Jack & Jill Politics

The following is my 2 cents on the whole issue of Prop. 8 and gay marriage. I would like for this thread to encourage others to educate on this issue and perhaps begin building bridges between groups.

Unfortunately, this has become yet another text-book example of the type of reactionary politics that has doomed progressive groups over the past 40 years.

I apologize in advance for the long rant/post:

****the following is NOT legal advise****

It’s been a few years since I’ve looked at gay rights jurisprudence (and someone please feel free to jump in if this is your area of expertise) . . .

I personally see gay marriage as a basic civil rights issue. However, I also know that it’s not enough to simply slap a “civil rights” sticker on a cause and expect everyone to follow suit (which is what seems to have happened in CA).

Where was all of this passion and discussion on November 3rd??? Or did we just assume it would pass because people called it a “civil rights” issue and drew parallels with the black Civil Rights Movement?

Look, I’ve had problems with the religious right as well (and, no, religious affiliation alone does not make one intolerant). But the left will continue to get its a*s handed to them so long as they continue to underestimate the intelligence, dedication and organizational power of the religious right.

As far as I can tell, the outreach, education and mobilization was poor in comparison to the religious right on this issue. This is not a critique on the merits of gay marriage. . . it’s a critique of the strategy employd by gay rights activists.

But this is just scratching the surface. There’s a lot more behind this issue (read below . . . again, I apologize for the long post) . . .

WHERE IS THE STRATEGY???

Listen . . . there is a legal and political strategy to gay rights as “civil rights” that is sorely lacking in our public discourse. That’s just plain laziness on the part of progressive activists.

I see people protesting all over the country right now. That’s great. Just one question . . . what the hell are people protesting for??? Meaning, what is the objective? What is the goal? What is all of this protesting supposed to produce? What is all of this protesting supposed to change after the fact? Protest is NOT enough!

The initiative has already passed. The votes have already been counted. What do people expect to gain from protesting on Nov. 5th that they couldn’t have secured through better organization on November 3rd?

If people are protesting just to make a statement, fine. It never hurts to have your voice heard.

But I’m seeing way too much emotion and not enough strategy, here. Don’t take this the wrong way. This is obviously a very emotional subject. But my concern is addressed to those activists who are entrusted with putting emotion aside to actually create a plan.

Why aren’t people discussing the following (*again, this is NOT legal advise*):

The next step in this system of checks and balances is to take the issue back to the courts. Only this time, the goal is to argue that the law banning gay marriage in CA is unconstitutional.

That’s how this thing works. There are a multitude of ways to argue this, but the goal of gay rights activists should be to construct a clear and persuasive LEGAL argument that this law is unconstitutional.

This also applies on a larger scale. The way I see it, gay rights activists have a couple of paths to argue equal rights under the law:

1. Gay rights as a matter of PRIVACY; and/or

2. Gay rights as a matter of civil rights/immutable trait.

You have to think this thing through.

Option #1argues that discriminating against homosexual conduct is unconstitutional because homosexual conduct (like heterosexual conduct) is a PRIVATE ACT between consenting adults. There should be a researchable, legal argument behind this as a logical expansion of the right to privacy.

In fact, JJP commenter, CraigHickman astutely notes that the U.S. Supreme Court laid the foundation for a potential challenge. I assume he’s referring to Lawrence v. Texas, 539 U.S. 558 (2003). CraigHickman notes:

This very Supreme Court already laid the groundwork for declaring any state of federal law against gay marriage as unconstitutional when it struck down anti-sodomy laws on the premise that they are covered by the right to privacy.

And this very Supreme Court already told us as much. It practically invited a gay marriage case to be brought forth . . .

Lawrence v. Texas overruled one of the worst legal opinions in the history of the U.S. Supreme Court, Bowers v. Hardwick, 478 U.S. 186 (1986), a case that misconstrued the legal question from it’s correct issue of privacy, to a distorted matter of whether homosexuals had a constitutional right to sodomy. Well, the issue wasn’t whether anyone had a right to homosexual sodomy, but rather whether consensual sexual acts between homosexuals should be afforded the same privacy rights as those given to heterosexual couples.

