The Brits have a holiday they used to celebrate but they don’t much bother with now – Guy Fawkes Night – because few people now remember the Gunpowder Plot and why it’s important to hate the Pope. The new Pope we have seems like a fine fellow, but on November 5, 1605, Guy Fawkes was caught in the process of trying to blow up Parliament. He was in the basement with the gunpowder and ready to set it off – and they grabbed him. There’s not much point in rehashing the conflict between England and the Church of Rome from Henry VIII forward. It was a nasty business that compounded religion and politics and the struggle for international power and influence in an odd brew, and led to long wars and much death, and is still sputtering along in Belfast these days. Fawkes was a jihadist of sorts, a suicide bomber – for the Catholic Church and for his religion. Such folks are always dangerous. They still are, and the fading British holiday was always a matter of thanksgiving, a celebration of the day they grabbed a religious terrorist, and the day Parliament didn’t blow up. Parliament also didn’t blow up on any other day in history, and it’s unlikely to blow up anytime soon, if ever, so this makes this particular holiday a bit off. It’s a celebration of something that didn’t happen, on November 5, 1605, when it could have happened, but simply didn’t. That was the glorious day that nothing happened. British irony is subtle.
We may catch up to them. One day we may celebrate October 6, 2014, another glorious day that nothing happened:
The Supreme Court on Monday let stand appeals court rulings allowing same-sex marriage in five states, a major surprise that could signal the inevitability of the right of same-sex marriage nationwide. The development cleared the way for same-sex marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Gay and lesbian couples started getting married in those states within hours.
The decision to let the appeals court rulings stand – which came without explanation in a series of brief orders – will have an enormous practical effect and may indicate a point of no return for the Supreme Court. Most immediately, the Supreme Court’s move increased the number of states allowing same-sex marriage to 24, along with the District of Columbia, up from 19. Within weeks legal ripples from the decision could expand same-sex marriage to 30 states.
That means nearly two-thirds of same-sex couples in the United States will soon live in states where they can marry…
The Supreme Court did nothing, and the long and bitter fight over the issue of gay marriage is over, or it was over long ago. The Washington Post’s Eugene Robinson explains:
I don’t get to write the following words very often, but Justice Antonin Scalia was right.
Not about gay marriage, of course. Scalia is so antediluvian that he has trouble forcing himself to call it by its proper name. In his dissents, he tends to use the phrase “homosexual sodomy,” which he believes the states should be free to condemn and punish. His tone seems to long for the days of the pillory and stocks.
But he saw – more clearly than some justices, and more honestly than others – that the court’s decision last year striking down the federal Defense of Marriage Act was a landmark ruling that would ultimately establish gay marriage as an inalienable right.
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.
Last year’s ruling sought to walk an impossibly fine line. Ostensibly, it did not establish a right to same-sex marriage. But it made a powerful moral and constitutional argument for doing so. Scalia referred to this as “legalistic argle-bargle.”
He was right. This court had already established a right to same-sex marriage. Now, by doing nothing, they effectively admitted that:
In a host of rulings since then, federal appeals courts have been unanimous – and judges in the lower federal courts nearly so – in interpreting the Defense of Marriage Act decision the way Scalia did: a declaration that the government has no more right preventing marriage between two men or two women than between blacks and whites.
As ruling after ruling struck down state bans, whether enacted by statute or enshrined in state constitutions, legal analysts predicted the Supreme Court would have to weigh in with a clarification: Yes, we meant that same-sex marriage is a protected right, or no, we didn’t. The court surprised almost everyone by declining to revisit the issue at all.
It’s a done deal, because there’s nothing to talk about:
Since the various courts of appeal have so far come to the same conclusion, there’s no dispute for the Supreme Court to settle. If at some point there is an appeals court ruling to the contrary – holding that states do have the right to ban gay marriage – then at that point the justices could step in. But the court must be aware that by failing to act, it is giving the appeals courts a green light to proceed – and creating facts on the ground that will be all but impossible to erase.
Monday’s non-action means that many more same-sex couples will now be able to marry, and that their marriages – and others – will be recognized in more states. President Obama and Attorney General Eric Holder have taken steps to ensure that the marriages will also be recognized by the federal government.
Months and years will pass. The world will not come to an end. States will be unable to claim any compelling interest in banning gay marriage, since so many Americans will have survived its legalization just fine. It’s over.
The Brits have that one special day that Parliament didn’t blow up. We now have our one special day that our Supreme Court said there’s nothing to talk about here. As Paul Waldman notes – “Weirdly, there were no reports of straight couples rushing to get divorced or selling their children to the circus.”
At Slate, Mark Joseph Stern says we’ll just have to get used to this:
If no circuit court ever rules against gay marriage, the gay marriage question will be effectively settled, and the Supreme Court will never have to wade in again. It may be that the justices are hoping the lower courts rule uniformly on the issue – thereby making United States v. Windsor stand for a fundamental constitutional right for gay couples to marry. The tea leaves, at this point, remain hazy. But the court’s startling decision today suggests that no option is off the table.
