by MARK GABRISH CONLAN
Copyright © 2012 by Mark Gabrish Conlan for Zenger’s
Newsmagazine • All rights reserved
First, the good
news: the United States Supreme Court has agreed to hear the constitutional
challenge to Proposition 8, the voter-approved initiative that abruptly stopped
California’s four and one-half month experience of marriage equality in
November 2008.
Now, the bad
news: the U.S. Supreme Court has agreed to hear the constitutional challenge to
Proposition 8.
It’s good news
in the sense that we’re finally going to get an answer as to whether a state
has the constitutional right to define marriage either to include or exclude
same-sex couples. It’s bad news in the sense that the answer we’re going to get
is hardly likely to be the one we want — especially those of us who, like my
husband Charles and I, took advantage of the 4 ½-month “window” between the
effective date of the California Supreme Court’s decision allowing same-sex
marriage and the passage of Proposition 8 to get married. Since then we, and
the estimated 18,000 other same-sex couples who got married in California when
it was blessedly legal, have been in the truly weird position of actually
having the “special rights” opponents of Queer equality always accuse us of
seeking, since we can be married but other couples — including ones who’ve
been together longer than we have — can’t.
The U.S. Supreme
Court’s decision to hear the Proposition 8 case is bad news in another way
besides the eventual outcome of their decision. If they hadn’t — if they’d
ducked the issue and allowed the most recent ruling in the Perry v. Brown
case by the Ninth Circuit Court of Appeals to stand — Queer couples would be
able to marry in California now. Even if the Supreme Court ultimately upholds
the right of same-sex couples in California to marry, their decision to take
the case means up to a year of additional delay in a case that has already
dragged on for over two years — and where the judges throughout the process
have “stayed” the decision so Queer couples still can’t get married in
California even though both courts that have ruled in the case have said they
should.
And the case is
coming before the most reactionary Supreme Court since the 1930’s. Justice
Anthony Kennedy, whom Queer legal strategists are depending on to be the “swing
vote,” isn’t the moderate “man in the middle” he’s been portrayed as in a lot
of the media coverage. He’s a thoroughgoing Right-winger who wrote the infamous
Citizens United decision in 2010, which
basically said that corporations and rich people didn’t have enough influence on American politics and the Constitution
said they must be allowed even more. He also wrote the dissent in the case on
the Affordable Care Act — so-called “Obamacare” — which basically eviscerated
the Constitution’s interstate commerce clause and drastically cut back the
ability of Congress to regulate private business. Kennedy meant this to be a majority
opinion, and it would have been had he not been double-crossed by Chief Justice
John Roberts, who signed on to Kennedy’s attack on the commerce clause but
found Obamacare’s individual mandate to purchase health insurance
constitutional under Congress’s power to tax.
There are only
two major issues on which Kennedy has deviated from the strict Right-wing line.
One is capital punishment, particularly executing teenagers and using the death
penalty for crimes other than murder. The other is Queer rights. The main
reason both the Queer community and the odd couple of lawyers who brought the Perry case to court, Ted Olson and David Boies, counted on
Kennedy as the “swing vote” is that he wrote the Court’s two most powerful and
luminous opinions upholding Queer equality in its history: Romer v. Evans
(1996), which threw out a voter-approved “No Promo Homo” initiative in Colorado
that invalidated anti-discrimination laws based on sexual orientation; and Lawrence v. Texas
(2003), which struck down all laws prohibiting sex between same-gender
partners.
But even on
Queer rights, Kennedy’s mostly positive record comes with some serious
asterisks. In 2000 he provided the “swing vote” for a 5-4 decision upholding the Boy Scouts of America’s ability to discriminate
against Queers and atheists, on the ground that the Boy Scouts is a religious
organization and therefore has a First Amendment right to let its religious
beliefs determine its membership policies. In 2009 he temporarily halted the
release of the names of people in Washington state who’d signed a petition to
repeal a domestic partnership law, and a year later he refused to allow the Perry trial to be televised. His reasoning in both cases
was the same: whereas the Kennedy who wrote Romer had seen the Queer community as a persecuted
minority that needed to be protected from efforts by the majority to legislate
away their rights, the Kennedy of 2009-2010 saw evangelical Christians and
other opponents of Queer equality as the embattled minority whose rights needed
to be protected from a Queer-friendly majority.
Nonetheless,
both judges who’ve written pro-Queer opinions in Perry to date clearly aimed them at Justice Kennedy,
freely quoting from both Romer
and Lawrence and citing them as
controlling precedents. Indeed, Appeals Court Judge Stephen Reinhardt’s
majority opinion in Perry, which
is what the Supreme Court will be reviewing, narrowed the case considerably to
make it seem more like Romer.
Reinhardt ruled that once a state had allowed same-sex couples to marry, it
would be unconstitutional to take away that right — but he left open whether it would be constitutional to
ban same-sex marriage in a state that never had allowed it.
The other source
for optimism about the Supreme Court’s decision is that after nearly 20 years
of steady defeats for marriage equality at the ballot box, the tide finally
turned in 2012. Voters in Maryland and Washington state defeated referenda that
would have reversed their state legislatures’ bills allowing same-sex couples
to marry. Voters in Maine reversed their 2009 vote for a Proposition 8-like
initiative and became the first state specifically to allow same-sex marriage via direct democracy instead of
legislation or a court case. And voters in Minnesota refused to enshrine their
state’s legislative ban on marriage equality into the state constitution —
making November 6 a welcome four-for-four win for our side on an issue that
until then had been rejected by virtually every U.S. electorate that had had
the chance to weigh in on it.
