06/28/2013 01:20 pm ET Updated Feb 02, 2016

DOMA & Prop 8: Victories in the Wrong War


Wet Blanket. Skull at a feast (?). Debbie Downer. Self Loathing. Misinformed. Curmudgeon, Those are just the nice things I've been called since my editorial Not A Victory, Not A Loss printed at the Huffington Post and at my blog.. No, I was not as happy as many others in my community with the ruling from the Supreme Court on Prop 8; but not just because I'm a hater. I understand it's a victory, a battle won while the war rages. And that's what I'm most angry at: the way we are fighting the war.

Who ever told the GLBT community that reaching for their civil rights was something that should be done state-by-state? What well-intentioned straight person came up with that idea? When has a struggle for Civil Rights and equality ever been left to the states? Did we leave the slavery question to the states or did we force all states to end it with the 13th Amendment? Did we leave the interracial marriage question to the states, let each state decide if blacks should be able to marry whites? No, we didn't. Did we leave integration to the states? Hell, we even made alcohol legal on a federal level.

So why on the green Earth did we ever agree or think that something as important as the protection and implementation of the XIV Amendment to American Citizens should be left to the states? Is equality a state right's issue? Since when?

Either the prohibition of marriage equality is a violation of the XIV Amendment, or it isn't. That's what the Supreme Court was asked to rule on, and caved. As Roberts said in his majority opinion we could not judge this case on its merits because we found there was no standing in the case. In other words, they didn't even look at the question of marriage equality.

There can be no way that an American has a right in Massachusetts that they don't have in Mississippi when it comes to the basic question of equality. That is saying there are first class citizens, and second class citizens. That in some states your love qualifies enough as a relationship to be acknowledged, as legal, and it other states, not so much. Can a person be less free based on geographic location inside America? Am I more or less of a person in some states than others? Are you?

Say it with me, Poppycock.

First let's get a few things, um, straight, for lack of a better word. I already have the right to get married, in any state, to whomever I want, and that includes of the same gender. Everyone does. That's the big secret the institutionalized bigots don't want you to know, because gay marriage is a great wedge issue at the polls, one they can milk for decades of division. But the fact is, the framers of our country made sure that if you were different, you were still equal. The reconstruction amendments of the Constitution dealt with these very issues just with a different group of then-hated people. Gay is the new black whether anyone likes it or not when it comes to equality and civil rights. And while the blacks battle is far from over (as we have more black people in prison than were in slavery in 1850) they have come further in their struggle. But it took powerful leaders, and gays just don't have those in the community or as allies; at least powerful enough or willing enough to exercise their power on their behalf. They all talk a good talk, but when it comes time to deliver?

So no court in the land is giving the GLBT community anything; it is stopping the illegal prohibition against them. The founders made sure that if there was to be a legal contract or a legal proceeding, that all were to be equal on that playing field. Religion cannot dictate contract law in America, and that's what marriage is. It is a civil contract, contract law and under the law in all things legal you can't selectively apply the law. People who vote to outlaw same-sex marriage are voting to take away a right promised in the Constitution to all Americans, the right to be treated equally under the law, and they cannot. Unless you repeal the Amendments that grant the rights, the rights stand. So as long as the XIV, the V and other Amendments still stand, same-sex marriage must be legal. The lawyers that argued in front of the Supreme Court in the Prop 8 case knew that. The Justices, the president, the Congress have to know that as well. It just doesn't serve them to say so.

Marriage equality is not a state's right issue, it is a human rights issue, a matter of equality under the law, and that goes back to the Constitution. The only way to rectify the problem is through Congress passing a law stating there must be marriage equality and yes, force it on some of the states. Sorry, this is America. People are equal here. If that really bothers you so much, the notion of equality for all, then you're in the wrong place. I'm tired of gays leaving this country because of its archaic laws; time for some progress of the human mind right here. Either amend the Constitution to allow it or pass legislation to make it legal. Either way, the notion that equality should be up for a vote state by state, the equality of any citizen, is ludicrous.

Should we vote on whether Hispanics should be allowed to marry whites or blacks? Should we vote on where Jews should live and where they shouldn't in our communities? Should we vote on whether blacks have to be paid as much as whites for the same job? The thought of leaving all of these (and some of these things, most of these things, we've done) issues and more like them to the states is the same as leaving the question of whether two law-abiding, tax paying Americans should not be able to wed based solely on their gender or the fact that you or you church doesn't condone the "lifestyle." It's ridiculous. It has been all along.

It was the battle that "could" be won instead of the one that "should" be fought. Gay community leaders and their advocates saw this as a way to begin setting the playing field right, just as most of the Northern States by 1800 had abolished slavery, before the Civil War or any proclamations. But it wasn't enough. There had to be a national abolition, a national statement, laws and Amendments to truly end the actual bondage.

And that's what it is going to take to relieve the GLBT community of the shackles and bondage the religious right has kept it in for centuries. The hatred of the gay community runs deep in many areas, as deep as any hatred towards blacks. Forty years ago in New Orleans 32 gay men and women died in the worst massacre in the gay community; the Upstairs Lounge fire. It took the Catholic Church 40 years, until June 26, 2013, to even apologize for their complete shunning of the event. Newspapers didn't report it was a hate crime, or even that the patrons were gay. A small service was held for the dead and injured and the church holding it got hate mail and threats. Talk show hosts made light of it at the time, using terms like the flamers caught fire and such. It was a disgrace, and remains one to this day. The massacre is not remembered, not taught in schools, there's been no movies about it. Matthew Shepard, Harvey Milk... I could give you a list of gays beaten, shot, set fire, dragged behind cars, raped, murdered in a variety of ways but always for the same thing: because of who they were.

And in some areas of the United States it is just that dangerous today. Well, the only way to truly help break up that cabal of evil is to force change upon them. We cannot leave it to them to decide the fate of those they hate in their states or hope there's more sane people than not. No, in some cases, like this, the feds must step in because the Constitution is at stake.

Letting someone go in to a ballot box and vote on the equality of another is humiliating, demeaning and insulting. It violates the very tenets of the document we hold as dear, the Constitution. It violates the Declaration of Independence and it violates everything America stands for and fights to defend. Freedom is not granted to anyone at the ballot box, it is guaranteed by our founding documents and by the blood of generations who have fought to defend and protect it. No more blood needs to be shed for gays to be equal, no more votes taken. The founders handled that. They are Americans. They are equal.

Now if we had a Supreme Court with a spine and a true understanding of the Constitution, that would have been the ruling: voting on anyone's right to equality is out of line with the XIV Amendment that already says all Americans are equal under the law, and it is the law, marriage law, that we are talking about. A state-by-state solution may be obtainable, with a majority of America opting in for marriage equality, but the founders believed that equality and freedom were intended for all Americans, in every state.

So do I. And so should you if you believe in this country, and the document that started it, as much as you do a 2000 year old text written in Aramaic.

Equal equals equal. In all 50 states that are part of America. When we allow states to pick and chose who can enjoy what freedoms and institutions, we lose America.