Two More Losses for Bigotry

A couple weeks ago, I noted that gay rights are on something of a winning streak in the Courts. That winning streak continues with two recent court rulings, one striking down Florida’s ban on gay adoptions, and another one ordering the reinstatement of a lesbian soldier discharged under DADT.

In most of our courts across the land, legalized bigotry against homosexuals is being hunted down and eliminated. Let the right-wingers froth at the mouth. Let the fake family values folks who lust and covet daily bewail their incapacity to exercise their hypocrisy as a matter of law. Watching the forces of bigotry lose is every bit as satisfying as watching Notre Dame fail on the gridiron.

The utter and complete irrationality of anti-gay laws was fully revealed in Florida, where even felons could be considered as adoptive parents on a case-by-case basis, but not homosexuals. Strict scrutiny of the laws may not be needed–they can’t even pass the rational basis test.

But this winning streak actually underscores my concern about the Prop 8 case. When all the courts in the country, state and federal, are consistently ruling the same way, it usually means there’s a growing legal consensus on an issue, and eventually when that issue reaches the Supreme Court, they look around and see a uniform landscape of case law supporting but one single decision. With the way things are going, had the Prop 8 case come some years from now–perhaps not too many–I might have some confidence that the Supreme Court would follow the lead of the lower courts.

But I worry that the Prop 8 case has come too soon, and moved too fast. The Supremes have not had enough time to soak in the significance and legal meaning of all these other cases. Or perhaps, to joylessly join in the legal community’s favorite game, Justice Kennedy hasn’t had time to soak it all in.

Or perhaps he has. Or they have. It’s clear now that when Prop 8 reaches the Supreme Court, there will be a library of legal rulings against its constitutionality. And against that will be nothing but the claim of “the 14th Amendment doesn’t specify gay rights, so maybe ‘no state shall deny equal protection of the laws’ actually has an exception.” Scalia will bite, being a man who disgracefully favors morality over law. But how many others will?

At this point we obviously don’t know, so I wouldn’t presume to guess. But I will presume to guess that if this Supreme Court does uphold Prop 8, they will be in the same position as the Court that upheld anti-sodomy laws in Bowers v. Hardwick–a dinosaur soon to be extinct.

Rally your troops as best you can, forces of anti-gay bigotry. It’s only a matter of time. I’ve got my 64 ounce beer and a giant pretzel, and I’m sitting down by the goal-line watching my team march down the field. And the home crowd is getting ready to sing, “nah nah nah nah, hey hey, goodbye.”


About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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26 Responses to Two More Losses for Bigotry

  1. Heidegger says:

    James Hanley, a few days ago I had asked you if civil unions/partnerships were available to heterosexual couples in states that allowed them to same-sex couples. Your response was this:

    “Regarding your question…I always hesitate to make blanket statements about state laws, because the variation can be so dramatic from state to state (and who has time to follow what all 50 states are doing on any variety of topics?). But I think the answer, cautiously, is, yes, in general heterosexual couples can get domestic partnerships and civil unions when they are available.”

    Well, guess what—they’re not. Not one single state out of 50 allows civil unions for straight couples. Not only that, but senior citizens are also denied the right to have civil unions. That’s amazing, isn’t it? If that’s not discrimination, what is? Only three countries in the world recognize civil unions for heterosexual couples–New Zealand, Quebec, and Uruguay. Of course, you might say. “well, they can get married, can’t they?” Yes, they can, but there are a thousand reasons, both financial and status of rights under CUs why couples might opt for the less cumbersome baggage of marriage. In France, the number of people participating in pacs–pact civil de solidarité” is skyrocketing to the point that there are now two pacs’ unions for every three traditional marriages. In a very odd way, this could strengthen the argument for SSM—I want to if you can figure out how. Quiz time….Professor!

  2. Heidegger says:

    I forgot to mention, I might be terribly wrong–this is just the info I was able to get Googling, so please, anyone, correct me if I’m wrong. The obvious discrimination could not be more blatant, otherwise, which I’m sure Mr. Hanley would also agree with me on. Hmm, then again, “agree with me on” and “Mr. Hanley” are words not usually, if ever, found in the same sentence.

