Whether Scalia Likes It or Not

Last week, when the Supreme Court decided to take both the Proposition 8 case, which challenges California's constitutional amendment banning same-sex marriage and a challenge to the Defense of Marriage Act (DOMA), which barrs the federal government from recognizing same-sex marriages performed in the states, my inner Eeyore got a little carried away. I realized that when Brian Brown—head of the National Organization for Marriage (NOM), the chief opponent of marriage equality, started quoting me in his fundraising e-mails. While I’m honored he would notice, that made me recognize I should explain my thinking more clearly.

So here it is: Within ten years, most American states will be marrying same-sex couples. Within 15, the Supreme Court will knock down the remaining bans on marriage equality. All of that could come sooner if the Court rules with us this year in the two gay-marriage cases. But marriage equality is going to win within our lifetimes. (Here, I am morally obligated to channel Evan Wolfson of Freedom to Marry, who would add: If we do the work. But I am trusting you to do your part.)

So why the heck was Brian Brown quoting me? Herewith, from a NOM fundraising e-mail that went out with his signature:

E.J. Graff has been a leading voice in the charge for same-sex marriage for well over a decade. But now that same-sex marriage is on the doorstep of the Supreme Court, she's nervous. More than that: she's scared. As she wrote last week in The Advocate:

If the court does take up Perry (Proposition 8), be afraid, be very afraid. Almost no one believes the Supreme Court is ready to get out ahead of American opinion on the question at Perry's heart: Do same-sex couples have a fundamental right to marry under the U.S. Constitution?

I couldn't have said it better myself.

Last Friday, the U.S. Supreme Court did take up the Perry case—as well as a case attempting to overturn the Federal Defense of Marriage Act.

This is fantastic news for marriage! It is also a strong signal that the justices are concerned with the rogue rulings of far-left, activist courts that have been practically legislating from the bench to re-define marriage.

It’s very sweet that Brian is happy. But he’s delusional. Some points to keep in mind:

  • The Court will not and cannot invalidate existing marriages between same-sex couples. Those have been upheld by courts and legislatures, and accepted by citizens. Nine states have decided to marry same-sex couples. That will remain.
  • Four states states voted on the side of marriage equality just over a month ago. Citizens of three of those states voted to let same-sex couples marry while one, Minnesota, voted against a gay-marriage ban. It wasn't “far-left, activist courts” championing same-sex marriage. Those were activist voters. And the nine justices noticed. They know which way the wind is blowing. The justices might not like to admit it, but they know not to get far out ahead of—or behind—the prevailing politics.
  • Within the next two years, several more states will join the marriage-equality column. Minnesota, Rhode Island, Delaware, Oregon, Illinois, and New Jersey all look very good. Every state we win influences the country and the states around it.

Like nearly everyone watching these cases, I continue to believe that the Court will strike down DOMA Section 3, which prevents the federal government from recognizing my marriage for federal purposes. Every federal court that’s heard the five DOMA challenges in the courts—including two appeals courts—has ruled against it. It’s hard to see DOMA Section 3 as anything but a federal power grab. We can all count four justices who will vote to strike it down. Kent Greenfield wrote exactly the right analysis, here at the Prospect, of how the two cases will likely go. Kennedy voted to strike down the Affordable Care Act for federal overreach; he’s as friendly to gay and lesbian rights as he is to individual liberties, having written sweeping opinions in Romer (striking down a state constitutional amendment that banned towns and cities from passing LGBT anti-discrimination ordinances) and Lawrence (goodbye to sodomy laws). Windsor, the DOMA case, combines both of those—a federal power grab and the personal liberty of lesbians and gay men—with a cool bonus fact, custom-made for a conservative-leaning court. Had Edie Windsor been married to a man named Theo Spyer, she would have paid no inheritance taxes when she was widowed. Because she was married to a woman named Thea Spyer, the widow paid $360,000 in federal inheritance tax because DOMA banned the U.S. from recognizing that marriage. In addition to limiting federal power, striking down DOMA would get rid of a “death tax.”

If SCOTUS does knock down DOMA Section 3, that will put an enormous amount of pressure on the purple and pale-red states. Same-sex couples in Kansas will go to Iowa to get married. When they come home, they will be half-married—married in the eyes of the federal government and their families, but not married in the eyes of Kansas. I can tell you from personal experience that when colleagues, neighbors, friends, and family members hear about the small indignities and injustices of being only half-married, when they realize how ordinary you and your spouse are, they get outraged that you’re being denied full marriage recognition. Businesses will get annoyed that they have to track this dual-marriage status for their employees, and will start to pressure their legislators to change. Lawsuits will bubble up as people sue Kansas (and Colorado, and Ohio, and Oklahoma) to have their “foreign” (i.e., out-of-state) marriages recognized at home.

But here’s what’s more important: The Supreme Court is not the final arbiter of all things good and just (thank God!). Or even of all things political. If Kennedy loses his nerve, Congress can and will repeal DOMA—if not this term, then the next time the House, Senate, and presidency are all held by Democrats. And even if the Supreme Court issues a mean ruling on Perry—saying there's no fundamental right to marry and that California voters had every right to pass an amendment yanking equal marriage rights away—the Court will take it back in 15 years, when only ten Southern states are left banning recognition of same-sex marriages. The Court only took 17 years to overturn its ruling upholding sodomy laws in Bowers (which was a knife in the heart at the time, and pretty quickly became an international embarrassment). This one will come just as quickly, or even more so.

As everyone says, the momentum is now on our side. Public opinion has reached a tipping point. Young people start out on our side and older people are changing their minds pretty quickly, according to research done by Third Way. But what do we mean by "momentum"? Public opinion isn't just changing on its own; we are changing it. Here's what we mean: A pushing social change. We've seen what works and what doesn't. We're no longer (just) 20-year-olds with nothing to lose marching with signs and shouting with rage (not that there's anything wrong with that). All the incremental victories we've won mean we have jobs and social networks inside and outside the various establishments, from business to government, from journalism to the academy. We have at least some influence and power; our issues are taken seriously. Most specifically, on marriage equality, the deep research conducted by a range of groups and coordinated by Evan Wolfson's operation, Freedom to Marry, has given a huge boost in how effective local groups are: Now they know what messaging works to change those last wavering minds. 

Our funding base has expanded dramatically. Not so long ago, a few lesbians and gay men were pouring our pennies into a little box (figuratively speaking) to keep lesbian and gay groups running. Anyone who worked on gay issues took a vow of poverty to do it. Today, funding comes not just from grassroots donations and wealthy lesbians and gay men, but also from rich straight people—Bill Gates, Jeff Bezos, Mayor Bloomberg—and major corporations. Straight people now sign up to help run our campaigns (which still astounds me; I don’t think I’ll ever quite get over it).

Listen, no seasoned LGBT activist wanted the Prop. 8 lawsuit (Perry). GLAD's Civil-Rights Project Director Mary Bonauto's brilliantly targeted lawsuits were the ones carefully crafted and vetted by the insiders; the ACLU’s Windsor and Lambda’s Golinski essentially replicated those arguments. The Perry lawsuit, which asks the Court to consider far broader questions about LGBT rights, was first seen as a nightmare. Every LGBT marriage advocate tried to stop it, and after that, to contain the possible damage.

But equality movements are infectious. Insiders cannot control the timing. Celebrity lawyers Theodore Olson and David Boies, who filed the Prop. 8 case, wanted to be part of authoring our big victory—that’s a good thing. Even if we lose in court, they’ve amplified the message: This is a movement whose time has come. By doing that, they’ve helped us make it so, no matter what SCOTUS says in June.

Sorry, Brian. 

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