Why Gay Marriage Will Win Regardless of SCOTUS Rulings

bf7c3 303x400 Why Gay Marriage Will Win Regardless of SCOTUS Rulings

Today is the first of two
consecutive days of oral arguments about marriage equality cases at
the Supreme Court. Come back to Reason.com later today for an
interview with our own Damon Root, who is covering the arguments
for us.
Here’s a snippet from a
Wall Street Journal op-ed by lawyers David Boies and Ted Olson,
liberal and conservative legal eagles, on why California’s
Proposition 8, which killed same-sex marriage in the Golden State,
should be overturned:

…laws like Proposition 8 cause devastating harm to gay and
lesbian couples and their children. Exclusion from the institution
of marriage marks those couples and their children with a badge of
inferiority. The damage this does to their hearts and minds is
immeasurable—and the damage it does to all of us and our belief in
the nation’s ideal of equality is incalculable.
For one to say that the Supreme Court should leave the question
of marriage equality to the political processes of the states is to
say that states should remain free to discriminate—to impose this
pain and humiliation on gay men and lesbians and their children—for
as long as they wish, without justification. The Constitution
forbids such an indecent result. It did not tolerate it in separate
schools and drinking fountains, it did not tolerate it with respect
to bans on interracial marriage, and it does not tolerate it

Whole thing here.
(Hat tip: Instapundit)
Boies and Olson specifically argue that the 14th Amendment,
essentially applies the Bill of Rights to the states, means
that state and local jurisdictions can’t deny basic rights to
individuals regardless of majority will or local preference. The
14th Amendment is a check on the states’ power to be “laboratories
of democracy” to allude to Justice Louis Brandeis’ evocative
phrase. And it’s a good thing that power is checked, since as Root
and many other have pointed out, the states are probably as often
of repression” as they are of anything else. Progressives such
as Oliver Wendell Holmes Jr. and conservatives such as Robert Bork
agree that, as Holmes’ once put it, very little should get in the
way of “the right of the majority to embody their opinions in law.”
Holmes put it back in the day, the 14th Amendment is
“perverted…when it is held to prevent the natural outcome of a
dominant opinion.” Yeesh.
There is real and ultimately irresolvable tension between the
idea that individuals have certain rights that cannot be legislated
away and the idea that the federal government’s power should be
limited. That’s one point of disagreement among libertarians about
marriage equality and a host of other issues, ranging from drug
prohibition to college entrance policies and more. What counts as a
fundamental right that should always and everywhere be respected –
and what counts as something that can modified or even proscribed
by a given unit of government (and under what circumstances)?
But in the end, the legal arguments being made at the Supreme
Court today and tomorrow aren’t why marriage equality will prevail
will contested social scientific findings matter in the long
run). It’s because public opinion is swinging definitively in favor
of treating gays and lesbians as citizens with full rights in every
possible situation. That in itself happened first and foremost by
gays and lesbians who refused to be denigrated in all sorts of
social, cultural, economic, and political situations, ranging from
the anit-police riot at Stonewall through books, plays, movies, and
even sitcoms that defended sexual preference as an individual right
that the state or society writ large could dismiss either as
pathological or criminal. Joe Biden, it turns out, was absolutely
when he said the Will & Grace had “probably did more to
educate the American public [about tolerance for gays and lesbians]
than almost anything anybody’s ever done so far.”
As can be seen from the growing
number of national legislators – Republicans and Democrats alike –
who are coming out in favor of same-sex marriage, law is often a
trailing indicator of where public opinion is either headed

or where it’s already arrived. As law professor Mark Tushnet
told me, “The Court can have some influence on the margins,
pushing things a little further in the direction that they’re
already moving or sometimes retarding the direction. But 10 years
down the line, the society’s going to be pretty much where it
would’ve been even if the courts hadn’t said a word about it.”
The end of de jure racial segregation in post-War America is
testament not just to how long and overdue the process of change
can be; it also shows how messy it is, often bouncing back and
forth between legal decisions, ;public opinion, and politics.
But once large numbers people fall on one side of an issue –
especially to a point where public denunciation and vilification of
the minority group is no longer tolerated in polite society – the
law will fall into line one way or another. And sooner rather than
Watch last year’s Why Gay Marriage is Winning:

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Why Gay Marriage Will Win Regardless of SCOTUS Rulings

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