New Mexico Sup. Ct. Rules Unanimously In Favor Of Marriage Equality!

As expected, the New Mexico State Supreme Court has ruled in favor of marriage equality, making the Land of Enchantment the 17th state to end marriage discrimination against same-sex couples.

The Albuquerque Journal reports:

The New Mexico Supreme Court on Thursday ruled in favor of same-sex couples, granting them all the same rights of marriage enjoyed by heterosexual couples.

The court’s 31-page opinion states, in part, that: “All rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.”

New Mexico joins 16 other states, the District of Columbia, and several Native American tribes in recognizing same-sex unions.

Justice Edward Chavez, who authored the unanimous opinion, rejected arguments made during an October hearing by opponents of same-sex marriage.

“Procreation has never been a condition of marriage under New Mexico law, as evidenced by the fact that the aged, the infertile, and those who choose not to have children are not precluded from marrying,” Chavez wrote in his opinion.

However, the ruling also stipulated that religious clergy who do not agree with same-sex marriage are not required to perform marriage ceremonies for gay and lesbian couples.

After eight of the state’s 33 counties began issuing marriage licenses to gay and lesbian couples earlier this year, county officials petitioned the court to provide a state-wide ruling.

The court ruled that county clerks must issue marriage licenses to couples regardless of gender, and that licenses issued to same-sex couples prior to the ruling must be recognized. More than 1,400 same-sex couples have been issued marriage licenses in New Mexico since August.

Woo hoo! It is interesting that the last two State Supreme Court ruling on marriage equality have been unanimous (Griego in New Mexico and Varnum in Iowa).

Hat/tip to Joe.My.God

Geographic Correlation Between Tolerance and Open Homosexuality

There is an interesting report published in the New York Times on the correlation between how “tolerant” a state or geographic region and the fraction of men who are willing to be open (and honest) about same-sex sexual attraction. The study was conducted by Harvard Economics Ph.D. Seth Stephens-Davidowitz who previously made news by analyzing Google searches to demonstrate a negative correlation between racist  searches (or searches for “racially charged terms”) and voting rates for Barack Obama for President in 2008.

Now, Dr. Stephens-Davidowitz is back and he is analyzing Google searches to demonstrate that even though approximately 5% of men have same-sex attraction (as evidenced by their searches for pornographic or sexual material on the web) in areas where marriage equality or LGBT rights are disfavored the percentage of people who reveal their homosexuality or bisexuality in social media substantially decreases.

In “How Many American Men Are Gay?” Stephens-Davidowitz says:

Using surveys, social networks, pornographic searches and dating sites, I recently studied evidence on the number of gay men. The data used in this analysis is available in highly aggregated form only and can be downloaded from publicly accessible sites. While none of these data sources are ideal, they combine to tell a consistent story. 

At least 5 percent of American men, I estimate, are predominantly attracted to men, and millions of gay men still live, to some degree, in the closet. Gay men are half as likely as straight men to acknowledge their sexuality on social networks. More than one quarter of gay men hide their sexuality from anonymous surveys. The evidence also suggests that a large number of gay men are married to women. 

There are three sources that can give us estimates of the openly gay population broken down by state: the census, which asks about same-sex households; Gallup, which has fairly large-sample surveys for every state; and Facebook, which asks members what gender they are interested in. While these data sources all measure different degrees of openness, one result is strikingly similar: All three suggest that the openly gay population is dramatically higher in more tolerant states, defined using an estimate by Nate Silver of support for same-sex marriage. On Facebook, for example, about 1 percent of men in Mississippi who list a gender preference say that they are interested in men; in California, more than 3 percent do.

Of course the question of what fraction of the population if LGB is a recurring one, for social science researchers and activists alike. As I have mentioned previously, many researchers seem to think the typical number is in the 3-5% range.

What is disturbing about the new analysis from Stephens-Davidowitz is that it also indicates that many of the closeted gay men in less tolerant areas are masking their sexuality by involving women. This is unsurprising since one would presume in areas that are oppressively religious with tendencies towards compulsory heterosexuality the norm, what options are there for the man with hidden same-sex sexual attractions?

