New Jersey and Gay Marriage

[Daniel]

Originally Posted by GayCity News

http://www.gaycitynews.com/gcn_528/o...rseyawits.html

Volume 5, Number 28 | July 13 - 19, 2006

LEGAL

Optimism as Jersey Awaits Marriage Ruling

BY PAUL SCHINDLER

“New Jersey could be the first state in America where we not only win marriage equality easily, but where there’s almost an overnight, or a fairly quick, velvet revolution of acceptance.”

That’s the upbeat assessment of Steven Goldstein, the founding chairman of Garden State Equality, the state gay rights organization that has grown up in the past several years and provided critical public education and lobbying in support of the gay marriage lawsuit that Lambda Legal has litigated since June 2002.

Oral argument on the lawsuit, originally filed on behalf of five lesbian and two gay couples, was heard at the New Jersey Supreme Court in February, and a ruling could come at any time. Goldstein placed the outside boundary on a ruling at mid-October when Chief Justice Deborah T. Poritz reaches the mandatory retirement age of 70.

“Nobody thinks that she’s going to retire without wanting to be on the bench that decides this case,” Goldstein said during an interview with Gay City News this week.

Goldstein’s optimism is striking, particularly in the wake of last week’s disappointing result from the New York Court of Appeals, which not only denied same-sex couples the right to marry but also found that public policies that discriminate based on sexual orientation need only be justified by the least demanding standard—that they can be construed as “rational.” The court also discounted widely accepted evidence that children of gay and lesbian parents thrive as well as those in American households generally.

Goldstein is frustrated that significant media attention has focused on the notion that the marriage equality movement, successful in Massachusetts, has been halted in New York, widely seen nationally as a liberal haven on par with the Bay State.

“There is huge difference between New Jersey and New York,” he argued, stressing that the Garden State is a better playing field for the gay marriage issue. “New Jersey is definitely to the left of New York as a whole. We don’t have the equivalent of an upstate New York… The demographics favor us enormously.”

Yet polling on the marriage question yields similar—and strong—results in the two states. Goldstein said Garden State residents support gay marriage by a 56 to 39 percent margin and oppose any state constitutional ban 67 to 28. A March poll by Global Strategy Group, commissioned by the Empire State Pride Agenda, found that residents of this state feel just about the same, favoring marriage equality by a 53 to 38 percent margin.

But Goldstein points to other key factors in the New Jersey situation—the leanings of its Supreme Court, its prior case law, and the strength of the state Constitution’s equal protection guarantee. When Lambda filed the case in 2002, David S. Buckel, who heads the group’s Marriage Project, explained that the right to marry has been specifically upheld as part of the equal protection right to privacy.

“The right to marry doesn’t mean much if you can’t marry the person you love,” he said at the time, adding, “It is certainly true that New Jersey courts take the New Jersey Constitution seriously. The phrase ‘life, liberty, and the pursuit of happiness’ is in the state Constitution and it really means something here.”

The state’s judiciary has handed the gay community significant wins in recent years—a 1997 Bergen County ruling in a case brought by Lambda on behalf of Jon and Michael Galluccio that for the first time in the U.S. established a right to joint adoption by same-sex couples and the unanimous 1999 Supreme Court ruling in favor of James Dale against the Boy Scouts of America (later overturned by the U.S. Supreme Court.)

The enlightened attitude toward gay parenting pioneered in New Jersey in part explains Goldstein’s optimism about the outcome of the Supreme Court deliberations. Recalling how the February Supreme Court hearing played out, he said, “In the New Jersey arguments, there were no questions about child-rearing,” in sharp contrast to the case in New York where one of the majority opinions, written by Judge Robert S. Smith, specifically stated that it was “rational” to accept the “common-sense premise” that children benefit more from being raised by opposite-sex married couples than by same-sex couples.”

Should the high court rule for the plaintiff couples, Goldstein is similarly confident that the decision can be protected from any attempt at amending the state Constitution. He managed the 2000 U.S. Senate campaign of Jon Corzine, now New Jersey’s governor, and asked how the Democrat would respond to a pro-gay ruling, Goldstein said, “One thing on which he has never wavered has been his steadfast opposition to a state constitutional amendment against marriage equality.”

He is similarly upbeat about the Legislature, saying that Assembly Speaker Joseph Roberts Jr., also a Democrat, told him and has said publicly that an anti-gay constitutional amendment would only be approved “over my dead body.”

Still, Goldstein would take no chances. A rabbinical student in Philadelphia who takes no salary for his Garden State Equality work to which he devotes 50 hours a week even when in school, Goldstein said he would take a leave of absence from his studies for a year to work full-time defending a marriage equality ruling by the court. Pointing to two dozen town hall meetings in the past three years that have drawn a cumulative crowd of 10,000, he said that Garden State Equality has mastered the grassroots organizing that has been so important to MassEquality in their success to date in defending gay marriage there.

Same-sex marriage is important to New Jersey, he argued, because gay and lesbian people drawn to the nation’s most heavily suburbanized state skew toward couples, many of whom have children.

“There are a good 20 gay population centers in New Jersey today, most of which didn’t exist 15 years ago,” he said. “New Yorkers would be surprised to visit Maplewood, and go to a general store there and see male couples and female couples holding hands.”

Goldstein said that it is widely understood—even among legislators—that the state domestic partner law adopted to much acclaim just two years ago is woefully lacking in its protections. The heart-rending case of Ocean County Police Lieutenant Laurel Hester, dying of lung cancer, who had to battle county freeholders last year to exercise their local option to join the state partnership program—so that her partner could receive death benefits and hold onto their home—became a cause célèbre and led to a “sea change” in attitudes in Trenton, according to Goldstein.

More prosaically, he said he has been “shocked” at the fact that domestic partnership status has not been universally accepted at institutions such as hospitals.

