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Same-sex marriage: 10 Attorneys General agree

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I've still got a bunch of entries on this topic waiting to be written, but I'm gonna leapfrog over those to post some more recent stuff.

For example: ten states' attorneys general have asked the CA Supreme Court to stay its decision until after the November vote. (Assuming the amendment makes the ballot, but that seems very likely.) Excerpt from NY Times article:

The attorneys general said that allowing same-sex marriages now could unnecessarily open the door to legal challenges from gay residents of other states who get married in California. Upon returning to their home states, the newlyweds could demand equality in everything from tax-filing status to testimonial privileges in civil suits, the attorneys general said.

“Absent a stay of the mandate in this case, that number will certainly be very large indeed,” Mark L. Shurtleff, the Utah attorney general, wrote on behalf of the group in a letter delivered on Thursday and released publicly on Friday.

Yes, that's right: we, the attorneys general, want you, the CA Supreme Court, to prevent same-sex marriage because it will be too popular. (Too many of those damn gays might demand equality!) Meanwhile, all the other opponents are arguing that it should be stopped because it's too unpopular.

Yes, I know they're not talking about the same thing. But I was amused nonetheless.

Maybe we supporters of same-sex marriage should start referring to ourselves (or at least our, um, numbers) as "very large indeed."

. . . Y'know, 26 states have constitutional amendments prohibiting same-sex marriage, and all but 6 of the other states have laws against it. It's not like there's been a wave of pro-same-sex-marriage sentiment sweeping the nation. It begins to sound to me like the A.G.s are being a little paranoid. "OH NOES!" they seem to be saying; "our state might catch GAY COOTIES from California! Also, it is SO MUCH WORK for POOR US if our gay citizens go off and get married in your state and then want us to recognize them! WILL NO ONE THINK OF THE ATTORNEYS GENERAL!"

. . . Anyway, so one good thing about this request for a stay is that Jerry Brown, the CA attorney general, is opposing it, saying that "the matter has now been resolved by the state Supreme Court." Brown's office was defending the law that the Court struck down, and I was kinda upset about that; but I've subsequently been told that the A.G. was legally bound to defend it, and it now sounds to me like maybe he was just doing his legal duty rather than defending it because he believed in it. Brown says:

The Court has declared the law governing the right of same-sex couples to marry, and the Attorney General undertakes to give effect to that declaration with no less vigor than he previously sought to give effect to the statutes in dispute. [...] It is time for these proceedings to end.

As quoted in an International Herald Tribune article. Also from that article (but not a quote from Jerry Brown):

The Supreme Court has until the close of business on June 16 to decide on the stay request, but it also could give itself a 60-day extension to consider the matter. The California Office of Vital Records informed local officials this week they can start issuing marriage licenses to same-sex couples on June 17, barring further instructions from the court.

So, one way or another, we'll know more within a couple weeks.

Oh, and I admire San Francisco City Attorney Dennis Herrera's take on this (according to a San Francisco Chronicle article): "To further delay constitutional rights to gay and lesbian partners based on political conjecture as to whether or not an amendment will pass--or even qualify for the ballot--would be both unprecedented and inhumane."

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When the Massachusetts State Supreme Court ruled to legalize gay marriage in 2003 the towns & cities were given a few months until May 17, 2004 when gay marriage would go into effect. Of course Romney & his cronies tried everything to stop it but failed. Even after gay marriages were performed they tried to get an amendment on to the ballot until June 14th, 2007 when it was finally defeated in the State House. For those who are still uncomfortable with this check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue: www.OUTTAKEonline.com


It's not like there's been a wave of pro-same-sex-marriage sentiment sweeping the nation.

I think there has been, but there's also been a wave of anti- sentiment. Or, rather, look at it this way: interest groups are most vocal when they are large minorities, big enough to have a good chance of influencing policy but not big enough to be complacent that their policy will prevail (this has been studied, and it isn't always true, and perceptions of the size of the groups are more important than the actual sizes, etc, etc, but it often holds). The big wave of anti-gay-rights legislation between, oh, 1990 and 2005 was accompanied by an even bigger wave of quiet support for gay rights, and actual legislative successes as well (civil unions in several states, marriage in MA, etc). There doesn't seem to have been an effective electoral backlash against pro-gay-rights legislators and governors, and anti-gay-rights legislators and governors have not been conspicuously successful, either.

