Barney Frank: Taking Gay Marriage Case To Supreme Court A “Mistake”


I was critical of the decision to take Prop 8 to court. I don’t the think the five-member Supreme Court majority that we have is ready to declare that there is a constitutional right to marry everywhere. To bring a lawsuit when you’re not likely to win it, prematurely, is a mistake. So I was very critical of those people in California who were doing that.

When the Supreme Court decides the Prop 8 case, what I believe is likely to happen is that they will accept the decision of the circuit court in the West Coast [ the 9th Circuit Court of Appeals, which had narrowed the decision to apply only to California].

It’s people being rescued from themselves. Some of them are still trying to push the broader case, which I think is a mistake.”

—Outgoing congressman Rep. Barney Frank, adding his two cents to the SCOTUS marriage-equality debate, in an interview with The Huffington Post. Frank tossed in another penny by calling Justice Antonin Scalia a “flat-out bigot” for his comments at a Princeton lecture last week.

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  • 1EqualityUSA

    Having two tiers of rights, one for separate, unpopular Americans, will be a source of constant tension and endless law suits. Equality must win out. Our country will have been made stronger by this. Careers have formed, Churches have dabbled in political spheres, hatreds have awakened, but in the end, our country will overcome all of this and will see equality. If we are going to be right about something, let’s do “right” well and be bold.
    As long as some Americans are entitled to rights and benefits withheld to other Americans, inequality exists and cannot be supported by our nation’s constitution. As for harming marriage, similar arguments were shot down in Massachusetts. Scalia’s, nor any other person’s religiously based moral beliefs cannot strip others of contractual protections. We should not have any “onus” or burden, or any other hoop to jump through to justify our existence.

    We are American citizens and many disagree with their beliefs. There are over 1,100 rights that we are being denied because of other peoples’ beliefs. This persecution has gone on long enough and we are not tolerating “outsider status” any longer, just to satisfy their comfort level. The government’s endorsement of one group’s values, especially if others that don’t hold those views, is coercion. Their unfounded fears didn’t prove to have a legitimate secular purpose in Massachusetts and it failed, hence, gay marriage.

    Americans, for whom God has not yet manifested, should be free of the beliefs of those for whom God has become essential. Freedom from religion is imperative, because politics is corrupt. Christians were given the choice to accept or reject God’s presence, should not Americans be afforded this same generosity from our government (and the five Catholic Justices) occupying seats on the Supreme Court?

  • Merv

    @1EqualityUSA: And if we get splapped down in the Supreme court, and our cause set back a generation, your soaring rhetoric about what ought to be isn’t going to be worth anything.

  • 1EqualityUSA

    So hide, then. Don’t try. We have no case. Stay 2nd class citizen forever.

  • Wilberforce

    @Merv: Don’t waste your breath. Most of the community don’t think strategically; they lurch from group think to shallow argument to loosing strategy.
    I have always thought that our real priority should be stopping hiv. But it’s a measure of the community’s internalized homophobia that they’ve never lifted a finger to stop it.

  • 1EqualityUSA

    Some boys refuse to wear their raincoats. Talk about not “thinking strategically and losing strategy.” Two decades after the AIDS crisis, I worked triage in an HIV clinic and saw firsthand the consequences of poor decisions. Responsibility for your own health is squarely on your own shoulders. As for never lifting a finger to stop it, that is total bullshit. We’ve gone from fistfuls of AZT and hopeless death sentences to sophisticated pharmaceuticals that have made this a manageable disease that is no longer considered a death sentence, should med compliance be adhered to. That AIDS crisis was immense in the 80’s and the nurses that didn’t quit or retire out of it due to fear of mutation, stayed. It was heroic. Many would go to the church down the street and pray out of fear for what they were witnessing. I’ll NEVER forget what my eyes have witnessed. Shallow argument? Ludicrous. No shallow arguments land at the feet of the Supreme Court. Ted Olson is anything but shallow. Get over yourselves and wear your raincoats.

  • brent

    For once i agree with Frank. The way to handle marriage is at the ballot box, the courts will just polarize the debate like they did with abortion.