The report is also encouraging in some sense, because it demonstrates, as activists have been saying  forever, “We are everywhere” and that, eventually, LGBT equality will be everywhere as well, since wherever there are LGBT people, they will also need to have access to full civil rights. Yes, even in Mississippi.

Hat/tip to Joe.My.God 

Cross-posted to The Mad Professah Lectures

The Unconstitutionality of Ideology-Based Application of Law: Anti-miscegenation Laws and the Same-sex Marriage Ban (2019 words)

In the United States today, marriage has long been an institution around which is centered a great deal of debate.  One of the most salient contemporary issues concerning marriage is that of same-sex marriage and whether or not it is jurisprudent to incorporate same-sex marriage into the law. In previous times, there were different controversies which surrounded marriage, such as debates over interracial marriage, debates over naturalization through marriage, and debates of gender equality in marriage. The reality of all these controversies is that they stem from the use and application of marriage as a means of social ordering, and the unjust treatment of groups of individuals which arose through the enactment of marriage in this manner. The interracial marriage ban and naturalization through marriage laws were manifestations of threat to the social order felt by those in power; the current same-sex marriage ban is no different than these were. Thus, both of these two sets of laws participate in social construction and enforcement of identity, distinct only in operating upon the different identity characteristics of race and sex. Today’s ban on same-sex marriage is thus ultimately a product of an ideological belief towards the identity characteristic of sex not shared by the entirety of the United States. Since both the ban on same-sex marriage and interracial marriage serves/served to enforce an arbitrary perception of the “proper” identity, they perpetuate injustice of the very kind of which the preamble of the Constitution declares of the US government and its laws to fight against.  It is thus by the very nature of their oppressiveness that both the anti-miscegenation laws and same-sex marriage bans have and continue to be called into conflict with the constitution. Indeed, through the analysis and comparison of today’s same-sex marriage ban and historical anti-miscegenation laws, the true nature of marriage in law in general and of the same-sex marriage ban is revealed: marriage in law is a social institution through which the officially sanctioned social order is enforced by public authority, and both the same-sex and interracial marriage bans are unconstitutional as ideologically based enactments of law to this end.

Historically, marriage in the United States has been inextricably linked with legislation enacted by the state; this renders marriage not only an object of abstract emotional import, but also a social and legal institution, which enables the government to order the populace to the ends of those in power. In the United States, the institution of marriage has been one by which two people are able to manifest their personal love and commitment to one another, and a means by which to arrange private life. For by becoming married, a couple can expect a drastic change in lifestyle centered around the codependence of each person on the other, such as shared assets, shared family, shared property, etc. Yet it is not only for emotional and practical purposes isolated to the members and associates of a marriage that two people decide to be married; in fact the equally if not more important feature of marriage for which people decide to marry is the public implications which it entails. In the public sphere, marriage is used to assign different legal and political statuses to individuals involved in matrimony. As such a plethora of legal implications follow the declaration of two people as married; the members of the marriage are subject to new tax benefits, planning benefits, Social Security and insurance policy changes, etc., and the list would continue (“Getting Married: An Overview”). Therefore, the status conferred by the matrimony of two individuals is not simply a product of universally shared abstract values held by people towards the concept of marriage. Instead, marriage itself is instituted and enforced through the state and its law; it becomes a means of social ordering through which public authority is able exercise its grasp on the populace. It is this incorporation of the abstract emotional and ideologically interpreted aspects of marriage into law which has proven damaging to minorities, since the individuals with the power to decide these legislations have not always been representative of the entire population.

