The District Court and Circuit Court of Appeals have thrice now rejected the contentions of Prop 8 supporters. They will hope to fare better before the conservative-leaning US Supreme Court. (I better start taking mountainous quantities of Xanax now to adequately sedate me in anticipation of the colourful denunciations of Supreme Court Judge Antonin Scalia.)

However proponents of marriage equality in California can also be optimistic because today’s ruling comes hot on the heels of President Obama’s recent pronouncement in support of same-sex marriage, and another circuit appeals’ court’s ruling that the federal Defence of Marriage Act (DoMA) was unconstitutional. The US 1st Circuit Court of Appeals in Boston last week ruled that DoMA’s federal prohibition of benefits to same-sex couples in a state (Massachusetts) where gay marriage was legal was unconstitutional.

It’s likely that both the Prop 8 and DoMA cases will be contested all the way to the US Supreme Court, which would put two marriage equality cases on the court’s docket during its next term.

Prop 8 now remains in limbo for 90 days pending an appeal to the US Supreme Court. This means that same-sex marriages in California are still suspended for this period. The US Supreme Court may then accept or decline to hear the case. Should it decline, Prop 8 is no more and the 9th Circuit’s February decision will stand and allow for the State to restore marriage equality.

Related posts:

1. Zappone & Gilligan launch fresh legal challenge for equality
2. Spainish decision on gay marriage delayed
3. A Suppa Earl Gae

Hot on the heels of not only the recent Californian Prop 8 ruling but also the introduction of marriage equality in Washington State, now it’s all go in (take a breath) Maryland, New Jersey (a bit), Maine, and once again in California.

So, with the news from our overseas orange and yours truly, here’s the 411 on what’s happening State-side:

Maryland

The momentum for marriage equality continues to gallop apace across the Atlantic. Yesterday, Maryland moved within inches of recognising marriage equality when the state Senate approved bill, HB 438.

Maryland now stands in a similar position to New Jersey just one week ago when the state Senate in that neighbouring state passed an initiative for marriage equality which only needed the state Governor’s signature to give it concrete effect in law. Unfortunately, the New Jersey Governor, Chris Christie, vetoed the bill.

Maryland Governor, Martin O’Malley, thankfully intends to “stand on the right side of history”* and has already lobbied legislators in the Houses of Legislature vociferously to support the bill, and promised to sign the bill. He is expected to sign the bill over the coming week.

Maryland is one of the US’ smallest states but also one its most populous with more than 5.8 million inhabitants. Maryland will shortly join Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont, and also the District of Columbia, as the seventh state to legalise marriage for same-sex couples.

For Marylanders, there was a sense of déjà vu because a similar provision for marriage equality was put to the houses last year but was defeated.

The House of Delegates last week had already voted 72-67 in favour of the measure. Less than a week later, the state Senate supported the bill with 25-22.

When Gov. O’Malley signs the bill and introduces marriage equality for Maryland, legalisation of marriage for same-sex couples faces one more hurdle, however. Anti-marriage equality campaigners have declared their intention to put the bill to referendum during November’s Presidential election. They will need 55,726 signatures in order to put it on November’s ballot. Opponents to marriage equality in Washington are also campaigning for marriage equality legislation, which was signed into law less than 10 days, to be put to a public vote in November.

There is clearly a lot of work to be done by legislators and marriage equality proponents to engage and educate voters in Maryland but for today, the news from Maryland is good.

There is also some good news in New Jersey. Although Gov. Christie’s veto was hurtful and disappointing, the movement for equality there continues unhindered and on 21st February, a case brought by seven couples that claim the state’s civil union system is harmful to families because it is not on par with marital protections and therefore violates equal protection provisions in the state and federal constitution.

* Phrase borrowed from Hillary Clinton’s momentous speech at the UN Human Rights Council on 14th December (also http://www.youtube.com/watch?v=MudnsExyV78

YT).

Maine

In Maine, marriage equality came a step closer, after successful move to put a referendum proposing marriage equality to the people during the Presidential elections in November later this year.

Why Marriage Matters Main tells us:

The Maine Secretary of State today confirmed that enough signatures have been verified to place a Citizens’ Initiative allowing same-sex couples to receive marriage licenses on the November ballot.

“Just as my own thinking has evolved on this issue, more and more people in Maine are coming to understand that loving, committed same-sex couples should not be denied the freedom to marry,” said Pastor Michael Gray of Old Orchard Beach United Methodist Church and the citizens initiative’s lead signer. “We gathered signatures from voters in more than 450 towns all over Maine, and those people signed the petition because they want the chance to vote on this issue again so their gay and lesbian family, friends and neighbors can have access to marriage licenses.”

