This morning, my Facebook feed was full of updates with friends changing their profile photo to an image of a pink equal sign on a red background. Oh, and the Supreme Court also began hearing oral arguments in Hollingsworth v Perry on whether to overturn California's Proposition 8.
The official line of the WSJ op-ed pages is that this is an issue to be litigated in the legislature, not the courts. A cynic might think of that as the cop out of a reasonably intelligent homophobe. But I think there is a legitimate argument behind it. Because when we're talking about the original jurisdiction of the Supreme Court, a lot of the times it comes down to personal opinion. And I think there is a lot of danger in accepting the majority opinion of 9 people as sacred writ (or more accurately, using them as a shortcut to get what we want, assuming that a majority of those 9 people share our ideology).
People make a big deal about equality before the law and the equal application of the law, but the fact is the law discriminates against various people all the time on rather arbitrary standards. Laws will treat you differently based on the color of your skin, how much money you make, how old you are, where your primary place of residence is located, whether you're physically impaired, whether you were born on the right side of an imaginary line, etc. There are nearly an infinite number of ways that will allow a law to treat two people differently from one another.
Whether it's just or not is based on its measure of support within the population and the policymakers of that jurisdiction. When it comes to Federal statute, at least 270 Federally elected officials (51 votes in the Senate, 218 votes in the House, 1 "vote" in the White House) must support the measure at one point in time. And frankly, I'd rather trust the collective judgment of 270 people than the collective judgment of 9.
On a state level, this gets even clearer. Some states, like California, allow plebiscites which enables the entire electorate to weigh in on a particular issue. For Proposition 8, over 7 million votes favored a state constitutional ban on same-sex marriage. It takes a certain kind of presumption to allow 5 votes to nullify 7 million (or 600k, if you want to count by winning margin), especially when there is no material stake at hand.
I say that because gay marriage is not a material issue. The arguments about tax and legal status are ancillary, because there is no real movement to force the government to divest itself from the institution of marriage in favor of a civil unions (which I support). It's an issue of dignity and respect. And we cannot, try as we might, dictate dignity and respect.
These are things that are earned and maintained every day with every social interaction. Imagine if there was a law that specified that there must be proportional representation in Congress based along the lines of nationally recognized racial groups (white, black, Hispanic, Asian/Pacific Islander, Native American). Such a law cannot stand because it offends the vast majority of Americans sense of legal propriety. And that sense is what gay marriage activists should try and shape. Not the sense of 9 Justices on the bench.
There was this quote I read a very long time ago (either in middle or high school). It was from a black civil rights activist (I think it was Douglass) but I can't find the exact quote. So I'm going to paraphrase it to the best of my recollection:
Black people comprise of one seventh of this country's population. And our country believes in the proposition that all men are created equal. If that is the case, should the black man not comprise one seventh of government, judgeships, or Congress? But you and I know that that is not reality and will not be for a very long time...Douglass advocated education as the liberator of black people. It was through education that blacks could gain the knowledge to take on good jobs and to talk to whites intelligently. Blacks could achieve equality, dignity and the respect through education. Because Douglass understood that you cannot alter the national consciousness from on high. You cannot legislate morality. And you cannot impose change to the bottom from the top. These things take staggering amounts of time and effort. And progress is never gradual, only occurring in fits and starts.
A Supreme Court decision to strike down Proposition 8 will almost certainly be premature and will create decades of controversy (much like Roe v Wade did to the issue of abortion). Gay marriage, like so many causes of social justice that precede it, is not supposed to be a duel to be fought amongst a select company. It's a bare knuckle brawl that must be won in the streets where progress is measured block by block. Only then will you finally gain the respect and dignity you deserve.
I know it is infuriating to hear this from a person who has no personal stake in the fight. But it is not possible for the aggrieved to gain immediate justice and reparation. It has never worked that way. Just know, in your long and hard fought struggle, that you are on the right side of history.