Proposition 8 creates a legal gray area for gay couples married in CA

Since the passage of Proposition 8 in California, I've been wondering about the status of all those couples who were married after the California Supreme Court ruling in May and before Election Day on Nov. 4. According to Kenji Yoshino of Slate, Prop. 8 has created a legal gray area:

The effects of Prop 8 on the more than 16,000 gay couples in California who got married after the state high court authorized them to do so is much less clear. California Attorney General Jerry Brown has opined that he believes those marriages will not get washed out by Prop 8. His position comports with the general intuition that retroactive legislation should not deprive people of vested rights like marriage.

However, that intuition will not necessarily be vindicated. As I have pointed out elsewhere, there is a surprising dearth of federal constitutional authority that would protect existing same-sex marriages from retroactive attempts to undo them. It may well be, as California constitutional-law professor Grace Blumberg of UCLA has argued, that the California Constitution would preclude the retroactive application of Prop 8. But as most experts agree, the outcome here is uncertain.

This is in part because a court might find that Prop 8 does not even constitute retroactive legislation. The amendment states that "only marriage between a man and a woman is valid or recognized in California." A court could find that the pre-election marriages remain in existence but that California cannot recognize their validity going forward. Under that interpretation, a California same-sex marriage that was valid before today could be recognized by another state but not in the Golden State itself. Indeed, a state like New York that recognizes out-of-state same-sex marriages—even though it doesn't yet grant same-sex marriages—might be required to recognize a pre-election California marriage because of a state court decision that ordered the recognition of same-sex and cross-sex marriages.

Victory for Chicken Rights

On November 5, Californians found chickens to be more deserving of freedom than gays and lesbians.

Grand as ever: Brad Pitt gives $100,000 to fight marriage ban

Brad Pitt is donating $100,000 to fight Proposition 8,California's ballot initiative designed to undo marriage equality in the State.

"Because no one has the right to deny another their life, even though they disagree with it, because everyone has the right to live the life they so desire if it doesn't harm another and because discrimination has no place in America, my vote will be for equality and against Proposition 8," Pitt said Wednesday.

Let's hope his gesture inspires more contributions. Thanks, Brad. Now that's hot!

With friends like these...

Ron Hart, a former member of the Tennessee Board of Regents, is a "Southern humorist." I'm not sure whether that means he's Southern and a humorist or he believes he's writing Southern humor. In this piece, he hits as many stereotypes and stock images as possible--Liza Minnelli's marriage, leather chaps, Indigo Girls CD collections, activist judges, liberal elitists, gay priests, Richard Simmons, "hot lesbians," and references to the "mechanics of gay male relationships."

Sorry I had to stop typing for a moment because I was slapping my knees so hard.

Despite the carnival that our community apparently presents, Mr. Hart still manages to say that he agrees with the California Supreme Court's recent ruling on marriage. The libertarian stuff at the end supposedly supplies the justification for his view.

Thanks for the help, Ron. I can hear our fellow Southerners laughing all the way to the voting booth. I can't wait for your piece on race relations.

Can anyone justify a vote based on marriage this November?

That's what John Fite Rebrovick is asking the readers of the Tennessean to do.

You can bet that now with the California decision, advocates of homosexual marriage will push harder for acceptance in other states that have rejected the notion through referenda like Tennessee. It's not time for proponents of traditional marriage to sit idly by. If we do not feel that our government should be telling children that homosexuality and polygamy are acceptable practices, then we can sit on our logic and let overreaching courts and California set the trend on this issue for the rest of the nation. Or, in the next elections, we can make sure we know where our candidates at every level of government stand on this issue and vote accordingly.

If he means the presidential election, then I think there are some problems with his proposal. John McCain has not been a supporter of the federal marriage amendment, but he was in favor of his home state of Arizona adopting one. That's not exactly what most social conservatives want to hear. Barack Obama has supported giving most of the same rights of marriage to same-sex couples, but he continues to resist using the word marriage. He recently reiterated his view that marriage is between a man and a woman. That's not exactly what the GLBT community wants to hear.

As for the "every level of government" part, I'm not aware of one candidate of a major party running for office in Tennessee who has come out publicly in favor of full marriage equality. Candidates for the legislature wouldn't have any reason to do so. No matter what side of the issue they come down on, they won't be voting on it in the next two or even four years. Perhaps he means the Senate race or the House races, but I haven't seen much talk about it there either. Maybe there will be a vote on a federal marriage amendment, but House and Senate aren't likely to allow much movement on that issue soon.

