What apparently led some of New York’s Republican lawmakers to support the Marriage Equality Act were the religious exemptions, protecting religious groups that object to same-sex marriage. This is one of the most common scare tactics raised by opponents of same-sex marriage, and one of the most dishonest: the Establishment Clause absolutely protects religious groups from having to administer their rites in violation of their faith. Same-sex marriage rites are about civil, not religious, marriage.

The “religious” protections are therefore redundant at best; these protections already exist, and not merely in the area of same-sex marriage. The only useful purpose they serve is cover. Same-sex marriage proponents can assure those who don’t understand the Establishment Clause, and politicians with more conservative constituents can trumpet their protection of the sanctity of marriage. This is particularly true as the law has a poison pill; it states that a court cannot simply overturn part of the law, such as the religious exemptions, but has to decide on the law as an all-or-nothing deal. This uses same-sex marriage as a sort of human shield; try to force a church to rent its gazebo to a gay couple and risk eliminating same-sex marriage entirely.

(Interestingly, groups opposed to same-sex marriage also oppose “religious protection” laws. The ostensible reason is that they don’t want anything that even hints that SSM is okay. The real reason is that it takes away one of their favorite arguments; it’s a lot harder to lie to people and tell them their churches will have to marry gay couples when there’s a law explicitly saying that can’t happen.)

Outside of same-sex marriage,it’s obvious that if you don’t like a religion’s rules, you can shut up and go to a different church, or to City Hall. We would laugh at a couple suing the Catholic Church because a priest refused to perform a marriage ceremony for two Protestants, or for a divorced Catholic seeking to marry a Buddhist. So would the courts. Yet even though there are likely far more interfaith and ‘rulebreaking’ couples who would like to marry than same-sex couples, neither churches nor lawmakers seem particularly concerned about protecting the sanctity of their religious practices.

Yet this seems unfair to religious groups. The Marriage Equality Act spells out quite clearly that it offers protections from civil actions to religious groups that object to same-sex marriage. But most religions have greater limitations on who can marry than “one man and one woman”. Where is the protection for faiths that prohibit interracial marriage? Why is there no protection for a church that refuses to rent “facilities” to interfaith couples? Why does the law exempt a rabbi refusing to marry a woman to a woman, but doesn’t protect a rabbi refusing to marry a Jew to a Gentile?

Obviously these are rhetorical questions; the reason is bigotry. Opponents of same-sex marriage simply don’t feel the same revulsion toward interfaith or interracial couples. And there’s a strong sense, among the less-zealous, that while a church may decline to marry such couples, that actually condemning those marriage is wrongheaded and, perhaps, even bigoted and unfair.

I look forward to the day when the majority recognizes that trying to stop same-sex couples from marrying at all is also bigoted and unfair.

Is it really possible for a state to preserve its laws against same-sex marriage, limiting the institution to one man and one woman, in the face of a challenge claiming such laws are discriminatory? As state after state has those laws overturned as unconstitutional, is there no possible way for a state that doesn’t want same-sex marriage to avoid the long arm of the law?

Sure is. All the state has to do is bring back traditional marriage, and the family law that goes with it. To defend opposite-sex-only marriage laws, a state must articulate a valid secular purpose for those laws, and traditional family law is the only way to do it.

Let’s assume that we’re actually on a parallel Earth, which is exactly like our own except for two things: due to the intervention of a merciful God, there are no such things as green beans; and the United States of America has a fifty-first state, the State of Eld.

Eld is, to put it mildly, pretty socially conservative. (They think of Utah the way most of the country thinks of Berkeley.) Its laws reflect this, and on more than one occasion a federal law or Supreme Court ruling has had to drag Eld another inch closer to the twenty-first century. Eldians are law-abiding, though, and rather than try to get around these changes they shrug and move on. The Eld law books are cluttered with ancient and reactionary laws that were never formally repealed, but have no legal effect anymore.

