Why we're losing gay marriage cases. Washington Blade editor Chris Crain writes:
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.
Will die-hard advocates of the judicial strategy get the message?
22 Comments for “Failed Strategy.”
posted by dalea on
The problem seems to be that the push for gay marriage keeps poping up from the grass roots, not the leadership, leftist or otherwise, of the gay movement. In most cases some scattered couples got the idea of suing for equality, found a lawyer willing to handle the case, and moved ahead. Without the blessing or push from HRC etc. The troops got way ahead of the generals, who are frantically trying to catch up.
What strategy would you prefer?
posted by Tom Scharbach on
I agree with your assessment, datea.
The push for same-sex marriage has never come from the GBLT “leadership”. It has come from the bottom up, from ordinary gay and lesbian couples who are directly harmed by the bans on same-sex marriage, and who have had enough.
The bottom up push started in 1974, in Minnesota, and has never stopped, although it was thwarted again and again until the Hawaii decision.
And with predictable results, I might add.
Every time gay and lesbian couples have gone to court, with little or no support from the “leadership” other than hand wringing, and gained some traction, the “leadership” has issued calls for caution, prudence and adoption of a “sensible” strategy.
But that has not stopped the bottom up push for same-sex marriage, and it isn’t going to stop now.
The reason is simplicity itself. Gay and lesbian families are put at risk by the ban on same-sex marriage, and parents will do a lot to protect their children, including but not limited to ignoring calls for adoption of a “sensible strategy” and risking a backlash from social conservatives.
Steve seems to believe that the court cases result from a strategy created and driven by “hard-core advocates”, who are somehow in control of the process. Just the opposite is the case, as far as I can tell.
I’ve written about this before, as Steve has. I’m not going to change my views, and Steve doesn’t seem like he’s going to, either. So we go on.
I think, though, that it is important to note that Vermont and Massachusetts courts looked to peculiar quirks in their particular state constitutions (the “common benefits clause” in Vermont, and the unusual wording and history of the Massachusetts constitution) as the rationale for their decision. Neither case was a direct, frontal attack on discrimination on equal protection grounds, which is where the battle will eventually be won or lost.
The Georgia and Nebraska cases were decided on technical grounds, and neither dealt directly with the equal protection question. Tactical setbacks, to be sure, but not about same-sex marriage.
The New York case was remarkable only for the tortured and twisted “logic” used to evade coming to grips with the issue — the rationale is absurd and doesn’t address the issue. The New Tork decision is going to be long studied and ridiculed in law schools as a classic example of “hard cases make bad law”. The decision appears to have been driven by a desire to toss the hot potato into the hands of the legislature at any cost.
I’m going to be very curious to see how California and Washington courts deal with the constitutional quirks in those states.
Gays and lesbians have no alternative to bringing cases up through the courts state by state — marriage is a state law issue, and there is, as yet, no federal issue sufficient to bring the matter to a head in federal courts. The problem presented by bringing up the cases state-by-state, of course, is that each case must rely on particular language in a particular state constitution, and decisions will turn this way or that, depending on the way in which the particular language is interpreted.
That’s messy, but that is the way it is.
Having said all that, I think that a legislative strategy can and will make headway, at least in the northeast and upper midwest. I don’t suppose it will in places like Alabama, where an initiative to remove segregation from the constitution failed in the last election cycle, but I think that we’ll see marriage or civil unions in about ten states within a decade.
In Wisconsin, where I live, we are having a brawl this election cycle over a Republican “nuclear option” amendment, and public opinion is beginning to shape.
A majority of folks favor civil union protection for gays and lesbians, while rejecting same-sex marriage, if polls are accurate.
The amendment might prevail — polls show that it is getting close enough that turnout is going to be the determing factor. That doesn’t bode well for gays and lesbians, because the “Jesus, Jesus” churches are pulling out all the stops internally to drive turnout, and that works — but public debate, at least in the newspapers in this rural county, is robust, and the education process for the moderate, sensible folks is underway.
