The court’s conservative justices are so worried about agency overreach that they’re threatening the strongest...
Here are five reasons why:
1. It never would have agreed to hear both the California case against Prop 8 and the New York case against the Defense of Marriage Act unless it was prepared to knock the whole edifice of discrimination down. It could have taken one of the cases only, and settled for a narrow ruling. But instead it seems to be reaching for a broad one.
2. It must know that history is against these bigoted laws, and the American people are against them, as the public opinion polls show and as the voters indicated on Nov. 6 in Washington, Maryland, Maine, and Minnesota.
3. The dream team of Theodore Olson and David Boies, who clashed in Bush v. Gore, are now on the same side, defending the right of same-sex marriage in California. They are sure to make formidable arguments before the court.
4. Justice Kennedy, the traditional swing vote, was the author of the two biggest Supreme Court decision so far upholding gay rights. He wrote the decision in the 1996 Romer v. Evans case, which affirmed the right of gays to bring discrimination suits. The Colorado amendment banning such suits was improper because "homosexuals are forbidden the safeguards that others enjoy or may seek without constraint," he wrote. He also noted that the amendment "lacks a rational relationship to legitimate state interests."
And he wrote the classic 2003 decision in Lawrence v. Texas, outlawing the laws against sodomy. Of homosexuals, he wrote: "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." The logic of his two decisions should propel him to grant the right of same-sex marriage.
5. Chief Justice Roberts may conclude that it is better for the credibility of the court to side with the liberals than to put his stamp on bigotry. He broke ranks with his conservative brethren in the health care case. And this is an easier one than that one. It is not all wrapped up in the anti-Obama campaign. And surely Justice Roberts must personally know gay lawyers and lesbian lawyers. Surely he must have a gay or lesbian friend or two. On a personal level, it should be hard for him not to recognize that they deserve the same rights as he does. That, after all, has been the great triumph of the gay rights revolution: the person-to-person persuasion. And it should prevail even on the highest court.
If you liked this story by Matthew Rothschild, the editor of The Progressive magazine, check out his story "Mazal Tov to Dan Savage and Terry Miller on Their Wedding."
Follow Matthew Rothschild @mattrothschild on Twitter.
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