Lawrence v. Texas fixed this error by the Court. Not surprisingly, the foundation for this path to equality lay in case precedent regarding fundamental rights under the Due Process Clause of the 14th Amendment:

“In Planned Parenthood of Southeastern Pa. v. Casey, 585 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the choices, we stated as follows: ‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.'” (emphasis added) Lawrence v. Texas, (2003)(quoting Planned Parenthood of Southeastern Pa. v. Casey, 585 U.S. 833 (1992)).

Option #2 argues that discriminating against homosexuality (not necessarily limited to conduct) is unconstitutional because institutions should not be allowed to discriminate on the basis of immutable characteristics (i.e., discriminating against people because they are born gay – just as people are born black, male, female, etc.).

Gay rights activists can take one or both of these strategies. But they need to understand that doing so will require much more strategy than they’ve demonstrated so far. Too many progressive groups romanticize the Civil Rights Movement without ever taking time to appreciate the fact that there was a deliberate strategy to nonviolent disobedience, etc. (this has long been a major beef I have with black “leadership” today).

A study of black history shows centuries worth of building blocks that took place before we even got close to the Civil Rights Act of 1964 (and even now, we still have a long way to go in making “equality” as viable in practice as it promises in theory).

If you’re going to argue that gay rights are civil rights because of an immutable trait, then you’d better have an argument to convince the U.S. Supreme Court to treat sexual orientation as an inherently suspect classification worthy of strict scrutiny under the law.

And if you’re going to do that, then you’d better be prepared to argue and convince the courts that homosexuality is NOT a choice, but rather a way people are born. You will have to seriously tackle honest questions that even those empathetic towards the gay rights movement might still have. Such as:

1. If one can become gay after years of living “straight,” then why can’t they become “straight” after years of living gay? If so, doesn’t this imply nurture over nature?

2. If homosexuality is not a choice, then how does one reconcile those who are bisexual (bisexuality implies a fluid choice of sexual preference between men and women)?

Do NOT scoff at such questions. As legitimate or petty as they might seem to some, these are the types of questions a court (particularly a conservative court — U.S. Supreme Court still has a 5/4 conservative lean) will consider when determining whether or not to apply strict scrutiny to laws based on sexual preference/orientation (such honest dialogue might also go a long way in educating and building coalitions with other groups).

This will require medical and scientific studies. Expert testimony and amicus briefs. And don’t for one second fool yourself into assuming that the religious right doesn’t already have such documents ready to go if they need them.

So again, a legal argument would go something like this:

1. The law passed by Prop 8 is unconstitutional because . . .

a. it denies Privacy/Due Process, 14th Amendment and/or;

b. it discriminates on the basis of an immutable characteristic.

I personally think that option “A” is easier to argue in a center-right judicial branch. However, option “B” might have a greater payoff.

Strict scrutiny is key if you choose option “B” (there are other levels, but why not go for the golden standard if possible). “Covering” one’s sexuality is an obstacle to this legal argument and political approach (though not necessarily disqualifying).

I can’t “cover” the fact that I’m black. However, it’s important to note that the courts granted an inherently suspect classification to race in response to centuries worth of slavery, a Civil War, the Civil War Amendments, internment camps, and a century of Jim Crow . . . all during which time the United States legally sanctioned blacks as, not only being second-class citizens, but also being less than human (actual property and 3/5 of a person).

Indeed, the courts have frequently concluded that race has a particularly invidious quality to it that should immediately raise a red flag when it comes up.

All of this means that the courts had no choice but to determine that race had such a troubled past in this country’s history that ANYuse of race in the law is inherently suspect (btw. . . this same standard is used when discussing racial preference policies such as affirmative action — it works both ways).

Race, religion and national origin are treated with strict scrutiny. . .

Gender is treated with “heightened scrutiny” (not as high as strict scrutiny, but still pretty high) . . . look at the history and ultimate failure of the Equal Rights Amendment (ERA) to see how it’s passing might have moved “gender” into that same protected class as race, religion and national orientation.

Sexual orientation/preference is treated with a “rational basis standard”. . . a very low standard/threshold that is easy to cross if you want to discriminate on the basis of sexual preference/orientation.

I’m tired of seeing progressive groups rely on emotion in their attempts to obtain civil rights. LESS EMOTION, MORE STRATEGY.

The emotional appeal is inherently flawed. People should not have to sympathize with your cause before you’re able to get equal rights . . . sympathy should not necessarily be a prerequisite for equality . . . (btw, depending on the state, don’t assume that “marriage” is necessarily a “right” recognized and granted to everyone under the constitution . . . yet another legal trap for emotional arguments . . . but that’s another discussion).

