Gays might not win because they’ve already won? That was the moronic oxymoron at the heart of the Supreme Court debate on same-sex marriage.
As Washington shivered in a chilly spring, there was no music of history at America’s highest court. The justices offered no pearls on liberty and the pursuit of happiness. Justice Antonin Scalia didn’t even know how many states allowed gay marriage. Clarence Thomas looked distracted, whispering to clerks and tilting horizontally in his chair.
Justice Anthony Kennedy had a single compassionate moment, mentioning the children whose gay parents were stuck in marital limbo. But for the most part, the human factor, how demeaning it feels to be shunted to a lower plane than your fellow citizens, was ignored.
Kennedy offered no lovely odes to fairness as he did in Lawrence v. Texas in 2003, striking down a sodomy law, when people in the courtroom actually wept at his majority opinion, which stated that “the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Brushing back originalists and troglodytes then, Kennedy said that “times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”
On Wednesday, Chief Justice John Roberts played Karl Rove, musing not about moral imperatives but political momentum.
“You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?” he asked Roberta Kaplan, the New York lawyer representing Edie Windsor, the captivating 83-year-old who argued that she would not have been socked with a whopping estate tax bill if her spouse had been named Theo instead of Thea.
Roberts pressed the point, noting, “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
Certainly, the cascading headlines were buoying. “Gay Marriage Already Won,” Time proclaimed. “Why the Gay-Marriage Fight Is Over,” The New Yorker deemed. It was hard to find vocal opponents in the vibrant demonstration outside the Supreme Court, and Rush Limbaugh conceded, “This issue is lost.” There was even a Chick-fil-A franchise in Southern California giving free meals to gay-marriage supporters.
But Roberts’ suggestion that gays are banishing a long, egregious history of blatant, disgusting, government-sponsored discrimination on their own is absurd. You could almost hear him thinking, “They’ve got ‘Glee,’ they’ve got Ellen, they’ve got Tammy Baldwin — what are they whining about?”
Can you imagine Chief Justice Earl Warren, a Republican, making a similar point about blacks during the 1967 Loving v. Virginia arguments? In that case, the 1964 Civil Rights Act had been passed and the 1967 movie “Guess Who’s Coming to Dinner?” was a harbinger of a sea change on mixed-race marriages. The court noted in its opinion that the political process had achieved significant progress around the country, with 14 states in 15 years repealing laws outlawing interracial marriages.
Yet the justices struck down the law anyway because, as they said, “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” (Paving the way for Clarence and Ginni Thomas to live happily ever after in Virginia.)
When the suit against Proposition 8, the initiative that banned gay marriage in California, was filed in 2009, opponents argued that it was too soon and that a court decision favoring gay rights could cause a backlash. Now opponents say things are going so well for gays that they don’t need help from the Supreme Court. Damned if you do and damned if you don’t. (Or in this case, damned if you say “I do.”)
Gays may be winning on atmospherics, but there’s only so much more progress they can make politically.
Women are protected from discrimination under the law even though they make up 51 percent of the population and are as responsible as anybody for putting Barack Obama in the Oval Office twice.
But Congress has passed no federal protections for gays on employment, housing and education. In 29 states, it is perfectly legal to fire someone because of his or her sexual orientation. The FBI says the only uptick in hate crimes involves attacks on gays.
BANNED IN 31 STATES
Thirty-one states have enacted constitutional amendments banning same-sex marriage. Beyond the nine states where they can marry, plus D.C., gays may pick up Illinois and Delaware, but then there’s a hard stop. Those struck by Cupid in places like Alabama, Arkansas and Utah will long be left either moving or saying, “I’m deliriously, madly in love with you, but let’s leave it to the states, honey.”
Even with Hispanics riding high in the public arena, the “wetback” crack by the Republican congressman Don Young of Alaska shows bigotry is always lurking.
What the political world giveth, it can taketh away. The Supreme Court should know that civil rights are not supposed to be determined on the whims of the people.