Same-sex Marriage, in Fits and Starts

It's been a busy couple of months on the same-sex marriage front, especially here on the West Coast. All three states are in a strong minority to the rest of the country, in terms of the direction of their pending court cases and legislative efforts. But even on the left side of the U.S., the paths to progress are not smoothly cast.

Probably the most momentous recent development is the first-level declaration of California's same-sex ban as unconstitutional, announced a couple of weeks ago. The case is certainly not over, and it appears California will appeal itself as far as the Supreme Court before a final decision is rendered. However, like in NFL replays, upper courts will need to find convincing evidence of error before overturning the Superior judge--so it's always nice to start with the right ruling than to hope for successful appeal.

And so follows a parallel ruling just today that upholds the state's domestic partnerships law, which affords all of the state benefits to same-sex couples as for married couples, short of the term. I have to assume conflict with federal benefits means they wouldn't get those, but otherwise in California they're nearly equal, which renders the marriage ban both less ornery and less useful to begin with. It certainly must look like judicial activism against the will of the voter in California, but judges are uniquely and blessedly unrestrained by popular will--if they're good judges, that is. If it is activism, it's more of that damned Republican activism, since the judge is a Goobernor Pete appointee. He certainly sounds out of control in the weak defense of his position here:

[Kramer] said the state's ban on same-sex marriage violates "the basic human right to marry the person of one's choice," and has no rational justification.

Rejecting California Attorney General Bill Lockyer's argument that California is entitled to maintain the traditional definition of marriage, Kramer said the same explanation was offered for the state's ban on interracial marriage, which was struck down by the state Supreme Court in 1948.

The judge also rejected arguments by opponents of same-sex marriage that the current law promotes procreation and child-rearing by a husband and wife. "One does not have to be married in order to procreate, nor does one have to procreate in order to marry," Kramer said.

Pure raving lunacy, I tell you.

So that's a healthy step forward. Really, if California comes to validate same-sex marriage, that's a ball almost irreversibly set in motion towards national reciprocity. Not that a good half the states won't continue to ignore the idea of homo marriages; of course they will. But the die will have been cast. California is the United States of the states. It is the brash, brilliant, arrogant, beautiful, self-absorbed and rationalizing big brother to everyone else. The rest of the states hate the idea of California and Californians, but they like actual Californians, love visiting Disneyland and Hollywood, and voraciously consume Hollywood culture at home. Will and Grace/Queer Eye chic is part of the national cultural fabric now, from the Sierra to the Ozarks and on to the Blue Ridge. If California puts a big red-lipped stamp on gay marriage, the dominos will begin falling.

So a step forward in Cali; one stutter-step in Washington. The relatively meager bill to add orientation to the list of protected classes in discrimination suits was essentially defeated by a single vote--meaning two Democrats voted with a united Republican caucus. I have to say, that the Majority Leader wasn't able to maneuver this bill to the floor for an up or down vote is curious. Perhaps people who understand WA parliamentary procedure can fill me in as to how she lost control of her agenda.

In any case, while the legislative gap seems larger than either California or Oregon, it seems the social gap is about on par with Oregon's and better than California's, and in the judicial system they seem somewhat farther along than either state, given that they've already declared it unconstitutional (like Cali, not like Oregon), and they have no amendment calling it so (like Oregon but not Cali). Conceivably, Washington could arrive with legitimized marriage first, although from today's setback you'd never know it.

And what of Oregon? San Francisco's brief marriage orgy last year was bigger, and it was also first by a couple weeks, but it ended before Oregon's did, and thus for a short time Portland was the only place you could get married by the state in America. Since the passage of Measure 36 (artfully titled One Man One Woman), arguments have been presented in suit from same sex couples licensed during that period, and as B!x at Communique has reported more than once, some kind of decision seems imminent.

Finally, also today Kansas joined the ranks of the restrictively extreme in going for the marriage-unions exacta, calling the ix-nay on both to the tune of 70% approval. Let federalism ring!

Update 3pm 4/6--
BHB at Gay Rights Watch tells us the state of Connecticut may become the first state to approve civil unions without the help of judicial intervention. Both branches of the legislature are Democrat-controlled, and while the governor is Republican, she has previously given lip service to civil unions. Having MA and CT exercise reciprocity for their same-sex unions would be an ideal East coast situation---but I get ahead of myself. Keep an eye on the Nutmeg State!

--TJ

Comments

[Squeg]

I can't figure out why no-one's coming to the obvious conclusion on this. Marriage is and always has been a religious institution. In a country that's supposedly seperating "church" from "state," state-sanctioned marriages seem to tie the two together pretty closely.

I'm not making a value judgement here, I'm just saying that we're trying to "have our cake and eat it too." We either need to accept that certain christian religious principles are integrally tied to our system of government and tell everyone that doesn't like it to stuff it, or we need to quit waffling about and finish severing the ties. This riding around in the middle is ridiculous.

So if we want to seperate church and state, then we get the state out of the marriage business altogether. We create a new legal entity called a civil partnership in which two individuals agree to take a certain level of responsibility for one-another, are given whatever rights deemed appropriate and are sent on their way. Marriages would then be optional and sanctioned by whatever religious body those involved deemed appropriate.

[Torridjoe]

No doubt Squeg, no doubt.

[Zap]

I also (also) agree. When I've heard this solution debated it is considered too radical. How can something so simple and reasonable be too radical?

[Zap]

Regarding Kansas, I'm going to guess half the states in the country do the same in the next couple years. We're already up to 18. So the country is dividing itself between states that recognize gay marriage and states that don't. California's appeal, if it makes it to SCOTUS, will be the bell-weather ruling. If CA's voters are denied by those activist judges, the plaintive wail from dominionist Christians for a US constitutional amendment protecting marriage will be HUGE. I can't imagine Congress ever getting 2/3rds behind the amendment. The GOP has to know this, but how do they explain it to Dr. Dobson? Could this issue be downfall of the rabid Christian alliance with the GOP? I think so.

[Required]

Err, Queer Eye is made in NYC. Any chance we're indulging in a little stereotyping?

[Torridjoe]

stereotyping of whom/what, Required? Television? Hollywood? Gays?

If you mean that I was suggesting Hollywood is "gay" because they make Queer Eye--and in fact QE is produced in NY--I was referring to the cultural machine, not necessarily the locus of production. Will and Grace could be filmed in Vancouver BC, for all I know.

California and NY are indeed gay meccas, although of course they're meccas for pretty much everyone else, too.