Double Jeopardy: Two Gay Marriage Cases Reach The Supreme Court

March 26, 2013 6:35 PM0 comments

Get your bucket of popcorn and take a front row seat to watch the unfolding of history. The most important week in the gay, lesbian, bisexual, and transgender movement is finally upon us. The world is watching as gay marriage is twice on trial in front of the Supreme Court. As the anticipation builds, we stand at a crossroads where yesterday’s attitudes and today’s progress collide, with the future of our noble struggle to be determined.

Last week’s ABC News/Washington Post poll drives home this point, showing that 58 percent of Americans now say it should be legal for gay and lesbian couples to wed, while support reached astronomical heights, 81 percent, for voters under thirty years old.

These numbers offer tremendous momentum at just the right time, and are augmented by new support from presumed democratic presidential frontrunner Hillary Clinton and Republican Ohio Sen. Rob Portman, who was influenced by the coming out of his gay son.

The energy in this fight is a one-way street. This issue has so rapidly gone from extreme to mainstream, that longtime LGBT advocates, such as myself, sometimes feel disoriented, like we have suddenly been beamed up to Planet San Francisco. It’s as if our movement has transformed from beleaguered to beatified in a blink.

Consider that conservative stalwart Ted Olson is representing our side in Washington this week — and his arguments are bolstered by a powerful Amicus Brief spearheaded by Ken Mehlman, the openly gay former head of the Republican National Committee, signed by a bevy of big name conservatives. Additionally, two of our biggest allies are NFL football players, Chris Klewe, a punter for the Minnesota Vikings, and Brendon Ayanbadejo, a linebacker for the Super Bowl Champion Baltimore Ravens. These magnificent scenarios would have been unthinkable as recently as three years ago.

The biggest question, as we head to court this week, is whether the nine Justices will find a constitutional right to marriage equality, or will issue a limited ruling that the states should settle the matter. Obviously, a single national standard, instead of a cruel and convoluted patchwork of marriage laws, is the most fair and just outcome. Albeit, a limited ruling allowing same-sex marriages to resume in California – given the size, influence, and importance of this state – would offer enormous progress.

Some argue, such as conservative Peggy Noonan did on ABC’s This Week, that SCOTUS should go slow and let the states decide, lest we have another Roe v. Wade-type social issue that divides the nation for decades. However, the rights of minorities should never be decided by a popularity contest and LGBT families who have the misfortune of living in pockets of prejudice should not be condemned to second-class citizenship. Imagine how different our country would have been had we left interracial marriage up to the states?

(Even by the tyranny of the majority standard, our foes come up short. The ABC News/Washington Post poll showed that Americans, by nearly 2-l — 64-33 percent — say the legality of gay marriage “should be decided for all states on the basis of the U.S. Constitution” rather than by each state making its own law on the issue.)

Yes, there are principled, but wrongheaded, conservatives, who truly believe that federalism is the answer to the question of marriage equality. Nevertheless, an unspoken fear of violence, if same-sex marriage is nationalized, is a serious issue that few in the media are adequately addressing. Yet this deep, underlying concern is driving much of the case for the “states rights” solution. The thinking goes, “They will go bonkers in Oklahoma and Alabama if the court rules that gay and lesbian couples are equal!”

In fact, Tony Perkins, leader of the Family Research Council, which is listed as a Southern Poverty Law Center hate group, is already stirring the pot and fomenting potential hostilities:

“When you look at a nation that is so divided along these moral and cultural issues, that you could have, I hate to use the word, but a revolt, a revolution. I think you could see Americans saying, ‘You know what, enough of this,’ and I think it could explode and just break this nation apart.”

As a nation, we simply cannot let fanaticism and fear hijack history and undermine our nation’s guiding principles. As far as I am concerned, if marriage equality is ruled the law of the land, and the extremists lash out, we can call in the National Guard, as happened with the Civil Rights movement. The Supreme Court should not be cowed and has a duty to decide its cases based on fairness, freedom, and what is in the best interest of America’s future.

 


Wayne Besen is a columnist and author of the book “Anything But Straight: Unmasking the Scandals and Lies Behind the Ex-Gay Myth.”

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