Today the California Court of Appeal is hearing arguments on why its opposite-sex only rule for marriage is unconstitutional. Arguments are being proposed that it is discriminatory to limit the marriage rights of gay persons to the opposite sex. However, one compelling argument seems to me to be ignored.
Anti-gay activists sometimes smugly claim that gay people can marry, they just have to pick someone from the opposite sex. This isn’t actually true. A marriage by a gay man to a woman is often considered legally to be fraud.
Author Terry McMillan in her recent divorce from Jonathan Plummer claimed that because Jonathan was gay that his marriage to her was fraudulent (this was the love story that became the basis for How Stella Got Her Groove Back). Jonathan countered by claiming that at age 20, living in Jamaica, he didn’t know he was gay. Ultimately, he got little-to-nothing from multi-millionairre McMillan in the divorce.
Or consider the likelihood of the immigration service accepting as valid the naturalization of a foreign born woman married to a gay man. Although it makes a great film (Ang Lee’s Wedding Banquet, for example), she would be deported and he would be arrested.
Even stepping outside of legal issues, generally society considers the spouse of a gay person to be a victim of fraud and deception. Also, (if my understanding is correct) marriage to a gay person is a legitimate reason for the granting of an annulment by the Catholic Church.
The laws restricting gay marriage is not an equally applied limitation to all people that they marry only the opposite sex, but rather it is an unequal rule that states that no gay person may marry anyone at all.
This is, no doubt, one of the reasons that the religious right has latched onto the ex-gay movement. As long as they can claim that gay people can become ex-gay and thus enter a valid marriage with the opposite sex, they can continue their campaign to deny gay rights while simultaneously claiming consistency.
(correction 11/10)
Enjoyed your post, and it’s a great argument. One factual correction, however. This case is not currently before the California Supreme Court, but rather the California Court of Appeal (the preliminary step between the trial court and the Supreme Court). Both sides asked the Supreme Court to take it up directly from the trial court (an unusual tactic), but the Supreme Court declined.
Does anyone have any updates about the status of the signature gathering campaigns to outlaw gay marriage and domestic partnerships in California? At least one or two of the proposed amendments has a deadline for next month.
Great post, Timothy!
Where does Lisa Minnelli live again?(I’m tempted to say “from New York to L.A.” — but Patsy Gallant would never forgive me).Thank heavens for “no fault” divorce laws, no more to hear those incriminating, devastating, judge shocking words…
Unless, of course, you took an Exodus graduate at his word.(Free-falling lady Exodus graduates don’t count. That just adds a bonus to the marriage, from his straight guy perspective, provided he can sit in a chair in the corner.)More seriously, would you mind keeping an eye on this Timothy — the CA Court that is — and bringing us all up to date if and when all hell breaks loose 🙂
Well, I think we all know what the ex-gay response would be to your argument, Timothy, but that’s an interesting angle.
I have believed for a long time, though (and I think a lot of people on exgaywatch feel this way) that all this business about “Is same-sex attraction a choice? Is it reversible?” is a road to nowhere.
To my mind, that’s not the point. The point is that banning my same-sex marriage serves no public interest. That’s because my same-sex marriage isn’t hurting anybody. It’s not infringing on anyone else’s civil rights.
Now, the point has been made on this board before (and I can understand and respect the point) that this more libertarian way of addressing the issue of same-sex marriage doesn’t meet with as much sympathy from the general public as the “I’m born gay, so I deserve equal protection.” argument.
I think, though, that that approach will ultimately prove too narrow, too limited, because the war against same-sex marriage is part of a much larger war, a war against science, against reason, against thought, a war whose ultimate objective is the wholesale elimination of human liberty.
Re: I’m born gay, so I deserve equal protection.” argument. I think, though, that that approach will ultimately prove too narrow, too limited, because…”
I think the approach isn’t necessarily too narrow. It might just be narrow enough. These decisions aren’t decided by the people on either extreme. They’re decided according to how people in the middle shift from one side to the other. I have found that many people buy the “I’m born gay” argument at face value, and after I’ve talked to them and they’ve gotten to know me, over time, many have come around to at least acknowledging the argument of “so I deserve equal protection,” which is step 1.
