Seeing The Mountaintop

US-JUSTICE-GAY-MARRIAGE

[Re-posted and updated from earlier today]

I’ve just been absorbing the news out of the Supreme Court this morning. Unless the composition of the court changes, it now seems close to certain that every American citizen will soon have a right to marry the person they love. An idea that once seemed preposterous now appears close to banal. The legal strategy that Evan Wolfson crafted from the early 1990s onward – a critical mass of states with marriage equality before a definitive Supreme Court ruling – has been vindicated and then some. The political and cultural strategy we pioneered at the same time – shifting public opinion slowly from the ground up, tapping into the deepest longings of gay people to become fully part of their own families and their own country for the first time, talking to so many heterosexual men and women about ourselves for the first time – also succeeded.

There have been many moments when individuals have tried to take credit for all this. No one should. The reason we persuaded so many in sully-wedding-aisle-thumbso short a time is that so many unknown private individuals – from Thanksgiving tables to church meetings to office cubicles to locker rooms – simply told the truth about who we really are. It took immense personal courage at times – and each moment someone came out, more light, more reality, seeped into the debate. The reason so many attempted the apparently impossible was because we had seen at close hand what no marriage rights meant: as spouses were kept from spouses even at the hour of death during the AIDS crisis and as our children were  at risk of being taken away from us, as we grew our families.

These were elemental issues of human dignity – not abstract arguments about federal benefits or “natural law”. And this was a moral movement about the inherent dignity and equality of all of us – tapping into some of the profoundest truths from the founding of this country, and the deeper truths of our religious traditions, still sadly incapable, in many cases, of expanding, rather than constricting, the boundaries of human love. What we have right now in America is the moral majority for the dignity of every person’s capacity to love and be loved. What we have right now is the defeat of fear and fundamentalism – the two most dangerous sirens of our time.

What I also love about this conservative but extraordinary decision from SCOTUS is that it affirms the power of federalism against the alternatives. Marriage equality will not have been prematurely foisted on the country by one single decision; it will have emerged and taken root because it slowly gained democratic legitimacy, from state to state, because the legal and constitutional arguments slowly won in the court of public opinion, and because an experiment in one state, Massachusetts, and then others, helped persuade the sincere skeptics that the consequences were, in fact, the strengthening of families, not their weakening.

Those who wished to circumvent this process, to grab the credit, to condemn all those in dissent as ipso facto bigots, have mercifully been sidelined by the court. And now in thirty states (maybe thirty-five), the reality of this social reform will be seen: the quotidian responsibilities of spouses and parents, the moments of joy and agony that are part of all marriages, the healing of wounds of separation and ostracism. It won’t happen at once, but it will slowly emerge, through a greater collective empathy and inclusion. Every time a father holds back tears as his daughter marries her beloved, every time a child feels secure with her two dads or two moms, every time a young gay kid asks himself if he is really worthy because he is gay and now knows he can one day have a relationship like his mom and dad and feels less tormented and less alone: these are the ways we humans can grow and become what we fully can be. This is an expansion not just of human freedom, but of human love.

It is so easy today to see horror all around, anger surging, hysteria rising, fear spreading. But we see also in this remarkable, unlikely transformation the possibility of something much different: that human beings can put aside fear and embrace empathy, can abandon prejudice in favor of reality, can also see in themselves something they never saw before: an enlargement of the circle of human dignity.

I think of all those who never saw this day, the countless people who lived lives of terror and self-loathing for so, so long, crippled by the deep psychic wound of being told that the very source of your happiness – the love for someone else – was somehow evil, or criminal, or unmentionable. I think of the fathomless oceans of pain we swam through, with no sight of dry land, for so long. I think of the courage of so many who, in far, far darker times than these, summoned up the courage to live with integrity, even at the risk of their lives. And I cherish America, a place where this debate properly began, a place where the opposition was relentless and impassioned, a country which allowed a truly democratic debate over decades to change minds and hearts, where the Supreme Court guided, but never pre-empted, the kind of change that is all the more durable for having taken its time.

Know hope.

(Photo: Supporters of same-sex marriage gather in front of the US Supreme Court on March 26, 2013 in Washington, DC. Same-sex marriage takes center stage at the US Supreme Court on Tuesday as the justices begin hearing oral arguments on the emotionally-charged issue that has split the nation. By Jewel Samad/AFP/Getty Images.)

