Summary: When Jim Cox and Tom Aubrey got married yesterday, and embattled Cathedral City Mayor Kathleen Joan DeRosa officiated at the wedding, that smacking sound you heard was DeRosa’s open hand slapping the face of Cathedral City’s thousands of queer residents. While it might be gauche not to wish the newlyweds a long and happy wedded life together, or to rain on their parade, DeRosa’s participation in the ceremony was itself stupefyingly gauche, and merits being held up to critical analysis. Having opposed marriage equality on the basis of her Roman Catholic religion, DeRosa now needs to explain her light-speed, politically-motivated “evolution” on the issue. At the same time, should she ever desire to receive the grace of the Sacraments again, she might want to explain to her church why she apostasized and accepted a form of ordination from a so-called online ministry. At all events, her conduct was, in the words of Mayor pro tem. Chuck Vasquez, in poor taste. Unbelievably cynical, and clearly intended as part of her 2014 reelection bid, DeRosa’s conduct gives cynical politicians everywhere a bad name.
By: Paul S. Marchand
Yesterday, Jim Cox and Tom Aubrey of Cathedral City got married. That, in and of itself, comes as no surprise. Since the Ninth Circuit lifted its stay on same-sex marriages last Friday afternoon, queer couples have been lining up to get licensed and wed throughout California.
The identity of the officiant came to many in Cathedral City’s substantial queer community as a surprise, and an offensive one at that. The officiant was not an LGBT person, but rather Cathedral City’s embattled mayor Kathleen Joan DeRosa, whose publicly stated religiously-based opposition to marriage equality became an issue in last fall’s mayoral campaign.
It would be gauche not to wish the newlyweds all of the companionable joy that ought to be the incident of a truly happy marriage, and indeed one does wish them great joy. Nonetheless, DeRosa’s officiating the ceremony comes across as a bit of a slap in the face to Cathedral City’s queer community. It was stupefyingly gauche.
Indeed, as much as it might be gauche to rain on the newlyweds’ parade, it is emphatically not gauche to question the motives of the politician who officiated at the ceremony. The community may properly ask DeRosa a number of fairly serious questions she may be unable or unwilling to answer.
First, in the run-up to the fall, 2012 municipal election, DeRosa declared that “as a Catholic” she could not support marriage equality.
How can she now reconcile her astonishingly rapid volte-face with her earlier position?
While it took Barack Obama a number of years to “evolve” on the issue of same-sex marriage, even the President’s evolution has not gone so far as to have the President of the United States mugging for the cameras in the White House Rose Garden after solemnizing a same-sex marriage, turning what should be a solemn moment in the lives of the newlyweds into nothing more than an act of political theater.
Second, news reports indicate that DeRosa perform the ceremony after receiving some sort of ostensible “ordination” from a so-called online ministry. Has Ms. DeRosa --- who professed her Roman Catholic faith as justification for her prior opposition to marriage equality --- forgotten the plain blackletter of Canon 1364 of the Roman Catholic Church’s Code of Canon Law? In pertinent part, Canon 1364 provides that “... an apostate from the faith, a heretic, or a schismatic incurs a latæ sententiæ excommunication;...”
Arguably, by accepting some kind of ostensible status as a “minister” from some “online ministry,” Kathleen Joan DeRosa has apostasized from the Roman Catholic Church, thus incurring that latæ sententiæ, automatic excommunication provided for in Canon 1364. As an open and notorious apostate, DeRosa will have a lot of explaining to do to her church, particularly if she finds herself repelled from the grace of the Sacraments.
Obviously, DeRosa’s faith sits very lightly upon her apostate shoulders, and means rather less to her then being able to exploit the advent of same-gender marriage for her own political purposes. It is no secret that DeRosa regularly seeks -- with disturbing success -- to bamboozle low information voters, particularly in Cathedral City’s substantial queer and Latino communities. Nonetheless, Scripture reminds us that it profits one nothing to gain the whole world, but lose one’s soul. (See, e.g., Matt. 16:26). Indeed, if it profits one nothing to gain the whole world, but lose one’s soul, what may we say if DeRosa gains only Cathedral City, but loses her own soul in the process?
Cathedral City Mayor pro tem. Chuck Vasquez was quite correct to characterize DeRosa’s actions as having been “in poor taste.” Not only were DeRosa’s actions in poor taste, but they also certainly telegraphed her intention to try to rebrand herself as some kind of friend of the queer nation as she seeks in 2014 to add two more to the nine bitter winters she has been mayor. If she succeeds, Cathedral City’s queer community will have only itself to blame for being so easily bamboozled by so blatantly cynical and opportunistic a political operator.
DeRosa should have had the basic decency to decline to officiate.
Unfortunately, she is nothing more than a political operator who gives political operators a bad name.
-xxx-
Paul S. Marchand is an attorney who lives and practices in Cathedral City, where he served two terms on the City Council. He remembers DeRosa’s narcissistic behavior and her routine taking of credit for the work of others. The views expressed herein are his own, and are not intended as legal advice.
Wednesday, July 3, 2013
Friday, June 28, 2013
AGAINST “CHRISTIAN ENTITLEMENT” IN PUBLIC SERVICE: A BRIGHT-LINE, HARD-LINE POSITION.
Summary: When Pennsylvania Republican state Rep. Daryl Metcalfe prevented openly gay Democratic Rep. Brian Sims from speaking in the House by invoking “God’s law,” the Republican opened up a real can of worms. Arguably, Metcalfe’s misconduct constitutes perjury, inasmuch as he violated his oath of office to uphold the Constitution of the United States. Moreover, Metcalfe’s behavior betrays a disturbing sense of so-called Christian Entitlement, which certain so-called Christians use as a vehicle to exclude from the life of the commonwealth those whose views and beliefs differ from theirs. It is improper ever to invoke or appeal to denominational scripture in forming public policy, as it is equally improper to abridge the civil rights of one to assuage the religious discomforts of another, and it is even more wrong to put the civil rights of discrete minorities up for popular vote. So-called Christians who believe in the propriety of any of these things are simply wrong. Daryl Metcalfe is unfit to serve in public office any time, anywhere. Cathedral City’s mayor, who based her opposition to marriage equality on her ostensible and ostentatious Catholicism, should take note.
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By: Paul S. Marchand
In the Commonwealth of Pennsylvania, “disobeying God” is apparently sufficient grounds to prevent legislative speech.
In the Pennsylvania House of Representatives in Harrisburg the other day, Pennsylvania State Rep. Brian Sims, (D) Philadelphia, rose to speak on SCOTUS’s ruling in U.S. v. Windsor. As the openly gay legislator (the only one in the Commonwealth’s General Assembly) prepared to comment on the demise of DOMA, Republican State Rep. Daryl Metcalfe invoked a procedural objection to prevent Mr. Sims from speaking. Metcalfe’s objection will go down as one of the most outrageous and astonishing interventions in the history of the Commonwealth, and possibly in American history.
In justifying his astonishing misconduct, Metcalfe declared that
Later, Metcalfe doubled down:
In this country, Metcalfe’s misbehavior symbol represents another manifestation of what has been called “Christian Entitlement.” It is a theory which postulates that the profession of a particularly hard-edged, “God said it, I believe it, that settles it” Christian ideological line necessarily trumps the rights of others to believe as they see fit and to articulate ideas which may make ostentatious “Christians” uncomfortable.
Leaving aside for a moment the grave theological error --- to say nothing of the deadly sin of pride --- into which Metcalfe falls with his facepalm-inducing nonsense, Metcalfe’s hard line invocation of “Christian Entitlement” necessarily calls forth an equally hard-line response.
As a number of progressive Christian thinkers, the Rev. Canon Susan Russell among them, have noted, you are not being persecuted when you are prevented from persecuting others. “Christian Entitlement” turns this reality on its head, claiming not only that Christians are persecuted when they are prevented from persecuting others, but that Christians --- being in possession of Truth with a capital T --- are entitled, by virtue of their claims possession of that Truth with a capital T, to silence, intimidate, and even persecute those whose views and ideology are not precisely congruent with their own.
Thus, the need for a hard-line, bright-line response to the misconduct of oath-breakers and moral perjurers like Daryl Metcalfe. A few simple points will suffice.
First, to be authentically loyal to our American ideals and commonwealth, one must reject absolutely the idea that it is ever permissible to appeal to or invoke any denominational scripture or theology when forming public policy. America was founded upon the allied and intertwined principles of freedom of religion and freedom from religion. You cannot be loyal to America’s founding principles and insist that you have the right to invoke what you believe is “God’s law” to shut down speech and debate in a representative chamber.
Second, the right of any individual to authentic, first-class membership in our American body politic, should never be infringed, abridged, or denied to assuage the religious, political, or ideological discomforts of any other individual whomsoever. America is a raucous, vibrantly diverse society, and one of the prices we pay for the freedoms we treasure is that others will believe, think, worship, or speak in ways that may cause us discomfort, and with which we may disagree vehemently. Putting up with differences of opinion and belief is part of our social contract: “I do not agree with what you have said, but I will defend to the death your right to say it.” We have the right to insist that our elected representatives do us and their colleagues the constitutional courtesy of respecting differences of opinion. For once a religious sanction is invoked, the mind turns, thought departs, and we are a step away from the horrors of the Inquisition or Europe’s stomach-turning Wars of Religion.
Third, the civil rights of discrete and identifiable minorities within the body politic are not properly the subject of popular votes. California has a deplorable history of using the ballot box to pass hateful and discriminatory laws intended to cause harm to disfavored minorities. The Chinese, Japanese, Latinos, African-Americans, and queerfolk have all found themselves on the receiving end of such nastiness, and in every case, the courts have intervened to redress the constitutional imbalance created by such legislation. The so-called will of the people ends where the Constitution begins.
