Supreme Court’s Gay Nup Move Guarantees Six Months Of Worry

US-Supreme-Court-at-NightBefore we get ahead of ourselves celebrating news that the Supreme Court will hear cases on DOMA and Proposition 8, remember that a ruling against equality could be a blow to all the progress that's brought the movement this far.

The New York Times makes that quite clear in an article called "Worry Tempers Joy Over Gay Marriage’s Moment in Court."

An excerpt from the sobering piece:

The fact that the Supreme Court is hearing the cases hardly means it is about to ratify same-sex marriage. As supporters and opponents said in interviews, the court might well use these cases to find that there is no constitutional protection for same-sex marriage.

“There is no question that it is a risk,” said Lt. Gov. Gavin Newsom of California. “If they nationalize it and reject it, that’s going to take decades to come back to the court.”

Jubilation was tempered with apprehension as the implications of the decision were discussed across the country.

“That the Supreme Court is taking this up is truly exhilarating, but I’m very nervous and unnerved by the possibilities of what could come out of this,” said Don Romesburg, 42, an associate professor of women and gender studies at Sonoma State University.

“It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence…"

No matter how you're feeling about SCOTUS and marriage equality now, it's bound to change: we still have at least three months before arguments are heard and then another three or so for a decision, meaning that we can all look forward to about six months of frown wrinkles and worry warts. But, hey, nobody said equality would be pretty.


  1. Randy says

    It would be nice if they decided that the Proponents of a measure do not have Article III standing on appeal when the defendants themselves do not appeal. That could leave Walker’s decision intact.

    The idea that a vote on a ballot initiative is somehow also an election on the defense team is (or should be) laughable, anywhere but California.

  2. Bill says

    @Randy: we are lucky the defense team consisted of the clowns that ran it – they managed to get one expert witness who ended up testifying against Proposition Eight, and that William Tam character had been so virulent in the campaign that he became a poster boy for animus. Tam would probably have preferred a root canal to being questioned by David Boies.

  3. Sargon Bighorn says

    In the past, the SC said that a Black man could indeed buy a first class train ticket, BUT he could NOT sit in the first class train car. It took time for that ugly view to be over turned. Black people did not go away or hide in a closet. So too with Gay Americans. Should the SC say Gay citizens are not equal citizens, we will not go away or go back into the closet. We will be VERY vocal and very involved. States with equal marriage laws are making the statement that Gay Citizens are equal citizens, that statement will never be undone. Those marriage contracts will not be over turned.

  4. Caliban says

    There is little use worrying about what you cannot change. There may be some benefit in public displays of gay solidarity and pride, but private worry will only hurt you.

    Easier to say than to do, but I’m going to try.

    That doesn’t mean giving up because no matter what the outcome is the fight will go on.

    “Worry does not empty tomorrow of its sorrow. It empties today of its strength. “

  5. Artie_in_Lauderdale says

    The recent Supreme Court order is good news. It mentions two options explicitly:

    (1) They could rule on the “petition question” and make a sweeping decision involving the right to marry in all 50 states. That sounds like it might result in a Bowers v. Hardwick disaster. Or maybe not, who knows?

    (2) They could ignore the merits of the case entirely and strike down Prop 8 based only on standing–whether Prop 8 supporters have legal standing to defend Prop 8 in the place of the Governor and Attorney General of California, who refuse to defend Prop 8. This option sounds kind of weird.

    The Los Angeles Times article is correct to state that there is a third option:

    “A third option would be to follow the approach set by the 9th Circuit and strike down Proposition 8 in a way that limits the ruling to California.”,0,1456839.story

    Even if there aren’t five votes for marriage equality nationwide, the liberal justices have two different escape hatches to avoid an anti-gay decision.

  6. Stefan says

    I actually think there are at least 5 votes for full marriage equality nationwide, though it may not happen as a result of this.

    Right now I think the standing option is the most likley outcome, which would be a win for us regardless. I really don’t see the Supreme Court issuing another Bowers v Hardwick decision, especially after this last election.

  7. MikeH says

    I think they are going to throw out DOMA unanimously. Regarding Prop 8: Before the election I thought they might take a pass and not hear the case… but with the results of the election, the recent public opinion polls and a current and former POTUS who both support equality fresh in their mind, I believe they will rule that bans against gay marriage are unconstitutional.

    Based upon the latest census figures, 41.5% of the population lives in a state with some form of marriage recognition currently. That is almost half of the nation with opinion still rapidly changing in our favor.

    I don’t believe the court would want to do a repeat of Bowers and have that decision over-ruled in a few years. This is the perfect opportunity to make a sweeping civil rights decision and allow Justice Kennedy to solidify his standing with the final decision of what would be his “gay rights trilogy” of opinions. Justice Roberts certainly doesn’t want his court to take the wrong side of history.

