SCOTUS Takes On Marriage Equality: Reax II


Emily Bazelon weighs in on SCOTUS' selection of both Windsor and Perry:

Does the Supreme Court agree—do five of the justices see this in terms of doom rather than progress? Or could they possibly side with Olson and Boies all the way and declare gay marriage legal in every single state? That would mean changing the laws of 41 states that have not yet taken that step. At a panel discussion I did with Yoshino and Jeffrey Toobin on Thursday night at New York University, Yoshino argued that the court will find some middle ground, some way to allow gay marriage in California without forcing it on the parts of the country that aren’t ready. He also pointed out that other state marriage bans, in Hawaii and Nevada, are also bubbling up through the courts, which could make the justices feel that delaying the big question (my own nervous Nellie preference) isn’t really an option.

Constitutional scholar William Eskridge and political consultant Hans Johnson look back at the response to decisions on miscegenation and abortion:

The Warren Court declined to disturb anti-miscegenation laws in the 1950s, when three-fifths of the states had laws barring different-race marriages. Bowing to the blatant affront to minority citizens, lawmakers in half of those states repealed their statutes between 1957 and 1967. When the Court did act, in Loving, its insistence on marriage equality for interracial couples had greater bite because the nation’s public law conversation was coming to an end on this issue.  

Contrast such a cautious approach with Roe v. Wade, issued forty years ago next month, an important ruling for which the Court has faced criticism, even from some abortion rights supporters, for ruling too broadly when the nation was not at rest on the issue of abortion rights and giving some traction to a legislative backlash.

Garrett Epps suspects that SCOTUS will decide "that states may restrict marriage, but if a state decides to open the institution to gay people the federal government may not refuse to recognize the resulting unions." Kenji Yoshino, on the other hand, explains ways the court can invalidate Prop 8 and stop short of affecting most states directly. An example of such a ruling:

[One] breakpoint on the spectrum would focus on the lack of justification for giving same-sex couples all the rights and responsibilities of marriage but withholding the word “marriage” from them. This resolution differs from the Ninth Circuit panel’s ruling because it removes any issue of retrogression from the analysis. What is important is not that California went all the way to same-sex marriage and then retreated, but rather that California went all the way to “everything but marriage.” Once it did so, it reached the point of no return. Currently, seven states besides California would be affected by such a ruling: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

And, as far as public outcry goes, Greg Sargent isn't worried:

[M]y bet is that there won’t be any significant backlash to speak of this time. The circumstances are very different today. Public opinion is more favorable now towards gay marriage than it was, say, towards interracial marriage during the 1960s, when laws against it were ruled unconstitutional. Today there is far more media coverage of the Supreme Court — via the internet and cable — meaning the public will have time to grow familiar with its arguments over gay marriage, and won’t be hit out of the blue with a big SCOTUS decision.

What’s more, an American president has come out in support of gay marriage. And by the way, the backlash that was supposed to produce never materialized, either.

Earlier reax here.

(Photo: Steven Austin and Michael Pirkle are pictured during their wedding at City Hall on December 9, 2012 in Seattle, Washington. The two have been together for 12 years. By David Ryder/Getty Images)