Could the US have equal marriage by next year?
The US Supreme Court will hear Perry v. Hollingsworth this spring (as well as challenges to the Defense of Marriage Act, which most observers do expect to be overturned), a mere decade after decriminalising relations between men. This is a high stakes game in the battle for equal marriage for gay and lesbian couples. On the one hand, the Court could rule that the fundamental constitutional right to marry should be restricted by sex, protected by the equal protection clause of the Fourteenth Amendment, and immediately in force in all fifty US States. On the other, they could rule that this is a standard policy question to be decided by each state, whether by state courts, legislature or popular vote. Were they to rule in this way, the process would continue as it did in November, with a steady and growing number of states providing for equality, but leaving gay people in states like North Carolina waiting some time.
This court battle arose after California voted for Proposition 8 in November 2008, the same day they voted for Barack Obama for president. This amended the California constitution to define marriage as between a man and a woman. This overturned a state court ruling in favour of equal marriage earlier that year. The 10,000 couples who had married could stay married, but no more gay couples could.
In 2009, Ted Olson and David Boies were announced as the legal team who would challenge Proposition 8 against the US Constitution. They had faced off against each other in Bush v. Gore, but now combined in the fight for equality in the case filed as Perry v. Schwarzenegger, representing two women and two men who each wished to marry. They based their case on three key points:
- that the US Constitution protects a fundamental right to marriage;
- that being denied marriage negatively affects gay and lesbian couples and their families;
- and that allowing gay and lesbian couples to marry will in no way harm marriage for heterosexual couples
During the trial, both the lawyers defending Prop 8 and its chief dependent provided great moments that only bolstered the case of the plaintiffs. When asked what harm same-sex marriage would bring, the defence lawyer could only answer, “I don’t know”. David Blankenhorn, President of the Institute for American Values, admitted that the law would be more American on the day it allowed gay people to marry (he has since publicly declared that he now supports equal marriage).
In August 2010, the District Court ruled in favour of the plaintiffs, finding a fundamental right to marry, and striking down Prop 8. Its proponents challenged this to the Circuit Court, losing there. However, this ruling, in February 2012, was narrower, applying it only to the specific circumstances of California. They ruled that because Prop 8 removed a right that had existed for a number of months before November 2008, and without good cause, it could not stand. They did not rule on a constitutional right did marry, so the ruling did not apply to other states in the Ninth Circuit. The Prop 8 supporters appealed this ruling to the next stage, the Supreme Court.
Any sensible advocate of equal marriage would have hoped that the Supreme Court would not hear this appeal. Had they not, California would today be joining the states where gay couples can marry.
But sometimes it’s good to be bold. It could go roughly three ways. Worst case is the appeal is successful and Prop 8 is allowed to stand. They could side with the Ninth Circuit and rule in favour of the specific circumstances, without touching on the question of a fundamental right, leaving that for a future date.
But if the Justices have a sense of history, they may decide not to seen as the court who fudged this question. We could see another ruling on gay equality authored by Anthony Kennedy. He has a clear libertarian mindset, seen in the nature of his opposition to the Affordable Care Act last year. He wrote the majority opinion in Lawrence v. Texas in 2003, which removed statutes criminalising male homosexual relations, as well as a case on the mid 1990s striking down a ballot measure in Colorado which allowed discrimination based on sexuality.
With the great, clear and coherent case presented by Olson and Boies, we could see the end of the battle for marriage equality. The court could decide to just save a lot if people time and energy, in what might otherwise be dragged on for a decade more or so. And the very fact that this is considered a definite possibility, even by those who see it as the less likely outcome, shows in itself how far the debate has shifted.
Gays and Republicans
The Republican Party Platform remains as virulent as ever, if not stronger still, in its opposition to allowing gay or lesbian couples to marry. To give context, I have quoted these sections in full at the end of this piece.
