When I was studying news articles and trends about which to possibly write for this month’s column, a few ideas came obviously to mind.

Tiger Woods and the problems he’s had keeping his driver in his own golf bag? Nope. Too easy. Anyway, just a few months ago I wrote about how public figures ought to get one “Get out of jail free” card when it comes to adultery I’d only be repeating myself.

I will say this about Tiger Woods, though. Dude! ELEVEN mistresses? When the hell did you find the time to play golf?

Marie Claire magazine’s January cover displays a curvy, nude Jennifer Hawkins and V magazine has devoted several pages of plus-sized models, nude and clothed, as part of the fashion industry’s discovery that women other than size zero can sell clothes and be sexy.

Great idea and great pictures, but I wrote about that topic only two months ago. Again, I’d be covering the same old ground.

You’d think it’d be quite a burden being so consistently ahead of the curve as I am, yet I find ways to cope.

I was standing in the supermarket checkout counter the other day, and I saw Sarah Palin and her daughter Bristol on the cover of the latest In Touch magazine, both holding their new babies with the headline proudly proclaiming, “We’re Glad We Chose Life!”

I realized I haven’t discussed Sarah Palin for a while. But what more can I say to that In Touch cover?

Sarah and Bristol, I’m glad you CHOSE life too, as long as you made the CHOICE after due consideration of which CHOICE was best for you and your respective families, and about how important it is to make CHOICES about these very important issues and about how great it is to live in a country where women can make that sort of CHOICE about their lives and bodies free from the meddling interference of self-righteous hypocrites who want to limit that kind of CHOICE and…and…oh, never mind. It’s like shooting ducks in a barrel.

So, not wanting to rehash the same old same old when it comes to topics for this column, what’s left?

Well, I can talk about gay marriage. Again.

Specifically, I can talk about California’s Proposition 8. Again.

In case you didn’t know about Proposition 8, or knew but had simply forgotten, let me recap. In the spring of 2008, the California Supreme Court ruled that it was unconstitutional under California law to deprive gay couples of the same rights that heterosexual couples enjoy with regard to matrimony. In other words, the California Supreme Court legalized gay marriage. Homosexuals rejoiced and flooded their respective county courthouses and city halls for marriage licenses. Naturally, the forces of homophobia and bigotry shit a ton of bricks at this news, and they got a petition placed on the California ballot to put the matter before the people in the 2008 General election. This proposition, dubbed “Proposition 8” simply stated that the state of California only recognizes “marriage” as a union between a man and a woman. The proposition passed, (with the financial help of several out-of-state religious groups, including the LDS Church, the Roman Catholic Church, and the Union of Orthodox Jewish Congregations).

Get all that? In other words, the California Supreme Court said, “Gays can marry,” and six months later the people of California said, “No, they can’t..”

Naturally, hordes of lawyers invaded California courts, arguing on the one hand that the electorate didn’t have the power to revoke the right of gays to marry, while lawyers on the other side argued that the electorate DOES have that right. In May of 2009, the California Supreme Court, the same body that ruled that gays have the right to get married, ruled that the people do have the power to revoke the very right that the judiciary had granted only a year before. What had been given had now been taken away. Interestingly, though, the California Supreme Court also ruled that some eighteen thousand unions that had been solemnized while gay marriage was legal would still be considered valid.

After the California Supreme Court’s ruling, the next step in this long, complicated battle was the Federal court system. The case is called “Perry v. Schwartznegger,” and as of this writing it’s being heard by U.S. District Court Chief Judge Vaughn Walker for the Northern District of California in San Francisco.

Now ya gone and done it. Someone woke the Big Dog.

Let me explain the full implications of this action by simplistically comparing state-versus-Federal jurisdiction to a baseball dispute. Let’s say the New York Yankees and the Boston Red Sox, (two American League teams), are in a dispute over the interpretation of the designated hitter rule, a rule which applies only to teams in the American League. They make their case to the President of the American League, who makes a ruling. This ruling doesn’t affect me or my team, because my team’s in the National League. But if the Red Sox (buncha crybabies) don’t like the ruling and appeal it, they would take their case to the Commissioner of Baseball, who governs both the American AND the National League. HIS ruling could very much affect every team in the majors, including my own.

Thus it is with gay marriage. To this point, every single legal and electoral challenge for and against marriage equality has been on the state level, interpreting state laws, state constitutions, and state constituencies. When Judge Walker issues his ruling, it will affect every state in the U.S. 9th District, which includes not only California, but Alaska, Hawaii, Washington, Oregon, Nevada, Montana, Arizona and Idaho. From there, the decision will (certainly) be appealed by the loser to the Federal 9th Circuit Court of Appeals, and from there, the United States Supreme Court. Any ruling by the U.S. Supreme Court would likely affect the rights of gays to marry in every state in the Union. A positive ruling for Prop 8 opponents could finally legalize gay marriage once and for all.

What’s ironic about all this is the fact that the homophobes brought this on themselves. Their strategy nationwide has been to fight marriage equality tooth and nail, at every opportunity, in every state, never giving an inch. They’ve not only fought gay marriage, but civil unions, allowing gays couples to adopt kids or be foster parents, and to even resist allowing gay people to teach school. How strident have they been? In Texas, a pair of men who’d married in Massachusetts and moved to Dallas tried to file for divorce last year, only to have Texas’ attorney general Greg Abbott intervened. Mr. Abbott argued that the state’s gay marriage ban prevented the Texas court from recognizing the union as being legitimate.

That’s right. The state of Texas is so horrified by gay marriages they actually fight attempts to end them. A Texas judge ruled the couple could divorce, but the case is still making its way through the court system.

The point is that gay marriage opponents have fought so vigorously their arguments border on the absurd. In “Perry v. Schwartznegger,” Charles Cooper, the pro-Prop. 8 lead attorney has claimed that he will show that gays are not harmed by the gay marriage ban, that gays don’t suffer discrimination or unequal protection of the laws, that heterosexual marriage will be harmed if the ban is lifted, that heterosexual marriage is mostly about raising children in a male-female household, that California laws permitting divorced couples, ex-felons and single parents to raise children DON’T harm children more than gay married couples would, that banning gay marriage is different from banning interracial marriage, and on and on.

So what’s the upshot? Until now, gay marriage arguments have been made on dozens, even hundreds of small scales. State laws, state principles, state courts, state jurisdictions, state electorates. A victory for one side in Iowa meant nothing in Arkansas, the same way a victory for the other side in New Jersey had no impact in Vermont.

Now, however, it’s a different game. The small scale battles have started to be fought on a larger battlefield, a battlefield that will only grow in size. For the first time, the Federal court system is having to listen to all the arguments, for and against marriage equality, determine their validity, and weigh those arguments in light of the United States Constitution. The more often the Feds have to listen, the more often the Feds have to decide, and the impact of those decisions will be so much the greater.

So, what’s going to happen now? Hard to say. Regardless of how “Perry v. Schwartznegger” comes out, the loser’s going to appeal. If the case made it to the U.S. Supreme Court tomorrow, the pro-Republican majority would probably rule against gay marriage. However, it would take at least two years and more like three to five years before the case makes it to the high court. What are the chances the court’s makeup will change before then?

Rest assured, I’ll be following this one much more closely than I am the Tiger Woods saga.

J.T. Benjamin
February 2010

“All Worked Up” © 2010 J.T. Benjamin. All rights reserved.