2K10: A Breakthrough Year, or More of the Same?
Hello, everyone! I have missed you all, and must convey my apologies for our seeming abandonment of this blog. We are still here, still watching the world of marriage (and other LGBT) equality.
We’ve taken the holiday season to reinvest in our lives at home in Seattle. We’ve seen friends, put up and taken down a Christmas tree, rearranged our house for a crawling–and now cruising–Frances, found work (Ami) and pursued employment diligently (me). We still have a trailer parked in our driveway, which I’m sure the neighbors celebrate. We still own a V-8 Jeep, not the ideal commuter car. But our darling puppy, Esmerelda, put her unique mark on our vehicle by chewing through the back seat upholstery and severing the wires to the rear window defroster coils. How to sell such a vehicle? We are still working on that dilemma.
This year could be historic for marriage equality. I have been following the Prop 8 trial on the Courage Campaign’s Prop 8 Trial Tracker (in-depth and immediate coverage) and at Pam’s House Blend (summary coverage). So far only the plaintiff’s (our side’s) witnesses have been called, and so far it’s going well. When I say going well, I mean that our witnesses have made a very good case for why the plaintiff’s constitutional rights have been violated and have not faltered from their positions on cross-examination.
I’ve done some research as to what will happen if Judge Walker, the federal judge on the case, decides in favor of the plaintiff. It will undoubtedly be appealed, in which case it will go to the Ninth Circuit Court of Appeals. When that case is decided, in all likelihood the loser will appeal to the Supreme Court. (Strangely, I had a hard time finding out how many levels there were between this court and the Supreme Court. If my information is faulty, lease let me know so I may correct the information.)
Central to this case are the possible categorization of gays and lesbians as a “suspect class” and the violation of our “fundamental rights.” I didn’t know what these legal terms meant before this trial, so bear with me while I display my legal non-expertise in describing them. In the interest of (vain hope of?) concision, I will describe suspect class today and fundamental rights next time.
Interestingly, the idea of a suspect class originated from a discriminatory ruling on the part of the Supreme Court in 1944, Korematsu v. the United States. Ironically speaking for the majority, which upheld the legality of the internment of Japanese immigrants on the West Coast, Justice Hugo Black wrote:
all legal restrictions which curtail the Civil Rights of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
This ruling created the concept of the suspect class and of strict scrutiny. It relates specifically to the interpretation by the courts of matters related to the Equal Protection Clause of the Fourteenth Amendment to the Constitution. This clause of this amendment is the one that is violated by Proposition 8:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis mine.]
There are three levels of scrutiny that can be applied to reviewing laws that may or may not violate the Fourteenth Amendment; strict is the highest. When strict scrutiny is applied, the law is assumed to be unconstitutional, and the court must prove the law is constitutional in order for the law to be upheld. To be constitutional in this circumstance, the law must be necessary to achieve a compelling state interest, and the law must be narrowly written so as to only achieve this result. So far strict scrutiny has only been used to interpret cases concerning discrimination on the basis of race, religion, national origin, alienage, the rights to travel and vote, and the right to privacy.
Contrast this with the lowest form of scrutiny, the rational basis test, in which it must be proven that the legislature made an arbitrary or irrational decision in forming the law in question. This is the default basis for deciding if a law is constitutional. Between the two is the intermediate level of scrutiny, which is used for the “quasi-suspect” class (essentially women), and for questions of legitimacy.
There are four indications for determining a group a suspect class. The state supreme courts in Iowa, Connecticut, and California have found gays and lesbians to be a suspect class. The quasi-suspect class fulfills some, but not all, of these qualifications.
- The group must have a history of purposeful discrimination
- They must be politically powerless
- The trait the class shares must be immutable
- The group must be a discrete and insular minority; i.e. that group is distinct from other groups and the rest of society
Still with me? I know, that was a lot. But it’s all at least marginally interesting in relationship to this case (to me, anyway). There’s an analysis of whether gays and lesbians can be a suspect class at the Prop 8 Trial Tracker.
And here’s some irony: After calling us child molesters, stating that just knowing we get married is something children need protection from, accusing us of taking down the institution of marriage just by joining it, lying to voters that their churches would lose their tax exemptions if we are allowed to get married, and implying that the claim that the best situation for a child is parents who are one male and one female is valid, now the Prop 8 side’s argument is that we are accepted members of society, not in any way a suspect class. How absurd is that? Prior to this we were like pedophiles and bigamists, the lowest of the low. Now we’re just like anyone else, and certainly deserving of no special consideration because of a history of discrimination.
Sometimes I just can’t handle the hypocrisy.
Thinking of You: More Encounters with Family
When we got home, there was a card waiting for us. It was from a relative of one of ours.
