California: No doubt about genetics?

cagay Reporters have pointed out that the California Supreme Court’s decision to redefine the state’s marriage laws is premised on the idea that homosexuality should be treated no differently than race. Now Maura Dolan of The Los Angeles Times fills in details about this assertion.

In her profile of state Chief Justice Ronald M. George, Dolan suggests that George’s thinking was shaped by two factors. One factor was his personal experience with racism:

As he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled in a wide-ranging interview Friday.

“I think,” he concluded, “there are times when doing the right thing means not playing it safe.”

The other factor, Dolan indicates, was George’s reading of history:

He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.

Give Dolan credit. She landed an intellectual scoop: George’s decision was based on personal experience and outlook. Providing this information to her readers — and, possibly, historians — is invaluable.

Yet Dolan’s explanation was largely uncritical. Not once did she question or raise doubts about George’s central premise: that race and homosexuality should be treated the same legally.

This is a major claim. In the debate over whether homosexuality is caused by nature or nurture, George has come down on the side of nature. He brooks no doubt: a person cannot choose to be gay or choose to engage in homosexual acts; he or she is gay.

Is this claim true? In a previous post, Tmatt says — we don’t know:

There is a stack of evidence that suggests that many people cannot change their sexual orientation, which is not the same thing — for traditional religious believers — as changing their behavior. There is also a large body of evidence that people can change their behavior and, to an imperfect degree, their emotions and orientation.

Dolan should have raised questions about George’s premise. Instead of simply validating his claim, she ought to have noted the lack of a consensus about it — citing fierce debates in public opinion, science and doctrine. (Over at The New Republic, Jeff Rosen posits that no court has agreed with George.)

Certainly traditional religions dispute George’s claim. To back up her story, Dolan should have noted that its operating idea is not yet the gospel truth.

(Photo of celebration in the Castro District in San Francisco is used under a Creative Commons license.)

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  • Michael

    The California Supreme Court didn’t rule sexual orientation was an immutable trait. Comparing it to religion, the court said it was possible to be a suspect class without it being immutable, noting one can change their religion. The court, instead, said sexual orientation was so core to one’s identity that one shouldn’t have to change it–if it can be changed–in order to avoid discrimination. (pages 95=98 of the decision).

  • Dave2

    Where exactly did George say that homosexuality is innate and not a matter of choice? I read the article, but I couldn’t find any discussion of that issue.

    I’m not accusing you of making this mistake, but it would be a gross and terrible mistake to confuse (i) the issue of whether race and sexuality should be treated alike by the law, with (ii) the issue of whether sexuality is just as innate (and not a matter of choice) as race. Those are two different issues. Very different issues.

    Of course, some people might assume that the moral and legal status of sexuality entirely depends on the issue of innateness and choice. But that would be a mighty big assumption (and a false one, I submit).

  • John K.

    How about you read the actual decision and not just some news article about the judge who wrote the decision before you go off talking about what the decision was based upon. As Michael (comment 1) stated, in the decision Chief Justice George laid out why he treated sexual orientation as a suspect classification similar to race. Being born gay was not the key issue. For purposes of the “immutibility” prong of the suspect class test, George rightly noted that California treats religion as a suspect class, and people obviously aren’t born a certain religion (people change religions all of the time). However, like religion or maybe even more so, being gay is so much a part of who someone is that it would not be reasonable to EXPECT them to change, just as it would not be reasonable to ask a highly religious person to change his religion.

  • John K.

    Sorry, Dave2 (comment 2) also noted the difference between the definitions of immutible by literal birth or by law. Didn’t want to give props to Michael and not Dave2, lol.

  • http://www.abpnews.com Robert Marus

    In addition, Mark, George’s decision to treat marriage rights as something the state owes equally to its gay and straight citizens was not predicated on George’s or the majority’s *subjective* decision to treat sexual orientation as an immutable trait (such as race) or a trait worthy of protection despite its mutability (such as creed). It was, in part, based on the fact that California law ALREADY treats discrimination based on sexual orientation as just as offensive to the law as it does discrimination based on race, gender or religion. There have long been non-discrimination statutes that include sexual orientation in California. The domestic-partnership law was just the latest (democratically enacted) version of that.

    I don’t see how someone who read the decision thoroughly could make the assertions about George’s motivations (or those of the rest of the majority) that you do in this post. It resembles an insightful understanding of the decision (and the interview, and the nexus between the two) much less than it does a propaganda piece by Tony Perkins or James Dobson.

    Honestly, I usually expect much better out of GetReligion.