“You can add all the rights you want, it won’t matter,” he said. “Marriage is the only currency of commitment that people in the real world understand and accept.”

And if the New Jersey high court rules against same-sex marriage?

Goldstein conceded that Corzine publicly does not support marriage equality, nor do the legislative leaders. Still, he believes that minds can be changed.

Drawing on a relationship with the governor that goes back more than six years, Goldstein said, “Jon doesn’t go with the tide. I know that Jon in his heart of hearts is for marriage equality. Jon has consultants who think that marriage equality is death beyond New Jersey,” a comment that suggests the governor might have national aspirations.

“The question is not what our public leaders think today,” Goldstein said, focusing on plan B, an effort to win marriage equality in the Legislature and governor’s office. “The question is whether you as the LGBT community have the potential and capacity to change the minds of the leaders to a position that they don’t yet know they’re going to have.”

This last statement reflects the process that New Yorker's must now take: seeing to it that gay marriage in enacted by the legislature.

Unlike New Jersey, where the court was not interested in 'defending' children, New York's decision was openly aggresive towards gay families. New Jersey's Attorney General, unlike Eliot Spitzer (the Attorney General of NY now running for Governor), did not submit arguments that were hostile to gay families. Both Spitzer and New York City Mayor Michael Bloomberg have said they will fight for gay marriage in NY. I, for one, am waiting to see, especially where Mr. Bloomberg is concerned, if he will put his money where his mouth is.

Clearly, NJ's court shows signs of exhibiting a different State of Mind. I hope and pray that it holds fast.

[Daniel]

Originally Posted by From the NYTimes

July 14, 2006
Court Restores Nebraska's Same-Sex Marriage Ban

By THE ASSOCIATED PRESS
Filed at 11:35 a.m. ET

LINCOLN, Neb. (AP) -- A federal appeals court has reversed a ruling that struck down Nebraska's same-sex marriage ban.

The 8th U.S. Circuit Court of Appeals on Friday reversed an earlier ruling by U.S. District Judge Joseph Bataillon, who ruled last year that the measure was too broad and deprived gays and lesbians of participation in the political process, among other things.

Seventy percent of Nebraska voters approved the amendment in 2000.

The court said the amendment ''and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.''

Attorney General Jon Bruning argued earlier that the ban should be restored because it ''does not violate any person's freedom of expression or association.''

Opponents of the ban ''are free to gather, express themselves, lobby, and generally participate in the political process however they see fit,'' he said. ''Plaintiffs are free to petition state senators to place a constitutional amendment on the ballot. Plaintiffs are similarly free to begin an initiative process to place a constitutional amendment on the ballot, just as supporters ... did.''

The word in bold above is the same one - and betrays the justice's thinking- that was used in the recent NY decision. Is is any wonder that the Nebraska court used the same language? I think not. Talk about judicial activism! The courts are playing leapfrog in their haste to deny GLBT persons their rights.

My spouse and have been thinking about what we can 'do' in terms of our involvment here in NY re these matters and encourage you to do the same where you live. As Galadrial was was wont to say to Frodo the Lord of the Rings, "Even the smallest person can change the course of the future."

[suzer1013]

OK, it's been a while since I took constitutional law, but I will try to remember how this goes.....

There is a good reason the courts are using the same language. There is a "rational relation" test that courts use when deciding constitutional law questions, so it is no coincidence that the word "rational" is used. If a law has a "rational relation to a legitimate state interest" is the phrase commonly used, and is seen in many court decisions.

It is typical reasoning used to determine the constitutionality of laws in discrimination and other constitutional law cases. Judges use "strict scrutiny" (I think these are typically racial discrimination cases), "heightened scrutiny" (I think these are usually gender/age discrimination cases), and the "rational basis" test. Rational basis is the lowest form of scrutiny, and this is where courts have assigned sexual orientation as a class -- well, most courts haven't even considered sexual orientation a protected class at this point (for that, they will probably want scientific evidence showing homosexuality is not a choice, but is genetic). What we hope for is that sexual orientation will someday be considered by the courts to be a protected class like race, and will trigger strict scrutiny.
_______________
From Wikipedia:
Strict scrutiny is the highest standard of judicial review used by courts in the United States. Along with the lower standards of rational basis review and intermediate scrutiny, strict scrutiny is part of a hierarchy of standards courts employ to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue. It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause.

______________
I cannot for the life of me fathom why gay marriage does not fall under strict scrutiny, because marriage has been considered a fundamental right since the inception of this country. I know why, of course, in reality, judges refuse to consider gay marriage a fundamental right -- politics, discrimination, religious bias, etc.

So, you will probably see alot more cases using the words "rational basis" or "rational relation", despite the fact that the "rational basis" of protecting children really is not very rational. Rational basis is a very low standard of review, and if the courts keep applying it to GLBT cases (marriage, custody or other rights), we will never, I repeat NEVER, have equal rights. GLBT rights must rise to the level of strict scrutiny, on the same level as race, if we are to get anywhere within the court system.

Just my 2 cents....

Susan

[Daniel]

Originally Posted by suzer1013

Judges use "strict scrutiny" (I think these are typically racial discrimination cases), "heightened scrutiny" (I think these are usually gender/age discrimination cases), and the "rational basis" test. Rational basis is the lowest form of scrutiny, and this is where courts have assigned sexual orientation as a class -- well, most courts haven't even considered sexual orientation a protected class at this point (for that, they will probably want scientific evidence showing homosexuality is not a choice, but is genetic). What we hope for is that sexual orientation will someday be considered by the courts to be a protected class like race, and will trigger strict scrutiny.

