Just Above Sunset
February 29, 2004 - Notes on Gay Marriage













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"Have you no decency sir?  Have you no shame?"

____

 

I missed two days of watching the news early last week.  So I got to the culture wars late.  My two full days of jury duty ended late Tuesday afternoon as the district attorney used one of his preemptory challenges to thank and excuse me from the murder-conspiracy trial down in Superior Court.  I guess he really didn’t want a smart-ass from Hollywood who has been a member of both the ACLU and NAACP for decades sitting there listening to him try to convict that black man on the other side of the room.  The judge and I had a fine time in voir dire -- trading clever lines about the nature of circumstantial evidence and the nature of inference.  We were both grinning after ten minutes.  But I understand the district attorney’s thinking.  I’d have been trouble.

So anyway, the first two days of this week keep me from looking around the web. But when I did, I see many folks are talking about Bush calling for a constitutional amendment to ban same-sex marriage, and as the first draft of the amendment indicated, making any kind of “civil union” also quite illegal.

As I understand the Bush argument it goes like this: The president knows, somehow, that almost everyone opposes “gay marriage.”  He further knows that the courts, particularly the Massachusetts Supreme Court, ruled that such marriages were not only quite legal but protected as a right of association or whatever, and really the state had no ability to ban them at all.  People can thus marry whomever they wish – it’s not the state’s business to ban such marriages or deny rights and privileges to people so married.  Fine.  But the Bush argument is that judges shouldn’t rule something legal and just fine and dandy when everyone knows that some things are just plain WRONG.  His argument is that this is a democracy and the majority rules, not the “activist judges” he so hates.  If the majority says something is right and proper, then the judiciary in each state should bow to the will of the people.  Of course in 1840 that would mean in many states slavery would be just fine, and it was.  Bush would argue, it seems, that no court at any state level or the federal level should have the right to rule against the majority.  People want slavery?  Fine.  Racial segregation?  Fine.  In the early part of the following century that would mean woman would not get the right to vote -- as the majority view was that also was not fine and dandy.  Right now I would guess a little more than half of the population of the United States feel that most news and commentary should be banned, as harmful to the country, and only Bill O’Reilly and Rush Limbaugh be allowed to give use the news and tell us what it means.

There are those of us who believe, on the other hand, that the judicial branch of the government exists to be a pain in the ass to the majority, telling them that even though the majority thinks one thing is right and the other thing is wrong, the constitution lists ten core rights you cannot mess with, and implies many others that are out of bounds to majority opinion.  You know -- freedom of speech, including burning the flag in protest (that amendment died a few years ago), and freedom of assembly and association, freedom from unreasonable search and seizure and its implied right of privacy.  You know the list.  The right to marry who we wish, even those of -- gasp! -- another race, is now allowed, as Alabama was the last state, in the early sixties, to be told its law banning such “wrong” behavior was unconstitutional.  The majority at the time, or in a particular state, may not like it much, but too bad for them.  People have the right to so what they what as long as no one else is harmed, as long as the majority is unable to prove there is no “irreparable harm.”

So we have a new issue now.  The parallel is clear.  These “activist judges” are more properly “anti-public-opinion judges.”  They have the job of protecting the specifically enumerated rights of the minority from the whims of the majority.  It’s not pretty.  But that’s the way it is.  And Bush hates them for it.

The federal appeals court out here was asked last week to make the City of San Francisco “cease and desist” -- to stop the marriages of same-sex couples.  The court said they would like to do that -- but they couldn’t see the “irreparable harm” the other side claimed was there.  They ruled the other side failed to prove “irreparable harm.”   And then they said they’d rule later when the opposition forces got their act together.

That gets to the core of Bush’s basic argument:

After more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization.

And you must judge for yourself whether that is so.  Is this presumption?  Or is it protecting the right of a minority and causing no real harm?

Actually some of feel such same-sex marriages may actually do real good.  With “traditional” marriages ending in divorce more often than not allowing couples that have been living together -- faithful, stable and mutually supportive for decades -- have the same rights and privileges seem to many of us to rewards stability and good behavior.  Think of the obverse.  For heterosexuals in serial marriages -- as many heterosexual folks marry and divorce twice or more -- rewarding them with these rights and privileges seems quite counterproductive.  Shouldn’t we, as a society, promote stability and order?