  • steve schofield

    Having not read the Cal. ruling, can someone enlighten me as to the reasoning and legal grounds behind treating sexuality like race or religious preference? Race receives the highest protection under the equal protection clause specifically because it is an immutable characteristic (cannot be changed) which sexuality has not been factually proven to be. Religious preference is not an immutable characteristic, but is given its protection under the First Amendment “Free Exercise” clause. What is the legal grounding for California’s revolutionary finding?

  • http://mormonmd.wordpress.com Doc

    Conflating homosexuality and race is not calling homosexuality genetic. Race is largely a sociocultural, not genetic construct. I think they are saying that sexual orientation involves no conscious choice, whether nature, nurture or both are involved. This thesis could be examined critically, and perhaps more elucidation of that thinking would be good, but it seems to me the piece is looking to explain the thinking behind the decision. Now, if only they could do a similarly well thought out piece about the thinking of the opposition.

  • Michael

    Steve, you are making the same mistake Jeff Rosen apparantly made: using a federal analysis to interpret California law. The California Supreme Court applies its own equal protection analysis that isn’t dependent on the federal construction.

    Sexual orientation has been a protected classification under California law for at least two decades. There are a number of protections that exist under California law that identify sexual orientation as being similar to race and religion and sex when it comes to being a classification subject to discrimination.

    Based on that, there’s nothing terribly revolutionary in finding that sexual orientation is a “suspect classification” similar to race, religion, sex, alienage and therefore strict scrutiny should apply to any law that discriminates on the basis of sexual orientation under California law. Having already approved domestic partnerships, the justices found that the court had no compelling government interest in discriminating based on sexual orientation when it came to marriage.

    The court said immutability was not a requirement for strict scutiny under California law because, like religion, one should not have to change their sexual orientation–assuming it is a choice–in order to avoid discrimination. Jews shouldn’t have to become Christians to avoid discrimination and gays shouldn’t have to become heterosexual to avoid discrimination. Neither are immutable traits, but both deserve protection.

  • http://www.tmatt.net tmatt

    So Michael, homosexuality is a chosen condition? A trait that is DECLARED in order to deserve protection?

    That is a major headline. A major hole in coverage.

  • Michael

    So Michael, homosexuality is a chosen condition? A trait that is DECLARED in order to deserve protection?

    Again, read the decision. The court said that the issue of immutability didn’t matter and didn’t require a showing because even if it was something that could be changed, it was so core to someone’s identity that they shouldn’t be asked to change to avoid discrimination.

    The court never rule on whether it was a chosen condition because it didn’t matter; gays are victims of overt discrimination regarldess of whether it is genetic or a choice.

    There’s no headline or hole in the story.

  • http://www.getreligion.org Mark Stricherz

    Thanks for the comments. Michael, Dave2, and John K all make valid points. But I think their posts reflect a misunderstanding of GR. We cover the coverage, not the issue itself. For my post, I wrote about the LAT’s story, not the court’s ruling.

  • Darel

    One problem with the strong dissent from Mark’s posting today: the California Supreme Court based its decision not only on finding homosexuals to be a “suspect classification”, but first and foremost on a constitutional “right to marry”. Homosexuals’ status in this case as a “suspect classification” and thus the demands for “strict scrutiny” are founded in this constitutional right.

    And this flows exactly from where Mark notes, i.e. Chief Justice George’s equation of CA marriage laws with miscegenation laws.

  • Michael

    Focusing on the story, it appears the reporter understands the ruling better than a lot of commentators. Since George has not staked out a position on the nature/nurture argument and he refused to talk about specifics of the decision and the decision does not stake out a position, the critique of the story seems off-base.

    When judges won’t talk about the specifics of the ruling, reporters are left to use the court decision as the “voice” of the court. In this case, the court avoided ruling on the issue that Mark seems the most worried about and thus any attempt to delve into the issue would be something of a fool’s errand, especially as part of a personality profile of the judge.

  • http://www.getreligion.org Mark Stricherz

    Michael,

    I wrote the post in response to the article, not to the court’s decision. Your suggestion that I had a hidden agenda is groundless. Please confine your comments to my critique and not speculate about my motives.

  • http://www.abpnews.com Robert Marus

    But Mark, you make the following assertions in your analysis of the story that reflect an inadequate understanding of the ruling:

    “She landed an intellectual scoop: George’s decision was based on personal experience and outlook. Providing this information to her readers — and, possibly, historians — is invaluable.

    “Yet Dolan’s explanation was largely uncritical. Not once did she question or raise doubts about George’s central premise: that race and homosexuality should be treated the same legally.

    “This is a major claim. In the debate over whether homosexuality is caused by nature or nurture, George has come down on the side of nature. He brooks no doubt: a person cannot choose to be gay or choose to engage in homosexual acts; he or she is gay.”

