Sunday, August 17, 2008

And speaking of my gay agenda: California's Proposition 8

to wit, "Let's you and me duke it out some more over whether your marriage is valid, even though mine is completely safe no matter what happens and the state Supreme Court already ruled in your favor: fair's fair."

No, okay, the basics:

A number of developments arose in the wake of Mayor Gavin Newsom's 2004 decision to perform same sex marriages in San Francisco. The marriages were soon annulled by the courts, but San Francisco began a legal challenge that was consolidated with other cases as In re Marriage Cases. On May 15, 2008 the California Supreme Court, by a vote of 4–3, ruled in that case to strike down Proposition 22 and all other prohibitions on same-sex marriage, as violating the state constitution, and ordered the state to begin processing same-sex marriages as of June 17, 2008.[5] The court subsequently refused to issue a stay of its order. [6]

While the case was under way, Governor Arnold Schwarzenegger vetoed two legislative bills approving same-sex marriage. Anticipating that either the courts or the legislature might overturn Proposition 22, opponents of same-sex marriages introduced a number of unsuccessful attempts to place a constitutional amendment before voters that would prohibit same-sex marriages—and in some cases, domestic partnerships as well.[7] Prior to 2008, none had made it to the ballot.

In late 2007 and 2008, at least four different groups sponsored new ballot initiatives for a constitutional amendment prohibiting same-sex marriages. The one that did obtain enough signatures,[8] is the "California Marriage Protection Act"[9] (officially titled the "Limit on Marriage" Constitutional Amendment by the California Attorney General), sponsored by[10].

...If passed, the amendment would override the ruling in In re Marriage Cases that struck down both the 1977 law and Proposition 22.[14] The Constitution, as amended, would add a new section (Section 7.5) to Article I, placing it between the state Equal Protection clause and nondiscrimination in business and the professions. This new section would read:

Only marriage between a man and a woman is valid or recognized in California.


According to Joan Hollinger, a professor at the University of California, Berkeley, Boalt Hall School of Law, "Constitutional scholars agree that the amendment cannot be effective retroactively, so anyone married before November would be protected.

You can see how there'd be no bureaucratic headaches associated with trying to explain to various agencies how no really, YOUR same-sex marriage is valid, check the dates and the jurisdiction, etc. here, can't you? I mean, already it's clear as mud, the whole thing. You realize that because of the "state's rights" business, we're going to be going through this, if we haven't already, in every. single. state. over. and over. and over...

anyway, meanwhile, so, this one: well, you'd think it'd be a forgone conclusion that this prop's not gonna fly. Lot of people who won't go to the mat for gay folk as such aren't too jazzed about actually amending the constitution, even at the state level. The Gubernator, for instance:

] Republican California Governor Arnold Schwarzenegger stated that although he has opposed and has vetoed legislative bills that would legalize same sex marriage in California, he is opposed to the initiative and other attempts to amend the state's constitution.[34] Schwarzenegger released the following statement on May 15, 2008 regarding the ruling:

I respect the Court's decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.[35]

and some other surprises (well, depending on your POV I suppose it mightn't be):

Republican political activist Ward Connerly, the author of Proposition 209 (California's ballot initiative to ban affirmative action), stated, "For anyone to say that this is an issue for people who are gay and that this isn't about civil rights is sadly mistaken. If you really believe in freedom and limited government, to be intellectually consistent and honest you have to oppose efforts of the majority to impose their will on people."

Three of the four judges who ruled in favor of striking down Prop 22, etc. were Republican appointees.

And the ballot that's going in front of the voters in November, thanks to Attorney General Jerry Brown, reads as follows:

ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT. Changes the California Constitution to eliminate the right of same-sex couples to marry in California. Provides that only marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments.

Predictably enough,

Proposition 8 supporters immediately mounted a legal challenge to the changes, contending that Attorney General Brown had inserted "inflammatory" language that would "unduly prejudice voters against" Proposition 8.

That legal challenge was denied, and the proposition remains on the ballot as worded. Noting, of course, that challenges to the legitimacy of having the proposition on the ballot at all from the other side did not play either.

