THE BLOG
04/17/2010 05:39 am ET | Updated May 25, 2011

Wedding Bell Blues in California: Queerly, Texas Lends Hope

Jerry Brown, California Attorney General, has given Proposition 8 opponents an early Christmas present. He's asked the state Supreme Court to void the gay marriage ban approved on November 4th.

Even though it's the AG's duty to defend state law, he believes the prop must go because the right to marry is "an aspect of liberty that the Court has concluded is guaranteed by the state Constitution."

As the state's top elected lawyer, Brown is certainly qualified to challenge any measure that discriminates against a group of perfectly legal citizens. He's on solid ground, and when it comes to laws aimed squarely at the LGBT community, he can take comfort in modern Texas political history, odd as that may seem.

In 1979, a Dallas teacher sued the state over its sodomy law. Known as "21.06" in the criminal code, it banned certain acts of intimacy between same-sex couples in the privacy of their home, but not between straight couples. A federal judge ruled the Texas law unconstitutional in 1982 because it violated the constitutional rights of privacy and equal protection.

The state's new Attorney General, the liberal and crusading Jim Mattox, agreed with the judge and withdrew an appeal of the decision that had been filed by his predecessor. Even though the Texas AG, like his west coast counterpart, is charged with defending state law, the job also allows for doing the right thing. Mattox did, and caught holy hell from conservatives.....not that he exactly minded.

Dave Richards, chief of litigation at the time (and by then ex-husband of Ann), explained the AG's reasoning in his book Once Upon A Time In Texas: "...we came to the view that we would exercise our best legal judgments; if in that judgment the statute was not defensible on constitutional grounds or on the factual record, then the office was justified in dropping the defense of the statute."

Even the longtime local DA Henry Wade (of Roe v Wade fame) testified that the law had no compelling state interest that he could discern, and he was the guy responsible for prosecuting those who broke it!

Ultimately, the full Fifth Circuit Court of Appeals agreed to hear the lawsuit, and 21.06 remained on the books by a razor thin 8 to 7 margin. Mattox, however, was presciently ahead of the curve.

States began looking at their own discriminatory legislation. Kentucky's Supreme Court, for example, tossed out its sodomy law in 1992. Yes, Kentucky, the bluegrass state that often votes red.

Finally, in 2003, came the dramatic dénouement: the United States Supreme Court overturned the Texas law in Lawrence v Texas. The tally was 6 to 3. Ronald Reagan's own Anthony Kennedy wrote the majority opinion. He was joined in concurrence by fellow Reagan appointee Sandra Day O'Connor. Four of the six justices who overturned the discriminatory provision were appointed by Republican presidents.

Democracy is indeed a slow and steady march forward, and Jerry Brown is the latest foot soldier in the line of fire.

Regarding marriage (or civil union, or whatever term you prefer), churches are free to unite or not unite anybody. Their freedom of choice isn't being questioned. And contrary to what megachurch pastor Rick Warren plainly states as his absolute opinion, Prop 8 opposition isn't the same as approving of incest, pedophilia or polygamy. It just isn't.

It's about the government refusing to issue a non-religious license -- a civil document from a courthouse, not from a house of worship -- to consenting adults who choose a life together, for whatever reasons, in this crazy, mixed-up world.

The delightful film Four Weddings And A Funeral features an old song by George and Ira Gershwin, But Not For Me. Part of its universal sentiment goes like this:

"They're writing songs of love, but not for me
A lucky star's above, but not for me
With love to lead the way, I've found more skies of gray
Than any Russian play could guarantee"


Two people finding happiness with each other is also a universal sentiment, and there's no rhyme or reason to deny it legally.

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