Tue 18 Sep 2007
Another sad day for our families
Posted by Jenny under News!!!, The Bad, The Ugly, The Political Is Personal
This is a bit off topic for me to be posting, but it is certainly relevant to LesbianFamily.org.
From the Equality Maryland press release:
“The American Civil Liberties Union and Equality Maryland today denounced the divided Maryland Court of Appeals decision upholding a state law that bars same-sex couples from marrying and accessing the hundreds of family protections provided to married couples and their children under state law.
The vote in the case was 4 to 3. One of the dissenting judges said the legislature should either be required to adopt civil unions or marriage. The other two said that the case should be sent back to the lower court for a trial to see if government has a good enough reason to bar same-sex couples from marriage.
The majority opinion rejects the ACLU’s arguments that barring same-sex couples from marriage is sex discrimination. While the court agrees that marriage is a fundamental right, it says there is no fundamental right to marry someone of the same sex. The court says gay people aren’t entitled to special protection from the court because, although there has been a history of unfair discrimination against gay people, as a group gay people are not politically powerless. The court then uses the least demanding form of constitutional analysis to determine if the ban violates the state’s equal protection guarantees, and says that excluding same-sex couples from marriage might rationally be related to fostering procreation, so the state can continue to deny same-sex couples the ability to marry and its family protections.”
Speaking of fostering procreation, I was really hoping that my baby might be able to enjoy some of the benefits of having legally married parents, but bigotry and ignorance have won the day in Maryland.
September 18th, 2007 at 4:51 pm
From Schmitz Blitz
I’m not familiar with the intricacies of the Maryland constitution, but I’m going to offer some thoughts on point 3 it relates to the United States constitution (and maybe some of the others in future posts, time permitting).
The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition,” and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.
Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.
The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.
Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.
Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes” The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.
The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.
Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.
All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.
September 20th, 2007 at 7:55 am
All the legal jargon in the world will not change the fact that it is discrimination against our families to deny us the 1100+ rights that our heterosexual friends and family get with a marriage license. This hurts our children, our relationships, and society in general.
Glad though I may be that people who understand more about the legal system and policy than I are working on these issues, it still hurts down deep and feels personal when these decisions come down. Especially in ones own state - a state like Maryland which is generally quite gay friendly, and where our legislature has actually passed a rather weak domestic partners bill before - it was just vetoed by then-gov Erlich.
I don’t know what I’m trying to say, except perhaps that comments like yours in a forum such as lesbianfamily.org do nothing to assuage that feeling that we are under attack in our own home, and nothing to change the minds of those who would keep us that way.
September 21st, 2007 at 8:40 pm
What a wonderful blog. I expect to visit here often. :-)