Susan- thanks for astute analysis of the legalese re 'rational'. You illucidate the manner in which the case in Nebraska and NY were similar: both used the lowest form of scrutiny. So, in other words, GLBT persons are not of a class that is considered worthy of such scrutiny. That's the rub. It may seem as though we are getting our 'day in court', but actually, we aren't. How can one make their case when the people deciding it don't see it as having intrinsic worth? We are being treated as though we are dogs lapping at the table: Even though good science was presented in the NY case, it was pushed aside.

We are fighting homophobia here. One person at a time.

[Steven E. Webster]

Suz,

When the US Supremes struck down that amendment in Colorado they used a term--"animus." I understand them to say that the Colorado amendment was motivated by "animus" rather than having any rational basis, I guess.

How does this fit in? What if a court saw discrimination in marriage and family law based on sexual orientation as springing from "animus."

I'm no lawyer.

Steve W.

[suzer1013]

Steve --

I'm not sure I can give you a good reason for the difference, as I am not familiar with the Colorado case or statute involved. However, my best guess would simply be that it's a different court. The problem with the way these cases are being decided now, and the reason that the U.S. Supreme Court really needs to weigh in on this issue, is that there are going to be as many different interpretations of anti-gay marriage statutes as there are courts and judges.

The Colorado court seems to have seen the statute they decided upon as based purely in discrimination. But it may have been written differently than New York's, and you are, of course, dealing with different judges who have differing opinions. Could you point me to the Colorado opinion? It might give me some clues as to why the judges decided differently than in NY. (Of course, the NY decision so blatantly adopted the language of discrimination, that I think I can see "judicial activism" written all over it, in which case there may be no "rational" reason for their decision (forgive the pun!) )

Daniel -- My problem, in general, with the rational basis standard is that a judge could find almost ANYTHING to have a rational relation to a legitimate government interest. When raised to the level of strict scrutiny, there would have to be a pretty intensely compelling reason to uphold an anti-gay marriage statute -- it would be very hard to uphold a discriminatory statute in the face of strict scrutiny. But judges can uphold almost anything under the rational basis test.

Though I'm no Constitutional scholar (I took that class and others in law school, but it wasn't my "specialty" so to speak), I can't understand how these anti-gay marriage statutes can be Constitutional. See -- that's why so many of the anti-gay forces want to CHANGE the state and federal consitutions, because they KNOW that such statutes cannot withstand consititutional scrutiny. They know their case is weak, so their answer is to change the Constitution itself, so no one can make a legal challenge. And they want to change the Constitutions quickly, before the cases challenging anti-gay marriage statutes can make it to the courts and courts of appeal, so we don't have a fair chance to be heard. They are truly trying to take away our due process.

The problem for me is that this is going to take years and years for us to be successful, legally anyway. These cases work their way up through the court system, and we've been dealt some blows recently. I'm afraid this will be argued for years and years before there is any resolution. I hope I live to see the day when there is true equality. The pace of justice is slow, but I hold onto the hope that change will happen.

Susan

(I hope I explained this stuff reasonably well. I mean, there's been cases and cases, and books and books written about this stuff. It's hard to summarize with my shaky memory and law school 10 years behind me, but I hope it makes some sense! )

[Daniel]

Originally Posted by suzer1013

Daniel -- My problem, in general, with the rational basis standard is that a judge could find almost ANYTHING to have a rational relation to a legitimate government interest. When raised to the level of strict scrutiny, there would have to be a pretty intensely compelling reason to uphold an anti-gay marriage statute -- it would be very hard to uphold a discriminatory statute in the face of strict scrutiny. But judges can uphold almost anything under the rational basis test.

Though I'm no Constitutional scholar, I can't understand how these anti-gay marriage statutes can be Constitutional. See -- that's why so many of the anti-gay forces want to CHANGE the state and federal consitutions, because they KNOW that such statutes cannot withstand consititutional scrutiny. They know their case is weak, so their answer is to change the Constitution itself, so no one can make a legal challenge. And they want to change the Constitutions quickly, before the cases challenging anti-gay marriage statutes can make it to the courts and courts of appeal, so we don't have a fair chance to be heard. They are truly trying to take away our due process.

Susan- thank you for these thoughts. What you've outlined makes a great deal of sense, and it is the first thing I've heard in a long while that helps me understand the push for amending the Constitution- their case, morally and ethically is weak. I think that once people UNDERSTAND how courts are applying the law and the low level of scrutiny that is being adhered to, things will change. And I agree with you: it's going to take time, and I would add, a great deal of education. I look forward to the day when Justice Kay's dissent (NY) will prevail.

[suzer1013]

Originally Posted by Daniel

Susan- thank you for these thoughts. What you've outlined makes a great deal of sense, and it is the first thing I've heard in a long while that helps me understand the push for amending the Constitution- their case, morally and ethically is weak.

Their case -- legally -- is weak, too. Digging into the recesses of my brain to remember Family Law and its intersection with Constitutional Law:

Marriage is considered a fundamental right (along with the right to bear children). Very few infringements are allowed upon marriage and challenges to marriage undergo strict scrutiny by the courts. Only a compelling reason causes the courts to limit or place laws on marriage. Age is one good reason -- the age of a child or young adult to consent to a marriage clearly protects children from predatory adults or arranged marriages without their consent. Restrictions on family members (first cousins, brothers and sisters and such) pretty clearly protect possible offspring of such marriages from genetic defects, etc. There seem to be pretty compelling reasons for those kind of restrictions.

But I just can't see what could be compelling about two consenting adults of the same sex wanting to pledge their love to each other, and commit to a future together with all the rights and responsibilities appurtenant thereto (ugh -- legalese!).

I could write a treatise about this, but I'll spare you the pain of that . Plus, LAMBDA's probably already done it. I may do some research when I have a chance and see if I can find one of the amicus briefs filed in the NY case, because I bet all the information I've touched on here has already been written about in those briefs.