    The assertion “that race and sexuality should be treated the same legally” is not based in George’s (or the rest of the majority’s) “premise” that comes only from his own personal experience; it’s based in a well-established body of California law. But you are criticizing the story for not challenging this alleged premise, while ignoring the fact that the opinion that George penned grounds this assertion in that body of law.

    The only revolutionary thing about George’s opinion is that it extended this legal principle specifically to the term “marriage” — thus up-ending an eight-year-old public referendum.

    Sticking to critique of the story, I fail to see how Dolan can be rightly criticized for ignoring — in a profile piece, no less — a “premise” that George didn’t express in the decision and on which the decision does not turn.

  • Michael

    Please confine your comments to my critique and not speculate about my motives.

    The decision and the article are intertwined. A critique of the story that completely misstates the judge’s views (the decision) seems off the mark and an unfair swipe at a very solid story.

  • John K.

    tmatt: what protection do gays in California receive by declaring that they are gay that they don’t receive by declaring that they are straight? The whole purpose is just to make sure that gays are not treated LESS than equal to straights. There is no legal incentive that I know of for a straight person to declare themselves to be gay in California.

  • John K.

    Mark:

    Your own commentary on the coverage seemed to call into question the reasoning behind the decision itself and why it wasn’t challenged more. We’re explaining why the reporter whose coverage you are criticizing declined to ask the sort of questions you thought she should ask.

    “Give Dolan credit. She landed an intellectual scoop: George’s decision was based on personal experience and outlook. Providing this information to her readers — and, possibly, historians — is invaluable.”

    “Yet Dolan’s explanation was largely uncritical. Not once did she question or raise doubts about George’s central premise: that race and homosexuality should be treated the same legally.”

    “This is a major claim. In the debate over whether homosexuality is caused by nature or nurture, George has come down on the side of nature. He brooks no doubt: a person cannot choose to be gay or choose to engage in homosexual acts; he or she is gay.”

  • SamW

    First time in this room. I must say that the level of discourse is much higher than I would have expected. ( This is usually such hot button issue that hair falls out and spit mars the computer screens.) For my edification, can someone post a link to a pdf of the decision?

  • http://whywontgodhealamputees.com JustMe

    Genetic or not is not the issue here. Neither is if a person is ‘born’ with a predisposition.

    The issue is if the State (national, state, or local) has an interest in defining the allowable relationships between individuals.

    If a religious group — or any private group — wants to discriminate based on additional criteria that is no longer the State’s concern unless it can show that there is a public interest (a very high bar).

    That’s why we have laws to keep public funds out of religious institutions (to prevent encroachment on the religious group and from the religious group where the group has a funding advantage other groups may not have) and why there are age of consent laws (to protect those that are either naive/ignorant of reality or are easily abused because of power relationships).

    I’m hard pressed to see many other restrictions on private conduct or associations, though.

    The largest exception that comes to mind are associations for legal expediency such as immigration or tax/health care breaks/subsidies — that is where the relationships are not personal and in earnest. As these exceptions are to provide exceptions not normally allowed, there will be abuses of those exceptions … and the State has an interest in reducing abuses of those laws that accommodate those exceptions.

    If two same-sex individuals get married and are not in earnest, then the State has an interest in blocking that abuse. Otherwise, the State has no interest; they should get out of the way.

  • John K.
  • Stephen A.

    This is not a “very solid story” as Michael says.

    Depsite Michael’s comments that the judge didn’t explain his ruling, he plainly did. He said it was based in part on his feelings about seeing blacks treated badly in the South. That, of course, reveals the basis for an emotional, feelings-based ruling, not one based in state or federal law or precedent. It also betrays his feelings on the nature/nurture argument, since it’s obvious that those who think homosexualiy is part of one’s nature (like being black) will make that analogy and the assertions that go along with them, so Michael is just plain wrong here.

    On the other hand, Mark’s critique was spot on, as he points out the uncritical nature of the article:

    Yet Dolan’s explanation was largely uncritical. Not once did she question or raise doubts about George’s central premise: that race and homosexuality should be treated the same legally.

    But the fact is, it likely wasn’t treated with suspicion due to the biases of not only the reporter – for whom it probably never occurs to him to question that race and homosexuality AREN’T the same – or for a majority of his readers.

    It simply is a given among the Liberal elites, including the so-called “moderate” judge being profiled, that the two are exactly the same and that this is a natural, logical analogy.

    Of course, it’s simply an assertion based on emotion (as if to say: “It FEELS wrong to not allow all kinds of marriage”) Like many other assertions, said often enough, many people simply believe them without questioning them, because “smart” people have said them often.

    When reporters play the same game of uncritical questioning, it’s truly disgusting and immoral.

    The celebratory tone of many of these articles on the ‘victory’ in the courts was also a case of journalistic malpractice. But we should be used to that by now.