Finally, there is no right, anytime, anywhere, to seek to exclude from the commonwealth those who do not look like us, live like us, love like us, work like us, worship like us, or vote like us. When Republican members of the U.S. House of Representatives threw a temper tantrum and sought to prevent a Hindu chaplain from delivering an invocation in the cap house, they, like Daryl Metcalfe in Pennsylvania, not only raised serious questions about their own fitness for public service, but also raise serious questions about the extent to which they had perjured themselves in taking an oath to uphold and defend the Constitution of the United States, which very clearly declares that “Congress shall make no law respecting an Establishment of religion prohibiting the free exercise thereof.”
So-called Christians who believe that it is ever right to invoke denominational scripture into public policy formation process, or who believe that it is permissible to infringe the civil rights of one to assuage the religious comforts of others, or who believe that civil rights are ever legitimate subjects for popular vote are simply wrong. Wrong. Wrong.
To the extent that the egregious Daryl Metcalfe sought to impose his Christian Entitlement views on his colleague, he was not only wrong, but he also violated his oath of office. If he knew at the time that he took the oath that he intended to violate it in such fashion, then he may well have committed the crime of perjury, of telling a deliberate and material untruth under oath. If so, Daryl Metcalfe may well have committed an impeachable offense.
At all events, Daryl Metcalfe has demonstrated his utter unfitness to hold any office of trust or profit under the Commonwealth of Pennsylvania, or of any other state or jurisdiction, anytime, anywhere. Having served eight years in public office myself, and having also been throughout that period a confirmed, communicating Episcopalian, I never had the slightest difficulty conforming my conduct as a public official to the requirements of the Constitution.
Why is it apparently so difficult for the Daryl Metcalfes of this world to do so?
The current mayor of Cathedral City, who infamously declared that “as a Catholic” she could not support marriage equality, should take note.
-xxx-
Paul S. Marchand is an attorney who lives in practices in Cathedral City, California, where he served eight years on the city Council. He is a confirmed, communicating member of the Episcopal Church, and has been for more than 30 years. The views contained herein are his own, and not necessarily those of TEC, and are not intended as, and should not be construed as, legal advice. Heretics and haters take note, your comments will not be published.
---------------------------------------------------------------------
By: Paul S. Marchand
In the Commonwealth of Pennsylvania, “disobeying God” is apparently sufficient grounds to prevent legislative speech.
In the Pennsylvania House of Representatives in Harrisburg the other day, Pennsylvania State Rep. Brian Sims, (D) Philadelphia, rose to speak on SCOTUS’s ruling in U.S. v. Windsor. As the openly gay legislator (the only one in the Commonwealth’s General Assembly) prepared to comment on the demise of DOMA, Republican State Rep. Daryl Metcalfe invoked a procedural objection to prevent Mr. Sims from speaking. Metcalfe’s objection will go down as one of the most outrageous and astonishing interventions in the history of the Commonwealth, and possibly in American history.
In justifying his astonishing misconduct, Metcalfe declared that
“I did not believe that as a member of that body that I should allow someone to make comments such as he was preparing to make that ultimately were just open rebellion against what the word of God has said, what God has said, and just open rebellion against God's law.”
Later, Metcalfe doubled down:
“For me to allow him to say things that I believe are open rebellion against God are for me to participate in his open rebellion. There's no free speech on the floor.”Were such an event to take place in a Muslim country, hard right wing bloviators such as Metcalfe would have been quick to take the podium to vent theatrical outrage.
In this country, Metcalfe’s misbehavior symbol represents another manifestation of what has been called “Christian Entitlement.” It is a theory which postulates that the profession of a particularly hard-edged, “God said it, I believe it, that settles it” Christian ideological line necessarily trumps the rights of others to believe as they see fit and to articulate ideas which may make ostentatious “Christians” uncomfortable.
Leaving aside for a moment the grave theological error --- to say nothing of the deadly sin of pride --- into which Metcalfe falls with his facepalm-inducing nonsense, Metcalfe’s hard line invocation of “Christian Entitlement” necessarily calls forth an equally hard-line response.
As a number of progressive Christian thinkers, the Rev. Canon Susan Russell among them, have noted, you are not being persecuted when you are prevented from persecuting others. “Christian Entitlement” turns this reality on its head, claiming not only that Christians are persecuted when they are prevented from persecuting others, but that Christians --- being in possession of Truth with a capital T --- are entitled, by virtue of their claims possession of that Truth with a capital T, to silence, intimidate, and even persecute those whose views and ideology are not precisely congruent with their own.
Thus, the need for a hard-line, bright-line response to the misconduct of oath-breakers and moral perjurers like Daryl Metcalfe. A few simple points will suffice.
First, to be authentically loyal to our American ideals and commonwealth, one must reject absolutely the idea that it is ever permissible to appeal to or invoke any denominational scripture or theology when forming public policy. America was founded upon the allied and intertwined principles of freedom of religion and freedom from religion. You cannot be loyal to America’s founding principles and insist that you have the right to invoke what you believe is “God’s law” to shut down speech and debate in a representative chamber.
Second, the right of any individual to authentic, first-class membership in our American body politic, should never be infringed, abridged, or denied to assuage the religious, political, or ideological discomforts of any other individual whomsoever. America is a raucous, vibrantly diverse society, and one of the prices we pay for the freedoms we treasure is that others will believe, think, worship, or speak in ways that may cause us discomfort, and with which we may disagree vehemently. Putting up with differences of opinion and belief is part of our social contract: “I do not agree with what you have said, but I will defend to the death your right to say it.” We have the right to insist that our elected representatives do us and their colleagues the constitutional courtesy of respecting differences of opinion. For once a religious sanction is invoked, the mind turns, thought departs, and we are a step away from the horrors of the Inquisition or Europe’s stomach-turning Wars of Religion.
Third, the civil rights of discrete and identifiable minorities within the body politic are not properly the subject of popular votes. California has a deplorable history of using the ballot box to pass hateful and discriminatory laws intended to cause harm to disfavored minorities. The Chinese, Japanese, Latinos, African-Americans, and queerfolk have all found themselves on the receiving end of such nastiness, and in every case, the courts have intervened to redress the constitutional imbalance created by such legislation. The so-called will of the people ends where the Constitution begins.
Finally, there is no right, anytime, anywhere, to seek to exclude from the commonwealth those who do not look like us, live like us, love like us, work like us, worship like us, or vote like us. When Republican members of the U.S. House of Representatives threw a temper tantrum and sought to prevent a Hindu chaplain from delivering an invocation in the cap house, they, like Daryl Metcalfe in Pennsylvania, not only raised serious questions about their own fitness for public service, but also raise serious questions about the extent to which they had perjured themselves in taking an oath to uphold and defend the Constitution of the United States, which very clearly declares that “Congress shall make no law respecting an Establishment of religion prohibiting the free exercise thereof.”
So-called Christians who believe that it is ever right to invoke denominational scripture into public policy formation process, or who believe that it is permissible to infringe the civil rights of one to assuage the religious comforts of others, or who believe that civil rights are ever legitimate subjects for popular vote are simply wrong. Wrong. Wrong.
To the extent that the egregious Daryl Metcalfe sought to impose his Christian Entitlement views on his colleague, he was not only wrong, but he also violated his oath of office. If he knew at the time that he took the oath that he intended to violate it in such fashion, then he may well have committed the crime of perjury, of telling a deliberate and material untruth under oath. If so, Daryl Metcalfe may well have committed an impeachable offense.
At all events, Daryl Metcalfe has demonstrated his utter unfitness to hold any office of trust or profit under the Commonwealth of Pennsylvania, or of any other state or jurisdiction, anytime, anywhere. Having served eight years in public office myself, and having also been throughout that period a confirmed, communicating Episcopalian, I never had the slightest difficulty conforming my conduct as a public official to the requirements of the Constitution.
Why is it apparently so difficult for the Daryl Metcalfes of this world to do so?
The current mayor of Cathedral City, who infamously declared that “as a Catholic” she could not support marriage equality, should take note.
-xxx-
Paul S. Marchand is an attorney who lives in practices in Cathedral City, California, where he served eight years on the city Council. He is a confirmed, communicating member of the Episcopal Church, and has been for more than 30 years. The views contained herein are his own, and not necessarily those of TEC, and are not intended as, and should not be construed as, legal advice. Heretics and haters take note, your comments will not be published.
Thursday, June 27, 2013
AFTER THE GREAT DAY: the Queer Civil Rights Lawyers Full Employment Act of 2013.
Summary: After our victories in yesterday’s marriage decisions, which had the queer nation holding its collective breath, we have been able to exhale. The world has not fallen apart, and the planet continues to rotate majestically and indifferently on its axis. Still, things feel different. Opponents of marriage equality continue to fulminate, and we know that the demise of DOMA will only engender further litigation to fill in the gaps and address the implications of what may well prove to be as consequential a decision for queerfolk as Brown v. Board of Education was for Americans of color six decades ago. Yet, integrating the demise of DOMA into the way we do things will inevitably call forth bureaucratic resistance. Such resistance will spawn lawsuits, and in the end, we may all find ourselves looking at the Windsor decision as the Queer Civil Rights Lawyers Full Employment Act of 2013.
By: Paul S. Marchand
If you felt a bit of a breeze yesterday morning, it was probably the queer nation exhaling. We had waited and held our breath for so long, and passed so much time in fearful, fretful anticipation of how the Supreme Court might rule in its marriage cases, that the sense of relief and joy was almost palpable. “Even better than sex,” said a friend of mine who is no stranger to queer intimacy. Indeed, for a community that has been running on adrenaline since the marriage cases were argued, the letdown after yesterday’s victory can seem somewhat akin to withdrawal.
