Is the Battle For Same-Sex Marriage Nearly Over?

I hated last summer’s Windsor decision. That is, I loved the result — the Defense of Marriage Act overturned — but I hated Justice Kennedy’s mushy legal logic. What did the decision mean? How would it apply to anything beyond the specific case in front of the Court? How would it apply to state bans on same-sex marriage?

Lower-court judges wondered too. As he was striking down Oklahoma’s ban in January, Judge Terence Kern placed a subtle barb into his decision:

This Court has gleaned and will apply two principles from Windsor.

I unpacked that statement like this:

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Nevertheless, judges all over the country were managing to glean something similar out of Windsor. In one federal district after another — Indiana, Utah, Virginia, Wisconsin — state same-sex marriage bans were going down. The states were appealing those decisions to the Supreme Court, but the Court did not necessarily have to make a ruling, because so far the appellate court rulings were unanimously against the state bans. If one district found them constitutional and another unconstitutional, the Supremes would have to step in. But so far that hadn’t happened.

On Monday, the Court announced that it would take advantage of its right to remain silent: It was refusing to hear the appeals. That instantly established marriage equality in the appealing states, and made virtually automatic its extension to other states in the same appellate districts: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. (The near-automatic ruling in North Carolina happened Friday. Thursday, West Virginia officials dropped their case rather than waste time losing.)

The 9th Circuit Court of Appeals, which comprises much of the Northwest, will hear cases involving Idaho, Nevada, and Hawaii soon. Alaska’s ban went down Sunday, so it might be added to that hearing.

When the dust settles fairly soon, gays and lesbians will be allowed to marry in 30 states — 35 if the 9th Circuit joins the appellate-court consensus. Can anything stop its extension to the whole country before long?

The politics of the Supreme Court. One of the intriguing facts about the Court’s non-decision is that hearing an appeal only requires the approval of four justices, not the five it would take for the appeal to succeed. The Court’s four most conservative members — Roberts, Scalia, Alito, and Thomas — all dissented in Windsor and presumably believe in the constitutionality of state same-sex marriage bans. If they had stuck together, they could have agreed to hear the appeals. That would have stopped the spread of marriage equality at least until the Court ruled, maybe as late as June.

The only reason not to take that course is the fear that they would lose, and that Justice Kennedy would join the Court’s liberal justices — Ginsburg, Sotomayor, Breyer, and Kagan — in establishing a constitutional right to same-sex marriage in all 50 states. Similarly, the four liberal justices could have accepted the appeal and gone for the win rather than for the sizable advance the non-decision represents.

All the justices — especially Kennedy — might want the battle for marriage to play out in a more gradual, more organic way, rather than ending it in a quick thrust with the Court’s fingerprints on the knife.

And both sides can keep their victory scenarios alive, though the conservative victory scenario is shakier: If they can’t convince Kennedy to join them, the conservative justices have to hope a Republican wins the White House in 2016 and has a chance to replace Kennedy or a liberal judge with a conservative.

Nationally, marriage equality has substantial momentum, so a decision upholding it becomes less controversial by the day. And if the Court never decides, in the long run the political process will.

The legal debate. Reading the post-Windsor lower-court decisions, one conclusion is inescapable: The anti-gay side has run out of ammunition. In case after case, they have had no better strategy than to trot out the same arguments all the previous courts rejected, and hope that this judge will be more sympathetic to their cause.

Way back in Lawrence, the Supreme Court rejected the notion that mere moral disapproval (without any substantive injury to those disapproving or to society in general) was an acceptable basis for making a law (against sodomy, in that case). So “I think two men kissing is yucky” is not a rational basis for banning same-sex marriage. Similarly, “The Bible says it’s wrong” doesn’t cut it, because the Bible has no legal standing.

Since those are the actual reasons people oppose marriage equality, the legal arguments against it have always been facades. More and more, they have looked like facades, and judges have routinely knocked them down: There is zero legitimate evidence that letting same-sex couples marry harms heterosexual couples, or the children being raised by either same-sex or opposite-sex couples, or anyone else.

Looking back at the Goodridge decision (that legalized same-sex marriage in Massachusetts in 2003), it’s striking how little has changed on the anti-gay side. The arguments that were unconvincing a decade ago are still the only ones they have.

