San Francisco Protects the Freedom to Marry

Of course these marriages don’t do harm — but I don’t agree with your argument that “any harm is reparable by declaring the marriages invalid later”: Revoking someone’s marriage causes them (at least emotional) harm; IANAL, but I think potentially they could even sue about it (trying not to have their marriage revoked because it was granted first). So the judge does have to weigh this into the decision.

This is how I remember the argument went in Germany when the conservatives were suing against queer marriage. They weren’t granted a stay nor did they win the process, btw. (It was kind of a funny situation because some of the states that had sued against the (federal) legislature refused to make any preparations until the final decision of the court, and then they complained they didn’t have enough time to implement it.)

posted by Benja Fallenstein at February 24, 2004 01:33 PM #

Reduce this argument to the premise of marriage, particularly as a contract. When a couple decides to get married, they are not thinking in terms of a contract, say between business partners, but in reality, it is no different. The contract of marriage is a promise between to individuals to be faithful, to support and love one another forever, and to legally share possessions. If one or both parties break the contract, there are then grounds for a divorce. My question is why does the state have any say in whom is married at all? Perhaps it is the market liberal in me speaking, but I see no reason for the state to be involved in shaping the content of a marriage contract at all. Shouldn?t the state simply enforce the marriage/civil union contract as they would for any other legal and binding contract?

posted by Michael at February 24, 2004 02:46 PM #

Ugh… comparing gay marriage to Rosa Parks is enough to drop your RSS feed from my reader. Click, delete, done.

posted by anonymous at February 24, 2004 04:10 PM #

anonymous,

I can imagine someone presenting reasons why a Parks-Newsom comparison is inappropriate that are not dismissable out of hand. Unfortunately, you have not provided such reasons.

As it stands, I think that is the proper context in which to see this battle for civil rights. In both cases we have an identifiable minority group that is singled out for denials of rights and privileges that the majority enjoys. The racism that Rosa Parks fought was motivated by a bigotry similar to the hatred that homosexuals now face.

When either of you find the ability to make cogent arguments, we’ll be here.

posted by Brian at February 25, 2004 01:47 AM #

If you seriously think there is NO harm that can come of this then we need to review what has happened to other countries that HAVE allowed it.

The End of Marriage in Scandinavia The “conservative case” for same-sex marriage collapses. http://www.weeklystandard.com/Content/Public/Articles/000/000/003/660zypwj.asp

posted by at February 25, 2004 10:02 AM #

What is the institution of marriage all about? There is confusion due to a failure to clearly distinguish between three aspects:

Firstly there is the idea that a couple who have made a commitment to each other should express it in some sort of ceremony involving their community. There is nothing to stop gay couples doing this already and I will refer to it as the ritual aspect of marriage.

Secondly there is the idea that a couple might want to make some sort of legally binding contract between themselves. Again, gay couples can already do this, and I will call it the contract aspect.

Thirdly there is the idea that a couple can petition the State to be granted a special legal status by way of a marriage license. The State decides on the conditions of eligibility. This is where the battle is going on and I will call it the state aspect.

Perhaps you have already predicted how I feel about these three aspects, let’s see if you are right.

The ritual aspect is the most fundamental as it certainly predates our ideas of both “law” and “the State”. I respect this aspect and to me it is the essence of marriage.

The contract aspect is unfortunately necessary in a litigeous society but for the purposes of the current debate it is uncontroversial.

The state aspect is bullshit (IMHO) and it’s abolition would probably benefit the “institution of marriage” by shifting the focus back to the community/ritual sphere where it belongs. Unfortunately this view seems a little too radical, so as long as the State continues to interfere in something which should be none of it’s business it should at least attempt to be fair and not discriminate on the basis of religious doctrine or other narrow predjudiced views.

posted by Ian at February 25, 2004 05:06 PM #

Aaron:

First, I agree the comparison to Rosa Parks is ridiculous. Whatever you think of this issue, it bears no significant comparison to what blacks went through in Rosa Parks’ time. As Isaac said in Sports Night: “No rich, young white guy has ever gotten anywhere with me comparing himself to Rosa Parks.”

