Court Fails to Embrace Coast-to-Coast Equal Rights
While dumping the obviously unconstitutional DOMA, Court punts on Prop 8
While many are applauding today's 5-4 victory over Section 3 of the federal "Defense of Marriage Act," the big picture story is that by refusing to rule on the substance of California's anti-gay Proposition 8, the Court has allowed same-sex couples in 37 states to continue experiencing legal discrimination not just in marriage, but in most states, also housing, employment and access to public accommodations.
Hiding behind a technical 'legal standing' argument that the anti-gay plaintiffs in the Proposition 8 case were not entitled to bring their suit to uphold Prop 8 when the State of California declined to enforce it, the Court treaded into some pretty reactionary waters. For one thing, the Court allowed state governments to nullify their own referendum process, something that could turn around to allow statehouse destruction of progressive referenda in future years.
More fundamentally, like with their gutting of the Voting Rights Act yesterday, the Court implicitly embraced the reactionary notion of "state's rights" trumping civil rights. Privileging state's rights over individual rights means that equal marriage, let alone equal employment, housing, and access to public accommodations in many southern "Bible Belt" states might be put on the back-burner for a generation or more. It was for similar reasons that all leading figures of the mid-20th Century African American Civil Rights Movement firmly rejected the privileging of "state's rights."
By declining to give a 50-state equality ruling on Prop 8 today, the Court shows that it still doesn't "get it" with regards to treating LGBTs as equal human beings who should have the same rights as other adults.
Another disturbing aspect of today's half-way decisions is that they threatened to bifurcate the LGBT movement between the 13 states that now have equal marriage rights plus the handful more that are likely to get it soon, versus the majority of states where LGBTs have no rights.
We have seen a similar process at work in the Senate's immigration rights legislation, where a minority of the undocumented are offered much greater access to citizenship, while the majority are thrown underneath the bus. The result is not pretty from the standpoint of those of us who insist on equal rights for all.
We must not allow a similar fate to befall our movement.
The national Gay, Inc. groups are already uncritically heralding today's decisions, seemingly oblivious to these dangers I've outlined. While that may be a great fundraising tactic -- one of the few things at which they're truly expert -- their crowing about today's decisions must leave a bitter taste in the mouths of LGBT youth growing up in Alabama, Oklahoma or Mississippi.