A post I wrote critical of GetEqual’s press release/ criticism of the Obama Administration’s brief in the Prop 8 appeal, led to some great dialogue where it was posted on Facebook. One commenter, David da Silva Cornell, wrote a wonderful comment, and with his permission, I posted it to my blog. I’d like to reply to his comments and share further ideas.

David writes as both a lawyer and as an activist, so his perspective is especially interesting. If you haven’t yet read his comments, I’d suggest that you do. I want to respond to this part first:

But it’s important that we also maintain voices that are uncompromising, like GetEqual or the Task Force, even while we live with certain compromises. Those uncompromising voices keep our eyes on full equality. They play a role, and an important one. There is no harm done by their doing so, either.

I agree with David that there must be a voice continuing to demand full equality, however, I’m not sure that GetEqual really does that. It could be argued that it does, but the problem I have is not with that message in general, but in the practical way it goes forward towards that. It is impressive that David cites GetEqual and the Task Force as being groups that maintain that voice. Consider how the press releases of these two organizations differ dramatically.”(bolded emphasis is mine)

The Task force

“President Obama made history when he became the first sitting president to explicitly support the freedom to marry for same-sex couples. With these amicus briefs, he has backed his powerful words with concrete action. The nation’s high court will consider one of the most defining civil rights issues of our time when it hears the Prop. 8 and DOMA cases. It makes perfect sense that our country’s highest leader should weigh in and urge the court to affirm our Constitution’s promises of liberty, equality and human dignity. In doing so, the Obama administration is standing for all families and for fundamental American values.”

GetEqual

RELEASE: GetEQUAL Calls on President to Fully Evolve on Marriage Equality

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.

From my perspective, these two say extremely different things. I have trouble seeing them as providing a similar voice for full equality. To read the LGTF statement suggests that Obama is standing for all families. But the GetEqual statement suggests he is not, and lays the blame on the President- that he is not fully evolved. I read GetEqual’s statement as an attack upon the highest level US elected official who has ever supported LGBTQ Equality.

GetEqual wanted the President’s brief to identify the 14th Amendment as the justification for why the lower courts opinion upheld and Prop 8 should be struck down. They have decided that the President didn’t do that because he hasn’t evolved enough. The reality however, is that the President didn’t cite the 14th Amendment because he is seeking a strategic outcome that includes the 8 State Solution. I think the President would say, and most everyone would agree, that we must have a win at the US Supreme Court, and he tailored his brief in ways he felt would accomplish that. It has nothing to do with being evolved enough. And GetEqual, by placing it in that context does do harm by attacking our strongest and highest level supporter. Thats is why I entitled my post, GetEqual Doesn’t Get It.  They are criticizing his level of evolvement, rather than merely disagreeing with his strategic choice. 

I also disagree with the David’s notion of  “our eyes on full equality.” Full Equality is far more than Marriage Equality! The phrase “eyes on full equality” is poetic and romantic, and has a catchy ring to it, but in my opinion is empty rhetoric. It is designed to sound good but in practical terms falls apart. I get David’s point however, and I do agree with him. We must not accept as enough, some rights or rights in some states but not all. I also question if anyone has to really be reminded to keep an eye on full equality. I’ve been an activist for close to 40 years, and I think it is rather ludicrous to think that if someone isn’t reminding us, we will forget and accept partial equality as if it were enough.

I’d hope David would say more about the brief with his “lawyer hat” on. We are not talking about legislative developments here. We are talking about a specific court case: Hollingsworth v. Perry. This case came out of the District Appeal, with a very narrow scope. Correct me if I am wrong, but there really isn’t anyway that the Supreme Court could decide Hollingsworth v. Perry such that it affected the entire nation. David, I’d like to hear your thoughts about that.

The President’s brief is but one of many many briefs filed, and while the amicus briefs may have marginal impact, they are not the basis of the Court’s final decision is it? The cases as presented by the lawyers for each side is what the Justices use as the basis predominately, isn’t it?

The original Judge’s opinion did conclude that Prop 8 violated the 14th Amendment  of the US Constitution, and the Appeals Court upheld that decision. GetEqual feels that Obama doesn’t affirm the protection of the 14th amendment.

…by arguing to the court that Proposition 8 does not violate the 14th Amendment to the U.S. Constitution…

Not everyone will agree that this reflects the President’s brief. The Los Angeles Times, puts it this way:

The Obama administration’s brief asks the justices to overturn the California ban and for the first time argues that the Constitution protects an equal right to marry for gays and lesbians.

So, which is it, the President does or does not argue for the constitutional protection for same-sex marriage? The President placed his weight as President on emphasizing the notion that this case deserves a heightened level of scrutiny. Here is the brief.

The President is really clear why he chose the strategy that he did:

Asked why he chose the more modest scope for the brief, Obama, a former constitutional law professor, said he believed the argument could lead to broad change.

“What we’ve said is that same-sex couples are a group, a class that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it’s doing it. And if the state doesn’t have a good reason, it should be struck down,” Obama said.

Activists may want a single case that is going to end the battle for Marriage Equality once and for all, everywhere across the country. However, it may be premature for that to happen, and that has nothing to do with the President or the President’s brief in this specific case.

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