I saved my first diary for after election day in the hope of posting something insightful but I'm afraid this is going to have to do. Like most folks who classify themselves as "straight but not narrow" I've been looking at the way states return a truly progressive democrat as their presidential pick and then at the same time endorse repressive measures like CA prop 8. After I finished throwing up I looked at the responses online, amongst my friends and also amongst the bloggers on sites I have come to trust like this one.
There's something missing.
Everybody is saying "just wait for the rematch in 2012" but that's not where the fight should be taken now. My reasons for saying that below the fold...
ok, obligatory disclaimer, I'm not a voter in the US nor am I a member of the GLBT community. However, the US is my home and has been for the last decade, I feel I have a right to comment at least. I'm also not a lawyer, let alone one specializing in constitutional law, but I do have one advantage. If I ever want to become a citizen of this great nation I have to prove a little knowledge of civics, of how the US system of government is supposed to work and its history. This means that unlike the majority of folks I know over here I actually HAVE read the Constitution, its amendments and the Declaration of Independence.
We have a democratic president-elect who IS a constitutional lawyer. HE knows the Constitution and knows how it should be interpreted.
The battleground against this is now the federal government. On the basis of the supremacy clause and existing supreme court precedents, any federal law trumps a state constitutional clause. Even a regulation from a federal agency overrides a state constitutional provision.
Similarly, the US Constitution overrides anything in states constitutions. The equal protection under the law enshrined in the US Constitution overrides any measure in a state law or constitution that denies equal protection to any.
So there's two options - fight it all the way to the supreme court, or turn the tactics used to pass these repressive measures against them. Nibble away at them by regulations and federal laws, carefully worded to ensure they explicitly preempt the states positions on the legality of marriage and the recognition of marriages performed in other states. That last is important - it makes a strong case for a nationally unified set of principles, so that a persons legal status doesnt change as they cross state lines. Rewrite the regulations that enjoin agencies of the federal government from recognizing same sex marriages and instead write a law that no state may deny the validity of a marriage legally performed in any other state. Make it a federal crime for any agency of government at any level to discriminate on the basis of race, gender, sexual identity or orientation. Poof, no more homophobic constitutional clauses, they are preempted by the supremacy of federal law in the same way that the state laws banning abortion went away(even though they technically remained on the books) after Roe v Wade.
We've two years before the forces arrayed against this even get a chance to alter the dynamics of the legislature, four before there's another swipe at the executive. USE IT. Dont let the haters cheapen all our human rights by enshrining discrimination in law.
Mr & Mrs Crow request the pleasure of your company at the marriage of their son, James, to Mr Joseph Sixpack....