What Prop 8 and DOMA rulings from SCOTUS could mean

Today SCOTUS agreed to hear two of the gay marriage cases that had been submitted to them, and they were the two big ones — Proposition 8, California’s anti-gay marriage constitutional amendment, and DOMA, a law passed by Congress to prevent the federal government from granting federal benefits to those who are gay married.

The gay marriage court cases are a bit complicated because they are dealing with a few different issues.  I’ve noticed a couple people on Facebook confused about what exactly the court will be ruling on and I thought I would explain it a bit.

It should be noted that I am not a lawyer nor have I been to law school, I’m just really interested in constitutional law and prop 8.  I covered it somewhat obsessively when I lived in California.  I haven’t covered DOMA as obsessively.

PROP 8

Officially known as: HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

In 2008, California legalized gay marriage through the court system and began performing gay marriages in the state.  That fall, a constitutional amendment saying marriage was one man and one woman was passed by the general population, making gay marriage illegal again.  Immediately, the state was sued by several gay couples who wanted to be able to get married.

The original ruling, by Judge Vaughn Walker decided that the amendment was unconstitutional for several reasons, some narrow and some quite broad.  He declared gay people to be a population that had been historically discriminated against and deserving of heightened scrutiny when laws applied to them.  What that means is that, if you make a law concerning creating a “separate but equal” status or targeting a minority group in particular, the government must have a compelling interest in doing so that cannot be served by other means.  In this case, civil unions were not the same as marriage — historically we know “separate but equal” is not equal — and any denial of gay marriage was unconstitutional.

The district court issued a much more narrow ruling, saying that none of the broader things mattered to the case, but the fact that California allowed some gay people to get married during a specific period of time and then REVOKED access to that, the very specific case of Prop 8 meant that only California’s anti-gay marriage amendment was unconstitutional, but other states with anti-gay marriage amendments would not be affected by the decision.

As the decision is written, if the Court simply upholds the district court’s decision, gay marriage will become legal in California and nowhere else.  Historically, the court has tended towards narrow decisions, but because of the amount of cases it has been given and the complications of some states allowing gay marriage and others not and the general wave of public opinion it is possible that SCOTUS will write a broader opinion that will legalize gay marriage in general.

The other complication is that there is a suit also to determine whether the people participating in the suit have the right to do so, and if they don’t it can mean that none of the courts had the right to make decisions.  Basically, the government in California was like “I want nothing to do with standing on the wrong side of history, I’m not defending the amendment, it’s toxic” so other people stepped in.  California ruled that this was fine, but it’s still being brought before SCOTUS.  According to the release, SCOTUS is also considering the problem of “standing” so there is also a chance that the case will be more or less thrown out.

THREE POSSIBILITIES

1. Gay marriage is made legal in all states (Broadest ruling)

2. Gay marriage is made legal in California (What I think will happen)

3. The entire case is thrown out and who knows what happens then, it’s complicated, probably gay marriage would be legalized in California but I’m not entirely sure

DOMA

Officially known as: UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

This case is a little more straightforward than Prop 8, if only because it’s not dealing with the minutiae of state law in addition to the question of gay rights.  DOMA states that people who are gay married do not have access to federal marriage benefits.  This has been ruled unconstitutional and, like in Judge Walker’s opinion, gay people have been declared a minority deserving of special consideration.

Like Prop 8, however, SCOTUS has to consider the issue of standing and could decide that the people participating in the suit don’t have the right to do so and could then throw the thing out entirely.

I think it most likely, however, that the court will be unable to find a constitutional justification for treating some marriages granted by states as federally acceptable while others are not.  I also think that, if California will have gay marriage, it will be incredibly difficult to justify not recognizing them federally, simply because California represents such a large portion of the US population.

DOMA is not my area of expertise, though, so I’m happy to hear other feedback.

Racism, homophobia, and how I lost my dad last week

I’m sorry to be doing this over the phone, your father has forbidden me from seeing you in person.  I’m sorry, he just cannot support your lifestyle anymore, he will not be speaking to you again, he asked me to tell you.

That was my stepmother, the day after Thanksgiving, the day after she discovered I was dating someone.  Someone who was not white.  Someone who was black.  Someone who was sitting in the next room and knew what the phone call was going to be about before it even started.

