So here’s the deal, as I understand it:
- The Supreme Court of Massachusetts has ruled that denying same-sex couples the right to marry is a violation of their rights – under the Massachusetts State Constitution. This means that the case can’t be appealed to the Supreme Court of the US, since the U.S. Supremes don’t have the authority to interpret state constitutions.
- Under the ruling, second-class citizenship measures like “civil unions” aren’t acceptable. It’s equality time, baby.
- But – the court didn’t enact it’s decision immediately. Instead, it gave the legislature six months to revise Massachusetts marriage law. The legislature is mostly anti-equality, so it’ll spend that six months looking for a loophole.
- The best loophole for the anti-equality folks is to revise the Massachusetts State Constitution to define marriage as “no gays allowed.” However, that would have to be done by statewide ballot – and unless they find a way to change the rules, the next opportunity for them to do that is 2006. So even if the anti-equalities go this route, there may end up being a year-and-a-half of legal gay marriage first.
- This means that gay marriage will most definitely be a live issue in the upcoming presidential election. Look for the Republican party to play to anti-equality sentiment a lot in their fundraising drives.
I’ve got mixed feelings about this, myself. On the one hand, I really think that these decisions are best made by the legislature, not by the courts. Court-driven social change can backfire – look at the way that Roe v Wade has energized the right-wing for decades (and arguably led to the defeat of the ERA). This decision – especially if the legislature doesn’t find a loophole – may lead to a vast increase in anti-equality, homophobic legislation around the country.
On the other hand, equality is good.
Links: Here’s the AP story. And here’s the Boston Globe story. And here’s the New York Times story. And here’s the decision in Microsoft Word format. And here it is again, in .pdf format..
That’s why courts have some oversight. And why the MASS Supremes have given the pols 6 months to correct a violation of the state constitution. If they don’t act to give equal access, the court must step in. Otherwise, there would be no incentive to get with the program. And minorities of every stripe would never have equality.
Yeah Massachusetts!
On the other hand, equality is good.
I love the simplicity. I mean, how else are you going to say this?
Well, ironically, both sides seem to agree on the benefits of marriage to children!
Marriage Promoted as Cure to Social Woes
Mass. Court Says Gay Marriage Can’t Be Denied
Will I ever learn to close my html tags?
Mass. Court Says Gay Marriage Can’t Be Denied
I’m in an odd mood. reading the headline on lucia’s last post, all I can hear is the melody to “And he’s a jolly good fellow” running thru my head. [“Gay marriage cannot be denied! Gay marriage cannot be denied! They may make strange bed-fellOWS, but marriage cannot be denied.”]
BTW, I’ve been blogging up a storm about the ruling in general on my journal, in case anyone is interesting.
Don’t go all DLC on us now….some of the “court-mandated social change” included Brown v. Board of Education and Loving v. Virginia. Like these civil rights cases, gay marriage is an idea whose time is coming, NOW, and the court ruling will precede a legislature lifting the restrictions by a significant amount of time.
I don’t see the ruling being as potent a spur to conservatives as Roe v. Wade; even the most vehement pro-choicer will admit that abortion is a choice most women would not want to consider.
Marriage, however, is almost overwhelmingly positive, and conservatives who oppose gay marriage will look like spoilsports. We just need some nutballs like Fred Phelps to start bloviating to make our side look like joyous and rational people.
“This means that the case can’t be appealed to the Supreme Court of the US, since the U.S. Supremes don’t have the authority to interpret state constitutions.”
I’m not sure how true that is. The U.S. Supremes can invalidate clauses of state constitutions that are in conflict with the U.S. Constitution, and maybe (I’m not sure, but I think so) also if they’re in conflict with federal statutory law.
But the Mass. court opinion is a honey of a decision.
Wonderful news. I’m sick of that “civil unions” bulls**t.
Simon – I think the US Supreme Court has authority to review state constitutions and statutes under the 14th Amendment, which states, in part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (from section 1) This is what made it unconstitutional for states to restrict First Amendment rights, for example. All suits alleging state violations of such rights are filed under the 1st *and* 14th Amendments.
The Mass. Supreme Court made a decision about what kinds of rights are granted to residents of Massachusetts by the state constitution; since there’s no reasonable way to argue that their decision infringes on the rights, privileges, or immunities granted by the US Constitution, it’s highly unlikely that the US Supremes would take the case (if anyone made it). Marriage law is pretty clearly a state matter if the laws involved don’t violate people’s constitutional or federal rights.