One side of our family, mine, is almost entirely Catholic. The other side, Ami’s, is mostly Mormon. I’m not going to identify the relative who sent the note because much as this card hurt us both, it came from someone whom we both want to continue to have in our lives. And while it was one person who expressed the thought, it could have come from a number of our family members from both sides. We will call the writer Chris.
The front of the card said, “Thinking of You,” and the envelope was addressed to both of us. It was from one of the relatives we had visited on our trip. Inside there was an affirmation that we were always welcome in Chris’s house. Then it said, “I don’t think of your relationship as a marriage! nor do I like how you’re living it!” That first exclamation point was obviously inserted as an afterthought. It was signed “Love, Chris.”
To say that the card hurt us is an extraordinary understatement. Even days later, this card makes me cry.
When we visited, Chris had made no indication that our family was anything but a family, and seemed to very much welcome Frances. There were gifts for her, and at Chris’s request, we agreed to send a portrait of Frances to go with the other family photos Chris had on display. Everyone got hugs on the way out the door.
So what happened between the visit and our return home that made Chris write that card? I suspect guilt at having defied his or her church in some small way for having welcomed us. I suspect shame–maybe Sunday came around, and at church Chris worried that some other congregant might know and think poorly of Chris.
If I were to write a response, it would say something like this:
Dear Chris,
Thank you for welcoming us to your home. We very much enjoyed our visit and do plan to return.
However, we do have to say that we do not believe in the Catholic (Mormon) faith, nor do we like how the church is behaving. It has hurt us in both personal and practical ways, and has hurt many other people in our community as well.
Love,
Ruby
How have the queers hurt you, Chris? I can ennumerate the ways that the Catholic and Mormon churches have hurt us. 1. Proposition 8. 2. Question 1. We’re just trying to have our own private lives while your churches are pouring money into state ballot measures–money collected from congregations all over the world–in order to keep us in our closets, keep us ashamed.
That Chris wrote the note to both of us–her biological family member, with whom she might feel an entitlement to express her opinion, as well as to the in-law she doesn’t believe in–implies that s/he feels a moral latitude to correct gayness in the world at large.
The subtext of that note is this: you should feel ashamed of your relationship. God and I think so. You can come to my house, and we’ll all pretend to be a family, but you need to feel shame while you are in my home.
I will not be ashamed.
Chris, you are a member of my family. I will visit your home, and I will participate in your life to the extent you allow, as long as you never express or even imply your opinion on the subject to our daughter. I will keep quiet about your private correspondence to us, and I will not send my response, out of deference to your esteemed place in the family.
But I will never be ashamed or act ashamed of my family or whom I love. This is where the charade ends.
Oregon: the Last State
Welcome to Oregon
Greetings from Portland. The other Portland. We’re precariously parked in a lot nearby–I say precariously because we paid for one spot, though technically our rig barely squeezes into two. Also, the spot we chose was the only one in the lot that had two spots lined up so the car and trailer would fit, and happened to be where two parts of the lot joined in a raised asphalt scar. Whether we’ll get out without bumping the trailer jacks as we roll over the hump remains to be seen.
We knew we needed to stop, though, lest you think we’d abandoned the blog. The Bay Area was full of good friends and lots to do. And last night and the night before we were promised WiFi at our destinations, but it didn’t work.
Yesterday morning, back at the Lakeshore Villa RV Park in Lakehead, CA, Ami and I hugged, both to ward off the morning chill and to enjoy our last moments as a married couple–at least for this trip. We return to Seattle today, though our journey is far from over. For one thing, there’s a backlog of states that we still need to report on. Another: there is still more to say about our marriage, legal and not, and our legal everything-but-marriage once we get home. Still another: there are still, as we end this trip, 44 states that do not consider us married.
Until each one of them acknowledges the legal reality of our union, this site will remain. Next year, we’ll visit New Hampshire (likely by plane, and likely in conjunction with a visit to New York that we would have made anyway). We passed through New Hampshire this trip, but it wasn’t yet one of the good states.
Who knows what state will be next on our travel agenda. We welcome unlikelies like Alaska and Alabama. We would be thrilled to visit Wisconsin and Wyoming to say “we did.” Someday we’ll have them all, and this trip and the need for it will be just a matter of history.
History, hurry it up, will you?
Searching for a Protestant Pope in Fresno
Cheese Store of Silverlake
We left the Silverlake neighborhood of Los Angeles in the afternoon, in the last hour of pink-sienna-magenta sky before twilight. I’d sampled amazing Italian olive oil at The Cheese Store of Silver Lake, taken a delightful turn through the ReForm School, and eaten the best gelato of my life (Market plum! Chocolate covered raisin! Salty chocolate!) at Pazzo Gelato.
