Proposition 8; or the ins and outs of this, as I see them
First and foremost, I want to make it absolutely clear that I am very happy to hear of the outcome of the proposition 8 trial. I think that gay marriage is a civil right and people who want to take away this right with a vote are morally reprehensible themselves. As has been said by many before me; the rights of minorities are not to be voted on by the majority. What do you really think the outcome is going to be, after all? I am excited at how this is happening, and what is happening. Also, it's great that more people are looking at same sex marriage not as something that will come into being years from now, but something that can, with diligence, come into being in the near future. Without a mindset that full equality is a possibility within our lifetime, it's highly unlikely that it will move ahead. We, the Lesbian, Gay, Bisexual and Transgendered community, need to realize that we can't afford to assume this is the death knell for inequality.
Judge Walker raises great points in his carefully worded decision. It dashes some decades old ideas about the GLBT community right on the rocks. Walker found that there is no direct evidence provided to the court that children will be somehow harmed by children being raised by same sex couples. Most, if not all, studies provided by the plaintiffs is of married parents versus single parent families. He further shows how the law itself was based more on personal moral and/or religious prejudice than on actual facts. There are plaintiffs like Hak-Shing "William" Tam, the originator of a website used by other plaintiffs to get their message out, used heavily religious language on his site, but could only back up his cliams with information from sources so mysterious as "the internet." Walker does a great job of dissecting the irrational basis and reasoning behind this law. However, after reading over the decision by Judge Walker, there are a few nagging points in my mind.
I think the first and most prominent point for me is that people are ready to hang their hats on this as a call to eventually lead to the removal of the Defense of Marriage Act. Many in the news media have made mention of this as "the first time a federal court has ruled on same sex marriage," a point raised on both sides of the aisle. Although, if you will remember, Judge Walker was very careful to make sure that in this case, he was only ruling on Proposition 8 and not moving towards a larger judgment outside of that set scope. If you read in the opening statements, Judge Walker is very careful to answer that question. Mr. Olson is very careful to say it will have an effect, however they are not arguing against DOMA. " . . . one of the things that distinguishes what we have in California is something that was very similar to the situation in Romer vs. Colorado, where an existing constitutional right and a -- was taken away. . ."
Romer v. Colorado was discussing Amendment 2 which would have prevented any town, city, or county in the state from recognizing homosexuals as a protected class. By a 6-3 ruling, that was found to be in violation of the US constitution. The main reason, outlined by Justice Anthony Kennedy, did not align with the original reasoning of the previous courts who had also found it unconstitutional but instead found that it lacked rational basis in anything other than animus towards the "protected class."
But continuing on this line of logic that we have with Romer v. Colorado case, it becomes apparent that this ruling is specifically for the state. After this case, the supreme court did not decide that suddenly it was illegal to discriminate against the GLBT community. For example, in over thirty states an LGBT individual can be fired from their job based solely upon their sexual orientation and/or gender identity. Romer v. Colorado, much like the Perry v. Schwarzenegger, only invalidates proposition 8 for the state of California.
One must also observe the careful separations that Judge Walker makes in regards to California as opposed to the rest of the country. One of the arguments put forth by the plaintiffs is that it would be creating a new right. However, Judge Walker astutely points out that Gavin Newsom, Mayor of San Fransisco, had authorized clerks to give out marriage licenses to same-sex couples. The courts temporarily annulled these licenses, but after ruling in favor of same-sex marriages, these licenses were one again fully applicable. Due to this window where those marriage licenses are still currently legal, same-sex marriages exist, and therefore a right previously available is being taken away. The Defense was not asking for any new rights to be created.
Conversely, let us take my home state of Ohio as an example. This same defense could not be used. To my knowledge, there was never before a case of a same sex couple legally married in the state. When I say legally married in the state, that is to say that it was not a civil marriage. Since there is no precedent in the state of Ohio where there a same sex couple had a legal civil marriage, the Ohio same-sex marriage ban could not be argued on the same terms. This is the case with virtually every other state which carries a same-sex marriage ban.
The next step many people say for this case is the Supreme Court, but as near as I can tell, it will only end badly for us at this juncture. Most people I have spoken to say the Roberts court runs among the most conservative Supreme Courts in the history thereof. So it seems to be at best we could get a ruling that says that the law is unconstitutional in California, but does not apply to the rest of the country, as the case only pertained to proposition 8, not the DoMA, which is a separate case in itself. At worst, we could expect them to overturn the decision and possibly permanently enshrine hate into the California constitution. That ruling may also provide for other organizations to use that legal precedent to keep these laws on the books.
So although I have my fears, I think we should tentatively continue in the same direction we are, but with a focus on what's still ahead. There are numerous bills that are currently languishing in the halls of power that could definitely use some support. Representative Jerrold Nadler of New York is currently trying keep same sex inclusive immigration language in his immigration bill with the Uniting American Families Act. There is no doubt that this may be an easier sell than lock, stock, and barrel marriage. Civil Unions and Domestic Partnerships are not equal and in most, if not all, cases do not include all the same rights and responsibilities as marriage. They are a foothold though. An inclusive Employment Non-Discrimination Act is important to all members of the LGBT community. No one can get left behind. Don't Ask, Don't Tell is discriminatory and shown to be a failure all over the world. The most important thing we can do is keep pressure not only on our representatives in congress and not only on each other, but also on ourselves.
