Tag: gay marriage

California’s Gay Marriage Ban Lacks a Rational Basis

I haven’t even begun to dig into Judge Walker’s 138-page (!) opinion that strikes down Proposition 8 on both due process and equal protection grounds, but here are three key excerpts.  First, the conclusion that government lacks a “rational basis” for preventing same-sex couples from marrying:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.

Then the equal protection conclusion:

Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

And finally the due process conclusion:

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” [citation omitted] Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

In short, the court found none of the government’s asserted interests – including tradition, moving slowly on social change, and promoting different-sex parenting – to be “legitimate.”  This is obviously a big deal and will be appealed – and no gay marriages will be allowed until the appellate process will have run its course (most likely up to the Supreme Court).  Currently, same-sex couples can only legally wed in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C.

Cato’s chairman Bob Levy, also co-chair of the advisory board to the American Foundation for Equal Rights (which sponsored the suit) had this to say:

The principle of equality before the law transcends the left-right divide that so often defines issues in this country.  Today, people from across that divide came together to fight a law that cut to the very core of our nation’s character.  Prop. 8 attempted to deny people an indispensable right vested in all Americans.  This Judge and this Court bravely confronted wrongful discrimination and came down on the right side – defending and enforcing equal protection, as demanded by the Constitution.

I too think this was the correct decision – reserving, of course, the right to criticize parts once I’ve done more than skim it – though I fear it will poison our politics in a way not seen from a legal decision since Roe v. WadeRoe v. Wade is not what today’s ruling should be compared to, however – both because this was only one district judge and because Roe v. Wade was a tortured fabrication of constitutional law that no legitimate constitutional scholar really defends (not even Justice Ruth Bader Ginsburg).  I would liken it more to one more step in the civil rights movement, giving all Americans equality under the law.  If you want a court case to compare it to, try Loving v. Virginia (which struck down bans on interracial marriage).

I should also add that this all could have been averted if government just got out of the marriage business entirely: have civil unions for whoever wants them – which would be a contractual basket of rights not unlike business partnerships – and let religious and other private institutions confer whatever sacraments they want.  If the state provides the institution of marriage, however, it has to provide it to all people.

A Look Inside the Dark Heart of the GOP

Evidence that Republican leaders and conservative pundits want to shake off their anti-gay image continues to mount. Since the 2008 election, gay marriage has become legal in four more states and the District of Columbia, yet conservatives have been virtually silent. As Congress moves to repeal the don’t ask, don’t tell policy, Republicans are almost all voting against it, but they’re not making a lot of noise about it.  Jonathan Rauch cites the lack of interest in Iowa in overturning the state court’s gay marriage decision and Republican strategist Grover Norquist’s observation that the Tea Party enthusiasm is focusing Republicans and conservatives on economic rather than social issues.

Many politicians have had a long dark night of the poll. They know that public opinion on gay rights has changed. Gallup just issued a poll showing that more than half of Americans believe that “gay or lesbian relations” are “morally acceptable.” Seventy percent, including majorities of all demographic groups, favor allowing openly gay people to serve in the military. Those are big changes since 2003, much less 1993, and politicians can read polls. Indeed, one thing that gay progress shows us is that cultural change precedes political change.

But out in the real world, where real Republicans live, the picture isn’t as promising. In the Virginia suburbs of Washington this week, Patrick Murray defeated Matthew Berry in a Republican primary. Berry, formerly a lawyer for the Institute for Justice and the Department of Justice, seemed to be better funded and better organized than Murray, an Iraq war veteran. The Republican in my household received at least two mailers and three phone calls from the Berry campaign and nothing from Murray. So why did Murray win? Well, Berry is openly gay, and David Weigel at the Washington Post reports that the Murray campaign did send out flyers focusing on gay issues. They may have gone only to Republicans in the more conservative parts of the district. And Republican activist Rick Sincere tells me that “in the last few days before the election, I received numerous emails from the Murray campaign that included subtle reminders that Matthew is gay and supports an end to DADT. He also, in a Monday email, took a quotation from Matthew out of context to make it look like he supports a federally-enforced repeal of Virginia’s anti-marriage law. In other words, Murray played the anti-gay card.” Blogger RedNoVa made similar observations, adding, “If you were at the Matthew Berry party last night, you would notice that the average age in the room was about 30. Young people were everywhere. The future of our party was there. Murray’s campaign crowd was older, and full of party purists.”

