Thursday, November 5, 2009

Is it time to get the state out of marriage yet?

In Maine, voters continued the unbroken national trend that has seen voters reject the idea of expanding the definition of marriage to include same-sex couples every time it comes to a vote. Even the apparent approval of everything-but-marriage domestic partnerships in Washington state can only slightly soften the sting, given the narrow margin for a measure that falls short of granting equality to gay and lesbian relationships. Maybe it's time to take the hint, and concede that, so long as we let government impose one top-down definition for marriage, voters in even the most tolerant states are going to insist that the definition be a conventional one.

So far, recognition of same-sex marriages in the United States has come through the courts or the legislatures. In Maine, lawmakers granted full recognition to gay and lesbian couples, only to be thwarted by a margin of roughly 53% to 47% when state residents turned the matter into a referendum. Perhaps that shouldn't have been surprising, following as it did just one year after California voters overturned a state Supreme Court decision recognizing same-sex marriages. If even Maine and California voters, known for generally socially tolerant views, balk at expanding the definition of marriage, what hope is there in the rest of the country?

Washington state voters sort-of bucked the trend, approving a domestic-partnership measure designed to  "expand the rights, responsibilities, and obligations accorded state-registered same-sex and senior domestic partners to be equivalent to those of married spouses." But the measure included a little zinger, specifying that "a domestic partnership is not a marriage."

The domestic-partnership measure squeaked by with less than 52% approval, and that courtesy of overwhelming support in ten counties clustered in the liberal northwest -- it lost in the state's other 29 counties.

Across the country, even in the most tolerant states, people seem willing to grudgingly grant legal rights to same-sex relationships -- but only so long as you don't call them marriages.

So, if you insist on marriage equality, how do you get there from here?

The practical answer may well be the one that has long been deemed the most radical: privatize marriage and let individuals, churches and familes decide for themselves what "marriage" means.

Right now, with "marriage" a privilege licensed and defined by the government, we all have to live with the same definition of marriage, and that definition has become an emotionally charged political football. In fact, though, marriage has only been a licensed, state-defined institution for a short period of time. As Stephanie Coontz, a professor of history at Evergreen State College, wrote in The New York Times two years ago:
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
Licenses were largely introduced so the government could prevent people from marrying across racial lines, and later to implement now-discredited eugenics theories about who should be allowed to marry whom in order to optimize genetic outcomes. That is, they were imposed to prevent people from defining marriage in ways that satisfied their own needs. The recent resignation of Keith Bardwell, a Louisiana justice of the peace who refused to perform mixed-race weddings "because he was concerned for the children that might be born of the relationship," was a blast from that unsavory past.

Which is to say, the government's role in defining and licensing marriage has been remarkably unhealthy.

So why not return to the days when people wholoved each other called themselves "married" and were done with it? If we were to return the institution to the private status it held for so long, conservative-minded people could continue to view marriage in a conventional way, attending churches that perform ceremonies only for heterosexual couples. Gays and lesbians would obviously define marriage in ways that better suit them.

And the legal accretia that has become tied up in marriage -- property, inheritance, benefits and the like -- could be ... well ... divorced from marriage and treated as contractual matters available through domestic partnerships or by filing a few documents purchased at an office-supply store. That would have the added benefit of simplifying matters for those many people who want to streamline their legal affairs but have no need of the full institution of marriage.

So keep marriage conventional and expand its definition by privatizing the institution. Why fight over how the government defines marriage when we can write politicians out of the whole matter and define it to suit our own tastes?


Thursday, November 13, 2008

Let's fight some more over marriage -- or not

On the morning of Wednesday, November 12, State Rep. Beth Bye and her partner, Tracey Wilson, made history as the first same-sex couple to marry in Connecticut. Their happy day came not much more than a month after the Connecticut Supreme Court ruled that "same sex couples cannot be denied the freedom to marry." That's a happy development. But freedom of marriage in the future may come to depend on ending marriage entirely -- as a state institution that is.

Bye and Wilson were quickly followed by other gay and lesbian couples eager to formalize their own relationships in only one of two states -- the other is Massachusetts -- that permit same-sex marriages.

