Federal Court finds Oklahoma amendment unconstitutional

First Utah, now....Oklahoma? From the decision: (my emphases)

The Court recognizes that moral disapproval often stems from deeply held religious convictions….However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.

There is no rational link between excluding same-sex couples from marriage and the goals of encouraging “responsible procreation” among the “naturally procreative” and/or steering the “naturally procreative” toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites. 

If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal. 

Same-sex couples are being subjected to a “naturally procreative” requirement to which no other Oklahoma citizens are subjected, including the infertile,the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it 

Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the“ideal” child-rearing environment). 

Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, asOklahoma consistently has one of the highest divorce rates in the country. 

With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. “‘Preserving the traditional institution of marriage,’”which is the gist of Smith’s final asserted justification, “is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.

Utah can't make up its mind

From the NY Times, a review of the shifting, incoherent arguments that Utah is trying to oppose marriage equality:

The state’s first argument, made before Judge Robert J. Shelby of the Federal District Court in Salt Lake City, was that “the traditional definition of marriage reinforces responsible procreation.” ... 

Judge Shelby agreed, saying the argument was true as far as it went. Encouraging marriage would make it more likely that the children of heterosexual couples would have parents who were married. 

But there was no reason, the judge went on, to think that allowing same-sex couples to marry would change that. To the contrary. By forbidding gay and lesbian couples from marrying, he wrote, “the state reinforces a norm that sexual activity may take place outside of marriage.”

Hmmm, not so effective.  So, they cited discredited studies to argue that children "do better" with opposite sex parents.  When the lawyers on the equality side pointed out that every national health care organization involved in the welfare of children disagrees,

Utah responded that it would not be swayed by “politically correct trade associations,” referring to, among others, the American Academy of Pediatrics, the American Medical Association and the American Psychiatric Association. “We are not ruled by experts,” the state’s brief said.

Okay then.  

Still not giving up on children,

“By holding up and encouraging man-woman unions as the ‘preferred’ arrangement in which to raise children,” the state said, “the state can increase the likelihood that any given child will in fact be raised in such an arrangement.” 

Judge Shelby had rejected the argument as illogical and counterproductive. Utah’s ban on same-sex marriage, he wrote, “does not make it any more likely that children will be raised by opposite-sex couples.” But it certainly demeans and humiliates the thousands of children being raised by same-sex couples in the state, he said.

Now, another shift:

“The state does not contend that the individual parents in same-sex couples are somehow ‘inferior’ as parents to the individual parents who are involved in married, mother-father parenting,” the state said. 

But, drawing on Supreme Court decisions endorsing the value of diversity in deciding who may attend public universities, the state now said it was pursuing “gender diversity” in marriages. “Society has long recognized that diversity in education brings a host of benefits to students,” the brief said. “If that is true in education, why not in parenting?” 

Is it just me that finds this completely illogical?

The problem they all have is that no marriage equality statute has anything to do with raising children.

First of all, there is no requirement for fecundity in marriage.  We have already decoupled child bearing and marrying.

Second, lots of gay couples already have children.  And they aren't going to stop having children just because they are denied marriage.

Third, gay people aren't suddenly going to go steal children of unsuspecting straights just because they get a marriage license.

As we saw in the Prop8 case, there are really no good arguments that the opponents of equality can make that don't involve their own view of religion.

How marriage equality opposes unequal relationships

Interesting article from the Financial TImes argues that commitment to equal relationships (which is the basis of marriage equality) is actually providing a force against unequal or exploitative relationships-- read the whole thing!

Paedophilia had thrived largely unchallenged for millennia – indeed, for much of history girls married at about age 13. But with the equal relationship as new ideal, paedophilia has become indisputably taboo. ...

Another unequal relationship, prostitution, is in trouble too. ...

Even unequal marriages are under attack. Once upon a time, when a rich older man married a young woman, they might both have expected congratulations from friends. Now they can expect mockery.

The article also cites data saying that many more people disapprove of adultery now than did  40 years ago.  They argue that a "wink wink nudge nudge" in the days of unequal marriages tacitly approved of men seeking discrete sex outside marriage, but now, the legacy of the 60s is that equal partners deserve equal commitment.

