A Law Too Far in Lincoln

In Nebraska, U.S. District Court Judge Joseph F. Bataillon ruled the state's DoMA law unconstitutional. In a 43-page commentary, he shredded it thoroughly, so much so that Nebraska should forget trying to get it to the U.S. Supreme Court.

It would be smarter to try to write a less restrictive and less anti-American law instead. It looks as though the law is so far out there that it was bound to fall.

The winners here were LAMBDA and civil-rights related groups, Citizens for Equal Protection Inc., Nebraska Advocates for Justice and Equality, Inc., and the ACLU Nebraska. Even though same-sex marriages are not against the law in Nebraska and the judge's rule permanently enjoins the state from enforcing its anti-same-sex marriage law, Attorney General Jon C. Bruning stated that he was not about to allow gay couples to wed.

The amendment in question came from Initiative 416, passed by 70% of voters in 2000. It looks like what happens when folks get too self-righteous and think they can get away with anything. The current D.C. culture seemed to have spread widely among cornhuskers.

According to ACLU's timeline on the initiative effort:

The amendment will ban same sex couples from being legally married in Nebraska as well as prohibit recognition of same sex relationships in any form. Organizers and donors to the initiative project include a coalition of Christian, Mormon and Catholic churches. Reports of the amount of money raised for their public campaign indicate they have nearly ten times the funds that opponents to the initiative have. The initiative's supporters launch a television, radio, newspaper, and direct mail campaign is launched across the state to promote the initiative.

The resulting amendment signed by the governor five years ago is:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

The second part went way too far, according to Bataillon. He ruled that it punished the class of homosexuals and forbade free speech and rights given to all citizens of majority. It was so broad that "(a)mong the threatened relationships would be those of roommates, co-tenants, foster parents, and related people who share living arrangements, expenses, custody of children, or ownership of property. Many of these associational relationships are constitutionally protected at some point along the spectrum from the most hallowed and intimate to the most trivial."

He found that Nebraska law "...also effectively disenfranchises lesbian, gay and bisexual people and their supporters as they can no longer petition their representatives and city and local governments for legislative changes that would protect their relationships."

The gist of his findings was that Nebraska started out to have DoMA legislation. Instead it ended up punishing homosexuals in ways that clearly violate rights due all citizens.

Let us pause to bless those who would stay the very heavy hand of majority rule that does not respect the freedom and humanity of the minority.

Bobby Takes (Out) His Lumps

With the pivotal player having lymph nodes removed, the joint session of the Massachusetts legislature met only briefly and did not debate civil unions or anything. The Constitutional Convention folk recessed until August 24th. Then it will begin its agenda, including the ballot initiative that would ban same-sex marriage.

Senate President Robert Travaglini was in Mass Eye and Ear to have lymph nodes removed. His doctors said that was standard follow-up for thyroid cancer surgery he had four years ago. He expects to return to work next week. He will miss the Democratic Party convention this weekend.

In his absence Senate Majority Leader Frederick Berry chaired the joint session. Bobby watched the Sox, which must have been a welcome and much lower stress way to spend the afternoon.

Putting the Gee in Gay

Stunning the assembled crowds and onlookers, State Senator Jarrett Barrios proposed a bill that would ban both same-sex marriages and civil unions in Massachusetts. He is a long-term and prominent same-sex-marriage and gay-right supporter.

The anti forces are wondering what he's up to, as are the pro types. The president of the Massachusetts Family Institute, Kristian Mineau, is concerned that conservatives might be confused by this choice. There is presently a tenuous compromise heading to the vote for the 2006 Constitutional Convention. The hateful, the knee-jerk religious, and the addled joined last year to pass a civil union bill. The conservatives in the coalition have said that they'd do anything to reverse same-sex marriage, even support civil unions.

The same bill must pass a combined legislative session this term to get to the convention and thus have a shot at being on the ballot in 2006. Last year, it barely passed. Since then, several liberal legislators unlikely to vote for the bill have taken office. For now, it looks like a civil union bill would fail this time.

For the new ban-everything-queer-marriage bill, Barrios used only lawspeak. "My sponsoring this bill is to allow the elected legislators of the Commonwealth to once again review and I hope reject this effort to write discrimination into the Constitution," he said, refusing to elaborate. Perhaps it is simply brinkmanship.

