May 16, 2013

The New "State's Rights": Marriage Equality and Reproductive Justice


This talk was presented by Ann Montague on April 26, 2013 at the Socialist Action West Coast Educational Conference in Oakland, CA.
We often see that the twin parties—Democrats and Republicans—issue different talking points to the media pundits. Republicans send them out to Fox News and generally the Democrats send them to MSNBC. But it is not so often that we see a message so clear, the timing so synchronized, the ruling class so visibly united in its message as we saw last month. It gave me whiplash. It was the weekend before the Supreme Court was scheduled to hear two Marriage Equality cases. The first salvo came from the Sunday New York Times—the advance guard of the Ruling Class. On the front page: “Shadow Of Roe V. Wade Looms Over Ruling On Gay Marriage.” What?
They went on to say that the Roe decision was “needlessly rash” and created a culture war. Notice that whenever people are demanding their civil rights—they are starting a culture war! They even had Ruth Bader Ginsburg commenting last year on the decision: “It was not wrong, but it moved too far.” She continued that possibly they should have struck down only Texas’s restrictive abortion law and left the rest to the states. She is continuing to make this state’s rights argument six weeks after the New York Times article in a talk to the University Of Chicago Law School.
In other words the message was that the court should allow Marriage Equality in California but leave in place the prohibitions in 40 other states. The NYT went on to present the opposition’s argument for them, saying ”states should be allowed to work out delicate matters like abortion and same-sex marriage by themselves.” So two days before any arguments were even heard we saw the historic State’s Rights argument being applied, not to defend Jim Crow laws in the South but to attack Reproductive Rights and Marriage Equality simultaneously.
That was Sunday morning. By Sunday afternoon, as I was going to a meeting in a restaurant and passed by a television set, one of the talking heads on Meet The Press was saying, “The best thing the court could do would be to leave the decisions to individual states.”
And then on Monday morning Andrew Sullivan, a gay blogger who has been a consistent supporter of Marriage Equality, wrote, “The 17 states that have Marriage Equality or Civil Union laws should be recognized by the Feds and the debate should then continue state by state.”
This is all just before the Court was to hear the cases. For months leading up to the Supreme Court’s agreeing to hear the cases, all the discussion around Marriage Equality was around the huge national sea change being reflected in the polls. These polls were consistently showing that a majority now support Marriage Equality, and of those born since 1981 there are now 71% who support Marriage Equality. Even in polling of young evangelicals who are asked to rank the issues they are concerned about, “gay rights” and “abortion” have all but fallen off the list, replaced at the top by AIDS in Africa, poverty in the U.S., and “Creation Care.” Even John Paulk, poster boy of the Ex-Gay movement since 1988, issued a heartfelt statement of repentance for having advocated “reparative therapy” and denounced himself for the harm he has caused members of the LGBT community.
In addition there had been a daily countdown of politicians, Democrats and Republicans who were speeding up their evolutionary process.
You could almost feel the atmosphere changing. Would the 14th Amendment finally include us, the LGBTQI community? Would its Equal Protection Clause, which requires each state to provide equal protection under the law to all people within its jurisdiction, include us? This was the clause that was the basis for Brown vs. Board of Education (1954) and Reed vs. Reed (1971), where the Supreme Court struck down a law based on gender discrimination.
In the midst of this possibility that the shift in public attitudes could be reflected in a Supreme Court decision, behold: the NYT starts screeching caution and issuing warnings about what they called “intervening in a social reform movement.” Of course State’s Rights in relation to Marriage Equality had long been the position of our Constitutional Law Professor President. But he had been silent lately.
As the momentum in the country was building, even as individuals in both parties were falling over themselves to make sure they were on the right side of history, the power behind the throne or the Oz behind the curtain was trying to bring it all to a screeching halt. And they wanted to do that by crying out “State’s Rights” through the NYT, the TV Pundits, and the bloggers, of course.
Historically, southern states insisted they had a right to make laws that discriminated on the basis of race. And for decades there have been states that use the concept of State’s Rights to violate a woman’s right to make decisions about her own body.