A caveat. While we might beat back the amendment, we don’t have a prayer of getting civil unions through our legislature at present.
The legislature is heavily controlled by lock-step disciplined Republican social conservatives, led by John Gard, a better-looking, homegrown version of Tom Delay.
My county’s two assembly representatives, for example, are a retired veterinarian who justifies his vote for the amendment on religious grounds, and a woman who cannot seem to say “homosexual” without “danger to our children”. Both will be reelected this fall, and it does not look like the composition of our legislature will change this round.
The day will come, though.
I was talking with our county Democrat party chairman last week, and he reported that several hundred people signed up as paid-up Democrats at the county fair two weeks ago. Almost all of were Republicans and who were disgusted by the “faggot, faggot” strategy.
That’s been my experience, too, canvassing on the amendment around the county. The most unlikely people — straight, conservative Reaganites — are volunteering their opposition to the amendment.
Sooner or later, social conservative obession with gays and lesbians is going to be the death knell of Republican dominance in Wisconsin’s legislature.
By the way, consider making a donation to Fair Wisconsin. We have a chance in Wisconsin to stick our thumb in their eyes on the amendment, and every dollar counts.
posted by Northeast Libertarian on
I am also perplexed by this whole schizophrenia shown in some elements of the gay right. On one hand, complaints often fly fast and furious about leftist agendas holding every gay person hostage to a national agenda with which half or more of gays don’t believe. A lack of diversity, we are told, is stifling us and making us a subsidiary of certain political interests with little or no relevance to gays. And that *is* a legitimate criticism.
However, we then are followed up with attacks on gay marriage advocates for “stepping out of line with the national leadership” on “this issue.” The reality is that gay rights is no longer a “group rights” issue — it’s now firmly where it belongs, as an individual rights issue. And people don’t tend to take orders from others when those orders involve subsuming their own basic human rights under the law to achieve some “greater goal.”
In other words, getting “the evil gay marriage activists who won’t listen to reason” to stop their efforts will be about as fruitful as getting George W. Bush to endorse gay marriage, divorce Laura, and marry Lyndsey Graham in a Rose Garden ceremony.
posted by Tom Scharbach on
… getting George W. Bush to endorse gay marriage, divorce Laura, and marry Lyndsey Graham in a Rose Garden ceremony …
It would be, uh, fabluous, as in: “…we?re a fabulous nation, and we?re a fabulous nation because we?re a nation full of fabulous people …”
posted by Bobby on
“The reality is that gay rights is no longer a “group rights” issue — it’s now firmly where it belongs, as an individual rights issue.”
—-I couldn’t agree more.
posted by Drew on
There are two problems here. First, the GLBT is not using a bi-partisan approach so they are essentially neglecting half the public. Secondly, GLBT people simply are not engaged in politics. VictoryFund.org should be bursting at the seems with hundreds of candidates to support but they have constantly seeking new candidates to support. People can not debate same-sex marriage rationally if they are not required to debate the issue.
posted by Northeast Libertarian on
VictoryFund is not interested in funding gay candidates so much as gay candidates who campaign for certain parties. A no-hope-of-winning gay Democrat in the south has a much greater chance of getting cash from the VF than a significant challenger gay libertarian (or Libertarian) in a liberal northeastern district.
posted by Tom Scharbach on
Drew: “There are two problems here. First, the GLBT is not using a bi-partisan approach so they are essentially neglecting half the public. Secondly, GLBT people simply are not engaged in politics.”
I think both are concerns. I hope that they will change in time. The first is in the hands of Republicans. The the second is in the hands of gays and lesbians.
BIPARTISANSHIP
I think that the first concern — bipartisanship — reflects the reality of politics right now.
In Wisconsin, we are fighting a “nuclear option” amendment.
The amendment was put on the ballot by vote in two legislative sessions. The vote was a party line vote. All Republicans in both houses voted for the amendment in the first session; a single Republican voted against the amendment in the second. All of the Democrats, with a couple of exceptions, voted against the amendment in both sessions.