These are the poll numbers over the last few months, roughly:

Field Poll in both May and a later one in July has 51% "no," 42% "yes," and 7% "undecided."

There's also an L.A./KTLA poll with the majority in favor of the amendment, but that's from May.

Still, not exactly a done deal, here, particularly since apparently they only need a simple majority win to go ahead and amend the state Constitution.

Oh, btw, McCain's in favor.

"I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona. I do not believe judges should be making these decisions."

...and Obama's agin' it.

Democratic presidential candidate Barack Obama, who previously said the issue of gay marriage should be left up to each state, has announced his opposition to a California ballot measure that would ban same-sex marriages.

In a letter to the Alice B. Toklas LGBT Democratic Club read Sunday at the group's annual Pride Breakfast in San Francisco, the Illinois senator said he supports extending "fully equal rights and benefits to same-sex couples under both state and federal law."

"And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states," Obama wrote.

The explanation of -why- a bunch of people are fighting tooth and nail to make sure that longterm same sex relationships such as this one of 51 years are not recognized as -marriage-, if you want to know, goes something like--well, here's the official campaign headquarters for this round, "Protect Marriage:"

The Supreme Court’s decision to legalize same-sex marriage did not just overturn the will of California voters; it also redefined marriage for the rest of society, without ever asking the people themselves to accept this decision. This decision has far-reaching consequences. For example, because public schools are already required to teach the role of marriage in society as part of the curriculum, schools will now be required to teach students that gay marriage is the same as traditional marriage, starting with kindergarteners. By saying that a marriage is between “any two persons” rather than between a man and a woman, the Court decision has opened the door to any kind of “marriage.” This undermines the value of marriage altogether at a time when we should be restoring marriage, not undermining it.

...Proposition 8 is NOT an attack on gay couples and does not take away the rights that same-sex couples already have under California’s domestic partner law. California law already grants domestic partners all the rights that a state can grant to a married couple. Gays have a right to their private lives, but not to change the definition of marriage for everyone else.

So, briefly:

1) The "will of the voters" is required in order to decide whether to -include- more marriages as, well, marriages; it is a terrible affront to some people that other people think they can get married just like Some People, without even asking Some Peoples' permission or ANYTHING: this is what is known as "demanding special rights."

2) This is especially terrible because, even if Jill and Jane are now a respectable married couple instead of shady deviants lurking in the margins of society, kindergarteners deserve to be protected from the knowledge that this is so.

3) Anyway, you don't really -need- marriage, domestic partnership gives you all the same benefits. It's just the word we want. RLY SRSLY TRUFAX. At the same time, the word is REALLY REALLY IMPORTANT, enough so that we're going to spend zillions of dollars making sure you can't share it with us, because otherwise it'll mean the end of "traditional marriage" (which apparently has nothing to do with rights or legal recognition), and the state is going to crack off and fall into the sea, or something.

4) The Prop 8 authors are not haters so STOP SAYING THAT.

...and why o why does all this sound so strangely familiar...going to the mat over language while swearing it doesn't mean anything -really-...convoluted explanations of why certain borders must remain policed...we only want such a tiny small thing for ourselves, you militants are ruining everything... -think think- Eh, it'll come to me. -glances vaguely downward over the scope of the blog for the last while-

Oh, and by the way? Domestic partnership? Ain't the same, and not just because of the symbolism:

The law does not give same-sex couples any of the more than 1000 rights and benefits that the federal government gives to married couples, including:

the right to sponsor a partner for immigration purposes;
the right to family-related Social Security benefits;
the right to federal income and estate tax breaks; and
the right to purchase continued health coverage for a partner after the loss of a job.

Right now, the federal government wont let any state extend these federal benefits to same-sex couples, no matter what the relationship is called.

Even under California law, same-sex couples are not completely equal. Domestic Partners cannot file joint state income taxes and state employees are not entitled to the same benefits under the states long-term care benefits package. (This could be an advantage. See below.)

