In my latest Harvard Independent column, I argue that the legal challenge to Proposition 8 in a California federal court may end up backfiring if it reaches the Supreme Court, because there almost certainly are not five votes for judicially-imposed gay marriage on the current court. Furthermore, I said, an anti-marriage equality ruling would suck the air out of the attempt to get state courts to recognize gay marriages via their own states’ constitutional equality provisions.
I want to respond to a couple of interesting comments that I received on this column. First, “Mike” argues that Justice Scalia is bound by his own logic to support gay marriage when it comes before the court. In his Lawrence dissent seven years ago, Scalia said that if one accepted the majority’s reasoning, there could be no justification for denying the benefits of marriage to gay couples. What justification could there be? “Surely not the encouragement of procreation,” Scalia said, “since the sterile and the elderly are allowed to marry. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.”
Does that mean that Scalia is required by “principle and logic” to support gay marriage when it comes up? Hardly. Scalia doesn’t have to say “just kidding” at all. He will be perfectly consistent if he says that the Lawrence majority was wrong to break down the legal distinction between homosexual and heterosexual couples, and it would be wrong to extend its logic to the case of marriage. Only if Scalia were a strict follower of precedent would he be honor-bound to support Lawrence given his view that Lawrence destroys the rationale for prohibiting gay marriage. And Scalia is not a strict follower of precedent (cf. Citizens United).
The other comment I received was from Jonathan M. Barr-Sawyer (relation? I don’t know). I’ll quote him at length.
We need to take it to the STREETS and DEMAND equality for ALL regardless of the consequences. It is NOT going to take 15 -20 years for the BAN on Gay Marriage to be lifted if we FIGHT for our RIGHTS and I mean anything short of violence. This will never be changed by sitting back and letting the Legislature take their time to establish Marriage Laws that protect everybody, not just LGBT people. Your passivity is overwhelmingly HARMFUL to GAY people everywhere. Remember STONEWALL and when GAY PEOPLE have had ENOUGH of the discrimination will the LAWS be changed CONSTITUTIONALLY. Where are your BALLS in all of this????????????
I expected this sort of comment when I wrote my column. I tried to head it off by saying that I wish the Court wouldn’t uphold Proposition 8. And I made it quite clear that I want to fight for our rights, and not sit back and let legislatures take their time. I said, “We need a popular uprising, some legislative and electoral triumphs, and, not to be macabre, the passage of time and the coming-of-age of a new, pro-gay generation.” I don’t see the “passivity” in that statement.
Still, I recognize that talking about strategy when people’s rights are being denied can strike some as offensive. And I recognize the emotional appeal of talking about fighting and demanding and taking to the streets (all of which, again, I think supporters of marriage equality should do).
But these sorts of appeals, no matter how understandable they are, still seem short-sighted and blind to history. The NAACP didn’t directly challenge “separate but equal” until 1954 for a reason. They built their way up to Brown with precedents: Shelley v. Kraemer, Sweatt v. Painter, McLaurin v. Oklahoma State Regents. The gay-marriage equivalent of these lesser cases is Gill v. Office of Personnel Management, a Massachusetts case challenging the constitutionality of denying federal marriage benefits to same-sex couples who are legally married in their state of residence. That’s a winnable case, not sometime in the future but right now. Just like Lawrence and Romer v. Evans were winnable cases. I’m afraid that Perry v. Schwarzenegger is probably not a winnable case, and I don’t really think it bespeaks passivity to say so.
Photo credit: Flickr stream of Scubaben