The Prolifieration of Gay Marriage

I've been pretty down about the grand state of politics today, despite the encouraging signs of life from the pro-democracy movements in the Middle East and the pro-union protests in Wisconsin.  Mainly it's because I learned today that Wisconsin has already been killed by the teabaggers, and they don't even know they're dead yet.  The shameless lying and hypocrisy out of Washington is worse than ever, to the point that it would be hilarious if anyone in the major news media ever actually called them on the bullshit.  But there was one story today that perked me up a bit about the future, so I'm going to run with that tonight.


Social conservatives are terrified of the creeping specter of gay marriage taking over the United States, as well they should be.  All indications are that they are on the losing side of history, just as they were with civil rights for women and blacks and other minority groups throughout American history.  Honestly, they should be used to it by now, especially because "being on the losing side of history" is pretty much the definition of conservatism.

But in the recognition that the roller coaster of life goes faster than their delicate fear centers can handle, social conservatives have endeavored to head the gays off at the pass over the past two decades.  To give the political architects of the right their maximum amount of credit, the lawyers among them have to have known that all of the same arguments that destroyed Jim Crow would eventually come to destroy discriminatory laws against homosexuals as well.  I mean, anyone who has read the Supreme Court decision in Loving v Virginia, 388 U.S. 1 (1967), could plainly see that substituting the issue of race for gender would eventually lead a court to find that laws restricting same-sex couples from marrying were plainly unconstitutional. 

The first major salvo in the fight did not secure the unconstitutionality flank, however.  The "Defense of Marriage Act" ("DOMA"), passed by the Republican controlled Congress and signed by President Clinton in 1996, sought to allow states to avoid recognizing same-sex marriages or civil unions performed in other state (which at the time was being done in no states), and it also defined marriage as "only a legal union between one man and one woman as husband and wife". 

For a variety of reasons, DOMA does not solve any of the constitutional issues that it sought to block.  The avoidance of recognition is designed as a direct challenge to the "Full Faith and Credit" clause of the Constitution, which among other things, is what requires a marriage performed in one state to be recognized by the government and courts of another.  I've always believed that it was beyond the power of the Congress to legislate this clause away, and that it would require an Amendment to accomplish the goal of DOMA.  Of course, just as it could not happen now, it was already too late in the mid-1990s to get the required votes in Congress or in the state legislatures to pass a federal marriage amendment.  It's also very contentious legally whether the federal government is within its authority to define marriage and whether attempting to do so violates the10th Amendment (which should always be taken with a pound of salt), and/or the "Due Process" and "Equal Protection" clauses of the 14th Amendment. 

Earlier today, the White House and Department of Justice announced that they would no longer be defending DOMA's 3rd clause in future lawsuits because it was their legal opinion that the clause was unconstitutional.  For the time being, they will continue to defend suits challenging the 2nd clause, but I believe it's merely a matter of time before that too will fall.


While a few states had enacted domestic partnership laws granting some legal protections of marriage to non-married couples (gay or straight), the fireworks really began in 2004 when the Supreme Court of Massachusetts ruled that the hundred year-old state law banning same-sex marriage in Massachusetts was unconstitutional under the Massachusetts Constitution.  This is what the social conservatives had feared, and what they had been waiting for. 

In a well-coordinated attack, measures amending the various constitutions of many states to define marriage as "one man and woman" were placed on the ballots in time for the 2004 general election.  All passed with wide margins, and some credit George W. Bush's reelection to the huge turnout of social conservatives in Ohio, the electoral votes of which were the difference in the election.  In fact, in all of the ballot measures put up for vote, only the 2006 measure in Arizona has failed to pass (and a barely watered down version did pass there in 2008).


With today's DOMA decision from the DOJ, I saw a question asked on a blog about how many people have actually voted to ban gay marriage in their states.  The implication was that since many of the states banning gay marriage are small in population, that they may actually be outnumbered by those enjoying same-sex marriage rights.   So I set to work crunching the numbers.  Unfortunately, the comment section had become such a flame war by the time I got back, that I couldn't even find the original comment that I wanted to respond to, not that anyone would see my response anyway.  Actually, it wasn't a flame war, because a flame war involves armies on both sides.  This was just a single troll that completely fucked up the comment section of a blog posting.