Second, I think the city’s weaseling over the state preemption doctrine is utterly bogus. The state law says that marriage is between a man and a woman. A city cannot choose to ignore that just because it is a matter of city policy, not city law. Make no mistake: the city broke the law. It provided, under the authority granted by the state of California, a marriage license to people who are not, by state law, allowed to have one.

Third, you should look to the well-respected Democratic — and gay — leaders of this country who have spoken out against what Mayor Newsom has done. Barney Frank — my congressman when I still lived in MA, a gay man who has fought for gay rights longer than you’ve been alive — condemned what Newsom did, because it was illegal, and because it would make it more difficult to use legal processes to achieve the same goal (by strengthening the opposition).

I don’t know all your political views, but I’ll assume that being a good liberal, you’re for gun controls and the Brady Bill and against assault rifles etc. What would you say to a mayor or sheriff who decided to issue permits for assault rifles, in violation of federal law, because he believes those laws to be unconstitutional under the Second Amendment?

There are some situations which warrant breaking the law, but they are few, and I have to believe one of the prerequisites should be that the legal processes are not working; why break the law if the legal means to achieve your goals are working? And that’s clearly not the case here: every major court case in the last year or more has found in favor of gay rights, including the important anti-sodomy case in the Supreme Court last year, and the recent pro-gay-marriage case in Massachusetts. One by one states are beginning to recognize more and more rights for gays.

Advocating breaking the law should never be taken lightly, and to do so in a case where it is clearly unnecessary is just a sad joke. I could maybe see it — especially in light of the comparison to Rosa Parks — if gay rights were not being currently and consistently expanded in this country.

And before you say, “well, change isn’t happening fast enough,” remember the other side to what Rep. Frank said: if you move too fast, you only push the other side into being more aggressive against you. Change sometimes comes slowly, and it’s unwise to push it too fast, unless you really want a Constitutional Amendment. There is no way Bush would have pushed for this amendment at this time if the gay rights activists hadn’t pushed so hard so fast. They are being unwise.

Oh, and one more thing: I disagree with you about the stay. I think making the couples wait a relatively short amount of time for a the case to be heard is a much lesser harm than allowing them to be married, only to annul tens of thousands of marriages later. That will be a nightmare if it happens.

My own view of this, in brief, is that marriage is two separate things — civil and social — and that most people cannot separate those two things in their mind; so, because they are different and most people cannot separate them, the answer is to call them different things. Civil marriages for none, civil unions for all. My wife and I would be married in a church, and get civil union benefits and rights — not marriage benefits and rights — through the state. It would work the exact same way for gays. There would be no difference at all, except for that my church doesn’t allow gay marriages, and theirs does.

This keeps the issue where it belongs, in the church, and takes away the primary argument people have against gay civil marriages (by not having any civil marriages at all) and takes away the primary argument people have against civil unions (that they are unequal, since now everyone is in them, so they are equal).

posted by pudge at February 26, 2004 06:28 PM #

My question is…if homosexual’s are allowed to wed each other, then what about incest? Mothers marrying daughters, Mothers marrying sons, Brother and Sister taking off to San Francisco to get that license…How about polygamy? Marry as many as you want! Even worse, man marries cow or pig or goat.

If you are going to argue gay marriage as equality, then you need to open it up to everyone. I just don’t see how Gay Marriage benefits our society as a whole - it just opens the door to more trouble.

If the parts don’t fit, it doesn’t work….

posted by Matt at February 27, 2004 11:00 AM #

pudge, Isaac’s great. But Dan was making a stupid argument about not following rules. I’m pointing out that we have a long history of celebrating civil disobedience. This is not to compare Rosa Parks with people today, just to explain why I think civil disobedience for the cause of equality is OK. The state law could be unconstitutional, in which case California was following the law, not breaking it. I think it weakened opposition.

