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GLBT Fortnight in Review, April 3, 2013
BY ANN ROSTOW
What’s Black and White and Gray All Over?
Everyone agrees that it’s never wise to jump to conclusions based on oral arguments at the Supreme Court. That said, everyone does it anyway and we here at the Bay Times have every intention of adding to the speculation. Indeed, after listening to the Prop 8 and DOMA discussions on March 26 and 27, there are at least three observations that seem like solid bets.
First, the Supreme Court is not going to issue a ruling that overturns antigay marriage laws throughout the country. Not even the justices on our side seemed eager to settle the issue with one blow, and to be honest, most GLBT advocates did not expect the Court to so do. You may recall when the Prop 8 case was first filed (by Ted Olson and David Boies) that gay lawyers worried we were risking a huge setback for an impossible, or improbable, dream.
Well, the good news is that the justices do not seem likely to issue that huge setback either. Justice Kennedy joined voices on the left in wondering aloud why the Prop 8 case was ever accepted for review to begin with. His comments, and those of Justices Ginsburg and Sotomayor, suggested strongly that the decision to take the case came from the four justices on the right. They also hinted just as strongly that Justice Kennedy had little appetite for putting Prop 8 back on the books.
The third conclusion we might make is that the Defense of Marriage Act is likely doomed. Even arch conservative Justice Alito expressed doubts about the intrusion of federal power on states’ rights, while Justice Kennedy made no bones about his own reservations. Our four champions on the Court, in turn, condemned DOMA as a violation of Equal Protection.
This all sounds good, right? If we follow our three observations to their logical conclusions we would see marriage restored in California, while the federal government would recognize our legal unions throughout the country. But the devil is in the details, and the details remain just as murky now that the arguments are over as they did beforehand.
Here’s the problem: A Supreme Court ruling is not a simple up or down vote. What really matters is the opinion itself, the precedent it sets, the principle it lays out, the law it articulates.
For example, imagine if the High Court strikes DOMA, but does so in a states’ rights opinion that leaves the issue of our right to marriage recognition ambiguous. Let’s say that the four pro-gay justices write a minority opinion concurring with the outcome, but basing their conclusion on Equal Protection. And let’s say that two or three conservatives write their own antigay dissent. What are we left with? True, DOMA would be off the books which would certainly be a victory. But our legal fight for equality might be set back in the process. Why? Because a majority of the Supreme Court would have decided that, on principle, gay unions do not necessarily deserve the same treatment as straight marriages.
Or imagine another outcome. One underlying issue in both cases is whether or not sexual orientation should be treated like race or gender in the application of Constitutional law. From the arguments, it seemed as if the justices skirted this major debate, for reasons unclear. Perhaps they simply lacked the time to delve into this core question when they had so many other matters to pursue.
But what if five members of the Court agree that sexual orientation discrimination should not be given heightened scrutiny in these or any future lawsuits? Such a statement from the Supreme Court would be disastrous. There’s no other way to put it. And even if the Court makes a more ambiguous statement, we would have to read between the lines to determine where the impact falls on a scale of one to ten--- one being sort of okay and ten being very very bad.
So you see there are a number of ways to win and lose at the same time. Ergo, there are a number of good reasons to stay nervous as we wait for the opinions to emerge in late June. But for all the dangerous possibilities, there are some fabulous outcomes also within our grasp.
I wrote before that the Court is unlikely to legalize marriage across the board. That’s true, but because it’s unlikely does not mean it’s out of the question. So there’s that.
Second, although conventional wisdom says that Justice Kennedy will strike DOMA on the basis of states’ rights rather than gay rights, that wisdom doesn’t seem all that wise if you think about it. No justice is required to select only one constitutional theory for his or her opinion. So, yes, we know that Justice Kennedy thinks DOMA is a federal power grab, but he may well agree that DOMA penalizes gay couples unfairly in the process.
Further, assuming that our four allies on the Court are going to articulate the case for equality, why on earth would Justice Kennedy deliberately deny them the fifth vote that would put teeth into that opinion? This is the man who wrote both the Romer opinion in 1996 and the Lawrence opinion in 2003. He has hung his legacy on gay rights and there’s no reason to think that he would undermine his signature jurisprudence in the last decade of his career.
A majority ruling that strikes DOMA on gay rights grounds would be a huge victory indeed. And although such a ruling might sidestep the question of legal scrutiny that we mentioned above, it would likely do so in the least destructive way. The Court, for example, could say that while there are excellent arguments in favor of heightened scrutiny for sexual orientation discrimination, it’s not necessary to reach that issue in this case.
