GLBT Week in Review, December 17, 2012
BY ANN ROSTOW
Standing Down
When I first heard that the Supreme Court had
accepted the Prop 8 case I felt sick to my stomach. It was probably just as
well that I was not operating under a deadline, because I would not have been
able to temper my deep dismay.
I mean, really. Can you think of a good reason for
the Court to accept review of Prop 8? And by “good,” I mean “good for us.”
Indeed, the only “good” reason would be if five members of the Court clearly
wanted to rule that marriage equality is a constitutional right, legalizing
marriage for all gay couples next summer. And how likely is that?
Sorry, folks. It’s not likely. Projecting the
motives of the justices is a fool’s game, but of this, we’re confident: The Court
has no interest in preempting debate on marriage equality and forcing some 40
states to change their statutes and/or their constitutions. This is just a
fact. (Keep in mind that if the Court wanted merely to keep the Prop 8 ruling
limited to California, they could have denied review and allowed California
marriage to be re-legalized.)
But wait! Once the details of the Court’s
announcement emerged, another plausible interpretation arose. In addition to
reviewing the core question of whether a state has the right to define marriage
at our expense, the justices raised the issue of whether the Prop 8 proponents
have standing to appeal their case in federal court. Perhaps you recall that
procedural question, which delayed the Ninth Circuit for over a year.
Under federal law, the courts have jurisdiction over
actual controversies, not over hypothetical questions. Further, the parties to
a federal suit must have suffered (or imposed) actual harm. They can’t simply
have a philosophical beef.
In the Prop 8 case, the Ninth Circuit panel ran
aground on this problem. The original lawsuit was filed against the State of
California. As you may remember, the State refused to defend the proposition,
leaving the job to the embattled Prop 8 campaigners. That was all well and good
until the Prop 8 side lost their case in Judge Walker’s San Francisco
courtroom. It was one thing for the Prop 8 proponents to defend in trial court.
But did they have standing under federal law to appeal their loss to the higher
courts?
What “harm” would befall them if marriage was
re-legalized in the Golden State? Hurt feelings don’t count.
Oddly, because this never really made sense to me at
the time, the Ninth Circuit then asked the California Supreme Court to weigh in
on the question of standing under state law. The California justices raised a
key issue. It’s not fair to voters if a partisan state government can overturn
a plebiscite victory it dislikes simply by refusing to defend it in a court
case. Ergo, the measure’s proponents should have standing to pursue a defense.
For whatever reason, the Ninth Circuit panel accepted this reasoning and went
forward with the Prop 8 appeal.
But why? Prop 8 was a federal case and California’s
top court cannot articulate federal law. Meanwhile, the Supreme Court had been
vague on this question. At the time, GLBT news bloggers had been busy poring
over tedious articles on federal standing under Article III. But when the Ninth
Circuit restarted the case, we happily abandoned that task. Who cares about
federal procedure! If the Ninth Circuit doesn’t give a damn, why should we?
When I say the High Court had been “vague,” it’s
because the justices had never directly addressed the issue of standing in this
context. However, they came close. In a case involving an Arizona English
language-only ballot measure, the state had refused to defend the challenged
proposition and the measure’s proponents had been allowed to take up the
defense. Sound familiar? Although the case was dealt with on other grounds
(journalist lingo for “I forget what actually happened”), Justice Ginsburg
mentioned in a footnote that she had “grave doubts” about whether the ballot
measure proponents had standing under Article III to bring an appeal.
So, in an era of proliferating ballot measures, is
it not possible that the High Court intends to issue a definitive ruling on
standing in this type of situation? I came to this conclusion even before famed
SCOTUS analyst Linda Greenhouse wrote a great article on the several questions
of standing now pending in our gay cases.
--
Whither BLAG?
In her article, which you really must look up,
Greenhouse also highlighted the equally interesting standing issues surrounding
the Windsor case. First, does the government have standing to appeal the
Windsor ruling, given that the Justice Department argued against the Defense of
Marriage Act and so technically they won the case?
In fact, this seems like an easy call. Although the
Obama administration “won,” in the sense that the U.S. Court of Appeals for the
Second Circuit struck the Defense of Marriage Act, the government is still in a
bind. Unless, or until, DOMA is struck down for good, the government is bound
to uphold the law. In the Windsor case, for example, the IRS is still banking
over $300,000 of Edie Windsor’s tax payments on her wife’s estate, even though
a straight spouse would have been exempt. Surely the government has standing to
call for a definitive ruling on this law.
More interestingly, the High Court will examine
whether or not the House “bipartisan” legal advisory group (BLAG) is qualified
to defend DOMA under Article III. Keep in mind that BLAG is nothing more than a
five-member ad hoc committee, composed of three Republicans and two Democrats.
Bipartisan in name only, this obnoxious little group was quickly established
after the Obama administration decided that DOMA did not pass muster under
heightened legal scrutiny.
Ever since that policy shift in February, 2011, the
BLAG has run around allocating money for a legal gay bashing that has never
come up for a House vote. Don’t get me wrong, the House Republican majority
would probably vote to fund the DOMA defense if forced to do so in a floor vote.
