Five LGBT religious advances in 2012

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Voices of Faith

The end of the year surveys have begun.  GLAAD followed up its report on the missing voices of pro-equality religious folks with a look at progress in 2012.

These include victories in four states, in which progressive religious voices played an important role, and notably many Roman Catholics helped make it happen.  Pro-gay Mormons also spoke out, and students at conservative Christian colleges did too.  And, the Episcopal Church continued its trajectory, not only passing a rite for same sex blessings, but also explicitly welcoming transgendered clergy.

GLAAD goes on to identify 10 important pro-LGBT faith voices from 2012.

A New Day (video Sunday)

Quote of the Day: pioneers

From Andrew Sullivan:

We are pioneers; and we need to discuss more clearly how to keep our marriages secure and safe and durable. That isn't political work; it's personal and social work. We're at the dawn of this new era, which is why the success of actual, durable marriages - in providing mutual security, fidelity and responsibility for life - is so important. Maybe we gays can lead the way in resuscitating this vital social institution for the 21st Century. 

Maybe we already have.

Merry Christmas, stay warm because...

...it's cold outside!

Jon STewart and Gene Robinson talk about "gay marriage" (video Sunday)

Out gay Bishop Gene Robinson on the Jon Stewart show (2 parts)

The Daily Show with Jon Stewart
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The Daily Show with Jon Stewart
Get More: Daily Show Full Episodes,Political Humor & Satire Blog,The Daily Show on Facebook

Why straight people support marriage equality

From Frank Bruni at the NY Times:

But what I found most revealing and instructive was this: among voters who saw the desire by gays and lesbians to be legally wedded as a bid primarily for the rights and protections that heterosexual couples have, same-sex marriage was a loser. Only 26 percent of them voted for its legalization, while 74 percent voted against. 

But among voters who believed that gays and lesbians were chiefly interested in being able to pledge the fullest and most public commitment possible to their partners, same-sex marriage was a huge, huge winner. Eighty-five percent of those voters supported it, while only 15 percent opposed it. 

That’s a fascinating microcosm of, and window into, broader political dynamics. When an initiative in this country is framed or understood largely as an attempt by a given constituency to get more, the opposition to it is frequently bolstered, the resistance strengthened. Even if the constituency is trying to right a wrong or rectify a disadvantage. 

“Give me” can be a risky approach. “Let me” is often a better one, and when voters hear gays and lesbians asking to participate in a hallowed institution for the most personal and heartfelt of reasons, voters may have a more positive reaction. At least that’s the suggestion of the research and the interviews that Third Way has done.

 ....

[Opposition is also from] the most frequent churchgoers. The Third Way report notes that “religiosity correlated to marriage opposition in Washington. While marriage lost among regular churchgoers (those who attend once a week or more), the referendum garnered 53 percent support among those who attend church once or twice a month.”

And that is one of the reasons the biggest growing religious identification in the US is "none".

Quote of the day: what is a wedding for?

From the blogger Fontfolly:

...the real purpose of a wedding is to allow your extended community of friends and family in on it. I don’t just mean the celebration. I believe that what makes marriage sacred is not that two people have made a pledge before some deity, it is because a group of people have committed to support two people in their love. When I attend someone’s wedding, I’m entering into a covenant with them and the other attendees, affirming a particular loving relationship, but also affirming the power of love itself. It’s a commitment to the extended ties that bind all of us together in circles of mutual affection and respect.

Why equality is inevitable

From The Prospect:

If SCOTUS does knock down DOMA Section 3, that will put an enormous amount of pressure on the purple and pale-red states. Same-sex couples in Kansas will go to Iowa to get married. When they come home, they will be half-married—married in the eyes of the federal government and their families, but not married in the eyes of Kansas. I can tell you from personal experience that when colleagues, neighbors, friends, and family members hear about the small indignities and injustices of being only half-married, when they realize how ordinary you and your spouse are, they get outraged that you’re being denied full marriage recognition. Businesses will get annoyed that they have to track this dual-marriage status for their employees, and will start to pressure their legislators to change. Lawsuits will bubble up as people sue Kansas (and Colorado, and Ohio, and Oklahoma) to have their “foreign” (i.e., out-of-state) marriages recognized at home. 

But here’s what’s more important: The Supreme Court is not the final arbiter of all things good and just (thank God!). Or even of all things political. If Kennedy loses his nerve, Congress can and will repeal DOMA—if not this term, then the next time the House, Senate, and presidency are all held by Democrats. And even if the Supreme Court issues a mean ruling on Perry—saying there's no fundamental right to marry and that California voters had every right to pass an amendment yanking equal marriage rights away—the Court will take it back in 15 years, when only ten Southern states are left banning recognition of same-sex marriages. The Court only took 17 years to overturn its ruling upholding sodomy laws in Bowers (which was a knife in the heart at the time, and pretty quickly became an international embarrassment). This one will come just as quickly, or even more so.