We were sad to leave L.A., but I was even sadder that we were leaving for Fresno.
Fresno: n., The place that you struggled to leave physically many years ago, but still struggle to leave mentally. A place you don’t like to visit, because as soon as you’re back it seems like nothing ever got better at all.
You know what, though? I’m married in Fresno. And I have my family with me. So maybe there’s only one coffee shop (Thanks for the WiFi, guys!) downtown, only one or two gay bars (Glad to see you still bustling, Veni Vidi Vici.). Maybe it freezes at night and you can’t stand to be in the sun after 11 a.m. So what if the public transportation consists of your cousin’s tattered 10-speed and FART, the Fresno Area Rapid Transit?
Fresno has a PFLAG chapter, a Lesbian and Gay Film Festival in its 20th year, and a Gay Fresno website.
After a less-than-perfect morning with my mother, who is an active Mormon, Ruby reached out to the local PFLAG chapter. They were empathetic, and invited Mom to a meeting, even offering to meet with her beforehand to talk. But ultimately it would be up to her to contact them, and only then would she be able to access the literature she desperately needs to begin to understand us. The likelihood that she would do so seemed, well, slim. So the search continued.
I can’t believe I’m writing this, but we found a group of Mormons for Marriage. As in our marriage.
I cried. At first, when Ruby said, “There must be Mormons out there that support their gay family members,” I didn’t even respond. I thought, Ya, like there must be a Protestant Pope. I’m sure he has a website, too. But lo and behold: “Mormons for Marriage supports marriage equality for all, and stands in respectful opposition to California Proposition 8.” There’s even The Feminist Mormon Housewives, and the Family Fellowship–a volunteer service organization, “a diverse collection of Mormon families engaged in the cause of strengthening families with homosexual members.”
Ruby wrote an e-mail to Mormons for Marriage, and a woman named Laura immediately wrote back. She attached four documents written by Mormons who are LGBT or support LGBT people. She copied another woman who she thought may know some people in Fresno. They even mentioned a book: No More Goodbyes: Circling the Wagons Around Our Gay Loved Ones.
Maybe Mom won’t read the book when we buy it for her. Maybe she will and even then still say things like, “I’m sad in my heart [about the fact that your aunts outed you to your grandmother], but your grandma and your aunts love you, no matter what choices you make.” Maybe my wife will still cry in the living room once Mom has left for work, feeling like she was that ill-advised “choice.”
But today, in sunny, oppressive Fresno where I once learned internalized homophobia, I found just a little hope for our family. Our whole family.
Marriage (and Other LGBT) Equality in New Mexico and Arizona
Sure, it’s cheesy, but I’ve been known to say that my soul lives in New Mexico. My marriage, on the other hand, does not.
Before I talk about these two states, however, I want to talk again about Border Patrol. As we made our way on I-10 and then I-8, we were driving alongside the border occasionally. You could see the fence that separated the United States from Mexico. A long, man-made blight on the otherwise beautiful desert. White SUVs with the green Border Patrol stripe passed us frequently, sometimes on dirt roads along the interstate. While these facts may be less than positive from our perspective, what was shocking and upsetting was the number of times that we had to go through Border Patrol checkpoints. Let me remind you: we did not go to Mexico. These were checkpoints set up along roads that only traveled through United States land–both I-10 and I-8 are east-west roads that do not enter Mexico at any point. But because of the proximity to the border, we were all suspect.
Likely some of us more than others. While one of the patrolmen did remind Ami that she was in California when she identified that as her destination, and a few of them gave us less-than-savory looks, we were not stopped for more than a minute at each point. We were not searched. We were not harrassed. What would have happened if we were not so fair-skinned? I will leave you to draw your own conclusion there, since I’m just speculating, but I know I have my theories.
And we can’t afford universal healthcare? Moving on…
Stump Henge, LoW-HI RV Park, Deming, NM
In Deming, New Mexico, we went a little further off the freeway than we normally do in order to visit a certain RV park, the LoW-HI Ranch RV Park. As in Loners on Wheels Headquarters International. The tagline? “Serving single campers and travelers since 1969.” Now, despite the fact that New Mexico does not recognize our marriage, we are not by any means single. But the RV park welcomes others when it is not having a LoW-HI event, which it was not when we called to make a reservation. The reason for its existence? It seems that most RVers are couples or families, and when single folks pull in to an RV park, they are not welcomed over to some family’s fire to hang out for the night. Single RVers live a lonely life.
