Excessive optimism

As I mentioned yesterday, my hope is that the U.S. Supreme Court will rule some time this summer that all state laws prohibiting civil marriage between consenting adults of the same sex are unconstitutional because they deprive certain citizens of equal protection under the law (the Fourteenth Amendment).

It seems so obvious and simple to me that this is what needs to be done because California’s Proposition 8 and the federal Defense of Marriage Act (DOMA) are so clearly discriminatory against a certain group of people on no legally defensible grounds. But apparently that view is both naïve and excessively optimistic at this time.

A friend of mine who is well-versed on the matter pointed out to me that although the Court may, someday (say, 20 or 30—or more—years from now) find DOMA and Prop 8 and other laws like them to be unconstitutional, they are not going to do so now because the tide of public opinion on same-sex marriage, while it may be running from one pole to the other more swiftly on this issue than any other in recent memory, has not yet reached the tipping point at which the court must affirm the will of the people.

My feeling is, if these laws will be deemed unconstitutional at some point in the future, why wait for public opinion to provide the push? Why not get ahead of it and do the right thing for the right reasons—not just for the sake of the law, but for the sake of all the human beings in this country who are being hurt every single day by the bad laws now in place? Why should same-sex couples in blue states be able to enjoy the benefits of marriage while those in the red states remain second-class citizens? Is this one nation, indivisible, with liberty and justice for all, or not?

The answers to these questions are, like everything involving human sexuality, complicated.

Jonathan Rauch gives a good explanation of the legal issues and likely outcomes in an article called Gay Marriage Hits the Supreme Court for the Brookings Institution. As simple as the issue seems to me (i.e., discrimination on the basis of sexual orientation is both wrong and unlawful), to the Court, the issue is anything but simple. And the most likely outcome, according to people with far more knowledge of the case and the law than I have, is that nothing much will come of this in terms of sweeping change to federal laws, state laws or society in general.

Some people say the Supreme Court justices are cowards for not tackling this issue head-on once and for all while they have the chance. My well-informed friend calls the Court “a political body of people with lifetime appointments and axes to grind” that has swung so far to the right in recent years that it is unlikely to take any action on this issue before at least a few of the hardest-right members are replaced with people of a slightly more liberal frame of mind. That could be a long, long time from now.

I remain stubbornly optimistic on this one, though. As Winston Churchill once said, “Americans can always be counted on to do the right thing … after they have exhausted all other possibilities.” If not this year, perhaps next year.




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