The Standing Issue on the Prop8 case

As well as hearing arguments on the Constitutionality of Prop8, the Supreme Court has asked to be briefed on the issue of "standing":  that is, whether the proponents of Prop8 have the right to appeal the decision, given the State's unwillingness to do so.

Some people think this may offer the court an "out" to avoid finding one way or the other on marriage. If the Prop8 supporters lack standing (since they can't demonstrate any actual harm to them caused by Prop8), the whole thing becomes rather messy, but remains limited to California.

From Linda Greenhouse at the NY TImes:

Standing has been an issue in the Proposition 8 case ever since the state of California decided not to appeal Federal District Judge Vaughn Walker’s 2010 ruling that the proposition was unconstitutional. The appeal to the United States Court of Appeals for the Ninth Circuit was carried on by a group of people who had worked to get the proposition adopted. The Ninth Circuit questioned whether this group had the requisite Article III standing, and asked the California Supreme Court to tell it whether under California law, a ballot measure’s proponents are regarded as properly standing in the state’s shoes if the state decides not to defend the measure. When the state court answered yes, the Ninth Circuit took the answer as sufficient and proceeded to decide the appeal, finding Proposition 8 unconstitutional. 

Whether standing under state law translates into standing for the purposes of Article III is a question that the United States Supreme Court has poked at but never resolved. Whether this is the right case in which to do so remains to be seen, but it was not particularly surprising for the court to raise the issue. In fact, in an era of direct democracy run amok, with voters being presented with extreme propositions that no rational state government would wish to embrace, a Supreme Court decision on who can carry the ball into federal court is probably overdue.

This was part of the appellate litigation for Prop8, so the existing attorneys have already briefed on this. 

Lyle Denniston at ScotusBlog tells us the court has identified an outside lawyer to argue the standing issue for the DOMA case.  The issue there is a little different than for Prop8, and I believe that it hasn't been part of the case previously, hence the outside lawyer.

David Cameron on Marriage Equality and Religious Freedom (video Sunday)

David Cameron, the Prime Minister of Great Britain, has made it official:  his government will pursue policies that make full-on marriage, not just civil partnerships, available to LGBT couples, AND will allow them to marry in Church that wants to do so.  Churches, of course, are free to refuse.  (The government gets to do this because there is a state-established Church in the countries of the UK).

Voices of Faith: The Christian case for marriage equality

Although the Right Wing likes to claim that "Christians" oppose marriage equality, that's actually not true.  Increasingly, many Christians (those not of the loud Evangelical variety) are strong supporters of civil marriage, and in many cases, religious marriage too.

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Voices of Faith

This recent Op-Ed from the LA Times makes the case:

According to the Pew Forum, a majority of mainline Protestants and Roman Catholics now favor legalizing same-sex marriage. So when our more conservative Christian kin claim that gay marriage is against God and against the Bible, we beg to differ. And since Christians are a "people of the Word," we look to the Bible to justify our thinking. That's essential to Christianity, although all too often we get it wrong, at least at first. 

....Most New Testament Greek scholars now point out that there are only three passages that deal with homosexuality in the New Testament — Romans 1:23-27, 1 Corinthians 6:9-10 and 1 Timothy 1:9-10 — and those passages don't deal with homosexuality as we define it today but rather with temple prostitution and other abuses. .....

Literalism, says LGBT activist and Episcopal priest Susan Russell, leads to using Bible passages as weapons. "Instead of taking the Bible literally," she says, "we should take it seriously, with deep faithfulness to the Old and New Testaments' core values of compassion, justice and peace." 

An ever-growing number of Christian clergy and lay people now believe that rejecting gay civil rights because of a literal adherence to certain verses directly contradicts these themes. They point out how these views are hurting all of the church, especially its most vulnerable members: young gay people who are convinced that their very essence is sinful. Furthermore, they can no longer support unjust laws that penalize committed same-sex couples and their families. 

That's why there were battles in MN between equality-minded Roman Catholics and their hierarchy.  We live in an era where the Episcopal Church now has a rite for blessing  same sex couples (many think full marriage is on the way church wide, although it is already happening in some Dioceses), the UCC, the Lutherans, Quakers, and others are also on this road.

CHRISTIANS do not oppose marriage equality.  And those who claim otherwise, are lying.

Regional variation in marriage support

From The Pew Forum: 

The South is where the country as a whole was 10 years ago.  And way behind New England.

Why we should wait

Jonathan Rauch argues for a minimalist finding, in a letter to SCOTUS:

Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.... 

