Not only did we win, but we won big. You may have thought the California Supreme Courtâ€™s ruling was about same-sex marriage, but it wasnâ€™t. It answered a more profound question, namely: is there a gay exception to the constitution? Put another way, are you and I gay and lesbian individuals who are routinely damaged by state-sponsored bias? Or are we regular individuals who happen to have aberrant sexual habits that do not merit any more than minimal constitutional protection?
Other courts have ruled on marriage, pro or con, without stating for the record that core constitutional precepts apply to us. Even Massachusetts skirted the underlying issue. But this court started off by explaining that gays and lesbians are worthy of constitutional respect and the majority proceeded from that premise to the obvious and glorious result.
As always when we win something, I enjoyed reading the sputtering outrage from our adversaries on the Christian right, raving and ranting like drunk European soccer fans after a loss. But I have not enjoyed all of the commentary. And as a matter of fact, Iâ€™ve found a couple of comments from our friends in the middle of the road downright annoying.
First of all, I am tired of the notion, advanced by some pundits, that the GLBT community showed a lack of political acumen by allowing the hot button issue of same-sex marriage to come before the court in an election year. I canâ€™t even recall exactly where I read this, but the idea that our community can pursue our legal battles with exquisite timing, guaranteeing that gay rights rulings appear only in the first half of odd-number years, is beyond ludicrous. We heard the same thing in 2004, as if the 13 anti-marriage initiatives that arrived on state ballots that year were a direct result of our naĂŻve carelessness in filing suit against Massachusetts four years earlier (whenever).
Second, I am annoyed by the absurd view that the high courtâ€™s ruling undermines the development of civil union-type rights in other states, by effectively â€śpunishingâ€ť California for instituting its broad domestic partner system. According to this analysis, the California court took a hard look at the â€śseparate but equalâ€ť partnership status, and determined that since California clearly recognized that same-sex couples deserved equal treatment, the state had no excuse for stopping short of marriage. Ergo, say these pundits, other states will now be less likely to offer quasi-equal treatment for fear that their courts will make the same fanciful leap of legal logic.
â€śSomething is wrong with this picture,â€ť writes Benjamin Wittes of the Brookings Institution in an example of this lumbering train of thought. â€śFor having the guts to move forward while other states were passing nasty constitutional amendments depriving gays of any marital benefits, Californians stand condemned in their own courts for discrimination and in their own newspapers for bigotry.â€ť
But the courtâ€™s reasoning was more complex. The majority did not jump pell mell into a condemnation of domestic partnerships. They first decided, as a threshold issue, that the well-established â€śfundamentalâ€ť right to marry applied to same-sex couples. Denial of a fundamental right requires the state to submit a â€ścompellingâ€ť interest to justify the constitutional affront, in this case the stateâ€™s decision to relegate gay couples to a lesser-known institution and deny them the use of the term â€śmarriage.â€ť The state could not meet that high bar.
Could this happen in other states where civil unions or domestic partnerships offer rights to gay unions? Sure it could. But it wouldnâ€™t matter. Any high court that recognizes that the â€śfundamental right to marryâ€ť applies to gays and lesbians is going to strike marriage restrictions, period. It would not matter if that state offered free ice cream and cake to same-sex couples or branded them with hot irons. The initial decision defining the scope of the fundamental right to marry will dictate the rest of the courtâ€™s ruling.
Nor was that initial decision unheard of. Yes, this was the first state supreme court to recognize that the fundamental right in question is not â€śthe fundamental right to marry a member of the opposite sex,â€ť but is simply the unadorned â€śright to marryâ€ť protecting all couples, gay and straight. But other courts have also come to that conclusion, including the lower court in California in this case, two lower courts in Washington, a court of appeals in New York, and several others that elude my short-term memory for the moment. This conclusion, with its elegance and natural rightness, will gain steam with this latest ruling. It is neither unorthodox or strained. On the contrary, a ruling to the contrary obliges courts to twist themselves into pretzels, or in the case of the Massachusetts Supreme Judicial Court, simply sidestep the issue altogether.
Third, I am most irritated by those who critique the courtâ€™s boldest move, the determination that sexual orientation can be considered a â€śsuspect class,â€ť which again requires the state to prove a compelling interest in any law or policy that deprives the class of equal protection.
Laws that burden a suspect class like race or national origin or religion or gender, are treated with suspicion, just like the name suggests. Courts raise an eyebrow, wondering if it might be possible that the law in question or the conduct of the employer had more to do with racism or sexism than with a general policy. The defenders of such actions, in turn, have a high legal burden and must prove that no unacceptable bias motivated their behavior.
Naturally, sexual orientation has not been considered a suspect class, because itâ€™s been too dicey. Imagine if every law or public decision that targeted gay men and lesbians were subjected to strict legal scrutiny. It would be a disaster for homophobes throughout the nation. Yet arguably, sexual orientation meets the formal criteria for this kind of heightened legal review. It doesnâ€™t affect how you do your job or who you are as a citizen. The group is historically a focus of discrimination. And gay men and women lack political power. (See the lack of any federal gay rights legislation.)
Additionally, thereâ€™s a strong case to be made that gayness is innate, although that feature is not necessary to the definition. Religion is not innate, but it is a protected category. Plus, innate or not, one should not be required to change or hide oneâ€™s sexual orientation or religion in order to avoid institutionalized harm. (See Donâ€™t Ask Donâ€™t Tell.)