Both the notions of interracial marriage and same-sex marriage were/are disruptions of the socially constructed norms of different characteristics of identity, those of race and sex respectively; the same-sex and interracial marriage bans were thus responses to this disruption arising from the hegemonic-subaltern relationship between people of the socially disrupting identity and people of the hegemonic identity. Throughout history and still today, humans have sought to categorize each other by means of perceivable differentiating traits; the acknowledgement of these differentiating traits in and of itself is not harmful, it is the socially generated and perpetuated classification of people by these identity characteristics that generates injustice and oppression (Newman). These are identity characteristics such as gender, sex and race; however as social constructions they are accompanied by a myriad of expectations which are expected to be followed. For example, Nadine Bieghle says of sex, “once assigned a sex, we are expected and raised to conform to society’s definition of the “normal” behaviors and mindsets associated with that sex” (Nadine).  Nadine’s description embodies the nature of social expectations well: the expectations are considered “normal,” rendering any divergences from the norm to be perceived in relativistic terms; this reinforces the binary opposition between the hegemonic and subaltern identities, and exacerbates the chaotic effect of any disruptions to the social norm.  The notions of interracial marriage and same-sex marriage were/are direct disruptions of the social expectations which accompanied the identity characteristics of race and sex respectively; interracial marriage disrupted the perceived notion that black people were of an inferior race, and same-sex marriage disrupts the perceived notion that marriage can only exist between opposite sexes. As such, the interracial and same-sex marriage bans were responses to a disruption of social norms, exacerbated in effect by the binary-opposition relationship between the two conflicting identities. These notions of race and sex were the hegemony to their counterparts in more aspects than just the ideological; political hegemony was needed to incorporate these notions into law.  In both the cases of the anti-miscegenation laws and same-sex marriage ban, those with the political power to enact the bans belonged to the hegemonic group whose interests were being protected. For example, in Pace v. Alabama 1883, a court charged and sentenced an interracial couple for violating the state’s anti-miscegenation statute. The anti-miscegenation laws themselves were all written by white lawmakers, and the Chief Justice Morrison Waite along with all other Associate Justices were white males (Pace v. Alabama). During the case the Alabama Supreme Court said, “[Interracial cohabitation jeopardizes] the highest interests of government and society for it could result in the amalgamation of the two races, producing a mongrel population and a degraded civilization” (Pace v. Alabama). This was the driving ideology of the anti-miscegenation laws and the presiding judges. The ideologically based reasoning of the court is apparent.  Similarly, those involved in the enactment and enforcement of the same-sex marriage ban followed the ideology of the hegemon which opposed same-sex marriage. An early case involving the issue of same-sex marriage was denied by a court which believed in anti-gay ideology, and even referenced the Bible as a religious text in its opinion. In Singer v. Hara, gay activists John Singer and Paul Barwick sued local marriage licenser Lloyd Hara for refusing to issue them a license. The court denied their claim, saying that marriage laws are “founded upon the presumption that marriage, as a legal relationship, may exist only between one man and one woman” (Singer v. Hara).   The court concludes with a quotation from another court case saying, “The institution of marriage as a union of man and woman…is as old as the book of Genesis…” (Singer v. Hara). Both this biblical reference and the Alabama Supreme Court’s statement of a “mongrel population” reflect ideology based reasoning in enforcing law, and even more importantly reasoning that was later abolished by Supreme Court rulings as unconstitutional.

As manifestations of the use of marriage law to enforce social order, both the interracial marriage and same sex marriage bans are unconstitutional in their manner of discrimination by basis of identity, and with time and public discourse the public perception of justice has evolved to include new identities under the protection of the constitution in ways which recognize the rights of those once subjugated. The Fourteenth Amendment of the constitution was adopted in 1868 in response to issues of former black slaves being denied citizenship following the American Civil War (“Primary Documents in American History”). As such, the Fourteenth Amendment was created to combat the same deprivation of civil rights based on identity characteristics which both the interracial and same-sex marriage bans codified in law. It is thus a natural result of the discriminatory nature of these sets of laws that they have and continue to be called into conflict with the Fourteenth Amendment. Both the interracial marriage ban and same-sex marriage ban were asserted to be unconstitutional under the Fourteenth Amendment not only on occasions whereupon the United States acknowledged their unconstitutionality, but also on earlier occasions when assertions of unconstitutionality were denied out of ideological reasoning. In Pace v. Alabama, the plaintiff called directly upon the clause of the 14^th Amendment known as the “equal protection laws,” reasoning that the anti-miscegenation laws violated this clause by discriminating against the defendant on basis of his “negro descent” (Pace v. Alabama). However the court denied this by reasoning of “equal application theory,” stating that since the law itself applies as equally to one group as the other, that neither group is given unequal treatment by law. This reasoning disregards whether or not the statute itself contains racial animus, since it is “equally applied” to both the hegemon and subaltern (Loving v. Virginia). Later in Loving v. Virginia 1967, the 14^th Amendment was again cited by a people adversely affected by anti-miscegenation laws in the same manner that it was in Pace v. Alabama (Loving v. Virginia).  Similarly to Alabama, Virginia asserted equal application theory as indication of constitutionality under the 14^th Amendment. However, on this occasion the Supreme Court rejected ‘the notion that the mere “equal application” of a statute containing racial classifications is enough to remove [it] from the 14^th Amendment’s proscriptions…’ (Loving v. Virginia). In following with the progression of public discourse surrounding anti-miscegenation laws between 1893 and 1967, the government recognized that the laws were “obviously an endorsement of the doctrine of White Supremacy.” (Loving v. Virginia). The analogous “doctrine” of the Loving v. Virginia case in same-sex marriage laws is that of the proper form of marriage as between opposite sexes as it is put forth in Singer v. Hara. Singer and Barwick also cited the 14^th Amendment’s equal protection laws, but were rejected by the court with a statement of equal application and the ideologically and religiously based definition of marriage as between opposite sexes. However just as the public discourse surrounding anti-miscegenation has progressed, so has the public discourse surrounding the issue of same-sex marriage.

