While the Colquille are the first Native American tribe to legalize same-sex marriage in the modern sense of the word, marriages between members of the same-sex were fairly common among nearly all Native American tribes prior to the arrival of westerners. Western explorers documented meeting “Two-Spirits” in their early explorations. Two-Spirits in Native American culture were men or women considered to possess both male and female spirits within their body (regardless of their anatomical gender). What interesting, from a westerner’s perspective, is that these Two-Spirits were not only accepted and welcomed into Native American society, but they were often honored and celebrated, taking on mystical professions such as medicine men. More relevantly to modern gays and lesbians, the spouses of Two-Spirits were often of the same anatomical gender. Two-Spirits started to lose their status when Western anti-gay bigotry began to influence the Native Americans, and eventually became virtually unheard of. It will be interesting to see if the growing acceptance of gays and lesbians in Western culture might bring back the cultural significance of the Two-Spirit in Native American culture.

Supporters of the ban contend there is still no empirical evidence that allowing gays to serve openly won’t hurt combat effectiveness.

Obviously, this is the argument you most frequently see used against atheists who are told, for some reason, that it’s their responsibility to “prove” that there is no god, but that’s not really a can of worms I’m hoping to open with this post. Rather, I’m more interested in noting that the inability to prove that A is false does not logically mean that A is therefore true, and such an assertion is a cowardly way of avoiding having to support your own assertion. That’s doubly so when there is significant evidence to contradict, though not deductively disprove, A (in this case, citing the examples of effective fighting forces with openly gay members in other countries, the attitudes of polled US Servicemen and women, etc.). Yet that is exactly what is being done here by proponents of DADT.

I can already hear the DADT proponents protesting, “But you have to prove us wrong, because the burden of proof is on you; you’re the one who wants to change the status quo.” Here’s where you’re misunderstanding things. Accepting the burden of proof doesn’t mean I have to disprove your argument, only that I must prove mine. I can objectively prove that allowing members of one sexual orientation to serve openly while not allowing members of another to do the same is, by definition, discriminatory and that is, without more, a violation of our equal protection laws. Now, it’s up to you to refute my proof by showing a good reason why my proof doesn’t warrant a change in the law. In other words, now it’s up to you to prove something. The same goes for gay marriage prohibitions and any other law which harms a citizen. If a law harms someone, then the proof to justify a potential change is automatically on the table. That levels the playing field. If you have arguments to back your position, lay them out, but don’t hide behind misplaced burden of proof. It’s on you now.

On an unrelated note, what a great time for Obama to step forward and introduce legislation to do exactly what this study recommends: repeal “Don’t Ask, Don’t Tell.” Such a move would even win him back alot of the respect I’ve lost for him over his recent pandering to the religious right, and it wouldn’t even be that politically dangerous considering that 79% of the general public support repealing DADT (and 73% of military personal are themselves comfortable with gays and lesbians). This would be a great way this would be for our next President to show that he will stand strong in support of gay and lesbian citizens.

This isn’t a post to unravel her arguments against gay and lesbian adoptions in part because she gave none in any of the footage they aired (from what they showed she either got angry and stormed off, started crying, or both, every time someone asked her to defend her position). Something else stood out to me as I watched. She seemed genuinely surprised that gay-headed families would be upset that she wanted to take their kids away. The clip below is the first time she mentions it, while attending a picnic for lesbian mothers and their children, but she mentions it else where (and with more apparent sincerity) several times through out the rest of the show.

Shortly after that clip ended she asked the camera, tears streaming down her mascara-stained face, “Why do they have to take it so personally?” And that bewilders me. We know from the beginning of the episode that she has two adopted children of her own. If someone marched into her home and declared themselves an advocate of having her children taken from their home and her family left in pieces, would she not take that personally as well? Yet, I think the inability to walk a mile in another’s shoes is the reason (or defense mechanism by which) opponents of gay and lesbian adoption (or marriage equality for that matter), are able to say (and often sincerely believe) that there is no “hate” in their position. For them, “losing” means no change in their daily lives. They may not like it much, but without a change to their lives, the soreness of not being on the “winning” side will wear off and they’ll mostly forget all about it. It’s just an “issue” not all that different from deciding whether the state cat will be a Siamese or a Persian; sure you might have a preference but is it really that big of a deal if you don’t get your way? For many of them, as appears to be the case with the woman in this episode, they’ve managed to convince themselves that it is more or less the same for folks on the other side of the argument.