Advice on Vice

I'm not sure what the effect in law is, if any, of Massachusetts General Law, Chapter 71: Section 30 Moral Education. It reads:

The president, professors and tutors of the university at Cambridge and of the several colleges, all preceptors and teachers of academies and all other instructors of youth shall exert their best endeavors to impress on the minds of children and youth committed to their care and instruction the principles of piety and justice and a sacred regard for truth, love of their country, humanity and universal benevolence, sobriety, industry and frugality, chastity, moderation and temperance, and those other virtues which are the ornament of human society and the basis upon which a republican constitution is founded; and they shall endeavor to lead their pupils, as their ages and capacities will admit, into a clear understanding of the tendency of the above mentioned virtues to preserve and perfect a republican constitution and secure the blessings of liberty as well as to promote their future happiness, and also to point out to them the evil tendency of the opposite vices.

The university in Cambridge is, of course, Harvard. Do you suppose that having something like Ethics 101 covers that?

WA WA Everyone's a Winner in Washington

Like two puppies with a sock, the Seattle weekly that broke the Microsoft gay-rights-bill story won't stop tugging. The Stranger hit the street today carrying this flag around the stadium one more time.

After Microsoft reversed its reversal on support for gay rights legislation, everyone says he's a winner. The most outrageous was the Dr. Hutcherson, who told Fox News that MS' Ballmer called him to warn him before the public. "I've already won," he told The Stranger. "I can see why Microsoft gets sued so much when its CEO makes such dumb decisions."

Smart money will bet that Hutcherson's ploys raised the stakes and profile here, probably putting Washington State on course for gay rights and maybe civil unions. Some winner.

Property Rights in Black and White

Massachusetts atoned for it Colonial oppression of Africans and the whole cycle of importing, marketing, selling and buying people – just two centuries later. It seems long overdue, but Massachusetts overturned its laws against interracial marriage in 1843. As hard as that may seem to believe, that make it the first state in the country to do so.

There's a nice analysis of the history of such laws here. Info there includes:

Interracial romance has been a point of contention in America since the first English settlers established colonies in the seventeenth century. In 1664 Maryland banned interracial marriage due to questions over whether the offspring of a black slave and a white person would be considered a free person or property. In following years, Massachusetts, Pennsylvania, North Carolina, and South Carolina instituted antimiscegenation laws which banned interracial marriage.

Marriage for Kids

Minimum legal age for marriage is now 18 in Massachusetts. Anyone younger wanting to marry needs a court order. In most states, 16 and 17 year olds can marry with permission of their parents.

However, a century and one half ago, the Supreme Court of the Massachusetts had a different view, in Parton v. Hervey (1854). Basically, a man married a 13-year-old girl. Her mother found the girl and kidnapped her. Mom held daughter captive for her own good, in the mother’s opinion.

The husband sued. The majority opinion included:

…I was entirely satisfied by the testimony, that the marriage of the petitioner with the daughter of the respondent was not procured or solemnized clandestinely, or through fraud and deceit practised on the wife; but that she freely and willingly assented thereto, without undue influence or persuasion; that she was not of weak or impaired intellect, but of competent understanding, and of the ordinary degree of intelligence of persons of her age; and that the respondent had restrained her of her liberty against her will, and had prevented her by force from joining the petitioner and living with him as his wife.

Upon this state of facts, the only remaining question raised by the respondent is whether, under the laws of this commonwealth, a marriage by a female infant of the age of thirteen years is legal and valid, if had and solemnized with the free assent of such infant, but without the knowledge or consent of her parent and guardian…

Absent a state statute at the time that set a lower limit on marriage, the court decided to turn to common law, in Massachusetts and England. As the old standard was age 12 for a girl, that is what the court used.

Interestingly enough, the decision noted that the legistature had recently had the opportunity to set the age of consent for marriage. The recommendation was 17 for boys and 14 for girls. Other recommendations became law, but the state legislators struck the consent provision. This reinforced the court’s opinion that common law prevailed. The court ordered the girl’s release from her mother to her husband.

Belly of the Ballmer

I'm in Seattle, where, understandably, it very serious news that Microsoft switched teams again. The company will support gay-right legislation in Washington State next time.

CEO Steve Ballmer previously justified the company's dropping support for House Bill 1515, which lost by one vote afterwards. One would have to be naive indeed to suppose that the largest employer around didn't drive public and legislative opinion. Yet, that is Microsoft's contention.

Meanwhile in the two local dailies, many letters to the editor call MS cowardly and a few say that companies have no right having any political opinions or taking any stance on legislation. (Pause for hearty laughter.)