But it would be another blot on the GOP brand, to borrow the recent meme.
The High Court has also appointed an independent
advocate to brief the questions of standing in the Windsor case. I’m guessing
the administration will be given the thumbs up, but who knows what will happen
to BLAG? If the High Court strikes DOMA, as we all hope and pray it will,
BLAG’s authority will be moot. That said, there may be other federal gay cases
without an antigay champion in the future. If BLAG is compromised, it will be
interesting to see who or what fills their ugly shoes.
--
Morality Plays
Now, let me come to the defense of Justice Scalia,
who has been roundly condemned for asking an audience of Princeton students why
we can’t have laws against homosexuality given that we have laws against
murder.
Woah Nelly! You should have heard the hysterics
coming from our side, who quickly accused the conservative lawman of comparing
gays to murderers.
Please, guys. Scalia was making a simple legal
point, and it’s arguably at the core of our political and legal fight for civil
rights. To wit: is there a legitimate moral argument against homosexual
behavior, and by extension, to gay civil rights?
I know, I know. Of course we know the answer’s no.
But that doesn’t mean that the question is settled.
I’m old enough to remember the early days of the gay
rights movement, back in the late 70s, early 80s. It was only a decade after
Stonewall, and AIDS had yet to devastate our brothers in arms. Gay rights back
then was conflated with a general right to be free of moral disapproval. It was
strange. We seemed unable to simply say that there’s nothing wrong with being
gay. Instead, we had to fight any and all limits to personal sexual freedom.
Well, not all of us. I remember parading in New York
City, when all the women, or at least most of us, split from the main group to
protest NAMBLA. Remember them? They were pedophiles, for God’s sake! Yet they
had their own pride parade group!
You can fight for gay rights without dragging along
pedophiles, necrophiles or other freaky friends. I can support equality and
still believe that someone convicted of bestiality might be legitimately fired
or denied a public teaching job. We can and do make moral judgments in society
and some of them can be enforced by law. No nudity in the middle of Main Street
at noon. Fine by me. Even on Castro Street.
There are those, Scalia among them, who put
homosexuality on a list that includes all sorts of bothersome proclivities.
They cannot separate the sexual orientation from the act. Some believe any gay
act is immoral, even marital sex. Others equate gayness with a host of negative
behaviors from promiscuity to child abuse.
We may never convince those in the first category
that gay equality is a civil right. But the others are beginning to realize
that sexual orientation is neutral. Straight people can be pedophiles and gay
people can have decades-long monogamous relationships. Sexual orientation is
irrelevant. It is not a behavior. It is a status. Justice Scalia is barking up
the wrong tree, not by comparing us to murderers (which he didn’t actually do)
but by persisting in the notion that homosexuality is a moral issue.
Not to mention that we criminalize murderers and
thieves, not because they’re “immoral,” but because they are a direct threat to
life and property. Indeed, the reason that the High Court has ruled that
morality alone may not justify a discriminatory law is because our moral laws
are invariably based on legitimate public interests that go beyond simple
judgments of good or bad.
--
Scrutinize This
Finally, would you like to know my greatest fear?
It’s this:
I’m afraid the Court will issue a wishy-washy
opinion on the most important legal issue that they face. This, of course, is
the question of whether sexual orientation discrimination should be evaluated
under heightened legal scrutiny, like race, religion or gender.
It’s possible that the Court could duck, ruling for
example that since DOMA fails the easiest type of legal analysis there is no
need to tackle the thornier question of which type of analysis should generally
apply. This was how they handled equal protection in Romer v Evans, for
example.
But it’s also likely that the justices won’t be able
to escape so easily. The Second Circuit decision in Windsor argues for
heightened scrutiny. So does the Obama administration. So does the trial court
in Prop 8.
The arguments in favor of heightened scrutiny are
powerful. The criteria, to be brief, is that high scrutiny should be leveled at
a law that targets a distinct class of people who have suffered discrimination
for a characteristic that has no bearing on their ability to contribute to
society.
Although courts also take into account whether the
class lacks political power or whether the characteristic is immutable, these
factors are not binding on the definition. Religion, after all, is not
immutable. And one can argue that women and other minorities do not lack a
certain level of political power.
But if it seems obvious, there’s a reason that the
High Court might hesitate to weigh in. A clear call for heightened scrutiny
from the justices would profoundly shift the legal balance of power in favor of
gay and lesbian plaintiffs in every future discrimination lawsuit. As a matter
of fact, it would be just as powerful as legalizing marriage equality for the
nation.
Let’s imagine that the Court strikes DOMA using
heightened scrutiny, but rules that the Prop 8 proponents lack standing to
appeal. That would leave us in limbo until another marriage rights case reaches
the High Court, perhaps the two federal cases now heading to the Ninth Circuit from
Hawaii and Nevada (which are being consolidated). Once those cases reached the
Supreme Court, the table would be set for a national victory, a Brown v Board
showdown for marriage equality.
Did I mention that predicting the Supreme Court is a
fool’s game?
--
arostow@aol.com
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