Last Wednesday, I got to Cranberry’s – my coffee and Wi-Fi hangout in Staunton – in time for the early morning special: a mug and free refill for two bucks.
I pulled up a chair at the round table where the usual morning crowd gathers – lawyers, businessmen, and other Staunton movers and shakers – to discuss sports, national news, and local doings. Eventually, we got around to the pending Supreme Court decisions in the DOMA and Prop 8 cases.
My Chesterfield friends might be surprised by this group. It’s pretty progressive, which probably says something about why Staunton is a boomtown – even a bit of a green city.
Around 9 a.m., the guys started heading out to work or to court, leaving me free to get some writing done. I powered up my laptop, refilled my mug, and logged onto scotusblog.com, which offers a live, play-by-play of Supreme Court sessions.
Shortly after the Court convened at 10 a.m., the blog reported Justice Kennedy’s majority opinion striking down the key provision of the Defense of Marriage Act. The decision didn’t surprise me, though the vote did. I honestly thought the majority might be closer to 7-2.
DOMA was patently unconstitutional from its enactment. True, no state permitted same-sex marriage at the time – but it was clearly coming. Yet here was Congress, inserting itself into matrimonial law – which has always been considered the province of the states – for no better reason than to stick it to an unpopular minority.
Clearly, Congress was begging for a judicial set-down for violating the Equal Protection Clause – to say nothing of the Tenth Amendment. It puzzled me that the four conservative Justices, including the Chief, couldn’t see that.
Nonetheless, the Court spoke decisively. From now on, people legally married in any state, or in D.C., must be recognized as married by the Federal government. A lot of people’s lives just got a whole lot better.
I can’t see that anyone’s got worse.
Wednesday’s decision was not the end for DOMA. Another section of the law purports to shield states like Virginia from granting “full faith and credit” to same-sex marriages performed in other states. Congress has the power to do this under Article IV, unless, in doing so, it violates the Equal Protection clause of the Fourteenth Amendment.
Expect a raft of cases on this section of DOMA. Marriage equality will probably prevail here, too – because upholding the law could lead to horrific injustices.
As an instance, imagine two married Vermont ladies driving down to tour Williamsburg. They’re in a wreck on I-95, and one is severely injured. She’s taken to MCV – a state hospital – and her spouse asserts her right to make medical decisions. But Virginia’s constitution says the state can’t recognize her marital status. What does MCV do?
Think about that.
Meanwhile, back at Cranberry’s, scotusblog.com announced Chief Justice Roberts’ opinion – for another 5-4 majority – in Hollingsworth v. Perry, the case about California’s Proposition 8.
Prop 8 purported to repeal marriage equality in California, after the state’s supreme court had ruled that same-sex couples had a right to marry under the state constitution’s guarantee of equal protection.
In Perry, the Supreme Court held that it lacked jurisdiction to decide the question. This effectively left in place a lower court decision striking down Prop 8. Thus, Californians regained marriage equality, while the Supreme Court ducked the question of whether to decree a nationwide right to marry.
To a certain extent, I think the Court might have done better to decide Perry by upholding the Ninth Circuit’s ruling. The practical effect would have been the same – marriage equality for California, with no creation of a nationwide right – but the Court wouldn’t have looked like it was wimping out.
Most of my friends – especially those in the theatre world – were hoping for a sweeping decision creating a new right.
I was not – for practical, political reasons.
In the real world, it works better when people must do the hard work of organizing, persuading, electing candidates – prevailing through the political process.
Marriage equality will come. Nothing’s going to stop it. But if it comes through the political process – state by state – progressives, liberals, and libertarians will have to make common cause, organize, and persuade their fellow citizens.
In the long run, the organizations they build for one purpose will come in handy in other, tougher battles – such as the battle to solve global climate change.
To win the easy way – through a sweeping Supreme Court decision – would have denied proponents of marriage equality a chance to fight for their cause.
In that sense, the Supreme Court’s decision did liberals and progressives a great service. Over the next decade, Virginians will elect a lot of young, progressive state legislators – partly to end the Commonwealth’s reactionary position on marriage equality.