The Utah Supreme Court has issued a 4-1 ruling upholding state laws against polygamy, but I haven't had a chance to read it since the opinion is 85 pages long, the dissent is 37 pages, and I just learned about it this second in the Salt Lake City Tribune.
The odd thing about this case is that the plaintiff, Rodney Holm, was not married to his second wife. Instead, the fundamentalist Mormon was "spiritually married" to "wife" number two, and had held some kind of elaborate commitment ceremony back in 1998 when he was 32 and she was 16.
He sounds to me like a cult member sex offender (I watched Anderson Cooper's expose on the fundamentalist Mormons the other night), but how can you convict the man of bigamy? Doesn't bigamy require two purportedly legal marriages, complete with licenses and so forth? Is it a crime to have a mistress in Utah---assuming she's over 18? Are same sex couples legally married (albeit unrecognized) if they have a commitment ceremony in Orem?
Polygamy, and its weak sister, bigamy, is on our radar these days thanks to the amount of simplistic press devoted to the subject in an effort to draw an analogy to same sex marriage. The government has a zillion legitimate reasons to restrict marriage to two people, but not one good reason to limit marriage to a man and a woman. But does that stop the mindless comparisons? Mais non! So, get ready for the media to take another slimy slide down the slippery slope thanks to this decision.
In other Utah news, a lower court has ruled that the state's constitutional amendment banning same sex marriage does not prevent employers from offering domestic partner benefits. That decision came in a challenge to Salt Lake City's reciprocal beneficiaries plan, a program that allows unmarried city workers to insure a special adult in their household, whether it be a parent or a partner. The city's health insurance administrator requested a declaratory judgment to clarify whether the scheme was legal under the 2004 amendment and other statutes. It is.
Lambda Owes Me a Margarita
Last night (Tuesday, if you must know), just as I was preparing to call it a day and head for happy hour, Lambda Legal announced an unexpected victory in a technical challenge to Georgia's marriage amendment. I say unexpected, because I personally didn't expect it and I'm writing this column. With the exception of a lower court decision in Louisiana in 2004, we've lost all the cases using this particular legal argument, including the overall effort in Louisiana since the Louisiana Supreme Court quickly overturned the aforementioned lower court ruling.
The argument in question is based on the idea that voters may not be presented with a single measure that involves two separate subjects. Every state has some version of this rule (I think) and advocates have pointed out that several state amendments or proposals force the electorate to make two decisions at once. First, will marriage be restricted to a man and a woman? And second, will same sex couples be eligible for civil unions or domestic partner rights?
The Florida high court recently ruled that a multifaceted proposed amendment was just fine and could continue its torturous journey to the 2008 ballot. But in Georgia, a judge in Atlanta's Fulton County decided that, indeed, the amendment passed in 2004 violated the single subject rule and was unconstitutionally enacted. Her ruling will likely be appealed directly to the Georgia Supreme Court.
Naturally, since Judge Constance Russell left open the option of simply passing two separate constitutional amendments, one for marriage and one for civil unions, there's already some talk of calling a special legislative session if need be in order to send twin amendments to the voters. God forbid they just wait for the next session.
I hate to burden you with lawsuit after lawsuit when I know you're hungry for juicy news tidbits about hard hot naked men caught cavorting after hours in the back of the Lincoln Memorial with Republican lobbyists, but this week appears to be legal news week.
For example, Indiana's attorney general has decided to appeal the recent appellate court ruling in favor of two lesbian adoptive mothers to the state supreme court. I won't rehash the original ruling out of sympathy for you, but again, thanks to an intelligent court, obsessed conservatives in Indianapolis are now beating the drums for legislation next year that will tighten the screws on unmarried couples who seek to become adoptive parents.
Also, the Servicemembers Legal Defense Fund used its annual fundraiser to announce an appeal of last month's federal court defeat in their challenge to Don't Ask Don't Tell. The military advocates will ask the U.S. Court of Appeals for the First Circuit to take a look at their case against the 1993 law.
Wait! I'm still not finished with all of this. The U.S. Supreme Court has declined to review a victory out of Washington State, where the high court acknowledged the rights of a non-biological lesbian parent the other day. That's excellent news, although no one anticipated that the justices would take this case, a clear cut matter of state law. I read that the biological mother has since grabbed the kid and run off to Thailand to live with the child's father, so I'm not sure what the other mother's going to do as a practical matter. But hey! She got a great ruling out of the Washington court. You go, girl!
Speaking of Washington's high court, everyone is wondering what in the name of God those darned justices are up to, as week after week slips by with no mention of their overdue marriage ruling. Now, the press is speculating that political considerations are part of the delay, since three of the nine justices are up for reelection this November.
As a matter of fact, one of my anonymous sources (my favorite kind) told me that two highly placed (anonymous) sources provided two mutually contradictory tips-one saying that the ruling would definitely be handed down before the election, and the other insisting that the ruling would absolutely not be announced before the election. Remember, you read it here first.
