The waiting game: Marriage equality and the Supreme Court
By Dr. Charles Beem
It has been nearly three months since the triumph of marriage equality in North Carolina, and it appears that the institution of heterosexual marriage has survived intact. For the LGBT community in North Carolina, it is the one bright spot in an otherwise dismal couple of years, which has seen this state slide from purple to red and all the attendant regression in health care, education, and civil rights that has accompanied the slide to the right.
Most notorious, of course, was the passage of Amendment One, a sucker punch thrown at the electorate in a May 2012 primary election in which a whopping 34% of registered voters participated, which, from hindsight, was sort of like a state passing a law prohibiting interracial marriage on the eve of the Supreme Court’s ruling in Loving v. Virginia (1967). After a federal appeals court declared the amendment unconstitutional last October, we witnessed the spectacle of conservative legislative leaders spending your tax dollars to try to defend the amendment, which reminds me of the soldiers who fanatically defended Hitler’s bunker from the Russians after he was dead!
Yet despite the momentous gains made for marriage equality in 2014, there is still cause to worry. Quite unlike the Warren Court that ruled unanimously in Loving in 1967, the current U.S. Supreme Court is quite obviously divided on an issue that a majority of Americans are coming to believe is a natural and logical, if not inevitable, progression of civil rights.
But this is not a court whose conservative wing is especially interested in extending civil rights, unless, of course, it is for corporations asking for “religious” exemptions to the “tyranny” of accepting LGBT people as equal citizens under the law. Last fall, many expected the Court to take up one of the many appeals as state laws and amendments prohibiting marriage equality fell like dominoes all over the country, even here in the Bible belt. But the decision not to rule on any of the appeals made a lot of sense at the time; as federal appeals courts were unanimous in their opinions for overturning these bans, while many jurists appeared to take particular delight in citing Justice Scalia’s dissent in U.S. v. Windsor in their respective opinions.
But then in November came the two-to-one ruling of the 6th Circuit Court of Appeals in Cincinnati which reversed District Court rulings that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee. In a convoluted way, the majority opinion managed to resurrect some justifications for banning gay marriage that echoed back to the defenders of Virginia’s miscegenation law. While the opinion was met with accusations of judicial grandstanding, most notably by Justice Martha Craig Daughtrey’s dissenting opinion, the ruling has made it virtually impossible for Supreme Court to continue to ignore the issue.
Supreme Court tea leaves are awfully hard to read. As of this writing, the Court has not yet agreed to take on any of the cases on appeal, but it has not granted any requests for stays in states in which lower courts have ruled in favor of marriage equality. Then there is the question of individual justices. We all know that Scalia, Thomas, and Alito would rule that the earth is flat if it furthered their conservative agenda. Chances are good that Kennedy will continue down the road he has already travelled, perhaps even emboldened by the seismic change in public opinion, and the near unanimity of lower court rulings.
The wild card here is Justice Roberts. With the liberals joined by Kennedy, there is a 5/4 majority to potentially pull off a LGBT version of Loving, binding on all fifty states. But will Roberts go along? There is so much discussion about Roberts and his alleged concern for the historical legacy of a court that bears his name. As we have seen here in North Carolina, marriage equality quickly became a non-issue, as it undoubtedly will when the Court finally puts the issue to rest on a national level.
The real question is whether Roberts is able to come to terms with the reality of LGBT equality under the law. Sixty years ago another conservative jurist, Earl Warren, not only recognized the inevitability but also the righteousness of the civil rights movement as he assembled a unanimous court around the 1954 case Brown v. Board of Education, which outlawed school segregation. Marriage equality is just the latest chapter in the history of the civil rights movement, but will Justice Roberts see it that way, or will he stick with his conservative cronies? Right now, all we can do is wait.
Dr. Charles Beem is a Professor of History at the University of North Carolina at Pembroke.