“This is a not just a good day for marriage, this is a great year for marriage.” So opines Mat Staver, the insidiously personable head of the Liberty Counsel and instigator of the federal marriage amendment, who was commenting on the Supreme Court’s decision to sidestep the federal challenge to the Defense of Marriage Act launched by crazy people in Southern California.

Ironically, all the rest of us also thought it was a “good day for marriage” when the High Court denied review of that case. Believe me, we don’t want the Supreme Court of the United States accepting a flimsy charade of a civil rights lawsuit, brought on behalf of a couple of naïve men by a heterosexual publicity hound attorney who advertises his low rates in the Orange County yellow pages and has no experience in constitutional law.

For the record, the Ninth Circuit ruled that the two plaintiffs lacked standing to challenge the Defense of Marriage Act because they weren’t married. As you know, DOMA governs how the federal government treats marriage and also gives states permission to set their own marriage recognition policy. You can’t challenge a law if it doesn’t affect you, and technically, DOMA only affects same-sex couples who are legally married in some state. Psychologically, of course, it affects us all. But that doesn’t count.

Anyway, we dodged a bullet when the Ninth Circuit issued that technical ruling rather than launching into a broad opinion in support of DOMA. We dodged another one when the Supreme Court closed the book on the rogue case last week.

The Last Throes of the Anti-Marriage Campaign?

But getting back to Mat! I predict Mr. Staver will eat his words by New Year’s Eve after Democrats take over one or both houses of Congress and New Jersey legalizes same-sex marriage.

Yes, we’ll lose all eight of those state marriage amendments. But looking back ten years from now, 2006 will be seen as the high water mark of the campaign against marriage equality. Granted, 2006 was terrible. And last Thursday’s noxious majority opinion from the First District California Court of Appeal did not exactly warm our hearts. But as Justice Anthony Kline concluded his brilliant dissent:

“Judicial opinions upholding blanket denial of the right of gay men and lesbians to enter society’s most fundamental and sacred institution are as incompatible with liberty and equality, and as inhumane, as the many opinions that upheld denial of that right to interracial couples. Like them, such opinions will not stand the test of time.”

Decisions, Decisions

By now you have already read about the 2-1 appellate decision that sent four coordinated marriage cases on their way to a final appeal before the California Supreme Court. There used to be six cases, but the appellate court rightly evicted two right wing groups from the litigation, again on the grounds that the organizations lacked standing to participation. The remaining four include the main case, Woo v Lockyer, along with two smaller marriage rights cases and a challenge to state law by the City and County of San Francisco.

The appellate panel’s ruling was not unexpected, given the rough treatment accorded our lawyers during oral arguments last July. So it’s a loss, but it’s not a wrenching loss.

The appellate majority used the time-honored legal tactic of taking the core question—-  “Does the fundamental right to marry extend to same-sex couples?”—- and twisting it into a new, and easy-to-answer inquiry—- - “Is the right to same-sex marriage fundamental?”

The difference between the two are enormous in legal terms. A fundamental right, like the right to marry, cannot be abridged without a compelling state interest. The burden of proof lies with the state, and a policy or law that conflicts with a fundamental right must be “narrowly tailored” to serve that compelling interest. A principled court would therefore ask the state to explain exactly what “compelling” interest is achieved by denying marriage rights to gay couples, and further, exactly how the ban on gay marriages is narrowly tailored to the goal.

This legal test, or “strict scrutiny,” is impossible to pass in this context. The various half-baked state excuses for marriage discrimination range from the idea that “children deserve two parents” to California’s lame explanation that as long as gay couples have partner rights, the state can reserve “marriage” for heterosexuals as some kind of salute to history and tradition. These are not compelling state interests, but they do pass muster under the easiest legal standards.

But to arrive at the easiest standard, you have to frame the debate in terms of question Number Two. Is there a fundamental “right to same-sex marriage?” If the answer is no (which it invariably is once a court puts the question in this form), then no fundamental rights are involved and the state can just offer a “legitimate” state interest. The burden of proof shifts to the challenger and the state’s policy need only be “rationally related” to the interest.

Just as strict scrutiny is almost impossible to overcome, this rational basis test is often (but not always) a breeze. It was in this case, and it was in Washington and New York. Yet at least some of the judges and justices who have joined opinions in favor of the status quo must know in their heart of hearts that they are on the wrong side of history. I hope that bothers them in the middle of the night. I hope they wake up at 4:00 or 5:00 on a regular basis, writhing with self-recrimination and remorse. I hope they say to themselves, My God what a pathetic coward I was. Where was my courage? I hope they fall back into a restless slumber and rise again and again to consciousness until they finally fall into a deep sleep at about 6:00, dream about their grandchildren and great grandchildren’s disappointment and shame, until the alarm shocks them out of the nightmare and they rise to begin another fretful day.

