Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
This article can be found at:
Latest Posts

Premature Celebration

Jim Burroway

March 28th, 2013

Time magazine this week celebrates, “Gay Marriage Already Won!” Okay, I added the exclamation point, but the cover goes on to explain that “the Supreme Court hasn’t made up its mind — but America has.” David Von Drehle writes in his cover story:

According to a recent survey by the Pew Research Center, 1 in 7 American adults say their initial opposition to same-sex marriage has turned to support. The picture of a nation of immovable factions dug into ideological trenches is belied by this increasingly uncontroversial controversy. Yesterday’s impossible now looks like tomorrow’s inevitable. The marriage license is the last defensible distinction between the rights of gay and straight couples, Cooper told the Justices as he steeled himself to defend that line. But most generals will tell you that when you’re down to your last trench, you are likely to lose the battle.

What’s most striking about this seismic social shift — as rapid and unpredictable as any turn in public opinion on record — is that it happened with very little planning. In fact, there was a lot of resistance from the top. Neither political party gave a hint of support before last year, nor was marriage part of the so-called homosexual agenda so worrisome to social-conservative leaders. For decades, prominent gay-rights activists dismissed the right to marry as a quixotic, even dangerous, cause and gave no support to the men and women at the grassroots who launched the uphill movement.

Victory has a thousand fathers, which is why its so easy to forget how very reluctant many gay rights groups were to engage this battle early on. We’re all guilty of this forgetfulness. Even me. As I set down to write about this Time cover story, I decided to go back through the BTB archives to pull out the posts where the gay rights orgs were lined up in opposition to Americans for Equal Rights’ announcement that they had hired Olson and Boies to challenge Prop 8 in Federal Court, only to discover — because I’ve long since forgotten — that I had initially opposed the lawsuit. Worse, I actually wrote this, quoting from a Freedom to Marry press release: “But I do think that the LGBT advocacy groups’ advice is what we need to heed now: ‘Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong.'”

How embarrassing.

It only too me six weeks to change my mind, which was about the same time other pro-gay groups were trying to jump on board, mostly because they feared being left behind and thought they knew better how to handle the Prop 8 challenge than Olson and Boies. And many more minds have changed since then. The lawsuit went far better than expected — the Federal District Court trial revealed the abject legal poverty of Prop 8 supporters’ arguments, the appeals process solidified and propelled the lower court victory to the U.S. Supreme Court, where it looks like Prop 8’s eventual demise appears likely. It’s almost certain that we’re not going to get a sweeping pronouncement that gays and lesbians have a right to marry, and it’s possible that the issue of standing may wind up vacating the Ninth Circuit’s ruling, knocking it all the way back down to the Federal District level and the resulting uncertainty as to how the ruling applies statewide.

Which is to say that there’s so, so much more work to do. As Nate Silver’s projections show, we’re looking at more than a decade’s worth of a lot of hard work before marriage equality becomes a viable reality nationwide if we rely solely on the ballot box and state legislatures. As we say here in Arizona, things probably look pretty swell — in New York City, where Time is published and gays are marrying — while our ever-entertaining legislature is kickstarting an “papers please before you pee” bill in the Arizona House and our governor is fighting to strip state employees of their domestic partner’s health benefits.

In a rare moment of overly-inflated confidence, I mentioned to a friend two weeks ago one morning at breakfast that I thought that in a couples of years I might shut this blog down because we will have run out of things to advocate for. What was I thinking? For christsakes, I live in Arizona! Look around! Of course, I knew better and that moment passed very quickly, before my second cup of coffee that morning. So I understand the temptation to count our victories before they’re hatched. I do think we have turned a corner, but it’s a given in warfare that when the battle turns, the losing side fights harder and nastier. We have much to celebrate, but we also have a whole lot of work to do.

During yesterday’s oral arguments in Windsor v. US, Chief Justice John Roberts grilled Edith Windsor’s attorney on the growing support for gay rights and implied that perhaps the court didn’t need to intervene because the LGBT movement is now “politically powerful.”  And it’s true that polls show that we have the luxury of time on our side. But that luxury is only available to some of us. I only wish that someone had pointed out to those nine justices that 83-year-old Edith Windsor was sitting in that court room, fighting a  $363,000 tax bill today. She doesn’t have a decade to wait for the law to catch up with public opinion.