Source: Nate Silver, “Opinion on Same-Sex Marriage Appears to Shift at Accelerated Pace,” http://www.fivethirtyeight.com, Aug. 12, 201

In 1988, polls ranked public opposition of same-sex marriage at upwards of 70 per cent, whereas support of same-sex marriage was ranked at little over 10 per cent. However, the support behind same-sex marriage has since grown at a rate of 1-1.5 points per year while opposition of same-sex marriage has simultaneously decreased (Silver). On Aug. 11, 2010, CNN released the results of the first national poll to show that support for same-sex marriage had become the majority-opinion (“Gay Marriage”). It is thus not surprising that in the three years since, the Supreme Court ruled the interpretation of marriage as between opposite sexes as unconstitutional under the Due Process Clause of the Fifth Amendment in United States v. Windsor (United States v. Windsor). Just the same as Loving v. Virginia overruled the doctrine of White Supremacy in application of law, United States v. Windsor has done the same of the doctrine of the doctrine behind the opposite-sex marriage ban. The only difference is that the progress of public discourse surrounding same-sex marriage has taken place at a later time than the public discourse of anti-miscegenation laws and racism.

There are multiple reasons put forth by proponents of anti-gay marriage laws for prohibiting same-sex couples from being married.  However, the points of contention around marriage for which it is said to be incompatible with members of the same sex are purely ideological, much the same as the White Supremacy doctrine which drove anti-miscegenation laws. These ideologically based laws rob individuals of universal human rights by linking these rights inextricably with identity, and then attempting to impose the officially sanctioned identity upon them via the power endowed by law and government. Thus, both the same-sex and interracial marriage bans were manifestations of oppression codified into law, and were unconstitutional as ideology-driven legislation that did not further “justice.” While “justice” may seem an arbitrary human judgment, it continues to evolve and be given definition and form through public discourse and the ever-changing application of law.

 

Works Cited

Bieghle, Nadine. “The Salience of My Gender with Respect to My Sex (1634).” CSP6 LGBT Rights in the Internet Era. N.p., n.d. Web. 04 Dec. 2013. <https://csp6.wordpress.com/2013/12/02/final-paper-6/&gt;.

“Gay Marriage.” ProCon.org. ProCon.org, n.d. Web. 30 Nov. 2013. <http://gaymarriage.procon.org/&gt;.

“Getting Married: An Overview.” NOLO: Law for All. N.p., n.d. Web. 03 Dec. 2013. <http://www.nolo.com/legal-encyclopedia/getting-married-overview-29966.html&gt;.

Kennedy, Randall. Interracial Intimacies: Sex, Marriage, Identity, and Adoption. First Vintage Books Edition. First Vintage Books, 2003. Print.

Loving v. Virginia 388 U.S. 1. N. p., 1967.

Newman, David. Sociology. SAGE Publications, Inc, 2010. Print.

Pace v. Alabama 106 U.S. 583. N. p., 1883.

“Primary Documents in American History.” 14th Amendment to the U.S. Constitution: Primary                                                                   Documents of American History (Virtual Programs & Services, Library of Congress). N.p., n.d.    Web. 30 Nov. 2013.