Anti-abortion forces have always said that overturning Roe v. Wade would send it back to the states so each state could decide. North Dakota last month banned the termination of pregnancies beyond six weeks—which pretty much means you have to seek an abortion before you know you are pregnant.
And now we have this cascade of support for states being able to deny equal rights to its LGBTQI residents.
Of course it must be said that for decades there has been a huge vacuum where there should have been strong leadership of our movement. This was particularly true on the Federal level where the so-called “schmooze and access” crowd had not a clue about how to build a powerful social movement and depended on cocktail parties and dinners with legislators. Which of course yielded nothing. With the exception of Don’t Ask, Don’t Tell there has been not one piece of federal legislation, not even one against job discrimination, that will cover all 50 states.
With the exception of Act Up, basically all the progress that has been made is a result of the grass roots use of the tactic which arose out of the 1969 Stonewall Rebellion..”Come Out, Come Out..Wherever You Are”.
But the question remains, Why is the capitalist class putting on the brakes? These ongoing attacks on reproductive rights paired with Marriage Equality are now both wrapped in State’s Rights.
We do know that in a financial crisis there is always an ideological offensive against women’s equality and independence. They reinforce the heterosexual model of wife and mother and caretaker and housekeeper. And during this particular crisis they are transferring the economic burden of the costs of social services—not only child care but also elder care, education, and health care. Anything that affects their rate of profit.
But some have wondered: ”Do the capitalists really care about Marriage Equality? Does it matter to the employing class that two men or two women want to marry? I would say yes. Clearly. Anything that affects their profit margin matters to them.
We know historically that the capitalist class uses every means it can to divide the working class. In some states that may be more difficult where Pride At Work and LGBT Union Caucuses have been talking to workers for decades about why “An Injury To One Is An Injury To All” applies to their LGBT co-workers. But of course in those traditionally “state’s rights” states this is an issue they will continue to use to divide workers.
But in addition the Prop 8 Case is only part of what the Supreme Court will be considering. There is also the case to overturn DOMA, the Defense of Marriage Act, a bipartisan bill that was supported and then signed by Bill Clinton in 1996.
The main thing it does is that it defines the word “spouse” to mean a “person of the opposite sex who is a husband or wife.” So by changing the definition of “spouse” there are now over 1,100 federal benefits that are denied same sex couples. Many of these are economic and some are legal benefits. That also means that by a simple change in definition major monetary benefits can be granted or denied. The largest are Social Security, tax benefits, and health insurance benefits. They go on and on.
This is the clearest most transparent example of Heterosexual Privilege built into Federal law. It is interesting to note that recently the GAO (General Accounting Office) has been doing a review, and it reports that there are 1,100–1,200 benefits in Federal law that currently discriminate against same sex couples. But this is the General Accounting Office of the Federal Government. They are about money, what things cost. It is interesting that they have not publicly released their estimate of the costs of eliminating the discrimination against same sex couples. I am sure there are some members of the ruling class that have received those secret estimates!!
The struggle for Marriage Equality is a civil rights struggle. And those rights should not change from state to state. They should not be voted on by individuals in states.
During the second wave of feminism there was a movement for the Equal Rights Amendment. This was to include non discrimination on the basis of sex in the Constitution. After it was voted on and passed in Washington State we produced a button with the outline of the United States and it said, “We All Live In An Unratified Country.” This was to emphasize that it did not mean anything that one state says there should not be discrimination based on sex. It must cover all 50 states.
And so it is until Marriage Equality and non discrimination in employment exists in all 50 states we have no Marriage Equality or ban on employment discrimination. Until we have Reproductive Rights in all 50 states with fair and equal access we have no Reproductive Rights.
This will require an independent movement demanding equal rights in all 50 states and a strategy based on understanding that you cannot lobby your way to social change!!

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