Let freedom ring … that is what we all hope will happen with the Supreme Court agreeing to review the Prop. 8 and Defense of Marriage Act (DOMA) cases. Many leaders in our community are excited, yet concerned, about the potential of the Supreme Court ruling in these two cases.
The Prop. 8 case will give the Supreme Court the opportunity to rule broadly and establish same-sex marriage as the rule of the land. Unfortunately, the Supreme Court is not a bold institution. It usually follows prevailing public opinion.
That is what concerns many LGBT leaders. What prevailing public opinion will the Supreme Court follow? The 41 states who do not allow marriage equality, will they trump the nine states and the District of Columbia who recognize marriage equality? Troubling.
Of course, there is that legacy thing. Does the Supreme Court want to make another Plessy vs. Ferguson decision? That decision established “separate but equal,” a ruling that is universally derided by all legal scholars today.
The only justice that is celebrated from the court that established “separate but equal” is John Marshall Harlan, the one dissenting justice. One of my brothers went to Harlan High School in Chicago.
I think that the Supreme Court will make a very narrow ruling only allowing marriages to begin in California when they rule in June 2013. Why? They simply do not have the intestinal fortitude to do anything else.
While public opinion now supports marriage equality by a narrow margin, there are all those states that have banned same-sex marriage. Thank you Ken Mehlman, the Republican gay man that helped many of those bans happen during the George W. Bush years. Self-hate can have long term consequences.
So the Supreme Court justices will simply rule narrowly and let marriage equality play out in the states. Until the LGBT community achieves marriage equality in the majority of the states, the court will be timid. Trust me.
The Defense of Marriage case is a horse of a different color. I think that the Supreme Court will have to rule broadly. In essence, they will decide whether the federal government has to recognize same-sex marriages performed in the nine states, and the District of Columbia, that allow them.
DOMA is a very complex issue. The Supreme Court could rule in a way that is similar to the medicinal and recreational marijuana laws. The federal government says marijuana is absolutely illegal to possess. Yet in California, Washington state and Colorado voters have voted for recreational or medicinal use of marijuana. A person can legally smoke in these states but be violating federal law. Definitely problematic.
The Supreme Court could rule that the federal government does not need to recognize marriages performed in jurisdictions that allow them. If they do that, the justices will be viewed in history just like the Plessy vs. Ferguson court; idiots.
History will show that the states that allow same-sex marriage were trail blazers in supporting one of our national tenets; all men are created equal. The ability to marry who you want is one of our freedoms and I believe the Supreme Court will make the right decision.
The justices will say that they are supporting the rights of states to establish their own laws concerning marriage, but the federal government cannot deny rights to those that are legally married.
It will be a muddled set of decisions come June 2013. Same-sex couples will be able to marry in California as Prop. 8 is struck down. But those same-sex marriage bans in the many states in America will be able to also remain in place.
The federal government will be forced to give the same rights, benefits and responsibilities to those who are legally married regardless of whether they are a same-sex or opposite sex couple. The Supreme Court will make no one happy.
Sure both rulings will be progress in the LGBT equality movement, but there will be so much more work to do. The importance of LGBT equality groups in each state will take on increasing importance. They will be critical in moving same-sex marriage forward in each state.
The next seven months will be monumental for LGBT equality. I just hope that our Supreme Court does not make a Plessy decision. As an African American, that decision affected my grandparents, parents and me in ways that seem unimaginable. I think America is better and so is the Supreme Court.
Stampp Corbin
Publisher
San Diego LGBT Weekly
