Sunday, December 09, 2012


It's hard for me to imagine that the Roberts Court, of all Courts, would be the one to declare that marriage equality is a constitutional right. It's hard for me to believe that the Court would announce its intent to consider the question of gay marriage a month after Barack Obama's reelection if Roberts and his Republican allies didn't see this as the last chance to lock in a right-wing viewpoint on this question as Supreme Court precedent before Obama gets to change the ideological makeup of the Court (and lower courts).

But even many wary supporters of marriage equality seem to think the time is now:
"There is no question that it is a risk," said Lt. Gov. Gavin Newsom of California. "If they nationalize it and reject it, that's going to take decades to come back to the court."

... Mr. Newsom said he trusted the counsel of the high-profile lawyers for the plaintiffs, David Boies and Theodore B. Olson, that this time and this court were right for the case.

"I'm going to defer to their expertise rather than my instincts," Mr. Newsom said. "I think it's worth the risk."
On the other side -- even though I think it's unlikely -- I wonder about the consequences of a win. I agree with this woman:
Angela Gabriel, 43, a lesbian in Atlanta, said she was cautiously optimistic that the court would rule in favor of same-sex marriage, but was concerned about the ramifications of that outcome in socially conservative regions.

"Georgia is just not as progressive or forward-thinking or accepting of everyone,"' she said. "There would be a lot of pushback."
I really think a constitutional enshrinement of a right to gay marriage in every state would set off a backlash -- in deep-red states, but not limited to those states -- at least as fierce as the one against Roe v. Wade, and possibly as fierce as the one against civil rights in the fifties and sixties.

And I don't know how I feel about that. If we could go back, would we want to give up any of the legal advances of the civil rights era just to avoid the violence, and then the mass exodus of Southern whites to the GOP, with the awful results from Nixon through Bush and the tea party? No -- but we see that there was a cost. If we could go back, would we want to give up Roe to avoid the anti-abortion backlash, the violence, the relentless chipping away at abortion rights? I'm not sure -- haven't the antis chipped away at abortion rights and made abortion effectively legal only in a handful of states, just as it probably would have been without Roe?

I worry that this could be worse -- we have a horrible economy, and a right-wing population that's told 24/7 that its opponents are pure evil. If they have to allow gay marriage in Alabama and Mississippi and South Carolina (and Kansas and Oklahoma and Missouri), there's going to be unrest in the streets, there's going to be serious talk of secession, and I think there's going to be violence. Is it worth it? Well, maybe that's an appropriate cost. But I think there would be a cost. It's going to get ugly.


Philo Vaihinger said...

Why would a conservative court buy an equal protection argument?

Philo Vaihinger said...

Yes, I am saying it would be a transparently bogus argument, given even so much as a faint nod toward legislative intent, either as meaning or as purpose, in the matter of interpretation.

Exactly the kind no conservative could stomach.

But it would fit the liberal doctrine of a living constitution, evolving to suit the changing mores of the age.

So why suppose the current court would go for it?

Michael Gee said...

The Court has many options beyond the either-or dilemma you outline. If it strikes down DOMA, that only means the U.S. must honor same-sex marriages as legal, not the states where it isn't.

Victor said...

Civil rights for people of all races, women's rights, and gay rights, are all fights for HUMAN rights.

And, if we're going to have battles, or violence, or real calls for secession, I'd as soon have them over the issue of the basic human right for homosexuals to get married, or live together legally, and enjoy the same rights and protections that everyone else does (in theory), as any other - so I say, then let's have the fight.
My only regret is that I'm too old and crippled to be of much use, if there are fights.

And if they want to form JesusLovesMeYesHeDoesCorporateFascistSerfistan, may I respectfully suggest that we just go ahead and let them.

We can exchange our Northern crackers for Southern Liberals and Progressives at some point later on.

And then we can begin the greatest Stimulus program in our nations history: The border fence along the Mason-Dixon line - or whatever the new borders may be.

Uncle Mike said...

