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News Analysis: How Will the Supremes Rule on Marriage Equality?

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by Kilian Melloy

Its great civil rights benchmark cases have acted to scrub out inequality in stubborn pockets, not reset the laws of a majority of the nation's states. On the one hand, in the 1996 case Romer v. Evans, the Supreme Court has already struck down a voter-approved state constitutional amendment, Colorado's Amendment 2, which denied gay citizens any relief from municipalities in the form of gay-inclusive ant-discrimination laws.

The court ruled that Amendment 2, passed by voters in 1992, violated the rights of GLBT Coloradans under the terms of the U.S. Constitution. A ruling that finally strikes down Prop 8 for good would dovetail with Romer v. Evans, but would also be significantly different.

Romer v. Evans was about protections denied to a suspect class. Prop 8 is about rights, and in some circles it's still the case that family rights for gays are recognized as rights at all.

The argument that marriage is not a right should, one would think, lead straight to the conclusion that the federal government should not be involving itself at all in the issue of marriage. If any government should be restricting or regulating what is, essentially, a private contract between two individuals, it's the states.

That's where we have hope that however the Prop 8 case plays out, and DOMA will finally be defeated, opening the door to a host of sensible reforms in a myriad of areas, such as the tax code; spouses who are foreign nationals; perhaps even some sort of rudimentary federal law granting domestic partnership so that gay and lesbian families would not be so vulnerable to the patchwork of wildly varying state laws that grant and strip essential rights and protections as a matter of geography.

Looking at the Right-Wing Judges
Even reliable anti-gay justices like Antonin Scalia might agree that the issue of marriage is better left to the states, and that DOMA illicitly takes authority away from states that they should be allowed to retain. Scalia dissented in 1996 on the Romer v. Evans case, where he wrote that GLBT-inclusive anti-discrimination laws requited employers and landlords to set aside personal dislike of gays while leaving them free to fire or refuse to hire employees, or refuse to rent to tenants, based on just about anything else. But Scalia also poured contempt on anti-gay groups seeking exemption from election laws that required petition signatories and charitable contributors to be publicly identified.

What of the other justices?

What about Clarence Thomas, whose stony (or sleepy) silence is hardly ever broken? One suspects that a justice whose place on the bench was imperiled by tales of fizzy drinks, provocatively adulterated pubic hairs and open admiration for porn might not be best able to appreciate the nuances of the issue -- namely, that gays are human beings, not brute beasts driven purely by lust, as the fringe right so often likes to claim.

Chief Justice Thomas Roberts upheld Obamacare, to the shock and horror of his right-wing constituency, but that was something of a special case and altogether of a different nature. Will he be able to set aside any preconceptions he might or might not have about gays and lesbians as people (or, as the case may be, less than people) in order to contemplate the Pandora's Box situation presented by the specter of rights being stripped from select demographics by popular vote? Will he be able to focus on the legalities of states' rights versus federal overreach? Or will he simply wish to put gays in their place?

The general sense seems to be that the court is so cleanly and evenly divided that these issues will be settled by one swing vote. Justice Anthony Kennedy, who has in the past been a defender of equality for GLBTs, seems to be the one expected to break the ties. That presumes that Roberts, Alito, Scalia, and Thomas will be immovably opposed to protecting gay families, and intent to the exclusion of other considerations on upholding DOMA and Prop 8.

Not Taking Liberal Judges for Granted
That line of thought also presumes that justices Stephen Breyer, Ruth Ginsburg, Sonya Sotomayor, and Elena Kagan will all agree that DOMA and Prop 8 deserve to be scrapped for want of Constitutional muster. But the justices might surprise everyone. It's certainly happened before, and in large part it's because we project our own opinions onto the justices; and more than that, imagine the justices are predictable lenses through which to see any given legal issue.

But we cannot safely make those assumptions. The issues here seem black and white to gay families: DOMA hurts us, and Prop 8 stole what was rightfully ours. Neither should be allowed to stand, because the precedents they set are too dangerous -- not just for gays, but for any minority. From a strictly legal standpoint, however, the issue is exponentially more complex.

Walker's decision struck down Prop 8 but did so on a narrow, rather than broad, basis. The outcomes of the decisions ahead will inevitably have broad effects, but they could well be arrived at through thinly parsed legal analysis that will muddy the waters for years or decades to come.

Get Set for a Wild Ride
Perhaps the more crucial element to all this is how We the People are going to react to the Supreme Court's rulings. No matter what happens, the losing side is going to hurl accusations of judicial activism at the Supreme Court, and it's even possible that decades of virulent backlash will be the result, like the continuing social division over Roe v. Wade, which legalized abortion and struck down state laws that criminalized it.

Still, the political waters need not be overly roiled. For that to be the case, however, certain factors must come into play.

Gay families and their advocates and supporters will need to remain calm and dignified whatever comes. If we win, it won't do to rub anyone's nose in it: Better by far would be simple and gracious expressions of relief and gratitude.

It would be nice for those who spend so much time and money trying to harm our families to remain calm also, as forlorn a hope as that might be. If the other side wins the day, it will instantly revitalize their efforts to strip our rights and families from us.

What we're going to need from all the Supreme Court justices, whatever their judicial and political philosophies might be, is clear-cut, durably reasoned legal opinions that take into account the real world fallout from their rulings. It might, however, be wanting too much to want this sort of crystalline and rigorous thinking from some of the current justices, especially where the law of the land concerns LGBT Americans and their families.

We're either in for a white water rafting sort of experience, or a thrill ride of mile-long zip line proportions, but the future is coming for us. Whatever happens it's certainly not going to be boring.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


  • Bob K, 2012-12-11 04:14:56

    Notice that the 9th Circuit judge who dissented on affirming Walker’s ruling is a MORMON in Idaho, where his family would likely have been ostracized if he voted for fairness in the Prop 8 case. Roberts faces being the "anti-rights bigot Chief Justice" in the review of this case. In the DOMA challenge, I am thinking that the provision directly affecting Ms Windsor will be struck down, but the overall unfair law may stand.

  • Oh Jed said:, 2012-12-11 08:07:35

    We can certainly drive ourselves crazy with speculation. I’ve read every single analysis that has hit my news feeds and am no closer to feeling confident about my opinion of potential results. One thing I DO know, it’ll certainly be interesting to see how they craft an eloquent and truly logical ruling if bias against us is any part of their decision.

  • JerryInSoCal, 2012-12-11 18:03:11

    My partner is a German national, so DOMA decision is very important to us. One comment he made recently sticks with me: "if the US Courts rule against the LGBT community, the US will be last on civil rights in the first world countries. Other countries are watching the US closely."

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