The Prop 8 Decision

To some disappointment but little surprise, the Calif Supreme Court announced that they were upholding Prop 8 as a valid amendment to the Calif Constitution, and they were also upholding the existing marriages. Needless to say, George and I were relieved that our own marriage continues to be valid and recognized by the state of California, but sad that other gay and lesbian couples will not be able to similarly enjoy full equality in California (for now). As a matter of policy, I think it will be better in the long run for California to fix this at the ballot box rather than in the courthouse, and I believe that's fully achievable in a few years (if not next year). Politically, overturning the amendment would have had a corrosive effect on the faith of people in our political process, as few would have understood the technical legal arguments supporting an overturn. It would have widely been seen as an activist or result-oriented decision, undermining the credibility of the Court, not just among the rabid wingnuts but among more reasonable people as well.

Legally, while I thought that the arguments for overturning the amendment were well-grounded in the philosophy of constitutional democracy, I also think that the Supreme Court did the right thing here. They interpreted the Constitution as it is written, and not as it ought to be written. Their regret, that our state constitution is too easily amended and does not adequately provide protection against the abridgement of fundamental rights, was manifest. They practically proposed an amendment to remedy that, pointing to specific language in the constitutions of other states that explicitly protects fundamental rights. (But would that be a revision?) Their conservative decision belied the accusations of liberal activist judging that were levied by those who didn't like the Marriage Cases decision.

On the upside, the Court went out of their way to emphasize how much of the Marriage Cases opinion is still good law. The Court affirmed the finding of the constitutional right of same-sex couples to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage", that that right is fundamental (embodied in the constitutional right to privacy and due process), and that same-sex orientation is a suspect class. And note that while the Marriage Cases opinion was 4-3, all 7 justices signed onto or concurred with this affirmation. (The three dissenting justices from the Marriage Cases all signed on to the majority opinion here.)
Further, the Court reasoned that because Prop 8 did conflict with a fundamental right, legal construction rules required it to be interpreted as narrowly and specifically as possible. The opinion went on to spell out exactly how constrained that interpretation would be: Prop 8 constrains the designation of "marriage", and nothing more. It does not touch any of the substantive rights found in the right to marry. Thus, if any of the anti-equality folks harbored secret hopes of using the constitutional amendment as a beachhead to dismantle domestic partnerships, those hopes were pre-empted by this opinion. The Court prospectively interpreted Prop 8 as narrowly as possible, dug a moat around it, put yellow police tape around that, and said "move along folks, nothing to see here…" (Though the Court does not properly do prospective interpretation per se, they cleverly worked it in as an essential part of their amendment vs. revision analysis.) And of course the narrow construction included unanimously upholding the 18,000 pre-Prop 8 marriages.

The Court was as positive as it could be about same-sex marriage in a case which marriage wasn't directly at issue. The actual legal issue at hand was the ability of the people of California to enact constitutional amendments that abridge fundamental rights, a question which boiled down to technicalities about "amendments" versus "revisions". And the unfortunate answer is that it appears that 51% of the voters in a single election can indeed amend the state constitution to curtail "inalienable" rights, with the only backstop being the U.S. Constitution. Thus, with amendments, the appeal to the independent interpretation of the state constitution, so zealously guarded by the Court in Raven v. Deukmejian, is out the window. The Court even suggested that had the revision vs. amendment argument been raised in Mulkey v. Reitman (a 1964 initiative constitutional amendment overturning legislation that outlawed racial covenant restrictions in real estate transactions), it would have been upheld as validly enacted (though it was struck down as violating the U.S. Constitution). While this is causing some alarm among minority and civil rights groups, we should follow their advice and direct our energies toward fixing this flaw in our state constitution, rather than get mad at the judges who are just interpreting it as it is.

That being said, I do have to applaud Justice Moreno's passionate dissent. I'm glad there was a voice of dissent, scolding the other justices for backing away from their own strongly articulated Marriage Cases holding that even a difference "in name only" can create substantive unequal protection of the law. When it's time for Scalia to be replaced, I hope they consider Justice Moreno. That would be karmic balance.

Prop 8 Challenge - Oral Argument Impressions

I'm wondering whether Thursday's oral arguments at the California Supreme Court in the challenge against Prop 8 set a new "ratings" record for a court proceeding. In addition to the packed courtroom, there were jumbotron TV screens set up for crowds at San Francisco and LA City Halls and an auditorium in West Hollywood, and the proceeding was streamed live on the Internet, where it was watched by countless more. That's certainly a good thing in terms of civic interest as well as court transparency. I'm also wondering how many of those people really understood what the case was about. Contrary to the common understanding, this was not a case about gay marriage. While gay marriage was at stake, it was not at issue. What was at issue was a procedural question about "revising" versus "amending" the constitution, and the underlying crucial philosophical questions about the purpose of a constitution and the meaning of inalienable rights.

All four of the attorneys for the petitioners were very good, but as with their briefs, I thought that Therese Stewart (representing the City and County of San Francisco) most eloquently expressed the core principles at issue. She expounded the centrality of the protection of minorities against the majority in the drafting of the Constitution, and the deliberate distinction between a revision and an amendment as the people intentionally restraining themselves through the Constitution. While the small body of precedent concerning amendment vs revision has focused on "quantitative" or "structural" changes, at least some of the Justices seemed to agree that this was a case of first impression on the question of an amendment abridging a fundamental right with respect to a suspect class (i.e., exactly the sort of thing that would get tossed on equal protection grounds if enacted as statute), and further, that the grounds for revision were not necessarily limited to the categories of quantitative or structural change. I thought Stewart got the heart of it when she stated that the purpose of the Constitution, particularly of its Equal Protection clause, and of its separation of powers (checks and balances) is to protect politically vulnerable minorities, which is why structural changes require the revision process. But to put this safeguard against tinkering with the constitutional protection mechanisms to ensure liberty, but not to safeguard against direct assaults on liberty, would be to "defend the moat while letting the castle burn". (Her written brief presents the argument more eloquently than I can here in a brief blog.)

Unfortunately, the Court seemed pretty skeptical of the revision argument, both from reluctance to forge new ground (which is what they were being asked to do) and from remaining unpersuaded that Prop 8 was such a significant assault on equal protection. That latter was crucially disappointing, as Justices George and Kennard seemed to have forgotten what they wrote so forcefully last year. Both of them made repeated comments to the effect that Prop 8 was not really abridging signficant substantive rights, but that it was really just tinkering with nomenclature. Huh? They spoke as if the decision last year had been about some quantitative disparity between the treatment of marriage and domestic partnership, when in fact the whole issue was whether a difference only in nomenclature was a significant impairment of equal protection. Chief Justice George wrote for pages and pages on why nomenclature matters. And now: eh, it's just a name. I expect it was just seasoned discretion on the part of the petitioners counsel not to quote the Justices own opinions to them (the one time Stewart started down that road, Justice Kennard got very defensive).