I don’t know enough to take a strong stand on gun control either way, but from what I’ve heard there’s little point in it, so I’m leaning towards being against gun control. I also feel the Second Amendment should be respected, so I would support a sherriff who issued licenses for assault weapons. (This is not to say I agree with his interpretation of the amendment — I suspect the Second Amendment does allow controls on unusually harmful weapons.)

I think Bush would have tried to pass this amendment even if nothing had happened in San Francisco — he hinted at his support for it repeatedly before then, and was lining things up to give a more prominent announcement. San Francisco just gave him convenient cover.

So the irony is that I agree with you in principle — government officials should follow the law — but I come to the exact opposite conclusion. The law includes the Constitution, which officials swear an oath to uphold. Gavin Newsom (I think correctly) believes that to deny gay couples a right to marry would violate this law, and so he chose to follow his conscience.

Now there’s a system in place for quick resolution of these disputes. Within days it was taken to court (several courts, in fact), all of whom said Gavin could continue. But if the courts asked him to stop (as they might in your Second Amendment hypothetical) then I would urge him to stop.

Matt, Mayor Newsom was acting based on the 14th amendment, which applies a much higher standard for male-female discrimination than for any other kind of discrimination (except racial discrimination). Racial discrimination must meet a compelling government interest, sexual discrimination must meet an important government interest, but other discrimination must only have a rational basis. It seems quite likely that not allowing same-sex marriages would be illegal, while not allowing incestuous marriages would be fine.

posted by Aaron Swartz at February 27, 2004 05:11 PM #

“you need to open it up to everyone”.

You might be on to something. Why isn’t marriage simply defined as 2 people linking their lives? Would have to think through if polygamy would be OK. See no problem with family members getting the contract.

Barney Frank may have mis-judged the Bush-backlash for over-stepping on an amendment. If Bush continues pushing, it could be a key reason he loses in November.

posted by pb at February 28, 2004 08:28 PM #

If Bush continues pushing, it could be a key reason he loses in November.

Heh, right. Bush isn’t expecting to win any of the states that are largely pro-gay-marriage, it’s the swing states he’s shooting for, and those are populated by the “NASCAR dads” who are largely anti-gay-marriage.

posted by pudge at February 29, 2004 12:47 AM #

Rosa Parks was a private citizen. These San Francisco officials are acting with the authority of the state behind them. A better comparison would be with Judge Roy Bean, whose motto was “hang ‘em first, try ‘em later”. That’s what happens when officials take the law into their own hands.

Now, I support the concept of gay marriage. But it must be achieved in legal ways, in a manner which is acceptable to society as a whole. You’ll never be able to force society to accept something that they refuse to put up with. The solution here is education and patience, not having elected officials violate the law.

(BTW, I’m pleased to see such high quality debate in the comments section of a weblog!)

posted by Cypherpunk at March 1, 2004 04:56 PM #

Matt’s comment gives me an idea:

All those polygamists who are hiding out in Utah should make their way to San Francisco and demand a marriage license. When they don’t get it (which of of course they won’t given “liberal” bias), they should sue the pants off that stupid wanna-make-a-name-for-himself mayor and leftish associates. And they’d probably win too, since they certainly have the money, and the city officials would not only be breaking a law chosen by the PEOPLE but descriminating in doing so. I’m not a lawyer, but I think that’s a solid case for a civil suit.

The difference between The Civil Rights movement and the “gay rights” movement is that one is divided by a color line, the other by a moral line. You stand on one side of the fence, me on the other, but these are choices we make, unlike race.

posted by Star at March 1, 2004 06:13 PM #

“The difference between The Civil Rights movement and the “gay rights” movement is that one is divided by a color line, the other by a moral line. You stand on one side of the fence, me on the other, but these are choices we make, unlike race.”

