Too Soon to Celebrate

In the wake of the SCOTUS decisions yesterday on same-sex marriage, everybody is jumping for joy.  Stop, people, and look at what they actually said.  In the DOMA case, the court threw the entire business of regulating same-sex marriage back to the states.  The majority opinion said:

The federal government, throughout our history, has deferred to state-law policy decisions with respect to domestic relations.

Now count:  how many states do we have?  Fifty.  How many states consider a same-sex marriage legal?  Twelve (thirteen once the appellate court stay is lifted in California).  How many states actively ban same-sex marriage in some way?  I counted thirty-three on the Wikipedia list, but your count may vary by 1 or 2; and a lot of these (I didn't count) don't even allow domestic partnerships.  Plus 5 states with no opinion.  Just take a look at the map in the Wikipedia article:

Same-sex marriage status in the United States by state

Come on, people.  This is good news for the federal benefits etc. of the residents of the few states that allow same-sex marriage.  If you live, however, anywhere in the South, or on the Great Plains, or anywhere except California, Washington, and the New England states, your gay marriage is toast unless you can convince your local legislators to rule otherwise.  Best of British luck on that.

Because the flip side of a decision that the states can decide about same-sex marriage is that any Congressional action to approve it nationally (assuming you could get such a thing through the current House, which is crazy thinking) would also be unconstitutional, because it's a states' rights issue.

Keep raising money for the campaign, folks.  You still have a long row to hoe.

Same-sex Marriage

I've been reading with interest the coverage of the California Supreme Court's review of Prop. 22 and the "right" of same sex couples to marry. First, I want to give Justice Moreno a huge round of applause for his simple question: "Are you saying that separate is equal here?"

Second, let's all agree that it is absolute balderdash to suggest that heterosexual marriage is somehow "threatened" by the possibility that people of the same sex might marry. People decide to marry or not for a very wide range of reasons, many of which are totally irrational, but the possibility that people of the same gender might be able to marry is just not on the table in that process. I mean, imagine the conversation: "Gee, Harry, I can't marry you, because your brother Joe just married his boyfriend Ed." Give me a break.

The real objection to same-sex marriage, which nobody wants to discuss, goes back to the fact that a lot of people still think that homosexuality is some kind of warped personal choice, which can't be accepted because "the things those people do" are so revolting. This is a personal opinion and has no business in public policy; it's just another facet of the fact that Americans as a group can't deal rationally with sex. As far as I can tell from the research, homosexuality is not a choice, it's a basic predisposition, like blue eyes or left-handedness or the inability to smell the chemical you make when you pee after eating asparagus.

Let me come down here on the side of the people (I've read several user comments to this effect on sfgate.com) who say that marriage should not be a consideration of the state. Marriage is a religious sacrament, and in the United States we have a legal separation of church and state. The state should only approve civil unions; any two people should be able to join in a civil union; and if a couple wants to go to the Catholic Church and argue that their same-sex union should be solemnized in the marriage ceremony, that's their private problem.

State approval of marriages goes back to English common law, under which the church is an arm of the state; but our Constitution forbids that. The real problem with civil unions is the fact that the federal government also has this confusion; no matter what the California court decides, unless something is done at the federal level, same-sex partners in civil unions still won't be able to have the privileges under Social Security that people who are "married" get. I've been married twice, both to men; neither function took place in a church or involved a minister of religion. In both my marriages, I had full rights to my husband's Social Security (which was moot the first time because I've made, over my lifetime, probably more money than he has...). But a same-sex couple who also has a civil ceremony not involving a minister doesn't have those rights; and they aren't necessarily recognized as "family" in the health system; and so on.

Justice Moreno is dead right: this is separate, but not equal.

And since neither of my marriages produced any children, let's also dismiss the absurd argument that marriage is "for the procreation of children." Marriage is and has been for centuries a legal arrangement for the disposal and transmission of property, generally but not exclusively through children, since until recently, no one could be sure that the children would survive. This whole romantic love business was invented in the 19th century by the Romantic movement.