Quote For The Day

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A reader passed it along:

This Facebook post is from a CT Supreme Court justice. When he was a state senator, he was the main proponent and author (I think) of Connecticut’s marriage equality law (which was ultimately never passed – a court decision beat the legislature to the punch). He posted it around 8 pm eastern time tonight.

Mum From Republicans On Marriage Equality

Little surprise at this point:

As of Monday afternoon, Sen. Mike Lee was the lone GOP member to issue a statement. His home state of Utah was one of the states where a marriage ban was overturned by an appeals court and the state is now moving forward with allowing same-sex couples to marry. Lee called the Supreme Court decision to not review the appeals “disappointing.”

Steve Benen finds much of the same – but there’s one big exception:

I checked the websites for the House Speaker, House Majority Leader, House Majority Whip, and House Conference Chair, and combined, the four Republican leaders said a grand total of nothing. The same goes for the Republican National Committee, the National Republican Campaign Committee, and the National Republicans Senatorial Committee, all of which published literally zero words on the subject.

But at least their silence demonstrates how politically dead this issue is now, a far cry from the demagoguing of the 2004 election and the Prop 8 campaign of 2008. Timothy Kincaid likewise sees the muted reaction as “a sign that while the fighting isn’t over, we’ve already won”:

[T]he usual voices of the anti-gay extremists have been loud in condemnation. But where are RNC Committee Chairman Reince Preibus? Surely this merits a moment of his time. And as for House Majority Leader John Boehner… well perhaps he’s too busy to comment today. He’s on his way to San Diego to raise money for a gay GOP congressional candidate.

Sure they may both say something about the denial of cert. They may even remind us that they “personally uphold the traditional definition of marriage” or something of the sort. But gone are the days of blistering retort or angry denunciation.

But wait – there’s at least one big turd in the GOP punchbowl sounding off late in the day:

Sen. Ted Cruz (R-Texas) on Monday slammed the Supreme Court for declining to hear appeals on lower court rulings that overturn same-sex marriage bans, calling the justices’ move “tragic and indefensible.” “By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution,” he said in a statement.

And yet:

“This is judicial activism at its worst,” Cruz said. “Unelected [circuit court] judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.”

Judicial activism is the worst, unless it’s judicial inactivism.

Marriage Equality For The Majority!

Marriage Equality

Silver calculates that marriage equality states now “have a collective population of roughly 165 million, according to 2013 census figures”:

That means for the first time, same-sex marriage is legal for the majority of the U.S. population. The 26 states where the practice is not legal have a total population of about 151 million. The Supreme Court’s decision may also lead to the legalization of same-sex marriage in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming. Those states have an additional 25 million people combined. If they follow suit, 30 states and the District, totaling about 60 percent of the U.S. population, would allow same-sex marriage.

Burroway charts the progress made since the 1960s – a reversal few ever imagined: 

Equality Chart

Ruling Against Marriage Equality Was Actually A Bigger FD

Gay Marriage Becomes Legal in 5 States After Supreme Court Declines Challanges

Lyle Denniston digests the big news from this morning:

[F]our other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages.  Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8” ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans.  If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five.

The reaction in those four circuits could depend upon how they interpret what the Supreme Court did on Monday. If the Court is not likely to uphold any state ban, either on same-sex marriage in the first place or recognition of existing such marriage, lower courts may see good reason to fall in line.  The Court’s actions, however, do not set any precedent, so lower courts are technically free to go ahead and decide as they otherwise would. If they interpret the denials of review as providing no guidance whatsoever, then they would feel free to proceed without reading anything into what the Court has in mind. It is very hard, however, to interpret the Justices’ actions as having no meaning.

In Garrett Epps’ opinion, it’s now more difficult for an appeals court to reject marriage equality:

As long as cert. was pending, the lower-court opinions were in limbo. Meanwhile the issue is pending in the Fifth, Sixth, Ninth, and 11th Circuits. Any panel in one of those circuits must now confront a huge weight of federal authority affirming same-sex marriage. True, other circuits’ decisions are not “binding”; true, the Supreme Court did not give any hint of its position. But that’s still a lot of contrary authority to move against. Any judge writing an opinion that bars same-sex marriage must explain why he or she is ignoring all the previous decisions.