There was also the "novel theory" from the Attorney General, who didn't do anyone any favors by needlessly undermining the petitioners' theory while advancing a novel one of his own, and then sending an inexperienced and not-well-prepared underling to advocate it. Jerry Brown should have had the cojones to defend his theory himself, especially in such a high profile case. This seems like political thinking all around: flip sides to be where he thinks would be more popular with his base, but then send someone else to argue the case so he can distance himself from a failure. It would be one thing if he had a junior attorney on his staff who was a classical liberal zealot steeped in John Stuart Mill and the other classical philosophy in which the novel theory was grounded, who could have argued passionately. But the attorney he sent was clearly not that, and he stumbled painfully in defending an argument he himself seemed not to clearly understand. Some potentially interesting philosophical ground was broached in the question of "inalienable rights", which rights are inalienable, what exactly inalienable means. Alas, no good answers were given. And it doesn't help that the California Constitution, having been amended some 500 times (as was repeatedly remarked), is rather a jumble. As C.J. George noted, reading from Article I, Section 1 (the "bill of rights") of the California Constitution, it identifies liberty, property, and privacy among the "inalienable" rights, but the same section also includes the right to fish, and the right to travel navigable waterways. Do Californians really have an inalienable right to fish?

One thing I was glad for was an affirmation of something I have been saying all along: that Prop 8 does not nullify the Court's decision of last May, and that the findings of sexual orientation being a suspect class, and marriage being a fundamental right entitled to strict scrutiny with regard to equal protection questions -- all of that is still in full force and good law, regardless of what happens in this challenge. That point was made emphatically and repeatedly by several of the Justices (particularly George and Kennard), and was agreed to by the intervenor counsel. The Justices also referred to the "constitutionalization" of the equal marriage rights, which if I understand their meaning, means that even though it was the legislature who created domestic partnership and has given it all of the same rights of marriage, it would violate the Constitution to take any of those rights away.

I was glad to see that the implications of upholding Prop 8 (or more accurately, holding that the voters of California may abridge a fundamental right against a suspect class by a bare 50%+1 majority) were laid bare. Intervenor counsel Kenneth Starr freely admitted that by the theory he was arguing for, a bare majority of the voters could amend the Constitution in practically unlimited ways, including deleting the right of free speech from the California Constitution, or by amending the Constitution to prohibit any legislation protecting the rights of gays and lesbians. Justice George mused that the problem may well be that the California Constitution is too easily amended, but that's a problem that should be resolved politically. (Hello, Sacramento? Can we get a legislative initiative to revise the amendment process? Certainly all the same legislators who earlier this week voted for the resolution that Prop 8 should have been a revision should support the codification of the principle behind the instance.)

There was also some discussion of the "split the baby" proposition offered by Pepperdine law professors Kmiec and Saxer in Sunday's San Francisco Chronicle. They ventured that the best way to reconcile the religious liberty interests of Proposition 8 with the equal protection interests of In Re Marriage Cases would be to have the state offer domestic partnerships to everyone and "marriage" (the nomenclature) to no one. Justice Chin was fascinated by this, and asked several of the attorneys whether that proposal would adequately resolve all of the issues at hand, and whether it was the province of the Court to impose that solution. Everyone (including Starr) agreed with the first part, but there was little enthusiasm for the second part (and a clear "no" from Starr).

I suppose we don't really know what the Justices are thinking, or what they will conclude, but for the most part they seemed surprisingly scrutable. It could be that they are merely masters at devil's advocacy, or it could be that they have pretty lousy poker faces. From what I saw, I concur with the consensus of observers that Prop 8 will be upheld, but the marriages that occurred within the legal window will also be upheld. That latter may even be unanimous. Starr seemed to be meeting skepticism all across the panel on that argument. (Just for the fun of prediction, I'll predict that Prop 8 is upheld 5-2, with Werdigar and Moreno in the minority, and the existing marriages are upheld unanimously.)

In the long run, upholding Prop 8 will be a good thing, as it will force us to win the political fight head on (which we're quite close to doing), rather than enabling the distraction of the "black-robed tyrants" complaint. And as a bonus, maybe this will even spur a revision of our state's out-of-control amendment process.

Boycotts, Betrayal, and Business

Over the weekend, LA Times columnist Steve Lopez wrote about Margie Christofferson, the unfortunate longtime manager and hostess at El Coyote Café on Beverly. Following the instruction of her Mormon church, she donated $100 toward the Yes on 8 campaign. When her name was discovered on a donor list, a disproportionate barrage of gay outrage was directed at her and at El Coyote, leading to email and website calls to boycott the restaurant, and protest demonstrations outside the landmark venue. I have a variety of mixed feelings about this.

For one, I think it's clearly disproportionate. While any donation toward injustice is regrettable, a great many people gave much larger donations than Christofferson's $100, and few if any have received the same focused wrath. Moreover, her donation was personal and not made on behalf of El Coyote. True, she is the daughter of the owner, and the public face of the restaurant. But the restaurant, as Lopez notes, has 89 employees, many of them gay. A couple of other managers pooled together a several hundred dollar donation to Equality California, and the donations of other employees to No on 8 may well have outweighed Christofferson's $100 for Yes. Because business is down 30%, likely the result of the boycott, many employees have had their hours cut and may be laid off. So this boycott has unjustly caused harm much more widely than its intended target.

I can sympathize with those who are angry at El Coyote, and can understand why this particular donation incurred such wrath. A friend recently noted that there's a strong sense of betrayal, because for so many gay people, El Coyote has seemed to be a safe and welcoming place for us, a part of "our neighborhood". And El Coyote has certainly done a significant share of its business from its gay clientele. Thus, this particular donation came with a sense of betrayal. We expected people like Howard Ahmanson and Rick Warren to be donating heavily to Proposition 8, and donations from people in Kern and Orange counties were expected. But here, in a gay-friendly restaurant, in the gay-friendliest part of town, where we always thought we were among friends, even a modest donation was an unexpected betrayal. It was a violation of an unspoken trust, and shattered the feeling of comfort and safety that many gay people felt at El Coyote. And for gay people, that can hit especially hard. Many gay people have been estranged or kicked out of their natural homes and families, which makes their feeling of adopted "home" in gay-friendly neighborhoods and venues like El Coyote have much greater import. I don't think this justifies the harsh response, but I think it explains the emotional logic of it. It was a betrayal that cut especially deep and close to home.

