The oral arguments are over. The Supreme Court justices will now retreat behind their velvet curtains, and we won’t hear their judgments on Prop 8 and DOMA until the end of June. The Supreme Court does not even have a chimney from which we’ll see telltale smoke, so the tea leaf reading will have to do.
For what it’s worth, here’s what my tea leaves are telling me. The Court will strike down Prop 8 by a 5-4 margin and do it very narrowly, perhaps by wussing out by saying the plaintiffs had no standing to bring the case and leaving the lower court ruling in place, which means that same-sex marriage can resume in California. As for DOMA, my sense is that they will knock it down, also by a 5-4 margin, but on the states’ rights platform: Congress overreached by setting federal standards for marriage laws in the states. They won’t do it because of some revelation about the gay community in terms of equal treatment under the law. After all, according to Chief Justice Roberts, we’re already a political powerful force and can do whatever we want, right? (We’ll get back to you, Chief, when we’ve repealed the constitutional bans on marriage equality in all those states that whooped them through in the last ten years and LGBT citizens are protected from discrimination in employment, housing, adoption, and inheritance.)
Even if the Court was to issue sweeping rulings that invalidated all the anti-gay measures in every jurisdiction such as they did with school segregation in Brown v. Board of Education or abortion with Roe v. Wade, it would not magically mean that everything is set right. It took decades for school desegregation to take effect, and it still exists simply by the fact that poorer neighborhoods have poorer schools in every district in the country. Abortion rights and reproductive health is under attack every day; witness the laws enacted in North Dakota this week that basically make abortion illegal from the moment the couple’s breathing returns to normal.
The immediate effects of a positive outcome from the Court on Prop 8 will impact California, but it won’t change the laws in Florida or Ohio, and the likelihood is that the Religious Reich and the panty-sniffers at the anti-gay groups will redouble their efforts to write laws that work their way around the ruling, much as they have with the personhood amendments and attempts to endow microscopic blastocysts with all the rights of citizenship. The scuttling of DOMA will not grant immediate relief. There are over 1,100 federal regulations that will have to be modified, and the tax code will have to be re-written to allow for same-sex couples filings and claims, and we all know how quickly bureaucracy moves.
The one advantage that the marriage equality movement seems to have in its favor is that public acceptance is growing at a surprisingly strong rate. People of all political and religious stripes are coming out, so to speak, in favor of it, and for once the Court cases are riding the wave. In previous landmark rulings such as Brown, Roe, and Loving v. Virginia, which overturned bans on interracial marriage in 1967, public opinion was not in favor of the rulings. But it is no longer a political danger to support marriage equality, and a lot of people who had previously been opposed to it are learning that they either have a personal reason to change their views (“Mom, Dad; we need to talk…”) or they realize that a number of their constituents are supportive of the idea of treating all people the same.
It will be three months until we hear the judgment of the Court. And it will a lot longer before we see the results of the rulings, assuming they are the way I hope they go. But if, as we’re seeing in the political arena and popular perception, the move is on to strike down the stigmatization of the gay community, for once the Court will be at least in step with rest of the nation.
