Thursday, March 31, 2005

Nutmeg Limbo

In Connecticut, a lesbian couple married in Massachusetts cannot divorce at home, according to Hartford Superior Court Judge Linda Pearce Prestley. At last, we have an example of the confusion possible with same-sex marriages. Lackaday and however, this is caused not by the type of marriage per se, but the gap in the full-faith-and-credit strictures.

In her 10-page decision issued March 18th and covered in the March 31st Connecticut Law Tribune, Prestley noted that the problems were:
· The women were Connecticut residents when they married in Massachusetts.
· Connecticut did not and does not recognize same-sex marriages.
· Massachusetts has a law that reads that marrrages illegal in the residents’ states cannot be solemnized in Massachusetts.

The short of it is that Prestly would not divorce them. That would amount to recognizing the marriage in Connecticut.

Meanwhile, Rhode Island, touching both other states, intends to recognize Massachusetts same-sex marriages as it would any other from the commonwealth. Legal is legal and full faith and credit means honoring the other states’ contracts.

More on Maine

The Portland Press-Herald detailed the reactions to Maine's new anti-discrimination law for homosexuals.

As background, a similar measure passed in 1993; then Governor John McKernan vetoed it. Then when one passed in 1997, Governor Angus King signed it. However, in 1998, led by the Michael Heath's Christian Civic League, a voter referendum got on the ballot in 2000. The law was overturned by a very narrow margin.

In the form of the Lewiston-based Maine Grassroots Coalition, Heath's folk will try again. They need 70,000 signatures and hope to draw on Catholics to help in the effort. Co-leader of the drive, Paul Madore, was quoted as, "It's going to be tough. There's no question about it."

The bill this time had broad bipartisan support.

According to the Bangor Daily News piece on the bill, the anti forces have only 90 days after the legislature adjourns this week to produce 50,519 valid signatures for this "people's veto" referendum. Heath told the paper he would announced today whether he'd give it a go.

The article also reports,"If LD 1196 becomes law, Maine will join 15 states, including the rest of New England, in protecting gays and lesbians from discrimination. About a dozen Maine communities, including Bangor, already have similar laws on the books.

"LD 1196 has an exception for religious organizations that do not receive public funds."

Put the ME in Amend

Warily eying nearby Massachusetts and New Hampshire with same-sex unions, Maine's legislature passed a gay civil-rights bill yesterday. On the other hand, it also made everyone aware this neither provided nor was any type of preparation for same-sex marriage. The bill protects citizens from discrimination based on sexual orientation.

After years of similar bills failing, this one earned passage apparently because of an amendment holding same-sex marriage at arm's length. The amendment states that the law could not "be construed to create, add, alter or abolish any right to marry that may exist under the Constitution of the United States, the Constitution of Maine or the laws of this State." Following the passage in his chamber, Senator Barry Hobbins, a Democrat from Saco, said, "This amendment will make sure that everyone know that there is no nexus between this civil rights bill and gay marriage." So there, he might have added, but didn't.

The vote was 25-10 in the Senate and 91-58 in the House.

Meanwhile, the anti crowd was pouting. The Christian Civic League of Maine had led fights against such legislation. That seems to be a small, ineffectual group run by a minister and his wife. It is in the no-special-right camp, a position of fading influence nationwide.

Tuesday, March 29, 2005

Massachusetts Tax Tricks

Same-sex couples who want the benefits of filing a joint state return have a lot to learn this year. They can find primers at the comonwealth department of revenue and at Bay Windows newspaper.

The tax department offers the captivatingly titled, Technical Information Release 04-17: Massachusetts Tax Issues Associated with Same-Sex Marriages. It gets right to the nits and grits of combining depedents and allowable unreimbursed business deductions.

The Bay Windows article Seeking tax advice has a few specifics, but is mostly conceptual. It has several sides to the question about whether a couple should try to file their federal form as married filing jointly.

Sunday, March 27, 2005

New Terms Up North

The Ontario legislature hopped right into the same-sex marriage law changes. They must have ordered clerks to track down every suddenly old-fashioned term. Their Bill 171 patches hundreds of mentions over 43 pages. See it here.

Saturday, March 26, 2005

New Terms in Massachusetts

The Massachusetts legislature seems to be in no hurry to fine-tune its marriage-related laws to adjust for same-sex couples. There actually aren'’t all that many, but Chapters 207, 208 and 209 have a lot of husband, widower, wife, widow and other gender-specific terms.

