Conceding the Inevitable

Everyone has to end up somewhere. Still it’s odd to have ended up here in Hollywood, a block up the street from the Sunset Strip, a few doors up from the quiet apartment building from the thirties where F. Scott Fitzgerald spent his final days. Hollywood itself, with the movie premieres once or twice a week at the Chinese Theater, and the damned Oscars each year screwing up traffic mightily, is a few blocks east, and one block west the City of Los Angeles ends and West Hollywood begins. That’s its own city now, the largest gay community south of San Francisco. Each June the Gay Pride parade is amazing – but of course they close all the streets and no one can get anywhere for a day or two. That’s fine. It’s worth it. Everyone has to end up somewhere, so why not at the center of things? There’s always a buzz in the air, like in Manhattan and Paris – it’s just a different buzz, with palm trees. Everyone else from way-back-when stayed in Pittsburgh. There’s no buzz there.

This was the day the buzz here was particularly loud. There were celebrations all over West Hollywood, and on random corners here and there, a solitary young man waving a large American flag wrapped together with a rainbow flag. We all honked and gave him the thumbs up, and he returned the gesture – then the light changed and we all drove on. These are our neighbors and friends, and they had reason to celebrate:

In a pair of major victories for the gay rights movement, the Supreme Court on Wednesday ruled that married same-sex couples were entitled to federal benefits and, by declining to decide a case from California, effectively allowed same-sex marriages there.

The rulings leave in place laws banning same-sex marriage around the nation, and the court declined to say whether there was a constitutional right to such unions. But in clearing the way for same-sex marriage in California, the nation’s most populous state, the court effectively increased to 13 the number of states that allow it.

It was appropriately dramatic too:

In the hushed courtroom Wednesday morning, Justice Anthony M. Kennedy announced the majority opinion striking down the federal law in a stately tone that indicated he was delivering a civil rights landmark. After he finished, he sat stonily, looking straight ahead, while Justice Antonin Scalia unleashed a cutting dissent.

Here are the basics:

The vote in the case striking down the federal Defense of Marriage Act was 5 to 4, and Justice Kennedy was joined by the four members of the court’s liberal wing. The ruling will immediately extend many benefits to couples married in the states that allow such unions, and it will allow the Obama administration to broaden other benefits through executive actions.

The case concerning California’s ban on same-sex marriage, enacted in a ballot initiative known as Proposition 8, was decided on technical grounds, with the majority saying that it was not properly before the court. Because officials in California had declined to appeal a trial court’s decision against them, and because the proponents of the ban were not entitled to step into the state’s shoes to appeal the decision, the court said, it was powerless to issue a decision. That left in place a trial court victory for two same-sex couples who had sought to marry.

And here are the problems:

The case on the federal law was the more important one from a legal perspective, setting the terms for challenges to state bans on same-sex marriage. Justice Kennedy’s reasoning, as Justice Scalia noted at length in dissent, could just as easily have applied to state laws as to the federal one.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

He said the law was motivated by a desire to harm gay and lesbian couples and their families, demeaning the “moral and sexual choices” of such couples and humiliating “tens of thousands of children now being raised by same-sex couples.”

The constitutional basis for striking down the law was not entirely clear, as it had elements of federalism, equal protection and due process. Justice Kennedy said the law’s basic flaw was in its “deprivation of the liberty of the person protected by the Fifth Amendment.”

He added that the ruling applied only to marriages from states that allowed gay and lesbian couples to wed.

Dissenting from the bench, Justice Scalia said that that declaration took “real cheek.” …

Justice Scalia wrote that the majority had simplified a complex question that should be decided democratically and not by judges.

“In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us,” he wrote. “The truth is more complicated.”

It is? Scalia was outvoted, so it doesn’t matter, but Scalia actually said this:

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

Slate’s David Weigel comments:

This comes literally 24 hours after the court really did invalidate legislation, nixing Section 4 of the Voting Rights Act. That law had been passed again in 2006; DOMA had been passed in 1996. No one who’d voted for the VRA had come to renounce his/her vote, but scores of representatives had apologized for DOMA. Scalia’s not making sense, unless you read this as a cry for help from someone watching his colleagues validate social mores he deeply disagrees with.

Consider Anthony Kennedy’s decision in his own words:

By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.


So what happens politically? Republicans haven’t rushed to the microphones yet, but the House GOP lost – they paid to defend DOMA, and it was struck down. It’s within their power to try to defund the removal, and we’ll suss out soon whether there are enough House Republicans passionate about the issue to do this.

