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Wednesday, July 7, 2010

Marriage Rights Can't Rely on Fickle Politicians' Whims

Posted By on Wed, Jul 7, 2010 at 1:11 PM

click to enlarge Some day his prince will come. But will a political consensus?
  • Some day his prince will come. But will a political consensus?
Over the past few days, columnists Jonathan Rauch and Jonathan Capehart have been wringing their hands over what Judge Vaughn Walker might do to Proposition 8. They are convinced that Walker will either start an "inferno" or cause a "firestorm." Either way, fire seems to be prominently involved.

The Jonathans want to strike fear into the hearts of their fellows and convince them to avoid relying on the courts to impose marriage equality. Instead, the Jonathans want the gays to allow their citizenship to be determined by capricious politicians.

Sorry, boys, but you aren't scaring me.

Rauch wrote an op-ed for the New York Times last Friday that is full of instruction for soon-to-be Supreme Court Justice Elena Kagan. Rauch wants Justice Kagan to be "sensible" when faced with a case that deals with same-sex marriage. She should believe that "...a civil rights claim doesn't automatically trump majority preferences." So, it seems, Rauch wants the U.S. Supreme Court to impede same-sex marriage.

That op-ed made Jonathan Capehart at the Washington Post pee in his pants with excitement. The Post's man wrote that he agrees with Rauch (dribble of pee) then continued to write that if Vaughn Walker isn't careful there could be repercussions (steady stream of urine).

The heatwave back east must be getting to the Jonathans. Rauch wrote his entire op-ed like he had a little SCOTUS sock puppet on his hand. A wise judge would say, "let the people decide." A bad judge would say, "civil rights are more important than judicial modesty." Rauch thinks that same-sex couples should "let politics do its job."

Capehart, meanwhile, warns that if the Supreme Court -- this Supreme Court -- hears the Prop. 8 case, anything could happen: The Constitution could be amended and any positive gains could be put off for decades! Cats will sleep with dogs! To support his claims, Capehart compares the sodomy cases handled by SCOTUS -- Hardwick in 1986 and Lawrence in 2003. The Court decided in 1986 that states could criminalize sodomy if they wanted to. Seventeen years later, the court overturned Hardwick with Lawrence, ruling that, actually, states cannot criminalize sodomy between consenting adults.

See what happened? Do you want to wait 17 years for the court to reverse itself after this Supreme Court upholds Prop 8? Actually, if that scenario repeats itself, then I am willing to wait.

Unfortunately, the comparison between the criminalization of sodomy and granting marriage rights is not apt. Sodomy doesn't affect income tax brackets. Immigration rights are not extended to people based on oral sex. Social security benefits aren't given to "friends with benefits." Governmental recognition of marriage makes a difference in those examples -- not to mention in adoption and property rights -- in ways that were never addressed in laws regarding sodomy. Marriage is a public institution; sodomy is a private practice.

Rauch would rather we all wait for politicians to come to their senses or might even urge us to engage in the futility of "changing hearts and minds." Expecting a minority population to rely upon the kindness of people like Governor Linda Lingle from Hawaii is ludicrous and is an insult.

Yesterday, Gov. Lingle announced -- in the very last hour of the very last day possible -- that she would veto a bill passed by the state legislature that would have established Civil Unions (not marriage, mind you) to same-sex couples. She said that the decision should be made at the ballot box. Never mind that the legislature had already acted on behalf of the electorate. This is the situation the Jonathans would apparently prefer we deal with time and time again, year after year -- endless rounds of passing the buck from one branch of government to another.

By waiting as long as she did to issue her veto, Lingle, twice-divorced incidentally, delivered a long, slow, passive aggressive "fuck you" to gay couples. Rauch and Capehart deliver the same message to gay couples when they try to scare us away from seeking justice in the courts. Until the courts hold up the evidence of what "traditional" marriage really is in this country and take a look at who gets to flout the supposed sanctity of marriage and who doesn't, we will be at the whim of complicit, conflicted, cowards -- the ones that run for office and the ones that claim to be our advocates.

Follow Patrick Connors on Twitter at @UppityFag and @TheSnitchSF

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