No, I beg to disagree. I’m gay. I did not make a moral decision to be gay. I was born gay. More than that, I was born gay into Apartheid South Africa. I am a smart woman and if being gay was a choice, then it would not have been one I would have made, given the circumstances in my country at the time.

South Africa was NOT a good place to be different, paticularly in a gay way. They performed lobotamies on gay people admitted to institutions as mentally ill (because homosexuality was seen as a disorder) and in the military compulsory castrations when men were even suspected of being gay. During the T&R Commission there were also numerous stories of lesbians claiming to have had “gang rape therapy” in the army when they had been caught or even just suspected by their superior officers.

You can’t have it both ways — you can believe that gay people chose to be that way, but then you ignore the basic human survival instinct in many recent events; or you can realise that this is something we are born with, not a choice. This lack of choice makes this a civil liberties issue. I chose my sexuality even less than I chose my skin colour. Your refusal to understand or even entertain that notion makes you just as bigoted as the men who put Nelson Mandela in prison for 27 years of his life.

posted by Meri at March 2, 2004 07:30 AM #

Star, Utah polygamists apparently are suing.

As Cypherpunk notes (and pudge has explained to me offlist) the main argument is this: should city officials do what’s right or follow the letter of the law? Doing what’s right has all sort of practical benefits. But following the letter of the law seems to have some powerful moral sway over some. Even though they can’t point to any practical problems, overruling the legislature just seems wrong to them.

Are there any practical problems? I prefer to be swayed by rational evaluation of each outcome rather than sayings and scary talk about the downfall of ordered society (wasn’t gay marriage supposed to lead to that anyway?).

But even on the sentimental stuff, I think we win. The Constitution protects us all. If someone is trying to perform an unconstitutional search, you don’t have to let them in. If someone tries to keep you from speaking (prior restraint), you can usually go ahead and speak anyway. If the government doesn’t want you to commit sodomy, you can go ahead and do it and the court will protect you. Everyone has the power to enforce the Constitution.

Some say elected officials like the mayor have greater responsibilities. But Marbury vs. Madison arguably gives executive officials as much power to overturn laws as it does to small town judges.

San Francisco has forty judges who can overturn laws for the city. Why shouldn’t the Mayor, who was similarly elected but with a much more public understanding and support, also have this power of judicial review? What magic do forty judges have that the mayor doesn’t? The judges may be overturned, but so may be the mayor. Judges know the law, but so does the mayor — his wife is a DA, he also has an attorney general, and I’m sure he has tons of lawyers offering to help.

I see little harm in giving the executive officials the power these judges already have. We’re not giving them the purse or the sword (they already have that!) but simply the freedom to ignore certain laws, subject to either on-point cases or judicial stays (which can come very quickly).

So again I ask, why not let Mayor Newsom uphold the Constitution, even when it conflicts with state law?

posted by Aaron Swartz at March 2, 2004 10:02 AM #

The practical problems are that it would allow any executive at any level to ignore the law if he doesn’t like it. The problem is that the principle cannot be practically applied to every case. I could argue that the specific action here causes problems, but it is beside the point I am making.

Let’s be clear: your opinion that gay marriage bans in California are unconstitutional is merely an opinion, one that no court has backed. Your examples are ones where specific Constitutional rights (unlike the current case, where they are inferred or implied at best) that have consistently been upheld by the courts (unlike the current case, where they’ve never been upheld) are defended through civil disobedience.

If Newsom were refusing to uphold a law that said people could not speak in public meetings or something, then that would be a very different situation. The difference between your examples and the current case are significant.

And I gave you an example where this could cause havoc: imagine the mayor of Compton, CA decided to start issuing assault weapons permits because he saw the ban against them as unconstitutional. If Mayor Newsom can do that, this mayor can do this. Where’s the harm?

