Gay Marriage On Trial In America -- Watch The Play

[Jingthing]

In case you haven't heard about this as yet:

Featuring an all-star cast including George Clooney, Brad Pitt, Martin Sheen, Jamie Lee Curtis, Jane Lynch, Kevin Bacon and others, "8" is a play written by Academy Award winning screenwriter Dustin Lance Black and directed by acclaimed actor and director Rob Reiner. It is a powerful account of the case filed by the American Federation for Equal Rights (AFER ) in the U.S. District Court in 2010 to overturn Proposition 8 [LINK], a constitutional amendment that eliminated the rights of same-sex couples to marry in the state of California.

When, not if, this issue makes it to the U.S. supreme court, expect similar line of arguments.

[ProThaiExpat]

They are supposed to be following the trial transcript, but there must be some literary license. However, I think they will find enough drama in the transcript to not need additional drama.

The Prop 8 case was affirmed on appeal in a very narrowly drawn decision applying it only to California and not ruling on whether same sex marriage is a constitutional right. The court of appeals found it unconstitutional to remove a civil right from a minority group once it had been granted. The Federal Court trial judge made his decision much broader regarding the rights of same sex couples to marry.

Once the entire court sitting en banc makes its decision and hopefully sticks to the narrow ruling of the three judge panel, the Supreme Court of the U.S. can easily refuse to hear the case on appeal as the case only affects California and usually they wait until there are conflicting decisions from more than one state before taking the case.

Many have said that the majority opinion writer on the three judge panel wrote the opinion specifically for the Supreme Court Judge Kennedy, often called the "swing vote judge", who wrote the majority opinion in two prior gay right's cases on the same basis that it is unconstitutional to remove a civil right from a minority group once given.

There are a number of Federal trial judge cases percolating up the appeals route which are much broader drawn by their trial judges and there is a DOMA case as well on the way up, these other cases give the Supreme Court much more wiggle room if they want it as they are more basic in the civil rights area declaring that the constitutional law issue of equal protection of the law is at the heart of those cases.

Kennedy and Kaufman, the appeals judge, if I recall correctly, served together on the same bench prior to assuming their current positions.

[tombkk]

I'm sorry, I'm not going to watch a two-hour video. Can you summarize?

I have the feeling it's just another pro/contra debate.

[LeCharivari]

I know I may be biased as I'm quite happy with my British Civil Partnership, but I can't help finding the "equal rights" argument a little amusing (even, dare I say it, ironic) in some of its guises.

The latest development in the UK in the marriage/gay marriage/de-facto marriage/civil-partnership debate was one I hadn't quite expected. I wasn't at all surprised that Peter Tatchell et al would complain that Civil Partnership was insufficient and that same-sex couples should be as entitled to full "marriage" rights as opposite-sex couples - even though Civil Partnership now confers identical rights (except to peerages) - but I was surprised to learn that there have been more complaints about discrimination by opposite-sex couples who want equal rights to have a Civil Partnership (currently limited to same-sex couples), rather than a "marriage".

I can't help thinking that sometimes "equality" can sometimes be overrated.

[Jingthing]

Different countries, different paths. The goal of federal civil unions is not even on the table in the U.S. The goal is clearly federal gay marriage equality. Obama may have said things like he is OK with civil unions but "evolving" on gay marriage, but that business is simply CODE that both sides fully understand. Civil unions are worthless in the U.S. for important things like immigration rights and social security survivor benefits. The minute Obama is reelected, the evolution will have become complete. Also of course Obama's reelection could speed up the inevitable equality victory considerably due to the potential of some supreme court picks. If he loses, it really may take 50 years.

Edited March 4, 2012 by Jingthing

[endure]

I know I may be biased as I'm quite happy with my British Civil Partnership, but I can't help finding the "equal rights" argument a little amusing (even, dare I say it, ironic) in some of its guises.

The latest development in the UK in the marriage/gay marriage/de-facto marriage/civil-partnership debate was one I hadn't quite expected. I wasn't at all surprised that Peter Tatchell et al would complain that Civil Partnership was insufficient and that same-sex couples should be as entitled to full "marriage" rights as opposite-sex couples - even though Civil Partnership now confers identical rights (except to peerages) - but I was surprised to learn that there have been more complaints about discrimination by opposite-sex couples who want equal rights to have a Civil Partnership (currently limited to same-sex couples), rather than a "marriage".