But it would be
foolhardy to assume that this year’s election victories on marriage equality
will make the Supreme Court more likely to rule in our favor and issue a
sweeping decision declaring that barring same-sex couples from legal marriage
is an unconstitutional violation of the equal protection clause. It’s just as
likely that the justices will see it the other way — as evidence that the
political process is working as it should. The Court could read victories for
marriage equality at the ballot box as confirmation that rather than make a
hard-and-fast ruling that would apply nationwide, they should let politics take
its course and allow individual states to decide to allow same-sex couples to
marry or not, as they choose — which, in California, would mean a long, hard
slog to persuade voters to repeal Proposition 8 and a very expensive and problematic political campaign to
counter the Right-wing lies that got them to pass it in the first place.
The current U.S.
Supreme Court is dominated by a hard-core radical-Right majority that is
generally loath to issue sweeping rulings expanding the civil rights of
historically disadvantaged communities. This Court is not, no way, no how going
to decide that over 200 years of American experience with marriage defined
exclusively as the union of one man and one woman has been a violation of the
Constitution. There is a scant possibility that there might be five justices on
board for a compromise along the lines suggested by Judge Reinhardt in his
Ninth Circuit opinion: that there isn’t necessarily an intrinsic constitutional
right to marriage for same-sex couples, but once a state grants such a right
they can’t take it away again. But even that seems unlikely. If the case had
come before the Supreme Court from, say, Rhode Island, they might have ducked
it altogether and allowed marriage equality to come to one relatively
insignificant state essentially by default. But not in California, the nation’s
most populous state —especially now that the nation’s second most populous
state, New York, has legislated marriage equality through the political process
rather than by the courts.
What’s most
likely is that the Supreme Court will uphold the constitutionality of
Proposition 8 and state that whether to allow same-sex couples access to
legally recognized marriage is a matter for individual states to decide.
There’s a possibility that either or both of the Court’s most crazily
Right-wing justices, Antonin Scalia and Clarence Thomas, will issue a
concurring opinion based on an “original intent” argument that since marriage
was assumed to be between one man and one woman when both the original
Constitution and the 14th Amendment were written, all laws allowing same-sex marriage are de facto unconstitutional. But it’s likely most of the
justices will shy away from a sweeping constitutional pronouncement on either side of the marriage equality question. It’s even
possible one or more of the Democratic appointees on the Court might join an
opinion upholding Proposition 8 on the ground that even if their personal preference would be for allowing same-sex couples to
marry, whether they can or not is a decision for the political process and not
for the courts.
This result
would leave marriage between same-sex couples about where marriage between
first cousins is today: some states would allow it, some states wouldn’t. But
there’d be one important difference: Congress never passed a law defining
marriage at the federal level as between one man and one woman who aren’t
closer blood relatives than second cousins. Congress did pass the disgusting “Defense of Marriage Act” (DoMA)
in 1996, which had two major provisions: it barred legally married same-sex
couples from enjoying any of the
benefits of marriage granted by federal law, and it said that no state had to
recognize any marriage of a same-sex couple from another U.S. state or foreign
country where it was legal. And unfortunately, while the Supreme Court is reviewing the federal definition of marriage under
DoMA, they’re not — at least not
yet — making a decision on the constitutionality of the provision that allows
states not to recognize same-sex marriages from other states. Until that part of DoMA falls, whether by Congressional action
or a later Supreme Court case invalidating it, every married same-sex couple in the U.S. lives with a
footnote on their marriage license: “*This marriage valid only in the state where it took place and any other state
that chooses to recognize it.”
The DoMA case
the Supreme Court did choose to review
involves Edith Windsor, an 83-year-old Lesbian who married her partner in
Canada in 2007 when they had already been together 42 years. Two years later,
Windsor’s wife died — and the U.S. Internal Revenue Service (IRS) billed
Windsor for $363,000 in estate taxes, which she wouldn’t have had to pay if the
federal government had legally recognized her marriage. It’s a narrow enough
case that it seems likely the Supreme Court will craft some sort of legal
dipsy-doodle that will let Windsor off the hook for the $363,000 tax bill but
won’t offer a definitive yea or nay on the constitutionality of DoMA. In the
last 10 years before the landmark Brown v. Board of Education
ruling in 1954, the Supreme Court routinely did this sort of thing in cases
involving African-American victims of racial discrimination, especially in
education and housing: they issued carefully crafted decisions that gave
justice to the individual plaintiffs before them without disturbing the
so-called “separate but equal” doctrine from 1896 that had allowed racial
segregation. And it’s known that Anthony Kennedy is familiar with these cases
because he cited two of them, Shelley v. Kraemer and Sweatt v. Painter, in his majority opinion in Romer v. Evans.
The Perry case was always a longshot before the current
Right-wing Supreme Court, which has been so hostile to civil rights cases that
the first law Barack Obama signed as President was a bill reversing a Supreme
Court ruling that had made it virtually impossible for women to sue their
employers for discriminating against them. It’s highly unlikely that a Court
majority so hostile to claims by women, minorities and the 99 percent in
general is going to issue a ground-breaking decision establishing the right of
same-sex couples to marry, either throughout the country or in its most
populous state. It’s more likely that the Court will leave it up to the
governments of each U.S. state to decide whether or not to offer civil marriage
to Queer couples — and the Queer rights movement will have to spend decades of
struggle to win marriage equality state by state. The Court’s likely rulings on
Proposition 8 and DoMA won’t be the end of the marriage equality fight; they
will at best be what Winston Churchill called “the end of the beginning.”
