THE BLOG

What If SCOTUS Says 'No' to Same-Sex Marriage?

01/14/2013 04:44 pm 16:44:08 | Updated Feb 02, 2016

In March the Supreme Court will hear two cases regarding the constitutionality of laws against same-sex marriage. There is a chance that the high court will rule against marriage equality. Ironically, that outcome could be a partial win for LGBTQ advocates.

By most logic -- human rights or public policy -- allowing same-sex couples to marry is the right thing to do. My gay and lesbian friends deserve the same dignity and tax incentives that I will one day receive when I marry. And they'll make great parents, too. In an America where two-parent homes are increasingly rare, how can we say "no" to more stable families?

Today society is slowly accepting same-sex marriage. Currently, nine states and the District of Columbia allow same-sex couples to marry. In the past decade public opinion on same-sex marriage has changed from majority opposition to majority approval. Prominent figures on the right, most recently Newt Gingrich, have begun switching their positions on the issue.

Though frustrating to some, change is gradual, and gradual change has three benefits -- benefits to which advocates of marriage equality might look if the court rules against a constitutional right to same-sex marriage.

Firstly, the slow pace of progress forces Americans to effect change via the ballot box. In the long run voters might see this process as more legitimate than a court decision. Here the lesson of Roe v. Wade is instructive. In 1973 state laws were becoming increasingly pro-choice when Roe abruptly granted women control over their bodies on a constitutional basis. The ruling quickly created a rallying cry for pro-life advocates. Today, liberals scrutinize judicial nominees' take on Roe and worry that a conservative majority in the Supreme Court could overturn the case. In spite of Roe, the abortion debate continues precisely because it hinges on a 5-4 judicial decision. Marriage equality could similarly suffer if it comes via the courts -- becoming an issue that we debate 40 years later and whose only protection is a contentious ruling.

Secondly, forcing communities to debate the merits of same-sex marriage also forces them to confront larger questions regarding sexuality. We need to solve a plethora of issues, from the bullying of LGBTQ children in schools to parents throwing children out of their homes simply for being gay or lesbian. If the court rules against marriage equality, activists must campaign for change in every state, encouraging interaction with the many Americans who believe an LGBTQ person is immoral. Will a state-by-state conversation about same-sex marriage change everyone's mind? No. But local conversations like these have already convinced millions of Americans to support marriage equality in the last 10 years. We can make people think differently.

Finally, if the court rules against LGBTQ advocates, the justices could also paradoxically give the Republican Party time to reform itself. Right now, it's difficult to be a gay Republican. I know a few, and they are not wholly welcome in either the LGBTQ community or the GOP. Why? Many gay Americans are expected to be "progressive" on issues from health care to defense spending, not just marriage. Meanwhile, a tradition of virulent homophobia stains the Republican Party, and that stain affects its entire platform, not just its stance on social issues. Right now, some leaders on the right are trying to transform the party's position on same-sex marriage, but if the court decides in favor of marriage equality, the GOP will lose out on the chance to reform. The party legacy will be homophobia, and people may continue to assume that all LGBTQ people must be Democrats.

Let's be clear: I am not arguing that marriage equality advocates should hold their cause hostage to the Republican Party's reformation. Rather, I'm noting that if a defeat in the courts occurs, a small benefit might come of it: Someone's sexuality would have no bearing in his or her perceived political affiliation in 20 or 30 years.

If the court rules for marriage equality this March, it will be a victory for advocates. But if the court rules against marriage equality, activists can take comfort in the fact that the result may contain silver linings for the LGBTQ cause.

This piece first appeared in the Yale Daily News.