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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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May 23, 2005

Religious Bias and Romer v. Evans

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Posted by Ernest Miller

For one reason or the other I was reading Romer v. Evans, the Supreme Court case that overturned Colorado's Amendment 2, which would have made it unconstitutional (under the state constitution) for the state or local government to provide anti-discrimination protection for homosexuals, bisexuals and etc.

Justice Scalia wrote a dissent in which Chief Justice Rehnquist and Justice Thomas joined. Near the beginning of the dissent was a claim that puzzled me.

In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.
Since when has religious bias been "reprehensible"? Certain forms of religious discrimination in the public sphere are illegal, but that is different than saying that religious "bias" is reprehensible. Isn't the point of most absolutist religions to be biased against those who do not share their beliefs? Is this really considered "reprehensible" in today's society?

There are quite a few conservative Christians who believe that anyone who rejects Christ as their personal Lord and Savior is wicked. So wicked, in fact, that a just and loving God will cast such non-believers into a lake of fire for all eternity. Anyone deserving of such punishment must be pretty darn wicked in my book. Frankly, it is hard to see, if one believed this to be Truth, how one could not be "biased" against such wickedness. But is it "reprehensible" in this country to express such bias?

If I say I won't date or marry someone solely because they are of a different race, many, if not most people would consider that reprehensible. If I say the same thing but base it solely on religious belief instead of race, many people would admire that principled stand and would certainly not consider such religious bias reprehensible. If I say African-Americans are "wicked" because they are black, I would be reprehensible. If I say atheists are "wicked" because they reject God, I'm probably a respected member of the local conservative church.

In any case, the statement is truly ironic. Bias against homosexuals is generally a form of religious bias. I don't have any figures, but I expect that most people who oppose homosexuality do so because their religion teaches them that homosexuality is wicked (and will result in being cast into that eternal lake of flame mentioned earlier). If religious bias was truly reprehensible, Amendment 2 would never have been passed in the first place.

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May 13, 2005

June 23, 2004

Happy Birthday Alan Turing!

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Posted by Ernest Miller

Today, Alan Turing, one of the formative giants of the computer age, a man who saved many lives during WW2 and helped ensure victory for the Allies, would have been 92. That is, if he hadn't been hounded to suicide by government homophobes.

via BoingBoing

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April 06, 2004

Lynne Cheney, Feminist Hypocrite?

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Posted by Ernest Miller

USA Today is running a story on the recent decision by publisher New American Library to cancel plans to republish a novel (Sisters) featuring positive portrayals of proto-feminists, prostitutes and lesbians (Publisher cancels reissue of racy novel by Lynne Cheney). The reason the poorly-written book was to be republished was because of its author, Lynne Cheney, wife of the Vice-President. Of course, a book that featured an empowering view of the love that dare not speak its name would be an embarrassment to a White House seeking to ban homosexuals from equal protection of the laws. Amazon describes the book thus ( Books: Sisters):

Sophie Dymond had overcome nineteenth-century prejudices to succeed as publisher of a hugely popular women's magazine. But when she left New York to revisit her native Wyoming, where her sister had died mysteriously, she left her prestige and power far behind. Waiting for Sophie was a world where women were treated either as decorative figurines or as abject sexual vassals...where wives were led to despise the marriage act and prostitutes pandered to husbands' hungers...where the relationship between women and men became a kind of guerilla warfare in which women were forced to band together for the strength they needed and at times for the love they wanted. In her effort to grasp the meaning of her sister's life and death, Sophie discovers the secret that tainted her life and begins to understand the experience of the vast majority of silent, trapped women.

Be sure to read the readers' reviews.

In any case, although used copies of the book are going for more than your standard paperback, Cheney's lawyer had this to say, "If there is a serious demand for this 25-year-old book, I am confident that America's used bookstores will be able to satisfy it."

According to her bio, Mrs. Cheney "has loved history for as long as she can remember, and she has spent much of her professional life writing and speaking about the importance of knowing history and teaching it well." But not her history, apparently.

An English professor at Princeton looks at the novel, here: Lynne Cheney, Feminist Intellectual?.

An annotated WIKI of the novel would be a great idea, I think.

via LawGeek

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March 05, 2004

If Marriage is for the Children, We Must Allow Gay Marriage

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Posted by Ernest Miller

I'm really not that familiar with family law and only skimmed the literature so I probably have no idea what I'm talking about, but ...

Why haven't the children of a committed gay couple sued to let their parents get married?