If DOMA is struck down, I think that SCOTUS will not rule that all states must now grant same sex marriage. I think that they'll just say that the feds can't discriminate, and must honor every marriage that is legal (on a state-by-state basis). But wouldn't they have to wait for a case like Loving, where a gay couple who was married in Massachusetts (for example), then moved to Florida and lost some rights when they did so?

And the Prop 8 ruling will just be on whether or not the defenders of Prop 8 had standing, different than the fed question.

aimai said...

I really don't see any mass violence against gay marriage as there was violence against civil rights. Sporadic violence, sure. Taking kids out of school to avoid the gayz: sure (with the knock on effect that public education in right wing states will be further eroded.) But all that was happening anyways. I don't think anyone will be blocking the courthouse steps--especially since people will simply go to other states and get married, which heterosexual couples do all the time, and come back married. There doesn't have to be anyone local who sees the paperwork at all.

On the homeschooling to avoid the gays front I'm not sure many more people can afford to home school at this point. The economy is still pretty terrible and most people with middle class aspirations need both incomes, while people lower down on the socio-economic scale definitely do.


Ten Bears said...

I homeschool my grandchildren because 1) I can, 2) I've nothing better to do and 3) the undo influence of the religous dogs renders the entire public educational system a systemic failure in the delivery of an accurate secular education. The so-called public schools are nothing more than another arm of the Christo-Fascist propaganda machine.

aimai said...

Yeah: I rest my case. You are the grandmother, not the mother and father. Most people are actually dependent on the public schools for childcare as well as for an education for their kids. If you are retired and have a good enough relationship with your children that they will trust their kids to you you are very much the exception to the rule.


texasdiver said...

I teach HS in a deeply red Central Texas town in the heart of Baptist land. Things are changing faster here than you might imagine. 5 or 6 years ago I might have encountered the occasional gay student who was kind of on the fringe....not really hassled but not really part of the school. Today out of the 140 or so students that I teach I probably have close to 10 that are casually openly gay. And many of them are centrally involved in the school social scene. I have gay cheerleaders (both girls and boys) and a general assortment of gay kids who are just hip and popular. I also have one kid who is a big football star who has lesbian parents who openly support him in the stands and at school functions. No one cares. It is really astonishing to me who fast the the attitudes have shifted on this issue, especially among the young. The majority of white kids at my school probably supported Mitt in the last election but are also supportive of gay marriage and frankly don't even understand why it is an issue. Times are changing faster on this issue than any other social issue I have ever watched first hand.

Victor said...

Thank you!
It's always nice to hear GOOD news!!!

Kathy said...

texasdiver, I'm seeing the same thing in my part of Alabama, which is primarily white and Republican.

texasdiver said...

Funny thing is now the gay kids are getting into trouble just like the straight kids for too much PDA in the hallways (kissing, heavy petting, etc).

The more things change, the more they stay the same.....heh.

Philo Vaihinger said...

MG, yes.

But see Steve's first sentence.

Ten Bears said...

Grandfather, not that it matters.

Ten Bears said...

And In These Times... it's a bit of economic survival. Though I can barely walk, the quack the SSA sent me to claims I'm not at all disabled, and with the unemployment rate of my cohort rounding out at fifty percent, throw in some cooking and bottle-washing and that's pretty much how I keep a roof over my head.

It's actually really rather old school. Traditional, if you wish.

I'll probably die, before I collect SSI.

Mustang Bobby said...

I'm old enough to remember the demonstrations and the unrest over the civil rights acts in the 1950's and '60's, and I don't minimize the harshness that came with it. But I find it hard to believe that if the Court strikes down DOMA or Prop 8 that it will have the same impact. Civil rights and voting meant that black people could now be seated at lunch counters and in the polling booth. That meant unavoidable and everyday interaction with the white folks. Lifting the ban on Social Security benefits for same-sex couples isn't on that scale.

I don't wish violence or hatred on anyone, but if we're going to have true equality in this nation, sometimes it's the price we have to pay.

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