I’m organizing for BlockOut Wisconsin in Sauk County, a rural county where I live. Our county has a progressive history (in Wisconsin political history, that has a unique meaning), and splits pretty much 50/50 in national and statewide elections, but votes Republican at the assembly and state legislature level.
BlockOut is bipartisan. We are leafletting every home in the county, and talking to anyone who wants to talk. We are finding surprising support among Republicans, who volunteer to us in canvassing that they plan to vote against the amendment. We’ve even found a number of Republican straight allies — folks who are disgusted with the Religious Right’s control of the Republican party — who are willing to actively work with us.
But at the party level, the picture is very different.
Last spring, I tred to meet with the county organization of both parties to discuss our canvassing and ways in which we could cooperate.
The Republicans refused to meet. I tried talking to individual local Republican leaders, including both assembly representatives, both state senators serving our county, a closeted County Board member snd a closeted city council member from the second-largest town in the county. All acted as if I was selling rectal herpes.
The Democrats, on the other hand, invited me to meet, selected the amendment as one of four issues to push in their local letter-writing campaign, mention the amendment in handouts and brochures, put our literature in their booth at the county fair, and so.
Both Democrat assembly candidates oppose the amendment, as do both state senate candidates. The Democrat statewide slate is speaking our in opposition to the amendment. Both Democrat US representatives serving our county are on record against the amendment. One of our Democrat Senators, Russ Feingold, has spoken out in plain English in favor of same-sex marriage. Just about the only Democrat leader who has remained silent on the issue is Senator Hern Kohl, and that’s complicated and personal.
I haven’t given up on bipartisanship, and neither has BlockOut. We are talking to anyone who will listen, and we are listening as well. I’d be delighted to work with the local Republican organization, but you can’t work with an organization that refuses to talk to you.
And that is what has to change. I don’t take gay and lesbian Republicans who bemoan the fact that gays and lesbians are becoming politically aligned with the Democrat party seriously unless (1) the Republican is out, and (2) the Republican is active in the party. In short, I’m not willing to waste my time listening to bullshit from gay and lesbian Republicans who won’t show up for the fight.
I voted for Barry Goldwater and voted steadily Republican up until the 1980’s, when the Republican party went Taliban on us. I’m voting more or less straight Democrat this year. Why should I vote Republican, when I can’t even get Republicans to talk to me?
POLITICS
The Victory Fund is a good idea, but it depends on finding out gays and lesbians willing to stand for office.
I would be thrilled if I could vote for an out County Board member, for example. I can’t. None exists. We have a gay County Board member, but he is closeted.
I’d be delighted to encourage an out Republican to be a candidate for any office he or she was qualified for, if I could find an out Repbulican around here. I haven’t yet.
The Democrats are a bit better. My Congresswoman, Tammy Baldwin, is an out lesbian. I am helping an out Democrat prepare for the 2008 Aseembly race. But even among Democrats, pickings are slim.
I think, oddly, that the amendment brawl — and in particular the viciousness of the social conservatives, who are laying everything from HIV/AIDS to pederasty at the doorsteps of gays and lesbians in letters to the editor in our county, might change that, similar to the way in which AIDS changed the GLBT landscape a decade or so ago.
The amendment brawl has brought local gays and lesbians, who had been living under DADT, out of the closet. A significant number of gays and lesbians who had been very quiet in the past are out now, openly opposing the amendment, putting our literature in their stores and businesses, outing themselves in letters to the local newspapers, speaking up at forums and in private, and so on. If I read things right, local gays and lesbians have had it with the lies and fear-mongering, and are fighting back. Not all, of course — too many are like the “Baraboo Bears”, a couple that throws good parties for the biker crowd but will not lift a finger about the amendment — but perhaps enough. I am particularly encouraged by the way that the amendment has brought older gays and lesbians, uninvolved in politics until now, into the fight. I think that things are changing.
I hope that the amendment fight, and all it entails, will result in more gays and lesbians becoming active in politics, permanently, actively and openly supporting politicians who support gay and lesbian rights. I would like to get to the point where the Victory Fund is rendered redundant because being out and in politics, or being straight and supporting GLBT equality, is the norm, not the exception.
But it will never happen unless gays and lesbians get out and get into the fight.
That is true for all of us, but it is doubly true for gay and lesbian Republicans. We have a fight on, and where the hell are they? It is their party, after all, that is pounding away on the “faggot, faggot” drum.
posted by kittynboi on
I think it would be helpful is people bashing the “judicial strategy” would realize that, regardless of where it comes from, the courts or legislation, the right wings are still gonna complain about gay marraige being “forced” on them.
Does anyone really think that if we put it to a vote and the people vote for gay marraige, the right will just fold up shop and say “okay, thats fine. As long as you get it without judicial activism thats good enough for us. The people have spoken.”?
posted by North Dallas Thirty on
Does anyone really think that if we put it to a vote and the people vote for gay marraige, the right will just fold up shop and say “okay, thats fine. As long as you get it without judicial activism thats good enough for us. The people have spoken.”?
No. But then THEY will be the ones in the position of trying to stretch and manipulate the Federal and state constitutions to get those laws overturned — and should enjoy exactly the same level of success, if not less, than gay leftists are currently managing.
Whether they complain or not is irrelevant. Whether the law is on their side or not is relevant, and right now it is.
posted by North Dallas Thirty on
That is true for all of us, but it is doubly true for gay and lesbian Republicans. We have a fight on, and where the hell are they? It is their party, after all, that is pounding away on the \\”faggot, faggot\\” drum.
Put bluntly, most of us are waiting for you to finish making yourself irrelevant.
The simple reason is because you and your fellows, in the process of \\”gathering support\\”, permanently enslaved gays to and associated us with the antireligious, anti-Republican, hatemongering, moonbat Democratic left. Furthermore, to cap this off, you\\’ve a) referred to conservative and Republican gays as \\”kapos\\”, \\”Jewish Nazis\\”, and the like, and b) set off on outing campaigns and blackmail to harass us at work and try to get us fired — even as the Democrats who you told us were \\”pro-gay\\” and \\”gay-supportive\\” sold us down the river at the first political opportunity.
Take a lesson from the NAACP, who, after years of sliding farther and farther into irrelevancy, their numbers declining and their clout decreasing, replaced their moonbat leader Julian Bond, who constantly ranted against Republicans, Bush, and white people, with moderate Bruce Gordon, who didn\\’t — and suddenly found the doors opened to them.
Once you do that, we\\’ll be glad to rejoin the effort. But as it stands, you\\’ve made it clear that you consider us lower forms of life because of our beliefs and political affiliations and that your interest is more in advancing partisan and leftist causes than it is gay rights.
posted by Drew on
Hey Tom, Bipartisan ship is not just in the hands of the Republicans. Take a look at the issue of gays in the military. President Clinton raised the issue. After the Iraq war, Democrats embraced Howard Dean. How does a gay soldier honor himself and his country politically? The Republicans want him straight. The Democrats want him out of Iraq. So he stays in the closet.
posted by Tom Scharbach on
Drew: “Bipartisan ship is not just in the hands of the Republicans. Take a look at the issue of gays in the military. President Clinton raised the issue. After the Iraq war, Democrats embraced Howard Dean. How does a gay soldier honor himself and his country politically? The Republicans want him straight. The Democrats want him out of Iraq. So he stays in the closet.”
Drew, I’m a veteran.
I served before DADT, when it was illegal. I knew a half dozen or so other gays in my unit. We all stayed in the closet because we served illegally and we’d be discharged if we came out.
It isn’t much different today, although it is legal for closted gays to serve. If you come out, you get discharged.
Gay soldiers honor themselves and their country by doing their duty, as gay soldiers have always done, on the terms and conditions of service.
Gay veterans honor themselves and their country, as well as those now in service, in my opinion, by coming out and speaking out against DADT.
I don’t equate opposition to the war in Iraq with dishonoring our servicemen in Iraq, gay or straight.
Perhaps that’s because I am a Vietnam veteran. Many of us fought in that war, despite the fact that we opposed that war on various grounds. A lot of guys in Vietnam did, you know. But we did our duty.
I don’t know if there is the level of dissent within the service now that there was in Vietnam. I doubt it.
But opposition to a war does not dishonor servicemen, as I see things. It seems to me that people who think about the war, and try their best to come to the right conclusion about it, whatever the conclusion might be, are honoring our servicemen. The people who don’t honor our servicemen, in my opinion, are those who just go about their lives, ignoring the war.
posted by Tom Scharbach on
North Dallas Thirty: “Furthermore, to cap this off, you’ve a) referred to conservative and Republican gays as “kapos”, “Jewish Nazis”, and the like, and b) set off on outing campaigns and blackmail to harass us at work and try to get us fired — even as the Democrats who you told us were “pro-gay” and “gay-supportive” sold us down the river at the first political opportunity.”
I’ve done none of that, and you know it. My family is Jewish, we paid the price for the REAL Nazis, and when jerks like you start Jew-baiting, I don’t play.
posted by Drew on
Tom Scharbach, I think Vietnam is a totally different scenario considering the draft, the vast demonstrations and the deaths of over 50,000 soldiers in that war. Many would proclaim to be gay just to get out of the draft.
With the Gulf War and the Iraq War, there was no draft, all volunteers. This is why the gays in the military issues took on a whole different dimension from the Vietnam war. Gays who love the military and want to serve the country are being told NO. Neither the Republican Party or the Democratic party serves these gay men adequately. They are out in the cold. The Democrats do not understand how any gay could serve in the Gulf war willing, while the Republicans can not imagine a soldier being gay.
posted by Tom Scharbach on
Drew: “I think Vietnam is a totally different scenario considering the draft, the vast demonstrations and the deaths of over 50,000 soldiers in that war.”
Well, if you say so. But hang around. The quagmire is just beginning, I suspect. We are going to have a hell of a time ending the Iraq War honorably. I hope whoever is President during the next term is up to it.
Drew: “Many would proclaim to be gay just to get out of the draft.”
Very few, actually, and a reasonably high proportion of those who did — or tried — were straight draft dodgers.
Gay men served in Vietnam in about the same proportion ro percentage of the gay population as straight men did in proportion to the straight population, as best as anyone can tell. The same was true in Korea and World War II — lots and lots of gay men served honorably and with valor.
Drew: “With the Gulf War and the Iraq War, there was no draft, all volunteers. This is why the gays in the military issues took on a whole different dimension from the Vietnam war. Gays who love the military and want to serve the country are being told NO.”
Nothing changed, Drew. We were all told “No”, too. In my age group, plenty of gay men loved the military and made the military their career. I almost did. I stayed in touch with a half dosen gay NCO’s who spent 20 or 30 years in the Army, two of whom became CSM’s.
Drew: “Neither the Republican Party or the Democratic party serves these gay men adequately. They are out in the cold.”
We always have been out in the cold, Drew.
Neither party has any balls on the DADT issue.
I thought Clinton did, but he caved, despite a clear, unequivocable promise. It is something I’m not going to forgive him for, believe me. He should have gone to the mat.
DADT is actually worse than the outright ban in many respects, because it is so fundamentally dishonest.
The only politician I know that consistently stood up for and fought for gays and lesbians in the military was Barry Goldwater. He would have made a hell of a stink about DADT, had he been in the Senate at that point. He tried from the outside, but he got written off as senile. He wasn’t.
Nobody that I can see is willing to put any political capital on the line to end DADT at this point.
posted by Drew on
but Tom Scharbach…..
If a bipartisan effort had been made on gay rights, gays in the military would be front and center issue, but it isn’t. For the last three years, a great effort could have been put forth asking the public, why should our straight men fight but are gay men stay home? Unfortunately, nothing approaching such efforts has appeared with an exception of a small effort from Log Cabin.
posted by North Dallas Thirty on
I’ve done none of that, and you know it.
Quite frankly, no I don’t know it.