In the New Yorker, Amy Davidson explains that the Windsor case was the case that applied to all fifty states:
Its name is Windsor v. United States and it was decided in the summer of 2013. Edith Windsor, a widow in her eighties, had challenged the Defense of Marriage Act (DOMA), which kept the federal government from recognizing state-sanctioned same-sex marriages. In Windsor’s case, that meant that she was left with a large estate-tax bill when her wife, whom she had nursed through a long illness, died. Windsor won, with the help of her lawyer, Roberta Kaplan. The thought at the time was that Windsor’s victory did not bring equality to any new state. (Although, arguably, no state truly had marriage equality before Windsor, given the constraints of DOMA.) But, as lower courts have read the Windsor decision, they have noticed that its language and legal reasoning, which invokes due process and equal protection, silently condemns state bans on same-sex marriage as well. And, one after the other, they’ve overturned those bans. If they keep doing so, the Supreme Court won’t have to rule again.
The Justices know that; if they thought that Windsor was being wildly misread, they could have used one of the cases Monday to stop them. They didn’t, and that is itself a clarification.
Noah Feldman thinks something else might be going on here, that perhaps the Justices didn’t want to incite a backlash:
Inevitability, it might be thought, is what the Supreme Court waits for before making any landmark decision. But in this case there is another major consideration: The justices are also worried about fueling a backlash that would render their decision illegitimate, even if it seemed inevitable. The great worry of the Supreme Court – or at least of Justice Kennedy – is that a premature gay-marriage decision would produce the kind of substantial public disagreement that followed Brown v. Board of Education and Roe v. Wade.
Cass Sunstein puts that this way:
Many people are stunned by the U.S. Supreme Court’s refusal to review any of the recent lower-court decisions requiring states to recognize same-sex marriages. They shouldn’t be. The court’s silence is a fresh tribute to what Yale law professor Alexander Bickel, writing in the early 1960s, called “the passive virtues.” For the Supreme Court, not to decide is often the best course, especially when the nation is sharply divided.
Bickel was no critic of the liberal Warren Court of the time. He vigorously defended Brown v. Board of Education, striking down school segregation. More broadly, Bickel believed that the court had an important national role as the arbiter of what was required by constitutional “principle.” Nonetheless, he thought that the justices had to be both humble and strategic. An aggressive insistence on vindicating fundamental principle could tear the country apart – and undermine the justices’ own goals in the process.
This had to be a quite subtle very big deal, but a big deal nonetheless, as Rick Hansen notes here:
Same sex marriage is about to be legal in the state of Utah. Utah! Ponder that for a minute. If you were going to pick one of the very last states that would legalize same sex marriage, it would have been this conservative state.
The fact that the Supreme Court, without saying a peep, is letting court-ordered same sex marriages go forward in Utah is a huge deal. Now you may think that this could well be reversed once there is a circuit split, perhaps in a case from the 5th or 6th Circuit. But remember, there will now be all of these children from legal same sex marriages performed until the Supreme Court could decide to take a case from another circuit. The idea that Justice Kennedy would let that happen, knowing there could well be a reversal down the line seems unlikely.
Instead, the conservatives on the Court probably see same sex marriage as inevitable, and will wait for a circuit split to make their last stand.
Heather Parton says there will be no heroic conservative last stand:
There are already a whole lot of gay parents (always have been, they’re just now able to parent together) and a whole lot of laws that are necessarily being created to deal with that new circumstance. Aside from the obvious moral obstacle of breaking up happy families, there will be the complications of untangling many legal issues. For now they’re letting it stay at the state level and that’s where the battle, what remains of it, will take place.
As of Monday afternoon, Sen. Mike Lee was the lone GOP member to issue a statement. His home state of Utah was one of the states where a marriage ban was overturned by an appeals court and the state is now moving forward with allowing same-sex couples to marry. Lee called the Supreme Court decision to not review the appeals “disappointing.”
That’s not exactly a thundering response, and Steve Benen hears no thunder anywhere:
I checked the websites for the House Speaker, House Majority Leader, House Majority Whip, and House Conference Chair, and combined, the four Republican leaders said a grand total of nothing. The same goes for the Republican National Committee, the National Republican Campaign Committee, and the National Republicans Senatorial Committee, all of which published literally zero words on the subject.
This issue seems to be dead now. In 2004, Karl Rove made the horrors of despicable gay marriage an issue in many states, but particularly in Ohio, and Ohio pushed George Bush over the top that year, and there was the Prop 8 campaign of 2008 out here in California, to ban gay marriage – the Mormon Church poured in tens of millions of dollars and it seemed like there was a fresh-faced Mormon kid on every corner here on the west side of Lo Angeles, straight off the bus from Utah, handing out fliers. That was pretty damned irritating, but all that may be over now.
The culture wars may be over. Benen points to Irin Carmon with this item regarding those Sunday morning talk shows:
If Republicans are so confident in their positions on abortion and contraception, why do they keep shying away from discussing them – or changing the subject to something different altogether? Nowhere was this clearer than in a recent interview by the head of the Republican National Committee.
