Thursday, January 20, 2005

First DOMA Challenge Fails:

Read the full story here. What’s most remarkable about all this is not the fact the challenge failed but the disturbing hubris of the attorney representing the lesbian couple:

"This is a legal shot heard 'round the world," said attorney Ellis Rubin, who filed the lawsuit on the women's behalf. "But we are not giving up. ... This case is going to be resolved in the U.S. Supreme Court, and I have said that since the day I filed it."

Apparently, Ms. Rubin would rather get her chance to argue a case in front of the high court than actually consider the consequences for gays and lesbians if the challenge should fail. Maybe she needs to reread Lawrence v. Texas, where Justice Kennedy’s plurality opinion went out of its way to disclaim any intent to legalize same-sex marriages:

[The present case] does not involve [the question] whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.

In other words, it is one thing for a state to criminalize private sexual behavior, and quite another to withhold a benefit like marriage. Even more telling about the Lawrence decision, however, is just how much energy the Court spent disputing the allegedly long history of criminal laws targeting homosexuals and noting, inter alia, that:

In our own constitutional system the deficiencies in Bowers [1986 case upholding constitutionality of Georgia anti-sodomy statute] became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances.

None of this can be said of the 49 states that currently forbid same-sex marriage by constitutional amendment, statute, or common law – a fact that does not bid well for Ms. Elbe’s legal prospects. Nor is the situation similar to the status of antimiscegenation laws in 1967 when Loving v. Virginia was decided. Then, only 16 states still had the laws on the books, while some states had never had them in the first place.

THE BOTTOM LINE: As I argue below, those of us who support gay marriage need to remember that our strategy is bound to fail if we continue acting as though we do not live in a democracy. Rather than bringing lawsuits that threaten to set bad precedents and engender an even larger conservative backlash, we ought to be focusing instead on the much harder – but ultimately unavoidable – task of winning over the hearts and minds of those state legislators who oppose gay marriage and the voters who, year after year, keep electing them.

The alternative, I'm afraid, is that those conservatives who are so upset with Bush's decision not to lobby for a federal marriage amendment will be given exactly what they need to succeed. As White House spokesman Scott McClellan pointed out the other day:

"Remember, in the Senate, you have to have 67 votes to move a constitutional amendment forward. And there are a number of members of the Senate that have said that they're not open to it until the Defense of Marriage Act faces a serious legal challenge. So that's just talking about the legislative reality."

1 comment:

Anonymous said...

I don't necessarily think that you are incorrect, esp. about the lawyer's ambitions, but I do think that the route of lawsuits is just as effective and maybe also just as necessary as the route of changing hearts and minds that you described. To many people, (perhaps yourself incl?) every decision against gay marriage has been a decision that is inconsistent with the ideals of this country and of freedom, liberty, etc. yes the supreme court (rehnquist, scalia, thomas, etc) don't see it that way. but nonetheless, people file lawsuits with this in mind... that ours is the only correct and right result and eventually it must win out, no matter how unpopular. in a different context, for example the civil rights movement, it would seem ludicrous that an african american person would say s/he needed to convince everyone that s/he deserved rights before expecting to get them. of course these rights are deserved... they are owed... they are inherent in being a human being. it doesn't matter that some bigot somewhere is unconvinced, that doesn't change the right and wrong of the situation. if you have to wait for every person who thinks that they are god to decide to allow you to have basic human rights, then you will live a long time (if they let you live at all) without them.