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February 24, 2004

MORE ON GAY MARRIAGE....Some miscellanous thoughts on a gay marriage amendment:

  • One of the reasons I think this is purely political posturing on Bush's part is that a constitutional amendment on gay marriage has almost no chance of passing. The polls I've seen show roughly 55-60% in favor (some higher, some lower) and that's probably not nearly enough. After all, the ERA had upwards of 90% support when it was first proposed, but it stalled at 35 states even though it also had the advantage of being on the right side of social trends. FMA has much lower levels of support, is clearly on the wrong side of long-term trends toward greater tolerance of gays, and is a highly partisan issue. It's a loser.

  • The text of the leading amendment proposal is this:

    Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

    Is the intent of the second sentence merely to prevent courts from forcing gay marriage on states without legislative approval, or is it to ban both gay marriage and civil unions entirely?

    Eugene Volokh and Ramesh Ponnuru have long and learned opinions about this, but I have a short and simple one: it's designed to ban everything. Why do I say this? Because it would be quite easy to construct wording that made their intent clear if the amendment's drafters wanted to. The fact that they've chosen deliberately confusing language indicates that they're hoping to ban everything but are also hoping to fool people into thinking otherwise.

  • It's hard to pretend to be a "compassionate conservative" when you've so publicly allied yourself with a group that's almost certain to be publicly frothing at the mouth over this before long. Maybe the whole compassionate conservative thing is a dead letter anyway, but I have to think that some people continue to believe it. They probably won't for much longer.

Finally, I have to say that John Kerry's response to Bush's statement wasn't very impressive. He's for civil unions, which is fine, but also said he'd support an amendment as long as it allowed for that. I wish he were willing to take a stronger stand against any kind of constitutional amendment instead of indulging in this kind of all-too-typical fence straddling.

UPDATE: It appears that I was fooled by a video clip that failed to include the context of Kerry's remarks. He was talking about possible state amendments, not expressing support for a differently worded federal amendment. More here.

Posted by Kevin Drum at February 24, 2004 04:54 PM | TrackBack


Comments

First

Posted by: Tom at February 24, 2004 04:57 PM | PERMALINK

If this issue is a winner for Bush, it will only be because Kerry is hopelessly compromised.

Posted by: Grumpy at February 24, 2004 05:00 PM | PERMALINK

Who was it. I think ziska/John Emerson said it:

It is game time, and you don't call fouls on your own guys during a game.

Posted by: bob mcmanus at February 24, 2004 05:01 PM | PERMALINK

On this issue it appears Kerry has returned to the spineless Democrat camp.

Posted by: Ron In Portland at February 24, 2004 05:02 PM | PERMALINK

According to some commenters in this thread from the official Kerry blog, Kerry was responding to a question about whether states could pass amendments that prohibited gay marriage while allowing for civil unions, but that he opposes any amendment on the federal level. Not a thrilling position, but I think it's fairly reasonable.

Posted by: Haggai at February 24, 2004 05:02 PM | PERMALINK

Grr. Stupid Kerry. Stupid, stupid Kerry.

Posted by: Ananna at February 24, 2004 05:05 PM | PERMALINK

Kerry's a pathetic, spineless, equivocating, ... What? He's a Democrat? Oh. Alrighty then. Carry on.

Posted by: AF at February 24, 2004 05:07 PM | PERMALINK

That is disapointing about Kerry. The only way that position makes any sense from a social justice standpoint is if it means that he's for something that is functionally identical to marriage, then having a constitutional amendment saying you can't call it that.

And its pretty absurd to have a whole Amendment just to fossilize a purely semantic distinction.

Posted by: Alden at February 24, 2004 05:07 PM | PERMALINK

I'm not a Kerry fan (proud Dean voter), but his response was better than I expected from him. He's got several months to get a clue and hone his message (assuming he is the nom). At least he's more on the right side than Bush.

Posted by: NTodd at February 24, 2004 05:09 PM | PERMALINK

Was that video clip about the Massachusetts state amendment (from a while ago) or was it about todays news, about the Federal amendment? I believe it was about the state amendment.

In response to today's actions, the Times quotes Kerry as follows:

"I believe President Bush is wrong," Mr. Kerry said today. "All Americans should be concerned when a president who is in political trouble tries to tamper with the Constitution of the United States at the start of his re-election campaign."

Mr. Kerry added: "While I believe marriage is between a man and a woman, for 200 years, this has been a state issue. I believe the best way to protect gays and lesbians is through civil unions. I believe the issue of marriage should be left to the states, and that the president of the United States should be addressing the central challenges where he has failed: jobs, health care, and our leadership in the world."

This states very clearly that he does not support an amendment to the US constitution.

I agree that he's a weasel on the state issue, but let's get our facts straight. It's also my hope that this national issue will push Kerry and the whole country to the left as they realize that discrimination should not be written into *any* constitutions.

Posted by: Andrew at February 24, 2004 05:09 PM | PERMALINK

People, please, let's get the story straight first. On his blog, some people are claiming that when he refers to "the amendment" in his comments, he's NOT referring to the one that Bush is proposing, but to a question someone asked about whether a STATE could amend its constitution. That recording that Kevin linked to doesn't include the question that Kerry was responding to.

Now, maybe I'm wrong, maybe he was referring to the Bush amendment. But some people are claiming that he isn't, so let's get the facts first.

Posted by: Haggai at February 24, 2004 05:10 PM | PERMALINK

I think that we should ask our fearless leaders like Mr. Kerry to sign the fidelity pledge -- if they are really concerned about the sanctity of marriage.

http://www.rmpn.org/content/index.cfm?fuseaction=showContent&contentID=53&navID=51

Posted by: Austin Mayor at February 24, 2004 05:11 PM | PERMALINK

If John Kerry was referring to a federal constitutional amendment, it's not just spineless or stupid it's disgusting. If that is his position, he favors enshrining discrimination and hatred in the Constitution every bit as much as Bush does. On principle, being willing to except "civil unions" means nothing.

Personally, I hope that his stance is (a Kerry hallmark) pure political calculation. I'd be better able to stomach it if it were that, rather than what he really believes.

Posted by: Categorically Imperative at February 24, 2004 05:12 PM | PERMALINK

"On this issue it appears Kerry has returned to the spineless Democrat camp."

I don't think Kerry really left; his best attacks were borrowed.

Posted by: splash at February 24, 2004 05:14 PM | PERMALINK

I wish I was as confident that the amendment will not pass. The trouble is that while support for the amendment is not overwhelming, those that support it really support it. And the majority of those that don't support it aren't going to make an election issue out of it.

Given that the number of states that currently have DOMA equivalents is the same as the number of states that would be required to pass this amendment, if this makes it out of the Senate, this could very well pass.

The best hope of stopping it is to make sure that it does not make it out of the Senate.

Posted by: PaulB at February 24, 2004 05:16 PM | PERMALINK

I think his comment had to be about the Mass. situation, that's the only thing that really makes sense given his previous comments on the issue plus the way he phrased his response. I haven't heard anyone talk about mandating civil unions throughout the country, and that's what Kerry would have said if he was talking about the federal amendment.

Him talking about Mass. is the only thing that fits.

Posted by: Irrational Bush Hatred at February 24, 2004 05:17 PM | PERMALINK

"On this issue it appears Kerry has returned to the spineless Democrat camp."

Speaking as a Dean Democrat (prefer the term to Deaniac), let me tell you that I'm working on the design for a Dean 2008 T-shirt as we speak.

On the back, it will say, "We told you so."

Bush is an idiot. He is hateful and mean spirited.

What he has as an advantage in the campaign is His CERTAINTY about what he does.

Even if people detest him, many will like his certainty, and Kerry turning into the human weasel does not help.

Posted by: Matthew Saroff at February 24, 2004 05:18 PM | PERMALINK

Granted the "compassionate conservative" line is looking pretty broken these days, but it doesn't compare to the terrible state of "a uniter, not a divider."

Posted by: BayMike at February 24, 2004 05:18 PM | PERMALINK

Kerry should have opposed ANY amendment but I'm comfortable with his civil unions stance. I have always personally supported CUs over marriage, just because it's a more attainable goal. Eventually the differences will be smoothed over by the culture or the courts. So while I'm somewhat disappointed by Kerry's comments I still intend to vote for him on March 9.

Posted by: Gabriel at February 24, 2004 05:18 PM | PERMALINK

Kerry's official response to Bush's announcement is here: http://blog.johnkerry.com/blog/archives/001234.html .

The front page post on this blog is misleading. It doesn't represent Kerry's views. He may be spineless, but he's not that spineless.

Posted by: Andrew at February 24, 2004 05:18 PM | PERMALINK

Kerry is against the Federal Marriage Amendment, and he has made it pretty clear that he thinks the marriage laws should be up to the states and that if it comes up while he's in Congress he'll vote against it.

He's repeated it so many times, that there really isn't any excuse for misinterpreting his position.

Posted by: rachelrachel at February 24, 2004 05:19 PM | PERMALINK

Note how Edwards' superior weaseling ties the issue back into his signature concern of economics:

http://www.johnedwards2004.com/page.asp?id=705

Don't defend if you can attack instead.

Posted by: Fred Arnold at February 24, 2004 05:19 PM | PERMALINK

Speaking as a Dean Democrat (prefer the term to Deaniac), let me tell you that I'm working on the design for a Dean 2008 T-shirt as we speak.

You're not much of a Democrat.

Posted by: rachelrachel at February 24, 2004 05:21 PM | PERMALINK

I actually take heart from this, despite the fact that my marriage (as a woman to another woman) is precisely the kind that Mr. Bush would like to declare Constitutionally illegal. Why?

- This plays mainly to Bush's hyper-religious right-wing constituency, which was already far more likely to vote for him anyway.
- It energizes the liberal left, and helps hammer home just how much Bush and his Administration hates everything the left stands for.
- As Kevin pointed out, the likelihood of the amendment passing as written (the worst and most restrictive of the versions currently proposed) is virtually nil and won't help Bush at all in his re-election chances.

To my thinking, Bush was hoping he could get away with "kinda-sorta leaning in the general direction" of a gay marriage ban at the Federal level. The right-wing religious types were deeply offended and demanded a stronger statement, and were openly criticizing their golden boy.

Thus, we end up with the amendment version that not only enshrines one religion's definition of marriage in the U.S. Constitution, it also in one fell swoop wipes out every civil union and domestic partnership statute, as well as any other state or federal law that grants "the legal incidents" of marriage to "unmarried couples."

Remember, every single policy and initiative to come out of this Administration has pandered to one or more of the following:
- The religious fanatic right
- Neo-conservatives
- Big-business

-Technowitch
...getting married on March 9th, if they're still handing out licenses by then...

Posted by: Technowitch at February 24, 2004 05:22 PM | PERMALINK

I'm confused. When I read the amendment text, I don't see it as banning civil unions. I know that's the intent, but maybe I have a screwed up reading of require.

Marriage in the United States shall consist only of the union of a man and a woman.

I'm confused, but not THAT confused. We all know what this intends.

Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

My specific problem is how we construe "require." As I read it, this means that no statute anywhere can be read or "construed" in such a way so that a body HAS to recognize marital status or the legal incidents in "unmarried" couples. But just because a body isn't required to recognize it doesn't mean they are forbidden from doing so, right?

Let's try a different sentence: TOTL is not required to go to the gym today. That means I don't have to go to the gym, no one can make me. But, if I do want to go to the gym, I can, right?

So while this means that no unmarried (same-sex) couple can go to court to sue for their legal incidents, this amendment doesn't prevent, say, New York, from voluntarily giving them, does it? Furthermore, when a state does this, this amendment doesn't give any ground to some fundamentalist suing that the state shouldn't be recognizing the marital status of same sex marriages, right?

Help me out if you think I'm reading this wrong...

Posted by: TOTL at February 24, 2004 05:23 PM | PERMALINK

It's difficult to agree that Ramesh Ponnuru's position on the second sentence of the amendment is "learned." Ponnuru's position is poorly reasoned and facially absurd. He claims the amendment doesn't ban civil unions because the "legal incidents of marriage" are only what a state legislature says come along with the status of being "married" and that a civil unions law would extend "benefits" but not "legal incidents of marriage" to gay couples.

The legal incidents of marriage ARE THE SAME THING as the "benefits" that would be given to two partners in a civil union, and it would be very easy for a court to strike down any civil union law that extended any benefits paralleling marriage benefits to same-sex civil union couples. In fact, I don't see how the amendment can be read in any other way. Essentially, a state could allow civil unions, but couldn't extend any concomitant benefits to partners in a civil union. So, they'd get a piece of paper saying "Civil Union", and that's it. Big deal.

Posted by: Categorically Imperative at February 24, 2004 05:24 PM | PERMALINK

"shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups"

Ummm if I'm reading this right this also applies to the so called common law marriages that are so prevalent in our "free" land.Common law marriage has been ruled by the court as a legal and binding commitment and participants can be libel or available for benefits ie child support.
Sounds to me like alot of people will get screw under this amendment and not just gays either.

Posted by: smalfish at February 24, 2004 05:24 PM | PERMALINK

Bring back the ERA. What a great wedge issue!

Posted by: wren at February 24, 2004 05:26 PM | PERMALINK

"Compassionate conservative" was never supposed to be some kind of code word for "socially liberal." It's rather insulting of you to suggest that opposition to gay marriage bespeaks a lack of "compassion." No doubt many people favor gay marriage out of a thoughtless animus against homosexuals, just as many people surely support gay marriage for equally vacuous reasons. But believe it or not, there are actually principled reasons why many of us oppose gay marriage, and they are reasons that render us no less "compassionate" towards gays or anyone else.

Posted by: Chris at February 24, 2004 05:27 PM | PERMALINK

Basically, even if a civil union state amendment was passed, this would supercede it saying that you can not interpret the state amendmanet to allow civil unions to have legal recognition.

Posted by: Rob at February 24, 2004 05:28 PM | PERMALINK

"Simple" language is rarely that. Look how the Second Amendment's been parsed to death, and it's about as unambiguious a bit of legalese as you'll find.

The problem is, what's thought of as clear and concise when it's drafted may be seen as full of loopholes two hundred years later.

