There will be a lot of talk this week about our culture and even our politics quickly outpacing the legal system on the subject of same-sex marriage, as the Supreme Court hears oral arguments in cases challenging the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act. But as Jeffrey Toobin succinctly notes at the New Yorker, a move by the Court in the expected direction will be fitting:
The litigation process has served the useful purpose of airing the rationalizations for discriminating against homosexuals. There are really only two reasons that gay marriage is still illegal in more than three-quarters of the country: that’s the way it has always been; and the very idea of same-sex marriage makes some people, well, uncomfortable. But courts, even the current Supreme Court, usually require that laws be justified by something more than tradition and bigotry.
“Fitting” isn’t quite the same as “critical,” though, because on this issue we are hardly talking about “activist judges” leading any sort of parade. It’s news, but not blaring news, this morning that red-state Democratic Sen. Claire McCaskill—precisely the sort of pol you’d expect to be terrified of this issue—has publicly announced support for same-sex marriage. And you get the sense that Republican politicians are watching each other closely for signs that it’s time to complete the brisk conversion process from “I oppose it” to “it’s an issue for the states to decide” to “it’s not a priority” to “fine by me.”
But the uncertainty on the Right isn’t surprising; it’s all happened pretty fast. Again, here’s Toobin on the relative position of litigation—which never happens fast—in this process:
When Theodore B. Olson and David Boies, the lead lawyers in the Prop 8 case, filed their lawsuit, in 2009, it appeared to many informed observers that they were taking a foolhardy risk. At the time, gay-rights organizations had been following a cautious, state-by-state approach, and it seemed that an adverse decision in a major federal lawsuit could set back the cause of same-sex marriage for a generation. But, whatever the Justices do, that’s not going to happen. The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over.
Thank God for that, and let’s hope the enemies of change realize inflicting more casualties at this point is a waste of time and resources.
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