Thursday, June 27, 2013

Justice wins

Victory is a great-sounding word when one is on the winning side. When that victory is for justice, freedom and fairness, it’s particularly sweet.

This morning I woke to the news that the US Supreme Court had rejected the appeal on California’s Proposition 8, which took away the freedom to marry for same-gender couples in California, as well as Section 3 of the federal Defense [sic] of Marriage Act (DOMA), which prevented the federal government from recognising the legal marriages of same-gender couples for ANY federal purpose.

It was a great way to start the day.

Writing for the majority on the DOMA case, Justice Kennedy noted that DOMA stomped on the sovereign authority of States by frustrating their attempts to bring equality to all their citizens. This was, of course, what Congress intended to do: “The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”

This is the heart of the matter: Congress, motivated by anti-gay animus, passed DOMA specifically to prevent same-gender couples from being treated equally. By enshrining that discrimination in federal law, Congress hoped to discourage states from enacting marriage equality.

The rightwing justices who dissented attacked this idea. They argued that the name of the law—cited by the majority as evidence of animus—was irrelevant because it merely meant that they were merely trying to uphold a “traditional” view of marriage. This is extremely disingenuous. The name was meant to be confrontational, to indicate that conservatives in Congress thought that marriage was under “attack” by gays from which they demanded it be “defended”. If their intent had not been adversarial, they would have called it something milder, like “Definition of Marriage Act”. They didn’t, and that matters.

A lot of this is about semantics, though, when the real issue was that Congress deliberately excluded a whole class of people—legally married same-gender couples—from the rights and responsibilities of opposite-gender married couples. Justice Kennedy highlighted some of those.

In his puerile, condescending dissent, Antonin Scalia—true to form—went on the attack. He rejected everything in the majority opinion, essentially arguing that legally married same-gender couples should wait decades and decades until state legislatures and Congress eventually evened-out what marriage means. Scalia, who has a long history of anti-gay remarks—some quite vile—bristled at the notion that anyone might think they were monsters (his word) because of their anti-gay prejudice and bigotry. Well, as I always say, if someone is upset at being called a bigot, perhaps they should stop acting like one.

Scalia also engaged in a finger-wagging “I told you so!” over Lawrence v. Texas, decided ten years ago today, that struck down the USA’s remaining anti-sodomy laws. Back then, he thundered that in recognising that gay people had the same right to privacy as heterosexuals, the Court would one day find a right to marriage itself for same-gender couples. Despite his puffed-out chest back then, and his over-inflated claims today, the Court today did no such thing.

This ruling dealt with the fact that Congress cannot choose to treat an entire class of people differently solely because of its personal anti-gay animus. Marriage itself is left up to the States, as it always has been. In that sense, nothing’s changed. But if the Constitution doesn’t ensure the equal protection under law of all US citizens, then what good is it?

Still, Scalia thundered anyway that this ruling would one day lead the Court to overturn all bans on same-gender couples marrying. I hope he’s right about that, but his predictive abilities aren’t very acute. Still, I suspect that one day in the future, probably long after Scalia is dead and buried, there will be a Loving v. Virginia-type ruling that will strike down the remaining bans on marriage equality in the few backward states that still retain them then. But that could be decades from now, by which time other rulings will have paved the way as much as this one.

For LGBT people, the ruling on DOMA marks a significant point in the long road toward freedom and equality—but the journey is far from over, even with Section 3 of DOMA gone. There are still 37 states in which same-gender couples cannot marry, and this must be fixed. It will be a long and expensive struggle, but we will ultimately triumph, of course; the work on all that starts now.

There are also many uncertainties about the ways that the federal government will treat married same-gender couples due to differing standards: Some agencies use “place of domicile” (where a couple lives) to determine if their marriage is recognised by the federal government or not (is the couple’s marriage recognised where they live?). Other federal agencies use the “place of celebration” standard (that is, where the marriage was performed—if it’s legal there, the federal government recognises it even if the “place of domicile” state doesn’t). Opposite-gender couples don’t have to worry about this because their marriages are legal in all 50 states, even if there are some minor technical variations. There’s an excellent Fact Sheet on all this available from Lambda Legal’s website.

This ruling is more important nationally than the Prop 8 ruling, though that ruling is still important. As soon as the Courts there lift the stay on marriages, the freedom to marry will return to the USA’s most populous state. That’s a very big deal, indeed.

The frothing rightwing in the US issued their spittle-flecked condemnations of the rulings, of course, still spouting the irrational, absolute nonsense for which they are famous. That was to be expected—and laughed at, of course, because our adversaries are a constant source of amusement. For now.

In the days ahead, I’ll say much more about what happens next, as well as about the Prop 8 ruling. For today, however, I just want to bask in that one word: Victory.


The image of the US Supreme Court building at the top of this post a Creative Commons licensed photo by Wikiwopbop, published by Wikimedia Commons. I first used it in a related post early last year.


Arthur (AmeriNZ) said...

Scalia is morally AND intellectually bankrupt. On Scalia's planet, things are proper only if he says they are. The nicest word for that is hubris, but I'd choose a much stronger word.

I don't know what standard immigration uses when evaluating marriages, but I expect to that settled fairly quickly. I'll be having more to say about this in another post.

rogerogreen said...

Meanwhile, Scalia throws himself into judicial activism in the partial repudiation of the Voting Rights Act of 1965.

As for the DOMA thing, I'm tentatively happy, though, as you note, the devil WILL be in the details of application. It should - as I've been alluding to for a while - allow gay international couples the same rights as hetero couples, at least in those dozen states. But my, this wlll be messy law for a good while.