In addition, if you enter into a California domestic partnership, many of the protections will not exist if and when you are outside California. For instance, if you or your partner are injured in another state, you are [not, one assumes this is a typo] allowed hospital visitation or the right to make emergency medical decisions on behalf of your partner.

States' rights, see. Rarely a good thing.

More on this later.


GallingGalla said...

Common threads, belle, common threads, eh?

a very public sociologist said...

I know this is way off topic, but I think this post might be of interest to readers of this blog. Apols for the plug!

PhysioProf said...

I would like to see governments get completely out of the "marriage" business, and create a regime where whatever sky-fairy rigamarole people engage in has no legal weight whatsoever. You wanna have a legal relationship with the features that have traditionally been associated with marriage, go to fucking City Hall and sign some fucking papers. Any two people can create this relationship.

You wanna have some bullshit sky-fairy-sanctioned ceremony and exclude certain other people from your wackaloon religious bullshit, knock your motherfucking ass out. The state shouldn't give a flying fuck.

These "protect marriage" scumbags are lying assholes. They don't want to "protect marriage"; they want the state to give legal sanction to their deranged hate-fueled bronze-age cockamamie sky-fairy bullshit.

belledame222 said...

Mkay, just to note: some of us actually like the airy fairy wackaloon bullshit, even if we might agree that the government has no place in it, what with the whole "separation of powers" business, go U.S.A., at least in theory, yes.

And yeah, eventually that might be the goal; thing is, logistically it's a lot easier to expand an existing institution to include more people than revamp the entire fucking thing from scratch. I mean, again: yeah, the domestic partnership thing is a reality, but there are Issues, and I'm at least as interested in the short term as the long term: it has more to do with such practicalities as immigration sponsorship than symbolism as such.

Thanks, vps, I'll check it out later.

PhysioProf said...

Absolutely, belledame. I was describing my ideal fantasy world.

So long as the government does involve itself in the "marriage" business, it certainly has to engage in it with complete equity, and not bow to assholes who want to exclude particular classes of people from it on the basis of their particular deranged religious views.

belledame222 said...

Yeah, but I do mean also: the "Sky Fairy" stuff, I get where it comes from? especially in this context? but I also know way too many good people who happen to be progressive Christians or other people who both believe in some kind of "Sky Fairy" and really -aren't- authoritarian fuckheads (and contrariwise, also a number of authoritarian fuckheads whose particular flavor of batshit isn't religious at all), and find that sort of thing really alienating. jadp.

PhysioProf said...

belledame, I hear you on that. It is kind of a blind spot for me, as I really don't ever directly encounter any religious people behaving in an overtly religious way--wackaloon authoritarian or decent progressives--and so my perceptions are colored by the much greater salience of the wackaloon authoritarians.

I apologize for generalizing unduly on your blog. If you have any suggestions for blogs where people discuss progressive approaches to religious belief, I would be very interested in learning more.

belledame222 said...

Hey, PP, here's one place to start: new carnival for Progressive Christians. first edition here.

also check my sidebar under "Progresive faith/spirituality"--it's down near the bottom. I'll come back with more particular recommendations later.

belledame222 said...

there's also Brown Shoes's purview at Modern Mitzvot (the other author is more secular, but it's all progressive politics from a Jewish perspective)

Brown Shoes said...

Thanks for the plug, BD, but I think it's more Girl Detective's site than mine - it was her idea and she has more/better posts.

I'm just more active 'round these parts because I quite like your coalition of people you've got here.

That being said, yes - this is the problem with state's rights and anti-federalism, at least for people for whom this is important. It seems to me like there's always this element of "not in my backyard" to states rights advocacy, which in this case is just a modern variance of the old "you can be gay as long as you're in the closet so I personally don't have to see it".

Roland Hulme said...

I think states right ARE a good thing in many cases - it's a big ol' country and what's good in Texas might not work so well in Vermont.

However, any attempt to amend a state constitution to ban gay marriage is very, VERY wrong.