Perhaps the one ineluctable conclusion we can draw from yesterday’s decisions in Hollingsworth v. Perry and U.S. v. Windsor is that litigation, like small animals having sex in dark corners, simply reproduces itself. It ain't over yet.
I suggested yesterday that nothing will ever be quite the same again. This morning, on the morning after, as it were, as the alarm clock went off and I growled at it, I couldn’t help but remember the observation Aleksandr Solzhenitsyn made about the coming of the 20th century in his novel August 1914, in which he suggested that the world had now moved “into a new era: that the entire atmosphere of the planet -its oxygen content, its rate of combustion, the mainspring pressure in all its clocks- had somehow changed.” Somehow, things just feel different.
The change brought about by the marriage cases will be subtle and exquisitely difficult to quantify. We know what marriage is, and we understand the strong case to be made for marriage equality. What remains uncertain is where the queer nation, and the larger American commonwealth of which our queer nation is a part, actually goes from here. How do we implement the Court’s relatively simple holding in Windsor? What cases and controversies will emerge therefrom?
Already, opponents of marriage equality have unburdened themselves of apoplectic, splenetic, over-the-top screeds and diatribes about the awfulness of what the Court did yesterday. Yet, even if the entire atmosphere of the planet -its oxygen content, its rate of combustion, the mainspring pressure in all its clocks-have somehow changed, life continues. The planet continues to rotate majestically, indifferently on its axis. People still get up and go to work today, even if some gay people will be marching into HR offices today to change their W-4 status from “single” to “married.”
The change we sought, the change we ourselves have become, will manifest itself in the smallest and most mundane ways. The married gay man in the HR office quietly changing his W-4 status from single to married on the authority of U.S. v. Windsor may well be more of a revolutionary than all of the prideful, happy homosexuals rallying at the Marilyn Monroe statue in Palm Springs, or at West Hollywood’s iconic intersection of Santa Monica and San Vicente, in the Castro, or in the Village in New York. The revolution will continue when the first lesbian couple amends its recent tax returns from two single women to “married, filing jointly,” and bureaucratic heads at the IRS begin to explode.
For quiet revolutionary change often calls forth stuttering, sputtering, spluttering, splenetic resistance from stubborn bureaucratic holdouts. Our victory in Windsor was equivocal in that the Court did not address the issue of whether Section 2 of DOMA, which allows states to withhold recognition of validly contracted same-gender marriages performed in other states, improperly impinges upon the Full Faith and Credit Clause set forth in Section 1 of Article IV of the Constitution of the United States. Moreover, to the extent that the Windsor holding does little more than declare the unconstitutionality of Section 3 of DOMA, it effectively falls to legions of federal, state, and local bureaucrats to implement the Court’s ruling. If the churlish behavior of certain county clerks in California in response to the California marriage cases back in 2008 is any indication, we can expect a lot of foot dragging from homophobic local officials.
Given the deep divisions within American society over marriage equality, and given calls from the religious right for opponents of marriage equality to engage in the same kind of so-called massive resistance to Windsor that supporters of Jim Crow urged in response to the decision in Brown v. Board of Education, it is reasonably foreseeable that Windsor will spawn the kind of protracted litigation that Brown called forth, as refractory, reactionary federal and state bureaucrats seek to frustrate the application of Windsor through selective and unsustainable invocations of rules, regulations, and policies originally informed by DOMA’s homophobic legislative intent.
In a sense, Windsor has raised as many questions as it settles. Administratively speaking, Hollingsworth, which simply restored marriage equality in California, may not open merely the can of worms Windsor is about to open.
In fine, Windsor has done what watershed Supreme Court decisions are supposed to do; it has settled a broad principle of constitutional law --- that same-gender marriages are entitled to the same dignity as so-called traditional marriages --- but it has left the gaps be filled on an ongoing and ad hoc basis. We now know what the law is, and what the Constitution says, about same-gender couples in federal law. How we apply this newly articulated constitutional principle will be the subject of infinite wrangling, tangling, and litigation.
As American society struggles to integrate the implications and ramifications of Windsor into its thinking and policies, it will be incumbent upon the queer nation not to relax too much, but to keep fighting these further, interstitial skirmishes that will become an integral part of the changed legal landscape America’s queerfolk will need to navigate. While Windsor has clarified one issue, it can justly be referred to as the Queer Civil Rights Lawyers Full Employment Act of 2013.
-xxx-
Paul S. Marchand is an attorney who lives in practices in Cathedral City, California, where he served two terms on the city Council. In 1993, he was one of the first attorneys in California to take on a same-gender marriage challenge. The views contained herein are his own, and not necessarily those of any entity with which he is associated, and are not intended to constitute, and should not be construed as constituting, legal advice. No haters allowed: comments containing personal attacks will not be approved for publication.
By: Paul S. Marchand
If you felt a bit of a breeze yesterday morning, it was probably the queer nation exhaling. We had waited and held our breath for so long, and passed so much time in fearful, fretful anticipation of how the Supreme Court might rule in its marriage cases, that the sense of relief and joy was almost palpable. “Even better than sex,” said a friend of mine who is no stranger to queer intimacy. Indeed, for a community that has been running on adrenaline since the marriage cases were argued, the letdown after yesterday’s victory can seem somewhat akin to withdrawal.
Perhaps the one ineluctable conclusion we can draw from yesterday’s decisions in Hollingsworth v. Perry and U.S. v. Windsor is that litigation, like small animals having sex in dark corners, simply reproduces itself. It ain't over yet.
I suggested yesterday that nothing will ever be quite the same again. This morning, on the morning after, as it were, as the alarm clock went off and I growled at it, I couldn’t help but remember the observation Aleksandr Solzhenitsyn made about the coming of the 20th century in his novel August 1914, in which he suggested that the world had now moved “into a new era: that the entire atmosphere of the planet -its oxygen content, its rate of combustion, the mainspring pressure in all its clocks- had somehow changed.” Somehow, things just feel different.
The change brought about by the marriage cases will be subtle and exquisitely difficult to quantify. We know what marriage is, and we understand the strong case to be made for marriage equality. What remains uncertain is where the queer nation, and the larger American commonwealth of which our queer nation is a part, actually goes from here. How do we implement the Court’s relatively simple holding in Windsor? What cases and controversies will emerge therefrom?
Already, opponents of marriage equality have unburdened themselves of apoplectic, splenetic, over-the-top screeds and diatribes about the awfulness of what the Court did yesterday. Yet, even if the entire atmosphere of the planet -its oxygen content, its rate of combustion, the mainspring pressure in all its clocks-have somehow changed, life continues. The planet continues to rotate majestically, indifferently on its axis. People still get up and go to work today, even if some gay people will be marching into HR offices today to change their W-4 status from “single” to “married.”
The change we sought, the change we ourselves have become, will manifest itself in the smallest and most mundane ways. The married gay man in the HR office quietly changing his W-4 status from single to married on the authority of U.S. v. Windsor may well be more of a revolutionary than all of the prideful, happy homosexuals rallying at the Marilyn Monroe statue in Palm Springs, or at West Hollywood’s iconic intersection of Santa Monica and San Vicente, in the Castro, or in the Village in New York. The revolution will continue when the first lesbian couple amends its recent tax returns from two single women to “married, filing jointly,” and bureaucratic heads at the IRS begin to explode.
For quiet revolutionary change often calls forth stuttering, sputtering, spluttering, splenetic resistance from stubborn bureaucratic holdouts. Our victory in Windsor was equivocal in that the Court did not address the issue of whether Section 2 of DOMA, which allows states to withhold recognition of validly contracted same-gender marriages performed in other states, improperly impinges upon the Full Faith and Credit Clause set forth in Section 1 of Article IV of the Constitution of the United States. Moreover, to the extent that the Windsor holding does little more than declare the unconstitutionality of Section 3 of DOMA, it effectively falls to legions of federal, state, and local bureaucrats to implement the Court’s ruling. If the churlish behavior of certain county clerks in California in response to the California marriage cases back in 2008 is any indication, we can expect a lot of foot dragging from homophobic local officials.
Given the deep divisions within American society over marriage equality, and given calls from the religious right for opponents of marriage equality to engage in the same kind of so-called massive resistance to Windsor that supporters of Jim Crow urged in response to the decision in Brown v. Board of Education, it is reasonably foreseeable that Windsor will spawn the kind of protracted litigation that Brown called forth, as refractory, reactionary federal and state bureaucrats seek to frustrate the application of Windsor through selective and unsustainable invocations of rules, regulations, and policies originally informed by DOMA’s homophobic legislative intent.
- So, will the lesbian couple seeking to amend their tax returns from “single”to “married, filing jointly” catch flak from the IRS?
- Will the gay man in the HR office wanting to change his W-4 status from single to married encounter hemming and hawing from the pen pushers in human resources?
- Will married queerfolk have to do battle with self-appointed conservators and enforcers of so-called traditional values?
- Will law enforcement agencies (which have historically tended to regard themselves as custodians and conservators of what they believe ought to be correct, traditional social mores) be able to integrate into their thinking the ramifications of possible marital evidentiary privileges as asserted by married queer couples?
- Will healthcare providers be prepared to acknowledge the right of a same-gender spouse to make critical healthcare decisions for a stricken wife or husband?
In a sense, Windsor has raised as many questions as it settles. Administratively speaking, Hollingsworth, which simply restored marriage equality in California, may not open merely the can of worms Windsor is about to open.