Advocates turned in more than 105,000 signatures from 453 towns and cities on Jan. 26. According to the Secretary of State, 85,216 of those signatures have been verified, far surpassing the 57,277 required.

Freedom to Marry tells us:

Today Maine’s Secretary of State, Charlie Summers, confirmed that marriage advocates have collected enough signatures to allow a ballot measure this November that, if passed, would extend the freedom to marry to gay and lesbian couples. The signatures were submitted for verification at the end of January.

In order to enact marriage legislation in Maine, advocates will need to win at the ballot and are therefore bringing the ballot measure proactively.

California

From the east coast to the west, where the US Defence of Marriage Act (DOMA) has once again been ruled unconstitutional.

A federal court in San Francisco yesterday issued the ruling in relation to a couple who married under Californian law.

If the ruling is appealed, it is likely to be heard by the 9th Circuit Court of Appeals, which recently handed down its ruling in the Prop 8 case (Perry v Schwarzenegger).

In this latest ruling (the Golinski case) The federal judge found that DOMA violated the rights of a federal employee who was denied the opportunity to enroll her wife in the health benefits program available to opposite spouses of federal judiciary employees.

DOMA prohibits the recognition of same-sex marriages for purposes of federal benefits. The Obama Administration has already announced that it considers DOMA discriminatory and has opted not to enforce it.

The court’s ruling is another example of judicial picking apart of the fallacies regularly put forward (in this jurisdiction as well as in the US) as arguments against marriage equality. It’s not too long, and well worth a read.

Also I just love the plaintiff’s wife’s surname: Cunninghis. Best. Lesbian name. Ever.

Some quotes from the ruling:

This action presents a challenge to the constitutionality of Section 3 of DOMA as applied to Ms. Golinski, a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse.

[...]

The question before the Court is whether Section 3 of DOMA, as applied to Ms.Golinski, violates constitutional principles of equal protection.

The Court concluded:

The Court has found that DOMA unconstitutionally discriminates against same-sexmarried couples. […]

In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her rightto equal protection of the law under the Fifth Amendment to the United States Constitution by,without substantial justification or rational basis, refusing to recognize her lawful marriage toprevent provision of health insurance coverage to her spouse.

The Court summarised some of the statements made by US legislators when debating the DOMA Bill:

The House Report on DOMA reflected Congress’ “moral disapproval of homosexuality,and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” [...]. In his expression of these objectives, Henry Hyde, then-Chairman of the House Judiciary Committee, stated that“[m]ost people do not approve of homosexual conduct … and they express their disapprobation through the law.” [...].

In the floor debate, members of Congress repeatedly expressed their disapprobation of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles.” [...]. Members of Congress argued that marriage by gay men and lesbians would “demean” and “trivialize” heterosexual marriage and might indeed be “the final blow to the American family.” [...] (“Allowing for gay marriages would be the final straw, it would devaluate the love between a man and a woman and weaken us as a Nation.”). Senator Helms, in a statement prepared for the hearing, expressed his disapprobation: “[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle – these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle …Homosexuals and lesbians boast that they are close to realizing their goal – legitimizing their behavior … At the heart of this debate is the moral and spiritual survival of this Nation.

Related posts:

1. The Maine Thing is Equality
2. Prop 8 heads to US Supreme Court after Federal Appeals Court ruling
3. District councils vote to support marriage equality!

Gaining marriage equality rights in one state may be considered fortunate. Gaining marriage equality in two states may be regarded as real progress.

California’s Proposition 8 ruling is, like, so two days ago. Now it’s all about the introduction of a marriage equality Bill by the Washington legislature. (Do keep up.) West coast, y’all!

The state House of Representatives debated the measure before taking a vote just before midnight Irish time. It passed by 55 votes to 43. Washington governor, Christine Gregoire, who introduced the measure has indicated that she will sign the Bill into law immediately.

With today’s vote, we tell the nation that Washington state will no longer deny our citizens the opportunity to marry the person they love. We tell every child of same-sex couples that their family is every bit as equal and important as all other families in our state. And we take a major step toward completing a long and important journey to end discrimination based on sexual orientation.

- Democratic Gov. Chris Gregoire.

The New York Times reports that the Bill could be signed as early as next week, but cautions that it may not take effect right away because, well, haters gonna hate. If opponents to the law can cobble together at least 120,000 signatures, then under state law the measure will be put to a referendum.