Many of these laws have neutral sections. For example, Chapter 207: Section 19: Notice of Intention of Marriage refers to “"Persons intending to be joined in marriage in the commonwealth.”"

Some require only a title change. For one, the text of Chapter 209: Section 38 refers to “parent.” However the title is "“Married Women Abandoned by Their Husbands, Etc."” Similarly, the whole chapter has the title “"Husband and Wife.”"

A few will cause a bit of head scratching, such as Chapter 207: Section 1: Marriage of Man to Certain Relatives:
No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister.
There is a woman’'s section that follows. So, do the lawmakers combine them and repeal one or tweak two?

Still others may lead the legislature to edit them to gender neutrality just to avoid future issues. One is Chapter 207:Section 4:Polygamy.
A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six and in chapter two hundred and eight, shall be void.
That is kind of neutral, even with the traditional role terms.

Thursday, March 24, 2005

Oh, My, New Words!

The Boston Globe’s token reactionary conservative columnist, Jeff Jacoby, produced a probably unintentionally amusing piece on same-sex marriage law. The gist of it is that Massachusetts will soon follow Ontario in adjusting laws to replace terms like husband, widower, wife, and widow with gender-neutral words.

First, he belabored the obvious by saying he “ventured a prediction” that this would happen. Cause and effect, Jeff...this has happened from the earliest laws. Then he jumps to this not being just terminology tweaking. He writes:
The real target is the significance of marriage itself -- the idea, fundamental to human happiness and all successful societies, that the purpose of marriage is to bring men and women together for their mutual welfare and for the protection and well-being of any children they create or adopt. It is that deeply ingrained belief that the marriage radicals are determined to do away with. One purpose of the official marriage newspeak is to make such thoughts increasingly unthinkable.
He concludes with anticipated victimhoood:
This is just the start. The assault is not going to let up until the heteronormative deviants among us have been silenced. You think the marriage radicals have gone too far? You ain't seen nothin' yet.
One can only hope that he lives long enough to remember this prediction and write in a decade or two, “Well, maybe I was a bit extreme on that one.”

Tuesday, March 22, 2005

DoMA Tax Burden

One of this tax season’s angles that many media will cover is the additional onus on married same-sex couples. Because of the DoMA, the feds, including the IRS, don’'t dare recognize such marriages.

Meanwhile, in Massachusetts (and civil-union state Vermont), these couples can file their state tax forms together. To meet federal tax requirements, a married gay couple in Boston will have to create a phantom federal form as though they were married, a form they can'’t file. However, they need these figures to calculate portions of their Massachusetts taxes. Then, they fill out two federal tax forms for that portion.

Expect to see figures soon from couples and accountants about how much the DoMA penalizes these married couples. It is likely to be a big hit for those with investments.

By the bye, TurboTax is one tax package that has updated its state modules for Vermont and Massachusetts to accommodate their federal refusal to allow married filing by these couples.

Those couples can get tax tips and procedures from the state tax office and a few newspaper columns, such as this one.

Monday, March 21, 2005

St. Pat's Jokes

Yesterday, the very WASPy Massachusetts Governor Mitt Romney managed to get some same-sex marriage yucks at Boston's annual St. Patrick's Day politician's breakfast. The Boston Globe quoted him as:
Saying he is against gay marriage, Romney said that, as a Mormon, he believes ''marriage should be between a man and a woman. And a woman. And a woman."

Romney, a fierce critic of Chief Justice Margaret H. Marshall of the state Supreme Judicial Court -- who penned the gay marriage ruling in 2003 -- began his comments by saying, ''Let's take a few moments and give thanks to the supreme being who watches over us, guides us, gives us our commandments from on high. Thank you Margaret Marshall."

Sunday, March 20, 2005

Baby Machines

Perhaps with Kramer'’s decision, the same-sex-marriage cons will see the ineffectiveness of the argument that marriage has to be between a man and woman because its main purpose is to ensure procreation. The logic has long been terribly flawed. It would seem to preclude from marriage 1) those who can’t have children (too old or sterile for some other reason), and 2) those who choose not to have children. It also ignores that a lesbian is as fertile to artificial or natural insemination as a straight woman.

Note: The above link opens a 27-page PDF (only 62KB) file. You need Adobe Acrobat or a compatible reader to view it.