Susan

[Daniel]

Originally Posted by NYTimes

July 15, 2006
In Nebraska and Tennessee, More Setbacks to Gay Rights

By PAM BELLUCK and GRETCHEN RUETHLING
Opponents of same-sex marriage won victories yesterday in Nebraska and Tennessee, with courts in both states siding with efforts to amend state constitutions to prohibit such unions.

In Nebraska, a federal appeals court, the highest-level federal court to take up the issue, reinstated a ban on same-sex marriage that had been approved by voters in 2000. A federal district judge had overturned the ban last year, saying it was discriminatory and punitive.

In Tennessee, the State Supreme Court ruled that a proposed constitutional amendment against same-sex marriage could stay on the November ballot. The American Civil Liberties Union had sued to block the measure on technical grounds, saying the state had not met notification requirements. The court dismissed the suit, saying the A.C.L.U. had no standing.

The rulings came a week after courts in New York and Georgia sided with opponents of same-sex marriage. The New York Court of Appeals, the state’s highest court, ruled that the State Constitution did not require same-sex marriage. The Georgia Supreme Court reinstated a constitutional amendment banning same-sex marriage and legal benefits to same-sex couples in civil unions.

This week, the highest court in Massachusetts, which ruled in 2003 that same-sex marriage was legal, declined to block a ballot measure for a constitutional amendment to ban same-sex marriage. The legislature in Massachusetts, the only state where gay men and lesbians can marry, will vote on the measure in November. If the measure gets 50 lawmakers’ votes this year and again next year, it can appear on the ballot in November 2008.

“No doubt it’s been a tough week,” said Matt Foreman, executive director of the National Gay and Lesbian Task Force. “But each one of these decisions stands on its own. This isn’t some tidal wave against us.”

The Nebraska case could be particularly significant because advocates of same-sex marriage could decide to appeal to the United States Supreme Court. The amendment, passed by 70 percent of voters, was more far-reaching than most other marriage bans because it denied same-sex couples who were state employees domestic-partner benefits, visitation rights and other benefits. In May 2005, Judge Joseph F. Bataillon of Federal District Court ruled that the amendment went “far beyond merely defining marriage as between a man and a woman.”

Judge Bataillon said it “imposes significant burdens on both the expressive and intimate associational rights” of gay men and lesbians “and creates a significant barrier to the plaintiffs’ right to petition or to participate in the political process.”

And Judge Bataillon added that the evidence suggested that the adoption of the amendment “was motivated, to some extent, by either irrational fear of or animus toward gays and lesbians.”

The United States Court of Appeals for the Eighth Circuit disagreed, ruling unanimously that “laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”

David Buckel, senior counsel at the Lambda Legal Defense and Education Fund, which helped challenge the amendment, said no decision had been made on an appeal.

“It will take a while to understand exactly what the court did here,” Mr. Buckel said. “What struck me more than anything else was I couldn’t find our case in the decision. The decision seems to be about marriage, but our case wasn’t about marriage.”

Mr. Buckel said the plaintiffs’ case had focused on asking the court to set aside the amendment to give their clients time to press for legislation to allow domestic-partner benefits for same-sex couples.

Jon Bruning, the Nebraska attorney general, said, ““Today the Eighth Circuit Court of Appeals affirmed Nebraskans’ right to modify their Constitution as they see fit.”

Opponents of same-sex marriage celebrated yesterday’s rulings.

“We are pleased that this latest attempt by the homosexual agenda to radically redefine our culture has been stopped dead in its tracks,” Mathew D. Staver, founder and chairman of Liberty Counsel, said in a statement. “For the past two weeks, the same-sex marriage movement has been rocked backward by stunning court decisions in favor of traditional marriage.”

James Esseks, a litigation director for the A.C.L.U.., acknowledged that the Nebraska decision might embolden other states to pass more restrictive laws.

“What’s at stake here is the ability to participate in the political process equally and seek protections we think we ought to be able to have,” Mr. Esseks said. “We were seeking some protection for families that may be short of nothing. Nebraska says you get nothing. That’s astonishing.”

Yes. It's astonishing alright. It's almost like the NY court decision gave permission for the rest of the country to say: "See...you SO don't deserve any rights!" It would be funny if it wasn't so sad. And Susan, I haven't read the decision but won't be surprised to learn that there wasn't any "heightened scrutiny" involved. How else could the lower court's decision be overturned so easily? The 'rational' basis wording was used again. Oh boy. That is so easy to spot now. It's like a mold that keeps growing and growing. Anybody have any bleach to spray on it?

Sigh. What a week.

I think I'm gonna go meditate now and clear my head.

[Steven E. Webster]

Susan,

You asked for a reference to the U.S. Supreme Court decision on Colorado Amendment 2. The case is titled "Romer v. Evans" and was decided a decade ago in 1996. Here is a link to a site containing information on the case including the text of the Court's opinion.

http://www.oyez.org/oyez/resource/case/653/

This was an extremely important case. There was a much more recent case "Lawrence v. Texas" which reversed an earlier anti-gay ruling in "Bowers v. Hardwick."

I've seen somewhere an argument that it was the gay-friendly ruling in "Lawrence v. Texas" that set off this whole big effort to amend the federal and state constitutions because the Religious Right was outraged that "sodomy" laws were struck down and that the Supreme Court has possibly opened the door to a favorable decision on same-gender marriage. In fact, Justice Scalia, in his dissent from "Lawrence" argues that the decision does, in fact, open the door to same-gender marriage.

Somewhere in my library I've got some books on constitutional law and LGBT folks--unfortunately, I'm no lawyer, but I do find this stuff fascinating.

I also am sympathetic with Andrew Sullivan's argument that we really need to win this battle in the court of public opinion and through the political process. But the courts certainly do serve an important role.