But the court’s decision not to write a new definition of marriage (to just overturn Prop 8) means that marriage rights return to the states, to be voted on in referenda, state legislatures, and in courtrooms. The polling in favor of gay marriage has stalled somewhat after tipping into positive territory nationally. But we’re going to see a series of campaigns and scattered lawsuits from couples who can now say they deserve marriage benefits, and there’s no act of Congress stopping them.

That can’t be stopped now. The Supreme Court did just validate social mores that Scalia and most Republicans deeply disagree with, and the Supreme Court is the Court of final appeal. There’s going to be trouble. Scalia basically says that Justice Anthony Kennedy and his colleagues in the majority have resorted to calling opponents of gay marriage “enemies of the human race” – and Scalia’s position is explained in detail at the National Journal, where everyone agrees with him. The short form – we aren’t evil people, we’re just moral people. Robert Stacy McCain at the American Spectator tries to set everyone straight with Sexual Anarchy: Progress, Perversion and the Emerging Awareness Doctrine – a discussion of how the gay movement obviously wants to legalize sex with minors and polygamy too. They don’t say so, maybe they don’t even know they want that, but it’s obvious. Also see this:

Rand Paul and Glenn Beck worry about Muslims and animals… the purportedly libertarian Senator and popular talk show host worry about a host of bizarre “logical” consequences of the moves toward marriage equality, with Beck asking “who are you to say that, if I’m a devout Muslim, I come over here and I have three wives, who are you to say if I’m an American citizen that I can’t have multiple wives?” Paul nodded, saying “people take it to one extension further – does it have to be humans? … I’m kinda with you… we should not just say ‘oh, we’re punting on it, marriage can be anything.'”

Mike Huckabee channels Jesus’ tear ducts: On Twitter, the former Governor and leading GOP Presidential candidate had two words: “Jesus wept.” He later elaborated, saying that the Supreme Court declared itself “bigger than God.”

Congressmen declare the apocalypse is imminent… Tim Walberg (R-MI) declared that “society itself is at risk and cannot continue.” At the same presser, Rep. Louie Gohmert (R-TX) said that same-sex marriage was “usually tried at the end of a great civilization.”

And so on and so forth. You get the idea.

Civilization isn’t ending, by the way. The Defense of Marriage Act was a bad idea. That’s all. The federal government will now simply follow the states’ lead. If this one state says this couple is married, the feds won’t argue. If another state says this other couple isn’t married, really, the feds won’t argue with that either. If you’re a hard-ass conservative, big on states’ rights, what’s the problem? As for California’s Prop 8 – the wrong people challenged the finding that Prop 8, banning gay marriage out here, was unconstitutional. No matter what the district court had ruled, one way or the other, it wasn’t their business, because they certainly couldn’t show anyone anywhere was ever hurt in any way by some third-party’s gay marriage. They even admitted that in various oral arguments. Jesus’ tears don’t count. So now they need to find someone who actually cares about banning gay marriage – that proposition wouldn’t pass now in California, so that’s unlikely – and need to find someone who has standing, an actual specific person who can prove someone else’s gay marriage caused that person irreparable harm. They already admitted they cannot. It’s over, guys.

Rod Dreher is quite unhappy with that:

Scalia has chillingly illuminated the future for marriage traditionalists: the only reason to oppose same-sex marriage is hate. In constitutional law, there is no rational basis for supporting traditional marriage. Henceforth, the Court has declared open season on religious and social conservatives and their institutions. Given the majority’s holding that hatred is the only plausible explanation for denying same-sex marriage, I see no reason why the Supreme Court will not declare same-sex marriage a constitutional right.

And the logic of the Court’s language here ought to put fear into the hearts of anyone who does not share the belief that homosexuality is morally neutral, or morally good. The Supreme Court says we are haters, full stop.

Paul Waldman, on the other hand, thinks Scalia is a jerk:

This is a guy who, in a decision delivered just yesterday, helped gut the Voting Rights Act, one of the most important pieces of legislation ever passed by Congress and one that was reauthorized in 2006 by votes of 390-33 in the House and 98-0 in the Senate, yet spends two-thirds of this very dissent arguing that the Supreme Court is a bunch of black-robed tyrants when they invalidate a law passed by Congress. In other words, despite his carefully cultivated reputation as a principled “originalist,” the only principle that guides Antonin Scalia is “what he can get away with.” For him, it’s the outcome that matters. The justification comes after.

Ah hell, it’s a losing cause, or a lost cause, and Jonathan Tobin explains why:

How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

That’s the thing about living in Hollywood. It is at the center of things, because although that Will and Grace thing was set in Manhattan, it was filmed in front of a live studio audience each week on Stage 17 at CBS Studio Center – on the other side of the hill out back. The buzz started here. It just took a while for the rest of the country to get it.