FWIW - I think the FMA's a bad idea. It should be a states' rights issue, and not a constitutional one. And the chance of it passing (and I'll vote against it, BTW, because the one time we've tried limiting rights with an amendment it was a complete failure - Prohibition) is right about on par with a snowball dropped into a vat of molten lead.

But you'll notice something -

Bush, Kerry and Edwards are for it. Nader is against it. At one swipe, single-issue voters for whom this is critical are moved over into Nader's camp. And he hasn't got a chance at all...

Damn, don't you just love watching election-year poker?

J.

Posted by: JLawson at February 24, 2004 05:33 PM | PERMALINK

TOTL:

Laws "require" things all the time; that's how they work. In fact, that's what make them laws and not guidelines. As a heterosexual, assuming that I fill out all the forms, the state has to give me and my spouse a marriage certificate. It's not an option; it's the law. And we get lots of special rights when we get married. These are the legal incidents of marriage.

On your reading, suppose a state has a civil union law. Gay couple (A & B) are partners in a civil union. B dies. A does not have a will. The state seizes all of A's property. B goes to court, arguing that under the civil unions law, he should get A's property. The court reads the FMA and says its hands are tied because the law does not "require" that this benefit (automatic devolution of property to B rather than having the property escheat to the state) is not required.

I don't see how this hypothetical is wrong, and thus I don't see how the amendment doesn't prevent civil unions in any USEFUL form.

Posted by: Categorically Imperative at February 24, 2004 05:33 PM | PERMALINK

"But believe it or not, there are actually principled reasons why many of us oppose gay marriage, and they are reasons that render us no less "compassionate" towards gays or anyone else."

I don't believe it.

Posted by: twig at February 24, 2004 05:35 PM | PERMALINK

These are the actions of a dead and dying regime.

Posted by: Jack at February 24, 2004 05:35 PM | PERMALINK

I believe Bush has decided to back this issue for a number of political and personal issues. Politically, the man needs something to talk about that does not involve draft dodging, national guard service dodging, drug snorting, iraqi casuaulties, missing WMD, politicized intelligence, halliburton, enron, scalia, cheney, huge budget deficits, a jobless recovery, his credibility, tax cuts, his own global warming report, stonewalling on the 9/11 committee, abstinence...and so on and so on. If I were a bush supporter, I would still find it hard to find something positive that he could point to that he has accomplished. I mean there is nothing left for him to talk about that he can speak with any authority or credibility on.

As polarizing as the gay marriage issue is, for Bush, it is relatively safe. I am sure Karl Rove would much rather that Bush placate the far right with more right wing judicial appointment during congressional recesses than get involved with gay marriage, but they have no choice. he's run out of safe things to talk about.

Personally, I believe he is anti-gay marriage. Don't forget he is a "born again" christian fundamentalist who has reportedly told the Prime Minister of Canada that God told him to strike at Al Queda and Saddam. He is funneling massive amounts of funds to christian fundamentalists. I believe he honestly believes in fundamentalist strictures. Happy coincidence as he would come out against gay marriage if he thought it would help him stay in power.

Kerry, on the other hand, is misplaying this issue because he is no longer an idealist and a leader, but merely another politician lusting for power. sure, he's better than bush, but a pig with lipstick is better than bush. at a minimum kerry should take a stand against a constitutional amendment, but he won't. unlike bush, he probably is willing to support same-sex marriage, but is more concerned about being elected than speaking his heart. i am losing respect for him.

Posted by: Garth Sullivan at February 24, 2004 05:37 PM | PERMALINK

KevIn get back in here NOW! You have yet to explain why Bush isn't a homophobe.

IF BUSH ISN'T A HOMOPHOBE THEN WHO IN LIVING FUCK IS?!?!!!!!!!

Posted by: David Ehrenstein at February 24, 2004 05:37 PM | PERMALINK

people who say that gay marriage is a state's rights issue are missing an important point; the full faith and credit clause. if one state grants a marriage, all states must recognize it. [public policy expception, i know, i know, but how unwieldy would that turn out to be. the probate courts woud go next. this must be uniform.]

Posted by: Garth Sullivan at February 24, 2004 05:41 PM | PERMALINK

Interesting that most of the comments here pertain to Kerry...

Let's be brutally honest: No democrat would ever ENDORSE a constitutional amendment that fetters an individual's pursuit of happiness. EVER. EVER. EVER.

Only a repug could craft such a codicil.

Today...as someone noted in another Calpundit thread, "bush came out of the closet."

But I would also add: Yeah he came out of the closet wearing a brown shirt with a crooked crucifix.

And that's why I wrote in an earlier thread that bush is dead in the water. This is an act of political desperation. And I want to see the bastard die with this stuck in his throat come Nov. 2nd.

[Aside: How dare anybody tell Technowitch who she can marry or not marry? The insolence of these people disgusts me. Since when is her pursuit of happiness your concern Big Brother? But I will say this...(sotto voce)...I sure the hell will never get married again :) ]

Posted by: -pea- at February 24, 2004 05:43 PM | PERMALINK

Sorry Chris, but I'm in disagreement on one very important point--

Frankly, I don't care what my marriage to my spouse is called.

The problem is that a male+female union gets all kinds of rights and benefits, as well as some responsibilities.

In California, our current Domestic Partnership only grants a subset of those rights, benefits, and responsibilities.

And in most states in this country, there are no provisions for a gay/lesbian union whatsoever -- and in fact, if I and my spouse were to move to one of these states, we'd lose our DP rights, because the "full faith" clause regarding our union has not been upheld.

The arguments against gay/lesbian marriage always boil down to tradition and 'sanctity'. I seriously doubt your principled arguments, Chris, will amount to anything but this -- unless you plan to take the even more absurd position that suggests that marriage is for breeders only (which ought to rule out infertile heterosexual couples, as well as those who plan not to have children, no?).

We argue from a point of equal civil rights.

I have a hard time believing that the union of Del Martin and Phyllis Lyon, which has lasted 51 years, is inherently less "sacred" than the quickie 48-hour soon-anulled wedding of Brittany Spears and Jason Alexander in Vegas not long ago.

-Technowitch

Posted by: Technowitch at February 24, 2004 05:43 PM | PERMALINK

GWB JUMPS THE SHARK.

Again.

Posted by: candora at February 24, 2004 05:46 PM | PERMALINK

The GOP shit the bed on this one. I'm betting that within a month Rove will have crunched the numbers and concluded that he made a mistake pushing the gay nuclear button, and he'll back off and try to change direction.

Posted by: peter jung at February 24, 2004 05:46 PM | PERMALINK

And thanks, -pea-, for the words of support.

Posted by: Technowitch at February 24, 2004 05:46 PM | PERMALINK

Kerry's stand is this is outright bigotry too. He is really pissing me off now. Bastard.

Anyway, why is it "they" keep getting away with claiming they are defending 'traditonal marriage'? They are not. Marriage, as defined currently in the US is most certainly not traditional and is in fact very modern. Tradional marriage was about securing property rights and bloodlines and such. Mostly the female half had no choice in the mattter and was often (what we would now say) underage. This was all fine and dandy with the various Christian churches for ages, although it is shockingly barbaric to most people now. Legally, nowadays, those marriages now would be considered both slavery and rape.

Posted by: Eric at February 24, 2004 05:47 PM | PERMALINK

Call their bluff!

Bush & Coven are banking on the fact that most Americans are still squeamish about gay marriage even though they're generally tolerant of other gay rights. And, as Matthew Yglesias has pointed out, in another 20 years Americans will be tolerant of marriage too.

Progressives are in a fairly intractable position on this issue -- consider Kerry's and even Dean's wobbly balancing act in the past. Our natural reaction (now that we're no longer the revolutionaries we're almost forced to be reactionary) is to pull back.

I think it would be more rhetorically powerful to push forward instead.

Progressives have been playing around with the issue for weeks -- asking why the President isn't addressing the Britney Spears and Jason Allen Alexander marriage scandal, or the Las Vegas weddings performed by Elvis impersonators, or his own philandering brother, or the multiply-married Ronald Reagans, Rush Limbaughs, and Newt Gingriches on the right.

If the President and Congressional Republicans really want to strengthen marriage rather than simply penalize gay people they should be willing, and even eager, to add the words "for life" to the proposed text, as in...

"Marriage in the United States shall consist only of the union of a man and a woman [for life.]"

Just two words! Two little words that would unquestionably strengthen marriage by constitutionally prohibiting divorce.

To get on the up-hill side of this all a Presidential candidate, a Congressional Democrat, or a progressive state legislator has to say is "I refuse to support a marriage amendment that fails to truly defend and strengthen the sanctity of marriage. If my Republican colleagues are unwilling to add those two little words then they're clearly not serious."

And then it's up to the Republicans to explain.

I might add that adding two words turn the amendment into a wedge issue between religious conservative "base", who by and large would be delighted at the prospect of Constitutionally forbidding divorce, and almost all other Republicans.

So really. Call. Their. Bluff!

David Innes

Posted by: David Innes at February 24, 2004 05:47 PM | PERMALINK

the gop won't back off this. they are going to ride it to the end because they have nothing else to talk about.

Posted by: Garth Sullivan at February 24, 2004 05:48 PM | PERMALINK

Has Bush tagged the White House yet? You know, "Faggots Stay Out"--that sort of thing. Is he allowed to buy spray paint? Just wondering...

***

Posted by: MJS at February 24, 2004 05:48 PM | PERMALINK

there are actually principled reasons why many of us oppose gay marriage, and they are reasons that render us no less "compassionate" towards gays or anyone else.

Your argument might be strengthened if you actually mentioned one.

Posted by: apostropher at February 24, 2004 05:49 PM | PERMALINK

Technowitch,

Mostly, I agree, except for the point about the Full Faith and Credit Clause. The Clause does not require other states to recognize gay marriages or civil unions, and it didn't even require this before DOMA was passed (and I think DOMA is a steaming pile of horse manure). All the Clause really means is that Congress, with help from the Supreme Court, gets to set up national conflict-of-law rules. Congress doesn't usually do so, but it has the power to. And that's what DOMA is, even if it's a particularly nasty and ill-considered law.

Posted by: Categorically Imperative at February 24, 2004 05:49 PM | PERMALINK

Bush certainly is a homophobe...here's Bush on his support of the (now defunct) Texas anti gay-sex law"

"I think it's a symbolic gesture of traditional values"

Posted by: Eric at February 24, 2004 05:50 PM | PERMALINK

Anyway, why is it "they" keep getting away with claiming they are defending 'traditonal marriage'?

Or, to challenge their claim to having a lock on the definition of religious marriage as well, why do "they" claim that the sanctity of marriage is only realized in heterosexual unions? _My_ church is perfectly happy to sanctify same-sex marriages.

Posted by: Rana at February 24, 2004 05:50 PM | PERMALINK

"Eugene Volokh and Ramesh Ponnuru have long and learned opinions about this, but I have a short and simple one: it's designed to ban everything. Why do I say this? Because it would be quite easy to construct wording that made their intent clear if the amendment's drafters wanted to. . ."

That para alone is worth the price of admission;)

Posted by: roublen vesseau at February 24, 2004 05:51 PM | PERMALINK

Two points. First, don't equivocate the lack of support for gay marriage with support of a constitutional amendment banning it. They are different, as today's Annenberg poll makes clear (http://www.annenbergpublicpolicycenter.org/naes/2204_03_gay-marriage-update-2_2-24_pr.pdf)

Second, if you have any doubt that this amendment is an attempt to prevent (and roll back) civil unions, consider this press release issued when California enacted its broad domestic partnership statute in 2003.

http://www.savecalifornia.com/press/newsreleases/release.cfm?nrid=PR030919A

Governor Gray Davis today rejected the vote of 4.6 million Californians by signing into law AB 205, the virtual gay "marriage" bill. At a Friday evening ceremony at the San Francisco Lesbian, Gay, Bisexual and Transgender Community Center, Davis signed AB 205 [The Domestic Partner Rights and Responsibilities Act of 2003] which functionally reverses Proposition 22, California's Protection of Marriage Initiative, which was passed by 61.4 percent of voters in 2000.

"Gray Davis and Cruz Bustamante have conspired to bring homosexual 'marriage' to California, disobeying the clear orders of the people," said Randy Thomasson, executive director of Campaign for California Families, the statewide nonprofit, nonpartisan family issues leadership organization that led the grassroots effort against AB 205. "They have trashed the vote of the people and perverted the sacred institution of marriage." Bustamante, an official supporter of AB 205, was endorsed Thursday by AB 205's sponsor, the gay-marriage group Equality California.

"It is the height of corruption for Davis and Bustamante to push gay 'marriage' and do it so deceitfully and arrogantly," said Thomasson. "Who do they think they're fooling? AB 205 rejects the vote of the people and that's why this issue is going to court." On Monday, the Alliance Defense Fund and Liberty Counsel will file separate lawsuits against Gray Davis on behalf of the voters who demanded that marriage be protected. "It is unconstitutional for our state government to repeal or amend what the people have already voted on," said Thomasson.

On March 7, 2000, Proposition 22, the Protection of Marriage Initiative, passed in 52 out of 58 counties. According to the California Secretary of State, 61.4 percent of the electorate - 4,618,673 people - went to the polls to demand that the rights of marriage be protected for only a man and a woman. The Los Angeles Times exit poll showed that Proposition 22 was supported by 58% of white voters, 59% of Asian voters, 62% of black voters and 65% of Latino voters.

Campaign for California Families this week is holding 13 news conferences from Sacramento to San Diego to inform voters which major candidates for governor can be trusted to protect marriage. The only major candidate to sign the Marriage Protection Pledge is Tom McClintock. By signing, McClintock has promised to protect the benefits and privileges of marriage for a man and a woman, a husband and a wife. Refusing to sign the Marriage Protection Pledge are Davis, Bustamante, Schwarzenegger, Camejo and Huffington - all of whom support awarding marital rights to homosexual "domestic partners."

"Only Tom McClintock has pledged to honor marriage by protecting the rights of marriage for only a man and a woman, as the people have voted for," said Thomasson. "With their domestic partners agenda, which is gay 'marriage' by another name, Davis, Bustamante and Schwarzenegger are triple trouble for voters who want to protect marriage for a man and a woman."