<http://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html&gt;.

Silver, Nate. “Opinion on Same-Sex Marriage Appears to Shift at Accelerated Pace.”   FiveThirtyEight.

Singer V. Hara 522 P.2d 1187. N. p., 1974. Print.

United States v. Windsor 580 U.S. _____. N. p., 2013.

By Logan Justice

World AIDS Day: New Online Historical Archive Of Images Available

As you think about your final projects and in honor of today (December 1) being World AIDS Day, I want to call your attention to a new online resource of historical images related to the fight against AIDS which is available at the University of Rochester.

 

The Future of Gay Marriage in America

This link goes to my recorded opinion of the future of gay marriage in America, along with a transcript. In it I discuss the fight for gay marriage and how it has progressed, and the reasons that I think that the fight will soon be won.

There Are Now Five Openly Gay U.S. Ambassadors

 Wally Brewster has been approved (unanimously) by the United States Senate as the new Ambassador to the Dominican Republic (my dream job, LOL). Brewster previously served as a board member of the Human Rights Campaign, which sent out a notice about Brewster’s confirmation:

Prior to this year, three openly gay people had served as U.S. Ambassadors (Jim Hormel, Michael Guest and David Huebner).  Just this year, five openly gay people have been confirmed as Ambassadors (Brewster, along with John Berry in Australia, James Costos in Spain, Rufus Gifford in Denmark, and Daniel Baer as ambassador to the Organization for Security and Co-operation in Europe).

It is a testament to President Obama and the U.S. Senate that the sexual orientation of these ambassadors is irrelevant to their qualifications for their posts.  All Americans should be proud to have these fine public servants representing the interests of the United States.

Of course one might notice that all five LGBT individuals are white gay men, which is not indicative of the diversity of the LGBT community, but is representative of the people who get rewarded with ambassadorships through political appointments!

Hawaii Likely To (Finally) Enact Marriage Equality

The Hawaii House of Representatives made history last night by giving final passage to an amended marriage equality bill 30-19. This legislative action practically insures that the Aloha State will become the 16th state to have enacted marriage equality, and the second state legislative house to make history this week, following Illinois on Wednesday. The Hawaii Senate still needs to pass the amended bill and send it to the Governor, who intends to enthusiastically sign it into law:

“I commend the House of Representatives for taking this historic vote to move justice and equality forward. 

“After more than 50 hours of public testimony from thousands of testifiers on both sides of the issue, evaluating dozens of amendments, and deliberating procedures through hours of floor debates, the House passed this significant bill, which directly creates a balance between marriage equity for same-sex couples and protects our First Amendment freedoms for religious organizations.

“I applaud Speaker Souki, Judiciary Chair Rhoads, Finance Chair Luke, Majority Leader Saiki and the rest of the leadership team for their patience, fairness and hard work in shepherding this bill through the House. 

“I am confident that the Senate will address the bill in the same spirit. I look forward to a successful conclusion to this major step in affirming everyone’s civil rights.”

There’s an extra resonance in Hawaii joining the burgeoning group of states embracing marriage equality because twenty years ago it was widely expected to be the first state to end marriage discrimination against same-sex couples. However, it didn’t turn out that way and now Hawaii will be the 16th state instead of the first. Oh well, better late than never.

Hat/tip to Joe.My.God

Cross-posted from The Mad Professah Lectures.

UPDATE: Historic U.S. Senate Vote On ENDA Set For Next Week

A historic vote will happen in the United States Senate next week. On Monday, the nation’s most important legislative body will vote on the Employment Non-Discrimination Act (ENDA), the federal bill that would ban LGBT employment discrimination nationwide. This is historic because it is the first time in 17 years the bill has a realistic chance of passing the Senate; in 1996 an earlier version of ENDA failed by 1 vote, 49-50. It’s possible, but unlikely, that history could repeat itself, because by my count there are currently only 59 public supporters in the Senate and in the new modus operandi of the body all significant pieces of legislation have to reach a 60-vote threshold of support in order to pass.

Currently there are 29 states where there are no state laws protecting against sexual orientation-based employment discrimination and there are 33 states where there is no state-based protection for employment discrimination based on gender identity or gender expression. ENDA becoming law would mean LGBT people would be protected nationwide and would be one of the rare examples of the federal legislature acting in the interests of LGBT people.

