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Zoethe

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Donning the asbestos suit [Nov. 4th, 2009|07:50 pm]
Zoethe
I should be writing about the wedding. I really intend to write about the wedding. But then Maine happened, and I feel that I have to write about the reactions I'm seeing.

Let me state straight off that I am heartbroken about the vote in Maine. I am a staunch supporter of gay marriage. Even though anyone who has read me for any length of time knows that, I have to state it up front, and even having done so some people are not going to be able to hear what I am saying. I expect to be thoroughly flamed for telling the truth. it won't be the first time.

The most common response I am seeing to the Maine referendum is, "How dare they think they can vote on my civil right to marry whom I please?!"

Here's the thing: you don't have a civil right to gay marriage.

We want to think of civil rights as forces of nature, but they are compacts within society. And gay marriage has not been defined as a civil right by the U.S. government, or for that matter very many other governments in the world. Many people can't even wrap their head around the notion that gay marriage is a civil right because they are so caught up in the traditional intent of marriage, which was a way to survive in the world, raise children, and pass on property. They don't understand why they think of marriage in that way because there hasn't been anything to make them think of it in any other way.

We haven't brought them into the social compact of a new view of marriage.

This is not unprecedented. At one time in this country, Negroes were not considered people. Dred Scott, the terrible case that decided that persons of color did not have civil rights, meant that the social compact treated millions of former slaves as less than human. People recognized that it had to be undone, and laws were passed in states. But for a period of time until it was overturned, persons of color only received permissions to do things, not rights.

Gay marriage should be recognized as a civil right. But getting to the point where that compact within society exists is still a battle that has to be fought. We can't skip that step. We tried, and the citizens of most states where gay marriage has been judicially or legislatively passed have voted to repeal those rights.

Until that social compact is made, this is going to keep happening. It's sad and terrible, but it's the reality that we have to work with. Just railing that it isn't right or fair is not getting the job done. We need new strategies.


The other argument I keep running into is that the U.S. is a representational democracy, not a direct democracy, and that all we are getting is "mob rule." But what people are forgetting is that this is not a federal issue. And states often have something closer to direct democracy in the form of the referendum.

Marriage has long been a states rights issue, notwithstanding Loving v. Virginia (interracial marriage). Marriage laws are made by the states, and the whole thing will not become a federal issue until enough states recognize gay marriage that it is an issue. Loving v. Virginia was decided by a highly activist court, which the current court certainly is not and is unlikely to become so. We can't count on them.

The majority should not deprive the minority of civil rights, but we have to get to an agreement as to what those civil rights are. We have more work to do on the ground, convincing people that gay marriage is not ridiculous. For all of civilization marriage has involved a pair of people genetically capable of reproducing. To a lot of people, that's still what marriage is. There's a whole center that still doesn't "get" why gay marriage is even an issue, and most of the voices they hear on the topic are spewing on Fox. We need "boots on the ground" talking about rights in a way that those people can hear. I don't know what that way is, but we have to find it.
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[User Picture]From: zoethe
2009-11-05 01:07 am (UTC)
And the need for asbestos underwear!
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[User Picture]From: kisekinotenshi
2009-11-05 01:12 am (UTC)
Yes. Yes yes yes. I feel like a lot of people are trying to just jump straight from "wait, maybe gay people should have the right to marry" to "yay now anyone can marry anyone who is a consenting adult!" without taking any of the steps in between.

I personally believe that gay marriage will become a right. Just as a good society recognized, eventually, that every race needed to enjoy equal rights under the law, I think a good society will recognize that anyone who loves another person should be able to enjoy all the legal benefits that hetero marriages have had forever. But I don't think we've reached that point yet. There's still a whole lot of work to do.

In a perfect, just world, this wouldn't be an issue at all. But this is the world we live in, and we have to struggle mightily to get to that point where it becomes a just world. Being unhappy about it is natural, but it doesn't excuse us from our responsibilites.
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[User Picture]From: audacian
2009-11-05 01:17 am (UTC)
Loving v. Virginia also specifically defined marriage as a fundamental right. Are you taking a purely historical/traditional definition of marriage and asserting that the 14th amendment offers no protection to same sex couples?