Comments

POST COMMENT | COMMENT RSS 2.0

Russ
March 28th, 2013 | LINK

Jim, I’m not a lawyer but what I heard and read of the hearings did not at all suggest that “we’re going to get a sweeping prouncement . . . of the right to marry” at either the state or federal level. Marriage equality will I think return to California alone, perhaps on a standing issue, not as a fundamental right, when the dust has settled, and the Court will strike down Section 3 of DOMA, meaning the feds will recognize SSM in states where it is permitted.

But what no one seems to be talking about is the fact that there’s still Section 2, which says states don’t have to respect gay marriages from another state – and living in a deep red state, I can guarantee there are several dozen states who will flatly refuse to do so unless forced to by the Supremes or by their own voters. Unless the feds strike that part down as well, there can be no “sweeping pronouncement.”

Furthermore, the Court seemed to lean towards invalidating Section 3 on grounds of federalism – I don’t think there are 5 votes to bring gays and lesbians as a class under the Equal Protection Clause. Do you? And if so, what makes you feel that way?

Dave H
March 28th, 2013 | LINK

This Time article is stupid and naive at best, and blatantly factually inaccurate at worst. A once-proud staple of American journalism has apparently sunk pretty low.

To start with the obvious: “Gay Marriage Already Won.” Gay marriage will not be “won” until 30+ state constitutional amendments are overturned and same-sex couples can get married anywhere in the US. The current Supreme Court cases almost certainly will not accomplish that; we’ll be struggling with this battle for years to come.

“…it happened with very little planning. In fact, there was a lot of resistance from the top. Neither political party gave a hint of support before last year, nor was marriage part of the so-called homosexual agenda so worrisome to social-conservative leaders.” The process for trying to achieve marriage equality started in earnest with the Hawaii case in 1992, and perhaps even the Baker case before that. If there is such a thing as a “gay agenda” (and there have been a lot of jokes about that), marriage equality has been part of it for many years. And we have had some support from within the Democratic party since at least 2008, and probably earlier.

It correct in that most of our major LGBT organizations initially opposed the Prop 8 challenge; not because they didn’t have same-sex marriage as an ultimate goal, but because they wanted to go slower. And, lurking beneath the surface, I think they were embarrassed that someone else dared to take the lead and pass them by.

Jim Burroway
March 28th, 2013 | LINK

Russ,

That was a most unfortunate typo. It should gave read “we’re NOT going to get a sweeping pronouncement…” It’s fixed now

Priya Lynn
March 28th, 2013 | LINK

The time headline isn’t meant to be taken literally, they’re not claiming gays can marry everywhere in the States, what they’re saying is that although there remains battles to be won and lost the outcome of the war is no longer in doubt. The anti-gays can do nothing to stop gays from eventually winning full marriage equality.

emma
March 28th, 2013 | LINK

Well the headline as far as im concerned is worth it, just for the fundie head explosions it will cause.

manheart
March 28th, 2013 | LINK

This kind of article is dangerous, indeed. We as a community should be prepared for defeats. I think in the broadest legal sense we are going to lose in June. I expect the Court will uphold the 9th Circuit ruling, applying it only to California, will further find we are NOT a class eligible for heightened scrutiny. We may partially win DOMA, but only to the extent that the federal government will honor as marriages for benefits purposes all legal marriages in the various states– leaving us with quite a patchwork of rights for the next some years.

I think SCOTUS will tell us in June that there is no constitutional right for same sex marriage–it’s simply too much, too soon on the national level.

We have to keep engaging our families, friends and neighbors as we are now. It is imperative that the painful work of winning hearts with one-to-one encounters continue. Changing public opinion has to be our ultimate resort.

I have been an out gay man since I was 18 in 1974, and I am an optimist about our long term prospects in society, but this was not the time for these cases to end up with the Supremes.

Russ
March 28th, 2013 | LINK

Oh okay Jim, now I get you, and we’re on the same page.

Robert
March 28th, 2013 | LINK

If Doma is struck down on the equal protection argument, the federal government will have to recognize any marriage PERFORMED in a state that allows it, at least under federal law. I am trying to make a distinction between states that allow it and states that perform them, as it really does make a difference. If someone from North Carolina goes to New York and gets married and then returns home to NC, that marriage will be recognized under federal law for federal tax purposes and what not. That means we will have married same sex partners in states that don’t allow them at all or recognize them.

I think if they do not make a sweeping decision, then they are opening a larger can of worms than they have before them today.

Once the federal government recognizes the marriages performed, there wil be a multitude of suits based on the lack of recognition from state to state, under the same law that’s being used by the Windsor side of this.