In the California marriage case, you certainly don’t lack for options. You could give gay-marriage opponents a home run, foreclosing gay couples’ constitutional claim for decades to come—a tragic setback, from a gay point of view. You could give gay-marriage supporters a home run, as a California district court did. You could uphold the narrower opinion of the Ninth Circuit federal appeals court, which overturned California’s ban on gay marriage but would have no practical effect in other states. 

Or you could do something you hinted at in your decision to take the case, when you asked to be briefed on whether the parties have standing to sue. That is, you could rule that the case was improperly brought and isn’t ripe for any kind of ruling. Though the precise legal consequences would depend on how you wrote the fine print, the basic effect would be to defer the constitutional battle over gay marriage until a later day. 

That day will come. We can even guess when. In 1948, California’s supreme court overturned the state’s ban on interracial marriage. It took the U.S. Supreme Court 19 years to affirm and nationalize that ruling, and by then the decision wasn’t controversial. In 1993, Congress banned openly gay people from serving in the U.S. armed forces. It took the courts and Congress 17 years to repeal that ban, and by then the decision wasn’t controversial. You see the pattern. Massachusetts enacted gay marriage in 2004. If the past is prologue, by the early 2020s the country will have reached a consensus on same-sex marriage.

 I think there is no chance the court will find broadly. I have hopes for a narrow overturn of Prop8, but I have a bad feeling that it won't happen.

 I think that they will uphold Prop8 and knockout DOMA's clause 3, based on the same arguments:  the states' rights to determine marriage.

That's my bet.

Why the Supreme Court is unlikely to vote for equality

I am not happy the SCOTUS took the Prop8 case.  I fear that they will find that states are perfectly entitled to forbid equality (thus upholding Prop8) and we will be sentenced to a long, hard slog through the ballot box, even if they over turn Clause 3 of DOMA.  Here's why I think so:

From the NY Times:

In private correspondence in 1957, Justice Felix Frankfurter said the court was doing all it could to avoid hearing cases that would require giving the nation an answer about whether bans on interracial marriage — anti-miscegenation laws, in the parlance of the day — were constitutional. 

“We twice shunted it away,” Justice Frankfurter wrote to Judge Learned Hand, “and I pray we will be able to do it again without being too brazenly evasive.” 

Judge Hand responded that “I don’t see how you lads can duck it.” 

But Justice Frankfurter was unpersuaded. 

“I shall work, within the limits of judicial decency,” he wrote, “to put off decision on miscegenation as long as I can.” 

The Supreme Court did not strike down laws banning interracial marriage until 1967, inLoving v. Virginia, when 16 states still had them on the books. That was almost two decades after the California Supreme Court in 1948 struck down a law making illegal “all marriages of white persons with Negroes” in Perez v. Sharp. 

It has been just four years since the California Supreme Court, citing Perez, struck down two state laws limiting marriage to a man and a woman. 

“We are in the midst of a major social change,” Justice Carol A. Corrigan wrote in dissent. She said she supported allowing “our gay and lesbian neighbors” to marry. But she said change must come from the political process, not the courts. 

“Societies seldom make such changes smoothly,” Justice Corrigan wrote. “For some the process is frustratingly slow. For others it is jarringly fast.”

Why we'll win eventually

From the Pew Forum:

They have a great selection of interactive slides.  Also, here's the problem--and the promise:

A very long engagement: about Edie Windsor (Video Sunday)

Edie Windsor is the plaintiff in Windsor v. United States, which is the DOMA case that the Supreme Court has decided to hear.

This is her story.

More legal analysis

Two from Soctusblog, well worth reading.

Lyle Denniston considers the standing issue

But besides accepting for review the questions raised in those two petitions, going to some of the fundamental constitutional disputes over marriage laws, the Court — somewhat at the prompting of some of the parties — added questions to each case about its authority to rule. The added questions themselves are constitutional in nature: they arise under Article III, and its grant of power to the federal courts. But that is a power to decide only a “live” case or controversy, and that means there have to be two sides with the legal right to be in court before Article III can be satisfied.

Kenji Yoshino on how the Prop8 case could be "incremental"

DOMA represents an intrusion of federal law into the traditional state domain of family law. As the lower courts have pointed out through various formulations, invalidating DOMA would represent a triumph for state sovereignty as well as for gay rights. Justices on the right tend to favor state power (relative to federal power); Justices on the left tend to favor gay rights. The Justice in the middle—Justice Kennedy—has historically favored both. 

The second premise is that the Court will wish to proceed incrementally—that it will not, in one Term, strike down DOMA and flip the forty-one states that do not currently recognize same-sex marriage. Here, too, I agree. In 1967, when the Court decided Loving v. Virginia, it only had to invalidate the laws of sixteen states. In general, the Court does not like to get too far in front of national consensus. 

