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A California Court has ruled that proposition 8 — which, if passed, will change the California constitution to eliminate the right of same-sex couples to marry — can be officially described as: “Changes California Constitution to eliminate the right of same-sex couples to marry.”

The folks behind proposition 8 had sued to… well, to prevent voters from being told exactly what their measure does. Apparently they feel that the more voters know what proposition 8 does, the fewer will vote for it.

Best line from the judge’s ruling (pdf link):

There is nothing inherently argumentative or prejudicial about transitive verbs, and the Court is not willing to fashion a rule that would require the Attorney General to engage in useless nominalization.

Personally, I’d enjoy watching the news if high government officials were required to engage in useless nominalization at all times.

I’m not 100 percent sure, but I think this is the first national poll to have support for marriage equality even with opposition:

Time Magazine, 808 RV, July 31-August 4, 2008

Should gay couples be allowed to marry?

Yes 47%
No 47%
Don’t Know 6%

Support anti-gay marriage constitutional amendment?

Yes 35%
No 58%
Don’t Know 7%

The numbers on support for marriage equality have moved rapidly and decisively, and the trendlines are unmistakable. Despite the unwillingness of Democrats to take any sort of leadership role on this issue, the American people have been willing to move toward tolerance all on our own. No doubt, the experiences in Massachusetts and California — where gay and lesbian couples have now been married without the states bursting into flame — have been instructive. After all, it’s now apparent that gay marriage is a lot like straight marriage: it’s two people who love each other and want to bind their futures together. It’s not scary, it’s sweet.

I’d love to think that numbers like this would finally convince Democratic politicians to do what they should have been doing five years ago: turn and go on offense, push for marriage equality, work assiduously to ensure that the federal government recognize marriages conducted in states where marriage equality has been achieved. I’d love to think that, but I know better. At the very least, it looks like the American people are willing to head in that direction with or without leadership. As has been evident for some time, marriage equality is coming. It’s just a question of when.

It’s obvious¹ that laws that allow only opposite-sex couples to marry are sex discrimination. If an employer refuses to hire Mary, but is willing to hire equally-qualified Bob, that’s sex discrimination; if a state refuses to marry Mary to Lucy, but is willing to marry Bob to Lucy, that is likewise sex discrimination.

I’ve been disappointed that this argument hasn’t had more traction in the debate over same-sex marraige, either in popular discussion or in the courts.

Andrew Koppelman writes:

It remains puzzling why the California Supreme Court, in its recent same-sex marriage decision, rejected the most formally powerful argument for its result: the argument that denying licenses to same-sex couples is sex discrimination. The weakness is made clear in this recent column by Steve Chapman, who writes: “while the California Constitution forbids discrimination on the basis of ‘sex, race, creed, color, or national or ethnic origin,’ it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.” As I’ve explained earlier, the Court had to work very hard to reject the sex discrimination argument, using tired old arguments that had been used long ago to defend miscegenation laws: since both blacks and whites [both men and women] are equally burdened, there’s no discrimination. […]

I don’t understand the resistance to the idea that the homosexuality taboo is about sexism. Homosexuality and deviation from gender norms (which, of course, are relentlessly hierarchical) are so tightly connected with each other in popular culture that each is normally and easily taken as a marker for the other. A “faggot” or a “dyke” is a person who fails to conform to normal gender norms; the term is routinely applied to people without regard to their sexual behavior.

The court’s reluctance is, I think, evidence that Jack Balkin is right about the dependence of the law on the wider culture in order to determine the crucial question of which arguments are within or outside the bounds of legitimate argumentation. The sex discrimination argument is unfamiliar to people. A few of us have made it in academic journals, but it hasn’t been trumpeted much in the popular culture, and so judges, who one might have expected to be influenced primarily by the soundness of legal argumentation as such, shy away from it. It’s not enough to craft good arguments. You need to be out there, working the media and making these claims repeatedly, thereby making them familiar.

1. Obvious to me, at any rate.

Glenn Greenwald responds to the “judicial tyranny” objection to the California Supreme Court’s ruling on same-sex marriage:

This reasoning — that it undermines “democracy” and constitutes judicial tyranny when a court strikes down a popular law — is so pervasive every time there is a controversial court decision. But it is as woefully misinformed as it is common.

