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Monday, August 16, 2010

Where the Road Goes from Here

From Friday's NYT editorial, "In Defense of Marriage":
On Wednesday, unless there is an order from the United States Court of Appeals for the Ninth Circuit, gay and lesbian couples in California once again will be able to marry. Like other couples around the world, they will be able to pledge to support each other, buy some dishes, raise families, argue about the bills, maybe sit on a park bench years from now and chuckle at the hysterical old claims that their lives together would destroy the institution of marriage. . . .

Because of Judge Walker’s firmly reasoned and occasionally soaring decision earlier this month, there was no reason to continue the prohibition. After a full-blown trial that gave opponents every opportunity to prove the harm caused by same-sex marriage, the court found that it caused no harm whatsoever to the state or society. But substantial harm was caused to gay and lesbian couples by depriving them of their constitutional rights.

There already are 18,000 same-sex couples in the state who were married before Proposition 8 was passed, and their presence does not seem to have damaged relationships between men and women. The State of California filed a brief with the court urging that marriages be allowed to resume immediately, making it clear that it would impose no burden and would, in fact, serve the public interest. . . .

But even if Judge Walker’s ruling stands in California, it would be a shame if the case stopped there. Only through appeals, first at the Ninth Circuit and, ultimately, the Supreme Court, is there a chance that the principles set down by Judge Walker will apply to the entire country. Yes, there is the possibility that the judgment could be struck down, but it is sometimes necessary to take big risks to get important results, as the lawyers behind this lawsuit have demonstrated. If same-sex couples in California have the constitutional right to be part of the mainstream of society, then so should every couple in America.
Well, there you go.  The New York Times says gays should be able to marry anywhere in the country.  Another breathtaking development for this old coot, who remembers that for many years, this very paper refused to use the word "gay" in its pages, clinging to "homosexual" instead, well into the 1990's, I think.

It does seem more and more that educated straight people on both coasts - where the national mindset is ultimately rooted - are swinging solidly in support of equal marriage.  A big, big change.  Which is as yet completely invisible here in small-town Texas, except that I do hear, or hear of, the younger generation - under 25 - being on the whole much more accepting of gays and lesbians in their midst than I ever thought possible.

However, I realize that not everyone up there in the blue-state wonderland supports equal marriage.  Contrast the NYT's stand with this excerpt from a recent Chicago Tribune editorial:
Judge Vaughn Walker did a thorough job of making the case that same-sex marriage would advance the same purposes the state has in sanctioning heterosexual marriage, such as "creating stable households," "legitimizing children" and "assigning individuals to care for one another." He cited plenty of evidence to indicate that fears of unwanted effects, such as undermining heterosexual marriage, are unfounded.

What he didn't do was refute the argument of a California Supreme Court justice, who in 2008 said no court has "the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice."

This federal judge insists that "the withholding of the designation 'marriage' significantly disadvantages" same-sex couples. In fact, the disadvantage is symbolic — and the nation has not had enough experience with civil unions to establish whether they will someday acquire the same cultural status as marriage.

This ruling, of course, will stand only if it is upheld by the U.S. Supreme Court, which would be a drastic and highly controversial step. But the justices might seize on the same middle option used by several states — civil unions. The court could rule that equal protection requires giving gay couples the same prerogatives granted heterosexual couples, but not by the same name.

That course offers a compromise that, while satisfying neither side entirely, accommodates each in its central concern. It would show a respect for democracy and a humility about the role of the judiciary.

It would accord with prevailing opinion: In a recent Washington Post-ABC News poll, two out of every three Americans favored providing civil unions for same-sex couples. It also would preserve the right of states to enact same-sex marriage if they choose.
So the Trib says A) judges should not strike down any laws that discriminate against a class of people, because they are judges, not legislators - and B) every state has the right to discriminate against any group in its territory if the majority feels like it - and C) give the homos "civil unions" to shut them up, but don't you dare use the M-word.  (But if it's merely a symbolic difference, why the hell not, exactly?  Answer:  because homos are different from straights, meaning not as good as.)

Well, boys, you can see as well as I can there are several problems with this line of argument.  It's the whole separate-but-equal talk I remember so well from my childhood in the legally segregated South, with its separate schools, restrooms, water fountains, etc.  (And fellas, trust me because I was there:  all those things reserved for blacks were definitely not equal to the accomodations provided for whites.)  But let me remark on just one point here:  will civil unions someday acquire the "same cultural status as marriage"?

Continued after the jump . . .

Hell, no.  The question answers itself merely by definition of terms.  If you have two things, A and B, and you make it a firm law that B can never, ever, under any circumstances, be considered as A - well then, you have separate and eternally unequal.  Just like I was saying about segregated things in the South.  Separate stuff for a minority simply gets no respect from the majority.  I know exactly the kind of mindset that operates in a situation like that:  "Oh well, it's good enough for those people . . . ."  Trust me.  This all sounds so deja vu, ya know?

And would any straight couple in Chicago or anywhere else settle for a patchwork system such as we gay people face right now?  Marriage in 5 states and DC; elsewhere, either civil unions or domestic partnerships or reciprocal beneficiaries or designated beneficiary agreements or "marry somewhere else and that's cool but you can never get divorced here," or in 31 states, an outright constitutional ban on recognition of "any legal status identical or similar to marriage."

Hell, no.  This is crazy.  Hetero couples wouldn't put up with it for a minute, having their marriage dissolve, shrink, or change to something less every time they crossed a state line, every time they took the kiddos to see the grandparents.  That's bullshit.

Plus the fact that the civil unions "compromise" the Trib is promoting would not do anything about the denial of 1,138 federal rights and protections that are denied to all unmarried couples - which is what gays would be.

No, the only fair and proper thing is one law and one rule for all couples across the nation:  and that rule is marriage, from sea to shining sea.  How we get to that point and how soon, God only knows - but anything less is a travesty of justice and an utter betrayal of the American ideal.  You aren't equal - hell, you aren't even grown up - until you can marry.

Oh, and please don't trot out that raggedy-ass argument that Judge Walker is "rewriting the definition of marriage":  you straight people have been rewriting and revising the rules of marriage since forever, just as you damn well pleased.  See Rob Tisinai's excellent post on that.
This man had the right to beat his wife, confiscate all her earnings or property and blow it on beer, sell all her dresses and jewelry, rape her at any time he felt like it, and refuse her a divorce - if she could get a judge to hear the case, which was highly unlikely.  Now the truth is, the vast majority of those old boys did not do any of those things because they genuinely loved their wives, of course - not to mention home cooking.  But if they did do those things - the law would back them 100 percent, without a doubt. 

And you want to say marriage has never, ever changed, bud?

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