The Supreme Court's Unconscionable Slow-Walk Towards Gay Rights | ThinkProgress

This legacy of state-sponsored discrimination, rooted in stereotypes and deference to anti-gay animus, should have led the courts to conclude that same-sex couples must enjoy full marriage rights many decades ago. As the Supreme Court has long held, groups that have historically been subject to discrimination that bears “no relation to ability to perform or contribute to society” enjoy heightened protection under the Constitution’s promise that no one shall be denied “the equal protection of the laws.” Yet the justices have sat on their hands, refusing to extend this protection to LGBT Americans even in their most recent gay rights decisions. When the Court’s current members have extended gay rights, they’ve emphasized their desire to move slowly almost as much as they’ve focused on the injustices they are correcting.

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Throughout much of this history, the Supreme Court simply turned a blind eye. When an early gay rights case, brought by two Minnesota men seeking the right to marry, reached the Court in 1972, the justices dismissed the case with a single sentence — the appeal was “dismissed for want of substantial federal question.” At the time, this was a common formulation the justices used to dispose of cases that fell within the Court’s mandatory jurisdiction, but that the justices deemed unworthy of their time. This one sentence order in the case known as Baker v. Nelson is still cited to this day by defenders of marriage discrimination, who claim that it represents the Supreme Court’s pronouncement that marriage equality is not protected by the Constitution.

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Though the justices have never explained in a published opinion why they’ve thus far been unwilling to embrace the conclusion dictated by their Equal Protection precedents — that gay Americans have faced a legacy of discrimination that bears no relation to their “ability to perform or contribute to society,” and thus that laws which discriminate on the basis of sexual orientation should be treated with great skepticism by the courts — some members of the Court have indicated why they’ve resisted their own precedents elsewhere. Kennedy’s expressed concerns that the Court’s too often become the venue where political battles are resolved, and he’s fretted about the “uncharted waters” ahead if the Court strikes down marriage discrimination in all 50 states. Justice Ruth Bader Ginsburg has warned that the Court moved “too far, too fast” in Roe v. Wade and has hinted that she is cautious about doing the same on gay rights.

This desire to tread cautiously, however, is hard to square with the Court’s behavior outside of the gay rights context. Kennedy, for example, showed little concern about the “uncharted waters” facing American democracy when he authored the Court’s opinion in Citizens United, which eliminated many longstanding limits on political campaign donations. Nor did Kennedy appear particularly bothered by the turbulent waves that would have ripped through the health care sector if he had succeeded in repealing the entire Affordable Care Act. As the frequent swing vote on the Supreme Court, Justice Kennedy may be the most powerful jurist in the nation, yet his concern about moving too fast does not appear to extent far beyond gay rights.

The Supreme Court's Unconscionable Slow-Walk Towards Gay Rights | ThinkProgress