Political commentators, at least on the left and center, seem relatively convinced that the past two days of marriage equality hearings in the Supreme Court won’t result in an opinion extending same-sex marriage rights to all people in the United States. They might be right, but I’m not sure why so many left-of-center folks seem to be warning the Court not to move too quickly on marriage equality. I get why the socially conservative right is doing it — it’s a threat, essentially. “Do a think we don’t like and we will FREAK OUT!” And they will surely throw a mild temper-tantrum if the fundamental right of marriage is found to include same-sex couples. But “Oh jeez, the religious right might act like toddlers again” is not a very good reason to delay granting a group of citizens basic constitutional rights. Also: Contrary to what has somehow become an accepted truth, Roe v. Wade did not ignite the culture wars. Abortion was controversial well before Roe, and while abortion rights were secured in a small handful of states (four, I believe), they weren’t going to move ahead in many more because of conservative, religious push-back. The idea that a Roe-free U.S. would somehow have led to the broad securement of abortion rights without controversy is flat-out wrong. As is the idea that marginalized groups of people should have to wait for the tides of public opinion to turn before they get rights. Which is what this piece in the Nation is about:
Part of the function of our court system is to step in and protect the rights of minorities from the punitive impulses of the majority. Punting on the most salient civil rights issue of the day won’t make the Court look reasonable; it’ll make it look cowardly. Most Americans believe that the role of the Supreme Court isn’t to make law but to correctly interpret existing law within the scope of black-letter statutes and legal precedent. Most Americans also recognize that discrimination is wrong and “separate but equal” isn’t really equal; they also expect the Supreme Court to be at the forefront of knocking down unjust laws, ahistorical as that view may be. Americans would not view dodging the national issue with a narrow ruling—only addressing federal benefits in the DOMA case, deciding petitioners don’t have standing in the Prop 8 case—as a rational Judgment of Solomon; they would see it as a cop-out at best, and even a transgression against the Court’s most fundamental and valuable purpose.
For all the fear-mongering that the marriage cases could be the new Roe, it’s worth noting that they could also be the new Plessy v. Ferguson. That case upheld racial discrimination under a “separate but equal” framework, and remains a dark stain on the Court’s history, and America’s. There’s not just a danger in doing too much too soon; there’s a much greater danger in doing too little, too late.
After all, this isn’t just an academic question or a matter of political strategy. It’s a civil rights issue that impacts real people, today. Here, the comparison to Roe is apt: For all the push-back and the political fights and the rallying of a conservative GOP base, a country without Roe would almost surely not be a better place for women.
Abortion is far from universally available and accessible, but without Roe on the books, women in vast swaths of the United States would likely have no legal right to abortion; even women in more moderate and liberal states would face a patchwork of laws, subject to shifting political power and mores. Just look at the abortion battles raging on a state level today—anti-choice forces work overtime to scale back abortion rights in every state in the nation. Without Roe, the religious right wouldn’t shrug its shoulders and admit defeat when state legislatures voted to secure abortion rights in 1980 or 1995 or 2013 any more than it did in 1970. And as in the pre-Roe era, the result would be that women, depending on their economic status and location, would have a “choice” between expensive and difficult travel to secure an abortion; a dangerous illegal abortion; or no abortion at all and the attendant financial, emotional and personal consequences of being legally compelled to carry a pregnancy to term when you desperately need not to.
While no Roe may save some politicians and political commentators the annoyance of having to focus on the abortion issue during presidential elections and Supreme Court appointments, as one of the people whose rights would be on the no-Roe chopping block, I’ll take political inconvenience over legal intrusions into my most basic human rights.
The Supreme Court has opted to avoid controversy and leave civil rights issues to the states before. It’s been a lesson in disaster. Waiting for public opinion to change before affirming the fundamental constitutional rights of a minority group makes a mockery of the entire concept of fundamental constitutional rights. And when it comes to marriage equality, public opinion already has shifted, with a majority of Americans favoring same-sex marriage rights. If the Supreme Court requires a super-majority of the public to support a constitutional right before they’ll affirm it as such, why do we need a Supreme Court that evaluates constitutional rights?
Commentators and observers seem more or less convinced that the Court will take the least controversial path here, invalidating only the clause of DOMA currently at issue and claiming lack of standing to get out of making a real decision on Prop 8. I hope they’re wrong. I hope we have a Supreme Court willing to directly address the highest-profile manifestation of legal inequality today, striking down DOMA and Prop 8 and declaring, again, that marriage is a fundamental right—and that same-sex couples can’t be excluded from it.
A more tepid decision wouldn’t just hurt same-sex couples—although make no mistake, a failure to affirm nation-wide same-sex marriage rights will in fact hurt LGBT people, their families and their loved ones, serving as a reminder from the highest court in the land that maintaining stark inequality is an acceptable trade-off for not rocking the boat. But it’ll also hurt the Court. Cowardice doesn’t beget deference or respect, and a court that won’t strike down a clearly unconstitutional law is a court that isn’t doing its job.
All nine Justices know that the marriage cases are ones for the history books. Tonight, they’re likely thinking about what side of history they’re about to come down on. They should ask themselves: Does history look kindly upon those who, when presented with important challenges, took the path of least resistance?
Read the whole thing here.