On the other hand, Christofferson seems oblivious to the injustice she has helped to perpetrate. It's one thing for people who claim not to know anybody gay (or who disown those they know) to advocate such things. But these people, like Sarah Palin and apparently like Margie Christofferson, who claim to have gay friends, yet still advocate against our equal rights, that's just galling. How can you claim to be someone's friend, and then vote to infringe their rights? That's as nonsensical as saying "Oh, I have lots of black friends, but I just don't think they should be allowed to drink out of the same drinking fountain as white people." Sorry, Sarah, sorry Margie, but you're not our friend. We've gone on too long letting you get away with pretending that you are. Are we just supposed to roll over and say, "oh well, you helped pass the revocation of my civil rights, but let's let it go, and pour me another margarita?" I don't think so.

Philosophically, I have a bit of discomfort with the fairness of a boycott, given the asymmetry in our laws. In "libertopia", everyone would have unfettered choice about who they do business with. But here in America (and especially in California), we recognize the power of a majority to economically tyrannize a minority, and so we have created laws against discrimination in public accommodations. Businesses are generally not allowed to discriminate (at least based on a variety of protected classes like race, religion, etc.) in choosing their customers. But customers, on the other hand, are allowed to choose their businesses. For instance, while it would be illegal for a restaurant to refuse to serve black people, it is not illegal for black people to organize a boycott of a restaurant. There's just something asymmetrical and unfair about that. As evidenced by El Coyote's empty tables, boycotts can have a powerful effect. The freedom of businesses to serve or refuse to serve whoever they choose has been sacrificed for the good of keeping economic cudgels from pummeling unpopular minorities, thus preserving liberty across the board for a diverse society where it might otherwise be practically infringed. It would seem a fair bargain that organized consumers not pick up that same economic cudgel, for the same reasons. Obviously, there's no practical way to legislate such a thing. But it is a philosophical qualm I have about boycotts in general.

On the other hand, Christofferson made a choice that had obvious ramifications for the business that she manages (and that her mother owns). One of El Coyote's significant assets was the "good will" that it had cultivated over the years in the gay community. It would be impossible for Christofferson to be oblivious to the value of gay good will to her business, and foolish to think that her position on Prop 8 wouldn't put that asset in jeopardy. And any businessperson ought to understand the value and the fragility of that intangible asset. While she has every right to her own political views and donations, when her advocacy goes against a constituency prominent among the clientele of her business, she has no right not to be responsible for the consequences. She has the right to insult any customer she pleases, but not the right to expect that customer to come back.

Prop 8 Leads to Teaching Gay Marriage in Schools

The big theme of the Yes on 8 crowd was that gay marriage would be taught in schools. The irony of course is that Prop 8 itself probably did more than anything else could have to get kids talking about gay marriage. With even further irony, they may also have made it a legitimate part of the curriculum, especially if the Cal Supreme Court does the right thing and invalidates Prop 8. This would make it a very fitting topic for Civics class. It's quite clear from all the noise being made about "four judges overturning the will of the people" that there are quite a lot of California citizens deficient in their Civics education, or at least in need of a refresher. Remedial topics include the Bill of Rights, the founding fathers' views on the "tyranny of the majority", the role of constitutions in protecting the fundamental rights of minorities against abridgement by majorities, and the role of supreme courts in enforcing that protection. Historical highlights in the curriculum include Marbury v. Madison, Brown v. Board of Education, Loving v. Virginia, Griswold v. Connecticut, Romer v. Evans, and Lawrence v. Texas. For California students, study should also include the role of the California Supreme Court as an independent guarantor of rights. Highlights include Perez v. Sharp, Mulkey v. Reitman, and In Re Marriage Cases.

UPDATE: The LA Times editorial board was on the same wavelength: "Maybe schools need to strengthen their civics lessons so that future voters will understand that supreme courts specifically are charged with ruling on constitutional questions -- and it is a sacred and historic role of the courts to protect minority rights as enshrined in state and federal constitutions. Indeed, if courts merely existed to ratify the will of majorities, they would add little to our society." And the spate of ensuing letters showed plenty of citizens needing those remedial civics lessons.

Prop 8 Court Appeal Watch

As expected, the California Supreme Court agreed to hear the petitions filed against Prop 8, but denied the request to stay its enforcement in the meantime. The Court requested both sides to prepare arguments on three questions:

1. Is Prop 8 invalid because it is a revision, rather than amendment of the Constitution?
2. Does Prop 8 violate the separation of powers doctrine (i.e., does it usurp the role of the Court in protecting minority interests in fundamental equal protection rights)?
3. If Prop 8 stands, what is the effect on the marriages that have already occurred?

Interesting that the Court took the initiative to take on the third question, as I don't believe any of the petitions raised it. In the Marriage decision, Justice Kennard wrote a separate concurrence to elaborate on how that decision could be consistent with having previously struck down the "San Francisco marriages" of 2005 as unconstitutional (an opinion she disagreed with). But speaking of Justice Kennard, I'm not sure what to make of the fact that she alone dissented from accepting the petitions, and would have preferred a separate petition to deal with the issue of the pre-Prop 8 marriages. Does that mean that she would have completely dismissed the petitions, or does that merely mean that she thought it inappropriate for the Court to request a hearing on that issue without really having been asked? If the former, that doesn't bode well at all. I'm suspecting it's the latter.

In the one other tea leaf to be read, Justice Moreno alone would have granted the stay of enforcement.

One last bright note, the Court denied the request of the Campaign for California Families to intervene. CCF President Randy Thomasson is the guy who tried to put up an even harsher ballot initiative that would have tossed out domestic partnerships as well. Only the original Prop 8 proponents will be allowed to intervene.

Briefs are due in January, and oral arguments could be heard as early as next March under an expedited schedule.

Prop 8 Court Appeal Update

As of today, there are now six petitions filed with the California Supreme Court to overturn Prop 8. In addition to the three filings I wrote about yesterday, there are now three more. The basic argument, that allowing Prop 8 to stand as an initiative amendment enacted by a bare majority of voters is a horrible precedent, is the same in all the petitions. But some compelling perspectives are added. One is a joint filing by the Asian Pacific American Legal Center, the NAACP, and the Mexican American Legal Defense and Education Fund (MALDEF), voicing their concern that if a bare majority of voters can revoke a fundamental right, California voters could enact laws to revive racial covenants in real estate, prevent Asian-Americans from owning land (as had been law nearly 100 years ago), or revive laws preventing mixed-race marriages. (As a sign at a recent protest said, "You may not be gay, but you may be next.") Another is a joint filing by the California Council of Churches, the Universal Church of Christ, the Unitarian Universalist Church, and the Episcopal Bishops of Los Angeles and California, who argue along similar lines that this precedent could allow voters to infringe on fundamental rights of religious liberty, especially of minority denominations. This is compelling stuff.

