In Brief...The 8 State Solution Isn't One At All

The news this week has been nearly dominated by accounts of the many individuals and organisations submitting amicus(friend of the court) briefs to the Supreme Court, asking them to strike down The Defense of Marriage Act and/or California's Prop 8. Among those who have file include 212 Congressional Democrats, some 100+ republicans, Several corporations from major tech firms to investment banks, Footballers Kris Kluwe and Brendon Ayanbadejo, and yes...even Ellen Degeneres got in on the act. Finally, and among the most anticipated, as well as most analysed briefs, is that from President Obama.

Now, an amicus brief is little more than an opinion, and like all opinions it's primary purpose is to exert influence...but that's all. And as the saying goes..."opinions are like *rseholes, everyone's got one."  Being that they are attempts to sway opinion, the Justices of the Supreme Court don't have to pay any attention to them what so ever. Yet, it seemed as if anyone who had a stake in the issue was lodging their opinion for formal review. As the week progressed and more politicians and celebrities jumped on the bandwagon, I began to wonder how many of these filings would get simply get ignored...except for one. A great deal of attention has been granted to President Obama's recent filing. Being that he is an equal branch of government and the head of the nation, one would hope that Scotus would consider his opinion with the due weight of the office he holds.

Given that the President has "evolved' on the issue of marriage equality...and that he has been willing to be vocal about that support to the public...it was with some surprise and consternation that I read what is being called the "8 state solution", or as it is heralded in headlines "limited gay marriage". What the hell does that even mean?! Well, it goes something like this...
From Scotusblog:

...Here was the government’s key argument why the Golden State’s ban on same-sex marriage fails the constitutional test the administration suggested:  ”California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8.”... 

...What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married.  The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.... 

 ...“Proposition 8′s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing — [the defenders'] central claimed justification for the initiative — but instead on impermissible prejudice. . . .  Prejudice may not, however, be the basis for differential treatment under the law.”... 

O.K...so lets get this straight....Right now in California there are a handful of gay couples who acted within the window of opportunity in which marriage was legal in the state and thus enjoy those legal protections associated with legal marriage...and then...there are also thousands more gay couples in California who, for many reasons did not. This has created two legally unequal classes of people...some who's relationships are legally protected, and some who's are not. If I understand what the President is proposing here then, the 8 states that currently offer something equivalent to marriage(civil unions or domestic partnerships), would be required to offer full marriage to same-sex couples in their state. Those states, along with the states that have already granted full marriage rights to same-sex couples would have those marriages honored by the federal government....but only those states as I currently understand this. The remaining states without any recognition or legal protection for the relationships of their LGBT citizens(and those who have outright bans) would be left to pursue their own paths to marriage equality, thus preserving that states right to self governance.

....What...the...freakin...hell?! How is this a solution?! Can someone explain to me how granting marriage equality to only eight states does not also count as "differential treatment under the law"? This is the President's and DOJ's carefully crafted response that he was supposedly personally involved in crafting?! What was going through their minds?!  I will tell you what...covering their butts. From the Scotusblog:

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution.

I'm sorry...but, no. This is another half measure that claims to give support for marriage equality but doesn't go the full distance. If we can agree that California's ban on same-sex marriage "fails the constitutional test" then how does that not extend to the other states in the union? As I understand it, the constitution does not change or alter at the borders of each individual state. So, California and a handful of other states would find ourselves with full marriage rights while gay couples in neighboring states will still have no rights and sometimes complete marriage bans. How is that constitutional?! All this does is create another "have" and "have not" scenario such as we currently have in California, and opens the door for years of more litigation.

I know that everywhere you go on the internet, this brief is being hailed as "historic". I can't agree. I am not a legal scholar...and I know absolutely nothing about the strategy that may yet be at play here...but on the surface this whole notion strikes me as taking the easy way out again and leaving it for us to continue to fight in the courts and ballot boxes one state at a time, for who knows how long. I am extremely disappointed that this is the "well considered" opinion that the president and the DOJ offer us. It boggles the mind because the flaws with this "solution" seem to blatently obvious that I can't believe more than one set of eyes reviewed this thing and still gave it the green light.

But could that be the point? To make a reader respond..."But hey wait a minute, What about...." The reader in this scenario being any of the nine Supreme Court Justices. Or....could this be his concession to more conservative justices who he admitted that he was afraid to antagonize by submitting any brief at all? Either way it looks like a way for him to have an easy out with those who are still nervous about the whole idea of marriage equality. Then at least he has the ability to say that he left it up to being up to a states right to chose.
Utter garbage....and when the president himself acknowledges that this is a civil rights issue, why are we even talking about a states rights to chose whether or not to play along?

Funny...I don't think this is how the legalization of interracial marriage went down. The Supreme Court ruling in Loving v. Virginia invalidating laws banning interracial marriage probably pissed off a whole lot of people...people who probably used all the same "states rights" excuses to justify their bigotry. I fail to see the fundamental difference between the rights that were acknowledged in Loving v.Virginia and what we are fighting for today. In fact, if you took all the modern verbiage surrounding same-sex marriage and replaced mention of  "same-sex couples" with the term "interracial couples"...you would be appalled.

So why another half measure? Haven't we grown beyond this? Wasn't the repeal of Don't Ask Don't Tell enough to teach us about the dangers of foot dragging and half measures? Isn't DOMA itself becoming more and more of a shame, embarrassment, and overall pain in the ass everyday it continues to exist? Didn't the passage of Prop 8 itself teach us that a "have" and "have not" is not equal protection under the law?

Also advocated within the brief is the application of Heightened Scrutiny as a standard of review for which the Scotus may apply to the case and much ado has been made of that. Speaking only for myself, hooray for heightened scrutiny but the rest of this brief is unworthy of being considered any kind of solution. The Supreme Court may well find that California...and only California is affected by striking down Proposition 8....it was our law and our election that created it after all....but what the President and the DOJ offer is no solution that is any better than that. Furthermore, the Supreme Court may find that there is no constitutional right to marriage at all, a finding that many of us would vehemently disagree with. But...this is what it comes down to....is it, or is it not a matter of equal protection  for all?  If I had to pick, I think I'd take Ellen's opinion over the presidents any day of the week:

In the words of Benjamin Franklin, “We’re here, we’re queer, get over it.” And there’s another famous quote that says “A society is judged by how it treats its weakest members.” I couldn’t agree with that more. No one’s really sure who said it first, so if anyone asks, tell them I said it. 

I hope the Supreme Court will do the right thing, and let everyone enjoy the same rights. It’s going to help keep families together. It’s going to make kids feel better about who they are. And it is time

Until next time dear readers....