Yet, this argument has come up repeatedly in recent court filings as well as in legislative debates. Maybe Kramer's clear rebuttal will remove this distraction from the more meaningful discussions.

He refers to Baker v. Baker (1859) 13 Cal.87, cited by cons. In that, the court let a man annul a marriage when he found his bride pregnant by another man. Here, Kramer, noted the decision was not based on her inability to bear the new husband’'s child. Rather, she had defrauded him into marriage by concealing her condition. Likewise, in Vileta v. Vileta (1942) 53 Cal. App. 2d 749, the new wife had told her hubby before their marriage that she could have children. She knew she couldn'’t. The court annulled that marriage, again on fraud, not on her inability to breed. Kramer’'s decision deals with several other similar cases presented for his consideration.

Kramer writes:
The facts in plaintiffs’ cases also confirm the obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married. Thus, no legitimate state interest to justify the preclusion of same-sex marriage can be found in plaintiffs’ cases.

Saturday, March 19, 2005

Spinning in San Francisco

A lead plaintiff against same-sex marriages rushed a notice of how it will try to appeal the March 14th ruling declaring it unconstitutional for California to forbid marriage based on gender. The Allied Defense Fund (ADF) called the decision “a great disappointment” on its Website.

The ADF statement includes;
ADF attorneys had argued before the court that it only had the power to declare the state’s marriage laws constitutional or unconstitutional, not the power to redefine marriage. Nonetheless, the court granted San Francisco’s request to declare marriage open to same-sex couples.
Glen Lavy, senior vice president of ADF’s Marriage Litigation Center, adds, “We will continue to fight San Francisco’s attempt to gut marriage of meaning. We steadfastly believe that California’s Constitution supports — and assumes — marriage as the union of one man and one woman. The state has no legitimate reason to extend the definition of marriage beyond couples of the opposite sex. Doing so voids marriage of any meaning by opening the door to recognition of any intimate adult relationship.”

Those arguments received detailed rebuttal in the recent decision. Surely ADF has better ammo.

Thursday, March 17, 2005

Changing Laws and Minds in California

In the swath of Monday's California marriage decision, many people squared off pro or con. A law professor who has made this his concentration had a longer view.

The New York Times quoted William B. Rubenstein as saying, "If this were 1975, it would be rather shocking, but in 2005 it is totally consistent with what courts have been doing for the last decade or so." He called Judge Kramer's decision "not out of the mainstream" legally and in line with other decisions, including Hawaii's 1993 ruling. The trend seems to be courts agreeing that marriage is a basic right for all.

Rubenstein is Founding Director, The Charles R. Williams Project on Sexual Orientation Law, at University of California at Los Angeles.

Meanwhile, anti-same-sex-marriage folk are posturing -- appeals, amendments, plebiscites, et alii. On the other side, the Times also got kinder, gentler, perhaps naive quotes from Kate Kendell, executive director of the National Center for Lesbian Rights.
"We have to melt hearts and open minds and that can't be done in the courtroom," Ms. Kendell said. "That is done at P.T.A. meetings, Kiwanis clubs and neighborhood potlucks."

Wednesday, March 16, 2005

Sacramento Shuffle

California’s marriage law was very similar to Massachusetts’ until 1977. It was based on the English/New England model of civil contract instead of the religious ceremony that many younger states legislated.

California had also enacted strong laws forbidding gender discrimination. As such, it was a candidate for a Massachusetts-style court decision permitting same-sex marriage.

However, probably in reaction to that legal structure, the legislators in Sacramento amended Civil Code Section 4100 in 1977 to add that marriage could only be between a man and a woman. Previously it was the Massachusetts-style “personal relations arising out of a civil contract, to which the consent of the parties capable of making it is necessary.

Then in 1992, this was codified as Family Code Section 300. Finally, in 2000, referendum Proposition 22 (the Limit on Marriages Initiative) added Family Code Section 308.5, which reads, "Only marriage between a man and a woman is valid or recognized in California."

Massachusetts Amendment Vote Tightens

The Massachusetts House has two more same-sex marriage supporters as of yesterday. In special primary elections for the 12th and 18th Districts, voters chose Linda Dorcena Forry and Michael J. Moran.

Forry is a shoo-in for the April 12 full election. She faces no opposition. Moran is very likely in his strongly Democratic district.

