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Galois' Journal  Thanks to skelkins, my blog is now available in syndication here on LJ. Just go to ![[info]](http://l-stat.livejournal.com/img/syndicated.gif?v=92.2){kind=small} galoisfeed and add to your friends list.
My blogging will now be done over at Galois, my new weblog. Thank you gimmelgirl!
Chris Geidner has a new column up at FindLaw. In it he takes law professors Arthur Miller, Andrew Koppelman, and Laurence Tribe to task for saying they believe the Goodridge decision might allow for a civil union bill in place of marriage. I was especially interested in this column as (1) I enjoy Chris's posts at his own blog and En Banc, (2) I think Andrew Koppelman's recent book is a must read for anyone interested in the question of gay rights, and (3) I just posted on this topic last Friday. ( My thoughts on the column ) UPDATE: Professor Tribe has responded in an e-mail to the accusation that he was supporting civil unions or even interpreting the Goodridge decision as allowing them. Anyone who has read this journal knows that I strongly support same-sex marriage as good public policy. I also believe the Massachusetts SJC was correct in declaring the sex-based requirements for a marriage license in that commonwealth were unconstitutional. I especially agreed with Justice Greaney's concurring opinion in the case. Yesterday the Massachusetts Senate asked the SJC for an advisory opinion on whether a certain bill which intends to grant same-sex couples all the legal consequences of marriage through civil unions, but deny them marriage would be constitutional. Laurence Tribe said he woud be disappointed but not shocked if the SJC declared such an act to be constitutional. Based on that article and past statements it seems that Tribe would view the court as backing down from its convictions in the face of political realism in finding the civil unions bill constitutional. While I think that simply allowing same-sex marriage would be better policy than the civil unions route, I also think that such a bill would nonetheless be constitutional. ( My reasons... ) Current mood:  quixotic.
Perhaps we should have a constitutional amendment to forbid Neil Bush from ever marrying again. Kathryn Jean Lopez (scroll down) thinks it's unfair that Harvey Fierstein brings up the name of Father Mychal Judge a gay fire department chaplain who lost his life trying to save others on 9/11. In fact she said it was nasty to bring up his name. I mean how dare someone actually remind people that gay people can also be heroes. It makes it so much more difficult to discriminate against them. I think, in fact, that was the point Fierstein was trying to make. By the way, Fierstein was amazing in Hairspray and I highly recommend seeing it with him if you can. Maggie Gallagher has a column on why she would support--for political reasons--a Federal Marriage Amendment that defines marriage as being between a man and a woman, but that also allowed for civil unions--which she opposes. It's an interesting article, and I agree with much of what she says, but I must take exception to a few points. ( Read more... ) There's been some talk that the Mass SJC decision will increase the chances of passage of the Federal Marriage Amendment (FMA) (see for example this post by Eugene Volokh). I don't think such an amendment is likely, though. First of all, while a majority of the nation is opposed to legal marriage for gays, that opposition does not necessarily translate to a desire for constitutional tinkering. For example, see this September 2003 ABC News Poll. It showed a 55%-37% opposition to legalizing same-sex marriage, but at the same time a 70%-20% oppisition to amending the constitution to prohibit it. People sometimes use the overwhelming support for the Defense of Marriage Act (DOMA) in 1996 as evidence that the FMA could achieve broad support as well. DOMA passed the Senate 85-14 and the House 342-67. Would such support translate to support for the FMA or even simply embedding DOMA in the Constitution? I don't think so. Consider the push for an amendment to prohibit flag burning. In 1989 Congress overwhelmingly passed the Flag Protection Act (91-9 in the Senate and 371-43 in the House</a>). Yet the amendment necessary for that act to have any effect has never made it into the US Constitution. I think many legislators are much more reluctant to amend the constitution than to pass a law. That's not to mention that DOMA would leave the matter of same-sex marriage to the individual states whereas FMA would prohibit states from deciding the matter for themselves. That's why Bob Barr who introduced DOMA is actually opposed to FMA. If you're wondering what the effects of the Massachusetts decision will be it is helpful to read the following FAQ's. First we have a FAQ from The Human Rights Campaign. They are a national organization working for equal rights for gays. They will play a key role in lobbying against the Federal Marriage Amendment. Interestingly, their new executive director will be Cheryl Jacques who will be leaving her sixth term as Massachusetts State Senator to take on the position. I'm guessing she will be among the first to take advantage of the court's ruling. Also check out a FAQ from Gay & Lesbian Advocates & Defenders. They are the organization that argued this case before the Massachusetts Supreme Judicial Court. Their legal team was led by Mary Bonauto who did an excellent job. GLAD works on legal cases on behalf of gays throughout the six states of New England. There seems to be a lot of confusion around the remedy the Mass SJC ordered. The court wrote ( that civil marriage is between two persons and that the final judgment should be delayed 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion ) Some people have thought this allowed the Mass legislature to adopt civil unions or gave it time to amend the constitution. It certainly does not do the latter as amending the constitution in Massachusetts takes several years. It is less clear from the opinion whether civil unions would suffice. The court states clearly that the state has had ample opportunity to justify the exclusion of same-sex couples from civil marriage and has not done so. It's not giving the state another six months to come up with new laws and new reasons to exclude. So why did the court give the legislature six months? I think the reason is that the court understands that the legislature may wish to make changes to other laws in light of the fact that same-sex couples will be getting married. For example, John Derbyshire asks whether cell mates could now get married. The legislature or the department of corrections may wish to deal with such an issue. The legislature doesn't have to do anything, though. If after six months, it does nothing the department of health will be required to give marriage licenses to same-sex couples who request it. |
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