I can't help thinking that sometimes "equality" can sometimes be overrated.

There was quite a hoo-haa here about this when Civil Partnerships first became law. It had nothing to do with 'equality' as such. It was just that the usual right-wing suspects felt that they were being left out and wanted the same as the poofs were getting. Pointing out that civil partnerships were a mechanism to give us a bit of what they'd enjoyed for hundred of years seemed to go right over their heads.

[Jingthing]

This article probably gives some very good clues as to why in the U.S. for historical and cultural reasons, the civil rights push for gays has been closely related to the black civil rights movement, and has evolved to be about marriage equality ... and even talking about civil unions is totally passe.

http://www.washingtonpost.com/blogs/post-partisan/post/blacks-and-gays-the-shared-struggle-for-civil-rights/2011/03/04/gIQA32hinR_blog.html

Civil rights icon Julian Bond told me during an interview for the PBS program “In The Life” in 2008, “Black people, of all people, should not oppose equality. It does not matter the rationale – religious, cultural, pseudo-scientific. No people of good will should oppose marriage equality. And they should not think civil unions are a substitute. At best, civil unions are separate but equal. And we all know separate is never equal.”

[Ijustwannateach]

I'm going to play Devil's Advocate here and argue that, while it is certainly desirable to change US laws in various ways, the effects of doing so are not always predictable or reliable. For example, the way that the whole abortion legality thing has worked out has allowed the legality of abortions, but done little to change the opinions of a wide variety of conservative yahoos who simply see the conflict as a matter of waiting until they have the government rigged to vote their way again. Without education in terms of women's rights, reproductive freedom (and responsibility), not to mention basic biology (remember that many of the same conservative yahoos have an 'issue' with evolution- not that they really understand what evolution is). And *that*'s a conflict which is decades old now, and presumably has the base support of a lot larger percentage of the population (many women, for instance, and their partners) than gay marriage does yet. Until basic education about human freedoms and economic responsibilities is more advanced, American politics on gay marriage as well as many other things will intellectually (from the conservative side, at least) be little better than a tussle between football teams, to see which 'side' wins every generation or so. I'm sorry to report that things are so binary and dysfunctional, but that's largely the way it's working now.

[Jingthing]

Funny, you never hear people object to interracial marriages anymore in the U.S. (except for Nazi types) which not so long age were illegal in many U.S. states.

[Ijustwannateach]

I would say that's an example of an argument that was won socially before it was won legally, by far. While people may not have wanted to see it happen in their own families, not that many people had a strong feeling about banning it entirely. That is a stage that we have not yet arrived at for gay marriage, nationally- though the fact there are SOME gay marriage states now means that we are probably moving towards such a social reality, fortunately. That is, if it doesn't continue to be a rallying symbol for the conservative lowbrows when they want to ignore embarrassing economic or political situations.

[endure]

There's actually quite a ruckus going on in the UK at the moment. The Government (and specifically our Prime Minister) have said that they want to move from civil partnerships to proper gay marriage. The PM (a Conservative) said that as marriage is the basis of a stable society he didn't see why a Conservative Government shouldn't support it for gays as well as straights. Of course all the Churchmen immediately got the vapours.

[Ijustwannateach]

^ha ha! Saw a good article in the Guardian today asking why shouldn't the Catholics (which have de facto allowed re-married divorced couples to remain in the church, also a no-no) also accept gay couples under similar provisions.

[tombkk]

There's actually quite a ruckus going on in the UK at the moment. The Government (and specifically our Prime Minister) have said that they want to move from civil partnerships to proper gay marriage. The PM (a Conservative) said that as marriage is the basis of a stable society he didn't see why a Conservative Government shouldn't support it for gays as well as straights. Of course all the Churchmen immediately got the vapours.

What would be the difference between a civil partnership and a marriage?

