Friday Gay Blogging, Saturday Edition

Sorry -- I had an early appointment yesterday that sort of threw the whole day off. However. . . .

Since marriage is in the news again, due to the California litigation, I might as well comment on it again. This time, it's about a post from Chris Crain that struck me as ultimately somewhat confused. I'm no longer as sanguine about the potential outcome in the California Supreme Court, having read more accounts of the justices' reaction to the oral arguments (and I'm still somewhat thunderstruck that no one seems to have introduced the concept of the people's limited sovereignty to counter the "will of the people" arguments surrounding Proposition 22), but Crain's comments puzzled me. He does make some good points, particularly regarding the Alice-in-Wonderland quality of the state's arguments about the significance of the word "marriage," but he soon gets into some fairly sketchy surmises:

Of course I agree with the plaintiffs that denying same-sex couples the institution of marriage violates a fundamental right, as much as if interracial couples had been forced to accept "interracial unions" rather than full-fledged marriage in years past. At the same time, I think that strategically these gay marriage lawsuits are much more useful in states like New Jersey, Vermont and so forth that did not previously have in place civil unions.

Sorry -- this doesn't make sense to me. Given the timeline involved -- the marriage suits started before the domestic partnership bill passed the legislature, and were well in process by the time the legislature passed the first marriage bill -- and the fact that Proposition 22 is on the books, it's hard to understand why he thinks it would have been better not to sue in California, as opposed to Vermont or New Jersey, which had nothing equivalent to Proposition 22. (Quite aside from the fact that the people who are pursuing these suits are not thinking about long-term strategies but about righting current injustices, which has traditionally been the role of the courts.) If anything, I would expect the existence of domestic partnerships in California to weigh in favor of marriage, as now seems to be the case in New Jersey. ("Separate but equal" is not a concept that courts tend to favor these days.)

A judicial ruling that goes all the way to marriage does risk a backlash -- both within the state and in Defense of Marriage Acts (and amendments) elsewhere. That risk is too great to mess with.

Here he touches on something that is, I think, germane to the recent trend in state courts -- meaning, of course, New York and Washington State -- the finding that, while mixed-sex marriage is a fundamental right, same-sex marriage is not, which strikes me as a direct parallel to Antonin Scalia's habit of asking the wrong question. (It's interesting to note in this context that the Washington court practically begged the legislature to overturn its decision.) However, I don't think the concern on the part of the justices is going to be a voter initiative overturning a favorable decision. I think their concern is going to be their own fate in the next election, since, if I'm not mistaken, they are elected. (Which also nullifies Joe Murray's comments on "unaccountable judges," which I commented on here.) What Crain leaves out is that in every such lawsuit brought before the New York decision, the courts found that there was, indeed, inequity in the law. While Massachusetts was the first state to mandate civil marriage, previous cases -- Hawai'i, Alaska, Vermont and most recently in New Jersey, just to name the first that come to mind -- brought down the verdict: "fix it." And I think the backlash is losing steam -- Arizona failed to pass a constitutional amendment, similar attempts have died repeatedly in the Illinois legislature and now in Iowa, and a recent poll shows overwhelming suport for civil unions in Pennsylvania, where attempts at amending the constitution have also died. (In Illinois, Peter LaBarbera, front man for whatever he is calling his anti-gay activist organization now, failed to get enough signatures to put a referedum on the ballot -- and went to the courts to get an activist judge to overturn Illinois' election laws. The courts laughed at him.) And, let's face it -- those states that are likely to pass DOMAs and constitutional amendments have already done so, as one of Crain's commenters points out.

The California legislature has already passed same-sex marriage laws twice (2005 and 2007) only to be rebuffed by Gov. Arnold Schwarzenegger, who claimed is veto was in deference to the very litigation the state's high court heard this week. If the Supreme Court leaves the issue to be decided democratically, that fig leaf will be removed and the governor might well sign the law. If not, as Ocamb points out, three of four likely Democratic gubernatorial candidates support full marriage equality.

This strikes me as somewhat naive. If the court rules against SSM without specifically referring the matter to the legislature, the Governator will simply use that as an excuse to veto the next bill. (I also take exception to his use of the phrase "decided democratically," which, as regular readers will know, is simply buying into the right-wing mantra that the courts are somehow not democratic institutions and that the ill-informed and biased opinions of the great unwashed should somehow be the determining factor in who gets equal rights.) Putting our hopes in "three of four likely Democratic gubernatorial candidates" seems somewhat faint hope, if any.

And finally a misstatement of fact:

With the odds so strong of the issue resolving itself favorably democratically, a defeat in the courts -- especially if it's not worded in a way that sets a poor precedent elsewhere -- might not be such a bad thing. (Just as it wasn't in New Jersey.)

It wasn't a defeat in New Jersey. The court did not mandate civil unions -- it told the legislature to come up with something that guaranteed equality for same-sex couples in the state. The legislature opted for civil unions, which are now under review and likely to be superseded by civil marriage within the next year or so. That's hardly a defeat.

And speaking of the definition of marriage, anthropologists continue to weigh in on the gross distortions of their position from Focus on the Family. (Background here and at the end of Jim Burroway's post.) From the American Anthropological Association's letter to FotF:

I am alarmed and dismayed at this example of irresponsible journalism and deliberate misrepresentation of the anthropological community. In the future it is my hope that your organization will accurately and honestly convey and communicate the views and interests of the AAA, its 11,000 members, and the social science community at large.

I couldn't have said it better myself. (Well, not as politely.)

Under "Wingnut Watch," catch this post from Joe.My.God. This woman's incredible -- its like she's reading a press release written by James Dobson and Tony Perkins.

Use the information Joe provides to contact her and point out, politely please, that nothing she says has any foundation in fact.