But there's no doubt that a shadow was cast across the festivities by last week's ballot victories in Arizona, California and Florida for state constitutional amendments intended to bar recognition of exactly the sort of marriages solemnized in Connecticut. Even as courts have been willing to rule in favor of granting equality before the law to same-sex relationships, majorities of voters have flocked to the polls to voice a very contrary opinion.

This leaves gay and lesbian couples, as well as civil liberties advocates, in something of a quandary.

The courts may still provide recourse for advocates of same-sex marriage. Article IV, Section I of the United States Constitution 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.

Some legal scholars interpret those words to mean that marriages performed in one state must be recognized in all other states. In a 2005 law journal article, Professor Joseph William Singer of Harvard Law School wrote, "the full faith and credit clause should be interpreted to require interstate recognition of same sex marriages validly celebrated in Massachusetts and that Congress does not have the power to deny such recognition under the 'effects thereof' language of the full faith and credit clause."

If his argument prevails, Connecticut and Massachusetts may enjoy a booming get-away business as gay and lesbian couples from around the country flock to New England for wedding ceremonies that must be recognized as perfectly valid back home.

And his argument may well prevail. When the Supreme Court did away with sodomy laws in the Lawrence v. Texas decision, Justice Antonin Scalia objected in his dissent:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.?

Scalia may disapprove, but he agrees that court decisions of the past have set the stage for recognition of gay marriage in the future.

But ... There are those majority votes against gay marriage in states including California of all places. Majorities capable of passing state constitutional amendments banning gay marriage may well be capable of sparking a federal constitutional battle that might even culminate in an amendment to the U.S. Constitution. A favorable Supreme Court decision in a year or two might well turn into yet another culture war that produces a very unfavorable legal environment thereafter.

What to do? Well, how about taking marriage entirely off the table as a legal issue?

In the New York Times, last year, Professor Stephanie Coontz of Evergreen State College wrote:

WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

That may provide a road map to an approach for defusing the passionate battle over same-sex marriage, involving as it does deeply emotional issues of religion and personal life. Why not take marriage out of the hands of government and turn it into a purely private matter among people who love each other, their families, their friends, and whatever religious institutions to which they might belong?

Writing in Slate in 1997, the Cato Institute's David Boaz said of marriage:

So why not privatize marriage? Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Wal-Mart could sell books of marriage forms next to the standard rental forms. Couples would then be spared the surprise discovery that outsiders had changed their contract without warning. Individual churches, synagogues, and temples could make their own rules about which marriages they would bless.

As a private institution, marriage would no longer need to be a matter of public debate. The legal aspects of marriage, such as inheritance and child custody could be handled by simply filing a simple civil union form with the state that has no romantic connotations. It could as easily involve friends or relatives who want to share assets or ease child care. Such arrangements could be boilerplate or tailored-to-fit, as the parties prefer.

And people with deeply held beliefs about what marriage really means could join religious institutions that extend their recognition only to traditional arrangements. They'd be free to turn up their noses at anything else, without actually compromising non-traditional marriages made by others.

Not everybody would be made happy by a solution that doesn't involve cramming a victory down the other side's throat. But privatized marriage could bypass years of legal battles and heartache.

If marriage had been privatized a decade ago, social conservatives would today be free to roll their eyes at Beth Bye's and Tracey Wilson's long-ago formalized relationship.

And we could find something else to fight about.

OK, that's enough serious. Here's Doug Stanhope with a less snooze-inducing take on the same topic:


Monday, November 10, 2008

Melissa Etheridge needs to take her tax revolt a little further

Singer Melissa Etheridge is getting a lot of mileage out of her angry promise to withhold taxes from the state of California after the passage of Proposition 8, a constitutional amendment denying recognition to same-sex marriages of the sort briefly allowed after a state supreme court decision earlier this year. Her anger is understandable, since the constitutional change leaves her relationship with Tammy Lynn Michaels in legal limbo as people wait for the courts to hash out the impact on thousands of existing gay and lesbian marriages.

Writing for The Daily Beast, Etheridge said:

Okay. So Prop 8 passed. Alright, I get it. 51% of you think that I am a second class citizen. Alright then. So my wife, uh I mean, roommate? Girlfriend? Special lady friend? You are gonna have to help me here because I am not sure what to call her now. Anyways, she and I are not allowed the same right under the state constitution as any other citizen. Okay, so I am taking that to mean I do not have to pay my state taxes because I am not a full citizen. I mean that would just be wrong, to make someone pay taxes and not give them the same rights, sounds sort of like that taxation without representation thing from the history books.

