Equality not a priority for activist high court

Eugene Robinson

Tuesday, March 26, 2013 | 2 a.m.

Don’t take anything for granted. The conservative activists on the Supreme Court may not be able to halt the inexorable shift toward acceptance of gay marriage, but we probably should expect them to try.

The two big cases being argued this week could turn out to be landmarks that confirm the nation’s progress toward marriage equality — or speed bumps that impede it. Either way, the destination is clear: Six out of 10 Americans approve of gay marriage, according to a Washington Post poll, including 80 percent of adults under 30. That looks less like a question than a decision.

You’d think the justices would have these numbers in mind as they consider Proposition 8, the voter initiative that revoked gay-marriage rights in California, and the Defense of Marriage Act, which prohibits federal recognition of legally performed same-sex unions. But the conservative wing of the court has no great respect for public opinion. Recall that citizens of the District of Columbia overwhelmingly supported a handgun ban that the court blithely overturned.

Nor will the court necessarily be influenced by the state of California’s refusal to defend Proposition 8 or the federal government’s refusal to defend the Defense of Marriage Act. The court showed judicial modesty in upholding President Barack Obama’s health care reform, but that was the exception, not the rule.

Even a double defeat for the forces of fairness and inclusion is conceivable, although such a result would be so illogical that even this court — the most activist in decades — probably couldn’t manage it with a straight face.

If the justices were to reverse the lower court ruling that invalidated Proposition 8, they essentially would be saying that taking away the marriage rights of a certain class of citizens is a decision that should be left to the states. But then upholding the Defense of Marriage Act would award the power to deny marriage rights to the federal government.

Such intellectual contortion might not disturb the slumber of the unapologetic social engineers on the court — Justices Antonin Scalia, Clarence Thomas and Samuel Alito. But it might unsettle the other conservatives, Justice Anthony Kennedy and Chief Justice John Roberts.

A double victory for the good guys and gals seems somewhat more plausible, at least as a matter of law and the Constitution.

The court could strike down the Defense of Marriage Act, taking the position that marriage should be left to the states — which would be consistent with the conservative majority’s reverence for states’ rights. And on Proposition 8, the court could accept the opponents’ view that since gay marriage was legal in California when the initiative was approved, the measure unconstitutionally takes away rights from a targeted class while leaving those same rights intact for others — a violation of equal protection.

This result — probably the best that can realistically be hoped for — would not end the battle over gay marriage, which is recognized in just nine states plus the District of Columbia. But it would allow the rapid progress toward marriage equality to continue, and it’s pretty clear where this freight train is heading.

There is, of course, the possibility that the court might choose to frame its rulings in both cases as narrowly as possible, effectively ducking the issue and leaving it to elected officials to work out. But if the justices wanted to take a pass, why did they agree to decide these cases in the first place?

And there’s also the remote possibility that the court might make a sweeping ruling that recognizes marriage equality throughout the land. I would be shocked if this happens now, but I’m sure it will someday.

The obvious issue that these two cases do not explicitly raise, but that will have to be addressed sooner or later, is mobility. This is a peripatetic society; we move from state to state. How can two men or two women be married in one state but not in another?

This was the situation with interracial marriage before the court’s landmark 1967 ruling in Loving v. Virginia. If today’s court were one that cared about being on the right side of history, it would use that precedent to rule that if a couple is considered married in Massachusetts and Maryland, it must be considered married in Montana and Mississippi, too.

But this isn’t that kind of court, I’m afraid. More likely is an attempt to hold back the tide — or a grudging acknowledgement that marriage equality’s time has arrived.

Eugene Robinson is a columnist for the Washington Post.