But it’s not. Gay people (and their allies) are not fighting to “win” and they’re not fighting to be “right.” They are fighting because their families are in danger, and not in the nebulous vague “gay people are going to destroy marriage” way, but in the very real and concrete “I don’t want social services knocking on my door to take my children from our home and toss them into foster care” way. They’re fighting, first for the very right to even have a family, and secondly for the right to protect that family. If they lose, it’s not a simple matter of “aw shucks, better luck next time,” but rather a devastating blow to nearly every aspect of their lives. In the case of gay adoptions, the hardest hit victims are often the children, who are being torn away from everything they know and love; something that can truly have a permanent negative impact on the child’s life.

As an aside, I have a few issues with this particular episode of the show. If an adult sharp-shooter wants to invite an adult gun control advocate into his house for 30 days, it’s one thing, but in this case I don’t think the situation was very fair to the children. Children of gay couples are exposed to people like the woman in the show, who think the very existence of these kids’ families is wrong, out in the “real world.” Home should be a place where they are safe from that kind of thing.

What if I really love my dog/daughter/house/tree/goat? Should I be able to marry him/her/it too?

After the Massachusetts decision, this was pretty much the defacto “argument” against gay marriage. For awhile though, it seemed the sheer ridiculousness of it had slowly pushed it into the repertoire of only the least educated and eloquent of the bigot brigade. Lately though it’s been making a bit of a come back across the board. The response is very simple. There is a clear objectively determined reason for limiting marriage by ability to consent (eliminating animals, inanimate objects, and children) and widening the gene pool (eliminating close incest).

Why can’t I marry 500 other people? I mean if we all love each other, that’s what matters right?

The irony of this argument is that the people using it most frequently consider themselves “defenders of traditional marriage,” and what form of marriage pray tell has a longer tradition than polygamy (or at least polygyny)? Seems to me that based on their self-identification, these folks would be major proponents of polygyny. All humorous irony aside, traditional polygyny (such as that still practiced by fundamentalist sects of the Church of Jesus Christ of Latter Day Saints) is rife with exploitation of women (usually beginning while they are still children), physical, sexual, and emotional abuses, and a host of other objectively undesirable traits.

That being said, there are a small minority of folks who have successfully engaged in truly polyamorous relationships (in which a group of more than two people love each other and wish to share their lives together). Personally, if they’re happy, I’m happy for them and have no objection to them seeking legal protections for their families, but (it’s a big but), civil marriage isn’t capable of offering them the protections they would need. As a lawyer, KipEsquire explains this point better than I could in his posts on the subject here and here, but if I can sum it up in layman’s terms; the legal institution of civil marriage (as powerful and expansive as it is) simply can’t meet the needs of more (or less) than two people. Marriage laws, as they rest on the books right now (sans arbitrary gender-specific language), fully meet the needs of same-sex couples (at least to the exact degree that they meet the needs of different-sex couples). A polygamist relationship brings with it a vast number of issues not currently addressed by civil marriage. Who is married to who (are all members married to each other, or is it a network of “sub-marriages,” in which one may be married to one spouse in the relationship but not one’s spouse’s spouse)? Who makes decisions when a spouse is incapacitated? How do divorces work? When it comes to polygamy and marriage, it’s not a matter of should marriage apply to polygamist relationships in modern society, but rather a question of can marriage apply to polygamist relationships in modern society; and the answer is a resounding “No.”

Marriage is about children.