According to The Advocate, after a successful cloture vote on Monday, actual passage of the bill would occur on Wednesday November 6.

It’s an exciting time to be a student of LGBT history!

Federal LGBT Rights Bill Advances In Congress

Good news! The chances of historic action on the Employment Non-Discrimination Act (ENDA) improved recently with the news that U.S. Senator Bill Nelson of Florida has signed on to co-sponsor the federal bill to ban LGBT employment discrimination nationwide.

The Washington Blade reports on recent ENDA developments:

After months of lobbying and public pressure, Sen. Bill Nelson (D-Fla.) on Monday became the 54th sponsor of the Employment Non-Discrimination Act.

The senator’s name is listed as among the sponsors of ENDA on “Thomas,” the website for the Library of Congress that monitors legislation. According to the website, Nelson signed on as a supporter Monday, the same day Senate Majority Leader Harry Reid (D-Nev.) announced that a Senate vote on ENDA would take place before Thanksgiving.

[…]

Republicans Sens. Orrin Hatch (R-Utah) and Lisa Murkowski (R-Alaska) also voted for ENDA in committee. That means the legislation now has 57 votes, which is three short of overcoming a filibuster.

The Florida Democrat’s support arguably places the legislation well ahead of any other legislation specific to an LGBT issues in terms of the number of co-sponsors. Since Sen. Jay Rockfeller became a supporter, ENDA has exceeded the number of co-sponsors for legislation that led to “Don’t Ask, Don’t Tell” repeal in 2010 and the 2001 version of the Matthew Shepard Hate Crimes Prevention Act.

It is perfectly legal to fire employees because of their sexual orientation in twenty-nine states; while technically it is illegal to fire someone based on their gender identity only 17 states have laws explicitly prohibiting the practice, which is believed to be widespread.

Even if there are 60 votes in the Senate to pass ENDA (which is likely since it is only 3 votes shy right now) it is considered almost impossible for ENDA to pass the House of Representatives while it is under Republican control.

Hat/tip to HRC

Cross-posted from The Mad Professah Lectures

For More Than 100 Million Americans, Marriage Equality Is A Reality Now

One decade ago there were exactly zero states that had marriage equality, even though the Defense of Marriage Act had been federal law for seven years by the time. However, in November 2003 the Massachusetts Supreme Judicial Court ruled that the state constitution required equal marriage rights for same-sex couples under the law and issued an order to go in effect on May 17, 2004. Note that the second state, Connecticut, did not have marriage equality until November 2008 (and for a brief 173 days starting in June 2008 Californians also had access to same-sex marriage prior to the passage of Proposition 8). So, really in a little over 5 years marriage equality has increased from roughly 10 million by another order of magnitude.

With New Jersey becoming the 14th state to enact marriage equality this week there are now well over 100 million people who live in states with marriage equality, about 33% of the entire U.S. population.

The American Foundation for Equal Rights (AFER) summarizes the astonishingly rapid progress:

State	Date Effective	Population	Percent
Massachusetts	May 2004	6,547,629	2.12%
Connecticut	Nov. 2008	3,574,097	1.16%
Iowa	Apr. 2009	3,046,355	0.99%
Vermont	Jun. 2009	625,741	0.20%
New Hampshire	Jan. 2010	1,316,470	0.43%
Washington, D.C.	Mar. 2010	601,723	0.19%
New York	Jun. 2011	19,378,361	6.28%
Washington	Dec. 2012	6,724,540	2.18%
Maine	Dec. 2012	1,328,361	0.43%
Maryland	Jan. 2013	5,773,552	1.87%
Delaware	Jun. 2013	897,934	0.29%
California	Jun. 2013	37,253,956	12.07%
Minnesota	Aug. 2013	5,303,925	1.72%
Rhode Island	Aug. 2013	1,052,567	0.34%
New Jersey	Oct. 2013	8,791,894	2.84%
	Total	102,216,846	33.11%

Any predictions for when the United States will hit 50%? Remember Illinois, Hawaii, New Mexico and Oregon are widely expected to legalize civil marriage for same-sex couples sooner rather than later.

Cross-posted from The Mad Professah Lectures