Breaking the Spell: Rethinking queer community

[dreadgeek]

Originally Posted by little man

tangent aside, i wonder if a class action suit was brought against not only state, but federal government for not holding up their end of the bargain...sue for return of taxes, punitive damages, whatever...if that would not serve as a way to bring the issues of second class citizenship to the forefront. it would be *just* about sexual deviants wanting to wreck marriage then...it would be about the dignity that all humans have a right to. it would be about all the groups who don't have a place at the table, not just the ones who didn't get silverware or a clean plate.

ok, i'm rambling off into hyperbole. that's what i've been wondering.

bueller? bueller? anyone???

There's a number of problems. The first is that the government has sovereign immunity. What that means is that for most things you can't sue the government, particularly not the Federal government. The second is that if you are going to sue the Federal government, that very same government has to tell you that you *can* sue them. Third, we'd have to determine on what possible grounds we are suing them. The social contract is an unspoken contract and so would not stand up in court. Fourth, in order to have standing we would have to show that the government was in breach either of law or of a signed contract.

What we *can* do is sue our states for violation of our 14th Amendment rights. But even that should probably be done only on a limited basis. What we're going to have to have is that enough states will pass laws guaranteeing marriage equality. Then when a couple in one state, moves to another state where their marriage is not recognized, sue that state for violating the Full Faith and Credit clause of the Constitution. The short version of that clause is that a contract executed in California is legally binding in Oregon. This is going down the same path as interracial marriage took. By 1967, 33 states had legalized interracial marriage. All of the states of the South, however, still had anti-miscegenation laws on the books and in force. Mildred and Richard Loving were an interracial couple (she black, he white) who were originally from Virginia but had moved to DC and gotten married. They then went to Virginia and had to rent a hotel room. Their being married violated Virginia law and so they were arrested, tried and convicted. The judge suspended the sentence on the proviso that they leave Virginia never to return. They appealed the decision and the Virginia Supreme Court upheld it in one of the uglier court decisions one is like to read in American law. They then appealed it to the Federal courts and it thus wound up in the Supreme Court.

We *can* use the law in that way but a class action lawsuit simply won't work because the legal system has to recognize that you have rights under the law and, at present, it doesn't in a consistent fashion which, after all, is what the whole argument is about.

cheers
Aj