  3. Very well put James. Thank you.

  4. James Hanley says:


    I did see that comment of yours and meant to respond, but got busy this past weekend. Assuming your information is correct, yes, I agree that it’s discrimination. It’s a byzantine structure in which we pile one discriminatory institution on top of another, so that we can make a pretense of not discriminating, while maintaining that original discriminatory structure intact.

    I do think it’s, as you say, amazing. And thank you for checking it out.

    I think what I may have been thinking of was San Francisco’s original domestic partners registry, which was open to all (except for the underage and those too closely related genetically). That’s assuming that I recall that one correctly.

  5. Heidegger says:

    James, thanks for the reply. That previous comment got quickly buried, and was so interested in your take on the issue, I posted it again here, on your recent post.

    What I’m still stuck on is this: What compelling reason is there for the state to overturn Prop. 8? The benefits granted to a married couple are extremely expensive–social security benefits, tax exemptions, health insurance, and without the possibility of procreation which is obviously a compelling state interest, why should sexual love between a same sex couple be the sole reason for the state to sanction and recognize this type of marriage? If sexual love is the overriding principle for sanctioning SSM, why not sexual love between two, three, four, people be given the same legitimacy? There is no reason a same-sex couple cannot live in a loving, committed relationship absent marriage. As cold as it sounds, what does SSM give to society that would make it a compelling enough reason to be recognized by the state?

  6. ppnl says:

    So why didn’t congress just repeal DADT? As I understand it over 60% of republicans and over 80% of democrats think it should be repealed. Could it be that neither party really wants it to be repealed and that position has nothing to do with any moral judgment of homosexuality?

    But that’s just crazy talk.

  7. Mark Boggs says:


    Why can’t you understand that sex is not the only bond between same-sex folks? Is it really that hard to believe that the love you feel for your wife (assuming you are male) could not be the exact thing one woman might feel for another woman? And again, if pro-creation were really that much of a boon to society, China would not have their rules and regulations on childbirth, would they? And talk about selling the whole institution short, this fixation with the pro-creation thing makes me think SSM opponents only see their marriages through the lens of pumping out as many babies as possible, as though that is really the pièce de résistance of marriage when, in actuality, if a marriage lasts for 50 years, the breeding window is actually rather small. Maybe we could let elderly gay people get married since, as with elderly heterosexuals, the whole issue of procreation is moot at that point and it wouldn’t offend the sensibilities of those who think that pumping out babies is the end all, be all of marriage.

    And I’m gonna go ahead and guess you’re one of the folks who wants to talk about how much he loves freedom and liberty and Mom’s apple pie and all that jingoistic bullshit, so explain what compelling state interest should keep two same sex individuals from being able to contractually bind themselves to each other and enjoy the same rights (rights guaranteed to be equally protected under the 14th amendment) as you and me? Why do opponents of SSM hate freedom?

    And indeed, I’m not sure why 9 people can’t marry each other than the fact that any separation or divorce or child support or property issues can get legally problematic when trying to discern who gets what and who is responsible for what and whom.

    And as far as your outrage over the “discrimination” of not allowing civil unions to heterosexuals in certain states, I’ll join you in your outrage just as soon as gays have the rights to both marriage and civil unions in every state and heterosexuals have only the rights to marriage.

  8. mcmillan says:

    Re: accessbility to same-sex couples
    Washington state’s domestic partnership law does allow access to same-sex couples if at least one person is over 62 years old. While when it initially passed there were some differences between marriage the the domestic partnerships, last year it was redefined as “everything but marriage” so the only distinction between the two is the name.

  9. ppnl says:

    While gay couples cannot produce offspring with each other by the normal unskilled labor method they can obtain or produce children by other methods. Adoption, surrogate parents and such. Future methods may allow them to produce children that contain both parents genetic material.