    I think the stars are aligned on this, and the court knows it… that is why they took the case. While the wing-nuts would howl, no one would be really shocked by this decision.

    All this hand wringing reminds me of the recent election. The press is once again trying to create some kind of controversy about this. It isn’t there…

  8. says

    If they don’t rule in favor of equality, we could always petition to invalidate all marriages, especially of people who don’t have children for whatever reason. After all, if they aren’t actively working to progress the human race, they’re violating basically the sole reason for marriage, according to them.

  9. Jake says

    I don’t see how anyone can say that there can be a unanimous decision for us in the DOMA question. Anyone who knows anything about Scalia knows that his animus against gays and gay rights is not just legal, it is very personal and religious. Thomas is less personally hostile, but he vote against us on every issue just the same. Alito is the new Scalia, so another vote against us. Roberts is untested, but he is definitely a social conservative who usually votes with his rightwing brethren. I think there are four DOMA votes against us.

  10. Jake says

    I don’t see how anyone can say that there can be a unanimous decision for us in the DOMA question. Anyone who knows anything about Scalia knows that his animus against gays and gay rights is not just legal, it is very personal and religious. Thomas is less personally hostile, but he vote against us on every issue just the same. Alito is the new Scalia, so another vote against us. Roberts is untested, but he is definitely a social conservative who usually votes with his rightwing brethren. I think there are four DOMA votes against us.

  11. JD says

    Courage, fellas. Remember the cojones that got this going in the first place.

    “I’m this person who believes in the constitution,” Windsor said. “I believe in the Supreme Court, and I do expect justice.”

  12. Jeff says

    This will be an historic moment, but it isn’t true that a loss will be a blow to all progress achieved up until now, as Belonsky says. We will still have nine states and DC with marriage equality and we will still be able to add to that total over time. Nothing SCOTUS does will change that, but it would knock some wind out of the equality argument to have the nation’s top court say that marriage discrimination is OK under the Equal Protection Clause.

  13. Matt N says

    For those who are worrying. Do you really think Anthony Kennedy will say that same-sex couples have no constitutional right to marry? Look at the language he uses in his ruling in Lawrence v Texas:

    “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

    As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

  14. Tony says

    I agree, I do think the Prop8 case is a risk. And the key is Kennedy. I don’t think we can count on Scalia and Alito voting to overturn DOMA or uphold the 9th circuit. Roberts and Thomas I’d say would lean with Scalia and Alito, but you never know. Remember, Thomas said that the Texas Sodomy law was uncommonly silly and if he were a Texas Legislator he’d probably vote to over turn it. He is also black and married to a white woman. Still always has been conservative. And Thomas pretty much shocked everyone by voting to up hold the Affordable Care Act, siding with the liberal wing. We’re assuming that Kagan would vote in our favor, lets hope we’re right. The votes I’m more confident in are Ginsburg, Brayer, and Sotomayor. That leaves Kennedy again as the swing vote. Now while I don’t think he would want to harm LGBTs, i’m not so sure he’s ready to invalidate the mini DOMAs in 31 states. Remember at least 15 states led by IA have filed Amicus Curiae briefs in favor of the so called DOMA. Kennedy is 76, perhaps he would be ready to retire and make marriage equality his legacy…or perhaps he doesn’t want to be the one to divide the country and leave Hollingsworth v. Perry as his Roe v. wade. I’m curious about the other 9 DOMA cases that ruled held it Unconstitutional. If SCOTUS does not take these cases, would the lower court decisions stand?

  15. Tony says

    Oops, that should be Roberts, that voted in favor to up hold The Affordable Care Act. Not Thomas. Maybe I was thinking of Thomas Roberts… One of the Sexiest Men Alive

  16. Tony says

    PS. Thomas also said that he could find no constitutional right to sodomy in the constitution, and so voted for Texas in Lawerence v. Texas. He and Scalia are literalists and originalists when examing and applying the the constitution. I just don’t know if Kennedy is ready to overturn 31 states constitutions. It was a bit easier to overturn only the remaining 16 state laws (not constitutional amendments) criminalizing sodomy.

  17. Rich says

    “It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence…”

    Yes, but no more frightening than leaving our basic rights as citizens up to an electorate that is totally unaccountable for its choices. At the very least, the Justices will be obliged to explain their decision, and one can hope that they will be mindful of their obligation to preserve, defend and protect the Constitution of the United States.

