And now the worrying begins.
The Supreme Court on Friday said it will decide two gay marriage cases during this term—possibly settling once and for all if gay and lesbian Americans have a right to marry each other, raise kids together, and live and die as a family with the full recognition and support of the state that their straight neighbors receive. It’s a tremendous moment: The walls to full legal equality might come down. And it’s a scary moment because, well, the wall to full legal equality might not come down.
“It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence,” Don Romesburg, who is gay and legally married to his partner, told the New York Times.
Romesburg’s nervousness is understandable—all the more when you consider this amazing fact: It’s been less than 10 years since the Supreme Court even acknowledged that Americans have a right to be gay. It’s been just eight years since George W. Bush won re-election, in part, on the back of state referenda that used gay marriage as a bogeyman to turn out conservative voters.
The idea that we could go in a mere decade from gays being put on trial for sodomy—really—to being eligible for tax breaks and health benefits that go along with married, family life, well, that’s just breathtaking.
It’s also the reason I’m optimistic: By the end of 2013, I believe, gay marriage will be the law of the land everywhere in the United States.
Why? Because the Supreme Court is not immune to the sweep of history that has brought the issue to its doorstep so quickly after the last sodomy laws were struck down. There are individual justices who are exceptions to that rule—Antonin Scalia and Clarence Thomas most notably among them—but generally: The court doesn’t like to be on the wrong side of history. It likes being just about a step or two ahead of the tide, in fact.
And, well, history has chosen sides already.
Gay marriage may be a new thing in our history. It may still be a contentious issue for many people. But the tide is clear: In the last two years, gay marriage has won in the legislatures and at the polls. The obstacles that remain, it seems, are temporary—as even many ardent gay marriage opponents will admit.
But the court won’t rule for gay marriage just because it wants to wear the white hats in the historical melodrama on HBO in five or 10 years. It’ll do so because the right to marriage is deeply embedded in the court’s own rulings over the last few decades, in which it has declared that marriage is a “basic civil right,” that gays cannot be singled out for exclusion from the law’s protections, and even the 2003 decision that, essentially, legalized homosexuality.
Justice Anthony Kennedy wrote that ruling. He may well be the swing vote on this court’s decisions regarding gay marriage; he declared in that opinion that the right to be gay didn’t necessarily include the right to be gay married.
And yet the logic of his opinion suggests otherwise. Kennedy said in his ruling that laws against homosexual conduct are “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” The same is equally true of laws against homosexual marriage. Period.
If marriage is a fundamental right, if gays can’t be excluded from the law’s protections, if doing so subjects them to discrimination—well the weight of the court’s decisions, and the weight of history, point in one direction.
Gay marriage will be legal. And if there’s a little worrying before that, that’s OK, because there’s plenty of hope to go around.