Kill Proposition 8

It is looking good for (some) same-sex couples in California after yesterday’s Ninth U.S. Circuit Court of Appeals hearing on Prop H8.

Attorney Theodore Olson, representing opponents of Proposition 8, argued that the measure is unconstitutional and denies "the fundamental right of...citizens to marry."

Fundamental rights can’t be denied.

Two same-sex couples filed a federal challenge, saying the law violated 14th Amendment constitutional protections of due process and equal protection.

On August 4, U.S. District Judge Vaughn Walker agreed, ruling that the voter-approved ban on same-sex marriage violated the equal protection clause of the U.S. Constitution.

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker, who was appointed to the federal bench by former President George H.W. Bush, wrote in his 136-page opinion. "Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."

Same-sex marriage works for some. Opposite-sex marriage works for others. Monogamous marriage works for some. Polygamous marriage works for others. Some people don’t want to get married at all. Everyone should have their freedoms. Consenting adults should not be denied their right to marriage based on age, race, gender, sexual orientation, number of spouses, or relation.

Same-sex marriage is currently legal in five states and in the District of Columbia. The five states are Massachusetts, Connecticut, Vermont, Iowa and New Hampshire.

Vote with your feet, because while this report says…

Walker's landmark ruling led to a swift federal appeal that could ultimately reach the Supreme Court.

...Some analysts have said that the ruling could be written in a way that keeps the Supreme Court out of it and only restores the freedom to marry to same sex couples in California. It would be great if the ruling applied nationwide and was backed up by the Supreme Court, but we’ll have to wait and see what happens. In my dreams, the Supreme Court takes up the case and rules for full marriage equality nationwide, but I don’t think that is likely. What is more likely is advancing to full marriage equality based on this freedom to marry and other precedents.

Prop H8 in Court Again Today

Canada has granted the freedom to marry to same-sex couples and a court there is now dealing with the possibility of increasing the freedom to marry to polycules. Meanwhile, Proposition 8 (Prop “H8”) is back in US federal court as we fight for the freedom of same-sex couples to marry in more places in the US.

I’m cautiously optimistic. I'd like to court to quickly decide that the lower court’s ruling was correct and again lift the ban on the freedom of (some) same-sex couples to marry in California. It remains to be seen if this will go up to the Supreme Court. It would be great if this would bring this freedom to marry to all of the other states that currently have bans, too. What would be best of all is if we got full marriage equality out of this, but that is a longshot.

Opponents of Proposition 8 contend it violates the due process and equal protection rights of gays and lesbians under the U.S. Constitution by denying them the right to marry the person of their choice and by singling them out for disparate treatment without a legitimate rationale.

Let freedom ring.

Proposition H8 Update

Potentionally good news for the freedom of marriage for same-sex couples and perhaps full marriage equality for all. Opponents of California’s Proposition 8 (“H8”) submitted arguments to the federal appeals court in the case, asking the court to uphold the decision of the previous court that found Prop H8 to be unconstitutional on due process and equal treatment grounds.

See this story…

Lawyers Theodore Olson and David Boies, representing the couples, cited U.S. Supreme Court cases that called marriage a fundamental right and "the most important relation in life."

"Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals," the attorneys wrote.

From this story…

Proposition 8 is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians (id.)—who are denied the fundamental right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, or religiously unacceptable.

The same surely applies to polygamous and consanguineous marriages, which have a rich historical tradition.

From this story…

Just as the U.S. Supreme Court struck down a Virginia ban on interracial marriage without creating a new right to interracial marriage, the court could overturn California's gay marriage ban on the grounds that all persons are free to decide whether or whom to marry, Olson wrote.

We certainly agree: All persons should be free to decide whether or whom to marry. We’re glad Olson agrees with us, and we home the panel will, too.

Further Talk on Proposition 8

Can the ruling striking down Proposition 8 go beyond restoring the freedom to marry to same-sex couples to bring about full marriage equality? Tom Thoens, as quoted in “Ask Matt Labash”…

With the most recent court ruling {on gay marriage}, it would appear marriage to family members is now acceptable. If this ruling is allowed to prevail, could it result in brothers marrying brothers and sisters marrying sisters? It would also seem possible for all types of family relationships to be deemed acceptable as a new form of marriage. What am I missing in this ruling?

Labash responded…

But I’m missing how this ruling opens the door for brothers marrying brothers and sisters marrying sisters.

In the Perry v. Schwarzenegger ruling on Proposition 8, it was stated that the fundamental right to marriage can’t be denied without a good reason. Religion, personal distaste, and prejudice can’t used as the basis to deny marriage rights.

So while the case was about same-sex marriage, what basis is there to deny polygamy or consanguineous marriage that passes muster?

Due process and equal protection outweigh public sentiments.

Although he appears to be employing humor, the author actually starts to list some of the general positives to consanguineous marriage…

1. You come from similar backgrounds.

2. You have a much higher likelihood of getting along with your in-laws.

3. Over a lifetime, you would, as a couple, save a fortune on Mother’s Day cards, and you’d never have to argue about whose folks to visit at Christmas.

