As the Supreme Court issued its last-day-of-court rulings on Wednesday, nullifying the federal law that defined marriage as a union between a man and a woman and effectively permitting same-sex marriage in California, what was also clear was just how rapidly much of the country had moved beyond the court. Rulings that just three years ago would have loomed as polarizing and even stunning instead served to underscore and ratify vast political changes that have taken place across much of the country.They had a chance to run the table on the issue, but declined, ultimately, for fear of issuing another Roe v. Wade and forcing the other 37 states which "aren't there yet" into accepting same-sex marriage. But while the California case was definitely a punt (involving the usual dodge of "standing"), the Windsor case was an unequivocal signal that same-sex marriage is heading your way soon.
The 5-to-4 decision overturning the Defense of Marriage Act, written by Justice Anthony M. Kennedy, was sweeping and hardly technical, an affirmation of same-sex marriage written in broad constitutional terms that produced cheers and even some surprise among same-sex marriage supporters standing in front of the Supreme Court. And though the court declined to hear the California case on procedural grounds, the effect was to let stand a lower-court decision that threw out a voter-initiative banning gay marriage in this state.
What that means is that as of now, 30 percent of the nation’s population live in states that allow same-sex marriage.
From Prof. Larry Tribe at SCOTUSblog:
The pair of decisions taken together left the most contentious questions about same-sex marriage for the political process to continue grappling with – postponing to another day, when the generational wave that is moving this question to an inevitable conclusion has proceeded still further, the Court’s next encounter with the questions of equal human liberty and dignity that lie at its constitutional core. Both decisions, handed down by very different 5-4 majorities, seem to me worthy of celebration.Kennedy wrote:
- "Same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons"
- and argued the original Defense of Marriage Act of '96 "humiliates and brings financial harm to the tens of thousands of children now being raised by same sex couples"
- and "the law degrades and demeans...disparages and injures...stigmatizes without consent" gay and lesbian couples.
For the knuckle-draggers like Scalia, who trotted out the same tired, worn, cliches from Lawrence v. Texas (decided the same day ten years ago, June 26, 2003) about "polygamy" and "bestiality" and "incest" and yada yada end of the world predictions, it was indeed a pathetic display. From Tribe again:
But Justice Scalia – in a portion of his dissent that Chief Justice Roberts conspicuously declined to join – couldn’t resist the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem) terms. I write this comment principally to highlight the extraordinary character of this particularly vitriolic and internally inconsistent dissent.He even insulted one of his fellow dissenters (Alito) for his arguments. It was sort of classic Scalia: foot-stomping, in-your-face, bluster with bitterness...and dead wrong, as usual.
I'm not sure U.S. v. Windsor (2013) will join the pantheon of cases like Brown v. Board of Education or Roe v. Wade that we'll be talking about fifty years from now. But to say it's not a historic day for civil rights in the gay and lesbian communities would be a misstatement.
Change comes both rapidly and incrementally, and for those who prefer chipping away at the walls of intolerance and discrimination rather than simply blowing the walls up, it was a very good day.
Cross-posted to The Cranky Sociologists