Finally, please understand that the very existence of the Constitution is predicated on the idea that we are a nation of laws, not of men. This is a principle that goes back to before the Constitution, back to the very reason we overthrew King George, and was cited by Marshall in Marbury v. Madison:

“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

And my point is simply that we do have remedy in the law (even though the case at hand is not one regarding a vested legal right), and that it therefore should be used, instead of violating the law. If there were no remedy, fine, I would agree with you! And so would Marshall! But as the remedy existed, the justification for violating the law is severely diminished.

posted by pudge at March 2, 2004 10:47 AM #

“And I gave you an example where this could cause havoc: imagine the mayor of Compton, CA decided to start issuing assault weapons permits because he saw the ban against them as unconstitutional. If Mayor Newsom can do that, this mayor can do this. Where’s the harm?”

I think in this case the judges who were asked for a stay would have granted one, in which case the city would have had to stop issuing assault weapon licenses, because people’s lives would presumably be in danger. So far I don’t think anyone has been endangered by some gay people publicly declaring their love and receiving benefits for their relationship — except perhaps if the KKK is riding again, in which case the couples themselves are probably in danger.

Surely this is why the American courts system works the way it does?

posted by Meri at March 2, 2004 11:00 AM #

Meri is right. I tried to think of a way an executive could seriously abuse this principle and failed. Issuing assault weapons permits could be easily stayed before any harm was done.

And even if there was harm, we’d urge officials to use their common sense and not use their power for that purpose. Principle or not, a crazy mayor could issue assault weapons permits. I don’t see why a general ban on all such actions are necessary when a case-by-case evaluation would suit them fine.

posted by Aaron Swartz at March 2, 2004 11:39 AM #

Meri - guns are guns, they can’t kill someone unless someone pulls the trigger. If a gun is legal, then why can’t an assualt weapon be legal? Its just another form of “discrimination”. Pudge has a legitimate point.

Also, I believe scientists have not found a specific gene yet that makes you gay…Its my understanding that there are genes that make you more likely to be gay - but no specific “gay” gene yet. Its just like alcoholism. There are genes that are more likely to make you an alcoholic - but no specific gene determines that. Its still a choice whether or not you want to have relations with a man or a woman - just as it is my choice. There are plenty of former homosexuals that have made that choice to live a heterosexual life.

posted by Matt at March 4, 2004 04:13 PM #

Aaron says: “I think Bush would have tried to pass this amendment even if nothing had happened in San Francisco — he hinted at his support for it repeatedly before then, and was lining things up to give a more prominent announcement. San Francisco just gave him convenient cover.”

The only reason Bush was hinting at support of a marriage amendment prior to the events in San Francisco was because of the sweeping decision by the Massachusetts Supreme Judicial Court, which indeed inspired Mayor Newsom and others. In omitting any mention of the SJC ruling, you reinforce the (cynical) notion that Bush has been initiating this debate rather than responding to it.

posted by Mike Sierra at March 8, 2004 09:53 AM #

Matt said “Meri - guns are guns, they can’t kill someone unless someone pulls the trigger. If a gun is legal, then why can’t an assualt weapon be legal?”

So, anthrax is anthrax, it can’t kill someone unless it is released. Ditto for Semtex, Plutonium etc. Most people would agree that these things should be controlled, so why not assault weapons?

On the other hand, if a gun is legal then cannabis certainly should be. As Thomas Jefferson said, “the legitimate powers of government extend to such acts only as are injurious to others”.

posted by Ian Gregory at March 11, 2004 10:48 AM #

Matt said: “Meri - guns are guns, they can’t kill someone unless someone pulls the trigger. If a gun is legal, then why can’t an assualt weapon be legal? Its just another form of “discrimination”. Pudge has a legitimate point.”

Yes, guns are guns, but I think the issue was around the harm being caused. For Pudge’s specific point, the courts would be much more likely to authorise a stay as they would probably feel that assault weapons licenses being issued would put the public at risk. The point I was making was that the mayor’s actions in San Francisco would have been stopped if the courts felt they were causing harm in the short term. Extrapolating the events in SF to other cases, such as the assualt weapons, can only be done if the consequences are similar.