That a law invalidated by a court is supported by a large majority is not an argument supporting the conclusion that the court’s decision was wrong. Central to our system of government is the premise that there are laws which even the largest majorities are prohibited from enacting because such laws violate the constitutional rights of minorities. Thus, the percentage of people who support the law in question, and how lengthy and painstaking the process was that led to the law’s enactment, is totally irrelevant in assessing the propriety of a court decision striking down that law on constitutional grounds.

Contrary to Wittes’ extremely confused argument, a court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government. That’s because, strictly speaking, the U.S. is not a “democracy” as much as it a “constitutional republic,” precisely because constitutional guarantees trump democratic majorities.

Oh my fucking God, yay! It’s so nice to have GOOD news!

From the San Jose Mercury News:

A sharply divided California Supreme Court today legalized same-sex marriage, a historic ruling that will allow gay and lesbian couples across the state to wed as soon as next month and inflame the social, political and moral debate over gay unions.

In a 4-3 ruling written by Chief Justice Ronald George, the Supreme Court struck down California laws that restrict marriage to heterosexual couples, finding that it is unconstitutional to deprive gays and lesbians of the equal right to walk down the aisle with a marriage license in hand.

The California and Massachusetts Supreme Courts are now the only top courts in the country to uphold the right of gay couples to marry.

“The California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples,” the court observed in a 121-page decision.

The reaction was immediate.

A spokesman for San Francisco Mayor Gavin Newsom sent a simple e-mail to his press staff: “We won.”

When the news was signaled to the more than 100 people gathered on the steps outside the federal courthouse in San Francisco by a thumbs up, they let out whoops of joy, and some broke out in tears.

From the ruling written by Chief Justice Ronald George: “Our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and more generally, that an individual’s sexual orientation like a person’s race or gender does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental consitutional right to form a family relationship, the California constitution properly must be interpreted to guarantee this basic civil right to all Californians whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.”

Mildred Loving would be happy today.

UPDATE: a few more choice bits from the ruling, as selected by my fiance.

“One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignityand respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution. […]

First, the exclusion of same-sex couples from the designation of marriage clearly is not order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.

Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.

Finally, retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest.

Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

RICHMOND, Va. - Mildred Loving, a black woman whose challenge to Virginia’s ban on interracial marriage led to a landmark Supreme Court ruling striking down such laws nationwide, has died, her daughter said Monday.

Almost a year ago, on the 40th anniversary of the Loving v Virginia decision, Mrs. Loving released a statement. Here’s part of what she said:

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

I hadn’t realized that Mildred Loving was a supporter of same-sex marriage rights. She’d be a hero regardless, but finding that out makes me admire her even more.

(I’m already wincing at the thought of the political cartoons that will be appearing. My guess is that several cartoonists will do Mildred and Richard, reunited at the Pearly Gates, while Saint Peter comments that no one will be able to keep them apart now.)

Related link: NPR page on the 40th anniversary.

Curtsy: Shakes.

Once upon a time, social scientists showed that couples who lived together before marrying, were more likely to divorce than couples who didn’t live together until marrying. This was true in Europe, Canada and the USA.

This surprised a bunch of people, and seemed to disprove the “try it on before you buy it” theory of marriage.

This did, however, greatly please those social conservatives who prefer to go though life in a constant panic, screaming “the marriage rates are falling! The marriage rates are falling!” They felt this proved their theory that sex without God’s blessing introduces some sort of intrinsic rot into marriages and made them more likely failures.

Then the shacking up effect seemed to go away in some of Europe. For instance, a social scientist showed that although it used to be the case that shacking up made divorce more likely in Denmark, once shacking up became more commonplace, it stopped having any relationship with divorce. Couples who shacked up before marrying were no more likely to get divorced than couples who lived apart until the wedding.

This supports the theory that when shacking up is a radical, unusual thing to do, the people who self-select into shacking up are also the people who, due to their unconventional preferences, are less likely to remain married.

Now shacking up has become the norm in the USA; slightly over half of all American women live with someone before they get married. And the most recent data (.pdf link) shows that Americans who shack up before marrying aren’t more likely to get divorced.

This seems to put the kibosh on the “living in sin = doomed to divorce” theory.

Oh, and Americans getting married for the first time have a 33% chance of getting divorced someday — not “over half,” as is often claimed. In fact, the US divorce rate is lower than it’s been in decades — and it’s lowest of all in Massachusetts, home of same-sex marriage. Wait, wasn’t same-sex marriage supposed to destroy marriage rates?

For more discussion, see Pandagon.