More to the point, the Seattle Times lead story today ran the head, Microsoft decides to back gay-right bill: Will it help? Fair question, to which legislators claimed MS didn't have influence.

From outside, it sure looks like MS is too late on this. Legislators already defeated it, surely due in part to Gates and folk dropping support. What was the downside for them? At this point, they are safe ignoring this hot coal.

Johnny No Nads

Showing the lack of courage and muddled convictions for which he is famous, John Kerry told the Boston Globe yesterday that the state Democratic Party shouldn't put support for gay marriage on its platform. It will and he'll be left behind again. Poor JK, never the leader.

Facts are:

• The Dems here are differentiating themselves from rightwingers and reactionaries.
• What may not play in Oklahoma works here.
• The state Democrats are committed to diversity and inclusion, and they'll support same-sex marriage even if the national party does not.
• Kerry is cowardly, again and still.
• Republicans profit when Democrats waffle.

Kerry should have learned from his failed Presidential bid that marshmallow politicians get roasted not elected.

Wolfy, Wolfy

Where is the bad stuff? We here in Massachusetts read and heard a lot about the terrible things that would befall us if we let homosexual couples marry. We’re still waiting.

Some partnered couples have had to get married to keep their benefits when their private companies changed their plans. The IRS’ refusal to recognize the marriages in light of the Defense of Marriage Act means that a couple thousand couples have to fill out extra tax forms. These and similar issues so far are inconveniences that fall largely on the same-sex couples.

We are still waiting for what the anti-same-sex marriage folk promised would be awful cultural, financial and legal problems. They did have to stake out their positions. However, it certainly makes them harder to believe as a year goes by and there was been no crisis or panic.

Vermont has had its civil unions for five years. It is also still awaiting serious problems. They don’t seem to have had a single appearance of an angry diety either.

Itty-Boo, Mr. Parker

The Lexington Minuteman has two keen reports on our favorite self-made victim, David Parker. Read about the arrest he forced here and the account by the school officials here. What a bozo.

For nearly two and one half hours after his meeting with the teacher, principal and superintendent of schools, Parker would not leave the building. He denied any affiliation with groups like the Article 8 folk, but he apparently spent a lot of time of the phone with them and had them come with a camera in case there was something gory or glorious in a victim-y way. Even at 6:24 p.m., he refused to leave and let them close the school unless they arrested him. He refused bail and would not call an attorney.

Perhaps worse are the points of contention. He is furious about same-sex marriage specifically and homosexuality in general, as though either of those was any of his business or under his control. He chose to pick a fight over a kiddy's picture book, which contains two drawings that show a two-mom family with kids and a two-dad family with a child. This, he said repeatedly, was teaching about sexuality, thus forbidden by state statute if he did not give his specific permission.

Yet:

1. There is no sex shown, implied, described or taught anywhere.
2. He could have opted out of this take-home packet, but neither he nor his wife did.
3. The packets were on display and available at the school any time before they came home, but neither Parker examined them
4. He wants to claim that the school violated the law when he is the only lawbreaker in sight.
5. While claiming homosexuals get all the special rights, he is the only one claiming special rights.
6. Even though both school officials and police explained the legal issues of notification to him at length, he was too emotional or too thickheaded to get it.

Perhaps the best of all is that he asserts a right that he does not have. He wants to send his children to the taxpayer funded public school to be educated, to be exposed to ideas, abstracts and realities, and yet to have the school notify him of anything he might stipulate that may be discussed even in spontaneous conversation or questions from children in class. What a control freak and how ignorant of how education and life in general work.

Alas, David Parker. He has put himself in an untenable position. No good can come to him. We can hope for better experiences and more open minds for his children.

Donkey Guts

In a surprising display of courage or at least honesty, the Massachusetts Democratic Party is about to add support for same-sex marriage to its platform, according to the Boston Globe. The issue is still a hot one even here where it is legal. The efforts to overturn the decision and get a DoMA with civil unions amendment before the voters in 2006 continue.

Of course, Democrats elsewhere avoid the issue. Reactionaries and paranoics nationwide have successfully pushed through DoMA laws or amendments. The White House and state Republican parties have played this hand well. So here, this seems an odd time to announce a position formally. Outright support would contrast with the national party's spongy ''full inclusion of gay and lesbian families in the life of our nation."

The new platform plank should be ready for a vote on May 14th.

