You thought last week was depressing. Or at least I did. Well, welcome to this week. This week makes last week look like Christmas, New Years and the fucking Fourth of July all wrapped into one.
Iâ€™m on vacation for Godâ€™s sake, and Iâ€™m still bluer than a Democrat in November. I donâ€™t even want to write about the soul-destroying collection of opinions out of Washingtonâ€™s Supreme Court this morning. But I must, because this column is due in about three hours and I must do something about that deadline.
This professional dedication persists despite the fact that I am now sitting in a seafood restaurant in Tappahannock, Virginia, eating lump crabmeat, fresh corn and turnip greens on my way to DC with my beloved girlfriend who has spent hours patiently putting up with my foul mood.
Tappahannock, by the way, is older than Richmond, Fredericksburg, and even Williamsburg (my menu informs me). Captain John Smith landed here in 1608 but was run off by local Indians and went back to his ship, the coward.
I dislike everyone today. John Smith. Several men and women in black up in Olympia. The people who set up the wireless access which doesnâ€™t work at this restaurant. The Microsoft programmers who have imported the grammar police into my laptop and are underlining half my prose in green in a distracting slap on the wrist. Damn them all!
What a miserable month for our side. We lose marriage in New York. We lose our most important federal case at the appellate level before the Eighth Circuit. And now this. A 5-4 defeat at the hands of the mixed bag of justices who make up the collectively sluggish Washington Supreme Court.
We waited 16 months for this!
The hard part of course is that we thought we would win Washington. No one had that kind of confidence about New York. Likewise, the three-judge panel that heard our challenge to Nebraskaâ€™s anti-gay constitutional amendment at the Eighth Circuit was notoriously conservative. Plus, we can appeal that ruling to the full court of the Eighth Circuit. My attitude last week was â€śJust wait until Washington and New Jersey rule. Then weâ€™ll see who has the last laugh! (Witch of the West-like cackle)â€ť
I suppose I have to describe the gory details of the six separate opinions that the Washington court laboriously produced for our reading pleasure. Only two of them were bad, but unfortunately there were five justices associated with those two; three signed on to the plurality opinion, and two others put their names on an even worse diatribe that employed the insulting technique of referring to same-sex â€śmarriageâ€ť in quotes.
On the other side, four justices combined for three dissents, two of them on the long side and one making a brief technical point about the state constitutionâ€™s Privileges and Immunities Clause that I wonâ€™t get into.
The sixth opinion was a short little thing that reminded the legislature they still had the power to legalize marriage or civil union for gay couples. Well, thanks for that consolation, Mr. Chief Justice!
I canâ€™t say that Iâ€™ve read every word as closely as I should have. I had to fight through a combination of despair and anger to read the plurality. And reading the dissents was an exercise in wistful futility.
We have just left the restaurant and are now winding our way up a beautiful two-lane route in a state that I canâ€™t help reminding myself has some of the most draconian anti-gay statutes in the country on its law books. Itâ€™s funny. Iâ€™ve been covering gay legal and political news for well over a decade now. But Iâ€™ve never felt such personal injury until recently. Today was a real punch in the gut. Right now, I am aware of Virginiaâ€™s so-called â€śpublic policyâ€ť just driving through the state, and I feel intangibly harassed.
Evan Wolfson (you know who he is, right?) used to remark that we were getting a backlash before we had even â€ślashed.â€ť That was in the mid-1990s when Congress passed the Defense of Marriage Act and states started passing anti-gay statutes. Well, we lashedâ€”with back-to-back wins before the United States Supreme Court banning sodomy and the Massachusetts Supreme Judicial Court legalizing same-sex marriage in that state. And now weeâ€™re getting a second backlash that makes the 1990s look like Christmas, New Years and the Fourth of July.
The plurality opinion was pretty much a replay of the cautious jurists weâ€™ve seen rejecting our bid for equality in the past. First, they carefully establish that the question of marriage rights does not deserve heightened scrutiny from the court. In order to achieve this threshold disqualification for equal rights (because thatâ€™s basically what it is) such courts have to reach two dubious conclusions.
For one thing, they must show that gays and lesbians are not a suspect class like racial minorities or women or foreigners. In this case, the plurality insisted that gays fail two tests of what constitutes a suspect class. Being gay is not an immutable characteristic, wrote the female justice whose name is in the back seat of the car (although not only is that assertion eminently assailable, but having an immutable characteristic is not grounds for belonging to a suspect class in the first place). Also, wrote Barbara Madsen (Iâ€™ll check it later), gays do not lack political power. (This assertion was ridiculed by the dissenters.)
