KEEPING TRYST WITH DESTINY:

KEEPING TRYST WITH DESTINY:


Summary: More than 40 years after two gay Minnesota activists unsuccessfully sought a marriage license, marriage equality took a huge step forward today as the Supreme Court held unconstitutional the so-called Defense of Marriage Act, and dismissed for want of standing washed out Republican Dennis Hollingsworth’s feckless attempt to keep alive California’s unconstitutional Proposition 8.  The queer nation has kept the tryst with destiny we made so many years ago.  The pledge of ultimate equality and first-class citizenship we made to ourselves so long ago has been redeemed, not wholly or in full measure, but very substantially. The soul of the queer nation, so long suppressed, has found utterance, and nothing will ever be quite the same again.   Be fierce.  Be proud.  Great days lie ahead.  
  
           "Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially."
            -Jawaharlal Nehru, addressing the Indian Constituent Assembly, on the night India  became independent, August 14-15, 1947.

Lo, it has been almost two generations that we queerfolk have been fighting what had seemed an unwinnable battle for legal recognition of our right to marry.  Today, we may have turned a great corner in that ongoing fight, winning a pair of victories that, while equivocal, may nonetheless represent game-changers.

On May 18, 1970, Richard Baker and James Michael McConnell unsuccessfully applied to the clerk of the Hennepin County, Minnesota District Court for a marriage license.  On December 19, 1990, three same-sex couples also applied unsuccessfully for marriage licenses at the Hawai’i Department of Health.  While Baker and McConnell’s early appeals were unavailing, the Hawai’i couples’ appeals two decades later produced what was for the time a startling result.  In Baehr v. Lewin (1993) 74 Haw. 530, 852 P.2d 44, the Hawai’i Supreme Court held that the state would have to show a compelling justification for restricting marriage to opposite-gender couples.

In 1996, in a classic example of what Lyndon Johnson once called “frontlash,” the Republican dominated Congress passed, and Bill Clinton (in one of his more unfortunate capitulations) signed the so-called Defense of Marriage Act (DOMA), largely motivated by homophobic Republican Congressional desires to keep us uppity queers from enjoying even a tithe of the civil rights taken for granted by our straight neighbors.

The subsequent history of the fight for marriage equality is almost too well known to require further recapitulation.  Civil Unions, which had emerged at the end of the 20th century as a possible “Plan B” option, soon gave way to growing insistence that marriage by that name, and not some other, was the only constitutionally defensible posture for the queer nation to adopt.

Here in California, the sad history of Proposition 22 and Proposition 8, both heavily bankrolled by the Mormon and Roman Catholic churches, bore witness not only to the challenges facing the queer nation, but also to California’s deplorable history of using the ballot box to discriminate against disfavored minorities.

As always, the remedy available to those who have been unfairly discriminate against lies not in so-called direct action, but in litigation challenging the constitutionality of discriminatory laws.

When the constitutionality of Proposition 8 was challenged, the trial, conducted in the federal court for the Northern District of California before District Judge Vaughn Walker, was almost a travesty.  Against overwhelming evidence submitted by the plaintiffs challenging Proposition 8, the supporters of the marriage ban presented a laughably weak showing.  When the Ninth Circuit agreed on the merits with the Northern District, grandstanding, termed-out sometime Republican state Senator Dennis Hollingsworth was permitted to butt in and petition for certiorari in the U.S. Supreme Court.  When the Court granted cert, it had the effect of staying the Ninth Circuit’s affirmance of Vaughn Walker’s District Court ruling holding Proposition 8 unconstitutional.

 When Edie Windsor took issue with the federal government charging her more than $300,000 in estate tax because it did not recognize the validity of her marriage to her late wife, Thea Spyer, she challenged DOMA, contending that DOMA’s federal definition of marriage as being only between a man and a woman was flatly unconstitutional.

Today the Supreme Court sent Dennis Hollingsworth back to the pit of political opportunism he bubbled up from, and slapped Congress’s chops for it, holding in Hollingsworth v. Perry that Hollingsworth’s grandstand play against marriage failed for want of standing, and that Edie Windsor was right, and that DOMA was indeed unconstitutional.

Today, American queerfolk have good reason to celebrate.  Yesterday, posting in this blog, I speculated that the Court might either dismiss Hollingsworth as having been “improvidently granted,” or dismiss it for want of standing, given that Dennis Hollingsworth was nothing more than a cynical termed-out Republican politician looking for a vehicle to inject new life into his aspirations of running for statewide office.  If the Court chose to swing for the fences, I suggested, it would do so in Windsor.

Certainly, Justice Kennedy’s majority opinion in Windsor contains strong suggestions that, as a matter of federal law, Congress may be as constitutionally constrained from enacting legislation simply to express its disapproval of queerfolk as individual states have been so constrained since the Court’s ruling in Romer v. Evans (1996) 517 U.S. 620, in which Justice Kennedy himself, writing for the Court, struck down a Colorado constitutional amendment that specifically prohibited any form of legal protection for queerfolk in Colorado.

To a certain extent, therefore, one of the possible lessons to be drawn from Windsor is that Romer may now be as applicable to acts of Congress as it has been to acts of state legislatures or to state ballot initiatives.  Certainly, Windsor, which had not enjoyed as much attention here as Hollingsworth, is the more consequential of the two decisions, since it reached the merits of the issue in a way Hollingsworth shied away from.

Now, in all candor, I must admit that certain friends of mine, who still nurse a considerable amount of righteous moral indignation over the institutionalized homophobia of so many government institutions throughout the country, may not agree with me that we have won two fairly substantial victories this morning.  Yet, we should, like William Hurt’s character in Kiss of the Spider Woman, enjoy what life offers, and have a piece of avocado, because it’s a long time till lunch.  My friends who reject the good tidings of this morning should remember not only how long it is till lunch, but also should ask themselves whether carping over the limitations of a victory so significant really advances the larger cause of full first-class citizenship for queerfolk.

As much as I would emerge my unsatisfied friends to have that metaphorical piece of avocado and enjoy it, I would also urge moderation on some of the more ideological separatist fellow travelers who believe that the Court should simply have rejected the entire institution of marriage altogether.  Such a view may be attractive to Uber-libertarians, but from the perspective of a society steeped in respect -- even reverence -- for the rule of law and for a constitution many of its members have neither read nor understood, a libertarian rejection of marriage is unrealistic and unsustainable.  We know what marriage means; we understand the implications and ramifications of marriage; that’s why we queerfolk has sought for so long to be able to have our lawfully plighted troths recognized as authentic marriages, not only in the states that permit them, but also by the federal government.

Last night, as I passed the long hours of darkness in fretful sleeplessness, alone and without the reassuring presence of another man next to me, I found myself hoping for what became this morning’s outcome.  I recalled the words Jawaharlal Nehru addressed to the Indian constituent assembly on the night the world’s largest democracy became independent in 1947.  “Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially.”

Long years ago we, too, made our own tryst with destiny, and now the time has come when we, too, redeem our pledge, not wholly or in full measure, but very substantially.  While the world goes about its business, our queer nation takes a great step forward toward full and authentic participation in the American commonwealth.   As Nehru also observed, “[a] moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance.” Nothing will ever be quite the same again.

Be fierce.  Be proud.  Great days lie ahead.

-xxx-

Paul S. Marchand is an attorney who lives and practices in Cathedral City, California, where he served two terms on the city Council.  Two decades ago, he was one of the first attorneys in California to litigate a marriage case.  After almost a generation, he may perhaps be excused in feeling a slight sense of vindication this morning.  The views contained herein are his own, and are not intended to constitute legal advice.