GLBT Fortnight in Review, June 26 2013
BY ANN ROSTOW
We Survived SCOTUS Review Without Bad Things Happening!
I’m writing this column just an hour or so after the High Court released its DOMA and Prop 8 rulings. My first reaction? A big sigh of relief. Of the several bullets and indeed cannon balls that could have been aimed at our communal direction, we dodged them all. Or to keep the metaphor coherent, the ammunition was not fired.
There was no comment whatsoever on the merits of the Prop 8 case, and of course, the statute is basically dead, with marriage to resume promptly in the Golden State. Yes, there could be some legal hiccups, but nothing that can’t be cured with a teaspoon of sugar. Plus, even if some reactionary clerk tries to sue, his or her case will be a sideshow against a backdrop of marriage equality.
Some of you might be disappointed that the High Court declined to strike Prop 8 as unconstitutional, effectively legalizing marriage equality around the country. But that was never going to happen. Any commentary from the Court on the merits was bound to be negative. Even a ruling that killed Prop 8 on narrow grounds would have come back to bite us by its very narrowness. The only positive outcome was the one we got; a decision that the proponents of Prop 8 lacked standing to appeal under federal law. The only good ruling we could have expected was the one we got; a tedious discussion of Article III with no reflection on the issue of marriage equality.
As an aside, let’s note that our legal eagles at Gay Law Inc. were right from the start. The fight against Prop 8 was a dangerous roll of the dice and as the decision approached, we were at the edge of our seats with anxious fear. Let’s also note that the dare devils who pursued the case succeeded in abolishing Prop 8, a magnificent accomplishment. Let the historians of the fight for gay rights make of that what they will.
Now for the Defense of Marriage Act. How could we not be elated at the demise of this horrible law? How could we not be thrilled that the Supreme Court of the United States has forced the American government to recognize legal same-sex marriages? Well actually, it would be churlish not to be elated and I am drinking Champagne at the moment. But I will drink Champagne at the drop of a hat so that’s not saying a great deal.
But I was disappointed. I have only read Justice Kennedy’s opinion once, and briefly at that. But like his opinion in Lawrence v Texas, it’s short on the kind of hard-nosed legal pronouncements that create lasting precedent. Was it an equal protection ruling? Sort of. Was it a due process ruling? Sort of.
Are gays and lesbians deemed worthy of more exacting court scrutiny when their rights are compromised? Um, maybe a little.
And what about DOMA itself? Kennedy wrote that Section Three (the part that denies federal recognition to gay couples) was “invalid” and that the ruling of the U.S. Court of Appeals for the Second Circuit (a broad one) was affirmed. What could be clearer, right?
Not so fast. He also appeared to limit his ruling to married couples who live in a state that recognizes same-sex marriage. I say “appeared,” because this is another aspect of the opinion that remains cloaked in needless murk. Think about this for a second. Personally, I live in Texas but got married in California in 2008. Are Mel and I recognized as married under federal law? Possibly not. But if not, exactly what federal statute remains to nullify our marriage? Not section three of DOMA, because that section is “invalid.”
Yet rather than make this clear, Kennedy concludes his opinion with a discussion of how states that have extended respect and equality to same-sex couples cannot be undermined by a federal government that refuses to acknowledge those couples. In his final sentence, he adds: “This opinion and its holding are confined to those lawful marriages.”
What are “those lawful marriages?” In his dissent, (which primarily focuses on a side issue of the U.S. government’s standing in this case) Chief Justice Roberts seems to think that the ruling does not cover any couple living in a non-marriage state. What if a married couple moves away from California or Massachusetts to Texas or Oklahoma? Is this a subject for some future litigation? It seems so, and that in itself illustrates the weakness of Justice Kennedy’s opinion. He came to the right result, but failed to back it up with tough, dependable jurisprudence. If the federal government violates equal protection by treating gay married couples in Massachusetts differently than straight married couples in Massachusetts, then surely it violates the same legal principles when it treats those same couples differently after they both move to Kansas. If not, why not? And don’t forget that the right to interstate travel is considered fundamental and indeed inviolate under the Constitution.
The bottom line is that we still await our landmark civil rights ruling. We still await the opinion that will go down in history along with Brown v Board and Loving v Virginia. That said, both those opinions were preceded by other less significant victories and indeed, you don’t get to the top of the mountain without ascending through the various base camps.
In his typically sarcastic prose, Justice Scalia indicates that we are now all waiting for the other shoe to drop. After accusing the majority of a muddled excuse for an opinion, he notes that the language barring federal discrimination works just as well to deny state discrimination. And he effectively repeats the observation he made in his Lawrence dissent, that the majority rationale leads directly to legalizing marriage for gay couples.
He’s right of course. In Lawrence, Kennedy implied that gay men and women have the same fundamental right to privacy under the Due Process Clause that protects the marriages of heterosexual couples against state interference. But as mentioned earlier, he glossed over that implication, and by doing so he managed to strike sodomy bans without putting a High Court stamp of approval on marriage.
