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By Tom Cushing

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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply...  (More)

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The Heart of the Constitution

Uploaded: Jun 26, 2015

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than they once were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure, even past death. It would misunderstand these men and women to say that they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. It is so ordered."

-- Justice Anthony Kennedy, for the majority in Obergefell v. Hodges

So concludes an opinion that is remarkable for its empathy, indeed its soul. Throughout its demolition of the arguments against same-sex marriage, the court's appreciation of the law's impacts on actual living, loving people is never far from center-stage. As such, it reaffirms the Constitution's role as the best hope for vindicating the legitimate rights ? the place in society -- of those who will never command a majority at the polls. And in so doing, it strengthens the rights we all enjoy.

The route to this opinion begins generally with the 20th century ascension of the Equal Protection guarantee that is evident in earlier cases on civil rights broadly, and marriage in particular. The 1967 case of Loving v. Virginia, for example, overturned traditional state law bans on interracial marriage. The fact that such a case seems quaint less than 50 years hence is a testament to the awakening of this culture to the demands for inclusion of previously marginalized Americans.

Not that the path has been easy. The 1996 case that most underpins today's ruling, Romer v. Evans, arose out of backlash ? a successful Colorado state referendum that precluded homosexuality from ever becoming a characteristic protected from discrimination in such areas as employment or housing. There, Justice Kennedy found no rational basis for that law, rooted as it was purely in animosity against a disfavored minority. As such, Equal Protection demanded its nullification.

Then in Lawrence v. Texas, the Court overturned anti-sodomy laws as an invasion of privacy, and noted on Equal Protection grounds that although those laws by their terms banned all such adventures, they were uniformly enforced only against gay participants. Even Justice Scalia saw the writing on the wall: "Here comes gay marriage" he predicted correctly, in dissent.

The font on that writing went bold two years ago, in the culmination of cases challenging Prop 8 here, and the federal Defense of Marriage Act. Still, the Court expressed a preference for letting the issue simmer at the state legislative level, timidly delaying justice for fear that the country might not be ready for it, quite yet. Today's ruling finally completed this part of the journey.

Much has been made of the speed with which this issue has ascended to greater than 60% popular approval, nation-wide, in the latest polling. This weekend's Pride festivities will precisely mark some 46 years since the Stonewall Riots defined the gay rights movement. I think the media might better celebrate the courage and conviction of those who stood-up and identified as gay. 'The closet' is an apt metaphor because it's easy to stay in it, avoiding the opprobrium of those who favor status offenses.

And I think a shout-out goes to supportive, card-carrying heterosexuals like David Boies and Ted Olsen. Those two advocates saw the opening provided by Romer and Lawrence, and devoted their legal mastery to unhinging the opposition from any claims to rational bases. Their work finds expression in today's opinion. I would also note that speed is best viewed through the eyes of those affected. Forty-six years is a long time to wait to get married ? more than a lifetime for some folks.

America will always chase its ideals, but today we caught one. Good for the LGBT community, and good for everybody else. It's a good day for Pride, in America.

What is it worth to you?


Posted by Cholo, a resident of Livermore,
on Jun 26, 2015 at 12:12 pm

Loving v Virginia: Web Link

I think that they appear to be so sweet!

The USA is indeed a better place because of this struggle for LBGT marriage.


Posted by San Ramon Observer, a resident of San Ramon,
on Jun 26, 2015 at 7:42 pm

San Ramon Observer is a registered user.

It is also interesting that the decision was 5 to 4, with Kennedy the swing voter. Clarence Thomas voted against the decision even though his marriage in 1987 to a white woman would not have been legal in many states prior to Loving v Virginia in 1967.


Posted by Cholo, a resident of Livermore,
on Jun 27, 2015 at 7:01 pm

I have always admired Ms. Anita Hill for speaking her truth. She has remained an honorable woman. I believed every word that she spoke under oath.

Web Link

Justice Thomas will always be a snake in the grass.


Posted by Terry, a resident of Highland Oaks,
on Jun 30, 2015 at 10:26 am

It is not a question of equal rights, but do the LGBTQRST group want their own flag now?Maybe ?

In society, marriage was not considered a "right". It was a union of a man and a woman'

Is it in the best interest of our community to redefine Marriage ?