On the other side, there are five parties opposing these petitions. A few of them make respectable arguments on the core revision vs. amendment issue, pointing to the precedents they view as most analogous, and pressing the "voice of the people" argument, but ignoring rather than addressing the equal protection arguments. A fourth party, the Pacific Justice Institute, offers only weak arguments around the margins (like an argument that the Cities of LA and San Francisco lack standing to file a petition). A fifth party, one D.Q. Marriette Do-Nguyen, claims to be speaking on behalf of the Almighty Eternal Creator, as His Heiress. For the edification of the Supreme Court Justices, she reveals the message of the Almighty Eternal Creator, as revealed to her in a dream last week, concerning not only Prop 8 and abortion, but also the Iraq War, George Bush, Bill Clinton, Elliott Spitzer, and other gems of received wisdom. I kid you not. (As one friend commented, something about opposing same-sex marriage really brings the nutcases out of the woodwork.) The arguments of the Almighty notwithstanding, I'm hopeful that the Court will find the petitions as stirring and compelling as I do.

Prop 8: The Court Appeal

When I first heard that there were going to be court appeals against Prop 8, my first reaction was that was really going to be a stretch. It's perfectly appropriate for the Court to find a statute to be unconstitutional, but it's rather problematic to ask the Court to find a constitutional amendment (which is, by definition, now part of the Constitution) to be unconstitutional. However, having read the briefs that have been filed, I see there actually is a claim to be made, and I'm cautiously optimistic that the court may go for it. (Of course, I also cringe now just saying "cautiously optimistic", as I used that same phrase often in expressing my hope that Prop 8 was going to fail at the ballot box. I guess with me, cautious optimism springs eternal.) The gist is that the California Constitution has two different processes for being changed, one called an "amendment" and one called a "revision". An "amendment" (which is how Prop 8 was filed) simply requires a bare majority of the voters, while a "revision" requires a more cumbersome process, first a two-thirds majority vote in both legislative houses and then going to the voters. The notion is that items of limited scope are "amendments", while those that make more substantive changes in the constitution of the government must be "revisions". The Constitution itself provides no more clarity on exactly what makes something rise to the level of a "revision". That distinction is left up to the Court to interpret. And historically, the Court has invalidated a couple of previous ballot initiative amendments, saying that they were too fundamental to be an amendment and really needed to go through the revision process. That's what Prop 8 opponents are asking the Court to do with Prop 8.

There's a good argument to be made that a change to the Constitution that actually repeals fundamental rights is substantive enough in scope to warrant the revision process, and the three appeals that I've read (I've heard there may now be a fourth) have made that argument. This would actually vindicate the intuition of many people that it's outrageous that the revoking of a fundamental right could be put to a ballot initiative for a bare majority. For those who care about constitutional forms of government, Prop 8 sets a frightening precedent (and it is indeed unprecedented). If that precedent is allowed to stand, then any unpopular minority group could have its constitutional rights revoked by a bare majority of the voters. Conceivably, we could put up an initiative that Mormon marriages would no longer be recognized by the state, or even more egregiously, California could legalize slavery again. Is it reasonable to think that California voters could enact such changes with just 51% of the voters on a ballot initiative? Undoubtedly, such measures would be struck down on appeals to the US Constitution, but one would hope that the California Constitution's guarantee of fundamental rights would stand on its own in this regard. Our constitutional government provides for "checks and balances" in separate branches of government, and one of the important duties of the Supreme Court is to safeguard the constitutional rights of minorities against what the founding fathers termed the "tyranny of the majority". A measure like Prop 8 defies that fundamental separation of powers. That's the gist of the arguments being made, and the Court may well find them compelling. Governor Schwarzenegger has advocated as much, and 44 California Senators and Assemblymembers have signed on to an amicus brief in favor of that position.

Of course any Supreme Court decision ultimately comes down to the seven Justices making the decision. The decision last spring recognizing a fundamental right to equal recognition of same-sex marriages was made by the minimum of four Justices, with three dissenting. For the original four concurring Justices, if they really believe what they wrote last May (their language was pretty clear and strong in terms of fundamental rights and protecting a minority group), then they would stand up for their opinion, and strike down Prop 8 as an insufficiently enacted constitutional revision. Those Justices were courageous in the face of what they probably knew would be substantial popular backlash (protecting minority rights, as the Court has noted, is often an unpopular job), and we can hope their courage does not falter. Unfortunately, ominous rumblings about their re-election prospects, and calls to remember Rose Bird, are being made by the Prop 8 backers (who have proven how ruthless they can be). Then we have the three dissenting Justices. The underlying issue for them will be whether they take the earlier decision as established precedent when evaluating this claim, or whether that precedent (that they didn’t agree with) is still open in their minds. Technically, this is a new and purely procedural issue (i.e., whether the initiative was inappropriately put forth as an amendment) that doesn't invite a revisiting of the earlier decision (whether there is a fundamental right to marry the person of one's choice), but in practice it may be hard to resist the opportunity to implicitly revisit the earlier decision in deciding this one. On the other hand, if I recall correctly, when the Prop 8 proponents requested a stay of the final Marriage decision pending the election, I believe that was unanimously denied by the Court, indicating that the dissenters are swayed by at least some arguments for proper procedure and not revisiting settled matters. Judging by the opinions filed in the Marriage decision (in addition to the decision, there was one concurrence and two separate dissents), I'd say the most likely outcome is that Prop 8 is invalidated by the same 4-3 decision as the original Marriage decision, since the four concurring justices spoke strongly about the role of the Court in protecting rights of minorities, while the three dissenters spoke strongly about the Court not overturning the will of the people expressed at the ballot box, and those same issues arise here.

The filings can all be read here (update: I just heard there are now six separate filings). Of those I've read, the NCRL brief does the most technical work in discussing the various precedents on the revision vs. amendment issue, but the brief by the Cities makes the most readable and very eloquent statement of the issue. If you read only one, read that one.

There are rumblings that the Court will take some action on Wednesday, making initial decisions whether to even hear the case (I think they will, since both sides are urging that), and whether to issue an immediate stay in the meantime (I suspect they won't). Stay tuned.

