A couple weeks ago, I noted that gay rights are on something of a winning streak in the Courts. That winning streak continues with two recent court rulings, one striking down Florida’s ban on gay adoptions, and another one ordering the reinstatement of a lesbian soldier discharged under DADT.
In most of our courts across the land, legalized bigotry against homosexuals is being hunted down and eliminated. Let the right-wingers froth at the mouth. Let the fake family values folks who lust and covet daily bewail their incapacity to exercise their hypocrisy as a matter of law. Watching the forces of bigotry lose is every bit as satisfying as watching Notre Dame fail on the gridiron.
The utter and complete irrationality of anti-gay laws was fully revealed in Florida, where even felons could be considered as adoptive parents on a case-by-case basis, but not homosexuals. Strict scrutiny of the laws may not be needed–they can’t even pass the rational basis test.
But this winning streak actually underscores my concern about the Prop 8 case. When all the courts in the country, state and federal, are consistently ruling the same way, it usually means there’s a growing legal consensus on an issue, and eventually when that issue reaches the Supreme Court, they look around and see a uniform landscape of case law supporting but one single decision. With the way things are going, had the Prop 8 case come some years from now–perhaps not too many–I might have some confidence that the Supreme Court would follow the lead of the lower courts.
But I worry that the Prop 8 case has come too soon, and moved too fast. The Supremes have not had enough time to soak in the significance and legal meaning of all these other cases. Or perhaps, to joylessly join in the legal community’s favorite game, Justice Kennedy hasn’t had time to soak it all in.
Or perhaps he has. Or they have. It’s clear now that when Prop 8 reaches the Supreme Court, there will be a library of legal rulings against its constitutionality. And against that will be nothing but the claim of “the 14th Amendment doesn’t specify gay rights, so maybe ‘no state shall deny equal protection of the laws’ actually has an exception.” Scalia will bite, being a man who disgracefully favors morality over law. But how many others will?
At this point we obviously don’t know, so I wouldn’t presume to guess. But I will presume to guess that if this Supreme Court does uphold Prop 8, they will be in the same position as the Court that upheld anti-sodomy laws in Bowers v. Hardwick–a dinosaur soon to be extinct.
Rally your troops as best you can, forces of anti-gay bigotry. It’s only a matter of time. I’ve got my 64 ounce beer and a giant pretzel, and I’m sitting down by the goal-line watching my team march down the field. And the home crowd is getting ready to sing, “nah nah nah nah, hey hey, goodbye.”