Why We're Losing the Gay Marriage Battle
By Chris Crain
Washington Blade
It's truly the dog days of summer in the battle for marriage equality. This month alone, judges in six states — New York, Massachusetts, Connecticut, Georgia, Nebraska and Tennessee — have ruled against lawsuits brought by gay marriage supporters.
The worst defeat was in New York, where the state's highest court decided it was constitutional to exclude gay couples from marrying because there are rational reasons other than disapproval of gay relationships for doing so.
The justification cited by the court was protecting the welfare of children, who Judge Robert S. Smith said would best be served by a mother and a father. He acknowledged no research support for that conclusion, but argued "intuition" was enough.
Left unanswered by Judge Smith was the excellent question raised in dissent by Chief Judge Judith Kaye: Why exactly would heterosexual couples be less likely to have children in wedlock if homosexual couples were allowed to marry?
"There are enough marriage licenses to go around for everyone," wrote Kaye, answering her own question. "No one rationally decides to have children because gays and lesbians are excluded from marriage."
And the list goes on…
The highest court in Massachusetts famously ruled the other way on gay marriage a few years back. But even though the Massachusetts Constitution prohibits amendments intended to overturn court opinions, this month that same court said it won't stop an amendment that would do just that, turning back the clock to hetero-only marriage.
In Connecticut, gay couples can't marry but they can, like their not-so-distant neighbors in Vermont, enter into civil unions that include the same rights and benefits, but under a different name and set of laws. This month, a judge there said that was good enough, and ruled against gay couples suing under the simple idea that separate is inherently unequal.
That had to make gay advocates in California nervous, since in oral arguments this month the state defended its exclusion of gays from marriage with the same argument: that the state's domestic partnerships are good enough.
Georgia is a lot more conservative, of course, than New York, Massachusetts or Connecticut. But the state's supreme court has a fairly good gay rights track record. The U.S. Supreme Court upheld Georgia's sodomy law in the infamous decision of Bowers vs. Hardwick, but it was the Georgia Supreme Court that threw the law out — several years before their black-robed colleagues in Washington finally saw the error in their Bowers ways.
This month, however, the Georgia Supreme Court overturned a ruling by a lower court overturning a state constitutional amendment banning gays from marrying, which passed overwhelming as a ballot measure in 2004. The high court decided the amendment did not violate the Georgia Constitution's "single subject rule," even though it not only blocked gay marriage, but civil unions, domestic partnerships and other forms of legal recognition as well.
The scene was much the same in Nebraska and Tennessee, where courts brushed aside efforts to either undo a state amendment that had already passed (Nebraska) or block one from reaching the ballot (Tennessee).
Depressing common thread
The marriage lawsuits in these six states involve a wide array of legal issues and state constitutional provisions, and they were decided on very different grounds. But they share one common, depressing thread: The good gays lost.
It's only fair to ask why. If, as our advocates keep telling us, we have the better of the arguments on marriage, then what happened to the momentum we had in these lawsuits just a few years ago?
Back then, when the highest courts in Hawaii, Alaska, Vermont and Massachusetts considered the gay marriage question, we won. Have our conservative legal opponents come up with some dynamite new legal arguments that have caught our advocates flatfooted?
The answer is pretty much no. All in all, in the battle of the legal briefs, the arguments are the same and, allowing for the natural tendency to smoke our own dope, the gay couples have by far the stronger case.
No, we aren't losing marriage cases based on the merits. We are losing because the courtroom battle over marriage has been transformed from one about principles like equal protection and fundamental rights, into one about power.
We're taught in civics class that judges apply the law in each case free from
the pressures of politics. But of course that's not the case.
Whether they will say so or not, the No. 1 priority for almost all judges is to preserve their own authority. Faced with the choice of doing the right thing or losing that authority, they will find a way to duck the right thing — and the law is replete with ducking opportunities.
The way most judges see it, though they won't ever say it, there is no point to "doing the right thing" if their decision faces a veto from the people in the form of a constitutional amendment. Not only is it pointless to risk prestige and rule one way, only to see it reversed by amendment, but their authority to rule on countless other issues, including other civil rights cases and even gay rights cases, has been irreversibly undermined.
Look at what's happened on marriage. In both Hawaii and Alaska, the supreme courts ruled a decade ago that excluding gays from marriage was unconstitutional. Before the cases could be completed, both court rulings were overturned by constitutional amendments.
In Vermont four years later, the supreme court ruled the same way but cleverly put the issue back in the legislature's hands and telegraphed that they'd likely accept some other institution for gay couples, with a different name but otherwise identical. Civil unions were born.
The high court in Massachusetts defied the odds, striking down the marriage laws and later ruling that any institution other than marriage would be inherently unequal. Only an incredibly complex constitutional amendment process there has preserved those rulings from the people's veto, and this month's decision shows even our courageous champions in Boston can be cowed.
Almost half the states have since followed Hawaii and Alaska's lead, adopting constitutional amendments by ballot measure. Gay marriage supporters haven't even come close to stopping one.
In Georgia, after the lower court judge threw out the amendment there, the Republican governor threatened a special legislative session to enact a new amendment unless the Supreme Court expedited review and reversed the ruling. The leading Democrats seeking to unseat him this fall quickly agreed, despite the time and taxpayer expense it would involve.
Looking down the barrel of that political shotgun, is it any wonder the Georgia justices meekly complied, expediting review and unanimously reinstating the amendment?
The lesson is a depressing one but let's at least learn it: Either we win the freedom to marry in the legislatures or we must at least make our court victories stick. Because only the rarest of judges will rule our way if it means jeopardizing their own authority.
