To say we live in exciting times is a vast understatement. But it is precisely because of the exuberance over the marriage equality victories with the Supreme Court overturning Prop. 8 and DOMA that we should catch our breath and start thinking strategically to win full equality.
Is There Coordination on State Marriage Efforts?
The Monkey Trial Redux
When the American Foundation for Equal Rights first launched its federal constitutional challenge to Prop. 8, there were many LGBT legal advocates who'd been following a coordinated slow-go process. To say the least, the groups were annoyed when AFER seemed to leap ahead of the agreed-upon strategy--but eventually, those groups and most LGBT Americans started cheering for AFER's success. But to smart observers like philosopher/feminist Linda Hirshman, the trial itself represented a bigger clash. In a Jan. 2010 Daily Beast piece entitled "Gay Marriage's Great Hope," Hirshman wrote:
"In the confrontation between an irrefutable religious standard and a worldly empirical survey, the challenge to California's prohibition on gay marriage reveals a fissure that runs throughout American history: Are we modern or are we medieval? Do Americans live together in a social contract for our material well-being, or are we following ancient traditions of how to live, because tradition is a better teacher than reason? This issue does not surface often in the United States, but it did most powerfully almost 90 years ago in Scopes vs. the State of Tennessee, the 'monkey trial.' And it did so again this week."
As someone who covers the Religious Right from time to time, I thought this was a brilliant and important comparison. And it may also offer a warning, of sorts. Hirshman concluded:
"As everyone knows, Scopes lost the case in 1926, and the prohibition against teaching evolution remained in force. As appeals to the ancient ways of doing things have defeated the claim for gay marriage in state after state, the cold rationality of the rule of law is gay men and lesbians' best hope for equality. The Scopes decision was wrong, of course, and, 40 years after the Tennessee Supreme Court upheld the prohibition on teaching evolution, the Supreme Court ruled, in Epperson v. Arkansas, that such religious bans violate the constitutional protections for freedom of religion. One hopes that the many gay people who want to make a marriage and obligate themselves to care for one another, will not have to wait that long."
And yet, despite the Supreme Court ruling on evolution--several states in the hands of the Religious Right have continued to press school boards to teach so-called "intelligent design"--the position that evolution is only a theory that should be taught side-by-side with creationism. Texas Gov. Rick Perry, a Republican presidential candidate, said Sept. 11, 2010, "I am a firm believer in intelligent design as a matter of faith and intellect, and I believe it should be presented in schools alongside the theories of evolution."
Of course, Republican candidate Jon Huntsman had the best line on Twitter, Aug. 18, 2011: "I believe in evolution and trust scientists on global warming. Call me crazy." Many in his party did.
Marriage Is the New Abortion
Meanwhile, Maggie Gallagher, former honcho of the National Organization for Marriage, explained in a National Review Online piece entitled "The Roe of Marriage: Where do we go from the Supreme Court?" that the Supreme Court decisions just officially made "traditional values" proponents the new "disempowered" minority group that will nonetheless stand against the tide of gay marriage and killing children. Civilization is at stake. No kidding. Here she is:
I don't speak for anyone but myself: Marriage is the word and the idea that incarnates a series of tremendously important ideas our contemporary post-sexual-revolution culture is inclined to deny--and now disparage as bigoted. Our bodies matter. They are part of who we are. Men and women are different, and the whole society needs--because our children need it, and because our future depends on it, on culturally creating it--a pathway from male to female (and vice versa) in which we do not hurt each other or our children with our sexual desires. To become the kind of people who care for our children, not kill them, or hurt them, require a tremendous commitment that adolescents make only in a society where adult society is committed to these norms.
Gay marriage is only plausible because our background commitment and capacity to recognize these ideas--in particular as ideals--is overridden by a number of ideological imperatives.
In the name of equality, we have schools now that massively fail boys--injuring the life prospects of both boys and girls. And yet it's hardly a social problem. By refusing to recognize masculinity, we refuse to engage in the work of identifying what boys (or girls) need, and creating a civilized social order. ...
Our political order has just shifted, and you are now in a disempowered and disfavored minority group in the Supreme Court's eyes. Don't let that be your eyes. Trust the truth. This is not over because the questions raised cannot be settled by fiat.
Crushed, Rushed and Flocked
Mainstream media reported that gay couples rushed or "flocked" to courthouses to get marriage licenses.
