Lessig: To Overturn Prop 8, Avoid the Courts
California's Supreme Court upheld today Proposition 8, which bans same sex marriage. At the same time, the Court recognized those same sex marriages performed before the ban was approved. So, the unions of some 18,000 gay and lesbian couples from last summer are legal, but if you're gay or lesbian and want to take vows with your partner this summer, forget it. That would be illegal.
Talk about a mess. What was the Court thinking? It's bad enough that gay and lesbian couples are treated as a different class of citizenry. Now, there are effectively two classes within that class. To call it a compromise is a cop-out. A form of separate but equal is more like it.
And what does this situation say about our democracy? What have our courts come to if civil rights are determined by popular vote?
Ever prescient, Stanford Professor Larry Lessig argued months ago that turning to the judiciary to defeat Proposition 8 would be folly. I am sorry to say he was correct.
Watch the full program and a series about same sex marriage at FORA.tv.
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See K.J. Dwyer's Profile
With regards to the state, marriage is, first and last, a civil contract. The proof of this is that when one seeks to dissolve a marriage, they don't go to their priest, minister or rabbi to get a divorce; they go to court.
The fundamental problem with marriage in the United States is that clergy are allowed to administer the civil contract of marriage. Yes, people have to obtain a marriage licence through the public sector, but practically any ordained "minister" can perform a legal marriage once that licence is obtained.
By giving the power of the state to the clergy to administer civil contracts, the United States has blurred the line between the Separation of Church and State and allowed religious bigotry to "define" what a marriage is.
If every citizen were required to stand in front of a judge to get legally married, the incoherent rants of religious bigots would be relegated to their proper, marginal place and this whole initiative to deny gay people the franchise of marriage would be a non-starter.
To that end, there should be a counter-initiative to deny the clergy the power to perform civil contracts. I'm sure such an initiative would lose at the ballot box, but it would highlight what is a fundamental flaw and inequity in the system and might make the religious think twice before denying others their civil rights.
that's not quite right. It would suggest that in a state that did not have a law on the books against gay marriage, I could go on down to the courthouse and get the marriage license and then go get my friend who is a mail order minister of the universal life church to perform the 'ceremony'.
the fact is that irrespective of the clergy, a marriage license says man and woman. california had to have new licenses printed. even in a state that does not have a law prohibiting it, the courthouse is not going to issue a license.
i characterize it as there is nothing stopping a state with no laws prohibiting gay marriage from changing the license to say "man/woman marries man/woman" except the cowtowing to the church and centuries of bureaucracy.
That's not true. There's NOTHING on my marriage license that said man and woman! It DID say husband and wife, but that's a minor little point!
See K.J. Dwyer's Profile
That's not what I was suggesting at all. Only that every single argument against gay marriage -- every single one -- can be reduced to religious bigotry. If the clergy were out of the mix, religion would have no place in the argument and civil marriage could not rationally be denied to gay people, as court after court has found.
It's only because clergy are acting as agents of the state in this matter that religion has any kind of place in this argument. They have been allowed to put forth arguments that they would be forced to marry gay people, for example, or risk civil rights lawsuits.
My point is that if they weren't allowed to administer civil contracts in the first place, they wouldn't be in a position to make such an argument.
Again, marriage as relates to the state is a civil contract and no clergy should be recognized as de facto agents of the state. It is a direct violation of the Separation of Church and State and this power should be taken away from them.
>> And what does this situation say about our democracy? What have our courts come to if civil rights are determined by popular vote?
Ever prescient, Stanford Professor Larry Lessig argued months ago that turning to the judiciary to defeat Proposition 8 would be folly. I am sorry to say he was correct.
Has anyone taken note that the silence from the White House on this subject is almost deafening ...
