San Francisco City Hall after Prop. 8 was struck down. (Flickr/CHUCKage)
It's been pointed out many times that both the liberals and the conservatives on the Supreme Court often seem to reason backwards, starting with the outcome they'd prefer to see, then coming up with a rationale to justify that outcome. For instance, as I noted yesterday, Antonin Scalia was happy to overturn a law passed and overwhelmingly reauthorized by Congress (the Voting Rights Act) because he didn't like the law, then in a decision issued the very next day, thundered against the Court's majority for having the temerity to overturn a law passed by Congress (the Defense of Marriage Act), because that happened to be a law he did like. Fortunately, the sweeping majesty of our jurisprudential history provides an endless supply of rationales a justice can use to support whatever decision he or she would like to make.
But sometimes, a good outcome can produce a dangerous precedent. And that may be just what happened in the Proposition 8 case the Court decided yesterday.
Last week's oral arguments in two landmark cases involving same-sex marriage will likely not be followed by opinions until late June. In the interim, there will be a great deal of speculation about what various rulings might mean. With respect to the legal challenge to Section 3 of the Defense of Marriage Act, speculation about the outcome will be less common because most legal observers (including me) expect a comfortable majority of the Court to strike it down. With respect to the challenge to California's Proposition 8, however, the outcome is less certain. Each outcome will lead to markedly different developments for gay and lesbian rights. For this reason it's worth teasing out the implications of the possible rulings in the challenge to Prop 8.
It's always dangerous to read too much into oral arguments at the Supreme Court. You can certainly get a general sense of which way the justices are leaning by the tone of their questions, but it's also easy to be misled, particularly when the case in question affords them a number of options for a ruling. So it was in today's case testing the constitutionality of Proposition 8, the California initiative banning same-sex marriage in the state. Justice Anthony Kennedy, the presumed swing vote, spoke in rather emotional terms about the "40,000 children in California that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"
This week, the Supreme Court will hear oral arguments in two landmark cases on the question of same-sex marriage, one about California's Proposition 8 and the other about the federal Defense of Marriage Act, which denies hundreds of federal benefits to legally married same-sex couples. The cases could go any of a number of ways, with many predicting that the Court will strike down DOMA but find some way to avoid saying that laws banning same-sex marriage in a particular state are unconstitutional. (Options include upholding Prop 8 and ruling that those defending the initiative have no legal standing to do so.) As usual, all eyes will be on Anthony Kennedy, presumed as always to be the swing justice whose opinion will determine the outcome.
This morning, the Supreme Court did not decide to take Perry v. Hollingsworth, the California Prop. 8 case. According to the conference schedule, the Justices were supposed to discuss it yesterday. They didn’t actively decline to take it; they could still make a decision to hear it in the months to come. But at least for today, no news is good news.
If you've ever read an article about a gay marriage ballot initiative, you've almost certainly seen an anti-marriage-equality advocate proclaim confidently that every time the question has been on the ballot, "traditional marriage" has won, and this time will be no different. That isn't precisely true—in 2006, Arizona voters rejected an initiative that would have banned both same-sex marriage and civil unions—but very nearly so. Ballot initiatives have banned same-sex marriage in 32 states over the last 15 years, so the "traditional" marriage side has some reason to gloat. But this fall, that run of success could come to a screeching halt. There are four marriage initiatives on the ballot in November, and at the moment it looks very possible, even likely, that on election night three more states will allow all their citizens to marry. We may well have reached an electoral turning point.
It has been a very good couple of years for advocates of gay rights. The military's "don't ask, don't tell" policy was repealed in 2011 (and the resulting catastrophe of morale predicted by conservatives failed to materialize, to no one's surprise). After a long period of "evolving," President Obama came out in support of marriage equality in May. This year's Democratic Party platform will for the first time include a provision pledging support for marriage equality. Nevertheless, 32 states still have discrimination written into their laws or state constitutions.
Late on Tuesday, when just about everyone had already left for their Fourth of July celebrations, the Department of Justice announced that it was asking the Supreme Court to take two DOMA lawsuits, promptly. The first was no surprise: You know that the First Circuit already, very cautiously, declared in the Massachusetts cases (Gill v. OPM) that DOMA’s Section 3 was unconstitutional. That’s the section that says that, for federal purposes, marriage is between one man and one woman—and therefore that the United States will refuse to recognize any state’s decision to marry same-sex pairs.
I’m married in Massachusetts. I’m not married in the United States. That paradox is untenable, the First Circuit Court of Appeals declared in May as it unanimously struck down Section 3 of the Defense of Marriage Act—the portion of the 1996 law stating that, for federal purposes, marriage is between a man and a woman. Most legal observers believe the Supreme Court will agree, and the feds will have to recognize my marriage. That would leave me almost fully married, but not quite: Thirty-eight states still ban recognition of same-sex marriages. So what’s the path to marriage equality nationwide?
Here’s some absurdly good news. As Garrett Epps told us, the Ninth Circuit yesterday decided to stand by its panel’s decision in the Prop 8 case and kick it upstairs to the Supremes. Maybe SCOTUS will refuse to take the case; that would be fabulous news, turning California immediately into a marriage-equality state without causing me any anxiety about someone up there writing a decision that leaves a bad precedent. But the good news is that the First Circuit’s nice, narrow ruling striking down DOMA’s section 3 will probably get there first.
You all have got to be tired by now of me celebrating good news for LGBT rights, bouncing around in my Tigger-y fashion, showing yet another way that we're winning. But I can't help it. As we've discussed, I grew up in the Pleistocene era, when you still had to look over your shoulder leaving a gay bar. Now I'm married to another woman, at least in the eyes of Massachusetts. It's crazy to live through so much social change in just a few decades. (A friend of mine says: "E.J., you sound like one of those older black folks who talk about how miraculous it is to no longer live under Jim Crow." Well, it's true! Being me is no longer a felony!)
One of the most striking examples of the progress made by supporters of gay and lesbian rights can be seen with respect to the odious Defense of Marriage Act. The bill, which denied federal marriage benefits to same-sex couples and allowed states not to recognize same-sex marriages valid in other states, had been signed by the second-most recent Democratic president after passing both the House and Senate by veto-proof margins. A little more than a decade later, President Obama—even before his recent announcement declaring support for marriage equality—had refused to defend the constitutionality of DOMA in court.
In the week since North Carolina voters adopted a constitutional amendment banning recognition of any "domestic legal union" other than heterosexual marriage, a consensus has formed among journalists about African-American complicity. According to this narrative, black voters let their Protestant traditionalism trump any sense of fairness toward lesbians and gay men—and became the critical voting bloc that gave Amendment 1 its landslide victory.
In case anyone thought the National Organization for Marriage (NOM) was around to promote racial harmony, unsealed strategy memos, recently released as part of a court case, show that this is the last thing on the group's mind.
Last night my editor emailed me, asking if I wanted to comment on a press release from the national group Freedom to Marry, which announced that still more of President Obama's campaign co-chairs have signed on to FTM's campaign to add marriage equality to the Democratic Party platform. The Advocate had the scoop: