David Cole has written a sharp analysis
of pending issues in the U.S. Supreme Court appeal of bans on same-sex marriage.
He goes into the nuances in clear fashion, but also has this simple conclusion:'
"At this point, the Court has only two choices: to vindicate the demands of equality and liberty, or to validate discrimination. There is no third way."
A friend who sent me this link comments:
equally applicable to the Arkansas Supreme Cowards
My friend is actually too kind to the Arkansas Supreme Court, dithering still almost a year after Circuit Judge Chris Piazza's historic ruling that struck down Arkansas's ban.
The Arkansas Supreme Court has not only federal constitutional principles to consider, but the state's own equal protection provision of the state Constitution. It has been used previously in a ringing declaration that gay people couldn't be prosecuted for sodomy. The state has also been rebuffed in attempting to prevent gay people from being foster or adoptive parents.
The choice is simpler for the Arkansas Supreme Court: Are Gov. Asa Hutchinson, the Arkansas legislature and Attorney General Leslie Rutledge right or wrong: Should it be legal to discriminate against gay people in Arkansas or not?
The arguments for legal discrimination have been reduced to this: We've always done it this way.
The argument of long custom — raised by Supreme Court justices — is a red herring. The U.S. law discriminated against black people. It discriminated against interracial couples. It discriminated against women. Customs change.
I'm reminded that my grandmother was no longer allowed to be a public school teacher in a small Louisiana community after she married. They didn't hold with married school teachers. Apparently there was a fear the presence of a married woman might give rise to thoughts among the students about what the teacher did when she went home, particularly if she turned up with a bulging stomach.
Discriminate or not?
Solicitor General Don Verrilli, arguing for the Obama administration, said:
And what I would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable, untenable, to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals. Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.
PS: A worthwhile reminder from the Human Rights Campaign
that even witnesses for opponents of same-sex marriage conceded that same-sex partnerships akin to marriage have been a fact of life for a millennia around the world, despite some musings by justices. That testimony is in the record of the landmark California case.