  • John K.

    Stephen A:

    Did you read the opinion? There is plenty of state AND federal precedent (although only state was needed).

  • Dave2

    Stephen A. wrote:

    It also betrays his feelings on the nature/nurture argument, since it’s obvious that those who think homosexualiy is part of one’s nature (like being black) will make that analogy and the assertions that go along with them.

    That is completely absurd. Even if sexuality were completely a matter of a choice, that would in no way undermine the (very plausible) view that it’s highly immoral to discriminate against homosexuals in just the same way that it is highly immoral to discriminate against blacks or Asians. (And this is assuming that Judge George’s moral views were illegitimately driving his judicial reasoning).

    There is zero basis for attributing anything to Judge George when it comes to the nature/nurture issue. Why Mark saw fit to do so (and why you see fit to do so) remains a mystery to me.

  • Stephen A.

    Dave2, in the article, Judge George admits that his decision was affected by the ‘being gay = being black’ concept, and that discrimination against blacks for being black (which they cannot change) was exactly the same as being gay (which, he infers, they cannot change.)

    If you can’t see that this argument is a nature/nurture argument, I urge you to think on this a bit harder. Because if being gay is completely, 100% natural (which NO scientist can say with any precision, BTW) then it’s the same as being black, Asian or white. In other words, it cannot be changed and is natural.

    Having to spell this out for you seems a bit ridiculous.

    However, if this is NOT the case, then it’s simply a bold, unproven assertion being made by those with a political agenda to force the mainstreaming of gay sexual behaivor onto society by using the courts. The latter seems to be the case here, IMO.

    John K: I will readily admit that the CA courts may very well have established a long line of precedents based on fuzzy “feelings” that something is “unfair” and therefore the high court’s decision may indeed have a certain internal consistency, such as it is.

    That doesn’t either excuse or explain the cheerleading and bias in the media coverage of this decision, which borders on issue advocacy.

  • Stoo

    Whether it’s genetic or maybe influenced by societyupbringing whatever, it’s still something that’s not easily deliberately changed (if that’s at all possible). And it’s rather intrinsic to a person, a core part of what they are.

    So I think drawing parallels with race doesn’t have to mean holding a position on naturenature.

  • Stephen A.

    Stoo, it’s pretty obvious why the parallel is being drawn, and it’s not because the argument bolsters the case for denying marriage to same-sex partners. It’s clearly a rather inflamatory and illegitimate argument that ties one “unchangable” natural phenomenon to one that is as-yet unproven to be such.

    What is utterly lacking in the coverage, and perhaps in the arguments itself, are solid reasons why gay marriage would benefit society. “It’s unfair to deny it” or “it’s like Jim Crow” or “gays are treated like blacks in the 50s” are not reasons, they’re meant to shut down opposition, and to see the press uncritically accept statements and claims without analysis and challenges (if anyone DARES to publicly challenge this at this point) is very troubling.

    I would think presenting valid benefits to SOCIETY and not just to the “victims” for changing thousands of years of tradition would be far more effective in changing minds. I’m open to hearing what the benefits to all of us as a nation would be, and not why conservatives are all bigots and mean for not just stepping back quietly and allowing it to happen, as Mayor Newsom says “Whether we like it or not.”

  • Dave2

    Stephen A.,

    Are you confusing the following two claims?

    (1) If sexuality and race are alike in respect of innateness/changeability, then they are alike in respect of moral/legal status.

    (2) If sexuality and race are alike in respect of moral/legal status, then they are alike in respect of innateness/changeability.

    These are clearly different claims: one is of the form p → q and the other of the form q → p. They are as different as “If it’s raining, then the ground is wet” and “If the ground is wet, then it’s raining”.

    Claim (1) has some initial plausibility to it. But it’s irrelevant to the discussion. Claim (2), on the other hand, is relevant to the discussion: for if it were blazingly obviously true, then we could in good conscience attribute views on the innateness of homosexuality to Judge George. However, claim (2) is false. Even if sexuality and race are alike in respect of moral/legal status, it simply does not follow that they are alike in terms of innateness/changeability. There’s absolutely nothing intrinsically problematic about the view that sexuality is very different from race in respect of innateness and yet much like race in respect of its moral/legal status.

    In other words, for all we know, Judge George thinks that being gay is both (i) completely a matter of choice, and (ii) strongly analogous to race morally/legally. So it’s foolhardy to attribute any views about the innateness of homosexuality to Judge George.

  • Dave

    Stephen A. wrote:

    I would think presenting valid benefits to SOCIETY and not just to the “victims” for changing thousands of years of tradition would be far more effective in changing minds.

    Citing thousands of years of tradition is just as emotional and touchy-feely as citing parallels with Jim Crow in the ’50s.