If legislators vote as they did last year, they likely will narrowly defeat the second, required vote to put an amendment to the commonwealth constitution before the voters in 2006 to replace same-sex marriages with civil unions. It is possible that conservatives, mostly Republicans, who voted against the putting the amendment could switch. They largely stated that they opposed any type of legalized gay union.

On the other hand, the fact that have been no calamities following either Massachusetts legalization of same-sex marriage nor of Vermont’s earlier adoption of civil unions has blunted objections by many.

In Pittsfield in Western Massachusetts, conservative Republican Terry Kinnas won his party's primary. He favors the amendment and does not object to civil union. He'll face Democrat Christopher N. Speranzo next month. the latter supports same-sex marriage and opposes the amendment.

By the bye, Pittsfield is about 51% Democrats to 12% Republicans, but unaffiliated are 36%. So no one is guaranteed the seat.

Tuesday, March 15, 2005

California Appeals

The March 14th California Superior Court decision permitting same-sex marriage included a stay of 60 days before implementation to permit the certain appeals to the state Supreme Court. The rhetoric is fun already, including the ever dramatic Liberty Counsel President Mathew D. Staver, who's Website includes:
This ruling is not the end of the battle. It is just the beginning. Marriage should not be undermined by the stroke of a pen from a single judge. Marriage is a fundamental policy issue that must be decided by the people. To rule that there is no rational purpose to preserve marriage as the union of one man and one woman is ludicrous. This ruling, which flies in the face of common sense and millennia of human history, will pour gasoline on the fire ignited by the pro-marriage movement. Californians and the rest of the country will react to this decision by passing constitutional amendments to preserve marriage on the state and federal levels. No society has created a buffet-like arrangement of human relationships from which anyone may pick and choose and call it marriage. Marriage is and must remain the union of one man and one woman.
The press release on that site notes that the decision voids Proposition 22, the one-man/one-woman marriage definition passed by referendum by 61.4% of California voters in 2000. Unfortunately for his side, this looks increasingly like the arguments of the racists in separate-but-equal states in the 1950s and 1960s. What would their referendum percentages have been against giving blacks equal rights with whites?

Staver seems comparatively calm contrasted with Randy Thomasson, executive director of Campaign for California Families. His Website has his views including:
This is a crazy ruling by an arrogant San Francisco judge who apparently hates marriage and the voters. Kramer has trashed the people's vote to keep marriage for a man and a woman and violated his oath to uphold the law instead of making new laws out of his own head. This is the worst type of judge. This case will be immediately appealed.

It's hurtful and insulting to the voters when a judge attacks the voters and destroys the sacred institution of marriage for a man and a woman. This outrageous ruling will inspire average citizens to rise up and fight to protect marriage as it naturally is - for a man and a woman, a husband and wife.
I think we can assume that he won't be the spokesman in the Supreme Court hearings.

Kramer: Terse Master

In San Francisco, Supreme Court Judge Richard A. Kramer is the justice charged with complex litigation. His March 14th decision on same-sex marriage is nothing if not complex. Yet he managed to deal with the issues in six related cases in a mere 27-page decision. It is a near masterpiece of condensation.

He first reduced the gist of each case to how they hinge on Family Code 300 and 308.5. The former provides that a wedding is between a man and a woman. The latter refuses to recognize marriages solemnized elsewhere between same-sex couples. The question common to the six cases is whether either of these laws violates the California constitution.

His decision is available online. It is a PDF file and requires Adobe Acrobat or a compatible reader.

Kramer, a Catholic and Republican, very finely shredded the con arguments. So the California Supreme Court will have clear issues before it.

More clearly than similar decisions in Massachusetts and New York, he took head on the subject of traditional definition of marriage as between a man and a woman. He started by noting that current California law embodies that understanding. “This argument is that opposite-sex marriage is deeply rooted in our state’s history, culture and tradition and that the courts should not redefine marriage to be what it has never been before,” as his decision puts it.

He points out where some traditions become law for good reason, citing holidays, driving on the right-hand side of the road, and common-law jurisprudence.

However, he also draws on the 1948 Perez v. Sharp decision that overturned the traditional ban on interracial marriage in his state. Cons hate such comparisons, but Kramer writes on in some detail about how in that case the court cut through the jive about tradition and about how it applied its taboo equally to blacks and whites. He cites the Perez ruling as including “(c) ertainly the fact alone that the discrimination has been sanctioned by the state for many years does not supply such (constitutional) justification.”