Nevertheless, now we can add to the list of things Washington is famous for: rain, Sleepless in Seattle, Nirvana, Starbucks, and marrige equality.

This is about couples. This is about family. This is about kids. This is about love and commitment.

- Rep. Laurie Jinkins, D-Tacoma.

Why should their union of over 23 years not be recognized? They are committed to each other. They love each other.

- Rep. Ruth Kagi, D-Lake Forest Park, talking about her Democratic colleague, Rep. Laurie Jinkins, D-Tacoma, and her partner, Laura Wulf.

I’m very proud of my children. I’m very proud of my two sons. And they deserve the same rights and privileges that their brothers and sisters have. We have to have equal rights.

- Rep. Phyllis Gutierrez Kenney, D-Seattle, speaking about her two gay sons.

Congratulations, Washingtonians!

Quotations via AP/Seattle Post Intelligencer.

Related posts:

1. District councils vote to support marriage equality!
2. 2 out of 3 ain’t bad: Marriage equality supported in Dublin and Newry
3. BREAKING: Tánaiste makes historic statement on marriage equality

Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.

It’s LGBT History Month in the UK, but it was across the Atlantic that history was being made yesterday.

A court in the United States ruled yesterday on the validity of California’s Proposition 8, the referendum proposal which introduced a ban on marriage equality in the state.

The 9th Circuit Court of Appeals, sitting in San Francisco, issued its ruling at 10am local time (6pm Irish time). It stated that Proposition 8 was unconstitutional as a matter of US federal law.

Although the [US] Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted.

The Court’s ruling can be read here (pdf). The AP has some excerpts from the ruling here. The National Center for Lesbian Rights has issued a statement. There’s also an easy-to-understand analysis here.

Although strident in its language, the Court confined itself to a narrow issue: it did not address the question of the right to marry or equality for same-sex couples in general. Rather, the court looked at the particular circumstances which arose in this case.

California had already introduced marriage equality before the proposal to ban same-sex marriage was introduced, and eventually passed by voters.

The Court ruled that this measure, removing a right which had previously existed, was unconstitutional.

Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.

Does the ruling have any implications for Ireland? Well yes and no and maybe (but mostly no).

Irish courts can have regard to judgements from other countries, although such judgements are not binding.

The circumstances of US case don’t arise in the Irish context: although the Fianna Fáil-led government introduced legislation in 2004 to ban marriage between same-sex couples, Ireland hasn’t already expressly provided for equality.

(Compare Spain, however: there, the previous Socialist government introduced marriage equality, but before recent elections, the conservative Partido Popular pledged to remove such equality. It remains to be seen whether the current Spanish government will follow through with this election promise and, if they do, whether such a move will stand up to EU and/or European human rights laws.)

The case being taken by Senator Katherine Zappone and Dr Ann Louise Gilligan to have their Canadian marriage recognised in Ireland is currently awaiting a hearing date from the Supreme Court. Before Christmas, they were unsuccessful in including a challenge to the 2004 legislation, but in theory the legislation may be open to challenge.

Although the US ruling relates to different circumstances, some of the points it makes may well be relevant to the Irish situation.

Related posts:

1. Prop 8 heads to US Supreme Court after Federal Appeals Court ruling
2. Zappone & Gilligan launch fresh legal challenge for equality

We gays do a good campaign don’t we? It Gets Better, NOH8 and so on. 

To be fair to our community, most LGBTs really want a way to come together and try to make a difference and when given a platform we can outdo ourselves. The latest in this distinguished list is the North Carolina “Vote Against” Project.

Some background for you: on 8th May next the folks of North Carolina will vote on a ban on same sex marriage. While most places are voting on recognising rights, these people have to stand up and speak just to keep things the same and prevent their work for marriage equality taking a major step in the wrong direction.

Last September a rally was held in Raleigh, NC, to oppose the legislature’s vote to put a constitutional amendment on the ballot. Sadly, however, the amendment passed and now attention must go to getting as many no votes as possible, but what exactly would this mean to LGBTs in North Carolina?

According to the Vote Against website the amendment does the following:

In addition to prohibiting same-sex marriage, as state law already does, the Amendment would:

• prohibit North Carolina from ever passing legislation that would grant civil unions;
• bar the state from instituting domestic partnership rights;
• strip the domestic partner insurance benefits currently offered to employees by a number of local governments.

It’s hard to fathom in this day and age that people still have to stand up against this kind on nonsense, but there it is.

Curtis Brown is a Raleigh-based photographer who has started the project which captures images of people wearing “vote against t-shirts”, much like the NOH8 campaign started by Adam Bouska in California. 