Speaking of sidestepping, I’ve ducked the issue of “standing”in this analysis, simply because there’s enough to talk about without going into Article III and whether or not the Prop 8 organizers have the right to appeal in federal court to begin with. As you know, there are also questions about the standing of the Congressional committee now backing DOMA, as well as the U.S. government, which appealed the DOMA case even though it agreed with the lower court ruling (normally an Article III no- no).
But without getting too tedious, Court observers noted that many justices seemed prepared to simply dump the Prop 8 case on standing grounds, which would allow them to avoid comment on the question of marriage equality per se. If you believe that the four liberal justices wanted to skip the case in the first place, and that Justice Kennedy shares their view, they may well take this route. That would nullify the Ninth Circuit’s ruling, and (possibly after a brief legal skirmish) would outlaw Prop 8 as per the ruling by Judge Vaughn Walker.
As for the standing issues in the DOMA case, while they were discussed, there was less of a sense that the justices would use them to avoid a ruling on the merits of DOMA. After all, just as you can’t be a little bit pregnant, you can’t have a little bit of DOMA. The law has been struck down by the First and Second Circuits, so how can the government recognize same-sex marriages in New York or New England, but ignore them in Iowa or Washington?
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Marriage Equality All The Rage
Let’s take a break from High Court hijinks and take stock of the rest of the gay news of recent days. A zillion more politicians have come out in favor of marriage equality, bringing the number of pro-marriage senators to 50, including two Republicans.
Sounds like Uruguay is poised to legalize marriage soon. Yay Uruguay! Don’t know about you but I’ll be rooting for them the next time I see their team in the World Cup. The ACLU has filed a state court freedom to marry suit in New Mexico, where the law is silent on marriage restrictions and where renegade city officials in Santa Fe recently announced plans to issue licenses to same-sex couples. Also, some couples have filed a federal marriage lawsuit against the state of Utah.
And I was happy to see Rutgers hoops coach Mike Rice get the ax after watching videos of this lunatic calling his players “fairies”and “faggots” while hurling basketballs at their private parts. Now let’s see some punishment for the enablers in the Rutgers administration that saw this video months ago and gave Rice a slap on the wrist at the time.
By the way, I’m adding a new commercial jingle to the list of annoying songs that I can’t get out of my mind. Lately there’s been“five dollar subway” and “Mr. Lid.” Now I can’t get rid of the song about Tena Twist adult diapers even though I don’t remember much of the lyrics. You know the ad I mean, with the women dancing and twisting?
I just tried to look up the words to this and I landed at a site for “adult babies” and “diaper lovers.” Hey, I know we’re all supposed to keep an open mind given our history as a despised sexual minority, but this is really a little out there. Too much for me, anyway.
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Who Knows Where?
I return now to tie up a couple of the many loose ends at the Supreme Court, beginning with the following perplexing question:
If the Court strikes DOMA, would the federal government recognize a married couple who married in Massachusetts or Iowa, but who now lives in Texas or Oklahoma?
The question seems to be a no-brainer. Of course they would. How could the government possibly force couples to live forever in a state that conforms to their marital status? How could a couple be forced to choose between a job promotion or marriage benefits? Would a military family have to switch from married to unmarried due to a transfer?
And look at the different state laws surrounding first cousins. Does the federal government force cousin couples to remain in West Virginia (or wherever this is legal) in order to stay married for social security purposes? Answer, no.
In fact, the answer doesn’t seem as obvious to others as it does to me. (Moi? Wrong? Could it be?) At arguments, Roberta Kaplan, the lawyer for Edith Windsor, told the Court that it could strike DOMA and base marriage recognition on the “state of residence.” But how could that be true? And when you answer, keep in mind that the right to interstate travel is fundamental in this country, and cannot be hindered without a “compelling”government purpose.
Finally, one of the most irritating aspects of both oral arguments was the tendency of the justices on the right to make note of the relative newness of same-sex marriage. Justice Alito insisted the concept was newer than cell phones and the Internet. In a similar vein, Justice Scalia pounded Ted Olson with the question of exactly “when” the Constitution mandated same-sex marriage.
But the objections are, or should be, easily resolved. Legal marriage may be new, but the same-sex couples seeking recognition are decades old. Marriage equality will not mean that gay couples will suddenly decide to get together, live together, have families. This has been going on both in and outside the shadows for a long time, and it will continue with or without equal treatment under the law. Equal treatment under the law, needless to say, is a little older than cell phones.
And “exactly when” did the Constitution mandate marriage equality? Each time the High Court has ruled that marriage is a fundamental right, and each time the High Court has struck discriminatory laws under the Equal Protection Clause. That’s when.
The real question is when did we recognize that gay couples fall under those precedents? Even if the answer to that question is five minutes ago, once that realization hits home there’s no justification for further inaction.
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arostow@aol.com
