HEADLINES AND FACEBOOK statuses have been declaring “DOMA is dead!” and other such hyperbole since Wednesday’s two U.S. Supreme Court rulings on marriage equality. Naturally, the LGBT community was overjoyed at the news with a rally outside The Stonewall Inn bringing gays and politicos together. An historic moment in LGBT rights warrants some celebration, even if the decisions are less than what gays hoped and less than the Supreme Court decision in Loving v. Virginia, the case most resembling the Prop 8 battle.
I went to the rally, camera in hand, expecting to see the joyous faces of those who had been so worried while the SCOTUS decisions were being awaited. What I saw and heard was not a photo op: men and women, cautiously joyful, wandering through occasional bursts of enthusiasm. There was introspection, wonder, maybe even shell-shock. I went to the rally with a need for solidarity, feeling relief more than anything but the mood at the New York “victory” rally was like the tenuous ripples of a child stepping into a still lake. The water feels good, but what lies beneath? Was it trepidation or the cynicism often attributed to New Yorkers? Realism or pessimism?
The week in politics has been like being hit with a phaser set to stun. And I am not quite ready to rejoice.
Oh, don’t get me wrong, I’m satisfied that the SCOTUS decisions came down as they did. But the feeling I have is relief more than joy. Satisfaction instead of supercalifragilisticexpialidocious. Here’s why:
A cornucopia of decisions from the U.S. Supreme Court has put me on the defensive. A key section of the 1965 Voting Rights Act was struck down by the conservative Five Man Constitutional Demolition Derby: Alito, Roberts, Thomas, Scalia and sidekick Kennedy in Shelby County v. Holder. (Majority opinion: Roberts.) This same week, in Salinas v. Texas that same team of justices decided that the “right to remain silent” isn’t actually one of our rights after all. (Majority opinion: Alito.) Then, on the state level, there was Wendy Davis’ skirmish with the Texas legislature. (What the frack is going on over there in Texas?!?!)
The ongoing battle to recognize two previous U.S. Supreme Court decisions upholding Roe v. Wade, (Webster v. Reproductive Health Services and Planned Parenthood v. Casey) reached a pinnacle in Davis’ monumental filibuster. Though Davis and the Democrats claimed victory, that celebration was also held in check by Governor Rick Perry’s insistence on yet another special session of the legislature in which he and his cronies would try to pass their restrictive abortion regulations: this after the GOP’s blatant attempt to skirt the rules. Lawlessness seems the law of the land.
The legislators who cry foul at any government attempt at regulation are willing to spoil the fruits of democracy by regulating abortion out of existence. Then, monitoring Davis’ filibuster to every late dot of every last “i” of the law, they sullied those same regulations – and their own integrity – by attempting to steal the vote. By midnight on the 26th when voting on the bill had been successfully stalled by Davis’ filibuster, the GOP kept going, releasing altered computer records which showed the vote as having taken place before midnight on the 25th.
In one of those Facebook debates which, vacuum-like, sometimes pulls me backwards into a hollow coil of loathing, a self-identified Libertarian friend of a friend criticized me for saying this (in regard to regulations on the financial industry): “If history teaches us nothing else,” I said, “it ought to teach us human nature is fallible; that people will always commit crimes.” Her response was to criticize me for not being optimistic. “You don’t have a very positive outlook on human nature. You ought to trust people more.”
You mean the same way Wendy Davis trusted the Texas legislature would follow its own rules?
The Constitution wasn’t written because people are nice. My suggesting that human beings have lied, cheated, stolen and murdered to get what they want is not some fantasy I invented to prove a point. The debacle made of Davis’ filibuster by the mendacity of her Republican colleagues (both men and women, I might add) exemplifies my point. For both selfish reasons and purposes believed to be just, human beings have proven themselves capable of all manner of crimes from the small to the horrific. “Nice” and “trust” and “positive outlook” are not part of the equation of law.
The members of the Texas legislature, despite the outcry from the public, may feel justified in cheating, just a little bit, to get their vote through but those same conservative representatives, held Ms. Davis’ Nike-clad feet to the fire during the thirteen hours she stood on them. The legislators do not get to create a different set of rules for themselves simply because they believe their cause is “just.” A thief can justify thievery but that doesn’t make him less of a thief.
Has our country become a place where winning is everything regardless of how you play the game? Win at all costs. Say the most outrageous thing you can to get people on your side and cheat if the rules are in your way.
A tweet by Bryan Fischer of the American Family Association, whose notorious Twitter feed seems like the work of a skilled, internet troll, caught my eye in a retweet. After the DOMA and Prop 8 decisions were handed down, Fischer claimed the result of the ruling would be normalization of polygamy, pedophilia, incest and bestiality. (Here’s a brain teaser for you: Tell me in 140 characters or less what bestiality has to do with incest. I’m still trying to figure that out. Tweet me @TomGGualtieri.)
Dan Savage, only moments after Twitter and Facebook feeds were set aglow with the news of the LGBT victories in at the Supreme Court, posted this reminder:
The success of the 1965 Voting Rights Act, a keystone in civil rights law, has depended upon a provision which indicates that voting jurisdictions in states with histories of discrimination are required to get Federal approval before a change in their voting regulations. Those jurisdictions which can prove non-discriminatory behavior for a period of ten successive years can “bail out,” in other words; be free of regulations of the Act.
The Roberts opinion on Shelby County v. Holder is not without logic: it states that the data used to create a formula for jurisdictional oversight by the Federal government is outdated by almost 50 years. Yet, it is the very success of VRA which makes it necessary, as stated in the dissent, written by Justice Ginsburg. Additionally, she says, Congress re-approved Section 5 (the provision upended by the 5-4 majority decision) of the VRA, and the Supreme Court has no jurisdiction to override what was voted upon by the US Legislature:
With overwhelming support in both Houses, Congress concluded that, for two prime reasons, Section 5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.
Roberts and his team felt that because the Voting Rights Act was successful in reducing discrimination and increasing minority turnout at the polls, that Section 5 should be abolished.
The politically awake, sighing with relief over the DOMA and Prop 8 decisions on Wednesday, celebrated in the shadow of the shots fired into the Voting Rights Act, the gutting of our right to remain silent in Salinas v. Texas, and continued attacks on abortion rights, which have attempted to chip away at Roe v. Wade consistently since its overwhelming 1973 victory (by a 7-2 majority.)
DOMA isn’t dead. It’s just wounded. The lower court ruling on Prop 8 – that it is unconstitutional – remains in place after the Supreme Court decision (by the unlikely SCOTUS majority of Breyer, Kagan, Ginsburg, Roberts, and Scalia.) Marriage laws have been left to the states even though Loving v. Virginia - the landmark interracial marriage case of 1967 - overturned state laws against interracial marriage. The DOMA and Prop 8 decisions are basically good news, but the fight isn’t over.
The essence of our democracy is fair play: checks and balances in our government and equality in our freedoms and under our laws. You should be as free as I to pursue happiness. You are also bound by the same laws. Race, gender, religion, sexual orientation and secularism still present challenges to those who believe there should exceptions when they feel threatened or insecure or paranoid.
On the 40th Anniversary of the case that bears her name, Mildred Loving said:
I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry… I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.
Mildred and Richard Loving were, like Edie Windsor, unlikely activists whose private lives were subject to public scrutiny for the benefit of our rights. We can rally behind them and leaders like Wendy Davis (a single mom at 19, filibustering now for the right to choose). We must also remember that Davis’ labor would have been in vain without the citizens at the Texas legislature who cried “foul” when they smelled the stink of corruption.
We must not allow victory to obscure our vigilance.