Excessive optimism

As I mentioned yesterday, my hope is that the U.S. Supreme Court will rule some time this summer that all state laws prohibiting civil marriage between consenting adults of the same sex are unconstitutional because they deprive certain citizens of equal protection under the law (the Fourteenth Amendment).

It seems so obvious and simple to me that this is what needs to be done because California’s Proposition 8 and the federal Defense of Marriage Act (DOMA) are so clearly discriminatory against a certain group of people on no legally defensible grounds. But apparently that view is both naïve and excessively optimistic at this time.

A friend of mine who is well-versed on the matter pointed out to me that although the Court may, someday (say, 20 or 30—or more—years from now) find DOMA and Prop 8 and other laws like them to be unconstitutional, they are not going to do so now because the tide of public opinion on same-sex marriage, while it may be running from one pole to the other more swiftly on this issue than any other in recent memory, has not yet reached the tipping point at which the court must affirm the will of the people.

My feeling is, if these laws will be deemed unconstitutional at some point in the future, why wait for public opinion to provide the push? Why not get ahead of it and do the right thing for the right reasons—not just for the sake of the law, but for the sake of all the human beings in this country who are being hurt every single day by the bad laws now in place? Why should same-sex couples in blue states be able to enjoy the benefits of marriage while those in the red states remain second-class citizens? Is this one nation, indivisible, with liberty and justice for all, or not?

The answers to these questions are, like everything involving human sexuality, complicated.

Jonathan Rauch gives a good explanation of the legal issues and likely outcomes in an article called Gay Marriage Hits the Supreme Court for the Brookings Institution. As simple as the issue seems to me (i.e., discrimination on the basis of sexual orientation is both wrong and unlawful), to the Court, the issue is anything but simple. And the most likely outcome, according to people with far more knowledge of the case and the law than I have, is that nothing much will come of this in terms of sweeping change to federal laws, state laws or society in general.

Some people say the Supreme Court justices are cowards for not tackling this issue head-on once and for all while they have the chance. My well-informed friend calls the Court “a political body of people with lifetime appointments and axes to grind” that has swung so far to the right in recent years that it is unlikely to take any action on this issue before at least a few of the hardest-right members are replaced with people of a slightly more liberal frame of mind. That could be a long, long time from now.

I remain stubbornly optimistic on this one, though. As Winston Churchill once said, “Americans can always be counted on to do the right thing … after they have exhausted all other possibilities.” If not this year, perhaps next year.




Seeing red

The U.S. Supreme Court is hearing arguments this week in a case that challenges California’s ban on same-sex marriage, Proposition 8. I am not familiar enough with all the legal ins and outs to say what the outcome might be—whether they’ll decide that all 50 states must allow same-sex (or equal) marriage, or that all 50 states can decide for themselves whether to allow it, or what.

My hope is that the court delivers a unanimous ruling similar to the one they made in Loving v. Virginia, a 1967 case in which they struck down all state laws banning interracial marriage. To me, it’s exactly the same issue: Only one definition of marriage should exist in this country that applies equally to all citizens, and individual states should not be allowed to decide which consenting adults can and cannot marry based on nothing more than bigotry and prejudice.

The arguments against what used to be called miscegenation were all the same as those against equal marriage: God never intended it and does not approve, it’s bad for the children, it will lead to the downfall of civilization as we know it. All bullfeathers of the purest ray serene, and everybody knows that … now. I hope that someday soon the vast majority of Americas will regard same-sex marriage with exactly the degree of indifference with which they now regard interracial marriage.

The Human Rights Campaign (HRC) is encouraging people who support equal marriage to change their Facebook and Twitter profile pictures to the symbol for equal marriage, which (naturally) is an “equals” sign:

equal-marriage1        equal-marriage2

The one on the left is the original version; the one on the right is the one the HRC is promoting for use this week. The red symbolizes love, which is what marriage equality is really all about.

I’ve been seeing a lot of red today as my Facebook friends and their friends have changed their profile pictures to the red symbol. I’m pleased and proud to see so many different people willing to publicly support equal rights for all citizens. This is a civil rights issue and a legal matter, not a religious or moral matter. Ensuring equal rights for everyone takes away no rights from anyone. If you’re opposed to same-sex marriage, don’t have one.

The We Do campaign organizes actions across the Southern United States in which same-sex couples are filmed going to their local courthouses and “requesting—and being denied—marriage licenses in order to call for full equality under federal law and to resist unjust state laws. WE DO actions make the impact of discriminatory laws visible to the general public and illustrate what it looks like when LGBT [lesbian, gay, bisexual, transgendered] people are treated as second-class citizens under the law.”

There are several videos of these actions available. The one below brought me to tears when an older lady plaintively asks the very young clerk, “Can you tell us what steps we might take to become full and equal citizens under the law before we die? Can you help us with that?”

That’s all that we’re asking for: full and equal citizenship under the law. I am very hopeful that this battle will be won before I die.

Oh, and by the way, I thought the red symbol was nice but not quite fabulous enough for my taste, so I am using this one instead:


Related: Standing up for family values