Gay is a place of vulnerability in our society. Sometimes we can buy our way out of that vulnerability with money and lawyers, or powerful friends. But paying for the proper paperwork didn't help Janet Langbehn, or Sharon Reed, or Bill Flanigan-all gay spouses kept from the bedsides of their dying partners. Rights in that moment that you approach the desk in the emergency room aren't about what's written in law, rather they are about what people believe to be true. That is why minorities need special protections, we need to have the justices of the Supreme Court shout it from the courthouse steps that "The Gays, they are equal!"
Sadly, the justices seem very removed from the workaday world in which most gay people function, a world of paying bills, finding healthcare, and spending hours on the phone explaining to various agencies that yes you are married, but not necessarily according to their definitions. In the SC, our actual experiences as gay people facing a multitude of discriminations and insults large and small got little attention as both sides argued the broad issues. As the SC deliberates, we remain separate and unequal. Vulnerable.
In both cases, the arguments made in the amicus brief filed by the Concerned Women of American, which I mocked last week, made an appearance.
In the Prop 8 case:
"CHIEF JUSTICE ROBERTS: — I — it seems to me that your position that you
are supporting is somewhat internally inconsistent. We see the argument
made that there is no problem with extending marriage to same-sex
couples because children raised by same-sex couples are doing just fine
and there is no evidence that they are being harmed. And the other
argument is Proposition 8 harms children by not allowing same-sex
couples to marriage. Which is it?"
In the DOMA case:
"CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case." [In reference to the "sea change" in attitudes toward gay people, and whether that change means that gays are politically powerful.]
So now with gay marriage in 9 states out of fifty and wins at the ballot box in 4 states, we are too powerful to be protected against a federal government that does not recognize our marriages, or protected in the 41 states in which we cannot marry. As for the child of gasy issue, I think we should avoid the issue of psychological harm to children of gay people who cannot marry. Gay kids survive and thrive even in families that face discrimination. Rather, discrimination harms children economically in many of the same ways that unrecognized gay spouses are harmed. Our children do have a human right to have their parentage recognized, and this right exists even if they do not suffer psychological harm due to a lack of recognition.According to the Convention on the Rights of the Child (1989), Article 8, "States Parties undertake to respect the rights of the child to preserve his or her identity, including nationality, name, and family relations as recognized by law without unlawful interference."
So where do we go from here? We'll have to wait until June for the decisions. If they don't go in our favor, we do have the ballot box. I think we can win in many states, but clearly not all. Despite the HRCs very successful marketing coup, gaining attention for cases for which they had done little, the future is the Maryland strategy. In the last election, Maryland activists abandoned the HRC-style strategy of running a slick ad campaign featuring respectable HRC types. Instead, MD focused on regular people telling their stories, while also building a coalition of people across lines of race, class, religion, and region-a coalition of the willing, if you will. While we can win at many ballot boxes, at this moment, when we seem poised for so much change, the expense and grind of campaigning just seems like a waste. Maybe I'm just getting greedy.
One thing is for damn sure, we are out and we're not going back. If we have to take it back to the streets, in the tradition of our forefathers and foremothers at Stonewall and in ACT UP [watch How to Survive a Plague on streaming netflix], we havenshown that we have the will to make change happen.