Jeremy takes this thing apart- Adam
Cross-posted at Good As You
By Jeremy Hooper
MN For Marriage’s latest, in two parts:
1. No, nobody is seeking “two irreconcilable and conflicting definitions” of marriage. Equality activists are seeking *one* concrete definition that doesn’t discriminate on the basis of gender. The ones creating two irreconcilable definitions are those who demand same-sex couples meet all the burden$ of citizenship, yet fail to provide equal protection and due process under the law.
2. The “31 of 31 states” canard: This is so intellectually dishonest. Yes, it’s technically true. However, the vast majority of those states happened at a very different time, when marriage equality was much more untested, the public was much more apt to buy into fear lines, and those who might defend equality in these early states were completely blindsided by the conservative onslaught. We never had a chance then, whereas now we have nothing but opportunity. In fact, in many ways, the crude discrimination attached to this early wave helped us connect the dots for a previously unengaged public.
3. The “adopted by a bipartisan majority of Congress” thing: This is in reference to the 1996 Defense of Marriage Act vote, and it is completely misleading. Sure, more than a few Congressional Democrats of a decade-and-a-half ago voted with the GOP majorities that controlled both chambers, many of them names (Biden, Mikulski) who would surely vote differently today. However, only one Republican — ONLY ONE! — voted against federal DOMA back in the day, an openly gay, retiring Congressman by the name of Steve Gunderson. Other than Gunderson, it was the Democratic party, even then, that put up the resistance to that decade’s vast right-wing wave: A right-wing wave that voted for DOMA by a 277-1 margin!
So yes, again, one can technically call the 1996 vote bipartisan. But the facts are a little more complex than the talking point. More here.
4. President Clinton, like many of the aforementioned Democrats who voted for DOMA, now stands against both DOMA and marriage discrimination in general. If we’re going to talk about the vote of 2012, then let’s talk about 2012 and not a congressional vote held sixteen years before.
5. “Current times”: Our current times includes six states and the nation’s capital with civil marriage equality. Massachusetts has had marriage equality for seven years now. And guess what? NOT ONE OF THE FAR-RIGHT FEAR CLAIMS HAS COME TRUE! Conservatives who are pushing this form of discrimination are going to have to start owning what is real, instructive, and patently obvious!
6. “The people” get to decide: Well no, not on issues pertaining to minority rights they don’t. Or at least they shouldn’t. The “protect marriage” crowd of the here and now might think it’s super fun to toss around the idea that minority rights should be up for a public vote, since they maintain a slight majority in most polling (and certainly rally their hyper-motivated base better on election day). But anyone who considers the implications, based on both a read of history and a consideration of a theoretical future, would hopefully think twice before so casually and carelessly tossing around “let the people vote” claims.
Oh, and it’s pretty funny (read: super annoying) to hear MN For Marriage knocking the idea that politicians would get to decide on marriage, considering the earlier touting of 1996′s Congressional vote on DOMA. Last time I checked, the U.S. Senate and House is also filled with politicians.
7. Judges do not “substitute their values.” That’s not the gig. Judges are tasked with ensuring that our policies are kosher, based on the prescriptions of our state and federal constitutions. Sure, it sounds all nice and scary to call judges “activist” and act as if our independent judiciary is some roving band of liberal foot soldiers out to rob rather than serve “the people.” But doing so is dangerous to our nation, dangerous to “the people,” and quite threatening to our way of life.
8. “Serves the interests of “men and women [and] children”: No, marriage as it exists right now, in most states and on a federal level, DOES NOT serve the interests of all men, women, and children. Same-sex couples and their families are unfairly burdened by a civil marriage system that fails to protect and benefit all, equally. Pointing out the good of marriage is one thing. Pointing out said good while also working to deny it to some? Well that’s just plain cruel!
Let’s move on (second part below the flip):
(more…)
August 31, 2011
By Adam Bink
I wrote a month ago about Goodwin Liu, the UC-Berkeley law professor whose nomination to the 9th Circuit was torpedoed by U.S. Senate Republicans and was recently nominated instead to the California Supreme Court by Gov. Brown. Liu’s confirmation vote is expected tomorrow. Excerpt:
Liu is likely to face a more welcoming reception to the state court. He is set to replace former Associate Justice Carlos Moreno, a strong backer of LGBT rights, who retired from the court earlier this year.
The State Bar’s Commission of Judicial Nominees Evaluation must first review Liu’s nomination before it goes to the Commission on Judicial Appointments, consisting of state Supreme Court Chief Justice Tani Cantil-Sakauye, Attorney General Kamala Harris, and Justice Joan Dempsey Klein, senior presiding justice of the state Court of Appeal.
The three women will consider the proposed appointment at 3 p.m. Wednesday, August 31 in San Francisco. Atkins said she “fully” expects Liu will be confirmed and “will go on to serve with distinction for many years to come.”
It is unclear if he will be seated in time for when the court hears oral arguments on whether Prop 8 can be defended in federal court by its backers. Due to his involvement in the fight over Prop 8 three years ago, it is likely the law’s supporters would request he recuse himself should his nomination be approved prior to the hearing, expected to take place as early as September.