As in Perez, the current cases failed to show a legitimate state interest in forbidding same-sex marriages. Kramer noted that the aim seemed to be to discriminate on gender. Likewise, to the argument that California had created a separate but equal set of health and tax benefits, he concluded that “the creation of a superstructure of marriage-like benefits for same-sex couples is no remedy” for ignoring the state laws forbidding gender discrimination.

His next punch line was that “California’s enactment of rights for same-sex couples belies any argument that the State would have a legitimate interest in denying marriage in order to preclude same-sex couples from acquiring some marital right that might somehow be inappropriate for them to have.” That’s heady stuff, which may find its way into the national debate and future decisions.

Monday, March 14, 2005

Kramer's Decision Online

You can grab Judge Kramer's decision declaring California's ban on same-sex marriage unconstitutional. It is available at FindLaw.

Note: This link opens a 27-page PDF (only 62KB). You need Adobe Acrobat or a compatible reader to view it.

California Suit Background

A recap of how California got from San Francisco marrying over 4,000 same-sex couple against state law to a combined decision of outstanding related cases appears here.

State Superior Court Judge Richard Kramer let everyone from all sides with a pending suit or amicus filing take their best shots over the past several months. Some suits were filed in Los Angeles and others in San Francisco.

The fundamental Christian take on why Kramer's letting the conservatives make their full argument should be great is here. The follow-up article after his decision should make good reading too. I'll watch for it.

The legal background with numerous links is off a New Mexico rights page specifically for the California controversies. One insightful link off that page is to a Bob Egelko article in the San Francisco Chronicle on the surprising coalitions on con and pro sides of the same-sex-marriage debate.

California Judge Ups Ante

Same-sex marriage appears headed to California's highest court, soon. Today, San Francisco County Superior Court Judge Richard Karmer ruled the state law that withholds marriage licenses based on gender is unconstitutional. He wrote that there was "no rational purpose" for limiting marriage to opposite gender couples.

He seems to have put a plain point on the constitutional issue. In his decision, he wrote, "The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional."

Meanwhile, there is likely a loud humming from the drones in Sacramento. Two bills are trying to get a DoMA bill on the November ballot. This could take the decision out of the hands of both the courts and the legislature, if the state's Supreme Court doesn't handle it first.

Sunday, March 13, 2005

Voters on S-S Marriage

Today’s Boston Globe includes poll results of 501 Massachusetts adults conducted by the University of New Hampshire (UNH) Survey Center March 5 through 8. It had questions on both same-sex marriage and stem-cell research. Let’s assume that neither topic nor the question phrasing skewed the results.

Note: These links may disappear. I’ll try remove them if I find that they do.

The article's conclusions include:
Support for gay marriage comes primarily from Democrat's, those under 35 years of age, people with post-graduate educations, and those with no religious affiliation. Republicans are more likely to oppose gay marriage. Protestants were split on the issue, and Catholics opposed legalized gay marriage by 49-44 percent, within the margin of error.

(Andrew E. Smith, the UNH center’s director) said that the strong support from the 18-to-34-year-old age group shows that controversy over gay marriage will fade as older people who tend to oppose gay marriage begin to due.
The following results are for the same-sex-marriage set. I have paraphrased the much longer questions.

SHOULD SAME-SEX MARRIAGE BE LEGAL?



YES NO DON'T KNOW
OVERALL 56 37 7
PARTY AFFILIATION


Democrat 63 32 5
Republican 39 56 5
Undeclared 52 40 8
GENDER


Female 60 33 6
Male 51 41 7
AGE


18-34 71 26 3
35-49 53 37 10
50-64 57 37 5
65= 42 52 6
RELIGION


Protestant 47 47 6
Roman Catholic 49 44 7
Other 60 35 5
None 80 12 8

POTENTIAL 2006 SAME-SEX BALLOT QUESTION


YES NO DON'T KNOW
Should question be on ballot?
54 41 5
Would you vote for it?
45 45 10

Saturday, March 12, 2005

Mitt Catching It

Governor Mitt Romney's seemingly petty attempt at preventing at least some gay marriages got an official challenge Friday. Eight same-sex couples and 13 Massachusetts town or city clerks challenged the application of laws forbidding marriages by out-of-staters if such weddings would not be valid in their home states.

The suit to the Supreme Judicial Court asks for rulings on Massachusetts laws Chapter 207, Section 11 (forbidding marriages not legal in other states) and 12 (requiring the clerks to verify the legality of the marriages).

