Gays Head For The Supreme Court

Let me start by saying, as I often do, that Massachusetts remains ahead of the San Francisco Bay area as a liberal icon for the disdain of conservatives, and those jealous left coasters are desparately trying to regain some cred by getting their gay marriages back. 

Anyway... Yesterday's ruling overturning the "Prop 8" ban on same-sex marriage made me think of a conversation I had with a leader of a religious anti-gay organization in the South, right after the Goodrich ruling in Massachusetts in November 2004. Unlike some others on that side of the debate, he was not acting shocked and surprised. Instead, he said that this was inevitable after the Lawrence v Texas Supreme Court ruling overturned anti-sodomy laws the previous year. That was why he and others in the movement fought so hard on Lawrence, he said -- they understood that, unless homosexual relationships could be defined as outside the boundaries of legal conduct, there was really no justification for denying marriage certificates to same-sex couples.

Initially I wasn't sure he was right. But it didn't take long for me to be convinced, because the legalistic arguments for the acceptability of the ban, including the ones by judges in other states' decisions, have been so transparently bogus.

Three of the six majority justices in Lawrence are still on the court -- including Anthony Kennedy, who wrote the opinion. He could very well be the swing vote when, as seems almost inevitable, Prop 8 gets to the Supreme Court. It will be interesting to see whether he, too, finds a state ban on same-sex marriage inconsistent with his own earlier decision.

Of course, there will be two new justices, whose views we don't know but most folks seem to assume will be on the side of the gays: Sotomayor and (as of later today) Kagan. It would be somewhat ironic if they clear the way for gay marriage, which is opposed by the President who appointed them -- a stance that Vice President Joe Biden quickly reiterated on Obama's behalf yesterday.

When I first got news of the ruling, I wondered whether it might scuttle the Kagan confirmation. Democrats have reportedly just barely cobbled together the 60 votes they need to stop the Republican fillibuster, but you never know if a more conservative Democratic senator might feel the need to retract that support with gay marriage suddenly in the headlines. Newt Gingrich put out a statement yesterday declaring that the Prop 8 ruling makes blocking Kagan's confirmation even more critical; I don't suspect any Blanche Lincoln types care what Newt says, but they might care if their home-state newspapers are editorializing the same thing today.