As happy as I am that today the Supreme Court finally delivered its decision on DOMA and California’s Prop 8, covering what I believe to be a major civil rights issue, I am equally bothered by the reality that the issue(s) still have a ways to go before becoming the law of the land.
The DOMA ruling extends federal rights to all legally married couples. The Court rightly recognized marriage is a State issue and DOMA was written to injure, for no valid reason, the very same parties which the State of New York sought to protect. The federal government can no longer discriminate among legal marriages in the several States that have legalized same-sex marriage.
The problem is there are only now 12 States in our Union, plus DC (plus California in a month or so) which legally recognize same–sex marriages. And if two same-sex couples are married on the same day in New York, and one couple stays in New York, but the other couple moves away to say Alabama for a job opportunity, well then the Federal law will currently only follow the language of the resident State’s statute.
The legally married couple remaining in New York would be entitle to married status as defined by federal law, but the legally married couple now living in Alabama would not be, since Alabama does not recognize their marriage as legal.
This goes right up against the Equal Protection Clause, and this culture war is not yet over. And future fights could get ugly.
In today’s decision, we were dealing with two relatively liberal-minded States, where the Governors were supportive of same sex marriage rights. The legislators in the bigoted States which proudly enacted One Man/One Woman marriage statutes or passed similar Constitutional amendments will fight hard for their right to deny equal rights.
This isn’t a “black rights,” lingering racism argument like in the 60’s…no, this is “because the Bible tells me so” territory. Think Custer’s Last Stand. Former Governor Mike “Still Technically Obese” Huckabee declared, “Jesus wept.” And he knows, he used to be a minister (before he became a paid Fox News pundit).
Apparently, Jesus didn’t shed any tears for the massacred Newtown children, or for Trayvon Martin, but let gay married couples file a joint tax return, and Jesus is reaching for the tissues. I’m guessing Jesus will be needing therapy when a gay person runs for President…and will more than likely have to follow through on that whole “second coming” bit if a gay person actually wins.
The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning, the court noted: “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.”
The majority added: “Marriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Likewise the permissible degree of consanguinity can vary — most States permit first cousins to marry, but a handful, such as Iowa and Washington, prohibit the practice.” If the federal government has no problem recognizing the holy matrimonial bonds between two 13-year old, first cousins married in New Hampshire, how can it have a problem with two same sex adults married in New York?
I just don’t get the allergic reaction Christians have when you put the word “gay” right there next to “marriage.”
First of all, Jesus was never married. Second of all, alternative marriage arrangements such as polygamy and concubine arrangements can be found in both the Old and New Testaments. Biblical daughters were bargained off as property, thereby transferring the burden of taking care of and feeding them from the father to the husband in the form of a contract — usually involving the exchange of property.
Sorry, back to the point…
The “Proposition 8” case is a California case which arose from a 2008 referendum vote (in the same election which first put a Mulatto in the White House), asking the California electorate to vote whether marriage was between only man and a woman, and whether the California Constitution should be amended as such.
It was a huge deal in California because earlier that year, the California Supremes had just overturned a 1977 state law banning same-sex marriages as well as a voter referendum affirming that same law in 2000. The 1977 law was written to take the ambiguities out of certain state contract laws that had previously been written as “pronoun-neutral.”
This sneaky bit of anti-gay legislation was rampant during the mid 1970’s, led by the notorious anti-gay rights zealot Anita Bryant, who famously fought to overturn anti-discrimination statutes throughout the country — statutes designed to protect homosexuals from discrimination in the workplace and access to housing.
She claimed since homosexuals could not pro-create, they must be “recruiting” our children, and it was the rest of us who needed protection from them. She was a close friend of that asshole, er, Reverend Jerry Falwell, and her gay-bashing tour was just an extension of a prolonged anti-indecency campaign that she fought for over a decade, (interestingly kick-started by her disgust at the indecency of Jim Morrison’s antics on a Miami concert stage in 1970).
But I digress…
The California Court relied on the legal test known as “strict scrutiny,” which is the gold standard legal test used to review whether a law can apply differential treatment to certain classes of people based on race, gender or religion for certain “fundamental rights” like marriage. This is a big deal; it’s really hard to pass the strict scrutiny test.
Strict scrutiny requires the law in question to serve a “compelling governmental interest,” that the law is “narrowly tailored” to achieve that interest, and that the law is “the least restrictive means” to achieve that interest (think Japanese internment decrees).
The Cali Court decided classification by sexual orientation should be a “suspect class” and thus qualified for the heightened scrutiny review. No other state had ever given “sexual orientation” this special recognition before — it raised it to the same status as race, gender and religion as a protected class.
So, applying this standard, the California Supremes decided the one-woman, one-man law was unconstitutional in the eyes of the California Constitution, and that was that. But then a funny thing happened — an unholy alliance (coalition, if you will): hardcore straight-marriage folks, rich Orange County conservatives, run-of-the-mill redneck farmers, teachers, church-ers and John Bircher’s, everyday haters, a shit-ton of Mormons, Hannity-lovers, Black Baptists, a beauty queen, Reagan Republicans, Glen Beck-ers, god-fearing Mexicans, Rabbis and rappers, pundits and politicians, athletes and soldiers, the Pope, W, Brad Pitt’s mom, Mel Gibson, the Donald, a million Muslims, and even Ned Flanders.
They all went ballistic, accusing the California Supreme Court of ruining mankind, and set about getting a ton of signatures to overturn the Supremes and put the question to the voters in the form of an amendment to the State Constitution. The voters then voted 52% in favor of discriminating against the gays, and discrimination was then written into the Constitution.
This is why the Feds reviewed it.
Here’s what this all comes down to: whether a 50% plus 1 majority of people in a state can vote away the “fundamental rights” of a minority group in that state. A Federal Appeals Court said no, and today, 4 liberal Justices of the US Supreme Court plus the schizophrenic Justice Anthony “Dazed and Confused” Kennedy found a technicality to settle the matter without actually having to settle the matter.
Almost everything else you’ll hear is noise.
The aforementioned Coalition of the Crazies (hardcore straight-marriage folks, rich Orange County conservatives, run-of-the-mill redneck farmers, teachers, church-ers and John Bircher’s, everyday haters, a shit-ton of Mormons, Hannity-lovers, Black Baptists, a beauty queen, Reagan Republicans, Glen Beck-ers, god-fearing Mexicans, Rabbis and rappers, pundits and politicians, athletes and soldiers, the Pope, W, Brad Pitt’s mom, Mel Gibson, the Donald, a million Muslims, and even Ned Flanders) has vowed to keep up the fight.