Bill Keller, writing in the New York Times, opines that the Supreme Court's Justice Anthony Kennedy, thought by those in the know to be the swing vote on the Court, would stop short of full marriage equality, but wishes, for the sake of couples in Mississippi or West Virginia, that he wouldn't. He suggests that Boies and Olsen, that dynamic duo of marriage equality Supreme Court lawyers, could write a brief targeted at Justice Kennedy that highlights Justice Kennedy's own decisions in this area, such as Roemer v. Evans, which held that a state law, prohibiting local ordinances against anti-gay discrimination, is unconstitutional, or Lawrence v Texas, which held that state anti-sodomy laws were unconstitutional.
But Justice Kennedy knows better than anyone in the world where the fault lines in his own decisions lie. His deliberate ambiguity in those decisions, spawning hundreds of law review articles speculating what he meant, can be read in a lot of different ways, and no one knows that better than Justice Kennedy.
While it is understandable that we should wish to believe, with the fervency of the oppressed, that we will be saved, that is a different matter altogether from the likelihood that it should be so. It should not blind us to the consequences of heedlessness. There are times to be bold, but this is not one of them.
Law is tricky. It seems to say one thing, but upon reflection there is usually a pretty good argument for exactly the reverse. The phrase "equal protection of the laws" seems to mean everyone must be treated equally, but its interpretation in the courts limits this only to those who are already " similarly situated." Gay people are not seen as similarly situated, though that is changing. Justice Vaughn Walker's decision in the United States District Court in California, finding that denial of marriage equality is, by definition, always a violation of equal protection, was very welcome and very affirming, but it was a decision of the lowest federal court. There's a long way between there and the Supreme Court, and don't be fooled into thinking that it can't all be undone, and worse, much, much worse, at the Supreme Court level.
The much clearer-eyed Ninth Circuit decision charted a totally different course from the rosy-glassed Judge Walker. Its much narrower opinion rests on much firmer legal ground. Thus, the Ninth Circuit's reasoning is much more likely to prevail. It ruled that a state need not grant marriage equality, but that once it does so, as California did, it needs a legitimate governmental justification to remove it. Boies and Olson deserve credit for their plucky courage, but a bad precedent could haunt us for decades.
I agree with William Eskridge, quoted in the Keller op-ed, a Yale Law professor and one of the most astute observers of the court in this area, that asking for too much could be disastrous. If Boies and Olsen demand full equality before the Supreme Court, offering no quarter for a middle position, such as that found in the Ninth Circuit opinion, then Justice Kennedy may conclude that he has to decide between the old and important concept of state sovereignty and an expansion of the concept of equal protection into uncharted waters. Not a position we want to put a friend In.
I am unsurprised to find that my position has stirred up some anger amongst my friends and loved ones. "But," they say passionately, "it's wrong to say we're unequal!"
Yes, it is wrong. But there is much wrong in the world. Incrementalism is a nasty word in my book. But unlike legislative initiatives, which usually do not involve lady-or-the-tiger disastrous either/or alternatives that can grant absolute vindication or the death penalty, a Supreme Court interpretation is a dangerous high stakes poker game. If they decide that "equal protection" applies to same-sex marriage, then glory hallelujah. If they decide that it doesn't, then then that decision is unlikely to be changed for decades. As an example, the Supreme Court's overturning of its 1986 Bowers decision that upheld the sodomy laws in only 17 years was hailed (or decried) as unbelievably quick. If this case goes to the Supreme Court (which is far from clear, to my mind), let's make sure not to blot our copybook and create a mess that will take a few decades to sort out.