[ProThaiExpat]

Excellent points and questions. In the US, precedence is very strong when arguing to a court. In Brown vs. Board of Education, the US Supremes ruled that by definition, separate cannot be equal in ordering the integration of schools.

Strategy wise, the "retarded right", once seeing what happened in Massachusetts, rushed off to the electorate and changed every state constitution it could to make marriage only between and man and a woman. Why, because legally there is simply no sense to their arguments against same sex marriage and they attempted to pre-empt what they feared the courts would do. That fear is being realized in almost every court case brought in jurisdictions with reasonable judges.

Many forget the US is a Republic, ie. ruled by law, and not a democracy, which is ruled by the people. The founding fathers were careful to not put too much power in the electorate and thus you have the Electoral College and the courts to balance the power of the electorate. The "people" through referendums and their chosen representatives in Congress, are so concerned at being re-elected that they adhere to wedge issues required for re-election rather than doing the right thing.

The California case, the subject of OP, has reached the appellate level and the "retarded right" (hereinafter "RR") lost again. See my previous post.

Since IJWT admitted in his post that he was playing devil's advocate, he raised the issue of the political solution to the issue, rather than the legal one. Well, polling among Americans under 40 overwhelmingly favor equal sex marriage. The "oldies" who have most of the money are in control of the Republican Party and their poll figures still show disfavor to "change" and of course RR is in there stirring the pot with money and advertising in which "protect the children" is the fear factor without basis in fact.

As the "oldies", like me, die off, the inevitably of same sex marriage is a no brainer. However, I would like to be able to marry my partner of ten years before this oldie goes the way of all humans. So, understandably, those not interested in marrying someone of the same sex do not feel the urgency of the issue.

Thanks to jingthing, I watched the play on my computer and enjoyed it because it put the defendants arguments up to scrutiny and of course they failed completely. There were many points emphasized or chosen for the abbreviated version of the trial and there were many. Suffice to say the main theme was that once ignorance and fear are put on trial in the light of day, they fail miserably. One point was that of the dozens of "experts" identified by the defendants to be witnesses, once their depositions were taken and they were subject to questioning on the facts upon which they relied for their opinions, they all but one refused to testify at the trial. The one that did, ended up looking ridiculous upon cross-examination.

[attrayant]

Funny, you never hear people object to interracial marriages anymore in the U.S. (except for Nazi types) which not so long age were illegal in many U.S. states.

Ask and ye shall receive:

46% of Mississippi Republicans Want Interracial Marriage Banned.

OK that's a sensational headline and I'll be the first to say that the sample size of 400 was way too small. But it still sends shivers up my spine.

[Ijustwannateach]

Yah, it figures... in the states, we like to keep Mississippi around because it makes Georgia and Alabama look good....

[LeCharivari]

..... separate cannot be equal .....

So goes the argument for gay marriage vs civil partnership, and many others.

Unfortunately it makes very little logical sense as in many cases "separate but equal" is the only acceptable and rational solution.

Men and women usually have "separate" toilet facilities, for example, but very few would complain that that necessarily means that the "separate" facilities cannot be "equal".

In the Olympics men and women only compete on equal terms in one sport (equitation) but very few would propose that male and female Olympic athletes should compete against each other as "equals".

The reality of life is that we aren't all equal and there are some things that men can do and women can't, and vice versa. I'm not saying that marriage should be limited only to those who can procreate and want to, but what I am saying is that this striving for "equality at all costs" and that "separate cannot be equal" sometimes borders on the absurd.

[LeCharivari]

...Strategy wise, the "retarded right", once seeing what happened in Massachusetts, rushed off to the electorate and changed every state constitution it could to make marriage only between and man and a woman. ...

Much the same thing happened in the UK, actually. Marriage between same-sex couples was only banned in England and Wales in 1971(and in 1973 any same-sex marriages already made were made void), Scotland in 1977 and Northern Ireland in 2003.

[LeCharivari]

There's actually quite a ruckus going on in the UK at the moment. The Government (and specifically our Prime Minister) have said that they want to move from civil partnerships to proper gay marriage. The PM (a Conservative) said that as marriage is the basis of a stable society he didn't see why a Conservative Government shouldn't support it for gays as well as straights. Of course all the Churchmen immediately got the vapours.