That still could happen. The press has speculated that the Sixth Circuit may soon issue an opinion allowing state bans to stand. The Fifth and 11th are among the most conservative of the circuits. If one of them breaks step, then the Court will have to take that case. And it would seem to most observers that it would be granting to reverse.

Epps doesn’t believe that SCOTUS “will allow thousands of couples nationwide to celebrate marriages, change names, jointly adopt children, become legally one family—and then, in an opinion later in the term, baldly announce that their marriages are in jeopardy or even void”:

If the justices were later to decide against same-sex marriages, a number of the states where, in a few days, it will be legal, would be back at the Court asking for reconsideration. That would be, as Lyle Deniston of SCOTUSblog wisely wrote,“an invitation to legal chaos.” Beyond that, it would be an act of cruelty that I hope is beyond any five of the nine human beings who sit on this Court.

Rick Hansen is on the same page:

The fact that the Supreme Court, without saying a peep, is letting court-ordered same sex marriages go forward in Utah is a huge deal. Now you may think that this could well be reversed once there is a circuit split, perhaps in a case from the 5th or 6th Circuit. But remember, there will now be all of these children from legal same sex marriages performed until the Supreme Court could decide to take a case from another circuit. The idea that Justice Kennedy would let that happen, knowing there could well be a reversal down the line seems unlikely.

Digby nods along with that:

There are already a whole lot of gay parents (always have been, they’re just now able to parent together) and a whole lot of laws that are necessarily being created to deal with that new circumstance. Aside from the obvious moral obstacle of breaking up happy families, there will be the complications of untangling many legal issues.

(Photo: Suzanne Marelius and Kelli Frame hold hands as they wait in line at the Salt Lake County Recorders Office to get a marriage license on October 6, 2014. Marelius and Frame are the first same sex couple in Utah to get a marriage license after the U.S. Supreme Court declined challenges to gay marriage making it now legal in Utah. By George Frey/Getty Images)

Why Did SCOTUS Punt?

Timothy Kincaid wonders:

[I]t should be noted that the decision to grant or deny certiorari is not a majority vote. It takes but four justices to decide that a court will hear an appeal. This suggests that either the conservative end of the court is hoping to wait for an appeal that better fits their opposition, or (despite long supposition otherwise) there are not four justices on the Supreme Court that oppose marriage equality and find it’s prohibition to be within the confines of constitutional enactment by the states.

Jeffrey Toobin thinks it’s “possible that neither the liberal nor the conservative bloc felt confident enough of Kennedy’s vote to risk letting him decide the case”:

The conservatives have a special reason for delay. Ginsburg, at 81 the oldest justice, will probably leave during the next president’s term. A Republican president would replace Ginsburg with a solid conservative vote and make Kennedy’s vote irrelevant. So waiting might be an appealing option for them.

The liberals had their own reasons for delay.

Same-sex marriage has marched with great speed across the country. Today’s non-decision means that more than half the states, with well more than half the population, have marriage equality. Those facts create their own momentum. More time equals more states, which might (the theory goes) make Kennedy’s vote easier to get a year from now.

Noah Feldman suspects that the Justices didn’t want to incite a backlash:

Inevitability, it might be thought, is what the Supreme Court waits for before making any landmark decision. But in this case, there is another major consideration: The justices are also worried about fueling a backlash that would render their decision illegitimate, even if it seemed inevitable. The great worry of the Supreme Court – or at least of Justice Kennedy – is that a premature gay-marriage decision would produce the kind of substantial public disagreement that followed Brown v. Board of Education and Roe v. Wade.

Cass Sunstein argues along the same lines:

Many people are stunned by the U.S. Supreme Court’s refusal to review any of the recent lower-court decisions requiring states to recognize same-sex marriages. They shouldn’t be. The court’s silence is a fresh tribute to what Yale law professor Alexander Bickel, writing in the early 1960s, called “the passive virtues.” For the Supreme Court, not to decide is often the best course, especially when the nation is sharply divided.

Bickel was no critic of the liberal Warren Court of the time. He vigorously defended Brown v. Board of Education, striking down school segregation. More broadly, Bickel believed that the court had an important national role as the arbiter of what was required by constitutional “principle.” Nonetheless, he thought that the justices had to be both humble and strategic. An aggressive insistence on vindicating fundamental principle could tear the country apart – and undermine the justices’ own goals in the process.