Curtsy: Ezra Klein, Marginal Revolution.

Senator Barack Obama (D-IL), speaking to rally attendees in Medford, Oregon on Saturday, took issue with how recent political campaigns have used wedge issues to divide the electorate, but have ultimately done little to make a real difference, especially when there are more important things to worry about.

“I mean, think about what these last few election cycles have been about,” the Senator said. “We argue about immigration, but we don’t try to solve the immigration problem. It’s an argument that is all about people’s passions instead of trying to figure it out.

“We argue about gay marriage. You know, in the meantime the planet is, you know, potentially being destroyed. We’ve got a war that is bankrupting us. And we’re going to argue about gay marriage? I mean, that doesn’t make any sense.”

I have three responses to Obama:

1) It’s not an either-or choice. Caring passionately about equal marriage rights doesn’t preclude me from caring passionately about Iraq, or about the environment.

2) It’s too easy for heterosexuals to decide that equal legal rights for lesbians and gays is trivial. Obama has never been treated as a second-class citizen because of his choice of life partner. He doesn’t have to worry about whether the hospital will acknowlege him as a relative if Michelle is injured or sick. He doesn’t have to worry about his two girls receiving the message that their family is less legitimate and real than their peers’ families because of the sexes of their parents.

So of course he sees the issue as trivial. But that doesn’t mean it is.

3) Fuck you, Barack Obama. Seriously.

* * *

P.S. And a word to Clinton supporters: Try not to get smug over this. Clinton never has and never will lift a finger to support equal marriage rights for lesbians and gays, and she never will (until she retires from politics, a la Al Gore.) Clinton and Obama both suck on this regard.

But unless Obama clarifies his statement, I think he’s the suckier of the two.

UPDATE: By the way, an anti-gay-marriage constitutional amendment, which is worded so broadly that it would probably effect civil unions, just passed out of committee in the Pennsylvania Senate. Since both Clinton and Obama are very concerned with Pennsylvania right now, let’s see if either of them has the guts to speak out against this. I bet that neither of them will.

I just received a phone call from the National Republican Congressional Committee (NRCC), who wanted to ask me an important poll question: “As a Republican, are you willing to cede the White House to Hilary Clinton in 2008?” I told them no.

The call also featured a recorded message from Representative Tom Cole. According to Cole, “True conservatives in Washington have been quiet for too long” when it comes to criticizing Hilary Clinton and the liberals, but they’re going to stop being so reticent in 2008, if I help by donating some money. It strikes me that Cole himself is a conservative, and he spends most of his time in Washington. Why does he need my money to cease being quiet — couldn’t he just, you know, start talking?

Also, Cole says Clinton intends to legalize gay marriage. I wish! Not for the first time, I find myself wishing that the fantasy Democrats conservatives argue against existed in real life, so I could vote for them.

From the Boston Herald:

A Boston man who failed the Massachusetts bar exam has filed a federal lawsuit claiming his refusal to answer a test question - related to gay marriage - caused him to flunk the test.

Stephen Dunne, 30, is suing the Massachusetts Board of Bar Examiners and the Massachusetts Supreme Judicial Court, claiming the “inappropriate” test question violated his religious convictions and his First Amendment rights. Answering the question, Dunne claims, would imply he endorsed gay marriage and parenting.

The suit also challenges the constitutionality of the 2003 SJC ruling that made Massachusetts the nation’s first state to legalize same-sex marriage.

Dunne, who describes himself as a Christian and a Democrat, is seeking $9.75 million in damages and wants a jury to prohibit the Board of Bar Examiners from considering the question in his passage of the exam and to order it removed from all future exams.

The lunacy of Dunne’s position is obvious; because a lawyer disagrees with the law doesn’t exempt her from knowing the law. Dunne’s moral claim — that answering a factual question about a law implies agreement with the law — is similarly groundless.

This illustrates the sense of entitlement held by many fundamentalist Christians today. Consider the fundamentalist pharmacists and emergency room doctors who refuse to fulfill the duties of their job, but push for laws exempting them from the consequences of that decision; or the Christians who have objected to biology exams that ask questions about evolution.

No one can force Dunne to answer an exam question he prefers to leave blank. But being Christian shouldn’t exempt Dunne from having to pass the bar exam if he wants to practice law. Unfortunately, Dunne’s attitude — which can be summed up as “let’s make a special law exempting Christians from the ordinary consequences of not meeting requirements” — seems increasingly common among right-wing Christians.