by MARK GABRISH CONLAN
Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
First, the good news: the United States Supreme Court has agreed to hear the constitutional challenge to Proposition 8, the voter-approved initiative that abruptly stopped California’s four and one-half month experience of marriage equality in November 2008.
Now, the bad news: the U.S. Supreme Court has agreed to hear the constitutional challenge to Proposition 8.
It’s good news in the sense that we’re finally going to get an answer as to whether a state has the constitutional right to define marriage either to include or exclude same-sex couples. It’s bad news in the sense that the answer we’re going to get is hardly likely to be the one we want — especially those of us who, like my husband Charles and I, took advantage of the 4 ½-month “window” between the effective date of the California Supreme Court’s decision allowing same-sex marriage and the passage of Proposition 8 to get married. Since then we, and the estimated 18,000 other same-sex couples who got married in California when it was blessedly legal, have been in the truly weird position of actually having the “special rights” opponents of Queer equality always accuse us of seeking, since we can be married but other couples — including ones who’ve been together longer than we have — can’t.
The U.S. Supreme Court’s decision to hear the Proposition 8 case is bad news in another way besides the eventual outcome of their decision. If they hadn’t — if they’d ducked the issue and allowed the most recent ruling in the Perry v. Brown case by the Ninth Circuit Court of Appeals to stand — Queer couples would be able to marry in California now. Even if the Supreme Court ultimately upholds the right of same-sex couples in California to marry, their decision to take the case means up to a year of additional delay in a case that has already dragged on for over two years — and where the judges throughout the process have “stayed” the decision so Queer couples still can’t get married in California even though both courts that have ruled in the case have said they should.
And the case is coming before the most reactionary Supreme Court since the 1930’s. Justice Anthony Kennedy, whom Queer legal strategists are depending on to be the “swing vote,” isn’t the moderate “man in the middle” he’s been portrayed as in a lot of the media coverage. He’s a thoroughgoing Right-winger who wrote the infamous Citizens United decision in 2010, which basically said that corporations and rich people didn’t have enough influence on American politics and the Constitution said they must be allowed even more. He also wrote the dissent in the case on the Affordable Care Act — so-called “Obamacare” — which basically eviscerated the Constitution’s interstate commerce clause and drastically cut back the ability of Congress to regulate private business. Kennedy meant this to be a majority opinion, and it would have been had he not been double-crossed by Chief Justice John Roberts, who signed on to Kennedy’s attack on the commerce clause but found Obamacare’s individual mandate to purchase health insurance constitutional under Congress’s power to tax.
There are only two major issues on which Kennedy has deviated from the strict Right-wing line. One is capital punishment, particularly executing teenagers and using the death penalty for crimes other than murder. The other is Queer rights. The main reason both the Queer community and the odd couple of lawyers who brought the Perry case to court, Ted Olson and David Boies, counted on Kennedy as the “swing vote” is that he wrote the Court’s two most powerful and luminous opinions upholding Queer equality in its history: Romer v. Evans (1996), which threw out a voter-approved “No Promo Homo” initiative in Colorado that invalidated anti-discrimination laws based on sexual orientation; and Lawrence v. Texas (2003), which struck down all laws prohibiting sex between same-gender partners.
But even on Queer rights, Kennedy’s mostly positive record comes with some serious asterisks. In 2000 he provided the “swing vote” for a 5-4 decision upholding the Boy Scouts of America’s ability to discriminate against Queers and atheists, on the ground that the Boy Scouts is a religious organization and therefore has a First Amendment right to let its religious beliefs determine its membership policies. In 2009 he temporarily halted the release of the names of people in Washington state who’d signed a petition to repeal a domestic partnership law, and a year later he refused to allow the Perry trial to be televised. His reasoning in both cases was the same: whereas the Kennedy who wrote Romer had seen the Queer community as a persecuted minority that needed to be protected from efforts by the majority to legislate away their rights, the Kennedy of 2009-2010 saw evangelical Christians and other opponents of Queer equality as the embattled minority whose rights needed to be protected from a Queer-friendly majority.
Nonetheless, both judges who’ve written pro-Queer opinions in Perry to date clearly aimed them at Justice Kennedy, freely quoting from both Romer and Lawrence and citing them as controlling precedents. Indeed, Appeals Court Judge Stephen Reinhardt’s majority opinion in Perry, which is what the Supreme Court will be reviewing, narrowed the case considerably to make it seem more like Romer. Reinhardt ruled that once a state had allowed same-sex couples to marry, it would be unconstitutional to take away that right — but he left open whether it would be constitutional to ban same-sex marriage in a state that never had allowed it.
The other source for optimism about the Supreme Court’s decision is that after nearly 20 years of steady defeats for marriage equality at the ballot box, the tide finally turned in 2012. Voters in Maryland and Washington state defeated referenda that would have reversed their state legislatures’ bills allowing same-sex couples to marry. Voters in Maine reversed their 2009 vote for a Proposition 8-like initiative and became the first state specifically to allow same-sex marriage via direct democracy instead of legislation or a court case. And voters in Minnesota refused to enshrine their state’s legislative ban on marriage equality into the state constitution — making November 6 a welcome four-for-four win for our side on an issue that until then had been rejected by virtually every U.S. electorate that had had the chance to weigh in on it.