Gay & Lesbian Advocates & Defenders (GLAD) filed a 90-page amicus brief, which argues
The Commonwealth’s application of §§11-12 to non-resident same-sex couples violates the Privileges and Immunities Clause of the U.S. Constitution. The right to marry is a “privilege” or “immunity” of state citizenship, and is therefore deserving of protection under the Privilege and Immunities Clause. The Commonwealth lacks a substantial justification for its discrimination between non-resident same-sex couples and resident same-sex couples and cannot demonstrate a substantial relationship between its discrimination and its purported justifications for §§11-12.

Note: The above link opens a PDF file, which requires Adobe Acrobat or compatible reader.

In its press release on the subject, GLAD includes:
The brief makes the case that Goodridge is the reigning law. “Goodridge said that Massachusetts may not discriminate against same-sex couples who want to marry,” said GLAD attorney Michele Granda. “Goodridge did not say Massachusetts can discriminate if the other state discriminates.”

GLAD also argues that the Governor revived the 1913 law because of his opposition to the marriages of same-sex couples, knowing that it would prevent them from marrying in the state. Before May 17, 2004, the Commonwealth never took any action to bar non-residents from marrying who could not marry in their home states.

“The Commonwealth never sought information from applicants about their own state’s laws,” said Granda. “The 1913 law was taken off the shelf and dusted off for the express purpose of discriminating against gays and lesbians.”
These two sections of the commonwealth marriage law are the ones civil liberties folk point out were specifically enacted to prevent interracial marriages.

Friday, March 11, 2005

Common-Law Un-Marriage

Massachusetts does not accept common-law marriage in its borders, except by those who have legal common-law marriages elsewhere and move in-state. Even then, the commonwealth has to have a reason and mechanism to recognize the marriage.

Typically, this would be at some crisis, like death, hospitalization or suit for divorce. Then the extra level of government lays on. An appropriate court would have to first rule that the marriage was valid. Only then could the couple or survivor get the settlement, visitation rights or power-of-attorney, or divorce.

An article touching on the complexities, includes, "Suppose you opt for the common law marriage believing that, if the relationship ends, you'll avoid a nasty divorce proceeding. This is a bad reason to have a common law marriage."

Wednesday, March 09, 2005

Boston Uncommon

In another law with roots in the colonial era, Massachusetts does not recognize common-law marriage entered to within its borders. That is, de facto marriages without a license or ceremony, in which the couple simply presents themselves as married. However, it does recognize common-law marriages that were legal in the states.

Currently, those other states are:
Alabama
Colorado
District of Columbia
Georgia (if created before 1/97)
Idaho (if created before 1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/91)
Oklahoma
Pennsylvania (if created before 9/03)
Rhode Island
South Carolina
Texas
Utah


This is an interesting wrinkle on the full-faith and credit clause under which the 50 states and the District of Columbia recognize each other's laws. The DoMA states are weaseling out of this long-standing practice for same-sex marriages.

Monday, March 07, 2005

Oh, Yeah, Olympia?

Washington State's Supreme Court hears same-sex-marriage arguments tomorrow. It has all the ingredients pro and con. The decision is up for grabs.

Unlike Massachusetts,here the legislature and governor staked their (opposite) grounds clearly. In 1998, the lawmakers overwhelmingly passed a Defense of Marriage Act and overrode the governor's veto. Since then, two different Superior Court judges have ruled that law unconstitutional. In anticipation of the high court's deliberations, no one has married or even licensed the marriages of same-sex couples there.

In one case, Andersen v. Sims, Judge William Downing rules on August 4, 2004, that the state did not show any compelling interest or reason for the DoMA. His detailed decision answers the now commonplace questions from the con forces. For example:
Some declaim that the institutions of marriage and family are weak these days and, in fact, stand threatened. Any trial court judge who regularly hears divorce, child abuse and domestic violence cases deeply shares this concern. It is not difficult, however, to identify both the causes of the present situation and the primary future threat. They come from inside the institution, not outside of it. Not to be too harsh, but they are a shortage of commitment and an excess of selfishness. Before the Court stand eight couples who credibly represent that they are ready and willing to make the right kind of commitment to partner and family for the right kinds of reasons. All they ask is for the state to make them able.
Note: This link and the following one open Acrobat PDF documents. You need a compatible reader.

