The fight for marriage equality is progressing each day. This week, the Supreme Court is hearing arguments about the constitutionality of two gay marriage laws: the federal Defense of Marriage Act (DOMA), United States v. Windsor, and California’s Proposition 8, Hollingsworth v. Perry. The hearings have the potential to help shape gay marriage equality laws for a long time to come. As the Supreme Court hears arguments on gay marriage rights laws this week, Gay Dating Blog decided to compile a list of their favorite 100 marriage equality blogs. Some of you might be interested in checking it out: http://www.gaydatingsites.net/top-100-marriage-equality-blogs.
The Human Rights Campaign’s push for marriage equality swept social media Tuesday as the Supreme Court heard oral arguments in the Proposition 8 case. The social campaign launched around 1 p.m. EST Monday afternoon, when the organization changed its Facebook profile picture from its iconic blue and yellow logo to the current red version.
“Red is a symbol for love, and that’s what marriage is all about,” Human Rights Campaign spokesperson Charlie Joughin told MSNBC.com on Tuesday. “We wanted to give people an opportunity to show their support for marriage equality in a public and visible way.”
Needless to say, this is a momentous week for LGBT rights and the Supreme Court. I can't say that I understand all of the arguments that were presented yesterday, and I doubt I will understand all of the arguments presented today. Most of the analysts of yesterday's arguments before the Court seemed to place Justice Kennedy as the major swing vote. Here are some of the arguments presented, as reported by The Huffington Post:
"Can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?" Sotomayor asked Charles J. Cooper, who is representing supporters of Prop 8’s ban on gay marriage. "Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?"
And when Cooper said Prop 8 supports "responsible procreation," Kagan pushed back. "If you are over the age of 55, you don't help us serve the government's interest in regulating procreation through marriage. So why is that different?"
Yet the liveliest moments came when Scalia asked Ted Olson, President George W. Bush's solicitor general and the lawyer for the two same-sex couples challenging Prop 8, "When did it become unconstitutional to exclude homosexual couples from marriage? 1791 [when the Bill of Rights was ratified]? 1868, when the 14th Amendment was adopted?"
Olson pushed back against Scalia's originalist view, asking him in return, "When did it become unconstitutional to prohibit interracial marriages?"
"It's an easy question," Scalia said. "At the time that the equal protection clause was adopted. That's absolutely true. But don't give me a question to my question."
"There's no specific date in time," Olson ultimately answered. "This is an evolutionary cycle."
Alito's issues with Olson's argument were more pragmatic. "You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet," Alito said. "On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?"
Yet Ginsburg noted that one of the decisions Cooper was relying on in the case was written in 1971, when “same-sex intimate conduct was considered criminal.” In that case, Baker v. Nelson, the Supreme Court dismissed a Minnesota man's attempt to marry his male partner as lacking a "substantial federal question."
Kennedy also said he was “trying to wrestle with” whether a same-sex marriage ban should be viewed as a gender-based classification, calling it a “difficult question.”
By the end of the argument, it was clear that Kennedy believed the Prop 8 proponents had standing to sue, that same-sex couples had the right to marry and that such a right extended to all states. Yet that option -- making same-sex marriage a federal constitutional right -- compelled him to search for an escape hatch.
It is unclear from yesterday's hearings how the Court might rule on Prop 8. It remains entirely possible that the Court might dodge the substantive question or rule on narrow grounds that only affect the State of California and not the rest of the country. Whatever it does, the rights of hundreds of thousands of families will be profoundly affected by whatever the Supreme Court rules on two marriage equality cases it is hearing this week. Without question, what the Court rules will make a difference in the short-term legal and political realities faced by same-sex couples.
But when Martin Luther King spoke about justice rolling “down like water and righteousness like a mighty stream,” he evoked the long arc of history that ultimately bends toward equal treatment and fairness for all. The Supreme Court may hurry the pace of justice or slow it down or dodge it altogether, but the sanctioning of anti-gay bias and legalized discrimination against gay families will someday soon be nothing more than an ugly relic of the past.
A decision in the case, Hollingsworth v. Perry, is expected by July.