Alex Blaze

Discussing the federal case for same-sex marriage

Filed By Alex Blaze | June 05, 2009 11:30 AM | comments

Filed in: Marriage Equality, Media, Politics
Tags: American Foundation for Equal Rights, David Boies, George Stephanopoulos, George Will, Gwen Ifill, lawsuit, round table, Ted Olson

While I'm not fond of George Will, George Stephanopoulos annoys me to no end. No, his politics aren't bad, since he doesn't really have any. The problem I have with him is how vapid he is and how he doesn't ever seem to care about any policy issue other than the "Who's up/who's down" aspect of it. Well, that and anything where Democrats and Republicans sing a round of Kumbaya.

So I missed This Week last Sunday where the Roundtable discussed the Boies and Olson lawsuit. Watch as Stephanopoulos and Gwen Ifill almost burst out cheering for the wacky and awesome combination of a conservative and liberal lawyer working on a case together. ZOMG, it's almost as if same-sex marriage doesn't divide itself perfectly neatly on ideological lines! Or maybe lawyers are people you can pay to advocate a position that they may or may not necessarily agree with themselves! I don't know, but when Democrats and Republicans work together, I see rainbows and ponies and stardust! (Via Towleroad)

I should also point out that George Will lied here. Roe didn't divide the country and "embitter our politics" on abortion, the Protestant fundamentalists did several years after the decision. Plus it didn't create abortion but merely recognized that the right to privacy extends to women's reproductive choice. But George Will isn't all that concerned with little things like "truth" or "facts" or "the rule of law" or "finding real reasons to support his positions that are obviously constructed to push Republicans into office to get lower taxes for him and his buddies" or "not being a douche nozzle."

Plus, um, can you tell me how pro-lifers like the one who shot George Tiller and the ones who demonized him are supposed to come to a "consensus" with normal human beings? Thanks for your uneducated opinion, George Will.

But the woman who spoke before Will in the clip, ABC's Supreme Court correspondent Jan Crawford Greenburg, makes the point that there just aren't the votes for this to go through. She points out that it took 17 years for Lawrence to overturn Bowers, and it's hard to forget Scalia referring to that period, in his screed on stare decisis, as a "mere 17 years ago." Usually it takes a bit longer to get a Supreme Court case overturned.

I get the feeling that many gay and lesbian people think that moving forward on civil rights is much easier than it actually is, that the civil rights struggles of the 60's appeared out of nowhere and where quickly resolved after a few years of protest. Rosa Parks wasn't just a lady who was tired and didn't want to give up her seat; she was a civil rights activist trained at the Highlander Folk School who understood her rights and the risk she was taking in deliberately getting arrested for a cause.

William Eskridge, a long-time gay rights activist and a legal scholar who has published several books on comparative law and homosexuality, along with Darren Spedale, who spent decades studying Scandinavian domestic partnership law and has co-litigated a few gay rights cases pro bono, had this to say about the lawsuit:

Also relevant to the merits of bringing the California challenge now in federal court are the long odds against success. Five of nine current Supreme Court justices are conservative Republicans. In 2000, five justices said that the Boy Scouts could exclude gay people and even struck down a state law barring such discrimination. Their reasoning was that a private group has a First Amendment interest in expressing an anti-gay identity and that the government could not censor that expression. Yet when universities asserted the same freedoms to express their pro-gay identity by treating anti-gay military recruiters differently from other recruiters conducting student interviews, a unanimous Supreme Court ruled against the universities.

In short, this is not a court that leaps to defend full constitutional equality of gay people. To be sure, the court in 2003 did invalidate Texas' consensual sodomy law for violating gay people's privacy rights. Yet Justice Anthony Kennedy's gay-tolerant majority opinion in Lawrence v. Texas emphasized that only 13 states still had such bans against consensual sodomy and that other countries, as well as most states, had reached a substantial consensus that such laws violate constitutional privacy rights. There is no such consensus, either internationally or nationally, in favor of gay marriage. More than half the states, including California, have constitutional amendments explicitly barring same-sex marriages. In 1996, President Clinton endorsed, and most congressional Democrats voted for, the Defense of Marriage Act. The five states that recognize gay marriage--Connecticut, Iowa, Maine, Massachusetts, Vermont--are still pioneers. And four Supreme Court justices probably think that the court should not have invalidated the Texas law in Lawrence.

The bottom line is that even the moderate justices would be disinclined to require marriage equality today or even three years from now. By then, more states will have recognized same-sex marriages, but it is unlikely they will be anywhere close to a majority. Consider this parallel. In the mid-1950s, when 30 states still had laws barring people of different races from marrying, the liberal Warren Court refused to overturn this blatant race discrimination. The court did not act until 1967, when only 17 states retained such laws. So long as interracial marriage intensely divided the country, the Warren Court was not prepared to insist upon a norm of equality. Would the current moderates on the Roberts Court be any bolder? It's hard to imagine.

In other words, Loving v. Virginia was not a case that appeared out of nowhere and after a few short years got rid of anti-miscegenation laws. 33 states allowed interracial marriage when that ruling happened, and we're not even close to that when it comes to same-sex marriage.

That's important since it lets the Court know where the country and the law is on this issue. In the decision for Lawrence, the Court pointed out quite a few times that very few states still had sodomy laws. Again and again they mentioned the fact that only 13 states still had them and that even fewer enforced them. If we think that the Court is just going to overturn all the bans on same-sex marriage all over the country just because we're right, well, we have another thing coming.

Yes, I agree with their reasoning that it denies people equal protection to limit marriage to heterosexual couples. But that isn't enough. And considering that the best argument in favor of this suit that I've heard from non-lawyers in the community (I have yet to hear a lawyer in the LGBT community who thinks this is a good idea) is "Do something!" followed shortly after by its cousin "Nothing else is working and our orgs are all corrupt. At least they're doing something!" I don't think that we're quite ready to support this case.

The names of the board members in the American Foundation for Equal Rights (who's financing this case) have been released (.pdf). It's mostly Hollywood folks and the only two with a background in LGBT anything are Dustin Lance Black and Bruce Cohen.

Good luck to them.

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Don't let patrick hear you!

I'm personally terrified by the prospect. Straight lawyers playing with an issue that will not affect them.