Number six is now official.

From MSNBC:

CONCORD, New Hampshire – New Hampshire became the sixth state to legalize gay marriage after the Senate and House passed key language on religious rights and Gov. John Lynch — who personally opposes gay marriage — signed the legislation Wednesday afternoon.

After rallies outside the Statehouse by both sides in the morning, the last of three bills in the package went to the Senate, which approved it 14-10 Wednesday afternoon.

Cheers from the gallery greeted the key vote in the House, which passed it 198-176. Surrounded by gay marriage supporters, Lynch signed the bill about an hour later.

The new law will take effect January 1, 2010, but already states are seeing an economic boost as a result…

The phones started ringing at the Timberholm Inn in Stowe, Vt., in April, as soon as lawmakers voted to override a gubernatorial veto and allow same-sex marriage in the state. “It doesn’t go into effect till Sept. 1, but people are thinking ahead,” says the inn’s co-owner, Susan Barnes. “We’ve got two same-sex weddings booked for October.” Those bookings are good news for Barnes, who says the gay-friendly inn takes in a “couple of thousand” dollars with every wedding it hosts. And they are part of the reason some same-sex-wedding advocates are now pointing out a new legalization angle: the economic payoff.

In the five years since legalizing same-sex marriage, Massachusetts has gained $111 million in spending from gay weddings, according to a new study published by UCLA’s Williams Institute, which studies sexual-orientation law and public policy. “That’s money buying flowers, hotels, caterers, hiring a band—all the things that go into a wedding,” explains M. V. Lee Badgett, a coauthor of the study.

Typically, same-sex couples spent about $7,400 per wedding, says Badgett, an economist who is also director of UMass Amherst’s Center for Public Policy & Administration, and one in 10 couples spent more than $20,000. And then there were the wedding guests: “We estimated that each same-sex couple was associated with $1,600 in hotel-occupancy tax revenue,” she says.

Next up: New York and New Jersey.

More as it develops…

“I think that freedom means freedom for everyone. As many of you know, one of my daughters is gay, and it is something we have lived with for a long time in our family. I think people ought to be free to enter into any kind of union they wish. Any kind of arrangement they wish.”
- Dick Cheney on the hottest topic of the day

Now, he did go on to say that this should be decided at the state level and that’s how it has always been decided, which is nonsense if you know the legal history of marriage restriction, in particular Loving v. Virginia.

However, it is interesting to note that on this issue, one of the leading conservative voices is seemingly more progressive than the most liberal President since FDR.

Here’s more of what he said…

The question now…when will Obama come around?

From CNN:

Nevada is legalizing domestic partnerships, with the state Assembly voting Sunday evening to override a veto by the governor, officials said.

The Assembly voted 28-14 to override Gov. Jim Gibbons’ veto of a domestic partner bill, said Kathy Alden of the chief clerk’s office.

With the vote, Nevada will extend most of the rights given to married couples to couples in domestic partnerships, including those of the same sex. The bill will take effect on October 1.

The Nevada Senate overrode the the governor’s veto 14-7 on Saturday.

So that makes 4 states (Connecticut, Iowa, Maine and Massachusetts) where gay couples either have the right to marry and 1 state where they have very similar rights.

After that, Vermont is set to legalize gay marriage soon, and New York and New Jersey are said to have similar legislation in the pipeline. And I’m betting that California will get something on the ballot and overturn the shame that is Prop 8.

Which states are up after that? Oregon? Washington? Maine?

note: Title fixed. Oops. :-(

This was a bit of a surprise when I heard about it, but apparently Ted Olson has joined forces with the Equal Rights Foundation and they’ve just sent out a press release about yesterday’s decision.

Here are some key excerpts (.pdf) …

“Yesterday, the California Supreme Court said that the California Constitution compels the State to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married,” Olson said. “These are our neighbors, coworkers, teachers, friends, and family, and, courtesy of Prop 8, California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.” [...]

Today’s lawsuit argues that the California’s Constitution — as amended by Proposition 8 — violates the Fourteenth Amendment of the United States Constitution, a provision with which all state laws must comply.

Relegating gays and lesbians to “separate but unequal” domestic partnerships violates the U.S. Constitution, the suit states. California’s domestic partnership law is not an adequate substitute for access to the State’s institution of civil marriage, the suit states, because domestic partnerships do not provide all of the legal and government benefits and protections that marriage does.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

According to the suit, Proposition 8:

• Violates the Due Process Clause by impinging on fundamental liberties.
• Violates the Equal Protection Clause of the Fourteenth Amendment.
• Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
• Discriminates on the basis of gender.
• Discriminates on the basis of sexual orientation.

