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.
,,,
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.
,,,
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
