Aug 11, 2010

Prop 8 court case: a tempered response

I've been avoiding writing about the recent prop 8 victory because I wasn't really sure what to say about it other than to repeat what everyone else was saying:

Yes, I think that gays should get equal protection under law, which in this case means full marriage equality.

Yes, I think that prop 8 was a deliberate attempt to deprive a minority of its rights based solely on animus.

Yes, the fact that it was shot down in court makes me quite happy.

Yes, I agree absolutely that no one should have to wait for their rights.

But the sad truth is that they do have to wait for their rights, and we all have to fight for their rights. In that fight, as in any fight, there are tactics involved. So while I agree with the spirit and rightness of the litigation, and while I'm thrilled with the initial decision in our favor, I have rather serious doubts as to whether or not this particular tactic will ultimately advance our cause or set it back.

The historical precedent for this particular struggle is the fight against miscegenation laws. In that struggle, the battle was mostly won on the ground before the case went to the Supreme Court—most of the States that had such laws had actually repealed them by the time that SCOTUS struck down the few holdouts. It's a long struggle, and a slow one, but it works—the Supreme Court merely affirmed what the majority of Americans had already decided, namely, that the right to marry whomever one pleases extends even to mixed-race couples. The appeal to human rights and the Constitution in gay marriage is analogous, but the situation on the ground is not: the states with some form of amendment banning gay marriage far outnumber those allowing it. The consensus among blogs that I read is that the Supreme Court does not like to take the lead on these kinds of issues. That's unfortunate—right is right no matter who agrees with you—but that's the way it is. In an ideal world, it wouldn't be, but then again in an ideal world we wouldn't have had to fight in the first place.

If the Supreme Court finds for the proponents—in other words, if they decide that 'equal protection under law' doesn't actually mean what I think it means—then it will be a serious blow for the cause. It wouldn't invalidate gay marriage in states which have such laws, and we could still fight it out state-by-state as we have been doing up till now. However, a decision against will undermine the efforts to win those battles.

The big issue as I see it, however, is the holdout states. Lots of states had already repealed their own miscegenation laws before the SCOTUS decision, but that decision was necessary to settle with the holdouts. With so many states passing laws or even amending their constitutions to ban gay marriage, and so many groups and individuals lining up to oppose it, the state-by-state battles will get ugly, and there will be a lot of holdouts. Just like with miscegenation, we're going to need that eventual Supreme Court decision to wipe away the last entrenchments of those determined to be more equal than others.

The justices of the Supreme Court—like any other group of people—really don't like changing their minds. Yes, SCOTUS has reversed itself before, but once they have officially declared that X is not covered by the constitution, they are understandably reticent to go back and say, no, sorry, actually X is covered by the constitution, and their decision on the matter is of course binding on the lower courts where any future litigation would begin. That's why the current litigation makes me nervous. Nothing would make me happier than a SCOTUS decision declaring gay marriage constitutionally protected. But a decision against us now will postpone—by years or perhaps decades—the judicial finalization of the process of accepting gays as equals.

It's a gamble, and one that many are understandably leery of. Don't get me wrong: I'm happy the initial decision went our way, and I fervently hope that we win overall. But I'm not breaking out the champagne just yet.

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