The string of victories for marriage equality since the Supreme Court (SCOTUS) decisions on the Defense of Marriage Act and Prop. 8 have the LGBT community understandably excited, and some pundits surprisingly unhinged. David Cohen and Dahlia Lithwick of Slate have declared “It’s over” of the court debate. Chris Cillizza of the Washington Post’s blog “The Fix” says the political debate is “arguably over.”
I wish I were so sure. Despite equality’s perfect 18-0 record in court decisions since the demise of DOMA, I have some concerns. Many of those decisions were on our home turf, with moderate to liberal jurists. The decision of the Tenth Circuit Court of Appeals not to stop gay marriages in Utah was a pleasant surprise, but doesn’t promise other appellate courts will be equally affirming of LGBT rights. SCOTUS clearly wasn’t, halting same-sex marriage in Utah and leaving the Beehive State as a glaring example of our national multiple personality disorder, with LGBT unions recognized by the federal, but not state, government. Meanwhile, states are legalizing discrimination under the guise of religious freedom.
The SCOTUS decision was disappointing, but not surprising. Everything between the lines of last summer’s decisions said the court wasn’t ready to declare a national right to same-sex marriage. Even Justice Ginsburg, who railed against “skim milk” marriages, seemed concerned that a premature SCOTUS decision could leave a long term national rift, as she feels Roe v. Wade did. Better to let the states work it out slowly and bring the nation along.
That plan is failing magnificently. The Utah decision has put marriage equality on the fast track, possibly reaching SCOTUS next year. That’s not enough time for the ballot box to bring same-sex marriage to a bare majority of states, much less the lopsided majority that allowed interracial marriage prior to Loving v. Virginia.
If SCOTUS really wants more states on board before a final decision, they have one option: lift the stay in Utah.
Initially, it would tell lower courts that overturning marriage bans was a reasonable interpretation of the DOMA decision. Beyond the obvious impact on Utah, the decision of the Tenth Circuit not to enact their own stay would likely bring the rest of those states along. As Nevada has already admitted they can’t defend their ban under current precedent, the Ninth Circuit states wouldn’t be far behind.
Opponents of marriage equality would scream “activism,” but if judicial activism means anything other than “I don’t like that decision,” it means stepping in unnecessarily. Issuing the stay was the activist move, preventing the Tenth Circuit from being a laboratory for jurisprudence.
A more conservative circuit court, like the Sixth, will almost certainly uphold a state ban on same-sex marriage, forcing SCOTUS to resolve dueling decisions. By adding the Ninth and Tenth Circuits now, same-sex marriage could already be legal, and likely accepted, in a majority of states. A SCOTUS decision striking down the bans would then be a recognition of the status quo, not a grand stroke of liberal activism.
By issuing the stay, SCOTUS no doubt thought they were slowing things down a bit. Given the barriers to adding more marriage equality states at the ballot box, it was more like pulling the emergency brake. If they really want to bring the country along, they should lift the stay in Utah and let other thoughtful judges build momentum for equality in the states.