To be sure, all kinds of GLBT/equality/family issues will come up in the next two to four years, but I don't think it makes sense for Tennesseans of any political stripe to be single-issue voters on marriage in November.

Memphis newlyweds

Robert and Derek, the Memphis couple who were married in California recently, are profiled in Saturday's Commercial Appeal.

"We weren't doing it for any other reason other than we wanted to be married," Blaudow said. "We quickly realized as we sat there that something was going on around us that was bigger than what we were looking for ourselves."

That may change, though. I had the opportunity to speak by phone with Robert today and the couple are looking to find ways to get more involved in working for equality in Tennessee.

TEP Shelby County Committee co-chair Jonathan Cole explains some of the issues TEP is working on that could benefit same-sex couples:

Because of the state constitutional amendment two years ago, area gay rights organizations such as the Tennessee Equality Project are focusing on issues other than marriage.

"We're intent on following some battles we can win," said Jonathan Cole, co-chairman of the Shelby County committee of the Tennessee Equality Project.

The state group is working to enact anti-discrimination legislation that would help same-sex couples seeking benefits, Cole said, a problem Norman and Blaudow are already familiar with.

Update on Derek and Robert

Amidst the bad news of the police beating, there was some good news. Channel 3 has a story and video of Memphis newlyweds Derek Norman and Robert Blaudow getting married in California.

Gays and their elite backers redefine marriage downward, says Gallagher

Maggie Gallagher has been actively involved in the marriage debate for about four years, as she notes. So her reactions to the first legal California marriages at the National Review's site are worth a read.

She raises some stock objections like the prospect of polygamy. "Elite legal minds get to figure out what they think and break it to the rest of us once they’ve decided." I've already said my piece about using the word elite in these debates.

But she leads with a discussion of the New York times article that looks at same-sex marriages in Massachusetts four years after they became legal, which I discussed recently. She focuses on those couples mentioned in the piece who have open relationships.

Still, Mr. Erbelding said, in what to the old-fashioned ear is the most astonishing single sentence in the whole piece: most married gay couples he knows are “for the most part monogamous, but for maybe a casual three-way.”

For the most part . . . except for the casual three-way?

But hey, if the word “marriage” can be redefined as a civil-rights imperative, why balk at lesser ideas like “monogamy” or “fidelity”?

What Gallagher fails to point out is that marriage already has been defined as a civil rights imperative if you and your partner are of the opposite sex. In fact, it's often called a fundamental right and a human right. How we jump from a high moral and legal language of marriage to open relationships is beyond me. What is the causal link? If we looked at studies of opposite-sex marriages, wouldn't we find a mixture of fidelity, divorce, cheating, swinging, and so forth? How any of those realities that befall particular marriages bear upon marriage being a fundamental right is unclear in her argument.

The issue is that marriage is entangled in a number of languages simultaneously--religious, legal, cultural, psychological, economic, etc. Monogamy in marriage suffers from personal fulfillment gone awry, the mobility of our society, and the commodification (elitist word) of people, but that does not justify closing it to some couples because of sex. Gallagher's piece suffers because she fails to untangle these countervailing languages.

Perhaps she ignores the comparison to heterosexual relationships because she is so focused on gay sex, citing the anecdote of another opponent of same-sex marriage:

“I have never been at a soiree with multiple straight “committed” couples in which someone suggests we take off our clothes and see what happens, but I’m sad to say it’s happened with gay friends in long-term relationships. Of course, I know, many men cheat on their wives. But they almost never define their marriage as something that accommodates adultery.”

What is glaringly absent, though, is any discussion of lesbian relationships. If Gallagher viewed studies (maybe she has) that showed relationships between two women are the most stable and involve the least infidelity, would she argue for a marriage hierarchy? Extra marriage rights for lesbians, basic marriage rights for opposite-sex couples, and nothing for gay men?

Arguing from the ways in which people manage their relationships to their right to marry won't get Gallagher where she wants to go. And it has nothing to do with equal protection under the law.

Memphis Gay Couple to be among first to tie the knot in California

Equal access to marriage became a reality in California today. A Memphis couple will be among those making history. The Associated Press reports:

Derek Norman, 23, and Robert Blaudow, 39, of Memphis, Tenn., were in the Bay Area for a conference and decided to get married at the Alameda County clerk's office.

"We might wait a long time in Tennessee, so this is our chance," Blaudow said.

Local media have already contacted the Shelby County Committee to inquire about this pioneering couple. I don't know Derek or Robert, but I wish them every happiness and many years together on this joyous day.