Posted by Tom Cushing, a resident of Alamo,
on Jun 30, 2015 at 12:07 pm

Hi Terry: thanks for commenting. I hope others will chime in on these matters.

I don't have much to say about the flag, except that I have several: stars and stripes, Oakland A's and a big ol' maize-n-blue model with an M on it that comes out every year in November. Perhaps you have more than one, too?

As to rights vs union, I'm not sure I understand how that distinction is helpful. The term 'rights' becomes important when somebody is excluded from something that others in the country have access to -- the Q becomes: should this be a 'right' available to all, or is there a proper reason for the exclusion of some? The Court majority concluded that the reasons given for excluding same-sex couples from marriage rights (and rites) were unpersuasive, to the point of irrationality.

I also think that way too much is made of this 'redefinition' claim, as if marriage is the same everywhere (it's not), and has remained static over time (it hasn't). Here's a few examples from the Opinion:

"The ancient origins of marriage confirm its centrality,
but it has not stood in isolation from developments in law
and society. The history of marriage is one of both continuity
and change. That institution?even as confined to
opposite-sex relations?has evolved over time.
For example, marriage was once viewed as an arrangement
by the couple?s parents based on political, religious,
and financial concerns; but by the time of the Nation?s
founding it was understood to be a voluntary contract
between a man and a woman.

Under the centuries-old doctrine of coverture, a married
man and woman were treated by the State as a single,
male-dominated legal entity. As women
gained legal, political, and property rights, and as society
began to understand that women have their own equal
dignity, the law of coverture was abandoned. These
and other developments in the institution of marriage over
the past centuries were not mere superficial changes.

Rather, they worked deep transformations in its structure,
affecting aspects of marriage long viewed by many as essential.
See generally N. Cott, Public Vows; S. Coontz, Marriage;
H. Hartog, Man & Wife in America: A History (2000).

These new insights have strengthened, not weakened,
the institution of marriage. Indeed, changed understandings
of marriage are characteristic of a Nation where new
dimensions of freedom become apparent to new generations,
often through perspectives that begin in pleas or
protests and then are considered in the political sphere
and the judicial process."

And yeah --- I do think it's best for the community if we recognize our differences and accept one another, as well as extend the promise of full participation in American life to LGBT Americans. The unions of other couples are unaffected, and the extension improves the lives of those who are affected. What's not to like?

Posted by Damon, a resident of Foothill Knolls,
on Jun 30, 2015 at 5:19 pm

I remember being on the fence about gay marriage many years ago. One thing that caused me to do a rethink was hearing Tina Fey (as Sarah Palin) say this about marriage: "I believe that marriage is a sacred institution between two unwilling teenagers."

BTW, has everyone heard?: Sarah Palin's daughter Bristol Palin, the "abstinence ambassador" and strong vocal supporter of "traditional family values" is pregnant with yet another out-of-wedlock baby. If you're wondering why Sarah Palin has been uncharacteristically silent on this Supreme Court gay marriage ruling, that's why.

Posted by BobB, a resident of Another Pleasanton neighborhood,
on Jun 30, 2015 at 5:34 pm

"Is it in the best interest of our community to redefine Marriage ?"

Yes, I think so.

Posted by unk, a resident of another community,
on Jul 1, 2015 at 10:52 am

It's hard for me to discuss the issue of gay marriage without considering the bigger issue of how I view gays in general. And this may be the case with many others.

All families have a "funny" uncle who never married, or an auntie who always had female roommates and never had children. Gays have been, and will always be in this world and I accept that.
Everyone ought to do as they please inside their own homes as long as they don't hurt themselves or others.

But I can't help but recoil at the sight of two men kissing, or two women snuggling together (although in our society women can do this more openly). It's an instictive reaction that I get.
I just can't equate that behavior with the sight of a man and a woman doing the same thing.
Therefore, the idea that gay marriage is the same as straight marriage just doesn't work in my mind.

I appreciate that gay men and women fall in love everyday (not with each other, of course). What the world needs is more love, I get that, I wish ISIS, the Taliban, and other hate groups would come to believe in this.
I just can't come to grips with same sex marriage.

Sorry but to say otherwise would not be true for me.

Posted by Damon, a resident of Foothill Knolls,
on Jul 1, 2015 at 11:11 am

@unk: "But I can't help but recoil at the sight of two men kissing, or two women snuggling together (although in our society women can do this more openly). It's an instictive reaction that I get.
I just can't equate that behavior with the sight of a man and a woman doing the same thing.
Therefore, the idea that gay marriage is the same as straight marriage just doesn't work in my mind."