The platform attacks the judiciary and the president for their actions, and affirms the party’s commitment to an amendment to the US Constitution which would define marriage as between a man and a woman, thereby overturning laws in six states which currently allow equal marriage. It also refers to social experimentation, a reference to the repeal of Don’t Ask Don’t Tell, allowing gay soldiers to serve openly. These sections were effectively written by Tony Perkins, president of the Family Research Council. The most the disappointed Log Cabin Republicans could secure was the line, “We embrace the principle that all Americans should be treated with respect and dignity”, which means little in the context of the previous passage.
Kris Kobach, Kansas Secretary of State and an advisor to Gov. Mitt Romney on immigration, defended these sections by comparing it to government regulation of behaviour like drugs and polygamy.
This is not just a party which is not yet on board, whose leaders are still evolving, where members have different points of view. It is one whose default position is organised opposition at every level to difference of opinion on the question. Gov. Mitt Romney, who in 1994 claimed to better than Ted Kennedy on gay rights, signed the pledge to support such a Federal Marriage Amendment from the National Organization for Marriage
And yet, in New York, New Hampshire and Washington, equal marriage exists in these states because of the support of certain Republican legislators. The party is not absolute either in its position. The Respect for Marriage Act, has one Republican sponsor, Ileana Ros-Lehtinen of Florida. And there are two groups of gay members of the Republican Party, the Log Cabin Republicans, founded in 1977, and GOProud, founded in 2009.
The Log Cabins put a much greater emphasis on equality for LGBT people than GOProud do. The former lists “Protecting LGBT families” and “Freedom to Marry”, where GOProud make no direct reference in their headline points in their ‘What We Believe’. The Log Cabins refused to endorse President George H. W. Bush in 1992 or President George W. Bush in 2004. They have yet to make an endorsement this year. They played a part in the repeal of Don’t Ask Don’t Tell, suing the US in a federal lawsuit.
GOProud could crudely be described as Tea Party response to the Log Cabins. They proven themselves much more likely to emphasise issues other than rights for gay people in their endorsements. In the primary for the California Senate in 2010, they endorsed Carly Fiorina, who had supported Proposition 8 banning same-sex marriage in the state, as against Tom Campbell, who had penned a piece calling for a No vote in that ballot, and who was promoted by the libertarian magazine Reason, so no fan of big government. They have already endorsed Mitt Romney.
I think the Republican Party is definitely better for having the Log Cabin Republicans within it. They serve as a touching point for the still small but growing number of prominent Republicans who are speaking out for equality, such as Vice President Dick Cheney, now out former RNC Chair Ken Mehlman, Colin Powell, Bush Solicitor-General Ted Olson, Mayor of San Diego Jerry Sanders. With the new group, Young Conservatives for the Freedom to Marry, they took out ads leading up to this week’s Republican National Convention, and they are adding to the conversation within the Republican Party. I’m not so sure I could say the same of the GOProud, who effectively send the message that while questions of marriage are worth talking about, taxes will always trump protections for lesbian, gay, bisexual or transgender people.
Republicans in favour of equality are definitely worth supporting. American Unity was formed earlier this year by a Republican donor with a gay son, and is funding candidates it believes worthy of support.
Because I would like to support the Republican Party (from afar in my case, of course). But I can’t. It is an unreasonable compact to ask someone to make, to support a party that will denigrate their fundamental personal relationships, prey on unfounded concerns, because they will improve people’s financial lives. It is a compact that some rich an well connected gay people can live with; whether equal marriage is five or fifteen years away for them, they don’t suffer or feel the social and economic consequences of so many gay people because of this legal inequality. And I don’t say this even as one who thinks a party’s position on gay rights should be the determining factor in whether to vote for or join a party, or I would not be in Fine Gael.
As with the Democratic Party, the Republican Party is and always has been a coalition. Within the Republican Party, these are crudely characterised as being between the fiscal hawks, religious conservatives and military hawks. What this misses is how the party targets the fears of poorer voters on social issues through a process of misdirection. Where the Republicans stand on gay rights resonates most with me because I’m gay. But there is more that is wrong with them. Take for example their very poor track record on immigration, as seen in recent laws in Arizona and Alabama. Rather than focus on the benefit of immigrants brining diverse skills and ideas to a community, they spin a protectionist story that has not helped these states economically. This year’s platform endorses these measures, a stark contrast from their 1960 platform when Richard Nixon ran for the first time, which for an increase in immigration.
