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By Mark Gabrish Conlan

April 7, 2013 (San Diego)--On March 26 and 27, the U.S. Supreme Court heard two major cases over whether same-sex couples have a constitutional right to marry.

On March 26 they heard arguments on whether Proposition 8, which California voters passed in November 2008 to short-circuit the ruling of the California Supreme Court that the state’s constitution did not allow it to deny marriage to same-sex couples, is unconstitutional under the equal protection clause of the 14th Amendment to the U.S. Constitution. The next day they heard the case of Edith Windsor, who legally married her long-term partner, Thea Spyer, in Canada in 2007, then got socked with a federal estate tax bill of $367,000 because the federal government didn’t recognize her marriage under the so-called “Defense of Marriage Act” (DoMA) passed by Congress in 1996.

The two cases rest on somewhat different legal issues, and it’s quite possible the court could throw out Proposition 8 and uphold DoMA — or vice versa — but the underlying issues are the same.

Are gay and lesbian people equal to everyone else, and therefore entitled to legal recognition of their relationships on the same basis as everyone else? Or are they somehow “different,” “alien,” apart from the common run of humanity and so unique that their relationships should be treated differently and not given the same respect heterosexuals can claim from society by marrying each other?

Not that this basic issue was always kept front and center in the actual hearing. There was a lot of talk on such legal arcana as “standing” — whether the people in court actually have a right to legal relief — and “scrutiny,” the level of review the laws forbidding legal recognition of same-sex marriage should be subjected to for the Court to decide on whether they’re constitutional. Indeed, in the Prop. 8 case attorneys on both sides — Charles Cooper, representing the initial sponsors of the initiative; and Ted Olson, on behalf of the two couples (one Gay, one Lesbian) who filed the suit — got lectured by chief justice John Roberts when they tried to talk about the merits of the case without first addressing standing.

Standing became an issue in the case when the people usually charged with defending federal and state laws against constitutional challenge — the President, state governor and federal and state attorneys general — decided not to defend their state’s laws on the ground that they believe Prop. 8 and DoMA are unconstutional. Instead, Proposition 8 was defended by the five people who organized the campaign to put the measure on the ballot in the first place — the so-called “initiative proponents” — and the defense of DoMA went to George W. Bush’s solicitor general, Paul Clement, as representative of something called the Bipartisan Legal Advisory Group (BLAG). BLAG was founded by House Speaker John Boehner and, despite the “bipartisan” in its name, really only represented the House Republican leadership. Originally Boehner had got Nancy Pelosi, leader of the Democratic minority in the House, to join BLAG — but when she found out its purpose was to defend DoMA, she bailed.

The possibility that the Supreme Court might throw out either or both of the marriage equality cases on the ground that the Proposition 8 proponents and BLAG don’t have standing suggests they might reach a progressive outcome via conservative reasoning. “One thing conservatives who advocate judicial restraint push is a very limited view of what constitutes a ‘case or controversy’ [under Article III of the Constitution],” San Diego attorney Eric Isaacson — who filed an amicus curiae (“friend of the Court”) brief in the Prop. 8 case on behalf of the California Council of Churches and several other liberal and progressive faith organizations — told a community meeting in Hillcrest a week before the Court hearings. “That allows them to throw out cases filed by the American Civil Liberties Union (ACLU), environmental organizations, and the like.”

If the Court rules that the Prop. 8 proponents and BLAG can’t prove that they were personally hurt by the lower-court rulings and therefore don’t have standing, they could restore same-sex marriage to California and give Edith Windsor back her $367,000 — but they’ll also bolster their decades-long quest to close the courthouse door to progressive individuals and organizations seeking social change through litigation. Indeed, at least two justices, Anthony Kennedy and Sonia Sotomayor, hinted that they may do something even more extreme than throw out the cases on standing; they may “DIG” them. “DIG” — an acronym for “dismissed as improvidently granted” — is one of the dirtier little secrets in Supreme Court jurisprudence. It’s basically the Court saying, “Oops, we made a mistake when we agreed to hear this. We’re not ready to decide this yet. Come back later, and in the meantime the lower-court ruling stands.”

That would be a mistake, columnist David Sirota argued in a March 28 post on salon.com (http://www.salon.com/2013/03/29/there_isnt_a_right_time_to_strike_down_doma/). According to Sirota, Kennedy and Sotomayor were saying that the Supreme Court should wait until there’s more of a public consensus on same-sex marriage either way before they rule on whether or not banning it is constitutional. That, Sirota argued, would be ducking the Court’s responsibility to enforce the Constitution. “Judges are supposed to prevent a tyranny of the majority from trampling the constitutional rights of minorities,” he wrote. “As they did in the Loving v. Virginia case overturning bans on interracial marriage, justices are supposed to uphold the Constitution even if public opinion doesn’t support them doing so. That can only happen if judges are ruling exclusively on the constitutionality of discrimination, and not on whether such discrimination happens to be supported by the majority of citizens.”