Eld’s state Constitution is very short. It has no Equal Protection Clause or Equal Rights Amendment; the Eldians figure the civil rights guaranteed by the United States Constitution are good enough. More importantly to our example, Eld has persevered in its traditional approach to family law, refusing to “modernize” in any way until forced by higher authorities.

So, for example, there is no such thing as no-fault divorce in Eld. It all requires proof of fault, which also weighs heavily in decisions about alimony, child support and custody. The grounds for divorce are pretty limited – abuse, adultery, abandonment – but also include the inability to conceive or bear children. To get a marriage license, the prospective spouses must sign an affidavit that they are able to physically consummate the marriage and that, to the best of their knowledge, neither spouse is infertile. (Outside observers expect that sooner or later, a disabled would-be spouse denied a marriage license will file a lawsuit under the Americans with Disabilities Act.) There are no “domestic partnership” laws or benefits in Eld. Only married couples may adopt in Eld. Until quite recent Supreme Court decisions, premarital cohabiting and “fornication” were illegal, and adultery is still a felony. Eld was one of the last states to abolish coverture, and still has a patchwork of laws assigning different rights and responsibilities to spouses depending on their sex.

Because of this, Eld probably has nothing to worry about if a same-sex couple (there are a very few in Eld) wishes to challenge its prohibition on same-sex marriage. Eld will have a very easy time of showing that its laws meet a “secular legislative purpose” other than animosity toward gays. All of its laws point toward marriage as an institution centered around procreation and child-rearing, and in fact insofar as that is possible, the law discourages people who cannot bear children from marrying and urges married people to divorce an infertile spouse. Eld can say with a straight face that its laws enshrine “traditional marriage”, where gender is a proxy for a person’s rights and responsibilities within a marriage. And importantly, Eld has no state Equal Protection Clause; its laws offer no protection on the basis of gender or sexual orientation beyond those already recognized as existing at the federal level – where there has been no significant, negative ruling on same-sex marriage.

So all we have to do is roll back the clock so our marriage laws are just like Eld’s. For someone opposed to same-sex marriage, isn’t that a price worth paying?

There wasn’t anything particularly innovative about this tactic; defense firms use it all the time. Find out that the judge has some vague possible reason that could be inflated into bias, but hold it back in case you lose, at which point you pretend you just found out about it and want a do-over.  It almost never works, because judges are presumed impartial and there has to be a very clear, and very direct, showing that the judge got something out of the ruling.

Of course, it did make for some entertaining oral argument, and by “entertaining” I mean “I can’t believe these bozos thought they had an argument.”

1) My family won’t stop nagging me to marry my boyfriend!

2) Marriage is a man and a woman. It just is, all right? Plus, babies.

3) Let’s just not use the M-word, and then straights will give us all the exact same rights and everything will be wine and roses. We can even call it something stupid, like “floogle”.  Then we will totally fly under the radar!

4) Did I mention that my family won’t stop nagging me to get married? I hope you’re reading this, Mr. Would-Be-Father-In-Law.

I trust I don’t have to explain why points 1 and 4 are stupid.

Point 2 is a tautology: marriage has always been a man and a woman because marriage has always been a man and a woman. It’s also, until quite recently (less than half a century) been an institution where the wife was largely the husband’s property, in law and in fact, and one where childbearing was central and the lack thereof a reason to forbid or end a marriage. Funnily, Soroff, like his straight counterparts on the anti-same-sex marriage reservation, seem to skip over that part.  (Not that they are all opposed to the traditional model, of course. But it isn’t good PR to suggest that America should return to the good old days where a woman couldn’t hold property in her own name without her husband’s consent.)