It might seem to follow from these two premises that the Court will split the baby between the cases. But the error lies in thinking that the Perry Court must require marriage in all fifty states or none. In fact, the Court can more narrowly invalidate Prop 8 in at least three ways.

Reading the Tea Leaves on Prop 8

Now that the Supremes have startled everyone by deciding to hear the Prop8 case, everyone is trying to parse the possible outcomes.  From the HuffPo:

Yet don't count on a game-changing decision too quickly. It's more likely that Olson and Boies' blockbuster will end with a whimper..... 

There might even be some surprising reluctance from the left wing of the Court. ....
Gay marriage is similar [to abortion]. There's a risk of backlash from a bold opinion and, if the Court stays its hand, the political process is clearly trending towards allowing gay and lesbian Americans to marry. ......

If the Supreme Court takes either tack -- turning back the challenge for procedural reasons or limiting its ruling to California -- it will still be a victory for gay rights, even if it is less than Olson and Boies were originally hoping for. If the justices say Proposition 8's backers weren't appropriate parties, the case would be returned to the lower courts to start over. California's attorney general and governor, however, are certain to refuse to defend the law, which would result in a default judgment in favor of Olson and Boies. Gay marriage would then be legal in California.

BREAKING: SCOTUS will hear both Prop8 and DOMA cases

Today the court granted cert to the Prop8 case, and to one of the DOMA cases (Windsor). Included in their questions is a request for arguments about whether the defenders of the status quo have standing to argue the cases.

I do not like this.  The cleanest result for us would be to deny cert for Prop8 and restore marriage equality to CA.  If they find against us, it is broadly possible they could find NO right to marriage in the US,  and that would be as bad as Bowers v. Hardwick.

The waiting, for those of us fighting Prop8, now continues.

From the Live blog at Scotusblog:

Prop. 8 is granted on the petition question -- whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.  

In Windsor, the government petition (12-307) is the one granted. In addition to the petition question -- whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.  

Trying to sort this all out, it is clear that the Court has agreed to consider the merits case in Prop. 8, because that is what the petition presented as its question, but that it is also going to address whether the proponents had a right to pursue their case. If the Court were to find that the proponents did not have Art. III standing, that is the end of the matter: there would be no review on the merits of Proposition 8, or of the 9th CA decision striking it down. 

Trying to sort out DOMA: The case has agreed to consider the merits issue of the constitutionality of DOMA Section 3, it has also given itself the option of not deciding that issue. If it finds that neither the Executive Branch could bring its appeal, and that BLAG lacked Art. III standing, then presumably both of those petitions would be denied. At that point, then, the Court might have to consider whether it wants to hear another DOMA case. But that probably would not be done in time for this term's close. 

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.   

Olson and Boies are on the other side of the Prop. 8 case. I assume their brief and oral argument will go heavily against standing for the Prop. 8 backers, but also will urge the SCt to affirm the 9th CA on the merits. Since the 9th CA decision is very different from Judge Walker's decision, I doubt that they will be asking the Court to rule as Judge Walker did. 

The key point, though, is that if they succeed in challenging the backers on the standing issue, the case is over: Prop. 8 is gone under the 9th CA decision, because there is no one to defend it. If there is no standing in Prop. 8, presumably that might lead to a ruling that the 9th CA decision has to be vacated. But then Judge Walker's decision would be the law of the case, because that was fully litigated with parties who clearly had standing. Prop. 8 backers would lose in an even bigger way.

Why it matters: Another weepy from Washington

From one of the soon-to-be-wed in Washington (go read his whole blog!)

For whatever reason, that was when I started crying for us. All of my tearing up, getting misty-eyed, and full-fledged crying earlier in the day had been for other people. This was the one where it finally hit me in the gut: the most wonderful man in the world has not only been living with me and putting up with me for nearly 15 years, and finally we’re going to be married. Not civilly united, or domestically partnered, or any of those other names, but married. 

Beautiful!

Living up to the founding ideals of our country

Marriage licenses are available now in Washington and Maryland.  Gay journalist and commentator Dan Savage, in Seattle, is himself applying for a license  registering his marriage ,which took place in Canada. The Stranger offers a heartwarming and inspiring set of pictures and profiles of the license-seekers and the history of the marriage equality movement in Washington State.

Just before 12:01 a.m. last night, as King County Executive Dow Constantine was preparing to personally issue some of Washington State's first same-sex marriage licenses, he took a few moments to recall how long gay couples have been coming into the King County Recorder's office and asking for them. .....

Constantine put it this way: "What we are doing today is living up to the founding ideals of this country."

Will Friday be the day?

The estimable Scotusblog (@scotusblog) tweets today,

#scotus is almost sure to act on same-sex marriage (#ssm) late this Friday afternoon so it can hear arguments this March.

The Supreme Court on Marriage: a history (video Sunday)