I am gay. And everyone wants me to be happy today, as I sit in my Long Beach, Calif., home. The Supreme Court has ruled on two "landmark" gay cases and victory is being claimed.
Funny, I don't feel like I won anything.
The two cases SCOTUS decided came down exactly as I said they would on my radio show and in print for weeks now: DOMA would be overturned because that's easy case-law. It was a clear-cut violation of the full faith and credit clause of the U.S. Constitution when Bill Clinton signed it and it still is. It was an easy decision for the Supremes to make, one that only affects legally married couples and has no bearing on the legality of anyone's marriage or right to marry. It simply says the federal government must acknowledge marriages performed in the various states where it is legal. Well, that was already the law before DOMA so all the court did was return the law to what it was pre Bill Clinton. (By the way, why he is seen as a friend to the gays? I'll never understand, he gave us DOMA and Don't Ask Don't Tell, both of which have been struck down now as bad laws or policies).
So the reverse of DOMA was easy, all the Justices had to do was refer to the owner's manual, the Constitution. Article IV, Section 2 states:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
That's pretty easy. It's how marriages performed in other states have been recognized when people move for some time now. It's the existing law of the land, and is again, applying to everyone now and not just people of which the religious right approves.
The Prop 8 case was equally as simple, as the XIV Amendment is clear that equal equals equal (so clear, I made a t-shirt out of it on my website). But not to the Justices.
There was no way in hell the legacy of the John Robert's court would be to legalize same-sex marriage in all 50 states. And that's what they had the chance to do; To declare that civil rights should not be left up to the voters, that marriage equality is, in fact, a basic human and civil right and that's that, let's be done with this and move on. But no. Instead, they put forth such a convoluted ruling that experts will be wrangling over what it means for days, months, maybe even years to come.
The basics are that only a governor and an attorney general can defend a governor and an attorney general when they are sued; that those that defended Prop 8 had no legal standing to do so, and therefore, the case should not have progressed and thus the ruling of the lower court that declared they had no standing, well, stands.
But that lower court did NOT say that Prop 8 was unconstitutional, it simply said the defendants did not have standing in the case. And that's the ruling SCOTUS held on to in their ruling. So they vaguely legalize marriage in California, and do little to answer the marriage equality question for the nation.
So, today is really an insult to the gay community, more pandering, and most gays are too caught up in the banner waving and flag foisting to even see it.
First of all, DOMA is NOT a victory for anyone except a legally married gay or lesbian person. Just like the repeal of Don't Ask, Don't Tell did nothing to advance gay rights, it simply allowed the military to stop requiring its members to lie and deceive and be honest about who they are. It helped the military recruit more bodies, gave them a larger pool from which to draw much like letting blacks in during the Civil War was not about equality as much as it was warm bodies to fight a war. Same thing. The military is stretched thin and needs all the help it can get so it just paved the way for it get more help in the form of members of the gay community. It was a bad policy, again, put in by a frightened President Clinton, that only hurt the military. After all, gays could simply leave the military, not serve. So this only helped the small percentage of the GLBT community that wants to serve and the military itself. But equality for the GLBT community as a whole? Nope, soldiers are still asked to go defend a country that won't let them get married in a majority of the states. Still. Even today.
So DOMA will only effect those that can legally marry and only makes right what was put wrong by Clinton. Again, a pretty easy decision that doesn't rock too many boats.
As for Prop. 8, we were at a critical time in the advancement of equality and SCOTUS let the country down. Roberts, Thomas and the others could have said, yes, we believe in the Constitution and while we hold state's rights sacred, no state has the right to vote away someone else's basic human and civil rights to equality. The XIVth Amendment covers that. They had the power, the case-law and the Constitution (not to mention the will of the people) to back them up. They could have answered this question for once, and for all, and stated that members of the GLBT community are equal to all others, that their rights and relationships are not up for popular approval, that under the law we are all equal and that includes contract law, which is what marriage is at its core.
But they didn't.
Instead, they reverted back to a lower court ruling about standing, saying nothing about the legality of Prop 8 at all. They wussed out, and we hail this a victory?
The "other side" is already out pledging action. That's amazing as well. If SCOTUS had ruled on a black case, or a Jewish case, would CNN then invite the KKK or anti-semites on to weigh in? Nope. But the GLBT community gets to hear about how the battle isn't over and how marriage equality violates "natural" marriage and destroys the family, yet again, as celebrations go on on the steps of the Supreme Court, Focus on the Family is on CNN with another battle cry, more hateful speech, a public platform for their bigotry and hatred on the very day some are celebrating the opposite.
I cannot get married today in California, even if I could find a date or a willing person to do so (I wish the country would be more concerned with getting me a date instead of getting me married, but oh well). There are still more states in the U.S. where I cannot get married than I can. It's still legal in 31 states to fire someone for being gay. Marriage equality under the law is still not seen as a basic human right but one to be voted upon by whoever can make it to a polling place. It is still like voting for or against slavery, because that's what we are talking about here: voting to keep people in a "less than" state, voting to keep rights afforded to some away from others. Social slavery. And the GLBT community is still in that bondage. The chains have been loosened a little in Calif, not because the overlords wanted to, and they certainly made that clear. SCOTUS decision is not about fairness, it was about how to get out of granting marriage equality to all while trying to correct the blatant disregard of civil rights in California by its misguided voters.
I've said this 10,000 times. My relationship, who I love and marry, is none of your business, period, so long as it meets the muster of the institution. My relationship, who I love and marry, is not up for popular vote, nor is my ability to do so.
The founders were clear that under the law I am equal whether churches or large groups of people disagree.
It's a pity the Supreme Court forgot that today and wussed out when they could have equalled the playing field a bit more for tax paying, law-abiding Americans.
DOMA was easy, and the harder decision, meaning the decision to do the right thing, was averted.
Today was a chance for the legal community to catch up with the population of the United States, a majority of which favor same-sex marriage. And even if a majority didn't, it was a chance for SCOTUS to show they actually respect and understand the document they have taken an oath to protect.
Instead, we got a murky ruling that does little to help in the fight for national marriage equality because it doesn't rule on marriage equality, it rules on who was able to sue whom. DOMA was a dead, done deal. This issue was very alive, and SCOTUS did all they could to avoid going in the cage and taming the tiger. No, again, they sit on the outskirts, watching as each and every day law-abiding, tax paying Americans now will have to continue the fight state by state, which is a national disgrace which is still a national disgrace for all.
Follow Charles Karel Bouley on Twitter: www.twitter.com/thekarelshow