This agrees with the writings by marriage scholar Stephanie Coontz that the real "redefinition" of marriage came when we de-genderized unequal relationships and made husbands and wives equal (see our discussions of her research here and here).

So, marriage equality is a force for GOOD.

joseph and the amazing marriage proposal (video Sunday)

Utah Marriages will be federally recognized

Even if Utah won't recognize them, the Fed will (considering that they were legally entered into at the time).  From Equality on Trial quoting Atty General Eric Holder:

In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds,” Holder says. 

In the coming weeks, Holder pledges to coordinate with other branches of the federal government to ensure federal benefits are flowing to same-sex couples who wed in Utah.

Utah governor attempts to stuff marriages back in the bottle

From the NY Times:

The fortunes of 1,300 newlywed same-sex couples in Utah were thrown into turmoil on Wednesday after the governor’s office announced that it would not recognize their marriages while it presses its legal efforts to limit marriages to one man and one woman... 

Utah is now treading onto relatively untested legal ground. In 2004, the California Supreme Court voided 4,000 same-sex marriages that had been granted in San Francisco that year, saying that the unions were prohibited under state law. 

But four years later, the same court struck down those restrictions as unconstitutional. Thousands of gay Californians were then able to wed before state voters approved Proposition 8, which limited marriage to opposite-sex partners. The same-sex couples who had previously exchanged vows retained their rights....

The state’s decision also does not invalidate any same-sex marriages. Instead, said Mr. Miller, the chief of staff, it effectively suspends them in place, freezing benefit applications or other petitions for legal protections.

Naturally, the only ones who will benefit will be the lawyers:

The American Civil Liberties Union of Utah announced Thursday that it is planning litigation against the state of Utah for putting recognition of same-sex marriages on hold after theSupreme Court issued a temporary stay. 

The ACLU called for plaintiffs on Wednesday, and got "overwhelming interest" from couples who were married before the stay was granted.

"We have a great pool and we are working through that, and plan to bring litigation that will protect all marriages, whether the couples are named plaintiffs or not," the ACLU said in a statement.....= 

While Utah put recognition of same-sex marriages "on hold," its decision to do so did not invalidate marriage licenses already issued to gay couples. 

Reyes clarified this distinction to Fox 13 News Salt Lake City. 

"I want to be clear that we are not saying those marriages are invalid," he said. "However, as a state we cannot recognize those marriages."

Marriages stayed in Utah

THe SCOTUS has issued a stay, pending appeal to the 10th circuit.  

How Utah's AG allowed marriages to take place (video)

Why are same sex couples able to get married in Utah?  By comparison, when Judge Vaughn Walker in the 9th circuit found that Prop8 was unconstitutional, he immediately stayed his decision.  That's because the guys on the other side filed pre-emptively for a stay pending appeal.

Seems that Utah's AG's office is in a bit of a mess, and they....forgot to do that.

Rachel maddow:

Video Sunday : Straight, Mormon, Equaltiy supporter

As the new year begins...

The Forces of Hate are having a conniption that two men are marrying on a float in the Rose Parade.

Utah is planning to appeal to the Supreme Court, and is asking as a stay of marriages to protect gay people's dignity.  Aw, they like us... not.

Oh, and they are advertisting to find counsel who can handle the appeal.

Happy New year!

Here's to equality in 2014!

What's happening in Utah (video Sunday)

A little Broadway Christmas -- SFGMC

Merry Christmas everybody!

From the San Francisco Gay Men's Chorus:

The Rabbi tells it like it is (voices of faith)

Click image for more
Voices of Faith

Rabbi Shmuley Boteach: (my emphasis)

I am an orthodox Rabbi, and I freely acknowledge that the Bible clearly labels homosexuality a sin. However, it is not a moral sin but rather akin to the prohibition of lighting fire on the Sabbath or eating bread on Passover. It may violate the divine will, but there is nothing immoral about it....

