— Tocqueville, “Democracy in America,” 1835
The lower federal courts have spoken: California’s Proposition 8 banning gay marriage is invalid. But that’s hardly definitive. The Supreme Court decides the law of the land.
U.S. Judge Vaughn Walker of the Northern District of California ruled in 2010 that Proposition 8 was unconstitutional. The 9th U.S. Circuit Court of Appeals recently agreed. So the 9th Circuit ruling appears to be headed to the highest court for final adjudication.
There the portent may not be good.
The 9th Circuit, the most liberal court in the land, is often overturned by the reactionary high court. It could do so again if “the past is the future.”
Judge Stephen Reinhardt, who wrote the 9th Circuit majority opinion, is one of the most progressive judges in America. Unfortunately, the five controlling justices at the Supreme Court are some of the worst judges in America.
If the Supreme Court accepts the case, gay marriage could go down. The court’s Retrograde Five seldom rules for compassion and modernism.
Yet there are exceptions so there is reason to hope.
In 2003 one of the five reactionaries, Justice Anthony Kennedy, stunned court watchers by joining the liberal bloc to strike down state sodomy laws (Lawrence v. Texas).
Kennedy could do so again on gay marriage.
In Lawrence, the majority of justices realized that gays and lesbians deserve “respect for their private lives” and “freedom from government intrusion in their bedrooms,” Kennedy wrote. “Times can blind us to certain truths and later generations can see that laws once thought necessary served only to oppress.”
Or, as Justice Holmes put it more succinctly, “the law responds to the felt necessities of our time.”
Proposition 8 was approved in 2008 by the voters of California--7 million of them. But that hardly makes it right. It is an example of tyranny of the majority. They voted their moral judgment rather than for justice.
Judge Walker was emphatic: “Proposition 8 cannot withstand scrutiny of the equal protection clause…Fundamental rights may not be submitted to a vote…The Constitution cannot control private biases but neither can it tolerate them.”
Nor did Judge Reinhardt mince words: “Proposition 8 lessens the status and human dignity of gays and lesbians. It classifies their relationships as inferior to those of opposite-sex couples.”
Meanwhile, legislation statewide slowly advances la causa. The governor of Washington signed a bill this week making Washington the seventh state to approve gay marriage.
But there’s still a huge mountain to climb, prejudice and violence to overcome.
Gay, lesbian, bisexual and transgender people around the world face bias, abuse and violence, including torture and rape.
A recent United Nations report said members of sexual minorities are subject to attack by “religious extremists, paramilitary groups, neo-Nazis and extreme nationalists.” These heinous assaults often end in mutilation and castration.
Secretary of State Hillary Clinton is on the side if the angels in the fight for LGBT human rights.
She made these powerful points in a December speech in Geneva:
• Being gay is not some Western invention but “a human reality.”
• Religious and cultural values do not justify criminal attacks against LGBTs.
• People are free to believe what they want but they are not free to deny a group’s humanity.
Another gay-lesbian advance long overdue: the military abolition of its heinous policy of “don’t ask, don’t tell.”
Some 13,000 military men and women have been fired since the policy was adopted in 1993 in a fit of righteous furor. The ill-advised policy discharged much-needed linguists and intelligence analysts while unjustly depriving all of careers.
Kate Kendell, head of the National Center for Lesbian Rights based in San Francisco, was jubilant.
“We are within sight of a time when LGBT people can participate in all aspects of society without fear of being singled out for stigma and discrimination by their own government,” Kendell said.
And in December the 11th U.S. Circuit Court of Appeals (Atlanta) ruled that transgender people are entitled to equal protection under the 14th Amendment.
The Supreme Court ruled in 1959 that interracial marriage, illegal in the apartheid South, was unconstitutional. But in Alabama the Constitution be damned. It took until 2000 for that racist state to repeal the vestige of Jim Crow.
Yes, the fight for equality is long and arduous in America.
Jake Highton teaches journalism at the University of Nevada, Reno. Contact him at firstname.lastname@example.org.