Monday, January 26, 2009

Not Gonna Happen?

Recently a blogger at Starboard Broadside, Cpt. Robespierre, was kind enough to link to this blog. Although he praised the general effort, he did so in the context of an expression of pessimism, entitling his post "Not Gonna Happen." I am genuinely grateful for the notice and encouragement he has given my efforts, and extend my thanks. At the same time, and with no desire to appear churlish, I feel compelled to offer some explanations and qualifications.

I have no illusions (delusions might be more apt) about the ease or speed with which a Marriage Equality Amendment might be passed. However long it might take (if, in fact, it ever happens), one must admit that doing nothing will not hasten the day. That point aside, however, I feel confident of only two things:

1)Marriage equality will be achieved some day here in the U.S. The injustice of our current state of marital apartheid is too monstrous and the liberal impulses of our foundational institutions are too robust.

2)True marriage equality will require federal constitutional reform of some kind. The power of the states to make and adjudicate marriage law within our system of justice is deeply ingrained in precedent and tradition. This is why opponents of same-sex marriage have sought a constitutional ban: they recognize that a federal statute disallowing same-sex marriages instituted in Massachusetts and Connecticut would not pass a Supreme Court challenge. Anyone working in the reverse direction is thus faced with the opposite challenge. There is no remedy that may be sought outside the federal constitution: either it will have to be amended, or, as was so in the case of Loving v. Virginia, it will have to be reinterpreted.

Given the size and scope of the challenges, those of us who see the right have to roll up our sleeves and get to work. The fact that a Marriage Equality Amendment is not politically feasible now does not make it any less right or just. Nor does the depth or breadth of social prejudice argue for the wisdom of remaining silent or doing nothing. The fight for marriage equality might appear a quixotic one at the moment, but in the battle with this particular windmill the good money is on Quixote in the long run.

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