Wednesday, October 13, 2010

How Appealing

In comments on this post, Michael asserts that the Obama administration will appeal the federal court ruling that placed an injunction against the enforcement of Don’t Ask Don’t Tell.

I daresay he’s probably right. The Department of Justice has said it before, and they’re doing it now in the case of the Defense of Marriage Act, that the administration is obligated to defend the federal laws on the books regardless of whether or not they agree with them. Do to otherwise, they say, would be a failure on their part to do their jobs. They also say that the process for repealing the law is ongoing, however glacially, and that legislative action is the only way to guarantee that the law is truly repealed and that some judge — activist or otherwise — won’t turn around and reverse the judge who handed down the injunction. And there we’d be, back where we started with DADT in place and soldiers who came out while the injunction was in force now in jeopardy. Then what?

It’s not unlike the on and off situation with same-sex marriage in California and Prop 8. The state supreme court ruled in May 2008 that banning same-sex marriage violated the state constitution, and a month later couples started getting married in droves. Five months later Prop 8 passed, and same-sex marriage is now unconstitutional in California. A year after the first ruling a federal lawsuit, Perry v. Schwarzenegger, was filed challenging the ban, and in August 2010 the federal court ruled that indeed Prop 8 did violate the United States Constitution’s equal protection clauses. But Prop 8 is still in place pending appeal, and the best guess is that it will get to the United States Supreme Court in the next year or so. Meanwhile the people — gay, straight, or otherwise — are still not sure of the future of marriage.

The California Supreme Court has ruled that same-sex marriages performed between June and November 2008 are valid, but until the suits are settled and the laws are changed, we are still at the whim and wishes of the judicial process, which is by definition a changing thing. After all, the courts are meant to be reactive and not the creators of the law. They rely on precedent and procedure, and they’re not supposed to be subjected to political or popular forces. The truest test is when a court hands down a ruling that overturns years of precedent (i.e. Roe v. Wade or Citizens United) and watch the reaction from both sides: it’s either wise justice or outrageous activism.

I wish with all my heart that yesterday’s ruling was the end of Don’t Ask Don’t Tell. But I also know that until that law is repealed, dead and buried (and like someone once said when told that their mortal enemy had died, “I’ll believe it when I see the corpse”) courts and lawyers will find a way to keep it alive.

Bonus: On this topic, mistermix at Balloon Juice has a little thought experiment for you.