View From Washington: Jurisprudence

Just three years since New York's high court used procreation as a reason to block gays from marrying, the U.S. government has begun to dismantle that argument.

BY Kerry Eleveld

August 20 2009 11:00 PM ET

Sometimes, our view of the struggle for LGBT equality is so myopic it's difficult to see changing contours over time. But I felt a genuine thrill this week when I saw the above-the-fold New York Times profile of attorney Ted Olson on the same day a federal judge set the date for when his case challenging the constitutionality of Proposition 8 would be tried: January 11, 2010.

It brought me back to the first day I literally became a second-class citizen. I'd been out for over a decade when the New York high court rendered its final decision on July 10, 2006, against constitutionally granting marriage rights to same-sex couples.

As a reporter, I spent the day amped up from around 10 a.m., when the ruling was issued, to about 9 p.m., when we put our paper to bed that night (ahh, the days of print) -- it was a frenetic race to absorb the ruling, confer with legal scholars and those involved in the case, and attend the rallies.

After I woke up post-adrenaline push the next day, it sank in: I had been officially shut out -- my non-rights had been codified in writing.

As a Gen Xer, I had experienced some discrimination, some attitude bias, but I had never been faced so frontally with the certainty that the government in the state where I lived had nullified my claim to life, liberty, and the pursuit of happiness.

I wonder how many people in this nation ever really experience the injury of the government telling you that the sensations that animate your essential soul are worthless in the eyes of the law. It's a feeling that's hard to describe -- a little like having your entrails gutted and then passing through life as a shell of the person you were just a day ago.

The judge who wrote the opinion reasoned that same-sex couples shouldn't have the right to marry because gay sex couldn't accidentally lead to pregnancy the way straight sex could. Huh? Based on that, he argued the state could have a legitimate interest in promoting opposite-sex marriage, but then made no attempt to demonstrate how granting gay marriages might dissuade a newly pregnant single woman from wanting to marry her boyfriend, one-night-stand partner, or what have you.

As I wrote at the time, "The opinion written by Justice Robert Smith should have, at the very least, provided an intellectual foundation for the emotional blow it dealt to New York's LGBT community. That's what made it so difficult to accept."

Tags: Politics

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