When word reached a young Hunter S. Thompson fifty years ago in his snowy cabin in Colorado that John F. Kennedy had been shot earlier that day in Dallas, he lashed out in an angry letter to a friend. “No matter what, today is the end of an era. No more fair play,” he wrote. “From now on it is dirty pool and judo in the clinches. The savage nuts have shattered the great myth of American decency. They can count me in – I feel ready for a dirty game.”
Wednesday’s vividly written and sometimes fantastically angry opinions by Justices of the Supreme Court may not have resorted to gonzo language to summon partisans to arms in the battle over homosexuality’s place in American society, but they came very close.
Far from settling the contentious issue of gay marriage, the pair of decisions – both significant wins for gays and their supporters – virtually guarantee renewed efforts to broaden or limit gay rights. Because the cases stopped far short of establishing a federal right to marriage for same-sex couples, fighting over the issue will continue in courts, ballot boxes and legislatures throughout America, where gay marriage remains illegal in 35 states, according to the National Conference of State Legislatures.
The decisions – one a purely technical ruling that left in tact a lower court’s order that gay marriages may proceed in California and another that struck down only part of the1996 Defense of Marriage Act, which barred the federal government from recognizing same-sex marriages – did not even end the debate in federal courts.
In one of his most scathing opinions, Justice Antonin Scalia thundered his disapproval for Justice Anthony Kennedy’s opinion striking down part of DOMA, in which all four liberal justices joined. He saved special disdain for Kennedy’s final sentence, in which the majority-making swing voter asserted that no one should read the decision to suggest the court was ready to rule on the more fundamental question of whether the Constitution provides a right to gay marriage that trumps the state bans.
“It takes real cheek,” Scalia wrote, “for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
Scalia has a record of making accurate predictions along these lines. In 2003, the court issued the landmark gay rights case Lawrence v. Texas, also written by Kennedy, that made it illegal for states to criminalize homosexual conduct. In a bristling dissent read from the bench that day, Scalia predicted lawyers for a generation would be using language in Lawrence to advance arguments that gay marriage must be permitted.
He was right then and he’s likely right now. Kennedy’s opinion, despite his last-sentence disavowal, is shot through with language gay rights lawyers will read as powerful arguments that states violate the U.S. Constitution when they ban gay marriage. An example: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”
David Boies, one of the lawyers who argued against California’s ban, said Wednesday the logic of the DOMA decision provides every reason to believe the court is ready to strike down all gay marriage bans as soon as a suitable case reaches the court.
The nation’s leading voices against gay marriage seemed to agree. The Rev. Albert Mohler, president of the Southern Baptist Theological Seminary in Louisville, told CNN the decisions “takes us right up to the brink of nationwide same-sex marriage,” adding, “I think when you look at American history, there are many dates that stand in our constitutional history as what you might call standout, red letter days. This is one of those days.”
Gay rights groups treated the news as a historic accomplishment, proof that full marriage equality under the law could be as close as the next case to reach the Supreme Court. Scalia is worried they are right. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” he wrote.
But the immediate result of Wednesday’s decision will be more fighting, not a clear-cut path for victory for gay rights supporters. After all, gay marriage is still illegal in a majority of states. Until the Supreme Court decides to rule on a case that clearly tests whether those bans are permitted, the fight will take place in the states, one by one.
Gay marriage advocates have enjoyed a string of important victories in state politics recently, but bans on same-sex unions have a much better electoral track record overall. And despite Scalia’s concerns, the court had a chance, in its second case, to clarify the question of gay marriage for good. It stepped aside instead.
The case came out of California where U.S. District Judge Vaughn Walker ruled for the first time that the U.S. Constitution forbade a state from banning gay marriage. Voters in 2008 had approved Proposition 8, which changed the state constitution to ban gay marriage.
Former George W. Bush Administration solicitor general Theodore Olson and Boies joined together to challenge Prop 8 in federal court, a move that gay rights activists at the time thought was tremendously risky given the conservative makeup of the court and strong public disapproval of gay marriage at the time. But in a brilliant display of lawyering, Boies and Olson presented witness after witness that argued the ban on gay marriage was motivated mainly by animus toward gays and unfounded notions that children do better when raised by straight parents. They won a clear victory at trial. When newly elected Gov. Jerry Brown and other state officials refused to appeal the decision, the group of activists that had successfully launched the Prop 8 ballot initiative sought permission to appeal in their place.
On Wednesday, Chief Justice John Roberts wrote for a 5-4 majority, ruling that the Prop 8 proponents lacked standing to sue and dismissed the case on that technicality. That left in tact the lower court’s decision, clearing the way for California couples to marry, probably within a month.
But in a sign of things to come, the proponents vowed Wednesday to fight technicality with technicality, and seek to delay gay marriage in areas where local officials may be willing to risk legal challenge by denying marriage licenses to same-sex couples.
Brown and other officials, for their part, vowed to enforce Walker’s decision. And elsewhere, the American Civil Liberties Union announced a new drive to win Republican political support for expanding gay marriage rights in states where it is currently illegal.
A day after the biggest gay rights legal decisions in a decade, all that’s clear is gay marriage supporters won a battle on Wednesday. There will be a lot more fighting, in the courts and in the statehouses, before the war is over. “In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated,” Scalia wrote. “Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”