Skadden Partner Writes Gay Romance Novel

B. McLeod
Nov 13, 2008 11:20 AM CST

The REAL authorship opportunities belong NOW to HELLER ex-ssociates.  We should SEE some good “tell-alls” by those who passed UNDER the “Abandon all Hope. . .” sign, as HELLER can be discussed on many LEVELS.  Look for, “Flight of the Canaries: Heller Hath no Fury,” and “To Heller and BACK: One Ex-ssociate’s Story.”

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Laura
Nov 14, 2008 9:26 AM CST

Finally, some SERIOUS commentary on Prop 8.

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Sarah
Nov 14, 2008 10:42 AM CST

Why is this an ABA article?  It’s sad that the ABA is jumping on the opposition to Prop 8 bandwagon.  3 words:  GET OVER IT.  The people of California have spoken.  Perhaps if the gays hadn’t overly publicized their “marriages” and forced their homosexuality down everyone’s throats, the heterosexual population might not have cared so much.  The gays asked for it.

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Sean
Nov 14, 2008 11:04 AM CST

It’s sad that LAWYERS of all people think that a person’s individual rights and freedoms are subject to be snatched away a majority vote. It’s comments like Simon and Sarah’s that illustrate how Proposition 8 is about nothing but intolerance, prejudice and putting gays in their place. There should be no place in our society for those things in this day and age. We’re still in America, aren’t we?

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Ashtar94
Nov 14, 2008 11:32 AM CST

For those of you who are confused:

Opposite-sex couples have the right to marry.  Proposition 8 denies same-sex couples the right to marry.

That is why I agree that a fundamental right of gay couples was taken away by a popular vote in California.

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No
Nov 14, 2008 11:39 AM CST

What’s sad is that Sean feels the need to lecture everyone and start calling names.

It’s always the same with the left:  as soon as you disagree with me—you’re intolerant.  They completely miss the irony of their attacks. 

Sorry Sean, I disagree.  It’s sad that LAWYERS, of all people, want to ignore the clear will of the people of California, who have now spoken clearly three times on this issue. 

To answer your question, yes, we are still in America.  In America, the will of the people is supposed to be respected.  Mob rule is not how things get done here. 

I

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Huh?
Nov 14, 2008 11:55 AM CST

#9:  Ashtar

Homosexuals have the right to marry just as heterosexuals have the right to marry. 

As such, I disagree with your post.

California does not let heterosexual men marry men, just as it does not allow homosexual men to marry men.  Everyone has the same rights.

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Ashtar94
Nov 14, 2008 11:59 AM CST

#13 Huh?:

That is the same argument that people used 41 years ago to defend the ban on interracial marriage: “Blacks and whites have exactly the same rights—blacks have the right to marry people of their own race, and whites have the right to marry people of their own race.”

That did not work then, and it should not work now.

(Unfortunately, I should work now, so please forgive me if my future posts are fewer and farther between.)

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Sean
Nov 14, 2008 12:06 PM CST

I couldn’t have said it better than Ashtar94.

And just to respond to #11:

When a minority’s rights… as recognized by the elected legislature, the elected governor and the State Supreme Court (whose *job* it is to interpret the state constitution and protect the minority from the “tyranny of the majority”)... when those recognized individual rights are subject to “the will of the majority” THAT is mob rule and contrary to the fundamental principles of governance on which this country was founded.

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Huh?
Nov 14, 2008 12:16 PM CST

#15 Ashtar94

You are not comparing apples to apples.  Telling a white man that he can only marry white and telling a black man that he can only marry black is not analogous to saying that the state will not recognize as “marriage” a union between two men. 

Nice try to paint us all as bigots.

It’s really very simple:  Americans, by and large, do not approve of sanctioning as “marriage” a union between two people of the same sex.  Since “marriage,” as defined by law, includes certain privileges granted by the government, then the government has the power to limit the definition, in accordance with the will of the people.

These same concepts govern how property is dealt with in bankruptcy, how intellectual property rights are created and protected, how and when torts occur, etc. etc. etc.

You just don’t like the definition.  Well, I’m sorry.  Take it up with your neighbors.

There is nothing wrong with saying that “we don’t approve as ‘marriage’ a union between men, women, man & dog, man & small child, woman & horse, etc.’” 

As to Sean:  mob rule is what you get when the people vote contrary to what the left wants.  Remember after President Bush won in 2004—the mobs calling for succession from the union? That’s attempted mob rule. 

Sorry you guys lost the Prop 8 battle.  I think it is a win for the country—it shows that even in California, the people have some power left.  Hard to believe, but apparently true.

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PC
Nov 14, 2008 12:27 PM CST

Chip, please explain how you believe prop 8 to be unconstitutional.  Prop 8 is a constitutional amendment.

Are you referring to the U.S. Constitution? If so, what is your support?

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Ashtar94
Nov 14, 2008 1:10 PM CST

Whoops, the word should be “defensive,” not “defense.”  Good thing I proofread my briefs more thoroughly than my posts.

