Monday, January 11, 2010

Marriage apartheid on trial

From Ted Olson's opening statement:

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First -- Marriage is vitally important in American society.

Second -- By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third -- Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.

And yes, we are talking about that Ted Olson, the conservative who served in the Bush administrion as the 42nd United States Solicitor General. Now in private practice, Olson recently elaborated on his reasons for taking this case in an op-ed for Newsweek.

In that editorial, Olson raises a 14th Amendment "equal protection" argument. While I consider that argument sound, and while the Ninth Circuit is the most likely venue in which to successfully argue it, it's a ballsy roll of the dice. Matter of fact, some anti-apartheid activists think it may be too ballsy.

I think that the argument is right, and that it should be pressed continuously, even when there's a risk that it will be rejected.

On the other hand, there's something to be said for taking a different approach that would effectively legalize same-sex marriage nationwide: Suing for enforcement of the Constitution's full faith and credit clause.

That approach has already won the day for same-sex adoptions in Oklahoma, with two Bush appointees and a Reagan appointee comprising the panel so ruling for the 10th Circuit (Finstuen v. Crutcher [PDF]).

A full faith and credit victory against (for example) California might mean that Californians would have to travel to get married (as of right now, if you want to get married to an individual of the same sex, you can do so in New Hampshire, Connecticut, Iowa, Massachusetts or Vermont; in February, the District of Columbia will join that club), but once they did so, California would be required to recognize the marriage. Actually, the Constitution says they already are, but sometimes you have to go to court to make politicians do what the law says they have to do.

After that, I doubt it would take long for various businesses -- caterers, wedding cake bakers, florists, bridal boutique owners, you name it -- to get after state legislatures: "Why are you sending our kind of business to other states? Knock that shit off!"

Okay, Mr. X -- knock it down.

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