    And be it remembered, both slavery and differential treatment of various castes of citizens have thousands of years of tradition behind them too.

  • John K.

    Stephen A:

    Chief Justice George, if I remember correctly, compared sexuality to be more like religion than race in his majority opinion. It may be changeable, but it should not be expected to be changed because, as Stoo said, it is such a core part of ones identity and happiness. I noticed you did not try to rebut Stoo’s claim that this is where the parallels lie in your response to him. Instead, you brought up a completely new consideration that has nothing to do with whether something is innate or virtually innate such that it should not be expected to be changed.

    That new consideration is benefit to society. So tell me, what benefit to society did interracial marriage present? Was that the basis upon which the US Supreme Court decided Loving v. Virginia? No, the analysis has to do with the HARM to society in the absence of a restriction. Interracial marriage benefitted society in that it allowed individuals who wanted to marry interracially to do so. That’s the same way gay marriage will benefit society, by allowing people who want to marry someone of the same sex to do so. Neither BAN benefited society; they only harmed individuals. So, there is a net-gain (to individuals without a loss for society) by striking down the bans. Your placing the burden on gays to show how gay marriage benefits society is incorrect.

  • Stephen A.

    Sorry guys, the analogy to interracial marriage or slavery is bogus, period. It’s inflamatory and designed to evoke the same extreme passions that slavery did. That’s not “reason” nor is it rational discourse, and reporters (and those here) shouldn’t be simply repeating nonsense.

    Gays are not banned from dating, banned from sexual activity, banned from living together, banned from working among non-gays, banned from buying cars together or vacationing together or any number of other rights they now enjoy on an equal basis. Blacks were. There’s no analogy.

    A vast majority of people, myself included, would gladly extend the right for ANYONE regardless of orientation, to leave property in wills, eqvisitation rights in hospitals and other rights and privileges. Many people, including most in California, oppose re-defining marriage – which is a minefield. Most don’t see it as not an urgent issue, despite the hysteria.

    Marriage has existed in dozens of cultures that had slavery, and it has survived slavery for over 140 years in most Western nations, so this is clearly just cruft being thrown up to confuse those who can’t see through such an emotional appeal – such as that judge, who makes this and other ludicrous arguments.

    Dave and John K: Are you reporters? If so, I challenge you to list three DOWNSIDES of gay marriage and how you’d cover them in your stories. If you can’t, well…I just feel sorry for reporters who can’t, and their readers.

  • Stephen A.

    Sorry guys, the analogy to interracial marriage or slavery is bogus, period. It’s inflamatory and designed to evoke the same extreme passions that slavery did. That’s not “reason” nor is it rational discourse, and reporters (and those here) shouldn’t be simply repeating nonsense.

    Gays are not banned from dating, banned from sexual activity, banned from living together, banned from working among non-gays, banned from buying cars together or vacationing together or any number of other rights they now enjoy on an equal basis. Blacks were. There’s no analogy.

    A vast majority of people, myself included, would gladly extend the right for ANYONE regardless of orientation, to leave property in wills, visitation rights in hospitals and other rights and privileges. Many people, including most in California, oppose re-defining marriage – which is a minefield. Most don’t see it as not an urgent issue, despite the hysteria.

    Marriage has existed in dozens of cultures that had slavery, and it has survived slavery for over 140 years in most Western nations, so this is clearly just cruft being thrown up to confuse those who can’t see through such an emotional appeal – such as that judge, who makes this and other ludicrous arguments.

    Dave and John K: Are you reporters? If so, I challenge you to list three DOWNSIDES of gay marriage and how you’d cover them in your stories. If you can’t, well…I just feel sorry for reporters who can’t, and their readers.

  • Dave2

    I’m no journalist, I’m just someone who knows better than to attribute views on the innateness of homosexuality to Judge George when there appears to be zero basis for doing so.

  • John K.

    Stephen A:

    I’m not a reporter either. However, I still don’t see any relevant downside to gay marriage. The only downside is that people’s personal religious beliefs are offended, and that is not a valid enough consideration to trump gay people’s rights. Gay marriage takes nothing away from religious straight people other than the ability to say “our reliationships are better than yours, nah, nah.” If you’ve got a downside you’d like to suggest, I’m all ears. I’ve yet to hear one though.

    You keep glazing over the analogy between RELIGION and sexuality.