Anyway, I found that there are several ways to look at the data.  Let's begin with a map:

As you can see, it's a rather complicated patchwork of laws these days.  I also needed some census data to estimate populations, and I used the July 2009 estimates based on the 2000 census, since the numbers from the 2010 census don't appear to be available yet in neat Excel format.

Now, if you want to look at the numbers in a simplistic way, sort of a red state/blue state kind of way, here are the numbers broken down into a "same-sex marriage is banned" vs "same-sex marriage is legal" spreadsheet.

Here we see that 82.84% of Americans live in a state where there is either a Constitutional Amendment banning same-sex marriage, or a statute doing so.  Only 16.82% live in a state where same-sex marriage is legal, or where a civil unions law is in effect that grants all of the legal rights of marriage.  Clearly the conservatives have won and set up their firewall against teh gayz, right?

Well, let's look at those numbers with a bit more subtlety, and see what is really happening on the ground (my colors do not match the map above):

When you break it down into all of the categories shown on the map, the picture becomes much more nuanced.  Now, there are only 59.83% of Americans who live in a jurisdiction where same-sex unions are completely non-existent, and 37.34% who live in a jurisdiction where either same-sex marriage is recognized, or civil unions with full legal rights of marriage are recognized.  Not quite so bleak.

There are several other subtleties that should be addressed as well.  I counted Wisconsin in the most restrictive group, even though there are domestic partnership laws on the books there.  The question of whether those domestic partnership rights would be trumped by the Constitutional amendment has not been decided by the courts there.

Then there are the states that are actively in motion and could change at any time.  One is Maine, which enacted same sex marriage by legislation in 2010, only to have the law struck down narrowly by a voter initiative later in the year.  Maryland and New York are strong candidates to have same-sex marriage laws on the books within the current legislative session, as is Hawai'i. 

Perhaps most critically, California is now the center of the judicial universe when it comes to gay marriage.  The CA Supreme Court had ruled that the state's marriage ban statute was unconstitutional in 2008, only to have a full Constitutional amendment banning gay marriage pass by the slimmest of margins that fall.  On a night of celebrations for liberals, this was by far the toughest blow.  However, the ballot measure's constitutionality was immediately challenged, and has been found to be unconstitutional by a US District Judge under California law.  That verdict is currently under appeal to the 9th Circuit, which has stayed the ruling pending its decision, which may take months, since they have certified a standing question back to the CA Supreme Court.  If the standing issue goes one way, the case is over and gay marriage is legal in California.  If it goes the other way, the 9th Circuit could potentially make a ruling that could affect nine states.  If the 9th Circuit ends up ruling on this issue, it's a virtual guarantee to be in front of the Supreme Court of the United States within a couple of years.

I believe that the victory of Prop 8 in California in 2008 was the high water mark for the anti-gay marriage people.  Anything that happened in 2010 was more the result of the generally low turnout of the left across the country (such as in Maine).  All the momentum in the future is against the conservatives, and their walls will eventually crumble, because they have never managed to get their federal marriage amendment, and they never will.  As strong as these state bulwarks are, they will not stand forever.  On top of that, younger people are much more open to gay marriage than older people, and to be blunt, older people will die sooner.  You can't fight those demographic changes (note to conservatives: learn to speak Spanish).


This has been a bit dry as a posting, I know.  Lots of history and legal stuff and figures and graphs.  Not much ranting or even opinion from me.  So I'll just finish with a challenge that I have made to people for several years.

As my views on gay marriage evolved from the adolescent "ick" factor, through the post-collegiate libertarian "the government should just get out of the marriage business" stage, to "if everyone has equal legal rights, who cares what it's called", to the ultimate "civil unions are like separate drinking fountains for second class citizens", I have solidified my arguments in favor of gay marriage and accepting nothing less as enough. 

