No news is actually excellent news

It’s not that nothing happened…but today, when the justices of the Supreme Court of the United States decided not to take up any of the pending cases on same-sex marriage, as they were expected to, the decision not to decide—at least not yet—was another sign that homosexual Americans can look forward an end to legalized discrimination sooner rather than later.  Some of them saw no reason to wait—same-sex marriages started in Virginia within hours of the news this morning.

The decision not to hear arguments in any of the cases where federal appeals courts had in essence ruled in favor of same-sex marriage means that those rulings stand, clearing the way for legal same-sex marriages in as many as 11 more states, bringing the number of states on the right side of history to 30 so far (and don’t forget the District of Columbia!).  Vox.com has a good explainer here of what today’s actions mean, with links to an update on where each state’s court case stands and graphics showing how gay marriage is being recognized in law as the right thing to do even in places where many citizens disagree.  But that’s what courts are for, to enforce law and equity in the face of majority ignorance.

Why did the justices decide as they did?  I don’t know, and the justices are not compelled to explain.  But it means that, for whatever reason or reasons, there weren’t at least four justices who were willing to take one or more of these cases right now.  I’ve read some theories that the court decided not to hear any cases because there was no disagreement: all the pending court cases were in favor of allowing same-sex marriage, so they felt there was no conflict that required their special wisdom to resolve.  The argument goes that once there are one or more cases with the opposite finding, the nation’s highest court will step in; I guess we’ll see if that’s so, but this court’s ruling in Windsor v. United States overturning the Defense of Marriage Act as a deprivation of equal protection under the law should give a good hint what they might say.

I’ve said it before (“SCOTUS dumps DOMA: fair, simple, American”), and I’d like to say it again:

This is not about what one religion or another teaches about homosexuality; this is about how the civil law treats American citizens regardless of their religious belief, or their gender or their race or national origin.  A religion is free to believe and teach what it wants about the morality of homosexual behavior or same-sex marriage, and its teachings and laws are important to the members in good standing of that particular faith.  But those teachings are not binding on Americans who are not members of that denomination.  The civil law, which orders how we all deal with one another in the secular society outside the confines of our many private clubs, is blind to such moral questions.  States have the right to decide who can “marry” and who can’t, and the federal government has to treat all “married” couples in the same way, regardless of the gender of the spouses.  Simple, really.  Fair.  American.  Congratulations, U.S.A., on another successful day at the office.

Stand by for American history

The United States Supreme Court hears arguments this week in two cases involving same-sex marriage that could make civil rights history.  For those who can get beyond a knee-jerk reaction to the very idea of same-sex marriage, who are interested in the nuts and bolts of how the court operates, how this court operates, who want to be able to read the reports of the oral arguments or listen to the arguments themselves (yes, listen—the same day!) critically and develop their own insight into what’s happening and what the results may be, check out Emily Bazelon’s post in Slate today.

Tuesday and Wednesday, the Supreme Court will dive into back-to-back arguments about gay marriage. These cases that are probably the biggest of the term, and certainly the sexiest. First up is an hour of Hollingsworth v. Perry, the suit challenging the constitutionality of California’s voter-approved gay marriage ban. Next comes an hour and 50 minutes on United States v. Windsor, which takes on the definition of marriage in the federal Defense of Marriage Act. That definition—the union of a man and a woman—denies gay couples more than 1,000 federal benefits that come with marriage, relating to everything from inheritance taxes to health insurance for veterans, even when their marriages are legally recognized in the states they live in.

The arguments will feature top lawyers including Ted Olson (former Bush solicitor general, pro-gay marriage), Paul Clement (former Bush solicitor general, anti-gay marriage), Donald Verrilli Jr. (Obama solicitor general, pro-gay marriage, though the Obama administration is still enforcing DOMA), and Vicki Jackson (Harvard law professor who will argue that the Obama administration doesn’t belong in court). What should we watch for to gauge how these cases will come out? Here’s my checklist.

Meanwhile, in case you missed it, here are the stories about the amicus briefs from the White House and Bill Clinton,  now both in favor despite earlier efforts to the contrary, and from major businesses that have always tried assiduously to avoid taking sides on anything as controversial as same-sex marriage, but now argue that the ban hurts business.  Even prominent Republicans, including Clint Eastwood, are making a case in favor of same-sex marriage.  The times, they are a-changin’…we should find out in June, when the decisions are expected to be announced, just how much.

Equal justice for all: the gay rights tide has turned

The fight to keep homosexual Americans from enjoying the full rights of citizenship is over; the opposition is giving up.  A federal judge has enjoined the Pentagon from enforcing the “don’t ask don’t tell” policy anywhere in the world, and the expected reaction to that news was…nowhere to be heard.

Sure, hard-core haters had their say, but I’m struck by just how quiet it has been.  At the risk of fanning the flames, I’d say it looks like the usual suspects in the anti-gay effort have finally run out of steam, perhaps because it’s so clear that courts are going to enforce the Constitutional protections that have been denied to homosexuals.

First, the DADT (ugh!) policy is a crock and it should be repealed; it should never have been imposed.  Was anyone really in favor of a regulation that permitted gays to remain in the service unless they were discovered?  How in any important way is that any different than the old system, where gays were discharged when they were discovered?

The law’s days are clearly numbered.  Although the Justice Department asked the judge not to halt enforcement of the law while it prepares an appeal, the president has promised to get rid of the law—and Congress almost did so earlier this year!

The secretary of defense and the chairman of the Joint Chiefs favor repeal of DADT, but they want to go slow.   Excuse me, gents—why?  Because it would force an immediate change to benefits or buildings, or protocols for social events?  That’s why you want to wait until an internal review is completed, in a month a half?  Really?

I never understood the argument that allowing gay people in the service to be open about their sexuality would hurt morale (and hurt it even worse in time of war, or wars).  I don’t believe that most men and women in the armed forces are so closed-minded and prejudiced on this topic, because I don’t think most Americans outside the military are, either.

Think about the reality of the situation: if DADT has legally cleared the way for gays to serve since 1993, then people in the military have had at least since then to get used to the idea that gays are there: to get used to the idea that they don’t leer at you in the shower or rape you in your bed, at least not in any greater numbers than heterosexuals do those things; to get used to fighting next to them in a shooting war, and to know that they can be brave and trustworthy comrades, at least to the same extent that heterosexuals can be.

We can proclaim not to understand why people are homosexual, or embrace a religious belief that homosexual activity is a sin, but none of that matters in a tolerant, secular, civil society.  The experts can’t say why a person is sexually attracted to one gender or the other.  And it violates the rights of due process and free speech guaranteed to each American in the Constitution to treat someone differently because of their sexual orientation just as it would to treat them differently because of their gender or their ancestry. 

The tide has turned.  Homosexual activity is no longer illegal.  If you read or watch Ted Olson’s argument as presented on Fox News in August, the same argument he made in the California court case, you can see that the case for gay marriage will prevail.  States are giving up trying to stop homosexuals from adopting children.  Republican political strategists recognize that opposing gay rights is a long-term losing proposition.  One officer discharged under DADT has successfully sued to be reinstated in the Air Force.

You don’t have to “understand” gay people any more than you have to “understand” people of a different race or a different religion.  You only have to understand that these people are Americans like you, who believe in American rights like you do, who want to enjoy American freedoms like you do, who support our country with their work and their taxes like you do, and who want the opportunity to serve to protect this way of life, just like you do.