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SD Law Student
Nov 14, 2008 2:06 PM CST

Sarah—I know exactly the “research” to which you’re referring re same-sex parenting.  Interestingly enough, I dedicated my entire undergraduate research to same-sex parenting, as I am a child of same-sex parents.  I did this research under the guidance of a conservative professor at Utah State University (for those who would argue my research was biased).  For every one of your articles claiming same-sex parenting is harmful (which, by the way, are increasingly outdated and marginalized by the scientific community), I will show you ten articles that say there is no significant difference between children of same-sex vs. opposite-sex parents.  For example, I conducted one analysis using a national data collected by the American Sociological Association, which included over 1,000 same-sex families and several thousand opposite-sex families.  There was no significant difference in areas of rates of depression, school success (measured by grades), nor sense of school-belongingness.  However, there was a significant difference with regard to the self-esteem measure, which indicated children of *same-sex* parents had significantly *higher* self-esteem than children of opposite-sex parents.  Now, many refer to increased depression, suicidality, etc. in LGBT youth themselves; however, that has been causally linked to their marginalization by the sexual majority (i.e., heterosexual peers).

Second, Prop 8 is merely a minor setback.  In fact, the results of Prop 8 indicated substantial progress.  Whereas Prop 22 was opposed by only about 2 million voters, Prop 8 was opposed by 5 million.  Never before (other than in a US presidential election) has such a grassroots movement been organized.  LGBT individuals and allies have been mobilized, they have been inspired, and they’re madder than hell!  Marriage equality will come soon enough—especially as the older generation dies off.  As Ashtar94 said, “we’ll see who wins the equal-rights war.”  For those of you interested in joining a grassroots movement, please visit www.MarriageForward.com.

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MTS
Nov 14, 2008 2:25 PM CST

I would like to thank SD Law Student for her thoughtful comments regarding the issue of parenting in comment #24.

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Anon
Nov 14, 2008 2:58 PM CST

I would welcome some rational answers to the following questions:

1]  Why should the state have an interest in encouraging homosexual marriage?  If ultimately successful, wouldn’t there eventually be a decline in population?

2]  If the main theory as to why homosexual marraiges should be allowed is that to do otherwise would constitute discrimination, why not allow children to marry (age discrimination), why not allow multiple spouses, etc.?

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Boston
Nov 14, 2008 3:45 PM CST

To Anon (#28):  In answer to your questions:
(1)  No.  Preventing gay and lesbian couples from marrying will NOT somehow cause them to marry opposite-sex partners in order to have children; it simply means that the children they have with their same-sex partners (by adoption or artificial insemination) are denied the legal protections given other families.  Moreover, permitting gay and lesbian couples to marry will not somehow create more gay and lesbian people (who you wrongly assume don’t have children).  The overwhelming majority of gay and lesbian people in this world were born to opposite-sex couples.  As long as people exist, there will be gay and lesbian people.  Denying legal protections to gay and lesbian people will not make us go away.  The state has an interest in securing equal protection for all its citizens.  If I die and my life partner cannot receive my state pension because the state prevents us from marrying, my partner could end up on public assistance.  If my life partner can’t get health insurance through her job and I can’t put her on my policy because we aren’t married, the next medical emergency could bankrupt us.  There are endless examples like this.  In the face of these kinds of risks, what is the state’s interest in denying us the opportunity to marry?

(2)  The main theory supporting equal marriage is that that state allows pretty much any two consenting adults of the opposite sex over the age of 18 to marry—even if one is a convicted murderer confined to prison for the rest of his life; even if one or both have married mutliple times in the past and have significant child support obligations; even if the couple just met in a bar in Las Vegas; even if the couple is infertile and can never have children; even if the couple doesn’t have the support of their friends or family or church.  The state assumes that the two adults know best and asks no questions.  All I’m asking is to be given the same benefit of the doubt, and the same chance to take care of the person I love that opposite-sex couples have.  We have the wills and powers of attorney and health care proxies and none of them have the same power and effect as a civil marriage license.

I am astonished at some of the comments here.  Obviously many people have never talked with their gay and lesbian relatives, coworkers and neignors if you think that we already have all the same rights as straight people.

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SD Law Student
Nov 14, 2008 3:58 PM CST

#28—

First, it seems both of your questions are based on the premise that sexual orientation is a choice, which is contrary to social science and medical research in the last decades.  Even the Mormon church admits people do not choose their sexual orientation, thus its policy of “be gay, just be celibate.”

Anyway, underlying your first question is a fear that, if marriage were granted to same-sex couples, everyone would all of a sudden become gay.  That is simply not going to happen.  Researchers’ highest estimates claim only 1 in 10 is gay, i.e., 10% of the population.  The reproductive inclination of those people is not going to change based on their ability to marry.  Besides, many gay men and lesbians have children!  Yes, gay men can reproduce with the help of a surrogate and lesbians can reproduce using alternative insemination.  Yes, gay men and lesbians adopt children—which are a result of heterosexual relationships.  I know that many are disappointed that these people would adopt children, as that gets in the way of their goal of filling up orphanages completely.  So, in fact, it’s beneficial for society to have a group of roughly 10% for whom reproduction is difficult, as they make up a large portion of adopters who care for unwanted children.  Pray tell, which is better: femicide in China or adoption by same-sex parents who likely have the means, willingness, and love to care for a child?