Brown is even going on tour around the states to facilitate the participation of as many people as possible. You just have to commend people like him: well done to Curtis and all his volunteers. Let’s hope the vote goes the right way and this kind of backwards step is prevented by a large majority.

Related posts:

1. Illinois may vote on gay marriage
2. District councils vote to support marriage equality!

So, people have finally learned what Fine Gael’s attitudes towards equality are. It seems to have been a revelation for many.

MamanPoulet summarised the various parties’ stances on LGBT issues recently, based on their respective election manifestos. Since then, Fine Gael’s deputy equality spokesperson, Lucinda Creighton, has drawn attention to that party’s position on marriage equality: that is, Fine Gael is opposed to it.

This isn’t new information: in 2004, Fine Gael proposed a form of civil union, with no prospect of equality, no mention of children who are parented by same-sex couples, and ruling out any changes to adoption laws. It was the first proposal by an Irish political party to propose some recognition for same-sex relationships. Since then, however, very little has changed in the party’s attitude.

What seems to have added to this controversy is partly the fact that for some potential voters, this was news to them; but mostly it’s due to Lucinda’s views – as blogged by @leoie, and as stated by herself on Twitter (@lcreighton).

It’s very “Inequality She Wrote”:

@Clarabel @leoie @campaignforleo I supported the Civil Partnership Bill fully I dont support gay marriage @leoie pls dont misprepresent me

[link]

@fIONAfLAPS Apologies -havent been on twitter. Because I think marriage is primarily about children, main purpose being to propagate &create [...]

[link]

@fIONAfLAPS environment for children to grow up. Its a good policy for society to support male/female marriage imo. I think civil partrship [...]

[link]

@fIONAfLAPS should ensure gay couples r treated fairly and justly re tax inheritance etc & recognition by the StateBut marriage is different

[link]

I can’t help but be reminded of Iona “Marriage is the Gold Standard” Institute. And yet marriage has changed repeatedly throughout history, as well as varying widely around the world today. “Traditional marriage”? There simply is no one form of marriage. Here are some more revelations:

Historically in “our” society (Ireland, the UK, Western Europe), there have been varying forms of marriage. In ancient Rome there was more than one form of marriage. According to the Brehon laws, marriage – or rather, households – could be formed in a number of ways, and men and women who married each held their own property in their own right. The introduction of church laws in early Christian Ireland later changed the notion of marriage in that society:

It is impossible to probe the limits or depths of Christianization in these areas because of the want of evidence, but we should not doubt the impact of the church’s teaching. Rituals, moral practices, and beliefs may nonetheless have varied: Archbishop’s Lanfranc’s letters to the Irish complained about abhorrent Irish marriage practices, consanguinity, polygamy, and even wife swapping.

[...]

Marriage and sexual morality lay at the fulcrum of the church’s relations with the laity. [...] Marriage was a potent tool in social exchanges and the church’s teaching on sex was particularly repressive. Intercourse was only sanctioned within marriage for the sake of procreation, and even then strictly regulated and limited with regard to when it could be done.

[At pg.404 link.]

And

Marriage [...] was far from simple in the early Middle Ages. It was made through a series of gifts and exchanges of greater or lesser formality. There were different types of quite acceptable sexual union defined by the mix of these elements. This in turn affected, though it did not entirely determine, how easily the union could be ended and left room for argument over inheritance. The arrival of Christian ideas of marriage added other arguments to interpreting in the mix, if it not other elements to it.

[At pg.470]

Marriage for love was at times unusual, certainly in the upper strata of our feudal-based societies. Marriage was long used as a way to secure political alliances between factions or households. Marriages were frequently arranged marriages. Procreation was important, but usually to ensure that a male heir was produced. You may have heard of a certain Henry VIII?

Marriage has also been used to form peace agreements between warring parties. Engaging on a medieval crusade in the name of almighty god? Endeavouring to slaughter the followers of Islam/Christianity? Seeking to secure the holy city of Jerusalem in preparation for the second coming of Christ and the resulting Apocalypse? Sure, lets sign a peace treaty between the religions and throw in marriage to the King’s sister into the bargain. Problem solved!

In the royal courts and noble houses of Europe it was in the past normal practice for men to keep mistresses. Sometimes, these relationships were an open secret. At times, too, a mistress may have had considerable power and influence at court or in the dealings of her, er, keeper. Even Popes were at it.

