Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, July 26, 2006

Another Craven Court

Today, a bitterly divided Washington Supreme Court, in six separate opinions, voted 5-4 to uphold a State ban on gay marriage.

All sides agreed that the State had a rational interest in promoting opposite-sex marriage. The difference was in where they went from there.

The majority said they had no choice but to defer to Congress's stated intentions in enacting the so-called Defense of Marriage Act (DOMA). Wrote the majority, "DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes."

The dissenters, on the other hand, lambasted the majority for rolling over and accepting the stated reasons of the Congress at face-value, rather than bravely weighing the issue themselves. "Had the Court adopted the current plurality’s mindset," wrote Justice Bobbe J. Bridge, "it would not have rectified a long list of now obvious wrongs."

The minority observed that banning same-sex marriage in fact did absolutely nothing to promote opposite-sex marriage. Justice Mary E. Fairhurst wrote simply that, "the statutory denial of the right to marry to same-sex couples cannot rationally further the proffered state interests." Quite to the contrary, they said, much of the rational basis for promoting opposite-sex marriage applied equally well, if not better, to same-sex marriage. Noted Fairhurst, "If anything, denying same-sex parents the right to marry would seem to make resolving parental rights and obligations more difficult."

In her angry opinion, joined by all four dissenters, Fairhurst wrote that the right to marry, "the person of one's choice," was a, "fundamental right," and that the majority had, "shirked its responsibility to the people," when it decided to, "condone blatant discrimination against Washington's gay and lesbian citizens." Fairhurst saved her strongest words for DOMA itself; she wrote bluntly that, "DOMA was motivated solely by animus toward homosexuals."

Justice Bridge noted--making a First Amendment argument that the Episcopalians (and USWest?) might well appreciate--that if DOMA were taken at face value as an attempt to uphold the "sanctity" of marriage, "then it is clearly an unconstitutional foray into state-sanctioned religious belief." Justice Bridge accused the majority of deliberately ignoring both, "the petitioners’ fundamental right to privacy," and also, "the legislature’s blatant animosity toward gays and lesbians."

Finally, Bridge compared the majority's reasoning to that of the majority in the (now-discredited) Bowers v. Hardwick who claimed the case was merely about, "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." Justice Bridge wrote that, "Future generations... will undoubtedly look back on our holding today with regret and even shame."

Supporters of gay marriage may take comfort in the knowledge that when this same question came before the Washington courts 32 years ago, the idea of gay marriage was unanimously dismissed by an appellate panel and the Washington Supreme Court refused to hear it.


Anonymous said...

Justice Bridge's first amendment argument is correct. But there is more to this. If you are going to talk about gay rights, lets take an even bigger perspective.

I have said time and again, how you treat minorities is who you will eventually be treated (or the Biblical version, "how you treat the least among you is how you treat me.") The gay marriage issue is also a woman's issue. What DOMA really says is that procreation defines marriage. This means, in reverse logic, that only people intending on having children should be allowed to marry. And if you carry the logic out further, it means birth control, especially within marriage, is unacceptable. It is all part of the religious conservative agenda to put women barefoot and pregnant back into the kitchen and men back to work trying to support 5 unwanted, but blessed children. The only thing that may prevent that from happening is the political active homosexual community.

Feminists have long acknowledged that gay rights and women's rights go together just as civil rights do. Suffragettes allied themselves closely with former slaves and groups like the NAACP because they saw that they had a similar cause. Today, feminists would do well to ally with homosexuals. Gay rights are even closer to women's rights because gay rights are about gender with all of its implications about power and sex.

Women's sexuality has long been ignored or degenerated as "bad". Gay sex has been seen the same way. By empowering gays, by recognizing their rights, then you are hard pressed to say that women can't have the same rights- the right to use birth control and enjoy the pleasure of unrepressed, unencumbered sex. The very idea that sex serves a bigger function than just procreation scares Christian conservatives to death! The idea that society can be built on people loving each other rather than just heterosexuals loving each others is equally scary. As society changes, so do the roles of our families and friends. It is time to recognize that legally.

As a woman, I know lesbians have furthered my rights. And historically, women who were successful, strong, and assertive were called "lesbians" as a way of "degrading" them, Eleanor Roosevelt and Maggie Thatcher for example. Then there were the jokes about Hillary Clinton being a prude and blaming her for her husband's indiscretions. I have even heard people say that Laura Bush's prudishness is why her husband was an alcoholic. Feminists have been called lesbian, as if it were a dirty word. I have had used on me as a way of trying to hurt or injure. In truth, homosexuality, gay or lesbian, is intimidating to many men and even a few women.

// posted by USWest

Anonymous said...

I thank God for the four brave votes in dissent. Ten years ago, it would have been dismissed per curiam. A good loss is sometimes better than a narrow victory, because the FIRST thing we need to do is establish that gay marriage is a reasonable position. Victory can come next, hopefully through legislatures.  

// posted by LTG

Dr. Strangelove said...

USWest writes that DOMA is part of the evangelical agenda to, "put women barefoot and pregnant back into the kitchen..." and that possibly the only political force that could thwart it is the politically active homosexual community. I hope, for the sake of women everywhere, that USWest is wrong and that more powerful forces are defending women's rights! But that cynical note aside, I strongly agree with her argument that gay rights link to women's rights.