    The key question for me is this – is it better for society to encourage people to contain sexual desire and aggression within a stable relationship? Even excluding children I think the answer is clear. Religious people really should support this.

  10. Matty says:

    There is a place where same sex couples can register a domestic partnership but only if one is over 62? Can someone explain this it sounds like the most bizzare arbitrary restriction and I can’t even imagine a crazy argument for it, let alone a sane one.

    Could I also suggest that the whole mess is easily solved by having a simple status of civil marriage that any consenting adult can access. I would also make clear that civil marriage is about the legal status and the state should take no interest in how you celebrate the relationship or whether your Church/synagogue/mosque/great aunt approves or not.

    Finally does anyone else worry that going on about how marriage = children could bring back the old stigma against illegitimate children, after all the = works both ways so maybe if marriage gets its validity from childbearing, parenthood gets its validity from marriage. This would I think be a very nasty road to go down.

  11. Chris says:

    Heidegger, since in many, if not most states, and federally, “civil unions” and “domestic partnerships” that are restricted to homosexual partners do not provide the full benefits of marriage, and in some cases are not recognized by other states, it’s safe to say that straight people would not be lining up to get them instead of marriages, if they could do so.

    Put differently, there were black only schools too.

  12. James Hanley says:


    I think ppnl has pointed out one of the answers I would give you. Actually, a two-pronged answer. Prong 1: Marriage is about more than sexual/romantic love. The protections it can ensure for a couple, from making inheritance less challengeable by family members, to being able to receive insurance benefits, being able to visit in the hospital, making those crucial end-of-life care decisions…only marriage satisfactorily protects those rights. My wife and I can take for granted that those rights are protected. Jason Kuznicki and Scott Starin cannot. My old grad school chum, Pam, and her “long-time companion” cannot. I don’t see how that is in any way just or fair to them. Prong 2: They may not be able to have a child who is biologically the product of the two of them, but they can certainly raise children. My daughter attended pre-school with Louie, who had two mommies. If our concern is supporting families with children, then we should grant marriage rights to Louie’s mommies, but not to my work colleagues Michael and Alice, who have been married for decades but chose to never have kids. (Of course that would lead to the odd outcome that you can’t be married until you’ve had sex and reproduced, which would be disconcerting, at best, to religious folk.)

    My second answer is that if government doesn’t want to take on these costs, it doesn’t have to offer marriage benefits at all. But once a government decides to bear costs, it can’t constitutionally use cost-containment as justification for discriminating in who receives the benefits. That would lead to all kinds of unjust outcomes. “Sure, we’ll offer welfare benefits, but we need to keep the costs down, so blacks can’t receive them.” “Yes, we’ll offer fire departments, but to keep the costs down, we’ll not have any in the Latino section of town.” Etc.

    There’s certainly a pragmatic argument in there, but the Constitution doesn’t allow pragmatic economic arguments to trump equal rights. If the government wants to save money, it will have to do so in ways that don’t specifically distinguish between groups (ahem, except, perhaps, for distinguishing between the well off and not so well off).

  13. Jim51 says:


    I certainly agree that any CU laws or regs that are offered only for gay people are by their nature discriminatory. I was skeptical that such laws allowed heterosexuals access to CUs but didn’t have the time to check it out. I appreciate your doing so. This is not the first time I have run into this issue. A company that I worked for started a domestic partners benefits program that allowed gay partners access to their partner’s health coverage. My partner and I (we are hetero) tried to access this and were told no, it’s only for gay couples, you can get married. Yes, it’s discriminatory. As you point out, CUs and marriage are not equivalent.

    But you ask the wrong question–

    “What compelling reason is there for the state to overturn Prop. 8? ”

    The proper question is– What compelling reason is there for two groups to be treated differently before the law? This is where the proponents of Prop 8 failed pathetically. It’s also where those defending Florida’s discriminatory law against gay people adopting children failed, in somewhat spactacular fashion.

