It all seems so easy now. Don't Ask, Don't Tell: Unconstitutional! The Defense of Marriage Act: Unconstitutional! Proposition 8: Unconstitutional!
But six months ago the state of the push for equal rights looked very different.
- By law, no one could adopt a child in Florida if they were homosexual.
- Major Witt was still legally discharged from the Air Force, with her fate uncertain.
- Few people knew of court challenges to the Defense of Marriage Act, or had any idea that rulings would take place imminently
- No one knew when, or even if, the Log Cabin Republicans' trial over Don't Ask, Don't Tell's constitutionality would begin.
- Lt. Dan Choi was still a Lieutenant, despite having chained himself to the White House fence twice in acts of civil disobedience.
- Marriage equality wasn't even a bill yet before the Argentinian legislature; it was little more than a hope in many people's eyes.
Six months ago we were fighting desperately, Senate Armed Services Senator by Senate Armed Services Senator, to get an amendment inserted into the Defense Authorization Bill (which surely the Republicans would never dare to filibuster) that would repeal Don't Ask, Don't Tell.
Six months ago Barney Frank was lying through his teeth when he described what would happen with ENDA:
On markup: “It will be this week or next week.”
On passage:“We will get this done fairly quickly.”
And here it is, October 13th, six months later.
- The military has been enjoined to cease and desist applying Don't Ask, Don't Tell, the act having been found unconstitutional, in violation of the First and Fifth amendments.
- DOMA has been ruled unconstitutional, in violation of the Tenth Amendment.
- In a separate ruling, DOMA has been again ruled unconstitutional, in violation of the Fourteenth Amendment.
- The prohibition against adoption in Florida by homosexuals has been ruled in violation of its constitution, and that ruling will not be appealed, making it the law of the state of Florida.
- The Air Force has been found to be in violation of Major Witt's constitutional rights, and has been ordered to reinstate her.
- And last, but hardly least, an amendment to the California constitution stipulating that “only marriage between a man and a woman is valid or recognized in California.” was found unconstitutional at the Federal level.
Yes, the United States judicial system has been busy forging a path towards equality these last several months — and that without noting except in passing such decisions as Christian Legal Society v. Martinez, Doe v. Reed and Keeton v. Anderson-Wiley. It's been a period that is not likely to be repeated. Justice moves slowly and the Federal court system even slower. Not only is the process agonizingly measured, it is also fraught with danger: at any step along the way an Appeals Court or the Supreme Court could render any of these federal court decisions null and void. Yet it is now the only path still open to those who seek equality.
You know where this is going. In these six months in which the US judicial system has turned the law upside down with respect to equal rights for gays and lesbians, what have the other two branches of government done?
The House passed a strong Don't Ask, Don't Tell repeal bill, only to have it shot down by the Administration and the Senate. The Administration was finally dragged, kicking and screaming, into coming up with compromise language which eventually passed the Senate Armed Services Committee and the House. The same compromise that Joe Biden would later claim:
…we basically had to make to get the votes to finally repeal it.
Except that it didn't work. The compromise so carefully crafted crashed and burned when the bill failed a cloture vote last month. (Yes, it could be revived before the end of the year, but we are talking about these last six months).
Nancy Pelosi may (or may not) keep her promise to have a vote on ENDA before the end of the year, but no vote has yet happened, and if it does, it will be nothing more than symbolic. Every sane person realizes that there is no chance whatsoever of such a bill now passing this Senate or the next.
The Uniting American Families Act, establishing the right of same-sex couples to bring their partners to the United States, has been incorporated into a comprehensive Immigration bill, which, again, every sane person realizes has no chance whatsoever of passage in this Congress or in the next.
And while the administration started the process of drafting regulations prohibiting discrimination in hospital visitation rights about six months ago, those new regulations have not yet taken effect.
Judicial system: 6 (or 7, or 8, or 9 or …). Democrats: 0.
So here's to Dan Woods (plaintiffs' lawyer in Log Cabin Republicans) and Judge Philips, the ACLU (sponsors of the legal efforts in Florida (in re: Gill) and in Washington State (Witt) and Judges Lederman and Leighton, GLAD (sponsors of the legal efforts in the Massachusetts DOMA cases) and Judge Tauro, Ted Olson and David Bouies (attorneys in the Proposition 8 trial) and Judge Walker, and the innumerable others who gave of their time, their privacy, their money and their brainpower to put this country on the path to equality.
You guys rock.
As for Congress and this Administration, perhaps you'd like to go for a single, face-saving RBI before the Republicans have the whole game called on account of
rain the House podium turning a deep shade of orange?
Or not. No one would be surprised.