The Federalist Phoenix

Gay Marriage by Legislative Act?

The California Senate has approved a bill to legalize gay marriage in the state.  While I commend the members of the California Senate for their decision to take up this issue, to debate it, and to give it their approval, I can't help but wonder why California continues to be the great battleground for this cause, or why the legislature has opted to make this statement.

First, the State Assembly has previously rejected bills for gay marriage, meaning that this latest attempt may well go nowhere.

Second, there is presently a state court case moving to the California high court dealing with definitions placed into California law through voter-approved ballot measures.

Third, that ballot measure seems to stack the deck against the measure.  In 2000, Californians, by a 61%-39% margin approved an initiative ballot measure that defined marriage as between members of the opposite sex.  Under the California Constitution (as I read it), a measure raised and approved by initiative cannot be unilaterally amended by the Legislature - any law amending the initiative must be approved by the state's voters.  A mere 5 years since the original vote, it seems unlikely that the electorate's opinion will have so greatly shifted as to give this amendment a chance to succeed.

***UPDATE - 9/18/2005: I'm glad Gov. Schwarzenegger has decided to veto this legislation and respect the will of the people in voting for the prior initiative.  There is still too much going on in California on this topic for this to be a good idea.  The courts have not completed their work as to the 2000 initiative and its meaning.  Once that decision comes down it may be appropriate to put the issue on the ballot again and see what the voters think about the issue.  With extensive Domestic Partnership benefits in California, it is not clear why "marriage" is so urgent.

It remains a mystery to me why marriage continues to be the great crusade of the gay Left.  Many gay and lesbian Americans could care less about having the right to marry - they do not wish to get married, or are not in a position to get married (people without any significant relationship that could become a marriage).  Yet in many places in the country, gays and lesbians still lack some much more basic rights - they live in the midst of extreme intolerance that makes it difficult for them to safely live an open existence in their workplaces and communities.  Gays and lesbians remain anathema in the military services in this country.  We have so many more important things to expend our energy on.

Even were this not the case - even if marriage were the only issue left to be addressed, the single-minded insistence on the term "marriage" is wholly pointless and counter-productive.  Civil Unions, now the law in Connecticut and Vermont, provide all the same rights and responsibilities as a marriage - and have proven to be infinitely more acceptable to many members of the population - a population that has expressed its opposition to gay marriage in poll after poll.  Yet, activists continue to insanely, and to my mind, unreasonably, scream "separate but equal" and other such garbage at the idea of accepting something that isn't called marriage.  What this proves to me is that the gay Left is more interested in the issue than in truly helping the gay and lesbian families that they claim to be representing.

Read more below...........

Why I Am Against (and For) a Federal Marriage Amendment

First, in the interest of full disclosure, for those that have not read the "About Me" page, I am gay.  But my displeasure with the Amendment is not based even mostly on that.

Second, I note that, while many talk about The Federal Marriage Amendment, there are, proposed in Congress, at least 3 amendments pertaining to the marriage issue.  In the 108th Congress, there were 4 such amendment proposals.  So talking about the FMA is silly.  However, for purposes of this short discussion I will take as the amendment, the one proposed in the Senate by Wayne Allard, which has received a good deal of the public attention.  It reads:

Article--

  `SECTION 1. This article may be cited as the 'Marriage Protection Amendment'.

  `SECTION 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.'

Now, my great displeasure with this wording stems primarily from the fact that it flagrantly turns its back on even the basic pretense of federalism and opts instead to dictate to the states what is and is not allowable.  I cannot abide that.

Read on for my thoughts, and for my own proposed FMA............

 

Oregon House Speaker Flunks Out

After the Oregon State Senate passed a bill allowing same-sex civil unions, the Oregon House has gutted the bill.  However, that's not the point of this post.  This post is about the failure of House Speaker Karen Minnis (R-Wood Creek) to "play fair."  After the Senate's passage of the bill (with some Republican support) Minnis declared that she would not permit the Republican-controlled House to vote on it.  I wonder what Speaker Minnis was afraid of.  The only reason to exercise this kind of authority is for fear that the majority of members support the bill.  And if that's the case, why should a single individual be able to kill the bill?  The other possibility is that Minnis sought to protect her caucus from having to go on record against the bill.  But if members of the House are not willing to go on record with a no vote, then they have not earned their seats - and are not performing the public's business.

Karen Minnis should suck it up and let the members go on record concerning this bill so that their constituents can judge them at the next election.  Anything less is undemocratic.

Oregon to Join Connecticut?

The Oregon State Senate has passed a bill to recognize civil unions in that state.  The vote was 19-11, with 17 of 18 Democrats joined by 2 of 12 Republicans in favor.  The bill moves to the House, in which the Republicans have a 33-27 majority.  Governor Kulongoski favors the bill and would likely sign it.  Oregon would be the second state to voluntarily pass civil unions (Connecticut Governor Jodi Rell signed a civil unions law earlier this year).

Oregon voters passed, by initiative, a state constitutional amendment that defined marriage as a union between one man and one woman and limited marriage recognition to such marriages.  That measure passed with 57% of the vote.  Proponents of that amendment claim that civil unions are simply marriage by another name.  I would suspect that should a civil unions bill pass the House and be signed you can count on lawsuits challenging the law under the Marriage Amendment.

D.C. Office of LGBT Affairs

Though Mayor Williams has created an office for the LGBT Community, the D.C. Council is currently discussing the statutory establishment of such an office with cabinet-level status.  The bill (B16-0235) also provides a 25-member Advisory Council that would advise the City Council, the Director of the Office, and the Mayor.  The "rules" for membership on this Advisory body are extremely loose, and provide only vague guidance about making it representative of the various elements of "the community."

More below the fold......

California Keeps Domestic Partnership

A story I haven't seen commented on elsewhere:  The California Supreme Court (Janice Rogers Brown not voting) decided on Thursday, not to review lower court decisions on the state's domestic partnership law.  That law provides a number of marriage-like benefits to registered same-sex couples, though it does fall short of providing all the rights and responsibilities associated with marriage.

After the Legislature passed the law, and Gray Davis signed it, several "pro-family" groups challenged the law as inconsistent with a popularly passed initiative that prohibits gay marriage in California.  The lower courts disagreed, upholding the law as not not conflicting with 2000's Proposition 22.  The decisions have found that there is a difference between "marriage" and "domestic partnership" and that Prop 22 only deals with marriage.

From my standpoint, this was the right decision.  There is nothing inconsistent between a ban on marriage and a lesser status that has some overlap with it.  To say that they are effectively the same thing is akin to saying that First Degree Murder is effectively the same as Second Degree Manslaughter.  Yeah, both crimes involve the death of another person - but there are significant differences between them. 

Secondly, the Court has effectively said that this is a legislative issue - which is what conservatives like Randall Terry demand that it be in the face of liberal suits seeking to require same-sex marriage.  If Mr. Terry and the other anti-gay marriage groups would like to change the law, they should go about getting like-minded individuals elected to seats in Sacramento.  Opponents of gay marriage need to practice what they preach and win their battles in the political sphere, just as they demand gay activists do.

California is one of only 5 states that has a law that expressly extends all or some "marital benefits" to same-sex couples.  Massachusetts currently recognizes marriages between same-sex couples as a result of the Supreme Judicial Court's order in 2003 (though there is an effort to amend the state constitution to overturn that decision); Vermont and Connecticut have both passed Civil Unions, providing all the rights and responsibilities of marriage to same-sex couples without using the M-word; New Jersey also has a domestic partnership law that provides very limited protections to same-sex couples.