  18. JEEZE says

    I love your comments guys, just let me add this. We all have profound mental powers whether we know it or not and it doesn’t hurt to calmly, confidently IMAGINE and envision an SC vote in our favor. Feel it emotionally, as a done deal, with a smile. Feel this, conjure it, often, routinely, automatically, consistently. Know anyway always that you’re right, you’re valid, you’re good and that this knowledge is massively absolute, written incontrovertably into the substance and structure of Nature and the cosmos itself. We have already won because anything but a positive outcome issued by our vaunted Supreme Court can only say more about them than us. THAT is what the truth IS.

  19. Mike B. says

    The tea leaves say a decision limited only to California on the Prop 8 matter. They might also limit DOMA as applied to residents of states with marriage equality — which could lead to some really confusing mismatch of rights between states.

    That’s the path of least resistance, which should never be discounted.

  20. Icebloo says

    The TERRIBLE design of the US judicial and legal systems means we have no choice. Either we give up on our rights or we have to go through the corrupt, biased Republican-controlled Supreme Court.

    It’s time to redesign this failing system so it works for the majority of Americans and not just for the rich and their rich lawyers.

  21. Icebloo says

    I actually think if the corrupt Supreme Court rules against us it will make young people more determined to stand with us and I think we will see more gay marriage wins at the polls. It will be a public relations nightmare for the Supreme Court and we will see more and more people calling for this terrible system to be redesigned.

    However, more wins at the ballot would still not address the issue of Federal rights and binational couples would still be broken up when the non-American is deported.

  22. BZ says

    SCOTUS isn’t Congress, where it’s just a matter of having the necessary number of votes. At the Supreme Court, what counts is who has the best legal argument. Yes, the justices all have their own ideological viewpoints, but they operate within the fabric of the law, and their rulings have to be consistent with what’s been said in the past. And in the Windsor and Perry cases, that’s very favorable to us. Bowers was a tougher case for us to win; in 1986 there hadn’t been the opportunity for us to build a foundation of case law that would lead to the result we wanted, and accounts of the deliberations in Bowers make it clear that the justices themselves didn’t fully realize the importance of the case. Justice Powell, who provided the critical fifth vote in Bowers, later said that he didn’t know any gay people (or realize that one of his own clerks was gay) and that he devoted maybe 30 minutes to thinking about the case. That’s hardly likely to happen again. Court watchers know that these two cases are destined for the history books and will be discussed for the next couple hundred years. SCOTUS knows it really needs to get them right. The Romer v Evans and Lawrence v Texas decisions really box the judges in, as do the 14 previous rulings the SCOTUS has issued on marriage rights.

    We don’t want to be overconfident, but we have very strong cases and some of the best attorneys in US history arguing for us. We also can show that the country is moving decisively towards a resolution of the issue in our favor. I think we are going to win.

  23. kp05 says

    The folks at NOM may prefer to ignore the word “inevitable,” but the Supremes aren’t so narrow. They ALL know what’s coming. I don’t know that there are 5…heck, I don’t know that there are 4 Justices who want to eternally seal their fate as the legal villains of the U.S.

  24. says

    Of course we are worried !
    There’s “no freedom without Equality”….(thank you Macklemore !)

    i would dearly wish for a favourable outcome to the DOMA and Prop 8 cases……it seems absurd that such fundamental rights to equality should be subject to the vagaries of ideologues such as Scalia, Alito and Thomas…..they will vote against anything that smells of equality for gays…..after all, their Catholic Church has already told them we are “defective”…..and Alito and Scalia are so Italian/Catholic.

    But we believe that we are not “defective”…we believe in our Civil Rights to equal treatment before the Law…if these cases go against us there will be an extreme backlash from the Right, they will feel vindicated in all their self righteous bigotry and violence against gays will increase exponentially.

    But we will not take any such decision lying down…….Martin Luther King knew that the struggle can be long; Nationalists in Northern Ireland had to march and demonstrate to get the vote in Local elections as recently as 1972…….and we are criminalised in so many countries…Russia, Uganda, Iran…..

    But a decision against us would last for a generation; I will certainly be dead before being allowed Marriage Equality, before being allowed to live with my BF in the same contractual relationship as my neighbours.
    If this goes against us, our backlash should be cataclysmic, our demonstrations should be frequent and enormous,our demands of politicians should be non stop.

  25. says

    @ ICEBLOO:

    Yes, that’s exactly what I’m talking about.
    Homo Non nationals will not have the same rights as Straight Non nationals under USA law.

    A straight non-national can continue to live in the USA with his/her spouse; a homo non-national is deported.
    Where is the equal treatment before the law?

    The absurd thing is that even if that Homo Couple validly married in the Netherlands, and returned to the USA, the homo non-National will still be deported because the USA spits in the face of a valid marriage under Netherlands Law.
    But that same couple would be allowed to live in the Netherlands, the USA guy would have a right to reside there under Netherlands Law……..the very thing the USA denies to us homos. So Netherlands Law allows a validly married homo couple to reside in the Netherlands, where ever the valid marriage was held.

