Today, the Supreme Court considered a case about whether voters in a state can pass a law that arguably violates the Constitution of the United States of America. The case about to decide the fate of California’s Prop 8 is tangled up with the details of legal procedure and constitutional interpretation to the point where some analysts speculate the Court might dodge a ruling altogether on technical grounds.
But the details sort of don’t matter --- what is really on trial this week is the future of equal treatment for gay Americans. And the fact is, the tide is flowing forcefully in the direction of fairness and equality. The Supreme Court will either ride the wave or try to block it or dodge it, but ultimately it doesn’t really matter. The tide has irrevocably turned.
The fundamental equality of gay Americans is lapping against every shore of America from the Bible Belt to the Republican National Committee. A leader in the Southern Baptist Convention recently reported that young people within the conservative church think opposing same-sex marriage “feels intolerant.” The RNC “autopsy” report advised softening the party’s stance on gay rights issues and prominent Republicans including Sen. Rob Portman have announced their support for marriage equality. Republicans are finally catching up with mainstream public opinion, which has been quickly evolving to now-majority support for gay marriage. And among the observers inside the Court today was Jean Podrasky, the lesbian cousin of Chief Justice John Roberts. The Chief Justice, a conservative, gave Podrasky one of his private tickets.
It’s worth noting that even the lawyers defending Prop 8 aren’t arguing against the morality of gay marriage but merely trying to say the matter should be left to the states. Anti-gay bias and bigotry is quickly falling out of fashion.
Of course, the Supreme Court should not be swayed by personal sentiment or popular opinion. A founding principle of our nation is that fundamental rights should never be subject to popular vote --- whether the right to equal treatment under the 14th Amendment or the right to own guns under the 2nd Amendment. The judiciary exists to hold politicians and the people accountable to a higher standard, to ensure that majority rule doesn’t trample on minority rights. It is the job of the Supreme Court to hold federal, state and local governments accountable to our founding doctrines and the rule of law --- including the idea that government cannot pass a law discriminating against a group of people without a “legitimate purpose”.
More than 1,138 rights and benefits at the federal level accrue to couples based on marriage, from inheriting assets tax free to accessing spousal visas for immigration purposes. Gay couples don’t want to change the marriages of straight couples in any way nor force religious institutions to perform weddings against their conscience. This is simply about getting the same legal rights as other families. In fact, the California’s Prop 8 isn’t really about marriage any more than anti-sodomy statutes were about sex. The point of both was to enshrine second-class status for gay Americans. And that is not a “legitimate purpose” for government discrimination.
It is unclear from today’s hearings how the Court might rule on Prop 8. It remains entirely possible that the Court might dodge the substantive question or rule on narrow grounds that only affect the State of California and not the rest of the country. Whatever it does, the rights of hundreds of thousands of families like mine will be profoundly affected by whatever the Supreme Court rules on two marriage equality cases it is hearing this week. Without question, what the Court rules will make a difference in the short-term legal and political realities faced by same-sex couples.
But when Martin Luther King spoke about justice rolling “down like water and righteousness like a mighty stream,” he evoked the long arc of history that ultimately bends toward equal treatment and fairness for all. The Supreme Court may hurry the pace of justice or slow it down or dodge it altogether, but the sanctioning of anti-gay bias and legalized discrimination against gay families will someday soon be nothing more than an ugly relic of the past.
When Chief Justice Roberts was being confirmed for the Court, his lesbian cousin, a liberal, enthusiastically backed his appointment. Why? “He is family,” she explained, articulating the shared values that we as a nation must continue to strive for as well.
Sally Kohn joined the Fox News Channel in 2012 as a contributor.