The XX Factor: Slate women blog about politics, etc...

How Not To Fix Prop 8

I hate to say this, but I'm not a fan of a key piece of the challenge to Proposition 8 that same-sex marriage advocates are bringing in the California Supreme Court. By all means, ask the court to recognize the 18,000 same-sex marriages performed since it ushered in legalization last June. Laws shouldn't change retroactively, with marriages approved by the state one day and shunned the next. It's true that this case doesn't fit perfectly into the constitutional doctrine based on what's called the ex post facto clause, which prevents laws from changing up on people after the fact. (That's because traditionally, ex post facto applies to criminal laws.) But if ever there was a time for expanding that doctrine, for fairness' sake, this is it.

 The part of the court challenge that makes me skittish is the claim that Prop 8 is simply unconstitutional because it's a major revision to California's constitution, instead of just an amendment, and so the legislature has to separately approve it. This sounds like legal jabber (a revision vs. an amendment--huh?), and I fear that the political price for a ruling like this would be too high. Last summer, the state supreme court took a big step by legalizing same-sex marriage. Now, like it or not, the voters have rejected that ruling. I'm not a fan of state referenda--they make it way too easy to pass bad laws, and California has suffered from them in the past. (Remember Prop 13, which decimated school funding?) But if you have a referendum system, you have to live with it. Or at least you don't turn to the branch of government farthest from the will of the electorate to overturn a law born of the process that's closest to the will of the government. To get out of the Prop 8 fix, California needs another amendment that reverses it. The current challenge is the right battle, but the wrong tactic.
 

Too Sad Over California's Prop 8

Despite all else—the good news, for instance, that South Dakotans rejected harsh restrictions on women's uteri, and Colorado laughed at the idea that a fertilized egg is a person—let me just add how deeply sad I am that in Proposition 8, California's 38 million people decided, 52 percent to 48 percent, that two women or two men should not have their marriages recognized by the law. In the last few weeks, when the polls got close, I was extremely worried. The much-discussed Bradley effect may not actually exist, but a "homo effect" does. When LGBT issues go up for a popular vote, that vote has usually run about four points more against us than pollsters predict. The (barely) good news is that the effect has shrunk: The result was only 2 percent worse than predicted. But a loss is still a loss.

There's lots to say, and maybe I will pull out of my sadness and say it another time. Important to remember that California is an enormous and complicated state, more populous than Canada, as diverse as the nation politically. For instance, it has the largest Mormon population outside Utah and a large evangelical megachurch base. Its vast poor and rural stretches have opinions that differ greatly from those of San Franciscan liberals. And so while some counties went overwhelmingly in favor of retaining same-sex marriage, the more conservative counties went overwhelmingly against. Men were against same-sex marriage while women were 50-50; younger people were (overwhelmingly) for same-sex marriage while older people were against.

I am sad even though I know that, in 20 years, that vote will go the other way—maybe even in 10. Much sooner than that, I believe, some other American state will join Massachusetts and Connecticut (and Belgium, Canada, the Netherlands, South Africa, Spain—and, as of last spring, Norway) in opening up the M-word to same-sex pairs. And I am sad even though this wasn't a total rejection of same-sex unions: California's domestic partnership law is the equivalent of Vermont's civil unions, as comprehensive a set of recognitions and protections as you can get, short of the M-word itself—and California voters have let that stand.

Still, it stings to be told that your ability to love is not worthy of the word marriage. You can commit yourself for life, raise children together, pray over your sick beloved's body in the ER, or have the same argument for years about whose relatives you visit on Thanksgiving, but get the state's recognition that it's a real marriage? Nope. It's painful.

Guess I'm staying in Massachusetts—where my neighbors are still overwhelmingly proud to be first—after all.

Breaking News: Same-Sex Marriage in Connecticut!

It's official: Same-sex couples can now enter legally recognized marriages in three American states—Massachusetts, California, and Connecticut. (Countries include Belgium, Canada, the Netherlands, South Africa, and Spain ... I don't think I've missed any nations, but a Scandinavian country might have snuck in while I wasn't paying attention. All the other developed countries, except for the United States, have some kind of partner recognition for same-sex pairs, roughly equivalent to Vermont's and New Jersey's civil unions, as do a handful of Latin American countries' provinces or states.)

Connecticut's Supreme Court issued its decision about an hour ago. I haven't had a chance to read it, but I wanted to congratulate the 3.5 million residents of the state directly to my south on joining my state in treating its lesbian and gay couples as fully and honorably equal. (More info about the decision will be appearing here.)

