Unless this historically conservative Supreme Court pulls off a shocker and finds a constitutional right to same-sex marriage, we seem almost certainly headed toward a series of state-by-state skirmishes over the issue, which creates its own set of political risks and rewards.
While the speed with which public opinion has shifted on the issue is remarkable and the momentum (to extent there is such as thing as momentum in politics) seems to be on the side of gay rights advocates, a Supreme Court decision to kick the matter to the states essentially preserves the status quo. As you can see from this map, the status quo isn’t that great if you’re a non-coastal gay couple:
Jeffrey Toobin sounds a triumphal note: “The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over.”
Maybe. But if you’re a gay couple living in that vast swath of red, change may be coming very, very slowly.
Consider, for instance, the still-ongoing battle over abortion rights that happens every legislative session in red states, 40 years after the court in Roe v. Wade affirmed a constitutional right to an abortion and seemed to have taken the matter away from the states.
Matthew Cooper offers a different historical analogy: the Equal Rights Amendment, which at one time seemed to have history and political momentum on its side, too. “[S]tates are treacherous terrain for activists,” Cooper writes. “They may be laboratories of democracy but they can also be bulwarks of the status quo.”
At this moment, it is hard for us to imagine a state going backward. But California offers a somewhat gloomy example of the on-again/off-again political will that could buffet same-sex couples. It passed Prop 22 in 2000 outlawing same-sex marriage, the California Supreme Court found a right to gay marriage in the state constitution in 2008, and within months voters reversed that decision via Prop 8, the case the court is considering this morning. Among the many ironies: Public opinion polls show Prop 8 could not pass in California today.
Opponents of gay marriage are not going away, even as many leaders in their party have decided for now to get on board. In addition to fighting to expand the right to gay marriage, activists will also have to defend the right in states where it has already been won.
This is not intended to be one long concern-troll post. The status quo today is vastly better than it was a year ago, let alone five years ago. Change is happening. And change may yet happen faster than we think. Thurgood Marshall is often quoted as having said, “Sometimes history takes things into its own hands.”
But in nearly every state outside of the Northeast, there is still a lot of work to do that the rulings in this week’s cases will likely only be prelude to.