I can understand the surprise of seeing two men kissing for the first time. I was a bit shocked myself when I came to California as an undergraduate student and saw two men kissing in a hallway for the first time.

But I think that it is a problem to dismiss gay marriage because you have an "instinctive reaction" against two men kissing or two women snuggling together. That's exactly the sort of argument that was used to justify laws against interracial marriage. Some people just had a shock at the sight of, say, a black man kissing a white woman. They had an "instinctive reaction" against it. Many still do. So following the reasoning you outlined above, what would you say about people expressing the opinion that a mixed interracial marriage is not the same as an unmixed marriage because it "just doesn't work" in their minds? What would you say to people who say they "just can't come to grips" with mixed-race marriages?

Posted by Bill, a resident of Amberwood/Wood Meadows,
on Jul 1, 2015 at 2:29 pm

The problem with the Supreme court ruling on gay marriage, is that they opened Pandora?s box. Mormons (for example) must be salivating with the thought that if two gender like people can be married in the legal sense, then what is to stop being married to multiple spouses. The answer is nothing. Because it is ?more right? for a man to marry many wives then it is for a man to marry a man or a women to marry a women. This argument can be extended ad infinitum and ad nauseam to fit anyone, anywhere, anyhow, anytime.

Posted by Michael Austin, a resident of Pleasanton Meadows,
on Jul 1, 2015 at 3:31 pm

Michael Austin is a registered user.

1. Fortunately, the major era of the AIDS epidemic is some what history!!! With the advent of "drug cocktails", AIDS remains just around the corner, the next encounter.

2. A male spouse cannot impregnate a male spouse, a female spouse cannot impregnate a female spouse.

3. The final ultimate act of love that results in bearing a child is no more?

4. What will become of the population?

5. Is artificial insemination the wave to come?

6. Adoption is a part of that wave to come?

7. is the sin (crime) of adultery ruled out in same sex marriage? Not a sin? not a crime?

8. In a divorce, who has custody, who pays alimony, who raises the children? How is it determined? By whom?

9. Divorce between two married male, who will be the father and how is the father determined? How is the mother determined?

10. Divorce between two married female, who will be the mother and how is it determined? How is the father determined?

Posted by Cholo, a resident of Livermore,
on Jul 1, 2015 at 3:56 pm

I guess Bristol Palin just couldn't save herself for marriage...Web Link my my my...

I've traveled extensively and have observed males kissing on the lips.
I don't understand why it's such a deal in the US? I have never thought of single folks who don't marry as "funny" or a woman who has never given birth and remained single as a closeted woman. I've always believed that in many parts of the world that women share homes/expenses because they need the addition of another income to survive...especially if they have children or parents to care for. Women make less money so it makes sense that they combine resources to survive. That's how I see it.

The process of legalizing gay marriage has been gradual. Lots of points of view have been expressed in the public media and in American courts. Nobody has hijacked anything. In my opinion, marriage between 2 adults is over-rated anyways. I understand how being married has it benefits for many couples but I don't care. I greatly appreciate that there are millions and millions of adults worldwide that choose to remain single. That is simply the way it is!

Loving v. Virginia made perfect sense when the decision was made. In 2015, there are tens of thousands of interracial marriages on planet earth and most folks and young people could care less. The same will happen re: same sex marriage. The frenzy will pass. I promise, the frenzy pass.

If it doesn't pass fast enuf for you, then consider moving to a highly restrictive community, on the moon, and find yourself a comfy crater!

i rest my case...

Posted by Damon, a resident of Foothill Knolls,
on Jul 1, 2015 at 4:09 pm

@Bill: "The problem with the Supreme court ruling on gay marriage, is that they opened Pandora's box. Mormons (for example) must be salivating with the thought that if two gender like people can be married in the legal sense, then what is to stop being married to multiple spouses."

Now you're worrying about the "Mormon threat"? You didn't happen to vote for Mitt Romney in the last Presidential election, did you Bill? You know he's Mormon, right? That's right, you almost voted for someone who was going to turn the White House into a den of sin. Who knows how many extra wives he might have taken on once he had the power of the Presidency in his hands?

