hetero male who claims otherwise about the latter point is probably lying :)
fwiw, i also find the idea of grossly obese people having sex, or seeing them in public in tight clothes to also to be "icky".
frankly, the visual of a grossly obese man and woman having sex is ickier to me than two (fit) men doing so.
I am not proposing any laws against any of these behaviors though.
otoh, i find the idea of a parent having sex with their child, or siblings having sex with each other to be icky, and DO think it should be illegal. does that make me an incestophobic bigot? if so, fine with me. i admit it. i'm an incestophobe.
i can find no compelling reason to outlaw incest (spare me the birth defect argument - that wouldn't work with same sex incest, for instance), EXCEPT the ick factor.
and that's good enough for me.
By this I mean as follows: I am heterosexual and married. If I were to engage in sexual practices outside of marriage (heterosexual or homosexual), that would be a violation of what is expected of me in this relationship and my own commitments (which in many states are legal commitments to monogamous sexual relationships).
Secondly, many states which require at-fault divorce complaints (for example New York) allow a complaint of "constrictive abandonment" which amounts to the at-fault party not engaging in expected sexual relations in the marriage over a set time (in New York, I think that is one year).
In short, heterosexual marriage in many parts of this country involves a sexual commitment with legal backing (for lack of a more savory way to put it, a contract where both parties agree to provide sexual favors to eachother and only to eachother), not only to abstain from sex outside the marriage, but also to engage in sexual relations inside the bounds of the marriage. In return for this commitment, the state and federal governments provide a number of tax and legal benefits to help stabilize families. These benefits IMO also discourage divorce because they add an additional practical cost to getting divorced. Some of these benefits are only available as a part of the sexual contract package.
The general arguments (seen on this board and elsewhere) are that homosexuality is dangerous to society and thus needs to be discouraged. These arguments were seen in Scalia's dissent in Lawrence v. Texas but were conspicuous in Thomas's dissent only by their absence. (His full dissent is quite short so here it is):