It finally happened. After a string of court victories for marriage equality, Circuit Court Judge Russell E. Simmons Jr., upheld Tennessee’s amendment against same-sex marriage, becoming the first jurist to uphold such a ban since the U.S. Supreme Court struck down part of the Defense of Marriage Act last year.
Having not won a case in almost 14 months, opponents of same-sex marriage were understandably excited. Less expected was the fatalism of allegedly unbiased journalists and even some supporters of marriage equality. It seemed that the end of the streak was the end of all hope. People who were beginning to think there might not be a federal circuit court split were again certain that marriage equality was on its way back to the Supreme Court. A run of losses might be in the making.
Fortunately, that’s not how streaks work, with the possible exception of Lou Gehrig, who never played after the end of his 2,130 consecutive game streak. Most “endings” are a blip on the radar before the resumption of excellence. Cal Ripken Jr., had one of his best statistical seasons the year after he ended his Gehrig-besting streak at 2,632 games. Despite ending his hitting streak at 56 games, Joe DiMaggio was an All Star and the Most Valuable Player (MVP) in 1941, and went on to another MVP trophy, seven more All Star games, and the Hall of Fame. Muhammad Ali won 31 straight fights before losing to Joe Frazier in 1971, but went on to reclaim the heavyweight title.
Depending on how you count various cases and appeals, Marriage Equality’s victory streak is usually scored between two dozen and 30. Split the difference and call it 27-1. That record would be a great start to an NBA season, get an NFL team to the playoffs for two seasons, and win four NCAA basketball titles. Ali ended with a 56-5 record and is considered “The Greatest.” As a point count, it’s hard to find a sport where 27 points isn’t a dominant lead, or where that first score would strike fear into your heart. (Except if the Chargers were up 27 against Denver.)
So let’s all calm down. This was one judge in Tennessee who based his ruling on a one sentence precedent, Baker v. Nelson that other courts have dismissed in the wake of Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor. It is a state decision that could be appealed to a Tennessee Supreme Court so surprisingly progressive that conservatives are hotly contesting the typically routine judicial retention elections. Whatever Tennessee decides, it could be trumped by the U.S. Sixth Circuit Court of Appeals, which is currently considering cases from Tennessee, Kentucky, Michigan and Ohio. Even in a loss, the Sixth Circuit case could go to a full circuit review before the Supreme Court.
If streaks don’t end by choice, they eventually end by probability. Marriage equality was statistically required to run into an unsympathetic judge at some point, and it will likely happen again. We won 20-some odd cases because we have the just argument and the long arc of history on our side. As long as we do, the streak and the record don’t really matter. We just have to keep getting up off the mat.
