The Supremes give me reverse November 2008 déjà vu

Updated below (last on Friday, June 28, 2013)

For this progressive Californian, this week feels like an uncanny reversal of Election Day 2008: In November 2008, we Californians saw our nation’s first non-all-white president* elected, a historical milestone — but with the narrow (52-48) passage of Proposition H8, which wrote homophobia into the California state Constitution by banning same-sex marriage, we non-heterosexual Californians were stripped of our constitutionally guaranteed right to marry, which the California Supreme Court earlier that year had ruled was ours.**

Yesterday, in a typically 5-4 decision, the U.S. Supreme Court eviscerated the Voting Rights Act, claiming that the act’s provisions were too outdated, despite the fact that Congress had renewed it overwhelmingly in 2006, which wasn’t all that fucking long ago.

In her dissent, Justice Ruth Bader Ginsburg nailed it on the head when she remarked, “Throwing out [U.S. Justice Department] pre-clearance when it has worked and is continuing to work to stop discriminatory changes [to voting laws] is like throwing away your umbrella in a rainstorm because you are not getting wet.”

While I surmise that Congress will restore the Voting Rights Act in the future, that won’t happen, of course, with the current wingnut-dominated U.S. House of Representatives. Indeed, media reports are that the fascists of the red states, in light of this new U.S. Supreme Court decision, are working fast and furiously to reinstate their voter suppression laws (previously shot down by the Justice Department) just in time for the 2014 midterm elections.

I have to wonder, of course, if that was the goal of the wingnuts on the high court: To help the struggling Repugnican Tea Party in the next national elections. Hey, they’ve certainly involved themselves in election-fixing before, which even former U.S. Supreme Court “Justice” Sandra Day O’Connor, who was appointed by Ronald Reagan and who, with four other like-minded “justices,” put George W. Bush in office, has expressed a potential problem with.

Yesterday was a giant leap backwards for the equal human and civil rights of non-whites, and was yet another stain on our nation caused by yet another 5-4 vote by the right-wing U.S. Supreme Court, right up there with the court’s 5-4 coronation of George W. Bush as president in late 2000 even though he’d lost the election by more than a half-million popular votes and even though the pivotal state of Florida clearly had been stolen as a “victory” for Bush and with the court’s 5-4 Citizens United decision, which reinforced the bogus concept that corporations are just like individual people, and that just like individual people, corporations have First Amendment rights.

It’s mind-blowing to ponder the fact that the voting rights for which so many Americans fought and even died were eliminated at the stroke of the poisoned pen of just one right-wing U.S. Supreme Court justice. (Yet at the same time I suppose that it’s a little encouraging to know that it was only a 5-4 vote, that only one “justice” made the difference.)

I hope that the backlash against the right wing’s ongoing attempt to suppress voters is considerable. Generally speaking, the right-wing traitors among us win little battles here and there, but over time, they continue to lose the war. They stymie and delay progress as much as they can, but progress still marches on, and the haters go down in history as the haters that they are or were.

But today, unlike in November 2008, there was good news for us non-heterosexuals when the US. Supreme Court ruled, 5-4 (of course), that the so-called Defense of Marriage Act, which Congress passed in 1996, is unconstitutional, as it violates the Fourteenth Amendment’s guarantee of equal protection of the laws (duh).

This ruling means that no same-sex couple that has been married in a state with legalized same-sex marriage may be denied any of the federal benefits of marriage that are enjoyed by opposite-sex married couples.

However, this also means that same-sex couples in most states will not have the same rights as do same-sex couples in other states (those states that have adopted legalized same-sex marriage), which, of course, is a patently unfair and thus an untenable situation.

Yes, the nation’s high court, while it struck down DOMA, by yet another 5-4 vote refused to touch Prop H8, ruling that, as Reuters puts it, “supporters of [Prop H8] did not have standing to appeal a federal district court ruling that struck the law down.” Thus, the court apparently very intentionally avoided directly ruling on whether or not any state may constitutionally outlaw same-sex marriage, leaving same-sex marriage, for now, as an untenable issue of “states’ rights.”

Because the U.S. Supreme Court wouldn’t touch Prop H8, the lower federal courts’ rulings that Prop H8 is unconstitutional (because it violates the Fourteenth Amendment) stand, and my understanding is that this means that California will have same-sex marriage again, as it did briefly in 2008 (between the effective date of the California Supreme Court’s ruling for same-sex marriage and the effective date of the same-sex-marriage-nixing Prop H8) — but, I understand, there’s more legal wrangling ahead as to what, exactly, the Supremes’ refusal to touch Prop H8 means for California.

It was cowardly, irresponsible and short-sighted of the court to rule that DOMA is unconstitutional on the grounds of the Fourteenth Amendment but to then refuse to rule that accordingly, no state may outlaw same-sex marriage on the grounds of the Fourteenth Amendment, but apparently today’s rulings were, pathetically, the best that we could get from this right-wing court.

Of course it would have been nice if either or both of today’s high-court rulings on DOMA and Prop H8 (the court’s cowardly refusal to issue a ruling on Prop H8 was the court’s “ruling” on Prop H8) had been 6-3 or even 7-2 (or hell, even 8-1 or 9-0), but the right-wing homo-haters have no credibility in (predictably) calling the 5-4 decisions the “tyranny” of the U.S. Supreme Court against the American majority when a series of recent nationwide polls clearly show that a clear majority of Americans favor same-sex marriage.