Seriously, some marriages fall apart because of conflicts between two different families, divided time and loyalties, etc. But consider the example of parents whose children marry. If they want, the elder and younger couple can spend every holiday (I’m using American English) together without the younger couple having to leave early or arrive late because they also need to spend time with another set of parents. Or, if the elder couple split and remarried others, there are just those two different households for the younger couple to deal with.

Every family has their own history and problems. If you grew up in the same family, you both have the same problems and history. You’re not taking on a whole new set of baggage, dealing with different traditions, etc. Even if you didn’t grow up in the same family, but reunited later, some of this advantage can be there.

My point is that there are tradeoffs to any relationship. If someone can find happiness with someone else, that is never to be pitied or dismissed. Parents may be horrified if their children fall in love (as they may be if their children come out as gay/lesbian or poly), but it could end up being a good thing for those parents.

Still, I doubt the law will ever permit it. While being gay is socially acceptable, incest is still not something to be celebrated publicly. To wit: there are plenty of gay bars, but to my knowledge, not a single incest bar.

Again, I know this is meant in humor, but there is a reason there are gay bars and no bars for consanguineous couples. Most bars are set up as places to meet new people, or socialize with a significant other, and maybe a friend and his or her SO. It becomes obvious why there is a need for a gay bar. Both kinds of bars are places that people who don’t know each other meet, or get to know each other better. Gay or straight, that is not needed in most consanguineous relationships because they already know each other.

But he does have a point about the public celebration. The perception that consensual consanguineous relationships only exist in poor, uneducated, rural families needs to be challenged. It is possible. It wasn’t all that long ago that people thought of gays as dirty, disordered deviants who met up in restrooms and the aforementioned bars, and that those bars were dives. There were laws against gays.

Lawrence v. Texas decriminalized same-sex relationships, and same-sex marriages started to become legal not soon after that. The general principles cited in Lawrence, Perry, and other decisions can and should be applied to bring about full marriage equality.

Restored Freedom to Marry on Hold in California

The federal appeals court has put a hold on same-sex marriages in California before they could even start taking place again. They want to take a look at the case first. Let's hope they decide in December to let this freedom to marry resume in California. Let's keep working towards full marriage equality so thatsame-sex couples can marry, but also others can marry who do not currently have the freedom to marry.

Mixed News Out of California

Judge Walker, who ruled that same-sex marriage is a right, refused to keep the state from allowing same-sex couples to marry. That’s the good news. The bad news is that he just said it can’t happen until next week – so no marriages for same-sex couples today or for almost a week, most likely. He did this to give an appeals court time to place their own hold on issuing the licenses pending the appeal of Judge Walker’s decision in the lawsuit.

Let’s hope the higher court doesn’t put a hold on this freedom to marry, so that same-sex weddings can resume in a few days.

And then, may this freedom never be taken away temporarily or permanently, and may this freedom to marry go nationwide, and may the freedom to marry increase until we have full marriage equality, so that same-sex couples can marry even if they happen to be sisters, and so that people can marry more than one person if that is what they want.

More on Proposition 8 Being Overturned

Many thanks to federal judge Vaughn R. Walker! Let's look at some of his reasoning in striking down that hateful law.

Page 24:

Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

It doesn't matter if even a majority of people disapprove. Stay out of our love lives. We all have the right to enjoy love and sex and life with the person or people of our choosing.

On page 135:

...and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

This is also good news for polyamorists who want to become polygamists, and for consanguineous couples, triads, and others who want to get married. Let's add this decision, along with Loving v. Virginia and Lawrence v. Texas, to our arsenal in fighting bigotry. Love is love!

Page 136:

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently

All of us deserve due process and equal protection. Prejudice is a relic of the past and is dying out day by day.

California Prop H8 Loses So Freedom Wins

It’s a good day. A federal judge has ruled in favor of extending (again) the freedom to marry to same-sex couples by siding with those suing California over Proposition 8. Same-sex couples were granted the right to marry in California for several months in 2008 before “Prop H8” was passed.

Congratulations to the same-sex couples who will be able to marry as a result of this ruling.

The right could still be taken away by an appeals court or the Supreme Court, but let’s hope the Supreme Court rules for freedom. Is it too much to dream that the Supreme Court will go further and rule for full marriage equality? Let’s not wait for that. Let’s build on today’s decision to move towards full marriage equality. It’s great that some same-sex couples can now marry, but why should that not include a same-sex couple that happen to be sisters? Or why shouldn’t a man who is in love with two other men be able to marry both of them? Love is love.

Solidarity is Needed

The Los Angeles Times ran an editorial calling for the advancement of the freedom to marry. Their focus on was California’s “Prop H8,” which banned same-sex marriage, and is currently subject to the decision of a federal judge. Good for the Los Angeles Times. But even better for one of their readers, who left a comment that highlights the need for solidarity. “lodmstrong” wrote…

It strikes me as very self serving to demand one alternative form of marriage (gay marriage) while completely ignoring or even fighting against other alternative forms of marriage.