As you know, the marriage case was argued back in March of last year, giving the court no less than 14 months to make up their collective mind, get out their yellow pads and pens, and generate a majority opinion. The lengthy deliberation is seen by most commentators as a positive sign for our side, although it would be bad luck to say so.
We're not superstitious in this column, so figure it this way. If the court was going to rule against us, the majority would have to agree on all the major legal issues. In that event, writing an opinion would be fairly straightforward and the political backlash would be confined to disappointed GLBT activists and allies.
If, on the other hand, a majority believes the marriage restrictions are unconstitutional, there's no telling how individual justices might have reached their conclusions. Some might base their thinking on equal protection, others on privacy rights. Within those two camps, some may believe sexual orientation discrimination deserves strict scrutiny, some may disagree. Some may believe marriage is a fundamental right, also requiring a strict judicial test. Others may not. Plus, these four questions are not the only areas where the nine justices might diverge.
It sounds like a reasonable scenario to me. After all, the court can't issue nine separate concurring and dissenting opinions. On a matter this important, they have to present something of a united front. At the very least, the majority must be able to articulate a set of shared legal conclusions.
Meanwhile, some are now speculating that the New Jersey Supreme Court, which heard oral arguments in their marriage case last February, will beat Washington to the punch and issue a marriage ruling before summer. Sources say it's more likely that they'll release a decision in August, when the high court has a history of issuing a whole bunch of opinions over a fortnight or so.
And let's not even go to New York, where oral arguments are scheduled May 31 before the Court of Appeals, the highest court in the state. What the hell. Maybe New York's justices will rule in a month and take the prize. The bottom line is that some court somewhere is going to legalize same sex marriage relatively soon, and the national firestorm will burst back into flames. Pass the marshmallows.
Nun the Worse for Wear
Let's pause and give thanks to newshound Rex Wockner, who just emailed me a story out of the Irish Independent headlined: "Lesbian Sex Abuse Investigation at Kylemore Abbey."
I'll start. Thank you, Rex. Thank you for saving me from having to write about Howard Dean's toadying up to the religious right and telling the 700 Club that the Democratic platform defines marriage as the union of one man and one woman. His inexcusable "error," if that's all it was, drew excoriating statements from throughout the GLBT institutional community. But I'm not going to cover it.
Thanks to Rex, I can gloss over the California schools bill that requires positive depiction of gays and lesbians in the state curriculum, a story that I'm sure has been widely circulated by the time you read this anyway.
Did you hear what Laura Bush said on the Sunday talk shos? Did you know the Canadian Supreme Court is deciding whether to change the retroactive date when same-sex couples became eligible for pension benefits? Do you care that Dr. Bill killed the hate crime bill in the Senate, as usual? Or that a YMCA down in Memphis won't let a lesbian household sign up as a family?
No, no, no and no! Our attention is now firmly fixed on the nefarious goings on at one of Ireland's "most prestigious girls' schools," where Benedictine nuns called the Health Service Executive to investigate the Sapphic shenanigans that reportedly involved a lascivious nun who taught at Kylemore Abbey two decades ago. No, I have no idea what the Health Service Executive might be, but in my imagination, the HSE authorities have dispatched a team to the "picturesque" school "in the heart of Connemara."
I can see Chief Inspector O'Meara and his attractive assistant, Sgt. Julie Donegan, driving the Chief's second-hand Peugeot through the bucolic moors. Around a bend, the school suddenly comes into a view, the 15th century turrets making the pair feel as if they had stepped back in time. After honking the horn at the ancient iron gate, O'Meara steps out of the car to get a sense of the place. An odd sensation sweeps over the veteran investigator as he scans the dark clouds gathering in the late afternoon sky. Something's not right here, he thinks to himself.
O'Meara's reverie is cut short as a wizened figure opens the gate, the heavy barrier screaming on its hinges like an injured beast.
"I am Sister Mary Elizabeth," she says, as they park their car in the gravel outside the school. "You must be the man from the Health Services Executive."
The old nun stops speaking as Sgt. Donegan alights from the passenger seat, and casts a slow glance up and down the comely assistant's five foot seven inch frame.
"And you, my dear, must be an angel from heaven," she adds with a wink.
According to the Independent, the activities of the naughty nun were investigated by the Catholic Church back in the 1980s, but no charges were brought against her. It was only recently, when the school itself looked into the history of sexual abuse on campus, that the authorities were called in to make a report. Even though the misconduct was years ago, it was reportedly serious enough to trigger a new review.
One Last Thing
I'd like to leave you on that note, but the Human Rights Campaign just emailed a press release that says the Senate may cut out the second sentence of the insidious federal marriage amendment before bringing it to the floor in early June. The amendment, scheduled to hit the Judiciary Committee as we go to press, now states that marriage "shall consist only of the union or a man and a woman." The second sentence, that may be deleted, states: "Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred on any union other than the union of a man and a woman."
Dropping the second sentence improves the amendment from "unthinkable" to merely "abominable."