That’s an interesting comment given that the entire strategy of the forces opposing marriage equality was, from day one, to freeze the unequal status of gay and lesbian couples into law while public opinion was still on their side. In 1993, when the Supreme Court of Hawai’i hinted that they might rule that banning same-sex marriage was a form of discrimination based on gender (i.e., a man could marry a woman but a woman couldn’t, and a woman could marry a man but a man couldn’t), marriage equality and queer-rights opponents mobilized to pass the first Proposition 8-style state constitutional ban before the court had a chance to make its ruling final. What’s more, Congress passed DoMA in the first place to avoid the “threat” that other states would have to recognize same-sex marriages performed in Hawai’i under the clause of the Constitution that requires every state to give “Full Faith and Credit … to the public Acts, Records, and judicial Proceedings of every other State.”

Paul Clement, the attorney defending DoMA at the Supreme Court March 27, admitted as much when he explained that when DoMA passed, “Congress [was] addressing this issue because they are thinking that the state of Hawai’i through its judicial action is about to change the definition of marriage from a way that it had been defined in every jurisdiction in the United States. … Congress in 1996 at that point says the states are about to experiment with changing this, but the one thing we know is all these federal statutes were passed with the traditional definition [of marriage as between one man and one woman] in mind. … [W]hat Congress was trying to do was trying to provide uniform treatment of taxpayers across jurisdictions.”

This was actually a major departure from the way differences in marriage laws between U.S. states have usually been handled. Generally, if a U.S. state says you’re married, you’re married everywhere in the country, even if your marriage would not have been legal in the state to which you move. Some states allow first cousins to marry; others don’t. Some allow people as young as 13 to marry; others don’t. U.S. law always handled marriage as a matter to be regulated by the states, with one big exception. In 1890, the federal government massed an army on the borders of Utah and told the Mormon-dominated state government that if they didn’t stop allowing polygamy, the feds would invade. The Mormon church’s leader had a handy revelation that polygamy was no longer acceptable (at least in this lifetime; they still believe in it in the next world, after you die), the feds backed off, Utah got admitted to the U.S. as a state and the crisis passed.

DoMA created another big exception to the rule that the full faith and credit clause requires states to recognize other states’ marriages. What’s more, according to the official House of Representatives report on the bill, it did that “to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.” When Justice Elana Kagan quoted that from the bench during Clement’s argument, he sputtered a bit. “We are not going to strike down a statute just because a couple of legislators may have had an improper motive,” Clement said. “Congress was trying to promote democratic self-governance … in a situation where an unelected state judiciary in Hawai’i is on the verge of deciding this highly contentious, highly divisive issue for everybody, for the states — for the other states and for the federal government.”

That’s the big secret of same-sex marriage: if you get rid of DoMA — not only the clause at issue in the Windsor case that bars legally married same-sex couples from receiving federal benefits given to legally married opposite-sex couples, but also the one, not at issue in the current case, that allows states to refuse to recognize same-sex marriages from other states — you essentially have marriage equality nationwide. Even if your state has a legal ban on same-sex marriage, you could travel to a state — or, like Windsor and her late wife did, a foreign country — that allows it, then demand that your home state accept you as married and give you all the benefits. Indeed, if the Court throws out DoMA but upholds the power of states to limit marriage to opposite-sex couples, one could readily imagine Gay and Lesbian travel agents booking package tours for sufficiently well-heeled same-sex couples to combine their wedding and their honeymoon via a vacation to a marriage-equality state — much the way Israeli travel agents book trips to Italy so opposite-sex Israeli couples who aren’t sufficiently Orthodox Jews to qualify for marriage at home can get hitched, ironically, in the home country of Roman Catholicism.

But DoMA wasn’t enough for the anti-Queer, anti-marriage crowd. Over the next two decades, they sponsored both legislative bills and ballot measures aimed at keeping marriage throughout the U.S. limited to opposite-sex couples. And they won this battle in every state in which they fought it — with just one exception, Arizona, which voted down a same-sex marriage ban in 2008 but passed it in 2010 — until November 2012. Then their winning streak ended and four states (Washington, Maine, Maryland and Minnesota) voted against them. That’s what Roberta Kaplan, Edith Windsor’s attorney, was talking about when she told the Court March 27, “No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way Gay people have.”