Judaism, I feel, has a very healthy approach to homosexuality. It’s this simple. There are 613 commandments in the Torah. One is a prohibition on homosexual relations. Another is an obligation to have children. I tell gay couples all the time. “You have 611 commandments left to you. That should keep you busy. Now, go give charity, honor the Sabbath, put a mezuzah on your door, keep a kosher home, and pray to God three times a day for you are his beloved children and He seeks you out.”
.....
Faith-based opposition to homosexuality as a religious sin is understandable, just as religious opposition to eating on Yom Kippur is understandable. But all this other stuff—it is immoral, doesn’t lead to procreation, is part of a promiscuous lifestyle—seems more relevant to the revolting and growing culture of drunken hookups, particularly on the American campus, where women are treated by men as little more than fleshy masturbatory material. Yet we almost never hear religious leaders decrying the promiscuity of the heterosexual club culture with anything near the intensity with which they attack gays. Indeed, the strangest thing about traditional people attacking gay marriage is that the only men left in America who seem eager to marry are gay. While homosexuals petition the U.S. Supreme Court for the right to marry, straight guys are living with their girlfriends for half a millennium and still struggle to commit.

As an orthodox Rabbi, I am not pro-gay marriage. I feel the best solution to the same-sex marriage debate is simple: marriage for none, civil unions for all. Let our government withdraw fully from the marriage business, opting instead to grant civil unions to the couples who seek them, be they straight or gay. This is simply a question of equal rights for government matters like tax and inheritance benefits and end-of-life decisions. But marriage, a religious institution, should be consecrated by priests and clergymen as dictated by their conscience.

By ending the gay marriage debate once and for all, we might even address the real values corrosion in America, such as the 50 percent divorce rate, the lack of a national year of service and the death of family dinners. But obsessing over gays guarantees that we’ll forever duck America’s problems. Just because it walks like a duck, sounds like a duck and quacks like a duck doesn’t always mean it’s a duck. And just because religious people blame gays for the moral decline of marriage doesn’t mean that we straight people haven’t done a mighty fine job of ruining the family ourselves.

Thea and Edie.... family photos (video Sunday)

Thea Spyer and Edie Windsor had.... have.... a great love story.  And Edie lives life fully, in love and remembrance of Thea.

Marriagei n UTAH?

Unexpectedly, a federal district judge has rule in favor of equality in Utah. From the decision:

Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.

Remarkably, he didn't stay the decision, so couples have rushed out to get married.

The Governor is not happy.  Nor is the Mormon church.

An appeal has been filed, and a request for a stay is expected. Whether the marriages will remain intact or be annulled?  well....we pre-Prop8 couples have been there, done that.  Ours were "grandfathered in" after Prop H8.  Good luck, brothers and sisters!

UTAH?

Update:  excellent analysis from Think PRogress here.

Equality in New Mexico! Merry Christmas!

From the Albuquerque Journal:

The New Mexico Supreme Court on Thursday ruled in favor of same-sex couples, granting them all the same rights of marriage enjoyed by heterosexual couples. 

The court’s 31-page ruling states, in part, that: “All rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.”

From the opinion:

Although this question arouse sincerely-felt religious beliefs both in favor and against same-gender marriages, our analysis does not and cannot depend on religious doctrine without violating the Constitution....

Procreation is not the overriding purpose of the New Mexico marriage laws. The purpose of the New Mexico marriage laws is to bring stability and order to the legal relationships of committed couples by defining their rights and responsibilities as to one another, their property, and their children, if they choose to have children....

We fail to see how depriving committed same-gender couples, who want to marry and raise families, of federal and state marital benefits and protections will result in responsible child-rearing by heterosexual married couples. ...

Excluding same-gender couples from civil marriage prevents children of same-gender couples from enjoying the security that flows from the rights, protections, and responsibilities that accompany civil marriage. There is no substantial relationship between New Mexico's marriage laws and the purported governmental interest of responsible child-rearing. There is nothing rational about a law that penalizes children by depriving them of state and federal benefits because the government disapproves of their parents' sexual orientation.

60 years: a love story (Why it Matters)

From Oregon Public Broadcasting:

This is the story of an Oregon couple. They married in Washington after more than 60 years together but were racing against the clock.
....
But one couple that made the rainy trek is trying to meet a different kind of deadline. 

Eric Marcoux and Eugene Woodworth have been together since they the day they met in Chicago in 1953. 

“I am here today to be legally married to Eugene Woodworth, with whom I have had an intimate deeply committed relationship for a little over sixty years,” Marcoux says.
Marcoux is 83 years old and Woodworth is 85. 

