First, a quick run-down on what all this biz is abizout. In the backwaters of drab 2008, where Kanye West was still an acceptable human being and in an era before Ellen had challenged the throne of Simon Cowell with a golden, bejeweled battle axe soaked in the blood of ten trillion fell beasts, California Proposition 8 was passed. Convincing 52% of the voter turn out that making gay people cry was a good idea, it seemed same-sex marriage in Cali was closed until further notice. Cue Perry v. Schwarzenegger, which counter to your immediate suspicions was not a cage match between kindergarten cop and Luke Perry (Luke won, by the by. Two words: bulletproof hair.) but was a suit by lesbian couple against the Governator’s regime. FF to the end of said trial (the closing arguments are a scream) and those trying to defend Prop 8 had only submitted two witnesses in opposition to same-sex marriage, both whom eventually recanted during testimony and said gay marriage wasn’t going to destroy the Milky Way galaxy, as had previously been theorized by Glenn Beck, Ann Coulter and Aluminum Foil Hat-Wearing Homeless Joe. By contrast, W. Bush’s former Solicitor General (lawyer who represents America in front of the Supreme Court of the United States) Tom Olson and IBM lawyer David Boies put together a multi-layered case so thoroughly thought out it nearly crashed the servers of prop8trialtracker.com from sheer, orgasmic satisfaction.
If the beginning wasn’t clear, we wun. Props (lol) to Judge Vaughn Walker for being generally rad and harshly criticizing the lawyer defending Prop 8 for having no argument or basis other than malice and bigotry. Eat it, Prop H8. It, eat.
Now, the spanners in the works. One, the Prop 8 defense dropped a mad STAY on the results of the case until Friday. Translation: now Vaughny-bear has to hear both sides’ arguments as to whether the effects of Prop 8’s overturn should or should not be put on hold until the multi-year Appeals process is over, or if a mad marriage party ought to start commencin’ right the Hell now. Til at least Friday (or at most Friday of, like, forever from now), no marriage for you.
Two, another case you may not have heard of called Commonwealth of Massachusetts v. United States Department of Health and Human Services succeeded in declaring the Defense of Marriage Act (DOMA) unconstitutional and, like Perry v. Schwarzenegger, is off to the Supreme Court. This is great news! What is not great news is if Perry gets there before Commonwealth. See, Commonwealth winning at the Supreme Court (if, if, if) would simply dictate that all states had to recognize marriages declared legal in one state. This would solve the Homosexual Male X problem I spoke of last week, where you could be married in Iowa and then run off to Texas and be married to someone, again. It would also mean that if you got married in Iowa, you got married everywhere in the U.S.
But Perry winning all the way up the SCOTUS (tee-hee) would mean that all states would be forced to hold same-sex marriages, and that would be huge. Perhaps too huge. I realize I soak myself in a big bucket of paranoia and glitter skin cream every day, but I think SCOTUS, and the world, would have an easier time accepting Commonwealth *then* Perry. If Commonwealth goes first and wins, victory for Perry becomes a not unreasonable goal. If Perry goes first and loses, well, let’s just say the months and years leading up to and consisting of Commonwealth will involve my dabbling in that most time-honored writer tradition: vice.
Positive news! Evidence is what matters most here. See, SCOTUS doesn’t care what Walker, California Ranger thinks. It can’t, because reaching the SCOTUS by way of the appeals process means that there’s something worth re-evaluating about a particular ruling. So while Walker’s reasoning is off the table of Things SCOTUS Cares About, his evidence isn’t. Walker made an effort to analyze issues relating to the effects of children raised by same-sex parents and if there is any viable evidence to suggest that the value and/or quality of male-female marriages is somehow undermined by the presence of same-sex marriages.
Since “gays suk” isn’t acceptable evidence, the defense of Prop 8 came up a little short. Olson and Boies, on the other hand, brought in a huge body of witnesses and evidence not only answering Walker’s initial questions, but also exactly how the message about Prop 8 was communicated solely through fear-mongering. One group’s adverts claimed that being gay makes you 12x more likely to molest children. Oh yeah, these cats are real winners, they are. Once you hit the Appeals court you can no longer submit further evidence, and one of the only two witnesses the defense had was dismissed for being terribl y awesome and saying that opposite-sex and same-sex were basically identical. The obstacle with Perry isn’t really about the evidence Prop 8’s Prop-ponents possess but about whether or not SCOTUS is ready to make a massive sweeping issuance on state issues that would instantly go toe-to-toe with Federal policy. We’ll have to see if SCOTUS lives up to its name or if it’s just a useless pile of scrotus.
Another bit of good news is that Walker declared that not only was Prop 8 unconstitutional, but it was a violation of the Equal Protection Clause of the XIV Amendment and the Due Process Clause. This means that Walker is trying to walkie-talkie in our direction is that, more than simply being a matter that California can’t renege on after opening the door to gay marriage once, but that marriage should have already been equal to begin with. This, if taken as high as these things can go, would make sexual orientation a protected class alongside sex, race, veterans, people with disabilities and so on, making any form of discrimination against them immediately null and void at any level of life in the United States.
