Yesterday, directly before the deadline for submission of briefs in the Supreme Court hearing of the Prop 8 appeal, the President’s administration filed a brief urging the court to uphold the lower court’s ruling that Prop 8 is unconstitutional. Not all gay activists are happy about this and one such group is GetEqual, a so-called grass-roots network of folks trying to be relevant in the quickly changing world of LGBTQ acceptance. In a statement, GetEqual said:
GetEQUAL Congratulates President Obama for Supporting Marriage Equality in California, But Remains Disappointed By Decision to Leave Millions of LGBT People Vulnerable
Washington, DC — GetEQUAL — a national civil rights organization fighting for full equality for lesbian, gay, bisexual, and transgender (LGBT) Americans — issued the following statement in response to the Obama Administration’s submission of an amicus brief to the Supreme Court on California’s Proposition 8 case:
GetEQUAL congratulates President Obama for submitting an amicus brief asking for the Supreme Court of the United States to deem Proposition 8 in California unconstitutional. However, by arguing to the court that Proposition 8 does not violate the 14th Amendment to the U.S. Constitution, the Obama Administration has limited the scope of this brief — leaving millions of LGBT Americans unprotected against similar ballot measures or discriminatory laws.
GetEqual just doesn’t get it, if you ask me. They need to get a clue on their way to Getting Equal. It isn’t that they are wrong in theory. Yes, everyone deserves to be protected from discrimination. But few with any experience in reality, would expect creating public policy by one Supreme Court decision to the plausible step to that end.
Two Marriage Cases
The single most important same-sex marriage case before SCOTUS is a the case that could overturn DOMA, and end Federal discrimination against legally married same-sex couples across the country. Once DOMA falls, the path to full equality will speed up. DOMA is a Federal law, something that the Federal Government has jurisdiction over. But of course, GetEqual issues no press release about the government’s brief in the DOMA case.
It isn’t known how the Supreme Court will rule on the Prop 8 case, but the very decisions that are before the course in this case can only lead to a limited decision. It was even somewhat surprising that the Court chose to take the case, given the limited impact of a ruling. It is the case itself, which limits the breadth of the decision, not the arguments made in the President’s brief, but don’t look to GetEqual to get those facts straight (pun intended). In fact there is reason to really worry given Justices like Scalia on the bench. And the President’s brief is just one of many submitted. It is not useful to pick each brief apart, but rather to look at how the whole of the briefs help support a case for overturning Prop 8.
Marriage regulation and policy has in general, always been relegated to the States, and expecting the President to abandon that basic principle is not merely asking for him to evolve, but asking for him to turn his back, and the country’s proverbial back on our democracy. A better strategy to protect others, is to have Prop 8 soundly struck down establishing case law that makes any new similar laws impossible.
GetEqual would do wise to consider the history surrounding a Woman’s Right to Choose. You could claim that a single court case settled the issue of abortion, but in reality, every year we watch an erosion of Women’s Rights, and the battle is no less volatile today than ever before. For real protection and Equality of Gay, Lesbian, Bi, and Trans persons, a similar trajectory will not suffice. It is not enough. A better strategy involves won court cases coupled with ongoing, growing support within our culture for Equality.
Please don’t misunderstand me. I am not saying we should sit quietly and await full equality. We should not! But we also shouldn’t criticize actions which can’t make the difference in the long run, or even the short term. Let me be clear, that the President’s brief didn’t revolve around the 14th amendment won’t make the difference in the outcome of this case, and criticizing the President accomplishes nothing except an attempt to make GetEqual seem relevant.
A more reasoned analysis of the President’s position has been offered by Andrew Sullivan. Sullivan has a better grasp on the strategic importance of the President’s position as well as the real impediments to full equality.
The president says rather more dispassionately what I believe. I believe the right to marry is vested in the very Declaration of Independence, and that gay people have as deep a right to it as straights as it is currently composed. But I don’t want that view to be forced, rushed or coerced into action by the Supreme Court, especially when America, and so many states are moving so fast toward equality anyway. Why not keep the judicial decisions limited so as to make the political victories more profound? If there was no way a tiny minority could win the democratic argument, it would be one thing. But in a matter of a decade or so, we have persuaded over half the country and a huge majority of the next generation. Why would I want to give the religious right the satisfaction of saying it was forced on people by unelected judges? Why not get the results of a Roe v Wade without a Roe vs Wade?
Roe v Wade, as I stated above is an extremely important model to consider precisely because of the way the religious opposition to each issue is so similar. We are in a period of great change and the fundamentalist religious machine which includes the Roman Catholic Church, is fighting with all its might to keep power. Eventually it will lose, but in the mean time we must consider how we keep all of our rights fully, rather than have a possible court victory and then watch our rights diminished bit by bit.
Sullivan’s post however, focuses on a different point, what it called the “eight state solution,” and it deserves consideration. We, and I use that term in the broadest means possible, need LGBTQ Equality to happen as seamlessly and easily as possible. The repeal of DADT, and the incorporation of gays and lesbians in the military is a good example. While groups like GetEqual complained that the military ban was wrong and many worried that the Armed Forces were taking too long to consider lifting the ban, in the end, the entire strategy proved successful. GetEqual was no real help on that issue, as their strategy of complaining just isn’t that useful when action is already in the works for change.