It was only in the 19th century that we clearly see attempts at defining marriage by the state itself, as distinct from religious marriage, in the ruling of Hyde v. Hyde. In 1866. That decision was among the issues dealt with by the Canadian Supreme Court in 2004, when it was nevertheless held that the Canadian parliament could legislate to provide for marriage equality.

In the U.S., inter-racial marriages were prohibited in certain states. …Until they weren’t. This was thanks to the ruling in Loving v. Virginia. The evidence adduced and arguments made during the Proposition 8 trial, Perry v. Schwarzenegger, are illustrative.

Expert witness Nancy Cott, an American history scholar, testified that “marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage”. Her testimony revolved around three main points: how marriage has historically been used “punitively” to demean disfavored groups; how the legally enshrined gender roles in marriage had been disestablished during the 20th century and how the changes in the institution of marriage had mainly involved “shedding inequalities”; which she said strengthens marriage. She emphasized the importance of the institution of marriage by noting that “when slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means”.

In marriage, women were until relatively recent times regarded as simple property: from being the property of her father, upon marriage she became the property of her husband: chattel, an owned object. As such, the wife lacked any independent legal personality. She was subsumed into the person of her husband. Ergo “Mr and Mrs Smith”; police officers not responding to “domestics”. A woman could be barred from testifying her husband in court.

In Ireland, it was until very recently legally impossible for a wife to be raped by her husband. Yes, there was a “martial exemption” to rape.  In Ireland, spousal rape was criminalised only in 1990. (The first conviction was in 2002.) Interestingly:

FORMER MINISTER for justice Gerry Collins rejected a plea from the Council for the Status of Women to change criminal law to tackle rape within marriage.

In a submission to the Seanad in October 1978, the women’s council called for legislation to allow for the prosecution of a man for the rape of his wife and for changes to the law to disallow evidence on the sexual history of the complainant.

[link]

And let’s not forget that in 1996, an amendment was introduced to Bunreacht na hÉireann to allow for a constitutionally permissable attack on the institution of marriage: divorce.

There is no single definition of marriage: it varies from jurisdiction to jurisdiction, from culture to culture.

The legal minimum age for marriage depends on where the ceremony takes place. In some countries, the minimum age may be as low as 14 years, for example in Mexico, Colombia, Canada. In a couple of countries, for example, Brunei and Kuwait, no minimum age is specified.

Cultural practices vary widely. The Wodaabe of West Africa, part of the Fula ethnic group, hold the almost-annual Gerewol. This is a festival which coincides with the seasons and, if there have been sufficient rains, the nomadic family groups gather together for Gerewol. There, among the celebrations, men and women – single and married – basically hold an elaborate swingers party: subject to particular rules the men prettify themselves and line up, waiting to be selected by one of three women for sex.  After Gerewol, everyone – including the married men and women – reunite into their groups and wander back into the desert.

In parts of the world, polygamy (polygyny/polyandry) is practiced.  There are some societies which have elements of matriarchy.  The practice of “bride kidnapping” continues in Caucasus and elsewhere, sometimes as a pretext for a couple eloping, but sometimes as actual kidnapping.  There are also temporary marriages, such as the Celtic “handfasting”, and Shi’a Islam’s “nikah mut‘ah” or “sigheh”.

As for marriage equality: Yes, it does exist. And no, those societies haven’t broken down, nor have they witnessed the institution of marriage being “attacked”: Argentina, Belgium, Canada, Iceland, Mexico City, Netherlands, Norway, Portugal, South Africa, Spain, Sweden, several states in the US plus the Coquille tribe. In fact, several expert bodies have noted the importance of marriage equality.

And, of course, same-sex marriages too have taken place throughout history. For example, in the Ming and Zhou dynasties of China; during the early Roman empire and ancient Greece; in France in the late middle ages with affrèrement or “enbrotherment”; among many other examples.

P.S.

The gold standard was abandoned over 60 years ago.

No related posts.

