As evidenced yesterday by their fusty ruminations, the berobed members of the nation’s top court would dearly love to sidestep gay marriage entirely. It’s a mystery why they agreed to deliberate in the first place, since so many of them are treating the issue as if it had cooties. But in the end it really won’t matter what they do; public opinion has already passed them by, and the march of progress will proceed apace.
There are ample legal grounds for decreeing that gays have a constitutional right to marry, that the 14th amendment – guaranteeing “equal protection of the laws” – trumps the status quo that relegates most gay couples to the ranks of second-class citizens. But the high court justices (average age, 67) seemed determined to do otherwise, if only because they seem so discomfited by the rapidity of social change outside their cocoon.
To wit, Justice Samuel Alito: “Same-sex marriage is very new…It may turn out to be a good thing; it may turn out not to be a good thing….I mean, we do not have the ability to see the future.” But Alito’s job is not to “see the future,” or to determine whether gay marriage is “a good thing.” His job is to rule on whether it’s a constitutional thing – just like in 1967, when the high court tackled interracial marriage, which at the time was prohibited in many states. It didn’t matter whether interracial marriage might be good or bad in the future. What mattered was whether the state bans were constitutional. (The high court junked the bans, the public yawned, the culture moved on.)
And Justice Anthony Kennedy, as always a potential swing voter, harrumphed yesterday that a definitive marriage equality ruling might take the culture into “uncharted waters.” That remark jibed with something he said earlier this month, while talking with reporters out in California: “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”
Gee, really? Kennedy certainly wasn’t worrying about “uncharted waters,” or about the democracy’s over-dependence on “nine unelected people,” when he voted with the minority to abolish Obamacare; or when he voted in 2010 to shelve a century of court precedents and open the floodgates to special-interest campaign money in the Citizens United case; or when he voted in 2000 to summarily halt the Florida recount and award the presidency to George W. Bush.
If Kennedy and four other justices wanted to face the issue squarely, they could easily agree that the anti-equality arguments are lame. Charles Cooper, the lawyer who wants to keep California’s gay marriage ban, struggled yesterday in his efforts to mount a coherent defense. Under questioning, he admitted that it’s wrong in virtually any circumstance to discriminate against gay people – with the exception of marriage, natch, but he failed to offer a shred of evidence that gay marriage in the current nine states is undermining the institution of straight marriage. Nor did he offer any evidence that gay couples are worse parents than straight couples. (The American Psychological Association and the American Academy of Pediatrics say there is no evidence.)
But Cooper’s worst moment was when he insisted that gay marriage is a misnomer because real marriage, by definition, is about “responsible procreation.” I hoped in vain that this assertion would actually prompt Clarence Thomas to utter a rare word, or just to scoff, because he’s been married for a long time and has never procreated. As a matter of fact, millions of married couples haven’t procreated. Chief Justice John Roberts and his wife haven’t procreated. As Justice Elena Kagan wryly remarked, “Suppose a state said that, ‘Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.’ Would that be constitutional?”
Cooper had an answer to that, a real brain-twister. He said that the purpose of marriage was “to make it less likely that either party to that marriage will engage in irresponsible procreative conduct outside of that marriage.” So there you have it. According to Cooper, gays should be barred from marriage because its real purpose is to discourage old straight guys from impregnating young mistresses. Or something like that.
Some legal scholars are rooting for a narrow gay marriage decision, fearful that a decree legalizing the practice nationwide would trigger mass cultural outrage akin to the aftermath of the Roe ruling that legalized abortion. The justices seem attuned to that concern. But the abortion analogy seems flawed. Back then, and for decades thereafter, the anti-abortion forces were far more vocal and impassioned than the “rights” proponents; today, the gay marriage movement speaks for the majority of Americans. Indeed, suppport for gay marriage has been steadily surging, especially among voters under 30 in both parties, a trend never recorded on the abortion issue. And if the justices want to sample public opinion, they would do well to look at Loving v. Virginia, the 1967 interracial marriage case. Their predecessors junked marriage segregation at a time when more than 60 percent of Americans still supported it – yet there was minimal backlash.
Still, the high court seems disinclined to rule in a sweeping fashion. We shouldn’t be surprised this spring if the justices essentially ratify the status quo – keeping gay marriage legal in the nine states that currently allow it, and allowing the other states to do as they choose. (Kennedy, in particular, is a state’s rights guy.) But so what. If they opt not to lead, they’ll be forced to get out of the way. The culture’s majority verdict is in, and it will only get stronger over time. The waters have already been charted.
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