No matter which way you come down on the issue of gay marriage, today was a big day at the Supreme Court. Those who wished to sit in the courtroom (and who weren’t lucky enough to hold membership in the Supreme Court Bar, or the media) camped for several nights outside the courthouse, and today, protesters (both hopeful and defiant) gathered on the steps to make their voices heard.
Obergefell v. Hodges is consolidated with three other cases, and the issues at hand are pretty simple compared to those contained in other cases we’ve covered:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
So, here we are. “Finally,” some would say. Is gay marriage an idea whose time has come, or an idea that should be left untouched by the government? Both parties had their day in court today, and the ebb and flow of oral arguments revealed a divide in the Court that has left many SCOTUS watchers hesitant to make a prediction.
During oral arguments, the Court appeared to divide itself along ideological lines, with the attorney for the states John Bursch facing off with the more liberal wing of the bench:
The question, he made clear, was who gets to decide whether the states must allow same-sex marriages. And he asked the Court to uphold a different right: the voters’ “individual fundamental liberty interest” to define the meaning of marriage.Bursch spent most of his oral argument time sparring with the Court’s four more liberal Justices – Breyer, Ginsburg, Kagan, and Sotomayor – about the states’ rationale for prohibiting same-sex marriage. Bursch maintained that the states were not limiting marriage to opposite-sex couples because they wanted to confer second-class status on same-sex couples, but because of society’s vision of marriage as an institution centered around having children and encouraging parents to stay married and bonded to their children. The idea that marriage is about love and commitment is important, he said, but the state doesn’t have any interest in that idea.
Kennedy remained disturbingly quiet for much of the oral arguments (has he already made up his mind? Only time will tell) while Chief Justice John Roberts seemed to want to work through things by putting both attorneys through their paces.
Of course, the media is already on the march with theories, explanations, and anticipatory strikes. My favorite one I’ve found so far comes from NPR, and offers up a passive-aggressive list of reasons why Republicans would support a pro-gay marriage ruling. They mention the evolution of public opinion, and a possible truce in the culture wars, but this chunk in the middle takes the cake:
A court ruling in favor of same-sex marriage would let Republican candidates off the hook.Republican presidential candidates are doubling down on their opposition to gay marriage while at the same time trying to prove they respect gay people. It’s an ungainly two-step. This weekend at the Faith and Freedom Coalition meeting in Iowa, Sen. Marco Rubio told the Christian Broadcasting Network that there is no federal constitutional right to same-sex marriage.”You have to have a ridiculous reading of the U.S. Constitution to reach the conclusion that people have a right to marry someone of the same sex,” Rubio said. But Rubio knows that support for gay marriage is now a proxy for tolerance, especially among millennials, who tend to dismiss candidates they think are old-fashioned and out of touch.So Rubio, who is presenting himself as a new-generation Republican, has also said that he would attend a gay wedding — and that he believes being gay is not a choice. Even Ted Cruz — the Tea Party-backed conservative firebrand who announced his candidacy with a clarion call for traditional marriage — held an event at a gay couple’s home in New York City, where he told them he would be comfortable if his daughter were gay. Republicans would much rather not be talking about this at all, and if the Supreme Court rules in favor of marriage equality, many Republican candidates would heave a (private) sigh of relief. It would also allow them to talk about other social issues on which public opinion is more divided, like religious liberty or abortion.
I don’t have the strength.
First of all, this is a ridiculous presumption to make. The controversial pro-Obamacare ruling didn’t cause conservatives to let candidates off the hook; it emboldened activists and prompted lawsuits from half the states in the nation. Similarly, a pro-gay marriage ruling in this instance won’t make the issue go away. There are plenty of republicans who support gay marriage, but there are also plenty of republicans who feel like the issue should come down to the states, or should not be handled by the courts at all. The conversation will continue no matter what happens.
It’s proof that the left—especially the institutional left—doesn’t want the more conservative wing of the party to “evolve,” even on its own terms. They crave the culture war that allows them to write think pieces about Republican candidates, and print salacious speculation about what this politician or that politician may do when confronted with an invitation to a gay wedding.
How will this come down? I have no idea; the only thing I’m sure about is that the discussion won’t end once the decision is read.
And now, we hold our breath until June.
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