“If there’s anybody threatening the sanctity of marriage, it comes from those who have the privilege and the right, and we have abused it for decades.”
- Sen. Diane Savino

This week saw the Civil Partnership Bill finally get some floortime in the Dáil (which was covered by our own click here). However, while TDs were opening the debate on recognition of same-sex couples last Thursday, December 3rd, many New Yorkers were still feeling the sting of the previous day’s hugely disappointing defeat of a bill for marriage equality in the New York state Senate. There are a few reasons why this defeat is particularly disheartening and frustrating:

1. New York state recognises same-sex marriage from other states but does not recognise those performed within its own borders.
2. The bill was defeated by a margin of 14 votes (38 against – 24 for) and one senator in particular (Hiram Monserrat) who voted against the bill had been endorsed during his election by the Lesbian and Gay Democratic Club of Queens.
3. It is difficult to fathom how those who who voted against the measure were not swayed after hearing Democratic Senator for Statten Island, Diane Savino, expound in plain and relatable terms, the reasons why recognition of same-sex marriage is an undeniable duty of the government. Funny, moving, and logically bang-on. Watch it below:
   

This latest disappointment from New York comes just 28 days after the devastating outcome of Maine’s Proposition 1, a Proposition 8-style measure which overturned the state’s existing marriage equality law. But don’t let the triumphant zealots fool you, the campaign for marriage equality is not going to disappear in the wake of these disappointments and will continue to gather momentum. On the same day as Maine vote, voters on the other side of the country in the state of Washington approved Referendum 71, a measure which expands domestic partner protections to grant same-sex couples the same rights and responsibilities afforded to married couples. The outcome of that referendum will be historically noted as a critical and all-too-rare vindication of civil rights by plebiscite vote. Positive confirmation that the US is on-track for recognition of same-sex couples can also be seen in late November’s passage of the Domestic Partnership Benefits and Obligations Act—a legislative move which provides equal family benefits to federal employees with same-sex partners.

In the near future, Houston, Texas (yes, Texas!) may be electing its first lesbian Mayor. Sitting City Controller, Annise Parker, holds a slight lead in pre-poll percentages in the Mayoral election for Houston which will take place next Saturday, December 12th. Houston is the fourth-largest city in the United States and is not the liberal oasis of nearby Austin, which makes Parker’s performance thus far and her possible election all-the-more momentous.

No related posts.

The court’s decision effectively means that the vote by the simple majority to pass Proposition 8 still stands. (That simple majority, by the way, was 52.24% – hardly resounding.) Proposition 8 inserts a new provision into the Californian constitution, stating that marriage can only between a man and a woman. It reads:

Only marriage between a man and a woman is valid or recognized in California.

Some have been outraged at the court’s decision; some have taken a stoical view along the lines that the ruling was technical and that the court’s hands were tied.

Reading the decision, however, I’m not so sure I ultimately agree with the latter view. The ruling is set out very clearly into an introduction, and three subsequent sections detailing the court’s reasoning. (It can be read here [.pdf].)

The decision helpfully and clearly summarises the previous marriage cases which led to the same court’s earlier decision stating that same-sex marriages should be allowed. The distinction is that, in the previous cases, the law at issue was statutory; in the present case, however, it’s a constitutional matter.

The first matter to be decided, according to the court, was whether Proposition 8 constituted an amendment or a revision. (After that, they would deal with the issue of those who have already been married over the past year.) To do this, they needed to carefully “assess (1) the meaning and scope of the constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.”

The judges in the present case (I don’t know if they were actually the same individual judges who issued the previous marriage ruling) strive to frame their decision in the context of the earlier case, and thereby limit the scope and effect of the Proposition 8 provision: they say that the effect of Proposition 8 does not limit “the constitutional right of same-sex couples to ‘choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage’ (Marriage Cases [...] 43 Cal.4th at p. 829)”.

The danger in this approach as I see it, however, is that the judges hands are tied to saying that same-sex couples are (at present, at least) separate but equal: this calls to mind the U.S. era of segregation, or South African apartheid – the whites at the whites’ water fountain, the blacks at theirs: separate, but equal. Of course, we know what history has to teach us about such arrangements.

What is more worrying, however, is that the judges strain their reasoning to reach this conclusion, not as their overall ruling of the court, but in order to justify calling Proposition 8 an “amendment” (which is permitted) – rather than a “revision” (which is not permitted).

That is to say, if the judges found that Proposition 8 was found to have “entirely repealed or abrogated” the constitutional privacy rights of same-sex couples and due process; or if they had found that Proposition 8 had “fundamentally altered” the meaning and substance of constitutional equal protection principles: then, they might have found that Proposition 8 was a revision and therefore invalid.

But they didn’t: the judges found that

Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Perhaps I’m missing something, but the fact that they’ve decided to classify Prop 8 as an amendment and not a revision (thereby allowing Prop 8 to remain valid) worries me. (Especially as people on this side of the water are fond of following the people on the other side of the water..)

What do you think?

No related posts.

The news media caught up with the hideous comments that were aired by the BBC on 29th December concerning lesbians. In the programme, The Most Annoying People of 2008, LoRo appeared at number 43. Some unknown “DJ” and a repulsive “porn actor” decided to air their views about the couple – according to the London Independent:

[DJ] Spoony said: “Let the munters and mingers get each other – that’s cool because no-one really wants them.

