Gay Marriage and the Supreme Court

Blogger Friend Jeremy Hooper and his husband Andrew

Oral arguments take place this week before the U.S. Supreme Court in the cases of United States v. Windsor  (Docket 12-307), which challenges the constitutionality of the federal Defense of Marriage Act (“DOMA”), and Hollingsworth v. Perry (Docket 12-144), which challenges the constitutionality of California’s Proposition 8.  I, like many, am nervous as to how the arguments will be received not to mention how the court will rule in June.  But, as an op-ed in the New York Times notes, even if the Court punts on the issue using the technical issue of standing to avoid a substantive ruling or refuses at this point to find a national right to gay marriage, with the manner in which public opinion is changing, gay marriage will be a reality nationwide someday and probably some day soon.  If nothing else, we simply have to wait for the aging gay haters to die off.  Thus, as the columnist notes, the real question for the Supreme Court justices is this:  "whether to be handmaidens to history, or whether to sit it out."  Here are column excerpts:

But while [advocates of gay rights] they’re watching this moment raptly and hopefully, it’s not with a sense that the fate of the cause hangs in the balance. Quite the opposite. They’re watching it with an entirely warranted confidence, verging on certainty, that no matter what the justices say during this coming week’s hearings and no matter how they rule months from now, the final chapter of this story has in fact been written. The question isn’t whether there will be a happy ending. The question is when. 

That’s what’s truly remarkable about this juncture: the aura of inevitability that hovers over it. In an astonishingly brief period of time, this country has experienced a seismic shift in opinion — a profound social and political revolution — when it comes to gay and lesbian people. And it’s worth pausing, on the cusp of the court hearings, to take note of this change and to mull what’s behind it.

Although its 2012 platform called for a constitutional amendment to ban gay marriage, scores of prominent Republicans, including a few senior advisers to Mitt Romney’s campaign, broke ranks in late February and put their names to a Supreme Court amicus brief in favor of marriage equality.  That these dissidents can’t be dismissed as pure anomalies was made clear at the annual gathering of the Conservative Political Action Conference last weekend.  .  .  .   as BuzzFeed’s Chris Geidner, who covered the conference, noted, “Opponents of gay rights spoke to a nearly empty room, while supporters had a standing-room-only crowd.” 

The buildup to the Supreme Court hearings has demonstrated the breadth of diversity of support for it. There have been amicus briefs signed, or proclamations of solidarity issued, by dozens of professional athletes and by the American Academy of Pediatrics, by tech giants and accounting firms and retailers and airlines. Somewhere along the way, standing up for gay marriage went from nervy to trendy. It’s the Harlem Shake of political engagement. 

THESE advances happened in largest part because of the increased visibility of gay people who have had the courage and optimism to share their lives and truths with family, friends, colleagues. Although many critics nitpicked [Senator Rob] Portman for changing his views only out of what was deemed a selfish concern for his own gay son, that’s precisely the way many people are illuminated and tugged along: by emotion, not abstraction; by what’s immediate and personal, not what’s foreign and theoretical.

Additionally, the quest for same-sex marriage has forced many Americans to view gays and lesbians in a fresh light. We’re no longer so easily stereotyped and dismissed as rebels atop parade floats, demanding permission to behave outside society’s norms. We’re aspirants to tradition, communicating shared values and asserting a fundamentally conservative desire, at least among many of us, for families, stability, commitment. What’s so threatening about any of that?

[T]he legalization of same-sex marriage takes nothing from anyone, other than the illusion, which is all it is and ever was, that healthy, nurturing relationships are reserved for people of opposite sexes. 

[F]airness is where we’re heading, at least in regard to marriage, which has emerged as the terrain on which Americans are hashing out their feelings about gays and lesbians. The trajectory is undeniable. The trend line is clear. And the choice before the justices is whether to be handmaidens to history, or whether to sit it out. 

The author is right on the role that the rise of open and visible gays have played.  Recently, the boyfriend and I were announced as the first gay couple to join the 87 year old Hampton Yacht Club.  Yes, some old dinosaurs had a cow, but we have been showered with congratulations and many members have said it was about time for this to happen.  Attitudes are changing even in largely conservative Hampton, Virginia.