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    Ann Rostow: Passive Aggressive

    By Ann Rostow

    Passive Aggressive

    On October 6, the High Court stunned the GLBT community and the vast majority of legal analysts by lifting its hold on marriage rights in five states, with six other states to follow after some procedural steps. Stunned yes, but euphoric as well, because the decision indicates that marriage equality will soon be the law of the land.

    True, everyone already believed this was the case. We all thought the Court would be obliged to weigh in on marriage this term, and everyone had been fairly confident that the Windsor majority would come together again to hand us the ultimate victory. But at the same time, we didn’t know for sure, did we? Could the Court have cobbled together some kind of “compromise” that forced everyone to recognize legal marriages but left conservative states free to prohibit same-sex couples from getting a license within their borders? Perhaps. But now that (disastrous) possibility is remote at best. Through their implied nod to the three strong pro-gay appellate court opinions, the justices have given tacit approval to the notion that banning same-sex marriage is unconstitutional.

    Why, however, did the Court avoid a legal showdown and decide instead to let marriage equality trickle up from the federal appellate courts instead of down from Washington? Don’t look to the conservatives. They clearly lacked the votes. Look instead to the four liberals on the bench.

    As you know, it only takes four votes to accept review of a case. The fate of marriage equality lay squarely in the hands of our allies, and although they gave us a victory, they also withheld one. It seems likely now that a Supreme Court ruling on marriage equality will have to wait another term, leaving those of us who live in Texas, Georgia, North Dakota and the other outliers to face another year or so of limbo.

    So why duck now? We have to assume that the liberal caucus felt that the nation as a whole would find a favorable marriage decision more palatable once the balance had shifted heavily in favor of marriage equality states. I don’t know. Can you think of any other reason why these four (or five) eminent jurists would chose to skip sideways to the finish line rather than simply jog on over?

    Could there have been a quid pro quo here? For example, the delay gives the Chief Justice an extra year or so to figure out a way to plant himself on the right side of history without blowing his conservative street cred. Did he or another minority justice beg for time in exchange for a 6-3 or 7-2 majority down the line? After all, as we’ve all noticed, a lot can happen in twelve months.

    But it might even take longer than that! I can envision a scenario where the remaining appellate courts rule in our favor except for the arch conservative Fifth Circuit. Let’s also imagine that a Fifth Circuit panel decision is appealed to the full circuit bench and accepted. In theory, that intermediate step could chew up months and months. If the full Fifth Circuit eventually rules against us, it’s only then that the High Court would be forced to settle the issue. That could be two or three years from now. Justice Ginsburg noted in the press the other day that there’s “no rush” to decide the issue of marriage. But there is for me and my wife and the other denizens of the dwindling holdout states.

    Ninth Circuit Weighs In

    A day after the High Court’s non-intervention, the U.S. Court of Appeals for the Ninth Circuit ruled against marriage bans in Nevada and Idaho. Just because the justices washed their hands of the previous appeals does not mean that the Ninth Circuit ruling, or any other future appellate court ruling for that matter, will take full effect without a few cries, whispers and stalling tactics from our adversaries. But to cut to the chase, we will soon see marriage equality in a total of 35 states.

    Meanwhile, we are still waiting for word from the Sixth Circuit, which heard arguments on August 6. At the time, there was much doom and gloom for our side of the blogosphere, based on a general impression that the panel was split 2-1 against us. The swing judge, Jeffrey Sutton, while musing about states rights and respect for the democratic process, also made much of the supposed antigay marriage “precedent,” a one-line brush off by the Supreme Court in 1972 that suggested same-sex marriage was not under the jurisdiction of the federal courts. Although most courts believe the 40-year-old comment is irrelevant to present day law, the anomaly continues to haunt conservative legal analysis.

    Now, as handsome University of Minnesota law professor Dale Carpenter notes (in one of his typically great articles), the High Court has made pretty damn clear that marriage is indeed a federal matter. Will this lead Judge Sutton to fall into line, not only behind his four sister appellate courts, but also behind the Supreme Court’s winks and nods as well? I’m thinking yes, but I have to make a shameful confession. I wouldn’t be too disappointed if the Sixth ruled against us. If they did so immediately, and if they could manage to race a petition to the Supreme Court, it’s still possible that we could see marriage debated this term.

    No Certainty Without Cert

    Why is a High Court review so important? After all, many people are speculating that the whole marriage equality issue might be resolved in our favor by the four remaining appellate courts. For the record, those are the aforementioned Sixth (Midwest), the Fifth (Gulf Coast), the Eleventh (Florida, Georgia, Alabama) and the Eighth (Arkansas, Missouri, Nebraska, the Dakotas). The Sixth is pending. The Fifth will hear arguments by year-end. There are cases now on appeal to the Eleventh, and I think the Eighth is not far behind.

