Supremes waffle on marriage equality

By Weekly Archive On Apr 3, 2013

By Bill Press

Over the last 40 years, I’ve been involved in a lot of political battles for a lot of different causes: workers’ rights, women’s rights, gay rights, environmental protection, anti-war, anti-nuclear power, anti-urban sprawl, animal rights, gun control, clean air, open space, small farms, global warming. But I’ve never seen the public turn around and embrace any issue faster than marriage equality.

Consider. It was only nine years ago that anti-gay marriage initiatives were on the ballot in 11 states. Every one of them passed. In 2008, neither Barack Obama, Joe Biden, nor Hillary Clinton supported same-sex marriage. One year ago, you could find a unicorn on the Washington Mall easier than you could find a politician of either party who supported marriage equality. Sen. Dianne Feinstein was a rare exception. Today, Democratic politicians are tripping all over themselves to get on board – starting with President Obama himself.

In the last week, seven senators have announced a change in position on same-sex marriage, from opposition to support: Republican Rob Portman; Democrats Jay Rockefeller, Mark Begich, Mark Warner, Claire McCaskill, Jon Tester and Kay Hagan. It’s likely more will by the time you read this. Why? Because, a year ago, especially for Democrats, it was considered political suicide to endorse marriage equality. Today, it’s political suicide not to.

How disappointing, then, to see nine Supreme Court justices waffle on the issue. Sure, they were uniformly strong in questioning the constitutionality of the Defense of Marriage Act, or DOMA, signed into law by President Bill Clinton in 1996. But that’s easy. The Obama administration won’t enforce the law. Rand Paul says it violates states’ rights. Even Clinton admits it was a mistake. Everybody knows DOMA is doomed. And that’s a big deal, because overturning DOMA will extend to gay couples in the nine states plus the District of Columbia that recognize same-sex marriage over a thousand advantages, including Social Security survivor benefits, now enjoyed by heterosexual couples under federal law.

It was on the second marriage equality case before them, California’s Proposition 8, that the justices signaled a lack of moral courage. In their oral arguments, rather than focus on the merits of the issue before them, six justices spent most of their time complaining about why the case was before them at all. Why do we have to deal with this issue now? What’s the rush? After all, cried Justice Alito, gay marriage is "newer than cellphones or the Internet." Oh, stop whining and do your job.

If, as expected, the court does nothing more than reject Prop. 8 on procedural grounds, thereby making same-sex marriage legal again in California, but not in all 50 states, it will miss its historic opportunity to resolve the dominant civil rights issue of our time and set this country in a proud, new direction. Under the Fourteenth Amendment, there’s simply no justification for denying any American "equal protection of the laws," which explains the laughable argument against marriage equality presented to the court.

Appearing for Prop. 8 supporters, attorney Charles Cooper mainly argued that gay couples should not be allowed to marry because they’re biologically incapable of fulfilling the primary purpose of marriage, which is procreation. Oh, really? What about straight couples who get married and never have children? Should they be required to divorce? Have kids or else? And what about a man and woman beyond child-bearing age? Should they be allowed to get married at all?

Perhaps Cooper doesn’t realize that many churches today no longer teach that having children is the number one reason to get married. In his wonderful new book, "God Believes in Love," Gene Robinson, Anglican bishop of New Hampshire, notes that the Episcopal Church prayer book puts the purpose of marriage in its proper perspective. Two people get married "for their mutual joy; for the help and comfort given one another in prosperity and adversity; and, when it is God’s will, for the procreation of children…" Note: having kids comes third. And, even then, only "when it is God’s will."

While regretting the apparent timidity of the court, we can still take comfort in the fact that the American people are way ahead of the justices on this issue. In the latest Washington Post/ABC poll, 58 percent of Americans now support marriage equality. So, no matter how hard they try, the justices can’t turn back the clock. Same-sex marriage is here to stay. Next issue, please!

Bill Press is host of a nationally-syndicated radio show, the host of "Full Court Press" on Current TV and the author of a new book, "The Obama Hate Machine," which is available in bookstores now. You can hear "The Bill Press Show" at his website: billpressshow.com. His email address is: bill@billpress.com.