But Northern Virginia is far more genteel than western Tennessee, where the Jackson Sun recently reported that two Republican congressional candidates suggested that physical violence was an appropriate response to gays who enlist in the military:

Republicans Stephen Fincher, Dr. George Flinn, Dr. Ron Kirkland and Randy Smith as well as independent Donn Janes took part in the event…

The candidates said that they think President Barack Obama and Democrats’ support for ending the military “Don’t Ask, Don’t Tell” policy is “political correctness” that adds an unnecessary stress on the military.

Flinn portrayed ending “Don’t Ask, Don’t Tell” as the latest in an effort by Obama and House Speaker Nancy Pelosi to weaken the military.

Kirkland, a Vietnam veteran, said of his time in the military: “I can tell you if there were any homosexuals in that group, they were taken care of in ways I can’t describe to you.”

Smith, who served in the first Iraqi war, added: “I definitely wouldn’t want to share a shower with a homosexual. We took care of that kind of stuff, just like (Kirkland) said.”

With Republicans like that, it’s no wonder that many moderates, centrists, and libertarians still aren’t sure they want to vote Republican, even with Democrats running up the deficit and extending federal control over health care, education, automobile companies, newspapers, and more.

What’s a Libertarian?

In a new episode of Stossel,  Cato’s David Boaz and Jeffrey Miron join a panel of experts to discuss where libertarians stand on a host of major issues facing the nation today.  They tackle libertarian views on war, abortion, the welfare state, gay rights and more.

Watch the videos below for a full re-cap.

The first video covers the so-called culture wars, including gay marriage, abortion and immigration:

More videos after the jump.

In the second video they discuss the role of government in providing aid to the poor:

In the third video, the panelists discuss libertarian views of war. Should the United States leave Afghanistan and Iraq? What should we do about Iran? Watch:

If you’re hungry for more, the segment is a great supplement to David Boaz’s timeless book, Libertarianism: A Primer and Jeffrey Miron’s forthcoming book Libertarianism: From A to Z.

Marriage, Private and Public

Wouldn’t it be great if we could just get the state out of the marriage business? Perhaps. Marriage is fundamentally private, after all. It’s a matter for families, churches, and couples to decide for themselves.

Yet state recognition of marriage often acts to keep the government out of private life, to ensure family stability, and to give regular, orderly rules for all those times when, despite our best efforts, family and state still collide. Here are just a few of the things that the civil side of marriage does:

  • If you’re happily married and you have children, you don’t have to worry for a moment about child custody law. Your children are yours to raise jointly, whether they are biological or adoptive.
  • If you’re married and you die without a will, your spouse typically gets at least a share of your estate. You don’t have to do anything special for this to happen. It’s automatic, and I think this probably strikes most people as fair.
  • If you’re married, you don’t need to do anything special to be able to make medical decisions for an incapacitated spouse. It’s presumed that you are competent to do this.
  • You can sponsor your foreign spouse for U.S. citizenship.
  • You can sue for wrongful death of a spouse.
  • You can collect a spouse’s Social Security benefits.
  • You can often keep joint personal finances without worrying that your spouse will bankrupt you.

Depending on where you live, some of these protections can be won outside of marriage, if you’re willing to go to a lawyer and spend a few hundred bucks. Others, like the last four, can’t be had without either a marriage or a blood relationship.

State recognition of marriage protects families, often from the state itself. If the state got out of the marriage business, the state would be a lot more in all of our private lives, judging, inspecting, regulating, forbidding, taxing, redistributing, and all the rest. Much of the state part of marriage is really a protection against the state.

All of this is a lead-up to saying congratulations to the same-sex couples who will now be able to marry in Washington, DC. Perhaps even more than other types of marriages, same-sex marriages need these protections. (Some, like sponsoring an immigrant or collecting Social Security, may have to wait for federal law to catch up.)

On the whole, same-sex marriage means that gays’ and lesbians’ private lives can stay private. It gives them a protection against the government, which has too often been used against them. It means that gays and lesbians can be treated the same as any other group of citizens. And it means that their basic right to be left alone is finally being honored.

Conservatism and Gay Rights

We had a spirited forum at Cato on Wednesday on the question “Is There a Place for Gay People in Conservatism and Conservative Politics?” Nick Herbert, who is likely to be part of the British Cabinet in another 100 days, gave a powerful and pathbreaking speech on the Tory Party’s new inclusiveness. In the video below you can find his remarks beginning at about the 3:00 mark, where he says, “I’m delighted to be here at Cato, the guardian of true liberalism.”

