Sunday, December 16, 2012

Marching, not racing

Item #3, "Make you like us," conspicuously absent.
So the Supreme Court has some consideration of gay marriage coming up, in two different forms. First there are a number of cases involving the constitutionality of the Defense of Marriage Act (DOMA) which may be added to the docket, which specifically would entail addressing whether the act violates equal protection guarantees under the 5th Amendment's due process clause when applied to same-sex couples legally married under the laws of their own state. Then there's Hollingsworth v. Perry which address Prop 8, the California ballot measure which denies legal marriage to same sex couples in that state. The issue there is whether such a provision on the part of an individual state counts as a violation of the Constitution's 14th Amendment guarantee to equal protection under the law.

(Both of these case make me fervently wish that there was a Supreme Court channel. C-SPAN, make it happen. All SCOTUS, all the time. I'd watch it. I'd totally settle for a livestream, if it's a good one. Just saying.)

Given the current makeup of the court, there's little reason to be optimistic. They might declare DOMA unconstitutional, but they might not. And it's very unlikely that they will declare that state measures banning gay marriage are a violation of equal protection across the board.

Some recent advances in civil rights which can be attributed to SCOTUS:
  • Desegregation: With Brown v. Board of Education in 1954, the court decided against racial segregation in schools. 
  • Interracial marriage: With Loving v. Virginia in 1967, the court declared that laws against miscegenation are unconstitutional. 
  • Abortion: In Roe v. Wade in 1973, the court ruled that there is a right to personal privacy which renders unconstitutional laws prohibiting abortion.
  • Homosexuality: With Lawrence v. Texas in 2003, the court ruled against state laws banning sodomy. 
And of course, along the way the court has had several misses-- it has frequently ruled against civil liberties before it has ruled for them (see Plessy v. Ferguson, Pace v. Alabama, and Bowers v. Harwick). It will not be a surprise if it does so again in these cases. When it moves toward freedom, the court moves slowly. And it does not always move toward freedom.

Still, it's disturbing to see a position like the following:
Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.
 Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.
I tell my gay friends: imagine if the Supreme Court had ordered gay marriage this past June, at the end of its 2011-2012 term. November’s game-changing electoral victories would never have happened. Gay marriage advocates would be forever stereotyped as political losers who won by running to mommy. Our opponents would mock and denigrate our marriages as court-created, legalistic fictions. The country would never have shown how much it has changed. 
If we have come that far in five years, imagine where we might be in five more. Imagine, then, the opportunities to extend and consolidate support that we will lose if the Supreme Court steps in now. Strange but true: a favorable Supreme Court intervention next year would make us weaker, not stronger.
This piece, by Jonathan Rauch at The New Republic, makes me wonder how Rauch's gay friends haven't strangled him.

So does desegregation not have “deep legitimacy”? Interracial marriage? Reproductive freedom? Because these rights were acknowledged by the Supreme Court, does that mean they’re less legitimate, and amount to being handed a prize by a referee before you’ve actually earned it?

Because we know, after all, that rights are earned by minorities. It should be a matter of popular opinion, because getting everyone to like you should be the foundation of “legitimate” personhood.


This is an argument that could only be made by someone who doesn't believe that marriage equality is a civil right. It is, for that matter, an argument I've heard many times over by opponents of marriage equality, because they think it is somehow up to gays and lesbians to convince the rest of us that they're charming enough to be allowed to marry the person they love, just like anyone else. The way a minority "wins" is to win the affection of the majority, and eventually by popular appeal the majority will grant them the status of equals.

And yes, that would be great. Except you know what? The unwillingness of majorities to recognize the equality of minorities is called bigotry, and minorities shouldn't have to cure bigots of their bigotry to get that acceptance in order for that to be the basis of their legal recognition as equals. In the Olympic race analogy, that would be like the runner having to stop along the way to make sure that a majority of the fans lining the track with their arms outstretched are willing to give him/her a high five, before the referee is willing to acknowledge that he/she made it over the finish line. For the race is not to the swift, but to the likable...

No. Gay rights are legitimate because they are civil rights, and civil rights should not be up to a popular vote. It would be nice if there was popular acknowledgement of the legitimacy of gay rights, but a) it's not a requirement, and b) there is ample evidence that such acknowledgement can follow a SCOTUS decision rather than needing to precipitate it or render it unnecessary. In that regard, SCOTUS is more like a teacher who steps in and prevents all of the straight kids from bullying the gay kid. Sure, it would be great if the kids would just stop bullying the gay kid on their own, but...let's not hold our breath that they will. They can go through catharsis and character development on their own time-- it's not the responsibility of the gay kid to make them.

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