In fine, Windsor has done what watershed Supreme Court decisions are supposed to do; it has settled a broad principle of constitutional law --- that same-gender marriages are entitled to the same dignity as so-called traditional marriages --- but it has left the gaps be filled on an ongoing and ad hoc basis. We now know what the law is, and what the Constitution says, about same-gender couples in federal law. How we apply this newly articulated constitutional principle will be the subject of infinite wrangling, tangling, and litigation.
As American society struggles to integrate the implications and ramifications of Windsor into its thinking and policies, it will be incumbent upon the queer nation not to relax too much, but to keep fighting these further, interstitial skirmishes that will become an integral part of the changed legal landscape America’s queerfolk will need to navigate. While Windsor has clarified one issue, it can justly be referred to as the Queer Civil Rights Lawyers Full Employment Act of 2013.
-xxx-
Paul S. Marchand is an attorney who lives in practices in Cathedral City, California, where he served two terms on the city Council. In 1993, he was one of the first attorneys in California to take on a same-gender marriage challenge. The views contained herein are his own, and not necessarily those of any entity with which he is associated, and are not intended to constitute, and should not be construed as constituting, legal advice. No haters allowed: comments containing personal attacks will not be approved for publication.
Wednesday, June 26, 2013
KEEPING TRYST WITH DESTINY:
KEEPING TRYST WITH DESTINY:
Summary: More than 40 years after two gay Minnesota activists unsuccessfully sought a marriage license, marriage equality took a huge step forward today as the Supreme Court held unconstitutional the so-called Defense of Marriage Act, and dismissed for want of standing washed out Republican Dennis Hollingsworth’s feckless attempt to keep alive California’s unconstitutional Proposition 8. The queer nation has kept the tryst with destiny we made so many years ago. The pledge of ultimate equality and first-class citizenship we made to ourselves so long ago has been redeemed, not wholly or in full measure, but very substantially. The soul of the queer nation, so long suppressed, has found utterance, and nothing will ever be quite the same again. Be fierce. Be proud. Great days lie ahead.
"Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially."
-Jawaharlal Nehru, addressing the Indian Constituent Assembly, on the night India became independent, August 14-15, 1947.
Lo, it has been almost two generations that we queerfolk have been fighting what had seemed an unwinnable battle for legal recognition of our right to marry. Today, we may have turned a great corner in that ongoing fight, winning a pair of victories that, while equivocal, may nonetheless represent game-changers.
On May 18, 1970, Richard Baker and James Michael McConnell unsuccessfully applied to the clerk of the Hennepin County, Minnesota District Court for a marriage license. On December 19, 1990, three same-sex couples also applied unsuccessfully for marriage licenses at the Hawai’i Department of Health. While Baker and McConnell’s early appeals were unavailing, the Hawai’i couples’ appeals two decades later produced what was for the time a startling result. In Baehr v. Lewin (1993) 74 Haw. 530, 852 P.2d 44, the Hawai’i Supreme Court held that the state would have to show a compelling justification for restricting marriage to opposite-gender couples.
In 1996, in a classic example of what Lyndon Johnson once called “frontlash,” the Republican dominated Congress passed, and Bill Clinton (in one of his more unfortunate capitulations) signed the so-called Defense of Marriage Act (DOMA), largely motivated by homophobic Republican Congressional desires to keep us uppity queers from enjoying even a tithe of the civil rights taken for granted by our straight neighbors.
The subsequent history of the fight for marriage equality is almost too well known to require further recapitulation. Civil Unions, which had emerged at the end of the 20th century as a possible “Plan B” option, soon gave way to growing insistence that marriage by that name, and not some other, was the only constitutionally defensible posture for the queer nation to adopt.
Here in California, the sad history of Proposition 22 and Proposition 8, both heavily bankrolled by the Mormon and Roman Catholic churches, bore witness not only to the challenges facing the queer nation, but also to California’s deplorable history of using the ballot box to discriminate against disfavored minorities.
As always, the remedy available to those who have been unfairly discriminate against lies not in so-called direct action, but in litigation challenging the constitutionality of discriminatory laws.
When the constitutionality of Proposition 8 was challenged, the trial, conducted in the federal court for the Northern District of California before District Judge Vaughn Walker, was almost a travesty. Against overwhelming evidence submitted by the plaintiffs challenging Proposition 8, the supporters of the marriage ban presented a laughably weak showing. When the Ninth Circuit agreed on the merits with the Northern District, grandstanding, termed-out sometime Republican state Senator Dennis Hollingsworth was permitted to butt in and petition for certiorari in the U.S. Supreme Court. When the Court granted cert, it had the effect of staying the Ninth Circuit’s affirmance of Vaughn Walker’s District Court ruling holding Proposition 8 unconstitutional.
When Edie Windsor took issue with the federal government charging her more than $300,000 in estate tax because it did not recognize the validity of her marriage to her late wife, Thea Spyer, she challenged DOMA, contending that DOMA’s federal definition of marriage as being only between a man and a woman was flatly unconstitutional.
Today the Supreme Court sent Dennis Hollingsworth back to the pit of political opportunism he bubbled up from, and slapped Congress’s chops for it, holding in Hollingsworth v. Perry that Hollingsworth’s grandstand play against marriage failed for want of standing, and that Edie Windsor was right, and that DOMA was indeed unconstitutional.
Today, American queerfolk have good reason to celebrate. Yesterday, posting in this blog, I speculated that the Court might either dismiss Hollingsworth as having been “improvidently granted,” or dismiss it for want of standing, given that Dennis Hollingsworth was nothing more than a cynical termed-out Republican politician looking for a vehicle to inject new life into his aspirations of running for statewide office. If the Court chose to swing for the fences, I suggested, it would do so in Windsor.
Certainly, Justice Kennedy’s majority opinion in Windsor contains strong suggestions that, as a matter of federal law, Congress may be as constitutionally constrained from enacting legislation simply to express its disapproval of queerfolk as individual states have been so constrained since the Court’s ruling in Romer v. Evans (1996) 517 U.S. 620, in which Justice Kennedy himself, writing for the Court, struck down a Colorado constitutional amendment that specifically prohibited any form of legal protection for queerfolk in Colorado.
To a certain extent, therefore, one of the possible lessons to be drawn from Windsor is that Romer may now be as applicable to acts of Congress as it has been to acts of state legislatures or to state ballot initiatives. Certainly, Windsor, which had not enjoyed as much attention here as Hollingsworth, is the more consequential of the two decisions, since it reached the merits of the issue in a way Hollingsworth shied away from.
Now, in all candor, I must admit that certain friends of mine, who still nurse a considerable amount of righteous moral indignation over the institutionalized homophobia of so many government institutions throughout the country, may not agree with me that we have won two fairly substantial victories this morning. Yet, we should, like William Hurt’s character in Kiss of the Spider Woman, enjoy what life offers, and have a piece of avocado, because it’s a long time till lunch. My friends who reject the good tidings of this morning should remember not only how long it is till lunch, but also should ask themselves whether carping over the limitations of a victory so significant really advances the larger cause of full first-class citizenship for queerfolk.
As much as I would emerge my unsatisfied friends to have that metaphorical piece of avocado and enjoy it, I would also urge moderation on some of the more ideological separatist fellow travelers who believe that the Court should simply have rejected the entire institution of marriage altogether. Such a view may be attractive to Uber-libertarians, but from the perspective of a society steeped in respect -- even reverence -- for the rule of law and for a constitution many of its members have neither read nor understood, a libertarian rejection of marriage is unrealistic and unsustainable. We know what marriage means; we understand the implications and ramifications of marriage; that’s why we queerfolk has sought for so long to be able to have our lawfully plighted troths recognized as authentic marriages, not only in the states that permit them, but also by the federal government.
Last night, as I passed the long hours of darkness in fretful sleeplessness, alone and without the reassuring presence of another man next to me, I found myself hoping for what became this morning’s outcome. I recalled the words Jawaharlal Nehru addressed to the Indian constituent assembly on the night the world’s largest democracy became independent in 1947. “Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially.”
Long years ago we, too, made our own tryst with destiny, and now the time has come when we, too, redeem our pledge, not wholly or in full measure, but very substantially. While the world goes about its business, our queer nation takes a great step forward toward full and authentic participation in the American commonwealth. As Nehru also observed, “[a] moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance.” Nothing will ever be quite the same again.
Be fierce. Be proud. Great days lie ahead.
-xxx-
Paul S. Marchand is an attorney who lives and practices in Cathedral City, California, where he served two terms on the city Council. Two decades ago, he was one of the first attorneys in California to litigate a marriage case. After almost a generation, he may perhaps be excused in feeling a slight sense of vindication this morning. The views contained herein are his own, and are not intended to constitute legal advice.
Summary: More than 40 years after two gay Minnesota activists unsuccessfully sought a marriage license, marriage equality took a huge step forward today as the Supreme Court held unconstitutional the so-called Defense of Marriage Act, and dismissed for want of standing washed out Republican Dennis Hollingsworth’s feckless attempt to keep alive California’s unconstitutional Proposition 8. The queer nation has kept the tryst with destiny we made so many years ago. The pledge of ultimate equality and first-class citizenship we made to ourselves so long ago has been redeemed, not wholly or in full measure, but very substantially. The soul of the queer nation, so long suppressed, has found utterance, and nothing will ever be quite the same again. Be fierce. Be proud. Great days lie ahead.
"Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially."
-Jawaharlal Nehru, addressing the Indian Constituent Assembly, on the night India became independent, August 14-15, 1947.
