Amidst feverish work on my current paper, I’ve been trying to keep up with the latest developments in gay rights. And, this week was quite a doozy. On Monday, the proponents of the anti-gay marriage Proposition 8 in California argued that the district court’s decision declaring Prop 8 unconstitutional in Perry v. Brown (previously, Perry v. Schwarzenegger) should be vacated because Judge Vaughn Walker, the now-retired judge who presided over the original trial, is in a committed long term relationship with another man and failed to disclose that fact at trial. Judge Ware heard arguments, questioned the proponents incredulously and issued the expected smack down the next day. Remarkably, the Prop 8 proponents are planning to appeal.
Also on Monday, 20 bankruptcy court judges in California’s Central District declared DOMA Section 3 unconstitutional, finding that none of the post hoc justifications for the federal government’s intrusion into state marriage law survived heightened scrutiny.
Then New York Governor Andrew Cuomo and his team stepped up efforts to pass a law that would allow gay couples to marry in New York. Three Democrats in the normally-dysfunctional who voted against same-sex marriage in 2009 switched to yes. Then one Republican, and then another Republican, putting the total number of supporters in the Senate at 31 (32 are needed for passage). Pro-gay rights Mayor Mike Bloomberg, the single largest contributor to New York State Republicans over the last decade, then spent his Bloomsday (haha!) in Albany, lobbying Republican Senators for support. Ted Olson, who along with David Boies is representing the pro-gay marriage side in the Perry case, then wrote an open letter to New York Republicans, pushing the conservative case for gay marriage.
I’ve spent my free time calling Republican senators on the fence, thanking Democrats and Republicans who are already on board and starting a Facebook group that asks people to commit to donating money to the campaigns of any Republican senator voting in favor of same-sex marriage.
I am torn between a feeling of inevitability — this week saw a lot of dominoes falling on the arc of progress — and a sense of frustration — Jews, Catholics and others taking to the Senate floor to call me and my brethren “diseased,” “errors in God’s plan” and “radical homosexual Nazis who wants to destroy religion.” Pleasant. I especially love the “errors in God’s plan” canard when coming from a man like Dov Hikind, an Orthodox Jew, who believes God can’t make mistakes. But, that is another story.
But my feelings are not why I’m writing today — I’ve written about that here. Two legal aspects strike me:
1. Same-sex marriage in New York would be important for a few reasons. There is no citizen initiative process in New York — a constitutional amendment would require a vote of the legislature, as would a constitutional convention. Passage of a gay marriage bill would more than double the number of citizens living in pro-gay marriage states and affect more then double the number of gays. All of this means that gay marriage in NY is a big step forward. And, for those judges — from immigration judges all the way to SCOTUS — looking for political cover, not wanting to get too far afield from public opinion on any given controversial issue, NY would be a powerful step toward recognizing that gay rights is not the wedge issue Karl Rove and the now-openly gay Ken Mehlman made it out to be. Many scholars have written about the political forces behind court decisions, but I wonder what you think a gay marriage victory in NY would mean for gay marriage lawsuits nationwide? I happen to think that President Obama’s heightened scrutiny decision regarding DOMA Section 3 will have a greater impact, but NY is the center of the universe, so it must have an impact, too.
2. This would be same-sex marriage via legislative vote. I am often asked why it is appropriate to put my marriage rights up for a vote, by a legislature or the people, when everyone else’s right to marry was never up for a vote. That’s fair, but not entirely accurate — state legislatures have changed their marriage rules many times over the last 230 years. In any event, the point is that some believe our rights should not be subject to the fleeting political whims of fickle voters. And, that is certainly a reason to oppose citizen initiatives, in general. Others believe that a multi-pronged strategy for gay rights — in the political arena, in the judicial arena and in the court of public opinion — is the best way to find success. I’ve had this conversation with my readers over at Towleroad for some time, but the sharply leftist commentators do not represent the gay public, nor does the gay public represent the views of a wider set. How would you react if your right to do x or y were up for a vote and could be taken away just as easily? To what extent is the preference for judicial rulings a remnant of a yearning for the Warren Court’s judicial intervention on behalf of minority rights? Or, to what extent are over-thinkers like me missing the point?
Most importantly, the NY Senate has yet to pass any same-sex marriage bill. I hope this week gets even more exciting!