The Shape of the Cocoon

This map shows how Los Angeles County voted on Prop 8, precinct by precinct (green is yes on 8, purple is no on 8, the darker the color the larger the margin). The results of this election surprised many, and even traditionally solid liberal LA County went for Prop 8 by a slim majority. (The LA Times generated this map, and you can see it interactively on their web page.) I had always figured we lived in a bit of a cocoon, surrounded by friends and neighbors who tend to be more like-minded, and giving a false impression of what "everybody" thinks. This map gives a good idea of the shape of the cocoon. Locally, "our" turf seems to be the West Side, across through Hollywood, Silver Lake, Echo Park, Eagle Rock and Mount Adams to Pasadena (but not Glendale); the South Bay beach cities but not Torrance or Palos Verdes; the south and west San Fernando Valley plus Northridge, but not the east and most of the north. We knew we didn't have a lot of support in Santa Clarita and Palmdale. Not so much in the inner city or the Inland Empire either, except for a few pockets like Whittier and Claremont. A similar statewide map by county can be viewed here.

Taking The Long View

As I contemplated the feeling of profound disappointment last Wednesday morning, exhausted from having fought so hard for a cause and come up short, I knew I had felt that feeling before. It came to me that it was the same feeling that I felt last February the day after "super Tuesday", when I had poured a heap of time, sweat, and money into Obama's primary campaign in California. He had been leading in the polls in California, and at least within my horizons, there had seemed to be a vast surging tide of enthusiasm for Obama then that seemed to assure victory in the California primary. On February 6, I awoke to the news and that same feeling of exhausted disbelief and crestfallenness. But the similarity of those days suggests a lesson to me. One of the things I have admired about Obama is his uncanny ability to remain calm and steadily focused on the long goal despite blows and setbacks. While first Clinton and later McCain kept reinventing themselves to fit the focus group of the moment, and kept changing their strategy like a supermodel changes shoes, Obama kept his steady eye on the prize and didn't waver in his vision or in the execution of his strategy. Prop 8 was a setback, but we need to remember that just as sure as Obama lost California on super Tuesday and still went on to win the election, the cause of equal treatment under the law for citizens regardless of their sexual orientation will win out in the end.

I haven't participated in any of the large protests going on since the election. I understand people feeling like they want to vent, and a few demontrations are probably a good thing to signify the passion behind this issue. But I don't think expressions of outrage are the most productive means of changing anyone's mind. We've made a huge amount of progress in the eight years since Prop 22, and I attribute that progress primarily to gay people from all walks of life being more open and visible. Not as angry sign-waving people or folks marching in a parade, but as co-workers, as parents of school children, as fellow churchmembers, as soldiers, and in all the ways that anybody encounters their fellow citizens in our society. Just living our lives in quiet but open and unapologetic dignity does more than anything else to open our fellow citizens' eyes to the injustices in our current government policies. Some of those policies need to be explained to people (e.g., unequal tax treatment and social security benefits), but they can be explained calmly. The observation of injustice speaks for itself far more loudly than demands for justice can be shouted.

Hope Overshadowed

It's hard to describe the mixture of feelings I felt this morning. There was a base of exhaustion, both physically, the hoarse voice and aching back and feet from standing for 13 hours near polling sites (a legal distance away) passing out "No on 8" cards to poll-bound voters, and emotionally, from having invested so much money, time, and sweat in the No on 8 campaign, only to come so close and miss. I should have been absolutely exuberant at the Obama landslide, a campaign I also devoted much energy to earlier in the year, but emotionally, the cloud of Prop 8 overshadowed what should have been a dawn of triumph. "Yes We Can" rang hollow when it turned out that here in California -- California! -- no, we couldn't quite. When I step back and try to be dispassionate about it, I appreciate it's a great day. If I were given a choice between Obama winning or Prop 8 losing, and I couldn't have both, I'd definitely take the outcome that we got. Obama's victory is huge, and I have great hope that he will live up to his promise of being the greatest president in my lifetime. And the fact of a black man winning the highest office in the land crowns a trajectory of equality traced by Frederick Douglass, Abraham Lincoln, and Martin Luther King, Jr. I should be dancing in the street and singing hallelujah. Maybe tomorrow the Yes We Can spirit will reinspire me with hope, but today I'm just feeling spent and a bit dazed, like someone who won a big lottery and lost a loved one all in the same day. (Obama himself may be feeling that way too, having lost his grandmother on the eve of his victory.) I can't help but ponder the bitter irony that the overwhelming black turnout for this historic election may well have been decisive in passing Proposition 8. And I can't help but feeling a twinge of resentment that Obama didn't come out more forcefully against Prop 8, which could well have made a big difference for black voters. Of course I understand full well why he didn't and why he shouldn't have, but emotion has its own logic. And Prop 8 was so much more personal than the presidential race. The proponents succeeded in turning it into a referendum on the unworthiness of gay marriages as a moral example for children. While individual marriages vary, I'm personally convinced that gay marriages can be as morally praiseworthy and exemplary as straight ones. I'd like to think that my godson and goddaughter, whether they turn out to be gay or straight, might find some qualities to admire and emulate in their uncles' marriage. I respect the right of Californians to disagree, but it's demoralizing to find that 52% of them do. But what's worse is to find that 52% of Californians are willing to translate their moral disapproval into constitutionalizing our unequal treatment by the law. To anyone who doesn't understand why this is so personal, I ask: how would you feel if your marriage were on the ballot, subject to the approval of voters? And how would you feel if your marriage were voted down?

Every Major Newspaper in California Opposes Prop 8

So far as I can tell, every major newspaper in California has come out against Prop 8. Not just the supposedly liberal "big city" papers, but in more Republican strongholds like Orange County, San Diego and Contra Costa County, and in the inland cities like Fresno, Stockton, Redding, Bakersfield, and Tracy. I have yet to find a newspaper anywhere in California that has come out in favor of Prop 8.

