I am afraid that when the Supremes decide the two cases related to same-sex marriage, we could be no better off than we are now, even if the rulings appear favorable on their surface.
My first fear is that the court will uphold the lower court's rejection of Prop 8, but on such a narrow basis that it doesn't affect any other state but California.
An even stronger fear, is that they will overturn the Defense of Marriage Act, not on the basis of equal protection under the law, but on the basis that marriage is a matter for the states to decide. Yes, that dumb-ass issue of Federalism again, which is the perfect excuse for inaction on a National level.
One of the reasons that these fears seem justified is that Ruth Bader-Ginsburg, one of the good guys, seems amenable to the idea that a ruling which finds a broad constitutional right to same-sex marriage under the equal protection clause would be a mistake.
Ginsburg is on record as believing that the Roe v. Wade ruling moved "too far too fast" and is actually the reason abortion is still such a divisive issue. According to her theory, the various states were moving in the direction of legalizing abortion and that the Supreme Court ruling short-circuited the process and created a backlash that we're still living with.
There was an excellent editorial in the NY Times a couple of days ago that shows Ginsburg has her history wrong as to the progress abortion rights was making in the states. Also what should be an obvious point, that the "fear of an angry reaction from some groups cannot be the reason to deny people basic rights."
The bottom line, as everyone has always said, is that everything probably hangs on Justice Kennedy. The conservative four are probably going to be very happy to declare marriage a decision to be made by each of the states. I would feel better about bringing Kennedy around if the four liberal justices presented a solid front for the equal protection position, but we may not be able to rely on Ginsburg. People who seem to have similar views as she does as regards Roe v. Wade apparently fear that a sweeping declaration of a constitutional right to equal treatment under the law would result in the kind of protracted culture war that we see with abortion, and that, if everyone will just be patient a little longer, all the states will come around on their own and legalize same-sex marriage.
"Be patient a little longer" reminds me of the great Nina Simone song from the '60s or early '70s, "Mississippi God Damn."
As I said in an earlier post, this kind of ruling that dodges the larger National issue would still leave the matter of full faith and credit among the states to be decided, which would result in another case for them to decide when Nebraska refuses to recognize a marriage made in Iowa.
I am still cautiously optimistic, but less so than I was before the cases were argued and we saw the statements and questions that came from the Justices.
I wish I could recall the source of this exchange:
Person One: I am cautiously optimistic that ....blah blah blah
Person Two: I think you are too optimistic.
3 comments:
This debate seems to boil down to whether or not it is justifiable for the majority of Americans to dictate and legislate the "moral" conduct of others. In my view, just because somewhere in the Bible homosexuality is declared an abomination doesn't mean that religious teaching should override the constitutional rights of any American citizen. Penalizing homosexuals under the system won't change their sexual preference, and it doesn't help the country in any way either. What two consenting adults do with their private parts behind closed doors should really be of no concern to outsiders or the government.
Thanks Diane, not only for a comment with which I agree, but also just for leaving a comment in general.
While I absolutely agree with your opposition to the tyranny of the majority attempting to dictate their sense of morality on all of society, it is fascinating that on the issue of same-sex marriage what was a majority just a few years ago appears now to be a minority.
One very minor clarification (not even a quibble) is that same-sex marriage, as with opposite-sex marriage, is about so much more than the act of sex.
Some people can't understand the complexity of same-sex marriages. I have known gay couples that have mastered how to conduct themselves in a "loving relationship." They continually demonstrate another type of blended family and that is a good thing.
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