Congress will never get it. Ross Douthat explains here that the business about the Voting Rights Act, that the Supreme Court pretty much said that “updating a successful law to reflect contemporary realities, which under our system is supposed to be the role of the legislature rather than the courts” – so go do your job.

That’s hard:

A Republican-controlled Congress showed absolutely no interest in fulfilling that obligation when the VRA was actually up for legislative review in 2006. On one level, that year’s 98-0 Senate vote, which extended the act by another quarter century, makes the case for judicial deference on the issue even stronger, since it suggests that a broad democratic consensus exists in support of the existing provisions. On another level, though, it’s an example of how Congress can effectively invite the judicial usurpation of politics, because that’s what many of the Republicans who voted to reauthorize the VRA in 2006 were kind-of sort-of doing: They favored revisions to the act, but saw no political percentage in picking a fight on such a highly-charged, historically-freighted issue when it could be litigated through the courts at a lower political cost instead. So the Court’s intervention here isn’t just an example of judicial activism; it’s an example of judicial activism in a sphere where many members of Congress clearly preferred such activism to the exercise of their own constitutional prerogatives.

It’s a hell of a way to run a country:

In some of these cases, Congress is ceding power out of incapacity, but just as often it’s ceding it by choice – deferring to the imperial presidency, welcoming the encroachments of the administrative state, looking to the juristocracy for refuge and support on difficult and polarizing issues. So while it’s worth criticizing judges for their immodesty and our presidents for their power grabs, it’s also important to recognize the role played by legislators whose abdications have enabled both: Politics abhors a vacuum, and our elected representatives are often far too happy to have someone else step in and fill it …

In short, they asked for it. Conservatives, stop bitching, and as for liberals, consider Bill Clinton:

By overturning the Defense of Marriage Act, the Court recognized that discrimination towards any group holds us all back in our efforts to form a more perfect union. We are also encouraged that marriage equality may soon return to California. We applaud the hard work of the advocates who have fought so relentlessly for this day, and congratulate Edie Windsor on her historic victory.

Andrew Sullivan does consider him:

Former president Bill Clinton, who signed DOMA, insisted it was constitutional at the time, double-crossed the gay activists who originally funded him, ran ads in the South bragging of passing DOMA, doubled the rate of gay discharges from the military and signed the HIV travel ban into law…

Yeah, well, he evolved, or it’s that now he’s not running for a second term in the middle of a decade where there was no Will and Grace or Ellen DeGeneres or Anderson Cooper or Rachel Maddow. Politicians on the left, or many them, had to be dragged kicking and screaming into even mentioning gay issues. Now it’s safe.

Sullivan, however, is not bitter at all:

Marriage is not a political act; it’s a human one. It is based on love, before it is rooted in law. Same-sex marriages have always existed because the human heart has always existed in complicated, beautiful and strange ways. But to have them recognized by the wider community, protected from vengeful relatives, preserved in times of illness and death, and elevated as a responsible, adult and equal contribution to our common good is a huge moment in human consciousness. It has happened elsewhere. But here in America, the debate was the most profound, lengthy and impassioned. This country’s democratic institutions made this a tough road but thereby also gave us the chance and time to persuade the country, which we did. I understand and respect those who in good conscience fought this tooth and nail. I am saddened by how many failed to see past elaborate, ancient codes of conduct toward the ultimate good of equal human dignity. …

But this happened the right way – from the ground up, with argument, with lawsuits, with cultural change, with individual courage. I remember being told in the very early 1990s that America was far too bigoted a place to allow marriage equality – just as I was told in 2007 that America was far too bigoted a place to elect a black president. I believed neither proposition, perhaps because I love this country so much I knew it would eventually get there. I trusted the system. And it worked. From 1989 – when I wrote the first case for this on the cover of a national magazine – to today is less than a quarter century. Amazing, when you think of how long it took for humanity to even think about this deep wound in the human psyche.

So to those who are often tempted to write off America’s ability to perfect its union still further, to lead the world in the clarity of its moral and political discourse, and to resist the pull of fundamentalism when it conflicts with human dignity, let me just say: I believe.

Because I have seen.

What was there to see out here? That young man at the corner of Fairfax and Fountain waving the intertwined American and rainbow flags – because now they are intertwined. There’s a bit more fairness in the air. We’re getting there.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in Defense of Marriage Act of 1996, Gay Acceptance, Gay Marriage, Prop 8, Supreme Court and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

1 Response to Conceding the Inevitable

  1. claudine zafran says:

    Great writting Alan !!!!

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