On March 26 and 27, America and the world witnessed an amazing and historic moment with the Supreme Court review of the constitutionality of Prop 8 and the Defense of Marriage Act (DOMA). While it is certainly difficult to read the outcome based on oral arguments, it does appear, on the surface anyway, that Prop 8 and DOMA will be thrown out.
While we queer activists would love to see the court rule on the broader issue of marriage equality for the entire nation with its Prop 8 decision, based on the oral arguments, I am not all that confident that that is going to be the end result. At the very least, I believe the court’s decision will be framed narrowly to only to apply to California and Californians will have their freedom to marry restored. It will also send a clear message to other states that discrimination at the ballot box is unconstitutional!
The other alternative, which I hope is not the case, the court could simply say the case did not have “standing” and defer to the prior decision made by the California Supreme Court that Prop 8 was unconstitutional. It is my hope that the court does not take the easy way out and not rule on the case. Either way, however, Prop 8 will be gone.
In terms of DOMA, I am very encouraged that this atrocity will be thrown out in a decisive manner. Again, based on the oral arguments, there were at least 5 justices expressing grave concerns over the constitutionality of denying queer Americans the same benefits that straight couples are entitled to when they marry. Justice Kagan clearly pointed out that the express intent of DOMA was to discriminate based on fear and ignorance when she quoted the proceedings of the Judiciary Committee report when considering the legislation, “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”
Finally, there are a few observations worthy of mention.
First, I find it incredulous that the Chief Justice cannot believe that DOMA was grounded in discrimination and fear of homosexuality. He is living in a bubble and I do hope Justice Kagan reminds him periodically during the court’s internal debate that indeed the legislation was grounded in discrimination of queer folk, as stated in the quote above.
Second, it saddens me that the court may think their decision to rule on same sex marriage nationally is premature. When is ruling in favor of equality “premature?” Our nation was grounded on the premise that all are created equally. I understand somewhat the court’s desire to let the debate play out a bit longer, but in light of public opinion and the movement toward full and equal on many fronts throughout the nation, it does boggle my mind that the justices cannot see the proverbial writing on the wall that same sex marriage is inevitably going to happen. The crack in the dam has already started and it is just a matter of time before the dam breaks. Why not be the one to break it? I do not understand the hesitancy to be the catalyst.
Last, the debate really is not about same sex marriage. It has more to do with the freedom to marry. The court in prior cases has ruled in favor of all citizens’ freedom to marry and has held that right to be one of the most cherished rights we as Americans can possess. The most notable is Loving vs. Virginia, that invalidated the prohibitions on interracial marriage. I find it intriguing that Justice Thomas ignores the fact that his marriage was once illegal. I hope he remembers that when debating these same sex marriage cases, but I don’t hold out much hope that he will.
Given all this, the bottom line is that same sex marriage will be the inevitable end result. Whether it be this coming June or next June or the June thereafter, it will happen. The freedom to marry will be guaranteed to all citizens of the United States.