By the end of the day last Wednesday, things looked mildly hopeful for supporters of same-sex marriage. We won't know until June, though, how the Supreme Court will rule on the two cases it heard last week.
Few observers seem to expect that the court will issue a broad, sweeping ruling legalizing same-sex marriage throughout the nation. The most we can hope for, apparently, is that the court will rule that the Defense of Marriage Act is unconstitutional. That will give federal benefits to same-sex couples who have been married in the states where it is allowed. But that's only a few states. And in some of the Justices' comments and in the protests outside, we were reminded of how far we are from the end of homophobia and discrimination against the LGBT community.
The disconnect between several Supreme Court Justices and the real world was stark; makes you wonder whether they ever set foot outside their chambers. During the first day of the arguments last week, Samuel Alito worried that same-sex marriage is just too new for the court to know what to do about it.
Chief Justice John Roberts suggested that marriage equality is no big deal. "Same-sex couples have every other right," he said. "It's just about the label."
And helping decide the future of same-sex marriage is Justice Antonin Scalia, who has a history of making stunning anti-gay comments. "If we cannot have moral feeling against homosexuality," he said in a speech at Princeton late last year, "can we have it against murder?" (You can find other Scalia slurs on numerous news organizations' websites; just search for "Scalia comments about gays.")
Conservative religion has injected its own peculiar argument: that the purpose of marriage is procreation. (The New York Times' Maureen Dowd notes that Sonia Sotomayor was married but had no children, Clarence Thomas and his wife don't have children, John Roberts' children are adopted. And, writes Dowd: "What about George and Martha Washington? They only procreated a country.")
Despite all that, it seems possible that the court will get rid of DOMA. That will certainly be a step in the right direction. And for some marriage-equality supporters, that will be enough. In a New York Times article late last month, Georgetown University law professor David Cole urged the court to go slow. Eventually, he wrote, we'll get there. But, he said: "Prudence counsels that marriage equality should be allowed to continue gaining support in the states, and that a federal resolution should be left for another day."
The Brown v. Board of Education school segregation ruling, he warned, precipitated "a notorious backlash." Roe v. Wade "galvanized the anti-abortion movement, with political impacts that still linger."
The court shouldn't "impose a uniform solution on the nation now," he wrote. "Doing so could touch off civil resistance in the most conservative states."
So maybe the LGBT community should be patient, waiting until anti-gay Americans like Antonin Scalia get religion or die off. Maybe LGBT Americans should just suffer until every state grants them full rights.
Waiting has a cost, though. And those who counsel "prudence" need to tell us:
Which Supreme Court ruling carries the greater risk? Which threatens the greater tragedy? A broad one, finding the denial of same-sex marriage unconstitutional, possibly unleashing the "notorious backlash" Cole says we might face? Or the narrower ruling? That would provide federal benefits to same-sex couples fortunate enough to be married. But it would continue the governmental sanction of prejudice that has bred hatred, harassment, and discrimination and has resulted not only in humiliation but also in mental health problems and suicide.
And what does it say about this country's moral fabric when members of the highest court in the land join in the persecution of some of its citizens, defining them as lesser beings, not worthy of the rights of the majority?
Should the LGBT community just be patient, waiting until anti-gay Americans like Antonin Scalia get religion or die off?