Sue, Baby, Sue!

Given the tenor of the time, that's about all we can do if we ever expect to have the same rights as everyone else.

Jack Balkin and Andrew Koppleman have written a number of posts on the decisions in Gill vs. OPM and Massachusetts vs. HHS (which I linked to in this post. Balkin also summarizes the possible outcomes of appeal or non-appeal. And he says this:

The argument is that losing in the Supreme Court forces the fight for marriage equality back to where it should be, in my view: to the individual states legislatures to get them pass new marriage laws, to state litigation to get state courts to recognize same-sex marriage, and to Congress to repeal DOMA.

The problem with this is that it's historically vacant (and we all have our lists of important civil rights cases that were decided against public opinion) and doesn't take into account that a majority of the states that forbid same-sex marriage have done so through constitutional amendments. A state court cannot overturn a provision of a state constitution.

As David Link points out in this piece, Balkin is concerned with the political fallout of overturning DOMA. He points out the constitutional flaw that I noted in Balkin's argument, and goes on to say:

It’s easy to talk about the virtue of political action. But if there ever was a situation where the ordinary constitutional rules have been disregarded or turned utterly upside-down, where constitutional protections have been torn up and thrown away, same-sex marriage is that case.

In that context, then, the political reaction to a federal court victory is something I fear a bit less than Balkin and others. At some point we need to stand up and say that the principles and plain words in our constitution actually mean something. Damage has been done to the ideals we jointly established for our democratic republic. The equal protection clause was put there for a reason. The equal protection clause was put there for this reason. Heterosexuals can minimize that in deference to politics. But sometimes -- now in particular -- lesbians and gay men can't.

That's really our only recourse -- to rely on the Constitution and the integrity of our judicial system. (Yes, believe it or not, I'm agreeing with David Link.) On that point, Timothy Kincaid pointed out something interesting: many of the judges who rendered decisions or wrote opinions in our support have been Republican appointees. This does not mean I have any confidence in the Supreme Court to render a legitimate decision in a same-sex marriage case -- Roberts, Alitto and Scalia are nothing more than Republican party hacks, and that's new Republican, thank you very much: the Christianist corporatist wing of the political spectrum. As Balkin points out, though, it would depend on Anthony Kennedy, who wrote the majority opinion in Lawrence.

And it's not just marriage. It's the broad spectrum of anti-gay legislation that worked its way into the lawbooks in the Clinton administration and the fixes that are needed on other legislation now -- the Uniting American Families Act (and trust me, the Democrats will scuttle that part of immigration reform, otherwise Mitch McConnell will say mean things), ENDA (which is now off the table for this Congress, thank you to the Republicans and their Democratic lapdogs), and whatever else is left. And no, DADT repeal is not a done deal, at all.

For that, from the Log Cabin Republicans website, transcripts and statments on LCR vs. US, the latest case against DADT, which the Obama administration is fighting tooth and nail.

Don't count on political action to get legislators to pass pro-gay laws. In some cases they can't; in others, they're afraid of Tony Perkins.

So, all I've got to say is "Sue, baby, sue!"