Marriage is NOT about children. Straight couples incapable of having children (whether because of age, medical conditions, or even location) marry every day. I’ve heard it suggested that we allow the infertile to marry just to prevent them from running around having sex with everybody while not bearing children (in other words we chain them to one other person so they don’t pollute the rest of the population with procreation-less sex), but I don’t think that’s a notion that is even worth validating with a response. Of the thousands legal policies relating to civil marriage, only a small minority of them have anything to do with children. Clearly then, children are not a necessary element to a marriage.

But let’s, for a moment, assume that marriage IS in fact about children. It still doesn’t follow that gay couples ought to be excluded. The fact is that many, many, many gay couples out there have children (via previous relationships, adoption, artificial insemination, surrogacy, etc.). If marriage is about protecting children, why would one argue that the children with parents of the same sex are any less deserving of those protections. In fact, if marriage we’re truly about children, wouldn’t gay parents actually have MORE of a claim to marriage than childless straight couples?

Yet the “it’s all about the children” meme has legs and was even inexplicably cited as the dominant deciding factor in the Washington and New York’s Supreme Court decisions on the topic. The notion both of those courts put forth was that society has the right to encourage heterosexual marriage for the purpose of raising future generations. This misses the mark on two counts. First, of course, it starts from the invalid proposition that marriage is exclusively, or even primarily, about raising children. Secondly, and more importantly, it’s a ruling on a case that was not even in front of the court in the first place. The courts simply answered the wrong question. They were not asked if there was a state interest in encouraging heterosexual marriage, they were asked if there was a state interest in prohibiting homosexual marriage. The reality is that even if you accept the courts assertion that the state’s interest in straight marriages is to encourage the raising of children, you still have to explain how prohibiting gay marriages furthers that goal. Plainly, it doesn’t, and if it doesn’t, then you can’t legally deny the same rights to a segment of the population.

God hates fags, and marriage is a religious institution.

One of the great things about this country is that we enjoy the freedom of religion. That has allowed religions of all kinds to not only exist but thrive. Each of those religions has a different view of homosexuality as does each denomination within those religions and even each individual within those denominations. Given our freedom of religion, those religions and denominations which recognize marriages between members of the same sex ought to have their rights to do so respected equally as strongly as those religions and denominations which do not. The same separation of church and state that prevents religion from interfering with the government prevents the government from interfering with religion.

Certainly, the government has no business telling religious organizations how they may or may not conduct, record, and recognize their religious ceremonies, customs, and institutions. However civil marriage, both legally and traditionally, is a separate entity from religious marriage. Same-sex religious marriage already exists (among those religions and denominations which recognize it). The question being battled over in the courts and legislatures is only one of the civil institution.

I’m ok with "civil unions," why does it have to be "marriage?"

The Constitution (both federal and every state that I’m aware of) requires equal protection under the law, not just, really, really close to the same protection. Marriage is so inseparably woven into the fabric of our laws that any attempt to create a different legal status exactly the same as marriage is virtually impossible. This is already being shown in New Jersey where the legislature created civil unions "identical" to marriage instead of simply legalizing marriage for same-sex couples. Already cases are making their way back up through the courts in which couples in a civil union are being legally treated differently than a married couple. And New Jersey is the only state that even attempts to suggest that it’s civil unions (or domestic partnerships) are equal to marriage. The Supreme Court has decided that separate but equal is inherently unequal. It’s proving to be as true on this issue as it was on segregation.

Further, even if a civil union could be crafted that was 100% equal to marriage, why would such a thing be necessary? Is it not fair to ask the same question of the anti-marriage crowd; why so much fuss over just a word? Crafting such a civil union would require massive legislative changes on both the state and federal levels, likely costings millions or even billions of dollars. All just so the government can tell gay people, "while we’re going to give you the rights of marriage, we want to make sure that ou know that your relationships still aren’t as valuable to us as straight relationships?" That makes no sense. And if it did, could such a thing honestly be considered "equal" anyhow?

The government just needs to get out of the marriage business?

