A Step Forward

Today was the big day at the Supreme Court, when two rulings were handed down in major marriage equality cases: United States v. Windsor and Hollingsworth v. Perry. I felt that I couldn't just do a "normal" blogging day without acknowledging the rulings... and yet my opinion is considerably more reserved than the chorus of "We did it! Equality!" I see across my social media.

Reviewing is what I do here at the blog the vast majority of the time. In that vein, if I were to review today's two Supreme Court rulings, I'd give them a C+.

There's no denying that yes, progress was made today in the slow march toward marriage equality. Legally married couples in the 12 (now 13) states that allow same-sex marriage will now enjoy the full benefits of their marriages -- more than 1,100 federally granted benefits, only one of which (inheritance tax exemption) was at issue in the Windsor case. Also, adding California to the "win" column is huge. It's the most populous state in the U.S., and adding it to the other big equality wins of the last nine months now means around one-third of the country's population lives in a state recognizing marriage equality.

Of course, it leaves two-thirds of the country, living in the other 37 states, with more battles to fight. And the nature of the court rulings today don't provide a great deal of additional ammunition in that fight.

The ruling in Perry was, as many expected, a punt. The Supreme Court ruled on a jurisdictional aspect of the case, avoiding entirely the question of whether it is constitutional to deny same-sex couples the right to marry. Instead, the Court found that the proponents of the ban itself, having lost their case in a lower district court, could show no injury enabling them to appeal their loss to any higher courts. That's of course true, and a major point in the equality debate centers on that: "how does allowing other people to marry in any way negatively impact your marriage?" But it leaves us without any kind of precedent on which to hang future court cases.

Windsor was little better, failing to establish valuable legal precedent for gay rights on two fronts. First, like two big Supreme Court cases before (Romer v. Evans and Lawrence v. Texas), it declined to establish gays and lesbians as a class worthy of anti-discrimination protections similar to those in place on the basis of race, gender, national origin, and so forth. That would have been the brass ring that would have made nationwide marriage equality an imminent inevitability.

Second, the Windsor ruling did not rely exclusively on Equal Protection rights -- the Fifth and Fourteenth Amendment guarantees that all people are equal under the law. Instead, it conflated that principle with the Tenth Amendment principles of "state sovereignty," that marriage has always been left to states to decide for themselves, and that therefore the federal government had no business passing a law (the Defense of Marriage Act) to enshrine a nationwide definition of marriage. Had the Court been solely on Equal Protection ground, a clear legal path forward would be laid out. Instead, this "states rights" hedge provides a substantial handhold for the argument that states are perfectly within their rights to pass marriage bans. Essentially, both sides got points to cite for the next round of legal wrangling.

So really, today's rulings amounted to almost the smallest possible outcome that could still be considered a win. Worth tossing back a drink in celebration, but not worth partying in the streets. A C+. As of tonight, the best path forward is probably the same as the one we had a few months ago: hope that Justice Roberts, Alito, Thomas, or (please, oh please) Scalia retire or die by the time the next big gay rights case reaches the Supreme Court.