This is shaping up as the summer of gay rights in the courts. The twin victories last week from the US District Court in Massachusetts striking down as unconstitutional key portions of the anti-gay "Defense of Marriage Act" and the eagerly anticipated decision in the federal Proposition 8 case in California have made for enormous excitement in the legal and civil rights communities.
We are at a tipping point in which the federal courts appear finally willing to recognize and more aggressively enforce civil rights for gay and lesbian Americans. Much as they did for African Americans a generation ago.
In the Proposition 8 gay marriage case especially (Perry v. Schwarzenegger), lawyers Ted Olson and David Boies have made a comprehensive and overwhelming case for basic fairness and full equality. Their opponents, on the other hand, presented no credible expert testimony and made arguments so flimsy -- and at times even patently false - that a ruling in their favor appears highly unlikely. The decision is expected soon.
Despite all this, there remains some marginalized skepticism from some unusual critics.
The Brookings Institution's Jonathan Rauch recently wrote in The New York Times that while he personally supports equal marriage rights (and is, in fact a married gay man), he nonetheless thinks it is bad public policy for the courts to enforce such rights, suggesting that we should instead let the political process bring about equality, as and when the country is ready for it.
Rauch's argument stems from a comment (which he completely misappropriates) by Supreme Court nominee Elena Kagan, who said, "The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people."
Rauch himself admits that the comment was not in any way a reference to gay marriage - in fact it had nothing to do with the issue. Kagan was speaking broadly about the role of the Supreme Court, historically and today - a role which led to such landmark civil rights victories as Brown v. Board of Education and Loving v. Virginia.
The Washington Post's Jonathan Capehart also has a piece in which he argues that the political environment is not yet ripe for full equality and that the potential backlash against any pro-equality court decision could be so great that the gay-rights movement might be set back by years, even decades.
Capehart's position is that since 30 states currently outlaw gay marriage, the Supreme Court would never stick its neck out to overrule what he claims is the popular view.
But here's another statistic: at the time that the Supreme Court struck down the remaining state laws banning interracial marriage in Loving v. Virginia, the Gallup Poll found that some 72% of Americans were opposed to interracial marriage. At one time or another, 37 states had passed anti-miscegenation laws. When civil rights are being infringed, "sticking out its neck" to protect minority rights is not only something the Supreme Court does, it is one of the primary reasons for the Court's existence.
Both Rauch and Capehart are ignoring not only our political history, but the history of civil rights advances through court rulings. Importantly, there is now an emerging consensus among gay rights advocates that these cases, including the one brought by Olson and Boies on behalf of the American Foundation for Equal Rights, can succeed and that the timing is right.
In the two Massachusetts cases, U.S. District Court Judge Joseph Tauro (a Republican appointee) concluded that the anti-gay marriage law was so blatantly unconstitutional that he issued summary judgments in favor of the plaintiffs.
While the scope of those cases was somewhat narrow - having to do with the denial of federal benefits for gay couples whose marriages had been fully recognized in the states where they live - the rulings were broad in their implications.
The court cited Supreme Court Justice John Marshall Harlan's famous words (in dissent at the time) that our constitution "neither knows nor tolerates classes among citizens," and though the decision does not say, in so many words, that states should be required to recognize same-sex marriage, it systematically undercuts all the arguments that anti-equality groups have used to date - including "harm to the children," "procreation as the goal of marriage," and preservation of the status quo - concluding that "the constitution
will not abide a bare congressional desire to harm a politically unpopular group."
These words make for trailblazing precedent, even if they are not now binding.
Let's be clear: this is not an argument about public opinion polls, political environments, or even what motivates the anti-gay movement - we're talking about a basic civil right.
As lead counsel Ted Olson said in his summation, "This case is about marriage and equality. The fundamental constitutional right to marry has been taken away from the plaintiffs, and tens of (if not hundreds of) thousands of similarly situated Californians. Their state has rewritten its constitution in order to place them into a special disfavored category where their most intimate personal relationships are not valid, not recognized and second rate."
In cases like this, our history tells us that the courts are the most appropriate, effective and productive battlefields.
Richard Socarides, an attorney, was White House Special Assistant during the Clinton Administration and senior advisor on gay rights.
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