I’ve just finished listening to (and reading the transcript of) arguments in Hollingsworth v. Perry before the Supreme Court.
If I were one of the justices I suspect I’d be thinking that the easy way out would be to deny standing to the proponents of Proposition 8. This would mean that the California district court ruling, that Proposition 8 is unconstitutional, would stand. In other words, same-sex marriage in California would be legal. But there would be no impact on the rest of the country.
Is that what SCOTUS will do? No idea. But it’s difficult to see what else they could do without sweeping national reform which I think most of the court would rather avoid. (I wonder if the justices who decided Roe v. Wade might today make a different choice with the benefit of hindsight. If that case had gone differently you could argue that there might not be such entrenched partisan feeling about abortion in this country today–not sure I believe that but you could at least make the argument. There again, you could also argue that many, many lives would have been unhappily affected if abortion had remained illegal in many states.)
In terms of tomorrow’s case, as a Supreme I’d strike down Section III of DOMA and ensure that in those states where same-sex marriage was legal all married people would have equal access to federal benefits. I can’t imagine too many people getting bent out of shape about that, and many, many people benefiting.
My thinking, in this hypothetical case, would be that in three or four years someone in, say, Mississippi would try to get married to her girlfriend, not be able to, and sue, and that case would end up at the Supreme Court. Where–with public opinion moving so fast in our direction that I believe many, many more states will by then recognise same-sex marriage–it would easily and not terribly controversially be found unconstitutional to deny marriage to said couples. And, lo! Nationwide marriage equality! Without entrenchment and political battles for the next fifty years. But I’m not a Supreme…
…And today, frankly, I’m glad. This whole notion of greatest-benefit-for-greatest-number-in-the-long-term, while sensible to a degree, is infuriating and unjust to all of us now, today. Solomon had it easy.
It’ll be interesting to listen to tomorrow’s arguments. At which point I’ll probably change my mind about everything…