I have just come from the United States Supreme Court arguments in the California Proposition 8 marriage equality case. Technical issues aside, what was before the court is whether it is constitutional for the voters of California to strip or deny some of its citizens of a fundamental right -- that is, the right to seek and obtain a civil marriage license on the same basis as opposite gender couples.
What I saw today was a high court caught between a genuine desire to render a clean, crisp constitutional analysis of this matter (on one side of the issue or the other), and one that was enveloped by caution, fearing that to do so would be moving too quickly for history. Some of the Justices referred to the "newness" of gay marriage and the term "social experiment" was used more than once. At one point, Justice Sotomayor -- almost pondering -- asked counsel for the defendants whether this issue should be left to percolate like other tough social issues, such as race. After all, there were 56 years between Plessy vs. Ferguson (the case that brought us separate but equal in 1898) and its correction, Brown vs. Board of Education in 1954 (separate is never equal). It seems almost improbable that the Court waited until 1967 to strike down the laws that still existed in some stating banning interracial marriage.
None of the justices seemed to be buying a parsed and, at times, tortured state-by-state analysis. Either marriage is fundamental right for all citizens under the constitution, or it is not. None of the Justices seemed to be buying the arguments proffered by the Solicitor General that, while trying to offer a middle road, seemed to unwittingly shore up the idea that there may still be looming some legitimate state reasons for denying marriages licenses to gay couples -- we just haven't seen those arguments emerge yet. To be fair, I believe the attempt here was also to find a way to buy time.
Caution seemed to be in the air and almost eclipse the rigor of the constitutional examination -- even to the point where the Court, having spent a great deal of time on an important but technical issue known as "standing" -- seem to ask whether defendants were properly before the court at all.
It is my hope that the court will find the courage to rule this year on a constitutional conclusion that is inevitable -- and not wait another 50 years for justice. Individual gay people and those they come to love are not social experiments, they are people. Our families are not in a laboratory, we are actually engaged in real life.
What is right constitutionally today will be also be right in a year or a decade or a lifetime. At one point Justice Scalia asked of Ted Olson: "When did gay marriage become constitutional?"The answer is: from the beginning of time, or at least from the beginning of our constitution." We are just now coming into consciousness about the fact LGBT people are a constant presence in this nation.
We know from other nations that have had equal marriage in place for years that there are no grim reapers waiting in the wings to cut of traditional marriage. The only result delay will deliver is harm to gay people and their families. Nothing comes of allowing injustice to fester. These are real lives that deserve a real constitutional answer. Don't take the technical dodge. Do not let injustice percolate.
Elizabeth Birch is an attorney, an LGBT advocate and the President of Global Out
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