SCOTUS Clears The Way For Marriage Equality

Marriage Equality Map

Amy Howe summarizes the incredible news:

[T]he Court denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage.  This means that the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly, clearing the way for same-sex marriages in those states and any other state with similar bans in those circuits.

The Supreme Court had issued the first round of orders from the September 29 Conference last Thursday, adding eleven new cases to its docket for the new Term. Many people had anticipated that one or more of the same-sex marriage petitions might be on that list, but the Court did not act on any of them at the time.  Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the controversy at this point, because there was no disagreement among the lower courts on that issue.  Today her prediction proved true[.]

Geidner explains what this means going forward:

The decision not to take on the appeal in any of the pending certiorari petitions brings marriage equality to Indiana, Oklahoma, Virginia, Wisconsin, and Utah — meaning 24 states in the country have legal marriage equality.

It also makes the appeals court decisions striking down the marriage bans in those states the law of the land in the 4th Circuit, 7th Circuit, and 10th Circuit courts of appeals — a result that makes marriage equality likely to come in short order in all states within those circuits. This is so because the controlling precedent in those circuits now is that bans on same-sex couples’ marriages are unconstitutional.

Among the other states in the 4th Circuit without marriage equality currently that would be impacted are North Carolina, South Carolina, and West Virginia. Among the other states in the 10th Circuit without marriage equality currently that would be impacted are Colorado, Kansas, and Wyoming. That, once resolved, would bring the total number of states with marriage equality to 30.

Ari Ezra Waldman takes a minute to recognize “the magnitude of this win”:

The Fourth Circuit includes Maryland, West Virginia, Virginia, North Carolina, and South Carolina. The Seventh Circuit includes Indiana, Illinois, and Wisconsin. The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah. Those jurisdictions cover nearly 74 million people.

Ian Millhiser adds an important detail:

One thing that should be noted is that there are still marriage equality cases pending before conservative circuits that could rule against equality. Nevertheless, the fact that marriages are likely to begin very shortly in the states currently subject to court orders will make it very difficult for the Supreme Court to reverse course — and retroactively invalidate those marriages — in a subsequent opinion.

Mark Joseph Stern considers another possibility:

If no circuit court ever rules against gay marriage, the gay marriage question will be effectively settled, and the Supreme Court will never have to wade in again. It may be that the justices are hoping the lower courts rule uniformly on the issue—thereby making United States v. Windsor stand for a fundamental constitutional right for gay couples to marry. The tea leaves, at this point, remain hazy. But the court’s startling decision today suggests that no option is off the table.

More to come soon.

(Image: The WaPo’s updated marriage equality map)

Sarkozy’s Unseemly Return

Emily Tamkin furrows her brow at the former French president’s return to the political scene:

One might think that given [his] particularly expansive marital history, Sarkozy would decline to comment on supposed threats to the institution. But non. In a televised interview over the weekend, Sarkozy—who recently announced his intention to return formally to politics and lead his right-wing UMP party—criticized the policies of French President François Hollande, including the current president’s leadership on LGBTQ issues. The thrice-married politician believes that Hollande’s government, in introducing legislation allowing for same-sex marriage, is “humiliating families and humiliating people who love the family.”

Evan Mulvihill argues argued in 2012 that Sarkozy’s stance makes him a bad conservative:

Sarkozy said he supports inheritance rights for gay couples, but doesn’t want to create “civil unions” because they would “harm the institution of marriage.” France already has a sort of civil union called PACS. How a conservative politician can justify wanting less families on the planet, we do not know. Would that Sarkozy were more like British PM David Cameron, his neighbor to the west, who has said that he does not support gay marriage in spite of being a Conservative, but that he supports it because he is a Conservative.

Update from a reader:

Your post on Sarkozy’s statements includes misleading information:

– The referenced article by Evan Mulvihill is from 2012, when Sarkozy ran for re-election at the end of his term. Since then, gay marriage has been passed in France (the “loi Taubira”). The entire commentary and the specific point about civil unions are obsolete.

