It’s really none of my business. Really. But I hope Elena Kagan is gay.
The U.S. District Court in San Francisco struck down California’s Proposition 8 on the grounds that, among other arguments, it violated the Equal Protection Clause because there was no rational basis for discriminating against gays and lesbians. For those of you non-lawyers out there, rational basis analysis is the weakest test applied to discriminatory laws. If you were comparing rational basis analysis to limbo, let’s just say it would be ankle-high: not a hard hurdle to overcome. And yet the proponents of Proposition 8 failed to overcome it.
So imagine how lame Judge Vaughn Walker thought the justifications for Proposition 8 were that he ruled that they didn’t pass rational basis analysis, to wit:
1) Preserving the institution of marriage as between a man and a woman;
2) Proceeding with caution when implementing social changes;
3) Promoting opposite-sex parenting over same-sex parenting;
4) Protecting the freedom of those who oppose same-sex marriage;
5) Treating same-sex couples differently from opposite-sex couples; and
6) Any other conceivable interest.
Perry v. Schwarzenegger, (2010) No, C-09-0299 VRW (N.D. Cal.) at p. 123. So let me get this straight – you’re going up against Ted Olsen and David Boies, two veritable legal giants who have appeared numerous times before the U.S. Supreme Court, most notably against each other in Bush v. Gore, and this is the best you can come up with? I hope those Prop. 8 supporters didn’t spend a lot of money on their legal talent.
Depending on the patchwork of state and federal court decisions determining whether prohibiting gay marriage violates equal protection and due process under our federal Constitution, the U.S. Supreme Court might be enticed to take this case to settle the law once and for all. Maybe.
And if it does, I hope Elena Kagan is gay. I wonder how many gay people the Justices know. I wonder if they know that gay people aren’t trying lessen the meaning of marriage for others; they’re just seeking equal rights under the laws. If states hadn’t gotten into the business of regulating marriage in the first place, we wouldn’t be in this position. Everyone would just go to their church, synagogue, supreme leader, open pasture or whatever, declare themselves married, and prepare to get screwed by the IRS. But nooooooo . . . . the states had to get all up in our business and license and regulate marriage. Well, guess what? The state doesn’t get to play favorites, even if a majority of people want it to. That’s what the Constitution is for – to protect the rights of people who happen to be in them minority, no matter what you think of them. Once the government got involved in marriage, it ceased to be just a religious rite. Now it’s an individual right. And that, in a nutshell, is why you shouldn’t be able to discriminate as to who gets to enjoy that right.
If Elena Kagan is gay, I want those Justices who think it’s okay to discriminate based on sexual orientation to look her in the eye and make that argument.
And then prepare for the legal smackdown of a lifetime.
We’ve heard similar arguments before, folks, and so has the U.S. Supreme Court -- in Loving v. Virginia, 388 U.S. 1 (1967), where the State of Virginia had the audacity to argue the constitutionality of its anti-miscegenation laws. In holding Virginia’s anti-miscegenation law up the Court had this to say:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.
Loving v. Virginia, 388 U.S. 1 at 12. If gay and lesbian people love their mates half as much as I love Black Man Not Blogging (BMNB), well, then, their right to marry is worth fighting for. I wish them well.
And I’m hoping against all hope that Elena Kagan is gay.
Showing posts with label Proposition 8. Show all posts
Showing posts with label Proposition 8. Show all posts
Git To Work!
First, I hope everyone had a wonderful Memorial Day weekend and kept our fallen servicemen and women in their thoughts and prayers.
Second, I have to acknowledge a comment made about my last entry that didn’t address President Obama's plan to indefinitely detain enemy combatants without trial. With this, I do not agree. Indefinite detention without charges is not acceptable. What if Iran had indefinitely detained Roxanne Saberi without a trial, even a sham one? What if North Korea indefinitely detains Laura Ling and Euna Lee without trial? We can’t lead if we don’t lead by example and under the rule of law, namely habeas corpus. President Obama needs to rethink this. I can’t go for that, no how, no can do.
Third, I’m pleased beyond words at the nomination of Judge Sonia Sotomayor for the U.S. Supreme Court (see my May 1 blog entry). Now, to the Democrat senators: Git to work. Now is not the time for bipartisanship – great if you can get it on this nomination, but if you can’t, you better act like the big dogs you are and make this happen. Judge Sotomayor is more qualified than either Justice O’Connor or Justice Thomas (talk about a waste) was when they were nominated, and her voice and experience are sorely needed in the white male bastion that has been the U.S. Supreme Court. In the words of Tim Gunn, you need to “make it work.” Or, in the words of RuPaul, “You better WORK.”
