Smart Former Student on Prop 8 at SCOTUS

I do love this Facebook thingy!

An elementary student from a 'few years back' read a post of Prop 8.  I cautioned how it's not a great idea to read too much into the justices' questions...

PROP 8: 3/26/2013
JUSTICE SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?" 

MR. COOPER: Your Honor, I cannot.
The analytical action here (putting aside the standing question, which is everyone's easy way out) all comes in determining the level of scrutiny to apply to the law's distinction between straight and gay people here. Race and gender distinctions/discriminations are subject to heightened levels of constitutional scrutiny -- government has to have a much more compelling basis to make those distinctions or, put another way, the law almost presumes they're not valid until a government demonstrates a really valid, non-discriminatory reason for it.

Outside of those obvious categories, though, laws are presumed valid and will be upheld against constitutional challenge so long as there's a rational basis for the distinction the law makes. So if, for example, Congress were to require people with red hair to wear sunscreen, it would only have to articulate a reasonable basis (medical studies have proven that people with red hair tend to burn and get skin cancer more than others, so it's rational to require that of them, and the distinction isn't based on a historic animus toward red-haired people), and it would survive a constitutional challenge. That doesn't make it a good idea or good policy, but the rational basis bar is a really low one that all sorts of stupid and ill-conceived laws can pass. After all, there's no constitutional requirement that Congress enact only laws that are smart or make sense. Would that that were true. 

Anyway, the reason this exchange is so great is that Justice Sotomayor is making the case here for why Prop 8 flunks even this really deferential standard of review. By pinning Mr. Cooper down on the fact that there's no rational basis for discriminating against gay people except on marriage, she's boxed him into an analytical corner and his answer, which strikes me as intellectually honest, concedes that he can't get out. Will that make a difference for Justice Scalia? Not a chance. But it's not aimed at him -- it's aimed at Justice Kennedy and Chief Justice Roberts, whose votes are in play, at least as to the scope and analytical path of the eventual decisions. And it's a brilliant question, EXACTLY the sort of question judges should be asking in a case like this. 

I hope this helps. Stay strong and loud.

Really great to know that I had a small part in the education of someone so ... well ... groovy!

My Facebook Post on SCOTUS Hearing Prop 8 Day

Wanted to tuck this away in a place I would not lose it...

What an odd space I am in tonight. I just listened to the justices of SCOTUS "argue" my right to marry the person of my choice and am getting ready for day two. I went back to check our 5th anniversary posting on 2/22. 120 people "liked" it and 45 people added their specific congratulations. I think back to that and realize how important and affirming it was to have others "celebrate" my relationship with the person I love.

Some years ago I was invited to preach at Christ Church Corning about Gay and Lesbian inclusion. I talked about "inclusion" because that was all I could imagine. The priest thanked me and then, as he should have corrected me. "We don't need to just include you," said The Very Rev. Jorge Guiterrez, "We need to celebrate you and celebrate with you."

What is the most pivotal public celebration of your life? For those who are married, I can guess. When were you happier and more a part of your community and family? Marriage is not just a covenant between two people. It is a public celebration of who you are and who you love. It is a formal extension of family. I said marriage. Not civil union, partnership or any other lame euphemism for the commitment made between two human beings.

Gay men and lesbians don't want anything that the rest of you don't already have. We don't want to force you into a relationship that you don't want, diminish anything you already have or make you celebrate our love. We just want the right to invite you to our wedding. And if we invite you, believe we want you to come! Come celebrate with us.
Some years ago I was invited to preach at Christ Church Corning about Gay and Lesbian inclusion. I talked about "inclusion" because that was all I could imagine. The priest thanked me and then, as he should have corrected me. "We don't need to just include you," said The Very Rev. Jorge Guiterrez, "We need to celebrate you and celebrate with you."
What is the most pivotal public celebration of your life? For those who are married, I can guess. When were you happier and more a part of your community and family? Marriage is not just a covenant between two people. It is a public celebration of who you are and who you love. It is a formal extension of family. I said marriage. Not civil union, partnership or any other lame euphemism for the commitment made between two human beings.
Gay men and lesbians don't want anything that the rest of you don't already have. We don't want to force you into a relationship that you don't want, diminish anything you already have or make you celebrate our love. We just want the right to invite you to our wedding. And if we invite you, believe we want you to come! Come celebrate with us.