If you buy that such a thing would be desirable in the first place, this argument might be appealing in theory. In reality though, the government is in the marriage business, always has been, and it’s not going to change. As long as the government is in "the marriage business," it is indefensible for it not to extend those protections to all it’s citizens. For the record, does anybody ever recall hearing "get the government out of the marriage business" prior to gay marriage making headlines (or for that matter seperate from the gay marriage issue)? I think alot of people say this to sound like they want to treat everybody equally while still opposing gay marriage, but I have to say, to me, it comes across alot more as "I oppose gay marriage so strongly that I’d rather everybody do without then let gay people marry."

I don’t have anything against gay people, I just support traditional marriage.

Which tradition exactly is it that you support? Polygamy perhaps has the longest tradition behind it. Arranged marriages? Marriage for nothing more than social and political advancement? Marriage to children? All of these things have been part of marriage tradition at various times. As late as 1976, marriage provided legal absolution for men who raped their wives(!!!), in the United States. Is that part of the "traditional marriage" being defended? If it’s not, then why were those changes ok, but this one not? What is the criteria that defines "traditional marriage" because from here is looks an awful lot like "traditional marriage" is simply marriage with whatever changes society chooses to make to it as long as gay people aren’t allowed to engage in it (and if there’s a difference between that and having something against gay people, I can’t see it).

Gay people have the same right to marry a member of the opposite sex as straight people do?

Yeah, and black people had the same right to marry a member of their own race as white people did??? The logic between the two statements is entirely the same. In the 1967 SCOTUS case Loving vs Virginia, the court found "no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification[.]" If all other arguments against gay marriage fall flat (and indeed, this post is at least an attempt to show that they do), how then can any honest court not similarly find no legitimate overriding purpose independent of invidious sexual orientation discrimination which justifies this classification? Especially if one affords gays and lesbians the status of suspect class as was done by the California Supreme Court (though I’d argue that prohibitions on same-sex marriage fail even a rational basis review). Absent a damned good reason, people ought to be able to marry who they want. To quote Mildred Loving, "That’s what Loving, and loving, are all about."

But, if you’re determined to not view gays and lesbians as a suspect class, and you insist that rational basis really just means any basis whatsoever however irrational), you’ve still got to contend with the fact that gender, as a class, requires at least intermediate scrutiny and prohibitions on same-sex marriage are undeniably examples of gender discrimination. Should a woman be denied the right to marry a woman when a man has that right? And since there are unequal populations of males versus females, it’s not even accurate to argue that both men and women are equally handicapped by the restrictions.

Gay people only want to get married to gain acceptance for their "lifestyle."

Guessing at the motives of groups you’re not a part of is dangerous at best, and certainly most gay people would dispute such an assertion as to their motives, but really, does it even matter? From the viewpoint of the government, it shouldn’t matter why a group of citizens wants certain rights, but only whether they are entitled to them. Most gay couples who would like the option to get married, want it to protect their families, solemnize their relationships, live under a set of rules that more closely match their place in society (two living as one), and gain acceptance from family and friends. Each of those holds a different priority for each couple, and all of them are valid reasons, but even if none of them were, the Equal Protection clause doesn’t end with "if you have a good reason." People don’t have to justify their claims to equality.

It’s an issue that should be decided by the voters, not "activist judges."

There’s a legitimate debate to be had over whether the rights of groups of people should be left to the (often fickle) whim of public opinion. For instance, was slavery OK when the majority of people would have voted in favor of it? And if we should vote on human rights, didn’t we already vote on this issue when the constitutions and amendments containing equal protection clauses were ratified? Seems to me that the people have spoken and decided that equal protection was something we wanted in this country. If they’ve changed their minds, then the only true remedy is to repeal those clauses. The bigot amendments that have passed have placed another level of complexity in their respective states by introducing a contradiction into their constitutions. A judge presented with a same-sex marriage case in one of those states will find themselves in the unenviable position of having to become actual activist judges because any decision they make would be a violation of one part of their constitution or another.

