THE SEA CHANGE by default that took place on the U.S. Supreme Court’s annual official first day of business marked another turning point in the nation’s slow acceptance of marriage equality. The first Monday on October wasn’t even over and the most judicially activist Supreme Court in years had made history by doing nothing at all.
With its refusal to hear appeals from a quintet of states that challenged lower court rulings legalizing same-sex marriage — Indiana, Utah, Oklahoma, Virginia and Wisconsin — the high court resisted its own reliably conservative tilt on social issues, opening the door for the most sweeping and seismic shift in civil rights since the era of the civil rights movement.
The Supremes’ no-ruling ruling also paved the way for legalization in half a dozen other states under the same lower courts’ jurisdiction. The Associated Press reported Monday that residents of Colorado, Wyoming, West Virginia, North Carolina and South Carolina “should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court's review.”
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But the raw numbers of population are compelling. Sam Stein and Amanda Terkel of The Huffington Post reported Monday that: “The total population of those states, based on 2013 estimates from the Census Bureau, is about 190 million. Just over 60 percent of the U.S. population now lives in a state where marriage equality soon will be legal.
“Prior to Monday, that total was just under 44 percent -- if you discounted states where same-sex marriage was legalized but there were still court challenges. In all, the Supreme Court's decision on Monday set the path for an additional 51,579,771 people to live in states with concrete same-sex marriage rights.”
Richard Socarides, a gay-rights advocate and former adviser to President Clinton, told Politico that’s Monday’s news “is a terrific result, for now. It’s a little bit incremental, but I think it’s a fantastic result and we should celebrate today.”
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THE COURT’S consistently liberal wing has taken a wait-and-see approach, apparently content to watch how the state-by-state expansion of same-sex marriage plays out organically in the real world.
“The more liberal justices have been reluctant to press this issue to an up-or-down vote until more of the country experiences gay marriage,” Walter E. Dellinger III, acting United States solicitor general in the Clinton administration, told The New York Times. “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.”
And three weeks ago, at a lecture at the University of Minnesota Law School, Justice Ruth Bader Ginsburg warned that “there will be some urgency” for the court to act if the 6th Circuit breaks with the trend toward same-sex marriage accelerated on Monday. Otherwise, she said, there would be “no need for us to rush.”
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Lee’s statement, a weak retrenchment to conservative values, included a proposal that would make the issue of marriage equality subject to a hodgepodge of state laws. “Nothing in the Constitution forbids a state from retaining the traditional definition of marriage as a union between a man and a woman,” he said. “Whether to change that definition is a decision best left to the people of each state — not to unelected, politically unaccountable judges.”
Kate Nocera of BuzzFeed reported Monday that Texas Sen. Ted Cruz planned to introduce an equally improbable constitutional amendment “to prevent the federal government or the courts from attacking or striking down state marriage laws.”
Bryan Fischer, of the deeply conservative American Family Association, waded into the matter today on his radio program, condemning the Supreme Court ‘s “decision not to decide” amounted to the “de facto Roe v. Wade of sodomy-based marriage” by its “imposing on every state in the union marriage that is based on the infamous crime against nature.”
And the equally conservative National Organization for Marriage blasted the court’s passive action as “absurd,” “mind-boggling,” “wrong” and “illegitimate.”
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BUT THE historical parallels are inescapable. States and thought leaders railed much the same way during the civil rights era, when state governments throughout the Jim Crow South did all they could to short-circuit legislation on voting rights. Those same governments screamed like hell in the wake of Loving v. Virginia, the Supreme Court’s landmark 1967 ruling prohibiting bans on interracial couples.
Maybe it’s that history that’s compelled some other recent decisions not to decide. The Supreme Court’s strategy of punting on marriage equality happened before, in May, when Pennsylvania Gov. Tom Corbett — reading the handwriting on his own state’s wall — refused to appeal a district court’s lift of an 18-year-old ban on same-sex marriage.
After U.S. District Court Judge John Jones III struck down the 1996 Keystone State 1996 law that banned recognition of gay marriage, on May 20, Corbett said that, while the rescinding of the ban ran counter to his own personal beliefs, an appeal was “unlikely to succeed.”
Want another one? Today, in the wake of the Supremes’ announcement on Monday, the Springfield News-Leader reported that Missouri Attorney General Chris Koster clearly indicated that his state wouldn’t appeal a judge’s recent ruling lifting a state constitutional ban on same-sex unions, approved by voters in August 2004. “Missouri's future will be one of inclusion,” Koster said, “not exclusion.”
You couldn’t ask for a greater concession to the insistence of an idea whose time has come.
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HISTORY IS an antecedent series of events; making history is a process. What happened on Monday in the nation’s highest court is an acceptance, somewhere between grudging and full-throated, that making history can be as much a matter of getting out of its way as in taking a specific action on its behalf.
Some have characterized the country’s tidal shift on marriage equality as a “revolution,” but that’s only partly right. A revolution is by definition an exercise in the contrarian. It’s the ones who resist the inexorable transition taking place who make such changes a “revolution.”
For more and more of us — one recent poll says 60 percent of the country — what was silently ratified by the Supreme Court this week amounts to recognition of an evolution, the understanding that love goes its own way, it doesn’t answer to intellect or legislation, and it never has and it never will. It only responds to that deeper emotional truth; it reflects what James Baldwin said was the need “to go the way your blood beats.” And that blood in America is beating towards another embrace of what was once unimaginable and what is fast becoming, like before, irresistible.
Let Facts be submitted to a candid world.
Image credits: Gay couple in Seattle: Associated Press. Marriage equality map 2014: The Huffington Post. Ginsburg: Flickr via thenewcivilrightsmovement.com. Cruz: C-SPAN. The Lovings of Virginia: public domain.