But if they decide the case based on States Rights, that the feds had no right to even address the issue in the writing of that law, then it’s a different story. That is why I think Kennedy making such explicit state rights claims that the feds had no right to make the law are scary. He is trying to go around the equla protection clause in order to circumvent those future cases. I think he see’s that any other route would lead right back to the court. If they decide based on states rights it will not address the equal protection clause of the US Constitution, so other states wouldn’t have to accept those marriages for state purposes.

I KNOW the law will be overturned, it’s on what grounds that has me worried. I’m hoping for the equal protection clause.

I hope I’m clear and not to convulted, this is a difficult subject depending on the reason, because the reasoning does matter.

jpeckjr
March 28th, 2013 | LINK

The lawsuit provided an entry point for talking to our friends, family, and neighbors about marriage equality. It might have been premature from a legal standpoint, but it sure helped spark those conversations.

My own view at the time it was filed was it was probably premature from a political standpoint, but worth filing because we need to fight on every front — ballot box, legislatures, executive offices, courtrooms, and, yes, in conversations over cups of coffee.

gsingjane
March 28th, 2013 | LINK

Jim, I think it takes a big person to admit when you were wrong. Even more so here, where nobody besides you had to dredge up the old quotes.

Lots of people can change their minds about lots of things! It’s how we come together and work going forward, and figure out how to get past the old history, that really counts.

Thanks for the good lesson!

Russ
March 28th, 2013 | LINK

Robert: See my original comment at top. It’s important to clarify in these discussions which *section* of DOMA we’re talking about.

If the high court, on whatever grounds, invalidates Section 3, then the feds have to recognize for all federal laws a marriage performed in any state that allows such to be performed.

But unless the court goes further and also invalidates Section 2 – on any grounds – then the 31 states that currently do not recognize same-sex marriages can keep on not recognizing them for purposes of their state laws.

As I intimated above, if the Supremes were to find that gays as a class came under the Equal Protection Clause, that would, among other things, effectively require SSM to be recognized by every state, even if not performed there. But I just don’t think the Court is going to go that far at this time – the vote is likely to be on technical or standing issues, rather than Equal Protection – although it should be the latter, and I belive all three women Justices are on board with that.

But who knows?

Priya Lynn
March 28th, 2013 | LINK

A new poll in Ohio shows 54% of voters there favour an amendment to repeal the 2004 ban on same sex marriages and allow any two consenting adults to marry regardless of their gender with just 40% opposed.

http://www.dispatch.com/content/stories/local/2013/03/24/poll-ohio-marriage-views-shift.html

“The same is true in several others states that passed similar referendums in 2004 and 2008. That’s why I predict that by 2016, we’re going to see several states start to repeal them. The tide has turned on this issue in a big way, no matter what the Supreme Court does.”

Robert
March 28th, 2013 | LINK

Russ-

I think we are saying the same things, you just said it a little better (actually lot better) than I did.

Robert
March 28th, 2013 | LINK

Russ-

If they take the States rights avenue, then it would invalidate ALL of Doma, would it not? If states rights is used, then the federal law would be unconstitutional as a whole because they had no right to even address the issue.

That would repeal all of Doma, but would also still allow states to NOT recognize your marriage, while forcing the federal government too. It would leave anti equality laws legal, as states would still retain the right to disavow what they wanted. The decision would only apply to the Federal Government, right? That’s why I think it’s a much more dangerous decision. It would make it a little more difficult to overturn some of those laws wouldn’t it?

And as to the intent of this piece, I’m glad that we moved forward with these cases as I think they played a direct part in the passage of recent rights legislation across the country. Just the case itself in regards to Prop 8, was incredible for the general public to see the idiocy behind the ratonale to deny us rights. I was an avid supporter of the initial reports that it was being considered. And I always thought we should be fighting for actual marrriage instead of civil unions or domestic partnerships, but understood the raionale for those lesser forms of rights. It was what we could get at the time, adn better a step forward than no movement. But I’m super glad we didn’t go with the advice of the coaktail set.

Priya Lynn
March 28th, 2013 | LINK

Rush Limbaugh said “A lot of people have no personal animus against gay people at all. It’s instead, you know, a genuine, I don’t know, love/respect for the things they believe define this country as great. They get up every day and they see all this stuff under attack. They see it all under assault. And I think they’re just worried about the survivability of the country. And to which the opponents say, “Well, the country’s changing and you better get with it and understand it because this genie’s not getting put back in the bottle.” And I think that’s right. I don’t care what this court does with this particular ruling, Proposition 8. I think the inertia is clearly moving in the direction that there is going to be gay marriage at some point nationwide.”.