"I don't anticipate any serious debate about it," said the state party chair, Philip W. Johnston. The three likely 2006 gubernatorial candidates are supporters. Bill Galvin (current secretary of state) and Deval Patrick (ex-assistant U.S. attorney general) openly favor the plank. Tom Reilly hasn't said, but has supported the actual law as commonwealth attorney general and actively pushed back on Republican Gov. Mitt Romney on the issue.

Here, 24% of Democrats and 59% of Republicans oppose same-sex marriages in polls. There are many more Democrats in the state. Assuming migration on the issue, voter change would likely be a wash.

In Massachusetts, it was as Republicans feared but did not publicly predict, something bad happened, but not to the state, rather to the Republicans. They promised sure and swift disaster. Instead, they got an almost seamless transition and nothing but positive effects...except for all the screaming in the background.

Unwilled Unmarried

The host of a great classical-music radio show screwed up at death. In the no-common-law-marriage Massachusetts, he died without a will. His significant other, who would have been a common-law wife in many states, is having to fight his siblings for a piece of the estate.

Those who know WGBH-FM's Morning Pro Musica understand the maddeningly distracting speech patterns of Robert J. (two second pause) Lurtsema. He (three second pause) diedin2000 (two second pause) butleftno (four second pause) will.

His long-term partner and assistant, Betsy Northrup, fully expected the $536,000 Wellesley house and some cash. She and Lurtsema had been companions from 1982. He convinced her to move in with him full time in 1997, where she cared for him as his sight failed from macular degeneration and he sickened and eventually died from pulmonary fibrosis. She also edited his books for publication and transcribed his music.

While she and his siblings were buddies when he was alive, his intestate death -- and the related money it seems -- changed that. His mom died shortly after he did, and the siblings said all the leavings where theirs. So there.

The lawyer representing siblings Jacqueline MacLennan, David Lurtsema and Lorraine Nordlinger is Normal I. Jacobs. He claims the jury will give everything to them and tell Betsy tough luck. "The law in Massachusetts is very clear that the fact that you live with somebody 50 years doesn't give you legal rights. We don't have common-law marriage here, and our courts have never said that we do."

However, the commonwealth does recognize oral contracts. Northrup hopes to convince the jury that Robert J. promised her the house and that "he intended to provide for me for the rest of my life, and I had nothing to worry about." That was from her disposition.

She sued for her share in 2001, lost the initial action and had that overturned by the Appeals Court. The messy matter goes to a jury trial.

Same Old Song

Both the Globe and Herald covered the anti-same-sex-marriage testimony yesterday. They put the stories inside (B3 and 5 respectively), which is no surprise as the anti guys gave a predictable and pretty lame performance.

Apparently all that's left of this suit and appeal is awaiting its denial by the Supreme Judicial Court and to see whether they bother to comment. They probably won't and shouldn't, because the appeal was solely on whether Justice Roderick Ireland erred in November when he rejected the petition to stop same-sex marriages.

The Darling/Doyle (good name for a pub singer, eh?) appeal strained for argument yesterday. "It's the equivalent of going to the town hall to vote for whether or not we will have a new gymnasium or not, and all of a sudden, you drive by a brand new gymnasium before you've voted," said Chester Darling. Of course, that's not an apt analogy at all. Same-sex marriage was not taking tax-payer funds locally, something that would require a plebiscite.

The legislature, executive branch, independent agencies so empowered, local governments and the courts can create laws and regulations with the effect of law. What the anti folk want is to roll back one of those. It's going to have to work harder and have a much better basis in law and reason to do so.

Everyone seems to assume that this is the end of this particular geste. Perhaps the focus goes back on whether the anti people can gather enough votes in the joint legislative constitutional conference to pass that same amendment again and put it on the 2006 ballot.

Doyle Details

For those who have not reached information overload, you can see GLAD's opposition brief filed for today's appeal hearing on the eff0rt to halt same-sex marriages here.

Note: This is a PDF file and requires an Acrobat-compatible reader.

This also covers the Doyle/Darling arguments and the rebuttal. It serves as a preview for the oral arguments presented today.

I can't find the Doyle brief published. However, the other anti force giving oral argument was Robert Muise, trial counsel of the Thomas More Law Center, Ann Arbor, Michigan. There are press releases on the general content here and here.

Half-Hearted League

Lackaday, oh, Catholic Action League, can you not call in a celestial favor?

From the questioning today at the Massachusetts Supreme Judicial Court, the appeal of the loss in the suit to halt same-sex marriages is a loser. As the plaintiff attorney, Chester Darling put it, " "I'm not too confident. We had an inference that it was a little negative from our point of view."