But it would be foolhardy to assume that this year’s election victories on marriage equality will make the Supreme Court more likely to rule in our favor and issue a sweeping decision declaring that barring same-sex couples from legal marriage is an unconstitutional violation of the equal protection clause. It’s just as likely that the justices will see it the other way — as evidence that the political process is working as it should. The Court could read victories for marriage equality at the ballot box as confirmation that rather than make a hard-and-fast ruling that would apply nationwide, they should let politics take its course and allow individual states to decide to allow same-sex couples to marry or not, as they choose — which, in California, would mean a long, hard slog to persuade voters to repeal Proposition 8 and a very expensive and problematic political campaign to counter the Right-wing lies that got them to pass it in the first place.
The current U.S. Supreme Court is dominated by a hard-core radical-Right majority that is generally loath to issue sweeping rulings expanding the civil rights of historically disadvantaged communities. This Court is not, no way, no how going to decide that over 200 years of American experience with marriage defined exclusively as the union of one man and one woman has been a violation of the Constitution. There is a scant possibility that there might be five justices on board for a compromise along the lines suggested by Judge Reinhardt in his Ninth Circuit opinion: that there isn’t necessarily an intrinsic constitutional right to marriage for same-sex couples, but once a state grants such a right they can’t take it away again. But even that seems unlikely. If the case had come before the Supreme Court from, say, Rhode Island, they might have ducked it altogether and allowed marriage equality to come to one relatively insignificant state essentially by default. But not in California, the nation’s most populous state —especially now that the nation’s second most populous state, New York, has legislated marriage equality through the political process rather than by the courts.
What’s most likely is that the Supreme Court will uphold the constitutionality of Proposition 8 and state that whether to allow same-sex couples access to legally recognized marriage is a matter for individual states to decide. There’s a possibility that either or both of the Court’s most crazily Right-wing justices, Antonin Scalia and Clarence Thomas, will issue a concurring opinion based on an “original intent” argument that since marriage was assumed to be between one man and one woman when both the original Constitution and the 14th Amendment were written, all laws allowing same-sex marriage are de facto unconstitutional. But it’s likely most of the justices will shy away from a sweeping constitutional pronouncement on either side of the marriage equality question. It’s even possible one or more of the Democratic appointees on the Court might join an opinion upholding Proposition 8 on the ground that even if their personal preference would be for allowing same-sex couples to marry, whether they can or not is a decision for the political process and not for the courts.
This result would leave marriage between same-sex couples about where marriage between first cousins is today: some states would allow it, some states wouldn’t. But there’d be one important difference: Congress never passed a law defining marriage at the federal level as between one man and one woman who aren’t closer blood relatives than second cousins. Congress did pass the disgusting “Defense of Marriage Act” (DoMA) in 1996, which had two major provisions: it barred legally married same-sex couples from enjoying any of the benefits of marriage granted by federal law, and it said that no state had to recognize any marriage of a same-sex couple from another U.S. state or foreign country where it was legal. And unfortunately, while the Supreme Court is reviewing the federal definition of marriage under DoMA, they’re not — at least not yet — making a decision on the constitutionality of the provision that allows states not to recognize same-sex marriages from other states. Until that part of DoMA falls, whether by Congressional action or a later Supreme Court case invalidating it, every married same-sex couple in the U.S. lives with a footnote on their marriage license: “*This marriage valid only in the state where it took place and any other state that chooses to recognize it.”
The DoMA case the Supreme Court did choose to review involves Edith Windsor, an 83-year-old Lesbian who married her partner in Canada in 2007 when they had already been together 42 years. Two years later, Windsor’s wife died — and the U.S. Internal Revenue Service (IRS) billed Windsor for $363,000 in estate taxes, which she wouldn’t have had to pay if the federal government had legally recognized her marriage. It’s a narrow enough case that it seems likely the Supreme Court will craft some sort of legal dipsy-doodle that will let Windsor off the hook for the $363,000 tax bill but won’t offer a definitive yea or nay on the constitutionality of DoMA. In the last 10 years before the landmark Brown v. Board of Education ruling in 1954, the Supreme Court routinely did this sort of thing in cases involving African-American victims of racial discrimination, especially in education and housing: they issued carefully crafted decisions that gave justice to the individual plaintiffs before them without disturbing the so-called “separate but equal” doctrine from 1896 that had allowed racial segregation. And it’s known that Anthony Kennedy is familiar with these cases because he cited two of them, Shelley v. Kraemer and Sweatt v. Painter, in his majority opinion in Romer v. Evans.
The Perry case was always a longshot before the current Right-wing Supreme Court, which has been so hostile to civil rights cases that the first law Barack Obama signed as President was a bill reversing a Supreme Court ruling that had made it virtually impossible for women to sue their employers for discriminating against them. It’s highly unlikely that a Court majority so hostile to claims by women, minorities and the 99 percent in general is going to issue a ground-breaking decision establishing the right of same-sex couples to marry, either throughout the country or in its most populous state. It’s more likely that the Court will leave it up to the governments of each U.S. state to decide whether or not to offer civil marriage to Queer couples — and the Queer rights movement will have to spend decades of struggle to win marriage equality state by state. The Court’s likely rulings on Proposition 8 and DoMA won’t be the end of the marriage equality fight; they will at best be what Winston Churchill called “the end of the beginning.”