In the "Lawrence v. Texas" case the majority of the court pointed out that prior to 1960 every state in the union had anti-sodomy laws. By the time that they ruled on "Lawrence" only 13 states had such laws. An important part of their argument was the change that had happened in the past 50 years politically and socially.

Steven Webster

[LGBT FLIGHT ATTENDANT]

Originally Posted by Steven E. Webster

Susan,

You asked for a reference to the U.S. Supreme Court decision on Colorado Amendment 2. The case is titled "Romer v. Evans" and was decided a decade ago in 1996. Here is a link to a site containing information on the case including the text of the Court's opinion.

http://www.oyez.org/oyez/resource/case/653/

This was an extremely important case. There was a much more recent case "Lawrence v. Texas" which reversed an earlier anti-gay ruling in "Bowers v. Hardwick."

I've seen somewhere an argument that it was the gay-friendly ruling in "Lawrence v. Texas" that set off this whole big effort to amend the federal and state constitutions because the Religious Right was outraged that "sodomy" laws were struck down and that the Supreme Court has possibly opened the door to a favorable decision on same-gender marriage. In fact, Justice Scalia, in his dissent from "Lawrence" argues that the decision does, in fact, open the door to same-gender marriage.

Somewhere in my library I've got some books on constitutional law and LGBT folks--unfortunately, I'm no lawyer, but I do find this stuff fascinating.

I also am sympathetic with Andrew Sullivan's argument that we really need to win this battle in the court of public opinion and through the political process. But the courts certainly do serve an important role.

In the "Lawrence v. Texas" case the majority of the court pointed out that prior to 1960 every state in the union had anti-sodomy laws. By the time that they ruled on "Lawrence" only 13 states had such laws. An important part of their argument was the change that had happened in the past 50 years politically and socially.

Steven Webster

I am a FA and not a lawyer, and it just seems to me that all civil and human rights have been adjudicated by the courts, and especially SCOTUS. It seems that when justices or judges rule in our favor, they are "activists" and when they rule in the neocon favor, they are "jurists".

It seems that when the legislatures do it, like in CT or VT, they seek to compromise or mitigate or limit our rights to privileges and nomenclature of marriage. It also proves that courts seem to agree, and as Crozier said, the Plessy v Ferguson model of separate but equal becomes codified again. Or, when CA swings both ways ,the Terminator vetoes the bill.

Hey, I hope that NJ does it. It is one of our hubs. I could live there instead of the main hub in TX and enjoy the rights and privileges ( after I find mister right of course) that seem to allude other Americans other than inMA.

Question - does this mean that the courts here will not give the legislature a year or so to mitigate rights down to civil union or less?

[Daniel]

The writer of the piece below is a smart fellow who was interviewed a few months ago re his new book on civil rights- he's gay and teaches at Yale.

What is interesting to me about his piece is that it is one of very few op-ed's in the last few days in the main press that defend gay marriage. Where are our defenders one wonders? Is there no straight person out there of any 'stature' who will take some heat on this issue or is it just left up to us? I'm afraid it's the latter. We're gonna have to fight tooth and nail for the right to marry. Why do I think this? As a case in point: in obtaining health beneftits for my spouse, I had to do all the pushing every step of the way- for 4 long years. Yes. Those in 'power' said all the right things- blah blah blah. But in the end, I had to keep the faith without losing hope and my cool (and even went so far as to get married in Canada). No one offered it up on a sliver platter. It's going to be up to us because it matters to us. Standing around waiting for our rights will not bring them to us. We all have to do SOMETHING.

Originally Posted by NYTimes

July 14, 2006
Op-Ed Contributor
Too Good for Marriage

By KENJI YOSHINO
New Haven

LAST week, New York’s highest court voted 4-to-2 that a legislative ban on same-sex marriage did not violate the state Constitution. In doing so, it added to the patchwork of state rulings on the issue, including those of Indiana and Arizona (which similarly upheld legislative bans) and Massachusetts (which struck down a legislative ban).

What’s noteworthy about the New York decision, however, is that it became the second ruling by a state high court to assert a startling rationale for prohibiting same-sex marriage — that straight couples may be less stable parents than their gay counterparts and consequently require the benefits of marriage to assist them.

The critical question, expressed in a plurality opinion by three members of the New York court, is whether a “rational legislature” could decide that the benefits of marriage should be granted to opposite-sex couples but not to same-sex couples. The opinion then answered in the affirmative with two different arguments. While both related to the interests of children, they differed significantly in vintage and tone.

The more traditional argument stated that the Legislature could reasonably suppose that children would fare better under the care of a mother and father. Like most arguments against gay marriage, this “role model” argument assumes straight couples are better guides to life than gay couples.

And like other blatantly anti-gay arguments, it falls apart under examination. In a decision last month in a case concerning gay foster parents, the Arkansas Supreme Court found no evidence that children raised by gay couples were disadvantaged compared with children raised by straight couples.

But the New York court also put forth another argument, sometimes called the “reckless procreation” rationale. “Heterosexual intercourse,” the plurality opinion stated, “has a natural tendency to lead to the birth of children; homosexual intercourse does not.” Gays become parents, the opinion said, in a variety of ways, including adoption and artificial insemination, “but they do not become parents as a result of accident or impulse.”

Consequently, “the Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”

To shore up those rickety heterosexual arrangements, “the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.” Lest we miss the inversion of stereotypes about gay relationships here, the opinion lamented that straight relationships are “all too often casual or temporary.”

When an Indiana court introduced this seemingly heterophobic logic last year in upholding a state ban on same-sex marriage, I thought it was a cockeyed aberration. But after both New York City and New York State presented similar logic in oral arguments, and the court followed suit, I began to understand the argument’s appeal: it sounds nicer to gays.