Judge Walker raises great points in his carefully worded decision. It dashes some decades old ideas about the GLBT community right on the rocks. Walker found that there is no direct evidence provided to the court that children will be somehow harmed by children being raised by same sex couples. Most, if not all, studies provided by the plaintiffs is of married parents versus single parent families. He further shows how the law itself was based more on personal moral and/or religious prejudice than on actual facts. There are plaintiffs like Hak-Shing "William" Tam, the originator of a website used by other plaintiffs to get their message out, used heavily religious language on his site, but could only back up his cliams with information from sources so mysterious as "the internet." Walker does a great job of dissecting the irrational basis and reasoning behind this law. However, after reading over the decision by Judge Walker, there are a few nagging points in my mind.
I think the first and most prominent point for me is that people are ready to hang their hats on this as a call to eventually lead to the removal of the Defense of Marriage Act. Many in the news media have made mention of this as "the first time a federal court has ruled on same sex marriage," a point raised on both sides of the aisle. Although, if you will remember, Judge Walker was very careful to make sure that in this case, he was only ruling on Proposition 8 and not moving towards a larger judgment outside of that set scope. If you read in the opening statements, Judge Walker is very careful to answer that question. Mr. Olson is very careful to say it will have an effect, however they are not arguing against DOMA. " . . . one of the things that distinguishes what we have in California is something that was very similar to the situation in Romer vs. Colorado, where an existing constitutional right and a -- was taken away. . ."
Romer v. Colorado was discussing Amendment 2 which would have prevented any town, city, or county in the state from recognizing homosexuals as a protected class. By a 6-3 ruling, that was found to be in violation of the US constitution. The main reason, outlined by Justice Anthony Kennedy, did not align with the original reasoning of the previous courts who had also found it unconstitutional but instead found that it lacked rational basis in anything other than animus towards the "protected class."
But continuing on this line of logic that we have with Romer v. Colorado case, it becomes apparent that this ruling is specifically for the state. After this case, the supreme court did not decide that suddenly it was illegal to discriminate against the GLBT community. For example, in over thirty states an LGBT individual can be fired from their job based solely upon their sexual orientation and/or gender identity. Romer v. Colorado, much like the Perry v. Schwarzenegger, only invalidates proposition 8 for the state of California.
One must also observe the careful separations that Judge Walker makes in regards to California as opposed to the rest of the country. One of the arguments put forth by the plaintiffs is that it would be creating a new right. However, Judge Walker astutely points out that Gavin Newsom, Mayor of San Fransisco, had authorized clerks to give out marriage licenses to same-sex couples. The courts temporarily annulled these licenses, but after ruling in favor of same-sex marriages, these licenses were one again fully applicable. Due to this window where those marriage licenses are still currently legal, same-sex marriages exist, and therefore a right previously available is being taken away. The Defense was not asking for any new rights to be created.
Conversely, let us take my home state of Ohio as an example. This same defense could not be used. To my knowledge, there was never before a case of a same sex couple legally married in the state. When I say legally married in the state, that is to say that it was not a civil marriage. Since there is no precedent in the state of Ohio where there a same sex couple had a legal civil marriage, the Ohio same-sex marriage ban could not be argued on the same terms. This is the case with virtually every other state which carries a same-sex marriage ban.
The next step many people say for this case is the Supreme Court, but as near as I can tell, it will only end badly for us at this juncture. Most people I have spoken to say the Roberts court runs among the most conservative Supreme Courts in the history thereof. So it seems to be at best we could get a ruling that says that the law is unconstitutional in California, but does not apply to the rest of the country, as the case only pertained to proposition 8, not the DoMA, which is a separate case in itself. At worst, we could expect them to overturn the decision and possibly permanently enshrine hate into the California constitution. That ruling may also provide for other organizations to use that legal precedent to keep these laws on the books.
So although I have my fears, I think we should tentatively continue in the same direction we are, but with a focus on what's still ahead. There are numerous bills that are currently languishing in the halls of power that could definitely use some support. Representative Jerrold Nadler of New York is currently trying keep same sex inclusive immigration language in his immigration bill with the Uniting American Families Act. There is no doubt that this may be an easier sell than lock, stock, and barrel marriage. Civil Unions and Domestic Partnerships are not equal and in most, if not all, cases do not include all the same rights and responsibilities as marriage. They are a foothold though. An inclusive Employment Non-Discrimination Act is important to all members of the LGBT community. No one can get left behind. Don't Ask, Don't Tell is discriminatory and shown to be a failure all over the world. The most important thing we can do is keep pressure not only on our representatives in congress and not only on each other, but also on ourselves.