SCOTUS: Maybe we’ll talk about gay marriage Friday


You know it’s a surprise when the Reuters headline contains the phrase “takes no action”: the Supreme Court issed an orders list today that made no mention of the several pending appeals challenging the Defense of Marriage Act. Instead, the Supremes relisted those cases for further consideration on Friday. In the awkward Christmas dinner that is America’s highest court, gay marriage is your cousin who brought his “roommate” from New York. Sonia Sotomayor is your cool aunt, and the other eight members are your grandpa. They know what’s going on, probably, and their main priority is that no one talks about it.

For those of us who consider gay marriage the main civil rights issue of our time, it’s kind of a dick move. Twenty years ago, nobody prohibited same-sex marriage; now 31 states have amended their constitutions to specify that marriage is between a man and a woman, while nine states have made gay marriage specifically legal. It’s the kind of broad disagreement on the rights of US citizens that the court was made to arbitrate, which is probably why they’re scared.

Here’s a fun difference between today’s Supreme Court and previous ones in American history: our court has seen the earlier courts’ mistakes. With the exception of Antonin Scalia, who only cares about finding Solo and the Wookie, pretty much every member of the Supremes must deliberate with a single purpose in mind: don’t do another Dredd Scott.

Obviously, the court serves different purposes from era to era. Back when Roger Taney was explaining that people of African descent were obviously not US citizens, SCOTUS was as much an instrument of political gamesmanship as the House Appropriations Committee. Now we have justices like Scalia and Clarence Thomas, whose sterling neutrality leaves them beholden only to their understanding of the law. Unlike the Taney court, the modern court is above Republican/Democrat machinations. Also, if you let dudes marry each other, the institution of straight marriage will gradually disappear.

So yeah—the modern SCOTUS is probably as venal and ugly as many of the earlier courts in American history. Still, they have to know, like the rest of us, that the long-line tendency of said history is toward more individual rights. First it was not owning people; then it was letting women vote and then letting people whose great-grandparents had been owned use the drinking fountain. At no point did the court backslide and take rights away; the worst it ever did was fail to grant those rights, as in Scott, when they were manifestly deserved.

And at every subsequent point, we have looked back at those failures as stunningly wrong. Dredd Scott v. Sandford was probably the worst Supreme Court ruling in history. It is reviled today, along with such lesser-but-still-shocking malfeasances as Santa Clara County v. Southern Pacific Railroad and—lemme gaze back into the tunnel of history, here—Citizens United v. FEC. Our present court is already responsible for one of the most potentially resented rulings of the last 50 years. Is it surprising that they’re in no rush to issue another?

It is not surprising; it is merely cowardly. Surely, the question of whether gay Americans have the right to marry one another is not going to go away in the near future. If the court does not rule by 2013, it will have to do so by 2023. The longer they wait, the more lives they will disrupt, and the more time and money the states will waste on lawsuits and junk amendments to their constitutions. We all know it, just as certainly as we know that Scalia, Kennedy, Alito and Thomas cannot rule in favor of gay marriage without betraying the people who installed them.

Which is a dilemma—those same four men do not want to write their names in history as the Roger Taneys of 2012. Even if they believe gay marriage is wrong—even if they do not think gay marriage will inevitably become legal—they have to know that voting against civil rights is a historically bad proposition. The history of SCOTUS is littered with documented bigots who ruled according to the prejudices of their times. The famously bad Supreme Court rulings have been on issues like this one. If I were a corrupt homophobe, I’d want to put off outing myself until Friday, too.

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  1. I dunno. Kennedy ruled with the majority on Lawrence v. Texas, and on Christian Legal Society v. Martinez. The first established the court’s refusal to distinguish between status and conduct in regard to homosexuality, while the second reaffirmed it. The same principle seems to apply here, in part, to dismantle the argument that everyone has equal opportunity to marry someone of the opposite sex. Alito, Scalia and Thomas will go one way; Ginsberg, Breyer, Kennedy (in all likelihood), Sotomayor and Kagan (if she even gets to sit on the cases) will go the other. Roberts seems like he could be the stalemate vote if Kagan has to recuse herself.

    If they look at it as a states rights issue, rather than a human rights issue, the calculus is different. I wouldn’t expect consistency from Scalia–he hasn’t managed to drink enough of his own federalist kool aid to kill the taste of man love.

  2. From the standpoint of marriage being recognized by government, it’s an institution designed to control the conditions under which children are birthed and reared. We can discuss the merits of subsidizing married couples to encourage a traditional sort of family, but is any of that relevant to the vast majority of gay couples?

    There’s no law stopping them from giving vows to each other!

  3. Considering the divorce rate, the number of hetero couples without children, child abandonment and abuse, and growing child poverty, it seems that marriage as an institution (designed to control the conditions under which children are reared) could use some new blood.

  4. Captain–

    Last US Census documents that over 30% of lesbian couples and over 15% of gay male couples are currently engaged in child rearing. So, while its true that the majority of same-sex couples wouldn’t find marriage impactful for the purposes of child rearing, it’s not as if it would have zero impact.

    But really, the purpose of marriage being about child rearing and reproduction is wildly reductive in regard to the constellation of social goods that derives from governmentally sanctioned and recognized pairing. Mutual interdependence saves the government money–starting with healthcare. Why shouldn’t all committed couples be able to access the benefits and accolades provided by the state?

  5. Mutual interdependence is beneficial for the people engaging in it as well. I would argue there’s no justification for the government subsidizing it because they will do it anyway (friends living together as roommates, people dishonestly sharing family cellphone plans with non family members). Health care is beast in it’s own class, it’s already such a contrived situation in the US. True, it isn’t fair if a gay couple with adopted kids can’t share a employer health plan with the unemployed partner. But neither is it fair for the single people at that employer to have to subsidize the health care of a couple who are never going to raise any children. And of course there are plenty of straight people with no intention of having kids, and one of them is getting the benefits of a large health risk pool and not really doing anything otherwise. The whole thing is just garbage. So really, the answer is not to bring more people into the employer based health insurance market. I would actually say that the institution of marriage and it’s connections with insurance is a major cause of our limited choices in the matter.

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