Steve Miller, Jon Rauch and Dale Carpenter all have solid takes on last week’s Prop. 8 ruling, Perry v. Brown, and all make essentially the same point: The court-ordered path to same-sex marriage runs directly through politics. Despite what the most starry-eyed activists imagine, no single court decision should recognize nationwide same-sex marriage, at least not in the immediate future — which these days means about a decade.
Like legislatures, courts can move incrementally, which is the primary virtue in Perry. There is a general rule that appellate courts should decide cases on the narrowest reasoning necessary to resolve the case before them. While the trial judge swung for the fences, the appellate court found a narrower rationale to decide the case that limits its effect to California.
Limiting the decision is not just a satisfactory result, it is an excellent one as a political matter. The political climate in California has changed a lot since the spasm of Prop. 8. Even the feistiest of the Prop. 8 supporters were pretty tepid this time around. There were no Prop. 8 supporters at the court on the morning of the decision, and the newsies had a tough time even tracking any of them down for quotes. There has been a lot more work done in the Black and Latino communities in California on same-sex marriage, and Prop. 8’s proponents are struggling, both financially and in their ability to muster public support. The Mormon church has backed off its anti-marriage tone and is holding the purse strings a bit more tightly on this issue, which would leave the Catholic church, now back to the fight against birth control, on the hook. I think a California only decision would be well absorbed by the politics out here.
But California isn’t the only state that gets the benefit. Court decisions may have narrow effects, but the opinions can persuade other courts, and even politicians. Same-sex marriage will be coming up this year in various contexts: Washington, Maine, New Jersey, North Carolina, Illinois, Maryland and others look like they will be on the 2012 front lines. Each iteration of this debate, even in the places where we lose, leaves a few more of our opponents winded and adds a lot more supporters to our side.
Those political debates happen in the same culture judges and lawyers live in, and give attorneys and the courts time to think about the constitutional issues in different and more nuanced ways.
That brings me back to Dale Carpenter, who offers an original spin on the notion of what counts as a rational basis for a law that is purely symbolic, as Prop. 8 was. His piece is well worth reading, and moves the discussion forward in a sound but unexpected way.
Every enhancement to the debate changes the politics a little, and that helps the courts see more ways to resolve issues that are less disruptive than grand pronouncements and overarching rules.
We will get to equality, eventually. But we won’t get there in a straight line, or all at once. Every resolution brings us back to politics, one way or the other.