On NBC’s “Meet the Press” on Sunday, host Chuck Todd asked RNC Chair Reince Priebus about his agenda, and then followed up with, “One of the things in here that you didn’t mention, there’s a lot of social issues. Why was that?” He added, “It seems like you’re nervous about it. Are social issues working against you guys?”
Is the sky blue? Reince Priebus didn’t want to talk about any of that stuff. He kept changing the subject. Now none of these folks want to talk about what the Supreme Court decided not to do. There was silence, except for who you’d expect:
Sen. Ted Cruz (R-Texas) on Monday slammed the Supreme Court for declining to hear appeals on lower court rulings that overturn same-sex marriage bans, calling the justices’ move “tragic and indefensible.” “By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution,” he said in a statement. …
“This is judicial activism at its worst,” Cruz said. “Unelected [circuit court] judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.”
Wait! The Supreme Court decided to do nothing. That’s judicial activism? But Ted Cruz is who he is. He is now calling for a new amendment to the Constitution, banning gay marriage, and he is also demanding that there be a plank in the 2016 Republican platform, clearly stating that the Republican Party is firmly committed to banning gay marriage, forever. If his party doesn’t agree to that, well, there will be trouble. They’ll be sorry they ever crossed him, and so on and so forth. Democrats smile. John Boehner rolls his eyes, and reaches for a drink.
How did this happen? Andrew Sullivan, the British-born gay Catholic conservative writer, whose conservatism owes more to Edmund Burke and Michael Oakeshott than to Rush Limbaugh and Glenn Beck, was one of those who made this happen, in books and essays and on his blog, and he offers this:
Unless the composition of the court changes, it now seems close to certain that every American citizen will soon have a right to marry the person they love. An idea that once seemed preposterous now appears close to banal. The legal strategy that Evan Wolfson crafted from the early 1990s onward – a critical mass of states with marriage equality before a definitive Supreme Court ruling – has been vindicated and then some. The political and cultural strategy we pioneered at the same time – shifting public opinion slowly from the ground up, tapping into the deepest longings of gay people to become fully part of their own families and their own country for the first time, talking to so many heterosexual men and women about ourselves for the first time – also succeeded.
There have been many moments when individuals have tried to take credit for all this. No one should. The reason we persuaded so many in so short a time is that so many unknown private individuals – from Thanksgiving tables to church meetings to office cubicles to locker rooms – simply told the truth about who we really are. It took immense personal courage at times – and each moment someone came out, more light, more reality, seeped into the debate. The reason so many attempted the apparently impossible was because we had seen at close hand what no marriage rights meant: as spouses were kept from spouses even at the hour of death during the AIDS crisis and as our children were at risk of being taken away from us, as we grew our families.
These were elemental issues of human dignity – not abstract arguments about federal benefits or “natural law”. And this was a moral movement about the inherent dignity and equality of all of us – tapping into some of the profoundest truths from the founding of this country, and the deeper truths of our religious traditions, still sadly incapable, in many cases, of expanding, rather than constricting, the boundaries of human love. What we have right now in America is the moral majority for the dignity of every person’s capacity to love and be loved. What we have right now is the defeat of fear and fundamentalism – the two most dangerous sirens of our time.
There is that, and Sullivan is pleased that the decision by the Supreme Court, not to decide at all, actually “affirms the power of federalism against the alternatives” in a good way:
Marriage equality will not have been prematurely foisted on the country by one single decision; it will have emerged and taken root because it slowly gained democratic legitimacy, from state to state, because the legal and constitutional arguments slowly won in the court of public opinion, and because an experiment in one state, Massachusetts, and then others, helped persuade the sincere skeptics that the consequences were, in fact, the strengthening of families, not their weakening.
That’s states’ rights, done the right way:
Every time a father holds back tears as his daughter marries her beloved, every time a child feels secure with her two dads or two moms, every time a young gay kid asks himself if he is really worthy because he is gay and now knows he can one day have a relationship like his mom and dad and feels less tormented and less alone: these are the ways we humans can grow and become what we fully can be. This is an expansion not just of human freedom, but of human love.
It is so easy today to see horror all around, anger surging, hysteria rising, fear spreading. But we see also in this remarkable, unlikely transformation the possibility of something much different: that human beings can put aside fear and embrace empathy, can abandon prejudice in favor of reality, can also see in themselves something they never saw before: an enlargement of the circle of human dignity.
It’s about time:
I think of all those who never saw this day, the countless people who lived lives of terror and self-loathing for so, so long, crippled by the deep psychic wound of being told that the very source of your happiness – the love for someone else – was somehow evil, or criminal, or unmentionable. I think of the fathomless oceans of pain we swam through, with no sight of dry land, for so long. I think of the courage of so many who, in far, far darker times than these, summoned up the courage to live with integrity, even at the risk of their lives. And I cherish America, a place where this debate properly began, a place where the opposition was relentless and impassioned, a country which allowed a truly democratic debate over decades to change minds and hearts, where the Supreme Court guided, but never pre-empted, the kind of change that is all the more durable for having taken its time.
Actually, they did nothing. That’s reason enough to celebrate. Any day nothing happens is a good day.