Lo, it has been almost two generations that we queerfolk have been fighting what had seemed an unwinnable battle for legal recognition of our right to marry. Today, we may have turned a great corner in that ongoing fight, winning a pair of victories that, while equivocal, may nonetheless represent game-changers.
On May 18, 1970, Richard Baker and James Michael McConnell unsuccessfully applied to the clerk of the Hennepin County, Minnesota District Court for a marriage license. On December 19, 1990, three same-sex couples also applied unsuccessfully for marriage licenses at the Hawai’i Department of Health. While Baker and McConnell’s early appeals were unavailing, the Hawai’i couples’ appeals two decades later produced what was for the time a startling result. In Baehr v. Lewin (1993) 74 Haw. 530, 852 P.2d 44, the Hawai’i Supreme Court held that the state would have to show a compelling justification for restricting marriage to opposite-gender couples.
In 1996, in a classic example of what Lyndon Johnson once called “frontlash,” the Republican dominated Congress passed, and Bill Clinton (in one of his more unfortunate capitulations) signed the so-called Defense of Marriage Act (DOMA), largely motivated by homophobic Republican Congressional desires to keep us uppity queers from enjoying even a tithe of the civil rights taken for granted by our straight neighbors.
The subsequent history of the fight for marriage equality is almost too well known to require further recapitulation. Civil Unions, which had emerged at the end of the 20th century as a possible “Plan B” option, soon gave way to growing insistence that marriage by that name, and not some other, was the only constitutionally defensible posture for the queer nation to adopt.
Here in California, the sad history of Proposition 22 and Proposition 8, both heavily bankrolled by the Mormon and Roman Catholic churches, bore witness not only to the challenges facing the queer nation, but also to California’s deplorable history of using the ballot box to discriminate against disfavored minorities.
As always, the remedy available to those who have been unfairly discriminate against lies not in so-called direct action, but in litigation challenging the constitutionality of discriminatory laws.
When the constitutionality of Proposition 8 was challenged, the trial, conducted in the federal court for the Northern District of California before District Judge Vaughn Walker, was almost a travesty. Against overwhelming evidence submitted by the plaintiffs challenging Proposition 8, the supporters of the marriage ban presented a laughably weak showing. When the Ninth Circuit agreed on the merits with the Northern District, grandstanding, termed-out sometime Republican state Senator Dennis Hollingsworth was permitted to butt in and petition for certiorari in the U.S. Supreme Court. When the Court granted cert, it had the effect of staying the Ninth Circuit’s affirmance of Vaughn Walker’s District Court ruling holding Proposition 8 unconstitutional.
When Edie Windsor took issue with the federal government charging her more than $300,000 in estate tax because it did not recognize the validity of her marriage to her late wife, Thea Spyer, she challenged DOMA, contending that DOMA’s federal definition of marriage as being only between a man and a woman was flatly unconstitutional.
Today the Supreme Court sent Dennis Hollingsworth back to the pit of political opportunism he bubbled up from, and slapped Congress’s chops for it, holding in Hollingsworth v. Perry that Hollingsworth’s grandstand play against marriage failed for want of standing, and that Edie Windsor was right, and that DOMA was indeed unconstitutional.
Today, American queerfolk have good reason to celebrate. Yesterday, posting in this blog, I speculated that the Court might either dismiss Hollingsworth as having been “improvidently granted,” or dismiss it for want of standing, given that Dennis Hollingsworth was nothing more than a cynical termed-out Republican politician looking for a vehicle to inject new life into his aspirations of running for statewide office. If the Court chose to swing for the fences, I suggested, it would do so in Windsor.
Certainly, Justice Kennedy’s majority opinion in Windsor contains strong suggestions that, as a matter of federal law, Congress may be as constitutionally constrained from enacting legislation simply to express its disapproval of queerfolk as individual states have been so constrained since the Court’s ruling in Romer v. Evans (1996) 517 U.S. 620, in which Justice Kennedy himself, writing for the Court, struck down a Colorado constitutional amendment that specifically prohibited any form of legal protection for queerfolk in Colorado.
To a certain extent, therefore, one of the possible lessons to be drawn from Windsor is that Romer may now be as applicable to acts of Congress as it has been to acts of state legislatures or to state ballot initiatives. Certainly, Windsor, which had not enjoyed as much attention here as Hollingsworth, is the more consequential of the two decisions, since it reached the merits of the issue in a way Hollingsworth shied away from.
Now, in all candor, I must admit that certain friends of mine, who still nurse a considerable amount of righteous moral indignation over the institutionalized homophobia of so many government institutions throughout the country, may not agree with me that we have won two fairly substantial victories this morning. Yet, we should, like William Hurt’s character in Kiss of the Spider Woman, enjoy what life offers, and have a piece of avocado, because it’s a long time till lunch. My friends who reject the good tidings of this morning should remember not only how long it is till lunch, but also should ask themselves whether carping over the limitations of a victory so significant really advances the larger cause of full first-class citizenship for queerfolk.
As much as I would emerge my unsatisfied friends to have that metaphorical piece of avocado and enjoy it, I would also urge moderation on some of the more ideological separatist fellow travelers who believe that the Court should simply have rejected the entire institution of marriage altogether. Such a view may be attractive to Uber-libertarians, but from the perspective of a society steeped in respect -- even reverence -- for the rule of law and for a constitution many of its members have neither read nor understood, a libertarian rejection of marriage is unrealistic and unsustainable. We know what marriage means; we understand the implications and ramifications of marriage; that’s why we queerfolk has sought for so long to be able to have our lawfully plighted troths recognized as authentic marriages, not only in the states that permit them, but also by the federal government.
Last night, as I passed the long hours of darkness in fretful sleeplessness, alone and without the reassuring presence of another man next to me, I found myself hoping for what became this morning’s outcome. I recalled the words Jawaharlal Nehru addressed to the Indian constituent assembly on the night the world’s largest democracy became independent in 1947. “Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially.”
Long years ago we, too, made our own tryst with destiny, and now the time has come when we, too, redeem our pledge, not wholly or in full measure, but very substantially. While the world goes about its business, our queer nation takes a great step forward toward full and authentic participation in the American commonwealth. As Nehru also observed, “[a] moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance.” Nothing will ever be quite the same again.
Be fierce. Be proud. Great days lie ahead.
-xxx-
Paul S. Marchand is an attorney who lives and practices in Cathedral City, California, where he served two terms on the city Council. Two decades ago, he was one of the first attorneys in California to litigate a marriage case. After almost a generation, he may perhaps be excused in feeling a slight sense of vindication this morning. The views contained herein are his own, and are not intended to constitute legal advice.
Tuesday, June 25, 2013
TOMORROW
Summary: The SCOTUS marriage cases will come down tomorrow. The longer we queerfolk wait, the more fretful we become and the more sleep we lose. The cottage industry of prognostication is in overdrive, though Justice Ruth Bader Ginsburg rightly notes that those who know aren’t talking and those who are talking don’t know. It is possible that the Prop 8 case (Hollingsworth v. Perry) may be DIGged (dismissed as improvidently granted). If so, will the Court swing for the fences on DOMA, issuing a broad brush ruling that attempts to settle once and for all the issue of queer civil rights in this country? If marriage prevails, it may be incumbent upon us queerfolk to rewrite much of our vocabulary of relationships. Tomorrow. We’ll know tomorrow.
By: Paul S. Marchand
Tomorrow.
The long-awaited Supreme Court decisions on marriage will come tomorrow, on the last day of the Court’s 2012 Term.
It’s not unreasonable to imagine that all over the country, queerfolk are finding themselves in a state of fretful, ambiguous, sleep-deprived anticipation.
Already, speculation about the possible outcome of the marriage cases has become something of a cottage industry of prognostication. As Justice Ruth Bader Ginsburg has observed, those who know aren’t talking, and those who are talking don’t know.
Nonetheless, one can feel a certain degree of vindication that a number of mainstream observers and commentators have begun, in recent days, to ventilate the possibility -- one that I had ventilated a number of months ago -- that the Court may dispose of the Proposition 8 case, Hollingsworth v. Perry, by dismissing Hollingsworth’s petition for certiorari as having been “improperly granted,” or DIGging it. When I suggested that Hollingsworth might be DIGged, a number of non-knowledgeable so-called activists from Palm Springs chastised me rather sharply, and in rather primitive terms. Having come very late to the cause, these activists did not know whereof they spoke. That I might thus feel somewhat vindicated is only natural under the circumstances. Sometimes it’s nice to be right.
And in truth, Dennis Hollingsworth’s bull-in-the-china-shop intrusion into the case represents an almost textbook example of what the law might refer to as “officious intermeddling.” Hollingsworth had no real stake in the litigation, but he was a termed out Republican State Senator looking for some new cause to which he could nail the colors of his dwindling political future. He had no demonstrable nexus to the litigation which would have given him any standing to butt in. If the Court chooses to DIG the case, it may well represent the most expedient solution for a Court whose credibility has come into serious question.
If Hollingsworth is DIGged, the Court might choose to swing for the fences in U.S. v. Windsor (the DOMA case) and issue a ruling that attempts to settle the vexed issue of same-gender marriage once and for all. If the Court rules for us, it may well be the queer nation’s Brown v. Board of Education; if the result goes the other way, it may well be our Dred Scott.
Given that the Roberts Court has established something of a reputation for being a reliable right-wing tribunal, today’s decision in Shelby County v. Holder, which effectively gutted the Voting Rights Act, has not surprisingly sent a current of disquiet through much of America’s queer nation; if the court can deliver such a victory to the American right and the GOP on the issue of voting, what might it be prepared to do to America’s queerfolk?