It also sounds more desperate. New York’s ban on same-sex marriage is based on provisions enacted in 1909. It is preposterous to suggest the Legislature promulgated and retained the law because it believed gays to be better parents. Moreover, as New York’s chief judge, Judith Kaye, pointed out in her dissent, even if marriage were a response to the dangers of “reckless procreation,” excluding gay couples from marriage in no way advances the goal of responsible heterosexual child-rearing. “There are enough marriage licenses to go around for everyone,” Judge Kaye noted.

This is not the first time courts have restricted rights with a flourish of fond regards. In 1873, the United States Supreme Court upheld an Illinois statute prohibiting women from practicing law. Concurring in that judgment, Justice Joseph Bradley observed that the “natural and proper timidity and delicacy” of women better suited them to “the noble and benign offices of wife and mother.”

Hostile rulings delivered in friendly tones can take longer to overturn, as evidenced by the century that passed before members of the Supreme Court reversed their thinking about women and, in a 1973 opinion in a sex discrimination case, recognized that confining women in the name of cherishing them put them “not on a pedestal, but in a cage.”

We should not need a century to unmask the “reckless procreation” argument as a new guise for an old prejudice. The “reckless procreation” argument sounds nicer — and may even be nicer — than the plainly derogatory “role model” argument. But equality would be nicer still.

Kenji Yoshino,a professor at Yale Law School,is the author of “Covering: The Hidden Assault on Our Civil Rights.’

[LGBT FLIGHT ATTENDANT]

That op-ed is full of anecdotal information that will be helpful when I discuss this issue with my colleagues. Thank you for your compassionate reply.

[Daniel]

Reading the Sunday Times today and caught this well-written piece. Thought this community would find it interesting. The last line says it all.

Eveything changes in the face of Love. How many times did they walk around Jericho making noise?

I think we better start making some noise of our own.

Originally Posted by NYTimes

July 16, 2006
Modern Love
Married, but Certainly Not to Tradition

By ALISON LUTERMAN
THE groom’s mother wore a peach silk suit and an expression of mingled happiness, anxiety and bemusement. The other groom’s mother wore a peacock-blue dress and a similar expression, one that seemed to combine “I can’t believe this is happening” with “What a beautiful day, what a lovely chapel, what nice well-dressed people — just like a real wedding.”

One groom’s father needed to step outside and smoke a lot. The other groom’s father was dead. Nieces were in abundance, though — a bouquet of skinny adorable girls, dressed in hot pink and giggling with excitement.

But I didn’t have a lot of time to gawk at the family members because I was a huppah holder at this gay Christian wedding, and our routine was intricately choreographed.

The huppah, in the Jewish tradition, is a canopy, often made from a prayer shawl, whose corners are held up on poles by four people close to the wedding couple. But these grooms, Randy and Michael, were Catholic — super Catholic in fact. Michael had been a seminarian, preparing for the Jesuit priesthood in a former life, and Randy a Benedictine monk, deeply steeped in prayer, contemplation and service.

So why, as my Brooklyn-raised father carefully asked, would they want a huppah? The thing is, when you put “Catholic” and “gay wedding” together, you come out with one inevitable conclusion: an extravaganza of rituals.

And that’s what this was. We started in a circle of 100 people, holding hands, blessing and thanking earth, sky and the four directions. We then moved into some Christian sacred dance, all about breaking bread and feeding one another. While the rest of the wedding party proceeded into the chapel, wearing burgundy and orange ribbon stoles and holding long-stemmed gerbera daisies, three fellow Jews and I struggled outside to mount the huppah.

In a typical Jewish wedding, our task would have been simple: Don’t let the huppah sag, and don’t sneeze during the ceremony. But this huppah was not just a huppah. First, it was a quilt, created by the grooms’ families and friends, with squares that read “Two Boys Dancing” and “I don’t even know how to think straight.” Then it was to become a kind of medieval coat of arms, which we were to carry folded to the altar where we would unfurl it into a backdrop for the ceremony. And later it would become an altar cloth, an anchor for the Bible and a robe.

Michael, a veteran actor and director, has had a lifelong love affair with props. I met him six years before, when we did a children’s play together, and I quickly came to appreciate his wit and gallantry. But he was reserved about his private life, so we didn’t engage in the usual banter about ex-lovers and current flings.

When he met Randy, who radiates the kind of sincerity that I had only before seen in Jehovah’s Witnesses, something came loose in Michael, and here, at the wedding, it was on full display.

When the communion part of the ceremony rolled around, the priest in Michael took over; he grabbed the plate of bread and held it aloft.

“Bread! What does it make you think of?”

Answers poured forth: “Earth.” “Seeds.”

“Our bodies!” Michael cried.

And I realized why monastics can be so sexy. It’s not just the repression. It’s also the sense that the miracle is contained within the body, the body within the miracle. Seeing Randy watching Michael with the same realization written all over his face, I blushed.

“Michael and Randy don’t want you just to witness their ceremony,” said the minister, a petite lesbian with spiky platinum-tipped hair. “They want you to be co-celebrants with them, and they promise — we promise — that if you open yourselves fully to this experience, you will be transformed. Are you willing?”

“Yes!” the assembled roared.

AS greedy for transformation as the next girl, I held up my corner of the huppah as the first hour of the ceremony rolled by. A unity candle was lighted, hymns were sung, and a monk with a beautiful tenor voice played sacred music on the guitar. Everything — the music, the decorations, the grooms’ outfits (black pants, white shirts imprinted with the motif of a sacred Hawaiian flower) — had been selected with exquisite care.

I snapped out of my reverie when the huppah changed roles to become an altar cloth for communion.

I had never taken communion, out of respect and also out of a vague fear that, as a Jew, I would be struck with thunderbolts if I did. But the minister and Michael and Randy said this communion was for everyone, that it could mean whatever we wanted it to, and after all it was challah. So I stood in line, dunked my bread in the cider, and was generously showered with a Jesus-free blessing by a minister friend.