Mass Supreme Judicial Court Decision 2003

As the Supreme Court of the United States nears a decision on the DOMA and Prop 8 cases we are reminded of Massachusetts, where same-sex marriage was first legal.

Margaret Marshall, Chief Justice of the Massachusetts Supreme Judicial Court from 1999 to 2010, wrote the majority opinion in the 2003 “Goodridge v. Department of Public Health” case that was the first state decision in the country to affirm marriage equality.

Excerpts from here decision are popular at weddings, at weddings of same-sex and opposite-sex couples... 

Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.

It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a “civil right.”

Without the right to marry – or more properly, the right to choose to marry – one is excluded from the full range of human experience and denied full protection of the laws for one’s “avowed commitment to an intimate and lasting human relationship.” Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual’s right to marry against undue government incursion.

That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.

Read more and link to the full decision at the "Here and Now" blog of Boston's NPR station.

Bishop Andrus Speaks for the Marriage Equality Brief

 In today's Washington Post Bishop Marc Andrus of the Diocese of California* speaks to an Amicus curiae just filed. This "friend of the court" brief was was signed by almost all bishops in the Episcopal Church whose dioceses are in states where marriage is legal, was filed with the Supreme Court of the United States in support marriage equality in cases that come before them in March.  The only signature absent was Bishop Love of the Episcopal Diocese of Albany (NY).

The Rt. Rev. Marc Andrus

Today the U.S. Supreme Court received friend-of-the-court briefs arguing in support of marriage equality for same-sex couples in two historic cases challenging California’s Proposition 8 and the federal “Defense of Marriage Act” or DOMA. As the Episcopal Bishop of the Diocese of California I signed on to briefs for religious organizations and leaders opposing both Proposition 8 and DOMA. At my invitation more than two dozen Episcopal bishops across the country did so as well. I’d like to tell you why.

First, The Episcopal Church has always seen itself as existing in our culture, not outside or above or in opposition to our culture. For over a century, Episcopalians look to the model of Christ transforming culture, rather than, say, Christ against culture. Even the idea of Christ transforming culture has evolved, so today many Episcopalians look for the divine at work far beyond the reaches of our church buildings, and beyond those who identify as Episcopalians or even as Christians.

On marriage equality, our church has traveled on pilgrimage with our culture. Sometimes we have led in advocacy for marriage equality, and sometimes we have learned from the culture and from leaders outside the church. We have developed rites for blessing and marriage for all, and we have extended the support of the church to LGBT people in the form of premarital counseling and the integration of same-sex couples into loving communities of faith. The historic social prominence of The Episcopal Church lays some extra responsibility on us to use our influence for good. Thus we have advocated with courts and lawmakers at every level of government to promote marriage equality.

What about the charge that we have thrown away tradition? Over and over I’ve heard people jokingly (mostly) call our church, “Catholic light,” and claim (this, almost always derogatorily) that The Episcopal Church has no clear moral standards. It is easy for such a church, the argument goes, to irresponsibly accept culturally-led innovations like marriage equality.

The second thing about Episcopalians and marriage equality, then, that is important to say at this moment is that we are a church that believes Christ continues to be with the world, moving with us, helping us find meaning in moments of joy and also loss and pain. The Christ whom we recognize is the one who speaks in John’s Gospel, saying, “There are many things I would teach you but you cannot bear them now … the Sprit will lead you into all truth.” For Episcopalians, tradition is a moving force that is not only dynamic but that changes quality over time, and we might liken the change to be one of more light being cast into the world.

We overturned nearly two millennia of set tradition when we began ordaining women 34 years ago. We repudiated the traditional tolerance of slavery and racial prejudice in the mid-20th century. We traded our cultural privilege and hegemony as a largely Anglo denomination for the wealthy and have deliberately become more and more consciously a church for all. In all these things we have prayed and thought and been in earnest conversation in and out of the church, and believed that in the end we have discerned better the mind of Christ than we had in the past.

It can definitely be unsettling to find that some structures and beliefs are not fixed and unchanging. Add to that the fact that the Episcopal Church has no doctrine of infallibility, of anybody, and one can understand those who prefer more predictability. For me, I hope to stay open to divine surprise

*The Diocese of California is only one of 6 dioceses in the state.  It primarily encompasses the greater San Francisco area.