  • mcflyer54

    If we are “slapped down” by the Supreme Court it is no more of a loss then if we didn’t go at all. Progress will continue with or without a favorable ruling although a positive result would most definitely be advantageous. If we choose to wait for the “right time” then who exactly would make the determination as to when that “right time” might be and what if the “right time” never comes? Procrastination is exactly what is not going to help anyone gain equality. And @1EqualityUSA – thanks for your equality post as well as your AIDS input. Having worked with HIV/AIDS patients for nearly 25 years I can confirm the accuracy of everything you wrote.

  • TrekBear

    Mr. Frank, it wasn’t the opponents of Prop 8 that brought the case to the Supreme court; it was the proponents. Even then, the Supreme Court was under no obligation to take up the case. Things would have remained as set fort in the Ninth Circuit’s ruling allowing marriage equality in California.

    Prop 8 would likely have been appealed to the Supreme court in any case, so, if you have to blame anyone for the case being on the docket, blame the five (5) justices who granted certiorari.

  • 1EqualityUSA

    Dear brent, Abortion is a different animal altogether. Marriage equality harms no one. Abortion and marriage equality are completely different. Those linking the two issues together are usually trying to bolster their weak arguments against equality. Polygamy is also pointless, as polygamy is banned to both heterosexuals as well as LGBT, so no discrimination exists, because polygamy is banned for everyone across the board.

  • 1EqualityUSA

    One of my favorite posts from a gal named Meryl:

    The Constitution does not exist to better society. The Constitution is basically just the set of rules we hold the government to after we, the People, granted the government the power to govern. The theory behind the Constitution and the theory the framers subscribed to was that ALL powers of choice and action are each initially in the hands of the individual. The Constitution lays out the types of individual conduct that the government has the power to regulate or restrict. This is not simply my interpretation. Any constitutional scholar will agree with me.
    So, it is not for the government to “permit” us to do anything (be it gay marriage or owning property). It is the burden of the government to prove that ANY restriction on our conduct is justified and within their Constitutional power. Some restrictions are so easily justified no one even questions them (criminalizing murder or rape). Some restrictions are inherently suspect and fail to survive scrutiny (anti-miscegenation laws).
    Therefore, the relevant legal question is not whether gay marriage benefits society. The relevant legal question is whether restricting gay marriage is within the power of the government and whether it furthers a legitimate government interest. Furthermore, the interest the government seeks to further cannot be one that itself is unconstitutional. So, if the government restricts the issuing of marriage licenses to hetero couples because of religious doctrine, then that justification is unconstitutional and the restriction is void.
    Now, find me the passion, dogma, or emotion in that argument.

  • The Real Mike in Asheville

    @Merv: You’re an idiot! With your logic, only landowning settlers from European countries would be eligible to vote; those of African descent would still be slaves; women would still be property of their husbands; American Natives would still be 3/5 citizens.

    When I came of age, gay sex was illegal in more states than not; the SCOTUS ruled that that was Constitutional (Bowers Case 1986) before reversing and ruling bans on adult consensual sex as Unconstitutional (Lawrence 2003). Yep, 19 shitty years where we were still being harassed, BUT, the cause just became broader and broader.

    Use your balls Merv for more than jacking off — grow a pair and stand up for your rights!


    Fuck Barney Frank! Way too many folks seem to think that because he is an out Congressman for many years, he has special knowledge. Well, he doesn’t. Frank didn’t come out, he was outed as a scandal unfolded about his boy friend pimping and selling drugs from Barney’s DC apartment. Before Barney got married, before he spoke for marriage equality, he was AGAINST marriage equality.

    Here’s a real good one about Barney Flake: before he spearheaded the repeal of DADT in 2012, he was a lead sponsor FOR DADT in 1993. Yep, DADT, thanks to the very brave Barney Frank, always looking out for … which way the wind is blowing (guess that’s the only blow job he can get).

  • DanteL

    I actually agree with Mr. Frank. The point is to be strategic and chip away at this, not take some giant, leaping lurch with a chance that we will not win and get set back for decades. The anti-gay homophobic Christian Taliban didn’t win by going to all out war. They picked their battles and whittled away, bit by bit. Unfortunately, we figuered out their game too late and, although ground has been gained, still fail to beat these idiots at their own game by trying to make these huge leaps. We’ve won with boots on the grounds, state by state. You’d think we would learn from this. NOBODY is arguing that we don’t have the right to marry and love who we want…we wall want that. But there is a point to strategy and the point is to win…for everybody.