What would be the difference between a civil partnership and a marriage?

Tom, I wish I knew!

[Jingthing]

There's actually quite a ruckus going on in the UK at the moment. The Government (and specifically our Prime Minister) have said that they want to move from civil partnerships to proper gay marriage. The PM (a Conservative) said that as marriage is the basis of a stable society he didn't see why a Conservative Government shouldn't support it for gays as well as straights. Of course all the Churchmen immediately got the vapours.

What would be the difference between a civil partnership and a marriage?

Tom, I wish I knew!

Not this again! I am sorry. The U.S. legal system is structured differently than the U.K. We've been over this 100 times already. Give it a rest and/or use the search function if you really don't understand.

[tombkk]

...Strategy wise, the "retarded right", once seeing what happened in Massachusetts, rushed off to the electorate and changed every state constitution it could to make marriage only between and man and a woman. ...

Much the same thing happened in the UK, actually. Marriage between same-sex couples was only banned in England and Wales in 1971(and in 1973 any same-sex marriages already made were made void), Scotland in 1977 and Northern Ireland in 2003.

You mean that same-sex marriages were conducted before those dates?

[tombkk]

There's actually quite a ruckus going on in the UK at the moment. The Government (and specifically our Prime Minister) have said that they want to move from civil partnerships to proper gay marriage. The PM (a Conservative) said that as marriage is the basis of a stable society he didn't see why a Conservative Government shouldn't support it for gays as well as straights. Of course all the Churchmen immediately got the vapours.

What would be the difference between a civil partnership and a marriage?

Tom, I wish I knew!

Not this again! I am sorry. The U.S. legal system is structured differently than the U.K. We've been over this 100 times already. Give it a rest and/or use the search function if you really don't understand.

Yes, we've been over this, but you seem to have changed your mind in the meantime. I want to hear a different opinion.

I don't think it is cast in stone. I also have my opinion, which you are very well aware of. All of our opinions contribute. That's healthy.

[Jingthing]

Oh please! In the U.S., the civil partners language isn't even an issue! It's completely irrelevant at this point. Different paths, different countries. I haven't changed my mind about anything. If you don't understand the reasons why the issue is where it is now in the U.S., there's about a million sources for you to learn about it. Its a total waste of time to argue an irrelevant issue related to the U.S. situation. It's certainly not healthy to argue over something that has nothing to do with the legal struggle in the U.S. for the umpteenth time. Dysfunctional more like. This is kind of bizarre really. The U.S. is not the U.K. and the U.K is not the U.S. Can you cope with that?

Edited March 7, 2012 by Jingthing

[Ijustwannateach]

To be honest, if we could get some extra federal laws in the US it would make a lot of things easier/more consistent. As things stand, the states are individually entirely responsible for their own marriage licensing, educational systems, criminal justice systems, etc., among other things. However, immigration and citizenship, being 'interstate' affairs, are federal (national) matters. This means that the issues regarding same-sex marriage and immigration are a bit more complex, though I would imagine (ProTXP can correct me if I'm wrong) that if the court battles were waged we'd most likely see same-sex marriage respected under the same precedents as the laws which keep married couples still married in other states (i.e., there's a law that states have to respect each other's contracts). I imagine that so-called 'interracial' marriages were still legal even in the states which banned them, but I don't know if that was ever legally tested or not- that would be a good support for whether gay marriages contracted in other states had to be respected in non-gay-marriage states. Some states have already pre-emptively passed laws claiming that they don't recognise gay marriages of any kind, but I don't know if that's been legally tested yet- and I doubt it would stand up to those tests if it were (unless it came to a simple party-line vote and the Supreme Court was feeling exceptionally conservatively dysfunctional that day).

In any case, what JT is trying to say- and I'm finally going to help him out here because sometimes he has trouble making his points without drama- is that in the US we're tangled up in these complex jurisdictional precedents. There's no national definition of marriage, for example, so the federal government can't speak on behalf of all 50 states- the best they can do is say: 'This couple is legally married in the state of XX, so we have to call them married and therefore if our treaty with you (the foreign nation) requires YOU to respect our contracts, you have to say they're married, too!'