Civil rights didn’t come about for African Americans because racists caved in. They came about because those in the center started to understand the necessity for civil rights. Racists have never seen the light, and neither will homophobes. Fortunately, we don’t have to convince homophobes that they’re wrong. We have to convince the center, which in the long run, marginalizes the extremes.
But on the other hand, the “I’m born this way” argument carries the implicit assumption that obviously, if one could choose to change then one should, and therefore that homosexuality is not intrinsically desirable if there is any possibility of an alternative.
“This case is not currently before the California Supreme Court, but rather the California Court of Appeal”
Thanks… corrected above.
“But on the other hand, the ‘I’m born this way’ argument carries the implicit assumption that obviously, if one could choose to change then one should, and therefore that homosexuality is not intrinsically desirable if there is any possibility of an alternative.”
Well no, it doesn’t. I can say that I was born with blue eyes. Am I thereby implying that, if I could change the colour of my eyes, then I either should or would – or that having blue eyes is not intrinsically desirable? Like hell I am. It’s just a simple statement of fact.
If the argument is that homosexuals should have equal rights because we were born gay, then yes, I’d say the implicit assumption is there.
Justice can be carried out in the true spirit of doing what’s right, or one can simply go through the motions. The argument that people with same sex attraction have the same right as everyone else to marry someone of the opposite sex is a case of simply going through the motions of justice.
We often hear of someone charged with a crime “getting off on a technicality” and understand this means the true spirit of doing what is right wasn’t served. Same thing for this argument. That everyone has the equal right to an opposite sex marriage is equality in a trivial technical way and not in the true spirit of justice which requires an acknowledgement that that kind of equality is irrelevant – gays do not have the equal right to marry the one they are most attracted to, while heterosexuals do have that right. Religious fundamentalists expect us to be content with a sarcastic technical equality in place of the substantive equality of freedom to choose the gender one wishes to marry. The government should not be deciding for anyone which gender they can marry – that is sex discrimination.
Let me clarify. I’m not saying that the “born gay/equal protection” approach to the marriage equality issue is in any way illogical. I’m saying I think it’s maybe not the best approach because it’s addressing a relatively small part of a bigger issue.
In my mind the bigger issue is that my government has no business passing and enforcing laws that serve no public interest, whether it’s a law prohibiting same-sex marriage or a law requiring the teaching of “Intelligent Design” in the public schools.
To say gays have the same right as everyone else to an opposite sex marriage is the same as saying its okay to eliminate the Republican party from the next election – everyone will have the equal right to vote Democrat. Would the fundamentalists accept that as fair equality?
I agree with kurt t. Although most evidence leans towards us being born this way, Born gay/equal protection doesn’t work politically until there is perfect proof we are born gay.
The idea that GLBTs having the same right to opposite sex marriage as everyone else is fractional equality in place of substantive equality. I believe the 9th ammendment in your constitution confirms the equality text the document begins with (not a coincidence) refers to substantive equality for all. That means the right to marry the one you’re most attracted to, not this joke of an idea that discriminating man/woman marriage is fair.
The argument shouldn’t be about biology at all. I don’t need science to tell me I’m gay, that fact is self evident. If someone else needs scientific proof then that is their problem.
The argument should be that even if you do not believe that same-sex marriage should be legal, there are dangerous consequences to not opposing tyranny. Once they restrict the rights of one group it won’t be long until they start to assult the rights of others.
JayJay at November 11, 2005 03:14 AM
Do a google search on Niemoeller. He was indeed an inmate in Nazi concentration camps, but it is not necessarily clear that he was opposed to Hitler on political grounds.
I think you’re the first person I’ve ever seen get that quotation right, JayJay. Congratulations.
You know what, though? I think you got the attribution wrong. I believe it originated with Reinhold Niebuhr.
In the CA appeals court, Judge Kramer studied SEVERAL marriage precedents to reach his conclusion on the ban for gay couples.
