Fighting to Gain Equal Access to Problematic Institutions
I’ve been encouraged by the recent outpouring of feeling and response from politicians, community leaders, and “regular people” regarding queer teen suicide. Of course, part of me thinks “wow, what a big fucking case of too little, too late” and another part can’t help but notice that none of the trans or intersex teen suicides seem to be making the headlines. But I think it’s important that we recognize that every day, the basic rights of queer people are violated. For years, the most important “gay issues” to me have been suicide, hate crimes, and discrimination. But those haven’t been the “sexy issues,” and they don’t get talked about.
I seem to spend half my time in queer activist circles ranting about marriage and the military, but in reality, the problem I have with privileging those two issues goes beyond the issues themselves. Whenever any group is working for equal rights, there comes the question of what people in that group want equal rights to. When the answer is access to an institution, the equality fight can be problematic if the institution itself is problematic.
I personally have big issues with both marriage and the military as a radical, a pacifist, a feminist, and someone who believes in community action and organizing but can be suspicious of state involvement in private lives. The US military is an imperialist machine, while marriage is a patriarchal institution that grants the state control over interpersonal relationships and gender relations. But that doesn’t mean that there’s anything wrong with an individual wanting to marry, or to join the military. It falls along the same lines of being pro-sex workers, but anti-exploitation. Of course, equal access means equal access to our society’s most problematic institutions, as well as those we most fervently believe in.
From an organizing perspective, this means that there are going to be some challenges. My response is to privately support queer people who want to join the military or marry, while avoiding those issues professionally and choosing queer rights issues that I can wholeheartedly get behind. At the same time, part of my response is to be an activist against patriarchy and imperialism, for feminism and racial equality and peace. Part of that is creating options that accommodate people who do want to join the military or marry, for example by coming up with creative solutions for state recognition of a greater diversity of relationships or by creating opportunities for young people to make a living and attend college that don’t require unjustified violence against people of color.
Why Is Same-Sex Marriage a Priority?
I know I’ve mentioned here before that I get frustrated by the emphasis on marriage and the military in the gay rights movement, two issues that don’t really matter to me personally and in some ways seem less important than other issues (like decriminalization of sodomy around the world, like HIV prevention, like hate crimes prevention, like non-discrimination laws). But aside from that, I was just wondering, why marriage? Obviously it’s an important institution in our society, but I find it interesting that it happens to be the marker of how the gay rights movement is progressing around the world. A lot of countries in Latin America, for example, have really impressive laws about hate crimes and non-discrimination, but that doesn’t get emphasized in the news at all, while a new country getting same-sex marriage is automatically a big deal.
Prop 8 Overturned, Sort Of
Your blogger’s inner cynicism rears its ugly head, I’m afraid. I haven’t had time to read the decision or anything else, so I’m operating on what I know from the news, which is that a California District Court ruled Prop 8 unconstitutional on Due Process and Equal Protection grounds and that a stay has been issued, though it’s not a very long one and so it’ll expire before an appeal and another stay will have to be issued.
Assuming that’s correct, this is definitely something of a victory, but it doesn’t mean people can get married again, and it doesn’t mean that Prop 8 was really “overturned,” at least, in the sense I use the word. I sort of feel like you can’t overturn something if the next guy can turn it right back. But despite that, I’ll feel some cautious sense of victory, and eagerly anticipate the result of the appeals process.
Breaking News for Marriage Equality!
Maryland Attorney General opinion means that MD will recognize out-of-state same sex marriages. Heh, maybe I should’ve gotten married when I was in Iowa before moving to Maryland.
Some preliminary thoughts on the Varnum opinion
At the moment, I’m in a fabulous and fascinating conference on CRT and ignoring it because I’m so excited about this opinion. More thoughts to come, but I wanted to post a few initial observations.
1) The opinion was unanimous, and they applied intermediate scrutiny (not dismissing strict, but not reaching it because of the result under intermediate).
2) The language is absolutely beautiful. Let me share my favourite quote: “Our responsibility… is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.” YES! The whole history/tradition thing was a big deal in oral arguments, and I’m so glad that the Court continues to embrace an evolving notion of equal protection under the Iowa Constitution. Iowa has an amazing history when it comes to equal protection, and this is just another example.