But if they aren't married in a state, district, etc.- then there's no 'national' marriage to help them out. Things were simpler in the UK, Canada, etc., because the rules were national- so when one court found 'for' gay marriage at a high enough level, or when a law was enacted in parliament, it affected everyone.

You will hear about national projects in education, positions on marriage, etc.- but they can only influence the states- for example, by giving grant money to state educational budgets in states which follow a certain nationally recommended bit of curriculum, or giving grants to build roads in states where the traffic laws are the way the national government likes, etc., etc.

[Ijustwannateach]

^and since all of the national/international benefits of US citizenship regarding couples are already tied to the word 'marriage,' that's why JT's emphasizing it. If states granted 'civil partnerships' to spouses, they wouldn't fall under the recognised legal language at the national level that benefits, immigration rights, treaties, etc., etc. are all tied into without a lot of legislative wrangling at THAT level, which would be another whole tangled-up battle.

[ProThaiExpat]

LeC in your post on equality your logic applies to the physical differences in humans, etc. but "equality" referred to in this thread is in a legal and constitutional context involving civil rights. The constitution of the US and most states therein require the government to treat all persons in their jurisdictions equally under the law. That is a civil right granted by the US Constitution and any time a government or people through a referendum infringes on that civil right, the courts negate the law or act.

There was a time when women were not given an opportunity to participate in sport teams in schools and that practice was discarded by court actions as women have as much right to play in organized sports as do men. There are many cases where women were physically good enough to play on men's teams and the courts ordered their inclusion on the previously all men's teams.

Many states have rushed to amend their constitutions hoping to block gay marriage. The legislature of California passed equality marriage laws for gays two years running and the then governor Schwarznegger vetoed it, as did Gov. Christie did just this last month in New Jersey. The California Supreme Court then heard a case and ruled that gays had the constitutional right to marry under the California Constitution. Prop 8, a referendum passed in which a bare majority of the voting public returned the law to the previous opposite sex restriction to marriage after many thousands were legally married in California.

The current case which was the subject of the play Jingthing was so kind to link to his post, was an appeal of that referendum amending the California Constitution. When a state constitution violates the mandates of the US Constitution, the federal courts and the U.S. Supreme Court have jurisdiction to review the constitutionality of the State constitution involved. This is what is going on at the appeal level since the U.S. Federal Court for the Northern District of California ruled that the amendment to the California Constitution was a violation of the equal protection clause of the U.S. Constitution and declared that amendment to the California unconstitutional. Unfortunately the federal courts held the effectiveness of their decisions in abeyance until the appeal process is completed.

The laws regarding interracial marriage has come up for discussion and they are very relevant to understanding the constitutional principles involved in gay marriage.

In 1947, the California Supreme Court under Chief Justice Earl Warren ruled that it was unconstitutional under the California Constitution to deny interracial marriage. It took 17 years before the U.S. Supreme Court agreed and declared all laws in the U.S. that denied the right to marry interracialy to be unconstitutional. At that time a vast majority of the states in the US barred interracial marriage and a little over 80% of the public felt likewise. The Chief Justice of the Supreme Court at the time was Earl Warren. The same Chief Justice responsible for Brown v. Education declaring that in civil rights matters, separate cannot be equal.

Yes, there was an attempt when President Bush had Republican control of both houses of the U.S. Congress to amend the U.S. Constitution to restrict marriage to a man and woman. The effort was defeated, ironically, as one of the tenets of the right wing in the U.S. is "states rights", the notion that the States should do almost everything government should do and the Federal Government has no business sticking its nose in what states do. Fortunately for civil rights, the U.S. Constitution is supreme and when it is interpreted in a progressive way, regressive laws and state actions fall.

Personally, I think Republican and Democrat are misnomers, it should be the Progressive Party and the Regressive Party.

[LeCharivari]

LeC in your post on equality your logic applies to the physical differences in humans, etc. but "equality" referred to in this thread is in a legal and constitutional context involving civil rights. The constitution of the US and most states therein require the government to treat all persons in their jurisdictions equally under the law. That is a civil right granted by the US Constitution and any time a government or people through a referendum infringes on that civil right, the courts negate the law or act. ....