• "Fundamental rights are exactly that. They should neither wait for popular acceptance, nor be revoked because it is lacking."
  —Los Angeles Times endorses NO on Prop 8
  
• "it is only fair that it afford equal protection to all who choose to make loving lifelong commitments to one another. We recommend a "no" vote on Prop. 8."
  —Orange County Register
  
• "Should we use the state constitution to take the right to marry from a particular group of people? We believe that notion is wrong, and recommend a "no" vote on Proposition 8."
  —Fresno Bee
  
• "To approve Proposition 8 is to codify discrimination. Californians cannot let that happen."
  —Stockton Record
  
• "Californians need to move beyond the divisiveness that Prop. 8 has engendered and embrace tolerance and reconciliation. Live and let live. We recommend a NO vote on Prop. 8."
  —Bakersfield Californian
  
• "Just as an individual's sexual orientation is not a legitimate basis on which to deny housing or a job, it is not a legitimate basis on which to deny individuals the right to marry. Californians should reject the call to amend the state constitution to exclude some people from marriage. That would be a black mark on the constitution, just as past exclusionary acts remain a stain on California's history."
  —Sacramento Bee
  
• "Gay and lesbian couples deserve the same dignity and respect in marriage that heterosexual couples have long enjoyed. We urge a No vote on Proposition 8."
  —San Diego Union-Tribune
  
• "We strongly urge voters to carefully consider the harm Prop. 8 would do not just to gays, but to all Californians, and reject the initiative. "
  —Contra Costa Times
  
• "The idea of using a ballot measure to single out a certain group of Californians for denial of individual rights - based on their sexual orientation - would represent an ugly distortion of the very purpose of a constitution. ... Californians should reject Proposition 8."
  —San Francisco Chronicle
  
• "The state constitution should never be amended to limit Californians' right to their own personal and religious beliefs. It should scrupulously uphold equal rights under the law. That is what it now does, based on a state Supreme Court ruling this year affirming a right to same-sex marriage. Voters should not take the extraordinary step of amending the constitution to take a right away. They should reject Proposition 8."
  —San Jose Mercury News
  
• "The Star urges a "no" vote on Proposition 8, which would embed discrimination in the California Constitution."
  —Ventura County Star
  
• "Same-sex vows cause no harm to our families. The reasons given for Proposition 8 just don’t stand up to scrutiny."
  —Redding Record Searchlight
  
• "The decision to marry is those couples' business, and no one else's. There is no compelling public policy reason to reverse that arrangement, and voters should say no to Prop. 8."
  —Riverside Press-Enterprise
  
• "In our view, Proposition 8 is a misguided and unconstitutional proposal. We urge voters to reject Proposition 8."
  —Napa Valley Register
  
• "Same-sex marriage does not diminish marriage between a man and a woman. It's a basic civil right that everyone - regardless of gender - should have. The time has come. Therefore, we oppose Proposition 8."
  —Palm Springs Desert Sun
  
• "The freedom to marry is fundamental in our society, just like the freedoms of religion and speech. Our laws should treat everyone equally. No on 8."
  —Tracy Press
  
• "Even people with reservations about same-sex marriage should consider the import of voting against a legal right. We support the right under California law for gays and lesbians to marry. Vote no on Proposition 8."
  —Santa Cruz Sentinel
  
• "All loving, committed couples should have the right to marry, with all the benefits and obligations that relationship incurs. That's the law now in California, and it should remain the law."
  —Merced Sun Star
  
• "The arguments against same-sex marriages seem close to arguments against mixed-race marriages you'd hear back in the '60s. Hopefully we'll get beyond all that some day. Vote no on Proposition 8."
  —Chico Enterprise-Record
  
• "The California Supreme Court has quite rationally decreed that the state has no power to take away anyone's right to marry the partner of her or his choice. We agree. Vote "no" on Proposition 8 on Nov. 4."
  —San Gabriel Valley Tribune
  
• "Advocates of Proposition 8 offer several arguments, but none of them stand up to close scrutiny."
  —Santa Rosa Press Democrat
  
• "No sea aceptable imponer estas creencias a toda la sociedad y, mucho menos, cambiar la Constitución de California. Estamos con el NO a la Proposición 8."
  —La Opinión
  
• "Vote NO on Proposition 8"
  —La Prensa San Diego
  
• "8 NO. Our California Constitution guarantees the same freedoms and rights to everyone - no one group should be singled out or treated differently."
  —Asian Week
  
• "Reject Proposition 8. California is better than that."
  —LA Daily News
  
• "Who gets to define marriage? If it is the state, then constitutionally, we all must be treated the same."
  —The Daily Breeze
  
• "It is morally deficient to codify intolerance, and wrong to deprive certain citizens of basic rights on no higher grounds than the prejudice of others. But the presence among Prop. 8 detractors of major California companies like PG&E, AT&T, Google and Levi Strauss illustrates that this issue speaks to economics as well, if somewhat more quietly than to equity and civil liberty. Prop. 8 fails this test, too, pointing California toward a less promising future."
  —San Francisco Business Times
  
• "NO, NO, NO"
  —San Francisco Bay Guardian

A Conservative, Virtue-Based Path to Same-Sex Marriage

The following was originally written as a letter in response to someone who felt that same-sex marriage was only about the selfish indulgence of base inclinations, while traditional marriage was modeled on the Christ-like virtues of self-sacrifice and selfless love of another.

I appreciated your thoughts about the purpose of marriage. I agree that marriage ought not to be about the fulfillment of selfish desires, but about the cultivation and practice of the virtues of altruism, serving others, and love (the "agape" kind as famously described in 1 Corinthians 13). Ideally, of course, we should be altruistic, loving and of service to all others, but being the fallible imperfect humans that we are, we can best only strive to come close to that in the context of one other person we devote our life to in marriage, and hope that the altruistic and loving tendencies that we practice within our own family might spill over a little bit into the rest of the people around us. Theologically, as you have expressed, a marriage of two fallible people should be a symbol and an imperfect reflection of the perfect love of God for his creation. God by his grace working through such marriages can inspire others and spread his grace.

The way I was raised, these ideas weren't spoken of much outside of the officiant's remarks at weddings, but I think I absorbed them more strongly by my parents' living example. I grew up with a picture in my head of what my life should be like, and there was no question that it should be centered around a marriage. Thus, at age 20, when I discovered that I was gay, the most difficult part was that my picture I'd always had, of what my life should be, seemed irreparably shattered, and there was nothing but an empty dark unknown in its place. Over time, blessed by the strong support of loving friends and family, I was able to integrate a new picture, one that preserved all of the essential values that I was raised with, but put together in a new way, in the kind of a life I would be able to live with integrity. That new picture also centered around a marriage, with all the same core values I was raised with, except that it involved two men rather than a man and a woman.

I realize that's a radical idea for you. It was a radical idea for me at one time too. But try to imagine my experience. You'll note I said I discovered that I was gay. It's certainly not something I chose. I was raised, like everybody else, thinking I was straight. I was shocked and resistant when I first realized that I wasn't straight. But I know now that being gay is profoundly who I am, and I know that I was created this way. Given that realization, there are four basic paths I could have taken:
(1) live a life of selfish hedonism
(2) marry a woman anyway, and force myself to live a "straight lifestyle"
(3) live a celibate life of monkish asceticism
(4) marry a man, and live in a completely traditional marriage aside from the gender of my spouse

Let's dismiss option 1. Hedonism would be completely untrue to who I am and the values I was raised with. I think we can agree it's not a good option.