That’s a lot stronger case than I thought it would be, and maybe they’re right to challenge this one. But the key difference between Loving v. Virginia and this case is that racial identity is pretty much fixed, while it can be argued that sexual identity is not necessarily. Sure, we make sure folks can’t discriminate based on sexual orientation, but that doesn’t infer marital rights to those folks. Of course, then it gets into the idea that bisexuals should be allowed to marry whoever they want, and I’m obviously fine with that too. But there’s a difference and it will be brought up.

Also, common sense tells me that if the liberal CA Supreme Court voted against overturning Prop 8 by 6 to 1, does anybody think the US Supreme Court will overturn that? Seems highly unlikely, so they could be handing their opponents a very easy win. (Note: This case is different than the one the CA Supreme Court just decided. My apologies for the confusion, but it also means their case is MUCH stronger now.)

Regardless, it’ll be an interesting case and this could be a watershed moment for gay marriage…one way or another.

(h/t: Volokh)

Anybody who reads this blog knows where I fall on the gay marriage issue, but the Supreme Court of California wasn’t reallly deciding the validity of gay marriage itself, so the ruling was actually dead on in my opinion.

This article from Bloomberg points out why…

The court legalized gay marriage a year ago before California voters overruled it in November. Fifty-two percent of them approved the ban, amending the state constitution to recognize only marriages between a man and a woman. The court ruled 6 to 1 today in favor of upholding Proposition 8, saying it was ruling only on the ability of voters to pass a ballot measure rather than whether gay marriage should be legal.

“The principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state constitution itself through the initiative process,” the court wrote, “not to determine whether the provision at issue is wise or sound.”

Yes, it’s the law and it’s specific. And if they ruled against that provision, it would harm the citizens’ rights to amend the Constitution. That’s not a precedent the courts want to set just to prove a point.

But here’s the most important part of this entire argument…all the marriages that happened before the ban are legal!!!

The court ruled unanimously that the 18,000 same-sex marriages performed before the ban remain valid. The November ban sparked protests across California and led activists to create Web sites that identified individuals who donated money to support the measure and boycott donors’ business. The ballot measure overrode the court’s May 15, 2008, ruling that laws barring same-sex marriages were unconstitutional.

So to all of you gay marriage advocates, I know this seems like a loss today but it’s not.

Actually, this is a VERY big win as it signals continuous positive movement. Because you know there will be another ballot initiative to overturn Prop 8 at some point and it’ll pass and California will join the growing number of states where marriage is equal for all. But you have to get out there and fight for it if you want it to happen.

More as it develops…

“Having two parents who can feel and express love for each other, and give it in abundance to their children, that’s what matters. It doesn’t matter what the identities of those parents are.”
- Heidi Nortonsmith, one of the original gay couples to marry in Massachusetts in 2004.

Here’s more about how things have gone for the past 5 years…

At the time of those first weddings, the debate was red-hot — protests were frequent, expectations ran high that legislators would allow a referendum on whether to overturn the court ruling ordering same-sex marriage. Now, although Roman Catholic leaders and some conservative activists remain vocally opposed, there is overwhelming political support for same-sex marriage and no prospect for a referendum.

According to the latest state figures, through September 2008, there had been 12,167 same-sex marriages in Massachusetts — 64 percent of them between women — out of 170,209 marriages in all. Some consequences have been tangible — a boom for gay-friendly wedding businesses, the exit of a Roman Catholic charity from the adoption business — and some almost defy description.

“Having your committed relationships recognized — to say it’s deeply meaningful is to trivialize it,” said Mary Bonauto, lead lawyer in the landmark lawsuit. “I know people who’d been together 20 years who say, ‘Getting married — it knocked my socks off.’”

Still there are issues that these folks have to deal with, not the least of which is that their unions aren’t recognized federally. So that creates a whole host of problems, not the least of which is taxation. And with a president in the White House who claims he doesn’t think gays should be allowed to get married, it might be a long time before these problems are solved.

Take a look at the following at see how many of these you agree with.

From ABC:

Support for gay marriage, legalizing illegal immigrants and decriminalizing marijuana all are at new highs. Three-quarters of Americans favor federal regulation of greenhouse gases. Two-thirds support establishing relations with Cuba.

But hold tight.

If some views that may be perceived as liberal are ascendant, so are some conservative ones: Opposition to gun control is also at a new high in the latest ABC News/Washington Post poll. There’s continued broad support for tighter border controls. And contrary to President Obama, half of Americans wouldn’t flatly rule out torturing terrorism suspects.

