Right now, the Supreme Court has opportunity to deliver a ruling that will effectively bestow full and equal citizenship on millions of Americans, and our families. And there’s some indication that a few of the justices staring history in the face are too afraid to pick a side.
If the court ruled the defenders of Prop. 8 weren’t properly before the court, the lower court ruling striking down Prop. 8 could remain in place and same-sex marriage likely would resume in California. Chief Justice John Roberts has long taken a narrow view of standing questions, seeing it as a tool to limit the court’s reach. But other justices (Justice Antonin Scalia being a vocal exception) also focused on the issue.
Justice Anthony Kennedy — considered the key swing vote in this case – -was direct, saying opponents of Prop. 8 are asking “for us to go into uncharted waters.”
“I just wonder if the case was properly granted,” Kennedy told attorney Ted Olson, the former Bush Administration solicitor general who argued against Prop. 8.
Justice Sonia Sotomayor implied the court would be best to hold off ruling on the fundamental issue of the right to marriage, saying, “Why is taking a case now the answer? We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.”
Justice Samuel Alito also asked about “need to be cautious,” saying, “same-sex marriage is very new… newer than cell phones or the Internet.”
The frame behind the justices questions — the invisible bogeyman behind the bench, tugging at their black robes — is the Roe v. Wade decision, and the bogus belief that the Court brought on the “culture war” and all its consequences by moving “too soon” on the issue, when the state were slowly “moving in the right direction.”
But the “culture war” was already underway. The forces that would bring us the culture wars were rallying well before Roe, and had already chosen the abortion issue as an opening to exploit for political gain, and to expand their opposition to equal rights for women and full racial integration. And there was no guarantee that reproductive choice was on the path to becoming a reality in all 50 states.
The only thing that’s certain is that without the Roe decision, millions of women would have continued to lack access to safe, legal abortion. And without Brown v. Board of Education, African American children would have continued to attend segregated schools. What’ certain is that millions of people would have to wait for the majority to decide to end injustice against them. In the meantime, they would have to continue to live with injustice, without redress.
That’s what I wrote in July 2005, when George W. Bush nominated John Roberts to the Court. I didn’t necessarily realize that Roberts would be presiding when marriage equality came before the court.
So, in the future, Roberts will very likely be sitting on the court for at least two important decisions in regards to gay & lesbian equality. The article doesn’t offer much in the way of predicting how Roberts is likely to approach either case, except for suggesting that Roberts will likely side with with those who wish to “defer to the needs of the military.” My assumption is that anyone who made it through the Bush administrations vetting progress would have to be — if not outright anti-gay — at least not obviously gay-friendly. So, there’s the likelihood that schools wishing to bar military recruitment — as a matter of opposing discrimination against gays and lesbians in the military — will have to forego federal funding in order to do so.
And what of marriage? It’s long been my thought that the matter of same-sex marriage will probably end up before the Supreme Court before it’s entirely settled. And maybe I’m wrong, but I’d prefer it that way, say, if the court were to rule that same-sex marriages performed in Massachusetts must be recognized by other states. It’s the age old rapid social change vs. moderate social change, and I’ve never subscribed to the idea that slower is better if slower means that some of us have to live with injustice (without remedy, I might add) for longer than we would otherwise. Slower is mostly better for those who favor discrimination, as it allows the status quo — however unjust — to stand for the foreseeable future.
The article doesn’t hint how Roberts will lean when it comes to dealing with same-sex marriage on the Supreme Court. However his recently reported membership in the Federalist Society makes me think that he would leave it to the states. That would mean 50 separate battles over marriage. Ugh.
But Roe is the wrong frame. The Court would do better to stop cowering before a wrongheaded take on the Roe v. Wade ruling, and start aspiring to what court accomplished with the Loving v. Virginia ruling — which invalidated Virginia’s law against interracial marriage, and took down similar state laws with it.
Six years ago, my family was invited to a press conference celebrating the 40th anniversary of the Loving v. Virginia decision. Mildred Loving had just come out in favor of marriage equality. I wrote down my feelings afterwards, and tried to explain why I went to the press conference with my family.
I went because Mildred and Richard Loving dared to love — which starts and ends with daring to dream — and helped make it possible for families like ours to dream the same dream and advance towards it. In support of marriage equality on the anniversary of the decision. In words I could write myself today, Mildred Loving wrote:
When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married. Not a day goes by that I don’t think about Richard and our love, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was “the wrong kind of person” for me to marry. I believe that all Americans, no matter their race, no matter their sex, no matter their sexual orientation. I am proud that Richard’s and my name are on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.
I went because so many of us have taken a step forward by building our families and not waiting for the rest of the world to catch up to us. Not to make a political statement or to start a fight, but because we are human beings to whom dreaming comes as naturally as breathing, and from dreaming comes loving. And each dream dared, each family forged brings the day closer when those dreams are easier to keep and protect, because they’re deemed just as worthy of keeping and protecting as anyone else’s
Interracial marriage bans now seem obviously invidious. But go back far enough and the consensus flips. At one point, most everyone thought such bans were legitimate. The same is true of segregated schooling and discrimination against women. It is true of just about everything the Supreme Court has held that the equal protection clause prohibits: At one point, all of these practices were seen as legitimate reflections of the world, not as invidious attempts to impose inequality. When the court held these practices unconstitutional, it was neither enforcing a rule that had existed since 1868 nor creating a new rule. It was recognizing that social attitudes had shifted, and with them the understanding about what is reasonable and what is invidious.
This point connects Loving to current social struggles, most notably the debate over same-sex marriage. Opponents decry the “activist judges” in Massachusetts who struck down that state’s same-sex marriage ban and warn that the Supreme Court will someday follow. So it may — but, if it does, responsibility will not lie primarily with judges.
The past few decades have brought a dramatic change in social attitudes about homosexuality. The American Psychiatric Association, which once classified homosexuality as a mental disease, abandoned that position in 1973. Public opinion polls show an increasing acceptance of homosexuality, and state legislatures are beginning to follow. Restricting the benefits of marriage to opposite-sex couples is increasingly seen as invidious, an inequality inflicted for no good reason.
If the trend continues, this view eventually will find expression at the Supreme Court level, just as it did in Loving. This is not judicial activism. It is how we make the Constitution ours.
Neither is the act of making commitments and building families activism, and neither is the desire to protect our families. It’s just the natural progression of our lives; of anyone’s life, really. It’s the way we make every change that ever happens. Dreaming our dreams, and then loving them into existence.
I hope that the Justices, find the courage to do the right thing, right now, instead of asking our families to continue to live with inequality and injustice.