Liberty and Union

Four months ago, I watched with a group of my friends as the country re-elected Barack Obama to the presidency of the United States. Giddy with triumph and relief, I turned to my friends and exclaimed, “Hooray! I’m not going to lose my health insurance in ten months!” (Had Mitt Romney been elected and fulfilled his campaign pledge to repeal Obamacare, I would no longer be eligible for coverage by my parents’ health insurance upon my birthday this August.) One of my friends and former coworkers, Jason, replied with equal relief, “Hooray! I’m not going to be treated like a second-class citizen!”

Jason is gay, and under the laws of the United States, and of many states thereof, he is a second-class citizen. Although I’ve supported marriage equality since my state rejected in 2002, it had never personally hit home for me like it did in that moment. For me, the election had been about horses and bayonets, about Obamacare and death panels, and about Mitt Romney and his binders full of women. For Jason, the election could result in a glimmer of hope — or the sustenance of legal bigotry. In every state, he cannot donate blood. In twenty-eight states, he cannot adopt children with his partner. In twenty-nine states, he is not legally protected from workplace discrimination. In twenty-nine states, he is not legally protected from housing discrimination. In forty-one states, he cannot marry whom he loves. 

It used to be worse. Within the last three years alone, he has gained the right to defend his country and the right to visit whom he loves in a hospital. Now, earlier today, the Department of Justice submitted an amicus curiae brief in Hollingsworth v. Perry, on behalf of the United States of America, that urged the Supreme Court to strike down California’s Proposition 8. In the 33-page brief, the Obama administration hath loosed the fateful lightning from its terrible swift sword.

One by one, like the blows of a sledgehammer, the Department of Justice breaks down myths about gay and lesbian couples. “Sexual orientation generally bears no relation to ability to perform or contribute to society,” they state in their call for the application of heightened scrutiny — a judicial determination as to the extent of protection necessary for a minority group. Proposition 8 proponents, the petitioners in this case, argue that marriage is intended to produce a stable institution for procreation and child-rearing. Not so, says the federal government, citing among others the historic 1967 Supreme Court decision overturning miscegenation laws. Besides, what threat do same-sex couples pose to opposite-sex couples? (The correct answer is “none whatsoever,” as the brief implies.)

It’s a foolish argument by the petitioners either way since, as the federal government observes, Proposition 8 doesn’t affect child-rearing or parenting in any way. It doesn’t even prevent same-sex parenting! Not that it should, of course. “The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents.” That’s the federal government of the United States, declaring in writing before the highest court in the Republic that same-sex couples can raise children just as well as anyone else. “Indeed,” the federal government argues, “because a substantial number of California children are raised in households headed by same-sex couples, Proposition 8 actually disserves the goal of improving child welfare by denying families access to the added stability and social acceptance provided by marriage.”

Wait just a second here, the petitioners then argue, let’s not be too hasty with what would be a seismic change for American society. This requires thoughtful analysis and careful consideration, they plead. The federal government could not be more incredulous at this claim if it were wearing lederhosen and juggling chainsaws. Even if you think not denying gay and lesbian citizens their basic human rights deserves slow deliberation, “…Proposition 8 does not embody such an approach but rather goes to the opposite extreme. It permanently amends the California Constitution to bar any legislative change to the definition of marriage.” To twist the knife, the federal government notes that “similar calls to wait have been advanced — and properly rejected — in the context of racial integration, for example.” Congratulations, anti-equality advocates: the United States Department of Justice just compared you to segregationists in a court of law.

That’s not the only comparison to segregationists drawn in the brief. When attacking the claim that Proposition 8 defends “traditional” (i.e., mainstream Christian) marriage, the federal government notes:

Indeed, marriage has changed in certain significant ways over time — such as the demise of coverture and the elimination of racial restrictions on marital partners — that could have been characterized as traditional or fundamental to the institution. As this court has observed, “laws once thought necessary and proper” may in fact “serve only to oppress,” and, “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Well said.

The last major argument advanced by the petitioners is that Proposition 8 “serves an interest in returning the issue of marriage to the democratic process.” That’s not the point, the federal government retorts, and in fact begs the question. LGBT Americans are a well-defined minority whose protection cannot be — and heretofore has not been — guaranteed through the democratic process. That necessary role, the federal government argues, falls to the judicial branch.

To that end, the Obama administration’s arguments for this case, and to the broader issue of marriage equality in the courts, is tactical and well-chosen. By closely tailoring their arguments to refute those of the plaintiffs’, and by proposing only that Proposition 8 be struck down, the government does not ask for more than the Court can immediately provide. Nevertheless, by refuting the democratic self-governance argument (often used by the majority to deny marriage equality nationwide) and proposing the heightened scrutiny standard for sexual orientation, the government’s argument lays the groundwork for the justices to take two steps towards universal marriage equality: first by striking down its prohibition in California, then by using the Hollingsworth precedent in a subsequent case to strike down all prohibitions nationwide.

This strategy suits the court’s current conservative tenor. The Roberts Court expanded Second Amendment rights in a similar manner: first by recognizing an individual right to bear arms in D.C. v. Heller, which only dealt with the District of Columbia, then by using that ruling as precedent to expand its decision to the states in McDonald v. Chicago two years later. Of the justices who dissented in Lawrence v. Texas, the Supreme Court’s most recent LGBT rights case, only two remain on the bench — the ever-implacable Clarence Thomas and the always-immovable Antonin Scalia. Of the remaining seven, only Justice Alito’s stance remains a mystery. The Court’s four liberal justices (for want of a better term) will almost certainly vote to strike down Proposition 8, as would Justice Kennedy, who sided with the majority in Lawrence. Chief Justice Roberts, who joined the court two years after Lawrenceworked pro bono on LGBT rights cases while in private practice in 1996. I would be shocked if he did not join the majority in striking down Proposition 8.

Make no mistake: the Obama administration and the Roberts Court are moving swiftly at last towards marriage equality. If they do not flag or falter, both Jason and the millions of other LGBT Americans won’t be second-class citizens for much longer.

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