The Cruelest Month?

October 31, 2012

Supposedly, April is the cruelest month (and with the arrival of Hurricane Sandy, October is making a bid for the title this year,) but for LGBTQ people, November has long been the cruelest month. It is the month when America goes to the polls.

For most of the last twenty years, almost every even-numbered year has seen an anti-gay referendum put before the voters of one state or another. And every time that Americans have been given the opportunity to vote on whether or not LGBTQ people can marry, Americans have voted no.

But this year, that could change. November could be the most wonderful month.

Four states have marriage equality initiatives on the ballot. Maine, Maryland, Minnesota, and Washington. At the time of this writing, the polls in all four states are favorable.

In Maine, the polls show 56.6% in favor, 39% opposed. Maryland has a 51%-37% split. Minnesota is a closer race, with the polls showing 49%-47%. Washington state has 55%-38%

Minnesota already bans same-sex marriage. Their initiative is about whether or not to enshrine the ban into the state constitution, so nothing is going to change in that state. But the other three states could break a two-decade losing streak at the ballot box for marriage equality.

The initiative process tends to produce government by stampede. Get enough people enraged about an issue and you can overrule the state legislature and/or the courts. The result can be costly when millions of taxpayer dollars are spent undoing the damage.

In the past, anti-gay issues have been put on the ballot specifically to energize the conservative base. Once you get them to the voting booth, they’ll also be voting for other conservative issues and various conservative candidates.
If we win in all three states this year, it’s hard evidence of a sea change in American thought. But even if we win in only one state, that victory will signal the beginning of the end of that particular ploy. If the polling has been accurate, the odds are in our favor.

But even in the unlikely event that we lose all three, November could still be a joyous month. The Supreme Court of the United States has set November 20th as the date when they will consider whether or not they will grant review to the challenge to California’s Proposition 8—and whether or not they will grant review to the challenges to the Defense of Marriage Act.

If the court chooses to deny review or grant it, that announcement should be made within a few days, certainly before the end of the month.

Proposition 8 is solely about an amendment to the California state constitution. Ninth Circuit Judge Vaughan Walker ruled it was unconstitutional and that ruling has been upheld by the district courts. So there’s no real need for the Supreme Court to involve itself. If they refuse to hear it, then California can begin recognizing same-sex marriages as quickly as they can get the paperwork in order.

The other case, the challenge to the Defense of Marriage Act, is a little more involved. That one is a federal issue, because congress passed that bill and President Bill Clinton signed it into law. Several lower courts have declared it unconstitutional and President Obama’s Department of Justice has filed a friend of the court brief also positing the unconstitutionality of the law.

DOMA violates the Constitution’s full-faith-and-credit clause—the one that says states have to recognize contracts made in other states—and this means marriage contracts, too. The Supreme Court also has several of its own recent precedents to consider: Lawrence v. Texas (tradition is not a basis for law and the state has to stay out of your bedroom), Romer v. Evans (the tyranny of the majority cannot be used to deny the rights of a minority), and the all-important Loving v. Virginia, which established that marriage is a fundamental and sacred right, part of the body of rights included in life, liberty, and the pursuit of happiness.

So if the court agrees to hear either Prop 8 or DOMA, they’re either going to uphold the lower court rulings, or they’ll have to tie themselves in logistical knots to justify carving loopholes in their own precedents.

Chief Justice Roberts has already demonstrated that he intends to be a servant of the law, not of any specific ideology. He has to be aware of the legacy of his tenure. No judge likes to be overruled, and if we consider that the national conversation on marriage equality has changed dramatically in the past few years, then we have reason to be optimistic about how the court might rule.

It is also possible that the court will decide not to review the lower court rulings on DOMA, which is the quickest way to end that odious law.

But even if the court decides to hear both cases, then the hearings will be held in April of 2013, with a ruling likely handed down sometime in June. That’s at least six more months for the court to recognize just how much our national conversation on marriage has shifted.

So this November might not be the cruelest month after all.

We could see three more states recognize marriage equality. California might get marriage equality restored. We could end up with ten states recognizing marriage equality, and same-sex marriage would be available to more than a third of all Americans.

And even if it turns out that we have to wait until next June to see the end of DOMA, there is much to be optimistic about. There’s no question in my mind that the Supreme Court deliberately delayed considering the same-sex marriage cases until after the election. They’re waiting to see the mood of the nation.

So get out and vote. The wife you save could be your own. (by David Gerrold)

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