USWest notes that female sexuality also has been long ignored and denigrated. (As "denigrate" derives from the latin word meaning "to blacken," that term seems singularly appropriate in a civil rights context.) I find it amusing--in a good way!--that USWest now sees feminists drawing strength from the gay rights movement, because up until now it has been the other way around.

The strong, liberated woman (the "diva") has been a gay icon since at least the sixties. Drag queens (especially in attitude) are (in part) an homage to the free female voice rising in opposition to staid male patriarchy. And unless I am quite mistaken, lesbians marched first for the rights of all women before they began to march for their own.

In a series of cases over the past fifty years, the courts have now held the right of one man and one woman (not too closely related, both being of legal age, and neither married to anyone else) to choose to marry each other is a fundamental constitutional guarantee that trumps all other considerations of citizenship, ethnicity, skin color, social class, age difference, parental consent, criminal record, previous marital status, physical disability, mental disability, ability to procreate, and even the ability to have sex.

So I think USWest is slightly off the mark when she says DOMA implicitly assumes procreation defines marriage. But I think she is spot on when she says that gay rights is about, "gender with all its implications about power and sex," and when she says that religious conservatives are scared by the notion that society, "can be built on people loving each other rather than just heterosexuals loving each other."

I think DOMA is about gender. DOMA says that men and women are so fundamentally different that a couple's gender matters more than sex, love, family, and commitment. Among those who support gay rights and women's rights are those who think gender is (to be simplistic) more of a physical characteristic like skin or eye color than the defining attribute of two types of person. Like slavery, marriage used to be about ownership--even after the Continental Congress declared that "all men are created equal," marriage and slavery were still a relationships in which the "other" that was owned was so fundamentally different from a white man that it made sense to treat the "other" as property.

As each generation moves closer toward understanding all people as truly equivalent in their rights and personhood, the gender-based thinking of DOMA will eventually seem an odd vestige of an older time when men and women thought of themselves as two alien species, instead of as diverse aspects of a common humanity.

Anonymous said...

I think it's bullying. The Christian community in this country has been taken over by bullies. They target groups they think are politically weak and pick on them in the name Christ. Sick people. Back in the 50's social scientists used to do psychological studies of the presumed "mental illness" that made people communists. I'd love to see the same analysis of what makes people Christian conservatives.  

// posted by Raised By Republicans

Anonymous said...

I hope I am wrong about the homosexual community perhaps being the only one that can stop the DOMA agenda. The reason I wonder, though, is because I think many women have yet to fathom the implications that things like DOMA mean to them. It is like the women who say they are pro-life, but never consider what punishment should be doled out to women who "illegally" have an abortion. I sometimes think feminists get so hooked up on the abortion issue that they fail to pay attention to the other issues that could have an immediate impact. This is why I think the gay community, where abortion is less of an issue right now, is key to the feminist ideals.

Interesting point, Dr. S about the role of Queens. You are right, but I hadn't considered that. 

// posted by USWest

Anonymous said...

To be precise, marriage was never, in the Anglo-American tradition, a form of chattel slavery or property rights. Actually, chattel slavery is the aberration - most legal systems viewed slaves as persons with very few rights, not things. The traditional term is "coverture" - where a woman's legal personality was merged with and occluded by her husband. Or as it was once commonly said, "Husband and wife become one flesh, and the husband is the master of that flesh." Even under such a system, women did have legal rights. The better legal analogy was that the husband took on the role of being father to a minor child. The first step to abolishing coverture, many on the blog know, were the "married women's property acts" of the 1820s-1840s that gave married women the right to own property in their own name, and began to restore their separate legal personage. Today, the status of a married couple is both as two separate legal persons and as one, largely at their pleasure, although governed by various rules in different jurisdictions.

In western states, the community property rules essentially create a condominium over most property. Each possesses the whole and has title to the whole, and can dispose of the whole, but each is entitled to the value of half, and to bequeath it, a right that survives the marriage. Property can be held separately as well. In the east, a more complicated regime prevails where property is generally jointly or separately owned, at their pleasure, and death or divorce results in distribution by probate or other family law, or simply 'ex aequo et bono' - not in halfsies. Right of survivorship to inherit the whole on death of the spouse prevails in the East, not the West.

In short, marriage is: (a) complicated and (b) evoving. I think the contractual view of marriage is legally inaccurate and misleading. Marriage is still a change in one's legal personalty from being wholly separate to being joined. It is a contract of adhesion, moreover, that is to say, a contract with terms fixed by the state and not alterable by the parties at will.

It should be clear that none of what I have said bears on gender or the proper placement of body parts. Nor is tradition much a part of it. Any serious survey of the history of marriage law will conclude that same-sex marriage is a wrinkle, not a 90 degree turn to bizarroworld. Indeed, there is a great irony: same sex marriage could not even be contemplated until marriage became truly gender-neutral in the mid-late 20th century (in CA, for example, the last distinctions in rights between male and female spouses came in 1974, and (not surprisingly) it abolished a rare extra   right of women vis-a-vis their separate property). Only by changing the traditional definition of marriage to contemplate a union of two equals, with no differences in rights of either gender, did same-sex marriage begin to make sense. 

// posted by LTG