No marriages were made especially greater or lesser because of the orienation (heterosexual) of opposite sex couples. Or affected by the marriage of gay couples.
When it came to the well being of children. Heterosexuals carry no special talent for that, nor is there a requirement that anyone intend to have children to marry.
He was working through cases already decided. Even that of INCARCERATED persons and their choice to marry.
It can be assumed that an incarcerated person has limits to what responsibilities they can take in a marriage. This is also true of the severely physically handicapped.
It’s also true, he concluded, that the TRADITION of the man/woman model isn’t selective and the state’s interest can include gay persons, because the STATE has no interest necessary to ban gay couples from marrying.
A TRADITION, doesn’t represent state’s interests, and gay couples are SHARING the values within those interests, not advocating for any other rules outside of those already set and legally accepted by the state.
He ruled that the marriage ban was indeed un Constitutional.
He’s a conservative Catholic, married with children.
Of course, those opposed to marriage labeled him an ‘activist judge’ deciding outside of his legal privilege from the bench.
This is untrue of course. He was following the law and applying it in the terms set in the CA constitution.
I have to wonder-Prop. 187 which limited public services to illegal aliens was overturned as unConstitutional before it was barely implimented.
But Prop. 22 which banned gay couples from marrying is still holding after five years.
Once again, gay citizens have less Constitutional protections than people who aren’t citizens at all.
But are recognized simply as human beings with needs and responsibilities.
Kramer was right of course about the marriage ban. But he sure seemed like a lone voice in a vast wilderness.
raj,
Most of the background info I could find about MN, idicates that he started out as a supporter of the Nazi party. But as time went on and he saw the injustices, he became an outspoken critic of Hitler and the Nazi party, whick led to his arrest. He was subsequently Acquitted on the charge of “underhanded attacks against the State”, he was convicted of “abuse of the pulpit” and for taking collections. Sentenced to seven months imprisonment, he was released for having already served that time awaiting trial.
As he left the courtroom, Hitler had him placed in “protective custody” and held him in Sachsenhausen and Dachau concentration camps from 1937 to 1945.
He also held several rallies denouncing Hitler and the Nazi party.
Sorry, I was unable to find any sources that attribute this poem to Reinhold Niebuhr. All attribute it to Marin Niemoeller.
“Once again, gay citizens have less Constitutional protections than people who aren’t citizens at all.”
Regan… I hadn’t even thought of that. THANK YOU
An interesting argument to make to fundies is to say, “Hey, if we allow same-sex marriage, then you could marry someone of the same sex!” They’d reply, “But I don’t want to!” To which I’d reply, “And guess what — I don’t want to marry someone of the opposite sex.”
Another way is this. When somebody tells me that I can marry a woman just like any straight guy, I counter with, “Would it be okay if I marry your daughter?”
People magazine has so far done spreads on the marriages of Mary Kay LeTourneu to her former sex crime victim, with whom she had two kids.
The last issue featured the WEDDING of Eric Menendez, notorious with his brother Lyle for the shotgun killings of their parents and serving a life sentence for the crime. Lyle regretted not being able to attend the nuptials.
Ellen de Generes and her beautiful girlfriend Portia di Rossi would like to marry.
The idea that these good and successful women cannot marry makes me want to throw up my hands.
The marriages of the aforementioned reprobates just makes me want to throw up.
There is just something, so, so, so wrong with this picture that is not at all representative of the creed “endowed with certain inalienable rights”.
“Sorry, I was unable to find any sources that attribute this poem to Reinhold Niebuhr. All attribute it to Marin Niemoeller.”
You’re absolutely right, JayJay. Sorry. I think I misread this article (which also mentions Niebuhr) about the famous quotation.
I always wondered why no two people ever give you the same version of Niemoller’s words. Now I know. Apparenlty, he never wrote them down.
Regan,
Here is a version that appears in the Congressional Record, from 10/14/1968, page 31636:
Leave it to congress to totally f**k it up!
Correction:
Kurt, Here is a version…
Jim, that last question you posed.
Checkmate!