First off, our side has remarkably great counsel. Ted Olson was funny, intelligent, and relentlessly rational. While there were many laughs at the defense’s expense during their closing, the only joke Charles Cooper (defense) himself managed to get off was that he wished he had never said, “I don’t know.”
He was referencing a very early part of the trial:
The question is relevant to the assertion that Proposition 8 is constitutionally valid because it furthers the states goal of fostering “naturally procreative relationships,” Walker explained.
“What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?” Walker asked.
“My answer is, I don’t know. I don’t know,” Cooper answered. (MSNBC)
A whole lot of time in Cooper’s argument today was spent on trying—and failing—to justify the assertion that marriage is for childrearing. “The historical record leaves no doubt that the purpose of marriage is to channel procreative urges into stable relationships between the people whose sexual congress created the children that issued from it,” said Cooper. (Firedoglake’s great liveblog)
By the end of the back-and-forth between Walker and Cooper, it seemed that the defense’s main point was that marriage was to stop heterosexuals from running around hog-wild, making illegitimate children. Walker asked [not a direct quote], “But if that’s the case, why don’t marriage laws stop at parental rights, why all the other things they cover?”
Sitting there in the courtroom with my wife and our daughter, the point about preventing illegitimate children as the main purpose behind marriage was nothing short of infuriating. If so, do all the queer parents raising kids get to marry? What about my semi-”legitimate” child? Hazy abstractions dominated his replies about why opposite-sex partners who employ a sperm or egg donor, or who adopt in order to have kids, were different. “It’s not quite the same,” he said. OK, then why?
About gay and lesbian parents, he only said:
When couples cohabit, that in and of itself, weakens social norms. But to come back to your point — the state’s main concern in seeking to regulate marriage into stable and enduring marital unions, is to minimize irresponsible procreation. I don’t like that term, I hate to use it, I wish I could come up with a better term—procreation that leads to children being raised outside marriage. It is not a phenomenon that the state needs to be concerned about with same-sex couples. Same-sex couples can’t procreate by accident. (Firedoglake) [Emphasis mine]
But apparently it’s no biggie if WE raise children outside of marriage. When we’d rather not, even.
When Olson got up, he did so with the poise and confidence of a person who knows he is about to win. He made a snide comment about the right’s running commentary on “activist judges,” which got a huge laugh, primarily from Walker himself. I sense foreshadowing in that moment.
The other thing I learned, felt, heard, saw was who cares about this issue.
If there was any doubt whom this trial affects, you only need to have looked around the room. Absent, as far as I could tell, was even one straight couple fearing for their marriage. Olsen got a unanimous ovation at the end of his redirect (it was not contempt of court, we were in the 2nd overflow courtroom).
In the room—and outside holding signs, proffering pamphlets, and wearing stickers—were married and unmarried queers, Christians and those who would forever sever the church and state, lots of Americans and one or two undocumented-but-in-love hopefuls, parents and kids, people in jeans and suits, and a spectrum of ages and races.
Remember: the person shouting from behind the podium is not always the full picture, folks. A career devoted to only our highest principles is, for most, a luxury. A half-day off from work—or hell, unemployment—to run down to the courthouse is much more within reach.
I wish you had been there with us.
One day our grandkids, legitimate and not, will roll their eyes about a time when the law was that backward, not to mention anyone old enough to remember and uncool enough still want to talk about it.
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.
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:
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.
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.
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?
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?
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.