The interesting constitutional issues will come when some state (maybe Massachusetts) grants marriage licenses. The US Constitution says “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” (Article IV, section 1) Marriage is generally regarded as an official act, which is why you don’t have to get a new marriage license every time you and your spouse move to a new state. But the federal Defense of Marriage Act (blargh) says that states have no obligation to recognize same-sex marriages, and 37 states have laws that prohibit state recognition of same-sex marriages. To me, both of those sound very much like they violate the full faith and credit clause, which would make them unconstitutional. I’m not a constitutional law scholar, but most people I’ve heard from seem to agree – we’ll see what the US Supremes think.
Thanks for the analysis, Laurel. One argument often made by anti-gay bigots is that gay marriage would diminish the value of straight marriage. I do not follow this reasoning at all, but if true it could be argued to abridge the privileges of citizens.
Actually it seems to me self-evident that any state prohibiting gay marriage is infringing the privileges of citizens of the U.S., but what do I know?
I also agree that the “Defense of Marriage Act” (there’s that argument again – how is marriage being attacked?) is a clear violation of the full faith & credit clause. But then, it seems to me that the military draft is an equally clear violation of the 13th Amendment, which prohibits involuntary servitude. But the Supremes have ruled that it isn’t.
Their argument is that that’s not what the framers of the 13th Amendment meant when they wrote it. But nobody’s claiming that the framers of the Bill of Rights meant to protect pornography when they wrote about freedom of speech, but that’s not been used by courts to prohibit pornography. So I don’t get it.
I think that the courts just prohibit or allow whatever they want to prohibit or allow, and work out the reasoning later. There’s plenty of research that supports this view. If Scalia wants to prohibit gay marriage, and gets the chance to try, he’ll think of something.
Which 37 states are the ones with the laws that prohibit state recognition of same-sex marriages? Does anyone have a list on the internet?
Simon: I obviously agree with you that same-sex marriage doesn’t diminish the value of marriage. Indeed, for me and a number of my queer (not always gay) and queer-positive friends, making marriage straights-only diminishes its value. I don’t want to get married knowing that had I fallen in love with someone else I wouldn’t have been able to do it, or that my friends who are in committed relationships won’t be able to get married: bigotry within the institution makes it much less appealing to me.
Scalia will obviously make just about any argument to prevent same-sex marriage. I’d say Thomas and Rehnquist are also likely to vote against same-sex marriage, whatever the legal grounds, though they may surprise me. The other justices are, I think, much more likely to consider it as a matter of constitutional law and possibly as a matter of evolving community standards. While the Supremes and other courts have clearly made some number of stupid decisions that were more about choosing a stand on an issue than about the legal questions involved (Bush v. Gore is a prime example), these are also really smart people who’ve devoted their lives to studying and interpreting the law. They’ve even been known to change their minds.
On this specific case, I think it’s interesting to look at the legal reasoning in Lawrence v. Texas (the sodomy case). Sandra Day O’Connor is generally the swing vote on social issues in this court, and her concurrence in Lawrence was based on equal protection arguments. The majority (Kennedy writing, joined by Stevens, Souter, Ginsburg, and Breyer) held that it’s the right to privacy that made that law unconstitutional: O’Connor, instead, argued that singling out one particular group is unconstitutional. The privacy arguments, I think, have little or no effect on the right to same-sex marriage. Equal protection, on the other hand, is basically the same thing that made the Mass. Supreme Court issue such a sweeping opinion (same-sex couples cannot be second-class citizens, they said, which may well mean they won’t accept civil unions). So it’s possible that not only will O’Connor, at least, argue that DOMA is unconstitutional because it violates the full faith and credit clause, but also because it singles out a particular group of people who are then denied equal protection of the law.
I’m also interested what they’ll think about the evolving social consensus, which is almost always something they consider in issues like this. Four state courts have held that prohibiting same-sex marriage violates their state constitutions, but 37 states have passed laws against same-sex marriage. About 60% of the general population believes same-sex marriages shouldn’t be recognized, but about 60% of people 18-29 think they should be. I’m pretty sure I know where this is going (straight to general acceptance of queer people, in the very long term), but the interesting question is what the Supremes will think about it.
Wow this is long. Julie, the best list I found on-line is at http://www.cga.state.ct.us/2002/olrdata/jud/rpt/2002-R-0957.htm. You can also find a map in today’s NYT (turn to the continuation of the Mass. story), but not, as far as I can tell, in the on-line edition.
Laurel: Of course, I stood aside on the question of how many justices Scalia would get to follow him. I do not claim to be a close reader of Supreme Court tea-leaves, and personnel may change at any point.