AB 205 awards homosexual partners an estimated 299 out of 300 marriage rights under California statutes. The text of AB 205 clearly demonstrates that the bill is gay "marriage" by another name:

On page 5, beginning with line 29: SEC 4. Section 297.5 is added to the Family Code, to read:

297.5. (a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

On page 27, beginning with line 18: SEC. 15:

This act shall be construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections and benefits, as well as all of the other responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses.

"Only those who play games with words, who do not know the truth or refuse to acknowledge truth can claim this is not gay marriage by another name," concluded Thomasson. "God created marriage for a man and a woman and the voters overwhelmingly demanded that marriage be protected. Yet Gray Davis, Cruz Bustamante and 66 out of 73 Democrat state legislators have rejected the truth and rejected the people by turning marriage and culture upside down. They have the gall to push through this homosexual 'marriage' bill and then make the ridiculous claim that somehow AB 205 isn't gay 'marriage.' This is a bold-faced lie and the voters won't stand for it."

Posted by: Kieran at February 24, 2004 05:52 PM | PERMALINK

the full faith and credit clause requires states to honor the findings, rulings and decrees of other states. that's why a driver's license or hetero marriage in one state is honored in another. there is an exception, created by the supreme court, for situations when one state's decree is in direct contradiction to a compelling public policy of another. at that point, we get into a conflict of law analysis. DOMA is clearly unconstitiutional and will be declared unconstitutional the first time it comes before an honest judge.

Posted by: Garth Sullivan at February 24, 2004 05:53 PM | PERMALINK

A. Marriage in the United States shall consist of a union between one man
and as many women as you'd like. (Gen 29:17-28; II Sam 3:2-5)


B. Marriage shall not impede a man's right to take concubines in addition to
his wife or wives. (II Sam 5:13; I Kings 11:3; II Chron 11:21)


C. A marriage shall be considered valid only if the wife is a virgin. If the
wife is not a virgin, she shall be executed. (Deut 22:13-21)


D. Marriage of a believer and a non-believer shall be
forbidden. (Gen 24:3; Num 25:1-9; Ezra 9:12; Neh 10:30)


E. Since marriage is for life, neither this Constitution nor the
constitution of any State, nor any state or federal law, shall be construed
to permit divorce. (Deut 22:19; Mark 10:9)


F. If a married man dies without children, his brother shall marry the
widow. If he refuses to marry his brother's widow or deliberately does not
give her children, he shall pay a fine of one shoe and be otherwise punished
in a manner to be determined by law. (Gen. 38:6-10; Deut 25:5-10)


G. In lieu of marriage, if there are no acceptable men in your town, it is
required that you get your dad drunk and have sex with him (even if he had
previously offered you up as a sex toy to men young and old), tag-teaming
with any sisters you may have. Of course, this rule applies only if you are
female. (Gen 19:31-36)


Posted by: Lupin at February 24, 2004 05:54 PM | PERMALINK

Thanks Rana, that is also a great point.

I think the bigots will be surprised to find that although the opposition to 'gay marriage' seems broad, it is also rather shallow. You can see this in polls. When it isn't a big national bru-ha-ha, the opposition for it fades a bit. When it is called by another name, the opposition fades a bit more. When you ask people if gay couples should have specific rights of marriage (by actually spelling out the major ones) the opposition drops to the point of being the MINORITY position.

Posted by: Eric at February 24, 2004 05:55 PM | PERMALINK

CI:

Your example is an interesting illustration, although I quibble with the fact that the property automatically goes to the state, there are a few searches inbetween (Property was only last semester, heh). But it still doesn't parse the problem I feel is there.

In your example, the FMA says the court is not "required" to listen to B's demands for the property. That much is clear. But, in my mind, that leaves it in limbo. It does NOT at all clearly imply that the state HAS to automatically take the property. It's simply not "required," in any constraining sense, to accede to B's claims. It could, however, if it so desired (if a state could desire), give the property to B.

Try this sentence. "Nothing in this statute shall be construed to require that parents give their children Christmas presents."

Again, to my ear, the sentence prevents children from going to their parents and saying "you have to give us gifts." But it doesn't prevent the parents from giving the kids gifts. All it does is neuter any hard claim by the kids for those gifts. There is no right of enforcement.

Contrast this with if the FMA said "recognize" instead of "required." That would make things more clear. By not recognizing the marital status or legal incidents, that definitely terminates any color of rights or standing. It would be the difference between the state saying "I don't see you" (recognition) vs "I don't have to listen to you" (requirement).

In any case, FMA is awful and Bush is Hitler. In case there was a flamewar going on and I didn't notice.

Posted by: TOTL at February 24, 2004 05:57 PM | PERMALINK

The End Of The Beginning

For better or worse, I?m not acquainted with any passionate opponents of gay marriage, so I have few resources for judging how such opponents view their beliefs and themselves in the larger contexts of progressive politics, constitutional precedent, or human liberty. But every single member of the political and journalistic establishment that supports the Federal Marriage Amendment has explicitly admitted that they see this as their last chance to stop the spread of this "peculiar institution;" that without the FMA, some "activist" judiciary might decide that Equal Protection actually means Equal Protection and thus require a state to acknowledge the human dignity present in an incident of gay marriage. In asserting such urgency, proponents of the FMA are both wrong and right.

They are wrong in the legal sense, and here is where I would hope the Democratic nominee will seek the safety that Bill Clinton provided for him. As much as I was dismayed by the Federal Defense of Marriage Act in 1996, the Act clearly permits the states to refuse to recognize marriages, civil unions, or other "proceeding . . . respecting a relationship between persons of the same sex" from other states. So the claim that, say, Texas will have to honor same-sex unions solemnized in Vermont or Hawaii is entirely false. At present, 38 states have already legislatively defined marriage as an exclusively heterosexual province, but even if (out of some anti-democratic, social-engineering, moral-relativistic "activism") more state supreme courts follow the path of the Massachusetts Supreme Court and find such legislation to be in violation of their state constitutions, the states are still free to amend their own constitutions as they see fit without requiring other states to recognize their policies. The Democrats (and sane Republicans, if they like) can and should safely state, "Marriage has never been an issue for the federal government, and we don?t see why it should be one now. Amending the U.S. Constitution is never to be taken lightly, and this issue simply doesn?t rise to the required level of urgency." This position is legally sound, factually true, and will compare favorably with the more hysterical advocates that we can expect to hear far too much from in the coming months.

Proponents of the FMA are right, however, when they say that they cannot allow even a single enclave of gay marriage to endure within the Republic; the example of a community that officially endorses the rights of gays and lesbians to enjoy all the benefits of society will be ultimately corrosive to the institutionalized bigotry that imagines marriage needs "defending" and produces such shameful legislation. The manifest absurdity will bring it all crashing down. It is helpful to remember that the Secession Crisis of 1860 was provoked not by an attempt by the Federal government to abolish slavery in the South, but by the election of a presidential candidate who advocated merely the prohibition of slavery in newly-admitted states. The South feared the diminution of their electoral power (60% of their slaves counted towards representation, remember), but more than that they feared the successful examples set by non-slave states; they wanted to restrict the liberty of others because the exercise of that liberty humiliated them. Had the South simply accepted Lincoln?s program, it is likely that they could have maintained slavery in their own states for many more years. Instead, they listened to the counsel of their pride and their fears.

Note that I don?t imagine George W. Bush to be a homophobic bigot, any more than I think he believes that there were nuclear weapons in Iraq, or that abstinence-only sex education is the best way to prevent teen pregnancy, or that 60 is the precisely ethical number of stem cell lines with which to conduct experiments. I do think that Karl Rove approved today?s announcement while mindful that a) this controversy has legs that will be helpfully distracting over the summer and fall, and b) the Bush Administration needn?t actually do anything about it until well after the election. Putting the FMA formally on the table also chills legal challenges to state-level legislation; if it looks like the U.S. Constitution will override any amendments to state constitution (either for or against gay marriage), few people will get behind such projects.

We are in for a struggle that will be costly in terms of industry, treasure, and spirit. Thanks to Bush?s shot at Fort Sumter, however, we have the comfort of knowing that our opponents have declared themselves to be the enemies of dignity.

Posted by: Eric Scharf at February 24, 2004 05:58 PM | PERMALINK

Re: to Categorically Imperative

Actually the "full faith and credit clause" is what is cited with respect to a number of interstate issues, including the upholding of contracts signed in one state. It is also the clause that does indeed mean that a marriage registered in one state is also recognized and upheld in all other states in the union, as well as all U.S. territories.

Other issues relevant to the full faith clause:

- Adoptions
- Divorce settlements
- Child support
- Drivers licenses
- Insurance
- Birth certificates
- Company incorporations & partnerships
- Business contracts

I'm sure there are others, but that's what I can come up with off the top of my head.

-Technowitch

Posted by: Technowitch at February 24, 2004 05:58 PM | PERMALINK

Garth,

No, that is not what the Full Faith and Credit Clause requires. It says "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof."

The key thing here is the second sentence. If Congress gets to say what the "Effect" of the acts, records, and proceedings is, then "full faith and credit" doesn't mean that one state is bound by some other state's laws or judgments. It wouldn't make any sense to have a second sentence, because the first one would have already answered the question.

To those who wrote the clause, "faith and credit" were understood to be terms that had to do with evidence--what the first sentence means is that, once the acts, records, and proceedings are proved to be what they purport to be, they're valid evidence of the same. But a state doesn't have to follow along. Unless Congress says so. It's up to Congress to set the rules. The whole thing is inherently about conflict of laws, and the public policy exception by the Court is only relevant in the absence of congressional action.

DOMA sucks, but it's not unconstitutional. At all. It's Congress doing what it is SPECIFICALLY AUTHORIZED to do by the Constitution.

Posted by: Categorically Imperative at February 24, 2004 06:00 PM | PERMALINK

I get the feeling that people have completely misunderstood the genius behind Kerry's I'm-for-it-as-long-as-there-is-an-exception-for-civil-unions position. Weasily? Bigotry? Man, you guys have GOT to get off the wacky weed.

Kerry's position is brilliant. The president has backed the Crazy Version of the ammendment: destroy all gay rights to anything resembling marriage ever. The goal was obviously to rally the troops. But if the ammendment goes down in flames, it can only hurt Bush I think.

So here's the idea. Kerry is CO-OPTING the issue. It's Clintonian. He's saying: hey, I understand how important marriage is to history and society too. So let me propose an _alternative_ to the crazy wing position which is, relatively speaking, rather less bigoted. What can Bush do? Accept Kerry's offer? No way! He's now been locked into the crazy position. Bush now can't back off to a more moderate stance because he'd look like Kerry. And the ammendment can't possibly pass now because all the Democrats have to do is offer the alternative, which will get trounced by the congressional leadership, and that'll sour the issue for everyone. People now know that there are alternatives (other than "allow gay marriage straight up", which btw I'm for) in the form of civil unions which their Republican leaders are REFUSING to CONSIDER.

Basically with this so-called waffly move, I think Kerry may have successfully grabbed the vital middle ground voters in the country necessary to become president. Smart smart smart. If we want a democrat in office, we need to grab the middle. Kerry knows this. Why not do so with a stated preference for an ammendment that'll never happen, because the Republicans will trounce it? It's perfect. You can claim to be a moderate but not have to act on it. Game theory at work.

Posted by: Sean at February 24, 2004 06:01 PM | PERMALINK

What I really like is the views of Ron Reagan and Patti Davis on this. Patti has a piece here

http://www.msnbc.msn.com/id/4351828/

This is what the conservatives fear--the children of Ron and Nancy represent the future.

Posted by: Mimikatz at February 24, 2004 06:05 PM | PERMALINK

I'm sorry, but we need to pay a bit more attention; this has nothing whatsoever to do with an actual constitutional amendment. Remember Bush Senior's flag-burning amendment? Was it ever even proposed after the election? They will never, ever go through with this, nor do they care at all about it. The most important thing that can be done here is to call them on this, not on the substance (which is ludicrous), but on their commitment to it. Call them liars, and remind everyone of the history.

Posted by: Bill Skeels at February 24, 2004 06:05 PM | PERMALINK

We wouldn't need an amendment if the court system had more respect for the democratic process. It is only the open disregard of the people by the courts that is pushing this movement.

Posted by: Ben at February 24, 2004 06:10 PM | PERMALINK

I think they know this proposed amendment has little to no chance of success and are in fact counting on that. It is only a sop to the right-wing bigot christbots (his "base" as they say, but nah, Bush ain't a bigot, yeah right). Anyway, it lets him act like he's tryng on their part without actually doing anything really.

Posted by: Eric at February 24, 2004 06:10 PM | PERMALINK

I agree that Kerry's response has been less than ideal. I'm just now watching Larry King, and Gavin Newsom is on. First time I've seen him. He's a rock star! His forthright defense of equality and civil rights is just breathtaking.

What does it say about the dearth of such forthrightness that he's such a rarity?

Posted by: Dan Perreten at February 24, 2004 06:14 PM | PERMALINK

"Kerry is CO-OPTING the issue. It's Clintonian. He's saying: hey, I understand how important marriage is to history and society too. So let me propose an _alternative_ to the crazy wing position which is, relatively speaking, rather less bigoted."

To which Bush, if he was clever (we're playing make-believe, remember), would say, "John, you and I agree that marriage is fundamentally important. Join me in protecting it."

Perhaps it's too much to expect John Kerry to be a presidential candidate AND the front-man for the gay marriage movement. But, dammit, can't somebody of stature stand up to these creeps and demand to know what's so scary about Barry & Larry and Mary & Carrie getting married?

Posted by: Grumpy at February 24, 2004 06:16 PM | PERMALINK

I guess I can stop worrying about Bush's lack of VietNam combat experience, and where he was in 1972.

quote

Let's be brutally honest: No democrat would ever ENDORSE a constitutional amendment that fetters an individual's pursuit of happiness. EVER. EVER. EVER
end quote

Sheesh, the constitutional ammendment permitting income taxes? The Volstead act which turned into the 18th ammendment? Wouldn't most Democrats endorse an ammendment to repeal the second ammendment?

