AFTER THE GREAT DAY: the Queer Civil Rights Lawyers Full Employment Act of 2013.

Summary: After our victories in yesterday’s marriage decisions, which had the queer nation holding its collective breath, we have been able to exhale.  The world has not fallen apart, and the planet continues to rotate majestically and indifferently on its axis.  Still, things feel different.  Opponents of marriage equality continue to fulminate, and we know that the demise of DOMA will only engender further litigation to fill in the gaps and address the implications of what may well prove to be as consequential a decision for queerfolk as Brown v. Board of Education was for Americans of color six decades ago.  Yet, integrating the demise of DOMA into the way we do things will inevitably call forth bureaucratic resistance.  Such resistance will spawn lawsuits, and in the end, we may all find ourselves looking at the Windsor decision as the Queer Civil Rights Lawyers Full Employment Act of 2013.

By: Paul S. Marchand

If you felt a bit of a breeze yesterday morning, it was probably the queer nation exhaling.  We had waited and held our breath for so long, and passed so much time in fearful, fretful anticipation of how the Supreme Court might rule in its marriage cases, that the sense of relief and joy was almost palpable.  “Even better than sex,” said a friend of mine who is no stranger to queer intimacy.  Indeed, for a community that has been running on adrenaline since the marriage cases were argued, the letdown after yesterday’s victory can seem somewhat akin to withdrawal.
Perhaps the one ineluctable conclusion we can draw from yesterday’s decisions in Hollingsworth v. Perry and U.S. v.  Windsor is that litigation, like small animals having sex in dark corners, simply reproduces itself.  It ain't over yet.

I suggested yesterday that nothing will ever be quite the same again.  This morning, on the morning after, as it were, as the alarm clock went off and I growled at it, I couldn’t help but remember the observation Aleksandr Solzhenitsyn made about the coming of the 20th century in his novel August 1914, in which he suggested that the world had now moved “into a new era: that the entire atmosphere of the planet -its oxygen content, its rate of combustion, the mainspring pressure in all its clocks- had somehow changed.”  Somehow, things just feel different.

The change brought about by the marriage cases will be subtle and exquisitely difficult to quantify.  We know what marriage is, and we understand the strong case to be made for marriage equality.  What remains uncertain is where the queer nation, and the larger American commonwealth of which our queer nation is a part, actually goes from here.  How do we implement the Court’s relatively simple holding in Windsor?  What cases and controversies will emerge therefrom?

Already, opponents of marriage equality have unburdened themselves of apoplectic, splenetic, over-the-top screeds and diatribes about the awfulness of what the Court did yesterday.  Yet, even if the entire atmosphere of the planet -its oxygen content, its rate of combustion, the mainspring pressure in all its clocks-have somehow changed, life continues.  The planet continues to rotate majestically, indifferently on its axis.  People still get up and go to work today, even if some gay people will be marching into HR offices today to change their W-4 status from “single” to “married.”

The change we sought, the change we ourselves have become, will manifest itself in the smallest and most mundane ways.  The married gay man in the HR office quietly changing his W-4 status from single to married on the authority of U.S. v. Windsor may well be more of a revolutionary than all of the prideful, happy homosexuals rallying at the Marilyn Monroe statue in Palm Springs, or at West Hollywood’s iconic intersection of Santa Monica and San Vicente, in the Castro, or in the Village in New York.  The revolution will continue when the first lesbian couple amends its recent tax returns from two single women to “married, filing jointly,” and bureaucratic heads at the IRS begin to explode.

For quiet revolutionary change often calls forth stuttering, sputtering, spluttering, splenetic resistance from stubborn bureaucratic holdouts.  Our victory in Windsor was equivocal in that the Court did not address the issue of whether Section 2 of DOMA, which allows states to withhold recognition of validly contracted same-gender marriages performed in other states, improperly impinges upon the Full Faith and Credit Clause set forth in Section 1 of Article IV of the Constitution of the United States.  Moreover, to the extent that the Windsor holding does little more than declare the unconstitutionality of Section 3 of DOMA, it effectively falls to legions of federal, state, and local bureaucrats to implement the Court’s ruling.  If the churlish behavior of certain county clerks in California in response to the California marriage cases back in 2008 is any indication, we can expect a lot of foot dragging from homophobic local officials.

Given the deep divisions within American society over marriage equality, and given calls from the religious right for opponents of marriage equality to engage in the same kind of so-called massive resistance to Windsor that supporters of Jim Crow urged in response to the decision in Brown v. Board of Education, it is reasonably foreseeable that Windsor will spawn the kind of protracted litigation that Brown called forth, as refractory, reactionary federal and state bureaucrats seek to frustrate the application of Windsor through selective and unsustainable invocations of rules, regulations, and policies originally informed by DOMA’s homophobic legislative intent.

• So, will the lesbian couple seeking to amend their tax returns from “single”to “married, filing jointly” catch flak from the IRS?  

• Will the gay man in the HR office wanting to change his W-4 status from single to married encounter hemming and hawing from the pen pushers in human resources? 

• Will married queerfolk have to do battle with self-appointed conservators and enforcers of so-called traditional values? 

• Will law enforcement agencies (which have historically tended to regard themselves as custodians and conservators of what they believe ought to be correct, traditional social mores) be able to integrate into their thinking the ramifications of possible marital evidentiary privileges as asserted by married queer couples? 

• Will healthcare providers be prepared to acknowledge the right of a same-gender spouse to make critical healthcare decisions for a stricken wife or husband?

In a sense, Windsor has raised as many questions as it settles.  Administratively speaking, Hollingsworth, which simply restored marriage equality in California, may not open merely the can of worms Windsor is about to open.

In fine, Windsor has done what watershed Supreme Court decisions are supposed to do; it has settled a broad principle of constitutional law --- that same-gender marriages are entitled to the same dignity as so-called traditional marriages --- but it has left the gaps be filled on an ongoing and ad hoc basis.  We now know what the law is, and what the Constitution says, about same-gender couples in federal law.  How we apply this newly articulated constitutional principle will be the subject of infinite wrangling, tangling, and litigation.

As American society struggles to integrate the implications and ramifications of Windsor into its thinking and policies, it will be incumbent upon the queer nation not to relax too much, but to keep fighting these further, interstitial skirmishes that will become an integral part of the changed legal landscape America’s queerfolk will need to navigate.  While Windsor has clarified one issue, it can justly be referred to as the Queer Civil Rights Lawyers Full Employment Act of 2013.

-xxx-

Paul S. Marchand is an attorney who lives in practices in Cathedral City, California, where he served two terms on the city Council.  In 1993, he was one of the first attorneys in California to take on a same-gender marriage challenge.  The views contained herein are his own, and not necessarily those of any entity with which he is associated, and are not intended to constitute, and should not be construed as constituting, legal advice.  No haters allowed: comments containing personal attacks will not be approved for publication.