Option number 2 is the naive solution, but we've seen too much wreckage from people who have tried that path. Marriage is challenging enough when our instinctive attractions are harnessed in the same direction as our higher goals. To lack that part of the "glue" in a marriage at the same time as attractions are pulling you in a different direction is an invitation for failure. Moreover, that choice is in conflict with the value of self-integrity (I would always being lying to myself and to others at some level), not to mention the value of putting my spouse before myself. How would that ever be fair to the woman involved, since there would always be some part of me I can't fully give her in the way she deserves, and she would be denied the opportunity to have a man who could love her in every dimension? That type of marriage is built on a rotten foundation.

Some would recommend option 3, celibacy, but that's a sad option for someone who finds themselves capable of loving commitment, to have every channel for expressing it with fidelity and integrity prohibited by legalistic moralists. I by no means wish to disparage those who find themselves called to a life of celibacy, which can be noble and rewarding. But it's frankly cruel and misguided to urge that life on those who are not called to it. I was created with a rare capacity to love another man, in the way that most men love women. None of us knows why. But wouldn't it be blasphemous to claim that God made a mistake in his creation, or that God were unable to work his grace through me as I am? I firmly believe that my capacity to love is something that can be used for good purposes, in ways that God would bless, and that it is a kind of blasphemy to squander God's gifts by letting them wither in us unused. Which leads me to option 4.

In thinking about marriage (and believe me, I have thought about it a great deal), I came to realize that there was nothing in the essential concept of it that two men couldn't undertake. Two men are as capable as a man and woman of exchanging vows of lifelong loving commitment, for richer or for poorer, in sickness and in health, and faithfully living out those vows. Two men are as capable as a man and woman of striving within their marriage to put the other first, striving to copy the example of our parents' faithful marriages, striving to be a good example for the younger generation. Two men as are capable as a man and woman of being a symbol and a vessel for God's grace.

That's the kind of marriage that George and I had in mind when we exchanged our marriage vows, and that we have been endeavoring to practice in the seven years so far that we've been living out those promises. The vows we exchanged were the same in content as yours or as any married couple, and equally solemn. Our marriage is no more a selfish indulgence in physical attractions than yours is. We're striving toward the same marriage ideal that you are, as best each of us can with the particular gifts and limitations with which God created us.

Prop 8 Myths: Teaching Same-Sex Marriage in Schools

Myth: If same-sex marriage isn't overturned, public schools will be forced to teach kids about same-sex marriage


There are only a couple of places where marriage is even mentioned in the statutes regarding curriculum. Section 51890 of the Calif. Education Code outlines "comprehensive health education programs", in which "pupils will receive instruction to aid them in making decisions in matters of personal, family, and community health." Subjects include "family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood." In Section 51933, which outlines sexual health education curriculum, the specifications include the following:

• Instruction and materials shall teach respect for marriage and committed relationships.
• Instruction and materials shall be appropriate for use with pupils of all races, genders, sexual orientations, ethnic and cultural backgrounds, and pupils with disabilities.
• Instruction and materials shall be age appropriate.
• All factual information presented shall be medically accurate and objective.
• Instruction and materials shall encourage a pupil to communicate with his or her parents or guardians about human sexuality.

That's the law as it stands now, and there's no reason that this curriculum would change regardless of whether Prop 8 passes or fails. Teaching respect for marriage and committed relationships, and teaching about the responsibilities of marriage and parenthood are good lessons for students regardless of sexual orientation. As the LA Times editorial board said, in urging a NO on 8 vote, "Assertions that it would require schools to promote gay marriage are utter nonsense."

Meghan Daum had an excellent op-ed piece in the LA Times about teaching marriage in schools. It's worth reading the whole thing, but here's the punchline:

And that's why students need marriage-ed. They need it because we're being taught to associate marriage not with permanent commitment but with social status, diamond rings, gifts, throwing a big party and, for women, wearing a dress that doesn't necessarily fit through the door. As a result, many teens of all sexual orientations (and many adults too) not only confuse sex with love, they confuse the long-term implications of marriage with the short-term gratification of wedding and honeymoon planning.

No matter what happens with Proposition 8, the way the education code is worded, it's unlikely that a lot of classroom time will ever get devoted to thinking deeply about marriage of any brand. That's a shame, because what students desperately need to be steered toward is not straight marriage or gay marriage but grown-up marriage. Now that would be radical.

Prop 8 Myths: Churches and Same-Sex Marriage

Myth: If legal same-sex marriage is allowed to stand, churches will be forced to perform same-sex marriages.

This fear is unfounded. Freedom of religion is a bedrock principle of our nation, protected in the First Amendment of the US Constitution, and in Article I, section 4 of the California Constitution. The California Supreme Court was explicit on this point in their decision. Here is a quote from the Supreme Court's opinion:

Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. [Ca. Sup. Ct., S147999 (2008), p. 117]

I would add that just as freedom of religion is still in effect, so too is freedom of speech. Churches continue to have full freedom to make their own decisions about whether to perform same-sex marriages, and to give voice to their own beliefs about the morality or immorality of same-sex marriage.

Myth: Churches may lose their tax-exempt status if they don't perform same-sex marriages, or if they advocate against it.

Some churches are nervous these days because the IRS has been investigating whether they have crossed a line into political advocacy, which would jeopardize their tax-exempt status. A recent organized protest called "Pulpit Freedom Sunday" had a few dozen pastors around the country endorsing presidential candidates from the pulpit. But the federal law is clear on what churches may and may not do in the political arena, while keeping their tax-exempt status. Churches and their leaders may speak freely on issues of public policy, even on specific legislation, and may encourage their members to support or oppose specific legislation, so long as they are not supporting a particular political party or candidate for office. They may spend an "insubstantial" (typically taken to mean less than 10%) amount of their funds on issue advocacy. The law strikes a reasonable balance, giving churches wide latitude to speak out on issues that they believe have moral or religious ramifications, while keeping them out of full-throated politics. (And also remember that churches are free to embrace full-throated politics if they wish, just not with a taxpayer subsidy for their donations.) Thus, no church or religious group will have their tax status penalized for advocating for or against same-sex marriage, or for supporting or opposing a particular proposition.

Given that churches are free to advocate against same-sex marriage while remaining tax-exempt, they are certainly not going to lose their tax-exempt status for refusing to perform same-sex marriages, if that is their belief.

It should also be noted that tax-exempt status is a matter of federal law, determined by the IRS. Thus, changes in California state law regarding same-sex marriage could not possibly have any relevance to the federal matter of tax-exempt status.