When discussing the issue of gay marriage, the proponents frequently structure their arguments around the rights of adults to marry their chosen partner. Opponents frequently claim that this adult rights argument misses the point, since marriage is not about the adult couple, but rather is meant to recognize the state interest in procreation and child rearing. The reason for this is that if the state acknowledged that one of the purposes of marriage was to benefit heterosexual couples regardless of parental status, or to promote companionship, the justifications for excluding homosexuals from marriage would be much harder to make. For example, in Goodridge v. Dept. of Public Health, the State of Massachusetts claimed

three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a "favorable setting for procreation"; (2) ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex"; and (3) preserving scarce State and private financial resources.

Proponents of gay marriage should take the second argument ("It's for the children") seriously and see where it takes them.

...continue reading.

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March 02, 2004

Volokh's Amendment

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Posted by Ernest Miller

Eugene Volokh is an ultra smart guy and cool person. Yet I just don't understand his position on gay marriage, which he does not seem to personally oppose. Like many opponents of gay marriage, however, he does not think that gay marriage should be imposed by the judiciary interpreting the law. While he opposes the Federal Marriage Amendment, he notes what would be a "quite defensible" amendment (Marriage Amendments):

No part of this Constitution shall be interpreted as requiring any state, or the federal government, to recognize or allow same-sex marriages.

Why is this defensible? Why would one who didn't oppose a thing want to ensure that it will never be recognized as a right? This is not a question of whether or not Volokh believes that the Constitution recognizes or should recognize a right to gay marriage, but whether Volokh thinks the question of that interpretation should be (effectively) forever foreclosed? I mean, why? Does Volokh think that such an interpretation would irreparably damage or violate the Constitution in some way?

Do we really want amendments of this nature in the Constitution? If, a couple of decades from now, gay marriage is universally (or almost universally) adopted throughout the states (a not unlikely scenario), will it not seem strange that gay marriage is uniquely constitutionally disabled? Do we really want such attacks on judicial independence enshrined in the Constitution? What precedent is there for this form of judicial control?

I also wonder what other amendments would be justified by this line of reasoning:

This amendment would indeed protect states from national meddling, as opposed to the Federal Marriage Amendment, which will just replace one sort of national interference with another. I think the amendment may be premature, since I doubt that the judicial interpretations that it would prevent will actually happen. But I may be mistaken, and I can certainly see the argument for forestalling them now, rather than waiting until later, when the Amendment may be still harder to pass.

Wouldn't such logic (and even nearly exact language) also have applied, to give just one example, to Loving v. Virginia? After all, following Brown v. Board of Education and other civil rights decisions, it was pretty clear what path the Supreme Court was on, and it didn't favor anti-miscegenists. Indeed, they were lucky when the Court decided not to hear Naim v. Naim in the mid-fifties. I doubt there was a better time to pass an anti-miscegenation amendment forbidding the decision in Loving than in the immediate aftermath of Brown.

It is certainly plausible, nay likely, that the current Supreme Court would not recognize a right to same sex marriage. But why would we want to foreclose this court or future courts from finding such a right in the broad and inclusive language of our Constitution? The First Amendment has never been so broadly interpreted as it is today. Would it have been wise to prevent such expansive interpretation because of the narrower view of free speech in the past?

Of course, I'm not sure that even this amendment would prevent judicial intervention. After all, if a court can't require same sex marriage even though the court concludes that equal protection is being violated by the disparity, couldn't the court simply declare that the state could no longer be in the "marriage" business at all (Why the FMA Would Be the Death of Marriage)?

In the end, I only note that heterosexuals do not have to worry about rights of theirs that aren't yet recognized being pre-emptively snuffed out by amendment because a court might recognize them. Some may think it proper that a minority wait patiently for its rights to be recognized and granted by a bigoted majority. The history of civil rights in this nation, and the very nature of our Constitution, speak out against this notion.

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February 29, 2004

The Miller Marriage Amendment

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Posted by Ernest Miller

According to the New York Times (reg. req.) a number of state legislators are taking up the issue of gay marriage and many are proposing state constitutional amendments against the practice (won't those states look foolish and backwards in 20 years, or less) (Legislators Push for State Action on Gay Marriage). Democrats in Georgia have a unique response to the call for a state amendment against gay marriage. They (facetiously, it seems) propose an amendment against adultery. Now, of course, an anti-adultery amendment doesn't make a lot of sense. The costs of enforcement would bankrupt the country. Besides which, you don't really want to throw people in jail for private acts, do you? On the other hand, we don't want people to think that adultery, which seriously undermines the most "fundamental institution of society" (in President Bush's words), is taken lightly. Thus, I propose a compromise.