I agree with every single one of those views except ruling out torture. I don’t think that should be in our playbook, and I’m sure the readers of this blog know exactly why so I won’t get into it.

But everything else I’m on board with. And, yes, I oppose gun control and I want tighter border security.

The first because it’s not our guns that are making us less safe, it’s our drug laws and prison systems that breed criminality. And look at any study where you have conceal and carry. Crime goes down. Sorry folks, but when more people have guns, society gets more polite.

Turning to illegal immigration, in this new, post 9/11 world, it only makes sense to have much tighter border control. And if we want to begin legalizing illegal immigrants, we’re going to have to lock the border up tight. There’s no other way. You can’t have one without the other, and anybody who tells you otherwise is selling you snake oil.

What this tells me is that we’re definitely a moderate nation, and probably leaning a little bit more towards being center left. And after 30 years of being center right, that’s to be expected.

So, how do you compare?

I’m telling you, it’s going to happen one way or another, and now it seems to be tipping away from civil unions and towards full marriage rights.

In fact, a new NYTimes/CBS poll reveals that…

• In March, 35% thought same sex couples should have no legal recognition. That numbers has dropped 7% since then.
• 69% of liberals support gay marriage, while only 28% of conservatives support it. But when you add that 28% with the 28% who favor civil unions, well, 56% of conservatives are for some sort of recognition.
• While only 31% of those over 40 support gay marriage, 57% of those under 40 support it. And that’s really all you need to know to realize this will happen sooner or later.

But hey, Republicans should keep fighting it and see if that’ll work.

OR…they could realize that this issue is over and move on.

More as it develops…

Due to D.C.’s strange system of governance, the District’s laws are subject to approval by Congress. If D.C. passes a gay marriage ordinance, the House Committee on Oversight and Government Reform and the subcommittee that handles District matters will have to either reject D.C.’s decision or accept it.

If they reject it, the outrage from gay donors and activist groups will be overwhelming.

If they approve it, even on federalist grounds, the Right will argue that Congress has literally approved gay marriage.

Given this, is gay marriage in D.C. a lot less likely? Maybe. But I’m sure a lot of Dem politicos are looking for a chance to federally approve gay marriage in an official/unofficial way and this could be a way to do that.

More as it develops…

UPDATE:
Seems like there’s a much more likely scenario than Dems approving this…

What Klein doesn’t quite get right is that Congress need not actively “approve” D.C.’s decision. If lawmakers do nothing about the bill for 30 days, it’s law.

In fact, no District statute has been actively disapproved by Congress; what is more common is that “riders” are attached to District appropriations prohibiting spending on the controversial legislation—which is what happened when D.C. first passed domestic-partnership laws.

So there you go. No real conflict for D.C. to pass a gay marriage law.

And this time it was done through the legislative branch. So this is a much more significant win for equal rights advocates because people can’t pin this on “activist” judges.

From WCAX:

The Vt. Senate voted to override the governor’s veto of the same-sex marriage bill. This morning, the Senate voted 23 to 5 to override that veto. Two senators were absent and Washington County Republican Bill Doyle who had initially supported same sex, this time voted to sustain the veto.

The Vt. House voted around 11 a.m. to override the veto. The vote was 100-49. 100 votes were needed. Rep. Sonny Audette of South Burlington did not vote. It wasn’t clear whether he intended to vote to override. Audette opposed gay marriage but also opposed the governor’s early announcement of a veto as “interference.”

Vermont is now the fourth state to permit same-sex marriage, but the first to do so with a legislature’s approval. Approval of gay marriage in Massachusetts, Connecticut and Iowa came from the courts.

So, think this issue be front and center in 2012?

This is why I’m telling folks that the marriage between the social conservatives and the fiscal conservatives is done. Because this next generation of voters favors progressive social policy in bigger numbers than any other generation in history. And fiscal conservatives ignore this at their own peril.

In any event, the following is a good discussion between the two folks in the title of this post, and it seems to me that Stewart makes a good case that while those who argue that marriage has a steadfast, definitive meaning, it actually doesn’t since it has been constantly redefined throughout recorded history.

Take a look…

Do know that one way or another there will be gay “marriage.” Whether it’s the civil union idea I’m proposing or actual marriage, the next generation are roundly rejecting the idea that gay people should be treated differently because they frankly don’t care what people do in their bedrooms. Given that, they’ll start voting to give gay people the same rights that everybody else has. But it might happen sooner than that given legal precedent.

