By now, the nationwide debate over same-sex marriage has familiarized us with the sweeping, structural inequalities that face same-sex couples, from access to partners in hospitals to uncertainty regarding parenting arrangements when a custodial parent dies. Even the doors of the halls of justice often swing shut in the faces of LGBT partners.
In February the United States Justice Department began remedying this inequality on the federal level. The federal prosecutors’ directive illustrates the vast legal privileges enjoyed by heterosexual couples in the courts, from the right not to testify against a spouse to inmate spousal privileges, to the ability to file bankruptcy jointly. The level of inequality is alarming, and at the state and local level, there is a lot of inconsistency in the way that same-sex partners are treated. Currently the only way to secure access to justice is to ensure that we elect officials who take seriously the charge of ensuring equality before the law, and that we put pressure on those already elected.
That’s where Rob McGuire comes in. This “Law and Order” candidate for Nashville District Attorney, with endorsements from the Fraternal Order of Police and current D.A. Torry Johnson could have run a very safe campaign based on his 12-year career in the prosecutor’s office. Instead, he has done something remarkable and stuck his neck out for LGBT equality, declaring that, in executing the office of D.A., he would treat same-sex couples the same as their heterosexual counterparts.
When asked why he didn’t take the easy route, given that the position would be unpopular with some, McGuire, sounding as if he thought the answer obvious, stated, “What’s popular is not what’s always right – this is the same as a prosecutor in the 1960’s standing up and saying, ‘I’m going to treat black defendant or victim the same as a white person.’ To me it’s not controversial – for me its just the decent thing to do for people.”
For McGuire the issue isn’t merely hypothetical. He recalled one case where “a homosexual man was murdered and his partner wanted to be involved in the prosecution but he was worried we wouldn’t involve him or take him seriously. I treated him like I would any spouse of a victim: when he came in I updated him and kept him as involved as he wanted.”
As D.A., McGuire would have the power to make sure that this same treatment would be department-wide policy. “I would issue directives to the office stating that, in terms of case management, case preparation and victims services and the victims rights amendment, LGBT spouses would be treated in the same way as heterosexuals.”
When asked how this would be different from the current state of affairs, McGuire said that “most of the assistants in the office already have the same philosophical beliefs – but such directives would take the decision out of the hands of individual prosecutors. Additionally, it’s important as a statement that, in the state capitol, we’re going to treat homosexuals as full members of the community with regard to public services. You should expect the same level of care and devotion as a straight couple: that’s fundamental to the way things should be.”
While McGuire hopes that he could send a message to the rest of the state, the actual impact of his victory would be limited to metro Nashville. While US District Court Judge Aleta Trauger ruled against Tennessee’s refusal to recognize legitimately authorized marriages from other states, which would extensively widen the protections of gay couples across the state, Tennessee Attorney General Robert Cooper has vowed to continue to fight the ruling.
Daniel Horwitz, an attorney in Nashville and a former judicial law clerk for Tennessee Supreme Court Justice Sharon G. Lee, has circulated a letter asking Cooper to drop the state’s appeal, for which he is collecting signatures from members of the Tennessee Bar Association. Given Cooper’s public statement that he will appeal the ruling, it is unlikely that he will back down soon, but he may do so at any time. When asked why he’s pressing the issue against such long odds, Horwitz explained: “We shouldn’t let these issues pass as easily as we do. These decisions shouldn’t be made without any kind of response. Gay rights are human rights, and equality is a core American value.”
(from left to right Tennessee Supreme Court Justice Sharon G. Lee, Daniel Horwitz and Attorney General Robert Cooper; photo provided)
While it seems likely that, in the long run, the courts will ultimately side against the state, for Horwitz – who is not a member of the LGBT community himself – it is still important to press the state to drop the case now. “It’s a faster option,” Horwitz explained. “Why is that better? That’s a question for those who are currently being denied their rights. The goal is to secure equal protection under the law for the LGBT community as quickly as possible.” This move is even more important as, with its closing breaths, the Tennessee State Legislature attempts to pass a resolution condemning Judge Trauger's action, a resolution amended to include encouraging AG Cooper to "vigorously" defend the state's constitutional ban on same-sex marriage.
Rob McGuire has pledged to sign Horwitz’s letter. McGuire also seconded a sentiment expressed by Horwitz when he explained why it’s important for him to be an ally in the cause of LGBT rights: “I feel like, to me, this is my generation’s civil rights movement. When my children are my age, they’re going to look back on our time and say I can’t believe they didn’t get that everyone should be treated the same. If there’s anything I can contribute to making sure my children see the day when that is obvious to everyone, I’m going to do it.”
Early voting in Nashville begins today and runs to May 1, and the election is on May 6. Members of the Tennessee Bar Association who wish to sign Horwitz’s letter may contact him at [email protected].