Looking at some of the reactions to the Supreme Court’s non-decision on marriage equality by the anti-equality folks — outrage, judicial activism by unelected judges, a violation of God-given rights, and so on — tells me that the battle for same-sex marriage is coming to the end the way I thought it would: by the slow inexorable march, state by state, court battle by court battle, until finally the freedom to marry is as ordinary as any other exercised right.
The losers are outraged because they believed that they had the right to encode their bigotry and religious prejudice into law. They also have gone over the top because they hear the distant approach of oblivion. It won’t happen overnight; history tells us that overcoming pride and prejudice (h/t Jane Austen) takes a long time. But they know the jig is up and the anti-gay movement will in time become as relevant and forceful as the temperance movement.
This may not be the solution some of us wanted: a firm holding from the Supreme Court that the Fourteenth Amendment, contrary to Sen. Cruz’s assertion, does guarantee equal protection under the law and that marriage, established as a fundamental right in cases going back generations, should be available to all citizens regardless of genitalia. Those who criticize the Court for not taking up the case should understand that in order to do so they had to have conflicting rulings: a ruling for and a ruling against. So far no federal bench has sided with the anti-same-sex side, therefore there’s no decision to make, and they let the lower courts rulings stand. In baseball, it would be called a walk-off: there’s no need to have the final out when the winning run has scored and the other team has no more at-bats.
They’re going to go out in the same way they came in, though. They will grift the foolish and the fearful of their money and hope to hang on to their cash while desperately finding some other line of work. They know that the lies they tell and the fundamental misstatements about the make-up of our government are meant only for their pigeons. They carry on about “unelected judges,” knowing full well that the federal judiciary doesn’t face the voters for a very good reason: they — at least it is to be hoped — should not be swayed by political or financial ambition (even if that concept has been put to the test by the current Supreme Court). Judicial activism is clearly in the eye of the beholder. These same people praised the genius of the Court when it decided that corporations themselves can hold religious beliefs and that a checkbook is the same thing as a soapbox; two decisions that legal scholars of every stripe agree were outside the scope of the original cases. And while appealing to heaven and the Almighty make for some thunderous rhetoric and get the money flowing, using a religious argument to enforce an untenable violation of the Constitution should automatically disqualify it from consideration.
A federal court could rule against marriage equality and that could set up a hearing before the Supreme Court. But yesterday’s move basically opened the door and hundreds of couples have already tied the knot in places such as Virginia, and Utah (!); states that up until yesterday morning did not have marriage equality. Even the losers concede that undoing those bonds would be impossible.
This is not the end. Florida still has the ban — for the moment — as do nineteen other states. But it is only a matter of time, and I’m not talking years. It will be months, perhaps weeks now.