    It may be that you can offer something cogent in that regard and if so, I would be happy to read it, and the proponents of Prop 8 are in desperate need of it. I have asked for this in several fora, but no one has been willing or able to provide such a rational basis and back it up with any credible evidence. This is what explains the judicial winning streak that gay rights advocates have achieved.

    Mr. Hanley,

    I, too, worry about what may happen when this gets to this particular Supreme Court. I agree with you that Scalia will ‘find’ an exception to the 14ths requirement that no “person” be denied “equal protection.” I’m also willing to wager that Alito will go along with him.

    I am more convinced every day that your contention is true– to wit, that the cases made by opponents of gay marriage are so vacuous because there simply is no case to be made.


  14. Mark Boggs says:

    And, once again, it becomes rather clear that the crux of SSM opponents arguments comes down to “they have the wrong kind of sex.”

  15. Anna says:


    While gay couples cannot produce offspring with each other by the normal unskilled labor method…

    I love that line.

  16. mcmillan says:

    “There is a place where same sex couples can register a domestic partnership but only if one is over 62? Can someone explain this it sounds like the most bizzare arbitrary restriction and I can’t even imagine a crazy argument for it, let alone a sane one.”

    That’s what I get for trying to comment just before going to bed. The domestic partnerships in WA are available to same sex couples and opposite sex couples over 62. The reasoning for adding the elderly opposite sex couples was because while they could officially marry, it could affect payments for social security or pensions from deceased spouses. So these couples were faced with choosing between giving up a source of support or living in the same legal limbo homosexuals face. Though I agree the age cutoff is somewhat arbitrary, but as was said before “I’ll join you in your outrage just as soon as gays have the rights to both marriage and civil unions in every state and heterosexuals have only the rights to marriage.”

    Rhetorically, including this also forced opponents of the law to engage with the idea that this was about more than gay sex. There was somewhat of a different effect from being able to point to an example of a little old lady who fell in love a second time having to choose between giving up a pension and health insurance from her dead husband’s work or being able to have input about her new love’s end of life care and not having to worry about getting kicked out of the house they live in if something were to happen to him.

  17. Heidegger says:

    Wow, A+ for all replies and comments! Excellent, strong, well thought out, reasonable, arguments made by all–many, many thanks to JamesH, ppnl, Mark, mcmillan, Matty, Chris, Jim51 . I think any one of you could (should?) go in front of the SCOTUS and argue your case–case closed, SSM to be the law of the land! Chris–interesting point. The fact that CUs are not available to heterosexual couples surely cannot be accidental–more like a tacit admission that the two are miles apart insofar as what they offer–it’s much more than symbolism, and certainly, much less than a final social validation of the relationship in question.

    While the momentum and strength of arguments is clearly on the side of SSM proponents, there are still many legal hurdles to clear. While everyone focuses on the 5th and 14th amendments, I believe it will ultimately be decided by the 10th amendment. I think the judge, Judge Tauro, in MA has really opened up a can of worms in his ruling that DOMA was unconstitutional because it violated the 10th amendment–specifically, the sovereign right of states to determine their own definition of what a legal marriage is. Well, isn’t that exactly what this issue is all about? The people of California have voted to amend their constitution to define marriage as the union of one man and one woman, thus exercising their 10th amendment rights. For that matter, since it passed, it was, therefore, “constitutional”. How could a federal judge then say, after the fact, it was “unconstitutional”? It was already voted on, passed, amended, and part of the California Constitution.

    Thanks again, everyone–sincerely grateful for all of your thoughtful replies.

    ppnl–this cracked me up–“Future methods may allow them to produce children that contain both parents genetic material.” Oh my God–this sounds like the creation of a third sex! Hard enough to figure out marriage rights between two sexes, imagine the problems with three–although the odds of getting a date on a Saturday night increase considerably.

  18. Mark Boggs says:


    So if my fine state of Utah wanted to put a vote on the ballot that said that Mormonism will be the only recognized religion in the state of Utah, it might pass with about 75% of the vote. This means that Baptists and Catholics and Buddhists would not be considered to practice a religion, but rather an unprotected belief system and they are not entitled to the tax benefits of religious donations, charities, etc. And all these “belief systems”, save the LDS religion, would be taxed like any other business. And I can hear a reply now – “But the Constitution protects the exercise of religion!” But would it if a bunch of people voted that Catholicism wasn’t a religion? The people of Utah defined religion and Catholicism wasn’t it, right?