It may be fear more than self-serving. People are afraid they’ll lose the change that will directly help them if they also try to help others.

Any argument made against these other forms of marriage could also be used against gay marriage.

That’s because it is all about trying to control the lives of others. Maybe that made sense when life was short, more people lived rural, agricultural lives, and a repressive church controlled everything. But that’s not reality today, thank goodness.

There is no reason three or more persons shouldn't be allowed to have a union.

That’s right. There isn’t.

Who are we to judge who really loves whom and should have the right to publicly affirm that love through marriage?

It isn’t possible. Let people decide for themselves.

The day that that gay marriage proponents fight for marriage to be defined as a union between any number of persons of any gender and/or any relationship is the day I'll take their commitment to true equality more seriously. In the meantime, I'm not sure which is worse: advocating traditional marriage as it has always been, or advocating one alternative form of marriage while being indifferent to (and silent about) or even against every other alternative form of marriage.

Again, I think some people are afraid. They don’t want to deny others their rights, but are afraid of not getting their rights; they think they can only get a small tent up and trying to get a big tent up will fail. But they need to realize that if we all stand together, we can help everyone.

It’s not marriage equality unless it is full marriage equality. I welcome any advancement of the freedom to marry, but only full marriage equality will be justice. Solidarity is needed.

More Marriage Rights For Same-Sex Couples

In California, it is possible that a federal judge will strike down a ban preventing same-sex couples from marrying. The trial is resuming. Let’s demand the judge strengthens the right to marriage in a way that knocks down other laws in addition Proposition 8, so that other people who are currently prevented from marrying will have their freedom. If not, I hope he will at least knock down "Prop H8." The bigots would appeal to a higher court, but it would be a start.

Referring to the federal prohibition on recognizing same-sex marriages, Walker asked the plaintiffs bluntly, ''Can the court find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?''

It would be great if DOMA could be struck down, too.

The question is particularly relevant nearly 3,000 miles away, where another federal trial court judge – U.S. District Court Judge Joseph Tauro – is directly considering whether a portion of DOMA is constitutional in a challenge brought by Gay and Lesbian Advocates and Defenders in Boston.

One way or another, we’ll advance marriage equality in the US, the way we advanced rights for people of color.

In Germany, a court recognized a Canadian marriage between two men, but unfortunately they will only call it a civil partnership.

Andreas Boettcher, a 37-year-old German event manager, married his Spanish partner, a dancer and choreographer, in Montreal in July 2006. He asked a Berlin administrative court to recognize the relationship as a marriage after local authorities listed him as "single" on his registration card in November, despite his Canadian marriage certificate and a family registry entry from Spain that names him as the husband of his partner.

The best news comes from Iceland, where same-sex couples got marriage rights on Friday.

Unfortunately, in all three places, laws against marrying more than one person and against consanguineous marriage are still in effect.

Down with H8 - Up With Marriage Equality For All

It is almost time for closing arguments in the trail against California Proposition 8, or “H8”. In the Washington Post, John D. Podesta and Robert A. Levy express their hope that a federal court will overturn Proposition 8. They write about gay couples, and I agree that gay couples should have the freedom to marry. However, I am disappointed that they do not express concern for other people looking for marriage equality.

Although we serve, respectively, as president of a progressive and chairman of a libertarian think tank, we are not joining the foundation's advisory board to present a "bipartisan" front. Rather, we have come together in a nonpartisan fashion because the principle of equality before the law transcends the left-right divide and cuts to the core of our nation's character. This is not about politics; it's about an indispensable right vested in all Americans.

I agree, and that is why we need full marriage quality.

As the country evolved, the meaning of one small word -- "all" -- has evolved as well. Our nation's Founders reaffirmed in the Declaration of Independence the self-evident truth that "all Men are created equal," and our Pledge of Allegiance concludes with the simple and definitive words "liberty and justice for all." Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.

All should mean all.

Our history will soon be written by young people who are seizing the reins from the baby boomers. They seem prepared to reject laws that serve no purpose other than to deny two committed and loving individuals the right to join in a mutually reinforcing marital relationship.

I agree with this, except for the unnecessary restriction of “two.” Committed and loving individuals, no matter how many, regardless of gender or blood relation, should have the right to marriage. How about showing some solidarity? While Kris Perry and Sandy Stier should be able to marry and Paul Katami and Jeff Zarrillo should be able to marry, so should Linda, Melissa, and Matthew. Let’s fight so that all of them will get the right to marry. Do not participate in the oppression of triads, groups, sibling couples, parent-adult child couples, and others who should have the right to marry.

Marriage Equality in California

A federal court is now hearing a case on California's ban on same-sex marriage (Perry vs. Schwarzenegger). On the positive side, there are people working hard to fight for the freedom to marry. Unfortunately, they have neglected to stand up for a full and complete freedom to marry.

I know it is unlikely, but I would very much like to see the court decide to remove all bigoted restrictions on the freedom of marry, so that the mother and her adult children I will be writing about could share in the happiness of marriage together.