Finally, as to the California Supreme Court’s decision upholding Proposition 8, well, I’m disappointed but not surprised. This was a totally different legal issue before the court – whether the proposition was an amendment to the California constitution or a revision requiring a constitutional convention. I didn’t read the decision thoroughly, but I can say that the decision wasn’t interpreting the California constitution per se, but the means by which it can be legally changed. The court held that Prop. 8 was indeed a legal means to change the California constitution.
That said, my message to my LGBT brothers and sisters is this: Git to work. I believe that Prop. 8 passed because of ignorance as to what the California Supreme Court’s decision upholding same-sex marriage meant. I even spoke to a devout African American Christian woman who said she was supporting Prop. 8 because she didn’t want to have gay and lesbian couples getting married in her church. I had to explain to her that no state law requires a church to marry folks outside of its faith or anyone it doesn’t want to marry. I also explained that all same-sex marriage does is treat people equally under the law, period – that she didn’t have to agree with or like same-sex marriage, but that same-sex couples pay taxes, work, and have families just like heterosexual couples, and all that they wanted was the opportunity to secure the exact same rights as heterosexual couples. I also explained that we African Americans need to be the last folks advocating discrimination against anybody.
So, here’s what needs to be done:
1) Educate folks. There was no clear explanation from the LGBT community of what the California court decision upholding same-sex marriage meant and what Prop. 8 would mean. Mind you, if the woman I spoke to thought that same-sex marriage meant that her church had to let same-sex couples get married in it, how many other people thought the same? No one, to the best of my knowledge, made clear the case for same-sex marriage – why LGBT couples want it, why it’s different than civil unions, and what it would not require of the straight community. And you can’t be afraid to go to churches, synagogues, etc. and talk to people who oppose you. Come respectfully and explain same-sex marriage is an “equality under the law” issue, not a religious issue – you know, the whole “Render unto Caesar” thing. Prop. 8 is as discriminatory as requiring polygamy would be and is based on the same rationale – allowing the government to discriminate based on religious beliefs of the voting majority. But you have to educated people as to why same-sex marriage is a legal issue that does not erode heterosexual marriage, especially since we straight folks have done enough to erode the institution of marriage all by our damn selves, thank you very much.
2) Make it personal. None of the anti-Prop. 8 commercials I saw had LGBT people in them. WTF? As much as folks don’t like to admit it, everybody – and I mean EVERYBODY – has a LGBT family member. I have at least two that I know of, one of whom I urged to hurry up and get married before the right to do so was taken away. He didn’t listen. Regardless, you need to make this issue personal – would folks want their gay Uncle Larry or Cousin Tina to be treated differently under the law than them? Next time, have commercials with LGBT folks and their straight family members. People forget that LGBT people pay taxes, work, raise families, and die for this country. Don’t let them. Truman couldn’t justify continuing discrimination in the military when black soldiers were dying alongside white soldiers for this country. Make it personal, and don’t let folks forget your humanity.
3) Get ugly. Yes, you need to boycott and sit in. Now, I’m not advising sitting in at an LDS church, but anything related to Marriot hotels would be fair game, as would Deseret Industries. There should be no gay pride parades in California until the law is changed. There should be no gay tourism in California until the law is changed. Every dollar that leaves the wallet of an LGBT person in California should have written on it, “I’m LGBT and want to be treated equally under the law.” Every company and organization that donated funds to the Prop. 8 campaign should be outed, targeted, and boycotted. Black organizations boycotted Arizona for not adopting a Dr. King holiday. You need to boycott California.
4) Get on the ballot and don’t give up. I wouldn’t let up on this issue. I’d get it on the ballot as often as possible until I prevailed. People expect the LGBT community to give up and walk away because the numbers aren’t there to vote in same-sex marriage. Well, the numbers aren’t there yet. But if you do what I say, they will be. What if Dr. King had given up? And who helped bring the idea of non-violent protest to him as well as the idea of the March on Washington? Bayard Rustin, a black gay man. And black folks didn't have the numbers on our side for decades until Dr. King, Rustin, and others came along and won hearts and minds.
So, git to work!
Second, I have to acknowledge a comment made about my last entry that didn’t address President Obama's plan to indefinitely detain enemy combatants without trial. With this, I do not agree. Indefinite detention without charges is not acceptable. What if Iran had indefinitely detained Roxanne Saberi without a trial, even a sham one? What if North Korea indefinitely detains Laura Ling and Euna Lee without trial? We can’t lead if we don’t lead by example and under the rule of law, namely habeas corpus. President Obama needs to rethink this. I can’t go for that, no how, no can do.
