Waiting For Superman

By Brett Stevens January 10, 2013

Categories: Featured - Home Page, Our Affairs, Politics

In 2010, a documentary came out about the state of inner-city public schools and the problems that plague their students.  It was a film called Waiting for Superman and spoke to the deep issues involved in fixing some of our local schools.  New York Times film critic Stephen Holden begins his review with this quote:

“One of the saddest days of my life was when my mother told me ‘Superman’ did not exist,” the educational reformer Geoffrey Canada recalls in the opening moments of ‘Waiting for Superman,’  a powerful and alarming documentary about America’s failing public school system. “She thought I was crying because it’s like Santa Claus is not real. I was crying because no one was coming with enough power to save us.”

Are we “Waiting for Superman?”

In the quest for same-sex marriage recognition, have we come to rely on some supernatural or benevolent force to give us our due?  Consider this from Bill Salisbury’s December 10, 2012, piece from the Pioneer Press, “Minnesota budget deficit the No. 1 priority for incoming legislature”:

The DFL legislative leaders hinted there may be a lot of talk but no action on legalizing same-sex marriages next session, which convenes Jan. 8. Thissen said the leaders “don’t want to stop the conversation” on marriage prompted by the failed state constitutional amendment to ban gay marriages.

But because the U.S. Supreme Court decided to hear two cases challenging laws that define marriage as only the union of a man and a woman, he suggested lawmakers may wait until after the justices rule.

What does the U.S. Supreme Court have to do with passage of same-sex marriage recognition in Minnesota?  Well, practically nothing.  Incoming DFL Speaker of the House Paul Thissen suggests this would have an impact on the debate.  But would it?

Let’s consider each case regarding same-sex marriage to be heard by the U.S. Supreme Court.  The first addresses the federal Defense of Marriage Act (DOMA) is captioned “US v. Windsor” and believe it or not, it’s a tax case.

From the December 7, 2012, Christian Science Monitor, Warren Richey wrote in “Gay marriage reaches Supreme Court: Justices to review Prop. 8, DOMA”:

Edie Windsor and Thea Spyer spent 42 years together in New York City. They first met in 1963 and got engaged to each other in 1967 – a time when there was no recognition of same-sex marriage.

Ten years later in 1977, Ms. Spyer was diagnosed with multiple scleroris, a condition that eventually left her a paraplegic requiring 24-hour care.

In 2007, when doctors concluded that Spyer did not have much longer to live, Windsor and Spyer traveled to Canada to fulfill a shared lifelong dream. They got married.

Two years later, when Spyer passed away, Windsor sought to settle the couple’s estate. New York State recognized the marriage as valid, but under DOMA the federal government did not.

That meant that Windsor would not be entitled to claim the standard marital exemption from the federal inheritance tax. Even though she and Spyer had dedicated their lives to each other and obtained a legal marriage recognized as valid by their home state, their marriage remained invalid in the eyes of the federal government.

Windsor was forced to pay a $363,000 assessment. Had Spyer been a man, that assessment would have been $0.

The Supreme Court will decide whether or not the federal DOMA law violates the Fourteenth Amendment’s equal protection clause.  They will decide whether or not these women who planned their lives together should be treated as strangers in the tax code.  If the justices find DOMA is a violation of the U.S. Constitution, would that require Minnesota law to change?

Nope.  It would affect federal law that doesn’t recognize same-sex marriages as valid, perhaps.  But it wouldn’t affect Minnesota recognition of other state laws.  It is certainly possible that same-sex couples could sue in federal court to obtain recognition of their marriages in Minnesota.  After years of costly litigation, we could see that federal ruling trickle down to the states but it wouldn’t give Minnesota same-sex marriage, merely recognition of marriages performed outside the state.

Sure, it may have an effect way down the road but that is assuming the Supreme Court rules in Windsor’s favor.  Furthermore, it assumes the federal judiciary also decides to alter the law throughout the states.  This is possible but difficult, long, and uncertain.

The other case the Supreme Court is considering is Hollingsworth v. Perry and is about the California Prop 8, which made same-sex marriage illegal in that state.  It, too, has to do with the equal protection clause of the Fourteenth Amendment but in a completely different way.  From Bob Egelko’s December 7, 2012, piece on SFGate.com, “Supreme Court to decide same-sex marriage”:

Prop. 8, approved by 52 percent of the voters in November 2008, amended the California Constitution to overturn a May 2008 ruling by the state Supreme Court that legalized same-sex marriage.

