GLBT Fortnight in Review, July 10, 2013
BY ANN ROSTOW
Finishing the Job
Our twin Supreme Court victories may have been short on explicit legal reasoning, but they have delivered a powerful shot of adrenaline into an already energized GLBT civil rights movement. That’s essential, because as Freedom To Marry’s Evan Wolfson reminds us, we cannot sit back and expect marriage equality to roll effortlessly over the country like a warm tide. We must continue to work for it, and we must work hard.
I know it has seemed easy enough over the last few years, hasn’t it? But underneath the rising support have been sophisticated educational programs. Our legislative wins have been well organized by savvy political activists. The referendums we’ve won have been fought with technical acumen. And the arguments that have secured court rulings in our favor have been polished and perfected by GLBT lawyers for decades. Success hasn’t fallen into our laps. We’ve earned it. And much of it has been paid for with small donations from average GLBT citizens as well as larger gifts from our richer brothers and sisters and our allies.
On Tuesday, Freedom To Marry released a new roadmap for “finishing the job” of bringing marriage equality to every state in the nation. Clearly, the end game will find us back before the nine justices. But before that day arrives, we must build “a critical mass” of equality states, and an “undeniable momentum” in public opinion. Without first meeting those conditions, we are unlikely to win our next High Court showdown.
According to Wolfson’s group, the critical mass is at least 20 states, or roughly half of the American population. The undeniable momentum would be public support of at least 60 percent and rising. Freedom to Marry thinks we can meet these goals by the end of 2016, and indeed that seems doable.
First, we can ask the states with civil unions to upgrade to marriage equality. With the demise of the Defense of Marriage Act, such states are no longer offering equal benefits to same-sex citizens. Indeed, the Obama administration has bolstered this argument by making clear that the federal government will not recognize state-specific partnership regimes. We’ve always called them second-class statuses. Now there’s no question that civil unions are discriminatory, plain and simple.
New Jersey is a particularly blatant case, since the state supreme court has already ruled that same-sex couples must be equal to their heterosexual neighbors. Ever since the legislature reacted to that ruling with a civil union law, our side has argued vociferously that New Jersey’s unions fail to meet the test of equality that the court purported to enforce. We’ve been litigating this issue in state court for a couple of years, but after the Windsor ruling, Lambda Legal has amended its complaint and asked for quick summary judgment in our favor. Do civil unions provide New Jersey citizens with equal marriage rights? Hell no.
But even in states where courts have yet to order equality, the case against civil unions is now clear. Those states are proliferating, and could upgrade to marriage either through court action or through political will.
Second, several of the states with antigay constitutional amendments are likely to repeal those amendments if the electorate gets another chance to vote. That is what we hope will happen in Oregon next year, when voters will be asked to reverse their amendment and legalize marriage.
Third, another handful of states where no amendment is in place could legalize marriage equality through the political process. Illinois has passed marriage equality through the state senate, and although we haven’t amassed the necessary votes in the house, they could be there by this fall. In the aforementioned Garden State, lawmakers have already passed marriage rights in a bill that was vetoed by Chris Christie. It’s not impossible that our side could override that veto with a two thirds majority before next year.
Finally, we have the federal option. These are the Prop 8-style cases we bring in federal court, arguing that the antigay policies of Your State Here violate the U.S. Constitution. We already have federal cases in progress against the states of Hawaii and Nevada. This week, the ACLU filed suit against Pennsylvania, and announced plans to file federal marriage cases against Virginia and North Carolina. I think there may be another one or two floating around because I have lost track and become confused as our national litigation strategy has flowered over recent years.
Marriage will be won or lost on the back of one (or more) of these Prop 8-type lawsuits. The Hawaii and Nevada cases are being heard together by the Ninth Circuit; the others are just getting started. As such, potential scenarios abound.
What if the Ninth Circuit rules in our favor a year or two from now? If the High Court ducks an appeal, marriage could be legal throughout the western United States. If not, this will be the case that decides our fate, maybe four or five years from now. What if the Ninth Circuit rules against us? Will we suffer defeat and try our hand in a different circuit? Or will we roll the dice and petition the justices? Would that be asking for trouble? Maybe so.
You can see that in order to win the war, we have to win many if not all of the battles. I was just listening to an interview with Justice Kagan, who was asked to what extent the High Court pays attention to polls and public opinion. Our decisions are not based on polls, she said (and I paraphrase) but nonetheless, we live in a real world and we don’t close our eyes and ears to the changes in society and public attitudes.
Surely, to return to the original premise, we cannot approach the Court for a final decision without the clear weight of public opinion on our side, as well as the clear sense that marriage equality is a dictate of our history and our constitution.
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Sidetracked
I almost kept riding the above train of thought that has chugged easily through the first thousand words of this column. But really, why? You get the picture. Isn’t there anything light and fun, dare I say it…gay…to write about? Let’s disembark at Petticoat Junction and share random musings at the Irrelevant Cafe!