And those fascistic haters who claim that to overturn Prop H8 is to overturn the will of California’s voters conveniently ignore the two facts that (1) any ballot measure passed by a majority of any state’s voters can be overturned by a federal court if that court deems it to be unconstitutional (Civics 101 — duh) and that (2) while Prop H8 passed in November 2008 with 52 percent of the vote, polls show now that around 60 percent of Californians support same-sex marriage; were Californians to vote again on the issue again today, same-sex marriage would pass by a decisive margin. Prop H8 no longer is the will of the majority of California’s voters.

So: Today we can celebrate a significant although incomplete victory for same-sex couples who desire legalized marriage and the rights (and, yes, the responsibilities) that come with legalized marriage.

But we need to fight like hell to regain the ground that we just lost where voting rights are concerned, and we need to fight like hell to gain full marriage equality for same-sex couples in all 50 states.

The U.S. Constitution’s demands for fairness and equality demand that we do so.

*True, Barack Obama (whom I don’t really consider “black” but consider to be of mixed race) turned out to be a huge disappointment, a George W. Bush Lite, but I did cast my vote for him in November 2008 before I knew how his presidency was going to unfold. I voted for him in 2008 at least in part because I thought that it was great to be able to vote for the first non-all-white president in U.S. history. (In 2012 I could not, in good conscience, vote for Obama again; I voted for Green Party candidate Jill Stein.)

**And this was no radically left-wing California Supreme Court; when it ruled in favor of same-sex marriage in 2008, most of its justices at that time had been appointed by Repugnican, not by Democratic, governors.

Update (Wednesday, June 26, 2013): Democratic California Gov. Jerry Brown has instructed the California Department of Public Health, which comes under his authority, to direct all of California’s 58 counties to begin to issue same-sex marriage licenses as soon as is legally possible, which might take a month or so.

Update (Friday, June 28, 2013): The homo-hating wingnuts here in California (and elsewhere) are going apoplectic over this (from The Associated Press today):

The four plaintiffs in the U.S. Supreme Court case that overturned California’s same-sex marriage ban tied the knot [today], just hours after a federal appeals court freed gay couples to obtain marriage licenses in the state for the first time in 4 1/2 years.

State Attorney General Kamala Harris presided at the San Francisco City Hall wedding of Kris Perry and Sandy Stier as hundreds of supporters looked on and cheered. The couple sued to overturn the state’s voter-approved gay marriage ban along with Jeff Katami and Paul Zarrillo, who married at Los Angeles City Hall 90 minutes later with Mayor Antonio Villaraigosa presiding. …

Although the couples fought for the right to wed for years, their weddings came together in a flurry when a three-judge panel of the Ninth U.S. Circuit Court of Appeals issued a brief order [this] afternoon dissolving, “effective immediately,” a stay it had imposed on gay marriages while the lawsuit challenging the ban advanced through the courts.

Sponsors of California’s same-sex marriage ban, known as Proposition 8, called the appeals court’s swift action “outrageous.” Under Supreme Court rules, the losing side in a legal dispute has 25 days to ask the high court to rehear the case, and Proposition 8’s backers had not yet announced whether they would do so. …

Call the homo-haters a waaaaaambulance! Anyway, the AP story continues:

The [U.S.] Supreme Court said earlier this week that it would not finalize its ruling in the Proposition 8 case until after the 25-day period, which ends July 21. But San Francisco City Attorney Dennis Herrera, who joined the two couples in the lawsuit, said [today] that the Ninth Circuit panel had the power to lift the stay it imposed.

“The fact of the matter is the only thing holding up the weddings was the stay that the Ninth Circuit had in place,” Herrera said. “The fact that there is a separate 25-day period allowing the petition to go for a rehearing is separate and apart from that stay.”

[California Gov. Jerry] Brown directed California counties to start performing same-sex marriages immediately after the appeals court’s order. A memo from the Department of Public Health said “same-sex marriage is again legal in California” and ordered county clerks to resume issuing marriage licenses to gay couples. …

Anyway: Wow. After the U.S. Supreme Court’s handed-down decision on Wednesday not to touch the Prop H8 case, we Californians had figured that there would be a wait of at least around a month for same-sex marriages to resume in California; we didn’t expect them to resume this quickly.

I misspoke above, by the way: The U.S. Supreme Court on Wednesday did not uphold both federal district court Judge Vaughn Walker’s 2010 decision that Prop H8 violated the U.S. Constitution and the Ninth Circuit Court of Appeals’ decision in February 2012 to uphold Walker’s original ruling.

The U.S. Supreme Court on Wednesday vacated the circuit court’s ruling, which then reverted the matter of Prop H8 to Walker’s original 2010 ruling.

Frankly, Vaughn Walker, who is now retired, is a hero to me. Yes, he is a gay man, and yes, the homo-haters tried (but failed) to have his 2010 pro-same-sex-marriage ruling invalidated because he’s gay (apparently only [presumedly] straight white men can be fair and impartial judges, you see), but Walker is no left-wing radical: He was nominated as a federal judge first by Ronald Reagan and then by George H. W. Bush, and apparently his political leanings are conservative-libertarian.

I consider Walker’s ruling to be a landmark document in U.S. gay, lesbian and bisexual history. You can read it, if you want, here.

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