Thursday, December 3, 2009

Gay on Trial

An excellent, excellent article in the American Prospect about Perry v Schwarzenegger, which is the case that is taking PropH8 to Federal court. You should read the whole thing for a full appreciation of the context and the dangers, as well as the promises, associated with this case.
Perry v. Schwarzenegger indeed asks the "ultimate question" of whether gays have a federal right to marry, but because the case is alleging that Prop. 8 violated the equal-protection clause of the U.S. Constitution, the federal court decision will have implications for gay Americans in nearly every arena of public life, from housing to parenting to military service. The court is set to consider questions as wide-ranging as what it means to be gay and whether it affects one's contribution to society. It's not just marriage rights on trial; it's homosexuality itself.....

The quandary for the court in January is, in effect, how to name a reality that we do not all share. The real fight is not over marriage itself. Perry v. Schwarzenegger is only about gay marriage in the sense that Roe v. Wade was about privacy, or Brown v. Board of Education was about school choice. The case is really about the place of gay people in society. Just as reproductive rights allowed women not to be defined by childbirth and desegregation meant skin color no longer determined where you sat on the bus, legal equality for gays would mean that, at least in theory, one's sexual orientation would not determine where he or she fit in.

But it's important to remember that Roe did not guarantee gender equality, nor did Brown end racism in America. Women are still promoted and paid less than men, and a large share of African Americans are still entrenched in poverty. After the stinging marriage-equality setback in Maine on Nov. 3, gay-rights supporters are looking to the federal courts with renewed hope. But Perry will not be a panacea, either.....

The assumption among gay-rights supporters -- and the time frame that's often thrown around -- is that "in 20 years" we will have full equality. If anything, however, the Prop. 8 imbroglio and its legal fallout should serve as a reminder that equality isn't a once-and-for-all achievement. Rights can be rescinded, the ground can shift again. Nor is it an eventuality. Despite Martin Luther King Jr.'s assurance, the arc of history does not bend in any direction -- much less toward justice -- on its own.

Update from the LA Times:
Lawyers for two gay couples told a federal appeals court Tuesday that they need access to internal communications from last year's Proposition 8 campaign to show that the measure banning same-sex marriage was designed to sow "discriminatory animus" toward gays and lesbians.

Supporters of the measure that ended a five-month period when gay marriage was legal in California argued before the U.S. 9th Circuit Court of Appeals that their 1st Amendment rights would be infringed and future political discussions "chilled" if they were forced to reveal the thousands of e-mails sent out to campaign associates.

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