Listening to oral arguments on the constitutionality of Proposition 8 was frustrating. And it's not solely due to the usual legalese, but also due to so many of Supreme Courts justices suggesting that what we LGBTQ Americans are asking of the court "may be premature for them to intervene in a fast-moving, unsettled political environment."
Justice Samuel Alito stated, “Same-sex marriage is very new. You want us to step in and render a decision,” Alito continued, “based on an assessment of the effects of this institution, which is newer than cellphones or the Internet? I mean, we do not have the ability to see the future.”
Justice Anthony M. Kennedy, a pivotal swing vote who wrote the last two victory decisions on lesbian, gay, bisexual, transgender, and queer (LGBTQ) court cases chimed in stating the court was in “uncharted waters.” Kennedy added: “We have five years of information to weigh against 2,000 years of history or more.”
And, of course, Charles J Cooper, attorney for some of the defendants in the Proposition 8 case, wants to “hit the pause button” as he stated in his argument while “the experiment” of gay marriage matures."
Is our request for marriage equality too soon?
Prop 8, which the LGBTQ community rightly dubbed the ballot initiative "Proposition Hate," was an amendment to the California Constitution eliminating marriage equality for same-gender couples. It was a reaction to the ruling by the California Supreme Court in May 2008 that a “separate and unequal” system of domestic partnership for same-gender couples is not only blatantly discriminatory but it is also unconstitutional.
For echoes of history we need only to look to the speech Rev. Dr. Martin Luther King, Jr. delivered in Finney Chapel at Oberlin College in October 1964, where he stated, "The time is always right to do what is right" I don't think our request as a disenfranchised group is too soon.
"The concern of some of the Justices about moving too "swiftly" in acknowledging the Constitutional right of same sex marriage is disturbing. If equality and equal access are deeply embedded in the Constitution, how can the idea of slowly and gradually implementing Constitution-granted equality and access is justified? The 1954 decision invalidating public school racial segregation came with the suggestion of "with all deliberate speed". Will the Court say the same about marriage equality?" Rev. Gil Caldwell, a LGBTQ ally wrote me in an email.
While Caldwell would agree that Prop. 8 maintains a “separate and unequal” system he would also agree so, too, does Brown v. Board of Ed. The intent of the Supreme Court's mandate in the historic Brown v. Board of Ed. case was that America's public schools were to desegregate “with all deliberate speed.” They didn't. As a-matter-of fact, the backlash was felt not just below the Mason-Dixon line, as expected, but it was also unexpectedly above it. Forced desegregation of schools often resulted in bloody race riots—like Boston's infamous 1974 busing crisis. The court mandate was ahead of the people, and the feelings about the issue are as volatile now as it was then. Surely the Supreme Court doesn't want Prop. 8 to have a Brown outcome.
Although polls continue to show an overwhelming support of same-gender marriage, the facts are these: only nine states and D.C acknowledge marriage equality. Demographically, those over 40, religious conservatives, Latinos and African Americans are some of the groups that have moved very little, if at all, toward marriage equality.
Justice Antonin Scalia clearly doesn’t want to move on the issue. When he asked Ted Olson, attorney for the plaintiff to explain, “When did it become unconstitutional to exclude homosexual couples from marriage?” suggesting "it did not violate the Constitution to prohibit same-sex marriage 50 years ago, and it does so today," Vikram Amar, a professor of law at UC Davis, told KQED. "Isn’t it odd that the meaning of the Constitution, whose words haven’t changed since 1868, would evolve?"
Olson replied, “When did it become unconstitutional to prohibit interracial marriage?” suggesting it became so when the Supreme Court decided the landmark case of Loving v. Virginia in 1967.
Caldwell feels similarly to Olson when he wrote "The hesitations and reservations about same-sex marriage are much like those expressed about interracial marriage. In both situations assumptions about the second class status of blacks and now the second class status of same gender loving persons reveals that old truism; ‘The more things change, the more they remain the same.’ Back in the day it was thought by many that blacks in interracial marriage would somehow devalue marriage. And today, some believe marriage equality for same sex couples would somehow devalue "traditional marriage".
Caldwell’s retired African American pastor of 60 plus years, who's presently a co-partner in "Truth in Progress (TIP),” a multi-media project dealing with issues of race, sexual orientation, and religion. TIP takes a special look at the similar yet different experiences and histories of the Black Civil Rights and LGBT Rights Movements.
“I, as an old "foot soldier" in the Civil Rights Movement, believe, much to the dismay of some of my colleagues, that the attention given the gay rights struggle, cannot help but re-energize the black rights struggle. I am saddened that we who are black have not been more upfront in the Gay rights struggle.”
I am saddened, too. The truth is that the justices are now our “foot soldiers.” Here’s hoping they march toward equality.