Oh well.  That argument won’t fly with most people.  Too bad.

So what are others saying?

See George W., Judicial Activist: The religious right made him do it.
Timothy Noah, SLATE.COM, Posted Tuesday, Feb. 24, 2004, at 4:34 PM PT

This is a long discussion of legislation versus amending the law, and the state’s rights issues.  Here’s how he ends -

 

If Bush really believed marriage was something to be decided legislatively, he'd wait until a judge struck down the statute before waving the white flag on its constitutionality.  And he'd certainly avoid dictating what "any state or city" should do…

Instead, Bush is doing the courts' work for them, declaring the Defense of Marriage Act unconstitutional while at the same time portraying himself as judicial activism's victim.  He's like Cleavon Little in that scene from Blazing Saddles where he whips out his gun and takes himself hostage.  In fact, it's his fundamentalist supporters who've taken Bush hostage, and they couldn't be less interested in helping Bush remain consistent about the proper role of the federal government.  The only real belief animating this political discussion is the bigoted one that homosexuality is an abomination.  President Bush may not subscribe to that belief, but he's more than happy to cater to it.

 

Yeah, yeah.  It is a bit political, isn’t it?

The most curious responses are from, of course, the conservative, Republican supporters of Bush who happen to be homosexual.  Bush's decision to support this constitutional amendment hit them hard - particularly Andrew Sullivan, who has perhaps the most popular political site on the web.  He goes all out:

 

WAR IS DECLARED: The president launched a war today against the civil rights of gay citizens and their families.  And just as importantly, he launched a war to defile the most sacred document in the land.  Rather than allow the contentious and difficult issue of equal marriage rights to be fought over in the states, rather than let politics and the law take their course, rather than keep the Constitution out of the culture wars, this president wants to drag the very founding document into his re-election campaign.  He is proposing to remove civil rights from one group of American citizens - and do so in the Constitution itself.  The message could not be plainer: these citizens do not fully belong in America.  Their relationships must be stigmatized in the very Constitution itself.  The document that should be uniting the country will now be used to divide it, to single out a group of people for discrimination itself, and to do so for narrow electoral purposes.  Not since the horrifying legacy of Constitutional racial discrimination in this country has such a goal been even thought of, let alone pursued.  Those of us who supported this president in 2000, who have backed him whole-heartedly during the war, who have endured scorn from our peers as a result, who trusted that this president was indeed a uniter rather than a divider, now know the truth. 

NO MORE PROFOUND AN ATTACK: This president wants our families denied civil protection and civil acknowledgment.  He wants us stigmatized not just by a law, not just by his inability even to call us by name, not by his minions on the religious right.  He wants us stigmatized in the very founding document of America.  There can be no more profound attack on a minority in the United States - or on the promise of freedom that America represents.  That very tactic is so shocking in its prejudice, so clear in its intent, so extreme in its implications that it leaves people of good will little lee-way.  This president has now made the Republican party an emblem of exclusion and division and intolerance.  Gay people will now regard it as their enemy for generations - and rightly so.  I knew this was coming, but the way in which it has been delivered and the actual fact of its occurrence is so deeply depressing it is still hard to absorb.  But the result is clear, at least for those who care about the Constitution and care about civil rights.  We must oppose this extremism with everything we can muster.  We must appeal to the fair-minded center of the country that balks at the hatred and fear that much of the religious right feeds on.  We must prevent this graffiti from being written on a document every person in this country should be able to regard as their own.  This struggle is hard but it is also easy.  The president has made it easy.  He's a simple man and he divides the world into friends and foes.  He has now made a whole group of Americans - and their families and their friends - his enemy.  We have no alternative but to defend ourselves and our families from this attack.  And we will.

 

So much for that Bush supporter. 

James Taranto in the Wall Street Journal gives they typical “true” Bush supporter response to Sullivan: “Since when do gay people have generations?”

