Wednesday, February 8, 2012

Proposition 8 ruled unconstitutional. Now what?

Yesterday, California's Proposition 8 was ruled unconstitutional by a panel of the U.S. 9th Circuit Court of Appeals. Judge Stephen Reinhardt wrote the opinion for the 2-1 majority:

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

Just before the judgement I would have said that the next step would be the Supreme Court. But the court handed down such a tightly framed opinion--specific to California--that it's possible the justices in Washington D.C. could refuse to hear the case. I just don't know. Nor does the Los Angeles Times:

The narrow California-only approach adopted by the 9th Circuit means the high court might choose to steer clear of the dispute.

If so, that would leave for another day — perhaps several years in the future — a national ruling on same-sex marriage.

"The opinion holds that Prop. 8 was unconstitutional only in a case where the state had already granted full legal rights to same-sex couples," said University of Minnesota law school professor Dale Carpenter.

The decision "is specifically looking at the role of Proposition 8 in the California context," said Santa Clara University law professor Margaret M. Russell. Because it is limited to California, the Supreme Court may not be as concerned about reviewing it as it would a ruling that would have affected the entire country, she said.

I want to be able to marry Kelley; I want the same legal rights and protections as heterosexual couples; I want to be able to introduce her as my spouse, not my domestic partner. But I'm lucky: right now I just want that. Assuming the universe is kind (always a dangerous assumption), that is, assuming neither of us dies, I'm not accused of some heinous deportable crime, or neither of us is either hospitalised or imprisioned, federally recognised marriage won't make much difference to us. I'd feel safer having it, of course, but today at least I don't need it. Washington State has pretty good domestic partnership laws. As long as we stay here, as long as nothing bad happens, we're fine.

But think about that for a minute: I'm okay, I'm as safe as a person who loves someone of the opposite sex, as long as I don't get older, don't get sicker, don't draw attention to myself, and don't go anywhere. Does that sound like the America you'd like to belong to?

And then consider that there are many women and men out there who love others of the same sex for whom federal marriage, right now, could make the difference between life and death: they need access to Social Security, and Medicare, and private health insurance, and the ability to make end-of-life decisions. They need to visit their sweetie in jail. They need to not be deported.

When I first came to this country Kelley and I went through the agonies of the damned for me to get the right to live and work in the US. My cased ended up making new law (and I got called uncomplimentary names on the front page of the Wall Street Journal), we spent $20,000 (financed by credit cards), and it took five years of stress and going back and forth between countries. If either of us had been a man, it would have cost me $75 and a quick visit to the INS (as it was called then).

President Obama's views on marriage equality are 'evolving'. Which means, in my opinion, he knows full well that right now, lesbians and gay men are second class citizens--a status with very real consequences (none of them positive). He also knows that there's not a lot he can do about it until he's reelected, and that if he had spoken up earlier, he wouldn't have been elected. So he's been dodging the question to the degree he's able for the last four years. (Do I approve of his stance? No. I do understand it.) Expect a change in November.

This afternoon, the Washington State House will vote on a marriage equality bill. It will pass. Gov. Gregoire will sign it into law. No one will get married this year, though: fundamentalists are almost certain to get a referendum on the ballot to take away marriage equality. I honestly don't know what will then happen in November. I like to think the people of Washington would do better than the people of California did four years ago. But I don't know.

Expect me to talk about this issue more. For me, this is not an intellectual exercise. For me, this matters.

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