Who would have thought:
●That gay rights groups’ biggest concern would be not how the Supreme Court would rule on same-sex marriage but that it wasn’t ruling fast enough?
●That the Republican response to the justices’ move to let same-sex marriages proceed in nearly half the states would be . . . near-total silence?
Let us pause to savor this moment and the transformation of the American legal and social landscape.
Recall, it was less than 30 years ago that the court upheld laws making homosexual sex a crime. Citing the “ancient roots” of prohibitions against homosexuality, John F. Kennedy appointee Byron White asserted, for five justices, that the Constitution does not grant “a fundamental right to engage in homosexual sodomy.”
When the court reversed itself in 2003, Justice Antonin Scalia was apoplectic. “Do not believe it,” he wrote of the majority’s assurance that its ruling did not involve the right to marry. “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
At the time, Scalia’s warning seemed fanciful. Now, it appears prophetic.
Recall, too, that as recently as 2008, the Democratic contenders for the presidential nomination could not risk coming out in favor of marriage equality.
“I believe marriage is between a man and a woman,” soon-to-be-president Barack Obama said that year. “I am not in favor of gay marriage.”
On the issue of same-sex marriage, evolution has occurred at warp speed. In the next presidential cycle, it is unimaginable that a Democratic candidate would oppose same-sex marriage and unlikely that the ultimate Republican nominee would make an issue of it.
Now, the fallback Republican position against marriage equality is not to clamor for a constitutional amendment to protect the country against the scourge of same-sex marriage, a move George W. Bush supported. Rather, it’s to argue that the matter ought to be left to individual states.
And there wasn’t even much of that — at least not from elected officials — when the court declined Monday to take up any of the same-sex marriage cases before it. “Tragic and indefensible,” thundered Sen. Ted Cruz (R-Tex.). Sen. Mike Lee (R-Utah) said the court “owes it to the people . . . whose democratic choices are being invalidated” to decide the issue.
Other than that — nothing. Not from the Republican congressional leadership. Not from the Republican National Committee. This from a party whose 2012 platform termed court rulings on same-sex marriage “an assault on the foundations of our society” and reaffirmed support for a constitutional amendment.
So what to make of the court’s decision not to decide?
First, that it is telling. It takes four votes to hear a case. If a majority of the justices thought the lower courts were misinterpreting last year’s ruling on the Defense of Marriage Act when they struck down state bans on same-sex marriage, the court could have easily intervened. It didn’t.
Tony Perkins of the conservative Family Research Council argued that, “by refusing to get involved in a mess it helped create, the justices are leaving our laws vulnerable to rogue judges on the lower courts.”
But the three federal appeals courts that have struck down state bans on same-sex marriage are not judges gone rogue. They are, as Scalia predicted, judges dutifully applying the inexorable logic of binding precedent. If the four conservative justices in the minority in last year’s ruling on the Defense of Marriage Act thought they had a fifth vote on their side, they could have voted to take up the issue.
Second, that it is a temporary, and probably healthy, stopping point on the way to declaring a fundamental right for gay and lesbian couples to marry.
The delay, said Evan Wolfson of Freedom to Marry, “prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places.”
Easy for me, perhaps, to counsel patience. I’m not a gay woman living in Alabama, where only court intervention will protect my right to marry.
But a Supreme Court pronouncement is coming. A federal appeals court will likely rule the other way, creating a split for the justices to resolve. Or even without a circuit split, the Supreme Court will conclude it is time to weigh in on an undoubtedly important federal question.
For the court to intervene then would disrupt not only settled law but also settled marriages. That’s not going to happen.
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