Third, I’m pleased beyond words at the nomination of Judge Sonia Sotomayor for the U.S. Supreme Court (see my May 1 blog entry). Now, to the Democrat senators: Git to work. Now is not the time for bipartisanship – great if you can get it on this nomination, but if you can’t, you better act like the big dogs you are and make this happen. Judge Sotomayor is more qualified than either Justice O’Connor or Justice Thomas (talk about a waste) was when they were nominated, and her voice and experience are sorely needed in the white male bastion that has been the U.S. Supreme Court. In the words of Tim Gunn, you need to “make it work.” Or, in the words of RuPaul, “You better WORK.”
Finally, as to the California Supreme Court’s decision upholding Proposition 8, well, I’m disappointed but not surprised. This was a totally different legal issue before the court – whether the proposition was an amendment to the California constitution or a revision requiring a constitutional convention. I didn’t read the decision thoroughly, but I can say that the decision wasn’t interpreting the California constitution per se, but the means by which it can be legally changed. The court held that Prop. 8 was indeed a legal means to change the California constitution.
That said, my message to my LGBT brothers and sisters is this: Git to work. I believe that Prop. 8 passed because of ignorance as to what the California Supreme Court’s decision upholding same-sex marriage meant. I even spoke to a devout African American Christian woman who said she was supporting Prop. 8 because she didn’t want to have gay and lesbian couples getting married in her church. I had to explain to her that no state law requires a church to marry folks outside of its faith or anyone it doesn’t want to marry. I also explained that all same-sex marriage does is treat people equally under the law, period – that she didn’t have to agree with or like same-sex marriage, but that same-sex couples pay taxes, work, and have families just like heterosexual couples, and all that they wanted was the opportunity to secure the exact same rights as heterosexual couples. I also explained that we African Americans need to be the last folks advocating discrimination against anybody.
So, here’s what needs to be done:
1) Educate folks. There was no clear explanation from the LGBT community of what the California court decision upholding same-sex marriage meant and what Prop. 8 would mean. Mind you, if the woman I spoke to thought that same-sex marriage meant that her church had to let same-sex couples get married in it, how many other people thought the same? No one, to the best of my knowledge, made clear the case for same-sex marriage – why LGBT couples want it, why it’s different than civil unions, and what it would not require of the straight community. And you can’t be afraid to go to churches, synagogues, etc. and talk to people who oppose you. Come respectfully and explain same-sex marriage is an “equality under the law” issue, not a religious issue – you know, the whole “Render unto Caesar” thing. Prop. 8 is as discriminatory as requiring polygamy would be and is based on the same rationale – allowing the government to discriminate based on religious beliefs of the voting majority. But you have to educated people as to why same-sex marriage is a legal issue that does not erode heterosexual marriage, especially since we straight folks have done enough to erode the institution of marriage all by our damn selves, thank you very much.
2) Make it personal. None of the anti-Prop. 8 commercials I saw had LGBT people in them. WTF? As much as folks don’t like to admit it, everybody – and I mean EVERYBODY – has a LGBT family member. I have at least two that I know of, one of whom I urged to hurry up and get married before the right to do so was taken away. He didn’t listen. Regardless, you need to make this issue personal – would folks want their gay Uncle Larry or Cousin Tina to be treated differently under the law than them? Next time, have commercials with LGBT folks and their straight family members. People forget that LGBT people pay taxes, work, raise families, and die for this country. Don’t let them. Truman couldn’t justify continuing discrimination in the military when black soldiers were dying alongside white soldiers for this country. Make it personal, and don’t let folks forget your humanity.
3) Get ugly. Yes, you need to boycott and sit in. Now, I’m not advising sitting in at an LDS church, but anything related to Marriot hotels would be fair game, as would Deseret Industries. There should be no gay pride parades in California until the law is changed. There should be no gay tourism in California until the law is changed. Every dollar that leaves the wallet of an LGBT person in California should have written on it, “I’m LGBT and want to be treated equally under the law.” Every company and organization that donated funds to the Prop. 8 campaign should be outed, targeted, and boycotted. Black organizations boycotted Arizona for not adopting a Dr. King holiday. You need to boycott California.
4) Get on the ballot and don’t give up. I wouldn’t let up on this issue. I’d get it on the ballot as often as possible until I prevailed. People expect the LGBT community to give up and walk away because the numbers aren’t there to vote in same-sex marriage. Well, the numbers aren’t there yet. But if you do what I say, they will be. What if Dr. King had given up? And who helped bring the idea of non-violent protest to him as well as the idea of the March on Washington? Bayard Rustin, a black gay man. And black folks didn't have the numbers on our side for decades until Dr. King, Rustin, and others came along and won hearts and minds.
So, git to work!
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