The contrast between this ceremony and my previous night’s outing could not have been more profound. I’d gone to see a documentary from 1972, “Winter Soldier,” that featured recently returned Vietnam veterans testifying about atrocities they had witnessed or taken part in. One after another, these cherubic young men, cigarettes smoldering between their fingers, leaned toward the microphone and described memories of bound prisoners pushed out of helicopters, 3-year-old children stoned to death with ration cans, whole villages torched for sport. Their eyes were dry as they spoke, their voices steady. They had been well trained to suppress any signs of emotion, no matter how horrific their memories. I think many of them were still in shock.

When asked why they had participated in such atrocities or stood by and watched as others committed them, one answered: “You don’t start out that way. You wanted to cry when your friend got killed.” But you couldn’t, he said, because that would have made you look weak.

“It was about being a man,” another said. “The more kills you had under your belt, the more of a man you were.”

Now, in the chapel, a decidedly different version of manhood and male emotion was being played out. Randy and Michael’s eyes were wet as they turned to each other to recite their vows. I stood behind them, conscious of beautiful masculine energy that was cascading between them.

They promised to cherish each other, fight side by side for justice and dedicate their marriage to protecting the earth. Then Michael looked at Randy and said, “Randy, I would die for you.”

I blinked back streaky mascara tears. Marriage does involve a kind of death of self, as I had learned the hard way. It’s all or nothing. You can’t be less than fully present in your marriage or it will collapse when the cold winds blow. And they always do blow. When I had married, years before, I hadn’t been truly ready, or at least not as ready as these two seemed to be.

“Michael, I would die for you,” Randy said. Rings exchanged, they turned and faced friends and family, a sea of loving faces. Not one dry eye in the house. We wrapped the huppah around them, so they were like two tall teddy bears swaddled in well-wishes. It would be nice if we could protect them this way, from the hatred and fear of those who might find their union abhorrent, but we knew that was impossible. Linking themselves solidly and visibly to each other, they become twice targeted, and yet infinitely strengthened.

My own wedding history started on a less uplifting note. As a young woman I stood bridesmaid for a friend. My dress was pink taffeta with pouffy sleeves, a tiny waist and a full skirt. I looked like Glinda, the Good Witch; the only thing missing was the wand. The day before the ceremony, I somehow managed to lose the dress and was punished by having to wear the dress intended for the maid of honor (who wore a lavender substitute from the bride’s aunt). The dress was several sizes too small, and I had to endure the wedding and reception without taking a full breath or sitting down.

Maybe it was this experience, maybe just my own particular brand of feminism, that has made me dislike traditional weddings ever after. In particular, I always hate when the minister or rabbi turns the couple to face the congregation and says, “Let me be the first to present to you Mr. and Mrs. X.” In that moment, I always feel the woman’s identity wiped out.

When I became a bride myself — barefoot, in a yellow dress, no train, no veil — I was so on the outs with tradition that we didn’t have a rabbi, just friends and family with poetry, music and blessings. We had youth and optimism and hubris and mad love for each other.

At the time, it seemed like enough. But marriage is tricky; you go in seduced by sweet idealism and can end up confronting your worst monsters in the mirror. A good wedding can be a kind of grounding for all the psychic chaos that comes unleashed when two people commit themselves fully. Honest, intimate community is essential. And the humility to ask God or Spirit or whatever you call It for help. When I married, I didn’t even know I could do that.

I HAD never heard God called upon so openly, unashamedly, ecstatically and often as I did during Michael and Randy’s ceremony. And the walls of the little chapel were still standing at the end and lightning didn’t strike anybody, and when it was finally over the grooms’ mothers were no longer looking bemused or anxious, just teary and happy. And the nieces and nephews who had sat so patiently were tugging on Randy and Michael’s hands and asking to be lifted up and twirled as the music began.

Together, we all marched onward and outward to bright sunlight and chicken breasts in apricot sauce: the gay Catholics, the nominally straight Jews, the Midwestern families who had traveled long distances in more ways than one, the whole motley collection of pagans, ex-priests, Buddhists, actors and singers, each of whom had absorbed the ceremony in their way.

It wasn’t a legal wedding. Even so, it made me think the Right is correct in fearing same-sex unions. There is such power in this kind of brave and naked love that it may make the walls of Jericho come tumbling down.

Alison Luterman, who lives in Oakland, Calif., is the author of “The Largest Possible Life” (Cleveland State University).

[Liberal Crozier]

[B](Quote)[/B]It wasn’t a legal wedding. Even so, it made me think the Right is correct in fearing same-sex unions. There is such power in this kind of brave and naked love that it may make the walls of Jericho come tumbling down.(Quote).

This is Spouse. Crozier has had an unusually difficult chemotherapy reaction and has been instructed to clear his mind and his activities. Please continue your prayers. Thank you for offering the music tape. Sent you the information.

Daniel, Broom Jumping was a spiritual event for the American Aboriginal slaves who had nothing to express their commitment, while simultaneously being sub-human property whereby the slaveowner could demand "extra-marital" favours for either partner - making a mockery of their pairing and any sense of dignity that they might have.

I believe that the analogy demands no further description

[Daniel]

A well thought piece that echoes others posted in this thread regarding gay marriage from a writer in MA, where gay marriage is still legal and the sky isn't falling.

It would seem, based on the criticism leveled here by the author, that the reasons for denying marriage are becoming harder and harder to maintain. The logic of the Washington court is is in keeping, if not identical, to that of the New York court in that it pushed aside evidence it did not want to see. A case of the willfully blind leading the blind.

Originally Posted by Truthdig.com

http://www.truthdig.com/report/item/...dman_breeders/

Ellen Goodman: Wedding Bells Only for Breeders?