No doubt, Etheridge penned her words in a rage and could probably be forgiven were she to reconsider and step back from her threat. After all, governments are capable of letting almost anything slide except challenges to their flow of revenue. Nothing gets officials to reach for the battering rams and handcuffs with greater enthusiasm than a tax case.

But what if ...

What if Melissa Etheridge were to join with other high-profile gays, lesbians and their friends and supporters to turn a quixotic bird-flip to the social conservatives who passed Proposition 8 into an organized movement? A tax revolt by one celebrity is a one-way ticket to Wesley Snipes country. But a mass tax revolt by gays and lesbians across the state could turn into a serious problem for California and a useful lesson to the majority about the consequences of restricting the rights of a minority.

There's a lot of anger out there, just waiting to be harnessed. Melissa Etheridge could be in a powerful position to remind Californians that a majority vote to abuse people may be an invitation to a world of grief.

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Wednesday, November 5, 2008

My record at the polls -- not so great

With my track record at the polls, you'd think I'd just get the pretense over with, hire a dominatrix, and get my abuse the old-fashioned way: with whips and ball-gags. But no, I tried my hand at another election cycle, and look what I have to show for it.

OK, I didn't expect Bob Barr to win, but I was hoping for a vote total that could credibly be said to exceed that attributable to simple statistical error. He pulled 0.6% in Arizona and something rather less nationally. All because of the oh-so attractive candidates put forward by the major parties, I'm sure.

My congressional district (but certainly not me) is now represented by business-bashing, anti-immigrant, drug-warrior Democrat Ann Kirkpatrick. I already miss the corrupt, graft-hungry son of a bitch she replaces.

Prop. 100, which forbids new taxes on the sale or transfer of homes, was a bright spot. It passed with better than three-quarters of the vote.

Prop. 101, which would have blocked the government from imposing socialized medicine, failed by a heartbreakingly slim margin: 49.9% to 50.1%. That's less that 2,200 votes out of 1.7 million total.

Prop. 102, the repulsive "Arizona doesn't like queers" measure, passed with 56.5% of the vote.

Prop. 201, a scam to turn every home sale into a legal free-for-all, thankfully failed with 77% against.

And state legislators won't get a raise, since Prop. 300 went down to easy defeat.

I'm happy to say that the campaign season is now over, and I can get back to the important business of bashing politicians and government officials without worrying about electoral outcomes.

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Tuesday, November 4, 2008

Proposition updates at Civil Liberties Examiner

If you're not following me over at The Examiner, you're missing out! Fresh off the virtual presses tonight is news of the fate of ballot propositions dealing with marijuana, gay marriage and abortion.

Tomorrow, I'll cover Arizona's propositions and give my thoughts about the election results, but the excitement is at The Examiner now now now.

Yes, I'm drinking.

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How I voted, in case you care

Who did Tooch anoint with his much-coveted vote this year? Which issues won his all-important nod? Read on and find out.

President: Bob Barr. He's a moderate libertarian with a conservative bent, which means he and I disagree on some issues. But his overall platform is one that expands liberty instead of contracting it. That's a rare thing in this day and age, and makes him unique on the presidential line of the Arizona ballot. I didn't have to agonize over this at all.

By the way, I do find his conversion convincing. Nobody abandons conservatism for libertarian ideas, works with the Marijuana Policy Project and consults for the ACLU in order to gain political advantage. And we need to welcome converts -- the future of libertarianism lies in one-time authoritarians who have seen the light.

Congress: Sydney Hay. Yes, Hay is a social conservative, but she's savvy on economics and very pro-free-market (she sat on the board of the Goldwater Institute). That'd be an important quality in a House that has engaged in serial ineptitude for years when it comes to economic issues. Democrat Kirkpatrick is sounding the economic populism bell and touting her drug warrior credentials, so to Hell with her. Libertarian Thane Eichenauer is on the ballot and would be my choice if Hay's economic credentials weren't so impressive and important.

County Attorney/Sheriff: After the Dibor Roberts affair, I was very much looking forward to voting against Sheriff Steve Waugh and County Attorney Sheila Polk, who rallied behind the thuggish Sergeant Jeff Newnum and prosecuted Roberts. Unfortunately, the ballot is Soviet-style for these offices -- their names, with no alternatives. I wrote in Dibor Roberts for Sheriff and her husband Merrill for County Attorney.