    Also, after more though, I’ve decided that Chief Justice George probably got it wrong in deciding that the marriage law discriminated on the basis of sexual orientation. I think the much more logical view is the one that’s been mostly rejected: that it discriminates on the basis of gender. As a man, I do not have the right to marry Neil Patrick Harris. However, my friend Beth has that right. Similarly, Beth does not have the right to marry Lindsay Lohan, but I have that right. There is lots of discrimination going on here on the basis of gender. Regardless of how many times you say the contrary, it is the same structure of discrimination– perhaps not for the same reasons, but the same structure– as saying that Mildred Jeter (Loving) was allowed to marry Malcolm X, but not Richard Loving, and that Richard Loving could marry Marilyn Monroe, but not Mildred Jeter.

  • http://www.getreligion.org Mark Stricherz

    Dave2 writes,

    I’m no journalist, I’m just someone who knows better than to attribute views on the innateness of homosexuality to Judge George when there appears to be zero basis for doing so.

    I have tried to follow the logic of your replies, as well as those of Dave and Michael. But I have not read you comment on why the reporter and Judge George mentioned the analogy between race and homosexuality. I would like to hear it.

  • Michael

    mentioned the analogy between race and homosexuality.

    He was talking about the social phenomenon of discrimination and victims. It wasn’t–from all appearances–an attempt to compare race and sexual orientation for legal purposes but instead a view on the ugly reality of discrimination.

    Having seen the ugly reality of Jim Crow America and the impact on African Americans, he relates that to the ugly reality of present-day California (or very distant-past California) and the impact on gays and lesbians.

    The idea that gay rights is the major civil rights battle of the early 21st Century is not exactly an unusual or radical position and apparently the judge agrees with that. Having been the first state to rule against bans on interracial marriages–a case that is used throughout the decision–he is drawing a parallel between that effort and the effort for same-sex marriage.

  • Stephen A.

    Let’s start over, this time from an actual quote not only from the story, but from the POST above:

    He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.

    So, to the judge, banning homosexual marriage equals the anti-miscegenation laws of the Old South (i.e. forbidding two same-gendered people to marry is the same as forbidding two people of DIFFERNT races – based on what the parties cannot change.) Further, moving “ahead of public sentiment” then is the same for this judge as moving ahead of voter sentiment now on gay marriage.

    I can’t make any clearer than this that the judge is acting upon the analogy that race = homosexuality and that the issue of race in the South is intwined with the case of gays today.

    If he didn’t mean to imply this, he surely picked his words poorly, since there is obviously no “Jim Crow” law against gays in CA or anywhere else, as I noted in a previous post. To make such a claim outrageous.

    Using those words and the tactic of that analogy is a way to shut down debate on the issue and demonize opponents. I believe that he has chosen his words carefully, both in the decision and in this interview, because this is not a new argument, and in fact, it PLAYED A PART IN THE JUDICIAL DECISION.

    As Judge Carol Corrigan stated in the dissenting opinion:

    The majority refers to the race cases, from which our equal protection jurisprudence has evolved. The analogy does not hold. The civil rights cases banning racial discrimination were based on duly enacted amendments to the United States Constitution, proposed by Congress and ratified by the people through the states. To our nation’s great shame, many individuals and governmental entities obdurately refused to follow these constitutional imperatives for nearly a century. By overturning Jim Crow and other segregation laws, the courts properly and courageously held the people accountable to their own constitutional mandates. Here the situation is quite different. In less than a decade, through the democratic process, same-sex couples have been given the equal legal rights to which they are entitled.

    What’s fascinating about this dissent, which is very thorough, is that Corrigan personally supports gay marriage, and states so in the preface of her dissent, but finds that she could not support it under the law – using (surprisingly) the LAW as a precedent.

    (It’s too bad that journalists can’t see the other side of issues like this one, despite their personal biases.)

    More instructive, perhaps, to this discussion of ours, is this lovely statement in Corrigan’s dissent:

    The distinction between substance and nomenclature makes this case different from other civil rights cases. The definition of the rights to education, to vote, to pursue an office or occupation, and the other celebrated civil rights vindicated by the courts, were not altered by extending them to all races and both genders. The institution of marriage was not fundamentally changed by removing the racial restrictions that formerly encumbered it. Plaintiffs, however, seek to change the definition of the marital relationship, as it has consistently been understood, into something quite new. They could certainly accomplish such a redefinition through the initiative process. As a voter, I might agree. But that change is for the people to adopt, not for judges to dictate.

  • Dave

    Stephen A.:

    I was not analogizing lack of gay marriage to slavery. I was pointing out that you, who have been pouring a logician’s scorn on “touchy-feely” judicial reasoning, are the last one who should be citing mere tradition. It’s just another emotional attachment, to the logical viewpoint.

    My mention of slavery and Jim Crow was to illustrate that citing tradition can trip you up.

    I’ve been an editor, not of mass media, but I’ve never been a reporter in the sense you are using the word. However, if asked to list and cover three downsides of marriage equity I would promptly steal them from the excellent Maggie Gallagher article that tmatt cited in an earlier post.