“Also, I believe scientists have not found a specific gene yet that makes you gay…Its my understanding that there are genes that make you more likely to be gay - but no specific “gay” gene yet. Its just like alcoholism. There are genes that are more likely to make you an alcoholic - but no specific gene determines that. Its still a choice whether or not you want to have relations with a man or a woman - just as it is my choice. There are plenty of former homosexuals that have made that choice to live a heterosexual life.”

OK, firstly let’s introduce a nice little concept that a significant number of people in the world like to use to describe their sexuality: bisexual. Either the “former homosexuals” you know are desperately unhappy living their heterosexual lives (since they are presumably sleeping with someone they have zero attraction to), or they are bisexuals. Many bisexuals choose one lifestyle or the other … personally I don’t think they should have to make that choice.

There is also a definite divergence in our beliefs around what sexuality is I think, Matt. When I was talking about being “born gay”, I meant it in terms of whom I am attracted to. I don’t find men attractive, at all. As a result I have no desire to sleep with any and so don’t. My other half is bisexual … she is attracted to both men and women. The fact that she is in a long-term relationship with me does not mean that she is a lesbian, since she may still find men attractive.

According to this idea of sexuality, I think we agree that there is a genetic element to sexuality. Which, returning to my original point, means that gay, bi or straight people don’t choose their sexuality. They may choose their lifestyle, but not their sexuality. In which case this is as much a civil rights issue as that of race.

posted by Meri at March 12, 2004 01:03 PM #

Also, to respond to the “gay gene” issue, just because they haven’t isolated a specific gene doesn’t mean it’s not something you’re born with. Our understanding of genetics is just beginning and is still very weak — it’s to be expected that we haven’t completely discovered the causes of complex things like sexual preferences.

posted by Aaron Swartz at March 12, 2004 01:09 PM #

Oh, and secondly, even if sexual preference was somehow a choice (unlikely as that seems), that wouldn’t make it any less of a civil rights issue. Take Loving v. Virginia, where the Court ruled that white people have a right to marry black people and vice versa. No white plaintiff claimed that they were born black-loving and thus they couldn’t change their preference.

No, the Supreme Court pointed out that individual people were clearly born black and white, and that preventing a lover from marrying them because of this was wrong. In the same way, people are clearly born male and female, and preventing their lovers from marrying them because of this is clearly wrong.

posted by Aaron Swartz at March 12, 2004 01:13 PM #

Ooh, good catch, Aaron. Hadn’t thought of that particular argument before :-)

posted by Meri at March 14, 2004 07:10 AM #

The irony is that the groups who are advocating the “preservation of marriage” are the same groups who want the “Freedom” to shove their twisted and bitter interpretations of Christianity down our throats. They maybe should remeber that jesus said “Do not go where you are not wanted” I seem to remeber the bible was very clear of this, not wanted, leave the heathens alone. Mathew Chapter 10 Verse 14 KJV - “And whosoever shall not receive you, nor hear your words, when ye depart out of that house or city, shake off the dust of your feet”

Also to counter the other “hordes” of “deviants” arguments, this is about forming a legal bond based on love between 2 adult people of sound mind. Polygamy is not this, it is 2 (or more) separate bonds linked to the same person. Necrophilia, well until someone finds proof of intelligent undead, that doesn’t count as adult of sound mind. Bestiality, animals are not mature adults and so would kinda be considered abuse (IMVHO). The point I am trying to make is that this is an issue that a social construct that already exists, needs to be tweaked to enable the design (2 people joined in a legal loving bond) to accept that the original set of bonds between 2 people was incomplete.

I may not be a legal authority on this, but I am an expert on what my own beliefs as far as what is ethical and moral. I believe that any 2 adults who love each other enough to make a lifetime commitment, should face no obsticles from society or the law to restrict such a union and have all the rights and names associated with it.

posted by Tom H at March 18, 2004 11:49 PM #