You know when Rush gives up the war has been won.

Russ
March 28th, 2013 | LINK

Robert: to answer your first question, it would seem to me based on my limited understanding of these things, that the states’ rights issue applies mainly to Section 3 of DOMA: the power to define and regulate marriage is not one of the “enumerated powers” granted to the federal government by the Constitution, and thus has always remained within the purview of the states. Therefore, until DOMA, the feds just went along with whatever the various states recognized as a valid marriage.

Section 2 of DOMA abrogates the “full faith and credit clause” of the Constitution, which mandates that all states have to recognize the acts and records of other states – without which rule, for obvious reasons, a federal union would quickly become unworkable. However – my reading in Wikipedia and other places shows me that the Supreme Court and other courts have from time to time carved out certain exceptions and limitations of that rule already, and even in regards to family law. So whether a states’ rights argument would apply in Section 2, I’m not sure.

The obvious historical comparison is interracial marriage – some states allowed it, some did not – as far as I know, the feds always recognized interracial married couples, but as in the case of Mr. and Mrs. Loving, such a couple who moved to a state where it was not recognized, was and actually criminalized, could find the sheriff breaking down the door of their bedroom in the middle of the night, as they in fact did, before being hauled off to jail.

The best solution, I’m sure you and I would agree, would be for the Court to find that gays are a “suspect class” and thus entitled to at least intermediate or even strict scrutiny under the Equal Protection Clause and the Due Process Clause – which would fairly quickly, if not immediately, end all discriminatory marriage (and other) laws in every state.

But I just don’t think that’s gonna happen anytime soon; the Court and the country are both moving in a very favorable direction, but they aren’t quite there yet.

But like you, I’m very glad these two cases have come before the Court now, for the reason you mentioned: they’ve helped educate the public as to the irrational ludicracy of the opposition. Even way down here in the red depths of Texas, one can feel the wind shifting in a new direction, and that’s nothing but good news for all of us, whatever rulings the court may issue. But I think there will still be work to do for some years yet before we see complete marriage equality from Atlantic to Pacific.

Timothy Kincaid
March 29th, 2013 | LINK

This reminds me a bit of the Battle of New Orleans. Perhaps the nation’s greatest land victory over The Brittish in the War of 1812. It propelled General Andrew Jackson to national game and eventually the White House.

It took place nine days after the War of 1812 ended. News just hadn’t made it to Louisiana yet.

I think to some extent we’ve won the war. True, our enemies haven’t signed a treaty, but they’ve mostly stopped lobbing bombs in our direction.

The Mormon Church has a newfound interest in loving gay Mormons. The Republican Party has discovered that they do best when they talk abou anything other than gay issues and leap at the chance to applaud the ‘personal decisions’ of those who support equality. Tonight I heard a Mormon Republican, former Utah Governor Jon Huntsman, tell a republican audience that the party must support “equal prospection under the law for all citizens, including marriage.”

Even the Southern Baptists have gone noticeably quiet. Only the Catholic Church – and mostly just their hierarchy – is calling the faithful to arms.

We have won the war for the hearts and culture of our nation. But the news has not yet made it to every burg and hamlet.

So battles rage on. And heroes are still being created.

Mark F.
March 29th, 2013 | LINK

I see Kennedy upholding Prop 8, and finding some Federalist reason to strike down Section 3 of DOMA.

Russ
March 29th, 2013 | LINK

I hear you Timothy, but I’d suggest that the appropriate metaphor is not New Orleans, but Gettysburg: the war is not over, we have simply reached the climax, the turning point of inevitable but still-future victory.

Thirty-one states have discrimination entrenched in their constitutions – the Supremes will not overthrow all that this year, if they ever do. So there’s still the long, weary road from Gettysburg to Appomatox we must travel, it seems to me. But now we march along with hopeful expectation, not wondering fear.

Nick
March 29th, 2013 | LINK

Dan Savage believes Prop 8 and DOMA will be upheld as the law of the land in June.

Mark F.
March 29th, 2013 | LINK

Nick, that’s certainly not impossible, but I’m basing my opinion on Justice Kennedy’s comments during oral arguments and his previous written opinions. I think he wants to thread some middle ground here.

In any case, even if we lose both cases we will ultimately win using the political process.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.