On Friday, the Supreme Court announced that it would take on its first major case concerning gay rights since 2013.
The politics of gay marriage are well politicized, and the topic is an emotionally-charged one that intersects with concerns of legal equality, sexuality, family, adoption, love and religion.
Often, these politics defy traditional party lines, especially for younger Americans. While we typically perceive liberals as the primary same-sex marriage supporters, 61 percent of Republicans under 30 favor same-sex marriage, according to a Pew Research study. This new pro-gay marriage conservative surge has even manifested in a new campaign within the Republican party, titled Reform the Platform. On the other hand, there were ten Democratic senators in 2013 who still did not support marriage equality.
These discordances illuminate how gay marriage, in many ways, is not a simple political or governmental question, but one that is entangled in how Americans perceive their own culture.
However, within the world of law, emotional and “political” arguments (often shunned by judges) are surely subdued. This is an attempt to ensure legal objectivity. As judges interpret the Constitution and other laws in regards to gay marriage, themes of due process and equal protection clearly emerge. But these values are harder, and take longer, to apply to “newer” political campaigns. Advocates must work through the court systems, and often need to appeal decisions to create legal chance. Precedent is created slowly, and is cited until it becomes a governing judicial practice. Eventually, a case with enormous political and social entropy will arrive in the country’s highest federal courts.
The legal debate that surrounds same-sex marriage is more subtle, and infinitely more complex. Like any issue, working through the judicial takes time and delicacy. It also leaves many frustrated by a court system that seems slow to react to social and political change.
This is what makes the Supreme Court’s upcoming decision so huge.
In 2013, the justices ruled on both U.S. v. Windsor, determining the Defense Of Marriage Act (a federal law that limited marriage to heterosexual unions) unconstitutional, and Hollingsworth v. Perry, which struck down Proposition 8, a California ballot initiative on the basis of standing (a legal requirement that ultimately meant the decision did not have enormous legal “strength “to protect same-sex marriage rights).
Richard Wolf of U.S. News wrote: “Those rulings, while historic, did not resolve the threshold questions in the debate: whether gays and lesbians have a constitutional right to marry, or whether states have the right to ban the practice.”
At the center of the upcoming case, the result of which should be announced in April, is a question of legal balancing. The Court must weigh the a prohibition of “animus” and what Judge Jeffrey Sutton addresses as a democratic legal right of a state’s constituency to uphold a “long-existing, widely held social norm.” “Animus,” on the other hand, is what Indiana University at Bloomington law professor Steve Sanders calls “a desire to disparage or injure gays out of fear, misunderstanding, or dislike.”
So while politics pushes to ideological extremes, often suffocated by homophobia, the country can hope that the Supreme Court will remain close to a more rational center. Even the more “conservative” justices seem cognizant of the arguments from both sides, while the Court’s liberal members have consistently delivered opinions along Democratic party lines.
On the subject of Proposition 8, Associate Justice Anthony Kennedy has asked, “There are some forty thousand children in California, according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”
Meanwhile, his peer and Chief Justice John Roberts has commented, in regards to the U.S. v. Windsor case: “You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?… As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
Associate Justice Antonin Scalia, who is often cited as being the Supreme Court’s most sardonic and right-leaning member, has questioned: “I’m curious, when—when did—when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”
Ultimately, whatever the Court’s decision, it is one that could potentially eliminate or solidify the 31 state laws that currently ban same-sex marriage.