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DOMA, Proposition 8, the Voting Rights Act, and General Pyrrhus

Wednesday, Jun 26, 2013


The big news today is that Proposition 8 was "declared unconstitutional", DOMA was struck down, and everybody's happy. This is to make us feel better after yesterday's loss over the Voting Rights Act. That is, as liberals. If you're a conservative, you're probably thinking your win yesterday means you'll be able to reverse the gains after you've managed to prevent all liberals in the country from voting ever again.

Unfortunately, there is a common thread between each of these decisions that is downright scary. And I mean Civil War Era Scary!

The Defense of Marriage Act

As everybody knows, The Defense of Marriage Act, or DOMA, is the federal law that defines marriage as being between one man and one woman. It bans both polygamy and polyamory as well as same-sex couples. Basically, it does exactly what it says it does.

The big news is that DOMA has been declared unconstitutional and in those states where gay couples can legally marry they will now receive federal recognition and all the benefits that go with that. Great news! This really rocks!

It was also what was expected. If DOMA hadn't been tossed out, it would have been the conservative justices using procedural tricks to ignore the case as a whole (and they did try).

The problem with the article I linked is that the first half of the article is spin. It's all factually true, but it completely distracts from the second-most important part of the ruling:

The ruling left intact a separate Defense of Marriage Act provision stating that states need not recognize same-sex marriages performed by other states.

I hope you see what that means, but just in case, it means that [b]married same-sex couples are still not treated equally in this country at the federal level![/b] They just aren't! Their heterosexual counterparts can take their marriage certificates to [i]any other state[/i] and be recognized as married. Gay couples cannot do that. This is not equality.

There is a sinister sort of reasoning in there, however. By leaving this portion intact, the justices have basically endorsed the states' rights to decide which marriages are legal and which aren't, even when they were established in other states.

Consider these situations. If you create a corporation in California with a DBA, Arizona recognizes it as an entity and will allow it to operate. If you get a driver's license in California, Arizona will recognize it (after ensuring your citizenship). If you give birth in California, Arizona will recognize the baby's identity and legal entity. But if you're both gay and married, Arizona doesn't have to give a shit, because they have the right to decide not to give a shit.

Proposition 8

Facebook is alive with "Proposition 8 declared unconstitutional, hurray!" Let's back off from the spin for a moment, because that's not what the SCOTUS decided. SCOTUS decided that the defenders of Proposition 8, being privately funded, could not represent the state in federal courts, so they rolled back all the appeals and declared that the California Supreme Court's decision stood. The end result, of course, is that gay couples will be able to marry (again) in California. This is a wonderful thing for those gay couples, don't get me wrong.

The problem with this decision? Only the state government has the right to defend its statutes in federal courts. This one I sort of agree with, actually, but not when coupled with these other two decisions.

Voting Rights Act

The Supreme Court struck down the provision in the Voting Rights Act that requires Justice Department approval of all sorts of things related to voting in any area that has a history of discriminating in its election procedures. Now, on the one hand, they did the right thing (bear with me), because of this:

... but the coverage map still uses election data from 1972 to determine who is covered. Some jurisdictions, including the Alabama county that brought the case, complained that they were being punished for the sins of many decades ago.

The map was completely outdated. Totally! Look at the voter ID laws to see how new jurisdictions are really trying to discriminate against voters. The Republicans in many presidential battleground states that happen to control the state governments are looking at how they can redraw their districts to turn their states firmly red for the next election. [b]We need a new map.[/b]

So Congress has to rewrite this provision, because the Act itself cannot stand without it. Without this provision, the act is just words written on a page in 1965. And every beatnik, hippy, and mainstream liberal knows this. So do the conservatives, and until Congress addresses this problem, the Voting Rights Act has no teeth.

And Congress is deadlocking on everything because the white guys with guns hate the black guy with the title. So don't expect to see this fixed in a reasonable way anytime soon. For the foreseeable future, there is no Voting Rights Act.

So, besides those things being wrong with this decision, there's yet another trait that stands out. SCOTUS stood with the states again. Well, technically, this was the first of the three decisions, but let's ignore that for now. SCOTUS decided (potentially correctly) that the states on the coverage map were being discriminated against for sins they no longer commit and took their side while punting the actual correction back to congress.

A Pyrrhic Victory

The famous Greek general Pyrrhus famously remarked one more such victory would utterly undo him. When you look around and see how many conservatives are coming out in favor of gay rights these days (it's quite the trend), you begin to realize that this has been a political ball all along for them. They didn't care about gay rights one way or the other. It was George W. Bush who used gay rights (and the denial thereof) as a way to energize his base and pick energy-sapping battles with the liberals. When he famously declared in 2004 that "If you're not with us, you're against us", and all along starting/continuing various initiatives to deny rights to LGBT people, he was painting them as being "against us", the enemy. And it was wrong.

But he didn't really give a shit about the people, he only cared about energizing his base and sapping energy from the opposition.

The three rulings taken together represent a dramatic win for the conservatives: States' Rights. We need all of DOMA struck down, and Proposition 8 declared unconstitutional by SCOTUS. That's what we needed to declare victory.

The two rulings today represent a Pyrrhic victory. We cannot afford such wins in the future.

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