The Dark Side of the Current Gay Marriage Debate

So this week the Supreme Court has been discussing whether Proposition 8 in California is constitutional (and whether proponents had standing in that case to argue that it is) and whether the Defense of Marriage Act (DOMA) is constitutional (and whether a group of congressmen have standing to argue that it is).  And we can debate the merits of it, but I would like to point at something else that might seem like a sideshow.

What I am talking about is politicians who are arguing in support of gay marriage.  For instance, we have Barack Obama’s official twitter account tweeting out the following:

RT if you stand with the millions of Americans fighting for #MarriageEquality. twitter.com/BarackObama/st…
— Barack Obama (@BarackObama) March 26, 2013

And we get an amicus brief filed by “172 Members of the House of Representatives and 40 U.S. Senators” in the Defense of Marriage case.  An amicus brief literally means a “friend of the court brief.”  These are briefs filed by persons who are not parties and are not necessarily aligned with either side, but might shed some light on things, and so the court allows them to file such a brief.  For instance, if there is a great Freedom of Expression case before the Supreme Court there is a good chance the ACLU will file a brief giving their position on the subject.

But, especially before the Supreme Court, the real purpose of such a brief is often to say little more than “we famous/important people agree with this side of the debate.”  In other words, they rarely say something that wasn’t adequately covered by the dozens of other briefs filed by others, but they want the Supreme Court to know that these famous and important people all agree that the correct outcome is X.  I have seen it done first hand as a law student at Yale, where a group of law professors decided to file a brief just so they could be seen filing a brief, to lend their weight to the side they think is right and hopefully convince the Supreme Court by the aura of the collective respect the Supreme Court reportedly has for them.

And in the case of the 212 members of congress brief mentioned above, the message is pretty much summed up in the conclusion:

DOMA imposes a sweeping and unjustifiable federal disability on married same-sex couples. It is “class legislation” that lacks any rational connection to legitimate federal interests, thus violating the Fifth Amendment’s equal-protection guarantee.

The judgment of the court of appeals accordingly should be affirmed.

So they want at least the Federal Government to recognize the gay marriages performed in the states that recognize them.

And when it is just a bunch of law professors doing so, it is harmless enough.  I have no doubt that Justices Scalia, Kennedy and Thomas are used to not caring what a bunch of liberal law professors think when appropriate, and I am sure Roberts and Alito are becoming well practiced in that art.  But in the case of these 212 members of Congress, or Barack Obama, the message is a bit different.  The vast majority of these politicians are people who have done almost nothing in practical terms to support gay marriage.  So what they are really saying to the court is this:

We lack the courage of our convictions.  We want to say we support gay marriage, but we are afraid of actually doing anything to advance gay marriage because of the politics involved.  So please let us off the hook by saying that the Constitution demands the outcome we don’t have the courage to work for.

Of course the accusation of cowardice is not going to be true in every case, but what has Barack Obama actually done for gay marriage besides declare once he was for it, then against it, then for it again?  And here is the complete list of Congresscritters who signed on to this amicus:

United States Senators

Tammy Baldwin, Michael F. Bennet, Richard Blumenthal, Barbara Boxer, Sherrod Brown, Maria Cantwell, Benjamin Cardin, Thomas R. Carper, Christopher Coons, William “Mo” Cowan, Richard J. Durbin, Dianne Feinstein, Al Franken, Kirsten Gillibrand, Tom Harkin, Martin Heinrich, Mazie K. Hirono, Tim Kaine, Angus S. King, Jr., Amy Klobuchar, Frank R. Lautenberg, Patrick J. Leahy, Claire McCaskill, Robert Menendez, Jeff Merkley, Barbara A. Mikulski, Christopher S. Murphy, Patty Murray, Harry Reid, Bernie Sanders, Brian Schatz, Charles E. Schumer, Jeanne Shaheen, Debbie Stabenow, Jon Tester, Mark Udall, Mark R. Warner, Elizabeth Warren, Sheldon Whitehouse, and Ron Wyden

