Holy Week at the Supreme Court

U.S. Supreme CourtTune your ears in to Washington DC this week, Tuesday and Wednesday, as the US Supreme Court hears two landmark cases concerning marriage equality.

(US supporters of gays and lesbian marriage made a strategic decision some years ago to frame the issue in the language of equality rather than rights.  Marriage equality rather than the right to marry.   Smart move.)

Listen for some interesting and unusual sounds from the historic bench, on the steps outside the court, and on the newscasts.  (And of course, keep your ear tuned to what our friend Ed Kilgore writes daily in Political Animal, a smart, hip, DC-insider perspective.)

Some words I know we will hear; constitution, gay marriage vs civil unions, states’ rights, separate but equal, made in God’s image, male and female complementarity, burden of proof, let the voters decide, activist judges, public opinion, children……

Then there will be some less usual sounds.  Like singing and praying right outside the court.  Religious communities from all over and all persuasions are organizing to be in DC those days.  There will be an ecumenical sunrise worship “Service for Love and Justice” Tuesday morning.   That night, a seder, “Parting the Waters’ A Seder for Love, Liberation and Justice.”  We’ll hear singing and praying by religious folks opposed to gay marriage as well.  “Keep things the way they are, O Lord, unequal and unjust, don’t part the waters, don’t open the closet doors.”  Or as Westboro Baptist media hog Rev. Fred Phelps puts it at many such events, “God hates fags.”

All this noise because on Tuesday and Wednesday the high court will hear oral arguments about marriage equality in two different cases: Hollingsworth vs. Perry, a case about the constitutionality of California’s Proposition 8 which voters passed in 2008, ending a brief period of marriage equality in that state, and Windsor vs. United States, which challenges the federal Defense of Marriage Act (DOMA), because it precludes granting federal benefits, like married couple tax rates, pensions, and inheritance, to same-sex couples legally married in the nine states which now permit gay marriage.

As is customary in any Supreme Court case, the justices will hear oral arguments pro and con for only a couple hours on each case.  Then they will spend months reading many other documents, including amicus, friend of the court, briefs.  They will issue a ruling sometime this summer. 

There will be intense media coverage of these cases this week, especially lots of speculation about the future ruling, based on what questions and comments each justice makes (or doesn’t make, in the case of Justice Clarence Thomas, who never speaks at all.)  For only the second time ever (the first being the recent hearing on Obamacare, health care insurance reform), the court has agreed to release that same day an audio tape of the hearings, an indication of its awareness of the case’s importance in the public eye and ear.

Readers of this column know I call myself “Sarcastic and Hopeful”.  While I bemoan the Fox News fag-haters and the predominance of Evangelical white male Christian leaders as the only spokesmen (sic) for the “religious perspective” on Sunday Morning news shows, I am hopeful to see some small changes in the media coverage; public television, New York Times, for example, have featured diverse religious perspectives and debates recently. 

Perhaps this shift mirrors the shift in public opinion about marriage equality. 

15 years ago just 25% of Americans supported marriage equality.  Ten years ago, 37% .  By 2010 50%.  Today 58%.  Even more striking, 81% of Americans aged 18-29 support it.

Likewise the unified opposition by Republicans and Evangelical Christians is breaking down.  In recent weeks remarkable and surprising folks have spoken out in support of marriage equality: a group of prominent Republican elected officals (all now out of office), another group of very prominent business executives (who bemoan the confusing patchwork of different state laws and its effect on their staff and their bottom line), the current Republican senator from Ohio, Rob Portman, a rising star in his party (til now?) who credited the coming out of his gay son with his change of heart, several evangelical leaders with the same excuse/rationale (we only care about discrimination if it happens in our own family?), two courageous American football players who have braved the macho scorn of players and fans to support gay marriage, many children of such marriages, etc.

U.S. Supreme Court JusticesBut justices are supposed to make decisions based on law, not public opinion or surprising new allies.  Most attention is focused on “swing” justices Anthony Kennedy and John Roberts.  Kennedy, a conservative, often decides a 5-4 vote, and sometimes surprisingly; he cast the deciding vote and authored the opinion on two previous key rulings supporting gay rights.  Roberts was thought to be a safe conservative vote until his surprising ruling supporting Obamacare.  Others note that Justice Ruth Bader Ginsburg, a longtime feminist legal activist, is at the same time a proponent of moving slowly on controversial legal decisions.  While supporting abortion rights, she has stated publicly that Roe v. Wade was not based on strong legal opinion and that the acrimony around abortion might have been lessened with a more concerted effort to have Congress pass laws rather than relying so much on the courts.  This marriage issue is also so volatile in state and federal legislatures that the courts may be its only hope, but acrimony will persist.

Some folks speculate the court will “punt” their decision on the first case, Prop. 8, by ruling not on the constitutionality or content of the issue itself, but on the narrow issue of the legal standing of those who are arguing in favor of Prop. 8 (and hence opposing marriage equality – it’s confusing.)  In another indication of the changing tide, both the California Attorney General and Governor at the time of Prop 8’s passage not only opposed it, but refused to defend it legally, as was the usual duty of their office, when it was overturned by a higher court.  Yes, I’m talking about current governor Jerry Brown, former Jesuit seminarian, then Attorney General, and then Governor and Republican  Arnold Schwartzenegger; both Governor Macho and Attorney General Jesuit supported gay marriage.  So the original proponents of the anti-gay marriage proposition, a small Southern California group, well funded by Mormons, took over its court defense.  But the courts may rule that they do not have proper legal standing – it’s complicated, just trust me. Or they may rule in favor of gay marriage only in California, since they/we had the right for a brief while, and then it was taken away, but not rule for the same right in the rest of the states.  These would both be sleazy but safe postponements of the big issue.  By punting, and sending it back to the lower courts, California gays and lesbians could again marry, but the state/federal issue would not yet be settled.

Here’s an interesting chart of the many possible outcomes of different rulings by the court.

Stay tuned.  There will be intense debate on every justice’s comment, question, sigh, raised eyebrow.  There will be snide comments about whether Justice Thomas was even awake.  There will be as many betting pools as there were for the Pope. 

This sarcastic hope-ster remembers that all the pundits were sure after the oral arguments last spring that the justices would overturn Obamacare.  The robed men and women surprised us.

Remember, it’s Holy Week.  All kinds of surprises are in store.

Copyright © 2013 Deborah Streeter