The Republicans could have been a party that would make a strong moral and efficacious argument for the market and individual liberty. There are elected representatives and activists who do hold firm to these values. There are many with a view miles apart. But perhaps worse are those who assume a veil of prejudice because it is politically convenient.
Not that there is no hope with the Republican Party. On the question of equality for gay people, it does take a long view. Former Congressman Jim Kolbe, who was outed as gay while in office, believes that this is the last time the Republican platform will take these anti-gay positions. He could be right. If either Maine or Washington vote in favour of equal marriage at the polls in November, they will become the first state to do so by popular vote. That will change things, making it clear that there are votes to be lost. Perhaps a candidate like Gov. Mitch Daniels could take a stance similar to that of Barack Obama in 2008, when he stated that he was against same-sex marriage, but would vote No to Proposition 8 in California. But it’s a lot to expect.
Perry v. Schwarzenegger – Gay marriage rights on trial
Today in California, one of the most significant debate on whether gay and lesbian couples should have equal rights to marriage is coming to a conclusion. This is the federal case of Perry v. Schwarzenegger, which is at the stage of closing statements from both teams, which is hoping to overturn Proposition 8, which passed an amendment to the Californian constitution banning gays and lesbians from marrying under the Californian Constitution. This was passed on 4 November 2008, the same date Barack Obama was elected president.
When I first heard of the case last summer was being taken at a federal level, I was a little wary. I felt that given this would eventually be appealed to the Supreme Court, and that given the delicate balance of the Supreme Court, it was likely that Anthony Kennedy, considered the swing voter, would ensure at least 5-4 against the plaintiffs, and set back the case of marriage equality for a decade or so. Many of the groups who had campaigned against Prop 8 felt similarly.
Now, after the close of hearings, I’m more optimistic about the benefits of the case. It made news because it brought to together the conservative Ted Olson and the liberal David Boies, who had been on opposing sides in Bush v. Gore in 2000, jointly representing the plaintiffs, two couples who had failed to get married during the period where it was possible for them in 2008. They were backed by the newly formed American Foundation for Equal Rights, which had on its board John Podesta, former Clinton White Chief of Staff and President of the Center for American Progress, and Robert Levy, President of the Cato Institute, one of the leading libertarian think-tanks.
Considering the proceedings of the court to date, I would not be surprised if the case was ruled in the plaintiffs’ favour, given the weak evidence and reliance on research from anti-gay activists like George Rekers who were over-compensating for their own repressed homosexuality. But even if it were to fail, and to fail again on appeal to the Ninth Circuit, good will come from the nature of the evidence presented.
If it does fail, it will probably not be opposition’s case that allowing any couple to marry would undermine the state’s interest in encouraging marriage for the benefit of children, or that the institution of marriage in society would in some way be weakened. If it fails, it will most likely be because of a judgement that as the people believed there was a rational basis for denying marriage rights, the court is not in a position to overrule them.
The benefits of the case, whatever the outcome, is threefold. On the one hand, it has provided the most thorough setting in which the arguments of both sides have been scrutinized, and the fault lines and weaknesses highlighted. Whatever the next forum for this debate, it now must take place at a more informed level. Secondly, the symbolic effect of the legal team and its backers matters. The right of gay couples to marry is being seen less and less as a matter of left against right, of liberals against conservatives. For Levy and Podesta to co-author an op-ed in the “Marriage equality for all couples”, will make more American start to question their preconceptions on the issue. As would Ted Olson article in Newsweek earlier this years, “The conservative case for gay marriage”. Finally, the lives of the four plaintiffs will seem familiar in their ordinariness to many: Kris Perry and Sandy Stier together ten years and raising four boys, Paul Katami and Jeff Zarrillo nine years, all in very conventional careers.