I really was moved by Keith Olbermann's Special Comment on Prop 8 last night. (If it doesn't touch you deeply then you might want to visit The Wizard sometime soon and see about getting a brain heart.) And I salute everyone who has been out passionately protesting the Mormon church in recent days (to what end I'm not sure; but those magic-underwear lovers were SHAMED into allowing blacks into the church back when, so maybe it's worth something -- and it has inspired the gays in Utah to fight back with a five-bill attack in legislature).
But the more I think about this and the more I discuss it with my friends, the clearer it's become to me that as much as I would have liked Prop 8 to have failed (although I do agree with Gov. Schwarzenegger that this hate measure may well get struck down by the court), continuing to fight these state battles when same-sex marriage is actually best argued on federal grounds is ultimately a waste of time. (It's like playing what I call Gay Marriage Whack-a-'Mo.) Instead of trying to convince every bigot in America that gay people deserve civil rights too, isn't our best chance at getting the U.S. Supreme Court -- even today's Bush-ed lineup -- to turn this around in our favor to present it as such? By arguing that under the Full Faith and Credit clause of the U.S. Constitution a legal marriage of a same-sex couple from Massachusetts (or Connecticut) must be recognized in ALL 50 states just as opposite-sex marriages (and divorces) are, that would essentially take care of this whole hateful mess. (And by labeling it what it really is -- a boring old interstate-contracts issue -- it might even help remove some of the overwrought emotion of it all.). And once all states must recognize these marriages, then the economic side would probably kick in and force states to start allowing same-sex marriages to be performed there too (why have your residents spend money elsewhere if you're going to have to honor it here anyway?). While Antonin "Originalist" Scalia and Clarence Thomas would probably manage to come up with any reason to vote against it, Anthony Kennedy may well swing with us on this. And a 5-4 victory is still a victory. (OK, all my lawyer readers: tell me why this won't/hasn't worked.)
And to readers like Jake who think a "strategic retreat" from the word "marriage" and a focus on civil unions is the way to go I say this: time to dust off your history books and read up on Plessy v. Ferguson (and Brown v. the Board of Education). No matter what you've been led to believe, there is absolutely no equality in "separate but equal."
6 comments:
While I wish that we could simply win a case in the Supreme Court and be done with this nastiness, I believe that you're wrong to think that these endless battles at the state level are a waste of time. In this fight for equality, like with most things in life, there is no short cut. The Supreme Court rarely leads the country by its ear, kicking and screaming. Usually, it wants to see that the people, and lower courts, have chewed on the issue, and that a significant chunk of them want the change. Looking at the rulings regarding interracial marriage or sodomy show this.
So these battles at the state level MATTER. Not only do they provide powerful legal precedents, they also have worked to change the hearts and minds of our fellow citizens. If we look at polls from just 5 or 10 years ago in comparison to today, we can see what headway we've made. More and more people support equality. This is tough, painful work, but we need to keep at it.
Finally, even if we could win at the Supreme Court today, I don't think it would solve our problems. Frankly, I fear it would worsen then. Before we win federally, we need to be prepared to win the inevitable next battle, because I can guarantee you that the religious right would seize upon that to push for a constitutional amendment against same-sex marriages. If that passed, we could all be screwed for generations. This slow and steady strategy is working, though more slowly than any of us would like, so I recommend sticking with it. The battle won't be easy, but with perseverance, we will prevail.
I think the idea is that the only way to precipitate the issue of same-sex equality in the US Supreme Court is to raise it from a grass roots level until there are enough conflicting issues, views and "solutions" that the federal government must weigh in. When "Brown" reached the Supreme Court it wasn't just because they filed suit one day and said "treat us equally." The men and women fighting for civil rights had filed hundreds of lawsuits in different states and attacking institutionalized racism on multiple fronts but always coming back to the same core point that separate was inherently unequal. Having said that, what is happening in California may wind up becoming the watershed we need since this odious Amendment conflicts with the Equal Protection Clause and may have to be reviewed by the Supreme Court.
I'm glad we lost.
Look at the huge response. Somehow, magically, gay rights has become a national, pressing issue. Suddenly, the gay rights movement has the same weight as the civil rights movement.
13,000 gay men protested in Los Angeles in Saturday night. It's historic - and necessary.
I wanted to ask the protesters "where were you on Monday??" I spoke to so many gay men who did not vote, did not volunteer, did not phone bank, did not give money. And on election day where were they? "Oh we were having martini's at Bob's house and watching the results."
Your civil rights are actually ON the ballot and you couldn't be bothered to get yourself out to the street?
Now I've spoken to a number of gay men who are CRYING, OUTRAGED, "how could they do this to me??"
Well, it's not a surprise. We were trailing in the polls the entire goddamned time. And you did nothing.
You deserve to lose those civil rights. You gave them away. You should have to riot and protest and march to get them back.
It's a good thing we lost. Look at what is has produced.
KW: I completely agree with you - the interesting thing about Scalia and Thomas is that, while they are conservative they are also strict constitutionalists - in other words "don't fuck with the constitution" - this would force them to choose between their conservative views and their position with regard to the constitution (which would work in our favor).
I don't favor a strategic retreat from the word "marriage" unless it is a retreat from all uses of the word marriage within federal legislation. Perhaps, in a perfect world (with unicorns and leprechauns) the government would grant and license civil unions only (for all couples) and marriage would be the provenance of the church. Seems like a separation of church and state to me.
I agree with Mike on this one completely.
Respectfully, I have to disagree with you that marriage is a federal issue. I specialize in constitutional law, and family law has always been a state issue -- up until DOMA was passed, which was the major constitutional criticism against it. Think about it this way, we have never had a national divorce statute and still don't.
It's true, you can structure an argument based on the equal protection clause of the 14th Amendment and the 5th Amendment's guarantee of due process and get there. I'd buy it in a hearbeat, but the Supreme Court won't go there until we go through the painful process of building support out in the states.
It's tough. I came out to my ultra right wing great aunt and great uncle this summer and asked them to vote No on Prop 8. Bless their hearts, they did and "No" won in Monterey County where they live. After some gut-wrenching conversations a few months ago, they called me up at midnight to tell me they were sorry, and that they tried.
The Court says it doesn't pay attention to politics. Even if we take them at their word on that, what they DO pay attention to is how state courts and lower federal courts have dealt with an issue -- and state courts definitely consider politics since most of those judges are elected.
As Mike puts it, very aptly, they want to see that "people, and lower courts have chewed on the issue." In particular we want to make sure we have solid enough support in enough states to defeat the federal constitutional amendment that would inevitably follow.
My boyfriend and I have been together for just over 3 years. We're in our mid 40's. I don't want to wait to get married, and this is frustating as hell -- but we're fighting for the people who come after us, too. And that means we have to fight smart.
Thanks so much for the blog -- it's one of my favorites.
No matter where it is fought, we cannot resort to the violence or vandalism that is occurring. Spray painting churches and blocking traffic will not win us any fans and will cause us to lose some of the fans we have.
I am embarrassed by some of the tactics that are going on.
Post a Comment