    And it sounds like because you’d like the states to be able to determine certain things means that you imagine there being a clause at the end of the 14th amendment that says …”nor shall any State…deny to any person within its jurisdiction the equal protection of the laws, unless the citizens of that state vote to apply the laws unequally from one person to another.”

    But that ain’t how it works and I’d think most people would hate the idea that some of the rights and privileges they enjoy could be taken away at the whim of the majority.

  19. Scott S. says:

    Sorry for coming late to the party. Heidegger’s initial comment led to some good discussion, but it was based on a false premise. 5 minutes on Wikipedia revealed that the majority of domestic partnership regimes in this country are open to same-sex and opposite-sex couples. Some, like California and Washington state, limit the opposite-sex participation to couples over 62. Others, like Washington, DC, and Nevada are completely equal for same-sex and opposite-sex couples. There are states, like Wisconsin and Oregon, where domestic partnership is only available to same-sex couples. The argument for restricting to same-sex couples is always that the reason for the existence of domestic partnership is to be able to deny same-sex couples the right to marry while still recognizing their relationships for certain legal purposes.

    The comment about the PACS in France being popular is interesting. The PACS is a lot less binding than a marriage in France, and easier to dissolve. It also prevents a couple from being allowed to adopt children (that’s an explicit provision of the PACS). France may have invented the perfect legal weapon to destroy marriage in a very real sense. I wonder whether they’ll see that as a good thing or a bad thing.

  20. Heidegger says:

    Thanks Scot for the correction. I’m a bit puzzled, though. On one hand you say, “5 minutes on Wikipedia revealed that the majority of domestic partnership regimes in this country are open to same-sex and opposite-sex couples.” And then you proceed to name only one state, Nevada (and D.C.) where civil unions/partnerships are available to both same-sex and opposite sex couples. All of your other examples–WA and CA are only available for persons 62 and older, which is highly restrictive. Your other examples, Wisconsin and Oregon are only available to same-sex couples. How did you arrive at the conclusion “that that the majority of domestic partnership regimes in this country are open to same-sex and opposite-sex couples” when you have named only one state that allows CUs for same-sex, and opposite-sex couples? Maybe there are several that you just didn’t cite–please let me know other states that allow CUs for opposite sex couples. Thanks. And, by the way, the point I was trying to make was CUs/partnerships agreements are much more harmful and destructive to the institution of marriage than same sex marriage could ever possibly be. It’s the endless chipping away that occurs with CUs that could be the final death blow for marriage making it an utterly meaningless institution.

  21. Mark Boggs says:


    If anybody but you is determining whether your marriage is meaningful, you’re the one with the problem.

  22. Heidegger says:

    Mark, we really seem to have a major misunderstanding on this subject, SSM. My comments invariably get turned around in your head to mean evil, bigoted, jingoistic, fascist, crackpot, homophobe, flag waving yahoo, because I have the nerve to question whether the state should recognize SSM. Until SSM has been legally established as a fundamental right, federally, it’s resolution will just have to determined by individual states. Is that so bad? There are at least five states that allow SSM. You know, it wasn’t that long ago, when gays were adamantly, manifestly against marriage, perceiving it as an outdated, dinosaur, a failed Christian relic, a banal, bourgeois institution. Oh well, must to get back to my reading–Mein Kampf and the entire works of William Shockley. Bet you didn’t know H.G. Wells was a strong supporter of eugenics. Hey, Mr. Hanley, a 64 ounce beer?? You’re going to need at least 1000 kegs to watch this spectacle cross the goal line—this is going to be a long, long, slog.