“But when they’re hot and fit and Hollywood superstars, they should be saved for guys – not me, but other guys.”

[Ron] Jeremy, 55, said he would like to have a threesome with the couple and even described ejaculating over them.

“Those two girls are both very good-looking, so I would love to be in the middle of that,” he said.

“They would do each other, do me, do each other, back and forth, then I do a pop and it’s over.

“The polite thing to do is to pop on both of them.”

Unlikely allies, Tory MP Anne Widdecombe and UK gay activist Peter Thatchell, have spoken out strongly against the show’s content. And what was Auntie’s response to complaints about this? Read on:

The BBC has clear guidelines around the representation of people of all cultures and backgrounds on all our channels and stations and we’re committed to reflecting the lives and concerns of all our diverse audiences.

Most Annoying People 2008 was a light-hearted and comedic look at people and events that have annoyed, amused or appalled us over the last 12 months. The contributors to the programme were expressing their own personal views and opinions. What’s key is the context in which those comments were made. In this case they were meant in a light hearted way with no malicious intent.

Why not share your own views, by sending a complaint to Ofcom and to the BBC directly? I did, and it was quite the catharsis.

How appropriate, then, that the BBC did not make Stonewall‘s Workplace Equality Index.

Thursday, 8th January

On the other side of the Atlantic, a Florida senator has proposed legislation to allow same-sex couples to adopt. In what 365gay.com describes as “the most repressive of its kind in the country”, the current law allows same-sex couples to foster only, but not to adopt. Sounds remarkably similar to our own little island.. Observers don’t hold out too much hope for the proposal – just a few short months after the state voted to ban same-sex marriage – and the usual “pro-family” types are already chirruping against it, but perhaps it will be the beginning of improvements for LGBT people in Florida.

In somewhat more optimistic news further north along the Eastern seaboard, New York’s Senate has elected a supporter of same-sex marriage and other LGBT issues as its Senate Majority Leader. Democrat Malcom Smith was elected after much wrangling with three conservative, dissident Democrats who are opposed to his pro-gay stance. So far, it appears that Smith did not make any concessions in that respect to gain the support of the three.

Friday, 9th January

More good news, from two respective countries. Firstly, in the Eastern US again, New York City Council Speaker, and ‘sister’, Christine Quinn (right) has been named by The Irish Echo as “Irish American of the Year”. Quinn, who visited Ireland in 2006, was praised for her work as member of the Council and in relation to Irish causes. She has also boycotted the New York City St. Patrick’s Day parade as a result of its decision to ban the inclusion of LGBT groups. Take that, AOH.

Back to this side of the Atlantic again then to Africa, and some good news out of bad from one of the most homophobic government’s in the world. In Uganda, a court found in favour of two LGBT activists in ruling that the authorities violated their privacy in a raid on the activists’ offices. Victor Mukasa and Oyo Yvonne, members of SMUG (Sexual Minorities Uganda, and a fabulous acronym), were successful in their lawsuit, after documents were seized, Mukasa was subsequently compelled to flee the country temporarily, and Yvonne was made to strip naked during the raid “to prove she was a woman”.

Saturday, 10th January
While the BBC refuses to apologise for its broadcast of sexually degrading comments about lesbians, the Carphone Warehouse thought better: they apologised to a customer who discovered among his documents a note from a member of staff describing the customer as “a big gay”.

Sunday, 11th January
Although everyone has known it for years, a politician from Poland’s ruling party has put the question directly to the country’s biggest internalised homophobe: Jarosław Kaczyński – are you gay?  We have yet to hear a response from the former leader of a nation that instigated a database compiling information on Polish homosexuals, and who still had the nerve to tell the world that his government’s homophobia was “a myth“.

Monday, 12th January

The National Lesbian and Gay Federation got so caught by awards fever that they decided to launch their own show – The Galas. You can log on to their site here and nominate your person of the year, volunteer of the year, blogger of the year and journo of the year among others.

The Iona Institute was in an ecstacy of Catholic smugness when the Irsh Times printed the results of the Institute pole in which 92% of people said they thought children should be raised by a mother and father. Not everyone agreed with the Institute as shown in this letter printed int the same paper.

In Malta, a politican was so enraged with the Pope’s latest hate-filled homophobic statement that he excommunicated himself from the church.