3) I loved their basically saying that it’s absolutely ridiculous to argue that there’s no classification being made here because gay people can marry someone of the opposite sex just like straight people. Thank you!
4) They also did a great job on the procreation/child-rearing arguments, which were a big focus of this case. Dennis Johnson gets big credit for the way he argued this point, and the Court bought it.
Finally, if you’d like a step-by-step breakdown summary of the ruling, you can read my article:
Excuse me a minute while I squeal…
IOWA HAS GAY MARRIAGE!!!!!!
Heads up on an interesting discussion on gay marriage
If you haven’t yet seen it, Jon Stewart makes some really thoughtful arguments in a discussion with Mike Huckabee about gay marriage. One of my favourite points: “Religion is far more of a choice than homosexuality.” You can get it online at thedailyshow.com, just click full episodes and select Tuesday’s night’s show. The discussion is right after the last little black commercial break bar at the bottom of your screen.
Marriage equality in Iowa? Say it'll be so!
I was pretty bummed after months of planning to go to the oral arguments in the Varnum v. Brien case today that my ride decided that it wasn’t likely enough that we would get a seat in the courthouse and changed his mind, but I understood and due to the freezing rain it was probably a smart call anyway. Instead, I watched the arguments at a OneIowa viewing party here in Iowa City. These are my thoughts.
- The lawyer for the defense, a Mr. Cool, was disrespectful to the court, bumbling, and just not all that great. He barely answered a question, he stumbled a lot, he ran himself around in circles, he contradicted himself, he often told a justice that he didn’t want to answer a question or that the question wasn’t good, and twice he reminded the court that his time had run out. He held his folders in his hand at one point and looked like he just wanted to get the hell back to his chair. This isn’t substantive, but I hope it will make the court look less kindly on his arguments.
- The defense presented a lot of weak arguments that haven’t worked well in other states. The focus was heavy on procreation, and the justices all hammered the attorney on that point, wanting to know what heterosexual marriage has to do with raising a healthy family. You could tell that the attorney knew he was backing himself into a corner and he never really made his way out.
- He also relied pretty heavily on the rational basis test, which the court very well may use, the but the court repeatedly asked him about strict or heightened scrutiny and he couldn’t answer. Probably because if they apply strict scrutiny, he’s screwed.
- The court mentioned a very recent Iowa case called Mitchell that I don’t know but apparently it requires the plaintiff when arguing no rational basis not only to argue that the government has no rational state interest but also to provide specific evidence to back it up. The problem is that our side has the burden if the court picks rational basis, and the court basically said that neither side has any decent social science evidence despite thousands of pages submitted.
- It seems at least possible that they’re going to reverse the District Court on the affidavits that it refused to accept, affidavits from experts including religion professors and a history professors about heterosexual marriage being traditional, etc. etc. The reason for not accepting those affidavits is that they were personal opinion rather than actual expert testimony, but there was a whole run-around about legislative vs. adjudicative facts and one justice asked whether the case should be remanded or decided if it didn’t agree on that point.
- One that had the law students in the room kind of gritting our teeth and holding our breath was a question about polygamy. The defense focused a lot on the “four thousand years” of marriage and tradition and the danger of marriage being eroded in a generation domino effect blah blah blah. The court then asked the attorney for the plaintiffs what the line is for the definition of marriage, i.e., if we’re allowing gay marriage why aren’t we allowing polygamy? That was a tough question, though I do think he managed to squeak out of it with an explanation that polygamy changes the actual structure of marriage while same sex marriage only changes the people who can enter into that structure. Granted, I don’t really have a big problem with polygamy myself, but I think he handled it pretty well.
Democracy, Constitutionalism, and Where Gay Marriage Fits In
I’ve been writing a seminar paper on the democracy deficit in international law and arguing that the system can be legitimate without democracy because constitutionalism (and some other things) fill the void. I was thinking about the whole California issue last night and it occurred to me that it raises similar questions. Of course, we’re all raised to think that democracy is great and wonderful and special, but it does have its problems. One of those is that internationally, we tend to not accept democracy if it doesn’t get us the “right” leader. We don’t have that problem so much at home, but democracy doesn’t always work so well nonetheless. There’s a tension between “tyranny of the majority” and “tyranny of the minority.” Those of us who are gay or lesbian don’t feel so hot about the majority ruling on our rights, after all. We want to say that no matter what the majority of Californians think, it’s just not right. On the other hand, Californians in favor of the Proposition don’t like the idea of a minority of gay people, and the justices in kahootz with them, deciding what marriage is. As biased as I am, there are points on both sides.