Marriage roundup

The coverage of the California Supreme Court's marriage decision continues to fill the news. The New York Times has an extended piece on what married life is like for same-sex couples four years after Massachusetts granted them the right to marry. Wedded bliss, complications, compromise, infidelity, divorce--it's all there. It reminds me of Dolly Parton's defense of marriage equality when she was asked about her position on the issue: "Hell yes. You people should have to suffer just like the rest of us!"

Earlier in the week, the Pew Research Center released a new poll on same-sex marriage. The results are mixed. The good news of the poll is that while 49% oppose marriage equality, it is the first time the number is below 50%. 38% are supportive. The July 2004 numbers were 56% opposed and 32% supporting.

The bad news is that some groups consider the issue important in the presidential election:

Currently, 41% of Republicans say gay marriage will be very important in their voting decisions, up 14 percentage points since last fall. Notably, about as many Republicans now view gay marriage as very important as did so at the end of the 2004 campaign (41% now vs. 39% then). Similarly, 49% of white evangelical Protestants view gay marriage as very important, up 10 points since last fall and identical to the percentage of white evangelicals who rated gay marriage as very important in October 2004.

Perhaps in part because of numbers like these, a group of national GLBT organizations urged people who go to California from other states in order to marry not to go lawsuit happy when they return to their home states.

The fastest way to win the freedom to marry throughout America is by getting
marriage through state courts (to show that fairness requires it) and state legislatures (to show that people support it). We need to start with states where we have the best odds of winning. When we’ve won in a critical mass of states, we can turn to Congress and the federal courts. At that point, we’ll ask that the U.S. government treat all marriages equally. And we’ll ask that all states give equal treatment to all marriages and civil unions that are celebrated in other states.

In other words, it's going to be a long wait in Tennessee.

Arrogance, imperialism, and totalitarianism

Descriptions of the Soviet Union during the Cold War? Yes, but that wasn't the subject of today's broadcast by Richard Land. Instead, he used those words to describe the California Supreme Court's decision to overturn the state's ban on "lesbian and homosexual" marriage.

Dr. Land wants California to tell the Court to "sit down, shut up, and butt out." And he thinks voters will do just that because he cites polls saying that they will reverse the Court. But the latest California Field Poll says the vote is close, and for the first time more Californians favor same-sex marriage than don't.

He compares the legal recognition of gay and lesbian couples to "administering poison to the wounded" for its effects on our culture.

Inflammatory language abounds in the broadcast. Most troubling, though, is that someone educated in the texts and traditions of Western thought could impute totalitarianism to a Court protecting minorities while he ignores the long chain of commentary concerned with the "tyranny of the majority." If Jesse Ventura can see that, why can't Richard Land?

"But you can't put a civil rights issue on the general ballot in a state and let people vote on it, because if you do that, in the southern states before, you can bet they would have voted to continued slavery."

Classes suspect and immutable: Christianity Today responds to CA ruling

I've been watching for it and it appeared today--Christianity Today's response to the California marriage ruling. They took their time and decided to focus on the issue of sexual orientation as a protected class.

The California Court of Appeals had previously ruled that sexual orientation was not a suspect classification, because it is not an immutable characteristic. John Witte Jr., director of the Center for the Study of Law and Religion at Emory University, agrees with the prior ruling of the appeals court.

"In a 121-page opinion," Witte told CT, "the [California Supreme] Court does not offer a single shred of scientific evidence to prove its assertion that sexual orientation is a natural trait or immutable characteristic like race and gender."

However, Chief Justice Ronald George, who penned the majority opinion for the court, argued that immutability is not "required in order for a characteristic to be considered a suspect classification," citing previous California cases that treated religious affiliation—also not immutable—as a suspect classification.

I found their discussion disappointing. Of all people, they should know that "immutable" has a long history in Western discourse as a divine attribute that is tough to apply to humans, and the word "natural" would seem to connect not so much with science as to a preoccupation with natural law. In both cases, we are talking about the essence of being human. Western philosophy and theology have historically argued that the essence of the human being is rationality or the imago Dei or some other exceptionally general quality. How can race qualify in that respect? What do we say of people who are biracial or multiracial or whose color makes them appear to be a race other than that of their parents? What is their immutable race? Appearance doesn't always give away someone's genetic heritage or gender, for that matter.

