Two of my favorite writers on legal subjects, Dahlia Lithwick and Barry Friedman, wrote a piece for Slate earlier this week wondering if the progressive agenda hasn't been exhausted by recent victories on same-sex marriage. "While progressives were devoting deserved attention to gay rights," they argue, "they simultaneously turned their backs on much of what they once believed." I share their sense of frustration, but I interpret the landscape differently. To me, the problem isn't the lack of a robust progressive agenda. The problem is that progressives generally lack power. Last week, I saw strong defenses of progressive goals at every level of politics, from ordinary citizens to the highest offices in the country. From the opposition of activists and state legislators to barbaric attacks on the welfare state in North Carolina and reproductive freedom in Texas, to the President Obama's climate change speech and the eloquent defenses of fundamental values of equality made by Supreme Court justices Ruth Bader Ginsburg and Elena Kagan, a broad progressive agenda directed at urgent problems was seen in a brief window of time. The problem, of course, is that much of this came in the wake of defeat; even the stirring victory in Texas is likely to be merely delaying the inevitable.
Still, an extensive progressive agenda is out there. It's worth trying to define some of the most important issues that the American "left," broadly construed, should be and are trying to address. I do not claim originality or an exhaustive list; my intent is to generate discussion and thought about what problems to focus on and how to move forward.
Last week's Supreme Court rulings striking down the Defense of Marriage Act and denying standing to California's Proposition 8 supporters have brought out the usual clown show of conservative religious leaders proclaiming the end of days. It's the standard stuff from the activist right: Here comes pedophilia, incest, polygamy, and bestiality. Christian florists will be dragged to jail for refusing to cater a same-sex wedding. School children will now be forced to simulate lesbian sex with their Barbies. Stirred to action by the decision, the Christian right has vowed to resist the spread of same-sex marriage nationwide, using civil disobedience if necessary. There's even talk of reviving the Federal Marriage Amendment, which would amend the U.S. Constitution to define marriage as being between a man and a woman.
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.
Today, the Supreme Court finally issued two long-awaited major opinions on gay and lesbian rights. One of them was a historic opinion and a major victory for civil rights. The other stopped short of what could have been, but will at least result in same-sex marriage being legal in the nation's biggest state.
Well that's that. After six years of litigation, today the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which prevented the federal government from recognizing same-sex marriages performed in the states, and dismissed the Prop. 8 case on procedural grounds. Because California's governor and attorney general declined to defend the law's constitutionality in court, supporters of the measure took up the task; the Justices found they did not have the proper "standing" to do so. Practically, the decision finding the measure unconstitutional stands, but it applies only to California.
At this point, it’s almost a yawn: The last and most Catholic New England State, tiny Rhode Island, population just over one million, passed marriage equality last week. Just nine years after Massachusetts set off moral panic nationwide and triggered the final wave of state constitutional amendments banning same-sex marriage, all of New England has now followed the Bay State’s lead. Rhode Island has recognized same-sex marriages performed in other states since 2010; nowhere were you more than an hour’s drive from a state where you could marry—the Ocean State is bordered by Massachusetts, Connecticut, and New York, all equal-marriage states.
Same-sex marriage advocates have had their eyes on Rhode Island for a long time. Wednesday afternoon, they’ll very likely see the last barrier to marriage equality fall away, as the state Senate is scheduled to vote on a measure legalizing same-sex marriage. It’s already passed the House, receiving vocal support from Governor Lincoln Chafee, and most expect that the Senate has the votes to pass it by a big margin.
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.
When it comes to any issue, it's important to remember that there's no even distribution of support or opposition. A majority of Americans may support same-sex marriage, but that doesn't translate to a majority of people in a majority of states. In Virginia, for example, a new survey from the University of Mary Washington—which polled 1,004 adults living in the state—45 percent of respondents favored marriage equality, while 46 percent were opposed. This is a dramatic shift from seven years ago, when Virginians passed a constitutional ban on same-sex marriage, 57 percent to 43 percent.
Outside of the Supreme Court this week—where the nine justices were hearing oral arguments about the constitutionality of California's ban on same-sex marriage—a young woman and an old woman were arguing.
"If you put all the gay people on an island," began the older woman, who looked to be in her fifties.
"See, this is why people think you guys are like the KKK!" interjected the young woman. "You're talking about rounding us all up—"
"Let me finish! If you put all the gay people on an island, in a generation there would be no gay people. They would die out."
"That's not a realistic scenario. We all live in this country together."
As I sat in the press gallery off to the side of the Supreme Court yesterday morning, waiting for the justices to file in and begin hearing arguments about the constitutionality of the Defense of Marriage Act (DOMA), I had that sickly excited feeling that you get when the roller-coaster car is climbing the first hill. The day before was easier for me: I didn’t want the Court to take Perry, the Prop. 8 case, to begin with. I was relieved when very quickly we all could hear that the justices had no appetite for a broad ruling. But the DOMA case—and here please let me confess that I’m terribly human—the DOMA case is about my marriage. As regular readers will know, I’m married to my wife in Massachusetts, but because DOMA bars the federal government from recognizing same-sex marriages performed in the states, I’m not married in the United States. The justices were going to discuss whether to end that split identity. This morning, it was very personal again, as it hasn’t been in awhile.
By now you've heard from the various news sources that, in this week’s Supreme Court arguments on California's Proposition 8 and the Defense of Marriage Act, a majority of justices expressed skepticism over both. So it's imaginable—even probable, if you believe the news—that we will find ourselves at the end of June with DOMA in the junk pile and marriage equality back on the books in California.