Justice Walker made this point in part by saying that the evidence made available demonstrated that American society had finally exited the period of coverture, which is when men and women had clearly outlined gender roles to enact due to, shall we say, limitations imposed on everyone who wasn’t a white male. Gender roles, he argues, are no longer meaningful in that men and women can take each other’s jobs and near identical roles in child-rearing.
Besides saying that socially-imposed gender roles are a thing of the past, there’s more good news for transgender peeps! Because by challenging the issues of same-sex marriage at the highest levels of U.S. law, Perry is in effect tearing down the only barrier to a transwoman marrying a man or a transman marrying a woman, or if you get your M and F flipped appropriately on enough documentation, a transman marrying a man and a transwoman marrying a woman. The Nikki Araguz case and others like Littleton v. Prangue would become a non-issue IF same-sex marriage became legal across America since many cases argue down trans individuals’ sex and gender identity based on chromosomes.
How likely is SCOTUS to help bruddahs and sistahs out (whether they’re “out” or not)? Queerty suggests that SCOTUS Justice Ruth Bader Ginsberg has been preparing for this inevitability, laying down language in previous rulings, rulings that all nine justices signed off on, that the debate between sexual orientation resulting from birth or choice is a moot point. They’re here, they’re queer, so love them or leave our shores. Walker ran with this subtle ruling of hers on page 120 of the 136 page Prop 8 ruling document, and on page 121 goes a little further, saying that sexual orientation discrimination is the same as sex discrimination. This would mean less stress for the gov-gov, because there are already laws in place regarding sex discrimination.
I’m drifting into territory where it seems like I’m making out the Government and SCOTUS to be a bunch of stodgy fuddy-duddies who wear bedtime robes to work and sit around all year taking only a handful of cases and presumably spend the rest of their time being mind-numbingly old, and they ought to just get out of our way and let us run ourselves. But see, w/o the Executive, Judicial and Legislative branches, where would the grievances of minorities be heard? Minorities by definition have no significant or meaningful representation in their country or community unless they all get together in a big group and form a community away from the majority, which is no way to run things. Gay people make up 10% of the population, and without the higher courts to receive their grievances or Congress to redress those grievances, then most minorities would probably be absorbed by the majority. Our systems may seem like they suck 80 Gazillion % of the time, but as lame as an excuse as it may sound, they’re working on sucking less.
The majority v. minority issue is actually why conservatives hate all this so much. Yes, beneath what the Internet allows to be an overwhelming flood of evidence of right wing bigotry, idiocy and sheer bloody-minded macho crap, there is a single coherent grievance: That policy for a majority of Americans (themselves) is being set by a minority (us) and they’d rather not see an already flaw-heavy system tied up with what they consider to be insignificant grievances, hence why we keep getting the joys of domestic partnerships and civil unions shoved down our throats. (which are bad for so many reasons, not the least of which is thaty they don’t offer nearly any of the benefits of a marriage license that costs a mere $100) They think this wastes time they’d rather spend on fiscal reform. I can appreciate the position, considering that our system is a bureaucratic turkey shoot of maddening uncertainty. That said, I view the plight of homosexuals as a human plight and a foundational concern that undermines our country’s inherent functions: to give every person the right to love, freedom and security. If you don’t learn to solve things at the human level, and keep trying to uselessly throw money at non-human problems, you’ll forget that there’s no end to the problems. Benjamin Franklin’s green rectangle of instant capital won’t care whether or not it has equal rights, but the people spending Benny boys by the truckload in taxes sure would thank you for it.
No news on California same-sex marriage until Friday, which could mean marriages start right then or right after the lengthier SCOTUS trial is over.
Those who worked to repeal Prop 8 have provided a larger and more effective body of evidence than the defenders of Prop 8. The evidence can neither be added to or subtracted from (excepting the expungement of one of the defender’s expertless witnesses). Olson and Boies’ evidence has been hailed as some of the most thorough legal thinking in the past decade, so know that every thing that could have been done to make a case has been done.
SCOTUS Justice Ruth Bader Ginsberg has already laid groundwork that says the debate of whether sexual orientation is determined by birth or gender is a stupid, stupid pointless debate, because sex discrimination is happening and its gotta stop.
If same-sex is approved on a larger levels, any transsexual marriage issues disappear with it.
I hope everything turns out okay, long term-like. But in all my life I’ve never been able to live in the future. It’s always the present I’ve found myself living in, and right now things could be better, but they could also be so much more astoundingly painful and have been in many ways up until August 4th. Today, and every today to come, be merry that the world is casting less shadows today than it was yesterday. Because something, somewhere, actually changed.