  26. Steve says

    With Scalia you can have the best legal argument in the universe. He will ignore it and decide whatever he wants. Then Alito (aka Scalito) will do the same.

  27. johnny says

    Steve makes a good point. Neither Scalia or Alito will want one of their last big decision legacies to be in favor of anything gay, regardless of constitutionality. They’re just that kind of guys and don’t want any gay juice tainting their good names.

    At the end of the day, they’re deciding on something that affects (at best) 14 percent of the population and that may not play in our favor, given that 30 states already have mini-DOMAs in place. I predict a 5-4 vote in favor, no matter what.

    But I also love the idea of putting the positive energy out there into the universe, as Jeeze suggests. It can’t hurt, right?

    Imagine it: A federally protected marriage law for EVERYONE.

    Now, just keep imagining it, over and over and over and over and over…

  28. says

    I have learned only a few things;

    one of them is that bigotry runs deep, even when it is silent.
    It is revealed in ordinary social isolation of gays in the workplace, I know it from my own and my BF’s experiences.
    It also runs deep within the committed religious followers of Jesus and Mohammad; they truly believe that what God/Allah says is the last word and the last law.

    I think Scalia and Alito are such similar thinkers; Thomas and Roberts are not far behind. And whether they are members of Opus Dei or not, the same over riding religious scruples have invaded the very top echelons of the legal and political world. their decisions will be against us until their hell freezes over.
    But they will all be so polite…….maybe if we tug our forelocks they will drop us some crumbs…….and decide the cases on the narrowest issues.

    Well phuck that…’s Equality or nothing;
    or better, Equality or mass activism.

  29. ratbastard says

    The Canadian Supreme Court decision legalized gay marriage in Canada. Likewise, any decision at the U.S. federal level, by Congress and signed by the president, could ultimately be challenged in court, and would have to be decided by the U.S. Supreme Court.

  30. says

    I’m not worried.

    I’m 65 years old and have kived though things you damned kids(GET OFF MY LAWN!!!) cna’t so much as imagine.

    We have gret lawyers and tons of materal tow draw from to make our case (eg. the Prop 8 trial) of course Scalia will ignore all this.

    As I point out here

    it’s clear he never even READ Bowers. But he’s two votes (Thomas being his personal Lawn Jockey)

    As POTUS says, “Forward!”

  31. Lars says

    Unless you happen to be a litigator briefing the Supreme Court on these matters, there really is not much point in fretting for the next six months. Won’t accomplish anything.

    Trying to read the High Court tea leaves may be fun for some, but keep in mind that it is a sport with very very thin predictive value. VERY few people expected the Court to uphold the ACA on Spending Clause rather than Commerce Clause grounds. And even fewer prognosticators expected Roberts to pen a majority opinion to which Kennedy dissented.

  32. Rob says

    They want this over as badly as we do. And if they rule against us, it will keep popping up like a beach ball pushed under water. Everyone knows where this is going eventually, and they need to dispense with this and get on to bigger and better things. Quick before Congress beats them to it.

  33. Jerry6 says

    I suspect that in the end, the vote will be 9 to 0 in our favor. I tend to believe that none of them will want to go down in history as a holdout Bigot.

  34. Ken says

    It seems strange the the Court would even take the Prop 8 case if all they were going to do is uphold the narrow ruling. It’s seems to me they want to make a landmark ruling one way or the other. Either to say it’s a states rights issue or say all Americans are entitled to marriage equality. Given Kennedy’s rulings on Romer and Lawrence, I’m optimistic this will go in our favor.

  35. anon says

    I’m not sure what the interesting federal question there is with Prop 8. With DOMA you have an excellent case of federal priorities versus state authority. With Prop 8 you get mired in 14th Amendment precedent, which is either going to be applied to gays or not. The law itself is not going to change.

  36. Diogenes Arktos says

    @Jerry6: “I tend to believe that none of them will want to go down in history as a holdout Bigot.”

    True enough. Remember, however, that some of them do not recognize they are bigots. Although it may be bluster, the Religious Right says it is determined to fight to the end. They know they will win, because their interpretation of God says so. Just like the landslide Romney victory.

  37. Bill Michael says

    If SCOTUS doesn’t find in favor of gay people, my partner and I, of 28 years together, will die before we have another chance. It is like missing Halley’s Comet, there will NOT be another sighting for 76 years.

  38. andrew says

    Just a reminder to some of those who seem to think that all Catholics think and act alike: One of the great leaders of the liberal wing of the U.S. Supreme court was an Irish Catholic Justice by the name of William Brennan who had one of the longest tenures in court history. (1956-1990), So proud of that great Irish-American.

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