Tuesday, October 19, 2010

A Refresher on What “We the People” Means

It seems as though the issue of marriage equality now represents the nexus of confounding thought within both the LGBT community and the country as a whole, representing a focal point that conjures one of the most contentious and polarizing social debates taking place within America’s crowded political landscape. Though it sometimes is pushed to the side by discussions about “Don’t Ask, Don’t Tell,” or most recently by discussions about safer schools and discrimination and harassment, marriage equality often serves as the de facto litmus indicator on just how accepting the country is of the LGBT community. Just 15 years ago, one would be hard-pressed to find a state where more than 25% of the population supported same-sex marriage. Recent polls have shown a shift in attitude, and there a number of states that now claim over 50% of their populous as being supportive. The question remains with many; what right does our judicial system have in making a determination concerning marriage equality after the people have decidedly chosen to dismiss it?

The Bill of Rights was created to ensure that certain undeniable, unalienable fundamental liberties remained in the forefront of our consciences in determining law and deciding what is best for our country. Knowing that personal biases might obstruct the majority’s view on interpreting those laws, the founders of our constitution placed importance on judges, specifically the Supreme Court, to interpret the constitution in a way that keeps these rights preserved. Often times, the Supreme Court goes against what popular opinion might say about a particular issue. The court's unpopular landmark decisions in Brown v. Board of Education, which held that separate is not equal, and Loving v. Virginia, which held that it is not "equal" to deny individuals the freedom to marry a person of another race, have come to be accepted by an overwhelming portion of the country even after they came to fruition as extremely unpopular decisions. While protecting our rights may not always be popular, it is necessary, and it’s the court’s job to realize this fact.

There are two key court cases to keep an eye on in the coming months. One such case is Gill v. Office of Personnel Management, a lawsuit in Massachusetts claiming that the federal definition of marriage created by DOMA to exclude married same-sex couples from all federal marital protections violates equal protection guarantees. The other, more highly publicized case is the Perry v. Schwarzenegger, which challenges the federal constitutionality of Proposition 8. While there is more media attention surrounding the case in California, it is the Gill case in particular, according to advocates and scholars closely watching their progress, that is the struggle destined for the U.S. Supreme Court which has the best chance to actually provide marriage equality. The Gill case will effectively repeal DOMA, which states in its third section that marriage is defined by the heterosexual union of a man and a woman. The case comes with more specificity than the Perry case, and many think is likelier to yield a more positive result for the LGBT community and its supporters.

In a recent panel discussion regarding the right to marry, Cynthia Nixon gave an extremely coherent and compelling argument on how allowing gays and lesbians to marry isn’t “redefining marriage” by stating, “Gay people who want to marry have no desire to redefine marriage in any way. When women got the vote, they did not redefine voting. When African Americans got the right to sit at a lunch counter alongside white people, they did not redefine eating out. They were simply invited to the table.” Here’s hoping we’re invited to the table soon, too.

This post was written by Eric VanDreason, the newest edition to PFLAG National’s Policy Team. To learn more about Eric and his role at the National Office, please visit our staff page here.

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