Despite Washington’s frigid temperatures and freezing rain Monday, a virtual tent city of activists both for and against same-sex marriage braved the elements together, holding a spot and a hope to see history unfold.
Supreme Court oral arguments challenging the Defense of Marriage Act (DOMA) and California’s Proposition 8 are set to take place on Tuesday and Wednesday of this week…
Oppman recognized the potentially “historic impact” of these Supreme Court decisions.
He said he believes a ruling in favor of same-sex couples, “could do long term damage to our historic understanding of rights and also to the family, the fabric of America.”
I doubt that Justice Anthony Kennedy suffers from insomnia. But if he ever does, this would be the week. At the Justices’ conference Friday, Kennedy may have to choose between his two great legal loves–the sovereignty of the states on the one hand and the dignity and rights of gay men and lesbians on the other…
I have little doubt that his heart is telling Kennedy to strike down DOMA and leave Prop 8 alone–to say, in effect, that marriage policy belongs to the states, and whether a state recognizes gay marriage or not, federal legislators and judges should keep hands off.
But it’s possible that that opinion, as the Justices say, “won’t write”–meaning that there’s no way for Kennedy to embrace state authority over marriage without saying something bad about gays–and that he has always been unwilling to do…
Kennedy’s jurisprudence, and I think his heart, say what many of us say: nothing is wrong with [gays]. They are just like everybody else and deserve equal respect.
The marriage debate has often been difficult, but it also affirms America’s political tolerance and adaptability. The best tradition of U.S. democracy is to mediate controversies, giving all sides a fair hearing. Not everyone will like the results at the ballot box, but at least they can accept them as legitimate.
A same-sex marriage ukase would achieve that rare thing, harming advocates and opponents and everyone in between. Since marriage is more than an intimate relationship but an expression of legitimacy in the eyes of society, Supreme Court-mandated marriages would confer fewer benefits on gays and lesbians than would popular acceptance. Meanwhile, the Court would tell millions of Americans that their deep moral convictions are artifacts of invidious bigotry.
The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing. Instead of finding a rough consensus inside the political mainstream, abortion became an all-or-nothing combat that still rages.
The same-sex marriage cases are an opportunity for the Court to show it has learned from that mistake. Justice Kennedy and his colleagues can incite another Forty Years War or they can return their social jurisprudence to the measured, incremental approaches the Constitution intends.
“We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution,” McConnell wrote.
Others argue that it is abortion that is controversial, not the court’s ruling, and Boutrous contends the analogy “completely falls apart if you look at it closely.”
Roe, he told reporters in a conference call last week, “in essence came like a bolt out of the blue to the American people.” The notion of same-sex marriage, despite its brief existence, has been thoroughly debated, he said…
Two justices will get the most attention in this week’s oral arguments. Kennedy is the court’s most outspoken advocate of states’ rights. But he also provided the critical vote and employed soaring rhetoric in writing the opinions striking down a Colorado initiative that would have denied discrimination protection to gays and objecting to state sodomy laws that targeted homosexuals.
The other is Chief Justice John G. Roberts Jr. His conservatism would seem to weigh against same-sex marriage, but as chief justice he also worries about the long-term influence of the court on a subject in which the public mood is clearly in flux. “He particularly may look for a way to avoid ruling against gay marriage in these cases, ” Friedman said, “even if he is not prepared to rule for it.”
Podrasky lives in San Francisco and usually sees Roberts only on family occasions. His mother is her godmother, whom she adores. She said Roberts knows she is gay and introduced her along with other relatives during his Senate confirmation hearing. She hopes he will meet her partner of four years, Grace Fasano, during their Washington visit. The couple flew to Washington on Sunday.
“He is a smart man,” she said. “He is a good man. I believe he sees where the tide is going. I do trust him. I absolutely trust that he will go in a good direction.”…
Although Podrasky has no personal knowledge of her cousin’s views on same-sex marriage, she expects the court will overturn the 2008 ballot initiative, leaving her free to marry Fasano…
“Everybody knows somebody” who is gay, she said. “It probably impacts everybody.”
A ruling upholding Proposition 8 would provide the most culturally conservative wing of the GOP a huge shot of momentum for its goal of keeping the party the bulwark against attacks on marriage as an exclusively heterosexual institution. It would also stand to trigger a wave of ballot initiatives on both sides of that issue, complicating the lives of dozens of congressional candidates — especially in California, where advocates of lifting the ban will be counted on to ask voters to do what the court did not.