In February, the Ninth U.S. Circuit Court of Appeals ruled that Prop. 8 had withdrawn rights from a historically protected minority for no apparent reason other than moral disapproval of homosexuality – an unconstitutional act, the court said, under the Supreme Court’s precedent in the 1996 Colorado case.

In other words, states can’t take away rights of people just because they don’t like them.

Sounds like this case could make same-sex marriage a constitutional right, correct?

Probably not.

The U.S. Ninth Circuit’s rulings have a devil of a time at the U.S. Supreme Court as indicated by Carol J. Wiliams in her July 18, 2011, piece in the Los Angeles Times, “U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals”:  “Although the proportion of reversals was relatively in line with past years and other appellate circuits across the country, the 9th Circuit was often out of step even with the high court’s liberal justices, who joined with the conservatives in 12 unanimous rulings.”

Even if the Ninth Circuit ruling is accepted, their decision to throw out Prop 8 could be limited to just California and wouldn’t affect any other states whatsoever.  From Kenji Yoshino’s December 8, 2012, post on SCOTUSblog, “Commentary on marriage grants: Different ways of splitting the difference – the menu of options in Hollingsworth v. Perry”: “If the Court adopted this substantive rule, the decision would only affect the capacity of same-sex couples to marry in California, at least for the time being. No other state has permitted same-sex couples to marry before taking away the right. It would, however, preclude the nine states that currently permit same-sex marriage from withdrawing that right, unless they could show a rational basis for doing so.”

The author is saying if the Supreme Court does uphold the Ninth Circuit ruling, they would probably do so with the understanding it was a right that was taken away.  Other states, like Minnesota, wouldn’t be in that position.  We never had same-sex marriage so it hasn’t been taken away.  The Supreme Court also won’t rule same-sex marriage is a fundamental right because of this, again from Yoshino on SCOTUSBlog: “The second premise is that the Court will wish to proceed incrementally — that it will not, in one Term, strike down DOMA and flip the forty-one states that do not currently recognize same-sex marriage. Here, too, I agree. In 1967, when the Court decided Loving v. Virginia, it only had to invalidate the laws of sixteen states. In general, the Court does not like to get too far in front of national consensus.”

If the Supreme Court threw out all bans on same-sex marriage, it would be invalidating amendments to the constitutions of 31 states.  Even Loving v. Virginia, the decision throwing out laws against interracial marriage, invalidated the laws of only sixteen states.   That decision didn’t affect state constitutions and in some of those states it was a law that was rarely enforced.

See, it’s both confusing and convoluted and I’m laying out the positive scenarios and their impact on Minnesota’s same-sex marriage recognition.  Instead of going through this briar patch of legal thorns and false dawns, we should just ask the DFL to do the right thing.

They could simply pass legislation allowing same-sex marriages or civil unions and be done with it.  No fuss, no muss, no expensive drawn-out court challenges.  But, we have to get the DFL leadership to move on this.

There is no special attachment to Batman’s utility belt to help us.  Wonder Woman isn’t going to ride in on her invisible plane and throw the lasso of truth around our legislators.  There is no Superman to fly in a save us.  We must do it ourselves.  We have to be our own “Superman.”  As the interview with Sen. Marty informed me that this is the GLBT community’s fight.  Let’s make them notice us.  Let’s make them listen.

_________________________

Contact Your Politicians
Governor Mark Dayton
Phone: (651) 201-3400
Email: http://mn.gov/governor/contact-us/form/ (Web Contact Form)

Senator Tom Bakk
Phone: (651) 296-8881
Email: sen.tom.bakk@senate.mn

Representative Paul Thissen
Phone: (651) 296-5375
Email: rep.paul.thissen@house.mn

Representative Erin Murphy
Phone: (651) 296-5496
Email:  rep.erin.murphy@house.mn

See also:
“The DFL’s Big Gay Farce” from Issue 457, November 29, 2012
“Three of Four Top Elected Minnesota Politicians Comment on the Marriage Debate” from Issue 458, December 13, 2012
“‘Earnest Money:’ Repeal DOMA Now” from Issue 458, December 13, 2012
“Why We Can’t Wait” an Interview with Sen. John Marty from Issue 460, January 10, 2013
Waiting for Superman” from Issue 460, January 10, 2013

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