  • Dave

    Stephen A. wrote:

    Gays are not banned from dating, banned from sexual activity, banned from living together, banned from working among non-gays, banned from buying cars together or vacationing together or any number of other rights they now enjoy on an equal basis. Blacks were. There’s no analogy.

    Until very recently, gays did not enjoy these rights to the same extent that they do now. Or those rights had to be exercised “in the closet.” And some of these rights are only theoretical in some parts of the country. Employment can be terminated for being gay in many states, eg, with no recourse.

    The fact that these rights have been somewhat gained is due to a movement that is not only parallel to the civil rights movement for African Americans, it is indeed a civil rights movement itself with different (though overlapping) beneficiaries.

    The people who populate that movement, including BGLTs and their straight allies, regard marrige equality as the next logical step, and in that context the parallel with mixed marriage is quite compelling.

    If gay marriage upsets you, thank your conservative religious leaders. In the recent past, whenever BGLTs have sought some kind of accommodation like domestic partner recognition, those conservative leaders have screamed, “That’s tantamount to gay marriage!” After enough of that the gay civil rights movement decided, if we’re going to have the name, let’s try for the game.

  • Dave2

    I have tried to follow the logic of your replies, as well as those of Dave and Michael. But I have not read you comment on why the reporter and Judge George mentioned the analogy between race and homosexuality. I would like to hear it.

    What Michael said. It’s pretty easy. You notice how homosexuals are openly mistreated and victimized and marginalized and hated and oppressed (etc.) for being gay, and you draw a comparison between that and the way black people were (or, perhaps, still are) treated. And you think to yourself, whether homosexuality is innate or chosen or whatever, people really shouldn’t be treated like this, not because of their sexuality. And if you think that governments should respond to social oppression by marking the social categories at issue as protected, then you’ll want the government to mark sexuality as a protected category.

  • Stoo

    Stephen:

    What is utterly lacking in the coverage, and perhaps in the arguments itself, are solid reasons why gay marriage would benefit society.

    You’re phrasing that in a rather authoritarian manner. Surely anything should be permitted unless it actively *harms* society?

    I can’t make any clearer than this that the judge is acting upon the analogy that race = homosexuality

    Maybe, but that doesn’t mean he’s saying sexuality is purely biological in nature, which I thought was the point being argued?

  • Stephen A.

    Stoo, asking why changing the entire definition of marriage would benefit society is far from “authoritarian.” It’s simply a question, and a darned important one. I’m sorry you’re so threatened by it.

    I’ve made the case about 12 times now that the judge is clearly, and deliberately, confusing the idea of race (unchangeable, biological) with homosexuality (which he implies is the same.) I just don’t know how to make it clearer for you, Michael and The Daves.

  • Stephen A.

    Dave: I would submit to you that, from all accounts, gays in California and elsewhere have been very lightly closeted (if closeted at all) for over a generation. As noted in the ruling by Judge Corrigan and cited above, CA has consistently granted rights to gays – through the legislative process – that people believe would benefit society, and personally, I think that’s entirely legitimate, and kudos to the gays in CA for their organizational prowess.

    But one must never equate the wealthy, well-educated and powerful homosexuals of the late 20th and early 21st century with the poor, less educated, clearly persecuted blacks of the 1940s and 50s – an analogy meant to generate sympathy for the plight of a group that is apparently doing quite well at pulling the levers of power. (And if this seems suspiciously like praise coming from me, it is, and it’s well deserved.)

    My point is, and this echoes Judge Corrigan, that if the right arguments are made, without the appeals to false analogies or unproven scientific assertions, then they can win in the court of public opinion, not by force or by a “like it or not” mentality. The latter approach, more than anything, creates resistence and backlash, even among those willing to entertain the idea of gay marriage or civil unions.

    To bring this back to reporting a bit, it’s also curious to me why gays who OPPOSE gay marriage aren’t featured in news reports, since they surely exist. Are they as afraid to speak out as some straight opponents seem to be? And if so, that surely has a chilling effect on free speech, not to mention the implications for unbiased journalism.

  • Michael

    I’ve made the case about 12 times now that the judge is clearly, and deliberately, confusing the idea of race (unchangeable, biological) with homosexuality (which he implies is the same.) I just don’t know how to make it clearer for you, Michael and The Daves.

    I understand you keep making the case. It just isn’t convincing or ground in the reality of the article and the decision. People, of course, can disagree on such things.

    But one must never equate the wealthy, well-educated and powerful homosexuals of the late 20th and early 21st century with the poor, less educated, clearly persecuted blacks of the 1940s and 50s

    Does that mean that antisemitism and racism can never be compared. How about anti-Muslim hostility and racism? Or racism targeted at Asians. Because they are all wealthy and well-educated. The point the judge was making is that despite all that wealth and education, gays still suffer discrimination and oppression and even violence because of their identity.