  • MK Ultra

    You guys, its going to happen in 2013. No I’m not being hopeful or thinking people will do the right thing because its the right thing. This is purly from understanding political strategizing.

  • 1EqualityUSA

    Princeton’s NOMster, Robert P. George, Maggie Gallagher, Nancy “wiggling” Elliott of New Hampshire, Romney, Scalia, Brown Boehner, will all be relegated to containers on a shelf, filled with formaldehyde. Their special brand of bigotry and animus will be marked, “Extinct” on aged, peeling labels. Through the patina, future generations of Americans will point and say, “ew, I think I saw that one wiggle, yeah, that one, the one from New Hampshire.” This Country will not let discrimination stay on the books. That’s the beautiful thing about our Country. I have an inordinate faith that our Constitution will rise above mere politicians, justices, and preachers of the day. For those oppressed by the tyranny of the majority, our Nation is a beacon of hope. The GOP has suffered and will continue to flounder for their misguided leadership. This will not be forgotten. Americans don’t want government involved in their bedrooms, nor do we stand for Catholics, Mormons, or any other belief system coercing civil laws. This is biting Republicans in the hindquarters. The last gasps of a dying NOMster, thrashing, gurgling, and huffing out threats is an ugly sight to behold, but the heartbeat is thready and agonal breathing will ensue. Formaldehyde, please.

    Winston Churchill once said, “Americans can always be counted on to do the right thing…after they have exhausted all other possibilities.”

  • jmmartin

    It must have been a while since Barney considered the effect of a bench trial in the 9th circuit case. The federal judge made findings of fact and conclusions of law. Among these were that there is no higher degree of depression or disability of mind in children of gay or lesbian parents than among straight parents. Findings of fact are binding on a higher appellate court. The findings make it clear that the proponents of Prop. 8 misread the Declaration. It doesn’t say what Tony Perkins says it does, e.g. “…that all men are created equal with the exception of homosexuals….” No, I disagree with Barney. This is a good time for it to go before the SCOTUS.

  • erikwm

    We won’t get set back for decades if we lose. We will just have to win at the ballot box. That’s exactly what we did in Maryland. In 2007, The Court of Appeals of Maryland, the state’s supreme court, held that the statutory ban on gay marriage did not violate the state’s constitution. Earlier this year, the state legislature passed a bill that overturned that ban and just last month, it was ratified by the voters in the election.

    A loss at the Supreme Court does not close all roads. Legislative options remain viable pursuits regardless.

  • gaym50ish

    Why concentrate on the Prop 8 case? Aren’t the DOMA cases the more important ones? If DOMA is struck down, then those same-sex couples who are married in any of the nine marriage-equality states will be eligible for the federal benefits of marriage.

    Correct me if I’m wrong, but wouldn’t it also mean that the Full Faith and Credit clause of the Constitution would apply, so that every state would have to recognize a marriage from another state? That clause already applies to adoptions as well as every other type of marriage except gay marriage.

    For example, while most states require one to be 18 years old to marry without parental consent, in Georgia a girl can marry at 15 without parental approval if she is pregnant. Every state must recognize that marriage, even though it would be illegal almost anywhere else.

    What that would mean for gays is that if your state doesn’t issue marriage licenses to same-sex couples, you would simply have to take a vacation to Washington or New York, get married and live anywhere in the country as a married couple.

  • gaym50ish

    If DOMA is struck down but Prop 8 is not, that could be a face-saving compromise for the conservative justices and might help win over the “traditional marriage” politicians. They could still say that marriage is the province of the states and the states should decide whether they want gays to participate. But gay married couples could not be denied the federal privileges that other married couples enjoy.

  • Joel J

    I wonder what odds the bookies are taking on this one. If I were betting, I would put money on the Court striking down DOMA and returning the issue of who may marry whom to the individual states. It may all depend upon Justice Kennedy and how he sees his legacy. It may also be determined by how the right to marry is argued before the Court. Those justices voting to affirm the right of same sex couples to marry will need a compelling argument to cover their position. They are human, after all, and that is the aspect to which I think Barney was talking.

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