In my experience, there are some political issues that the more your think about the two sides, the more you come to a moderated understanding of the competing merits of the arguments.  This is NOT one of those issues.  I find that the more people think about it, the more they tend to shift towards the side of gay marriage rights, and that is because this is a rare case where one side is completely right, and the other is completely wrong.

So, here's the challenge.  I have asked friends and political debate opponents to give me one good argument against gay marriage that is not based in religion, emotion, or some other sentimentality for a past that probably never was in the first place.  In six or seven years, I've never had anyone come up with one that could not be completely dismantled, not merely countered or outweighed, but utterly laid to dust. 

That is my challenge to you.  Think about it.  Be honest with yourself.  Examine your feelings and your arguments.  And then do the same for everything else you think or believe.


Now how about some music celebrating gay love!

Propheteering

Bill Hicks, Prophet (1961-1994)


Through the millennia, there have always been people who "got it" in a religious and spiritual sense.  They have been known by many names, and held many different positions, in many cultures all over the world.  Sometimes they were given positions of great honor, such as the medicine man in a tribal group, or allowed to express their gifts in positions supported by others in society as artists or musicians or poets.  At other times, they are reviled as madmen, apostates, or as radicals or terrorists.  In rare cases, they have been revered as religious leaders whose every word and deed are seen as directed by God himself.

My preferred term for such people is Spiritual Adept.  But for short, I will call them Prophets.


Prophet, of course, is a loaded word for those raised in the western religious traditions (or near them).  But that is useful to my point, because I want everyone reading this to have in their minds their idea of what the word Prophet means to them.  My personal understanding of the word evokes images of the men of the Old Testament who heard the voice of God and were usually in some way directed by Him to do something, or spread some message to the people.  I'm going to guess that your idea is probably not too far off from that.

At this point, I wanted to pull a few ideas from a sort of open letter I wrote to my closest friends a little over a year ago about my feelings about my Jewishness.  I've clipped just the most relevant few paragraphs below, but I've also reprinted the entire thing at the end of this post (with a few minor edits from its original text), because it's something I'm very proud of, and which I'd like to share now with a wider audience.

One of the problems with religion in general, and especially “religions of the book”, is the book itself. You see, over the course of history, there have been people all over the world who have “gotten it”. For lack of a better term, we’ll call those people Prophets. The problem with Prophets is that in order for them to make their deep spiritual and philosophical understanding at all accessible or useful to people who have not “gotten it”, they need to dumb it down quite a bit.

The most successful method for imparting deep ideas to shallow people is in the form of allegorical stories. These allegories must be finely tailored to the intended audience to maximize their effectiveness, as allegory and metaphor are nothing without context. You talk about things that your audience knows from their everyday lives, so if you’re speaking to Bronze Age goatherds, you talk about wolves and the life cycle of a goat. If you’re talking to fishermen, you talk about the sea and fish and boats and other things they will understand.

The problems begin to grow when such stories are written down, and especially when some scribe or priest decides that he needs to tell people that these allegories and metaphors are important because they are the “revealed word of God”, or worse, the literal word of God. Then suddenly, a story told in such a way that prehistoric illiterates could grasp even the tiniest bit of deep wisdom about the nature of the universe and God becomes the unerring literal revealed word of God and the actual history of the world, and that story is now supposed to be just as important to people today as it was when it was first told 2500 years, and several language translations, ago. This is why I consider any religious orthodoxy or fundamentalism to be useless. The potential for missing the forest for the trees is tremendous, and can sometimes go so far as to be an actual distraction from the basic message.

I believe that there are Prophets walking among us today in vast numbers.  Considering that there are about as many people living on earth today as have died in the entire history of humanity, and the people alive today are FAR more educated than at any other time, it is not unreasonable to believe that there are as many Prophets walking around today as in the whole of human history before us.  So why in God's name do people continue to hold the words of men who lived thousands of years ago in higher esteem than those of people living today who have tremendous advantages in their ability to understand the universe as it truly is?