At any rate, the California majority went ahead and ruled that sexual orientation was indeed a suspect category. The state was already faced with heightened scrutiny due to the aforementioned ruling on fundamental rights, a due process claim. And once again California failed the test on the equal protection claim. But the impact of the pre-determination will have an effect on every gay rights case that comes before the California Supreme Court in the future. It may also embolden other courts, which have avoided a similar conclusion by noting that no court has ever recognized gays and lesbians as protected classes. (Not counting an Oregon appellate court in the late 1990s.)
So did the court â€śoverstep its boundsâ€ť in this matter? Hardly. The question of suspect status is one of the most critical issues in the legal fight for gay rights and has been briefed and argued for years by our legal allies. Someone had to go first, and the courtâ€™s decision was based on solid jurisprudence.
Show Down Time
The ruling was nothing short of a tour de force. And yes, I know that we now face the mother of all gay rights campaigns as we fight to defeat the proposed amendment that would smother the ruling in its infancy. Which brings up another issue altogether.
How are we going to wage this campaign? Are we going to fall back on the poll-driven, cowardly, ineffective and deceptive strategies that have led to huge defeats in marriage campaigns throughout the country? Oh, I know we won Arizona by a point. And that was great. But historically, the gay communityâ€™s political experts have led us down a twisted path of avoiding the controversy of same-sex marriage and arguing instead that this or that ballot measure will â€śdiscriminateâ€ť against us, or prevent happy couples from visiting each other in the hospital.
Such claims are either nonsense or beside the point. Yes, of course a marriage amendment will â€śdiscriminateâ€ť against gay men and lesbians. It will also prevent same-sex couples from continuing to get married. It will abort the freedom to marry and roll back our hard fought victory, sending us back into the dark ages of domestic partnerships. Dark, after all, is a comparative term. And they do seem like dark ages in the searing light of this incredible decision.
The only way to win this election is to campaign for the continued freedom to marry, using all the genuine and heartfelt arguments that we can muster. The only way to win is to appeal to the goodness and fairness of the California voters, not to treat them like fools. This is an all or nothing battle. If we fight courageously for the right to marriage and lose, we would have lost anyway. What? You think the voters are not going to notice that the right to marry is at stake here? If we fight for some vague principle of equality and lose, we will have defeated ourselves.
Hell, I have no reason to think that our leaders in California are planning to run on fear tactics or looking to avoid the subject of marriage. I only know the dismal history of past elections, including the failed effort during the Prop 22 vote. I havenâ€™t seen or read any campaign strategy, Iâ€™m just worried about it, thatâ€™s all.
(Update: I feel better. A trusted and highly placed friend has confidence.)
Revise & Conquer
Speaking of strategy, I just read a ruling out of an Oregon appellate court, upholding the 2004 amendment that derailed marriage rights in the Beaver State. Our allies at Basic Rights Oregon had argued that the amendment was not an â€śamendmentâ€ť per se, but actually a â€śrevisionâ€ť to the constitution, which legally should have been initiated by the legislature. Second, they tried to convince the court that the measure impermissibly raised two unrelated issues at once.
Apparently, the intermediate court wasnâ€™t buying these distinctions, but it did make me wonder whether we ourselves could make the argument in California, and also whether the California Supreme Court ruling would change the analysis of whether the proposed amendment is an â€śamendmentâ€ť or a â€śrevision.â€ť Having said that, Iâ€™m not at all clear on the difference between the two. All I understand is that an amendment can proceed, but a revision cannot.
I just emailed and called some of my favorite California lawyers, but they have not responded as yet.
Well, I now have just 200 words left for the rest of the non-marriage news. To hell with it! Thereâ€™s nothing that canâ€™t wait a week. A court in Florida has reinstated a Gay Straight Alliance case, which is good for us. I have read a rumor that Jodie Foster has broken up with her long time girlfriend, but considering the actress has never really confirmed that she has such a relationship, Iâ€™m not sure whether we care about its putative termination.
Additionally, there has been more violence against gays and lesbians, and presumably everyone else, and Fox News reports that some animals in the wild are gay. I believe we have already discussed this phenomenon over the years, have we not? Was there not a penguin or two? Some sheep in Oregon? Monkeys perhaps? Randy dolphins? Have we not been there and done that?
Finally, I intended to mention how much I hate the recent passion that the punditocracy has developed for the word â€śpivot.â€ť How is it that from one week to the next, suddenly an ordinary word pops into peopleâ€™s heads and becomes irresistible? I canâ€™t stand it because I think the people who use it are not closely examining their vocabulary choices. If they did pay attention, they would not reflexively jump on this semantic bandwagon, but being professionals, theyâ€™d pick another goddamn word that wasnâ€™t on the lips, tongue and fingertips of every Joe Blow who makes his living pompously articulating conventional wisdom in the hushed tones of revelation.
I also hate the commercials for the free credit check that have been repeated ad nauseum until you want to slam your fist through the television and smash the perky little singing spokesman in the kazoo. Among other things, the lip synching is off kilter. And whatâ€™s the deal with the guy on the island who does computer work with chimpanzees? What is he selling? Iâ€™m tired of looking at him. Part of my problem, of course, is that Iâ€™m watching so much election coverage my ears are about to fall off and my eyes are glazing like a fresh batch of donuts. But I love it!