Evidently in your vocabulary, at least, “queer” and “gay” are not synonymous. Unless they each mean “people who use those terms about themselves” I will need an explanation here. Thank you.
– Sympathetic but Confused Vanilla Heterosexual
no, queer and gay are not synonymous. the definitions I use:
queer: anyone who’s not heterosexual.
gay: someone who is more or less exclusively attracted to people of the same gender.
I like “queer” as a term because it’s a much quicker way of saying “everyone who has a non-standard sexuality and thus gets screwed over by heterosexism” than the various acronyms (lgbtqts, I think at last count).
I just want to say that there’s no reason to feel bad about not knowing terms – I only know them because I’ve been doing queer rights stuff since I was thirteen and went to a super-progressive college and am 21. I hate it when people yell at other people because they use wrong or unfashionable words because they never had the chance to learn right or currently preferred words.
After posting two links yesteray, how can I resist?
At fox news…
Singles Seek Financial, Legal Perks Offered Marrieds
I’d count anyone who engages in non-“standard” sexuality (anything other than heterosexual vaginal and oral sex) as queer….by those standards, *I’m* queer.
Again, it’s a great, inclusive term, particularly because when I was growing up, “gay” was used as an insult, usually meaning “stupid”. “Queer” was never used, and has a good meaning – something slightly odd.
I wonder how general Laurel’s use is.
In any previous distinction of the term “queer” that had come to my attention, I thought it meant “socially committed and politically active gays who have reclaimed the word ‘queer’ from its previously insulting use and are brandishing it as a badge of honor.” Some gays don’t wish to do that, and would not call themselves “queer”. But apparently Laurel would do so.
Where I come from, the term used to describe the set that Laurel means by “queer” is “gays and bis.” But that wouldn’t cover the set that Aaron means by it. I’ve heard various terms, mostly jocular, for that set.
Among gays that I know, “gay” means not just those who are more or less exclusively committed to attraction to the same gender, but also those bisexuals who in practice have decided to limit themselves to that side.
So maybe there’s been a generational change in terminology, or maybe it’s a regional difference, or something.
Julie,
I don’t know which 37 states outlaw gay marriage.I suspected Illinois, where I live, was one that outlawed it. I suspected Iowa, and Washingtn state, where I used to live did not outlaw it.
Anyway, I googled on Illinois, gay marriage, state law and found a rather old page by the ACLU
As of January 1998, bills banning same-sex marriage were blocked in 24 states; 25 states signed them into law. Below is a list of these states.
States that Passed Anti-gay Marriage Laws (25): Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Maine, Michigan, Minnesota, Missouri, Mississippi, Montana, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah and Virginia
States that Blocked Anti-Gay Marriage Bills (24): Alabama, California, Colorado, Connecticut, Hawaii, Iowa, Kentucky, Louisiana, Maine, Maryland, Minnesota, Nebraska, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Texas, Vermont, Washington, West Virginia, Wisconsin, and Wyoming
Who knows though. I live in Du Page county, Wheaton is the county seat. Last Friday, Wheaton College permitted its first campus dance ever. The local paper quoted a person who was appalled that the college now permits “vertical fornication to music” on campus.
I live here. I am fairly sure that person did not mean it tongue in cheek.
If Wheaton College can permit dancing, maybe, someday, Illiois will voluntarily permit Gay marriage?
The good news for gays is that 24 states blocking anti-gay marriage measures suggests that an anti-gay marriage ammendment to the US constitution would also be blocked.
Queer was originally (in most places) a slur, and activists started reclaiming it a while ago. Some people prefer queer ideologically, partly for this reason; others prefer it because they think it better describes their sexual attraction. My usage is common among people I know in my generation from my college and similarly liberal social circles. I think this makes it, like, the new hip word, and I think a lot of older people don’t use it that way. Organizations that have services for queer people usually use the acronyms.
Aaron, I’m going to have to respectfully disagree with your definition of queer. There’s a perfectly good word for people who like their sex more or less standard, which is vanilla, and another perfectly good word for people who like their sex a little crazier, which is kinky. Using queer to include kinky folk who are just attracted to members of the opposite sex confuses the two, and I think it’s a bad confusion. The kinds of sexual freedom that vanilla queer people and kinky straight people need are different, and while there are certain alliances to be made, I don’t think it serves either group to elide the difference.
The one big problem with kinky is that the definition depends so much on who’s doing the talking. Rick Santorum and my (reasonably progressive) parents and the people I barely know who go to sex parties probably all have wildly different ideas.
hEY gAY mE UP PLEaSE!
George Campbell
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