Think about this for a minute.  Imagine the wisest man on earth 2500 years ago, the man with the greatest understanding of science and of human cultures, as well as spiritual and religious beliefs.  It is unlikely that this hypothetical man would have any actual knowledge of any cultures further than a few hundred miles from his place of birth.  He would have no understanding whatsoever of chemistry or electromagnetism or particle physics, if he had any understanding of the mathematics understood by every moderately intelligent 16 year-old of the 21st Century.  These are topics that literally millions of modern people are very well-versed in, and if only a small percentage of those have the gift of spiritual aptitude, and the interest to pursue it even a small amount, you should have thousands of higher quality Prophets in the world today than the best possible Prophet of the first millennium B.C.

Now, remember that the words used by those ancient Prophets were a) allegories and metaphors for a specific ancient audience, many of the subtleties of which must certainly be lost on the modern reader, b) dumbed down for audiences that were neither educated nor spiritually adept, and c) translated several times through the centuries into languages that were not of the same language group, in parts of the world where the metaphors and allegories may have made little sense, by other men who were also not particularly well-educated or spiritually adept.

You are left at the end with some manner of sausage, and it's probably not kosher.

There are voices worth listening to all over the world today.  As Bill Hicks said in the video above, "We always kill the good guys who try to tell us that, and let the demons run amok."  But they can't get all of them, not in the age of digital information, and not before they can get some of their words out to us.


Jesus (a Prophet) said (rough translation from Aramaic to Greek to 17th Century English), "Ask, and it shall be given you; seek, and ye shall find; knock, and it shall be opened unto you.  For every one that asketh receiveth; and he that seeketh findeth; and to him that knocketh it shall be opened."

I believe this very strongly.  Seek, and you shall find.  But what do you seek?  Faith is a powerful, powerful and dangerous thing.  It can make you believe with every fibre of your being things that are patently untrue.  I give as an example my small son.  Last summer, he was about 16 months old, and he believed with everything that he was, that he could swim.  He would jump into the swimming pool, I'd hold a hand under his belly and he'd paddle and kick and stick his face in the water think he was getting around the pool on his own, and it just was not so.


If you seek Christ, you will find Christ.  You will find him in everything.  You will be shocked at how you find him in everything, and each time you find him, it will further affirm your faith in Christ.  And it will be mostly a figment of your fallible human mind that has been seeking him.  If you seek God, you will find God.  If you seek wealth, you will find wealth.  If you seek power, you will find power.  If you seek sex, you will find sex.  If you seek love, you will find love.


I seek TRUTH.  Often I find lies.  Often I am wrong.  Often I have told lies, to myself and others, and that is obviously not the path to Truth, but I am fallible and weak.  But when I focus on seeking Truth, when I make that the priority, I tend to find it.  I may sometimes be fooled into believing a lie, but I also believe that the best way to avoid being deceived is to make Truth your goal.


What is your spiritual goal?  If it is not to know the ultimate truth of the universe, then what is the point?



Terence McKenna, Prophet (1946-2000)


On Being Jewish (Oct. 2009)

[In September of 1999], I spent an evening with [2 friends] at their apartment in the Bronx, and among other things, we had a very deep discussion about ethnic and cultural identity. I talked about how I’d never really felt very much a part of any religious or ethnic community because I came from a diverse background and it was not something that my parents emphasized. I knew I was not ever a Christian, but I never really felt like I was a Jew either, at least not in the eyes of my many Jewish friends.

I can recall quite vividly that [my friend] asked me if I considered myself a “musician” because I played guitar. I said I did not, because I was not a very good player, not good enough to perform for others, and that people probably wouldn’t consider me to be a musician. [He] responded that if I considered myself a musician then I WAS a musician. He said he considered himself an artist and musician because he made art and music, and the opinions of others were much less relevant than the weight to which I assigned those opinions. He told me that if I wished to embrace my Jewishness, then I could be a Jew.


This past week was Yom Kippur, and again I have been contemplating what it means to be a Jew, and what Judaism means to me. Fasting on Yom Kippur is one of the very few Jewish rituals that I have regularly practiced over the years because I believe that fasting is a valuable experience for focusing the mind on oneself, one’s needs, and on specific topics of choice, in this case one’s transgressions and how to improve as a person in the next year.

