On this day when Prop 8 was allowed to stand in California, I’m torn between the very abstract and the very concrete. The abstractions are what we’ll need to win this struggle, eventually – legal strategies that don’t depend on whim and prejudice, and that don’t let a minority bully a majority. The concrete level – well, that’s why the strategies matter, and why I’m fuming about it.
To my mind, the killer legal argument for why gay marriage ought to be legal is the Equal Protection Clause of the federal constitution. It ought to invalidate the federal DOMA and all the nasty state mini-DOMAs. It’s pretty short and simple: “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”
Its interpretation has been more complicated, because the Supreme Court has denied its most stringent protections to groups other than racial and religious ones. But Sandra Day O’Connor invoked it in Lawrence v. Texas without arguing that homosexuals constituted a group requiring greater legal scrunity scrutiny (a so-called suspect class). She just pointed out that it was unfair to deny right of privacy in the bedroom on the basis of sexual orientation.
As far as my little non-lawyerly brain understands it, the California Supreme Court decision that legalized same-sex marriage relied on the state constitution’s version of an equal protection clause. Its decision today was purely on the procedural issue of whether the law required more than a simple majority to amend the state constitution to bar same-sex marriage. As far as I understand, it didn’t address the equal protection issue at all; this was never at stake.
And I don’t understand why, because last fall anti-Prop 8 lawyers were still talking about equal protection, although they were already zeroing in on that narrower procedural strategy. Here’s what Karen Ocamb reported at Alternet:
“Prop. 8, if it passes, conflicts with the equal protection clause (in the California Constitution),” [attorney Gloria] Allred said at an afternoon news conference in her Los Angeles office on Wednesday. “We will argue to the court that Prop. 8 is a disguised revision to the constitution which cannot be imposed by the ordinary amendment process, which only requires a simple majority. We believe that then the court must hold that California may not issue marriage licenses to non-gay couples because if it does, it would be violating the equal protection clause as straight couple would have more rights, by being allowed to marry, than gay couples.”
Maybe this is where my non-lawyerness seduces me into fatal error, but I don’t understand why the arguments were apparently so narrow. Why didn’t equal protection emerge as the central issue?
The thing I love about the equal protection argument is that it’s not just a legal formality. It’s not just strongly rooted in the constitution. It appeals to Americans’ better angels. Who among us is willing to stand up against simple fairness? (Well, apparently quite a few, but let’s ignore NOM and its ilk for a moment.) They totally get this in Iowa, for crying out loud! How much more heartlandish can it get?
All these abstract arguments matter fiercely, because real people’s lives are being sabotaged by inequality. Last winter, after Prop 8 passed, I got back in touch with a college friend via Facebook of all things. We managed to catch up on the big things that had happened in our lives – and those that hadn’t – which, in his case, was a wedding. He and his partner live in LA. They’d hoped to get their act together for a summer ceremony. But it felt rushed and it was hard to find a date when all the relatives could fly in from Kansas and beyond, and so they decided to wait until they could have the wedding they’d imagined.
Now they’re stuck. If they’d done the deed last summer, their marriage would stand. (And don’t get me wrong, I’m very glad that the court didn’t annul the 18,000 existing marriages.) I fully realize that he and his partner are only one couple and the struggle for equality is much bigger than just marriage. But dang, I’ve been thinking about them all afternoon, feeling sad and angry.