Wednesday, August 29, 2007

Hallow Victory

From Inside Higher Ed:

An Ohio appeals court has rejected a suit challenging Miami University’s policy of offering domestic partner benefits to employees. The decision, which upheld a lower court’s ruling, was not based on whether such benefits are legal or conflict with the state’s ban on gay marriage, as the suit charged. Rather, the appeals court upheld a lower court’s ruling that under Ohio law, the conservative lawmaker who sued lacked the standing to do so — either as a taxpayer or as a tuition-paying parent. The court ruled that taxpayers do not have a general right to challenge any decision by a public entity. As for the tuition-paying parent argument, the court noted that tuition funds are not used to pay for the benefits, and that any parent who disagrees with a university’s policies is free to stop paying tuition. The decision and briefs are available on the Web site of Lambda Legal, a gay-rights organization that fought to defend the benefits.

While I am elated that the Ohio courts upheld the Miami University policy not to discriminate, I find it a shockingly hallow victory. Rather than saying that the law is wrong, violates the Fourteenth Amendment or some other kind of substantive challenge to the law, it is upheld by the fact that taxpayers don't have standing.

I didn't expect any court to actually do this (save for maybe the perfect combination of judges on the Ninth Circuit). Unlike activist judges, these judges actually respect the rule of law and things like precedents. What worries me, however, is that people are going to look at the headline for the ruling ("Ohio Win for Partner Benefits" in this case) and think that there was some broad sweeping win for LGBT rights. There wasn't. And, if anyone actually does have standing and sues, then the results could be disasterous.

I just don't see progressive change happening through court decisions. People seem to fetishize Brown v. Board of Ed and Roe v. Wade as major turning points in winning rights for people of color and women. But I think that's exactly the issue: they were turning points in the campaign. The work that went into those campaigns is what ultimately made them successful, not the decisions themselves. It seems to me that the lessons we learn in school seem to whitewash the true nature of social change (e.g., Rosa Parks sat because she was tired -- no, she was organized to participate in civil disobedience). Courts are social products and judges are members of society; if they see the world around them changing, then their decisions are influenced by what are considered standards in society. Without the kinds of sustained campaigns that these victories were built on (for instance the first March on Washington was proposed during WWII), the courts might not have made those decisions.

While this decision is definitely a victory, it is not the kind that I will be gleefully celebrating.


dr said...

I don't think you can fault the court for not ruling on wider grounds -- the question of standing is fundamental.

Incidentally, here in Michigan a similar ruling was issued awhile back. Which means, in effect, that if the ACLU hadn't brought suit (in a seperate case) we'd still have SSDP benefits the same as before. Oops.

Mike3550 said...

DR - I realize that the precedent is important - "I didn't expect any court to do this...Unlike activist judges [Like Alito and Thomas], these judges actually respect the rule of law." And the decision I link to is actually the Michigan case which we lost.

My larger point is that fighting for comprehensive victories on civil, human and economic rights is useless through the courts as the strategy in itself. People point to victories such as Brown and Roe and say that it has been successful in the past. But, they neglect the fact that huge movements went into those campaigns and the court cases were a piece of a larger strategy.

It is precisely because the Ohio court made the correct ruling that shows how little can be achieved through court battles alone.

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