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Thursday, August 05, 2010

Just the facts, Ma'am

The overturn of California's "Prop 8" is not exactly a major legal victory, but it is an important moral one.

"Prop 8" was an cultural barometer - influenced not by facts or intellect but by emotion - some would say "cultural hysteria" -  and "religion".

Judge Vaughn Walker's decision was based on the facts and the law.

Walker, in his decision, writes that
"Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license."
He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values:
"Blankenhorn's testimony constitutes inadmissible opinion testimony that should be given essentially no weight," Walker writes. "Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered."
Here are the relevant facts Walker finds, as reported by Marc Ambinder in The Atlantic :
1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.

2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.

4. California has eliminated marital obligations based on gender.

5. Same-sex love and intimacy "are well-documented in human history."

6. Sexual orientation is a fundamental characteristic of a human being.

7. Prop 8 proponents' "assertion that sexual orientation cannot be defined is contrary to the weight of the evidence."

8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

9. California has no interest in reducing the number of gays and lesbians in its population.

10. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union."

11. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

12. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.

The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

13. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."
The battle is far from over, but these are the important facts of the case which form the groundwork for what I believe will be the eventual triumph of justice.

Indeed, I think the whole of Walker's points could be preceded by the words, "We hold these truths to be self-evident."

Once this matter is settled in California, it will also provide the groundwork for marriage equality to be the law of the land in every state - state by state.

As MLK, Jr., famously said, "The arc of history is long, but it always bends toward justice."

Oh, yes. I know. Judge Walker is gay. Some are calling for him to 'recuse' himself on this basis. As if Thurgood Marshall needed to recuse himself on any Civil Rights matter concerning Race because he was Black.

I know, I know. It is being said that Judge Walker's colleagues on the California Supreme Court will dismantle these "facts" because the Judges know that this is a career-defining case. The same "cultural mood" that brought us Prop 8 in the first place is bound to "infect" - or at least affect - them. The "facts" behind the arguments sometimes loose their authority in the midst of cultural politics.

I find it fascinating that some of those who purport to be in favor of marriage equality are raising their voices with the cry, "States rights!"

We've heard folks say, "Oh, homosexuality doesn't bother me. Some of my co-workers and friends are homosexual. My wife's hairdresser is a homosexual. Our church organist is a homosexual. I don't have a problem with that. I just don't want them to be 'in my face'."

See? All their asking for is no 'PDAs' - Public Displays of Affection.

It's the "Ick Factor" writ large.

The "States Rights" argument sounds to my ears as the heterosexist version of "NIMBY" - Not In My Back Yard.

The "States Rights!" lament is purported to be an unemotional argument is based on the law. Unfortunately, it's a very narrow focus of the law.  It's very Republican. Right up there with "no big government." Nosireebob. No "big" anything.

The only "big" some Republicans want is their wallets.

You'll excuse me if my "hermeneutic of suspicion" is in overdrive. Ultimately all the "States Rights!" position does is to delay justice.

MLK also said, "Justice delayed is justice denied."

Marriage is a human right. It's also a civil right.

A friend of mine said to me years ago - more years ago than I care to remember - that the issue of marriage equality would ultimately be decided on the federal level - and, de facto, to each and every one of the states -  by none other than the IRS.

It will come down to the bottom line, which, you may have noticed, is often preceded by a dollar sign.

We've come a long way and these early days of victory are worth savoring and enjoying.

Then, it will be time to dry our tears, wipe our noses, pull up our socks, and get on with the rest of the struggle for justice.

We've taking an important first step, but the road is long and there are dozens of detours and many, many more obstacles.

Let's arm ourselves with the facts, and the truth of the goodness of our creation, and keep on moving' forward.

And, as we go, let us sing our own version of Pat Humphries' song, which she wrote in 1984 and was the song that opened and began the theme of the 4th United Nations World Conference on Women in Beijing in 1995.

6 comments:

Doorman-Priest said...

"There is simply too great an analytical gap between the data and the opinion Blankenhorn proffered"

And that's the nub of it isn't it? That is the issue at the heart of much of what the religious right proclaims. Unpack it and it doesn't stand up to scrutiny.

Elizabeth Kaeton said...

Yup. It's all emotional "ick" factor.

Joie said...

It is DEFINITELY the "ick" factor. I remember over 15 years ago having a gay friend in high school (performing arts high school) and my mother didn't want me to see him. What was wrong with her? Go out with a boy who wants in your pants but not a boy who wants to help you pick out great pants? Anyway, back then I told her it was all about the ick factor which probably ran both ways.

David |Dah • veed| said...

Can we join the celebration?

