From Lawrence To Prop 8

Tomorrow, the Supreme Court hears arguments on California's "Proposition 8" law prohibiting same-sex marriage. The court has a number of ways it could go, potentially even ruling that such laws are unconstitutional everywhere in the country, although my guess is it's more likely to limit the scope to California.

I haven't seen much made of the fact that tomorrow is also the 10th anniversary of the Supreme Court hearing arguments on Lawrence v Texas — the case that, in my opinion, made legal same-sex marriage in the US inevitable.

Not just my opinion, mind you. Actually, it was the opinion, at the time, of the religious conservatives who were fighting it. Many of them understood perfectly well what was at stake, and discussed it explicitly.

By overturning the 1986 precedent, the Supreme Court declared that the state needs a better reason to criminalize homosexual relationships than 'I and/or my god thinks it's gross.' You need to have an actual legitimate state interest at stake — one that doesn't require a chapter/verse citation about divine retribution.

That was really the end of the constitutional argument against same-sex marriage, and, as I say, a lot of leaders knew it. Those who actually cared about the issue — as opposed to those who were more interested in sustaining the controversy — were even willing to say so, on the record. I quoted some a few months later, when the Massachusetts Supreme Judicial Court ruled in favor of same-sex marriage. Others — some of whom had just warned in their Lawrence amici briefs that it would lead inevitably to legal marriage — have kept up the rhetorical fight.

To be sure, nobody thought the Supreme Court justices, at that time, would actually rule that way. And nobody's sure they would do so now. It's plenty easy to come up with bad arguments to legitimate the obviously unconstitutional — see court rulings in New York, Washington state and elsewhere for examples. That's why the establishment gay-rights groups have not wanted to put a direct challenge to the Supreme Court yet; a ruling the other way would set a precedent that — like the 1986 sodomy ruling — would take longer to undo than waiting for the court to be ready.

But others were less patient, and that's why we have the case being argued tomorrow.

Ten years might not be quite enough time. But it's been a pretty remarkable 10 years, from a 5-4 decision on whether same-gender intercourse can be punished with jail time, to where we are now.

That ruling on that Lawrence decision argued 10 years ago tomorrow came down on June 26, 2003. If the court has decided to go all in for marriage, perhaps they'll chose that 10-year anniversary to rule on Prop 8.

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  • 3/25/2013 5:41 PM John Howard wrote:
    The special election is June 25, the day before the 10 year anniversary when they will probably announce their ruling. Could they have planned it that way? What effect do you think the impending ruling will have on the Special?
    Reply to this
  • 3/27/2013 9:38 AM Rob Fitzpatrick wrote:
    Great post.

    Lawrence was a 6-3 decision, not 5-4, but the point about progress in 10 years is right on.

    I don't see a substantive decision coming from the Supreme Court (which is probably a good thing right now, as you say). Whatever they do, I don't see it affecting our Senate race too much unless maybe if they uphold Prop 8. Support for same-sex marriage now is strong is Mass. and it's a settled issue here. Upholding Prop 8 could generate a backlash against social conservatism by supporters of equality in our election, any other result I don't see having any effect at all.
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