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Lurching Toward Equity *

Uploaded: Oct 6, 2014

Today, the gay community stands somewhere between "Change Is Gonna Come" and Psalm 13 ('How long wilt thou forget me?').

Monday, the US Supreme Court handed marriage-minded gay men and lesbians a grudging victory, as it refused to hear five challenges to Appeals Court rulings that found state-level bans on same-sex nuptials unconstitutional. In court parlance, that's known as a denial of certiorari, the fate inflicted on all but around 100 of the 5000-odd cases that seek review. Since the Court last visited gay marriage in two 2012-13 term cases, forty state and federal, trial and appeals courts have opined on the issue; all but one of them has found the bans violate constitutional guarantee of Equal Protection of the law.

Those cases have relied on the legal conclusions reached in 2013's US v. Windsor, which in turn built on prior precedents established in earlier cases of Romer v Evans (invalidating a Colorado state referendum ban on including sexual orientation as a protected class) and Lawrence v. Texas (overturning anti-sodomy laws enforced only against gays). In Windsor, as the court invalidated the federal Defense of Marriage Act, the majority explained:

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State (NY), by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

The lower courts have extended that logic to state-level SSM bans, applying either the traditional 'no rational basis' test, or a kind of 'intermediate scrutiny' that must justify the actions of those governments in treating some citizens differently from others.

Ironically, that near unanimity may have worked against same-sex marriage (SSM) advocates. Traditionally, any of three reasons underlie The Court's granting of 'cert.' petitions: either the case has substantial social importance, or a conflict exists in the Appeals Court rulings that needs nationwide resolution, or, very occasionally, the case is just irresistibly cool (the marred BMW paint job case of a few years back fits the latter category).

The unison chorus of the SSM outcomes foreclosed the 'conflict' concern, and irresistible cases are rare. That leaves social significance as a review criterion, and many court-watchers thought it would be sufficient. Two factors, however, worked against granting a hearing this term. First, among the liberals led by Justice Ginsburg, there is a worry that the Court should not get too far out-front of the society on such matters. Adherents point to the ongoing controversy around the bold, 1973, Roe v. Wade abortion ruling for support. They believe that a more incremental approach to the subject might have cooled the continuing controversy that boils around that 'values' issue.

The conservatives, for their part, are inclined to resist broad constitutional rulings in preference to allowing the states to work things out according to their particular preferences. Both the Chief Justice and Mr. Scalia, the old lion of that wing, also oppose SSM on the merits. Thus the better, easier, and more certain route for them is to allow matters to continue percolating ? even if the cause is nearly lost, and the conclusion almost foregone.

Accordingly, four votes could not be mustered to hear any of the SSM cases.

Practically, what that means is that in states that have either authorized SSM legislatively, or are included in the federal appeals court circuits of those five cases, such weddings may commence as soon as practical (like next week). Our Ninth Circuit is due to rule on a similar case shortly, thus probably adding its western states territory to the total, which will then constitute a majority, both in number and in national population. Other cases will very likely follow.

Now, that sounds like change is not only going to come, but it actually has come for many Americans. But what of the gay citizens of states which have not, and may never authorize SSM? Does not 'justice delayed' mean 'justice denied' in their situations? While they can travel to states that will marry them, when they return home, their new families will continue to live in a kind of legal limbo that the Court has allowed to persist with its 'percolation' theory.

Moreover, while the cultural tide seems to be running irresistibly toward acceptance of SSM, the cause should not prematurely be considered to have been won. Reliable liberals Ginsburg (81) and Breyer (76) are no spring chickens; neither is swing-vote and Windsor opinion author Kennedy (78, along with Scalia). Depending on the 2016 Presidential outcome, the Court could swing sharply right or mildly left. If it shifts toward the conservative, a stronger majority might choose to buck the apparent tide of history and demographics, and even invalidate hundreds-of-thousands of families formed in the interim.

Furthermore, I'm not much impressed with the merits of that whole cultural incrementalism caution. It seems to me that constitutionally protected rights are rights, and that it is not up to the court to be popular, or to nurse the society along toward a day when rights are non-controversial. I understand the Roe concern, but I'd point to passage of the Civil Rights Act of 1964 as an event that was cataclysmic compared to SSM, that would Never have passed a national referendum at the time (or even now?), and yet has been incredibly valuable in forcing the pace of evolution toward a more equitable society.

To me, the Court's focus should not be on the risk of 'controversy' but on the legitimate expectations of discrimination's victims. They are full members of this society, and deserve full participation in its promises, blessings and responsibilities. The Court should be the One place where the rights of those who will forever be a minority are acknowledged and vindicated. This Supreme Court is not that court, and that fact is supremely disappointing.

