In two nifty charts (one for each case), the centrist think tank Third Way gets at what I’m talking about. In Hollingsworth v. Perry (a.k.a the Prop 8 case), the court could hand down a narrow ruling that only applies to California. In Windsor v. the United States, (a.k.a the DOMA case), the court could rule that the federal government must view as married same-sex couples in states where marriage equality is legal.
This punt would hardly be ideal. But it would be the first of what would be a two-step solution that makes the second step of full marriage equality even more inevitable. What the court would have done is buy itself some time on the more sweeping question of the constitutional right for gay men and lesbians to marry. Considering three states legalized same-sex marriage at the ballot box in November and another beat back an attempt to write discrimination into its state constitution, it’s now not impossible to think that voters in other states might follow suit. With 30 state constitutional bans on gay marriage, there’s plenty of ground to cover. And with attitudes changing quickly, the number of hearts and minds to change is diminishing by the year, it seems.
More important, what a potential high-court punt of this nature would do is set up an untenable situation. Same-sex couples in the nine states and the District of Columbia where they can marry legally could avail themselves of the more than 1,000 rights and responsibilities that accrue to marriage. But couples in states where marriage equality is illegal would be out of luck. Depending on where they lived, gays would be separate and unequal. Under such a situation, the equal protection argument would only get stronger.
“The more states recognize marriage for gay couples, the more likely it is to be a right that is so fundamental that it cannot constitutionally be denied,” Third Way’s Lanae Erickson Hatalsky told me. This is the same argument Evan Wolfson, founder and president of Freedom to Marry, makes in the New York Times today. “[I]f we do our part over the next months, building on the irrefutable momentum of 2011 and 2012,” he writes, “we can give the justices confidence that when they stand on the right side of history, their rulings will not only stand the test of time, but be true to where the American people already are.”
Linda Hirschman cautions on the New Republic blog that we’re in for either a gay Brown v. Board of Education moment where separate but equal treatment of same-sex couples is banished. Or we’re in for the gay rights version of Roe v. Wade, one that leads to decades of backlash and bad feelings that the court imposed its will on states, especially those with constitutional bans. “Procedural and other particularities of the two cases before the court could permit the justices to keep a door open to gay marriage without slamming another on its opponents,” writes my colleague Charles Lane, who also worries about the potential for backlash against the high court if folks think it pushed too far too fast. That’s why as much as I would like a sweeping ruling, I could live with a two-step punt that would get us to full marriage equality without the almost guaranteed backlash against it.