Virginia vs. Loving, dealing with Interracial marriage, set the clear precedent that an American's right to 'life, liberty and the pursuit of happiness' included being able to marry whoever they wanted and (though accident or intention) the supreme court WASN'T gender specific when they wrote it.

I'm sorry, but it doesn't get much clearer than that. The US Supreme Court ruled that the ability to marry ANYBODY you want is a constitutional right.

Anybody with half a legal brain can see that there is NO legal (or moral) value in trying to ban gay marriage. It's unconstitutional and unAmerican.

shiva said...

Aw, don't call it "unAmerican"... that makes it sound like a good thing ;)

I'm pretty much with PhysioProf on this one. There is absolutely no reason for marriage, anyone's marriage, to have any kind of legal status or benefits attached to it whatsoever.

Stuff like who gets to visit you in hospital, who gets custody of your kids if you die in an accident, etc: you should be able to nominate whoever you want to have those rights. Which really shouldn't have to be someone you are in a sexual relationship with.

This whole "marriage equality" thing only gives "equality" to monogamous couples whose relationships are basically exactly like straight marriages, with only one person's gender differing. It doesn't benefit poly people, promiscuous people, asexual people, those not lucky enough to be in a relationship, and every other imaginable category at all.

And i wish feminists and queer activists would be honest about "traditional marriage", and actually agrue for its destruction (as an institution which, after all, basically originated as a ceremony to give a man the "legitimate" power of "ownership" (ie, legitimised rape) over a woman).

belledame222 said...

gah, I just lost a really long comment. trying again:

shiva, I disagree; again, I'm interested in short term practical solutions, and right now expanding the legal definition of marriage to include same-sex dyads, problematic and incomplete as that solution may be, I still vastly prefer pushing through with it as opposed to trying vainly to get everyone to hold their breath until we can all agree on a more radical solution, let alone implement it. Also it's entirely possible to work on such goals as single-payer health care and more recognition of non-dyad relationships at the same time as working on this.

RH: I realize that in some instances policy differences from state to state might be beneficial; I was just thinking that ime the catchphrase or some equivalent only seems to get dragged out when there's an argument over civil rights, and that "states' rights" almost inevitable is a sort of half-assed politicans' way of washing their hands of the whole thing, and meaning that the rights in question will only be implemented piecemeal at best, because reactionary forces are dominating at the federal level.

but anyway, yeah, the parallel with miscegenation is so obvious; and who even knows the term anymore? and yet the last overturning was, what, 1970-odd? not that long ago; and of course the last of the state sodomy laws were only overturned by SCOTUS a few years ago ('03, '04--too lazy to look at the moment)

which effectively would've meant that even if somehow gay marriage had gotten the green light with no backlash up to the federal level (ha) back when hawaii first tried it, there still would've been states where you could get married but not legally consummate it. Fat chance, of course, but it's an irony I think about occasionally.

Dw3t-Hthr said...

I think the "get the government out of marriage" position is rooted in a cowardice that won't stand up to the fundie whackaloon's lie that marriage is a religious concept.

In my religion, marriage is a legal contract.

You know how we enforce legal contracts?


Dw3t-Hthr said...

Also, so I don't have to have the rant again, as I'm always tempted to do whenever I come across the libertarian-atheist alliance with the religious right on the subject of marriage:

CrackerLilo said...

Being that I'm from the South and know my history, the words "states' rights" always read as a code for "bigotry" to me.

It so sucks that I couldn't meet you in NYC, but I'm glad California has you over there to kick ass!!!!

shiva said...

OK, so i read your post, and think it has some validity in it (except that, as an anarchist, i don't think the State can ever be a valid substitute for community, and indeed is the antithesis to it).

But i still don't get where you get the idea of a "libertarian-atheist alliance with the religious right" from...

I can accept that, for some pragmatic purposes, extending marriage to same-sex dyads can be seen as a positive thing, and worthy of tactical (as opposed to principled/ideological) support. But every one of those instances that i can think of is an instance where a larger oppressive system (national borders and immigration control, the health insurance system, etc) is what ultimately needs addressing.