While I would agree that heterosexual marriage is not socially defined and understood as being the same as gay marriage, the law has no basis for making this distinction other than its decision to cling to the "traditional" definition of marriage. I'm a big fan of the "Living Constitution" idea, and while perhaps in Loving the court wasn't considering gay marriage as being included in marriage, it makes sense now, given the (slow) expansion of GLBT rights under the 14th amendment and elsewhere.

Pragmatically, though? You're spot on about how gay marriage (and any LGBTQ rights) are really secured. You can't count on the courts (or the legislatures, the slow moving creatures that they are). Pounding the pavement will get results.
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[User Picture]From: zoethe
2009-11-05 01:45 am (UTC)
Loving v. Virginia did not even consider the possibility of gay marriage. At that time homosexuality was illegal in almost all states and that fact was not found unconstitutional until 2005. While I am a fan of the Living Constitution, there has to be some attention to stare decisis or Antonin Scalia would be looking for ways to overturn Brown v. Board of Education - remember that anything you like can possibly be used against you!
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[User Picture]From: cynic51
2009-11-05 01:19 am (UTC)
The strategy will probably have to involve a lot of "Look, you know people who are homosexual. You're friends with people who are homosexual. You probably even have family who are homosexual." And once people get over that hurdle and acknowledge that they know people who are directly negatively effected by this, it's not a big jump for them to support this issue.

We've got to remember that only 12 years ago, it was a really big deal when Ellen's character came out on her TV show. Now homosexual characters are no big deal in any entertainment media. I take this as a sign of progress. There is still a long way to go, but we ultimately this will not be an issue any longer. It just sucks that so many people are going to be treated unfairly in the meantime.
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[User Picture]From: zoethe
2009-11-05 01:53 am (UTC)
There are a lot of people who know they have gay friends but still don't get why they "need marriage." I have talked to people who were against gay marriage and explained what those rights really meant and have changed minds. Not every mind, but some.

It is a lot of progress, but it's hard to keep being asked to be patient.
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[User Picture]From: zoethe
2009-11-05 02:03 am (UTC)
It's easier to define than to figure out the solution, though. Alas.
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[User Picture]From: dreagoddess
2009-11-05 01:34 am (UTC)
Thank you for this. I do support gay marriage, but I've had a bad taste in my mouth for the past several years from the way that it's being just shoved through and everyone who doesn't absolutely support it is just homophobic. This is a sea change in people's thinking, and we can't just skip a very important step. I think it's been trying to skip that step that's led to more of a backlash lately. People need to be convinced, not harangued.
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[User Picture]From: kibbles
2009-11-05 01:58 am (UTC)
It shouldn't be up to a vote. People shouldn't have to vote on the rights of others. If that were the case, a lot of interracial couples would not be married STILL. It's ridiculous that people have to 'change minds' to have the same rights I enjoy. Did any state have interracial marriage up for a vote or was it all courts and legislation?
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[User Picture]From: kibbles
2009-11-05 01:57 am (UTC)
I don't know HOW to do it, but I think the Iowa court decision spelled it out very well, answering most, if not all, the concerns that those against same sex marriage bleat on about. One by one, it addressed all the excuses out there.

Plus, as I tried to post elsewhere, it's doing our tourism a bit of good, at least. From April thru July this year, Nearly 700 couples (same sex) got licenses in Iowa. A bit over 300 were from out of state. Remember they bring with them wedding parties and families and friends, and all that. It's not a huge boom, but we just started, and we're not a big state. The point is, we haven't fallen apart because of it, and we've seen some benefit from it.
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[User Picture]From: zoethe
2009-11-05 02:08 am (UTC)
I will have to actually read it. Thanks.
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[User Picture]From: letoile82
2009-11-05 02:09 am (UTC)
The problem I have with basically everything controversial is that if someone disagrees with your view, they are WRONG. There is no understanding that people are going to have different opinions and views, and that doesn't necessarily make them bad or wrong. The majority of voters in Maine do not agree with same sex marriage. I wish that weren't the case, I wish that weren't the case everywhere in this country. But that is the fact, and those people are entitled to disagree with my view.

