Month: March 2013

Lyle Denniston analyzes today’s arguments:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence.  That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail.   The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.

Plaintiff Edie Windsor, who is fighting for the federal government to recognize her marriage, spoke outside the Supreme Court after oral arguments:

Rob Tisinai’s take:

What moved me most was her description of how she’d been closeted for so many years, and how she was so grateful today for the kindness in how the Justices treated her.

She was grateful for their kindness

Take a moment to realize that for most of her life, this kindness — this civility and dignity and respect — was something she and Thea had no reason to expect. It breaks my heart with regret at what these women had to live through, and it breaks my heart with joy that this heroine has never let it overcome her. Edie Windsor has overcome, no matter what the Court decides.

Audio here. Transcript here (pdf). My thoughts soon.

Contra Silver, Nate Cohn expects that it could take a long time for the South to come around:

With evangelicals slower to change their minds, Southern states should move at a slower pace than the national average. To date, support for gay marriage has increased at a roughly linear rate of 2 points per year. But it’s possible that increases in support could slow in the medium-term, as non-evangelical groups hit the point of diminishing returns. If evangelicals don’t pick up the slack by shifting faster on gay marriage, support for gay marriage could plateau. Parts of the South, Plains, and West would probably still have gay marriage bans, and the Supreme Court, despite its hopes to avoid a judgment, might be forced to make the final call.

Chait uses Maggie Gallagher to document its decline:

The surest sign of resignation is that Gallagher has redirected her focus from stopping gay marriage to preserving the dignity of her reputation and those of her fellow believers. She now presents her cause as a kind of civil rights movement to protect her fellow believers from the stigma of advocating bigotry and discrimination. “I worry when I get an email from a woman who’s a nurse in a hospital,” she told NPR, “who wrote a letter to the editor opposing gay marriage, and finds that she fears her job is in jeopardy.”

This leap toward leftist victimology is not new, but it sure is getting more intense, as the polling keeps bludgeoning the morale of those “defending” civil marriage from homosexual couples. When I was debating in Idaho, my debating partner, Doug Wilson, basically said that heterosexuals had already broken marriage – through no-fault divorce, “living in sin”, etc. – and so it was too late (and somewhat unfair) to take it out on the gays. He was reduced to what Bill O’Reilly has called “thumping the Bible.” But here’s what I don’t understand. Aren’t Christians supposed to be counter-cultural? Are they not supposed to be thrilled when they are ostracized or marginalized or held in contempt? Doesn’t Jesus predict exactly that and Paul celebrate it?

My view is that those who hold the view, in good conscience, that marriage should only be between a man and a woman, life-long, monogamous and procreative – have, and always have had, the option of leading by example rather than suppressing the rights of others. That’s the Christian, not Christianist, way forward. If their argument is so strong, they should not be worried by what presumably they think is a fad. Fads die out. All they really have to do is be true to their principles, convey them persuasively … and wait.

And yet they don’t. I wonder why.

(Photo: Opponents of same-sex marriage kneel in prayer as they arrive at the Supreme Court as they participate in the March for Marriage on March 26, 2013. The US Supreme Court hears arguments on California’s Proposition 8 ban on same-sex marriage. By Nicholas Kamm/AFP/Getty Images)

As reported by the WSJ:

Justice Kennedy, who has championed states’ rights at the court, says there’s no need to reach the equal-protection issue if the federal government had no authority to supersede state marriage laws in the first place.

That looks to me like a winning argument for Kennedy. And, possibly, for the court as a whole.

You knew this issue was snowballing when Bill O’Reilly noted last night that among the most ferocious opponents of marriage equality in France are Muslims and that the actual arguments are deeply lop-sided. Money quote from Papa Bear:

The compelling argument is on the side of homosexuals. That is where the compelling argument is. We’re Americans, we just want to be treated like everybody else. That’s a compelling argument, and to deny that you’ve got to have a very strong argument on the other side. And the other side hasn’t been able to do anything but thump the Bible.”

Indeed. Or a tortuous reinvention of natural law. Meanwhile, a slew of Democratic senators have come out in favor of marriage equality over the past few days. Not exactly profiles in courage at this point, but opportunism is always a better guide to politics than principle. Thoreau is amazed:

The number and range of people coming out in favor of gay marriage right now is amazing. OK, maybe not so amazing, given the opportunistic politics of it. Still, I’m impressed by the very fact that supporting gay marriage is the politically opportunistic course of action. When shameless political cowards are all on the bandwagon, something has changed.

More detail here:

The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments. At another point, he disagreed with the lawyer’s contention that the law simply creates a single definition for federal purposes. “It’s not really uniformity,” the justice said, because same-sex couples would not have access to federal benefits that traditional couples have.

Justice Kennedy’s point echoed one made by his more liberal colleagues.

Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”

As soon as the transcript is released, I’ll start working on a second analysis. But this strikes me as a more important and winnable case than yesterday’s and a victory would be huge – for federalism and for equality. It would, for example, immediately grant social security benefits to my husband were I to be run over by a truck; it would enable bi-national gay couples who are married in an equality state to stay together. And it offers the potential for a liberal-conservative alliance – conservatives for federalism, liberals for equality.