So change has come for many, but for far from all. That arc of history may indeed bend toward justice, but it needs the full pulling weight of the Constitution's guarantees to get there on-time.

* Equity. noun.
1. the quality of being fair or impartial; fairness; impartiality:
the equity of Solomon.
Synonyms: impartiality, fair-mindedness, fairness, justness, evenhandedness,
objectivity; justice, probity.
2. something that is fair and just.
What is it worth to you?


Posted by Cholo, a resident of Livermore,
on Oct 6, 2014 at 8:07 pm

I don't know about all the stuff that Tom writes about but I do support the right of all Americans to marry the partner of their choice.

It's 2014 and I can't imagine a better time to treat Americans equally. It seems that most citizens believe that all Americans prefer to be treated respectfully and equally. The US Constitution isn't a perfect document but it has served this country through hard times and I have no reason to doubt that it will not continue to do so. It is one of the most remarkable documents that I have ever read.

I agree that Justice Delayed is Justice Denied. America is Great to allow that position to be strongly supported.

Over the years I haven't agreed that all legal decisions are fair. Still, there are ways for citizens to disagree and appeal openly. There is no fear of disappearing for supporting what others might describe as an unpopular cause.

I love America! VIVA AMERICA! VIVA!

Posted by Cholo, a resident of Livermore,
on Oct 7, 2014 at 10:21 am

I've just read a touching story about a Conservative Rabbi:

Web Link

May he and his loved ones have a long, happy, and healthy life!

How could anybody not love this Rabbi?

Posted by Tom Cushing, a resident of Alamo,
on Oct 7, 2014 at 2:07 pm

Cue the Ninth Circuit and two more states. Web Link

Posted by Danville, a resident of Danville,
on Oct 8, 2014 at 7:23 am

Personally, I do not have an opinion on gay marriages. But, I have a question for Mr. Cushing and those that support gay marriage: If three consenting adults want to get married to each other, do you oppose that, and if so, why? Shouldn't they also be entitled to "full participation in it's promises, blessings, and responsibilities"?

Posted by Tom Cushing, a resident of Danville,
on Oct 8, 2014 at 7:51 am

Tom Cushing is a registered user.

I hope others will chime in, but here's my 'take' on it. First, I have to get past the daunting prospect of more than one spouse (perhaps anyone who is, or has been married can relate).

But considering this might be a serious question, from one who really is agnostic on SSM, the process is in-place for the happy trio's plans to be considered under the same Constitutional protections. I have not studied polygamy and would not presume to know all its relevant ins-and-outs, but if actual experts could demonstrate actual harm at some level (at least providing a 'rational basis' for the prohibition, and maybe more) then the state would be justified in limiting the number of participants. Credible evidence of such harm was thoroughly lacking in the SSM cases.

And further, as to any inquiries about children, pets and Corvettes as participants, I am not concerned about them, for each is legally incapable of consenting to the union.

Posted by anony, a resident of Livermore,
on Oct 8, 2014 at 9:11 am

Web Link

tee hee hee...

Posted by Cholo, a resident of Livermore,
on Oct 8, 2014 at 9:37 am

Hi Danville...Mr. Chana got so wrapped in the glee of being surrounded by his lovelies that he decided to marry all 39!

Web Link That's the long and the short of his adventures.

it's none of my business...

Posted by Herman Glates, a resident of Danville,
on Oct 9, 2014 at 4:50 pm

Congratulations to gays on this victory.

Civil unions already gave gays all of the substantive rights of state marriage laws, of course. But now more people can use the marriage label. Labels matter, right?

Support for gay marriage has declined during the past year, from 55% to less than half. Web Link But so what? There?s no rational reason to deny gays the right to use the marriage label.

Liberals like Tom love to use the government to force people to accept liberal ideals. It seems he overestimates the power of government force, though. Force rarely changes minds. Force breeds resentment.

Tom says the Civil Rights Act of 1964 is ?incredibly valuable in forcing the pace of evolution toward a more equitable society.? Maybe so. We?ve rid ourselves of ?Whites Only? signs and other forms of overt racism. But America seems as racist as ever. People are just more discreet about it. Consider this:

--Schools are more racially segregated today than they were in 1972.

--An African American college graduate has the same chances of getting a job as a white high school dropout.

--Resumes with ?white-sounding? names are 50% more likely to get called for an initial job interview than a ?black-sounding? name.

--The black-white employment gap hasn?t changed since 1972.

--Over the last 25 years, the wealth gap between whites and African-Americans has tripled.

