The duty of the U.S. Supreme Court is to read the law, but its decision overturning the federal Defense of Marriage Act demonstrates how high court justices have two other areas of close study. The Supreme Court follows election returns, and the nation’s social trends.
“They live in this country: They swim in the oceans of culture,” Pam Karlan, co-director of Stanford University’s Supreme Court litigation workshop, and herself a former clerk at the court, told a workshop in California last weekend.
The tides on gay marriage have lately taken a dramatic turn: Opposition to marriage equality is ebbing. A recent Pew Research poll showed, for the first time, a majority of Americans in support of same sex marriage — a majority driven by personal encounters with a relative, coworker or close friend who is gay or lesbian. President Obama, who “evolved” into supporting gay marriage last year, was reelected in November.
Thirty-seven states still have prohibitions on marriage by couples of the same gender. Lately, however, opponents have suffered defeat after defeat. Washington, Maine and Maryland voted for marriage equality last November. Minnesota rejected a state constitutional amendment defining marriage as between a man and a woman. Legislatures in Minnesota, Rhode Island and Delaware have since enacted marriage equality.
“Today is a tragic day for marriage and our nation,” the United States Conference of Catholic Bishops began a statement after the DOMA ruling.
Bu the church’s self-described shepherds are out of touch with, and out of synch with, their flock.
A majority of America’s Catholics support marriage equality, according to polls. The decision overturning DOMA was written by a Catholic, U.S. Supreme Court Justice Anthony Kennedy. With the Court spurning California’s Prop. 8, Gov. Jerry Brown, a Catholic, jubilantly tweeted: ”I’ve directed California Public Health to advise counties to issue marriage licenses to same sex couples as soon as the 9th Circuit stay is lifted.”
Such Catholic governors as New York’s Andrew Cuomo, Maryland’s Martin O’Malley, Brown, and Washington’s then-Gov. Chris Gregoire have championed marriage equality.
The Supreme Court has responded to culture trends before. In 1967, it threw out laws forbidding interracial marriage, after a majority of states had jettisoned such legal bulwarks of segregation. The high court, in 1986 (Bowers v. Hardwick), upheld a Georgia anti-sodomy law. By 2003, with Judge Kennedy writing for the 6-3 majority, it decided in Lawrence v. Texas that sex acts between consenting adults are not the state’s business.
The current Supreme Court has a conservative majority: It has practiced judicial activism on the right, overturning 103 years of precedent on limiting corporate money in federal election campaigns, and striking a key section of the 1965 Voting Rights Act. ”This is one of the most conservative courts in American history,” said Nan Aaron of the liberal Alliance for Justice.
When Bowers v. Hardwick was being argued, then-Justice Lewis Powell observed that he had never met a gay person. He may or may not have been telling the truth, since one of Powell’s legal clerks at the time was gay. And Washington, D.C. may be the “gayest” city in the U.S., with an estimated 10 percent of its population being gay or lesbian.
When it came time for Lawrence v. Texas to be argued, however, the gay presence among court employees could not be ignored. The court’s gay former clerks showed up and sat as a block, Prof. Karlan related, last weekend. The clerks got surprised facial expressions from the bench.
“If you want to know why the Supreme Court is where it is, don’t look to Washington,” Karlan advised.
Well, you could look to THIS Washington. The marriage equality measure last November, Referendum 74, won support from major corporations, from the Seattle Metro Chamber of Commerce, with its Jeff Bezos of Amazon.com making national news with a seven-figure donation to the war chest.
As the Court threw out DOMA on Wednesday, the Seattle Metro Chamber celebrated, saying: “The chamber believes there is a strong business case for marriage equality, and we are proud to be one of only three major chambers in the country that directly engaged in the legal debate in support of this decision.
“With the xourt’s decision to strike down DOMA, same-sex sopouses in our state will now be eligible for over 1,000 federal benefits that heterosexual spouses now enjoy.”
The gay and lesbian communities have long had a presence — and political clout — in Seattle.
A business-professional lunch club, The Dorian Group, went public in 1976. In 1978, Seattle became the first city where voters rejected an effort to roll back an ordinance prohibiting discrimination against gays and lesbians. In the 1980′s, then-U.S. Rep. John Miller became one of the few Republicans to cosponsor federal legislation to an discrimination against gays. President Clinton, who signed DOMA, made a surprise appearance at a Human Rights Campaign dinner here in 2000.
But . . . When DOMA came before Congress’ upper chamber in 1996, freshman Democratic Sen. Patty Murray voted for it. A few years later, however, Murray was sponsoring legislation to repeal DOMA.
When the Supreme Court ruled Wednesday, Murray was demonstrating fervor for what is now a majority cause, in Washington but also across much of the country, saying:
“Today is a day of joy for all of the loving, committed LGBT couples across America, including the more than 2,400 couples who married in my home state of Washington this year, and for all of us who respect and support them . . . Today’s ruling is a true demonstration that the tide is turning, and it is turning rapidly across the country.”
– Seattle PI
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