Neither the state, nor any religious institution, nor my biological family, nor any member of my chosen family who i do not explicitly give that right to, has any business whatsoever in my relationships, or in defining the status thereof.

Dw3t-Hthr said...

The libertarian-atheist "get the gummint out of marriage" types and the religious right both hold the position that marriage belongs to GAWD and nobody else should have it.

The argument from the libertarian-atheist types is always, "Get the government out of marriage! If you want your sky fairy to approve your relationships go to a church!"

Not gonna go to a church. Not Christian, and my sky fairies don't give a fuck about marriage, thanks.

Daisy said...

One of the arguments certain conservative religious historians had with "Same-Sex Unions in Premodern Europe" by John Boswell (below link) was that he was "turning everything gay", that is, assuming all of these unions (APPROVED/BLESSED BY THE CHURCH, she loudly emphasized) were sexual relationships on the heterosexual dyad model, when indeed, there seems to be some evidence that not all of them were; many were intense friendships. However, nobody on either side of the debate took that fact to its logical conclusion--that these were "unions" rather as Shiva is describing, and uniquely progressive. (I was personally peeved that Catholics lost the opportunity to look progressive on an issue, for a change.) These "unions" were of same-sex "best friends"--whatever that meant ; they designated that person also as their caretaker, heir, the person who could legally speak for them and/or have them committed; the person immune from instant deportation and testifying against the other, etc. The fact was that sex was simply not *mentioned out loud* at the time. I am sure some of these relationships were sexual and some were not; but the conservatives said it was ALL friend-marriage and called for Boswell's lynching, while the liberals are all YAAAAAY Bozzie!!!! (I get images of a gaggle of gay priests hoisting him on their shoulders, like a GLBT! GLBT! GLBT! football team) and he was the hero of the hour. In short, in the face of conservative asshole opposition, Boswell's ideas were all reduced (by our side) to the hetero dyad that Shiva is talking about... marriage becomes about sex-with-one-person, rather than about the idea that the Church seemed to suggest that a strong bond with at least one other person in one's life, any bond in which you seek outside recognition of it, validation, public acknowledgment and witness of putting one's trust in the other--was the necessary, blessed thing? What can this mean? The theology geek in me gets excited, I would like to develop this idea further. (But hardly anyone else does.}

That said, agree with Belle. The rights listed above are HUMAN RIGHTS that all people should have. To deny them to anyone is CRIMINAL.

Lisa Harney said...

I can understand a philosophical stance that marriage shouldn't be state sanctioned (and I do in fact hold such a stance) but as a political goal, this is hopelessly utopian. On a practical level, marriage is a social institution just about everywhere, and rather than take a hammer to such an entrenched social construct, I'd rather see it made available to couples who can't access it.

Natasha said...

I wrote a really good rant that was lost in the depths of cyberspace!

Anyhow, one point I made was that there is a gay political agenda -- a set of political-social changes that concerned individuals have an objective interest in banding together to promote The irony is that the religious right contributes to a situation that makes the existence of such a pressure group reasonable. I am the last person to celebrate endless tribally based political warfare, but I don't see why the religious right is the only interest group entitled to identity politics.

They protest about the allegedly all pervading ill defined "gay agenda", but what agenda can be reasonably said to exist is due to their much more culturally powerful anti-gay agenda -- aside from places like San Francisco, I guess.

From now on, I am going to say: yes, there is a gay agenda. Gay individuals are demanding their rights. Please get out of their way!

( :

belledame222 said...

Hey Lilo, maybe next visit back East, eh?


OK, so i read your post, and think it has some validity in it (except that, as an anarchist, i don't think the State can ever be a valid substitute for community, and indeed is the antithesis to it)...

