Which Path of the Law?

-- By JocelynGreer - 8 April 2013

Introduction

When I think about what kind of lawyer I want to be, the decision to dedicate my career to fighting injustice is easy. But the choices of what causes to fight for, in what order and with whom are much more challenging. The dilemma I faced in supporting the ongoing marriage cases is a prime example of my confusion. Competing in the Frederick Douglass Moot Court competition earlier this year, I was posed with the question – albeit in a fictitious context – of what consequences would result from federal recognition of same-sex marriages. As a liberal lesbian representing a persecuted gay man who had been denied the right to file for a legal separation and to receive basic federal benefits, it might seem like my answer would be clear. However through my research, heated debates with queer friends, and my own personal experience, I have become very suspect of the same-sex marriage initiative.

The Issues Behind the Issue

It’s not that I oppose granting gays and lesbians the right to marry, but more so that I take issue with the people in the movement themselves and the message it sends. Although it bills itself as an LGBT advocacy group, the Human Rights Campaign (whose logo has been borrowed by thousands of Facebook users to show their support for marriage equality) has been all too ready to disassociate with transgender causes when convenient. The HRC and those who show passion for LGBT equality solely within the marriage issue have also been cruelly disinterested in the glaring problem of LGBT youth homelessness. The elitism of marriage equality is perhaps best exemplified by the fact that at the center of the DOMA case is an estate worth more than $5 million. As Yasmin Nair would say, “Gay marriage IS a conservative cause.” It alarms me that we as a society are more concerned with Edith Windsor’s estate tax than with the fact that 40% of homeless kids are LGBT.

Is this a Fair Stance to Take?

I try to put a positive, more inclusive spin on the cases: Perhaps homosexuals will be declared a quasi-suspect class, and it will be harder to pass legislation that discriminates against gays in other contexts like employment, housing, and healthcare. Then, I remember that there’s also the strong chance that the Court will declare a fundamental right to marriage for all, which wouldn’t do anything for those who aren’t able to or don’t want to get married. Admittedly, as a product of one of the many American marriages that end in divorce, I’m not as concerned with the right to enjoy marriage benefits as I am with employment, housing and healthcare discrimination.

When I explained this to a biracial queer friend, she pointed to Loving v. Virginia. That case, she said, allowed her parents to get married, allotted them federal benefits that made them financially stable enough to send her to Princeton, and empowered her and her siblings with the knowledge that her family was accepted by society. “That’s great, “ I found myself snapping back. “If you believe in the values of marriage, your parents’ marriage happens to be one that doesn’t end in divorce, and your parents have money and property subject to taxes.” I certainly believe in the message of Loving v. Virginia, and am happy that it came in time for my friend’s parents to raise a family without the state’s interference. But that case didn’t do anything to ail black poverty or incarceration rates.

Nothing that happens can pass the test of being also everything else. So what?

The import of same-sex marriage to society is even more frustrating to me when I remember that the other premiere LGBT issue of our time is Don’t Ask Don’t Tell. The most pressing concerns that exist in the LGBT community are not disproportionate homelessness, employment discrimination or anything concerning transgender people, but warfare and federal benefits.

While my friends find it irritating, I find it concerning that I’m now arguing against the ideas that once stood at the core of my being. Although I think there are more worrisome violations of rights than marriage inequality, I don’t want to stand in the way of same-sex couples gaining equal rights either. Still though, I can’t escape feeling that I don’t want this marriage case – and the principle of “just us” that it stands for – to succeed. When I consider my future and whether or not I would choose to align with the HRC and help litigate the marriage cases if I had the opportunity, I have to ask myself whether or not it would be worth an ends that I believe in to concede that equal protection is first and foremost afforded to the rich and popular. By the same token, I also wonder if it would be wrong of me not to take every opportunity to fight against injustice.

Conclusion

I have ultimately realized that I might have to go off the beaten “civil rights” path when deciding what laws I want to challenge. And the causes I pick may not be worthy of a profile picture trend, but I could possibly help people who would otherwise be forgotten. My friend is right in the sense that cases like Loving v. Virginia and Windsor stand for something: They serve as important reminders that lawyers truly do have the capability to put an end to injustices. I’m inspired by them to change policies of public housing discrimination to try to put a dent in the LGBT homelessness figure.

I don't understand the argument. It appears that you think this is an issue primarily of interest to gay people who aren't you. That sounds right. My mother and her partner, who do have real estate and pay taxes and so on, probably won't get married either.

I didn't have the impression that we were doing this because we thought getting married was very important for all gay people. I don't want to be married either, so I would hardly wish it on my gay friends. My impression was that we were doing this because it represented fundamental justice for people who did want to get married, unlike you and I. And you haven't begun to explain why you think achieving that fundamental justice isn't important.

So we are left with the point that you want to work on problems that matter to you. This is a good resolution to come to, but I don't think it supports the weight of the essay.