Washington Blade
It's truly the dog days of summer in the battle for marriage equality. This month alone, judges in six states — New York, Massachusetts, Connecticut, Georgia, Nebraska and Tennessee — have ruled against lawsuits brought by gay marriage supporters.
The worst defeat was in New York, where the state's highest court decided it was constitutional to exclude gay couples from marrying because there are rational reasons other than disapproval of gay relationships for doing so.
The justification cited by the court was protecting the welfare of children, who Judge Robert S. Smith said would best be served by a mother and a father. He acknowledged no research support for that conclusion, but argued "intuition" was enough.
Left unanswered by Judge Smith was the excellent question raised in dissent by Chief Judge Judith Kaye: Why exactly would heterosexual couples be less likely to have children in wedlock if homosexual couples were allowed to marry?
"There are enough marriage licenses to go around for everyone," wrote Kaye, answering her own question. "No one rationally decides to have children because gays and lesbians are excluded from marriage."
And the list goes on…
The highest court in Massachusetts famously ruled the other way on gay marriage a few years back. But even though the Massachusetts Constitution prohibits amendments intended to overturn court opinions, this month that same court said it won't stop an amendment that would do just that, turning back the clock to hetero-only marriage.
In Connecticut, gay couples can't marry but they can, like their not-so-distant neighbors in Vermont, enter into civil unions that include the same rights and benefits, but under a different name and set of laws. This month, a judge there said that was good enough, and ruled against gay couples suing under the simple idea that separate is inherently unequal.
That had to make gay advocates in California nervous, since in oral arguments this month the state defended its exclusion of gays from marriage with the same argument: that the state's domestic partnerships are good enough.
Georgia is a lot more conservative, of course, than New York, Massachusetts or Connecticut. But the state's supreme court has a fairly good gay rights track record. The U.S. Supreme Court upheld Georgia's sodomy law in the infamous decision of Bowers vs. Hardwick, but it was the Georgia Supreme Court that threw the law out — several years before their black-robed colleagues in Washington finally saw the error in their Bowers ways.
This month, however, the Georgia Supreme Court overturned a ruling by a lower court overturning a state constitutional amendment banning gays from marrying, which passed overwhelming as a ballot measure in 2004. The high court decided the amendment did not violate the Georgia Constitution's "single subject rule," even though it not only blocked gay marriage, but civil unions, domestic partnerships and other forms of legal recognition as well.
The scene was much the same in Nebraska and Tennessee, where courts brushed aside efforts to either undo a state amendment that had already passed (Nebraska) or block one from reaching the ballot (Tennessee).
Depressing common thread
The marriage lawsuits in these six states involve a wide array of legal issues and state constitutional provisions, and they were decided on very different grounds. But they share one common, depressing thread: The good gays lost.
It's only fair to ask why. If, as our advocates keep telling us, we have the better of the arguments on marriage, then what happened to the momentum we had in these lawsuits just a few years ago?
Back then, when the highest courts in Hawaii, Alaska, Vermont and Massachusetts considered the gay marriage question, we won. Have our conservative legal opponents come up with some dynamite new legal arguments that have caught our advocates flatfooted?
The answer is pretty much no. All in all, in the battle of the legal briefs, the arguments are the same and, allowing for the natural tendency to smoke our own dope, the gay couples have by far the stronger case.
No, we aren't losing marriage cases based on the merits. We are losing because the courtroom battle over marriage has been transformed from one about principles like equal protection and fundamental rights, into one about power.
We're taught in civics class that judges apply the law in each case free from
the pressures of politics. But of course that's not the case.
Whether they will say so or not, the No. 1 priority for almost all judges is to preserve their own authority. Faced with the choice of doing the right thing or losing that authority, they will find a way to duck the right thing — and the law is replete with ducking opportunities.
The way most judges see it, though they won't ever say it, there is no point to "doing the right thing" if their decision faces a veto from the people in the form of a constitutional amendment. Not only is it pointless to risk prestige and rule one way, only to see it reversed by amendment, but their authority to rule on countless other issues, including other civil rights cases and even gay rights cases, has been irreversibly undermined.
Look at what's happened on marriage. In both Hawaii and Alaska, the supreme courts ruled a decade ago that excluding gays from marriage was unconstitutional. Before the cases could be completed, both court rulings were overturned by constitutional amendments.
In Vermont four years later, the supreme court ruled the same way but cleverly put the issue back in the legislature's hands and telegraphed that they'd likely accept some other institution for gay couples, with a different name but otherwise identical. Civil unions were born.
The high court in Massachusetts defied the odds, striking down the marriage laws and later ruling that any institution other than marriage would be inherently unequal. Only an incredibly complex constitutional amendment process there has preserved those rulings from the people's veto, and this month's decision shows even our courageous champions in Boston can be cowed.
Almost half the states have since followed Hawaii and Alaska's lead, adopting constitutional amendments by ballot measure. Gay marriage supporters haven't even come close to stopping one.
In Georgia, after the lower court judge threw out the amendment there, the Republican governor threatened a special legislative session to enact a new amendment unless the Supreme Court expedited review and reversed the ruling. The leading Democrats seeking to unseat him this fall quickly agreed, despite the time and taxpayer expense it would involve.
Looking down the barrel of that political shotgun, is it any wonder the Georgia justices meekly complied, expediting review and unanimously reinstating the amendment?
The lesson is a depressing one but let's at least learn it: Either we win the freedom to marry in the legislatures or we must at least make our court victories stick. Because only the rarest of judges will rule our way if it means jeopardizing their own authority.
posted by LNewsEditor at 8:32 AM
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