--Real estate agents show Black homebuyers 1/5 fewer homes than they show white homebuyers. White renters are shown more units and offered lower rents than blacks.

In short, the Civil Rights Act hasn't helped as much as liberals claim. The government can?t force people to give up their prejudices. That comes from within.

Hopefully someday people will abandon homophobia and racism. If that day ever comes, I doubt government force will have much to do with it.

Posted by Conservator, a resident of Danville,
on Oct 10, 2014 at 9:49 am

Spcwt / H.G.

I suppose that we should all find some solace in consistency. You're writings, even when you are clearly trying to be contrite and offering sense of civility, consistently always make one consider that perhaps tomorrow will be dark, and hope should be extinguished. Been reviewing Dante's works at late as more travel guide then classical literature from the Middle Ages?

While I can not disagree with your characterizations of some of the current social dogma that pervades all aspects of not only American life but that of a global basis, as well, I do take disagreement with your hypothesis on how government or it's actions may sway, motivate and act as a change agent - good, bad and sometimes ugly.

If you disagree, which I know you do from your extensive writings, consider the following three examples of the powers of government 'persuasion' to change hearts and minds.

1) The New Deal's crowning achievement - Social Security (and all of it's derivatives, e.g. Medicare, etc.). How many OLD conservatives do you think we both know who what this done away with for THEM regardless of their socioeconomic status? I would be we couldn't make a standing 10 count between us.

2) The G.I. Bill (circa 1945 and on) - Outside of S.S. initiating a prominent change to what was then (i.e. 30's) a very impoverished portion of American society (seniors), can you find another 20th-century example of government action that so profoundly changed American social classes? I can at least state for one surname in the phonebook that if it were not for such government 'force', that family would still be delivering milk to neighborhood doorsteps. Clearly, I know nothing about yours.

3) The end of Conscription (circa 1973) - By changing the manner and way that we draw our fighting men and now women from society, we have made the process of going to war (however it is defined) something akin to watching a 'sporting contest'. It's broadcast live via the television in a manner no different then any professional competition, minus the half-time show. To those OLD conservatives that we both know and likely socialize with, HOW many of them would beat the war-drums as loudly as is common today if they knew that their 18-20 son (or daughter) or grandchild would be dutifully conscripted as a result of their choices? How about bringing back the metal scrap collectors, the mandated victory gardens and, of course. rationed butter and gas every time one pleads for government to wage war on a foreign shore? How about instead of 1 in 100 families with a loved-one dealing with PTSD, we get that back up to a more 'healthy' 10 or more out of 100 like we saw after Vietnam so that everyone has a better appreciation of the true costs?

Government can and does many things - some good, perhaps too many things not so good. It is clear to me however that they have a social engineering button that you surprisingly underestimate.

Posted by Conservator, a resident of Danville,
on Oct 10, 2014 at 9:53 am

Forgive - need to fire the personal editor. They're slacking off at the moment?Edits in (?)

1) The New Deal's crowning achievement - Social Security (and all of it's derivatives, e.g. Medicare, etc.). How many OLD conservatives do you think (that) we both know who (would want) this done away with for THEM regardless of their socioeconomic status? I would be (surprised if) we couldn't make a standing 10 count between us.

Posted by Cholo, a resident of Livermore,
on Oct 10, 2014 at 10:13 am

Under the law, couples that marry are legally entitled to increased benefits/rights. That's good news!

In the USA, it's not only a matter of black/white. Millions upon millions of Americans can prove their mixed race/ethnicity. Obese citizens also suffer greatly from unfair play. Blind people suffer. Disfigured people suffer enormous inequality. The list of humans that are undesirable is enormous.

It's the human condition that people will always find an undesirable difference in others and many will attempt to use it to their advantage. I find it manageable that some Americans choose to separate themselves from others. Our laws cannot manage everything that surfaces as an inequity for some but not others.

I still believe that the Civil Rights Act was a blessing for the USA! However painful the events that surfaced, it is still a great legal document and it helps guide us today. As for the origins of prejudice and the solution coming from within...I don't know? Certainly, organized religion as practiced in the USA today, the leadership/followers are unreliable. All one has to do is look up Bishop Accountability, click on the colorful map, click on a specific state, diocese and thousands upon thousands of photos of priest/nun child sexual predators pop-up.

I don't believe that racism/homophobia will ever disappear completely. However, what laws and cultural changes that occur will most likely lessen the harm that is done to children/families and our society at large.

The USA is a great great country. I believe that I have been blessed to live in the country. VIVA AMERICA! VIVA!