AP reported: "The Los Angeles County clerk-recorder's office logged more than 600 online marriage license applications over the weekend--more than five times the normal amount--and posted extended hours Monday and Tuesday to deal with the crush. ... Twenty couples were married within the first 45 minutes Monday and a line grew throughout the morning."
Well, yes, there was a surge for licenses, but in my estimation, the energy was very different from the heart-exploding excitement of 2004 and 2008. There were a number of happy couples married by deputized West Hollywood City Councilmembers and staff, but the venue was not overwhelmed and couples came in a steady stream rather than a continuous rush. In fact, most of the couples I saw had been together for a long time, and one couple in particular - Helen Andersen and Pam Holt - really needed the security of marriage because Pam has inoperative state four colorectal cancer.
Everyone Wants In Now
Meanwhile, as Chris Geidner notes in a well-put together piece, there appears to be a sudden explosion of activity at the state level to secure marriage equality. The National Center for Lesbian Rights and the ACLU announced today that they have filed suit on behalf of six couples challenging the New Mexico state supreme court to clarify and then order that same-sex couples have the right to marry there since there's no law against marriage equality. And Lambda Legal and Garden State Equality have filed a motion in an ongoing lawsuit in New Jersey asking that court to "order that New Jersey allow same-sex couples to marry."
There's a challenge to the state ban in Michigan, and an attorney in Pulaski County, Ark., filed a lawsuit on Tuesday on behalf of couples there, and there's a petition drive in Florida to put a measure on the November 2014 ballot to overturn the ban in that state, too. Geidner reports that there are other lawsuits in Illinois, Nevada and Hawaii seeking marriage equality as well. Geidner also reports on legislative efforts in Pennsylvania and other ballot measures in Arizona, Ohio, Oregon and Nevada.
Meanwhile, the Log Cabin Republicans announced they have "once again joined former Massachusetts United States Senate candidate Dan Winslow and law firm Arent Fox in an Federal Election Commission (FEC) advisory request demanding clarity on campaign finance laws that affect legally married same-sex couples who desire to provide financial support to political candidates from a joint bank account--a right that straight couples have and many take for granted and that the FEC previously denied while Section 3 of DOMA remained law. The full letter to the FEC can be read here."
Geidner closes his piece thusly:
Chad Griffin, the president of the Human Rights Campaign, left the Supreme Court building last week with a bold pronouncement that the organization's goal was to have marriage equality in all 50 states within the next five years.
If the week since the rulings in United States v. Windsor and Hollingsworth v. Perry is any sign, advocates across the country agree with that aim.
But how to achieve that aim has raised questions - at least from me.
Without Cooperation This Gold Rush Is Fools Gold
Questions such as: who is taking the lead on the five-year plan--AFER? HRC? A shotgun marriage with Freedom to Marry? It's ironic that no one has yet mentioned Freedom to Marry's Roadmap to Victory that founder Evan Wolfson has been talking about for the 20 years I've known him. And ironically, there is a Washington Post story by Ruth Marcus that starts:
Evan Wolfson received a B on the law school paper that helped change the world.
It was 1983, and Wolfson, submitting the paper required of all third-year students at Harvard Law School, had chosen a topic--constitutional protection for same-sex marriage--seemingly so far-fetched that some of the distinguished scholars he had asked to serve as faculty advisers declined.
It's my understanding that those LGBT legal groups have never stopped talking and coordinating. That's good. But, that's not known, and it might be useful for someone to pop up and note that there is some strategy, some coordination between and among LGBT national and legal groups, because to a layperson's eye like mine, this looks like the legal Gold Rush in the old Wild West.
And as we see with the Scopes trial and evolution, and the now-successful efforts to scuttle Roe v. Wade, no matter how frustrated Rachel Maddow gets reporting on how the anti-abortion battles are impacting millions of women's lives, and no matter how many Wendy Davises stand and filibuster, the cultural war is still on, and we will eventually lose or have to face more costly battles to secure and defend our constitutional rights if we don't come together, engage and coordinate with our own people and a progressive coalition and strategize now.
After all, the Supreme Court may have conferred marriage rights on same-sex couples in marriage states, but they effectively castrated the Voting Rights Act that most of us thought was sacred and immune from the bigotry of old. Let's not be so arrogant as to think that would never happen to our happy gay couples.