On September 7, 2004, in the other case, Castle v. Washington, Judge Richard Hicks rules more narrowly. He wrote, "For the government this is not a moral issue. It is a legal issue. Though these issues are often the same, they are also quite different. The conscience of the community is not the same as the morality of any particular class." He ruled against the DoMA also, writing, "When the government is involved, one part of the community can not be given a privilege that is not given to other members of the community unless the government can demonstrate how that discrimination furthers the benefit of the entire community."

Sunday, March 06, 2005

Tenuous Grandparent Visits

One would think that grandparents could visit their grandkids. However, what if they are not nice people, or if the children have been adopted by non-relatives, or any of myriad circumstances. Well Massachusetts law, Chapter 119: Section 39D is ready for that.
Visitation rights to certain grandparents of unmarried minor children; place to file petition

If the parents of an unmarried minor child are divorced, married but living apart, under a temporary order or judgment of separate support, or if either or both parents are deceased, or if said unmarried minor child was born out of wedlock whose paternity has been adjudicated by a court of competent jurisdiction or whose father has signed an acknowledgement of paternity, and the parents do not reside together, the grandparents of such minor child may be granted reasonable visitation rights to the minor child during his minority by the probate and family court department of the trial court upon a written finding that such visitation rights would be in the best interest of the said minor child; provided, however, that such adjudication of paternity or acknowledgment of paternity shall not be required in order to proceed under this section where maternal grandparents are seeking such visitation rights. No such visitation rights shall be granted if said minor child has been adopted by a person other than a stepparent of such child and any visitation rights granted pursuant to this section prior to such adoption of the said minor child shall be terminated upon such adoption without any further action of the court.

A petition for grandparents visitation authorized under this section shall, where applicable, be filed in the county within the commonwealth in which the divorce or separate support complaint or the complaint to establish paternity was filed. If the divorce, separate support or paternity judgment was entered without the commonwealth but the child presently resides within the commonwealth, said petition may be filed in the county where the child resides.

Saturday, March 05, 2005

Those Other Views

It’s rather endearing to read the idealized comments about marriage. You’d almost think at all of us straight folk who married did so with the most honorable intentions, maintained our commitments, did not sleep around and divorced only in the most extreme circumstances. Perhaps I am na├»ve, but I find that only a nice ideal. I see it in my home, but I also see considerable contradictory relationships.

However, for those wondering, What are they thinking?, several anti-same-sex-marriage groups have produced apologies that tell exactly that. Everyone, pro and anti, should read the arguments.

I suggest the Family Institute of Connecticut’s tract as a start. It covers a lot of ground and lays out the talking points. For example:
Apart from the social cost, there will be substantial financial cost. In fact, much of the literature in favor of same-sex civil unions is about money and benefits. One expense resulting from the Vermont legislation was requiring insurance companies to insure civil union partners for medical insurance policies and requiring business owners to pay for medical insurance coverage for these partners equivalent to that offered married couples. Business owners would not be free to pay just for married couples, even if, as a matter of conscience, they do not support same-sex unions.

It is almost unthinkable for a man and a woman to marry merely to receive medical benefits, or any other benefits, for that matter. Parties to a civil union, on the other hand, facing potentially enormous health costs, will be tempted to enter into civil unions in order to move the cost of their health coverage from themselves to a business owner.

....If same-sex unions become equivalent to marriage under the law, then we should expect that those who disagree with the model of monogamous marriage will move to attack that model.
Note: The link above opens an Adobe Acrobat PDF. You need a compatible reader for it.

Friday, March 04, 2005

One More Pro Vote

A key player in the coming Massachusetts constitutional convention will be the speaker of the House. Same-sex-marriage opponent Thomas Finneran retired from that position when he did not run for reelection in the 12th District. His spot in the House is up for grabs, athough the speaker's job is not.

Tuesday, February 23, voters got an earful of the five Democrats who are trying to get the spot. Only one, Eric Donovan, a lawyer in Boston's Dorchester neighborhood claimed to be a social conservative. I suspect we know his chances.

No Republican is running.

The debate at the Mildred Avenue Community Center in Boston's Mattapan neighborhood was the first of two sponsored by MassVOTE. The nonpartisan group has detailed news coverage of the race. That neighborhood is heavily Haitian-American, and three of the five candidates are as well.