Members of the U.S. House of Representatives

Robert E. Andrews, Ron Barber, Karen Bass, Joyce Beatty, Xavier Becerra, Ami Bera, Timothy H. Bishop, Earl Blumenauer, Suzanne Bonamici, Robert A. Brady, Bruce L. Braley, Corinne Brown, Julia Brownley, Cheri Bustos, Lois Capps, Michael E. Capuano, Tony Cárdenas, John C. Carney, Jr., André Carson, Matthew A. Cartwright, Kathy Castor, Joaquin Castro, Judy Chu, David N. Cicilline, Yvette D. Clarke, Wm. Lacy Clay, Emanuel Cleaver, James E. Clyburn, Steve Cohen, Gerald E. Connolly, John Conyers, Jr., Joe Courtney, Joseph Crowley, Elijah E. Cummings, Danny K. Davis, Susan A. Davis, Diana DeGette, John K. Delaney, Rosa L. DeLauro, Suzan K. DelBene, Theodore E. Deutch, John D. Dingell, Lloyd Doggett, Michael F. Doyle, Tammy Duckworth, Donna F. Edwards, Keith Ellison, Eliot L. Engel, Anna G. Eshoo, Elizabeth H. Esty, Sam Farr, Chaka Fattah, Bill Foster, Lois Frankel, Marcia L. Fudge, Tulsi Gabbard, John Garamendi, Joe Garcia, Alan Grayson, Al Green, Raúl M. Grijalva, Luis V. Gutierrez, Janice Hahn, Colleen W. Hanabusa, Alcee L. Hastings, Denny Heck, Brian Higgins, James A. Himes, Rush Holt, Michael M. Honda, Steven A. Horsford, Steny H. Hoyer, Jared Huffman, Steve Israel, Sheila Jackson Lee, Hakeem S. Jeffries, Eddie Bernice Johnson, Henry C. “Hank” Johnson, Jr., Marcy Kaptur, William R. Keating, Joseph P. Kennedy III, Daniel T. Kildee, Derek Kilmer, Ann Kirkpatrick, Ann M. Kuster, James R. Langevin, John B. Larson, Barbara Lee, Sander M. Levin, John Lewis, David Loebsack, Zoe Lofgren, Alan S. Lowenthal, Nita M. Lowey, Michelle Lujan Grisham, Daniel B. Maffei, Carolyn B. Maloney, Sean Patrick Maloney, Edward J. Markey, Doris O. Matsui, Carolyn McCarthy, Betty McCollum, Jim McDermott, James P. McGovern, Jerry McNerney, Gregory W. Meeks, Grace Meng, Michael H. Michaud, George Miller, Gwen Moore, James P. Moran, Patrick Murphy, Jerrold Nadler, Grace F. Napolitano, Richard E. Neal, Gloria Negrete McLeod, Richard M. Nolan, Eleanor Holmes Norton, Beto O’Rourke, William L. Owens, Frank Pallone, Jr., Bill Pascrell, Jr., Ed Pastor, Donald M. Payne, Jr., Nancy Pelosi, Ed Perlmutter, Gary C. Peters, Scott H. Peters, Chellie Pingree, Mark Pocan, Jared Polis, David E. Price, Mike Quigley, Charles B. Rangel, Lucille Roybal-Allard, Raul Ruiz, C.A. Dutch Ruppersberger, Bobby L. Rush, Tim Ryan, Linda T. Sánchez, Loretta Sanchez, John P. Sarbanes, Janice D. Schakowsky, Adam B. Schiff, Bradley S. Schneider, Allyson Y. Schwartz, Robert C. “Bobby” Scott, José E. Serrano, Carol Shea-Porter, Brad Sherman, Kyrsten Sinema, Albio Sires, Louise McIntosh Slaughter, Adam Smith, Jackie Speier, Eric Swalwell, Mark Takano, Mike Thompson, John F. Tierney, Dina Titus, Paul Tonko, Niki Tsongas, Chris Van Hollen, Juan Vargas, Marc A. Veasey, Nydia M. Velázquez, Timothy J. Walz, Debbie Wasserman Schultz, Maxine Waters, Henry A. Waxman, Peter Welch, and John A. Yarmuth

What have any of them done for gay marriage?  Indeed as a few people have points out, for a few years Obama had a Democratic House and a Democratic Senate and still they made no attempt to repeal DOMA, let alone any effort to create a constitutional amendment promoting gay marriage.  So they want the Supreme Court to do for them what they didn’t have the courage to do themselves.

And it is even worse than that.  Depending on how far the Supreme Court goes, it could lock in the answer for all time (or at least until the Supreme Court overturns itself or is overturned by an amendment).  So if the Supreme Court decides that gay marriage is guaranteed by the Constitution, that the end of the debate for the forseeable future: good, bad or indifferent, we will be stuck with that outcome for decades.  By comparison, if Congress repealed DOMA or California got rid of Proposition 8, and it turned out to be a bad idea, it would only take a majority to change their minds.

This is not unheard of.  For instance, as Attorney General of Minnesota, Walter Mondale organized an amicus brief in the case of Gideon v. Wainwright.  That was the case where the Supreme Court decided that criminal defendants had a right to a free lawyer.  If you look very close at the Constitution, the right to a free attorney is never mentioned.  Your right to an attorney is mentioned, but that only meant that if you could hire one, or otherwise obtain one, you had a right to one.  The right to a free attorney—that is, a publicly subsidized one—was never guaranteed.  But the Supreme Court made up such a right out of thin air in Gideon.

And consider what a huge and frightening step this was.  Of course, states are left to figure out how to get that free lawyer for that person.  In most states they have a public defenders’ office and pay those people very little and thus create an ongoing concern that the counsel provided is not sufficiently effective, creating additional grounds for appeal.  And a few states instead opt to allow judges conscript lawyers into the service of these criminals.  That is, a judge literally orders an attorney who happens to be around to represent someone they didn’t wish to represent.  So apparently the Thirteenth Amendment has an exception for lawyers.  And all of this was done without the consent of the people.

And the worst thing was Mondale’s amicus in support of this approach.  He was himself a politician.  If he and his fellow attorneys general felt this was so important, they could take the issue to the people.  Instead again he asked the Supreme Court to do the work for him that he wouldn’t or couldn’t accomplish through democratic means.

With both the politicians arguing that DOMA should be declared unconstitutional and the politicians asking the Supreme Court to shackle their states with a requirement of free counsel, it is an abdication of their democratic roles.  They are asking the Supreme Court to take decisions away from them and the people, because they cannot get the democratic process to come out the way they want, or more darkly because they lack the courage to fight for their actual positions in the democratic process.  Whatever one feels about the issue of gay marriage or the right to a free lawyer, their act of asking the Supreme Court to take the decision away from us is nothing less than shameful.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.