Marriage equality and “uncharted waters”
by digby
I wrote about the marriage equality case being argued before the Supreme Court today for Salon:
Today’s oral arguments in the Supreme Court marriage equality case may or may not be exciting, but the importance of the outcome cannot be overstated. We are witnessing before us one of the greatest expansions of civil rights in decades, and if the high court decides to be part of the future instead of the past, this advance will codify into law the basic human right of marriage for gays and lesbians throughout America. This country has come a long way very quickly and it’s inspiring to see it happen.
There is no guarantee, of course. There is still a cultural divide on the issue, as we saw in the recent “religious liberty” controversy in Indiana. Like the nation at large, the Court is divided too. It’s assumed that the four more liberal judges will vote in favor. If any of the the uber-conservative triumvirate of Scalia, Alito and Thomas were to vote with them, it would be a judicial curveball of historic proportions. (Translation: Don’t count on it.) This leaves Chief Justice John Roberts who has shown some propensity for consensus building, and could vote with the liberals; as well as, of course, Anthony Kennedy, the justice known mostly for majority-straddling (and right-leaning) position on the bench.
As Ian Millhiser wrote at Think Progress, Kennedy’s record on gay rights cases is something else:
Nearly every gay rights victory handed down by the Supreme Court has Justice Anthony Kennedy’s name on it. Kennedy authored the very first Supreme Court decision recognizing that anti-gay laws can violate the Constitution’s promise of equality, and he followed that up with decisions targeting sex bans and ending marriage discrimination by the federal government. In the likely event that the Court declares marriage discrimination unconstitutional throughout the nation this June, expect to find Justice Kennedy’s name on that decision as well.
The fact that the same justice repeatedly writes in the same issue area can be a sign that they find that area particularly interesting, but it is also true that closely divided cases are frequently assigned to the most on-the-fence member of the Court — on the theory that no one can tailor an opinion to their own idiosyncratic views better than themselves. Kennedy’s record supports the latter interpretation, as he’s fretted in the past about the “uncharted waters” facing the Court if it hands down a decision bringing marriage equality to the entire nation. Since then, however, the Court has allowed lower court decisions supporting marriage equality to take effect — a strong sign that Kennedy has made up his mind in favor of equality.
Nevertheless, Kennedy remains the justice to watch for the best sign of how the Court will shape its opinion.
And Kennedy may or may not take the necessary steps to insure that LGBT citizens are protected with this decision. There’s still work to be done even if the court affirms marriage equality as a constitutional right.
It is to be fervently hoped that the Supreme Court affirms the right of gay people to marry. It will be a happy day indeed. But it’s a mistake to be complacent about such things. As Millhiser said in his piece, there are many issues of discrimination against LGBT people still at stake. And even when the Supreme Court hands down a momentous decision acknowledging a basic human right, there’s no guarantee that it won’t continue to be litigated by the social conservatives for a long time to come. Just ask reproductive rights activists.
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