With the survival of Prop-Hate in California in late May there are now thirty states that prohibit same-gender marriage by constitutional amendment; thirty-seven prohibit it by statute. So, some states went double-dipping in their vehemence against gays and lesbians.
But on the sunny side, as of this writing, there are five states that allow same-sex marriage with three states promoting same-gender unions. ( http://tinyurl.com/mq8fev )
I'm not too hot with arithmetic but even I can tell there is some overlapping of statutes and amendments with a minority of states still sitting on the sidelines, waiting and waiting.
Waiting for what? Maybe the same thing I've been waiting for. A team of lawyers, financial supporters, and plaintiffs willing to put this momentous issue into it's proper frame: Shall the United States continue with this jurisprudence crazy quilt of rich progressive action and tawdry, shortsighted discrimination or blanket the country with one legal ruling that allows all adults to make their own decisions for their future regardless of gender, religion, or geographic location?
That's where the odd bedfellows Ted Olson and David Boies come in. These two lawyers, famous for being on opposing sides of the Bush v. Gore Supreme Court case that by a one-vote margin put the Bush/Cheney ticket in the White House have filed a Federal lawsuit to place an injunction on the California Supreme Court decision upholding the anti-marriage equality amendment known as Proposition 8. Their plan is to carry this lawsuit up the chain of Federal courts to the US Supreme Court if necessary in order to have a definitive ruling as to whether or not same-gendered people are covered under the 14th Amendment of the Federal Constitution, specifically the clause that all citizens are entitled to the full protection of the laws. ( http://tinyurl.com/dypxfp )
Many of the main stream civil rights and gay/lesbian advocacy organizations ( The American Civil Liberties Union, Lambda Legal, the National Center for Lesbian Rights, Freedom to Marry, Gay & Lesbian Advocates & Defenders, the Human Rights Campaign, the National Gay and Lesbian Task Force, the Equality Federation, and the Gay & Lesbian Alliance Against Defamation) are aghast at the audacity of this plan sponsored by the American Foundation for Equal Rights. ( http://tinyurl.com/ld6a2w )
I'm no legal eagle but I'm literate, follow the news, and can reason. In addition, my partner and I were among 12 other plaintiffs in the attempt by Oklahoma's chapter of the ACLU to derail the 2004 Okie version of Prop. 8, known as State Question 711 that passed with a 70+% majority vote.
The legal strategy being used by the aforementioned groups is not working to the extent that even though there are five states, as of this writing, that allow same-gender marriage, there are over 30 states that refuse to say the "M" word, having gone through the elaborate process of amending their constitutions, but allow a piece-meal, separate-but-equal granting of some of the rights of marriage such as hospital visitation, inheritance, etc., as if they were making a mosaic of the inherent rights of tax-paying, productive gay and lesbian citizens.
As I see it, there two important precedents (an important aspect of jurisprudence) from the Supremes that recognize our gay/lesbian citizenship. They are: Lawrence v. Texas ( http://tinyurl.com/br2tj ) that eliminated sodomy laws by overturning Bowers v. Hardwick (http://tinyurl.com/jus3e ), and the Romer v. Evans decision overturning Colorado's infamous Amendment 2 denying gay/lesbian citizens protection of state laws( http://tinyurl.com/49m9er ) wherein Justice Kennedy famously wrote that "[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence."
Let me add that Justice Kennedy is the famous "swing vote" on many Court decisions that are decided by a single vote. Though there have been changes in the names of the justices over the years, the legal balance of the Court is still the same: four living in the 18th century, four in the 21st century, with one bridge between them.
If politics makes for strange bedfellows and change is the buzz word for this political season, then I think it's time to change the sheets. As these two well experienced attorneys have wedded themselves to marriage equality, I wish them a happy honeymoon.
Live long and prosper, Olson and Boies!
