Lurching Toward Equity * | Raucous Caucus | Tom Cushing | |

Local Blogs

By Tom Cushing

Lurching Toward Equity *

Uploaded: Oct 6, 2014

Today, the gay community stands somewhere between "Change Is Gonna Come" and Psalm 13 ('How long wilt thou forget me?').

Monday, the US Supreme Court handed marriage-minded gay men and lesbians a grudging victory, as it refused to hear five challenges to Appeals Court rulings that found state-level bans on same-sex nuptials unconstitutional. In court parlance, that's known as a denial of certiorari, the fate inflicted on all but around 100 of the 5000-odd cases that seek review. Since the Court last visited gay marriage in two 2012-13 term cases, forty state and federal, trial and appeals courts have opined on the issue; all but one of them has found the bans violate constitutional guarantee of Equal Protection of the law.

Those cases have relied on the legal conclusions reached in 2013's US v. Windsor, which in turn built on prior precedents established in earlier cases of Romer v Evans (invalidating a Colorado state referendum ban on including sexual orientation as a protected class) and Lawrence v. Texas (overturning anti-sodomy laws enforced only against gays). In Windsor, as the court invalidated the federal Defense of Marriage Act, the majority explained:

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State (NY), by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

The lower courts have extended that logic to state-level SSM bans, applying either the traditional 'no rational basis' test, or a kind of 'intermediate scrutiny' that must justify the actions of those governments in treating some citizens differently from others.

Ironically, that near unanimity may have worked against same-sex marriage (SSM) advocates. Traditionally, any of three reasons underlie The Court's granting of 'cert.' petitions: either the case has substantial social importance, or a conflict exists in the Appeals Court rulings that needs nationwide resolution, or, very occasionally, the case is just irresistibly cool (the marred BMW paint job case of a few years back fits the latter category).

The unison chorus of the SSM outcomes foreclosed the 'conflict' concern, and irresistible cases are rare. That leaves social significance as a review criterion, and many court-watchers thought it would be sufficient. Two factors, however, worked against granting a hearing this term. First, among the liberals led by Justice Ginsburg, there is a worry that the Court should not get too far out-front of the society on such matters. Adherents point to the ongoing controversy around the bold, 1973, Roe v. Wade abortion ruling for support. They believe that a more incremental approach to the subject might have cooled the continuing controversy that boils around that 'values' issue.

The conservatives, for their part, are inclined to resist broad constitutional rulings in preference to allowing the states to work things out according to their particular preferences. Both the Chief Justice and Mr. Scalia, the old lion of that wing, also oppose SSM on the merits. Thus the better, easier, and more certain route for them is to allow matters to continue percolating ? even if the cause is nearly lost, and the conclusion almost foregone.

Accordingly, four votes could not be mustered to hear any of the SSM cases.

Practically, what that means is that in states that have either authorized SSM legislatively, or are included in the federal appeals court circuits of those five cases, such weddings may commence as soon as practical (like next week). Our Ninth Circuit is due to rule on a similar case shortly, thus probably adding its western states territory to the total, which will then constitute a majority, both in number and in national population. Other cases will very likely follow.

Now, that sounds like change is not only going to come, but it actually has come for many Americans. But what of the gay citizens of states which have not, and may never authorize SSM? Does not 'justice delayed' mean 'justice denied' in their situations? While they can travel to states that will marry them, when they return home, their new families will continue to live in a kind of legal limbo that the Court has allowed to persist with its 'percolation' theory.

Moreover, while the cultural tide seems to be running irresistibly toward acceptance of SSM, the cause should not prematurely be considered to have been won. Reliable liberals Ginsburg (81) and Breyer (76) are no spring chickens; neither is swing-vote and Windsor opinion author Kennedy (78, along with Scalia). Depending on the 2016 Presidential outcome, the Court could swing sharply right or mildly left. If it shifts toward the conservative, a stronger majority might choose to buck the apparent tide of history and demographics, and even invalidate hundreds-of-thousands of families formed in the interim.

Furthermore, I'm not much impressed with the merits of that whole cultural incrementalism caution. It seems to me that constitutionally protected rights are rights, and that it is not up to the court to be popular, or to nurse the society along toward a day when rights are non-controversial. I understand the Roe concern, but I'd point to passage of the Civil Rights Act of 1964 as an event that was cataclysmic compared to SSM, that would Never have passed a national referendum at the time (or even now?), and yet has been incredibly valuable in forcing the pace of evolution toward a more equitable society.

To me, the Court's focus should not be on the risk of 'controversy' but on the legitimate expectations of discrimination's victims. They are full members of this society, and deserve full participation in its promises, blessings and responsibilities. The Court should be the One place where the rights of those who will forever be a minority are acknowledged and vindicated. This Supreme Court is not that court, and that fact is supremely disappointing.

So change has come for many, but for far from all. That arc of history may indeed bend toward justice, but it needs the full pulling weight of the Constitution's guarantees to get there on-time.

* Equity. noun.
1. the quality of being fair or impartial; fairness; impartiality:
the equity of Solomon.
Synonyms: impartiality, fair-mindedness, fairness, justness, evenhandedness,
objectivity; justice, probity.
2. something that is fair and just.