Tag Archives: marriage equality

Federal Marriage Suit

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The Times has an article today about a judge’s refusal to dismiss the federal marriage equality lawsuit:

In the courtroom, Mr. Cooper’s arguments seemed to fall of their own weight. The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”

Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95 and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

Mr. Cooper said no.

“And I might say it was a very happy relationship,” Judge Walker said.

“I rejoice to hear that,” Mr. Cooper responded, returning to his theme that only procreation matters.

Obama and the Gays

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I watched Obama’s speech to the Human Rights Campaign on Saturday night. I was underwhelmed.

Many others have pointed out that it was the same speech Obama could have given as a candidate. As Dan Savage wrote, “Imagine all the wonderful things this guy is going to accomplish if he ever actually gets elected president.” Ooh, Obama mentioned Stonewall in his speech! What is this, 1992? Mentioning Stonewall is like buying a Hallmark card. It means you don’t really give a shit, so you’re going to resort to a cliché. What about Frank Kameny? What about Harry Hay?

Then there was the appalling email that the head of the HRC, Joe Solmonese, sent out a few days ago, apparently saying that we shouldn’t judge Obama’s gay rights record until January 2017. I don’t think he was saying what some critics claim; I think he was merely making the point that by the end of Obama’s administration, we will have seen progress on gay rights, and hey, let’s be optimistic and hope Obama serves two terms instead of one. But that’s not how it came off to some influential people, such as Andrew Sullivan and Dan Savage and John Aravosis, and that’s not surprising given that the HRC has accomplished nothing except raising money and holding fancy dinners. To Sullivan and the others, Solmonese seems to be saying that we should wait until 2017 to see any progress. So we may as well have waited until 2012 to elect a Democrat.

Yes, Solmonese’s email was misinterpreted, but it serves him right. Oooh, hate crimes laws! Yay! As if hate crimes aren’t already prosecuted as crimes.

Meanwhile, my frustration with Obama is growing. I’m guessing that he’s waiting until health care passes before addressing gay rights, and that in early 2010, we’ll see him start to move on DADT. He’s afraid of bringing up any “touchy social issues” until health care’s out of the way, and he’s spooked by what happened to Clinton in 1993. But this is 2009, not 1993. Ending DADT is no longer controversial; nearly 70 percent of the public supports ending it.

To be honest, if the choice were between health care reform and gay rights, I’d choose health care reform, because that affects tens of millions of people and it’s one of the biggest problems our country faces. But who says there has to be a choice? Is gay rights really going to drain political capital from health care? Really? If it can survive fake death panels, it can survive DADT.

Obama, despite what the teapartiers think, is not a radical. He’s cautious about moving too quickly — in this case, perhaps too cautious. And nothing can excuse those awful legal briefs in which the administration defended DOMA. I’d be amazed if Obama actually takes any action against DOMA, especially since he’s on record as not supporting marriage equality. (Never mind that both Bill Clinton, who signed DOMA, and even Bob Barr, the former Republican congressman who wrote DOMA, think it should be repealed.) That said, if Congress passes the Respect for Marriage Act, I don’t doubt Obama would sign it.

Still — once again, we are lured for our votes and our money, but a Democratic president isn’t going to lift a finger to actually do anything to help us. If he doesn’t do anything next year, we’ll know Obama doesn’t give a shit about gay rights.

Judicial Liberalism Not Happening

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If you believe in judicial liberalism — which I sometimes do and, to be honest, sometimes don’t — the current direction of the Court is a little depressing. Tom Goldstein, Supreme Court analyst extraordinaire, points out that the conservatives on the Court are free to move at a measured pace in overturning liberal precedents, at least for a while:

For the moment, there is no reason to rush. Time permits a jurisprudence of not just originalism, or textualism, but actuarialism. The sand running through this hourglass will not expire for eight years.

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left. If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left. Nothing changes.

It isn’t until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court’s ideology. Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now). Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left. Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon. Again, no need to rush.

Unless something happens to Scalia, Thomas, Roberts, Alito, or Kennedy in the next few years, the Court is on a slow rightward trajectory.

On the issue dearest to my heart — gay rights — it probably doesn’t mean much. Kennedy has been pretty pro-gay (Romer, Lawrence), but I don’t expect the Court to take up same-sex marriage for a while. It didn’t overturn the nation’s sodomy laws until only 13 states were left with such laws; the Court is too cautious to constitutionalize same-sex marriage rights at this point, when only six states allow such marriage.

What else could the Court tackle? Don’t Ask/Don’t Tell will be history in the next few years — I’m pretty sure Obama will get around to it after health care and energy are taken care of. DOMA (full faith and credit clause) is a possibility — which would be a sidelong way to rule on same-sex marriage. But I don’t think the Court will touch that right now. Again, the issue is just too volatile, and the Court generally knows when to stay out of things. (It has learned from abortion; would Roe v. Wade come out the same way today? Who knows; the opinion would at least be less intrusive if it were written today.)

Of course, I could be wrong. Issues have a way of showing up on the Court’s docket unexpectedly, especially since it only takes four Justices to vote to hear a case.

But for now, things seem to be in stasis, at least where gay rights are concerned. As for everything else — drifting right.