Last week witnessed a rainbow-colored celebration coupled with furrowed brows after the U.S. Supreme Court ruled the Defense of Marriage Act mostly unconstitutional and kicked back California’s Proposition 8 case back because plaintiffs lacked standing.
- Perhaps the most fascinating part of the rulings wasn’t the substantive outcome, but the logic behind each holding and each dissent. The Prop 8 case, in particular, has knocked some progressives a bit off-keel, because the majority holding arguably emasculates the referendum process nationwide. It creates, de novo, a new implied power for state governments to simply decline to enforce referenda they prefer to ignore. Conservatives argue that the strategy in this case is part of a broader rightward movement by Chief Justice Roberts to narrow the outer parameters of legal standing — surely a good thing — but whether this good is worth the collateral damage to other areas of heretofore settled jurisprudence is a whole different question.
- It’s curious that Kennedy’s DOMA opinion relied as much as it did on the assumption that DOMA was based on anti-gay animus rather than the somewhat safer substantive-due-process grounds. There may well be implication to the majority’s rhetorical approach in Windsor that, in the future, will prove difficult for the high court to apply to other similarly situated cases.
- I’m not a fan of DOMA — it was never good law, and it made a farce of the very federalism it purported to defend — but the route of its demise is almost as unpalatable as its continuing existence. We’re now left with a patchwork of problems that surely will result in Full Faith & Credit suits (e.g., if same-sex spouses move to a state where same-sex marriage is illegal). It would have been preferable if DOMA were repealed by Congress instead of being weakly invalidated by SCOTUS; given a few more years, such a repeal may well have been enacted.
We’ve learned a few important things over the last decade. First, that there’s a lot of anti-gay animus still out there. Second, that the LGBT crowd is effective at mobilizing the political and legal systems to redress the animus. Third, that the net result of the public discussion will likely not be helpful in the long run as long as top influencers continue to gerrymander the political process.
I believe that in a perfect world, a person’s sexual identity should not be anyone else’s business, and the law should be blind to sexual orientation — no favoritism, no oppression.
I also believe that the key to progress is positive engagement. Much of the groundwork for recently improved attitudes towards gays and lesbians is, I think, afterglow from the Will & Grace phenomenon. As soon as people had “experience” (even if on TV) with a non-stereotypical, non-threatening gay person, attitudes began to soften, much like the Civil Rights movement absolutely depended on people having non-stereotypical, non-threatening experience with racial diversity during World War II. But instead of playing the long game and helping to soften attitudes over a generation, the leaders of the LGBT movement got impatient — they demanded “marriage equality now” and therefore inspired a backlash. I am convinced that the gay-rights movement will follow a similar trajectory as the abortion debate, because evolving attitudes were shocked into reaction by too-aggressive, too-impatient mobilization by activists. Activist greed has real-world consequences.