It’s a mistake to try to equate the gay movement with the black Civil Rights Movement. Yes, there are definite parallels, but there are also many differences. It’s gonna be a lot harder to build bridges and alliances between these two groups so long as some try to operate from the position that our struggles are the same. A lot of black folk don’t see it like that.

The gay rights movement is different from the black Civil Rights Movement in various ways. That does not make it any better or any worse. . . and it certainly does not make it any more or less deserving of our full attention and support. But we can’t expect progress if we keep trying to pretend that every injustice (and I do agree that Prop 8 is an injustice) is the same. Where there are similarities, we should educate ourselves and each other to build a stronger coalition. However, where there are differences, we must be flexible enough to deal with those distinctions on their own terms (which means new approaches to new problems).

However, this constant reactionary politics from the left always gets us in trouble. The religious right is not reactive on this issue, they are proactive. And we’re the ones stuck in a shameful implicit race to the bottom of the totem pole of oppression . . .which has been the knee-jerk reaction to the passing of prop 8. . . “blame the blacks” .. . “I’m more oppressed than you” . . . competitive victimology . . .

predictable nonsense. . . .to easy to divide and conquer.

****reminder . . . The following is not legal advise****

The challenge is much greater. Which is why I think it’s far too simplistic to keep comparing each and every injustice to the Civil Rights Movement. Especially when the parallels aren’t necessarily there.

Again, I have a similar beef with black leadership today. It’s time we stop milking the sentimentality of the Civil Rights Movement and come up with new strategies to affect change. Our ideas have grown stale and predictable. This is one of the reasons I supported Obama’s candidacy . . . NOT to push the old guard out, but to let more of the new guard in.

We’ve grown accustomed to believing that every social issue fits neatly within the mold/template of the Civil Rights Movement. They do not. And while there are clear emotional connections to the past in theory, they do not necessarily translate to effective change in practice.

For example: Comparing gay marriage to Loving v. Virginia is an emotional tactic. The analogy works until one realizes the fact that sexual preference/orientation is NOT a suspect classification. Sure, it’s a legal distinction, but it makes a big difference if you plan to argue same-sex marriage, as immutable trait, before the U.S. Supreme Court (which is where I think this issue is headed).

The gay rights movement will have to jump through a series of hoops (fair or unfair) before it convinces the Court that homosexuality is an immutable trait (that’s if the gay community even decide to go that route). That, along with a well-documented history of anti-gay discrimination, is the key to obtaining strict scrutiny under the law.

In Loving v. Virginia, 338 U.S. 1 (1967) the Court acknowledged the suspect classification of race in its reasoning:

“Over the years, this Court has consistently repudiated ‘(d)istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny,’ Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.” (emphasis added)

This entire quote is “strict scrutiny” jurisprudence. And it’s a privilege of legal rationale that, at this moment, is not granted on the basis of sexual orientation/preference. This is a big missing piece from the puzzle of gay equality.

It’s hard to avoid strategical calculations when discussing civil rights. Indeed, I still believe Loving v. Virginiamight not have turned out the way it did had the petitioner been an interracial couple composed of a black man and a white woman (but that’s another discussion altogether, dealing with the sexual politics of bm/wf interracial couples).

My guess is that the gay rights activists want to go in this direction of immutable characteristics. But it’s going to take a lot more strategy to get there than simply invoking the spirit of the 1960s Civil Rights Movement. Indeed, it will take a dedicated effort to educate and build coalitions with other groups to get there.

So when I talk about strategy, I’m asking for gay rights activists to lay out an effective political and legal argument . . . this is not based on emotion, but on case precedent and pragmatic politics.

When I talk about political strategy, I speak of the need to openly discuss the issue of “covering” as it relates to the gay community. I believe that this “covering” serves as one the biggest obstacles in black/gay coalition politics. For the most part, blacks can’t sympathize with “covering.” I think a lot of us see it as a privilege, not a burden. . . which is why comparing the two struggles of blacks and gays is often a non-starter.

Strategy, education and outreach is the path to success. Unfortunately, I think the political left is lacking on all three fronts at the moment.

I’m not denying anyone’s right to feel emotionally about this subject. But emotion won’t win gay equality under a rightward-leaning judicial branch.

Find a way to strategize together. This is chess, not checkers.