Saturday, December 08, 2012

Excitement and trepidation: Supreme Court to rule on same-sex marriage

By Michael J.W. Stickings

In case you missed it, there was huge news coming out of SCOTUS yesterday:

The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.

The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The court's move comes against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. After the elections last month, the number of states authorizing same-sex marriage increased by half, to nine. 

So the Court may rule on the constitutionality of same-sex marriage, or it may not.

And if it determines, with public opinion shifting and proponents winning at the state level, that it's an issue best left to the political arena, it may punt.

Or, given that it leans 5-4 conservative and that those conservatives may see themselves as a bulwark against such democratic change, it may not, issuing a ruling that seeks to block that change altogether.

Or it may just restrict any ruling to the state in question, refusing to comment on same-sex marriage as a constitutional right that applies broadly.

As SCOTUSblog's Lyle Denniston says (quoted here):

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

So, basically, who knows?

And for those of us who support marriage equality, it's a mixture of excitement and trepidation. Yes, we want same-sex marriage to be determined to be a constitutional right, but we also realize that the Court isn't exactly a bastion of progressivism at the moment. What if it rules the other way? What will that mean for what has been an extremely successful movement in recent years, with public opinion rapidly embracing marriage equality (and gay rights generally) and state after state legalizing same-sex marriage?

It's the way it always is. When you don't have public opinion and/or democratic legislatures with you, you take your fight to the courts. But when you do, you don't necessarily need to. And in this case, when you're making progress but may not have the highest court in the land with you, you worry about the outcome.

As Laura Conaway sums it up at The Maddow Blog:

[Yesterday's] announcement makes for a moment of great risk and opportunity for supporters of marriage equality. On the one hand, the court is giving them a chance, but there's no guarantee that the deeply divided court will rule for their cause. We are also at a moment when marriage equality has finally begun to win at the ballot box, which makes proponents of the judicial solution that much more nervous about convincing the court that sexual minorities are politically powerless.

Still, it has to happen sometime. Regardless of whatever progress is made at the state level, at some point the constitutionality of same-sex marriage will need to be determined. Let's just hope this is the right time -- and that the Court doesn't let conservative ideology or Republican partisanship get in the way of standing for justice.

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