Still, even if the Court upholds DOMA and Prop. 8, the status quo for queer Americans may well remain largely unchanged. Certainly, an adverse decision will embolden our adversaries in state legislatures, yet there will still remain jurisdictions where marriage equality is a reality. In blue states, progress toward marriage equality will probably continue as a matter of state law. In red states, right-wing legislators will no doubt continue their monomaniacal effort to march us right back into the closet and to jam us so far into the back thereof that we may never again see the light of day.
On the other hand, if the Court rules favorably for marriage, it will put America’s queerfolk in the somewhat equivocal position of having to rewrite a large part of our vocabulary of relationships, and of coming to terms with having options millions of us never thought we would have. If, to a certain extent, we have made a virtue of the crabbed necessity of not having the option of marriage, a pro-marriage holding in either Hollingsworth or U.S. v. Windsor will certainly upset that applecart.
No matter what happens, tomorrow will be a day of change for America’s queer nation.
I may not sleep well tonight.
Tomorrow. We’ll know tomorrow.
-xxx-
PAUL S. MARCHAND is an attorney who lives in practices in Cathedral City, where he served two terms on the city council. He has been a marriage equality activist for two decades. The views herein are his own, and are not intended as legal advice.
By: Paul S. Marchand
Tomorrow.
The long-awaited Supreme Court decisions on marriage will come tomorrow, on the last day of the Court’s 2012 Term.
It’s not unreasonable to imagine that all over the country, queerfolk are finding themselves in a state of fretful, ambiguous, sleep-deprived anticipation.
Already, speculation about the possible outcome of the marriage cases has become something of a cottage industry of prognostication. As Justice Ruth Bader Ginsburg has observed, those who know aren’t talking, and those who are talking don’t know.
Nonetheless, one can feel a certain degree of vindication that a number of mainstream observers and commentators have begun, in recent days, to ventilate the possibility -- one that I had ventilated a number of months ago -- that the Court may dispose of the Proposition 8 case, Hollingsworth v. Perry, by dismissing Hollingsworth’s petition for certiorari as having been “improperly granted,” or DIGging it. When I suggested that Hollingsworth might be DIGged, a number of non-knowledgeable so-called activists from Palm Springs chastised me rather sharply, and in rather primitive terms. Having come very late to the cause, these activists did not know whereof they spoke. That I might thus feel somewhat vindicated is only natural under the circumstances. Sometimes it’s nice to be right.
And in truth, Dennis Hollingsworth’s bull-in-the-china-shop intrusion into the case represents an almost textbook example of what the law might refer to as “officious intermeddling.” Hollingsworth had no real stake in the litigation, but he was a termed out Republican State Senator looking for some new cause to which he could nail the colors of his dwindling political future. He had no demonstrable nexus to the litigation which would have given him any standing to butt in. If the Court chooses to DIG the case, it may well represent the most expedient solution for a Court whose credibility has come into serious question.
If Hollingsworth is DIGged, the Court might choose to swing for the fences in U.S. v. Windsor (the DOMA case) and issue a ruling that attempts to settle the vexed issue of same-gender marriage once and for all. If the Court rules for us, it may well be the queer nation’s Brown v. Board of Education; if the result goes the other way, it may well be our Dred Scott.
Given that the Roberts Court has established something of a reputation for being a reliable right-wing tribunal, today’s decision in Shelby County v. Holder, which effectively gutted the Voting Rights Act, has not surprisingly sent a current of disquiet through much of America’s queer nation; if the court can deliver such a victory to the American right and the GOP on the issue of voting, what might it be prepared to do to America’s queerfolk?
Still, even if the Court upholds DOMA and Prop. 8, the status quo for queer Americans may well remain largely unchanged. Certainly, an adverse decision will embolden our adversaries in state legislatures, yet there will still remain jurisdictions where marriage equality is a reality. In blue states, progress toward marriage equality will probably continue as a matter of state law. In red states, right-wing legislators will no doubt continue their monomaniacal effort to march us right back into the closet and to jam us so far into the back thereof that we may never again see the light of day.
On the other hand, if the Court rules favorably for marriage, it will put America’s queerfolk in the somewhat equivocal position of having to rewrite a large part of our vocabulary of relationships, and of coming to terms with having options millions of us never thought we would have. If, to a certain extent, we have made a virtue of the crabbed necessity of not having the option of marriage, a pro-marriage holding in either Hollingsworth or U.S. v. Windsor will certainly upset that applecart.
No matter what happens, tomorrow will be a day of change for America’s queer nation.
I may not sleep well tonight.
Tomorrow. We’ll know tomorrow.
-xxx-
PAUL S. MARCHAND is an attorney who lives in practices in Cathedral City, where he served two terms on the city council. He has been a marriage equality activist for two decades. The views herein are his own, and are not intended as legal advice.
Wednesday, June 19, 2013
THINGS FALL APART:
How Change Communities Sabotage Themselves
Summary: Change communities sabotage themselves by falling out over trifles. The felt need of many in change communities to engage in sterile recrimination among themselves over tone and language undermines the will to cohesion on which critical mass depends. Without critical mass, the change we seek cannot happen. Call it the Austria-hungry complex, where the hatred Austria-Hungary’s squabbling nationalities bore each other prior to World War I exceeded their hatred of Vienna, and helped keep the Danubian monarchy alive into the closing days of that conflict. Where hypersensitive, hyperventilating umbrage-takers and fight-pickers hijack a movement, no critical mass is possible, and what could have been a successful community-based movement or bloc fragments and dissolves. The enemies of progress prosper when change communities fall apart. Is it any wonder that a lot of queerfolk prefer to avoid such frivolous controversies, and to tend their own private gardens?
-----------------------
By: Paul S. Marchand
A prophet is not without honour, but in his own country, and among his own kin, and in his own house. Mark 6:4
No man is a hero to his mishpokhe. -Yiddish proverb
Change communities (i.e. groups or coalitions of like-minded individuals seeking to alter established dispensations) often sabotage themselves by falling out over trifles, descending into purposeless backbiting and infighting. Like-minded people flee from consensus and seek discord. Where no discord exists, it will be fabricated.
In almost any Usenet discussion thread, including threads on Facebook, the progress by which consensus breaks down can be easily detected just by reading the posts in the discussion thread. Commentor A will post or comment. Commentor B will take exception to the tone or content of A’s comment and the flame war will be well and truly underway. No matter how uncontroversial or anodyne A’s comment may have been, ineluctably there will be someone to take offense, and sadly, it is the hypersensitive umbrage-takers or fight-pickers who often wind up hijacking comment or Usenet discussion threads, indeed, entire movements.
Such tendencies particularly show up when there may be matters of public or political interest under discussion. The briefest visit to the discussion threads of the Los Angeles Times or the Desert Sun will disclose the inevitable tendency of comment threads to veer toward angry denunciations of the President, or toward off-topic personal attacks on other commentors on the thread. Moreover, the degree of emotional capital certain commentors will invest in their posts is often in inverse proportion to the relevancy or importance of the original news item. When, to cite a recent example, a comment thread on the use of Wikipedia in schools degenerated into exchanges of threats of violence, it was not difficult to conclude that way too much emotional capital was in play.
Yet, my disappointment is not with the inevitable inability of participants in a Usenet discussion thread to stay focused on the original matter under discussion, any more than it is a function of my deep suspicion of any invocation of Godwin’s law, which postulates that as the length of any Usenet discussion group increases, the probability of comparisons involving Hitler or Nazis approaches one.
Rather, my disappointment is more in the way like-minded people flee from consensus and eagerly set up barriers to joint action by engaging in self-sabotaging infighting that inevitably breaks the consensus, undermines collegiality, and destroys friendships. Moreover, many participants in any kind of consensus or movement group find the courage of conviction somewhat difficult to muster, and their want of such courage often manifests itself in the form of prim little attacks upon the tone and manner in which others express their views.
Indeed, “I agree with you, but I don’t like your tone,” has become the bane of just about any effort to organize joint action. No sooner will a more zealous and intrepid soul venture an opinion than do more timid souls emerge to find fault, and to attempt to police others’ tone. In fine, it is hard to muster any kind of commitment or conviction when fellow members of the change community are busily taking one to task over “tone.”
A sentiment often attributed to Edmund Burke holds that all that is necessary for evil to triumph is for good persons to do nothing. (Originally, Burke is said to have used the word “men” in its all-inclusive and traditional signification. I changed it to “persons” precisely because I know that if I were to use the word “men” someone, somewhere would take umbrage and spin out of my word choice of whole lengthy attack on my sexist male chauvinist, piggery, flaming me in the process to a well done crisp, and utterly losing sight of the issue under discussion.) The corollary here is that evil triumphs when good people fight among one another over tone, word choice, or irrelevant, overwhelm-the-main-event sideshows.
So, if I sound a little despairing, it is because I am. Former Dean Alan Jones of San Francisco’s Grace Cathedral once observed that we live in an age in which everything is permitted, but nothing is forgiven. We certainly live in an age in which paragons of dust jacket erudition or would-be punctuation police either react viscerally to summaries and blurbs or flyspeck written material looking for words or phrases to which they can then take histrionic exception, flaming the author to a well done crisp.
Yet what comes of unproductive flame wars and testy exchanges? In many communities, civic minded citizens attempt to coalesce, as Gandhi once counseled, to be the change they seek. Yet, such efforts often fail because group cohesion often takes second place to gratifying the felt need of specific individuals to be seen to be right (which is apparently more important to them than doing right), score points, and police the tone or thinking of other participants in the effort. When, to cite a recent example, a commentor spins an entire rant out of the use of the phrase “make an honest man out of him” in remarks about marriage, where it is often said that to marry someone is “to make an honest man [or woman] of him [or her],” you can tell that the commentor has either missed the author’s point, or that the commentor is deliberately spoiling for a fight. Given the prevalence of hypersensitive, hyperventilating commentary on the Internet, it’s hard to give such commentors the benefit of even the slightest doubt. Does such a commentor have a legitimate point, or is the commentor merely trying to hijack the discussion, creating a sideshow the commentor apparently hopes will overwhelm the main event?
