By Mark Gabrish Conlan
Columnist's elation over marriage equality rulings is tempered by dismay over high court's ruling on Voting Rights Act
June 26, 2013 (San Diego)--The sun is shining this Wednesday, June 26 and it’s a beautiful, if rather hot, day in San Diego. I sent my husband Charles off to work this morning after we both got up early to watch MS-NBC broadcast news of the United States Supreme Court’s rulings on two cases involving the rights of same-sex couples to marry each other. It was a personal story to us because Charles and I are legally married.
We got hitched on July 4, 2008, during the four- and one-half month “window” between the effective date of the California Supreme Court’s decision granting marriage equality to same-sex couples under the California state constitution and the passage of Proposition 8 that November. We were looking forward to our fifth wedding anniversary and we got about as good a gift as we could have expected from the U.S. Supreme Court: a win on the federal “Defense of Marriage Act” (DoMA) and a qualified draw on the Prop. 8 issue that will allow marriage equality to return to California.
But, just as the passage of Prop. 8 tempered our joy that Barack Obama won the presidency that day and broke a major civil-rights barrier by becoming the first African-American to hold that office, our joy at the fall of DoMA (part of it, anyway — more on that later) and the impending return of marriage equality to California is tempered by the really horrible decision the Court rendered the day before. That was the one that eviscerated the 1965 Voting Rights Act that made possible the election of Barack Obama and many other qualified Americans of color to public office.
Chief Justice John Roberts’ decision in that case not only smacks of the kind of “judicial activism” the Right rails against when liberal and progressive judges practice it — he basically said that the Voting Rights Act was constitutional in 1965 but is no longer because it’s been such a success — it keys into a long-standing strategy of the Republican Party to regain and maintain total power in Washington, D.C. by preventing people who wouldn’t vote for them from being able to vote at all.
Already, just one day after the Court’s decision on the Voting Rights Act, Alabama, Mississippi and North Carolina — three of the nine Southern states covered by the “pre-clearance” requirement, struck down by the Court, that said they had to clear any changes in their elections laws with the U.S. Department of Justice to make sure they wouldn’t have a discriminatory effect against voters of color — introduced bills in their legislatures to require voters to show photo ID’s. Like the law at issue back in 1886 in the Court’s case Yick Wo v. Hopkins — passed by the city of San Francisco, it said you couldn’t run a laundry in a wooden building — voter ID laws seem fair on their face but have a discriminatory intent and purpose. The idea behind the law in Yick Wo, correctly held unconstitutional by the Court, was to put Chinese-American owned laundries out of business — and the idea behind voter ID laws is to make it difficult, if not virtually impossible, for poor people, especially people of color and homeless people, to vote.
To their credit, the Court majority’s assault on voting rights had its limits — they invalidated an Arizona law requiring voters to show proof of U.S. citizenship — but the practical impact of ending pre-clearance was to give states with a history of discriminating against voters of color license to come up with new, creative ways of denying the vote to the “wrong” people. This directly affects Queer (so-called “LGBT,” or Lesbian, Gay, Bisexual and Transgender) people because the states passing laws to make it more difficult to vote are generally Republican-dominated, and most elected officials who support and work to advance Queer rights are Democrats. We got a reminder of that when House Speaker John Boehner responded to the anti-DoMA decision by pledging that under his stewardship, the Republican House majority would continue to do all it could to keep the definition of marriage as one man and one woman.
This is important also because in the Prop. 8 campaign, we let a wedge be driven between us and our natural allies in the communities of color. The first exit polls on Prop. 8 said up to 70 percent of African-Americans had voted for it, and while that proved to be an overestimate it still won 57 percent of the vote from the African-American community, a higher margin of support than any other ethnic group. Later research indicated that religion played a much greater role in determining how people voted on Prop. 8 than race — the more often you went to church, the more likely you were to vote for the marriage ban whatever color you were — but in the meantime a lot of harsh things got said in the Queer community about people of color in general and African-Americans in particular. Now the shoe’s on the other foot; the Supreme Court at least partially upheld our right to legally recognized marriage while, in the words of Congressmember and civil-rights leader John Lewis (D-Georgia), “driving a dagger” through the law that allowed people of color to vote in large numbers and hold office in the U.S. While celebrating our own victory, we owe it to the communities of color and the cause of civil rights in general to mobilize in solidarity with them against efforts to suppress their vote and drive them out of electoral politics.
What did the Supreme Court do, and what didn’t it do, in the final days of its 2013 term? It basically gave civil rights advocates one great victory, the invalidation of the part of DoMA that prevented the federal government from recognizing marriages between same-sex couples legally performed in U.S. states or foreign countries. It handed them one severe defeat: the destruction of the most effective part of the Voting Rights Act in preventing states from suppressing the votes of people of color. And it gave us two draws. The Court punted on Prop. 8, ruling that the initiative proponents didn’t have the legal right (so-called “standing”) to take over the case after the state government refused to defend the measure in court — which will most likely mean the return of marriage equality to California but won’t have any effect on the other 37 states that still ban same-sex marriage. And on the fourth important civil-rights case it decided in the last three days, the Court ruled that the University of Texas didn’t do a good enough job showing it needed to use race as a criterion for admission to ensure and ethnically diverse student body, but it did not close the door on race-based admissions policies completely: another draw.
