The law is boring. This is something that most activists on either side of the gay marriage debate do not understand. They settle into discussions of equality and morality. The law is hardly that simple though. It is the dull application of civil protections meant to keep one party from gaining too much influence over another. That is why we have the entire set of Miranda Rights. The greatest misunderstanding about the legal end of the gay rights debate is that the fourteenth amendment does nothing to serve the cause of those seeking marriage equality.
This came to the forefront of my mind when I came across an article from the Washington Times discussing injunctions being filed by some New Mexico lawmakers in an attempt to stop the implication of same sex marriage in some counties. This is interesting considering that the state didn’t have any gender specific law regarding marriage. Thus the state lacks any compulsion to enforce heterosexual marriage. Those upset by the revelation began to file legal injunctions contesting the authority of those who decided to start issuing marriage licenses to same sex couples using that rationale.
Honestly, I do not see the logic of enforcing a law that did not exist, or forcing people to act within a non-existent legal boundary. Any judge could say that they were following the law, and if the legislators do not like that law, it is their job to change it, not whine about it. This is the most effective argument against gay marriage, yet at no point there was any discussion of morality.
I will turn your eyes to this summer’s ruling in Windsor V. US. It was a complaint made against the government under the 5th amendment’s due process clause. She was arguing that everyone has the right to pay the same penalties if they enjoy the same legal status. Effectively what that means is that if a buddy and I are convicted of the same crime, my sentence can be no greater than his. This is the same thing that Edith Windsor’s lawyers argued in front of the Supreme Court. When Justice Kennedy wrote the majority opinion he didn’t mention the 14th. He elaborated as to how the law injured the defendant, and those in the defendants ‘class’, but it didn’t encompass equal rights.
The Suit was challenging Section three of the Defense of Marriage Act or DOMA. Kennedy decided to make it complicated though. He made his ruling by stating the many rulings supporting the right for the states to set their own regulations and standards for issuing a marriage license. This was also the only place where Loving v. Virginia was mentioned in this ruling (I expected it to not be cited at all, see Baker v. Nelson). This does create a problem though, as Anthony Scalia points out in his rather angry dissent. He argues that this will create a federalist cluster f*** (my words), in that some jurisdictions may come down harder on marriage equality than others.
Courts can have wildly different views, the district court in California could rule in the most liberal of ways (Hollingsworth v. Perry, which I will get to shortly), but will other circuit courts do the same? It is unlikely. Can an appeal against a gay marriage ban in Alabama be as successful as the 8th districts overturning Prop 8? It probably isn’t, and worse there is still so much room for ideology. There is still a lot of Argle-Bargle (Scalia’s words) to go through before total Marriage equality can be achieved.
Now it’s driven me crazy when I hear people around talking about how Prop 8 was overturned by the Supreme Court. The Supreme Court overturned nothing, Hollingsworth v. Perry was remanded (send back to) to the 8th district. The reasons are in fact amusing. It was found by the chief justice, who is also a Bush appointee, that the parties appealing the 8th districts ruling didn’t have any standing. They were concerned citizens who wanted to protect their concept of marriage, and the court generally does not hear, nor do they rule on, cases where the party appealing cannot show any injury. It was made permanent that there could be no injury to those who do not agree with marriage equality. “Go home” they might have well have said “come back when there is something actually wrong”.
This brings me full circle to the freedom to marry act in Minnesota, and one of the downfalls of Windsor v. US. We changed the law in such a way that it would become legal to marry someone of the same sex, and we decided that it would be okay to recognize other states marriages. This may be something that not every state will do. And some, with the support of parts of DOMA that are still intact, will not recognize same sex marriage licenses that are given out by other states.
The thing I keep noticing is the ambivalence that everyone has towards the religious implications of this debate. To claim that a religious ceremony where two people of the same sex has a different a different legal meaning as one done by a different church will find itself flying in the face of the ‘free exercise’ clause. Why must the state consider one religious definition of a romantic union, and ignore another? I would hope someone figures this out sooner than later.
The law is boring. True equality will be achieved only with a slow persistent march with rulings that won’t make splashes and headlines. There is a long way to go, and one must remember that every civil rights movement didn’t happen overnight. It took over fifty years to take Plessy v. Ferguson and turn it into Brown v. Board. There will be marriage equality, not because we are about equality for all, but because the government cannot distinguish between two people based solely on a personal preference.
Interim Director of Legislative Affairs, MCTC Student Senate
Photo from Kentucky Photo File, Flickr Creative Commons