State of Equality: Not Black and White

By: Mathew Highland, Adjunct Staff Writer

The current Lesbian, Gay, Bisexual and Transgender rights movement has been a fast, confusing and very winding road.

Now that marriage equality has reached the all-decisive Supreme Court, everyone keeps asking, “Will the court rule for or against gay marriage?” The simple answer is: It’s complicated.

Most people understand that the court is deciding whether Proposition 8, the voter-approved marriage ban on same-sex couples in California, and the federal Defense of Marriage Act, which only recognizes heterosexual marriages, are unconstitutional.

What is important here is on what grounds are these unconstitutional. There are numerous possible outcomes, though the likely rulings will be anything but black and white.

In the Proposition 8 and DOMA cases, there are issues with “standing.” In both cases, the parties with the authority to defend the discriminatory legislation have declined, requiring others to step in. If the defense is determined to be without “standing” the cases would be dismissed. If one case were dismissed, it would seem that both would have to be dismissed considering that they suffer from the exact same problem. From the justices’ questions, the fact that they agreed to hear the cases, and what’s out there on the blogosphere, this outcome seems unlikely—but still possible.

With that procedural issue out of the way, we move to constitutionality. One possible and likely scenario, which would be seen as a huge win for gay rights is that Prop. 8 and DOMA be ruled unconstitutional. Millions of Californians would benefit from marriage equality and DOMA would be struck down.

This does NOT mean that marriage equality, throughout the United States, would be the law of the land. DOMA is likely to be found unconstitutional, not on the grounds of the “equal protection clause,” but under the 10th Amendment of “states rights.”

In this likely scenario, Proposition 8 is either ruled unconstitutional with an obscure and narrow decision, or dismissed letting the 9th Circuit ruling stand.  Prop. 8 will not be decided in a far-reaching decision based on the equal protection clause, as it should. It should be of great concern that the equal protection clause of the 14th Amendment is given so little weight in this Justice John Roberts-led court. This could spell trouble for the Voting Rights Act, which the court will be taking up soon.

While this outcome would be a huge win for gay rights, we should celebrate cautiously as this is not necessarily a progressive win. Federalism versus ‘states rights’ is an American tension that dates back to our very beginnings, to Jefferson and Hamilton. The ‘states rights’ argument has long been a bastion for resisting progress, was the refuge of the confederate states, and used to fight desegregation. This interpretation of the law does not want a large federal government capable of standing up for civil rights, only one that protects property rights. ‘States rights’ advocacy has found a contemporary home inside the Tea Party and Libertarianism.

This ruling would be consistent with the Roberts’ court track record and agenda of dismantling progress while appearing to advance it. Remember Obamacare? Roberts upheld it, but on the grounds of it being a tax. The easiest route to have it upheld, in keeping with court precedent over the past 60 years, would have been to find Obamacare legal under the commerce clause. This is the pillar that the Civil Rights Act stands upon. Conservative judicial activists have long held this as a target. The diminishment of the commerce clause in the Obamacare ruling combined with the emphasis on states rights in the DOMA ruling, and the avoidance of the equal protection clause in Proposition 8 and DOMA signals a huge attack on Federalism and social progress.

The Obamacare and likely marriage equality rulings will surely seem to the American public like progressive decisions by the Roberts’ court. They are not. When historians look back on the Roberts’ court this clever maneuvering will be seen as the hallmark of his style. This allows the court to avoid progressive ire while laying the foundation for truly regressive policy and conservative interpretations of law. The foundations of progressive achievements, ranging from social security to anti-segregation laws, are being undermined and set up to be potentially dismantled. So ironically, things that the LGBT movement is fighting for, like spousal benefits from social security and freedom from discrimination, may all be compromised by these decisions in the long run.