A constitution is supposed to be a document that reflects a society’s fundamental principles. Of course, at the start, it was a democratic instrument, and it can be altered, but we have to sacrifice a teeny bit of the democratic element to protect vulnerable minorities and ensure that certain basic principles aren’t just vetoed. That’s why constitutions are so difficult to amend. There’s an argument coming out now, which I think is a good one, that Prop 8 is invalid because California has two different types of amendment processes and the ballot initiative one isn’t supposed to be used for amendments that fundamentally alter the existing nature of the constitution. I think this is a good idea, because the whole point of a constitution is to protect against temporary political surges. The amendment process is supposed to say “hey, are you sure you want to do this?” A simple majority vote doesn’t quite achieve that.
I understand the whole “judges legislating” argument, but let’s remember one of the key purposes of judges – to uphold individual freedoms. The thing about equality is, it benefits everyone. And this may bug some of us, some of the time. But on the whole, it’s a good principle. It protects straight people, too. Despite what some may think, it wouldn’t be constitutional for schools, for example, to promote gay marriage over straight marriage, or homosexuality over heterosexuality.
Sometimes I’m uncomfortable with my anti-democratic ideas, because a constitution could of course enshrine principles that are oppressive. But I don’t think this is an issue when it comes to equal protection. I think equal protection on the whole, works well, and the discrimination Californians are trying to enshrine in their constitution is based on bare animus towards a politically unpopular group – something the Supreme Court has rejected, and I think most Americans would reject (even Californians, if you put it in general terms). The problem is the cultural moment, and we’ve had many cultural moments in our history like this one, which we’ve eventually gotten past. As one blogger said recently, in 20 years we’re going to be embarrassed about this.
Spotlight on Ballot Initiatives: Another Reason to Vote No on 8
I already highlighted some reasons that even people who are sort of in the middle on gay marriage should vote No on 8 in this post. I showed you some powerful ads against the proposition in this one. But now I have another reason to vote no. This post is specifically for Write to Marry Day, an event hosted by Mombian to put the spotlight on Proposition 8. I’ve been thrilled to see how many bloggers are coming out against 8, including the awesome visual of the No on 8 quilt by Riese (I’m down there on the bottom). But even if you wouldn’t consider yourself a supporter, or are feeling a little uncomfortable or unenthusiastic about same-sex marriage, you need to vote no.
This isn’t just about gay marriage. People keep saying that this is about discrimination, hate, and equality, but one example really hits home for me why Californians need to get to the polls and defeat this proposition. You may have heard about how the Yes on 8 folks have been sending letters to small business owners who donated to No on 8, warning that if they do not donate the same amount to the Yes campaign they will be publicized as opposed to traditional marriage. That’s not just dirty politics, it’s terrifying. Because you know what this sounds like? It sounds like a time in our nation’s history where people were hunted down, blackmailed, beat up, and even killed because of the color of their skin or their sexuality. This isn’t just about gay marriage. If you’re thinking of voting yes on this proposition, please think long and hard about whether you want people who resort to these tactics to win. It won’t stop here. Marriage is just one step, and even if you can’t stand the idea of gay people getting married, think carefully about whether their ability to marry will hurt your life or your family. Remind yourself that you’re the one your children look up to, and that you can teach them whatever the heck you want. Yes, I’d personally prefer that children grow up to believe that it’s not who you love, but how you love them. But I’m willing to concede some ground here because the important thing is that whether or not you want gay people married, I don’t think you want them threatened, fired, or killed. These types of human rights violations are real. They happen in many parts of the world. Private citizens in this country commit serious hate crimes against gays and lesbians even as we speak. If you’re religious, I think you can agree that whatever God considers a sin, he isn’t asking you to beat up or kill the sinner. We aren’t so far away from turning the clock back to a time when gays and lesbians constantly had to fear for their lives and reputations. Don’t be responsible for turning that clock back. Vote no on Proposition 8.