Supreme Courting Disaster

By Kuehl, Shiela | The Advocate (The national gay & lesbian newsmagazine), February 13, 2001 | Go to article overview

Supreme Courting Disaster


Kuehl, Shiela, The Advocate (The national gay & lesbian newsmagazine)


Here's my contribution to an election in which the humor that's been generated may be the only saving grace (remember "Hail to the Thief"?): What do Cleopatra and Log Cabin Republicans have in common? Answer: They are both queens of de Nile.

I was, for some reason, surprised to learn that the Log Cabin folks have so lost their way that they have pronounced President Bush's impending four years as "not a disaster" for the GLBT community. This may equate with my favorite legal standard for equal protection analysis in the appellate courts: the Not Wholly Irrational Standard. Except that simply crossing one's fingers and hoping that somehow "W" will ignore conservatives, reverse himself on antigay stands, and be anything but a disaster for us is wholly irrational. Apparently the additional weak assertion that Bush won't be able to do much harm in four years, since most of our protections rest with the states, is meant as a further assurance.

Let me gently suggest that this is not the point. What we have lost is our opportunity to move forward, to cash in on the goodwill we have stored up by coming out in great numbers, presenting our ordinary humanity to the world, and asking only for equality. What we stand to lose is our momentum for gain, being again forced to focus on playing defense.

We've also lost faith in the Supreme Court. Who knew I still had any? Still, I felt a sharp pang of disappointment in O'Connor and Kennedy. Their complicity in applying the equal protection clause of the 14th Amendment to stop the recount for a weekend because it could cause "irreparable harm" to Bush was demeaning.

As George Orwell reminded us, "All animals are equal, but some animals are more equal than others." The methods of analysis used by the court over the years to decide whether the equal protection clause was violated have always been convoluted, reflective of the prejudices of the day, and, in their own ways, "political." Prior to 1971, when faced by arguments that states should not be able to treat women differently from men, the court looked first at its historical analysis regarding gender. …

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