As you address in your next note, the polls on the issue are a bit complicated, and the results depend on a variety of factors. The trend, though, seems to be a slow increase in support for gay marriage between 1975 and 2000 or so, and then a faster increase since then. In other words, a wave of pro-same-sex-marriage sentiment sweeping the nation. Hurray!

More to the Utah AG's point, though, is that there is clearly a perception amongst anti-s that they are in danger of becoming a minority. Thus their urgency in the last decade to get those laws passed while they still could. Furthermore, it is very likely true that marriages solemnized in California will create massive legal problems for the states that have discriminatory laws on the books in violation of full faith. Even more important, these are people who (largely) believe in the Domino Theory, that every step down the road to the Inferno leads to another. Where many of us have a sense that history is just one damn thing after another, that there are cycles of “civilization” and “barbarism” or that any given historical moment has much of each, other people have a strong sense that history progressed to a peak, and that the job of each generation is to keep it at that peak or risk further degredation.

Well, that was far too long, and if I had time, this morning, I'd make it shorter. My point was just that the wave of public opinion can easily be seen as going either way, depending largely on which way frightens the viewer more.

Thanks,
-V.


Charlotte: Thanks for the link.

V: Yeah, okay, very good points. A slow but vast groundswell is indeed a wave.

Re perception: I tend to agree with this idea in general; I think a lot of people on all sides of all political fronts feel embattled and besieged. But that hasn't been my perception of the anti-same-sex-marriage contingent's approach; it seems to me that they've fairly consistently said "this evil small minority is trying to undermine the beliefs and culture of the vast majority." There are all sorts of things wrong with that statement, but I haven't had the impression that they're worried about becoming a minority; their argument is that the minority view is being imposed on the right-thinking majority. The urgency has been, I think, to pass laws before the minority (working through the "activist" courts) can impose their will.

I'm not so sure about the massive legal problems for states with discriminatory laws. Recall the discussion the other week of the public policy exception, and recall that the Federal DOMA explicitly allows an exception to full faith and credit. I assume that this is the route by which a same-sex marriage case will eventually reach the US Supreme Court, but I think that's going to be a long and slow and careful process--nobody wants to mess it up. I could be wrong about all of this, but I don't think we're going to get an immediate wave of recognize-my-CA-marriage lawsuits. I do think we're going to get an immediate wave of don't-recognize-same-sex-marriages-from-CA legislation in other states, though. (That is, in whichever other states haven't already covered that loophole.)

I agree with you about the Domino Theory, and of course when things I dislike happen, I use that kind of argument myself. I tend to feel that we should oppose even the small steps on the road toward Pure Evil, and I imagine that that's what at least some of those A.G.s believe they're doing. So, yeah, I can empathize with them even though I disagree with them.

Really, I was mostly reacting to what felt to me like the A.G.s' tone of being picked on by big gay bullies, and my sense that that's an inversion of the actual power relationship here.


The issue of out-of-staters was the one area Romeny found a toehold -- he dusted off a 1919 law which had been enacted to keep the southern states from retaliating when MA *gasp* legalized mixed-race marriages. Way back then, MA passed an appeasement law saying that clerks were not allowed to issue marriage licenses to people from states where their marriage was expressly forbidden. Most current local clerks protested, saying they had not been checking the laws of the home states of applicants in the past, and shouldn't start now, to which Romney said that, well, they SHOULD have been checking the other state's laws every time they registered an out-of-state couple, and now they had to or would lose their jobs. So various cities with vocal clerks announced loudly that it would take some time to get that system set up and as of such-and-such date they would start doing so. And, menwhile, here's the mapquest directions from RI to their office.

But in reality, differences between states do raise something of a headache, since no state has a residency requirement for a marriage license, but most of them do have (varying) residency requirements for divorce (that's why NV became the divorce capital -- everywhere else, you have to establish residency). Steve had a couple who'd married up here, then moved to FL, and then decided to get divorced. But FL wouldn't do it bacause, according to FL, there's no marriage to dissolve, and MA wouldn't unless at least one of them moved back here for several months.

So the upshot of such legal discrepancies is that states which oppose gay marriage will end up forcing gays to be married, whether they want to be or not.


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