In front of a judge some arguments disappear

I found this article because the author, Gabriel Arana, also writes for Box Turtle Bulletin. This is an explanation of the gay marriage case on its way (eventually) to the Supremes and how risky and important it is. The article appears in The American Prospect, which is a magazine dedicated to championing progressive ideas.

The suit started last May when the Calif. Supremes said the gay marriage ban enacted a year ago is a legal addition to the state constitution. The trial at the district level begins in January. If it passes that court (likely if the judge's response to pre-trial maneuvering is an indication), it's on to the 9th Circuit Court (known for being liberal) and the Supremes.

If one is going to get gay marriage approved through the Equal Protection clause of the US Constitution it is going to affect a lot more than gay marriage. All discriminatory laws will then be challenged. In a sense homosexuality itself is on trial. That's fantastic if we win, but would be disastrous if we lose, setting our cause back by decades.

No wonder the major gay organizations are nervous and afraid that the two straight lawyers in charge don't have any skin in the game. These organizations have been trying to establish precedence at the state level before going federal. They haven't had any luck (or much chance) getting a favorable gay marriage ruling in any state court.

When is it reasonable to discriminate? In cases of public safety, such as prohibiting a 5-year-old from getting a driver's license, discrimination makes sense. Does gay marriage (and a whole host of other gay rights issues) pose a risk of public safety. Well, if you ask a Fundie you get such responses as, yes because the denial "promotes stability and responsible behavior in naturally procreative relationships" (translation: allowing gay marriage will lead to more out-of-wedlock children and higher divorce rates among straights).

The easiest (though not easy) way to strike down discrimination laws is to get the court to see gays are a "suspect class" -- gays are different, they're being picked on because of that difference, so we need to strike down laws that prevent them from being treated the same as everyone else. Yup, we have to define them as different so that they can be treated the same.

Even if a suspect class designation doesn't work, the case can be decided by saying when the laws were passed the sole motivation was ill will.

The case revolves around several arguments:

Gays are not politically powerless and can achieve appropriate gains through the political process. And how many gay marriage battles have we won? How many gay senators are there?

Sexual orientation can be changed. That's a lavender herring -- so can a person's religion and that's a protected characteristic.

Barring gays from marriage serves a reasonable purpose. Which means a great deal of the case is about what marriage is for. Changing the purpose of marriage is a risky social experiment, so we shouldn't.

Strange that when the arguments are made in front of justices instead of voters certain nasty things get left out. Nothing about what kids will be taught, nothing about forcing pastors to officiate at gay marriages. They even agree gays are not mentally ill and being gay doesn't interfere with holding a job, even agree that it isn't good to try to change orientation. Not a peep about whether being gay is morally wrong or about the homosexual agenda. And how does gay marriage harm straight marriage? "You honor, my answer is: I don't know."

So what's left?

Maintenance of tyranny of the majority. You see, Mr. Justice, gay marriage just wouldn't be legal unless the people vote to approve it. It's not enough for you, Mr. Justice, to stick your nose into this business, nor is it appropriate for a legislature to approve it and a governor to sign it.

Actually, there's a tiny bit of truth to that. It's about a shared reality, which is definitely not a legal concept. We currently don't all share the reality that a gay relationship shares nearly all of the same attributes that a straight marriage does (the exception is the way children enter the family). Roe v. Wade was decided on privacy grounds, not on abortion rights grounds. It means a woman is no longer defined by childbirth, yet women are still paid less than men. In the same way, the right to marry will not immediately end discrimination in the lives of gays. What is the role of gays in society? No different than the role of any other individual. That reality will only come when the people "vote" on it, even though no ballot might be involved.

So what outcome should we hope for? How about hoping Calif. votes for gay marriage in 2010 or 2012, making this specific case unnecessary. Even if it gets to the Supremes and they turn it down, will it really set our cause back by decades? Or will the loss ignite a grass-roots movement that storms every state legislature as well as Congress?