– The post implies that Sarkozy is currently against gay marriage. In fact, on Sunday, Sarkozy was not clear one way or another. He did not directly answer the question whether he would move to abolish gay marriage if elected again in the future. He did not say that “gay marriage humiliates families” (that’s what some commentators read into it); he said that, during the earlier debate, the family was humiliated (“on a humilié la famille”) and that he doesn’t want to approach the question in the same way again. He was taken to task by one side for not supporting gay marriage; he got as much flak from the anti-gay marriage side for not supporting its abolition.

Full video here (the part about gay marriage is near the end – around 43:00).

The Battle Lines Of The Culture Wars

Ramesh Ponnuru makes plain how they have and haven’t shifted:

On same-sex marriage and legalized marijuana, public attitudes have, in fact, changed. A majority has gone from opposing to supporting both of them. That doesn’t necessarily mean that opposing them is going to hurt Republicans: It depends on, among other things, whether there’s a large pool of voters who would be open to Republican candidates if only they supported gay marriage. It does, however, mean that Republicans are going to talk less about these issues.

On the other hand, the public has not shifted on abortion, which has been a politically important social issue for much longer than same-sex marriage or legal pot have been. When pollsters for CBS ask people whether abortion should be “generally available,” or Gallup asks whether it should be “legal only under certain circumstances,” the answers look nearly identical to what they were a decade ago. The same is true when Gallup asks whether people consider themselves “pro-life” or “pro-choice.”

Isn’t it obvious why? Marriage equality and legal cannabis cannot plausibly be described as harming anyone. They’re both classically libertarian, live-and-let-live initiatives. But abortion touches on something very different. Many people believe (and I am one of them) that abortion doesn’t just affect another human life, but ends it. The individual liberty argument – so potent with marriage and cannabis – is checked by a legitimate concern for the unborn child. That’s why the younger generation is close to unanimous on cannabis and marriage but still divided over abortion. Kevin Williamson is in agreement:

What conservatives often fail to emphasize, I think, is that abortion is simply in a different category of issues than is gay marriage or marijuana legalization.

Not that those latter issues are not important — they certainly are — but they are not life-and-death issues. The marijuana debate is about how much we think it is worth intervening in other people’s lives to police the use of a relatively mild intoxicant; the abortion debate is about what it means to be a human being. To that extent, the entire idea of “the social issues” is probably more harmful than helpful. Abortion and gay marriage are not even roughly comparable.

Putting abortion aside, Reihan argues “that Republicans are, in theory at least, in a stronger position than Democrats on a variety of other social issues.” For instance, he urges conservatives to take the lead on drug policy:

One can easily imagine conservatives arguing that the chief federal concern in regulating cannabis and other controlled substances is in containing the negative interstate spillovers associated with their use, and so if states succeed in containing these spillovers, they ought to be given wide berth to craft their own regulatory regimes — an argument I’ve gleaned from Mark Kleiman of UCLA and Will Baude of the University of Chicago Law School, in somewhat different forms. Similarly, conservatives might try experimenting with, say, empowering states to lower the drinking age, provided (again) they make a convincing case that they can contain negative spillovers. For example, a state might lower its drinking age while also increasing its taxes on alcohol in an effort to control binge use.

I can’t confidently say that being the first mover on one of these issues would necessarily redound to the GOP’s advantage. But it would certainly change the conversation, and break the GOP out of its defensive crouch.

I can’t say I’m very hopeful on that score. The Puritans remain very strong in the base of that party.

Will Marriage Equality Get Its Day In Court?

Lyle Denniston brings us the latest on the question:

Matching the speed of lawyers and lower courts in handling the same-sex marriage controversy, the Supreme Court on Wednesday set the stage for its first look at all of the pending cases, when the Justices assemble on September 29 for a private Conference.

Seven petitions — three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin — will be submitted to the Justices at that session.  There is, of course, no certainty that they will act on any or all of them at that point, but the option is there.  With all sides agreeing that the time to rule is now, it would be a surprise if the Court opted to bypass the issue altogether in its new Term.

Michelle Garcia lays out the possible implications:

If the court rules in favor of marriage equality in all of these cases — or allows the current rulings from lower courts to stand — an additional 65 million Americans would live in states with full marriage equality. Currently, roughly 137 million people, or 44 percent of U.S. inhabitants, live in a state with marriage equality.