Three of the five are strongly in favor of same-sex marriage.
  • Donovan claims that his Christian principles make him oppose it.
  • Emmanuel Bellegarde, a real-estate developer, has said he will support the laws but personally opposes it.
  • Linda Dorcena-Forry of Dorchester, a staffer at Boston's Department of Neighborhood Development, Stacy Monahan, district chief of staff to State Rep. Stephen Lynch, and Kerby Roberson, an attorney in Milton, all said they favor it.

Nutmeg Neighbor

Apparently, Massachusetts will remain the only state that allows same-sex marriages for the time being. Connecticut was kicking around the idea, but has come down strongly in favor of civil unions.

In the last two weeks, legislators in both houses in Hartford have spoken out passionately in favor of stopping marriage discrimination by gender and of permitting same-sex civil unions. Governor Jodi Rell chimed in, saying she didn't have any problem with the concept of civil unions.

The state's judiciary committee just approved a bill permitting civil unions with a 2-1 vote in favor. Legislative observers expect this to become law by June of this year. This would make Connecticut the only state to permit any form of legal same-sex marriage or union without a mandate from the courts.

Democratic Representative Mike Lawlor, chair of the judiciary committee, said, "It seems like anti-gay sentiment in the legislature has abated quite a bit. Republicans are realizing that politically there is no downside to doing this."

This is framed in both houses as an equal-rights issue. It may be the right solution there based on the cliche that everyone is unhappy. Conservatives don't want any form and gay advocates want full marriage. Will Connecticut be the trendsetter?

Thursday, March 03, 2005

Tap Dancing

The conservative tabloid, the Boston Herald, criticized Governor Mitt Romney (a very infrequent occurrence) after his recent not-really-running-for-POTUS-yet swing. It hit him on making disparate statements on abortion rights and same-sex marriage.

On the latter, the Herald contrasted:
In Massachusetts, the governor said for months he opposed Vermont-style civil unions, but then cobbled together the Republicans needed to pass a constitutional amendment in the Legislature that bans gay marriage and creates civil unions. Romney says he did so only because it was either that or allowing gay marriage completely
On the "Road to the White House," Romney doesn't mention the tacit support for civil unions -- saying only that he has been opposed to civil unions "from day one."

Local Tune

Visiting in Salt Lake City, Massachusetts Governor Mitt Romney was at his most tautological. The last Friday of February he told Utah Republicans, “America cannot continue to lead the family of nations around the world if we suffer the collapse of the family here at home.”

Speaking to the county Republican Party dinner, he got considerable applause for saying that he was opposed to same-sex marriage. His remarks in the Mormon stronghold played much better than in Southern Baptist dominated South Carolina a few days before.

It remains to be seen whether Romney can rinse off the stain of heading a state so opposite from what he claims to believe. In Utah, he asserted that the Supreme Judicial Court decision permitting same-sex marriage was “a blow to the family,” but did not cite any bad effects of the ruling or reasons for his statement. One might suppose that his conclusion was to be taken on faith.

Elephant Dreams

Go away for a few days and the governor goes wild! Mitt Romney hit up several more states in his undeclared efforts to be the next Republican candidate for POTUS. He performed the same-sex marriage shtick. It’s the I-was-always-against-it-but-they-made-me-do-it routine that really never works.
This should have posted February 27.

Amusingly enough, for all his bluster, he may have wasted his words in South Carolina last week. The New England papers as well as the AP missed the undercurrent. Their coverage was about his trying to distance himself from same-sex marriage and making strong anti-abortion statements. There are real questions about how seriously that can be taken from a governor of a state that bans the death penalty, supports abortion rights, and has legalized homosexual marriage.

Meanwhile, the reports in the South Carolina press cut to the chase and bode ill for the man with the magic underwear. The opening line in the story from the largest paper, Columbia’s The State, was “Republican Gov. Mitt Romney of Massachusetts, a devout Mormon, flew into the heart of the South Carolina Bible Belt on Monday to test the climate for a possible presidential run in 2008.”

Yankees may well demand details on policies and positions as the ante to the game, but to many Southerners the first question remains, “Who are your folks?”

“Good luck,” The State quoted Clemson political-science professor Dave Woodard. “I don’t think that (his religion) will play well at all.”

Blog Back Up

I apology for no new posts. After over a week, and two permanently lost posts, Blogspot restored my ability to post. They apparently had some technical issue, which they have not explained.

A lot happened and I'll try to post abbreviated versions of news in the next few days.

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