They can’t marry in Oregon, where a constitutional amendment outlaws same-sex marriage. When same-sex marriage was legalized in Washington last year, they didn’t rush across the state line to get married. 

“No, no, no….” says Woodworth.

“We wanted to have it in Oregon,” Marcoux explains. 

But Woodworth has been diagnosed with congestive heart failure, and he’s been given weeks to live. They’re getting married today with the hope that Marcoux might be eligible to receive social security benefits as the surviving spouse.
....
The couple say today’s ceremony is merely a formality. But Woodworth chokes up as his partner slips the ring on his finger. 

“And now by the power vested in me by the state of Washington, I declare you to be legally married. And you may kiss,” the judge finishes the ceremony. 

“We met sixty years ago and this is the first legal thing. It’s such a pity we had to wait that long, ” Woodworth tells the judge. 

After the ceremony ends, the two make their way out to their car for the 20-minute drive home to Oregon.

“We made it. Wonderful we made it,” Marcoux says closing the door.

Polygamy case is about religious freedom

A follow up on our previous discussion about the recent court decision in Utah. From The HuffPo first, de-coupling polygamy and same sex marriage:

Gay rights however do not inexorably lead to the legalization of polygamy. While the ability to choose one's sexual partners is an important element of constitutionally protected privacy, the government may have stronger reasons to ban polygamy than gay sexual or marital relationships. Polygamy has long been associated with unique harms: the repression of women; underage girls too young to consent forced into ma rriage; the severe displacement of young men in geographically concentrated communities. Gay rights don't pose any of these problems. Rather, they are about the very opposite: reducing the oppression of minorities, allowing adults to engage in consensual sexual activity, and minimizing the social and psychological displacement caused by anti-gay discrimination....

And next, explaining how this is really about religious freedom. You remember religious freedom, don't you? (my emphasis)

What's unconstitutional is Utah's ban on a married person cohabiting with another, and here's why. First, the court says the law impinges on religious freedom by targeting only religious people for prosecution. Adulterers sometimes cohabit -- that is, live as a spouse with someone else -- but the state admitted to only going after Mormon cohabiters. As a result, the judge ruled, Utah's law was in practice discriminatory. Second, the court said that this distinct treatment of cohabiters was irrational. If a married person cohabiting with another is a threat to society, then why target only religiously motivated people? Utah, by only restricting in practice some cohabitation by married people, violates the baseline requirement of the Constitution that every law must further some rational government policy.

No, the Utah decision has nothing to do with civil marriage

In Utah, as in other states, it is illegal to seek a marriage license when you are already married to someone else.  THat is, no civil poly-marriage.

However, in Utah, they also criminalize people who cohabit for religious reasons.  That is, even if you aren't seeking civil marriage, if you simply live in a polygamous situation, you are breaking the law.  But only if you are doing it for religious reasons.

You know what?  As long as your sexual expression is private and consensual, the state has no business criminalizing it.

And that's all the judge found.

From Think Progress:

The Utah case involved a suit filed by Kody Brown and his wives, Meri, Janelle, Christine, and Robyn, who are featured on the TLC documentary show Sister Wives. They argued that Utah’s anti-polygamy laws infringed upon their Mormon religious practice and their privacy, and District Court Judge Clark Waddoups, a George W. Bush appointee, agreed. But Waddoups’ decision leaves in place that it is illegal in Utah to be legally married to more than one person at the same time, which begs the question of what exactly he actually overturned.

Utah’s laws go far beyond limiting an individual to only one marriage license. As Waddoups recounted in his decision, the statute also prohibits “cohabitation,” referring to any situation in which a married person “purports to marry another person or cohabits with another person.” Even though Kody Brown only has a marriage license with one of his wives, the fact that he has a living arrangement that includes other individuals he refers to as wives — deemed “religious cohabitation” in the Mormon context of multiple marriages — was thus a violation of the law. Indeed, the law seems to punish those who claim multiple marriages even if those marriages exist only in a religious — not civil — context. This, Waddoups ruled, was not only an intrusion into their religious beliefs, but also a violation of their right to private consensual sexual behavior as guaranteed by the Supreme Court in the 2003 decision Lawrence v. Texas, which overturned the country’s so-called “sodomy laws” criminalizing same-sex relations.

Not about marriage.  Simply about religious freedom and privacy.