Because let’s remember, when the SCOTUS ruled that interracial marriage should be legal in 1967, public opinion was decidedly against it to the tune of 70%. And this was after the Civil Rights Act of 1964. So given that “sexual orientation” is now a part of the language in every single anti-discriminatory law in this country, it’s going to be next to impossible for the conservative members of the SCOTUS to claim that marriage is somehow a special case without tying it to religious traditions.

Also, to those who say that gay marriage will somehow destroy the institution, I would respectfully ask for any evidence to support that beyond your opinion. We all know the divorce rate among the American heterosexual population is at 50% and these people can literally get married on a dare. And the procreation argument falls apart because numerous straight couple aren’t physically able to have kids (whether it’s because of biological defect or age) and not every couple even necessarily wants to have kids.

Moving on…

Essentially, get the government out of the business of religious marriage, and instead create civil unions for all that are legally recognized by the government. That way you have a clear separation of church and state.

Kmiec makes the point within the framework of California’s Prop 8 debacle and tells us what Schwarzenegger should do…

The governor has administrative authority to have regulations issued interpreting family law, and nothing in Prop. 8 precludes him from ensuring that homosexual and heterosexual couples are treated equally under state law so long as he stays clear of “marriage.” This could be accomplished by limiting the state of California prospectively to the issuance of civil unions for all couples, rather than marriage licenses, leaving marriage, which in origin is predominantly a religious concept and not the real business of the state, to religion.

To convince both sides to come to the table, the governor’s ruling should:

– Eliminate any doubt as to the validity of same-sex marriages undertaken between the time of the Supreme Court’s judgment and the effective date of Prop. 8. This is only fair because the proposition did not clearly state that it would be retroactive. People are entitled to have confidence in the law as it exists today without having to anticipate how it might change.

– Reaffirm the unfettered freedom of religions (not the state) to be either in favor or opposition to same-sex marriage as their doctrine teaches.

Folks, this is the way we can fix this and I hope if California pulls it off, other states will follow. It makes no sense why government is involved with religious marriage, and the sooner we move towards civil union as the legal framework, the better.

Yes, the idea that increased African American turnout may have helped passed this ridiculous discrimination so tragically ironic it hurts. I mean…69% supported this ban? In California?? Really???

Truly crazy stuff. And it proves, yet again, that discrimination knows no color and we have a long, long way to go before we become a truly inclusive nation.

Moving on…

I thought California’s Proposition 8 would fail and California would become the first state where the voters themselves actually voiced approval for gay marriage. Obviously, I was wrong.

Turns out the progressive coalition that swept Barack Obama into office is not so progressive, at least not on the issue that many on the left consider the seminal civil rights struggle of our time. So, what does this mean?

The easy answer is that we’re still a nation of bigots and over fifty percent of the electorate, even in liberal California, are intolerant fools. But considering that we just elected a black man president, the “intolerant” argument is, at best, imprecise. In fact, I think it misses the point entirely.

I don’t believe Prop. 8 passed because a majority of the people hate homosexuals or refuse to tolerate them. I think it passed because a significant number of the population didn’t “buy” that gay marriage is a civil rights issues.

The proposition had nothing to do with granting homosexuals voting rights, or allowing them to integrate the school system or even protecting them from workplace discrimination. The issue was the radical redefinition of marriage, of the state telling religious groups that their centuries old beliefs are invalid and that the state knows better than their God. To supporters of Prop 8, the issue wasn’t the civil rights of gays. It was the religious rights of those who do not want to be told how to practice their faith.

Personally, I support gay marriage quite fervently. But the Prop 8 passage has alerted me to the need to pay far more attention and give more respect to the opinions stated above. We cannot ramrod this measure through American society. If we want gay marriage to be accepted in our culture, we have to prove that the act would in no way infringe on religious liberty. Churches that do not recognize the holiness of gay marriage should in no way be obligated or coerced into performing or accepting such marriages — just as we would never expect a rabbi to marry Catholics or a priest to marry Muslims.

Gay marriage is a civil rights issue. But its implementation raises religious liberty issues. In a perfect world, we could completely separate the granting of the legal rights of partnership with the religious consecration of marriage. The state would issue “partnership” certificates. Religions would bestow marriage. But that’s a farfetched notion and not one we can reasonably pursue.

No, the solution we have now is the right one. But the approach is wrong. Gay marriage supporters should regroup, stop the cries of “intolerance!” and find a way to assuage the concerns of religious communities. Only then do I think we can avoid more disappointing results like the one experienced last Tuesday.

Once again, a matter that should be decided through the democratic process is usurped by the courts.