    But our legal system is governed, not by the appellate circuits, but by High Court case law. Every now and then some moron complains about an asserted right because “that’s not written in the Constitution!” But the Constitution is not the terse collection of Articles and Amendments that we all know and love. It is the rich, expansive and ever evolving interpretation of law etched into American jurisprudence by a succession of Supreme Courts. You can carry around a copy of the Constitution in your shirt pocket. But the real Constitution is written on a zillion pages of majority opinions, revised and honed over two centuries.

    In the last 20 years, the Court has written three major opinions improving our constitutional status as a community. And we’re grateful for those. But they’ve also left questions unanswered. They’ve evaded the core issue of whether gay people are just a little bit morally tarnished and they’ve done so because they are aware that a hell of a lot of Americans feel squeamish about homosexuality. The majority of justices may understand the need for gay equality as a matter of law, but they still want to leave some constitutional wiggle room for entrenched disgust, particularly when it parades around under the banner of faith.

    It’s time, however, for the Court to take a stand. Religious freedom is protected elsewhere in the Constitution, and it’s also clear that faith is not a free pass for bigotry. We need the Court to put gay couples on equal footing with everyone else and, in doing so, we also need  the majority to acknowledge that antigay laws are inherently suspect to some degree. Without a clear statement from on High, we are facing a protracted war for legal equality that will drag on well after we win marriage equality.

    Don’t get me wrong. No court opinion can eradicate bigotry. But imagine this. What if a privately held company claimed the right to refuse gay spousal benefits based on religious views? What if a conservative state passes laws, similar to some of the proposals we saw earlier this year, that allow small businesses to refuse service to gay couples? These scenarios, which might follow a marriage equality backlash, would not survive the weight of a strong High Court precedent. But they could easily survive in an ambiguous atmosphere if marriage equality was tacitly approved, but never endorsed in a written opinion.

    And how are we going to secure full equality going forward if we win marriage without a High Court mandate? We need to add sexual orientation to existing federal laws that protect other classes of citizens against discrimination. That’s a heavy lift, made much easier if the justices write us into the Constitution in black and white rather than gray.

    Finally, we have to ask our allies on the Court, if not now, when? We all understand the need for incremental change. But we have arguably been moving incrementally for a few decades. In the last year, we’ve been racing to what appears to be a finish line of sorts. So why push the finish line further down the road at this point? Justice Ginsburg says there’s no need to rush. But nor is there any reason to dawdle. At any rate, this is my lengthy explanation for why I wouldn’t be too upset to lose at the Sixth Circuit, which would force the Court to take immediate review.

    Fear Itself

    Conventional wisdom says the Court has learned some hard lessons by taking sides in contentious social debates. Yes, Brown v Board was the correct decision. But we called out the National Guard to escort kids to school, and the country spent another few decades trying to integrate the school system in an atmosphere of racial tension. Despite the ruling, inequality lives on today in a country where public schools are segregated by class, and class lines roughly divide us by race.

    As for Roe v Wade, forty years down the line, the war over abortion is as hot as ever.

    No wonder the Court is leery of marriage equality, say the pundits. If the justices aren’t careful, their marriage decision could roil the waters for the foreseeable future! Far better to let time go by and continue to build a national consensus.

    But the comparisons are simplistic.

    Racism is perniciously infused into every aspect of our society, circulating through vicious concentric circles of economic, institutional and cultural biases.

    As for abortion rights, whether you are for them or against them, the very subject here is life or death. Even as you advocate for the right to choose, you must acknowledge that the choice is one of the most difficult of a woman’s life, even when she is confident of her decision. No one is “for” abortion. Those of us for choice are “for” women, who must be given the final say on whether to reproduce. And while it’s not hard to dismiss political reactionaries on the other side, it’s easy to understand the average person who disapproves of abortion. All of us share a reverence for human life, and that underlying consensus complicates the debate.

    But marriage equality? Does anyone beyond the fringe right really believe that marriage equality is destined to divide America for years to come? Is homophobia an institutional problem in this country? Increasingly the answer is moving towards no. Is there a fundamental human debate here? Does anyone really think giving legal rights to a lesbian family gives rise to the most profound philosophical dilemma? Most would say no.

    I don’t know how else to put it but, in this context, marriage equality is just not that big of a deal. Further, the faith-based opposition to homosexuality in general is destined to erode, just as faith-based belief in white supremacy could not survive an evolution in religious doctrine. For every Christian who claims his faith demands rejecting gays, there are two more who claim the opposite. Just this week, as you probably read, a major Catholic conference of bishops announced what I guess you’d call a new chapter in the Church’s relationship with its gay and lesbian adherents.

    In other words, the Court’s hesitance is misplaced. Gay and lesbian couples exist and proliferate regardless of court rulings. But allowing the country to treat these families like legal strangers has become untenable. Nor is there any reason to pussy foot around the problem like a nine-member bomb squad trying to disarm a nuclear warhead. Just cut the little red wire like they do on TV. Or maybe the yellow one.

    Whichever, it’s not going to explode.

    arostow@aol.com