The argument for suspect classes finds its strength not in science or in natural philosophy but in history and identity. The identity of groups is formed both by their own self-identification and the identity others put on them. Race is a protected class because racial identity has historically been used as a reason to discriminate and the amendments to our Constitution recognize that it can continue to be. We've learned that the full force of the law should protect people from such discrimination. And I don't think we learned that lesson from some idea of the immutability of race.

Whether sexual orientation is a hard-wired attraction to the same-sex or the opposite sex or both or something else altogether--well, that's irrelevant to the question of discrimination. If calling oneself gay, lesbian, or bisexual or being called that by others becomes the basis for discrimination, then those who wish to discriminate ought to have a pretty good reason (meaning publicly defensible reason) for discriminating.

People don't have research-based science on their minds when they're engaged in discrimination based on race, gender, or sexual orientation. Stereotypes and unexamined prejudice about these identities are shaping their decisions in such moments. So Professor Witte of Emory is making a ridiculous argument in complaining about the lack of scientific documentation for an immutable sexual orientation. The burden is on the one discriminating to defend his or her action, not on the one being denied the right, accommodation, or service.

Flying TN priest to participate in marriage of two CA men

According to the Los Angeles Times, the cost of flying one of the men's priest from Tennessee to California is part of the bill.

Mike Standifer and Marc Hammer were already planning a commitment ceremony for October, but when the court ruling came out, they decided to throw an even bigger bash and get married.

They plan on spending about $25,000, which includes renovations on their Hollywood home so they can have the party in their backyard. The new price tag includes rings, their suits and those of their wedding party, and the cost of flying in Standifer's priest from Tennessee -- all costs they wouldn't have incurred if they were just having a party.

It's not clear whether we're talking about an Orthodox, a Catholic, or an Episcopal priest. My bet is on the third option. It's also not clear what role the priest will have--to officiate, to bless the union, or simply to be a groomsman or guest. Regardless, it shows that despite the framing of the issue as one of civil vs. religious marriage, some gays and lesbians also want to acknowledge the sacred character of marriage.

So far, this is the most direct impact of the California marriage ruling I've found on someone from Tennessee--a gay man with roots in the state and a member of the clergy still ministering here.

Congratulations, Mike and Marc!

Another Pride winding down

The Tennessean ran this piece about Saturday's Family Day event, which is part of the Nashville Pride celebration. Several of those in attendance were interviewed about their reactions to California Supreme Court's decision to recognize marriage rights for same-sex couples.

The main celebration took place in Centennial Park today where several organizations and businesses had set up booths. I was pleased to see Dell represented there. It's always a good opportunity to sign up new members for your group. TEP recruited several new members, surveyed over 250 on hate crimes incidents, and even registered about 40 voters. The overwhelming majority of people who stopped by our booth had already taken care of their registration or change of address prior to the Tennessee presidential primary and are eager to vote in November.

Mike Stewart, Democratic candidate for State House District 52, stopped by the TEP booth to talk for a few minutes. He had been campaigning door-to-door yesterday in the Green Hills portion of his district. I didn't happen to see any other candidates out in the park, but I wasn't exactly looking too hard.

The best part of Pride is seeing people you haven't seen in about a year. It's like a family reunion. The mood was upbeat as people from all over Middle Tennessee got reconnected.

Same-sex marriage in the South?

The Associated Press is reporting that 10 states are asking California to hold off on implementing marriage rights for same-sex couples. One of them is South Carolina and one is Florida. The others are Alaska, Colorado, Idaho, Michigan, Nebraska, New Hampshire, South Dakota and Utah.

The attorneys general say in court documents filed Thursday that they have an interest in the case because they would have to determine if their states would recognize the marriage of gay residents who wed in California.

A number of questions come up. Wouldn't same-sex marriages in Massachusetts already have triggered this if a couple married in Mass. moved to one of these other states? Maybe no one who has pushed it in the courts.

And the bigger question is what will it would mean for the other Southern states if South Carolina and/or Florida recognizes same-sex marriages. I occasionally hear people argue about whether Florida is part of the South or not. Certainly the culture of Northern Florida could still lay claim to Southern heritage. But no one questions whether aspects of the old South live on in South Carolina. If these two states granted marriage rights to same-sex couples, then even in those Southern states with constitutional amendments we would see more movement on partnership recognition and even the beginnings of civil union legislation.

Almost everyone agrees that the long-term goal is full marriage equality, but other forms of relationship protection would make a huge difference to couples living in the old Confederacy today.