I did recently see a news story about two woman and a man who were all in an "unconventional marriage" together. Not for me, but they seemed to be happy with their arrangement so good for them. The question of whether they should be able to be formally married just isn't the sort of thing that keeps me up at night.

Seems that if such things do really bother you that you should be at least as concerned about Bristol Palin announcing yet another out-of-wedlock pregnancy. Isn't that counter to your views on the importance of traditional marriage in raising a family? Or are you going to give her a pass because she (hypocritically) expresses conservative views?

Posted by Cholo, a resident of Livermore,
on Jul 1, 2015 at 4:12 pm

How come it matters that in a same sex marriage, if 2 males/2 women are married that it necessarily means that one must be perceived/described as the "father" and the other as the "mother". When the parents are of the same sex, it seems to me that what matters most is that they are both responsible adults and both loving of any children present in their family.

The definition of what constitutes a family is interesting to discuss.

There is case law to review to further understand how complex custody cases are resolved.

When there are more children on planet earth, then there are more individuals on the planet and it's more crowded.

I hope that this is helpful.

Posted by Cholo, a resident of Livermore,
on Jul 1, 2015 at 4:15 pm

ps I have never thought of "adultry" as either a "sin" or "crime".

Posted by Tom Cushing , a resident of Alamo,
on Jul 1, 2015 at 4:34 pm

Wow -- this thread's starting to grow. It's like old times, minus a few of the bridge-dwellers.

Hi Bill: I disagree that polygamy is a done deal, but neither do I fear to examine it if the polys come out of the woodwork with their cause. I feel the same way about cousins, just so West Virginia doesn't feel left out.

The point is that the Constitution requires Americans to be treated equally ('Equal Protection' of the law), unless there's a good enough reason to make a distinction between/among them. Each claim is distinct and different from the others, and should be viewed on its own merits/demerits.

The case for/against SSM was exhaustively debated, and litigated. The arguments against it were found in the Prop 8 case to be unfounded at best, and spurious at worst. I don't know what arguments the polys and anti-polys might have to bring forward -- but I know they're Not the same arguments as in SSM.

So, they get their day in court like everybody else -- that's how it works.

Michael: I don't think that this ruling dooms our species to extinction (we're finding other ways to accomplish that untimely end). But I DO think that there are adoptable kids out there who'll have a better shot at a good life as a result of it.

Posted by Bill, a resident of Amberwood/Wood Meadows,
on Jul 1, 2015 at 6:03 pm

I'll get back with you tomorrow Tom. You left the door wide open to argument in your story line. Right now I have to get back to work to pay taxes for all the new Social Security and Medicare recipients.

Posted by Tom Cushing, a resident of Alamo,
on Jul 1, 2015 at 9:39 pm

C'mon back when you're ready. Happy for a conversation. Wait -- are you from West Virginnie?

Posted by Cholo, a resident of Livermore,
on Jul 2, 2015 at 2:28 pm

Southern Poverty Law Center

This information may help in understanding the myths about the LBGT community: Web Link

GOOD LUCK to adults that adopt children in need of a family.

Posted by Cholo, a resident of Livermore,
on Jul 2, 2015 at 2:48 pm

M. Austin:

"What will become of the population?" What specifically is your concern?

I don't understand what you mean by "adultry"? Please explain.

Thousands upon thousands of Americans have benefited from the science of articifical insemination. What specifically is your concern? Many couples/families are happy when a baby is born! My primary concern is that a baby be loved and nurtured by the parents/family/community.

Adoption is a universal happens all over the earth and most likely in all societies as well as in the animal kingdom.

Posted by Bill, a resident of Amberwood/Wood Meadows,
on Jul 2, 2015 at 3:25 pm

@ Damon - no I did not vote for Romney. I am not fond of private equity owners. They are the epitome of greed. Look what they did to Mervyn?s as an example.
@ Tom ? born and raised in California. Just today a guy in Billings, Montana, took out a marriage application for his ?second? wife. Like I said Pandora?s Box is wide open.
Engineers are required to do risk assessments to make sure that unintended actions of their designs do no harm, "nil nocere", to material or humans. Hopefully the Supreme Court was smart enough to do the same on a social level. We will see.

Posted by Tom Cushing, a resident of another community,
on Jul 2, 2015 at 3:59 pm

Hi Bill: re Billings, do you recall that Joan Cusack line from the movie Working Girl (good movie): "Sometimes I sing and dance around the house in my underwear. Doesn't make me Madonna."

