02/23/2012
Same-sex marriage bill approved by Maryland Senate
By Aaron C. Davis
Dels. Ariana B. Kelly (D-Montgomery) and Bonnie L. Cullison (D-Montgomery) confer. For Cullison, the debate about the gay marriage legislation is personal: She would like to be able to marry her partner, Marcia.
The final vote by the state Senate ended a yearlong drama in Annapolis over the legislation, and marked the first time an East Coast state south of the Mason-Dixon line has supported gay nuptials.
With the vote, the measure moves to Gov. Martin O’Malley (D), who has said he will sign it.
Maryland would join the District and seven states in allowing same-sex marriages. Supporters have cast the bill as a major advance in equal rights. Opponents have called it a misguided attempt to redefine the institution of marriage.
Despite one of the largest Democratic majorities in any state legislature, backers of gay marriage in Maryland had to overcome fierce opposition from blocks of African American lawmakers and those with strong Catholic and evangelical views to cobble together coalitions big enough to pass both chambers.
February 12, 2012
The year 2012 is shaping up as a big one for same-sex marriage. Last week, the Washington state Legislature passed a bill allowing gay marriage, and legislatures in Maryland and New Jersey may follow suit shortly (though New Jersey Gov.Chris Christie has promised a veto). North Carolina and Minnesota are conducting referendums this year on constitutional amendments to bar gay marriage, and Maine is likely to conduct a referendum on legalizing it.
On Tuesday, the U.S. 9th Court of Appeals reminded us that courts too have something to say on the subject. In a case challenging the constitutionality of California's Proposition 8, that court ruled in favor of gay marriage. Because its ruling was so narrow that it may not be applicable outside California, theU.S. Supreme Court may decide not to review this decision. Eventually, though, the Supreme Court will take a gay marriage case. How might the justices decide it when they do?
As recently as seven or eight years ago, there might not have been a single justice prepared to declare a federal constitutional right to same-sex marriage. Opinion polls then showed that Americans opposed gay marriage by a 2-1 margin, and a Massachusetts court decision declaring a right to gay marriage under the state constitution produced an enormous political backlash in 2004, with 13 states enacting constitutional bans. Even liberal justices such as Ruth Bader Ginsburg andStephen G. Breyer, who probably sympathize with gay marriage, might well have been wary of venturing too far in advance of public opinion and stoking further political backlash.
The situation has since changed dramatically. Opinion polls now consistently show that a slender majority of Americans support gay marriage. State supreme courts in California, Connecticut and Iowa have ruled in its favor, and legislatures in five states have enacted gay-marriage statutes. If liberal judges on state supreme courts now regularly support gay marriage, liberal justices on the U.S. Supreme Court are likely to do so as well.
A number of constitutional issues today — abortion, affirmative action, campaign finance reform and the death penalty — divide the Supreme Court 5 to 4, with JusticeAnthony Kennedy providing the critical swing vote. How might Kennedy approach the gay-marriage issue?
Kennedy often converts dominant social mores into constitutional commands to bring outlier states into line with the majority. In this case, the states that allow gay marriage are in a distinct minority, suggesting he might be reluctant to identify such a constitutional right.
On the other hand, Kennedy has written the court's only two decisions supporting gay rights, and he comes from a part of the country — Northern California — where support for gay marriage is strong. Moreover, Kennedy seems especially attuned to his historical legacy, and if gay marriage is inevitable, then a court ruling in its favor will probably be seen one day as the Brown vs. Board of Education of the gay rights movement.
Why is gay marriage inevitable? First, the basic insight of the gay rights movement over the last four decades has proved powerfully correct: As more gays and lesbians have come out of the closet, the social environment has become more gay friendly. In turn, as the social environment has become more hospitable, more gays and lesbians have felt free to come out of the closet. This social dynamic is powerfully reinforcing and unlikely to be reversed.
One factor that most strongly predicts support for gay equality is knowing someone who is gay. As more gays and lesbians come out of the closet, more parents, children, siblings, friends, neighbors and co-workers know or love someone who is gay. Because few people favor discrimination against those they know and love, every gay person coming out of the closet creates more supporters of gay equality.
The number of Americans reporting that they know somebody who is openly gay tripled between 1985 and 2000, reaching 75%. One study in 2004 found that among those who reported knowing someone who is gay, 65% favored either gay marriage or civil unions, while only 35% of those who reported not knowing any gay people supported them.
A second reason that gay marriage seems inevitable is that young people so strongly support it. One study by political scientists found a gap of 44 percentage points between the oldest and youngest survey respondents in their attitudes toward gay marriage. A 2011 poll found that 70% of those age 18 to 34 supported gay marriage. It is hard to imagine a scenario in which young people's support for gay marriage dissipates as they grow older.