The Democrats also like restrictions on speech and press (campaign finance "reform") but they haven't gone so far as to ammend the constitution. Instead, they sort of redefine speech and press. But that's an aside.

Was that an irony that I missed?

I have been a Democrat more than I have been a Republican (at least according to my presidential voting record) but this idea that one party has all the sins is silly.

I have no idea what I think about the proposed ammendment. I expect that eventually "marriage" will become a religious sacrament like "baptism", and that the legal things that accompany it (inheritance, employee benefits for spouses, tax considerations) will all be replaced by civil contracts. I already know people who had kids long ago and who object to employer-paid child care. (Not a close analogy, but continue.) Why should a man (woman) be able to chose a woman (man) to receive some of his pay (health insurance), but not choose another man? It looks to me like a violation of "equal protection of the laws". Why should they even have to live together, or be required to have children, or be legally required to be sexually faithful? I don't know (and I still don't know when I write out the questions and dilemmas at greater length.)

It doesn't look to me like a federal issue, except for the full faith and credit clause. The only purpose of a constitutional ammendment would be to allow states to have different definitions of marriage.


Does this mean that the Mormons and Moslems can resume polygyny? How soon?

Last question. Does anybody know where I can find a list of all the proposed ammendments to defend marriage? Some are worse than others.

Posted by: MattheweRMarler at February 24, 2004 06:16 PM | PERMALINK

TOTL,

Technically speaking, I think you're right about my analogy...it would require some executive action (state taking property) before it became an issue.

But look at the FMA this way: the benefits and legal incidents of marriage are mostly carried out through executive branches of federal and state governments. So, say a state legislature enacts a law for civil unions, and part of the law says civil union couples get to open a POD bank account. So, they show up at the bank and try to open an account. Now, if the bank feels that it MUST allow the couple to open the account, it is violating the Constitution (by "constru[ing] " the state law to require a legal incident of marriage. Sure, the bank could decide, on its own, to let the couple open the account. And maybe the civil union "law" would weigh on the bank's mind. But the decision would be entirely up to the bank; the law would have nothing to do with it.

Further, it wouldn't take a big leap for a court to say that, since the amendment prevents any "requirement" that marriage benefits be given to same-sex couples, it prevents any civil union laws, period. The amendment may not be explicit, but could easily be interpreted in this way, and is therefore dangerous.

Posted by: Categorically Imperative at February 24, 2004 06:17 PM | PERMALINK

I know I have read this point before, but it bears repeating:

The text of the proposed FMA plainly bans states from enacting civil unions for gays. In fact, it prohibits them from enacting any legal protections or rights for gays whatsoever. Why? Because if it didn't, it wouldn't include the phrase "nor state or federal law."

Imagine the amendment without this phrase. Without the phrase, the amendment would simply prohibit judges from interpreting state or federal constitutional provisions, i.e., provisions not subject to chance by a simple majority of a legislature or citizenry (in those states with an initiative process)as requiring equal treatment of gay people with respect to marriage, civil unions, or the incidents of either marriage or civil unions (which, as someone pointed out, are effectively identical). In other words, without the phrase, so-called activist judges would be unable to interpret any state or federal constitutional provision as requiring equal treatment of gays with respect to marriage, civil unions, or their incidents.

Without the quoted phrase the FMA would, in short, do what its proponents claim it would do -take the judiciary out of the equation, but still allow Congress and state legislatures (or citizens, through the initiative process) to legislate on the subject.

If the quoted phrase is included, however, (which, of course, in the proposed version it is), then courts are prohibited from construing any law passed by a legislature as requiring gay marriages, civil unions, or their incidents. What that effectively means is that a legislature could pass a civil union law, for instance, but the executive and the judiciary would be prohibited from construing it as providing such. Because legislatures can only make law, not enforce it, the law would be a nulity. As the old saying goes, a right without a remedy is no right at all.

The confusion arises from the word "require," of course. In the manner in which it used, it means the same thing as "provide." (There really is no other way of interpreting it - for instance, I may say that law X requires that A do B, or I may say that that law X provides that A must do B. It's the same thing.) Substitute provide for require and the amendment becomes clearer.

The amendment's proponents use the word "require" because it sends their political message more effectively than "provide." "Require" implies that when a judge is construing a law or consitutional provision to provide (require) equal protection for gay people, or to provide (require) civil unions for gay people, it sounds as if something is being forced on, or required of, a political constituency. The term "provide," by contrast, makes it sound as if the constituency is benefitting or profiting - that they are willing and grateful recipients. The proponents of the FMA certainly don't want to create the impression that the American people are willing or grateful recipients of a law that provides equal rights for gay people, although many of course are.

My two pennies ....

Posted by: mkultra at February 24, 2004 06:17 PM | PERMALINK

The courts are the ones interpreting the CONSTITUTION (in case you forgot) so when they call them activist judges, they only want a scapegoat. These judges only interpret our United States Contstitution.

No one even cares that we have an activist president who is determined to destroy America and all it once stood for.

Posted by: Jack at February 24, 2004 06:21 PM | PERMALINK

Folks, it is now clear that Kerry was misquoted. Both Kerry and Edwards intend to vote against the FMA. Kevin, you should consider correcting the error before it gets blown out of proportion.

Posted by: Gabriel at February 24, 2004 06:22 PM | PERMALINK

Categorically Imperative wrote: "DOMA sucks, but it's not unconstitutional."

Perhaps, but ultimately, what's constitutional is what the Supreme Court decides is constitutional. If they decide that DOMA oversteps Congressional authority, it's gone.

Ben wrote: "We wouldn't need an amendment if the court system had more respect for the democratic process."

Ben, that's precisely what those who opposed Loving v. Virginia said. It's a nonsensical argument when it comes to fundamental rights, since the Constitution specifically prohibits the "tyranny of the majority." You have decided that marriage is not a fundamental right; the U.S. Supreme Court disagrees with you.

Posted by: PaulB at February 24, 2004 06:23 PM | PERMALINK

GWB isn't a bigot, just a nice guy that sadly has to play some politics? C'mon, Kevin. You ascribe good character attributes to someone who has not shwon any evidence thru his actions thereof. Atrios and I agree, you have this waaaaaay wrong:

Posted by: jdw at February 24, 2004 06:23 PM | PERMALINK

Bill Skeels: "Remember Bush Senior's flag-burning amendment? Was it ever even proposed after the election?"

Let's see... after 1992, the flag burning amendment was blocked in the Senate in 1995 and again in 1998 (after having been blocked during the Bush I admin. in 1989). The House also passed the amendment in 1999 and 2001, without the Senate acting on it.

But your point is taken. It's political.

Posted by: Grumpy at February 24, 2004 06:24 PM | PERMALINK

"The fact that they've chosen deliberately confusing language indicates that they're hoping to ban everything but are also hoping to fool people into thinking otherwise."

Kevin, you're just a lunatic tinfoil hat conspiracy liberal Bush-hating irratio...

Posted by: scarshapedstar at February 24, 2004 06:24 PM | PERMALINK

The second sentence reads:
"Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

A state passes a law that says "If two persons of the same sex enter into a union as provided in subsection (a) below, they shall be entitled to those incidents of marriage enumerated in subsection (b) below."

A couple married in county A go to county B and claim one of the enumerated incidents of marriage. The County refuses. The couple sue. The state court is forbidden by the FMA from construing state law to say what it obviously says, namely that some legal incidents of marriage shall be available to the same-sex couple (who are obvously "unmarried" under the state's marriage law, but "united" under its civil union law).

The omission of "or federal or state law" would allow an explicit civil union or domestic partnership statute to be passed but still prevent a court from interpreting a state's equal protection or other constitutional provision from requiring gay marriage. The latter is still bad, though, because the constitution should never be used to restrict the rights of an identifiable group. That is a horrible, horrible precedent.

Posted by: Mimikatz at February 24, 2004 06:24 PM | PERMALINK

Technowitch,

Ummm...I don't know what full faith and credit is cited for, but if it's cited re: contracts it's being cited incorrectly. The appropriate citation would be to Article 1, sec. 10: "No State shall...pass...any Law impairing the Obligation of Contracts."

And on most issues today, there's no good reason why a state wouldn't honor various agreements from out-of-state, and the states are free to honor anything they want, as they would be if full faith and credit didn't exist.

On contentious issues, that's where Congress gets to step in. As they have on child support: Congress requires states to honor child support judgments entered in other states and attach the property of those who aren't paying. On DOMA, Congress came out the other way. Said states don't have to honor same-sex marriages. Think what you want about DOMA--I think it's wrong. But it's constitutional.

Posted by: Categorically Imperative at February 24, 2004 06:25 PM | PERMALINK

Ooops, here is Atrios' post:

"Strom Thurmond Wasn't A Racist

Trent Lott isn't either.

Nor is Jesse Helms.

Really, they are/were nice guys. Not racists at all. I mean, sure, they pandered to racists. But, you know, they weren't really racists themselves. It's just...politics, right? They just always did and said things against the interests of African-Americans to get votes - not because they themselves are bigots."

Posted by: jdw at February 24, 2004 06:26 PM | PERMALINK

"Perhaps, but ultimately, what's constitutional is what the Supreme Court decides is constitutional. If they decide that DOMA oversteps Congressional authority, it's gone." --PaulB

So, I suppose that Plessy v. Ferguson and Dred Scott were correct because the Supreme Court said so.

In one sense, you're right, what the Supreme Court says goes, at least for a time. I was trying to advance an argument that, under a correct interpretation of the full faith and credit clause, DOMA is constitutional. If the Supreme Court misinterprets the clause, then so be it.

Posted by: Categorically Imperative at February 24, 2004 06:30 PM | PERMALINK

WHY IS BUSH NOT A HOMOPHOBE, KEVIN?

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Posted by: David Ehrenstein at February 24, 2004 06:32 PM | PERMALINK

WHY IS BUSH NOT A HOMOPHOBE, KEVIN?

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WHY IS BUSH NOT A HOMOPHOBE, KEVIN?

WHY IS BUSH NOT A HOMOPHOBE, KEVIN?

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Posted by: David Ehrenstein at February 24, 2004 06:33 PM | PERMALINK

WHY IS BUSH NOT A HOMOPHOBE, KEVIN?

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Posted by: David Ehrenstein at February 24, 2004 06:34 PM | PERMALINK

Dude, that's bogus...

Posted by: obscure at February 24, 2004 06:47 PM | PERMALINK

...I mean the spamming thing.

Posted by: obscure at February 24, 2004 06:48 PM | PERMALINK

It's spam, spam, spam and SPAM, until I get an answer!

WHY IS BUSH NOT A HOMOPHOBE, KEVIN?

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Posted by: David Ehrenstein at February 24, 2004 06:52 PM | PERMALINK

"...it would be quite easy to construct wording that made their intent clear if the amendment's drafters wanted to. The fact that they've chosen deliberately confusing language indicates that they're hoping to ban everything but are also hoping to fool people into thinking otherwise."

Yes. Exactly. Something to keep in mind when you hear this being argued as a moral battle, for the soul of America. Ends and means are of a piece. There is no morality that hides itself within lies. If this is a battle for the soul of America, then the Musgrave Amendment is an admission by its authors that they could not win a fight for their own souls, let alone anyone else's, let alone America's.

Posted by: Bruce Garrett at February 24, 2004 06:54 PM | PERMALINK

Didn't bother to read all the comments, but just want to point out that the numbers Kevin cites seem to be more about gay marriage in the abstract, not favor/against a constitutional amendment. Andrew Sullivan cites a poll over at his site that gives numbers something like 48% against the amendment/41% in favor. I think the distinction between being against gay marriage in the ABSTRACT than being in favor of a Constitutional Amendment is a very important one.

Also, from what I read of John Kerry's stance, it was pretty clear. Or at least the statement cited over at Daily Kos that he made today. He did offer a rather muddled, fence-straddling stance about a week a go - but I think that was in response to the Massachussetts decision.

Ben P

Posted by: Ben P at February 24, 2004 06:54 PM | PERMALINK

Word, obscure. Annoying, with a capital A.

Yo, David, if you want to wrassle with Kevin, why don't you send him an email or something? Shouting at the rest of us is not likely to accomplish anything besides pissing people off.

Posted by: Rana at February 24, 2004 06:55 PM | PERMALINK

As I said before in another thread, the proposed amendment is ambiguous as to whether it would keep state legislatures from enacting same-sex civil unions. The anti-gay-rights people are saying it would not, while the gay-rights people are saying that it would. If the amendment were enacted, these arguments would be reversed.

Another possible interpretation as to why the wording is not clear on this point: some elements of the coalition supporting it would not do so if there was any explicit language permitting states to enact civil unions.

Posted by: rachelrachel at February 24, 2004 07:09 PM | PERMALINK

You're wrong about Bush Kev. He's a bigot pure and simple. It's time to call a spade a spade.

Fact is that he believes all this fundamentalist nonsense, he just considers it an added bonus that it'll help him with his base.

He hasn't a principled bone in his overpriviledged, C average carcass.

Posted by: four legs good at February 24, 2004 07:10 PM | PERMALINK

If it legislates like a bigot, talks like a bigot, then it IS a bigot.

Posted by: ch2 at February 24, 2004 07:12 PM | PERMALINK

In the future I would expect that couples, gay or not, will be able to receive legal recognition and protection, by obtaining a civil union license at their local government office. This would leave marriage up to individual churches that could set any conditions for recognition of and performance of marriage. This seems to be consistent regarding issues of separation of church and state.

Posted by: dan at February 24, 2004 07:25 PM | PERMALINK

Bush hasn't endorsed any particular amendment. He backed an amendment preventing the SC from requiring gay marriage, and allowing states to make their own marriage laws.

Posted by: Reg at February 24, 2004 07:28 PM | PERMALINK

check out what Cheney had to say about the issue in 2000:


    CHENEY: This is a tough one, Bernie. The fact of the matter is, we live in a free society and freedom means freedom for everybody. We don't get to choose, and shouldn't be able to choose, and say, "You get to live free, but you don't."