What better way to show that adultery is not to be taken lightly then by holding our office holders to a higher standard? Not everyone is perfect, of course, and a blanket ban might occasionally be unjust, so I also leave room for exceptions to be made. Forthwith, my proposed amendment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken vows of marriage, shall have committed adultery. But Congress may by a vote of two-thirds of each House, remove such disability.

Ask your members of Congress if they would support such an amendment and if not, why not.

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February 27, 2004

The Anti-Miscegenation Amendment

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Posted by Ernest Miller

I discovered an interesting fact in reading yesterday's Washington Post (reg. req.) letters to the editor section (Letters to the Editor: Expanding the Definition of Marriage). In December of 1912, an amendment to the Constitution was introduced to abolish racial intermarriage:

Intermarriage between negros or persons of color and Caucasians . . . within the United States . . . is forever prohibited.

This history of the amendment is rather interesting as described here: The Socio-Political Context of the Integration of Sport in America:

Jack Johnson, the first black heavyweight champion, he held the heavyweight title for seven years before losing it Jess Willard in Cuba in 1915. [The famous James Earl Jones' movie "The Great White Hope" was based on Johnson's life.] Johnson had a profound effect on race relations. His flamboyant personality and his incessant appetite for confrontation and white women ultimately led to his demise. Johnson married three white women and had numerous affairs with others. He was fearless and had little respect for the conventions of the day (Wiggins, 1993, p.27).
It was this behavior that earned him the name “Bad Nigger.” A Bad Nigger, in black folklore, was a black man who did not play by the rules of convention; they dressed well and had unquenchable sex drives. They lived hedonistic lifestyles with a blatant disregard for death or danger. The term was used a badge of reverence among blacks (Roberts, 1983, p69).
In December of 1908, Johnson beat Tommy Burns in Sydney, Australia for the heavy weigh title. In 1910, he beat former heavyweight champion, Jim Jeffries so badly that it humiliated whites. Not only did he beat him, but he taunted him and rubbed in the face of white Americans. Race riots ensued all over America as a result of this event (Rust and Rust, 1985, p.147).
Because of Johnson's arrogance and love for white women, many whites considered him a serious threat to racial order. After Johnson married Lucille Cameron (a white woman), two ministers in the South recommended lynching him (Gilmore, 1975, p.107). In a reaction to the Johnson-Cameron marriage, in 1911 Rep. Seaborn Roddenberry of Georgia introduced a constitutional amendment to ban interracial marriages. In his appeal to congress, Roddenberry stated that
"Intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant. It is subversive to social peace. It is destructive of moral supremacy, and ultimately this slavery to black beasts will bring this nation to a fatal conflict" (Gilmore, 1975, p.108).
Influenced by Roddenberry and others, miscegenation bills were introduced in 1913 in half of the twenty states where this law did not exist.

The historical similarities are obvious.

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February 26, 2004

What is Marriage?

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Posted by Ernest Miller

One of the underlying disputes in the debates about homosexual marriage is what, exactly, is marriage?

So asks and answers Donald Sensing in an essay on his One Hand Clapping blog (What makes a thing a thing?). For Sensing, marriage is about the metaphysical possibility of procreation for heterosexual couples (infertile couples notwithstanding). For me, marriage is about creating and sustaining family.

Actually, the question Sensing is asking is what is the "essential character" of marriage.

Why is this question important? Actually, it is not, unless you accept the underlying "natural law" jurisprudence assumption behind Sensing's essay. The basic concept is that there is a natural order to things that is prior to any man-made law. The jurisprudence is that human law should comport itself to natural law.

Natural law as such doesn't impress me too much (I'm more of a James/Pierce pragmatist), but it can be useful to study and discuss, so let's take a look at what Sensing has to say.

...continue reading.

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February 25, 2004

The "Moderate" Position on Gay Marriage

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Posted by Ernest Miller

It has now become the consensus "moderate" position, at least according to prominent members of both major political parties, that while "marriage" is only between a man and woman, some form of "civil union" for gay couples might be acceptable.


The NOLO website has a nice, abbreviated list of rights granted to married couples here: Marriage Rights and Benefits.

Will someone endorsing the "moderate" position please point out which of these rights granted to married couples should not be given to members of civil unions and why? It is nice to talk about the purpose of marriage in the abstract and how homosexuals shouldn't get married. However, if you endorse the possibility of civil unions, then you will need some concrete arguments as to why, for example, an exemption to certain estate taxes for surviving spouses should not be part of civil union benefits.