Taking out an application is like dancing around in your drawers -- anybody can do it. Having the app granted is like becoming Madonna -- a very different thing. If the app is denied, as seems likely, that could start (and Only start) the legal challenge process. Pandora's Box is barely even drafty inside.

I think you are also assuming that if the Obergefell case had not come down, that guy would not have taken out the same application. I don't think we know that, nor do we know how many other polygamy apps get filed in the country during any given week. It's a big country. And you know what your mama told you about assumptions.

About risk, I'm glad engineers deal in practical certainties, based on physical science. I prefer my Bay Bridge upright, after all (okay, bad example). But law isn't science, it's political philosophy, and it changes (dare I say 'evolves'?) over time. We have a precedent system in our law that allows for both stability and predictability for the most part, and for growth to better serve the current needs of society. I think the majority got this one right, but where you come out on this stuff has a Lot to do with where you come in on the political spectrum.

Posted by Cholo, a resident of Livermore,
on Jul 2, 2015 at 7:23 pm

What is a two-spirit person? As I recall, Native Americans absorbed two spirit children who were orphaned.

I'm curious how two spirit Native Americans fit into their tribal communities and who decides how they can behave?

How do Native American courts differ from American courts re: two spirit children. Are two spirit people different from LBGT people? How are they different and how are they the same? Can two spirit people be married by their tribal leaders or must they be married white folks courts or civic ceremonies?

Posted by Pololo Mololo, a resident of Livermore,
on Jul 2, 2015 at 7:26 pm

Two Spirit People:

Web Link

Posted by Cholo, a resident of Livermore,
on Jul 3, 2015 at 10:21 am

If Bruce Jenner no longer exists, how come some people say that Caitlyn is a two spirit person?

Posted by Citizen, a resident of Another Pleasanton neighborhood,
on Jul 9, 2015 at 11:27 am

Study: Gay Marriage Is A Farce
March 8, 2015 by CH
?Gay marriage was never primarily about expanding the marital franchise to ?historically oppressed groups? in the interest of faaiiiiiirness or haaaaaaaarm reduction, as RAWMUSCLGLUTES Andrew Sullivan perpetually insisted through his fog of roidpouting. Gay marriage is a leftoid equalist project to undermine and eventually to destroy the traditional and biologically heterocentric configuration of marriage. Gay marriage is nothing less than a front in the everlasting equalist war against white male European culture.?
?Gay marriage is one cultural schism put to use by the Lords of Lies toward the redefinition and de-stigmatization of marriage from an organic mate pair system which safeguards the primacy of paternity assurance to a free-for-all ?liberation? that corrodes trust between heterosexual couples and renders hetero beta males wholly prostrate to an antagonistic marriage market stripped of any protections for their particular interests.?
?Mark my words, a massive elite push to legitimize and maybe even codify polyamory is next on the agenda.?
?Gays and lesbians? just like you and me. Except not at all like you and me. And that?s a truth the equalists dearly want to hide from view.?
?Homosexuality is a brutally horrific mental disorder and NOTHING they say or spin will change that.?

"For those who might not be aware of it, the World Health Organization identifies as being MENTALLY ILL (those who suffer from "DISORDERS" of the mind) Transsexuals and Transvestites. Further, the WHO indirectly references "Homosexuals" by including in it's International Classification of Diseases those who have "DISORDERS OF SEXUAL PREFERENCE."
And that's why the LGBT community is so ardent about saying homosexuality is not a choice (ie., not a "preference") in their ongoing attempt to legitimize themselves and their perverted lifestyle! Take away the idea of "choice" and they can claim they are ?victims of bigotry? and, thereby, DEMAND special status and privileges."

"Oh but of course, the entire global LGBT community is feverishly working to stifle the truth by PRESSURING the World Health Organization to declassify sexual deviates as those who are mentally ill. In fact, it appears the WHO may actually cave in to the idiotic pressure to comply with corrupt Political Correctness regardless of actual scientific findings. Once again, "Silence the truth at any cost" is the popular clamor of the day!"

Posted by Tom Cushing, a resident of another community,
on Jul 9, 2015 at 12:43 pm

Sometimes, a post like the one above should be left up, only because it speaks for itself. Otherwise, folks might not believe sentiments like that really still exist.

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