Mexico court upholds gay marriage law
Thu, Aug 5 2010
MEXICO CITY (Reuters) - Mexico's supreme court on Thursday upheld a landmark law that allows gay marriage in the capital city, bucking a challenge raised by the conservative government of President Felipe Calderon.
This year, Mexico City became the first capital in mainly Catholic Latin America to pass a law allowing gay couples the same marriage and adoption rights as heterosexuals.
But Calderon's government and his right-wing National Action Party, or PAN, argued the law was unconstitutional on grounds it would be destructive to families. The powerful Catholic hierarchy in Mexico calls gay marriage immoral.
While the supreme court decided gay marriage was constitutional, it will review the adoption clause on Monday.
"Those of us who are in favor of this (law) are in favor of diversity and tolerance," Supreme Court Justice Arturo Zaldivar said during the court's deliberations.
"Our constitution does not establish a concept of marriage," he said.
Since the law was passed, more than 300 same-sex couples have tied the knot, the majority of them men.
Activists see the law as part of a sea change in attitudes on homosexuality in much of traditionally macho Latin America.
Argentina this year passed a law allowing gay marriage nationwide, the first such measure in the region. Neighboring Uruguay allows same-sex couples to adopt under civil unions, but not to marry.
Mexico City's bill was pushed through by leftist Mayor Marcelo Ebrard, who has backed other liberal measures like the legalization of abortion, which remains illegal in most cases across the rest of the country.
With some 20 million residents, the Mexico City metropolitan area is one of the world's largest cities.
(Reporting by Miguel Angel Guitierrez; writing by Mica Rosenberg; editing by Missy Ryan and Jerry Norton)

David |Dah • veed| said...

Can we join the celebration?

Mexico court upholds gay marriage law
Thu, Aug 5 2010
MEXICO CITY (Reuters) - Mexico's supreme court on Thursday upheld a landmark law that allows gay marriage in the capital city, bucking a challenge raised by the conservative government of President Felipe Calderon.
This year, Mexico City became the first capital in mainly Catholic Latin America to pass a law allowing gay couples the same marriage and adoption rights as heterosexuals.
But Calderon's government and his right-wing National Action Party, or PAN, argued the law was unconstitutional on grounds it would be destructive to families. The powerful Catholic hierarchy in Mexico calls gay marriage immoral.
While the supreme court decided gay marriage was constitutional, it will review the adoption clause on Monday.
"Those of us who are in favor of this (law) are in favor of diversity and tolerance," Supreme Court Justice Arturo Zaldivar said during the court's deliberations.
"Our constitution does not establish a concept of marriage," he said.
Since the law was passed, more than 300 same-sex couples have tied the knot, the majority of them men.
Activists see the law as part of a sea change in attitudes on homosexuality in much of traditionally macho Latin America.
With some 20 million residents, the Mexico City metropolitan area is one of the world's largest cities.
(Reporting by Miguel Angel Guitierrez; writing by Mica Rosenberg; editing by Missy Ryan and Jerry Norton)

Elizabeth Kaeton said...

Okay, okay. Doug has pointed out a few of this administration's accomplishments:

Lilly Ledbetter Fair Pay Act of 2009 – Signed by the President, Public Law 111-2 reversed a 2007 Supreme Court decision (in which Venus was in the minority) which had made it much more difficult for women and other workers to pursue pay discrimination claims. This law amends the Civil Rights Act of 1964 to give victims of pay discrimination extra time to use the legal system as a remedy, they now have 180 days to file suit from any discriminatory paycheck, rather than from the first one

# Matthew Shepard and James Byrd Jr Hate Crimes Prevention Act – It became part of Public Law 111-84 after President Obama signed the FY 2010 Defense Authorization Act. This law gives state and local law enforcement the tools needed to prevent and prosecute hate crimes, and closes gaps in current federal laws to ensure prosecution of hate crimes based on gender, sexual orientation, gender identity or disability. The law is named after two famous hate crime victims.

# Credit Cardholders’ Bill of Rights – The President signed Public Law 111-24 to provide tough new protections for consumers, such as banning unfair rate increase and forbidding abusive fees and penalties by credit card companies. It prohibits retroactive rate hikes on existing balances, double-cycle billing and due-date gimmicks.

# State Children's Health Insurance Program (S-CHIP) Reauthorization Act – The President signed Public Law 111-3, which renews and improves the program by keeping coverage for seven million children now covered and expanding it to cover an additional four million more. It also will ensure dental coverage and mental health parity.

# Student Aid & Fiscal Responsibility Act - The President signed Public Law 111-152 making the largest investment in college aid in history – increasing Pell Grants, making college loans more affordable, and strengthening community colleges – while reducing the federal deficit by ending wasteful student loan subsidies to banks.

If we can do that, can we end the wars in Iraq and Afghanistan?