    And I think that means that people should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard.
    The next step then, of course, is the question you asked of whether or not there ought to be some kind of official sanction, if you will, of the relationship or if these relationships should be treated the same way a conventional marriage is. That's a tougher problem. That's not a slam dunk.
    I think the fact of the matter, of course, is that matter is regulated by the states. I think different states are likely to come to different conclusions and that's appropriate. I don't think there should necessarily be a federal policy in this area.
    I try to be open-minded about it as much as I can and tolerant of those relationships.
    And like Joe, I also wrestle with the extent to which there ought to be legal sanction of those relationships. I think we ought to do everything we can to tolerate and accommodate whatever kind of relationships people want to enter into.

amazing thing, google.

Posted by: cleek at February 24, 2004 07:32 PM | PERMALINK

My wife is an avaid BUsh nut.She leaves the car radio on wingnut radio.Michael Savage was on.HE wants to make gay marraige Illegal.Make it a crime.In face he has a web poll that hes claiming to be valid an claims that the majority are in favor of making gay marraige a crime.

No wonder this country is so ass backwards with crack pots on all our radio channels.We dont get the truth on television and moronic idiots on the radio ranting and raving about what tey want and what they think without reguard of actual facts.

I'm flabbergasted at the direction our country has gone while I turned my back.

Posted by: smalfish at February 24, 2004 07:33 PM | PERMALINK


MKultra is right about the interpretation of the amendment being proposed. It is written in such a way as to usurp States' legislatures power to make enforceable law granting the right of Civil Union to same-sex couples.

That the authors lie about this is testament to their knowledge that their position is outside the American mainstream.

Posted by: ryan b at February 24, 2004 07:33 PM | PERMALINK

Marriage is not just a religious institution. It offers legal benefits at almost every level of government. That includes tax breaks.

Discrimination against gay marriage is equivalent to taxing gays for their sexual orientation.

Anyone brought that up yet?

That connected for me when I was reading an editorial complaining about how marriage discriminated against single moms, heh.

I don't think Bush is a homophobe, except in the most general sense of his background. If he was genuinely a homophobe, he would've backed this amendment long ago. I agree, it sounds like a political calculation, not an ethical one.

Posted by: Sandals at February 24, 2004 07:40 PM | PERMALINK

Actually, one problem. I need to check if civil unions receive the same tax breaks as marriages do.

Posted by: Sandals at February 24, 2004 07:45 PM | PERMALINK

Both Kerry and Bush are uninspiring when it comes to principles.

Posted by: Sugar Plum Fairy at February 24, 2004 07:47 PM | PERMALINK

Bush hasn't endorsed any particular amendment. He backed an amendment preventing the SC from requiring gay marriage

is there a difference between "backed" and "endorsed", or are you talking about an actual amendment and a hypothetical one?

Posted by: cleek at February 24, 2004 07:49 PM | PERMALINK

No, civil unions don't affect tax laws at all.

Posted by: Eric at February 24, 2004 07:50 PM | PERMALINK

If Bush is not a bigot, he is providing aide and assistancve to bigots. You're either with them or against them; there ain't no middle ground.

And Kerry is with the Bigots, too, if he would accept a federal amendment so long as it provided for civil unions. That would mean that there is NO, NONE, NONE, NO difference between Bush and Kerry. As it is, assuming he would not do such an idiotic thing, there is prescious little difference between them.

If Kerry does not come down hard against ANY amendment of the US consdtitution, he can kiss my tepid, tenative support good bye. He did not stand up for what is right on the war on iraq and if he can't stand up now for what is right and be a leader then what f'ing good is the guy? Why the hell should anyone vote for such a duplicitous spineless snail?

Posted by: obe at February 24, 2004 07:50 PM | PERMALINK

"Bush hasn't endorsed any particular amendment. He backed an amendment preventing the SC from requiring gay marriage, and allowing states to make their own marriage laws."

Not it does NOT.

The amendment outlaws EVERYTHING : Gay Marriage, "Civil Unions" or ANY other kind of a contract persons of the same sex can make with one another. The notion that Bush has "left a door open" is shee 4th Estate flim-flam. The door is CLOSED.

And I've been spamming in here because Kevin awlays comes into the comments section to add words of his own.

Except THIS time.

So wehere the fuck are you Kevin?

YOU CAN RUN BUT YOU CAN'T HIDE!

Posted by: David Ehrenstein at February 24, 2004 07:51 PM | PERMALINK

Could this be the "out" so to speak that Cheney is looking for to leave the ticket?

Posted by: Jack at February 24, 2004 07:51 PM | PERMALINK


Not Ninety Percent support for the ERA. Upwards of Ninety Percent. I know you are given to hyperbole here and there, but that number is patently absurd. You couldn't get Ninety Percent approval for the First Amendment.

Posted by: Andrew at February 24, 2004 07:52 PM | PERMALINK

There certainly seems to be a lot of reaction to Kerry here, calling him spineless and fence-straddling. Doubtless that's going to be the impression that comes through in the news soundbites as well, which is unfortunate. He was quite clear in his statement that he is for civil unions as a measured step towards the goal of non-discrimination. I don't agree that's enough, myself, but his stance seems clear enough, and I respect him for it. It's a relatively centrist position, yes, but that doesn't make him a hypocrite.

Posted by: Ted at February 24, 2004 07:52 PM | PERMALINK

Cheney's not leaving the ticket.

Posted by: David Ehrenstein at February 24, 2004 07:52 PM | PERMALINK

Obe, read his official statement on the kerry blog. He explicitly came out against amending the federal constitution.

Posted by: Ted at February 24, 2004 07:54 PM | PERMALINK

This letter regarding civil unions in Vermont seems to indicate that they are not subject to the same tax breaks as marriages.

http://www.uiowa.edu/~ournews/2002/october/1028weakness-in-law.html

As does this website.

http://www.marriageequalityca.org/taxation.php

Excuse me, how do you post hyperlinks? Neither [url] or anchor tags seem to work.

Posted by: Sandals at February 24, 2004 07:54 PM | PERMALINK

I agree with Ben P here:

"I think the distinction between being against gay marriage in the ABSTRACT than being in favor of a Constitutional Amendment is a very important one."

What initially struck me (diverting somewhat from the actual issue of what whatever one believes about gay marriage) is that Constitional amendments are a pretty serious matter. It has been hammered into our heads since middle school history class the an amendment to the Constitution is the most serious of serious moves the government can make. And I think that most people feel the same way.

I mean, the last amendment (save 1992, which regarded salaries of Congressman - not that BIG an issue, and which by the way was proposed in 1789, though gained headway in the 80s) was 1971, lowering the voting age to 18. And before that the last MAJOR amendment was the 24th, ratified in 1967, which eliminated the poll tax, the last roadblock to black voting.

What I'm saying is somehow that proposing an amendment to the Constitution is REALLY serious to most people, and it does step over the line from believing in somthing to REALLY believing something.

Posted by: three spaces at February 24, 2004 07:57 PM | PERMALINK

cleek, that's a great Cheney quote.

David, temper tantrums not attractive.

I agree completely with Kevin. Bush not the type to have a strong animus towards gays. He's playing to his base here. He's also trying to distract the nation. That's the way I see it.

Posted by: obscure at February 24, 2004 07:59 PM | PERMALINK

"Obe, read his official statement on the kerry blog. He explicitly came out against amending the federal constitution."

That's mighty big of him. Not quite a hero, but not quite a snail. I will withhold judgment and wait to see whether he acts like a leader or a snail on this. He can still be a leader without having to endorse gay marriage. He needs to take a stand that is based on principle and not waffling.

Posted by: obe at February 24, 2004 07:59 PM | PERMALINK

One point I noticed in all the brouhaha about Bush's "endorsement" of a Federal Marriage Amendment is the he clearly added a proviso about civil unions to his comments: does he know (or care?)that the text (the "Musgrave" text) of the proposed Amendment WOULD ban such "unions" as legal? And yes, I know it's a major Constitutional-Law debate about whether the wording as stated would have that effect - my feeling is that is the definite INTENTION of the Amendment's sponsors to have it completely bar ANY legally-recognized domestic partnerships bby gays. Or is this just Dubya's way of giving himself an "out" (pun intended) in case the issue backfires on him and/or the GOP.
What, you say? Cynical political posturing from George W Bush??
Nahh, can't be....
He's the "uniter, not a divider", remember?

Posted by: Jay C. at February 24, 2004 08:03 PM | PERMALINK

"David, temper tantrums not attractive."

Oh yeah? Watch it or I'll call out the black helicopters on your worthless ass !

Posted by: David Ehrenstein at February 24, 2004 08:05 PM | PERMALINK

Actually, Sandals, no - civil unions confer absolutely no tax privileges or differences at all.

As far as the Federal Government and the California State Tax Franchise Board are concerned, I am SINGLE.

This is despite my being in a registered Domestic Partnership here in California.

Were I and my partner to move to Vermont and get a Civil Union there, we STILL would be prohibited from filing taxes as a married couple.

In fact, according to our nation's Federal government, the only actuality afforded to our relationship is if one of us has a security clearance (an issue which has come up in the past for one of us), in which case the other partner is considered close enough to be taken into account.

Right now, there is a small, threadbare patchwork of rights and privileges (and responsibilities) afforded to same-sex couples. In much of the country, it exists not at all. In the few parts where there's any coverage at all, we know that if we leave the state of our current residence, we lose everything. Our domestic partnership here in California means bupkiss in Alabama, kapiche?

Technowitch

Posted by: Technowitch at February 24, 2004 08:06 PM | PERMALINK

That wouldn't be nice.

Posted by: obscure at February 24, 2004 08:07 PM | PERMALINK

I dont think we can critisize the Democratic candidates at this point.They're trying to win an election and MUST do some pandering in order to win.I dont think it would be a good idea to push these guys at this time on the real stand other than to oppose an amendment.We HAVE to stay on target.BUSH MUST GO!!At any cost at this point.Also its important not to go off the deep end on this issue as we need to moderates to win the popular vote.If this issue is to tear apart the dems because the candidates wont come out and promote gay marrige that only lets the wingnuts win.Lets just let calmer head prevail.

Posted by: smalfish at February 24, 2004 08:09 PM | PERMALINK

Reply to Jay C.:

As near as I can tell, Bush's statement about the text of the amendment version he's pushing not ruling out Civil Unions is a lie.

But then again, what else could we expect from him?

There are several versions of that Marriage For Heteros Only amendment around, and that's the only one that refers specifically to prohibiting the passage of any law, state or federal, or consitutional amendment, state or federal, which confers the rights and privileges of marriage on "unmarried couples". And since only "one man and one woman" can get married, ipso facto, a civil union for homosexuals is by definition not a marriage in the eyes of the law.

-Technowitch

Posted by: Technowitch at February 24, 2004 08:12 PM | PERMALINK

Please see my comments at:

http://www.removebush.com/Blog_Archive_12_03.htm#gay

Posted by: Wade at February 24, 2004 08:13 PM | PERMALINK

David,

Way to be Naderesque. Kevin is on your side, but you want to attack him instead of Bush. Good job keeping your eye on the prize. It's people like you who got Bush in office, just remember that.

Posted by: TOTL at February 24, 2004 08:15 PM | PERMALINK

"You're not much of a Democrat."

Let me make this clear. I will vote for the Democratic nominee.

I will vote for the Democratic Nominee is a monkey carrying Ebola.

I am making the point that Kerry's equivocation on this issue, as he does on most, will kill him in the campaign.

Posted by: Matthew Saroff at February 24, 2004 08:15 PM | PERMALINK

"I dont think it would be a good idea to push these guys at this time on the real stand other than to oppose an amendment."

I think most people can live with that. But we have good reason to be concerned. Our so called dem leaders have failed us and the country miserably since Bush got elected on key issue after key issue, on Iraq, taxes, the patriot act, the environment and on. They have sided with Bush rather than fight him because they were too timid to rock the boat and put their own butts on the line, and they lost on top of it anyway. I thought we all agreed we can't have that any more if we are to have any hope of defeating these bums, in congress and the WH.

People will give Kerry slack and support so long as he does not go spinelss on us and stands up for what is right, fights for what is right.

Posted by: obe at February 24, 2004 08:19 PM | PERMALINK

Another thought, regarding Kevin's original post:

"Bush and his advisors must have made the calculation that they have no choice: they can't win unless the hardcore culture warriors are fighting mad and on their side."

I think this is a case of playing to the political spectrum. As (right-wing) political opinions go, the hardcore base influences the slightly less-hardcore base, which influences the even-less-hardcore base, which eventually makes its way to the official (right-wing) public stance. If Bush loses the hardcore base on what is such a pivotal issue for them, I think the rest domino. So he has to side with them.

To put it another way, if Rush came out today in favor of gay marriage, 75% of his listeners would turn off the radio, which translates to an eventual fall-out for Bush. Yet another way to put it: if Bush proposed some major law eliminating corporate tax shelters, his donors would suddenly disappear. Always politically calculating.

SO, as stated (or attempted to state) a few posts above, Constitutional amendments are pretty serious, and I think only the most hardcore believers will truly support it.

Maybe this speech will go the way of the Mars mission, if it doesn't hold water, or maybe it will become one of the most pivotal issues that cost Bush the reelection. Hard to say, since betting on horses out of the gate is a tricky proposition. Stay tuned.

Posted by: three spaces at February 24, 2004 08:26 PM | PERMALINK

'It's hard to pretend to be a "compassionate conservative" when ...'

Now, now, now. If that cover wasn't obvious for what it was back in 2000, then surely, SURELY, it is obvious to even minimally sentient beings by now. (There's a ~third of the population that is pro-Bush all the way: these are not even minimally sentient; then there's the tuned-out fluffy-brained types: another third?). To suppose that peddling a constitutional amendment against gay marriage is damaging to the Bushies' compassionate conservative image is just DAFT.

4 more years!! Think of the DAMAGE!!! To the US and world economies! To the environment! To society!! GAWD! It will be GLORIOUS!! Exciting!
4 MORE YEARS!
Vote For Dubya! And Dick The Prick Cheney!
A proper rogering while we're at it, why not?
Bring it ON! Ohgodohgodohgodohgod...