The key is to persuade those people to allow other viewpoints into their thinking. And not every person can be persuaded. But, you aren't going to persuade ANYONE by taking the stand that they are stupid and wrong and by shoving it down their throat. As soon as someone talks to me in such a manner, I completely disregard everything they are saying, even if they have valid points.
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[User Picture]From: zoethe
2009-11-05 02:20 am (UTC)
And that is definitely a problem.

Expect to be accused of making the tone argument and that you are a terrible person for saying such things.
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[User Picture]From: ccr1138
2009-11-05 02:16 am (UTC)
I agree that it's going to take a sea change in public perception before it sticks. And I also agree it's a states-rights issue. However, I'm not sure I agree with your definition of a civil right, but let's run with it for now (seeing as you're a lawyer and all).

There are certain inalienable rights given to us by our Creator, among them life, liberty, and the pursuit of happiness.

I contend that the right to love and commit to whom we want, and to pledge our lives and our fortunes to the companions of our choice, are also among those inalienable rights. Perhaps they are not civil rights by your definition. But, as you admit, neither was the right to vote a civil right for women or negroes *by your definition of the term.*

So, then, I conclude that civil rights as defined by the majority of a state are not always in line with the rights endowed by our Creator.

Where this is so -- where states deny basic rights due to all human beings -- impatient activists believe the courts must step in and overrule the people. However, in the past that's not the way we've solved the problem. In the past, we had constitutional amendments to define and enshrine those rights. This is the way to go. Look at Roe V. Wade. Sure, the court defined a woman's right to choose, but because it's not in the constitution, it's still being debated 36 years later!

Personally, I think the government should leave the definition of "marriage" to the church and get out of the matrimony business altogether.
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[User Picture]From: zoethe
2009-11-05 02:44 am (UTC)
As I said elsewhere, many people would argue that their version of God does not grant such rights to same sex unions. That gets pretty dicey.

Personally, I think the government should leave the definition of "marriage" to the church and get out of the matrimony business altogether.

That's a lot to ask. Are you going to license everything as a civil union? You can't get states out of marriage because you can't get them out of divorce.
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[User Picture]From: ladiefare
2009-11-05 02:28 am (UTC)

I still cater

to the belief that marriage is a legal contract between two consenting adults over the age of 18. Barring incestuous marriages, government should not be able to tell anyone over the 18 that they cannot enter in to a legal contract if they so choose.
But Hells,I live in Florida where it's ok to marry your cousin,not kidding but two people of the same sex cannot marry.
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[User Picture]From: zoethe
2009-11-05 02:50 am (UTC)

Re: I still cater

That is a good definition. It's just not the accepted one.

Fighting for rights has been going on for centuries now. This is one more hard fight.
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[User Picture]From: mamculuna
2009-11-05 04:01 am (UTC)
I think the government regulation of marriage is a weird aberration. The government doesn't regulate baptisms and funerals, why should it regulate marrage? Civil unions, yes. That's all the government should control. If people want marriage, go to the church of your choice.

I think that's really the heart of the problem--having marriage as a function of the state is really a violation of the separation of church and state.

Marriage is a sacrament to the churches and people who are into that, and it's very interesting that that those churches don't really have a way of dealing with divorce within the church. At that point, they do throw it out and leave it to the state. I think that the legal contract and the sacrament should be recognized as two separate and very different things.

Nobody gets upset and has referendums to recall civil unions--they're just a legal matter, and that's as it should be.

Plenty of churches are willing to perform marriages for gay people even where it's not legal. People who don't like that can go to churches that don't do that.

Edited at 2009-11-05 04:04 am (UTC)
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[User Picture]From: zoethe
2009-11-05 04:59 am (UTC)
Marriage as an institution is encoded into our version of civilization, and this fact was not an issue until just this decade. A lot of the way we transact life is based on the marriage model. Government is in the marriage business because it is in the divorce and property settlement and child support and custody business.

I wouldn't object to states issuing all licenses and a license to civil union and then letting people decide how they want to celebrate/sanctify/acknowledge that.
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[User Picture]From: heron61
2009-11-05 10:01 am (UTC)
So, you would then also support allowing the citizens of a nation having a vote to allow a portion of the population of that nation to be enslaved? I fail to see how that situation is any different from the vote in Maine, and neither of them is IMHO remotely acceptable.