Point 3 is one Soroff doesn’t argue much, probably because he has some inkling of how ignorant he is of the fact that marriage is, like, laws and stuff. And in the law, words have meaning. Laws are also very complicated, being a confusing overlay of federal and individual state laws. It is literally impossible for the President to issue a proclamation saying “From now on, every law everywhere that says ‘marriage’ also includes civil unions.”  Individual states might have a little issue with that, and they would be in the right to do so. And anyone could challenge this proclamation by saying that a particular law contemplated, and depends on, the ‘traditional’ view of marriage and can’t possible be extended to anything else.

The easiest, and obvious, way to expand the rights and responsibilities of marriage is to allow same-sex couples to marry, too. But I guess that allowing same-sex couples to have full civil rights is not nearly as important as getting Soroff’s family to stop nagging him about the wedding.

There are many subjects on which reasonable, well-meaning people can disagree, often with no clear ‘right’ or ‘wrong’ on either person’s part. Birthright citizenship is not one of those subjects.

I am bummed that I am out of the city and so can’t participate in the celebration, but still OMG OMG SQUEEEEEEEEEEEEEE!

And yes, I told my friend she should leave work early in case the court is persuaded to impose a stay. In the meantime, you can read the entire opinion here.

• Cool architecture.
• The bench is only slightly raised, instead of being higher than God as is not uncommon in many courts. Apparently the Justices do not have something to prove.
• Their cafeteria food is actually pretty decent.
• Marble, and plenty of it.
• Just admitted Mythago to the Supreme Court bar.

Cons:

• Supreme Court gift shop contains extremely limited variety of swag.

Oh, wait, the National Organization for Marriage begs to differ:

But we take heart in knowing that this vote was not representative of what Vermonters understand marriage to be. We know that the Vermont Legislature did everything in its power to avoid allowing Vermonters to vote directly on the future of marriage.

No doubt, if Vermont had legalized same-sex marriage through a straight up popular vote of the people, these relics would bemoan how it wasn’t really the will of the people, because, oh, I dunno, homosexual lobby brainwashing satellite rays from beyond the stars? Certainly it can’t be that NOM and their ilk are losing the culture war.

They’re right about concern for their grandchildren, though. It must be a terrible thought to know, somewhere in your cramped, reptilian brain, that the kindest thing your grandkids might say about you is “they couldn’t help being like that, it was the times they grew up in”.

(h/t, Diana Peterfreund)

Judges always tell jurors not to do any research and not to talk to anyone about the case. Thankfully, most of them are happy to go along with the suggestion that they get specific about this and go beyond the boilerplate of jury pre-instructions.  Most people don’t think of Google as “research” and don’t think of Twitter as “talking to anyone”. They have to be told: do not look up anything about this case, including the parties and the attorneys, on the Internet, and that includes Google and Wikipedia; do not blog about this trial, do not email people, do not Twitter or send text messages.

And you can see that they didn’t think of it that way, because the nods at “don’t do research” turn to surprise when the judge starts reeling off exactly what that means. I’ve actually seen one person kicked off a jury because he would not agree to refrain from looking things up on the Internet about the case. The judge’s explanation that all information had to come in during the trial did not sway him; he was annoyed that anyone might put a hold on his sacred right to Google for any reason.

If you hate the idea of jury service, imagine what it would be like to put in eight weeks of time, only to have it end in a mistrial because some bozo couldn’t find anything else to talk about on his Facebook page.

Then they will recover, and beat you viciously and without mercy. Rhetorically speaking.

It is true that many people who aren’t lawyers to have a clear understanding of certain areas of the law, and are even able to talk about it intelligently. Unfortunately those people are vastly outnumbered by other people, who think that Wikipedia is a real legal resource, or who take one line in a judicial opinion out of context and think that’s what the law is.

It is also true that the law is full of different specialities and lawyers have different levels of competency. I’m not familiar enough with patent law to explain its complexities to you, either at a cocktail party or on the Internet. Likewise, don’t tell me that you fully understand product-liability law in California because you heard about it from your dad, a retired lawyer who used to do criminal cases in Massachusetts.

And for god’s sake don’t present your half-baked legal expertise as legal advice to others.