Saturday, June 20, 2009

Which Way to Turn?

The battle rages on over the speed and direction of change in the struggle for rights of LGBT Americans, and whether “the system” will continue to allow religious prejudice to call the shots or whether we will once and for all remove all impediments to equal treatment before the law.

Each society fights homophobia in its own way. The United States context includes the battle between federal law and states’ rights and the conflict inherent in the balance of powers doctrine. Since Truman integrated the military by executive order, we want Obama to get rid of Don’t Ask/Don’t Tell by executive order. We rejoiced when the Supreme Court of California allowed same-sex marriage on May 15 of last year and celebrated the fact that gay marriage in Iowa was decided in the legislature on April 27 of this year.

There is no single definition of gay liberation, and no single clear way to get there. For the first few decades of my life the focus was on simply getting started by raising consciousness in the gay community. Now that internalized homophobia has been mortally wounded (it is not dead, alas), most of us have moved on to focus on social and political change. The failures in the political realm – I’m thinking of Prop. 8 in particular – are making many want to go back to working on the social level. Change the hearts and minds and the votes will follow, goes the reasoning.

Others are convinced most non-gay people don’t really give a hoot about gay rights (and God knows even many who do never tire telling us to be patient), and once we convince those in power to change the laws keeping us down, the vast majority of people will go with the new flow.

I followed the story of the Supreme Court decision this morning to reject the right of a petitioner from Alaska to sue for DNA testing, and a chill went down my spine. Scalia, Roberts, Alito, Kennedy and Thomas all agreed that a man condemned to death does not have a constitutional right to have DNA testing. They think this is a states’ rights issue, that each state should decide in its own way and in its own time whether to admit DNA testing. If your state doesn’t want to help you, we won’t either. Roberts wrote the decision. There is no reason, he decided, “to suddenly constitutionalize this area.”

But there is. We’ve always known lots of innocent people go to jail and some even to their death in our criminal justice system. We now have the means of cutting down those failures in the system. Why, I want to know, would the justices choose to allow an innocent man to languish in jail when proof of innocence is within grasp, and why would they not see this as an individual right and therefore a constitutional right? The answer lies in the historical battle over states’ rights. In the view that some things are more important than the individual and that states need time to work things out. Progressives argue that this is precisely when the Supreme Court should step in – when there is a jumble of confused and conflicting legislation at the state level. Conservatives say no, and conservatives run the Supreme Court.

And here’s where the rubber hits the road. It’s bad enough we have to watch a man who may be innocent sit in an Alaska jail. And it’s also scary as hell to consider what Olson and Boies are doing in taking gay rights to federal court. California’s own Supreme Court decided it had to listen to the majority of the people when they took away the rights of gays the court once clearly found in the state constitution. What chance do we have with the Roberts court?

Hope I’m wrong about this. Olson and Boies will probably not be deterred, so it may not be long before we find out.

What’s your take?
  • Justice delayed is justice denied.
  • Discretion is the better part of valor.
  • Piano, piano, si va lontano (Go slowly if you’re going a long way.)
  • Please, sir, may I have some more?
  • Faint heart never won fair lady.
So much stuff to chew on…

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