Your father wants you to know that he still loves you.  But you’ve gone too far.

She won’t say the reason.  She won’t acknowledge that it is a race thing.  Like not saying “because he’s black” makes it not racist.

Your lifestyle is just not OK with him, he has bent as much as he will bend.  He has bent so much and you haven’t bent at all.

I insist on clarification, “My lifestyle?”

Yes.  Your father is an old Southern man, he was raised like that, he was raised to believe that races just don’t mix.  It was the final straw.  He loves you, he just doesn’t like you.

“So, this is entirely because he’s black?”

I told him it didn’t matter to you, that all you cared about was that someone didn’t believe in God and nothing else.  But he just can’t bend anymore. You knew this would be his reaction.

I was admittedly worried he’d disapprove, but then he’d meet the boyfriend and like him and it would be fine.  Also, my boyfriend isn’t even atheist.

We’re not telling you what to do.  If you love him, you should be with him.  But I’m going to stand by my husband, just as you some day, if you get married, will stand by yours.  We both love you, he’s just not going to talk to you.  Maybe, in a long time, he might change his mind, but I don’t think so. I think it was too much.

***

I met someone several months ago, our mutual friend introduced us and we hit it off immediately.  It’s long distance, so at first it was just days-long text and video chats, which became weeks-long, which became months-long — we only stop talking when we absolutely have to.  I don’t even know how we’ve filled up the space. And the chats became long weekends and meeting friends and Facebook status changes and negotiating holidays and what will happen when I graduate with my PhD.

He is smart, but more importantly, he is passionate and open and honest to a fault.  He was introduced to me as the “straight male ani difranco”, he makes documentaries and works for non-profits. I play the ukulele, he plays the guitar, and we compete heavily for lead singing duty.  Theoretically we will learn to sing in harmony.

I have been remarkably happy, regardless of other setbacks and challenges and the realities of life and school, I have felt very lucky to have this relationship blossom over the last few months.

He was with me for Thanksgiving, to meet my mom and stepdad and brother and rest of my family.  Except my dad.  My mother, who is much wiser than me and deserves full credit for being right, told me not to tell my dad until she could grease the wheels, but I, who wanted to make the boyfriend part of my family, foolishly overreached and talked to my father thinking that she was underestimating his fundamental human decency.

And now my father has just disowned me.

I suppose I am thankful that he waited until the day after Thanksgiving to do it.  Not that he told me, he made my stepmother his proxy as he was too angry to speak to me directly.  I have been disowned for loving someone my father does not approve of.

To be fair, we weren’t the closest of friends.  He did not approve of my liberal politics, and I didn’t approve of his crush on Sarah Palin, but we were civil and spent birthdays and Christmas together. I loved him very much, and I still do.  For whatever that’s worth. He is extremely conservative, but he’s not super religious.  It’s weird, as I think about it, I can’t think of anyone who was disowned by a non-religious parent.  I am sure I will discover it to be an illustrious club now.

As a gay rights activist, I’ve always struggled with the idea that there are people in society who think it is appropriate to punish someone for being in love.  Love is the most beautiful thing humans can experience, there’s simply no reason to deny it to anyone.  If I was reading this, without knowing the full story, I would just instinctively assume that it was a story about someone being gay, because you still often hear about people being disowned for that.  But no, this was way more 1967 than that.

I was disowned for having a black boyfriend.

Miscegenation is apparently still a problem, at least for my dad.  It’s not that I thought I was living in a world that was post-racial, I’m just unaccustomed to racism being so blatant.  Tacit disapproval, sure, but outright racist comments were, I thought, essentially the purview of Internet trolls and people who apparently exist but no one knows very well personally.

Hopelessly naive, I suppose, to think that some fifty years on people could, with some prodding, be willing to judge someone by the content of their character rather than the color of their skin.

***

1967, the year the Supreme Court forced every state to recognize interracial marriage in Loving v Virginia, seems like a very long time ago to me.  And 45 years is quite a long time.  But my dad wasn’t so young then, already in his twenties, and it’s not like South Carolina was very happy about it.  It took until 1998, which doesn’t seem that long ago at all, for the state to formally remove the anti-miscegenation laws from the State Constitution.