What’s really unfortunate is that Connecticut was the first state to allow civil unions not because of a court order, but because of a law passed by the state government. With enough time and effort, Connecticut could have become the first state to legalize same-sex marriage in a democratic manner.

I do not place all the blame on the courts. They have the right to interpret the law and certainly people of good conscience can disagree on such interpretations. What really irritates me is politicians who support civil unions but oppose gay marriage. That’s political expedience boarding on cowardice.

During the Vice Presidential debate, when Joe Biden affirmed his and Barack Obama’s opposition to gay marriage, I thought I heard chickens bawking in the background. I don’t for a minute believe politicians like Obama and Biden have a moral problem with gay marriage but are just fine with civil unions and homosexuality in general.

If they and other elected officials had the courage to fight for same-sex marriage in the court of public opinion, we might not see so many courts of law preemptively deciding the matter.

And fittingly, the very first one was performed for a couple how had been together 15 years and helped start this movement in California.

Here’s their story from the LA Times:

In Los Angeles County, longtime partners Diane Olson and Robin Tyler were the first and only same-sex couple to obtain a license Monday. [...] Olson and Tyler were the original plaintiffs in the 2004 California lawsuit challenging the ban on gay marriage as unconstitutional. The couple were chosen to receive the county’s first license “in recognition of their unique role in the court’s decision,” said acting L.A. County Registrar-Recorder Dean Logan.

For eight years the couple trekked to the Beverly Hills courthouse on Valentine’s Day, only to be denied a marriage license each time. [...]

At the reception, the couple cut a cake with matching bride figures on top. “My name is Robin Tyler and I’d like to introduce you to my wife!” she declared.

The brides will retain their own names.

Curiously enough, neither of the presidential candidates would approve of this.

What a shame.

Let me begin by saying that I support gay marriage and would vote for it if given the opportunity. But I also believe such matters are best decided by the people and not the courts. Without the validation of the public will, gay marriage legalization seems tainted, as if it’s being forced upon the majority by a few activist judges. While many in the gay community get what they’ve desperately wanted, they don’t get what gay marriage truly needs: the approval of the majority.

For many decades now, liberal activists have used the courts to circumvent popular opinion. Instead of doing the very hard but very necessary work of changing minds, many liberal activists simply declare their beliefs to be “constitutional rights” and proceed to convince judges that the will of the people must be overturned.

Now, this is where someone always brings up Brown v. Board and that’s a good point. Except let’s remember that overturning segregation did not require any interpretive gymnastics. The post-Civil War amendments make pretty clear that discrimination on the basis of race is unconstitutional. The court didn’t create a new law where there wasn’t one but rather rectified a long standing violation of an existing law.

Unfortunately, in later cases (most notably Roe v. Wade), courts decided to not merely insure that existing civil rights and liberties were protected, but decided to create wholly new rights to which no elected body or referendum by the people ever approved. Even when the end results are positive, as they are in this gay marriage ruling, the method is flawed and ultimately creates the sense among opponents that the new law is invalid and must be overturned. That not only creates greater desire to politicize the judiciary but creates increased animosity amongst the public.

I believe gay marriage should be a right. But I don’t believe it is a right that currently exists within our system of laws. Utilizing the courts to bring about this social change may be expedient but it is not necessarily the wisest course. For gay marriage to thrive, not just under the law but within greater society, the majority must give its consent. When judges remove that choice and that responsibility from the populace, they greatly inhibit society’s ability to arrive at consensus. We are left to simply stand on opposing sides and shout at one another about court rulings instead of coming together and finding an agreement with which the majority can live.

SAN FRANCISCO (AP) – The California Supreme Court has overturned a ban on gay marriage, paving the way for California to become the second state where gay and lesbian residents can marry.
The case involved a series of lawsuits seeking to overturn a voter- approved law that defines marriage as a union between a man and a woman.

With the ruling, California could become the second state after Massachusetts where gay and lesbian residents can marry.

Remember, they could be the second state. That doesn’t mean this decision says gay marriage is legal in Cali.

As I’ve stated before, I don’t know why the government is in the business of marriage in the first place. Let that be up to churches. Government should be in the business of allowing two people to form a civil union for legal and property purposes, and nothing else.

And to that point, Cali apparently already has a law that does just that…

California already offers same-sex couples who register as domestic partners the same legal rights and responsibilities as married spouses, including the right to divorce and to sue for child support. It’s therefore unclear what additional relief state lawmakers could offer short of marriage if the court renders the existing ban unconstitutional.

More as it develops…