[Darling should have good judgment about such things. His very conservative Citizens for the Preservation of Constitutional Rights Inc. has lost some notable reactionary cases, like trying to keep a crèche on Lexington green over the town's objection. You can check out his scorecard and legal interests here.]

The justices grilled Darling, but didn't ask the GLAD attorney, Michele Granda, anything. For example, the gist of the suit and appeal is that ongoing same-sex marriages prevent debate on the subject. Justice Robert Cordy pressed Darling for some rational to support that crucial point. Then he remarked, "It seems to me, if anything, it's been enlivened on this subject."

Speaking after the hearing, Granda said it simply, ""They've had their day in court...(where the questions) " made clear they don't see how Mr. Doyle has been harmed in any way by the issuance of marriage licenses."

I guess the hard part of being a whiner is finding attentive listeners.

Make Merry in Massachusetts

What Jeff West thought would be a big yuck among buddies left him laughing alone. He put a civil-union announcement in a suburban Massachusetts MetroWest newspaper Sunday edition for him and long-term pal (maybe ex-pal) Matt Hunt. See the erratum coverage here.

The newspaper is being a sport about it, even if the real couple is not. It included a capture of the original item. The image is of two t-shirted guys sharing Santa’s lap.

One problem is that he didn’t ask Matt. Another seems to be that they aren’t getting married. They also aren’t gay and Matt will marry his rather female fiancée, Kelley Parker, this summer. Alert MetroWest readers may have noticed that the real announcement appeared in November. Parker and Hunt are both teachers and she particularly thinks the hoax could damage her reputation.

Of course, this only worked because there are Massachusetts and Vermont handy to lend credence to the fake announcement. By the bye, they would have had to go to Vermont for a civil union; it's marriages only in their state.

In addition, gay-rights groups may not be too happy. For example, The Freedom to Marry Coalition of Massachusetts’ advocacy director, Joshua Friedes, said, "I think many people don't understand how seriously gay and lesbian people take the institution of marriage...I've never heard of a couple sending in a fake wedding announcement to imitate a straight couple, I think this incident is a subtle form of gay-bashing."

“It was supposed to be a small goof,” said West.

Doyle's Day in Court

Tomorrow, the Catholic Action League's appeal on same-sex marriage goes before the entire Supreme Judicial Court in Massachusetts. This is the suit rejected last November by a single judge of the same court (Justice Roderick Ireland). The League's executive director, C.J. Doyle appealed.

The gist of it is that he claims his right for a fair discussion on same-sex marriage can't be held while same sex-marriages are going on. He wants them stopped until the proposed amendment to the commonwealth constitution gets on the ballot for 2006's constitutional convention.

As his lawyer, Chester Darling said today, "What we're saying is that the dialogue, the robust debate that should be taking place, is being affected and shaped by the continuing marriages." There are many complex legal issues surrounding this, but the ability to debate sure doesn't seem to be one of them.

Arguing that there is no basis for any sort of time-out or mulligan for the marriages, and that Doyle has no damages to claim, will be both the Attorney General Tom Riley and GLAD attorney Michele Granda. I'd give Doyle slim to no chance on this shot in the dark.

Poke at Parker

Get your fresh yucks from Eileen NcNamara in today's Boston Globe. Her Great minds don't think column takes off on the mad dad of Lexington. It starts:

I won't make the mistake that David Parker made. I am not going to sit around and wait for my child to come home with morally offensive material covertly planted in his backpack by some public school teacher promoting a political agenda.

Until his trespassing trial on June 1st, we have to make due with such wags. He can parody himself when the time comes.

The People's Puppet

"Duh," said Mass Marrier. Another glory of Massachusetts law reaching back to the beginning of the commonwealth burst forth. Not only can virtually any adult here conduct (solemnize) a wedding, but we can each submit bills to our representatives.

Of course, most of the time, we get the bum's rush, but they can run with them. Normally they do this for popular issues that may help them get votes. Sometimes (oh, the horror), they bet that some powerful contributors and machers will appreciate their submitting legislation. Massachusetts is one of a few states that allow this right of free petition. This is in the commonwealth constitution, Article XIX.

It turns out that Rep. Emile Goguen may have just been playing this game. He is anti-same-sex marriage, but the three bills he proposed seem to have come from that silly Article 8 Alliance and its reactionary director Brian Camenker.

I ran across that claim on the MassResistance site. Camenker and his folk take credit for proposing the bills that Goguen submitted. The Representative may be just the tool in this.