But the judges who have already made the decisions, were they activists? Unless your definition of "activist judge" is "any judge who makes a decision I disagree with, the answer is clearly "no." The judges were asked to decide if denying gay people equal marriage rights violated their constitutions’ guarantee of equal protection, and they decided that it did. What is so activist about upholding the constitution? What other job could a judge possibly have? When the law violates a citizen’s constitutional rights, a judge only has the option of striking either the entire law from the books, or striking the language from the law that runs contradictory to the constitution. Judicial activism would mean creating a new law that did not previously exist. That simply hasn’t been done in these cases.

I’ve heard it said that gay couples themselves should be working to win hearts and minds instead of suing for their rights. Gay people, by and large, are striving to win hearts and minds, but when one’s rights are being denied, where does one go other than the courts? The denial of equal marriage rights means that the law was broken in such a way that it caused harm to gay couples who wished to marry. If your neighbor stole something from you, would you contact your legislator and ask that they propose legislation to outlaw stealing? Of course not, because stealing is already against the law. Similarly, when gay people are confronted with a violation of equal protection, they don’t contact their legislator and as them to pass equal protection legislation; that legislation has already been passed.

Apparently very quietly and mostly into your lap. Reading the comments under the video clip was interesting. Seems some people thought bringing it up went too far because they “watch Ellen because she’s funny, not to find out her politics” (and how dare a talk show host bring up politics while interviewing a politician?). Most of the negative responses boiled down to this: “It was uncomfortable to watch.” And that’s not surprising. It’s easy to attack gay people when they are some nebulous abstract group. Its a very different thing to do so when you’re face to face with a real, living, breathing, and outright likable gay person. When you put a human face on the issue, it forces you to recognize that you are intentionally and seriously harming people for no reason. Because most of us like to think of ourselves as good people, the recognition that we are doing something so evil is hard to take.

Would McCain have voiced his opinion with such visible shame were he giving a speech to a rally of bigots? Not likely. It could be most any gay person, but in this case it was Ellen who acted as a mirror into McCain’s heart and it was pretty obvious he didn’t like what he was seeing. Apparently, many of the “uncomfortable” viewers also didn’t like what they saw of themselves in that particular mirror. If I’d been Ellen, I’d have polished the mirror a bit more. I wouldn’t have allowed any of this “we disagree” crap. I’d have asked McCain to state directly to my face the words “You don’t deserve the same civil rights that I do.”

As a bit of an aside, McCain’s response is yet another reason that this just won’t be that big of an issue in the coming election. The Republican candidate’s position is really not all that different from the Democrats (and shame on the two Democratic candidates for that being the case). It’s hard to mobilize an army of voters on a topic you more or less agree with your opponents on.

There’s still an effort in the works by the California religious right to add an amendment banning marriage rights for same-sex couples to the state constitution, but I’m thinking it will find little success if it even makes it to the ballot. Especially if this decision leads to a sudden boom of same-sex marriages. If Massachusetts and foreign countries which have established marriage equality are any indicator, once people see gay couples marrying and realize the sky isn’t falling, they tend to stop opposing it.

Of course, the question remains as to what effect this might have on the Presidential election. In the last presidential election, anti-gay sentiment gave the GOP a big bonus, but I’m not so sure it will be as big of a deal this year. First of all, most of the states in which a anti-marriage amendment could pass, have already passed them, so there won’t be that incentive for the bigots to hit the polls like there was last time around. Second of all, we have had legal gay marriage in this country (in Mass.) for years now. As I noted above, fear tactics don’t work when the target is revealed as just not really being all that scary. It will however almost certainly make the candidates lay out their views on marriage equality, but if the scare tactics have indeed lost their teeth, will the majority of straight America even care?

Update: It appears that the decision does in fact make California the second state to establish marriage equality. The courts reasoning is the same that I’ve stated numerous times:

“There can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state’s general legislative policy and preference,”

That is to say that the only decisions a court can possibly make about marriage laws without contradicting equal protection clauses is to either strike the marriage laws from the books completely (nobody can marry) or strike gender-specific language from the laws. Clearly, the preferred method is the later and that’s just what the CA Supreme Court has done.