Not those at the LoW-HI, though. The place was pretty well packed, mostly with seniors, which is common throughout the sunny South. Many of them were either permanent residents or paid monthly for their winter accomodation. The desert gardens were gorgeous. There was a fenced dog run and a bunkhouse with free coffee in the mornings. And people were very friendly. While we were there we met Ellie, who was traveling from Redmond, WA. She said she’d made a point to get her ballot in the mail before she left our mutual home state so she could vote to approve Referendum 71. Yay, Ellie!
The next day in steaming hot Tucson, AZ, we stopped at Revolutionary Grounds, a cafe and book store on 5th Street. We wound up sitting next to one of the owners, Joy Soler, who sat and talked to us for awhile about the weather (hot), owning a cafe and book shop (great), and mostly about Frances (perfect). It was an excellent place to drink coffee and use the free WiFi, and were we Tucsonites, we’d be there all the time.
Afterwards, I insisted that we test the pizza at Brooklyn Pizza Company. Normally I’m an unapologetic pizza snob, and probably wouldn’t insist on any pizza not created in one of the five boroughs, no matter which borough the shop happened to be named after. But it smelled damnned good from outside, so we stopped for a slice. And it was good, surprisingly good. The crust was a tad salty, but other than that I have no complaints at all–and that’s saying something for Arizona. Plus, the pizza shop was entirely solar powered. That was something you didn’t get at Sal’s on Bainbridge Rd. in the Bronx, my childhood pizza joint.
But oh, yeah, we’re queer, and so are some other folks in Tucson and Deming. What’s it like to live with New Mexican and Arizona law as an LGBT person?
New Mexico
- In 2004, the Sandoval County Clerk issued 66 marriage licenses to same-sex couples. The state’s Attorney General declared the marriages that followed invalid. The Clerk brought a motion before the New Mexico Supreme Court to challenge the Attorney General and start issuing the licenses again. The motion was denied. There is no law prohibiting the recognition in New Mexico of same-sex marriages from other jurisdictions, but there has been no law to recognize them, either. There is no domestic partner or civil union law in New Mexico.
- New Mexico allows same-sex partners to make medical decisions for an incapacitated partner as an ”individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other’s well-being.” Written advance directives may be issued in writing, signed by two individuals. They may also be given orally to a health care provider.
- Any individual may adopt in New Mexico, including LGBT individuals. Based on the wording of the New Mexico Children, Youth and Families adoption application, which uses the term “partner,” it seems that same-sex couples may adopt jointly. There is no prohibition against same-sex partners adopting each other’s children.
- With a medical affidavit and documentation of a name change, New Mexico will issue a new birth certificate with corrected sex information.
- Both sexual orientation and gender identity are protected by New Mexico hate crimes laws.
- New Mexican non-discrimination law states that you may not discriminate against people based on their sexual orientation or gender identity.
- There are no safe schools laws in New Mexico. [via HRC unless otherwise specified]
Arizona
- In 2008, voters in Arizona approved Proposition 102 by a margin of 56% to 44% [via Ballotopedia], adding an amendment barring same-sex marriage: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.” This was after voters rejected Proposition 107 in 2006 [via Ballotopedia], 52% – 48%, which would have amended the Constitiution to ban both civil unions and same-sex marriage. This was the first state-wide constitutional amendment banning same-sex marriage/unions that ever failed at the polls in the United States. To date it is still the only one. Arizona law also bans recognition of marriages from other states. “Marriage between persons of the same sex is void and prohibited. … Marriage valid by laws of the place where contracted are valid in this state, except marriages that are void and prohibited by section 25-101. Marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, except marriages that are void and prohibited by section 25-101. Parties residing in this state may not evade the laws of this state relating to marriage by going to another state or country for solemnization of the marriage.” And despite the fact that the voters rejected an amendment barring civil unions or domestic partnership, no such relationship recognitions exist in Arizona.
- Recognized as a “close friend,” same-sex partners in Arizona may make decisions for an incapacitated partner, but only if another immediate adult relative is unavailable. An advance directive may be created naming a partner as the health care proxy–the directive must be in writing, signed, and witnessed by one person or notarized.
- Single adults, including LGBT people, may adopt in Arizona. There is no law prohibiting joint adoption by a same-sex couple or the adoption by one partner of the other’s kids, but no case has been heard to affirm this right.
- After sex reassignment surgery, or with proof of a chromosomal count that establishes a difference in sex from that listed on a birth certificate, Arizona will issue a new birth certificate. To get the new certificate, an individual must write to request it and include a written statement by a physician documenting the surgery or the chromosomal count.
- Sexual orientation is protected from hate crime in Arizona by law, but not gender identity. This is where the Feds must pick up the slack.
- Neither sexual orientation nor gender identity is covered by Arizona non-discrimination law.
- Safe schools laws in Arizona do not protect students on the basis of their sexual orientation or gender identity. [via HRC unless otherwise noted]
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