Wednesday, March 27, 2013

Real reason at the core

Yesterday I was in a couple of threads about the SCOTUS decision. I explained why this has nothing to do with marriage equality or gay rights. It's a case of federalism, plain and simple. This pissing contest between the federal government and states' rights is wearing a marriage equality mask, but could be anything really. That's just the topic du jour being used as a facade.

Almost EVERYONE missed what this is really about. If you think it's about marriage equality, you're crazy. If marriage equality was solved 50 years ago, this would still be happening in the Supreme Court about any other topic.

Everybody is treading lightly because of the implications of federalism on a larger scale. What is federal territory and what is state territory. The issue of marriage isn't anyone's business and most people agree, but after so many years of someone laying claim to the right to approve/disapprove, whose right is it to say it not longer requires approval in the first place? Once the federal government overrides state legislation, then it can happen on any topic.

So on the surface it looks like it's about marriage, but really it's a balance of power between states and federal at this point.

And once the federal government negates the states' rights, people have a Supreme Court worthy case if they want to marry 5 people and their dog because the state has no say anymore. Forget what it's ostensibly about; it stopped being about marriage long ago.

Of course the DOMA of 1996 (ahem, Bill Clinton) was a way to give up some ground to the states while retaining power. States were given the right to decide for themselves, but the Defense of Marriage Act said that the union of marriage is between a man and a woman. So if you start in a state where it's legal and move to a state where it's not, the new state has no legal obligation to honor the marriage license. It's why the Department of Defense does not recognize gay marriage. So, if I was gay and married a man and I was still in the military, I do not get the extra pay for my household allowance, he is not entitled to my medical benefits, and he would not even get notified if I was killed in combat. That's the federal government saying "it's ok, but it's not that ok" and that came from the same guy that enacted "don't ask, don't tell." Before that you could not be gay in the military. After it, "you can be gay and serve, but you can't tell anyone about it, act on it, or live your life openly. It's ok, but it's not that ok." That's a federal act, DOMA, so leaving the power in the hands of the states means if ALL States approve it, they have to get the fed to strike down DOMA and do you think the federal government is prepared to take orders from the states? Political posturing is all this is. Most people don't realist just how poorly the states (as a collective) get along with the federal side of the house.

Those were my 2 cents yesterday. Now there has been some release of information about what went on inside SCOTUS yesterday. The quotes from several justices make it clear that all of the above is 100% true.
I just wonder if the case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote, in a comment that showed a court torn over whether this was the right time and right case for a decision on a fast-moving social issue. 
So far, we see the focus on the timing of the issue and not the issue itself.
Justice Sonia Sotomayor seemed to share that concern. “If the issue is letting the states experiment and letting the society have more time to figure out its direction,” she said, “why is taking a case now the answer?” 
Once again, it's about whether or not even making a decision is the right move versus letting states "experiment." Keep in mind, this experimentation uses the life decisions and love lives of human beings and Americans specifically, but the focus is on whose role is this rather than solving this issue for the people who have something at stake.
Those justices and others seemed driven to that conclusion by an argument in which no attractive middle ground emerged on the substance of the question before them: whether voters in California were entitled to enact Proposition 8, which overturned a State Supreme Court decision allowing same-sex marriage. 
This is the first of the two most important points. So California approved gay marriage and then issued a referendum called Proposition 8. California voters weighed in and had gay marriage banned. If the SCOTUS says that gay marriage is allowed across the board, that will again overturn Prop8 and neuter the voting process at the state level. Is the importance of overturning Prop8 big enough to chip away at foundational blocks of our voting process? Some say yes, the justices are not so sure.
That appeared to leave the court with an all-or-nothing choice on the merits: either a ruling that would require same-sex marriage in all 50 states or one that would say that all states may do as they wish. Neither choice seemed attractive to a majority of the justices.        
And finally we have the coup de grace. To vote yay means that gay marriage is unequivocally allowed anywhere in the United States and each state has nothing to say about it which, many people say, violates the spirit and intent of parts of the constitution. The federal government keeps things running smoothly but doesn't legislate us into prosperity or define how our lives should go. With a diverse nation in terms of demographic, landscape and just about everything else (and the reason why we should never be compared to European nations), the federal government cannot possibly have enough insight into the lives of the average American and make a blanket policy that effectively covers people from New York to Nebraska. On the other hand, voting nay puts the power in the hands of the states, something that stems the tide of federal power, and not what the power hungry federal government wants either.

So what's the solution? Play the ostrich and put our heads in the sand. Dismiss the case. "We'll talk about it later." And that folks, is why it's not about gay marriage at all. That's the face of the battle between states and federal today. Tomorrow it may be something different.

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