The trend in favor of gay marriage has accelerated dramatically in the last three years. Before 2009, the annual rate of increase in support for gay marriage was about 1.5 percentage points, but since then it has been closer to 4 percentage points. Statistical models predict that in another dozen years, every state will have a majority in favor of gay marriage.
In recent years, many conservatives have begun to acknowledge the inevitability of gay marriage, even as they continue to strongly oppose it. In March 2011, Albert Mohler, president of the Southern Baptist Theological Seminary, said on a Christian radio program that "it is clear that something like same-sex marriage … is going to become normalized, legalized and recognized in the culture."
"It's time," he continued, "for Christians to start thinking about how we're going to deal with that."
That a particular social change may be inevitable, given certain background conditions, does not mean that opponents will cease fighting it. White Southerners continued to massively resist Brown long after most of them came to believe that school desegregation was inevitable.
Similarly, those who believe that gay marriage contravenes God's will are not likely to stop fighting it simply because their prospects of success are diminishing. Moreover, because religious conservatives are both intensely opposed to gay marriage and highly mobilized politically, they are likely for the next several years to continue exerting significant influence over Republican politicians who need their support to win primary elections.
Although the ultimate outcome of the contest over gay marriage no longer seems in doubt, plenty of fighting remains until that battle is over.
Michael J. Klarman is a professor at Harvard Law School and the author of "Same-Sex Marriage Litigation and Political Backlash," to be published this fall.
On Tuesday, the U.S. 9th Court of Appeals reminded us that courts too have something to say on the subject. In a case challenging the constitutionality of California's Proposition 8, that court ruled in favor of gay marriage. Because its ruling was so narrow that it may not be applicable outside California, theU.S. Supreme Court may decide not to review this decision. Eventually, though, the Supreme Court will take a gay marriage case. How might the justices decide it when they do?
As recently as seven or eight years ago, there might not have been a single justice prepared to declare a federal constitutional right to same-sex marriage. Opinion polls then showed that Americans opposed gay marriage by a 2-1 margin, and a Massachusetts court decision declaring a right to gay marriage under the state constitution produced an enormous political backlash in 2004, with 13 states enacting constitutional bans. Even liberal justices such as Ruth Bader Ginsburg andStephen G. Breyer, who probably sympathize with gay marriage, might well have been wary of venturing too far in advance of public opinion and stoking further political backlash.
The situation has since changed dramatically. Opinion polls now consistently show that a slender majority of Americans support gay marriage. State supreme courts in California, Connecticut and Iowa have ruled in its favor, and legislatures in five states have enacted gay-marriage statutes. If liberal judges on state supreme courts now regularly support gay marriage, liberal justices on the U.S. Supreme Court are likely to do so as well.
A number of constitutional issues today — abortion, affirmative action, campaign finance reform and the death penalty — divide the Supreme Court 5 to 4, with JusticeAnthony Kennedy providing the critical swing vote. How might Kennedy approach the gay-marriage issue?
Kennedy often converts dominant social mores into constitutional commands to bring outlier states into line with the majority. In this case, the states that allow gay marriage are in a distinct minority, suggesting he might be reluctant to identify such a constitutional right.
On the other hand, Kennedy has written the court's only two decisions supporting gay rights, and he comes from a part of the country — Northern California — where support for gay marriage is strong. Moreover, Kennedy seems especially attuned to his historical legacy, and if gay marriage is inevitable, then a court ruling in its favor will probably be seen one day as the Brown vs. Board of Education of the gay rights movement.
Why is gay marriage inevitable? First, the basic insight of the gay rights movement over the last four decades has proved powerfully correct: As more gays and lesbians have come out of the closet, the social environment has become more gay friendly. In turn, as the social environment has become more hospitable, more gays and lesbians have felt free to come out of the closet. This social dynamic is powerfully reinforcing and unlikely to be reversed.
One factor that most strongly predicts support for gay equality is knowing someone who is gay. As more gays and lesbians come out of the closet, more parents, children, siblings, friends, neighbors and co-workers know or love someone who is gay. Because few people favor discrimination against those they know and love, every gay person coming out of the closet creates more supporters of gay equality.
The number of Americans reporting that they know somebody who is openly gay tripled between 1985 and 2000, reaching 75%. One study in 2004 found that among those who reported knowing someone who is gay, 65% favored either gay marriage or civil unions, while only 35% of those who reported not knowing any gay people supported them.
A second reason that gay marriage seems inevitable is that young people so strongly support it. One study by political scientists found a gap of 44 percentage points between the oldest and youngest survey respondents in their attitudes toward gay marriage. A 2011 poll found that 70% of those age 18 to 34 supported gay marriage. It is hard to imagine a scenario in which young people's support for gay marriage dissipates as they grow older.