Waiting for Trenton

So, New Jersey? Are we going to win? I can’t help thinking we will, but Mat Staver’s got a point. It has been a bad year for marriage rulings. Presumably we don’t have long to wait, given that everyone thinks the high court will rule before the Chief Justice retires on Oct. 25 or 26. I forget the exact day. As far as I’m concerned, a victory in New Jersey will wipe the rest of the dismal 2006 slate clean.

I don’t think of it as one step forward, two steps back. Every time we go forward, we blaze new territory and make permanent progress. The steps back and forth don’t matter as long as we keep hacking away (cue: faint first bars of the Battle Hymn of the Republic) in our glorious communal effort (increase volume) to dig the tunnel to equality (full volume!).

Speaking of same-sex marriage, I really don’t understand what’s going on in South Africa. And fortunately, I really don’t have to, because it’s very, very far away. But the Parliament is poised to pass some kind of civil union bill which aims to satisfy a powerful court ruling from last Dec. 1. In that ruling, the Constitutional Court ordered the government to make marriage available to same-sex couples within one year, or else the Court would do so automatically. It was something like that, and as I recall the decision did not allow for tepid alternatives like civil unions.

So what’s the deal? I guess we’ll just wait until Dec. 1 and see what happens.

Stand By Your Man, Or Not

Changing subjects, last week Rex Wockner passed around a piece from the Pittsburgh Tribune-Review featuring an interview with “infidelity expert” Ruth Houston, who has put together a “tip sheet’ on how to tell whether your husband is having an affair with another man. Oh, I should mention that Houston is the author of “Is He Cheating on You? 829 Telltale Signs.”

Some of the signs that hubby might be walking on the wild side include “a strong preference for anal sex, buying or receiving expensive or overly intimate gifts for his male friends, extreme homophobic behavior and an abundance of male friends with whom he seems to be a little too close or too familiar with.”

Smart wives will also look for other subtle hints. Is he watching a lot of gay male porn? That could be something to keep an eye on. Does he have a lot of gay male porn around the house? And how about that “suspicious non-verbal communication with other men—- a look, a touch or hug that lasts a little too long or has undertones of intimacy..”

Finally, be concerned if your husband spends time on gay Web sites, answers ads on gay Web sites, no longer seems sexually attracted to you, and talks to other men on the phone frequently. But don’t jump to conclusions! “Be very cautious about accusing your husband or boyfriend of being sexually involved with other men unless you have solid proof,” Houston warns.

Houston’s valuable suggestions are sure to be an eye-opener for trusting wives who have long had that gnawing sense of something “not quite right,” but have never been able to put their finger on the problem.

“Jim was often bringing his colleague Mark home for dinner,” one wife confessed to this reporter. “And the two of them would stay up until three in the morning talking down in the den. One morning I found this young man in my kitchen having coffee and he told me he was a gay prostitute that Jim hired the previous night. I was shocked, but Jim said the boy was lying and he was just a pizza delivery person who had gotten lost and had to stay over.

“I didn’t know what to think until I read Dr.Houston’s tip sheet. Then it all started to make sense. The gay porn, the way Jim and Mark would kiss for hours, all the puzzle pieces finally started to fit together.”

Sexy Talk

I guess there’s continuing Foley news, but no further bombshells. I will say that I have noticed a general overuse of the adjective “salacious,” which has popped up to describe Foley’s instant messages in story after story after story.

“Salacious” is only one of many, many words to describe um “overly friendly” messages, and it’s also slightly unusual. So it’s no coincidence that the description has been circulating throughout the press. Instead it reflects a strange phenomenon—a word gets used in several widely read articles, and other writers subconsciously pick it up, use it themselves, and contribute to a wave of repetition.

This bothers me. It seems lazy. Personally, I dig deep within myself to locate precise, and original, terminology that captures whatever fascinating information I wish to convey. For Mr.Foley’s instant messages, for example, I don’t think “salacious” fits. Salacious has a sexy, sultry feeling to it, almost mouth watering. Somehow, discussions of masturbating into a hand towel or going to lacrosse practice calls out for more prosaic vocabulary. I think Matt Foreman called them “puerile,” which works for me.''