Posted by Cholo, a resident of Livermore,
on Oct 10, 2014 at 10:31 am

Remark regarding clergy misconduct removed as irrelevant.

C'mon cholo, you know better than to post that in this thread.

Posted by Tom Cushing, a resident of another community,
on Oct 11, 2014 at 11:00 am

It is remarkable that someone (Glates) would quote a few stats that simply indicate "the job is not done," to disparage the impact of the CR Act of 1964. It reflects a fundamental inability to appreciate the abject intolerance of the American apartheid, pre-passage. It also ignores the effect of cognitive dissonance.

So black buyers see 1/5 fewer homes? In 1963, they Legally saw close to 5/5 fewer white-owned homes, because of Jim Crow in the south, and private deed restrictions in the north. I'd say that glass is 4/5 full -- AND there's a cause-of-action contained in the Act get us the rest of the way when it can be proven.

Wealth gap tripled? More fun with numbers. The gap between the lilyish 1% and EVerybody has much more than tripled since 1964. African Americans got a late start.

And what about women, ethnic minorities, other people of color and victims of religious persecution, all also covered by the CR Act? There are 100,000 claims filed with the EEOC alone, every year, and probably triple that number if you count mirroring state laws -- on employment alone, much less housing, accommodations and education, etc.! Without the CR Act, none would have a shot at a remedy.

America will forever chase its founding principles and ideals. Sometimes, as here, government action effectively intervenes to force the pace. Basically, you've made the same mistake as the Court -- only far worse, and 100% more cynically. With all due respect.

Posted by Formerly Dan from BC, a resident of Bridle Creek,
on Oct 11, 2014 at 5:14 pm

Formerly Dan from BC is a registered user.

Dogfath... I mean Tom,

So other than one point, you effectively agree with HG then?

Good to know. :)

Posted by Tom Cushing, a resident of Alamo,
on Oct 11, 2014 at 8:39 pm

Skeeter, if I thought it would somehow get you to stop buzzing my blog, it would be worth agreeing to almost anything.

But it won't, so no, that's obviously not what my post implies. I wrote enough to make my point.

Posted by Herman Glates, a resident of Danville,
on Oct 12, 2014 at 10:30 am

Tom measures success by the number of lawsuits filed. He?s not looking at the big picture.

Tom talks about how things were before 1964. But what we should ask is what has happened since the early 1970?s. That?s when the massive lawsuit industry began.

Lawyers have used the the Civil Rights Act to become fabulously wealthy. Specific victims get money or other relief, of course. Society makes superficial changes to hide racism so they won?t get sued, but racism continues and in many ways it gets worse. The vast majority of African Americans and many other minorities have not benefitted from the lawsuit industry. They?ve been hurt.

Lawsuits are a tool, like a hammer. Liberals keep pounding away without ever asking whether a hammer is the right tool for the job.

I?m not cynical. Just realistic.

Lawsuits will never solve racism, homophobia, and other forms of bigotry.

Posted by Cholo, a resident of Livermore,
on Oct 12, 2014 at 12:17 pm

I agree that mere lawsuits will ever completely solve various forms of inequality.

Still, I have great respect and admiration that Americans have thought enough about trying to solve various problems that the Civil Rights Act was passed! America - GRACIAS!

Multi-millions of American's are wealthy and I believe that that is one of great blessings of living and working in this country. Some of the practices of big business are not perfect. No society functions perfectly. However, many people are employed and able to care for their families/communities because of capitalism. America - GRACIAS!

Even if one is not born in this great country, so many Americans/immigrants are able to work hard and plan/hope for a better life. America - GRACIAS!

Lawsuits frequently make for a improved society. Lawsuits have helped many individuals/communities create a better world for future generations. Children deserve a better world and it's our responsibility as citizens to help create that improved world.

As for racism/homophobia...that stuff is here to morph into new shapes. There will always be good Americans to address the various problems associated with racism/homophobia/sexism, etc.

The USA is a GREAT country and I believe it will remain that way for many future generations. America - GRACIAS!

Posted by Cholo, a resident of Livermore,
on Oct 12, 2014 at 12:25 pm

I forgot to include this: Web Link

I believe that there is much to hope for and look forward in the USA.


Posted by Tom Cushing, a resident of another community,
on Oct 13, 2014 at 7:26 am

Interesting perspective, Glates, from one who actually Has, by his own reports, achieved a measure of success by exploiting opportunities found in the byzantine federal tax law and code.

