Thursday, May 28, 2009

Is it time for a Federal suit?

We all are angry at Prop8, and the willingness of the justices to throw our rights to the mob. Of course, everyone has had to wrestle with the fact that Our Side argued against Prop8 on very narrow grounds of constitutional law ( "Amendment" vs "Revision") rather than on equal protection grounds.

The reasoning goes that arguing on equal protection grounds opens up federal issues, and since gays are not protected against discrimination nationally, this puts us at risk before a federal bench.

Let's remember that until the US Supreme Court (SCOTUS) decision in Lawrence v. Texas, just a few years ago (2003), a gay couple in some states could be arrested in their own home for making love. And 17 years before Lawrence, in Bowers v Hardwick, the court had held explicitly that such arrests were completely legal, that private acts between consenting adults could be criminalized. Many people believe that decriminalization of private behavior would have come sooner, without Bowers on the book. Still the court is no friend to gay rights. Justice Scalia complained bitterly that Lawrence would open the door to bestiality. And the Court is more conservative today than it was in Lawrence.

So everyone is reacting with some dismay to the news that two high powered attorneys are challenging Prop8 in Federal Court under US Constitution equal protection grounds. Because if they lose, it could be like Bowers, and set us back. Federal courts are conservative-dominated, thanks to 8 years of ideological Bush appointments.

And what's with the attorneys? Ted Olson and David Boies faced off before SCOTUS in the Bush vs Gore election battle. They don't have a record of any interest in GLBT issues. Olson, who was Bush 2's solicitor general, is if anything heavily tainted by his service in that administration. By this I mean I do not trust any Bush administration associated attorney with no record in this area. Is this is cynical ploy to shut the door on GLBT rights at the federal level? Or do they really believe?

I have my doubts.

Update: Excellent overview of the issue from a DailyKos diary. Another and very interesting set of views from Pam's House Blend.

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