This year, my experience was different, and it has caused me to evaluate what I do as a Jew and why. I was extremely busy at work the past few weeks, including quite a bit of time spent in the office on weekends. I had three closings that I had to manage over the three business days surrounding Yom Kippur. As a result, I lost track of which day the holiday even was. I thought it was on Tuesday, and it wasn’t until I had eaten lunch on Monday that I realized that it was in fact on Monday. I regretted this, but I also knew that my work would have suffered for me not eating that day, and it was not a day that I could afford to have my work suffer.

I work closely with three other Jews. The President of my company is a very reformed Jew in his mid-40’s from Chicago. He’s married to a woman of Mexican descent, I don’t believe he has raised his kids Jewish (or Catholic for that matter) and while he certainly self-identifies as a Jew, he does not practice much at all. Our sales manager is about the same in his practice, although he seems to observe the high holidays and embraces the ritual a little bit more.

The third guy is our CFO, and he’s in his early 30’s and has really embraced his Jewishness so that he and his wife have decided to live an Orthodox Jewish life. He was not raised Orthodox, but began on this path around the time he was in college, and has progressively become more Orthodox over the course of his adult life. They lived in Israel for a year, he speaks Hebrew to his children, he eats almost perfectly kosher, and he observes Shabbat strictly. He takes his practice to what I would consider extreme lengths, and I say that with the experience of knowing many conservative Jews who engage in regular practice and ritual.

So, in addition to forgetting my Yom Kippur fast, a couple other things happened this week that have highlighted Jewish practice and identity and led me to put my thoughts and feelings down on paper. The first thing was that while I was in the midst of preparing for all of these closings this past weekend, our CFO was home with his family in Phoenix from midday Friday, and wasn’t back in the office until Wednesday. I don’t normally begrudge his Sabbath observance at all because this is a guy who regularly puts in 15 hour days so that he can turn off his phone on Shabbat and do what he does. But when it’s crunch time for work, it’s pretty tough on all the people who are working [for him] to be off for four days in a row. The result of this turned out to be that he had not performed all of the general accounting on the several closings and forgot to send a wire so that on Wednesday afternoon, the company, and particularly the President of the company, was embarrassed by looking incompetent. I was personally upset because I had put a lot of time and effort into making sure that these closings all went off smoothly, and then in the end, they appeared sloppy. Rightly or wrongly, I blamed his strict religious observance for the errors that took place.

A couple days later, I overheard him explaining to someone else in the office about his views on religious observance. He described time as a series of circles and spirals and cycles and the observance of holidays as being a harmonic resonance with Jews throughout history. From a metaphysical standpoint, these are all concepts that I fully agree with. The idea of time as a spiral is actually central to my entire philosophy of life and the universe, as are the ideas of harmonics and history. Perhaps that’s why I reacted so strongly to his words; because his philosophy is so similar and yet so diametrically opposed to my own.

To him, being a Jew is about doing things, saying words, and practicing rituals that Jews have done continually for 3000 years so as to feel a part of something that has endured throughout history and across the face of the Earth. This is obviously a common sentiment among Jews, and I’ve observed that very idea explicitly discussed at the Passover Seder, and when reciting the Shema. However, that is only a very small amount of what I identify with in Judaism, and it is the part which I find is most in opposition to the parts that I do identify.


To most, I would be considered a convert. I was not raised in the religion, my mother is not Jewish, and neither was my father’s mother. My father’s father was Jewish however, and I have always had a strong presence of Jewish culture in my life. My aunt “converted” [upon her marriage] and raised her son Jewish, my step-father is Jewish, many of my best friends from childhood are Jewish and it is the part of my background that I have always most identified with. When I married, I went through a very liberal conversion process so we could be married by [my in-laws'] rabbi. But I must say, that ever since my conversation with [my friend in 1999], and my meeting [my wife] a couple weeks later, I have considered my Jewishness to be mine, a birthright to which I required only formal recognition. I could not have gone through even the most superficial conversion to another religion because I have a well-defined and explored personal philosophy of the universe and the divine. The core beliefs of Judaism do not conflict with or offend my own sensibilities, even if I am not as certain of those core beliefs as some may be.

