Written by Skeeter Sanders   

With Two Federal Courts on Opposite Coasts Declaring That the Federal Defense of Marriage Act and California's Proposition 8 Both Violate the Fourteenth Amendment of the U.S. Constitution, Foes of Marriage for Gay and Lesbian Couples Fall Into Siege Mentality as a Final Ruling by the Supreme Court Is Now All But Inevitable



NOTE TO READERS: This week's column -- my first since returning from a two-week vacation -- is being published a day later than usual, due to unexpected travel delays that resulted in my returning home too late for my Monday-night deadline. I apologize for the delay. Next week's column will appear as usual on Tuesday, August 16.

By SKEETER SANDERS

Time appears to be running out for opponents of marriage rights for gay and lesbian couples.

Within the space of a month, two federal courts -- one in Massachusetts, the other in California -- have ruled that laws that prohibit same-gender couples from marrying or deny federal recognition to such marriages are unconstitutional under the equal-protection clause of the Fourteenth Amendment.

In San Francisco, U.S. District Court Judge Vaughn Walker ruled last Wednesday that Proposition 8, a voter-approved measure that bars gay and lesbian couples from marrying, "fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license" and, in fact, "does nothing more than enshrine in the California constitution the notion that opposite-sex couples are superior to same-sex couples."

Judge Walker's ruling came just weeks after another U.S. District Court judge in Boston struck down the 1996 federal Defense of Marriage Act. Judge Joseph Tauro ruled May 8 that DOMA, as the law is commonly known, unconstitutionally denies federal spousal benefits to married gay and lesbian couples in Massachusetts -- where same-gender marriage has been legal since 2004 -- in violation of the Fourteenth Amendment and intrudes upon the state's exclusive authority over marriage under the Tenth Amendment.

With a final decision by the U.S. Supreme Court now all but inevitable -- and which potentially could produce at least a 5-4 majority to uphold the lower court rulings -- some foes of same-gender marriage already are reacting with paroxysms of paranoid hysteria, with a niece of civil rights icon Dr. Martin Luther King Jr. going so far as calling such marriages "genocide."

ANTI-GAY PARANOIA ON FULL DISPLAY AT RALLY IN ATLANTA

Speaking at a sparsely-attended rally in Atlanta called by the right-wing National Organization for Marriage, Alveda King denounced same-gender marriage. "I don't know about you, but I'm not ready to be extinct, and none of us wants to be," she said. "So we don't want genocide! We don't want to destroy the sacred institution of marriage!"

King insisted that "It is statistically proven that the strongest institution that guarantees procreation and continuity of the generations is marriage between one man and one woman" -- ignoring the fact that advances in medical technology have made it possible since the late 1970s for gay and lesbian couples to procreate through in vitro fertilization and artificial insemination.

Alveda King's opposition stands in stark contrast to that of her late aunt, Coretta Scott King, who spoke out in 2004 in support of same-gender marriage and against a proposed federal constitutional amendment to ban it.

"Gay and lesbian people have families, and their families should have legal protection, whether by marriage or civil union," she told USA Today. "A constitutional amendment banning same-sex marriages is a form of gay bashing and it would do nothing at all to protect traditional marriages."

The NOM rally drew only about 35 participants, who were outnumbered by more than 300 counter-demonstrators, who voiced their approval of Walker's decision.

RIGHT-WING PUNDITS GO BERSERK, ATTACK JUDGE WALKER

Predictably, right-wing pundits went berserk, attacking Judge Walker for alleged "judicial activism" and "judicial tyranny," in the words of the Heritage Foundation's Chuck Donovan. Donovan called the ruling "an affront to the millions of California voters who approved Proposition 8 in 2008 after months of vigorous public debate."

Robert Knight, a senior writer and correspondent for the right-wing Coral Ridge Ministries, went farther: He accused Judge Walker of having "embraced the false premise that homosexuality is morally irrelevant or even something to be promoted through public policy" and denounced his ruling on Prop. 8 as a display of "contempt for the rule of law” and even part of "the criminalization of not only Christianity but of the foundational values of civilization itself."

Meanwhile Representative Lamar Smith (R-Texas) sought unsuccessfully to push for a resolution in the House during its one-day session on Monday condemning Judge Walker's ruling. He attacked Walker personally, pointing out the fact that Walker is gay. "For one openly homosexual judge to toss aside seven million voters (and 45 state laws on marriage if this case advances) is the height of government arrogance." he said. "And it's certainly not good public policy. A society without accountability or moral boundaries is a society that will not long survive."

