High risk, High Reward vs. Slow-but-Sure
Dale Carpenter outlines how the combination of 'historic' cases euphemistically called a legal strategy for gay rights has been an almost utter disaster, with only one decision going the way litigants have wanted since it all began.
For a community that is now consistently spurned by the courts, behind the eight-ball of constitutional amendments, and increasingly strident on issue-advocacy in a way that may politically isolate it from both major parties, the road still seems long.
Blame whomever you want, if you must do that sort of thing. It's not all been a waste, in terms of civil union creation, ... nor costless, in terms of setting unwanted precedents, etc.Power is the rate at which work can be done
One of the advocates in the recent case said, "This case is about having a dialog with the people of Maryland", as I recall reading the article.
If you look around and see how other people do pressure campaigns and manage 'public dialogs', did this effort measure-up, or did it end up really being just a dialog with the court(s)? I honestly don't know, I don't live in MD - not that these 'historic' cases should have just local purchase, right? Did the entire gay-movement coordinate and focus resources to push the dialog? Did this issue at this time make the cover of The Advocate?
Grassrooting the grassroot organizations?
For all those 'activists' who put this issue at the top of all other issues, especially for calculating the 'hypocrisy quotient' of others, what was done to help this dialog along? Did they assist in spearheading a national fund raising appeal? Was there a 527 campaign, to buy issue ads? Did anyone benchmark 'Equality Maryland' to see if they were fully staffed and had the capabilities and resources to mount such a dialog? I don't know the answers to these questions, but they have to be addressed by serious minded folks.
For a community that is now consistently spurned by the courts, behind the eight-ball of constitutional amendments, and increasingly strident on issue-advocacy in a way that may politically isolate it from both major parties, the road still seems long.
A future because of or in spite of
Put another way, the Gay Rights movement, on the issue of gay marriage, at least, seems to be at the limit of what it can achieve with its current degree of organization or 'organizational capabilities'. The choices seem to, (a), get upset and throw out the goal; (b), don't get angry but get organized; (c), just make a show of things until it all changes because of the next generation.
If you are cynical, "b" is the true hope; "c" is the odds on bet; and "a" is part of the unwanted reality.
SSM has lost in every state high court to consider the issue since the stunning success in Goodridge in Massachusetts in 2003. SSM legal advocates lost outright in Washington state and New York in 2006. New Jersey's high court also rejected an SSM claim in 2006, though it did order the recognition of civil unions and left open the possibility of a future pro-SSM ruling. A case is still pending in California's supreme court.
When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. It means that strong anti-SSM precedents are being created in the friendliest states, making pro-SSM rulings in other states even more unlikely in the near future. Once California is decided, the initial phase of post-Goodridge litigation will have pretty much run its course. That was the phase that was supposed to start an avalanche of pro-SSM judicial rulings that would quickly lead to gay marriage around the country. It didn't happen. Other cases are pending in states like Iowa, and there's nothing to stop gay couples from filing anywhere else, but the odds are now longer. If SSM is to advance much in the near future, it will probably have to come legislatively.
When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. It means that strong anti-SSM precedents are being created in the friendliest states, making pro-SSM rulings in other states even more unlikely in the near future. Once California is decided, the initial phase of post-Goodridge litigation will have pretty much run its course. That was the phase that was supposed to start an avalanche of pro-SSM judicial rulings that would quickly lead to gay marriage around the country. It didn't happen. Other cases are pending in states like Iowa, and there's nothing to stop gay couples from filing anywhere else, but the odds are now longer. If SSM is to advance much in the near future, it will probably have to come legislatively.
footnote: I believe that Maryland has never taken its sodomy statute off the books...
