New Yorker on Marriage Equality Lawsuit

The New Yorker has a terrific article by Margaret Talbot on the marriage equality case, Perry v. Schwarzenegger, that began yesterday in San Francisco. It has pretty much everything you need to know about the case from soup to nuts.

I have to admit that while I was very leery of this lawsuit and thought it was a terrible idea, the more I read and think about it the more excited I am. It feels good to be going on the offensive. Ted Olson may be a Dark Lord, but in this case he’s our Dark Lord. By which I mean that he’s a top-notch lawyer, and it’s great that he’s finally using his powers for good. If there’s going to be a marriage equality case before the Supreme Court, we couldn’t have stronger legal representation.

And yes, it’s possible that the case will wind up in the Supreme Court and that we will lose. On our side: Ginsburg, Breyer, hopefully Sotomayor, and hopefully whoever replaces Stevens after he likely retires this summer. On the other side: Scalia, Thomas, Roberts, Alito. In the middle: Anthony Kennedy, who wrote Romer and Lawrence and therefore would seem to be on our side, but you never know, especially since it would be a really big deal for the Court to overturn the laws of 39 states. Some say that if we lose, it will set gay rights back for years. On the other hand, what do we really have to lose? And if not now, when? Roberts, Alito and Thomas are all young, and Scalia could be on the Court for another 10-15 years. The makeup of the Court isn’t going to change in our favor anytime soon.

More importantly, this case is a great teaching moment. From the list of witnesses that Ted Olson and David Boies have put together, it looks like the case will touch on everything from marriage to discrimination to child-rearing to children’s education to so-called “conversion therapy.” Despite the ballot initiatives and the state legislatures that keep going against us, the more we discuss marriage equality, the more the public gets on our side.

On the other hand, if the Supreme Court rules in our favor, it could give fuel to the movement to pass the Federal Marriage Amendment. But you know what? I can’t see 67 U.S. senators voting to enshrine discrimination in the Constitution. And I’m tired of worrying about what our opponents are going to do if we fight for our rights. We’ve been timid for too long. What happens, happens.

Interestingly, there’s another federal marriage equality case going on right now, Gill v. Office of Personnel Management, which seeks not to overturn state laws against marriage equality but rather to overturn part of the Defense of Marriage Act. Gill seeks to force the federal government to recognize same-sex marriages that were validly performed in a state that recognizes them. Normally, if, say, Massachusetts allows a marriage to take place, the federal government doesn’t second-guess Massachusetts and refuse to recognize that marriage. Why should it be any different in the case of same-sex couples? This is what the Gill plaintiffs argue, and in a sense it’s a more palatable case, because it seeks not to overturn state laws but rather to strengthen them. It’s not clear which case will get to the Supreme Court first, Gill or Perry.

In the meantime — still waiting for Obama to stop discharging U.S. soldiers for being gay, and for Congress to repeal Don’t Ask, Don’t Tell.

Damn, I’m tired of waiting.

5 thoughts on “New Yorker on Marriage Equality Lawsuit

  1. Yeah, however Perry goes, I am very glad for all the testimony that will be out there in the public record. It’s good for our side. Judge Walker cast a really wide net as to the issues he wants discussed, and I’m looking forward to having all the anti-gay Prop 8 motivations scrutinized (and pulverized).

  2. Yeah, I was wary of this, too. But you know, the arguments of the people who oppose same-sex marriage are so offensive and ridiculous – they ought to be held up to the light of day.

    I mean, they act as if we live in some white picket fence, Ozzie and Harriet world where every household has a working dad and a stay-at-home mom, 2.5 children and a dog.

    There are no out-of-wedlock births, no divorces, no children living in foster care or single-parent households. Everything is perfect and “the gays” want to defile this perfect institution.

    It makes me sick.

    I’m tired of the “pro family” groups pointing to these votes in state legislatures and referendums and saying well the people just aren’t ready for it.

    Those votes mean nothing when it comes to justice and fairness. If every state, every state legislature, had voted to uphold Jim Crow laws would that have made them right?

    So let’s send to the courts. I’m tired of my friends, people I love being treated as second-class citizens. Let’s get the bigotry and ridiculous arguments out there for everyone to see.

    Sorry for rambling!

  3. Olson has a great article in Newsweek where he highlights these arguments. I love that no one has ever been able to coherently explain how gay marriage can hurt straight marriage. Once you take away the “God says so” argument, all you’re left with is the “Gay sex is icky” argument.

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