Next, marriage judges like Madsen must dispute the idea that gays are being deprived of a fundamental right by being denied the ability to marry. Since marriage is indeed and indubitably a â€śfundamental rightâ€ť under US constitutional law, this is a tough job. Itâ€™s a job forâ€¦. Circular Reasoning Man! Or in this case, Circular Reasoning Woman, who defined the fundamental right at stake as the â€śright to marry a partner of the same sex.â€ť
Unlike the tried and true â€śright to marry,â€ť the newfangled â€śright to marry a same-sex partnerâ€ť is not deeply rooted in our nationâ€™s history and tradition or whatever the legal dicta required requires. Presto, no fundamental right at stake and therefore, no heightened scrutiny required.
Iâ€™ve described that song and dance from other judges so oftenâ€”and so recentlyâ€”that Iâ€™m getting distressed. Itâ€™s so obviously contrived and circular and half assed and illegitimate that it makes you want to scream. Letâ€™s scream.
Where are we? Twenty miles out of Fredericksburg is the answer. And we just stopped to pick up some illegal adult beverages for the road. Hey. Iâ€™m in violation of Virginia law just by existing, so I might as well have a fucking Bud Light. I gather our plan for the immediate future is to steal corn from a field while I continue to write. Fine with me. The more criminal damage we can do to Virginia, the better. Too bad weâ€™re not in Spokane.
Oh, I must tell you. The former mayor of Spokane, putative pedophile Jim West, died from the after-affects of cancer surgery this week. He was in his fifties, I think. I donâ€™t have any of my news notes on me right now. Theyâ€™re in the back seat with the court opinions in a big pile thatâ€™s blowing all over the place. To hell with notes. I donâ€™t need no goddamn notes. (Did I tell you I had two glasses of wine at the restaurant back there?)
Speaking of wine and notes and the potential for editorial error, last week I made two uncharacteristic mistakes in my haste to rush off on vacation. I called Connecticut the Keystone State, when itâ€™s actually the Constitution State. Pennsylvania is Keystone. And I also said Ralph Reed was running for Alabama Attorney General, when he was of course running for Lt. Governor. He lost. Loser. Hah! There was one good thing to come out of the news last week.
I think Alabama also elected an out lesbian to the state legislature, although I canâ€™t recall her name or office off the top of my head. Maybe Iâ€™ll look it up when we stop for the corn heist.
In other news out of the short term memory bank, Julie Goodridge and her partner broke up after many years, and you know who they are right? The lead plaintiffs in the Massachusetts marriage case and the poster girls for lesbian coupledom. Well, look. No one claimed gay couples were any better at marriage than straight couples. We just want the chance to be as bad as everyone else. Plus, you know when you need marriage rights most? Itâ€™s when the marriage is over.
We just drove into a cornfield, but the owners were right there so we had to pretend to be using the farm driveway as a turnaround. Onward. Now we have inexplicably swerved off the main road onto a mystery lane. This, less than an hour before weâ€™re supposed to be having dinner with my cousin in downtown Washington.
I have been informed that the detour is, again, in search of corn. But I have been obliged to put my foot down and send us back on track for our dinner date. Good thing I was paying attention or else weâ€™d be halfway to nowheresville by now.
I havenâ€™t finished my â€ścoverageâ€ť of the Washington rulings yet. Madsen and her two cohorts in calumny finished us off by applying the low level â€śrational basis testâ€ť to evaluate the stateâ€™s ban on same-sex marriage. This test requires that the state show that a law has a rational relationship to a legitimate state interest. Madsen accepted the stateâ€™s interest in funneling procreative couples into a stable institution as a legitimate interest, also giving the nod to the idea that kids grow up best in a home with a mom and dad.
As for the rational relationship between excluding gays from marriage and helping heterosexual families pursue the aforementioned goals, she just ignored that crucial connection much like all the other judges of her ilk. Oh, you know what? It was just more of the same. Iâ€™ve read this opinion over and over again. Not this one, but others like it. And letâ€™s not even talk about the other anti-gay concurring opinion, whose authors obviously felt that Madsen didnâ€™t go far enough in her assault on same-sex couples.
I told you they referred to gay â€śmarriage.â€ť Thatâ€™s all you need to know right there.
The dissents were just lovely. Useless, but finely written, stirring defenses of equal rights. Normally, Iâ€™d find time and space to praise the justices who stood up for the law and the gay community, but Iâ€™m too drained by the whole business.
Look, my dear readers. Itâ€™s late. Iâ€™m finishing dinner with my cousin. Iâ€™m tired. Iâ€™m on vacation, Letâ€™s call it a week. Or better yet, letâ€™s call it a month and start over in August. Bottom line: July 2006 sucked for gay rights, although I had quite a nice month myself.