Utah and Oklahoma? What next?

As you have no doubt heard, in recent weeks Federal judges in both Utah and Oklahoma have found the states’ bans on same-sex marriage violate the United States Constitution.  In Utah, the judge ruled that the law, “conflicts with the United States Constitution’s guarantees of equal protection and due process under the law.”

Despite the best efforts of Utah’s Governor, both the trial and the appellate courts refused to grant a stay pending appeal.  As a result more than 1,300 Utah couples entered into same-sex marriages.  The United States Supreme Court stepped in and granted the stay and the case is now pending before the appellate court with a resolution perhaps years away. Subsequently, the state of Utah has declined to recognize those marriages while the Federal Government will recognize them for purposes of all federal benefits, (e.g., health insurance for families of federal employees, etc.). The end result in Oklahoma is essentially the same, however, it was the trial court that issued the stay pending appeal. No marriages were consummated in Oklahoma.

So what are we to make of this?  How should the GLBTQ community view these developments? As I am not a lawyer, I can’t comment from a legal perspective.  However, as a devoted, (some might say obsessive – okay – some have said obsessive), follower of these developments I wonder if some thoughtful strategizing is needed.

I was reminded recently of Ruth Bader Ginsburg’s comments prior to the DOMA hearing last summer. In essence, she expressed concern that in Roe v. Wade the Supreme Court, by applying its findings nationally, had laid the groundwork for all of the subsequent litigation around a woman’s right to choose to terminate a pregnancy.  Said differently, the change came too fast and gave rise to an increasingly radicalized and intransigent opposition that continues to battle aggressively 40 years later. Are we headed down the same road?

We should not forget that both the Utah and Oklahoma rulings came out of the federal courts. The good people of these states did not suddenly change their minds and vote to repeal their state ban on same-sex marriage: “Oh, sorry, our mistake, never mind.”  These are deeply, I mean very deeply, conservative states with overwhelmingly conservative citizens and governments. The issue of same-sex marriage has been a hot button topic for politicians and the public for a long time. To suddenly have the battle lost and, from their perspective, have the worst possible outcome dictated by a federal court has to sting. Painfully sting.

The LGBTQ community can’t go back. We cannot and should not end the fights taking place in many states to finally achieve marriage equality, not to mention the need to protect our children. But we should recognize that our opponents are wounded, deeply wounded and try to find ways to manage the discourse and the battles so as to avoid the long road treaded by Roe. Many of these strategies are already well established:

• Actively support family members, friends, co-workers and others who choose to come out. Knowing someone personally who is gay can make all the difference even to the most conservative of conservatives.
• Continue to support the fight—donate generously to Lambda Legal, the ACLU, the Human Rights Campaign and others who are leading the battle and don’t hesitate to encourage respectful dialogue with our adversaries.
• Know the arguments and counter-arguments and be able to respectfully disagree.  Recently, I was surprised to hear Illinois State Representative Gregory Harris, the sponsor of Illinois’ recently passed marriage equality statute, argue that bans on same sex marriage violate religious freedom since so many religious institutions http://littlemagonline.com/tag/design/ want to perform same sex marriages. I had never heard that argument before and it is powerful.

There are, of course, many others.

Finally, I want to be clear that I am not suggesting that we retreat.  I am suggesting that finding ways to gracefully manage victory, (and the vanquished), may yield long-term benefits and actually shorten the war.

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