My wife Mel decided to remove a pug stain on the carpet in our bedroom. When the stain didn’t resolve itself, she scurried off to Home Depot and bought an expensive rug machine with a pet attachment. She then removed all the furniture from the bedroom and treated the entire floor. Now, she’s decided to paint the bedroom baby blue since the furniture is out. I would normally be glad to aid in this evolving project, but unfortunately I have to write this column. I suspect that it will take me hours to finish. By that time, she will probably have knocked down a wall or two.
Meanwhile, although not a trial watcher by nature, we have been following the travails of Mr. Zimmerman, who appears to be wriggling out of criminal charges for murder. How on Earth can you get out of your car, stalk an innocent teenager through a dark subdivision, shoot the unarmed kid through the heart…and claim it was all the kid’s fault? Even if Trayvon had turned around and confronted Zimmerman, or even knocked him down or whatever, why wasn’t it Trayvon who was acting in self-defense? Surely it is not self-defense when you create the very circumstances that require defense in the first place. Can a burglar claim self-defense after breaking into a house, getting caught, feeling threatened, and then killing the home owner?
Let’s just say that we don’t get it.
So, I read that Alec Baldwin succumbed to one of his deranged fits of temper and called someone a “toxic little queen,” along with a few other antigay epithets. We have all been urged to tear up our Capital One cards to teach the man a lesson. I think he apologized to the GLBT community but quite frankly, I have not done a great deal of research on this incident. As such, I cannot recommend a course of action.
Now here’s something. I just read an article in USA Today that tells me there are some gay men and lesbians who might not get married, even if and when they have the opportunity. So say the “experts” consulted for this piece, who also note that many straight people do not marry for a variety of similar reasons.
Don’t you hate contrived topics? What next? Some animal lovers don’t have pets? Some children don’t like ice cream? I particularly object to the stories that single out the one gay person in America who actually opposes same-sex marriage because he or she is unhinged in some way, and deliver a profile under a headline like: “Gay Community Divided on Marriage Rights.”
Hey. Check out the cool youtube video called something like “All American Boy,” a musical vignette about a guy who falls in love one night at a party around a campfire. It’s become an instant hit. It’s like a novel in five minutes.
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Watching Paint Dry
Where else can our banter take us? Mel went to buy paint by the way, so I figure I have to drag out the end of this column for another three hours or so. There have been some antigay attacks in Macedonia, so be forewarned if you’re headed to the Balkan Peninsula.
Here’s a perfect topic. Let’s analyze this letter to a conservative advice columnist in the Washington Times: The letter writer’s daughter goes to a Christian school where one of her classmates told everyone he was gay. The kids didn’t seem to care! “How can we help our kids to understand the principle of ‘loving the sinner but hating the sin?’” asks the parent, “when their gay friends--- who are terrific, loving and even faithful people--- seem perfectly normal and acceptable?”
I had to check to make sure this wasn’t an Onion letter. In fact, the letter writer sounds exactly like the alter ego I developed for the Bay Times in the 1990s, Nan Parks. Nan was a fictional Marin County housewife who was oblivious to her many contradictions and prejudices. This is exactly the sort of dilemma that would confound her. According to the person who provides the advice, this situation is a teaching moment when the parent can explain just why sex should be reserved for an effort to procreate within a heterosexual marriage. That should go over well, particularly since the boy in question never said anything about sex to begin with.
And people wonder why the generations now reaching maturity or moving through young adulthood seem to support our cause? What’s a conservative parent to do when today’s gay and lesbian teens defy the stereotypes of the past by being terrific, loving, faithful and most importantly, confident of their human value?
The answers to this question, as reflected in the vague blandishments of the Times advisor, are now in short supply. Where once we could simply demonize the offending classmate, we must now resort to scriptural arcana and stern warnings about premarital sex. Good luck with that, Christian Mom and Dad!
The painter has returned with a three-pack of Ferrero Rochers for me and a jar of pickles for herself. Outside, the day is windless and the Texas heat has swelled to triple digits. A few miles away, our legislature is about to pass the anti-abortion bill that we killed two weeks ago before our despicable governor called another special session.
We Texas democrats can’t be anything but pleased by the news that Rick Perry will not run for yet another term, and indeed, many of us look forward to a Perry Presidential run, when we assume Perry will again make a fool of himself. The man is not very smart. But he is extremely self-important and has evidently convinced himself that his 2012 stumbles were an anomaly and that better preparation will lead to success. He is wrong and we look forward to watching him overreach once again.
Unfortunately, our conservative neighbors will most likely elevate Attorney General Greg Abbot to the governorship, which believe me, will do nothing to improve Texas politics. That said, we have a year and a half before the election, and miracles do happen.
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