Prop. 100, barring new taxes on property sales and transfers: Yes

Prop. 101, blocking state officials from imposing socialized health care: Yes

Prop. 102, barring the recognition of same-sex marriages: No, goddamnit

Prop. 201, basically abolishing contract law and turning home sales into a litigious free-for-all: No

Prop. 300, raising state legislators' salaries: No

That's not everything, of course. Some of the races I took a pass on, several offices were uncontested (or contested only by a nice old lady whose memory has been slipping for a few years), and a few propositions were make-the-best-of-a-bad-choice situations. I also voted against a jail tax.

You think you did better? Bring it on.

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Wednesday, October 15, 2008

Arizona's Prop. 102 puts bigotry on the ballot

My wife and I were married in Jerome, Arizona. It was a festive, seat-of-the-pants affair. One of the two officiants -- ordained on the Internet -- arrived only in the nick of time, delayed because a tree fell through the roof of her house. The assembled celebrants cleaned out all the top-shelf bourbon from the bar, then danced the tarantella and the hora amidst cowboy hats and western paraphernalia. And the best man and man of honor were good sports and danced together.

Man of honor?

Yep. Wendy chose her good friend, Travis, to help her through preparations and the ceremony. We look forward to reciprocating and attending Travis's wedding. But when we do, it's unlikely that it will be in Arizona. Travis is gay, and Arizona is poised to enshrine bigotry into law by banning same-sex marriages with Proposition 102.

The recent Cronkite-Eight poll put support for Prop 102, which would write into the state constitution the language, "only a union of one man and one woman shall be valid or recognized as a marriage in this state," at 49%, with 42% opposed. This is a little surprising, since just two years ago, Arizonans rejected a similar measure by 51.4 % to 48.6%.

Proposition 102

Be it resolved by the Senate of the State of Arizona, the House of Representatives concurring:

1. Article XXX, Constitution of Arizona, is proposed to be added as follows if approved by the voters and on proclamation of the Governor:


1. Marriage


2. The Secretary of State shall submit this proposition to the voters at the next general election as provided by article XXI, Constitution of Arizona.

But the earlier measure may have reached too far, since it would have effectively banned civil unions too. That would have reserved not just marriage for straight couples, but any sort of legal protection at all. Prop. 102 sets its sights lower, putting just formal marriage and the full respect it implies out of reach of same-sex couples. The state actually already has a statutory ban, but social conservatives fear that the courts will set the law aside, as they have in Connecticut, Massachusetts and California.

The advertising campaign for Prop. 102 has been a bit ... odd. It consists of TV spots, flyers and posters boasting that the proposition is "simple" and "clear" in its definition of marriage -- as if the wisdom of that definition is a given.

But why is it so necessary to restrict marriage?

The official arguments for and against shed a little more light. State Senator Sylvia Allen insists, "Since the beginning of recorded history the foundation and continuation of all societies has been the family; father, mother, and children." If tradition isn't enough for you, she adds that the welfare state and employer-provided perks would be strained if "demands are then placed upon government and businesses for benefits. Our already overburdened Social Security system could not survive."

Again and again, authors of arguments appeal to history, with vague references to the shared traditions of the world's religions in defining marriage.

Peter Gentala, of Arizona for Marriage, argues, "When judges redefine marriage, it affects everyone. Marriage is the cornerstone of society. It's good for men, women, and children. Preserving the meaning of marriage means passing it on to our children."

But again, how is one exclusive form of marriage "good for men, women, and children"? And why shouldn't a tradition be changed to match increased modern acceptance of gays and lesbians?

Several arguments claim that gay marriage is being foisted on the public by activist judges and a small minority. I've had commenters argue that recognition of gay marriage somehow violates religious rights.

Religious rights?

I suppose it's possible that, somewhere in Arizona, there are two drag queens who really want to get married in a fundamentalist church and are eager to have a sheriff's deputy hold the preacher at gunpoint while he performs the ceremony.

But simply recognizing same-sex marriages wouldn't allow the fulfillment of that fever dream. It would just allow gay and lesbian couples to get a marriage license. Nobody who objected would have to perform a ceremony or show up at the reception.

