On Scene with Bill Wilson: Supreme Court

On the wall of my dining room hangs a framed copy of the Supreme Court decision in the case of Romer vs Evans. Five of the six justices who formed the majority- Justices Kennedy, Stevens, Souter, Ginsburg and Breyer – each signed one of the pages of that decision that held that Colorado’s Amendment 2, which prohibited local jurisdictions from passing gay rights ordinances, was unconstitutional. The ruling meant that the words that are carved on the Supreme Court Building, “Equal Justice Under Law”, applied to me as a gay man. It was an empowering feeling to walk by the Supreme Court Building the day after the decision and see those words. It is the reason that I feel optimistic that the current Supreme Court will strike down Prop 8 as unconstitutional.

Justice Breyer was in the majority in both Romer and Lawrence cases

I don’t expect that Justice Scalia, for all his posturing and moral outrage, will ever find himself in the majority on this issue; so, in my mind, the only question is: will Chief Justice Roberts provide the sixth vote for the majority or the fourth vote for the minority?   Either way 6-3 or 5-4 it is a win for marriage equality. Unlike when Bowers vs Hardwick was decided, today no justice can say that they do not know any gay people or that they do not understand how import this issue is to gay people, which were the excuses that Justice Powell used to explain his vote that decided Bowers vs Hardwick. I don’t think that the current justices can be bullied in the way Justice Powell was when Chief Justice Burger asked him if he wanted to be known as the justice who legalized homosexuality in America.

George Takei and Brad Altman are among the couples who married before Prop 8 made gay marriage illegal in California.

Every time another state is added to the list of states that have marriage equality, we are treated to another round of smiling happy couples being treated as equal under the law. The Supreme Court justices are not immune to these images of love, any more than the rest of the country. While the opposition to gay marriage believes the four victories in 2012 were just a matter of them being outspent, I think it was about people responding to seeing that the love of same sex couples is no different than the love they have for their spouses.  That message of love is the message that people responded to in focus groups, at the voting boots in the 2012 elections, and in the increased acceptance of marriage equality in national polls. When ruling in favor of marriage equality, the Supreme Court will not really be that far out in front of public opinion as the opponents of marriage equality would have you believe.   

David Boies and Ted Olson will argue for marriage equality at the Supreme Court. They argued on opposite sides in the Supreme Court case that decided the 2000 election.

In a number of articles written after the Court announced its acceptance of the Prop 8 and DOMA cases, the backlash that followed the Roe vs Wade decision was mentioned as an example of why the Court doesn’t want to get ahead of public opinion when it comes to social change. At the time of that decision, abortion clinics were not in every county in America, and abortions were not being performed for some and denied to others. Contrast that the situation for marriage today: marriage certificates can be requested in every county, and same-sex couples are being denied marriage licenses in all but nine states.  It is difficult for me to visualize a marriage equality backlash similar to the Operation Rescue against abortion: what would they do, surround every county clerk’s office and only allow heterosexual couples in? Would the 31 states with state DOMA in their Constitutions outlaw marriage rather than sanction marriage for everyone?  I realize that there might be some who would advocate exactly that, however I think they would be viewed the same way a majority of people currently view Fred Phelps and the Westboro Baptists who picket the funerals of military personnel.


 A Pro-Choice March is lead by celebrities Morgan Fairchild, Glen Close, Jane Fonda, Marlo Thomas, Whoopi Goldberg, Cybil Shepard, and Penny Marshall

I expect that those who have made millions off various campaigns and religious crusades to rid the world of homosexuality will still find a way to protest my existence. However, I believe that a majority of the nine justices who sit on the Supreme Court will rule in favor of the words that grace their building and give us “Equal justice under law”.

Justice Ruth Bader Ginsburg who also concurred in the majority opinions in both Romer and Lawrence. 

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