In the context of "civil rights" things are actually nowhere near as different as JT, IJWT, etc, seem to think - although admittedly the UK doesn't have a "constitution", as such.

The problem is that "all persons" simply aren't equal either physically or under the law, and you can't legislate to make people equal - do (and should) men have an equal right to breast feed, for example, and to have access to rooms put aside for that purpose? Why can't men enter the Miss America pageant? I recall the Mr Gay Pattaya pageant being won a few years ago by a man who made it very clear that he wasn't gay, so maybe there's a precedent ... This may sound a bit frivolous, but I think that all this fuss over humankind instead of mankind, chairs instead of chairmen, etc, actually hinders progress rather than helps it.

In the UK Civil Partnership is both technically and legally the direct equivalent of and "equal" to marriage, as confirmed by the High Court in the case of Wilkinson vs Kitzinger (2006) when the court declared that, contrary to the couple's view that Civil Partnership was symbolically inferior to marriage, "abiding single sex relationships are in no way inferior, nor does English Law suggest that they are by according them recognition under the name of civil partnership".

I fully appreciate that Civil Partnerships may not be what some people want in the US, but to say that its "irrelevant" because "The U.S. legal system is structured differently than the U.K." is simply incorrect - yes, the systems are different, but that has nothing to do with why some (even, apparently, most) gays in the US want gay marriage rather than Civil Partnership. Its a personal preference issue, not a legal one.

Similarly, saying that "If states granted 'civil partnerships' to spouses, they wouldn't fall under the recognised legal language at the national level that benefits, immigration rights, treaties, etc., etc. are all tied into without a lot of legislative wrangling at THAT level" is equally incorrect - all that is needed "at national level" is for "all of the national/international benefits of US citizenship regarding couples .. already tied to the word 'marriage,' " to be tied instead to the words "marriage / Civil Partnership".

[Jingthing]

In the U.S. both state legal same sex marriages and state domestic partnerships are equally WORTHLESS regarding federal laws concerning marriage. Again, nobody here is saying what the U.K. did isn't great. Just that the situation is very different in the U.S. and in the U.S. it IS about same sex MARRIAGE. This won't change. Different paths, different countries.

[LeCharivari]

..There's no national definition of marriage, for example, so the federal government can't speak on behalf of all 50 states- the best they can do is say: 'This couple is legally married in the state of XX, so we have to call them married and therefore if our treaty with you (the foreign nation) requires YOU to respect our contracts, you have to say they're married, too!'

.... Things were simpler in the UK, Canada, etc., because the rules were national- so when one court found 'for' gay marriage at a high enough level, or when a law was enacted in parliament, it affected everyone.

Sorry, but that's not correct.

England and Wales are governed by the same legislation, but Scotland and Northern Ireland are not - the laws for Civil Partnerships have always been different (residence requirements, waiting and registration periods, etc) but recent legislation in England and Wales (the Equality Act of 2010) does not yet apply to Scotland or Northern Ireland, and Scotland has already held its consultation on same-sex marriage, including in a religious context. The Isle of Man and Jersey only legislated for Civil Partnerships last year and this year, respectively, and Guernsey plans to review it in 2013; none of the seventeen British Overseas Territories (the Falklands, Gibraltar, etc) have approved it and the Cayman Islands have amended their marriage laws to define marriage as being between a man and a woman.

... and there are no international treaties obliging any country to respect any "foreign nation"'s laws on gay marriages and to accept them as being "married, too!" - some countries do if they have similar legislation (gay marriage / civil partnership) themselves, under their own laws and terminology, others do even if they do not allow/recognize gay marriage for their own citizens, but no nation is obliged to do so.

[LeCharivari]

...Again, nobody here is saying what the U.K. did isn't great. Just that the situation is very different in the U.S. and in the U.S. it IS about same sex MARRIAGE. This won't change. Different paths, different countries.

Agreed - but the "situation" is different BY CHOICE, not because of legal or constitutional differences as you continue to insist. "it IS about same sex MARRIAGE" because that is what those involved have MADE it about, and if that means that American gays have to wait longer for the rights that others already have they only have themselves to blame.