What we need is a Supreme Court decision giving LGBT people the same rights as everyone else, civil rights should IMHO never be voted upon.
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[User Picture]From: zoethe
2009-11-05 11:37 am (UTC)
Of course I would never accept slavery as a voteable topic. That is a social compact that has been well established. In this country, however, it was established in blood and war, as you will recall, not in a courtroom. And it was established by constitutional amendments, which were, in fact, voted upon.

What we need is a Supreme Court decision giving LGBT people the same rights as everyone else, civil rights should IMHO never be voted upon.

That is not going to happen. The nature of this court is not socially activist - Scalia has said that he would have voted against Brown v. Board of Education because he doesn't believe in a living constitution. The members of this court are not convinced that this civil right exists. And the backlash against such a ruling might well be a constitutional amendment declaring marriage as between one man and one woman.

The Supreme Court is not a star chamber that gets to legislate from the bench. There are checks and balances on them as well. The notion that someone can wave a gavel like a magic wand and enforce a civil right that has not been accepted as a social compact is naive.
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[User Picture]From: akicif
2009-11-05 11:34 am (UTC)
So, you've got your rights and to 'eck with everyone else, then?

Can you give a reason - not the traditional three, just one reason - why someone would vote against gay marriage if they believed that people of all orientations had equal rights?

The whole thing stinks, not of the tone argument, but of argument from privilege.
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[User Picture]From: zoethe
2009-11-05 11:47 am (UTC)
Where the fuck are you getting that from what I've said? I am 100% for equal rights and for gay marriage. I have cheered the victories and cried at the defeats. I have fought with my pocketbook and my personal advocacy.

Can you give a reason - not the traditional three, just one reason - why someone would vote against gay marriage if they believed that people of all orientations had equal rights?

No. I can't. I'm not trying to defend the votes against gay marriage, I'm trying to point out that we haven't convinced people that gays have equal rights and we have to do that work still. Because the current strategy keeps failing.

I want universal marriage privilege and I want it now. But if we can't get that without a fight, we have to figure out how to fight well and effectively. Being smug and outraged is a losing strategy.
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[User Picture]From: blessed_oak
2009-11-05 12:16 pm (UTC)
What I don't understand is why the idea of gay marriage is so frightening to so many people. I've talked to a few anti-gay marriage people that I know (and I am a very non-threatening person), but they were very inarticulate.

It's like you say - we have to find a way to talk to these people in a way they can hear. Well, I haven't been able to find it, either. They don't even seem to understand their own selves.

Love is love, and it's all good. That's the best I can think of to say in the meantime.
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[User Picture]From: badspock
2009-11-05 12:39 pm (UTC)
That's the thing, isn't it? Even within my own family, when I ask how gay marriage threatens their hetero marriages, I get a lot of "It just does" or "it cheapens 'real' marriage", or "because it's just wrong", never a well thought out argument as to what the "threat" is, and why it's actually a threat. And worse, it's not like my folks actually have anything against homosexuals in any other way-their not religious, nor do they really care who has sex with who, but they are all "Civil union is ok, but stay off my marriage!", and I just don't get it

I also hear a lot of "Marriage is about having children and contributing to society", to which I reply "So, since Pam and I refuse to have children, does that invalidate our marriage the same way you invalidate a gay couples marriage? No kids=no marriage? So, my marriage is an abomination then?"

Sadly, my supervisor says yes, my marriage is a waste and a sham without offspring to validate it. I strayed a little from topic with that, but it IS one of his problems with gay marriage, the inability to "produce" offspring. Of course, this comes from a guy who is all "two men kissing is yucky, but GO LESBIANS! WOOHOO!"
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[User Picture]From: docstrange
2009-11-05 12:29 pm (UTC)
We need to go deeper. We need to peel back the historical roots by which marriage, as a religiously-defined institution, survived the incorporation of the First Amendment's prohibition on establishment of religion in Everson. By rights, from the point of view of the state, we should all have civil unions. By rights, the choice to enter into such a state-sanctioned a civil union, a contract made among two persons and the state, should be open to any person possessed of basic civil rights.

Edited at 2009-11-05 12:30 pm (UTC)
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[User Picture]From: ccr1138
2009-11-05 04:01 pm (UTC)
This.
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