Too often, change communities founder on the rock of their unwillingness to muster the will to cohesion upon which success and positive change depend. Call it the Austria-Hungary effect, thanks to which the Danubian Habsburg monarchy was able to hold itself together into the closing days of the Great War because the minority nationalities of the Monarchy hated each other more than they hated the Habsburgs.
Scripture tells us in Mark’s Gospel that “a prophet is not without honor, but in his own country.” Jesus having been Jewish, he might with a wry smile have agreed with the later Yiddish proverb “no man is a hero to his Mishpokhe (family).” Any movement, even if ultimately successful, ultimately falls prey to its own internal contradictions. When the internal contradictions arise before a change community can reach a critical mass of self-sustaining, long-term cohesiveness, the change community dissolves.
In the marriage-equality community, our movement --at least our movement in part of the Coachella Valley -- seems to have Balkanized end fragmented. An earlier post on this blog called forth just the sort of tone-based, often primitively personal, criticism that tends to reinforce the negative reputation which some parts of the queer community have for backbiting and recrimination. As Bernard Shaw once said of the Irish, put one queer on a spit and you can always find another queer to turn him.
If we are to ensure meaningful, positive change in our community, we will need to coalesce into a broad-based community movement whose members understand the importance of vigorous, zealous advocacy, organization, and action. Unfortunately, the recent flurry of flame wars and testy exchanges among those who should be at the forefront of being the change we seek engenders skepticism about the ability of the queer nation to stay focused on our long-term goal of full first-class citizenship. Is it any wonder that so many queerfolk prefer to tend their own private gardens rather than be caught up in the recrimination and backbiting that seems to emerge when we try to coalesce for change?
-xxx-
Paul S. Marchand is an attorney who lives and practices in Cathedral City. He does not live in Palm Springs. The views herein are his own and not anybody else’s, and he expects to be roundly attacked by hypersensitive umbrage-takers. Given what has happened of late, Mr. Marchand finds himself increasingly emotionally constipated, and has difficulty giving a shit. This post is an adaptation of an earlier post originally published under the headline “Austria-hungary All over Again: Why Cathedral City Endures Bad Government.” The views herein are his own, and not necessarily those of anybody else, particularly not angry flame-warriors in Palm Springs. They are not intended as legal advice.
Summary: Change communities sabotage themselves by falling out over trifles. The felt need of many in change communities to engage in sterile recrimination among themselves over tone and language undermines the will to cohesion on which critical mass depends. Without critical mass, the change we seek cannot happen. Call it the Austria-hungry complex, where the hatred Austria-Hungary’s squabbling nationalities bore each other prior to World War I exceeded their hatred of Vienna, and helped keep the Danubian monarchy alive into the closing days of that conflict. Where hypersensitive, hyperventilating umbrage-takers and fight-pickers hijack a movement, no critical mass is possible, and what could have been a successful community-based movement or bloc fragments and dissolves. The enemies of progress prosper when change communities fall apart. Is it any wonder that a lot of queerfolk prefer to avoid such frivolous controversies, and to tend their own private gardens?
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By: Paul S. Marchand
A prophet is not without honour, but in his own country, and among his own kin, and in his own house. Mark 6:4
No man is a hero to his mishpokhe. -Yiddish proverb
Change communities (i.e. groups or coalitions of like-minded individuals seeking to alter established dispensations) often sabotage themselves by falling out over trifles, descending into purposeless backbiting and infighting. Like-minded people flee from consensus and seek discord. Where no discord exists, it will be fabricated.
In almost any Usenet discussion thread, including threads on Facebook, the progress by which consensus breaks down can be easily detected just by reading the posts in the discussion thread. Commentor A will post or comment. Commentor B will take exception to the tone or content of A’s comment and the flame war will be well and truly underway. No matter how uncontroversial or anodyne A’s comment may have been, ineluctably there will be someone to take offense, and sadly, it is the hypersensitive umbrage-takers or fight-pickers who often wind up hijacking comment or Usenet discussion threads, indeed, entire movements.
Such tendencies particularly show up when there may be matters of public or political interest under discussion. The briefest visit to the discussion threads of the Los Angeles Times or the Desert Sun will disclose the inevitable tendency of comment threads to veer toward angry denunciations of the President, or toward off-topic personal attacks on other commentors on the thread. Moreover, the degree of emotional capital certain commentors will invest in their posts is often in inverse proportion to the relevancy or importance of the original news item. When, to cite a recent example, a comment thread on the use of Wikipedia in schools degenerated into exchanges of threats of violence, it was not difficult to conclude that way too much emotional capital was in play.
Yet, my disappointment is not with the inevitable inability of participants in a Usenet discussion thread to stay focused on the original matter under discussion, any more than it is a function of my deep suspicion of any invocation of Godwin’s law, which postulates that as the length of any Usenet discussion group increases, the probability of comparisons involving Hitler or Nazis approaches one.
Rather, my disappointment is more in the way like-minded people flee from consensus and eagerly set up barriers to joint action by engaging in self-sabotaging infighting that inevitably breaks the consensus, undermines collegiality, and destroys friendships. Moreover, many participants in any kind of consensus or movement group find the courage of conviction somewhat difficult to muster, and their want of such courage often manifests itself in the form of prim little attacks upon the tone and manner in which others express their views.
Indeed, “I agree with you, but I don’t like your tone,” has become the bane of just about any effort to organize joint action. No sooner will a more zealous and intrepid soul venture an opinion than do more timid souls emerge to find fault, and to attempt to police others’ tone. In fine, it is hard to muster any kind of commitment or conviction when fellow members of the change community are busily taking one to task over “tone.”
A sentiment often attributed to Edmund Burke holds that all that is necessary for evil to triumph is for good persons to do nothing. (Originally, Burke is said to have used the word “men” in its all-inclusive and traditional signification. I changed it to “persons” precisely because I know that if I were to use the word “men” someone, somewhere would take umbrage and spin out of my word choice of whole lengthy attack on my sexist male chauvinist, piggery, flaming me in the process to a well done crisp, and utterly losing sight of the issue under discussion.) The corollary here is that evil triumphs when good people fight among one another over tone, word choice, or irrelevant, overwhelm-the-main-event sideshows.
So, if I sound a little despairing, it is because I am. Former Dean Alan Jones of San Francisco’s Grace Cathedral once observed that we live in an age in which everything is permitted, but nothing is forgiven. We certainly live in an age in which paragons of dust jacket erudition or would-be punctuation police either react viscerally to summaries and blurbs or flyspeck written material looking for words or phrases to which they can then take histrionic exception, flaming the author to a well done crisp.
Yet what comes of unproductive flame wars and testy exchanges? In many communities, civic minded citizens attempt to coalesce, as Gandhi once counseled, to be the change they seek. Yet, such efforts often fail because group cohesion often takes second place to gratifying the felt need of specific individuals to be seen to be right (which is apparently more important to them than doing right), score points, and police the tone or thinking of other participants in the effort. When, to cite a recent example, a commentor spins an entire rant out of the use of the phrase “make an honest man out of him” in remarks about marriage, where it is often said that to marry someone is “to make an honest man [or woman] of him [or her],” you can tell that the commentor has either missed the author’s point, or that the commentor is deliberately spoiling for a fight. Given the prevalence of hypersensitive, hyperventilating commentary on the Internet, it’s hard to give such commentors the benefit of even the slightest doubt. Does such a commentor have a legitimate point, or is the commentor merely trying to hijack the discussion, creating a sideshow the commentor apparently hopes will overwhelm the main event?
Too often, change communities founder on the rock of their unwillingness to muster the will to cohesion upon which success and positive change depend. Call it the Austria-Hungary effect, thanks to which the Danubian Habsburg monarchy was able to hold itself together into the closing days of the Great War because the minority nationalities of the Monarchy hated each other more than they hated the Habsburgs.
Scripture tells us in Mark’s Gospel that “a prophet is not without honor, but in his own country.” Jesus having been Jewish, he might with a wry smile have agreed with the later Yiddish proverb “no man is a hero to his Mishpokhe (family).” Any movement, even if ultimately successful, ultimately falls prey to its own internal contradictions. When the internal contradictions arise before a change community can reach a critical mass of self-sustaining, long-term cohesiveness, the change community dissolves.
In the marriage-equality community, our movement --at least our movement in part of the Coachella Valley -- seems to have Balkanized end fragmented. An earlier post on this blog called forth just the sort of tone-based, often primitively personal, criticism that tends to reinforce the negative reputation which some parts of the queer community have for backbiting and recrimination. As Bernard Shaw once said of the Irish, put one queer on a spit and you can always find another queer to turn him.
If we are to ensure meaningful, positive change in our community, we will need to coalesce into a broad-based community movement whose members understand the importance of vigorous, zealous advocacy, organization, and action. Unfortunately, the recent flurry of flame wars and testy exchanges among those who should be at the forefront of being the change we seek engenders skepticism about the ability of the queer nation to stay focused on our long-term goal of full first-class citizenship. Is it any wonder that so many queerfolk prefer to tend their own private gardens rather than be caught up in the recrimination and backbiting that seems to emerge when we try to coalesce for change?