Posted by: Dom at February 24, 2004 08:28 PM | PERMALINK

With those remarks, all I can say is Kerry gets my vote if he's the nominee but nothing else--no money or support.

Sorry but I just can't give money to candidates like Kerry and Edwards who do not support equal rights for all people (and I'm a heterosexual woman btw). I think this is the cornerstone of what democrats stand for--equality and inclusion.

And for Kerry to support a constitutional amendment that would codify discrimination against homosexuals, well that's just incomprehensible to me. Even Tom DeLay, whom I abhor, says he's not sure a constitutional amendment is the right course here.

A constitutional amendment is drastic and should not be undertaken to cater to the homophobic segment of the population that wants to shove their religious values down everyone's throats and make their religious beliefs the law of the land.

Sorry Kerry but you've lost at least $2,000.

Posted by: CatM at February 24, 2004 08:30 PM | PERMALINK

Kerry's position isn't "fence straddling". He is expressing exactly what most Americans feel. Most Americans want gay couples to have legal rights, but aren't ready to see gay newlyweds coming down church steps. This may not be a logical viewpoint, but feelings are usually not logical.

Posted by: dan at February 24, 2004 08:31 PM | PERMALINK

If the US Constitution cannot be construed to require states to recognize or allow gay marriages, as per the wording of the proposed amendment, what about Equal Rights, wherein a marriage recognized by one state must be recognized by all the others?

Posted by: the good reverend at February 24, 2004 08:45 PM | PERMALINK

And one other thing.

The ONLY reason people are against gay marriage, while generally being pro hetro marriage, is FEAR of the world outside their familiar, comfy, boxes. It takes some spiritual balls to wake up and walk outside. And MOST people just don't have it.

Posted by: Dom at February 24, 2004 08:51 PM | PERMALINK

The confusion over Kerry's position on this issue stems from the fact that he has modified it in the past week or so. He was asked about his views on a constitutional amendmend against gay marriage during the Wisconsin pres. debate, where he said that his support for such will 'depend' on whether proper provisions were included for allowing something like civil unions; when pressed for more specifics, he wanted to know whether the question is about an amendmend at the federal or at the state level, and the questioner did not press further. I remember being quite disappointed with his answer, since it intimated that there are conditions under which he would support an amendment; further, I thought the whole 'federal-state' distinction was an inelegant copout, since in his capacity as senator, and his future potential capacity as president, he clearly would have a say in what happens at the federal level - i.e., background knowledge led one to interpret the original question as refering to a federal amendment, as I did. That said, Kerry's statement from today is clearly against such an amendment, and I hope he sticks to it and succeeds in articulating the rationale behind it in a forceful, compelling, and persuasive manner.

Posted by: mara at February 24, 2004 08:59 PM | PERMALINK

It's fine and dandy to bitch about proposed policies but.....It's now time to put the rubber on the road.I have spent the last few months studying so that I know the real issues andd truths.I now have that knowledge and can actually make a difference in the real world and have lnoy begun.I believe I have already converted two without even trying.All it takes is putting facts in front of the unwitting.We need to focus on this task instead of complaining.This election is going to take a true "grassroots" effort.
I have NEVER been intrested in involving myself in politics or elections.I find myself so enraged that there is almost nothing I wont do to get BUSH OUT.We all need this attitude instead of infighting and bitching.

Posted by: smalfish at February 24, 2004 09:00 PM | PERMALINK

"Way to be Naderesque."

You remember his call gay rights "gonadal politics" don't you? of course you don't.

"Kevin is on your side,"

is he now?

"but you want to attack him instead of Bush."

Pas de tout! I atack Bush and Sully and the Log Cabinettes and anyone else who meets with my displeasure.

You're on that list too, of course.

"Good job keeping your eye on the prize."

You have NO IDEA!

" It's people like you who got Bush in office, just remember that. "

Oh fuck you, and the Shetland pony you rode in on!

Posted by: David Ehrenstein at February 24, 2004 09:02 PM | PERMALINK

Ah! So the TV interview is OLD. I can deal with modified positions. Cal, you need to point out that the interview precedes his official statement.

People will often misspeak off the cuff. I like his statement on his website; it's reassuring.

Posted by: CatM at February 24, 2004 09:02 PM | PERMALINK

After researching this further, I think Kerry is talking about the Mass. constitution debate that was going on, not the federal level. It's quite clear on his website he opposes any amendment at the federal level.

Whew. I feel better.

Posted by: CatM at February 24, 2004 09:06 PM | PERMALINK

Anybody who makes Dean 2008 signs isn't showing much support for the party.

And Kerry hasn't equivocated on this issue any more than Dean has, whose position is similar.

Kerry, if he supports a state constitutional amendment that might be drafted in response to a ruling of the Massachusetts Supreme Court, to ban gay marriage and codify gay civil unions in the Commonwealth of Massachusetts, is not much different from Dean, who signed a law that in response to a ruling from the Vermont Supreme Court banned gay marriage and codified gay civil unions in the State of Vermont.

Like it or not, that's the default stance taken by national Democrats: against a federal amendment, against same-sex marriage, in favor of same-sex civil unions, in favor of allowing the several states to decide.

Posted by: rachelrachel at February 24, 2004 09:10 PM | PERMALINK

I'm not really worried about this issue politically, and polls showing people opposed to Gay marriage. I just don't think it's that big an issue for most non-Christian right voters. Even if a non-Christian right voter opposes it, I'm sure it's low on the list of determining factors for his vote (behind the economy, security, etc.

Posted by: Upper West at February 24, 2004 09:15 PM | PERMALINK

CatM brought up an interesting question on the Kerry site. Lots of lazy or inconclusive reporting is not going to help the Democrats following politics stay clear on the issues. (The other side doesn't seem too disturbed that the talking points are researched for intent rather than backed by fact...) It's pretty sad that it's every man for himself as far as the veracity and cite of anything that you hear. Just for the record this the statement from Kerry regarding the US Constitution.


Statement from John Kerry on Bush Constitutional Amendment

February ?24,? 2004

For Immediate Release

?I believe President Bush is wrong. All Americans should be concerned when a President who is in political trouble tries to tamper with the Constitution of the United States at the start of his reelection campaign.

?This President can?t talk about jobs. He can?t talk about health care. He can?t talk about a foreign policy, which has driven away allies and weakened the United States, so he is looking for a wedge issue to divide the American people.

?While I believe marriage is between a man and a woman, for 200 years, this has been a state issue. I oppose this election year effort to amend the Constitution in an area that each state can adequately address, and I will vote against such an amendment if it comes to the Senate floor.

?I believe the best way to protect gays and lesbians is through civil unions. I believe the issue of marriage should be left to the states, and that the President of the United States should be addressing the central challenges where he has failed ? jobs, health care, and our leadership in the world rather than once again seeking to drive a wedge by toying with the United States Constitution for political purposes.?



Posted by: Evelyn at February 24, 2004 09:21 PM | PERMALINK

Too bad calpundit doesn't fix that post. Kerry has been on the national news today saying no US constitutional amendment. In that old clip he is talking about Mass. amendment.

Posted by: Hadenough at February 24, 2004 09:23 PM | PERMALINK

I think you're exactly right, Upper West, and I did note that Kerry made a comment to that effect in response to Shrub. Unfortunately it was buried way down in the AP story. But he (or whoever the nominee is) has to hammer, hammer, hammer the point home that all Bush is doing is trying to distract people from his many miserable failures.

I just don't think this is going to be as much of a defining campaign issue as many people seem to. When the hysteria dies down (I can't imagine it won't in the many months before November) people will realize that gay marriage probably won't kill them or their families, but crappy economics and ruinous foreign policy might.

Posted by: Ted at February 24, 2004 09:24 PM | PERMALINK

Kevin,

Given that the linked statement by Kerry is obviously both stale and out of context, he made a much stronger and more resondant condemnation of Bush's statements today, and others pointed this out hours ago,

Why do you still have the stale link posted? How/why did you ever post it? Why no update? Despite your maddening (though perhaps not Sullivanesque) tendency to cut slack to those who do not deserve it, you appear to have done yeoman's work in the past revealing Republican efforts to manipulate public opinion through misleading and otherwise deceptive legerdemain. I expect better from your site than a highly misleading and deceptive statement that allows some rumor to spread. Is Glenn Reynolds guest blogging?

Moreover, "all too typical fence straddling" is the sort of regurgitation of Republican talking points I would expect from someone other than you. Kerry's comments were more strident than those of Barney Frank. Is he a fence straddler, too?

Seriously, what's up?

Posted by: DelRPCV at February 24, 2004 09:25 PM | PERMALINK

"Anybody who makes Dean 2008 signs isn't showing much support for the party."

I'm doing preliminary design work on a T-shirt. It's in my head, and it will stay there until December.

If the Democratic nominee loses because they weasel too much, then COME DECEMBER, I'll consider doing the shirts.

I have no great enthusiasm for Kerry, and any number of folks have stated concerns about his viability in the general, given his history of equivocal statements of principle.

One of the points that the good doctor made was that Bush must be challenged, and if we lose because our candidate fails to do so, I, and the rest of the Dean supporters are entitled to a week or so of "I told you so" and a neat T-shirt.

I'm not rooting for Bush to win. I will vote AGAINST Bush, but at this point, I can't see myself voting FOR Kerry.

By way or reassurance, if Kerry and the Ebola carrying monkey were the only two Democrats in the Maryland primary, I would pull the lever for Kerry.

Posted by: Matthew Saroff at February 24, 2004 09:27 PM | PERMALINK

While we're waiting for Kevin to show up some of you might be interested in reading this Larry King Transcript

Posted by: David Ehrenstein at February 24, 2004 09:28 PM | PERMALINK

I don't think there's even hysteria now, Ted. And just get out a lot of wrenching stories about kids torn away from loving parents and the numbers will change.

Posted by: Upper West at February 24, 2004 09:28 PM | PERMALINK

An election where one candidate is the incumbent President is first and last a referendum on that candidate.

Accordingly, given the Boy's backing of the FMA, the relevant election issue will be, not whether you are against gay marriage, but whether you want to amend your Constitution - the oldest one in the world - to ban gay marriage, and maybe even more.

Given the visbility of this issue, and of the real people who line up to get hitched in SF, and in Mass. this Spring, by November the answer will be clearly no. This is a loser for the Boy.
If Kerry is against the amendment, he will be with the majority, no matter what his position beyond that. Forget about Kerry. The Boy has boxed himself in here. He panicked. He thought he had to do something to counter the images out of SF. Backing the amendment so quickly was stupid. Knee-jerk. He's on his heels, reacting, not acting. He will deeply regret this day down the line.

Another round of friendly fire in the Culture War.

Posted by: mkultra at February 24, 2004 09:36 PM | PERMALINK

Blast From the Past!

Posted by: David Ehrenstein at February 24, 2004 09:40 PM | PERMALINK

BTW, isn't this the Texas Governor who denied there was any such thing as a hate crime, and fought tooth and nail against a law to punish people for murdering and intimidating minorities?

Now it's of paramount importance to enshrine discrimination against a minority in the Constitution -- more important that a law against gay bashing and dragging murders of black men?

There's a cross burning outside your window, America.

Posted by: Brian at February 24, 2004 09:42 PM | PERMALINK

This may be shocking, but people can't always be on the computer all the time. Wait until he gets on before bashing him again, and again....and again. :)

Posted by: Sandals at February 24, 2004 09:43 PM | PERMALINK

meme:

Read the proposed amendment carefully. It bans all new marriages. It says no law shall confer marital status on unmarried couples.

Posted by: Matt at February 24, 2004 09:43 PM | PERMALINK

It's called the Hate Ammendment now. Pass it on.

Karl Rove is a sucka, if he thinks this isn't going to fire up the Democratic base more than the Republican one.

The mind reels. Acutally write discrimination INTO the Constitution?

The Right really doesn't have a record they can run on, so they resort to homophobia and discrimination.

They are going to get burned by this, in a big way.

The Monkey says: "Marry 'em all, let Got sort 'em out."

That's what they believe, correct? That God is going to punish Gay people, so why do they feel the need to do it themselves? Is it the Bully's Toady Response?

Disgusting, is what it is. Nobody in Europe is suffering because Gay people can get married. Civilization hasn't yet collapsed over there.

Ridiculous. I'm actually embarrased for this country, that with all the current problems, the President has to resort to this sort of hatemongering.

Posted by: Monkey at February 24, 2004 09:56 PM | PERMALINK

Kevin,

Enough already on this issue. It's just another slippery slope. Ban gay marriage, ban abortions, ban porno, ban affirmative action, ban civil servants, ban government regulation of "free enterprise", ban taxes, ban public schools, ban the Miranda decision, ban the U.N., ban tits on TV, ban foul language, ban welfare, ban bans of the death penalty, ban liberal judges, ban lawyers, ban other nations pre-emptively, ban "bad thoughts", ban lending a helping hand....ban, ban, ban, ban, ban......you get the idea.

Enough of this, and the politcal right will have a banner year. But you can bet your sweet bippy that the end of this will be a ban on fucking life itself. These people exhult in death.

Posted by: bobbyp at February 24, 2004 10:03 PM | PERMALINK

Oh come on people...

Four More Years!!

It would be a BLAST!!

Think of the BILE!
It would be TERMINAL!!!
God oh god oh god oh god oh god

Posted by: Dom at February 24, 2004 10:12 PM | PERMALINK

The next thing is probably habeus corpus(I know it's already being done.).

Posted by: smalfish at February 24, 2004 10:15 PM | PERMALINK

Oh and by the way, these are the people who are againsy burning the flag, and they are PISSING on the Constitution?

Posted by: Brian at February 24, 2004 10:17 PM | PERMALINK

This is for Dean supporters that may be reading. All are welcome, of course, but if it isn't your thing, you can move on without flaming me. Please ;)

Dear Dean grassroots leaders,

Howard Dean is no longer actively campaigning for the presidency and is promising a new Dean for America to carry his ideas forward. We'll all be a part of that new organization and movement when it's announced.