Well, no; but it can at least provide the infrastructure in which communities can flourish with as minimal interference as possible. And no, I do not believe that a situation without -any- infrastructure on a too-big-for-community-itself is simply possible, not with billions of people on the planet it's not. And if the infrastructure isn't 'The State," or The Corporation or The Church or even a bunch of fiefdoms ruled over by a kingdom or empire, hokay, but...look, I just think with the planet the way it is, even assuming a major leap forward in human evolution, there's just no way to avoid some amount of Big Impersonal. I mean if you have anarchist theory that explains how we -do- get to that point, I'd be interested to read it...

shiva said...

Hopelessly utopian? Maybe so. But, in many people's estimation, ending transphobia, homophobia and (IMO, especially) disablism are equally "hopelessly utopian".

One of my maxims is the Paris 1968 slogan, "Be realistic - demand the impossible!"

As Audre Lorde said, the master's tools cannot be used to demolish the master's house. And the legal institution of marriage is undoubtedly one of the master's tools. To borrow a metaphor from here, we shouldn't be trying to build extra rooms onto the master's house, we should be knocking the whole thing down.

As to anarchist theory of how we get to a human-scale society without hierarchical institutions... well, that's a huge topic, one that i certainly couldn't begin to address in a blog comment. There are at least as many opinions on it as there are anarchists, and i tend to oscillate between several of them.

A good starting point, however, might be Roderick Long and Charles Johnson's essay "Libertarian Feminism" (which, i admit, uses a marriage metaphor rather positively ;) )

shiva said...

"the idea that the Church seemed to suggest that a strong bond with at least one other person in one's life, any bond in which you seek outside recognition of it, validation, public acknowledgment and witness of putting one's trust in the other--was the necessary, blessed thing?"

But this can all be done without the involvement of any kind of differential legal status whatsoever.

"The libertarian-atheist "get the gummint out of marriage" types and the religious right both hold the position that marriage belongs to GAWD and nobody else should have it."

Well, my position is closer to "marriage, if you attach any worth to that concept at all, should be between you, your partner, and your community or your god(s), if you want to get them involved, but you shouldn't a) need the approval of the state for it or b) get any legal privileges for doing it".

(And, at least in the UK, if you are poor, marriage can often carry more legal penalties than privileges, such as, for instance, losing your right to certain benefits because it's assumed that your spouse will financially support you.)

Also see this post on what relationship rights could look like...

Lisa Harney said...

How do you destroy a pervasive institution such as marriage, then?

Anyway, I agree - ending those prejudices are utopian goals, and I don't think it's really practical to address them as goals. I'd rather work toward addressing the realities that trans people, people with disabilities, and lesbian, gay, and bisexual people have to face on a daily basis.

That's not to say I don't want to end ableism, transphobia, or homophobia. I do, but I'm not sure how to go about that as a goal.

As for Nodesignation's post, I would love to see that happen, but how could it be enacted on a national scale?

shiva said...

I think this might come down to one of the fundamental ways in which i think, which i'm kind of having trouble putting into words...

I find it very, very hard to fight for this little incremental change here, and that little incremental change there, without having a "joined-up" bigger picture into which those changes fit, and the core of that bigger picture has to be a "utopian" goal, which those changes are tactical ways of working towards.

Yes, the big utopian goals are (probably) unacheivable in reality. But, IMO, if we are not aiming at those absolute aims, then we won't achieve anything at all, because the little things we choose to do won't be chosen on the basis of a bigger principled picture... if that isn't a hopelessly vague and metaphorical way of stating it...

Here's another really good post on the subject that expresses it better than i can at the moment...

Lisa Harney said...

I agree with Jack, and I agree that too much emphasis has been placed on marriage over other issues that affect LGBT people.

I'm also not talking about "incremental steps," nor am I saying anything about lacking a bigger picture. For example, I don't think the Gender Recognition Act in the UK was quite so incremental - it was pretty much all at once. I'd like to see that happen in the US, as well, and I think it'd be doable if HRC were to cooperate, or if we could get the ears of enough representatives.

Of course, the problem with achieving this is not that it's too big or not incremental enough, but that there are people allegedly on trans people's side who actively work against us.

Perhaps I've been on the receiving end of too much browbeating about "Why aren't you working for my pet unachievable goal?" to really find much value in focusing on those, too.

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