One curious aspect of the March Court hearings was that the defenders of both Prop. 8 and DoMA said those laws were not intended to do anything more than delay legal recognition of same-sex marriages. Clement said that by passing DoMA, Congress was saying, “Let’s take a time-out here. This is a redefinition of an age-old institution.” Likewise, Charles Cooper, representing Prop. 8, called it a “pause button” pressed by anxious California voters unsure that they wanted to extend marriage to same-sex couples.

Solicitor-general Donald Verrilli, arguing on behalf of the U.S. government — which had taken the position that Prop. 8 should be overturned, though in a way that limited the effect of the ruling to California only — denounced this as the nonsense it is. “California did not through Proposition 8 do what my friend Mr. Cooper said and push a pause button,” Verrilli argued. “They pushed a delete button. This is a permanent ban. It’s in the [state] Constitution. It’s supposed to take this issue out of the legislative process.”

And what comes through most strongly in the transcript of the Court hearing is how little justification there is for not allowing same-sex couples the option of legal marriage. There are basically only two justifications for banning same-sex marriage: history (marriage has generally been defined as a heterosexual union) and procreation. The proponents of Prop. 8, DoMA and similar laws are so obsessed with the fact that opposite-sex couples can make babies with each other and same-sex couples can’t that after the Court hearings, cartoonist Tom Tomorrow joked that perhaps the marriage ceremony should be rewritten as, “Do you, penis, take this vagina … ”. When Charles Cooper defended Prop. 8 by saying, “Same-sex couples and opposite-sex couples are not similarly situated,” that’s what he had in mind.

Asked by Justice Kagan if he could come up with any state interest that would be harmed by allowing same-sex couples to marry, Cooper said, “Redefining marriage to — as a genderless institution could well lead over time to harm to that institution and to the interests that society has always — has — has always used that institution to address.” Pressed on the point by Justice Kennedy, Cooper said, “Redefining marriage will have real-world consequences, and … it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.” In other words: sorry, Gay and Lesbian couples; we can’t allow you to get married because something bad might happen if we do.

Indeed, one maddening thing about marriage equality opponents is their insistence that we can’t “redefine” marriage. Marriage has been continually redefined as long as it’s existed. It always amuses me when opponents say they want to uphold “the traditional Biblical definition of marriage as one man and one woman,” not only because under the whole idea of freedom of religion no one tradition’s holy book should be the basis of legislation, but also because the traditional Biblical definition of marriage is not one man and one woman. At least in the Old Testament, it’s one man and however many women he can support financially — which in practice made polygamy a luxury of the rich. The limit of marriage to one man and just one woman was a redefinition imposed on the Jewish religion — and its offshoot, Christianity — by the Roman Empire.

Marriage once had far more to do with property rights than with romantic interests. Marriages were arranged either by parents, relatives or professional matchmakers, and at least in the upper classes they were far more like today’s corporate mergers — bringing two large estates together to improve their business prospects — than today’s marriages. The idea that people should choose their own marriage partners, and that they should do so on the basis of love, companionship and mutual compatibility instead of property rights, was a redefinition of marriage from the 19th century. The idea that men and women should enter into a marriage as economic equals and women should be allowed to keep sole ownership of the property they had when they married, instead of it all automatically becoming their husbands’ property the moment they said, “I do,” came even later in the 19th century. And the idea that a husband could rape his wife — that marriage did not mean a man could have sex with his wife any time he wanted, whether she wanted to or not — didn’t become part of California law until (get ready for a shocker) 1977.

So there’s nothing new — or particularly sinister — about “redefining” marriage. And the reason extending marriage to same-sex couples is on the table now is our understanding of gay and lesbian people and their relationships has grown. The answer to Justice Antonin Scalia’s typically snotty question of just when it became unconstitutional to discriminate against same-sex couples in marriage law is the same as the answer to when it became unconstitutional to segregate people in education and public accommodations on the basis of race: when enough people realized that there were no differences between black and white people, or between straight and gay or lesbian people, that justified the discrimination. In both cases it took decades of principled, courageous and sometimes risky activism on the part of the minorities victimized by such discrimination to bring about the social consensus that the discrimination was wrong. And in both cases it was the activism that came first, the legislative and judicial acknowledgment that came later. That’s how social change works, and that’s what’s ultimately going to bring about marriage equality for same-sex couples no matter what the Supreme Court decides about the two cases before it now.

The views in this column reflect the views of the columnist and do not necessarily reflect the views of East County Magazine.

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