Of course, in the end, it will only be about the word. Rather than call them "moderates" they should be called the "Hysteric-Just-Don't-Call-It-Marriage Brigade".

via Atrios

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Why the FMA Would Be the Death of Marriage

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Posted by Ernest Miller

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

What is in a Word?

Marriage. Not the institution, the word. Semantics is what the Federal Marriage Amendment is all about.

Whether or not the FMA will permit states to have both heterosexual marriage and homosexual civic unions, there is strong case to be made that it will permit one-size-fits-all civic unions if the state abolishes civic "marriage."

After all, is there anything that requires a state to recognize the institution of marriage? Must a state recognize a couple's supposed marital status? Where is the list of legal incidents a state has to provide to the married? I doubt there is such a list, as states have previously been free to change the legal incidents of marriage at their will. Used to be that one couldn't rape their spouse, now you can. Divorce was difficult to get, now it is easy. And taxes, whoa boy, is there some guarantee that people can file their taxes as a married couple?

If a state abolishes "marriage" and establishes a same-sex permitting "civic union" law, how would the FMA apply to that state? Would it be unconstitutional to abolish marriage? If so, would we have some sort of minimal Federal Marriage Law requirements that states would have to abide by? If marriage were abolished, would the Supreme Court declare that certain aspects of civic unions were actually elements of a "marriage" even if a state claimed they were civic unions? Wouldn't this inevitably lead to a Federal Common Law of marriage?

Abolishing Marriage through the Courts

Massachusetts' state constitution has been interpreted by the state's Supreme Court to require that marriage rights be granted to both homosexual and heterosexual couples; mere civic unions for gays would not be sufficient to meet the Massachusetts Constitution's equal protection requirements. Imagine if the FMA were passed and the Massachusetts courts had to address the issue again.

Undoubtedly, the unequal treatment would still be repugnant to the equal protection measures of the Constitution of Massachusetts. However, Massachusetts courts would be forbidden from requiring that marriage rights be given equally to homosexuals. However, this would not prevent the Massachusetts courts from declaring that marriage itself must be abolished to correct the disparate treatment. The FMA prevents homosexuals from having the same privileges as heterosexuals. It does not prevent heterosexuals from having their privileges taken away to make them equal to homosexuals.

After "marriage" was abolished, there would be no constitutional issue in Massachusetts establishing an equal rights friendly "civic union" law.

How to Ignore a Constitutional Amendment

Imagine that the FMA has now passed, over the objections of several states. Rather than permit such an injustice, some of the protesting states abolish marriage within their borders. Over time, acceptance of same-sex unions grow as does the idea that civic unions are the proper purview of the state and marriages the purview of the various churches.

Undoing a constitutional amendment requires another constitutional amendment, which is very difficult to do. Rather than go through that process, as individual states become more same-sex friendly many would abolish marriage rather than work on amending the constitution. Ultimately, the FMA and civil marriage becomes irrelevant, quaint legal relics similar to the Third Amendment.

The Federal Benefits Question

Actually, marriage would not be entirely abolished. States would still have to permit vestigial "marriages" in order for heterosexual couples to receive various and sundry federal benefits. Marriage would come to be defined as the union of a man and woman for purposes of receiving federal benefits.

So-called defenders of the institution of marriage should be careful what they ask for.

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February 24, 2004

Constitutional Obedience in SF

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Posted by Ernest Miller

Although this blog is generally concerned with technology, law and policy, it is, in fact, most concerned about our civil liberties. I emphasize technology and the digital age in my postings because that is what I best know. However, I feel remiss in not addressing one of the most important civil rights battles of our time, that for gay rights. So, while there are many important things happening with regard to copyright and etc. right now, I'm going to spend some time addressing the gay marriage issue.

Prof. Richard Thompson Ford of Stanford Law School has written a critique of the city of San Francisco's issuance of marriage licenses in Slate (Civic Disobedience: San Francisco chooses the wrong way to flout the state).

Ford's first arguments are non sequiturs, pointing out the limited circumstances that normally permit local jurisdictions to defy state or federal law and how they do not apply. However, as Ford notes these are not the arguments San Francisco is making. The reference to federal law is entirely out of place, as San Francisco is not making a federal law claim and no one is arguing that San Francisco is violating federal law at all.

