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The Supreme Court’s Gay-Marriage Gradualism

Conservatives have a choice--regroup to defend monogamy and liberty, or allow the revolution to radicalize.
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The Supreme Court’s rulings on the Defense of Marriage Act (struck down) and California’s Proposition 8 (the court disclaimed jurisdiction) were about the only rulings one could expect from a court of four liberals, four conservatives, and Anthony Kennedy. It would have overturned everything we think we know about Kennedy if the court had upheld DOMA. But an expansive ruling on Prop 8 effectively legalizing same-sex-marriage nationwide would have been remarkable from a court that earlier this week curtailed affirmative action in higher ed and the Voting Rights Act. The justices in the majority on Proposition 8 might seem surprising—Roberts and Scalia joined liberals Breyer, Ginsburg, and Kagan—but if one may attribute political motives to the bench (surely not?), I’d suggest Scalia and Roberts were trying to limit the precedent while Breyer, Ginsburg, and Kagan were going for what they could get.

DOMA had defined marriage, for the federal government’s purposes, as only the union of one man and one woman. The law seems to have been widely misunderstood: it did not tell states one way or another what they could or could not recognize as marriage. Now same-sex marriages recognized by state governments must also be recognized by the federal government—that’s the basic significance of the ruling, anyway. There will inevitably be legal strategies that try to use DOMA’s defeat to strengthen the case against state-level prohibitions on same-sex marriage, as well as other repercussions. It’s a win for marriage equality, but leaves the question primarily, for now, at the state level. There are libertarians and federalist conservatives who are happy to see DOMA go.


Meanwhile, by stepping back from Prop 8, the Supreme Court lets stand lower federal court rulings invalidating, largely on equal-protection grounds, the referendum-passed California constitutional amendment banning same-sex marriage in that state. This leaves open the question of whether other state-level bans will survive challenges in federal court. The Supreme Court declined to intervene in the appeal to reinstate Prop 8 because, as Roberts said, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” California’s executive branch has refused to defend Prop 8, which raises an interesting, if moot, question about what referenda really mean. The people directly pass a law—a constitutional amendment, in this case—but then elect a government that refuses to defend it. This kind of thing might recur: constitutional amendments aren’t easy to repeal, but if nobody enforces them, they’re dead letters. (Think of provisions like North Carolina’s constitutional prohibition against atheists holding office. It’s on the books but nullified in practice.)

In sum, the Supreme Court has advanced same-sex marriage in a gradualist manner that basically tracks public opinion, which is also moving in that direction, the relative popularity of DOMA itself notwithstanding. With same-sex marriages now set to resume in California, about 30 percent of Americans live in states where SSM is legal. Gay marriage isn’t a change that’s coming in the future, depending on how battles in the courts and at the ballot box turn out. It’s a fait accompli. The bigger question isn’t whether more states will recognize same-sex marriage—let alone whether there’s much possibility of rollback—but on what the terms of victory of the SSM side is going to be consolidated. Conservatives have a different battle to fight, psychologically as well as legally, to preserve religious liberty and ensure that this revolution already made doesn’t enter a more radical phase. High-strung right-wingers who say, for example, that the country might as well embrace polygamy if it’s going to have same-sex marriage are not doing themselves any favors. More seriously, this would be a good time for conservatives to take supporters of SSM at their word and insist on stronger cultural as well as legal affirmations of monogamy for everyone. Somehow, though, I suspect that rather than using this as an opportunity to build new coalitions against promiscuity or divorce, we’ll just see a redoubling of resentments.



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