The political debate. My prediction after Goodridge has been borne out:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Focus on the Family’s James Dobson’s predictions, on the other hand, have not fared nearly so well:

Barring a miracle, the family as it has been known for more than five millennia will crumble, presaging the fall of Western civilization itself.

Same-sex marriage has been legal in my state (New Hampshire) for almost five years. And I live just across the border from Massachusetts, where it’s been legal for a decade. If the family or Western civilization is any closer to crumbling here than in heterosexual-marriage-only states like Texas or Alabama, the signs are escaping me.

Scare tactics like Dobson’s are an all-or-nothing gamble. If you can frighten people out of trying something, they’ll never find out that your visions of doom are baseless. But as soon as somebody does try it, then the sky either falls or it doesn’t.

The sky isn’t falling. The more states that implement marriage equality and the more same-sex couples that are visibly pursuing their chance at marital happiness, the more obvious it becomes that the sky is not falling. Little Bobby’s friend Susie has two Dads or two Moms, and it’s just not a problem. You’ll never be able to explain to Bobby why you want the government to break up Susie’s family.

That’s why the poll results are so age-determined. The main people against marriage equality these days are the grandparents, who don’t have to explain stuff to Bobby.

So here’s what I expect to happen as a result of this latest expansion of marriage equality: The opposition will harden in the states affected, but it will also shrink. More and more people will have a chance to observe first-hand the absurdity of the “pro-family” scare tactics.

Here’s what I don’t expect to happen: The Republican Party will not launch a crusade to get this reversed, or play up the Republican-president-appoints-an-anti-gay-judge scenario in 2016. Because nationally, that’s a losing issue. The public has turned.

The last-ditch resistance. In “Not a Tea Party, a Confederate Party“, I defined the Confederate worldview like this:

The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries.

On the national level, conservatives can’t win this battle either legally or democratically any more, and the number of states where they could win democratically is shrinking every year. More and more, the national Republican leadership wants to talk about anything else — Ebola-infected ISIS terrorists crossing our Mexican border, maybe.

Republican strategist Alex Castellanos put it like this:

Increasingly, there is less room in the GOP for ‘big-government’ social conservatives, i.e., social conservatives who believe in using the power of the state to tell people whom they can love or marry. Instead, there is growing agreement, in an ever younger and increasingly libertarian Republican party, that the role of the state in prohibiting relationships should be minimized.

And northern Republican governors like Scott Walker and Chris Christie are happy to leave the issue behind.

But that pragmatic approach to politics doesn’t sit well with the older Confederate types. Mike Huckabee is threatening to leave the party if it doesn’t fight this. Other voices are calling for civil disobedience, though it’s not clear what form that would take.

The most outrageous response came from Pat Buchanan, who recalled resistance to an earlier act of “judicial dictatorship”:

In 1954, the Supreme Court ordered the desegregation of all public schools. But when the court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.

Only when resistance became national and a violent reaction began did our black-robed radicals back down.

Again, it’s not clear what specific acts of violence he’s calling for.

I also cited the reaction to school desegregation as an example of Confederate tactics in the modern era. And Buchanan apparently sees that relationship too (though he views it positively). He ends his article with a quote from Robert Lewis Dabny’s 1867 book A Defense of Virginia.

American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. … Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.

Buchanan is arguing against conservatives who believe that the debate about same-sex marriage is over. Dabny was arguing — after the end of the Civil War — with those who thought that the debate about slavery was over. Dabny was a prophet of the insurgency that ultimately won Reconstruction for the South and established Jim Crow.

And he’s an example that Buchanan wants to emulate.

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Comments

  • Melissa S. Green  On October 13, 2014 at 12:32 pm

    Great analysis, except you inexplicably missed the fact that the Ninth Circuit ruled on Nevada and Idaho last Tuesday, a ruling upon which the decision in Alaska partially relied. (In fact, the temporary stay on Idaho marriages after the Ninth Circuit’s decision was lifted by SCOTUS on Friday just as arguments in the Alaska District Court were winding up, & became the subject of applause in the courtroom.) The Ninth Circuit didn’t rule on Hawaii, because Hawaii had already legalized same-sex marriage.

Trackbacks

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    […] again. But when Judge Kean was throwing out Oklahoma’s ban on same-sex marriage, for example, he wrote that he had “gleaned” — not quoted, gleaned — two principles from […]

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