In the meantime, Ralph Nader is joining the race to ensure that George Bush gets another 4 years, and the press is gleefully reporting stories of
how ex-Dean supporters and groups re "defecting" to Kerry or Edwards.

We feel we need to act now so we're planning to issue a press release, in conjunction with MoveOn.org, to announce our unity. The press release will cover three main points:

1) We are UNIFIED in working to send as many delegates pledged to Dean as possible to the Democratic Convention.
2) We are UNIFIED in the need to create a movement to advocate for the principles articulated by Howard Dean.
3) We are UNIFIED to work together in coalition with a broad range of groups to oust George Bush in 2004.

We're collecting the names and contact info of leaders of regional and national Dean grassroots organizations who might be interested in endorsing the final press release. Once we've completed writing the release, we'll forward it to you for your approval. If you agree with the statement, we'll include your organization's name as part of the release.

If you'd like to be a signatory to the press release (after you've approved its contents), send the following information now to Rob Dickinson
:

Name of the grassroots group:
Description of what constituency this group serves:
Contact(s) Name:
Phone number(s):
E-mail address:
Approx. number of people represented in this group:

Additionally we have set up a mailing list so we can stay in touch.
Subscribe at:

http://www.smc4dean.org/mailman/listinfo/grassroots-unity

and or send an e-mail to:

grassroots-unity-subscribe@smc4dean.org

Your help is absolutely necessary to make this project fly! Please direct questions to Dan Robinson at dan@drob.org.


All I want is my country back

Posted by: Paul in Berkeley at February 24, 2004 10:37 PM | PERMALINK

I've been married some thirty-five years and can't think of any instance where our marriage has been threatened by any one else's marriage. Our Episcopal priest says homosexuality is not a sin. For me it's a non-issue. Freedom of religion and a system of laws to protect human rights seems about where our nation's founders started. Same laws, same freedom for everybody. No brainer. No amendment necessary.

Posted by: noclass warrior at February 24, 2004 10:50 PM | PERMALINK

Now what happens in Calif. if the State Supreme Court says the marriages are legal and someone files an initiative to add a Constitutional Amendment to the state Constitution to affirm Prop 22? When does the will of the people become the overiding factor? Or does it? Do we get to the point that we all have an equal right to do whatever we desire? We're supposed to be a nation of laws, but no legislative body has ever passed a law giving same sex couples the right to marry? Why haven't they taken the cause to legislatures?
I don't think Newsome is committing an act of civil disobedience? If he were, he'd have been arrested. He's playing to his constituancy more than what you accuse the president to be doing.

I don't think the 2 S.F. judges did their job. They said there was no immidiate harm. But isn't their job to uphold laws on the books?
Until there has been a court test on the actions of the mayor, he should have been enjoined from continuing the issuance of marriage licenses to same sex couples.

The ABB campaign here brings back memories of what the left accused the Repub. of back in 1996. Anybody but Clinton. But why wasn't there all of this hand wringing over his approval of the DMA? What is different now other than the occupant of the White House? Do you think that if Newsome had been mayor in 1998 and started issuing licenses then as he is doing now that talk of a Constitutional Amendment wouldn't have been discussed? You act as if the cuurent language proposed for this amendment had been set in stone and all ready set for enactment. Why? Are you afraid? Of what?

I personally think marriage should stay as it has been for the past hundreds of years. Some of you may argue that during that time there were marriages with more thatn one wife. True, there were. But never with more than one husband. And the U.S. legislative bodies made the determination that those marriages would not be to the greater good of our society. I don't think the Mass. SC, or any other court should have the power to make laws. They should be the arbiter of laws.

What happens if the Gov. and the legislature of Mass. tells the court "No. We will not make a law recognizing same sex marriages"? What can or will the court do? Are they going to hold every county clerk who refuses to issue a license in contempt? The governor? The legislature? They don't have the constitutional authority to write laws.

Posted by: Meatss at February 24, 2004 11:00 PM | PERMALINK

Meatss
We're supposed to be a nation of laws, but no legislative body has ever passed a law giving same sex couples the right to marry? Why haven't they taken the cause to legislatures?

What damage is being done to you by the same sex marriages? What are you afraid of?
Shouldn't all Americans have equal rights? Why change the constitution to restrict the rights of some Americans? There is plenty of discrimination to be found in life. I don't like legalizing it. I'm more angered by bullies than by the victims.

Posted by: noclasswarrior at February 24, 2004 11:22 PM | PERMALINK

HEY KEVIN,

HOW ABOUT A FRICKIN' CORRECTION ON YOUR DISTORTION OF KERRY'S POSITION!

It's bad enuf when the right-wingers distort Kerry's position on this, but you don't need to help do the job for them.

UPDATE AND CORRECT YOU gODDAMN POST!!!

Posted by: rover at February 24, 2004 11:25 PM | PERMALINK

I've noticed that since First Idiot Drun posted his UNCORRECTED distortion of Kerry's position that Second Idiot Ezra at Pandagon has copied Kevin's lie and is using it to bash Kerry, too.

Why don't both you guys go work for the RNC. Or better yet, do your homework before posting SHIT!

FU

Posted by: rover at February 25, 2004 12:55 AM | PERMALINK

Kevin -- this is all about who decides -- the people or the judges? In other words, it's about thowing down again the lawless judges.

Posted by: PrestPundit at February 25, 2004 01:34 AM | PERMALINK

I don't understand all the people who keep talking about the judicial activism. This is not some subtle penumbra jurisprudence, we're talking about here. Marriage (of the sort we are concerned with here) is a set of legal rights and powers granted by the government. As such, it cannot be arbitrarily denied to one group of people. At the federal level this is because of the equal protection clause of the 14th amendment, and at the state levels it is due to similar language in state constitutions. As a besic principle of american law, any set of legal rights or entitlements that the government grants must be open to all equally, unless the state serves a compelling state interest by denying them to some.

Now, on the plausible assumption that changing the civil world so that it more closely approximates religious dicta is not a compelling state interest (cf. divorce law), then the courts have no choice but to overturn laws that seek to bar gays from marriage. This is not activism, it's straight-ahead judicial review. Laws that arbitrarily bar gays from marriage rights are discriminatory, and the onus is on the proponents of the law to prove a compelling state interest in so discriminating to defeat the presumption of equality. And they have not met that burden.

Posted by: epist at February 25, 2004 02:04 AM | PERMALINK

I am very upset at John Kerry, even if you do have to do this kind of thing to win the presidency, as Matt Yglesias noted recently.

Posted by: John Isbell at February 25, 2004 02:28 AM | PERMALINK

Read a chunk of the thread. I'd expect someone impartial to have updated, but Kevin has provided sad evidence before now that he's prepared to bend the truth where Kerry is concerned (i.e. it's MA, not the US, Kerry means, and if not prove it, with over 100 comments). I wish you wouldn't, Kevin, you provide ammo to the RNC and November will be close. How many votes did you just lose? At least you're not Kos, and you didn't run that revolting 5-blog Kerry Open Letter that ended up having no basis in reality, and was never retracted except by Pandagon.
If you want to diss a Democrat, Kevin, well Tom Daschle wants immunity for the dealer who supplied the DC sniper. Or people can call him, I did. He's getting calls today.

Posted by: John Isbell at February 25, 2004 02:36 AM | PERMALINK

Neither Kevin nor Ezra is an idiot, and they're very nice guys. It was actually Jesse who publicly retracted the Kerry Open Letter, after a heated exchange with me. Props to Jesse, a cool guy. Atrios and Oliver Willis didn't understand my point, in about four emails, pity. But it's so damn hard to rip that Scapegoat label off and see when a decent guy is actually talking about MA! The label is so comfortable! And then admit you fucked it up! What are you gonna do, if you're not Jesse?

Posted by: John Isbell at February 25, 2004 02:46 AM | PERMALINK

Imperative,

Nice statement of FF&C doctrine. The simple-minded example I recall is gambling. If it's illegal in State B, courts of State B could refuse to enforce a judgment for a gambline debt as "against public policy". This also had the effect of avoiding emotionally charged controversy if many citizens of State B thought gambling was the work of Satan. At any rate, it looks like DOMA just permitted something the state courts were already free to do


mkultra,

The confusion arises from the word "require," of course. In the manner in which it used, it means the same thing as "provide."

Good point. This is like the exceedingly dishonest rhetoric that came up in connection with Roemer v. Colorado. There, the bigots' talking point was that they were against "special priviliges" when they really meant "basic rights", possibly includng breathing.

There's also a problem with the word "construe". Who is supposed to be doing the "construing"? Usually we think of deciding the construction of a statute as being the job of judges. But it appears to apply to the Executive as well.


Reg,

Bush hasn't endorsed any particular amendment. He backed an amendment preventing the SC from requiring gay marriage, and allowing states to make their own marriage laws.

This is untrue. His press secretary said the Musgrave text was an acceptable statement of what the President wants.

The text of Musgrave's version is directed to state and Federal legislatures, not just State and Federal SC. And it doesn't "prohibit from requiring", it prohibits recognizing ("construing"). And it doesn't pertain to "marriage", it prohibits civil unions ("incidents"). That's three misstatements in one sentence, which is par for the conservative side of this issue.

Posted by: Roger Bigod at February 25, 2004 04:17 AM | PERMALINK

I, too, am shocked Kevin continues not to fix this. Pandagon's repetition of the error has now been picked up by Crooked Timber. This is right out of the playbook described by Alterman and Franken, only I firmly believe Kevin is an unwitting accomplice in passing along a smear from a Republican operative. That's why I want to know where he got this link in the first place.

Posted by: DelRPCV at February 25, 2004 04:36 AM | PERMALINK

epist:
In your 2:04 post, you made a couple of well-reasoned aguments:

"Marriage (of the sort we are concerned with here) is a set of legal rights and powers granted by the government. As such, it cannot be arbitrarily denied to one group of people."
"As a basic principle of American law, any set of legal rights or entitlements that the government grants must be open to all equally, unless the state serves a compelling state interest by denying them to some."

Good sentiments, with which, BTW, I totally agree: but, unfortunately, when the issue is one of "gay marriage", or ANY issue involving homosexuality, there is a large bloc of the citizenry out there which views denying rights to gays (even where the matter is one of simply extending existing rights) as a "compelling interest" in and of itself.
Even leaving aside the fire-and-brimstone religious wingnuts, the FMA and "gay marriage" issues have exposed a huge difference in the American public's attitudes towards gays and whether they should truly be included in our society. Debating the niceties of State v. Federal authority over marriage definitions, or the applications of the Fourteenth Amendment, etc. are all well & good: but when it comes to issues of sex (especially gay sex), people are far more likely to go with their prejudices than with their views on the "Full Faith & Credit" clause of the Constitution.

Posted by: Jay C. at February 25, 2004 05:04 AM | PERMALINK

Dvid, I'm surprised at you--you're usually more civil to our lefty allies like Kevin. And it's entirely possible that GWB isn't personally a homophobe--I'm inclined to think he doesn't believe in ANYTHING whatever. Not that the world's any different if what's going on in GWB's head is cynical indifference to gay rights, couple with a desperate search for political advantage, rather than outright homophobia.

Posted by: rea at February 25, 2004 05:54 AM | PERMALINK

"'Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'

"Is the intent of the second sentence merely to prevent courts from forcing gay marriage on states without legislative approval, or is it to ban both gay marriage and civil unions entirely?"

The second sentence of the draft amendment is written so broadly, I think it does a lot more than even ban civil unions. I do not see how a decision like Loving v Virginia can survive adoption of the amendment. Interracial marrieges will go back to being felonies.

I'd love to see somebody like Prof. Balkin or Prof. Volokh look at that issue--I suspect they'd agree with me. (Rea has some small experience in litigating constitutional issues himself, but perhaps not the prestige of one of the law professor/bloggers).

Posted by: rea at February 25, 2004 05:58 AM | PERMALINK

"In the future I would expect that couples, gay or not, will be able to receive legal recognition and protection, by obtaining a civil union license at their local government office. This would leave marriage up to individual churches that could set any conditions for recognition of and performance of marriage" -Dan

I agree with Dan. I haven't heard much of this arguement out there, but I'm not sure why not. Why does the gov't have the right to define any marriage, gay or straight. The gov't should be in the business of giving out civil union licenses for tax and property purposes... to anyone. (That's pretty much what already happens when you go down to city hall before your wedding now, it's just called a "marriage license" instead of a "civil union license") If you then want to further that by having a "Christian Marriage" or a "Jewish Marriage" or a "Hindi Marriage" or a marriage by your friend that got ordained on the internet... so be it.

Then it's simply a matter of choosing whether the gov't should allow the same benefits to gay and straight civil unions. A clear choice that can be voted on. Bigots would be clearly defined as bigots, not "defenders of marriage" It would also place a nice bold line between the church and the state.

One last point of contention... why does "providing clarity" on this issue have to imply banning same-sex marriage. It seems that a law or amendment openly validting same-sex marriages would also provide the much needed clarity.

Posted by: Haywood at February 25, 2004 05:59 AM | PERMALINK

interesting graphic on http://www.pollingreport.com

it seems that democrats and independents oppose the amendment. Only republicans give it significant support. And given that Shrub's numbers with Republicans are so high already, this is looking more and more like another lame political move by Shrub.

Posted by: paul lukasiak at February 25, 2004 06:48 AM | PERMALINK

Haywood and Dan:

As I said in the other thread, this is one of the options Canada is considering.

I made a mess of the hyperlinks, but they're working now. So for those who are still interested:

A discussion paper of the federal government setting out the various options.

http://www.justice.gc.ca/en/dept/pub/mar/5.html


An overview of the current legal situation in Canada can be found here.

http://www.justice.gc.ca/en/news/fs/2004/doc_31108.html

Posted by: Sharon at February 25, 2004 07:04 AM | PERMALINK

"Dvid, I'm surprised at you--you're usually more civil to our lefty allies like Kevin."

I'm surprised that you're surprised. You haven't been paying close attention to my postings or my blog.

" And it's entirely possible that GWB isn't personally a homophobe--I'm inclined to think he doesn't believe in ANYTHING whatever."

And it's entirely possible that Adolph Hitler really thought of the extermination of the Jews as a simple "health matter" and didn't hate any of the Jews he ordered gassed.