And the commentator Atrios points out:

 

Anyone who's been paying attention over the last few years knows that the Republican party went from pandering to the Christian Right to being mostly taken over by them.  It is true that the other major wing of the Republican Party -- the corporatists -- probably don't agree with them on much, but nor do they really give a shit.  There's a reason for that -- being wealthy insulates you from a lot.  All the culture war stuff really doesn't matter when you can afford to live how you want, send your kids to private schools, etc...

As for wealthy gay Republicans - having money means that most of the effects of bigotry and discrimination are much less important.  Gay marriage?  Who cares if you get pension benefits when your partner dies if you're wealthy.  It isn't that being wealthy means you can escape discrimination fully, it's just going to matter a hell of a lot less.

 

So the Log Cabin Republicans will probably leave the party after many years of faithful support of conservative causes.  Fine.  They’re gay.  Now they’re morose.  The rich gays will stay and support Bush.

Oh and by the way Atrios also give us this -- some of the “Rights, Benefits, and Responsibilities of Marriage” according to the Government Accounting Office (GAO). There are 1,049 such goodies according to the GAO.  Here are just some:

 

Tax Benefits
Filing joint income tax returns with the IRS and state taxing authorities.
Creating a "family partnership" under federal tax laws, which allows you to divide business income among family members.

Estate Planning Benefits
Inheriting a share of your spouse's estate.
Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.
Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.
Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse’s behalf.

Government Benefits
Receiving Social Security, Medicare, and disability benefits for spouses.
Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.
Receiving public assistance benefits.

Employment Benefits
Obtaining insurance benefits through a spouse's employer.
Taking family leave to care for your spouse during an illness.
Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.
Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.

Medical Benefits
Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.
Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

Death Benefits
Consenting to after-death examinations and procedures.
Making burial or other final arrangements.

Family Benefits
Filing for stepparent or joint adoption.
Applying for joint foster care rights.
Receiving equitable division of property if you divorce.
Receiving spousal or child support, child custody, and visitation if you divorce.

Housing Benefits
Living in neighborhoods zoned for "families only."
Automatically renewing leases signed by your spouse.

Consumer Benefits
Receiving family rates for health, homeowners', auto, and other types of insurance.
Receiving tuition discounts and permission to use school facilities.
Other consumer discounts and incentives offered only to married couples or families.

Other Legal Benefits and Protections
Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.
Receiving crime victims' recovery benefits if your spouse is the victim of a crime.
Obtaining domestic violence protection orders.
Obtaining immigration and residency benefits for noncitizen spouse.
Visiting rights in jails and other places where visitors are restricted to immediate family.

 

Got it?  That’s what they’re NOT SUPPOSED TO HAVE.

Okay.  You decide.

What is Bush up to?  Kevin Drum says this about the proposed federal Marriage Amendment (FMA):

 

Is reigniting the culture wars really a winning strategy for Bush?  And why did he feel like he had to do it?

... I suspect that Bush is not personally especially homophobic.  Rather, he's supporting FMA mainly because he thinks it will help him win votes.

What's more, this is actually more despicable than if he were acting out of genuine conviction.  To me, it looks like he's willing screw an entire class of people that he doesn't really care about just in order to win a few more votes.  That's contemptible.

 

Yes it is.  As usual.

Now, when will Kerry or Edwards or any other possible opponent of Bush this fall take the high ground and state the obvious.  My Wall Street attorney friend is fond of my late father’s usual expression in such circumstances - “What is this happy horseshit?”  Exactly.

I would like just one of the Democratic candidates to simply say to the Bush proposal, no.  No, gay marriage is fine.  No problem.  No “irreparable harm” - in fact, no harm at all.  These are good people trying to do the right thing.  No, this is GOOD for our country.  No, they actually do deserve the same rights and privileges as same-sex couples who marry, and maybe deserve them more then that the Spears girl or Liz Taylor.  No, we should do the right thing and let them be happy.  Lord knows there’s enough unhappiness in the world as it is.  It’s matter of common decency.

 

I watched the Democrats debates.  No one said anything like this.  Too dangerous, I suppose.

Geez, at least one of them could echo the words from the McCarthy hearings in the fifties and throw those words in Bush’s face - “Have you no decency sir?  Have you no shame?”

But that won’t happen.  Not even loony Ralph Nader will say that.  Cowards.

End of rant.
















 
 
 
 

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
 
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