Trying my patience

Since the 2006 passage of the Marriage Amendment to the Tennessee State Constitution, I've generally avoided much discussion of marriage equality. In my mind, the question is pretty much moot in Tennessee for at least a generation. While I welcome the California Supreme Court decision on equal access to marriage, it may be years before that impact is felt in Tennessee and other states that have passed oppressive marriage amendments in the last decade.

However, I was taken aback by an uniformed opinion in The Chattanoogan about one marriage equality opponent's concern about the full faith and credit clause of the U.S. Constitution leading to Tennessee recognition of marriages from California:

It is time that all the states left in this great country who hold to morality and the fact that marriage has always been defined as between one man and one woman stand up and amend their state constitutions banning this abuse of the Constitution. If you are for gay marriage we have two states for you now, California and New York. If you are still in love with Tennessee then call your representative or state senator. It needs to be defined before it is redefined for you. A state law is not sufficient; it must be in the state constitution. . . .

This guy is apparently a late-comer to anti-marriage activism since he doesn't seem to realize that the Tennessee constitution already forbids recognition of marriage between two people of the same sex. Isn't it frustrating when your bigoted opponents can't even be bothered to educate themselves about an issue?

After reading that thoughtless piece, I did enjoy a column on the Root about why African Americans should support equal access to marriage in this country.

Uncivil Union: David Fowler and I face off on marriage

The Family Action Council of Tennessee's president David Fowler and I discuss the California Supreme Court's marriage ruling in today's Tennessean. Fowler argues that "marriage is different from any other relationship." In other words, benefits are given to the relationship because of its uniqueness. Although I certainly don't agree with the implication of his position, namely, shutting out same-sex couples, I will credit him for not making the argument in a hateful manner. He stuck to the issue and gave the logic of the "definitional" position.

I am arguing that the rapid growth in the number of same-sex couples in Tennessee and the reality of the constitutional amendment create a collision course, resulting in a need for policy that recognizes and protects same-sex couples in our state.

Limited impact of CA marriage ruling in Tennessee

Most of the direct effects of the California Supreme Court's ruling overturning the state's same-sex marriage ban have taken the form of raising awareness of the issue. That's probably about as far as things can go. By statute and by constitutional amendment, marriage in Tennessee is going to be between a man and a woman for the foreseeable future, as it will be in many states.

The Tennessee Transgender Political Coalition released this statement. Media generated discussion includes this piece in the Tennessean and this story in Out & About Newspaper. The Commercial Appeal ran the AP story without any local angle. The Knoxville News Sentinel and the Chattanooga Times Free Press didn't seem to bother at all. Maybe those stories will appear later on Friday. The Nashville Post quoted one straight Knoxville blogger, but no one had commented on the Post's entry by the end of the day on Thursday. So the coverage is pretty much a Middle Tennessee phenomenon at this point and a limited one at that.

The discussion is always valuable, though. No matter how many times we say it interviews, those of us who talk to the media about the legal recognition of GLBT relationships find that we are constantly having to remind our audience that we basically have few protections if our employers choose not to offer them. Consider the comments of Jerry Jones in the Tennessean story:

Every payday, Jones says he is reminded of the benefits of marriage. His employer, Vanderbilt University, offers domestic partner benefits to gay couples. So Jones' partner is covered under the university's insurance plan. But, unlike his married co-workers, the cost of that coverage is not deducted as a pre-tax benefit. "Marriage brings with it a lot of rights and privileges that the domestic partnerships do not," said Jones. "That's just one real, everyday example."

Bringing home the costs of discrimination is a crucial piece in the long-term fight for marriage rights across the country. And even without full marriage rights recognized by the federal government, gay and lesbian couples believe that domestic partnerships are a worthy policy goal in the state, local, and private spheres.

Other than generating more discussion, it's hard to see what other effects the California ruling will have on Tennessee politics. If we had a close U.S. Senate race, then perhaps the Federal Marriage Amendment would come into play as a campaign issue. If we didn't already have a state constitutional amendment defining marriage, then the ruling would probably add fuel to a push to add one. But at this point, I don't know who can make political hay with the issue in Tennessee.

The three presidential candidates don't support using the word marriage for same-sex couples, though they have nuanced positions on the right of states to define marriage. How might any of them draw on the issue to contrast themselves with their opponents in a way that the average voter would care about? The nuances would matter, of course, to the hard Religious Right and to the state's GLBT community. But most Tennessee conservatives, moderates, and progressives will not cast their votes based upon Obama, Clinton, or McCain's views of marriage. If McCain's position or his language shifts, it could come up. Time will tell.