View From Washington: Jurisprudence

By Kerry Eleveld

Originally published on Advocate.com August 21 2009 12:00 AM 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."

The next day, the argument ran through my head on an endless loop and I kept thinking that for years I had been duped into believing that judges -- and especially high court justices -- were the cream of the intellectual crop.

Legal scholar Vincent Bonventre told me that day: "Within the next generation, the court will recognize this as being an embarrassment to its jurisprudence -- not only the result, but the whole opinion and its reasoning."

Well, this week we got a new brief from the U.S. Department of Justice in the Smelt v. United States case that challenges the constitutionality of the Defense of Marriage Act (yes, the same case that fired up a caldron of LGBT fury when DOJ filed its first brief a couple months ago).

While the Justice Department is still defending the law as constitutional (many argue that DOMA violates same-sex couples' rights to due process and equal protection), it has made a number of significant concessions -- one of the most important being that procreation and child-rearing do not provide a legitimate rationale for excluding same-sex couples from the institution of marriage.

The brief noted that every credible organization that studies child development -- the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America -- has opposed placing restrictions on lesbian and gay parenting "because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents."

Then, in a telling twist of fate, the government cited the single most conservative judge on the U.S. Supreme Court to demonstrate that the ruling in the Lawrence v. Texas sodomy case renders procreation impotent as a basis for restricting marriage to straight couples.

From the brief: "Furthermore, in Lawrence v. Texas , 539 U.S. 558, 605 (2003), Justice [Antonin] Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion -- which, of course, is the prevailing law -- because 'the sterile and the elderly are allowed to marry.' For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality."

Of course, none of this amounts to a successful Supreme Court decision guaranteeing the right of same-sex couples to marriage. But it's safe to say that the U.S. government has now discredited the logic of Justice Smith's opinion and all those like it.

I know there's been a lot of gnashing of teeth among LGBT activists about the Olson/Boies suit and whether the timing is right for a case that could land in a Supreme Court that doesn't seem particularly LGBT-friendly, whether the LGBT groups should have been able to join the suit, etc.

While I have not taken sides in that debate, I will say that Olson, as a true-blue conservative lawyer, is the perfectly improbable ally who may well prove singularly persuasive in making the case for same-sex marriage. He has also won 44 of the 55 cases he's argued in front of the Supreme Court. I like those odds.

And I, for one, don't want to wait an entire generation for that New York decision to go from being simply flawed to being nothing more than a remnant of a time long since passed.