I do hope that the voters of California—who will have a chance on Nov. 4 to either undo or uphold their state's gender-neutral marriages—will take heart from being joined by another New England state. California's anti-marriage forces have been lying in their television ads, saying that California's marriage code will force churches to marry same-sex couples even if that's against their religious beliefs. That's just false. Nobody's hurt when the state recognizes that two women or two men can and do promise to care for each other for life—and need the legal tools to fulfill the obligations they make in those vows.

Mazel tov to Connecticut! Considering the catastrophic financial headlines lately, how lovely to get some good news!

California Dreaming

For the rest of us: Did anyone see Pam Belluck's New York Times article on Sunday about lesbian and gay Massachusetts married couples? Except for the fact that it was primarily illustrated with photos of male couples (not her fault), the story was almost embarrassingly on target. She was entirely accurate about the ordinariness of lesbian and gay couples' attitudes toward marriage, now that the initial rush and excitement is over: As she notes, the numbers marrying have fallen off precipitously, the pent-up demand having been spent. Now we're marrying in more ordinary proportions.

But I got a call from a reporter today who was surprised by our ordinariness, asking: Isn't there something unique about how gay and lesbian folks respond to marriage? Well, no. Remember that we were born and raised in every ZIP code in the country, in every possible subculture, from the Bronx to Bellingham, Wash. We tend to relate to marriage the way our social peers or siblings do. The Cambridge politico gals—the ones who wash out and reuse their Ziploc bags—are going to have a different take on marriage than the Dallas debutante couples who get their hair freshly dyed every four weeks, whose take take will be just as different from that of the D.C. black-church-choir male couple. We are no more unified about our attitudes toward marriage than the rest of you. 

But what Belluck did nail, embarrassingly so, was the different attitudes that men and women bring to marriage—amplified when both halves of the pair are the same sex. Whether it's nature, nurture, or culture, men and women do have some different predilections. A couple of weeks ago, when y'all were having that monogamy discussion, I bit my tongue about this. But Belluck has now outed us, so I'll chime in.

1. More women date with an eye toward serious partnerships. You know the joke, right? Q: What does a lesbian bring on her second date? A: A U-Haul. Everywhere that same-sex partnerships have been recognized, female couples sign up at twice the rate of male couples. That's two female marriages for every male marriage. That doesn't mean every woman is marriage-minded—generalizations can never fit everyone in a given group—but women do seem to be, quite literally, twice as interested in marriage as men.

2. Men marry without seeing it as necessarily monogamous. Here's the other half of that joke: Q: What does a gay man bring on a second date? A: What second date? Many gay male couples—not all, as my gay male friends have insisted to me!—leave room for the occasional meaningless sexual encounter. God bless 'em. I hope they are all wearing condoms.

3. Women are serially monogamous. If anybody cheats, it's over—but only sexually, not necessarily emotionally. I used to joke that the waiting period for female-female marriage licenses ought to be two years: If they're still together by then, they should be safe until about year seven. Here's the embarrassing part: Belluck finds a few lesbian couples who've broken up and yet who remain each others' families. (She even airs the dirty laundry of women who leave their gals and start dating men instead—many butch women I know have had to return their toasters when their gals went straight!—but she leaves out the problem of the "straight" married lady next door who starts hitting on you.) One such couple in her story is buying a duplex so that they can still raise their son together. Oy, lesbians and their exes! By the time you get to middle age, you are never dating just one woman; you are dating her entire family of exes and exes' exes. Those are going to be your in-laws, so you might as well make a good impression on them early. They have the key to her house. They walk her dog when she's away. If you have kids, they will babysit for you when you need a night alone together. Learn to love them.

5. Same-sex couples are less likely to go nuclear when they argue. OK, this is from a Science Times article earlier in the week, not the Belluck article, but this also rings true to me. If you're not blaming the entire sex for being incomprehensible, you have a little more room to laugh. My ex and I used to take each others' side in the really common arguments. It made us laugh and it helped. Until it didn't. The other point in this article also rings true: We argue just as often, and in many of the same ways. Consider what they call the "demand-withdraw" approach: One side pushes for more intimacy and the other withdraws. Two women or two men have that too. It broke up my own marriage.

Because of all the above, I'm going to guess that lesbians divorce more often—expectations are higher—and that gay male marriages last longer—they are less likely to marry in the first place, more likely to forgive straying. But I haven't seen numbers on that yet.

Once again to the Californians: Good luck, and may you persuade your neighbors that they have nothing to fear from the married women next door!