Andrew Sullivan (24:00) gave a moving and eloquent defense of a conservatism that has a place for gay people, declaring himself “to the right of Nick, a Thatcherite rather than a ‘One Nation’ Tory.” And Maggie Gallagher (39:15) did an admirable job of presenting her own views to an audience she knew was very skeptical.

Then the fireworks began (51:50). Andrew denounced my question – reflecting many complaints I’d received before the reform – about whether he can really be considered a conservative at this point. “Preposterous,” he declared. There followed sharp exchanges on hate crimes, marriage, adoption, religious liberty, and the state of conservatism today.

Watch it all here:

Or listen to a podcast of Nick Herbert’s speech. Subscribe to Cato’s podcasts on iTunes here.

Eat, Pray, Love, Marry—as Long as You’re Heterosexual

Elizabeth Gilbert, the bestselling author of the memoir Eat, Pray, Love, is back with a new book, Committed: A Skeptic Makes Peace With Marriage. In her earlier book Gilbert reflected on her broken marriage, her travels around the world “looking for joy and God and love and the meaning of life,” and her determination never to marry again. In the new book we learn that she surprised herself by meeting a man worth settling down with, a Brazilian living in Indonesia. So they became a couple and settled near Philadelphia, with Jose Nunes regularly leaving the country to renew his visitor’s visa.

But then came a legal shock:

She was in the early stages of research for that book when Nunes was detained, after a visa-renewing jaunt out of the country, by Homeland Security Department officials at the Dallas-Fort Worth International Airport. Popping in and out of the country as he’d been doing was not legal, Nunes was told, and if he wanted to stay permanently they would have to marry.

Gilbert didn’t want to marry. She and Nunes spent 10 months traveling in Asia. But then, reading about marriage, writing about her aversion to marriage, getting closer to her new partner, she decided to marry. And so they did. And they lived happily ever after in the New Jersey suburbs.

A happy ending all around. As long as you’re heterosexual. Because, of course, if you’re gay, the U.S. government will tell you that your life partner from Brazil may be allowed to visit the United States, but he won’t be allowed to stay. And guess what? He could stay if you were married, but you can’t get married. Catch-22. And even though you could now marry in some foreign countries and some American states and the District of Columbia, the Defense of Marriage Act still prevents the federal government – including its immigration enforcers – from recognizing valid marriages between same-sex partners.

Is this just a theoretical complaint? As a matter of fact, not at all. At least two well-known writers have recently faced exactly the same situation Gilbert did: a Brazilian life partner who couldn’t live in the United States. Glenn Greenwald, a blogger, author of bestselling books, and author of a Cato Institute study on drug reform in Portugal, has written about his own situation and that of others. Like Greenwald, Chris Crain, former editor of the Washington Blade, has also moved to Brazil to be with his partner.

Carolyn See, reviewing Gilbert’s book in the Washington Post, wrote, “The U.S. government, like a stern father, proposed a shotgun marriage of sorts: If you want to be with him in this country, this Brazilian we don’t know all that much about, you’ll have to marry him.” A shotgun marriage, sort of. But at least the government gave Gilbert a choice. It just told Greenwald and Crain no.

This unfairness could be solved, of course, if the government would have the good sense to listen to Cato chairman Bob Levy, who wrote last week in the New York Daily News on “the moral and constitutional case for gay marriage.” And it may be solved by the lawsuit seeking to overturn California’s Proposition 8 that is being spearheaded by liberal lawyer David Boies and conservative lawyer Ted Olson, writes Newsweek’s cover story this week, “The Conservative Case for Gay Marriage.” Until then: eat, pray, love, marry – as long as you’re heterosexual.

Thursday Links

  • How Obama’s plan for health care will affect medical innovation in America: “Imposing price controls on drugs and treatments–or indirectly forcing their prices down by means of a ‘public option’ or expanded public insurance programs–would reduce the incentive for innovators to develop new treatments.”
  • Register now for the upcoming Cato forum featuring author Tim Carney and his new book, Obamanomics: How Barack Obama Is Bankrupting You and Enriching His Wall Street Friends, Corporate Lobbyists, and Union Bosses. Buy the book, here.