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Thursday, June 20, 2013

The New Dred Scott, Or Not?



As I sit here writing for you today, I am following the Supreme Court of the United States. Decisions regarding two gay rights cases will be announced between now and the last week in June. Since this has been something I have followed most of my life, being a Lesbian with a vested interest in the outcome, I wanted to write an article, in real time as events unfold. When you get right down to it, these cases boil down to the same common premise; should people be allowed to withhold equal rights from others, because their personal decision of belief tells them it is okay? A broader question is; does the Government have a responsibility to ensure equal protection under the laws for all citizens as the constitution mandates, or should they be allowed the latitude to pick and choose what laws will apply to whom?  In both cases, the reason we are even dealing with these issues as a society is because the beliefs of a vocal, angry minority are demanding equal rights be denied from others, because their own personal beliefs are against those rights. 



In one case you see this happening on a State-wide level, where voters, influenced by a lot of powerful, conservative interest groups voted to take away equal rights from the state constitution. They did this through misinformation and manipulation. Some group’s touted non-scientific, debunked studies as proof Same Sex Marriage would hurt the institution of Marriage as a whole. The drafters of Proposition 8 also worded the Proposition in such a way as to make it confusing, thus leading to incidents where people thought they were voting for equal marriage rights, instead of against; Furthermore, Prop 8 was placed as a ballot initiative after the California Supreme Court ruled, denying Same Sex couples the ability to marry violates the California Constitution. Groups such as; The Mormon Church, Focus on the Family, The Roman Catholic Church, American Family Association and many others, were responsible for a majority of the funding to make Prop 8 law. The Mormon Church in particular directed their members to donate money as well as volunteer time to support its passage.



The other case involves a Federal Law DOMA, segregating marriage rights and preventing some couples from having any rights at all, even those a state may choose to grant. This was a direct response to the perceived threat Conservatives in the 1990's felt, toward the mainstreaming of Gay Rights. Originally, the Republican takeover in 1994 wanted to jam through a Federal Marriage Amendment, to counter what it saw as a culture war of building Gay Rights support that might lead to Marriage Equality. Only through a compromise to avoid a Federal Marriage Amendment, did President Clinton agree to sign DOMA into law. 


So what does all of this come down to? Again, I believe this is about people who feel, because of their choice of beliefs, they should have the right to dictate to everyone else, and how others should live their lives. It is about ignorance, whether intentional or not, and a close-mindedness so insidious as to think they should have the power to deny equal rights to others. If you read the arguments used against interracial marriage in the 1960's, the language is almost identical from the arguments used today against Same Sex Marriage. 




This really should be a no-brainer. It should be, but it isn't. As with the Dred Scott decision, by the United States Supreme Court handed down 156-years-ago, declaring African Americans were not citizens but property and therefore had no rights, we are now facing another test of civil rights in the Twenty-First Century. The Supreme Court is made up of human beings; therefore, it is flawed. To think it is not possible to suffer another civil rights travesty, simply because times have changes, is to deny our own history, and opens us to the possibility of reliving it. Anything less than a complete overturn and reversal of laws nationwide, in support of Marriage Equality, may as well be another Dred Scott decision. How can logic be warped and twisted to allow for anything less than full equality, and still be called logic or reasoning?


Unfortunately, there is no guarantee equality will come with the Supreme Court rulings. In all likelihood the Supreme Court will probably look for some kind of legal gimmick to avoid addressing the real issue, which in itself would be a travesty. Millions of Americans in the United States are being affected by these laws. Millions are being denied constitutional guarantees of equal justice under the law, and equal protection of the laws. Married Couples in a dozen states are denied basic rights, taken for granted by other married couples every day. No societal advancements come out of segregating Same-Sex couples from their Heterosexual counterparts. There is no great benefit to our society by enabling discrimination of those who are born the way they are, by those who choose to believe the way they do. This isn't about polygamy, incest, bestiality, or any other nonsense, thrown to the winds of debate, to stir angst and resentment. This is about the lives of ordinary, everyday people who are trying to scrape a living out of the cards life has dealt them, and whether or not we value equal rights for our own people.



Is it a moral issue, yes, but not in the way you probably think. The morality of this issue is how we treat those of us in society who are different, the kind of world we want to live in, one where freedom and free expression are allowed, or one where oppression is dictated by some and felt by others. Do we allow one person’s beliefs interfere with another person’s rights? What interest do we have as a society for segregating and discriminating against a segment of the population, who happen to be born differently than the rest, and how is that any different than the way we treated people based on the color of their skin 50 years ago?



These are easy questions, with simple answers for anyone willing to stop and think. You may not agree with me, I probably won't agree with you on many things, but I respect your right to exist and I would hope my beliefs would never result in the loss of your rights. Whether you are gay or not, whether you are religious or not, I don't think it is our place as a society to allow segregation of people based on sexual orientation, from equal justice under and access to the law. This is not how a free society operates. Show me one person who thinks this is how our society should be, and I will show you an idiot, because today it might be my rights on the chopping block, but it very easily could be theirs tomorrow.



So will the Supreme Court hand down the right decision, time will tell. I would like to think the people who hold positions of public trust, such as the Supreme Court justices, would be cognizant of history and avoid repeating the mistakes of two centuries ago, but then again, they are human beings. I will update this article as events unfold, so stay tuned for more.



- Update -



So, from multiple accounts it appears the Supreme Court has decided to avoid the Prop 8 issue, by letting the lower court ruling stand. They had a chance to do the right thing here, but instead they chose to do nothing, rather than anything. This is actually a surprise considering in the second case they overturned DOMA. I did note particular language in the ruling, which I found troubling; Although, no other news outlet has reported on this yet. The court’s majority ruled that the power of the individual state in defining marriage “is of central relevance” and the decision to grant same-sex couples the right to marry is “of immense import.” The state, the court ruled, “used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.” The court held that DOMA “because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.”



From this wording, what the Supreme Court seems to be saying is, States have the right to discriminate through Marriage Laws segregating or even outright denying Same Sex couples the ability to marry. This would seem to be in stark contrast to their legal reasoning for overturning DOMA to begin with, it is a violation of the 5th and 14th amendments to the constitution, violating equal protection of Same Sex couples. How can equal protection be violated at the Federal level, yet not be violated at the State level, when most State Marriage amendments are modeled directly from the wording of DOMA? I think this confusion will lead to additional cases before the Supreme Court, which depending on the makeup of the court could lead to either major setbacks, or sweeping changes to the legal landscape of Marriage in America.