Which brings me to  that with which I most identify in Judaism. I can agree with the most central ideas of one God, and a chosen people and a revealed word and law. And the history of Judaism is one of scholarship and interpretation of God’s word and argument amongst wise men about the meaning of the law and how it should apply to our lives. Questioning orthodoxy is respected, so long as one has a strong argument for an alternative interpretation. Perhaps it appeals to me as a lawyer, but it certainly appeals to me as a liberal and an intellectual.

One of the problems with religion in general, and especially “religions of the book”, is the book itself. You see, over the course of history, there have been people all over the world who have “gotten it”. For lack of a better term, we’ll call those people “prophets”. The problem with prophets is that in order for them to make their deep spiritual and philosophical understanding at all accessible or useful to people who have not “gotten it”, they need to dumb it down quite a bit.

The most successful method for imparting deep ideas to shallow people is in the form of allegorical stories. These allegories must be finely tailored to the intended audience to maximize their effectiveness, as allegory and metaphor are nothing without context. You talk about things that your audience knows from their everyday lives, so if you’re speaking to Bronze Age goatherds, you talk about wolves and the life cycle of a goat. If you’re talking to fishermen, you talk about the sea and fish and boats and other things they will understand.

The problems begin to grow when such stories are written down, and especially when some scribe or priest decides that he needs to tell people that these allegories and metaphors are important because they are the “revealed word of God”, or worse, the literal word of God. Then suddenly, a story told in such a way that pre-historic illiterates could grasp even the tiniest bit of deep wisdom about the nature of the universe and God becomes the unerring literal revealed word of God and the actual history of the world, and that story is now supposed to be just as important to people today as it was when it was first told 2500 years, and several language translations, ago. This is why I consider any religious orthodoxy or fundamentalism to be useless. The potential for missing the forest for the trees is tremendous, and can sometimes go so far as to be an actual distraction from the basic message.


My CFO friend explained a project he has been working on in Phoenix over a dinner one night this summer. Apparently, there are many activities that may be done on Shabbat only within the confines of the home, but cannot be done “across property boundaries”. These include carrying or pushing anything, including children or a stroller, or any other number of things that are pretty much essential if you do not want to spend your entire day indoors in your own home on the Sabbath. So some Orthodox Jews have come up with the brilliant idea of creating a virtual wall, or “eruv” around their entire community to allow for such things. He was quite animated in his explanations about how this is constructed and how it deals with such things as roads and canals, as well as the logistics of dealing with the Department of Transportation and building even a small flagpole type erection in their right of way.

It was all very fascinating in a “do you have any idea how crazy this is?” kind of way. [My wife] summed it up perfectly. “Isn’t that an awful lot of mental energy dedicated to essentially cheating on God’s law?” I saw it more practically. For all of the time and energy that he and his friends spent on this Jewish jerk-off, they could have actually done something positive to help the world. I’m no Talmudist, but I think that God probably cares more about “heal the world” than “please, imaginatively skirt My rules.” This is pure self-indulgence, and as my Jewish boss said the other day when the CFO was out for a couple hours for a meeting on the project, “What a fucking waste of time.”


So after 10 years, I think that I’m finally completely secure in my Jewishness. I don’t give a damn what anyone else thinks of my beliefs or my practices, and I don’t care “how Jewish” they think I am. I am every bit a Jew as anyone else is.

My CFO friend explained to me one day how he learned that he was a Levite, and how cool he thinks it is that he so often gets to read the Torah in the synagogue. Personally, I think the entire Kohanim/Levite thing is bullshit, and that there is no way that people could have accurately kept track of such things over 2000 years and thousands of miles of Diaspora. My traditional family name [before my great-grandfather changed it] was Usilevsky. For all I know, the “lev” denotes a connection to the tribe of Levi. But I would much rather embrace and carry on my [Jewish] grandfather’s lifetime dedication to social justice and equality, than to abjure his absolute rejection of nobility and privilege, Jewish or otherwise.