-xxx-
Paul S. Marchand is an attorney who lives and practices in Cathedral City. He does not live in Palm Springs. The views herein are his own and not anybody else’s, and he expects to be roundly attacked by hypersensitive umbrage-takers. Given what has happened of late, Mr. Marchand finds himself increasingly emotionally constipated, and has difficulty giving a shit. This post is an adaptation of an earlier post originally published under the headline “Austria-hungary All over Again: Why Cathedral City Endures Bad Government.” The views herein are his own, and not necessarily those of anybody else, particularly not angry flame-warriors in Palm Springs. They are not intended as legal advice.
Sunday, June 16, 2013
WAITING FOR THE OTHER SHOE TO DROP
Will Marriage Equality turn Queer Boys into Victorians?
Summary: If the Supreme Court finds that queerfolk have the right to marry, it will fundamentally alter the dynamic of America’s queer nation. Will sex continue to be a way gay dudes can share pleasant recreation together without necessarily entering into an institutionalized, legally-significant, relationship, or will two gay men sacking out together necessarily become a precursor to marriage? Will I have to make an honest man of the dude I may have had sex with last night? If the court rules in favor of marriage, we will find ourselves entering a curious and uncharted country composed in equal measure of anticipation and apprehension, an unexplored country in which we have no precedent to guide us, where we must make up new rules as we go along. It will be an uncertain and delicate time for the happy-go-lucky, the sexually adventurous, or the commitment-phobic.
By: Paul S. Marchand
“Be careful what you ask for, you just might get it.”
-Variously attributed so-called conventional wisdom
“After a time, you may find that having is not so pleasing a thing, after all, as wanting. It is not logical, but it is often true.”
-Star Trek: The Original Series, “Amok Time.” Teleplay by Theodore Sturgeon
"a beginning is a delicate time."
-Frank Herbert, Dune.
As the queer nation counts down toward the so-called Day of Decision when the Supreme Court announces its rulings in Hollingsworth v. Perry and U.S. v. Windsor, the two marriage cases, we find ourselves in a curious and uncharted country composed in equal measure of anticipation and apprehension, an unexplored country with neither precedent nor rules to guide us.
An old and dear friend --- a straight ally from the time many of us were more afraid of dying than were contemplating the possibility of marriage --- recently asked me a question I almost wish he had not asked. After having fought for so long for marriage, what will we do if the Court decides in our favor? Is it possible that the worst outcome might be “yes?”
Perhaps we should be careful what we ask for. If the Court finds that queerfolk have as much right to marry as do our straight neighbors, it is not unreasonable to foresee that we may find ourselves facing societal encouragement or even pressure to marry. If I take an appealing dude to bed, do I then have to make an honest man out of him? Or do he and I get a certain number of mulligans, a sort of free zone in which my dude and I may explore our personal and sexual compatibility without having to contemplate making honest men of one another?
The coming of marital liberty to the queer nation may well radically alter how gay men interact intimately with one another. While asking the fraught question of whether sex must necessarily open up a conversation about marriage may seem a bit much, a favorable decision in Hollingsworth nonetheless puts the issue front and center.
Now we should acknowledge that among our straight neighbors, there is a great deal of shared intimacy outside or even in spite of the existence of pretty much unrestricted access to marriage. Yet, for us, the sheer novelty of marital liberty may have the effect of raising a whole new set of potentially perverse and Victorian expectations with respect to congruency between sexual intimacy and marriage. Will we be able to continue to speak a language of sexual intimacy unconstrained by the need to institutionalize it? Will sex continue to be, as it has been for many of us, a pleasant form of recreation to be shared with a partner with whom we may not have a desire to form an institutionalized, legally significant, relationship, or will man-to-man intimacy necessarily become a precursor to marriage?
Not having the faculty of marriage has, to some extent, had a remarkably liberating effect upon our discourse. Queer pundit Andrew Sullivan has suggested -- and perhaps with some justice -- that one of the most distinctive marks of differencing between the gay community (and I address specifically that part of the LGBTQ community consisting of gay men) and our straight neighbors is our substantially greater degree of candor concerning things sexual. Because heretofore the faculty of marriage has been denied us, we have not felt ourselves constrained from discussing sex and sexuality more openly than do our married, straight neighbors. Will we find that saying “I do” in a marriage ceremony leads to saying “I mustn’t” when it comes to talking about sexual intimacy in a gay context?
I cannot know what awaits us if the Supreme Court decides that Ruth and Naomi or Jonathan and David are constitutionally entitled to the same liberty of marital contract enjoyed by their straight neighbors. But I do know that if the Day of Decision has the effect of lifting the ban, whether here in California or throughout the nation, our queer lives will never be the same.
It may not work to be commitment-phobic in whatever brave new world awaits us; confirmed bachelors take note. We may find ourselves living in a beginning, and as Frank Herbert observed in Dune, "a beginning is a delicate time."
After a time, we may find that having is not so pleasing a thing, after all, as wanting. It is not logical, but it is often true.
-XXX-
Paul S. Marchand is an attorney who lives in practices in Cathedral City, California. He served two terms on the city Council there, and was one of the first attorneys in California to litigate a marriage case, back two decades ago when he was slimmer and better looking than he is now. The matters discussed herein represent his own views, and are not intended as legal advice.
Summary: If the Supreme Court finds that queerfolk have the right to marry, it will fundamentally alter the dynamic of America’s queer nation. Will sex continue to be a way gay dudes can share pleasant recreation together without necessarily entering into an institutionalized, legally-significant, relationship, or will two gay men sacking out together necessarily become a precursor to marriage? Will I have to make an honest man of the dude I may have had sex with last night? If the court rules in favor of marriage, we will find ourselves entering a curious and uncharted country composed in equal measure of anticipation and apprehension, an unexplored country in which we have no precedent to guide us, where we must make up new rules as we go along. It will be an uncertain and delicate time for the happy-go-lucky, the sexually adventurous, or the commitment-phobic.
By: Paul S. Marchand
“Be careful what you ask for, you just might get it.”
-Variously attributed so-called conventional wisdom
“After a time, you may find that having is not so pleasing a thing, after all, as wanting. It is not logical, but it is often true.”
-Star Trek: The Original Series, “Amok Time.” Teleplay by Theodore Sturgeon
"a beginning is a delicate time."
-Frank Herbert, Dune.
As the queer nation counts down toward the so-called Day of Decision when the Supreme Court announces its rulings in Hollingsworth v. Perry and U.S. v. Windsor, the two marriage cases, we find ourselves in a curious and uncharted country composed in equal measure of anticipation and apprehension, an unexplored country with neither precedent nor rules to guide us.
An old and dear friend --- a straight ally from the time many of us were more afraid of dying than were contemplating the possibility of marriage --- recently asked me a question I almost wish he had not asked. After having fought for so long for marriage, what will we do if the Court decides in our favor? Is it possible that the worst outcome might be “yes?”
Perhaps we should be careful what we ask for. If the Court finds that queerfolk have as much right to marry as do our straight neighbors, it is not unreasonable to foresee that we may find ourselves facing societal encouragement or even pressure to marry. If I take an appealing dude to bed, do I then have to make an honest man out of him? Or do he and I get a certain number of mulligans, a sort of free zone in which my dude and I may explore our personal and sexual compatibility without having to contemplate making honest men of one another?
The coming of marital liberty to the queer nation may well radically alter how gay men interact intimately with one another. While asking the fraught question of whether sex must necessarily open up a conversation about marriage may seem a bit much, a favorable decision in Hollingsworth nonetheless puts the issue front and center.
Now we should acknowledge that among our straight neighbors, there is a great deal of shared intimacy outside or even in spite of the existence of pretty much unrestricted access to marriage. Yet, for us, the sheer novelty of marital liberty may have the effect of raising a whole new set of potentially perverse and Victorian expectations with respect to congruency between sexual intimacy and marriage. Will we be able to continue to speak a language of sexual intimacy unconstrained by the need to institutionalize it? Will sex continue to be, as it has been for many of us, a pleasant form of recreation to be shared with a partner with whom we may not have a desire to form an institutionalized, legally significant, relationship, or will man-to-man intimacy necessarily become a precursor to marriage?
Not having the faculty of marriage has, to some extent, had a remarkably liberating effect upon our discourse. Queer pundit Andrew Sullivan has suggested -- and perhaps with some justice -- that one of the most distinctive marks of differencing between the gay community (and I address specifically that part of the LGBTQ community consisting of gay men) and our straight neighbors is our substantially greater degree of candor concerning things sexual. Because heretofore the faculty of marriage has been denied us, we have not felt ourselves constrained from discussing sex and sexuality more openly than do our married, straight neighbors. Will we find that saying “I do” in a marriage ceremony leads to saying “I mustn’t” when it comes to talking about sexual intimacy in a gay context?
I cannot know what awaits us if the Supreme Court decides that Ruth and Naomi or Jonathan and David are constitutionally entitled to the same liberty of marital contract enjoyed by their straight neighbors. But I do know that if the Day of Decision has the effect of lifting the ban, whether here in California or throughout the nation, our queer lives will never be the same.
It may not work to be commitment-phobic in whatever brave new world awaits us; confirmed bachelors take note. We may find ourselves living in a beginning, and as Frank Herbert observed in Dune, "a beginning is a delicate time."
After a time, we may find that having is not so pleasing a thing, after all, as wanting. It is not logical, but it is often true.
-XXX-
Paul S. Marchand is an attorney who lives in practices in Cathedral City, California. He served two terms on the city Council there, and was one of the first attorneys in California to litigate a marriage case, back two decades ago when he was slimmer and better looking than he is now. The matters discussed herein represent his own views, and are not intended as legal advice.
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