And one would think that your family’s experience would teach you the danger of hate speech against others, or make you speak out against the misuse of Nazi comparisons so beloved by the gay left….but for naught.
posted by raj on
Tom Scharbach | July 25, 2006, 10:38pm |
I’ve done none of that, and you know it.
Actually, NDXXX probably didn’t know it–unless he’s a mind reader. But it was a bit much of him to suggest that you–personally (that’s what “you” means)–had a) refer to conservative and Republican gays as “kapos”, “Jewish Nazis”, and the like, and b) set off on outing campaigns and blackmail to harass us at work and try to get us fired , as he alleged in the post that you quoted.
Recognize that NDXXX is incapable of writing clearly, that he discusses by changing the subject, changing direct questions that had been presented to what he wanted to answer, by engaging in long-winded bloviations that are obviously intended to bore and tire the reader (which is why I don’t read more than the first paragraph of anything that he posts), by claiming to be a mind reader and by lying. That has been noted on more than a few web sites.
BTW, you might not have referred to conservative and Republican gays as “Kapos” (the correct spelling), but I don’t hesitate to refer to some self-described conservative and Republican gays as Kapos. (“Kapo” is the abbreviation for “KameradenPolizist”–KaPo.) Particularly the Republican gays that comprised the so-called Austin 12, who kissed the butt of Bush Jr. during the 2000 election campaign. It is not an exact fit, but it’s close enough for me.
posted by Tom Scharbach on
Tom: “I’ve done none of that, and you know it.”
Drew: “Quite frankly, no I don’t know it.”
I don’t know whether or not you’ve labeled people “kapos” or “Jewish Nazis”, either, but it would be irresponsible for me to assert that you are, without evidence.
What I do know is that you are an irresponsible jerk, North Dallas, making accusations without evidence, and your response above proves it beyond all doubt.
If you had any evidence, you’d have provided it. You can’t, because you have no evidence at all. THAT much you do know.
A decent man would apologize at this point.
posted by Tom Scharbach on
Drew: “If a bipartisan effort had been made on gay rights, gays in the military would be front and center issue, but it isn’t.”
Absolutely. I belong to a gay veterans association, which is bipartisan, and we keep pushing the issue as best we can. We are getting nowhere, to be blunt.
Republicans won’t touch the issue because social conservatives within the constituency are dead set against allowing gays and lesbians to serve openly. Democrats won’t push it, for reasons that are, to me, inexplicable, given the wide public support in favor of ending DADT.
Meanwhile, gays and lesbians put continue to put their lives on the line for a country that won’t even acknowledge their service.
It takes a special kind of patriotism to serve a country that doesn’t want, acknowledge or honor your service. Our country does not deserve the sacrifice of gays and lesbians who have served and who serve now.
posted by North Dallas Thirty on
What I do know is that you are an irresponsible jerk, North Dallas, making accusations without evidence, and your response above proves it beyond all doubt.
If you had any evidence, you’d have provided it. You can’t, because you have no evidence at all. THAT much you do know.
And with a sly smile, I present the following:
BTW, you might not have referred to conservative and Republican gays as “Kapos” (the correct spelling), but I don’t hesitate to refer to some self-described conservative and Republican gays as Kapos. (“Kapo” is the abbreviation for “KameradenPolizist”–KaPo.) Particularly the Republican gays that comprised the so-called Austin 12, who kissed the butt of Bush Jr. during the 2000 election campaign. It is not an exact fit, but it’s close enough for me.
That was just posted, but you had zero comment, despite your whining above about how you despise such comparisons and things and how you would never tolerate it.
So no, Tom, I stand by my assertion about your behavior. It seems that you have no qualms whatsoever about calling conservative and Republican gays names, or comparing them to Nazis. I find it hard to believe that you haven’t done such things yourself when you are so willing to allow proxies to do it.
You gay leftists are easy to expose, Tom; we know full well that your weakness is that you’ll never speak out against someone who at least pays lip service to being opposed to the same thing that you are. With a loose cannon like Raj around, it’s just a matter of wiggling the deck a bit.