What if everything's going to be fine?
News broke on Friday that the Supreme Court will consider both Proposition 8 and the Defense of Marriage Act in the context of US v. Windsor and Hollingworth v. Perry. This -- in part -- brought Iowa’s Varnum v. Brien back to my mind, especially the bit where it was written that “many leading the organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children.”
In other words -- it’s hard for any casual observer to imagine anything less than the winds sucked from countervailing sails. Love is a fact of life. Marriage is a fact of life. Lesbians, gays, bisexuals, and transgenders are a fact of life. Though SCOTUSblog points out that the court once called homosexuals as “persons afflicted with psychopathic personality” in 1967, it’s difficult to imagine violating the 14th amendment so flagrantly in 2012.
In terms of how the case might be decided -- well, Advocate thinks that the court isn’t “ready to get out ahead of American opinion on the question at Perry’s heart: Do same-sex couples have a fundamental right to marry under the U.S. Constitution?”
And while Advocate’s pretty much right in suggesting that section 3 of DOMA will probably be struck down -- the part of the law that federalizes the purview of marriage, which -- as the Massachusetts AG Office has correctly noted -- has historically been the purview of the states (cc: Massachusetts, New York, California, Washington, Iowa, Maine, Maryland, Vermont, Connecticut, the District of Columbia) -- I don’t know if they’re right to be worried about the court taking up Proposition 8. If we go back to Lawrence v. Texas -- and paraphrase a line from this article which appeared in the Harvard Law Review in 2009 -- there are certain matters which ought not be binding precedent.
If we re-visit the testimony of Hollingworth v. Perry and of Nancy Cott, George Chauncey, Helen Zia, Gary Segura, Gregory Herek, Anne Peplau, Edmund Egan, Dr. Ilan Meyer, and Michael Lamb, it’s difficult -- bearing that testimony in mind -- to argue against the psychological benefits of being married; it’s difficult to argue against 40 years of evidence showing that children raised by gay or lesbian parents are just as well-adjusted as anyone else; it’s difficult to argue against an already-established history of social discrimination; it’s difficult to argue that the courts find in favor of a law favoring discrimination against a minority when the text of the 14th amendment of the Constitution of the United States already says that --
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Not only does Hollingworth v. Perry seem exactly in line with Kennedy, it seems to me that Romer v. Evans is, too, wherein the Justice wrote that --
To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.
Keep in mind -- this was Colorado’s “Amendment 2,” not California’s “Proposition 8.” This was before Maine, Vermont, New York, Washington, Massachusetts, Connecticut and others.
And given the finding of fact in the Prop 8 and how the law is outlined in the Walker decision, I find it difficult to imagine that SCOTUS could defend section 1 of the 14th amendment in one breath by striking down section 3 of DOMA, and leave the chance for it to happen on a state level in the next.
Or -- let me quote Varnum v. Brien, which concerns same-sex marriage in Iowa --
The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of grievance. This court, consistent with its role to interpret the law and resolve disputes ...
It's not a perfect argument -- it's a damn hasty one, in fact -- but there's a space here that seems definable enough to suggest that everything will be fine, though I will -- obviously -- be returning to these arguments at the term continues apace.