Constitutional Right to Marry

The following text is an excerpt from the Oxford Guide to American Law edited by Kermit Hall, 2002 p 542

"Constitutional protection for the right to marry dates from the civil rights movement of the 1960s. Loving v Virginia (1974) called marriage a "fundamental right," the rational of the case is unclear because the statute also involved an explicit race based rule. Zablocki v Redhail (1978) defined the constitutional status of the right to marry more clearly. The Supreme Court reiterated that marriage is a fundamental right, which means that rules denying access to marriage must be substantially related to important state interests." (bold added)

The question is this: What important state interests exists that allow marriage for one group (heterosexual) on the one hand, and deny marriage for another group (homosexual) on the other? 

Has the State of California proved any such "important state interests?" I think not.

The challenge is reaching the masses with a simple message.

And that message is this: "Marriage is a fundamental right."

enough said. 

Censored by Apple Computer

I have just been censored by Apple Computer.

I started a new folio of artwork in 2005 that was bluntly interrupted when I was bodily injured by a Brinks truck. Now, in 2008 I am just now able to complete and bring this work to market. There are 25 works in all. They are single, double, and triple nude male figures in various poses and compositions. While I understand this work is not meant for everyone, it is not intended for everyone.

I sent my print order to Apple Print services to get a sample book printed. The layout had text on the cover and a few lines of text on the first text page and some on the very back, all using their template. The rest of the book was the pictures of these completed works.

On July 14, 2008 I received an email from Apple Photo services telling me that my order had been cancelled. The reason they gave was this: "The text on one or more pages was cut off."
I sent a reply query stating that my book had no text other than as described above and was not sure what they meant, since the book was all pictures, not text.

So today, July 15, I get back this reply email from an Apple guy named "Patrick and I'll be assisting you" which says in part "upon carefully examining your order, the printer identified what we deem to be inappropriate content. As a result, your order has not been processed and you have not been charged. I am very sorry for any inconvenience and I apologize for the printer not providing the correct information."

I just responded to Apple Representative "Patrick and I'll be assisting you" as follows:

"So I am being censored by Apple computer for printing a sample art book because the printer deems the content inappropriate. I would like you to explain to me specifically how the content is "inappropriate" and for whom it is inappropriate and who decided. Short of that, I expect my order to be filled as placed."

I haven't received a cancellation of the second order, but was told to expect one by Apple Representative "Patrick and I'll be assisting you".

As an artist who has used Apple products for years and years, and even used Apple products in the creation of these works, I find Apple's censorship "inappropriate."

Apple sells and allows songs with explicit lyrics on iTunes, which are publicly available to millions everyday and they don't censor that audible content. I want a single sample book that would, for now, just be seen by me, and Apple sees fit to censor my visual content, my art? Does this mean that Apple thinks it is OK to 'hear' but not 'see' what they deem inappropriate content?

Does this also mean that Apple will not sell me an iPhone because I will put this Apple censored content on their phone? Or that I will not be allowed to buy a new Apple Computer to make this inappropriate content? Let's hope that they haven't yet developed the technology to live search your computer and iphone. Give them time though, they will.

stay tuned...

California Court Ruling on Gay Marriage: Discussion

I read the entire brief (173 pages) which surgically filleted the arguments against and carefully supported those arguments for with concise logic, reasoning and law.
The language and reasoning used will make it easier for other like minded justices in other states to support gay marriage when it is their turn.
Additionally, this decision gives an indication and precedent (along with Massachusetts) to the US Supreme Court for consideration when the issue arrives at their door.

The brief does not attempt to re-define marriage per se in California. It simply states that Marriage was not specifically defined as "between a man and woman" until the 1970's, and was only ASSUMED to mean as such prior to that time (and any indication otherwise was for the purposes of property rights for a "husband" or "wife."). And regardless of the assumed meaning, it does not support "equality under the law" as written (the court refers to interracial marriage as a first precedent towards marriage equality under the law).