The argument San Francisco is making is that the law prohibiting same-sex marriage is unconstitutional as a matter of California law. Ford treats this argument condescendingly,

Proving that it is indeed "The City That Knows How," San Francisco thus found a different argument to justify licensing same-sex marriages....[The constitional argument is] a clever argument but not clever enough.

Since when has choosing not to enforce unconstititutional law merely "clever"? Call me crazy, but non-frivolous arguments based on constitutional rights should hardly be dealt with contemptuously.

Ford then goes on to the core of his argument:

Even if the courts ultimately were to agree with the city on the merits, the issue is for the courts to decide, not local officials. It's simple black-letter law that otherwise valid legislation is presumed to be constitutional until and unless judicially invalidated. Until a court decides otherwise, then, local officials are bound to uphold state law.

Ford claims it is "simple black-letter law" that unconstitutional laws should be upheld until a court decides otherwise, but it does not seem to me all that clear. For example, two separate courts have so far failed to put a stop to the practice. If the issue were as simple and clear cut as Prof. Ford would have us believe, one would expect an injunction forthwith. Courts normally don't allow litigants to continue to flout well-established black letter law once a case has been brought before them.

There is also a claim that even if the courts uphold San Francisco's interpretation of the law, what San Francisco is doing is nevertheless illegal. This seems rather unlikely to me. This would have to mean that the marriage licenses already issued are invalid regardless of the outcome. And don't think that this will not be tested.

Assume that Ford is correct and San Francisco doesn't have the authority to issue same-sex marriage licenses until a court decides the issue. Subsequent to a ruling that the anti-gay marriage statute is unconstitutional, one of the 3,000+ already married same-sex couples will attempt a divorce. One of the parties will then claim that divorce is unncessary as the marriage was invalid in the first place. If Ford is correct, then the court will have to accept that argument. I think this unlikely.

This is why Ford's argument that SF lacks authority is also false:

it's that they [SF authorities] exceeded their authority (just as I would if I were to print up "marriage licenses" and start issuing them out of my back door). In purporting to license same-sex marriages, the city is less scofflaw than charlatan.

However, is it? Ironically, it is in divorce that most of the benefits of pre-court-decision marriage will accrue, such as property acquired during the marriage. When a divorce among the SF newlyweds occurs and it comes time for property division, will a court declare that property was only accrued after the court decision? This seems unlikely, in which case the city was not acting as a charlatan, as would be the case if Ford were to issue the licenses.

Why is it unlikely? Because after a court decision that the anti-gay marriage law is unconstitional, there is nothing than can be used in court to show that gay marriage licenses were not validly issued:

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted....
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
16 Am Jur 2d, Sec 177 late 2d, Sec 256

The city has the authority to issue marriage licenses, period. If the anti-gay marriage statute is unconstitional, it is unconstitional now. Which means that SF does have the authority to issue the licenses. The city is either issuing invalid license now (if the statute is constitional), or we will know at some point in the future, that the marriage licenses are, in fact, valid as of the time they were issued.

Yes, "the city's argument—that local officials can act in contravention of state law based on their own untested interpretation of the constitution—is dangerous." Local officials should tread with extreme caution in this area. However, the parade of horribles Ford musters is singularly unconvincing: local officials permitting prayer in schools or declaring affirmative action unconstitional. In both these cases, there is well-settled law on the issue, which is not the case with same-sex marriage. If there were existing precedent opposing the issuing of such licenses, such as a court order, then I would be entirely opposed to violating the court order. There is a difference between thumbing one's nose at well-established law and not enforcing a recently passed and arguably unconstitutional statute.

In any case, there are other differences with regard to the horribles Ford cites. For example, in the case of teacher-led prayer, one would be infringing the rights of those not religious or of a different religion. In the case of affirmative action, one would be denying benefits to a proper recipient. Where is the harm in the SF decision to issue licenses? Are other marriage licenses somehow less valid? Are any benefits being denied anyone? Will any benefits other than a paper certificate be granted until the courts have made a decision? Where no harm can accrue in issuing licenses and there would be benefit in so doing (see divorce issue above), prudence would seem to favor issuing licenses in case of significant doubt.

Which is precisely why Ford's final argument lacks persuasive power. Ford argues that the city could refuse to issue any licenses, rather than participate in discrimination. However, as he points out, this would be mostly a symbolic act and a mere inconvenience to heterosexuals desiring to marry. What he doesn't point out is that a failure to issue licenses due to an unconstitional law would be a serious harm to gays desiring to marry. The balance of equities (as the courts have so far recognized) seems to weigh heavily in favor of issuing licenses to gays until the issues can be resolved with finality.

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