Things have changed rapidly.  In 2010, 15% of new marriages were interracial, a third of people report being immediately related to an interracial couple, and the overall percentage of marriages that are interracial is now 8.4%.  Among my generation, approval of interracial dating is at 94%, and among my dad’s generation, approval of interracial dating is 84%.  We have a mixed-race president!

Of course, none of that means that the problems of racism are in the past, far from it, but I’ve always felt like so much of the problem was structural and unconscious, not malicious and open.  Racial inequalities in schools, health outcomes, poverty, prison rates, drug rates, and education rates are horrific — at only 16% of the population, black people make up over half of all new HIV cases, 60% of the prison population, and 43% of murder victims in the United States.

It is important for people to acknowledge the deep iniquities in this country that need to be addressed.  It is important for people to acknowledge the depth of racism that has survived the counter-culture that we still must fight every day.  And I do not claim to be perfect on this front, far from it, just as I am not a perfect feminist, but I try.  It is important to try.

***

I keep running through my mind of what I could have done differently.  I could have followed my mother’s advice and not told him, let her try to soften the blow.  My poor mother is devastated for me, that’s worse than what happened with Dad, really — she is the best and I hate making her unhappy.

I could have pointed out all the things that I haven’t done to be a disappointment to him.  I mean, yes, I’m a liberal who supports equality, but I just keep making a list in my head of all these other things I could have done that would have been upsetting to him*:

  • I have never been a drug addict
  • I have never been a drunk or alcoholic
  • I have never killed anyone
  • I have never been arrested
  • I have never been a sex worker
  • I have never gone through a rebellious phase
  • I have never gotten pregnant out of wedlock
  • I have never failed school

I am, in general, pretty much the opposite of a fuck up, and I sit here and wonder… would my father like me better if I’d gotten drunk and run someone over and been sent to jail and dropped out of school… and I think the answer is yes and I don’t know what to do about it.

I don’t know how one goes about coping with these things.  I have a very supportive family, friends, and boyfriend.  And Dad and I were never super close.  And, perhaps there were things I could have done better, but none of them change the fact that my dad is the kind of person who would disown their only child for dating “out of race”.

And I know some will say that I’m better to be rid of him, and maybe they’re right.  Maybe it’s a relief to just be able to be myself without that particular Sword of Damocles hanging over my head, but he’s my dad.  And I’m his only kid.  Well, not anymore I guess.

I guess it’s sort of like a divorce. I don’t even think I have any insight to add to this other than the following: This still happens in 2012 in the United States.

*things that would upset him, not things that represent anything like justification for disowning someone and most of which aren’t moral crimes at all to my mind

Responding

Brief post today, as I write a not-so-brief paper and study for finals. 

I’ve been writing a lot about what not to do with respect to mental illness disclosure, so this quote from Jesse on how to respond when a friend shares, is a useful counterpoint.

So the best thing to say forever and always (no matter how repetitive it sounds) is “I love you, I care about you, and I am sorry you struggle with this. I hope to see you get better/am glad to hear that you are recovering.”

Brilliant and multipurpose.

Behold, Brute Reason!

There’s a new blogger on Freethought Blogs.

A month ago I got a text message in all caps from Miriam, head blogger extraordinaire at Brute Reason. (Text messages from Miriam are almost always in all caps.) This one said:

KATE. THEY ASKED ME.

What followed was ten minutes of me leaping about and shrieking on a train platform in Chicago. At the other end of the phone, she sounded stunned.

A week later, Miriam was on my porch jumping up and down. “It’s official!”

See, I’m pretty familiar with this new FreethoughtBlogger. After all, we live two blocks from each other, attend Northwestern with a major in psychology, and are on the exec board for NU’s Secular Student Alliance. Oh, right, and she’s one of my best friends.*

Blogging with coffee (for me) and energy drinks (for Miriam) at 2 a.m.

I actually read Brute Reason (ruining your fun since 2009!) months before I met Miriam (Fun fact: we met at a church.), mainly for the mental health content. Her archives aren’t up, but be assured you’ll like them all. Now go say hi!

*Before someone yells hivemind, I’m not on the panel of people selecting new bloggers, nor am I part of the decision-making process for writers. And if you’d read Miriam’s writing, you’ll see why she was picked in the first place.