Like that sign said 6 years ago at a protest in San Jose, this is not over and we will win. In fact, right before Pride weekend, we did win and the US Supreme Court ruled 5-4 in the case Obergefell v. Hodges, that, for the first time in America’s history, homosexual couples can get married in all fifty states and all states must recognize other state’s gay marriages.
While this is great news for all supporters of marriage equality, and it is time to celebrate as Chief Justice Roberts has said, I fear it could be just a moment of celebration before a potential onslaught of adversity against gay and lesbian couples. While liberty and justice have gotten a win for the short term, this narrow victory will likely incense conservatives for years to come.
Let me unpack Supreme Court voting a bit for anyone not familiar with it. While you only need a 5-person majority to make a decision and pass laws that is seen as something to avoid at all costs, especially when core civil liberties or civil rights are on the line. Usually, the majority strives for at least a 6-7 person vote in favor, ideally a unanimous vote if the issue is seen as very important and/or hotly contested.
The best analogies I can give to illustrate what I mean are the desegregation of schools and creation of abortion rights. When Brown v. Board of Education was decided in 1954, desegregation did not have wide support across the country like it did today, it was hotly contested because it dealt with highly important civil rights and civil liberty issues. Desegregation was so important that Chief Justice Warren did everything he could to get a unanimous 9-0 decision, including pulling a justice back to the bench for the vote, even though he had just suffered a heart attack and was on medical leave. Want to know why Brown v. Board of Education was never challenged? That is why.
Another core civil liberty is one’s right to be sovereign over their own body, including your right to an abortion should you choose to do so. When the issue first went before the Supreme Court back in 1973, they did not present the same united front that they had with Brown. When it came to abortion rights, the court could only muster up a 7-2 vote in Roe v. Wade, thus beginning more than a forty year onslaught on women’s reproductive rights that continues to this day. Notice the difference those two votes makes? Now ask yourself how confident you feel about Friday’s 5-4 decision. Then ask yourself how confident you feel about the fact that the legal precedent it builds on, Hollingsworth v. Perry, was decided not on the merits of the case but by standing alone. In Hollingsworth, the Court looked at who was the plaintiff in the case, felt they had no business to bring that suit, and said, effectively, ‘you can’t stand in this court room, get the hell out of here;’ without any care to the legality of marriage equality. That is being decided on standing.
Right now, marriage equality is legal because of a 5-4 decision that builds off a technical foul, and of course decades of other cases like Lawrence v. Texas, Bowers v. Hardwick, and the aptly named Loving v. Virginia. A 5-4 decision is better than a 4-5, it is better than nothing – but it is the next-best thing to nothing and historically in America that is a recipe for decades of legal battles.
I hope this explains why I may be celebrating less than other pride revelers. I worry about what is to come and the vitriol spawned by a divisive 5-4 decision. Still, 5-4 is the best we could hope for this with current court as it is the most conservative in US history. If that trend continues then I am *very* worried for the future of marriage equality.