  • Stoo

    Stephen, you can claim sexuality is unchangeable without saying it’s biological.

  • SamW

    Thanx, JK

  • Dave

    Stephen A. writes:

    But one must never equate the wealthy, well-educated and powerful homosexuals of the late 20th and early 21st century with the poor, less educated, clearly persecuted blacks of the 1940s and 50s

    It does not equate the two groups to note that both have histories of oppression and both have benefited from civil rights movements.

    [...I]f the right arguments are made, without the appeals to false analogies or unproven scientific assertions, then they can win in the court of public opinion, not by force or by a “like it or not” mentality. The latter approach, more than anything, creates resistence and backlash, even among those willing to entertain the idea of gay marriage or civil unions

    At the risk of irritating you further, I point out that this is precisely parallel to arguments used at the time against court decisions that constituted victories for the black civil rights movement in the ’50s and ’60s. That, indeed, was when “backlash” entered the political vocabulary. I’ll give you the benefit of the doubt by assuming that you aren’t old enough to remember.

    To bring this back to reporting a bit, it’s also curious to me why gays who OPPOSE gay marriage aren’t featured in news reports, since they surely exist.

    I agree with you here, they surely do exist. I assume their absence from coverage is primarily due to their lack of organization as such, thus the absence of any leaders in a reporter’s Rolodex. I daresay they are not part of any coalition against gay marriage because they assume such a coalition’s basic agenda is homophobic.

  • Stephen A.

    It does not equate the two groups to note that both have histories of oppression and both have benefited from civil rights movements.

    Wow. How can you write that you’re not equating the groups AND equate the groups as both being “oppressed” in the same sentence without spontaneously combusting?

    Amazing.

    And then you go on to equate (again) the black civil rights movement in the 50s with the gay movement today.

    Wow. I mean. Wow.

    Not irritated, just flabbergasted.

    It’s Game Over for me and this thread. My head’s about to explode from exposure to doubletalk and liberalspeak.

  • Dave

    Stephen A.:

    Is your idea of winning a debate shouting the last word, stomping out and slamming the door behind you?

  • Stephen A.

    Dave, your statement was ludicrious and contradictory on its face. I’m simply stating the obvious.

    To say “it does not equate” and then to equate it just a couple of words later is just pain idiotic, and no one can reasonably “debate” that kind of statement.

    It makes the head ache and isn’t worth it.

    If it makes you feel better, I’ll close the door softly this time.

  • Dave

    Stephen A.:

    Ah, you’re back!

    Drawing an analogy is not the same as declaring an equation. When someone speaks of the plague of cocaine, he or she is not mistaking cocaine for a disease, but drawing an analogy.

    Blacks and gays have both been oppressed, and both have bettered their situation through civil rights movements. To recognize that is not to equate the suffering of gays with the suffering of blacks.

    Your statement about backlash was so parallel to historical objections to black progress via the courts as to demand a response. I’m sorry if you’re ignorant of that part of our national history, but the cure for that is not a refusal to discuss it.

    And your conservative religious leaders did have the role I assigned to them in driving the gay civil rights movement toward the goal of gay marriage.

    These are facts, and there is no point in getting angry at them. You might get angry with me over our difference of opinion about gay marriage, but the facts are the facts.

  • Stephen A.

    To say that the use of “backlash” is the domain of one historical event really is truly stupid.

    Just as it is to constantly bring up one group that has been oppressed BECAUSE they are biologically who they are, which is a huge tip-off that we’re talking NATURE here, not just NURTURE. We are clearly meant to not just sympathize between the two groups, but draw the parallel that gays, too, are biologically unchangable (unproven) and therefore must get the same remedies and be accommodated for EVERYTHING that the self-appointed leaders of the group say they want (which is a leap in itself.) I just don’t know how stupid people think we all are that we won’t pick up on the contrast being made.

    And yeah, I know what an analogy is, and what a FALSE analogy is, too. Ok, now I guess I’ll go. I just hate to see ignorance posted here unanswered.

  • Dave

    Stephen A. writes:

    To say that the use of “backlash” is the domain of one historical event really is truly stupid.

    You’re right, it is. But that’s not what I said. I pointed out a parallel between what you were saying and feature of those historical events.

    Frankly, I don’t see the point of all the heavy breathing about biology. If I were an employer I would be allowed to discriminate against people with freckles, although that is biological. I would not be allowed to discriminate against people with spinal cord injuries, though that is circumstantial.

    I just hate to see ignorance posted here unanswered.

    Well, we share some values then ;-) .