  23. Scott S. says:

    In my classification, state which allow domestic partnership to opposite-sex couples over 62 classified as open to both types of couple. The legislation was carving out an institution not just for those who can’t get married, but for those who would also benefit from a partnership that is not labeled as “marriage” by the Fed. That seems to cross an important line of equitability to me.

    Looking at Wiki again, I realize I misread the Wisconsin article–Wisconsin domestic partnership IS open to all unmarried opposite-sex couples. If I count all 11 states with some kind of marriage-lite designation + the D.C, the count is: 7/4/1. That is, 7 have fully equitable laws, 4 have the 62-or-over stipulation, and only Oregon restricts to same-sex couples. D.C. has recently allowed full same-sex marriage, with the option for domestic partners to upgrade, but they still have the domestic partnership law.

    I’d rather not put an exhaustive list here, because there is a wide gradation in domestic partnership benefit levels that varies sometimes even down to the county or city level. Here in Maryland, for example, we can fill out a couple of forms to allow medical decisions to be made by a “designee.” This is nowhere near the “all but marriage” standard in other states, but it IS open to unmarried opposite-sex couples. (Of course, now in Maryland, out-of-state same-sex marriages are recognized, though there hasn’t been a court case that affirms that status.)

    The best thing for you to do for detailed info is to go to the Wikipedia page on “domestic partnership in the United States” and follow all the state-specific links to learn about the variety of marriage substitutes available to same-sex couples in the various states. You can also see which ones allow participation by opposite-sex couples.

    I think you may have been misled by your googling if you looked for “civil union” instead of “domestic partnership.” There is a lot of discussion about civil unions probably because Vermont’s civil unions were the first of their kind in this country, and because “civil marriage” is a concept people can grasp pretty quickly. However, domestic partnership is the far more common term.

  24. Heidegger says:

    Thanks so much, Scott, for the clarification. Indeed, that is what I had done– searched for “civil unions” instead of “domestic partnerships” which appears to have opened the field considerably.

    I wholeheartedly agree with your comment regarding France’s PACS and its potential deleterious effect on marriage–“a perfect legal weapon to destroy marriage in a very real sense.” Funny how some of those unintended consequences always seem to come and bite you in the back, eventually. Or, “the road to hell is always paved with good intentions.”

  25. Mark Boggs says:

    You know, it wasn’t that long ago, when gays were adamantly, manifestly against marriage, perceiving it as an outdated, dinosaur, a failed Christian relic, a banal, bourgeois institution.

    All of them? Universally? Was that part of their “agenda”?

    And until you can offer up some serious arguments as to why the state shouldn’t recognize a right already given to a whole ‘nother portion of society (and it seems to me the onus would be on you and the state rather than making everyone else prove why they should have certain freedoms. Unless you think the state should dole out rights paternalistically, like an allowance?), I think I’m pretty well within the margins on speculating about your motives. Right now, you’re harping about reverse discrimination because of civil union and domestic partnership eligibility. Your argument has come down to this? That’s a pretty weak reed.

  26. Anna says:

    I wholeheartedly agree with your comment regarding France’s PACS and its potential deleterious effect on marriage–”a perfect legal weapon to destroy marriage in a very real sense.”

    This keeps getting thrown out there and I haven’t seen anything which provides proof that this is happening or will happen. How people feel about marriage varies greatly. I don’t think you have a true grasp as to what a “real marriage” is. Your idea is pretty limited and shallow. I also really don’t think there is any problem with folks not interested in getting married and doing whatever they feel is their ideal method for partnership. You fail to mention that France has some bothersome procedures and restrictions for marriage that have absolutely no bearing on whether a marriage will be successful, this may be partly to blame for their marriage statistics? Maybe there, those who really care about marriage are getting married – maybe this archaic idea, one limited to sex or what conservative or religious organizations define as marriage is turning people off. I find those limited ideas of marriage not indicative my 19 years of marriage. My marriage is far more than the fact that my husband and I are different sexes, are able to rear our own children, and share our finances. What we have should be granted to SS partners who would like the same. It is really quite simple, much easier than trying to come up with lame excuses for why they shouldn’t.

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