Yesterday, Liu received a strong review from a state bar panel. SF Chronicle:
Goodwin Liu, the UC Berkeley law professor nominated to the state Supreme Court by Gov. Jerry Brown, drew raves Monday from a State Bar panel, which praised his “brilliant intellect … impartiality, integrity, collegiality, and a work ethic second to none.”
Liu, whose nomination by President Obama to the Ninth U.S. Circuit Court of Appeals in San Francisco was derailed by conservative opposition and a Republican-led filibuster, apparently faces no such obstacles to a seat on the state’s high court.
Only supporting witnesses have signed up to testify at Wednesday’s confirmation hearing of the Commission on Judicial Appointments in San Francisco. They include Alameda County District Attorney Nancy O’Malley, a counterweight to the 42 district attorneys from other counties who opposed his federal nomination but did not contact the state commission.
The bar’s Commission on Judicial Nominations Evaluation gave him its highest rating, “exceptionally well-qualified.” He also received supporting letters signed by more than 130 law professors – ranging from fellow liberals to John Yoo, the former Bush administration attorney now teaching at Berkeley – as well as six members of Congress and numerous legal groups.
Judicial Watch did write in to call Liu “radical and inexperienced,” naturally.
I checked on the Commission’s schedule and a confirmation vote is still scheduled for 3 PM tomorrow. It’s expected, though not certain, that if confirmed he would be seated in time for the September 6th hearing on standing in the Prop 8 case at the California Supreme Court. It is worth mentioning that the issue before the court, though, is standing, not the constitutionality of Prop 8, on which Liu has previously spoken out.
August 30, 2011
By Adam Bink
Kerry Eleveld takes a look at the anti-gay rhetoric and personal past history of the Republican field, examining how voters might respond, particularly evangelical Christians and gays. What would be interesting is how LGBT people respond. CNN’s exit poll figure from 2008 pegged the number of self-identified gay voters for McCain at a remarkable 27% — a figure that may be off. How will those voters respond to the Bachmanns of the world? Or Huntsman, who seems to be labeled the “compassionate conservative” of the race, at least when it comes to the gays? Now that Obama has a long record on these issues, how will that factor in? Will the 27% go up or down?
August 30, 2011
By Adam Bink
I lift out Chemerinsky’s essay from the symposium on marriage equality at SCOTUSblog which many of us have been following with great interest because he, perhaps more than anyone else who has contributed has written, argued and thought so much on this issue. Chemerinsky is the dean of the law school at UC-Irvine. An excerpt from his essay, which closes the symposium:
The second major question that has been debated in these essays concerns the role of the judiciary. I was surprised that even William Eskridge, a supporter of marriage equality, urged the Court to observe the “passive virtues” and declared:
“[I]f the Supreme Court were to take the Perry appeal and reach the merits, the Court ought to issue a narrow opinion that would not purport to settle the constitutional issue one way or the other.”
I very much disagree. It is the role of the judiciary to interpret the Constitution and especially to enforce its protections of liberty and equality. Laws that prohibit same-sex marriage deny gays and lesbians of the right to marry and discriminate against them solely based on their sexual orientation. It is the judicial role to strike such laws down, just as the Supreme Court did in Loving v. Virginia (1967), in invalidating state laws that prohibited interracial marriage. I do not see how the judicial role is any different relative to laws denying marriage equality to gays and lesbians.
Deborah Hellman writes that the Court should do so based on equal protection, but not based on the right to marry. She asks whether a court should be defining marriage. But the Supreme Court already has held that there is a fundamental right to marry. Thus courts must define who is entitled to that right. To say that marriage has always been between heterosexual couples is no more determinative of the constitutional question than it was to say that marriage in Virginia had always required a same-race couple.
Marriage is ultimately about a couple expressing love and commitment and then receiving the benefits the law bestows on those who do so. It has no more to do with the gender of the members of the couple than their race. I agree with Hellman that the Court should find laws denying marriage equality to violate equal protection, but they also deny the right to marry to same-sex couples.
Finally, there is the question of what the Court is likely to do. Perhaps it is that concern which underlies William Eskridge’s plea for the passive virtues. Other supporters of marriage equality, such as David Cruz, express doubts about whether there is a majority on the Court to find a constitutional right for gays and lesbians to marry.
I continue to believe that the Court will rule, five-to-four, in an opinion authored by Justice Anthony Kennedy, that laws prohibiting marriage equality violate the United States Constitution. Kennedy wrote the Court’s opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003), and I think that he will see his longest-lasting legacy from over a quarter of a century on the Court being in the area of eliminating discrimination against gays and lesbians. I believe that his opinion will emphasize, as he did in Romer and Lawrence, the absence of any legitimate interest for prohibiting marriage by same-sex couples. As in Lawrence, and other opinions, he will point to the trend across the world.
Ultimately, the question for Justice Kennedy, the Court, and society is whether gays and lesbians are entitled to equal dignity and equal treatment under the law. There is only one possible answer to that question.
August 30, 2011