And simply allowing formal recognition of relationships of which you disapprove doesn't violate anybody's rights. There is no "right" to make the laws of an entire society in the image of one religion -- or of a few sects of one religion -- no matter how far back those religious traditions go.

But traditions and religious prejudices really are thoroughly ingrained. That's why Prop. 102 proponents can make their appeals with few practical arguments whatsoever.

In the end, the best approach might be to take marriage out of the state sphere entirely. That actually would be more traditional than allowing government to define marriage. Writing in the New York Times last November, Stephanie Coontz, a professor of history at Evergreen State College, said:

WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

Marriage as a private institution, defined at the grassroots level by the folks getting married, their families, their friends and whatever religious institutions they may or may not belong to, would take the contentious debate off the table entirely. Conservative churches could recognize traditional arrangements, other people could make marriages that suit their own needs, and everybody could pick up boilerplate forms at OfficeMax to gain the legal protections that the institution is supposed to convey.

Until then, though, at least Travis can get married in Connecticut, if he wishes. Massachusetts, too, as well as California -- at least until that state passes a ban of its own. We'll just have to make sure there's enough top-shelf bourbon to go around.


Tuesday, October 7, 2008

Arizona, California, no longer so open to same-sex nuptials

The last time the controversy over gay marriage was put before Arizona voters, in 2006, live-and-let-live westerners rejected the notion of preventing gays and lesbians from solemnifying their relationships, 51.4% to 48.6%.

And not too long ago, it seemed that California's Proposition 8, which would amend the state constitution to restrict marriage to be "between a man and a woman," was going down to a well-deserved defeat. Polls showing opposition to the measure above 50% reinforced the impression that the state where the courts just recently legalized same-sex marriage was an unlikely environment for a socially conservative backlash.

But that was then; this is now.

The latest SurveyUSA poll (PDF) of California voters finds support for Proposition 8 at 47%, with opposition at 42%. The shift in favor seems to come from young people, ages 18-34, who moved from opposition to support the measure by 53% to 39%.

Along the same lines, Arizona's Proposition 102, which would also change the state constitution to define marriage as between one man and one woman, wins 49% support to 42% opposition in the latest Cronkite-Eight poll.

The only good news is that Florida's anti-gay Amendment 2, yet another constitutional amendment, only has 55% support, according to a recent Quinnipiac poll.

Good news?

Well ... yeah. That's because 60% support is required to amend the state constitution. Anything short of that is a defeat for the measure.

Hey, you take your victories where you find them.

It should also be noted that the California SurveyUSA poll results are a stark break from earlier polling, and are drawn from a small sample (670 likely voters) with a sizeable margin of error. So the news there might not be all that bad.

But for the same reason, the news from Florida might not be all that good.


Tuesday, June 3, 2008

Kids returned as pogrom against FLDS fizzles

Members of the polygamous FLDS church are getting their kidnapped children back from the Texas authorities who swiped them in the wake of two court decisions, one from the Texas Supreme Court, saying that state officials overstepped their bounds by declaring that adherence to a specific religion inherently makes people unfit parents. As the Salt Lake Tribune editorialized, "under the law in the United States, a culture cannot be indicted. Only the specific people who commit specific crimes against specific victims can be. Thank goodness."

Texas authorities are still free to pursue allegations of child abuse, but now they'll have to do it the American way: by building evidence of specific crimes and naming actual suspects instead of engaging in a pogrom. Yeah, that's a pain in the ass. Every now and then, though -- if only when folks are watching -- government employees have to do things by the rules.

Interestingly, this is at least the second time that a wildly over-the-top campaign by government officials against the FLDS church has turned the members of the odd little sect from outcasts with some unsavory practices into sympathetic victims of the state. In 1953, a massive raid by Arizona law-enforcers on Short Creek (now Colorado City), motivated by precisely the same concerns that inspired Texas's assault on the Yearning for Zion Ranch, had much the same results as the 2008 controversy. Wrote the Los Angeles Times in 2006:

By day’s end, families and crying children were separated in a scene that would haunt political leaders for years to come. In all, 36 men were arrested. Authorities loaded 86 women and 263 children aboard buses to Phoenix. ...

As sympathy built for the FLDS, [Arizona Gov. J. Howard] Pyle was denounced and ridiculed by newspaper editorials. The raid was called "Pyle’s Folly."

