I remember a conversation with an older student in some university class a few years ago. I forget why exactly, but we’d just finished watching Stephen Frears’ My Beautiful Laundrette, a 1985 British film that featured, among other things, a rather explicit man-on-man romance.
“Audiences back then must have been scandalized,” I said.
“Oh, I dunno,” my classmate replied. “I think things are actually worse today. Back then, homosexuality was just this weird, avant-garde thing. Now, it’s… political.”
This sort of logic has been used to explain the slow arrival of marriage equality in the United States. Back in 2003, when the Massachusetts Supreme Court declared gay nuptials a constitutional right and a larger national debate over the idea began, moderate supporters of the gay cause immediately began to worry if the homosexual lobby had perhaps overplayed their hand.
During the late 1990s, after all, many states had started quietly passing unambitious domestic partnership laws that granted many marriage-like rights to same-sex partners, and included homosexuality as grounds for non-discrimination in charters governing housing and employment. Had this incremental, mostly behind-the-scenes trend continued, which is to say, had the m-bomb, never been dropped, it’s not beyond the realm of possibility that generous civil protections for same-gender couples would now be law in the majority of states. Even many Republicans of the era made much about how they had “no problem” with gays enjoying hospital visitation rights or the ability to draw up their own inheritance contracts and so on.
But instead marriage, that most heterosexual, historical, and emotionally cherished of institutions, became the demand. A stage was skipped, a backlash was provoked, and the result was perhaps the single most regressive decade in America’s history of gay rights.
Anti-same sex marriage amendments were affixed to three-fifths of all state constitutions. Two Democratic presidential candidates were told the issue was a loser and happily ignored it. A Republican president was told it was a winner and was rewarded a second term (at least in part) for opposing it. It all added up, in the words of some fair-weather allies, to a country clearly “not ready” for the next step in homosexual equality. Gay people were fine, but why did they have to get so… political?
In 2013, of course, the world is an entirely different place. Lawrence v. Texas universally decriminalized homosexuality. “Don’t Ask, Don’t Tell” has been abolished. There are openly gay mayors and senators. 60 percent of Americans say they have a homosexual friend or relative. The current president endorses gay marriage along with his cabinet and the vast majority of Congressional Democrats (and even a couple Republicans). Right-wing mainstays like Bill O’Reilly and Rush Limbaugh are officially bored with the issue, and declare it inevitable. 58% of the country says they’re ready.
Against such a backdrop, it’s nearly impossible to imagine a scenario in which the Supreme Court of the United States, which began hearing two gay marriage-related cases last week, will not declare the practice legal in some form or another come ruling time.
The issue is so overwhelmingly backed by Democrats it can be completely taken for granted that the court’s four liberals will find in favor, while swing justice Anthony Kennedy’s eclectic mix of views includes, in the words of Slate‘s Emily Bazelon, a marked love of “states rights and gay rights” — which both cases have in spades. The question is simply how far the majority will go, not whether they’ll go there at all.
At the very least, few deny that same-sex marriage will be re-legalized California. Supreme Court case number one, the so-called “Prop 8” dispute, which tests the constitutionality of a 2008 referendum that stripped California gays of their right to marry just a few months after the state Supreme Court declared it, seemed to thoroughly disinterest the judges during oral arguments. Charles Cooper, the lead lawyer backing the referendum’s results, that is, the anti-gay marriage guy, offered only the lamest defences of the Peoples’ power to deny a particular segment of themselves a right previously granted — and was happily mocked by the court’s liberal wing for even trying.
At one point, Cooper flatly denied Justice Elena Kagan’s assertion that straight, married couples over 55 could not procreate — as he had to, since procreation was one of the few coherent arguments his side could muster in the defense of keeping marriage exclusively heterosexual.
“I can just assure you if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage,” said the Justice, to loud laughter from the gallery.
Case number two considers the constitutional validity of the 1996 Defense of Marriage Act, an embarrassingly dated piece of legislation that says the federal government will never recognize the validity of any state’s same-sex marriages nor grant to same-sex couples any of the over 1,000 benefits straight Americans can access by tying the knot. The sheer arbitrary vindictiveness of this one seemed to irritate the court’s liberals just as much as Prop 8, and once again it was Justice Kagan that got the soundbyte of the afternoon.
“I’m going to quote from the House Report here,” she said, reading Congress’ DOMA notes before the pro-DOMA counsel. ”‘Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.‘”
“Is that what happened in 1996?” she asked coyly.
“If that’s enough to invalidate the statute, then you should invalidate the statute,” spluttered the flummoxed lawyer.
After two great days in court, SSM supporters were understandably giddy about their odds. But even if they “get what they want” in some narrow sense, it’s still somewhat unclear what exactly “overturning” Prop 8 and DOMA will affect in practical terms.
For instance, is Prop 8’s unconstitutionality born from the fact that it stripped rights from gay couples, or merely denied them? If its the former, the consequence of a positive ruling would be decidedly limited. Most states that have voted to ban gay marriage have done so apropos of nothing beyond a fear that some judge might impose it someday, and the Court could easily hold that’s fine, since the democratic process still allows for such bans to be overturned, as happened in Maine recently. A limited DOMA ruling could consolidate this belief even further. Sure, maybe it’s unconstitutional to say the feds will never recognize any gay marriages, but if a single state’s voted to legalize the practice within their borders, well, the feds have no right to undermine that decision.
In short, if gays can easily win their rights through politics-as-usual, surely a few years of delay isn’t such a crime. Just give the states time and eventually they’ll all come around Everyone’s always saying it’s inevitable, right?
If marriage is found to be a right, period, however, then the Court is getting into real Roe V. Wade territory. A maximist ruling on both cases — that it’s unconstitutional to ban gay marriage and the federal government must recognize it everywhere — would theoretically invalidate all anti-gay marriage laws across the entire United States in one swift swoop, and turn all 31 anti-SSM amendments into archaic relics, like the old anti-miscegenation amendments in the Deep South, overnight.
According to the New Yorker‘s Jeffrey Toobin, this is the scenario that even a liberal justice like Ruth Bader Ginsburg worries about, since the potential for conservative backlash against such brazen judicial activism — a revival of support for the Federal Marriage Amendment perhaps? — could be so high. Is the country ready for an across-the-board imposition of a dramatic new right that languished in fringe-world obscurity a mere decade ago?
Perhaps not. But it’s an open question if that 58% is ready for a excessively cautious compromise, either.
That kind of waffling, it seems, might be just too… political.