That would make life particularly difficult for the state’s 15 GOP House members. If they followed the polls and supported gay marriage, they’d run the risk of sustained challenges from fellow Republicans benefiting from the state’s new jungle primary system. If they continued opposing gay marriage, their general elections might be just as problematic.
If the opposite happens and the court strikes down Proposition 8, the political momentum surge would of course be with the politicians supporting marriage equality, a steadily expanding circle in the GOP and an overwhelming majority of Democrats. Whether Republicans follow the lead of their constituents in a wave or a trickle before the 2014 voting would depend on the breadth of the court’s ruling.
A sweeping decision that all same-sex marriage prohibitions are unconstitutional would provide serious political cover for elected Republicans everywhere; they could stop talking about the party’s backing of “traditional family values” and focus instead on their support for the old-fashioned notions of the GOP as the party of individual liberties and equal protection.
When asked if he believes the Republican Party will change its position and support gay marriage in a Wednesday Newsmax interview, Huckabee remarked, “They might, and if they do, they’re going to lose a large part of their base because evangelicals will take a walk.”…
“If we have subjective standards, that means that we’re willing to move our standards based on the prevailing whims of culture,” he said. “I think politicians have an obligation to be thermostats, not just thermometers. They’re not simply to reflect the temperature of the room, or the culture, as it were. They’re to set the standards for law, for what’s right, for what’s wrong, understanding that not everybody’s going to agree with it, not everybody’s going to accept it.”
[W]hile straight young Americans support marriage for gays, increasingly they opt against marriage for themselves. Nearly half of American children, 48%, are now born to unmarried women. Among women without college degrees, and of all races, unwed motherhood has become the norm.
This is the crisis of the American family. Whether same-sex marriage proceeds fast or slow, whether it extends to all 50 states or stops with the current nine plus the District of Columbia, the crisis will be the same…
[There is] a widening divergence between the family patterns of the college-educated top one-third, where family life is increasingly stable, and those of the non-college-educated bottom two-thirds, where family life is increasingly disrupted.
It’s the family life of the bottom two-thirds that is the family policy challenge of the 21st century. The debate over same-sex marriage is yesteryear’s issue. It’s settled, whether the Supreme Court knows it or not. But how to ensure that the next generation of American children enjoys the more equal chance and the wider opportunities from a more universal commitment to marriage — that debate needs to begin.
Marriage is many things, all at once—much more than a simple mechanism for stability between husband and wife. The institution that social science has been studying so exhaustively for so many years is of a singular kind, with singular features. It is an ancient practice grooved by tradition and myth, shaped by social expectations as old as civilization. It arises from the natural sexual complementarity of woman and man, and formalizes the possibility of procreation and the renewal of life.
There’s no way of knowing what combination of these singular features of marriage confers which of its demonstrated advantages, culturally and psychologically. We do know, however, that if the state suddenly creates the institution of gay marriage by fiat, the result will lack most of the features that make marriage unique—and uniquely beneficial. It will not be the same institution that has won the unanimous endorsement of social scientists. It will be a novel and revolutionary institution owing its existence to the devaluation of an old and settled one. Should we assume that the former will confer the same social and personal benefits as the latter, the two being different in such fundamental ways? The only honest answer—the only intellectually respectable answer—is, Who knows?
Which brings us back to the central point that Mansfield and Kass make in their compelling brief: We don’t know what the consequences of gay marriage will be. (We do suspect that such a thing will be less socially divisive if enacted by popular will than by the say-so of judges.) Social science is all but mute on the subject and will have nothing useful to tell us for decades. Lacking objective evidence, suspicious of a rising political hysteria, wary of hidden motives, and unmoved by social blackmail, we would do well to submit to humility, deference, discretion, modesty—all those virtues that conservatives are said to prize. If nothing else, these should be sufficient to stay the judges’ hand, and to let the people themselves decide, if a decision must be made, when or whether tradition is to be disowned.
Former House Speaker Newt Gingrich on Sunday warned of the dangers of the Supreme Court making too sweeping of a decision on the Defense of Marriage Act.
“One of the lessons of Roe vs. Wade is when the court goes too far, it actually weakens our respect for judicial institutions,” Gingrich said on “Fox News Sunday.”
“They’d be far better off to decide these two cases on the narrowest possible grounds. There’s no constitutional right invented, magically, you know, 150 years after an amendment.”
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