One Giant Leap for Equality

The incredibly historic rulings by the U.S. Supreme Court (SCOTUS) on marriage equality remind me of another improbable feat. As Neil Armstrong said upon setting foot on the lunar surface, “One small step for [a] man; one giant leap for mankind.”  Before the 1960’s nobody thought we could land a man on the moon but we did on July 20, 1969.  We are now approaching the 44^th anniversary of that astounding occasion.

The SCOTUS decisions similarly could not have been predicted just a few years ago given what the Court has wrought over the years including Bush v. Gore, Citizens United, and just the day before the marriage rulings were handed down, the lamentable decision on the Voting Rights Act.

I always thought that the 1996 Defense of Marriage Act or DOMA would collapse under litigation based on the equal protection clause of the U.S. Constitution.  And some lower courts saw it the same way.  Yet, SCOTUS with its conservative tilt and conservative Chief Justice, seemed like the time was not quite right to make bold progressive rulings in arguably the most significant civil rights issue in decades.

Bold they weren’t in the case of Proposition 8 in California. Rather than ruling that same-sex couples everywhere in the U.S. have the fundamental right to marry, the Court punted.  The case went back to the lower court because those who appealed that decision to strike down Prop 8 lacked the legal standing.   This meant that same-sex couples in California regained their right to marry. 

As for Section 3 of DOMA, SCOTUS decided by a vote of 5-4 that the federal government must recognize the lawful nuptials of same-sex couples, thus conferring over 1,100 rights, benefits and responsibilities.  That decision applies only to the 13 states (including California) and D.C. where such marriages are valid.

President Obama, arguing that DOMA was unconstitutional, refused to defend it in court and later filed a brief that attacked DOMA on the merits.  The administration is currently taking steps to broaden the benefits of the SCOTUS ruling by moving swiftly to revise regulations so that same-sex couples in states where marriage equality does not exist, can tie the knot in any of the other 14 jurisdictions and receive federal benefits and protections.  

Moreover, the entire DOMA could eventually be scuttled as Senator Diane Feinstein (D-CA) immediately re-introduced the Respect for Marriage Act in the upper chamber.  It would repeal DOMA and require the U.S. federal government to recognize the validity of same-sex marriages regardless of what state the couple lives in. The number of co-sponsors has increased sharply from 17 just two years ago to 40 presently.
An identical bill was introduced into the House by Rep. Jerrold Nadler, (D-NY) with the support of 160 co-sponsors, including at least two Republicans.  Alas, this measure will not advance soon as the tea party caucus continues to dominate the GOP-controlled House, and they are not ready to drop DOMA.

The Republicans can’t help themselves.  All that post-election talk about “expanding their tent” evaporated into thin air and not just in terms of their attitudes towards women and immigration reform.  They continue to maintain an anti-gay posture and seem to be stuck in that mire while the rest of the country is moving forward.  House Speaker Boehner and others denounced the SCOTUS decisions proving that the GOP is still enmeshed in and controlled by base politics. 

While the SCOTUS rulings do not have wide applications, what did come down justified the celebrations.  For one thing, the Court could have gone the other route and upheld Prop 8 and DOMA.  That would have been a significant setback for marriage equality advocates, and positive change would be perhaps a generation away.  But this Court, albeit narrowly, handed down decisions that should pave the way for favorable outcomes in the near future.

Emboldened by the SCOTUS rulings especially on DOMA and a surge in public support for marriage equality in recent years, advocates in several states are seeking to overturn existing bans to same-sex marriage via their legislatures or at the ballot box.  Furthermore, it is almost guaranteed that there will be a wave in lawsuits in the non-equality states based on violation of the equal protection clause and the precedent established in the SCOTUS majority opinion. 

Going into the last week of the Pride month of June, many folks were optimistic even hopeful about the Court’s rulings but cautious considering the make-up of the Court.  Justice Anthony Kennedy, who had written the majority opinion in Lawrence v. Texas exactly ten years before that ruling de-criminalized sodomy, was considered the “swing” vote.   But many viewed him as unpredictable based on his stated concern during the oral arguments phase last March about venturing into “unchartered waters.”

Nevertheless, as was the case with the Apollo mission, SCOTUS defied the odds and doubts and came through when few imagined it possible say, four years ago.  And because of the now favorable possibilities, this was indeed one giant leap for equality and the beginning of a new frontier.