Saturday, March 2, 2013

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 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.”... 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" 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 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 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....


  1. That could be a very discouraging outcome for all of us living in the south and for all the other states for that matter. Gonna keep praying and keeping my fingers crossed that we get a better outcome in the near future.

  2. "President has "evolved' on the issue of marriage equality"

    Evolved..or flipped flopped, just before the elections

  3. So Rhode Island is one of those eight states. I wonder if that's why the RI Senate is dragging their feet on this. The Marriage Equality bill passed the house with a 72% approval which exceeded my prediction of only slightly more than 50% based on co-sponsorship of the bill.

    So if you want - contact Senate President M. Terese Paiva-Weed at (401) 276-5588.

  4. As long as a troll (Rachel Maddow's description of Scalia was so on target) and his "me, too" troglodyte sit on the Supreme Court, I don't have great hopes for you. I wish I did. Living in the south, as Daniel K. does, it's easy to be pessimistic. Nonetheless, being a mass of contradictions as most of us are, this old, straight female sincerely hopes the outcome of these two cases will be the best for all of you. You are citizens, you are human, and to get personal, you and Jay are great people and loving parents. How anyone could want to deny you the same rights as the rest of us have is beyond me.

  5. I don't think that the 8 state solution is a very good one, and I think that it is kind of odd to say that you can't have certain groups band from marriage just because they are gay, when doing so serves no real state purpose, yet not apply that to states that have out right bans. I sure hope that the court strikes down Prop 8 and DOMA too, but I have a hard time being optimistic about it unless they can peel off part of the conservative side of the court and we all know Scalia has his mind made up about it already. After all he thinks that sodomy laws should still be on the books there is no way that he will support the right to marry. But we will not know until the ax falls what the ruling is.

  6. Hello, Bryan, I want to ask you something about this issue in a more personal level. I´m Brazilian and here we´re having the opportunity in some states to get married. This window of opportunity, as you said it, is now open. My boyfriend and I are 25 years old and we are already for 7 years together. We haven´t come out to our families yet, and we´re young for such a decision, but the risk of this legal possibility being overruled in the future by a Supreme Court decision or by some law makes us wonder if it´s not the right time to make it, until it´s too late. If we´re already married, that´s more difficult for the government to invalidate it. Could you and Jai give me some advice about that? Thanks!

  7. @ anonymous...When LGBT people have earned the right to marry there was a big rush to get married as soon as possible. Some of those marriages were entered into too soon simply because of the excitement of being able to do it. Consequently, many of those marriages are not lasting and those couples are looking into divorce...a whole different side of the marriage equality debate.

    My point to you is, don't get married just because the ability has become available, get married when you are ready to spend your life with someone. That means taking all the bad along with the good...The toilet they pee on, the arguments you WILL have, the times when one will be sick and the other one will need to be strong. It all goes together hand in hand, and when you think you have found the person you can do that with...then nothing should stop you from marrying the one you love. :)

    1. Thank you Bryan, wise as usual :) You and your family deserve all the best!

  8. The whole thing is just so ridiculous! Same sex marriage affects ONLY the people who are getting married-nobody else. I am so sick of the whole "children need a mother and a father" argument against it!!! I happen to know children who are being raised by a same sex couple in Santa Rosa that are doing just fine!!
    Do they really believe that if same sex marriage becomes legal that straight couples will stop getting married and having children???
    These arguments certainly will not stand up in a court of law..maybe they would in a kangaroo court but not at SCOTUS.

  9. I was talking with a customer the other day, he very plainly understood what any marriage equallity bill was about, he also very plainly believed that we gay persons do not deserve equal treatment under the law for some 'moral' reason. I did not have the words or the wisdom to understand him on that.

    Obama's brief is at least consistent with his stated opinion. I do agree it is a half measure though. Sadly I think it is naively optimistic to think we have outgrown half steps. I mean we all can be guilty of being so convinced that our perspective is the only right and logical view, why can't the rest of the world see it too?

    Jim I disagree, marriage does not only affect that couple. Hence its role as a social institution. I do agree the ability of any two consenting adults to enter that contract ( with legally binding terms they agree to at that time renewable as they see fit) does not prohibit or impinge upon the rights of any other parties to likewise enter a similar contract of their own.
    Yes I'm splitting hairs here but that can be the difference between a kangaroo court and something respectable, and looking at Scotus it has had its share of being a kangaroo court too. Separate but equal was legal for a number of years.

  10. @ Drago...
    Naively opptimistic it may be and my understanding of the strategy involved in parsing the language in order to sway the opinions of particular justices has "evolved" over the last week. However, I don't give one rats *ss if separate but unequal was legal, it's still bullsh*t. And why are we setting the bar for whats achievable so low? We have spent a long time getting to the Supreme Court and it's decisions can effect gay rights for decades. When we are arguing our case as a cummunity before a body of that stature and power you don't go in asking for half of your rights. That's does not seem at all practicle when we are talking about getting the chance to have out case heard before the highest court in the land. Aim for the highest because anything less just keeps up coming back to do it all over again.

    1. Lol, i was merely making the point that scotus has been as much a kangaroo court, at times, as any other court.

      I do absolutely agree that it is half arsed for them to allow a separate and not equal situation like Obama is endorsing.

      I do not mean to say we should set the bar so low as to work towards half measures. I am all in for full equality yesterday. I simply mean that a half step forward is still forward motion even though its not a stopping point.

  11. Hey Bryan,

    Your opinions, sincerity, and perhaps more importantly, the model you and Jay uphold, is always greatly appreciated. In this case, however, you begin to sound a bit more like you're other half! (smile)

    I am sure you've already read Jason Farago's Guardian article on the Amicus Brief and, if you missed it, I urge you to check it out.

    Farago opines:

    The brief goes on to argue that if a state offers civil unions to gays, but reserves the designation of marriage only for straight couples, then that's discrimination and it has to end. If the justices followed the federal government's logic, same-sex marriage would then become legal not only in California, but in the seven other states that offer civil unions but not marriage to gay couples. (Those are Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.)

    The brief stops short of saying that same-sex marriage is a fundamental right under the constitution. But as so often with Obama's gay politics, you have to interpret beyond the surface. If gays are equal under the law, and if laws forbidding gays to marry violate that equality, then every state constitutional amendment that blocks gay marriage has to go.

    Saying as much remains a big lift for this conservative court, however, so the Obama administration is trying to position the nationwide legalization of same-sex marriage as a two-part affair. First, win this year, with a decision that guarantees gays equality under the law. Then, come back soon with that decision in your pocket, and with public opinion even more firmly at our backs, and take out the rest.

    Although he doesn't set out clearly the legal rationale for the amicus' procedural attack, or address the the government's state first bias, a supposed mandate of Obama, he does provide a pretty clear explanation of the whyfore.

    A cynic I am, I am, but I have to support the strength AND the limitations of what you refer to as this half-measure even if I don't credit Obama with quite the miracle change of heart that others do. I think we'll see the other shoe (the other half) drop before Selina's next school year begins.

    Thanks as always.