Yeah, right.

Posted by: David Ehrenstein at February 25, 2004 07:12 AM | PERMALINK

It all depends on what the meaning of "is" is...

Posted by: Bill at February 25, 2004 07:29 AM | PERMALINK

This is untrue. His press secretary said the Musgrave text was an acceptable statement of what the President wants.

False.

McClellan did NOT say that the Musgrave amendment was an "acceptable statement of what the President wants". He said that the Musgrave amendment embodies SOME -- not ALL -- of the principles the President set out:

"Q Does the President support -- propose specific language for an amendment? Or will he support the existing language already before Congress?

MR. McCLELLAN: Well, obviously, we want to work closely with Congress throughout this process. We will work closely with them on the specific language. He has indicated that Congresswoman Musgrave's legislation meets some of the principles he has talked about."

(emphasis added)

Posted by: Al at February 25, 2004 07:31 AM | PERMALINK

Thanks. That completely clears it up.

Posted by: Roger Bigod at February 25, 2004 07:42 AM | PERMALINK

That's what I'm here for.

Posted by: Al at February 25, 2004 07:44 AM | PERMALINK

Of course we still haven't seen the courts define what is a man or a woman. What about those who have had sex change operations? What about hermphrodites. What about those who via genetic defect would be difficult to classify into either sex? For example, would the proposed constitutional amendment ban any marriage by hermaphrodites?

What if people disguise their sexuality? Today if "Pat" jones and John Smith apply for a marriage license, and "Pat" is dressed as a woman, they likely would be able to marry. Will we require a DNA test in the future before granting a marriage license? Will we need to set up a federal law enforcement agency charged with rooting out gay marriage?

I fear we're going down a road that will make things even more overly complicated than they are today, and that will make it far more difficult for heterosexuals to marry.

Posted by: Ibeplato at February 25, 2004 07:50 AM | PERMALINK

How Kerry comes out on top

The issue here is that the bible thumpers do not want the northern liberals pushing their values on them. The Bush solution, which outlaws gay marriage and civil unions, pushes bible thumper values on Northern liberals.

Kerry's position should be that gay marriage is a contentious issue and that the states should have the right to decide this. If he feels he needs to support any constitutional amendemnt it should be one that says the full faith and credit clause of the constituion does not apply to gay marriages. He could thus posture as the president who respects states rights.

Posted by: jn at February 25, 2004 08:04 AM | PERMALINK

It seems to me that it is rather straightforward for a state legislature to bypass this amendment.

Scenario:

Massachussetts supreme court - "We've looked at FMA, and the state ERA." Under FMA, marriage is of a man and a woman. To establish a legal class of which discriminates based on gender is unconstitutional in Massachussetts. It is therefore unconstitutional under Massachussetts law for the state of Massachussetts to establish benefits for or license marriages."

Massachussetts legislature: "This legislation establishes the incidents of civil union..."

"Marriage is defined for the purposes of statute as recognition of a civil union between a man and a woman. Authority to recognize civil unions as marriages shall belong to the same authorities who register civil unions. Marriage has no legal incidents nor requirements other than those which are incident to civil union, and shall be dissolved coincidently with dissolution of civil union. The state of Massachussetts shall neither regulate nor be legally bound by the decisions of religious authorities as to who those authorities shall marry or define as married."

"Any individual may be in civil union with at most one other individual at any time... A civil union may be dissolved by affadavit of both parties without cause, or by court order under circumstances enumerated..."

"Massachussetts shall recognize civil unions and marriages performed by other jurisdictions so long as at least one party is not a resident of Massachussetts, as legal civil unions. Massachussetts shall recognize civil unions and marriages performed by other jurisdictions of residents of Massachussetts by agreement with that jurisdiction, or..."

etc.

Simply by defining away "legal incidents of marriage", a state can legislatively bypass this amendment. All that is lost is possibility of using federal courts to force Mississippi to recognize Massachussetts' unions, or state courts to force same-sex marriage upon a state. But, Mississippi isn't forced except by convention and agreement to recognize anyone else's marriages now.

The word "marriage" isn't that critical, is it? Isn't what is wanted here visitation, next of kin status, community property, that sort of thing? The one thing that is lost is "Married, filing jointly" tax treatment, and that wasn't going to be forced through the courts, anyway. Getting gays the right to write-offs always was going to have to go through Congress. We are a bunch of years from that, but when it does happen, Congress could bypass the amendment the same way.

The question is, what is more likely, Massachussetts passing the above, or Massachussetts amending its own constitution to ban gay marriage? If the latter in a state like Massachussetts, then we on the civil libertarian side have already lost, and this federal amendment is irrelevant.

I agree that this amendment is stupid and evil, but I think it is pointless, as well, and not the end of the world if it passes.

Posted by: rvman at February 25, 2004 08:17 AM | PERMALINK

We're supposed to be a nation of laws, but no legislative body has ever passed a law giving same sex couples the right to marry?

Not so. Many in Europe have.

But I'm sure the Europeans are all going to burn in HELL because of it.

This whole issue is silly. If you're religious, why are you persecuting people for something the God you profess to believe in will punish people for? Isn't that God's business, and not yours?

If you're worried about Gays presenting a challenge to your children's morals, don't you think that A. God WANTS people to be "challenged" by the world, so they can make the right decision? And B. doesn't God know what he's doing?

Really, if you put your faith in God, the put your fucking faith in God, and let Him sort out who He's going to let into Heaven.

Otherwise, I'm going to assume that you have a political agenda that has very little to do with Faith or Religion, and more to do with power here on Earth.

Posted by: Monkey at February 25, 2004 08:21 AM | PERMALINK

Kevin,

ARGH! Don't post soundbytes out of context! That link posted to kerry's comments were about a hypothetical state amendment! That's what kerry is talking about when he says "amendment". I SAW the entire interview on MSNBC earlier in the day yesterday.... it went something like this:

Question: So you oppose President Bush's proposal.

Kerry: Of course, I oppose president bush's attempt to amend the Constitution for political purposes. I think the question should be left to the states.

Question: So what would you feel about a state amendment that did X and Y.

Kerry: (Play soundbyte here).

This has been blogged EVERYWHERE today and everyone is getting it WRONG WRONG WRONG WRONG. Kevin, don't be as irresponsible as everyone else and link to clips with NO CONTEXT (and probably deliberately so!) at least include a disclaimer. I saw the interview (can't find a full clip of it now) and that clip is misleading! I saw the clip played OUT OF CONTEXT on Larry King last night and I shouted at the TV that CNN was being irresponsible and misleading! Don't stoop to their level! Be accurate.

This is so frustrating.

Posted by: emjaycue at February 25, 2004 08:24 AM | PERMALINK

One thing that I can't see that Bush has directly addressed is whether he, personally, is opposed to gay civil unions, or whether he, personally believes they should be outlawed by states.

I'm absolutely sure he does NOT want to be asked this question, because, from his point of view politically, it would be VERY damaging to say that he opposes such unions (bigotry problem) or to say that he supports them (political base problem).

What I think we should try to do is to see that that VERY embarassing question gets asked of him and his spokesmen as often as possible until we get a straight answer out of him.

And how can he avoid such a question after all, given how he's made the whole issue so prominent that he's supporting a Constitutional amendment?

Posted by: frankly0 at February 25, 2004 08:24 AM | PERMALINK

i just called kerry's campaign, and they confirmed that he was talking about a potential state amendment.

Posted by: zack at February 25, 2004 08:32 AM | PERMALINK

Charlie, where did you go?

I have a (polite) post for you at Gay Marriage, Feb. 19.

Posted by: obscure at February 25, 2004 09:05 AM | PERMALINK

frankly0: Bush should also be asked if he agrees with the SC ruling that made homosexual sodomy legal, and if not, would he support adding a clause to the FMA to ban sodomy.

"(nothing in USC, SC or law)...shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups"

So if MS doesn't want to give marriage licences to mixed-race unmarried couples, the FMA prevents courts from making them do so.

The FMA would, after all, follow and partially supercede the 14th amendment.

Posted by: Satan luvvs Repugs at February 25, 2004 09:06 AM | PERMALINK
Why does the gov't have the right to define any marriage, gay or straight. The gov't should be in the business of giving out civil union licenses for tax and property purposes... to anyone.

Because for many generations, these state recognized legal unions have been called marriages. Many Churches have laws, and courts, and marriages. States have laws, and courts, and marriages. Why is it that the similarity in names of the last (marriages) and not the first two get people's panties all in a twist? No one ever says the US should call its secular "laws" by a different name, since canon law has been around for so long, or conversely that the Catholic Church should choose a different name for it canon "law". Why should the distinction between ecclesiastical and civil marriage be any harder for people to grasp?

Posted by: cmdicely at February 25, 2004 09:14 AM | PERMALINK

obscure:

"Charlie, where did you go?"

I'm still here - just busy (after 1/2 dozen threads, repeating myself over and over, I kinda start to lose interest ; )

"I have a (polite) post for you at Gay Marriage, Feb. 19."

I'll definitely take a look.

Posted by: Charlie at February 25, 2004 09:32 AM | PERMALINK

Why should the distinction between ecclesiastical and civil marriage be any harder for people to grasp?

It isn't. But it's awfully hard for people who are interested in gaining political power here on Earth to grasp, it seems.

Makes you sort of wonder at their motives, doesn't it?

If they believe that God thinks homosexuality is a sin, then they should rest assured that God is going to punish these sinners in the afterlife, and that should be good enough for them. Their own Book tells them "Let he who is without sin cast the first stone" so I really don't see how punishing people here on Earth for something their allegedly going to burn for after death is a requirement of being a Christian.

Christians: If you believe what you say you believe, God is going to take care of these people for you, and in fact has told you to butt the hell out of casting stones. That's His Job, and He can, presumably, take care of it.

Now, if you're interested in gaining political power, then this is a great issue for you, since there seem to be a large number of Christians willing to ignore the Bible and get their licks in on sinners here on Earth, without waiting for God to punish them too.

Posted by: Monkey at February 25, 2004 09:35 AM | PERMALINK

"Marriage in the United States shall consist only of the union of a man and a woman." And I thought the Bushies were against unions -- foolish me.

Posted by: Peter Hansen at February 25, 2004 11:14 AM | PERMALINK

If no law in the U.S. shall "require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups," how exactly are my children supposed to get married?

When I applied for a wedding license and had a rabbi perform the ceremony, didn't the law require that marital status be conferred on me and my wife?

Must the state law be changed so that, even following the license and the ceremony, conferring of marital status is not "required" but rather discretionary?

And on what basis is the State to make that discretionary decision? I don't get it.

Posted by: Yudel at February 25, 2004 11:22 AM | PERMALINK
If no law in the U.S. shall "require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups," how exactly are my children supposed to get married?

They aren't. Marriage is so sacred that no one else is allowed in the club, to prevent ruining it for those of us already in. Got it?

Posted by: cmdicely at February 25, 2004 01:20 PM | PERMALINK

"But isn't their job to uphold laws on the books?"

It was a request for a PRELIMINARY injunction.

For a preliminary injunction, you don't have to show law breaking, but IMMEDIATE harm.

Posted by: Matthew Saroff at February 25, 2004 01:29 PM | PERMALINK

I'm still here - just busy (after 1/2 dozen threads, repeating myself over and over, I kinda start to lose interest ; )

So do the rest of us, believe me. Would make a change if you actually engaged in conversation, or came up with original thoughts, but your continuous repetition of right-wing anti-Christian propaganda is kinda dull - glad you've finally noticed.

Posted by: Jesurgislac at February 26, 2004 04:16 AM | PERMALINK

That's NOT exactly what I said, obviously. I thought my proposal to accept States democratically determining for themselves "civil unions" / "domestic partnerships" / "gay marriage" as long as no other State was forced to accept those out-of-State definitions was actually a pretty reasonable compromise - oh well - my mistake for thinking reasonable compromises are anything you guys are interested in.

Posted by: Charlie at February 26, 2004 04:09 PM | PERMALINK

"I thought my proposal to accept States democratically determining for themselves that Negro men and women should be given 'separate but equal' facilities and be given the back half of the bus was actually a pretty reasonable compromise - oh well - my mistake for thinking reasonable compromises are anytyhing you guys are interested in."

Bigot.

Posted by: PaulB at February 27, 2004 07:57 AM | PERMALINK

PaulB: why won't you acknowledge that blacks being BORN black, no choice whatsoever about it - is just slightly different from homosexuals (born or not) CHOOSING behavior?

Posted by: Charlie at February 27, 2004 10:48 AM | PERMALINK

Our resident bigot, Charlie, wrote: "PaulB: why won't you acknowledge that blacks being BORN black, no choice whatsoever about it - is just slightly different from homosexuals (born or not) CHOOSING behavior"

Because you are attempting to equate apples and oranges and that dog won't hunt (to engage in a little mixing of metaphors). A gay man who chooses to remain celibate is no less gay than a man who engages in sex with someone of the same sex. The behavior is not the deciding factor; the attraction is.

You are (presumably) heterosexual. If you stuck to the teachings you have espoused here and if you are, in fact, married, you would have been a virgin the day you married, never having engaged in sex of any kind. Nonetheless, at the time you married, you would still have been heterosexual. Your sexual behavior, or lack thereof, was immaterial.

You have consistently (and dishonestly) ignored the distinction between sexual orientation and sexual behavior. You have gone even further at times and ignored the distinction between homosexual behavior and reckless sexual behavior. It is remarks such as those that mark you as a bigot.

Posted by: PaulB at February 27, 2004 10:15 PM | PERMALINK

There is obviously honest disagreement whether homosexuality is hardwired like heterosexuality. Acknowledging that fact does make one a bigot. But now everyone else can see why PaulB is on my ignore list.

Posted by: Charlie at March 9, 2004 11:21 AM | PERMALINK

blabal

Posted by: joannie at April 21, 2004 06:10 AM | PERMALINK

Nothing's far when one wants to get there.

Posted by: Kramer Kim Terry at June 30, 2004 12:39 PM | PERMALINK

wild west

Posted by: wild west at July 9, 2004 08:02 AM | PERMALINK

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