Myth: A legal policy of recognizing same-sex marriage is an assault on religious beliefs.

Some people feel that California's recognition of same-sex marriage imposes a redefinition of a religious principle, and thus is interfering in religion. However, it must be recognized that the term "marriage" has been used for a religious ceremony and a legal status, which may be related, but are not the same thing. It's possible to go to city hall and get married legally but not religiously. It's also possible to have a religious marriage but not get a state license (elderly couples remarrying later in life sometimes do this to avoid the legal complications). It's also possible for a marriage to end at different times in the eyes of the church and the state. For example, the Catholic church does not recognize divorce, so Catholic couples may get a legal divorce, but still be married in the view of their church. The state has its definition of marriage, and the churches have their definitions, and they're not always completely in synch. But it's a workable arrangement for a pluralistic society like ours. Thus, the state is defining marriage for the state's own purposes, while the churches are free to define marriage in their own way. The state's recognition of same-sex marriage is not imposed on churches any more than the state's provision for divorce is imposed on churches that don't believe in divorce.

It also must be said that not all churches oppose same-sex marriage. Some churches perform same-sex wedding ceremonies, and welcome and affirm same-sex couples. National denominations including United Church of Christ, Unitarian Universalist Church, Reform Judaism and others bless same-sex marriages as a matter of denominational policy. Other denominations, including the Episcopalians, Methodists, Lutherans, and Conservative Judaism, while lacking national consensus, have some churches and some clergy who have blessed same-sex marriages. Thus, a legal policy that would outlaw same-sex marriage is a disparagement to those religious institutions. Why should those religious marriages not merit equal recognition to all other marriages?

Further, it should be noted that even some religious leaders who oppose religious same-sex marriage also oppose unequal legal treatment for same-sex couples. California's top Episcopal bishops (who are themselves divided on whether their church should actually perform same-sex marriages) all came out in opposition to Proposition 8. And while the Adventist General Conference opposes same-sex marriage, a petition of Adventists opposing Prop 8 on the principle of religious liberty (something Adventists are quite sensitive to) has drawn endorsements from many pastors, professors, and other Adventist leaders.

---

UPDATE: There is a good discussion of the "scary" court cases being hyped out of context by Prop 8 supporters, as well as Q&A about concerns from a Christian perspective on the website for Adventists Against Prop 8.

An Open Letter to Fellow Californians: NO on Prop 8

My husband and I have written an open letter to our fellow California citizens, urging them to vote NO on Prop 8. In it, we explain what marriage means to us, what legal recognition of our marriage means to us, and what legal recognition of our marriage means to others.

If you find our letter helpful in thinking about this issue, we hope that you will talk about it with your friends and family, and send them the link to our letter.

We realize that you, our fellow Californians, are a diverse crowd with many different points of view. We've tried to explain our viewpoint in this letter, but we couldn't address every possible moral, religious, political and philosophical perspective. If you have questions, comments, or would like to discuss this further, we welcome respectful dialog with our fellow citizens. Please feel free to add your comments here on this blogpost.

A Gay Couple's Worst Nightmare

Sometimes opponents of same-sex marriage will argue that we don't need legal marriage if we can get all the same things from domestic partnership, or power-of-attorney paperwork. But it is not the same thing, as these true stories tragically illustrate:

• While on a family cruise leaving from Miami, Lisa Pond, a healthy 39 year-old, suddenly collapsed. She was rushed to Miami's Jackson Memorial Hospital with her partner Janice and three children following close behind. There, the hospital refused to accept information from Janice about her partner's medical history. Janice was informed that she was in an antigay city and state, and she could expect to receive no information or acknowledgment as family. A doctor finally spoke with Janice telling her that there was no chance of recovery. Other than one five minute visit, which was orchestrated by a Catholic priest at Janice's request to perform last rites, and despite the doctor's acknowledgement that no medical reason existed to prevent visitation, neither Janice nor her children were allowed to see Lisa until nearly eight hours after their arrival. Soon after Lisa's death, Janice tried to get her death certificate in order to get Life Insurance and Social Security benefits for their children. She was denied both by the State of Florida and the Dade County Medical Examiner.



• Just ask Bill Flanigan. Bill’s partner of five years, Robert Daniel, was admitted in critical condition to a Baltimore shock trauma center because of complications arising from AIDS. The two were on a family trip from California on their way to visit Bill’s sister in the Washington, D.C. area. Bill followed Robert’s ambulance to the hospital and rushed into the critical care unit. When he arrived, he asked to see Robert and confer with his doctors. Staff members shut him out. They said that only family could visit, and Bill didn’t count.
  
  But, Bill insisted, what about my durable power of attorney for health care decisions? What about the fact that we are registered as domestic partners? (Bill and Robert carried around with them all the legal documentation they could to make sure their relationship would be respected.) The staff paid these things no mind. They let other patients’ family members in and out of critical care throughout the night, while Bill waited. He was never permitted to make the physicians aware of Robert’s wishes not to have life-prolonging treatment, and he was kept from Robert’s side. The nightmare the couple had tried to make sure would never happen came to pass.
  
  Bill was allowed to see Robert only after Robert’s sister and mother arrived, hours later. By that time, Robert was unconscious, his eyes taped shut and a breathing tube – something Robert specifically did not want – down his throat. Robert died a few days later, without the two men ever having a chance to say goodbye.



• Mary Beth Dyer and her partner, Fran, have been together for more than fifteen years. That didn't matter to the doctor who was assigned to Mary Beth's case when she was hospitalized with unexplained blood-loss in 2000. Mary Beth's father had to come from another city to speak with the physician and relay the information to Fran. Even though Fran was clearly the person who would take over caring for Mary Beth after her release, the doctor refused to talk to her. Mary Beth's father had to relay information from the doctor to Fran throughout Mary Beth's hospital stay.



• As mothers and partners, the protections of marriage are important to Jodi and Stacey. When Stacey was hospitalized in 2001, a nurse at a hospital in Baltimore prevented Jodi from seeing her. Jodi and Stacey fear they could be kept apart again should another medical crisis arise. Those fears are not unfounded. Last year, when Jodi and Stacey’s younger son was born, nurses at a state hospital in Baltimore were confused by Stacey’s relationship to the baby. This confusion delayed and compromised Stacey’s ability to make medical decisions for her prematurely born son. This was especially unnerving for Stacey, since birthmother Jodi was unavailable immediately following the delivery.
  
  Twice, hospital staff have failed to recognize Jodi and Stacey’s relationship during a medical crisis. They do not want to endure a third time. Marriage is the only failsafe that will protect their family.