Your second question is similarly based on the premise that sexual orientation is a choice.  The CA Supreme Court (almost entirely appointed by Republican governors, by the way) aptly recognized that sexual orientation is an immutable characteristic.  Thus, state discrimination based on sexual orientation was subjected to strict scrutiny.  Your “parade of evils” question was squarely considered by the court.  In re Marriage Cases, 43 Cal. 4th 757, 829 n.52 (2008).  In fact, the court even considered incestuous relationships, which you failed to mention.

First, minor children do not have the capacity to consent to even sexual relations, which is based on sound policy reasons based on their developmental capacity.  So why would we permit *harm* to children by allowing them to consent to marriage? 

As for multiple spouses, the argument is more difficult for me.  However, one strong argument against allowing multiple spouses is that every law which refers to rights of married persons is based upon that relationship involving 2 persons.  As such, allowing the gender of those persons does not substantively affect the law, whereas increasing the number of parties would require a complete overhaul of many areas of the law with long-established jurisprudence.  For example, you would have to rewrite family law, trusts & estates law, tax law, etc., which are all based on there only being 2 parties in a marriage.  Whatever policy arguments there are, remains the core issue that polygamy is not an immutable characteristic.  Nature and nurture do not combine forces to turn you into a polygamist.  Such a lifestyle is clearly a choice.  Thus, any state discrimination would need only a rational basis—easily achievable, in my opinion.

While I hesitate to answer such slippery slope arguments, I find that many people base their beliefs on these arguments.  As disheartened as I am by that fact, I find it more productive to confront irrationality with logic.

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Pumpkin
Nov 14, 2008 4:33 PM CST

To those who wrote regarding the Prop 8 outcome that “the people have spoken!”—consider this: what if allowing inter-racial couples the right to marry was put to popular vote in say Alabama in 1950?  I am sure the people would have spoken then too, and I can imagine what their word would have been! Now, would you say that would have legitimized banning inter-racial marriage?

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LA Lawyer
Nov 14, 2008 5:26 PM CST

I would just like to commend ALL posters on their thoughtful and respectful comments.  There obviously are strong views on both sides of this issue.  You are an impressive bunch with passionate views articularly expressed.

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MaryM
Nov 15, 2008 9:01 AM CST

#18:  Sarah
“...children of gay parents are much more likely to turn out seriously messed up.”
I would question your research as very outdated in that, now that people are more open about their sexual orientation than, say, 25 years ago, the stigma of being the child of same-sex parents is less today.  Growing up in a LGBT household is more accepted today than it was when I grew up in the Sixties and Seventies.  Just from research I did for my undergrad classes, many children of same-sex parents are more balanced and tolerant of others.  BTW, is “seriously messed up” a legal or scientific term?

#28:  Anon

“Why should the state have an interest in encouraging homosexual marriage?  If ultimately successful, wouldn’t there eventually be a decline in population?”

Not at all.  Many same-sex families have children through artificial insemination, adoption, surrogacy, etc.  Also, the “State” would not be “encouraging” same-sex marriage.  It would simply be upholding the equal protection all Americans have through the US Constitution.

“2] If the main theory as to why homosexual marraiges should be allowed is that to do otherwise would constitute discrimination, why not allow children to marry (age discrimination), why not allow multiple spouses, etc.?”

In some states, children are permitted to marry as young as 16 with a parent’s permission or even as young as 14 with the court’s permission.
As for polygamy (multiple wives), what man in his right mind would want to live in the same household with two or more women?  Having known many polygamous relationships, I have observed how, when the women have a disagreement, they ‘gang up’ on the husband in most cases.  Now polyandry (multiple husbands), hmmm, that’s a thought…

SD Law Student (#32) has given a much better answer to both your questions.

#12:  Sarah

“In this instance, the only thing that gays have been fighting for is the label of “marriage.” It’s pure semantics.  They have and will continue to have the ceremonies and the benefits of married couples (regarding insurance, etc.).”

Same-sex couples do not have the same rights as heterosexual couples.  In most states, they cannot benefit from insurance for domestic partners, property rights may be limited, and probate laws work against them.  If a gay man dies intestate, leaving a partner of 15 years as well as children from a previous heterosexual marriage, the partner may well get nothing of his estate while his children get everything. 

Marriage, as we know it today, is a civil/legal creation having no relation to religion.  Allowing LGBT couples the same rights and privileges under the law would have no effect on ‘religious unions.’  II think, once the court battles really begin, it will be reinforced that Prop 8, while a CA Constitutional Amendment, is in violation of the US Constitution’s equal protection.

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