But Judge Walker is no liberal. A conservative jurist who was nominated by President Ronald Reagan in 1987, Walker's nomination was stalled for two years by Senate Democrats who objected to his membership in an all-male private club and to his having been the attorney representing the International Olympic Committee and the U.S. Olympic Committee in its 1982 copyright-infringement lawsuit against the organizers of the first Gay Games in San Francisco, originally dubbed the "Gay Olympics."

Two dozen House Democrats, led by now-Speaker Nancy Pelosi (D-California), whose district includes San Francisco, opposed Walker's nomination because of his alleged "insensitivity" to gays while representing the IOC and USOC. Walker was renominated in 1989 by President George H.W. Bush and elevated to Chief Judge of the U.S District Court for Northern California in 2004 by President George W. Bush.

IT'S THE FOURTEENTH AMENDMENT, STUPID!

Of course, Donovan, Knight, Smith and other right-wingers conveniently ignore the fact that those seven million Californians who voted for Prop. 8 did so in direct defiance of the Fourteenth Amendment of the Constitution, which states quite explicitly that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

As former Solicitor General Ted Olson, the conservative half of the legal team that brought suit against Prop. 8, said in an August 8 interview on "Fox News Sunday," the U.S. Supreme Court has fourteen times since 1888 -- most famously with its landmark 1967 Loving v. Virginia decision that struck down laws that banned interracial marriages -- "articulated that the right to marriage is a fundamental right. We're not talking about a new right here."

When reminded by host Chris Wallace that seven million Californians voted in favor of Prop. 8, Olson shot back that six million Californians voted in the 1960s "to change their constitution to say that you could discriminate on the basis of race in the sale of your home. The United States Supreme Court struck that down" as a violation of the Fourteenth Amendment.

"We do not put the Bill of Rights to a vote," he said.

Olson noted that the high court has repeatedly defined marriage "as the most fundamental relationship we have in this country," one that cannot be denied to certain individuals because of their race, nationality, religion or creed. Nor, Olson argued, should it be denied to certain individuals because of their gender.

HOW WILL THE SUPREME COURT RULE?

While both sides in the same-gender marriage fight now concede that the issue will ultimately be decided by the Supreme Court, no one can predict how long it will take before the justices will finally take up the case. Nor can anyone predict which case the justices will take up first: The Prop. 8 case, known officially as Perry v. Schwarzenegger, or the Massachusetts case against the federal Defense of Marriage Act, known officially as Massachusetts v. U.S. Department of Health and Human Services.

Although both U.S. District Court judges -- Walker in San Francisco and Tauro in Boston -- invoked the Fourteenth Amendment's equal-protection clause, the Massachusetts case differs substantially from the California case in that whereas Prop. 8 barred gay and lesbian couples in California from marrying, DOMA denied federal spousal benefits to already-married gay and lesbian couples in the Bay State, where same-gender marriage has been legal for six years.

Judge Tauro ruled that DOMA also violates the Tenth Amendment, "by forcing the Commonwealth [of Massachusetts] to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs."

IT'S UP TO JUSTICE KENNEDY WHICH WAY THE HIGH COURT WILL GO

No one expects the Supreme Court's four conservatives -- Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts -- to be sympathetic to the notion that gay and lesbian couples have a constitutional right to marry. Likewise, no one expects the court's three liberals -- Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor -- nor its newest justice, Elena Kagan, to favor denying full marriage rights to gay and lesbian couples, either.

That leaves it up the court's ninth justice, moderate-conservative Anthony Kennedy, to be the pivotal fifth justice. And given the fact that Kennedy wrote the majority opinion in two previous cases that gays won (Romer v. Evans in 1996 and Lawrence v. Texas in 2003) as well as a separate opinion concurring with the majority in a third ruling in June seen as a victory for gays (Christian Legal Society v. Martinez), the odds are very good that if the justices agree to take up the Prop. 8 case, the court will split at least 5-4 in favor of affirming Judge Walker's ruling.

Is it any wonder, then, that some opponents of same-gender marriage are plunging headlong into paranoia? They know that the votes aren't there in Congress to pass a constitutional amendment to ban same-gender marriage -- that's already been tried in 2005 when the Republicans controlled Congress and it failed to garner anywhere near the two-thirds majorities in both houses required for passage.

So as the battle over same-gender marriage heads inexorably toward the final showdown in the Supreme Court, expect even more extreme rhetoric from the far right, as their paranoid homophobia become more and more transparent.

# # #

Copyright 2010, Skeeter Sanders. all rights reserved.