February is LGBT history month in the UK and, to mark it, the Petrie Museum in London is holding a festival of events celebrating homosexuality in ancient Greece. There will be seminars, readings and exhibitions of all things gay and is definitely worth a look if you’re over the water.

Tuesday, 13th January

There is uproar when Prince Harry is caught on camera saying some rather unprincely things. He used the word Paki and the media went into meltdown, but surely his homophobic remarks warranted the same reaction. You’d be hard-pished to find anything about it on the news even when Stonewall called for an apology.

Meanwhile, the Scottish gay community is calling for a lift on the ban gay marriage. At the moment, under current legislation, couples can have a civil partnership but not a marriage, and not in a faith-based ceremony.

The Scottish government should read this report from America, which shows that apparently it’s good for your political career to vote for gay rights.

The murder of trans activist Cynthia Nicole is just the latest slaying of trans women in Honduras. In addition to these violent crimes, police attacked people handing out HIV/AIDS information.

In more news from the Americas, a teacher in Chile has been sacked for being a lesbian. Sandra Cecilia Pavez Pavez had been a teacher for 23 years but had her teacher licence taken from her when she admitted to church officials that she’s a lesbian. Ms Pavez is taking the school authorities to court. Go girl!

Some angry lesbains got their knickers in a twist over the new movie Lesbian Vampire Killers, saying that it is “shamelessly catering to men’s girl-on-girl fantasies”. However, the maers of the film insist it’s about strong women and “you can read it as a feminist text as well”.

After being taken to court for lack of equality, the council of London suburb Islington has launched a charter of LGBT rights.

Wednesday, 14th January

It seems the pink pound isn’t immune to the current economic conditions. Huge gay media outlet PlanetOut has axed half of its workforce. Added to that, Clonezone one of the world’s largest gay chains, has gone into liquidation.

Things have gotten gayer in Sundance. The film festival has announced it is launching a Queer Lounge in which they will screen gay films. IFI take note.

Also in the art world, there was news that Susan Sontag’s (left) diaries have been published.

In a ‘you don’t say’ report published today, it seems that family acceptance of a person’s sexuality is key to their mental health.

With the inaureragtion of Barack Obama on the horizon, gay group were wondering what his policies will be in relation to lgbt rights. Meanwhile, over here in the EU, the parliament recommends recognition of same-sex marriage. However, things are still pretty bad in Iraq, with torture not uncommon.

An ad campaign in Florida is trying to scare people into believing that trans people are predetory and dangerous. Last year, Gainseville in Florida decided that transpeople should have the right to use whichever public toilet they feel relates to them. Now, opposers to the law have launched an ad campaign which makes it look like the law gives sex abusers the right to hunt victims in public toilets.

Ten years after President Mbeki bloked Edwin Cameron from taking a seat on the Constiutional Court, Cameron has finally taken up the position. Mbeki barred him as Cameron is openly gay and was one of the most high-profile poeple to come out about his HIV-positive status.

Also in South Africa, a gay couple were refused a civil ceremony for no reason. They had been given a date to marry, arrived at the civil office but were told by the offical that it was not ‘normal’ and that he only does ‘normal’ marriages.

Thursday, 15th January

The UN are working towards the release of 9 gay men in Senegal. The men were jailed for ‘acts against nature’. The EU is also supporting mutual recognition of same-sex relationships.

The international gay communuty is calling on lgbt youth to unite and get active. To sign up to the LGBT Youth World List visit www.iglyo.com or www.ilga.org.

Legendary London gay venue G.A.Y is closing its doors. The club, which is housed in The Astoria, has been forced to shut down to make way for London’s Crossrail. The G.A.Y. night will now take place in Heaven.

Gay footballers in the UK have had enough and are calling for tougher measure to end homophobia in the game. After the arrests of many people, including a 13-year-old at a match recently, the group The Gay Footballers Supporters Network have said that not enough is being done.

Friday, 16th January

The tragic case of Shaun Dykes shows hownhomophobic chanting can result in tragedy. The 17 year-old gay man committed suicide while people jeered and goaded him, with some even taping footage on their mobile phones, according to an inquest into his death.

A recent study on prejudice found that gay is the new black when it comes to intolerence and hatred.

A group of legal experts in America have come to the conclsuion that the Prop 8 outcome could be illegal.
“Proposition 8 creates the dangerous precedent that the legal and civil rights of minorities, indeed, of any individual or group, could be excised from the California Constitution and the courts would be powerless to reverse such discrimination,” they said.

The men charged with raping a woman because she’s a lesbian, have pleaded not guilty to the crime. The trial continues.

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