The Arizona Republic said the action would have made the Keystone Kops "green with envy" and resembled "too closely the hated police-state roundups of the Old World."

Religious leaders and political rivals accused him of using excessive force.

Democrats decried the action as "odious and un-American." A prominent Mormon leader denounced the "tyrannical methods" used.

The raid’s results were meager in court as well. Charges of statutory rape and contributing to the delinquency of a minor were dropped. The men pleaded guilty to conspiracy to violate laws against bigamy, and open and notorious cohabitation. One-year suspended sentences were handed out. Many promptly returned to Short Creek with their families.

Pyle lost the subsequent election, and even he attributed his defeat to public reaction against the Short Creek raid.

It's too early yet to know whether there will be political fallout from the 2008 raid, but it's good to see that the courts are at least as protective of the individual rights of members of a despised subculture as they were in 1953. Once again, government officials took a step toward persecuting an entire community, and once again, they were slapped down hard.

The day those slaps stop coming will be the day it's open season on anybody who strays too far from the herd.

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Thursday, May 22, 2008

Texas court nixes mass roundup of kids

Icky beliefs are no grounds for staging pogroms.

Or, if you want more detail, the fact that a church's doctrine might, at some point in the future, lead lead some members to break the law and other members to act as willing victims is not, in and of itself, enough reason to kidnap hundreds of kids who are being raised in that church. Even if there is reason to believe that a few minors in a religious community have been abused, there is no justification for treating children in other families that just happen to be members of the same community as potential victims.

That, in a nutshell, is the decision of the Third Court of Appeals of Texas, based in Austin.
The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief" that condones polygamous marriage and underage females having children. (9) The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. ...

The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. (10) There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. ...

[T]he district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion.

Note that the court didn't say that nothing inappropriate has occurred in the FLDS settlement at the Yearnings for Zion ranch. What it's saying is that religious doctrines that condone illegal activity aren't grounds for brute state intervention; there must be evidence of specific violations. Those violations must then be dealt with on an individual basis, not as an excuse for moving against everybody who espouses the church's belief system.

That seems like a remarkably wise decision, rooted as it is in the centuries-old American legal tradition. The children may still be taken from their parents, but only after something that bears a closer resemblance to due process.

The Houston Chronicle reports that Texas’ Child Protective Services hasn't yet decided whether to abide by the ruling and release the children, or to appeal. I'm betting on an appeal, if only as a matter of pride.

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Tuesday, May 20, 2008

You mean you're not underage?

Y'know, when your justification for a violent raid on a ranch owned by an eccentric polygamous religious sect and the kidnapping of hundreds of that sect's children is a supposed crusade to save the sect's girls from being forced into underage unions with older men, it helps if you can find girls who have actually been forced into such relationships. It's not much help when many of the "underage" girls you claim to have rescued turn out to be at least 18 years of age.

Note that Texas's situation is even more complicated than the recent revelations suggest, since the state's age of consent is 17.

Further complicating the situation is the fact that Texans can marry at 16 with their parents' consent. Sure, Texas doesn't recognize plural marriages, just as it doesn't recognize same-sex marriages, but we've now wandered into technical violation territory. If a relationship is illegal only because there are several wives rather than one wife, that hardly justifies armed assaults by the state, mass roundups of children and legal battles over custody.

More and more, it looks like the real crime of the Fundamentalist Church of Jesus Christ of Latter Day Saints is being different and ... well ... creepy. The FLDS has apparently been targeted for destruction because its tenets and practices rub America's increasingly intolerant soccer moms and suburban dads the wrong way.

We just can't let people live that way!

I'm as weirded out by the Persian-harem-via-How The West Was Won ambience that clings to the FLDS as the next guy, but I want allegations of abuse against the group to be (fancy this) based on actual evidence, and addressed on an individual basis, rather than as an excuse for a pogrom. That is, as weirded out as we all may be, you prosecute the actual abusers among the oddball minorities (as well as the bland majorities) and leave everybody else the hell alone.

As it is, we're well on the way to SWAT raids against any community that doesn't abide by the lifestyle script favored by local prosecutors and Children's Protective Services seat-warmers. If you think that's a good idea, just give me a crack at appointing the committee that decides whose doors get kicked in. Just for laughs, my nominees will all either wear leather chaps or pioneer garb.

