As I’m sure everyone’s heard by now, a federal judge in California struck down the Don’t Ask Don’t Tell policy. Coupled with the ruling against Prop 8, and another federal judge’s ruling against the Defense of Marriage Act, this gives the gay agenda (a.k.a., equality) a 3-0 record in the courts this year. This follows a series of state supreme court rulings that have struck down state-level bans on same-sex marriage. And all of these come on the heels of the Supreme Court’s 2003 Lawrence v. Texas ruling that ruled sodomy laws unconstitutional, and it’s 1996 Romer v. Evans (1996) decision, in which it struck down a state law prohibiting municipalities from ensuring equal protection for homosexuals.
Gay rights are having a pretty good season. Even a couple of recent setbacks weren’t really rejections of the primary claim to equality. For example, Strauss v. Horton, the California state court case challenging Prop 8. Given that the plaintiffs were challenging a state constitutional amendment on some very dubious technical grounds, the decision wasn’t really about equal rights at all, as a legal matter, and was an almost unavoidable legal outcome, I think. But even in that case, the court left existing marriages intact. And of course it’s legally unavoidable upholding of Prop 8 was negated by the Federal District Court’s ruling. And the Wisconsin supreme court rejected a challenge to a voter-approved constitutional amendment banning same-sex marriage that, like Strauss, was not really about equality, but a technical interpretation of the state’s rules on the referendum process.
On the other hand, a Texas state appeals court has upheld that state’s ban on same-sex marriage against a claim that it violates the U.S. Constitution’s equal protection clause. This is the single notable anti-equality win SSM opponents can count in recent years. The Washington state supreme court upheld that state’s marriage ban in 2006 (although that was substantially, if not completely, reversed by the voter-approved “everything but [the word] marriage” law).
There may be others that I’m not finding, but setting aside the California and Wisconsin cases as being about process, not substance, and adding the 5 pro-equality state rulings to the list of federal court rulings, equality has an 11-2 record in the courts since 1996.
I’m not familiar with any other issue that became a consistently winning legal issue that ultimately lost. The closest analogy, perhaps, is death penalty jurisprudence in the 1970s, which resulted in the Supreme Court effectively ruling the death penalty unconstitutional, then ultimately allowing it again. In that case, there is a clear constitutional provision allowing the death penalty. In this case there is no equivalently clear constitutional provision that could come into play to reverse the legal trend toward equality.
I think looking at the issue this way provides real reason for optimism about the ultimate outcome. Several years back I first noted that even many gay rights opponents had conceded that it had successfully become defined as a civil rights issue, and noted that they were chagrined about that precisely because they recognized the difficulty of opposing civil rights. The legal trend perfectly matches that successful definition, giving the imprimatur of constitutional law to that political understanding.
That in itself ought to give opponents of same-sex marriage pause. I know conservatives like to blast “activist” judges who overturn “the will of the people,” but when the overwhelming majority of judges rule that the law requires a particular outcome, honest people should begin to ask themselves whether maybe–just maybe–those legal specialists might be right.
But we are now rapidly approaching a crucial moment. The DADT, DOMA, and Prop 8 decisions–all Federal Circuit Court rulings–will all ultimately be appealed to the Supreme Court, regardless of the outcomes at the Circuit Court level. The Supreme Court may be able to duck one or two of these decisions, but unless each one is reversed by the Circuit Courts–which, based on the recent trend of decisions, would seem very unlikely–it cannot duck all three of them.
And yet in this case I still have a very deep fear of what will happen before the Supreme Court. Because the Court tends to draw heavily on arguments in the briefs and in lower court rulings when making its decisions, it would ordinarily seem likely that we could reasonably anticipate the ultimate outcome. And maybe we can, even in this case. Maybe the Supreme Court will indeed behave “normally.” But I frequently offer wagers to people who oppose me on an issue, whenever I am absolutely confident that if they take the wager I will take their money.* I’m not offering any wagers this time around.
Prop 8 Update: In a recent post on the current status of the Prop 8 legal battles I discussed the question of whether the Governor or Attorney General of California have a legal duty to defend the case. I argued that they probably did not, while admitting I didn’t know California law on the issue. Just this week the California state supreme court ruled that they are not legally obligated to do so. Because that is an interpretation of state law, the state supreme court ruling closes that issue for good. Federal courts will not question state law except in relation to federal law or the U.S. Constitution. However I still think the 9th Circuit might find grounds to grant a private entity standing to appeal, just to ensure that a case that is indisputably destined to be appealed to the U.S. Supreme Court receives a thorough Circuit Court hearing. And if they don’t the Supreme Court definitely will.
*Oddly, despite those folks stated confidence in their rightness, they never–never–take the wager.