The road to equality has some potholes


The last two days of Supreme Court arguments involving gay marriage were a bit of a disappointment to me, I have to admit. It is always somewhat stomach churning watching people arguing in the abstract about your humanity and right to be treated equally before the law. Going into these two cases, I felt much better about the prospects for finally achieving full legal equality. Now, after hearing the arguments, I am a bit less sanguine about them reaching the more sweeping (and correct) conclusion. To be fair, I don’t think they will reach the two worst possible outcomes (upholding Prop 8 and DOMA), but it seems from the way the arguments went that they will probably fall far short of declaring a federal right to marriage.

The issues at stake are huge, and the conservatives on the court seemed to be falling all over themselves to limit the possibility that gays might found to be a suspect class, despite the obvious animus reflected in both Prop 8 and DOMA. Many of them seemed to wish that the whole discussion would just go away. One of the most nauseating examples was Roberts‘ line of questioning in the DOMA case yesterday, where he seemed to assert that gay people had plenty of political power, evidenced by the fact that they had even made their way into the Supreme Court arguments in the first place. Oh yeah, who needs to overturn these hateful laws, the people are on our side! Fundamental rights never seem important from the vantage point of people who see you as “less than”, nor for some odd reason do they see these rights as fundamental, despite them readily agreeing that they are fundamental to the groups that have them.

If I had to guess based on all the reporting and listening to the audio of the trials, I would say that they will leave in place one of the lower court rulings on Prop 8, and strike only one provision of DOMA, the one that pertains to federal recognition. This would be a huge mistake for a number of reasons, inevitably kicking the can down the road. That will leave us with a patchwork of laws and rights, and messy consequences for gay couples who travel or move to states where they are still not treated equally. Only a federal decision that removes these differences in treatment across the nation will be justice. I have no doubt that one day we will have full legal equality, but after fighting this fight for more than 20 years (I came out in 1990) I am ready to be done with the legal aspects of it. You can’t make society accept you fully (note the continued existence of racism for example) but we must rid ourselves of the inequality before the law.

It would be a mistake to pretend to know what the court will eventually decide in these cases based on nothing but the reporting and the testimony. I dearly hope that my analysis is overly pessimistic, and it is certainly possible we will have equality come June. And if we do, I will be out celebrating like never before, arm in arm with friends and family and people of good will everywhere.

One step closer…


I was thrilled yesterday to see the Supreme Court take up not only one of the challenges to DOMA, but also the Prop 8 case. I had expected them to leave lower court Prop 8 decisions in place. That would have restored marriage in California, definitely a good thing, but would have precluded deciding the marriage question in a federal way. Although the risks are still great for a major setback (this is a largely conservative court), the potential rewards are fantastic. For the first time in my life, there is a very real possibility that the last vestige of gay legal inequality will be banished. And I am pretty optimistic, even with the makeup of the current court. Although we will never get a pro equality vote out of Scalia, Alito, or Thomas, I feel much better about the prospects of Roberts and Kennedy (especially) deciding the cases in a good way. And the cases seem to airtight to me. I know I am biased in favor of logical arguments, and those don’t often rule the day when the hateful passions of the masses are considered, but a great tide has turned in this country on the question of gay rights in general and marriage equality in particular. Even the anti gay judges must realize that they are moving against the tide of history. There are some arguments to be made about whether the judges will feel comfortable that the American public is “ready” for marriage equality, but those don’t hold much water with me. When the Supreme Court decided “Loving v. Virginia”  in 1967, fully 82% of the country was opposed to interracial marriage.  Compare that with the ever growing majorities already in favor of marriage equality for gay people, and I am very hopeful that our time is near for the end to legal inequality and second class citizenship. There will of course still be other battles to fight (ENDA is a good example), but those involve protections against animus in the private sector, not official inequality before the law like the marriage laws (and sodomy statutes before them).