The trend in favor of gay marriage has accelerated dramatically in the last three years. Before 2009, the annual rate of increase in support for gay marriage was about 1.5 percentage points, but since then it has been closer to 4 percentage points. Statistical models predict that in another dozen years, every state will have a majority in favor of gay marriage.
In recent years, many conservatives have begun to acknowledge the inevitability of gay marriage, even as they continue to strongly oppose it. In March 2011, Albert Mohler, president of the Southern Baptist Theological Seminary, said on a Christian radio program that "it is clear that something like same-sex marriage … is going to become normalized, legalized and recognized in the culture."
"It's time," he continued, "for Christians to start thinking about how we're going to deal with that."
That a particular social change may be inevitable, given certain background conditions, does not mean that opponents will cease fighting it. White Southerners continued to massively resist Brown long after most of them came to believe that school desegregation was inevitable.
Similarly, those who believe that gay marriage contravenes God's will are not likely to stop fighting it simply because their prospects of success are diminishing. Moreover, because religious conservatives are both intensely opposed to gay marriage and highly mobilized politically, they are likely for the next several years to continue exerting significant influence over Republican politicians who need their support to win primary elections.
Although the ultimate outcome of the contest over gay marriage no longer seems in doubt, plenty of fighting remains until that battle is over.
Michael J. Klarman is a professor at Harvard Law School and the author of "Same-Sex Marriage Litigation and Political Backlash," to be published this fall.
WASHINGTON -- An LGBT organization is calling on the Democratic Party to officially support marriage equality, launching a national campaign to get Democrats to enshrine it in the 2012 party platform -- even though the head of the party, President Barack Obama, still does not support same-sex marriage.
The "Democrats: Say I Do" campaign will enlist Democratic Party leaders, elected officials, activists and voters to promote the cause.
"An overwhelming majority of Democrats support the freedom to marry, as do a significant majority of Independents and voters under 50 across the political spectrum," said Evan Wolfson, founder and president of Freedom to Marry, which is leading the campaign. "The Democratic Party has a noble history of fighting for the human and civil rights of all Americans. It's now time for the national party to be true to its values and its voters and go unequivocally on record for the freedom to marry."
The language that Freedom to Marry wants included states:
We support the full inclusion of all families in the life of our nation, with equal respect, responsibilities, and protections under the law, including the freedom to marry. Government has no business putting barriers in the path of people seeking to care for their family members, particularly in challenging economic times. We support the Respect for Marriage Act and the overturning of the federal so-called Defense of Marriage Act, and oppose discriminatory constitutional amendments and other attempts to deny the freedom to marry to loving and committed same-sex couples.
If adopted, it would be the first time the party's platform embraces marriage equality. In 2008, the platform stated, "We oppose the Defense of Marriage Act and all attempts to use this issue to divide us," but it did not explicitly call for same-sex marriage.
In 2004, the platform condemned Republican attempts to pass a constitutional amendment barring same-sex marriage, but it also said the decision should be left to the states: "In our country, marriage has been defined at the state level for 200 years, and we believe it should continue to be defined there. We repudiate President Bush's divisive effort to politicize the Constitution by pursuing a 'Federal Marriage Amendment.' Our goal is to bring Americans together, not drive them apart."
The Democratic platform will be ratified at the party's national convention, which begins Sept. 3 in Charlotte, N.C.
Although a strong majority of Democrats are in favor of granting gay and lesbian individuals the right to get married, Obama still does not support this position. Recently, White House Press Secretary Jay Carney said the president continues to "evolve" on the issue, but he still does not publicly back same-sex marriage.
The Democratic National Committee did not return a request for comment.
So far, nearly 3,000 people have signed Freedom to Marry's petition.
The group recently launched Mayors for the Freedom to Marry, a nonpartisan group pushing for the legalization of same-sex marriage. It currently includes 70 mayors from around the country and is chaired by New York Mayor Michael Bloomberg (I) and Los Angeles Mayor Antonio Villaraigosa (D), among others. SOURCE:
Prop. 8 simply can't justify itself
What potentially dooms Proposition 8 as it nears the Supreme Court is not necessarily the distinct whiff of prejudice but a lingering impression of incoherence.
Proposition 8 is a law in search of a reason. What is the purpose of denying the use of one word — "marriage" — to a class of people deemed by the state itself fully capable of taking on all of the child-raising and other responsibilities associated with the word?
The search for a reason may now go to theU.S. Supreme Court, assuming the court agrees to weigh the issue. Last week, in Perry vs. Brown, a divided panel of the U.S. 9th Circuit Court of Appeals held that Proposition 8 was unconstitutional under the Constitution's equal protection clause.
