C I V I L    M A R R I A G E    I S    A    C I V I L    R I G H T.

A N D N O W I T ' S T H E L A W O F T H E L A N D.

Thursday, December 13, 2012

Should the Supreme Court Just Butt Out?

Larry Duncan and Randy Shepherd of Washington state, whose marriage-license pic I posted last Friday, arrived for their wedding on Sunday, nattily attired this time.  The couple were married at Seattle First Baptist Church, along with 24 other same-sex couples.  All good wishes to them.

When the Supreme Court rules on the DOMA and Prop 8 cases, less would be a whole lot more, suggests gay conservative pundit Jonathan Rauch:
Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.

Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.

I tell my gay friends: imagine if the Supreme Court had ordered gay marriage this past June, at the end of its 2011-2012 term. November’s game-changing electoral victories would never have happened. Gay marriage advocates would be forever stereotyped as political losers who won by running to mommy. Our opponents would mock and denigrate our marriages as court-created, legalistic fictions. The country would never have shown how much it has changed.

If we have come that far in five years, imagine where we might be in five more. Imagine, then, the opportunities to extend and consolidate support that we will lose if the Supreme Court steps in now. Strange but true: a favorable Supreme Court intervention next year would make us weaker, not stronger.

Do you agree?


Davis said...

I am freaked out...

Frank said...

There is something that rings true. Especially when other countries are making same gender marriage legal through government legislation. It does give it a certain national stamp of approval.

Muskox said...

I know lots of people are excited by the prospect of Supreme Court review of these two cases, but I'm apprehensive. Four (or more) justices voted to accept these cases, but we don't know who voted how. Both cases had already had favorable rulings by appeal courts and, if they were not accepted for review by the Supremes, those rulings would stand -- marriages would be legal in California, and the widow would get her estate taxes back. It may be the conservative justices who want to stop this trend, or it may be the more liberal justices who want to cement the rulings in constitutional law. Anything could come out of these cases and they could set the cause back by many years, as has happened before.

Just because we see the issues as a matter of simple fairness doesn't mean these nine will see it that way. This is the court that gave us the Citizen's United decision declaring that corporations have the same rights as a person.

Muskox said...

Sorry to be double-dipping, but I had another response to Mr.Rausch's opinion piece. He wants to wait for the "deep legitimacy that only a popular mandate can bring." That would be great, but what we need is DOMA reversed. Until gay couples have the legal rights that the Federal government confers - joint tax returns and inheritance rights under the tax law, for example - any popular mandate is far less than equality. Without Brown vs. Board of Education, there would still be segregated schools in some states. It takes a Supreme Court ruling to establish a new point of law throughout the country as settle law.

Russ Manley said...

Davis - fret not. Eventually it will all come right - whether in our lifetimes or not. But worrying doesn't help anything.

Frank - yes, a legislative enactment carries a bit more psychological weight than a court ruling, in some people's minds.

Muskox - But as you say, sometimes a court ruling is needed to cut through all the bullshit and foot-dragging. And while this court gave us Citizens United a few years ago, it's also the one that saved Obamacare this past summer. So I'm going to hope for the best.

Related Posts with Thumbnails