The court recognised, and rightly so, the difference between the civil marriage institution and the religious marriage institution, clearly reaffirming the separation of Church and State. They clarified again that the church does not have to perform the marriage ceremony for gay couples, if they don't want to. (Of course the Church was on the 11 o'clock news saying not to worry, they won't perform the ceremony!)

There were some interesting connections that I, personally, had never made before. One in particular was on point:
the argument that same sex marriages would destroy the primary purpose and function of marriage which is procreation (child birth).
The court observed, rightly, logically and truthfully, that straight couples more often accidentally conceive, whereas gay couples must plan to conceive and that straight couples avoid conception through the use of birth control. Therefor, the argument claiming the destruction of the primary purpose of marriage falls down, because straight people can get married, but are not obligated under the state marriage license to have children!
Touche!

Much of the brief made intimate references to state and federal law, and reached out across the Nation and the World for other legal writings and rulings that spoke to this topic.

The court also made mincemeat out of the argument of an initiative statute: changes in law voted in by the people. They clarified how any initiative statute that violates the State constitution is invalid.

If the people of California vote to change the Constitution to make marriage only between a "man and a woman", as they will attempt this November, and, should they win, then the ruling will be overturned. And of course, the next step will perhaps be the United States Supreme Court.

The 1st dissent, which was only partial, seemed to be grasping at straws. The legal arguments where empty and without solid reasoning or integral foundation. The dissenter seemed to be providing a bit of kindling to a fire that is being put out.

This dissent supports California's Domestic Partnership Act, which, on the face, is "separate but equal"-though not really equal, because, as it is pointed out time and again, the DPA provides virtually all rights as straight married people. This dissent relied on the Federal DOMA for support.

Further, this dissenter is really upset about using the word "marriage" for gay people. That seems to be the real issue. A label. He provides no legal reason to deny the marriage term for both hetero and homo marriages, and relies only on dictionary definitions and the historical acceptance of the term in the common populace.

The dissent argues that "The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history," -- this isn't entirely true. The historical fact is that gay marriages were common place amongst men in the European aristocracy and religious sects, and were performed by the Holy Roman Catholic Church and other religious practitioners for a "fee" and political favor.

The homosexual relationship was historically common place in society and only began to fall out of favor when the "accusation" of being gay was used as political ammo against an opponent. Women, of course, were excluded from this consideration. What is "novel in our recent history" is the word Homosexual, which was coined in the 1860s. Just because it didn't have a modern term doesn't mean it didn't exist prior to the creation of that term.

The 2nd dissent: is a full dissent and clearly does not like or want the word "marriage" used for gay people. This person thinks that the DPA is enough to give gay people married rights without using the word "marriage" and without creating a socially inferior 2nd class status for gay marriage. That is a "separate but equal" view point. This cannot hold because domestic partners do not have full equality with straight married people under the law.

The dissenter rightly points out that gay people do not have any FEDERAL rights as domestic partners and any rights conferred in this regard for marriage by the state are not and will not be recognized by the federal government. Supporting this point is the fact that the state, in regards to federal tax filings, will have to make separate distinctions from "straight and married" to "gay and married," which in itself is a privacy violation in both the state and federal Constitutions.

The legal arguments focus on what is or is not a protected class, and if gay people qualify for that status under the California constitution. Additionally, the dissenter thinks that the gay marriage issue is improperly decided by this court at this time and should, instead, defer itself until society catches up with the court.

This is really about using the word marriage for gay people, which the dissenter points out is reserved specifically for opposite sex civil unions. If language is specifically reserved for one class, denying another class, who is similarly situated, then that is unequal in the law and the California Supreme Court rightly corrected this wrong.

This ruling by the court is not a step down a slippery slope, rather a building block towards the future for true equality for all citizens under the law of this great state.

Please share your thoughts, concerns, and ideas.