That Sound You Heard at the Supreme Court was the Starting Gun

July 9, 2013

The Shot Heard ‘Round The Courtroom 

By Robert B. Lowe

Amid all the celebrating and self congratulations accompanying the U.S. Supreme Court’s decisions recently on same-sex marriage was the unmistakable sound of a gun firing.  And the man with his finger on the trigger was none other than Justice Anthony Scalia, the court’s genius Archie Bunker.

 “No one should be fooled,” said Scalia in his flaming dissent in the Defense Of  Marriage Act (“DOMA”) case.  “It is just a matter of listening and waiting for the other shoe.”

Scalia added that the opinion of the bare majority of the court invalidating key provisions of DOMA “arms well every challenger” to state laws banning same-sex marriage.

Scalia was completely correct and by trumpeting his conclusion, he’s helped to speed up and clarify what should be the obvious next step for the gay and lesbian rights movement:  Get a direct challenge to a state’s same-sex marriage ban to the Supreme Court as soon as possible.

Prior to last week’s decision, there had been a lot of hemming and hawing within the movement about the best strategy going forward.  Anticipating favorable but limited decisions on DOMA and California’s Proposition 8, many thought the best tactic would be to continue the marriage equality fight at the state level.  The groundswell in public attitudes has been phenomenal and there is impressive momentum in the state-by-state approach with 13 states now sanctioning same-sex marriage.

Why risk an unfavorable Supreme Court opinion the next time around, the reasoning went.  Why give the conservative justices an opportunity to put on the books a controlling decision saying same-sex couples have no fundamental right under the Constitution to marry?  

But Justice Anthony Kennedy’s opinion in the DOMA case changed all that.  Instead of opting for a narrow ruling hanging his hat entirely on the notion of states’ rights, Kennedy and the majority went further, opining that the federal law had “the principal purpose…to impose inequality.”

DOMA’s provisions “degrade and demean…the personhood and dignity” of same-sex spouses that the New York marriage law sought to protect, said Kennedy.  He added that DOMA “humiliates tens of thousands of children now being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family.”

He and the other justices in the majority invoked the key parts of the Constitution that have been used for decades in civil rights and discrimination cases, saying DOMA violated the Fifth Amendment protection against the loss of equal protection without “due process.”

Just like DOMA, any state law banning same-sex marriage will be presumed to be motivated by animus and purely for the purpose of discriminating against gays and lesbians.   It will not be difficult to find state lawmakers railing against “aberrant lifestyles.”   In the California case, defenders of the same-sex marriage ban never did some up with a provable legitimate purpose for the marriage ban that courts could accept that wasn’t tantamount to pure bias.    

So, with Scalia pointing out all the flashing green lights to gay and lesbian rights attorneys, the discussion will be all about finding the best cases to push along down the judicial rails the fastest.   Those would include ones where state legislators have made the most outrageous anti-gay comments while approving the marriage bans.  A state supreme court decision favorable to same-sex marriage and highlighting marriage as a “fundamental” right presumably would be helpful. 

The gay-lesbian rights lobby will have to act fast.  Plenty of attorneys will try to push their local cases up to the ‘Big Show’ but those cases may not have a record of facts as helpful and clear cut as others.   The rule that “bad facts make bad law” is especially true with a divided court where only takes one defection can switch the outcome.

Plus, the window of opportunity may not stay open indefinitely.  Kennedy is 76.  Ruth Ginsburg, another of the slim majority, is 80.  President Obama presumably would appoint somewhat liberal replacements. But when his term ends in three years, all bets are off.

So the gunshot heard in all the hoopla last week was a starting gun.  And Scalia made sure everyone heard it.

(Robert B. Lowe is a Harvard Law School-educated lawyer.  His latest book, Divine Fury, is a mystery thriller about a gay man running for governor of California.)

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