Posted on Aug 2, 2006

By Ellen Goodman

BOSTON—Now I got it. After hours spent poring over Washington state’s Supreme Court decision upholding the ban on same-sex marriage, I’ve finally figured it out. The court wasn’t just ruling against same-sex marriage. It was ruling in favor of “procreationist marriage.”

This is the heart of the opinion written by Justice Barbara Madsen: “Limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.” In short, the state’s wedding bells are ringing for procreators.

Well, if that’s true isn’t it time for the legislatures in Washington and in New York, which issued a similar ruling against same-sex marriage this summer, to follow their own logic? If marriage is for procreation, shouldn’t they refuse to wed anyone past menopause? Shouldn’t they withhold a license, let alone blessings and benefits, from anyone who is infertile? As for those who choose to be childless: Nothing borrowed or blue for them. Indeed, the state could offer young couples licenses with sunset clauses. After five years they have to put up (kids) or split up.

Of course the states’ other interest is in families “headed by the children’s biological parents.” Why then give licenses to the couples who are raising 1.5 million adopted children? We can ban those blended families like, say, the Brady Bunch. And surely we should release partners from their vows upon delivery of their offspring to the nearest college campus.

This is where the courts’ reasoning leads us, and I use the word “reasoning” loosely. If anything, these two decisions are proof that the courts and the country are running out of reasons for treating straight and gay citizens differently.

Since the landmark Supreme Court ruling in Lawrence v. Texas in 2003, gay sex is no longer a crime. Today, if some straight couples cannot or do not procreate, some gay couples do, using all the old and new technologies. Gays aren’t banned from fertility clinics. They aren’t the slam-dunk losers in divorce custody fights. Even Arkansas has just ruled that gay couples can become foster parents. And New York and Washington, the very states now refusing to let gays marry, have supported gay adoption.

Against this evolving backdrop, the courts had to reach pretty far to find some explanation for banning gay marriage other than old-fashioned discrimination. Even so—as Justice Mary Fairhurst wrote in her Washington dissent—neither court actually explained why “giving same-sex couples the same right that opposite-sex couples enjoy [would] injure the state’s interest in procreation and healthy child rearing.” After all, as Chief Judge Judith Kaye of New York wrote in her dissent, “There are enough marriage licenses to go around. ... No one rationally decides to have children because gays and lesbians are excluded from marriage.”

I am a citizen of Massachusetts, where gay people have been getting married for two years without the sky falling. (The ceiling on the Big Dig has fallen, but that’s another story.) The furor over the decision here produced a backlash that has scared a lot of judges straight. The current decisions reek of that anxiety.

These judges seem ready to bow to any legislation on this hot-button subject that isn’t certifiably nuts. For example, the American Academy of Pediatrics reports that “there is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents.” The Washington court still determined that “the legislature was entitled to believe” the opposite. The legislature’s entitlement overruled gay entitlement to marry.

Columbia Law School’s Suzanne Goldberg says: “It’s hard to believe that intelligent judges believe what they are writing. The idea that exclusion of same-sex couples from marriage could be justified by the way an egg and sperm might meet is illogical.”

The backlash against gay marriage has produced strong passions and weak arguments. It’s no longer enough to state in court that marriage has always been for straight couples, ergo it should be only for straight couples. This time the courts ended up arguing on procreationist grounds, pretty shaky legal terrain.

“It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage,” wrote Chief Justice Margaret Marshall in the Massachusetts decision that extended marital rights to gays and brought conservative wrath down on her head.

Marshall has been demonized as an “activist judge”—a label pinned on the author of any ruling you dislike. Now, in an anxious attempt to put their courts into neutral, judges in Washington and New York have thrown logic into reverse.

Ellen Goodman’s e-mail address is ellengoodman(at symbol)globe.com.

[BruceChris]

So I'm going to post this here. I have a tee shirt that says "Feminism is the radical idea that women are people." Substitute the phrase The Gay Agenda, and LGBT, and I think you have a simple and inescapable truth. Just thought I'd toss it out there.

Peace and Love, Chris

[Liberal Crozier]

It was our understanding that Corzine is yet another DINO in the mold of DLC co-founder Liebermann. It has been described as the new northern political choice for the old Eisenhower/Rockefeller Republican who left the GOP when it was hijacked by the Southern Dixiecrats.

Canadian LGBT observers note that NJ, like CA (California), will find their nemesis with the "empathetic" governor.

Prior to his diagnosis, +LC, our son and I+ went to Cape Cod for our timeshare weeks in Provincetown. We met other couples with children who were MA residents. The reason why some of these longtime couples did NOT marry was the fact that the lack of federal recognition of their legal state marriage had financial disadvantages. We found this extremely sad. Of course, we know that you have "Log Cabin" Republicans and extremely wealthy gay couples who gauge their contribution to LGBT rights on their Profit and Loss Statements.

We Canadians had two years - 2003-05 - where only provincial or territorial marriage was legal. National or federal recognition took two years. Yes, we married in 2003, and yes, although far from wealthy ( we are comfortable living within our means of support), and although we had two years of dual reporting to ON and the federal government, our internal revenue costs were high. But, I suggest, that economic losses in order to obtain human rights, no matter how flawed, is worth the effort.

[LGBT FLIGHT ATTENDANT]

The possibility of New Jersey laws favoring SSM since it already allows for dual parent adoptions for SS couples gives me hope. My FA seniority gave me the ability to move to EWR instead of IAH because I would like to one day have those opportunities if the laws change.

Of course, I do not view LC's comments as "cynical" but rather "realistic" given the politics governing this issue in our country.

Several years ago, I thought of an "early out" and go to work for Air Canada. until I realized that they do NOT hire foreign nationals without papers to work in Canada