So I understand where you're coming from, but my blog, and my post, both refer Not to the legal agents but to the Victims of irrational, unAmerican, status-based persecution. You seem unable, or at least disinclined to be able to put yourself in their shoes. Lucky you -- as 'they' say, the fish is the last one to realize he's in the water. "Superficial changes" like employment opportunities and housing opportunities on a substantially more equal basis are quite fundamental to those who only now get to compete for them -- grace of that law. But since you always could, apparently that point is lost, or only trivial to you.

I'm also satisfied that hearts and minds have evolved with the greater contact dictated by the Act -- contact that gives the lie to prejudice, and that also creates a dissonance between belief and deed -- when those are in conflict, beliefs change in the direction of deed. You could look it up.

That the CR Act has unfinished business is a testament to the size of the original problem, not to the law's ineffectiveness. Look to your children -- my guess is that they are significantly more accepting of difference than you are -- perhaps they are even capable of empathy. That's progress.

Posted by Herman Glates, a resident of Danville,
on Oct 13, 2014 at 11:12 am

I?m not saying the Civil Rights Act was a bad idea. It?s a great idea. We need it.

But you liberal lawyers have abused it. The lawsuit industry has done more harm than good.

Lawsuits won?t cure bigotry.

America needs a change of heart.

Posted by Tom Cushing, a resident of Alamo,
on Oct 13, 2014 at 11:38 am

Glad to see you coming around a bit. Some are satisfied to wait for America's change of heart, but 'til then, at least there's deterrence, and victims have a remedy. I do have acquaintances on the plaintiff-side. Some are liberal, some consider themselves entrepreneurs, and many more consider themselves to be civil rights lawyers, first and foremost.

I believe you are painting with way too broad a brush. In the health care industry, for example, where medmal lawyers are the traditional whipping boy, even the Wall Street Journal had to admit that their cumulative effect on costs is negligible. The 'ambulance chaser' image endures, however, nurtured in part by propaganda like yours -- and all those Prop 46 commercials we'll get-to eventually.

But every time they get paid, their client/victims get more, usually/not always much more.

Posted by Herman Glates, a resident of Danville,
on Oct 13, 2014 at 12:38 pm

Great. Keep whipping. The beatings will continue until morale improves, right?

Just don?t kid yourself that you?re actually helping. You?re not.

It?s like whipping a teenager. Doesn?t help. You?ll get your way, for now. They?ll endure your punishment and tell you what you want to hear. But they?ll figure a way around your rules. And they?ll resent you for it.

The only way to overcome bigotry is through Logos, Pathos, and Ethos.

And I?m NOT ?coming around a bit.? My position is the same. You liberals think government force makes things better but it mostly makes things worse.

Posted by Cholo, a resident of Livermore,
on Oct 13, 2014 at 12:59 pm

Some folks need to cool their jets: Web Link

I posted this story online a few days ago and a few first responder's went POSTAL...I was afraid that I would have to leave town for a week plus I was called lots of nasty names.

I'm sure Plutonians don't like knowing that their European ancestors most likely looked like the image in the photo. I think that the published photo should be inserted in the identification documents of all "white" Americans living in America. That way they would NOT be able to deny their racial ancestry. yup...that's one way to help solve the problem of racism in America. I know nothing about Logos, Pathos, and Ethos. However, I do know the difference between red, black, white, brown, and yellow and the story is not very pretty. And, I hear about the awful difference daily! I'm so grateful that there are Americans who like to shout out and stick up for those who get stepped upon because they were born the wrong color/sexual orientation/gender/height, etc.

I believe that one of the most wonderful documents in US history is the US Constitution. Also, the Civil rights Act. The Civil Rights Act has provided a remedy for the sins of the nation.

Posted by Cholo, a resident of Livermore,
on Oct 13, 2014 at 1:03 pm

I don't feel forced by the US government/Civil Rights Act to do anything. I simply behave as fairly and reasonably. That's not difficult for me.

Posted by Cholo, a resident of Livermore,
on Oct 13, 2014 at 3:57 pm


I have never whipped a teen...children/teens/vulnerable adults can be easy targets/ suggestion is that anyone that's aware that this is happening in their neighborhood...PLEASE CALL THE POLICE. IT'S UNACCEPTABLE VIOLENCE. IT MAY ALSO BE SEXUAL ABUSE IN SOME INSTANCES. VOTE IN FAVOR OF YOUTH/VULNERABLE ADULTS AND CALL 911. LET THE POLICE DECIDE WHAT IT IS.


Posted by Formerly Dan from BC, a resident of Bridle Creek,
on Oct 13, 2014 at 4:34 pm

Formerly Dan from BC is a registered user.


As always, you've missed the point there sock puppeteer.

Hmmm..."skeeter" now? How perfectly pedestrian.

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