A key question raised by the high court in both cases concerns Article III standing — whether Prop. 8′s proponents have the right to appeal Perry (state officials having declined), and whether House Republicans have the right to appeal Windsor (President Obama having refused to continue defending DOMA). If the appellants lack standing, the case is thrown out and the pro-gay trial court ruling stands.
I agree with marriage-equality advocates who favor upholding the Second Circuit on DOMA and either upholding the Ninth Circuit on Prop. 8 or denying standing. This gets federal recognition for gay marriages in states that allow them, without compelling other states. If the court imposes marriage equality on all the states now, the resulting backlash could keep dozens of state legislatures in obstructionist hands for a long time. Many liberal jurists warn against getting ahead of ourselves. A more modest ruling affirming states’ rights would allow the political process more time to work. After another decade of rising public support for equality, a SCOTUS ruling granting equality nationwide would be less of a provocation.
This high-stakes court battle occurs against a broader backdrop. Despite the election, Republicans continue pursuing their alternate America in which plutocrats replace the middle class with a fend-for-yourselves feudalism; white heterosexual men claim a divine right to perpetual dominance; the bossiest form of Christian fundamentalism is the state religion; and know-nothingism cripples our ability to compete internationally in industries that depend on science and its application.
Endurance was a crucial virtue in carrying us this far. We must remain engaged and clear-eyed for the battles ahead, even as we represent our families in the public arena. Those committed to a more intolerant America have not laid down their weapons. As I finished writing this, I read that the Kansas Department of Children and Families has sued a sperm donor for child support because it doesn’t recognize the relationship of the child’s lesbian parents. Happy New Year.
Richard J. Rosendall is a writer and activist. He can be reached at email@example.com.