Not Her Mother's Feminism

Two things bother me about the Rebecca Walker essay (which last week stirred up a hot intergenerational discussion on a feminist listserv I'm on). First is her conflation of her mother and feminism. I'm sorry, but when did Alice Walker become the spokesperson for and avatar of the second wave? One older (in her 60s, I think) feminist writer on that listserv wrote that her version of feminism didn't posit motherhood as slavery; rather, her feminism meant trying to enlarge the world so that men and women didn't have to divide up the worlds of work and family because each would be involved in both. In that vision of feminism, men and women both would be important in children's lives--as would some social responsibility for children's futures, including early childhood education, flextime, and all the other things necessary to allow families to integrate work and childrearing (and, let me add, being human). That's the feminism that I learned and subscribe to. Walker, instead, personalizes her mother's mistakes (or her perception of those mistakes--hard to know whether memoirists are reliable narrators) as if Alice Walker's bad behavior stood for the mothering failures of the entire second wave. Um ... nope.

Second is the way Walker elides her relationship with Meshell (note: new spelling). Of course her past life is public and all over the Internet; there's no way she can pretend she has only been heterosexual. But in this Daily Mail piece, her lesbian "phase" is elided from her neotraditionalist narrative, in which she is lost until she finds full life satisfaction from mommy + daddy = baby. Oy. (Note for later blog post: Today California begins marrying same-sex couples! Hurray for the Golden State!)

My novice impression is that the younger Walker is melting down and has some institution in her future. But I don't know the woman, and who am I to psychologize without a license? Her mental state is none of my business. Her politics ... well, it isn't even a politics. It's just whining.

Huge. Big. Deal.

EJ. What a tremendous post. Thank you.

And yes, you are right, the decision to treat the same-sex plaintiffs in this case as a suspect class, warranting “strict scrutiny”—the most rigorous and unforgiving type of constitutional review—is a huge big deal and a step the courts had not been willing to take. The sharp-eyed Marty Lederman caught it last night in this post at Convictions.

California: Girl + Girl = Marriage

Naturally, the conversation turned toward the Californians' frustrations that Gov. Arnold kept vetoing the California legislature's freedom-to-marry law ... and their frustrations that their progressive nongay friends dismissed their concern with the issue. After all, their nongay friends told them, registered domestic partnership protected them (California's domestic partnership is equivalent to Vermont's civil unions): Wasn't that enough? Nope. There are legal differences. But even if there weren't, as one friend of mine loves to say, you get to your destination whether you sit in the front or the back of the bus ... and yet it's still an indignity to be forced to sit in the back. I mocked my friends mildly that California was trailing so far behind my state of Massachusetts, and I promised to come to their weddings when they won.

Hearing frustrations that we had almost forgotten in Massachusetts, it struck me how very deeply the Massachusetts marriage decision had sunk into my psyche. I really have stopped feeling 'queer' here. Nobody around here blinks an eye when I talk about the confusions of dating (or not dating, as the case may be: now accepting applicants!) after two decades of marriage. Here in the Boston area, same-sex couples hold each others' hands in public or kiss goodby at the airport without anyone glancing at them: After all, they could be married. Two women or two men who look like they are together get treated openly as a couple—at restaurants or shops—in a way that feels simply honest and dignified. It's a complete transformation from my youth, when the possibility of violence always simmered nearby, when shocking comments could flow at any minute. Another friend says that listening to me is like listening to her older black friends describe living through the end of Jim Crow. Yes, there's still antigay sentiment here in Massachusetts, but it makes an enormous difference when a couple's vows to each other are recognized not just by the pair, not just by their families, but also by our government.

And it's hard to convey how very proud so many Massachusetts citizens are of having gone first. I've had state legislators tell me, in their deeply-stained Massachusetts accents, that they were opposed to gender-neutralizing marriage at first—but once they started hearing from their newly married constituents, they knew they had to vote in favor of upholding the Goodridge decision. They did vote on our side. Those who voted against full marriage rights lost their seats.

California's legislators have already voted twice in favor of full marriage rights for all; the Governator vetoed it, tossing the issue to the courts. Now the issue will be voted on popular referendum this fall. No state's popular vote has yet favored full, gender-neutral marriage. Although California's opinion trends are in the right direction, the state has an enormous conservative population. (It's the state where a 14-year-old killed his classmate for being openly gay.) This vote will be a big test. The good news is that California activists have been preparing for this matchup ever since they lost their first marriage ballot in 2000, in the proposition that the CSC just struck down, with widespread education. If any state can do defeat this bill, it's the Golden State.

I won't be flying out for any California weddings this week; my friends will wait until they've really & truly won. But I lift my coffee mug for the state's 100,000 registered domestic partners and their children—who are full citizens, for now. May the very large country of California, with its population of 36 million, be as peacefully and easily transformed as the tinier, chillier state of Massachusetts!

AND NOW a question for Dahlia: Am I reading the decision correctly? Did the California Supremes just say that sexual orientation is a fully "suspect class," equivalent to race, sex, and religion—that discrimination against LGBT folks gets, as you lawyers say, strict scrutiny? And is that as big a deal as it strikes me?