Here, Kennedy did not face the question of whether a state has the right to deny marriage equality to its gay citizens. He faced only the question of whether the federal government can turn away once a state has done so. But even his somewhat vague rationale for striking the Defense of Marriage Act (which lacks any rationale based on anything other than the bare desire to harm) works just as well for any state. Indeed, the problem for the courts is that once you recognize the humanity of gay couples and the equal rights of gay individuals, you find yourself on a straight road to equality with very few off ramps.
The good news is that just a decade or so ago, courts would twist themselves into knots in order to preserve the traditional definition of marriage. Now, they are twisting themselves into knots in order to avoid the kind of opinion that their grandchildren will read with dismay. One of these days, and it’s already happened in several courts, judges and justices will be able to give themselves up to the relief and pleasure of writing a strong, coherent account of how and why gay men and women fit into our Constitution’s guarantee of liberty and equal rights. Until then, we are left with partial victories, which are so much better than partial defeats. Pass the Champagne!
Oops. We’ve finished the bottle.
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What Now?
Let’s move on to the practical implications of these rulings for the future. Leaving aside the question of whether or not the legal precedent has teeth, there’s no doubt that the decisions will have a huge impact on public opinion and political action.
California marriages will begin again almost at once. We will add the Golden State and its huge population to the list of free marriage states that will then cover a third of Americans.
In state legislatures across the country, serious efforts will begin towards overturning the constitutional amendments that now bar marriage in over 30 states. Once again we will likely go through years of state elections and public votes. Beginning in 2014 and continuing perhaps another decade until state after state rescinds discrimination.
Starting at once, the federal government will issue green cards to the legal foreign spouses of gay Americans. Keep a close eye on whether or not they live in the state where they wed and whether or not that state recognizes marriage. It’s possible that the ambiguity in Kennedy’s opinion will be resolved by federal policy makers, who simply dictate that—for example—all married gay couples may file joint taxes regardless of their residence.
Gay spouses of those serving in the military will be granted housing and base privileges. Indeed, it won’t be long before the oddity will not be the state or company that recognizes gay married couples, it will be the state or company that does not. Corporations, which have actually been at the forefront of gay rights in many ways, will extend their policies further.
Fans of statistician Nate Silver may have already examined his trend chart of public attitudes towards same-sex marriage. The support for marriage equality increases at a higher rate each year until even Texas and Oklahoma throw off the chains. There is simply no going back, and as frustrating as it may be to wait and wait for a national consensus on gay equality, and the national policies that go with it, it’s a comfort to know for sure that such a day is coming. No longer is it “if this happens…” or “if that happens…” This and that have happened. Now comes a lengthy, but inevitable final slog.
More progress lies directly ahead of us. A lawsuit in state court in New Mexico challenges the Land of Enchantment. Another freedom to marry case continues in Illinois. Oregon voters will likely overturn their antigay constitutional amendment next year. Other states will do so by legislative action. Rachel Maddow reports that efforts to repeal anti-marriage amendments are underway in every single state, and I believe her. Here in Texas, such a measure has been introduced, and although my state will surely be one of the last to capitulate, such a development suggests that bluer states will lead the way. Most importantly, Mel has left to go purchase more Champagne.
In my view, we should be in no particular hurry to zip back to the High Court. This is a Court that operates in a sly and insidious fashion. Roberts and Company eviscerated the Voting Rights Act, pretending at the same time to maintain the edifice and send it back to Congress for an updated list of racial trouble spots. Spare us. Affirmative action? It survives if and when a university can prove beyond a shadow of a doubt that consideration of race is absolutely necessary in order to preserve diversity. We are lucky that they ducked Prop 8 rather than come up with an antigay body blow, thinly disguised as respect for the state electorate.
Keep in mind that such a ruling, a ruling that said California remains in control of its state marriage law, whether through popular vote or other means, such a ruling would have set gay rights back decades. It would have been sweetly phrased. But it would have indicated that gay couples have no constitutional right to marriage and that discrimination was just a question of state policy. That was the worst case scenario that we avoided this morning, and the next time we bring our very lives before the nine justices, we have to make sure that such a scenario is not even in the picture.
Given the erratic nature of this Court, we may need a few more years of dramatic evolution before we can return with that kind of confidence. But keep an eye on the Ninth Circuit, and the Prop 8-type case that pits the states of Hawaii and Nevada against a group of same-sex couples. They argue that these states violate the U.S. Constitution when they deny marriage equality by state constitutional decree. Sound familiar? It should. Our side lost both these cases in lower court, and they have been consolidated for review by the appellate court. I’m not sure where they stand because I’ve been obsessed by Prop 8 and DOMA for the last month or so, but I’ll check on them once I recover.
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