What the Court didn’t do was declare a nationwide right for same-sex couples to marry. It didn’t give us the sweeping decision it had in 1967 when it ruled that bans on interracial marriages were unconstitutional. It also didn’t rule on the other main section of DoMA — the ability of states to refuse to recognize same-sex marriages legally performed in other states or foreign countries — because neither of the cases before it presented that issue. But the Court got some things triumphantly right. Not only did it throw out the clause of DoMA that prevented the federal government from granting marriage benefits to legally married same-sex couples, it did so on the basis of the equal protection clause of the 14th Amendment. The Court could have declared DoMA unconstitutional on states’-rights grounds, which would have given a boost to future states defending their bans on marriage equality. Instead, throwing out part of DoMA on equal protection grounds provides a precedent for future lawsuits against marriage bans and increases the chance that a later Court might rule laws against same-sex marriage unconstitutional if a case comes to them without the “standing” snarls that allowed them to duck a definitive ruling on Prop. 8.
It’s also interesting that while the vote on the DoMA case followed a familiar pattern — as with the Court’s two other major cases upholding Queer rights, Romer v. Evans (1996) and Lawrence v. Texas (2003), Anthony Kennedy wrote for the Court majority and Antonin Scalia filed a scathing and snotty dissent — the Prop. 8 case broke the usual divisions between so-called “liberal” and “conservative” justices. On Prop. 8 it was chief justice John Roberts who wrote for the court, joined by Scalia and three of the so-called “liberals” — Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. This time Kennedy wrote the dissent, joined by “conservatives” Clarence Thomas and Samuel Alito and “liberal” Sonia Sotomayor. Kennedy, the only current Justice from California, wrote that “the Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials — the same officials who would not defend the initiative, an injury the Court now leaves unremedied.”
Though the Prop. 8 decision doesn’t say one word, pro or con, about marriage equality, it certainly looks like a win for marriage equality and its advocates in California. Governor Jerry Brown said on his Web page, http://gov.ca.gov/home.php, “After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California. In light of the decision, I have directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay” — the delay in their decision against Prop. 8 they imposed pending the Supreme Court’s appeal — “is lifted.” It’s not clear when that will be, but it’s likely to be within a month or two because of the way the Supreme Court’s decision was framed. The Supreme Court basically said the Ninth Circuit Court of Appeals shouldn’t have taken the case because the proponents of Prop. 8 didn’t have standing to defend it under federal law. They could have said they didn’t have standing in the trial court, either — which would have thrown out the entire case and thus left Prop. 8 in place — but they didn’t. Instead now-retired Judge Vaughan Walker’s sweeping and luminous destruction of every shred of argument against granting same-sex couples the right to marry is now the law of the land … in California, anyway.
I’m glad that the Supreme Court ruled the way it did on DoMA. I’m optimistic, based on the reasoning behind Justice Kennedy’s majority opinion on DoMA, that once the Court hears a challenge to the other half of DoMA — the part that says states don’t have to recognize same-sex marriages legally made in other states — they’ll throw that out too. If that happens, then marrying your same-sex partner will become like marrying your first cousin or marrying a 13-year-old; some states will allow it, some won’t, but if you marry in a state that allows it and then move to one that doesn’t, your marriage will still be recognized. That won’t be anywhere near as good as a ruling striking down all bans on same-sex marriage nationwide, but as a practical matter it will establish the U.S. as a marriage equality nation because for all but the poorest Americans, it will be relatively easy to travel to a state that has same-sex marriage and then return to your home state and demand that your rights as a married couple be recognized.
I’m also glad that, even though the decision was more a draw than a win, the outcome of the Prop. 8 case means that same-sex marriage equality is once again the law in California, or at least will be after the last legal i’s are dotted and t’s are crossed. I’ve said publicly on more than one occasion that Charles and I are tired of having “special rights” — the dreaded “special rights” the opponents of Queer equality are always accusing us of wanting — because we had the political savvy to jump through the hoop and marry while the clock was still ticking. Prop. 8 made California the first (and still, I think, the only) jurisdiction anywhere in the world to grant same-sex couples the right to marry and then take it away again — leaving Charles and I in a weird limbo in which, at least until the California Supreme Court ruling in 2009 upholding Prop. 8 but also certifying that the marriages before it passed were valid, our only honest answer to the question, “Are you married?,” was, “We don’t know.”
The fall of Prop. 8 ends this bizarre state in which Charles and I were entitled to legal marriage in California, and so were the estimated 18,000 other Gay and Lesbian couples who took advantage of the “window,” but other same-sex couples weren’t. We joked at times that our marriage was like a Popeil commercial — “Order now, before midnight tomorrow!” That, blessedly, will end. But as the flyer put out by SAME Alliance, the grass-roots marriage equality and Queer rights organization I’m involved with that’s putting on the big rally and march in Hillcrest tonight to commemorate the decision, says, “We’re not done yet!” We’re not done until marriage equality is an above-ground, officially recognized reality in all 50 states in the U.S. — and even then we won’t be done as long as Queer people in countries like Russia, Uganda, Iran and others face imprisonment, execution or murder simply for being who they are and loving whom they love.