"It's wrong to have millions of Americans living as SECOND-CLASS CITIZENS in this nation. And I ASK FOR YOUR SUPPORT IN THIS ELECTION so that together we can bring about real change for all LGBT Americans. I WILL NEVER COMPROMISE ON MY COMMITMENT TO EQUAL RIGHTS FOR ALL LGBT AMERICANS. As your President, I WILL USE THE BULLY PULPIT to urge states to treat same-sex couples with full equality in their family and adoption laws. I support the complete repeal of the Defense of Marriage Act (DOMA). Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does. Americans are YEARNING FOR LEADERSHIP that can empower us to reach for what we know is possible. I believe that we can achieve the goal of full equality for the millions of LGBT people in this country. To do that, WE NEED LEADERSHIP that can appeal to the best parts of the human spirit. JOIN WITH ME, AND I WILL PROVIDE THAT LEADERSHIP. Together, we will achieve real equality for all Americans, gay and straight alike.” -- Barack Obama (February 2008)
"In the end, we will remember not the words of our enemies, but the silence of our friends.” -- Martin Luther King Jr.
Point well taken. Though I am a supporter of the president I am not surprised by his silence. He played both sides on this issue from the beginning. He also stated that he was against SS Marriage during the campaign. I did not vote for him because of this. I voted for Mr. Nader who was honest and came right out and said he supported SSMarriage. I'm really P@SSED!
President Obama can not really say much about a State issue. In this speech he was talking about a Federal law, which is quite different. He's come under serious fire from the GOP for trying to give the States money under the Stimulus Plan - they've freaked out saying that he is usurping State's Rights. Imagine the uproar if he tried to intervene in this election?
What is he supposed to do or say about what was totally and completely a matter for a state - California?'
The federal government has nothing to do with this at all - it was voted on in a state and tried in state courts.
Maybe you need to read my post again ... let me refresh you memory:
"As your President, I WILL USE THE BULLY PULPIT to urge states to treat same-sex couples with full equality in their family and adoption laws."
My grandfather used to have a saying: "Stand behind a mule and you may get kicked in the head, you may lose a few teeth - but you will gain a whole lotta sense."
I now have a lot more sense and I'll remember the next time this man asks for my vote because I am going deaf on the amount of silence coming from the White House.
"In the halls of justice, the only justice is in the halls"
-- Lenny Bruce
Lessig is wrong. Multitastking is necessary. Seek redress from the Courts. Protest in the Streets. Overturn Prop. 8 as law next election.
Its almost like you weren't listening.
The court concluded that the will of the people, as expressed thru their vote, will stand. Too bad you don't agree. If they did otherwise and usurped the peoples vote, the anger and resentment would've set the LBGT rights movement back a good 30 years. That's what Lessig was trying to get across to you.
Now since you're obviously passionate and want to do something about it... get your friends and go change some minds... DISCUSS, DEBATE, EXPLAIN and EXPRESS your views and reasoning person by person. Get good walking shoes and leave the vitriol at the door. That is the only way get this thing overturned and simultaneously propel the LBGT cause forward.. because you'll now have the understanding and backing of 'we the people'.
It doesn't MATTER whether people's minds are changed or not!! All that matters is that the LAW SAYS they must be granted equal rights!!
We need a Proposition to limit the Amendment process. "Simple majority cannot take away the rights of a minority group"
Civil rights and gay marriage have nothing to do with eachother. That is a simple fact. Why reinvent the whole language to accomodate your false thinking?
The right to marry is a civil right. It is protected by the US Constitution. This is not invented language. It reflects our deepest right to privacy.
actually there is nothing directly about marriage in the Constitution - it is in the State Constitutions
Um.... Because every time a court has ruled about marriage they've called it a "fundamental civil right"
Well civil rights and gay rights have everything to do with each other. Are you saying that gay rights and marriage rights have nothing to do with each other? Your point as written makes no sense.
Your presumption that civil rights have been violated by a majority vote seems to be putting your spin on the definition of rights. Take the matter to the Supreme Court and let the matter be settled. Until then, the issue will continue to be settled state by state.
As long as the majority of the Supreme Court is very conservative and religulous, equal rights for gays will never happen that way.
The matter should STAY in the state courts
I hope it does go to the US Supreme court. Then I'll at least know if I'm going to pack my bags, move to Canada and live in a country that supports me for a change.
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