What is the Ideal Result in the Proposition 8 Case for LGBTQ Rights Supporters?

It is very likely that the Supreme Court will issue its decision in Hollingsworth v. Perry tomorrow morning between 10:00 and 10:30 a.m. EST. So, on the eve of “the decision”[1] here is my question: what is the ideal result for LGBTQ rights supporters?

The answer may not be as obvious as seems. Consider why the right to marry is so important. It’s not, for example, the tax advantages. No, it’s the social impact of the institution of marriage that makes the issue important. What really matters is not whether the law allows two women to marry one another. What matters is that when those two women present themselves as a married couple, others recognize their marriage as equally legitimate, proper and socially acceptable as any other marriage.

That is why marriage is important. But if, tomorrow morning, the Supreme Court announces that the Constitution grants a right to same-sex marriage in all 50 states, that ruling will rob same-sex couples of at least some of the dignity that could eventually come by winning the marriage battle through the democratic process.

What has happened in the last few years in this country is nothing short of a social revolution. Politicians are suddenly falling all over themselves to indorse same-sex marriage. An active professional athlete has come out. Even this year’s Super Bowl brought out support for gay marriage.

Granted, the political process is working far too slowly for many LGBTQ rights supporters. Victories came in Washington, Maryland and Maine last November. Yet 12 out of 50 is not that high of a number. [2]

So, yes, the political process is slow. But it may ultimately be better than the alternative. If the Supreme Court decides the same-sex marriage issue, the resulting reaction could be much like the reaction to Roe v. Wade, which effectively froze public opinion about abortion at a time when the pro-choice movement was making progress.

None of this is to say that the Supreme Court should delay making a decision. If the Constitution guarantees a right to same-sex marriage, as I believe it does, the Court should hold as much. A gay man denied the right to marry another man today is robbed of a fundamental right just as much as black child would be robbed of a fundamental right if prevented from going to an all-white public school, or a woman would be robbed of a fundamental right if she were banned from voting.

But the ideal result tomorrow morning for the progress of the LGBTQ rights movement might just be the same as what I believe is the most likely result: an incremental step toward a bigger ruling years down the line. What really matters most is whether millions of Americans see same-sex marriage as legitimate in their minds, not whether Justice Kennedy believes it is protected by the Constitution.


[1] Lebron ruined this phrase for at least a decade, didn’t he?

[2]  Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Maine, Maryland, Washington, Delaware, Minnesota and Rhode Island (how is Illinois still not on this list?)

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One Response to What is the Ideal Result in the Proposition 8 Case for LGBTQ Rights Supporters?

  1. villagebear says:

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