Oh, and don't forget to review my argument for why traditional marriage, gay marriage and plural marriages should all be permitted -- as private arrangements.

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Thursday, May 15, 2008

California to permit same-sex marriages

California's Supreme Court took the very big, and very welcome, step of overruling state law forbidding the recognition of same-sex marriages. In In re Marriage Cases (PDF), Chief Justice Ronald George wrote:

In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.


In sum, we conclude that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution’s equal protection clause.

That gives laws mandating discriminatory treatment of same-sex relationships the same 86ing accorded laws against interracial marriages in 1948.

The San Francisco Chronicle warns that the historic decision "could be repudiated by the voters in November" if a ballot measure supported by 1.1 million petition signatures passes muster with the voters. But that's November. The Supreme Court decision goes into effect in 30 days. That leaves many months during which gay and lesbian couples can cheerfully bind their futures together as frighteningly optimistic straight couples long have. The fate of those unions would be up to the courts.

Will judges blithely annul such marriages the way they did the 4,000 performed in San Francisco in 2004? That's possible, but the earlier weddings were found to be illegal, while any ceremonies performed in light of today's ruling will be legal up until the voters put a stop to the practice.

My personal preference would be to take marriage out of the government sphere and make it an entirely private matter. So what if that leads to even more interesting permutations, such as plural marriage?

But so long as marriage requires a trip through the bureaucracy, the bureaucrats shouldn't discriminate.

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Thursday, March 27, 2008

Is gay marriage the beginning of a slippery slope?

Florida is currently caught up in the currently popular hysteria over gay marriage. Apparently concerned that the prospect of two men or two women saying "I do" no longer excites the same fear among the public that it once did, John Stemberger of the Florida Coalition to Protect Marriage is now warning that if same-sex couples are accorded the same consideration traditionally given to heterosexual couples, the door could be open to all sorts of crazy relationships, like even group marriage.

"These are not crazies," he told a meeting of the Capital Tiger Bay Club. "These folks are where homosexual activists were 25 years ago. The problem is, when you unlock that door, there's really no end to the argument of where we're going to define marriage."

Uh huh. And so the hell what?

Stemberger is right that opening the door to same-sex marriage will probably lead to recognizing other consensual arrangements among adults, but it's hard to understand what all the fuss is about. Will the world really come to an end if the folks entitled to make decisions for an accident victim include three wives and two husbands, or if the mommy who picks a kid up from school isn't the same one who dropped him off in the morning? It's not as if extra uninvited brides and grooms are going to start popping from the woodwork at everybody's nuptials; nobody has to take a the-more-the-merrier approach.

Oddly enough, plural marriage is a fairly common topic of conversation in my part of the world. That's largely because of the unfortunate influence of the exceptionally creepy Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) in its strongholds along the Arizona-Utah border. Polygamy as practiced by the FLDS is largely a means for enabling dirty old men to build harems of teenage girls who have yet to reach the age of consent. Not surprisingly, the practice is not entirely popular outside of FLDS circles.

But the FLDS no more represents the totality of plural marriage than NAMBLA represents gay relationships or Mary Kay Letourneau serves as a spokeswoman for traditional one-guy/one-girl marriage. In all cases, the real deals involve consenting adults.

So why does it matter, so long as we're talking about adults, if gays, lesbians, conservative Christians and pansexual pagans have different ideas about who and how many ought to be involved in domestic arrangements?

Defenders of one-man/one-woman marriage argue that they don't want the state endorsing immoral or damaging "social experiments," and that they want to defend tradition. They may have an argument to make about the experimental nature of some arrangements -- heterosexual marriage as we know it is pretty well time-tested -- but that doesn't mean that other arrangement are unknown in history or that people are wrong to experiment. As for tradition ... well, it turns out that state-licensed marriage is a pretty newfangled innovation itself, with its dominance dating only to the 19th century.

Writing in the New York Times last November, Stephanie Coontz, a professor of history at Evergreen State College, said:

WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity. ...

Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.

The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.

Eliminating the government's involvement in marriage would get rid of the notion that the state is sanctioning any sort of relationship and would return domestic arrangements to their long-standing, grassroots origins.

If John Stemberger and company really want to defend traditional marriage, they should work to just get the government entirely out of the matter.

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