Today another black eye to the LGBT community as Maryland's Court of Appeals ruled that same-sex couples don't have the right to marry in the state (read the entire published opinion here). The judges seem "infected" by the right-wing rhetoric of late that says that courts shouldn't be "activist judges" (and here is another piece which explores both the right and left politics of judicial activism, vs. restraint, found in the CSM), that these decisions are best off left to legislatures. This is of course bullshit. The courts are there to refine and interpret the darkened corners and idiosyncrasies of law as made BY legislatures. Their purpose is not to put on a show and then hand it back to legislators - in ANY democracy the legislature represents but a handful of those in the population. Courts are there to protect the invisible, the oppressed and the ignored.But it is the cherry-picking of case law here that is also disturbing. The interpretation of Constitutional statutes is purposefully spineless on the court's part. The Court took a record period of time working on (delaying?) their decision and yet in the end their defense seems pitiful. This is from their decision:
"Looking beyond the fact that any inquiry into the ability or willingness of a couple actually to bear a child during marriage would violate the fundamental right to marital privacy recognized in Griswold, 381 U.S. at 484-86, 493, 85 S. Ct. at 1681, 14 L. Ed. 2d 510, the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation."
But then one ought look at the case then of Griswold v. Connecticut
I'm hardly a constitutional scholar, but this is "interesting", and if you read the Equality Maryland FAQs on the Deane and Polyak v. Conaway decision
Then there is the actual opinions document of the judges on that case (Griswold v. Connecticut) that bears review.
The overall gist/point of the Griswold v. CT case is that CT had a law that out-lawed the use of contraceptives. The Court ruled it was unconstitutional since it violated the privacy of a married couple’s life – But what it is “cherry picked” here is that this was a case where married couples were choosing NOT to pro-create.
Wombs and Penises Need Only Apply
So back to Maryland in 2007 - 42 years after Griswold I might add - ...Given the Judge Harrell comment that benefits should be based on the “possibility” of procreation that the ruling finds that the state has an "interest in promoting procreation" - then what they are saying is that when people are getting married we need to be sure that they are man +plus+ woman in order to play out the the odds that he'll poke her (or in equal power footing she'll wrap her vagina around his penis, etc.) and that they might just get pregnant because it solidifies the state (supposedly) by encouraging the chance more people are born.From a pure demographics point of view one could run with this... for a very short distance. So many other things are really in play here that makes this logic patently absurd (so shouldn't heterosexuals not be allowed to get divorced then? Isn't that a threat to the 'state'? And then the logic stands too that some ought be denied to heterosexual marriages when and given the possibility exists (and remember procreation possibility is the crux upon which this ruling stands) they will, or could, choose to enforceably ensure procreation could not happen by choosing to use contraceptives, for example.
Of course, this is absurd - and exactly the reason Griswold v. CT struck down the CT law in the first place. No one can control "procreation" possibilities in the bedroom, least of all the state intervening in the "bedroom" as such. And so what if LGBT get married... what threat is that to "procreating heteros" in the first place?! And given science etc. of the day gay and lesbian couples can procreate without marriage anyhow, as can straight couples - the whole point it moot. This is NOT an issue of sanctity of marriage. It is NOT an issue of promoting procreation (I can't even believe I'm wasting letters typing such an idiotic defense). This is an issue of CIVIL access to equal rights. Not one church can marry a person in the State of Maryland without a license from the State first. And no one would make them. The whole "sanctity" of heterosexual procreation possibility protection is ridiculous beyond the fray.
So no matter which way you cut it the Maryland Appeals Court decision is reprehensible. It cedes responsibility instead of forcing action (and do not mistake the court's comparison to be like that of other states - there is NO mandate that the legislature take this case up and develop non-discriminatory laws to redress the injustices LGBT persons face at every turn. Another red-herring sadly.) In the end LGBT couples are not only denied marriage, and this is important to point out, but also the most practical access to things like legal recourse in death of a partner (for example guaranteeing their will is administered as they and their partner agreed), hospital and health issues (benefits and rights of survivorship, decision making etc.) and so much more.If the Court's decision was about making civil society persist then the rights to liberty must be extended to all. Not just those who might have a child one day. Inserting "Tab A" into "Slot B" does not civility make. To interpret it as such is to suggest biology rules the social world. Are we not eons away from such a medieval view. Clearly on the Maryland judicial bench the answer is "no".
2 comments:
From Schmitz Blitz: schmitzblitz.wordpress.com
The court found that 1) the statue does not discriminate on the basis of gender 2) that sexual orientation is neither a suspect or quasi-suspect class, whereby discriminatory laws require a higher scrutiny 3) that there is no fundamental right to marry a person of the same sex and 4) that the statute in question is related to a legitimate state objective, that is, upholding traditional marriage.
I’m not familiar with the intricacies of the Maryland constitution, but I’m going to offer some thoughts on point 3 it relates to the United States constitution (and maybe some of the others in future posts, time permitting).
The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition,” and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.
Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.
The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.
Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.
Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes” The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.
The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.
Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.
All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.
Thanks for the Comment Elizabeth - see Fox45 news Baltimore tonight at 11 maybe for a video of me, lol...
At the rally this evening the people there - not surprisingly - concurred. The general thought was that this majority decision, based on the "idea" of protecting the possibility that heterosexual people might have a child in wedlock, and that wedlock some how as an institution enables that possibility, will be found to be ashamedly biased in the future... ridiculous in fact - just like Plessy v. Ferguson, Dred Scott and so many other decisions based on upholding the power of the powerful... supposedly in the name of "equality". Equal means equal for all.
Post a Comment