The 9th Circuit relied heavily on Justice Anthony Kennedy's opinion for the Supreme Court in 1996 in Romer vs. Evans, which invalidated a state constitutional amendment forbidding any law protecting homosexuals from discrimination in any area of life. In a 6-3 decision, the court held Colorado's Amendment 2 unconstitutional, in part, because it was "at once too narrow and too broad," identifying "persons by a single trait and then denying them protection across the board."
But is the Supreme Court likely to apply the reasoning of Romer to the Proposition 8 case? As the 9th Circuit panel conceded, the initiative did not deny homosexuals legal protection across the board. Unlike the blunderbuss Amendment 2, Proposition 8 used what the opinion aptly called "surgical precision" to remove the title of marriage from otherwise fully protected relationships. In other words, the court seemed to argue, Proposition 8 violated the principle of Romer because it was at once too narrow and too narrow. That is a curious, and I think strained, application of Romer vs. Evans.
To the extent the 9th Circuit relied on the distinct harm caused by withdrawing six months' worth of court-ordered recognition, the opinion is even more shaky. California voters closed the window as soon as they could; surely their rebuke of state courts can't by itself constitutionally immunize judicial decisions.
Nevertheless, the root question will be why the window was closed at all. Romer makes clear that it is not constitutionally acceptable to disadvantage a class of persons simply to express animosity toward them. But Proposition 8's proponents certainly did not agree that the initiative was motivated by dislike of gay people. And though anti-gay arguments were made in high-profile campaign ads, it would be difficult to know what really motivated 7 million people to vote as they did.
If Proposition 8 is ultimately declared constitutionally unacceptable by the Supreme Court, it might have to reach beyond Romer, to a decision mentioned only sparingly by the 9th Circuit. That is the Supreme Court's decision in Lawrence vs. Texas, which struck down a law banning homosexual sex.
The sorry history of this country's legalized discrimination against homosexuals is striking for the absence of reasoned justifications, for arbitrary lines between conduct allowed and conduct forbidden, and for a tendency to use the asserted immorality of homosexual acts to justify widespread opprobrium of homosexuals. History certainly suggests that an unreasoning prejudice or aversion motivated some laws shutting out gay people.
Texas, for example, prohibited gay sex in 1973 in a so-called homosexual conduct law, but in the very same year the state legalized consensual heterosexual sodomy, adultery and even bestiality. One Texas appeals court judge, a Republican and self-described "country lawyer" who had no schooling in gay rights causes, saw that contradiction as nonsense. In an interview about the Lawrence case, he told me that when it reached his court, he wondered how the state could justify a surgically precise ban on gay sex.
"I kept thinking that if they decriminalized all those things that one would normally say are immoral, then why did they leave this one in? There had to be a reason," he recalled thinking, obviously still baffled. "And nobody could explain to me why."
In Lawrence, the court ruled that the state could not impose the majority's moral code on homosexuals. It could not "demean their existence or control their destiny" by driving them away from relationships. Homosexuals, the court observed, enter relationships for the same reasons heterosexuals do: to share intimacy with a partner, to show affection and obligation, to have and raise children, to establish a place they call home and to love people they call family. California recognized this reality through its broad domestic partnership law.
But just as Texas prosecutors could no longer explain in constitutionally acceptable terms why the law excluded homosexuals from an otherwise transformed codification of sexual morality, the proponents of Proposition 8 cannot explain the titular exclusion of gay couples from an otherwise transformed landscape of family law and marital practice. California has, for very good reasons, abandoned a seamless worldview of legally recognized relationships from which gay couples and their families must be absented. Proposition 8 in California, like the homosexual conduct law in Texas, is an anachronism.
So what potentially dooms Proposition 8 as it nears the Supreme Court is not necessarily the distinct whiff of prejudice but a lingering impression of incoherence. Despite what some critics last week charged, to challenge the sufficiency of the reasons offered for Proposition 8 is not to indict traditional marriage itself as bigoted and irrational. There are many rational, indeed compelling, reasons to support marriage between one man and one woman. Among others, getting heterosexuals to take responsibility for the children they conceive is a powerful reason to encourage them to marry.
But encouraging heterosexuals to take seriously their familial obligations is no reason by itself to deny same-sex couples the full social and legal incentive to settle down. And to confer parental rights, marital rights and marital obligations on same-sex couples without giving them "marriage," Proposition 8's proponents must more convincingly answer one question.
Why?
Dale Carpenter is a professor at the University of Minnesota Law School and the author of the forthcoming "Flagrant Conduct: The Story of Lawrence vs. Texas." source:
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