This week, I am introducing a new feature to my blog: incorporating material from The Nation Archive, where you can access 148 years of America’s independent journalism on politics and culture in digital form. For subscribers, The Nation Digital Archive contains thousands of historic articles, essays and reviews, letters to the editor and editorials dating back to Volume I, Number 1 on July 6, 1965, and all fully searchable. I hope you’ll enjoy the pieces that we move in front of the paywall—which I think are a testament to the extraordinary legacy of The Nation.
The right to marry someone of the same sex is one of the most visible civil rights issues of the past decade, and the Supreme Court reached a new benchmark in the long march toward equality this week as they heard challenges to the Defense of Marriage Act (United States v. Windsor) and Proposition 8 (Hollingsworth v. Perry).
Law professor and Nation correspondent Nan Hunter reported on this watershed moment from inside the courtroom in Washington, DC. Narrating each day’s events in real time, she explained what the public needed to know as Prop 8 hit the Court Tuesday. The first gay marriage case ever to be heard, the challenge to Prop 8 is as much a technical argument, based on standing, as it is a constitutional issue. At the close of Tuesday’s hearings, Hunter’s analysis reflected that the Court seemed fractured on Prop 8. With a Court this divided, she predicted that there may be no majority opinion—and the marriage litigation wars could continue with virtually no decision in place.
By Wednesday afternoon, after the DOMA hearings, Hunter inferred a much more definitive mood in the Court as the Justices seemed ready to rule on the constitutionality of the law. While the four progressive Justices attacked the arguments in favor of DOMA, the questions put forth by the conservative Justices underscored their support for the existing law. The decision will ultimately rest with Justice Kennedy, and Hunter argues that the Court has compelling institutional reasons to resolve the case before it. On Friday, the Justices gathered to preliminarily decide the outcomes of this week’s cases. While the decisions will not be announced until opinions are finalized, Hunter is cautiously optimistic in her assessment of the ruling for Prop 8.
Outside the courtroom, pundits, activists and politicians have been full of speculation about the two cases. In a much debated opinion piece for The New York Times, Nation legal affairs correspondent David Cole makes the case that the Supreme Court should not decide on the issue at all. While the legal and moral choice for the Court should be clear, the necessity and constitutional authority for taking legal action is questionable. What’s more, pointing to the public backlash following Brown v. Board of Education and Roe v. Wade, Cole fears that a wide-reaching decision will only inflame the culture wars. “Prudence and law dictate the same result,” writes Cole: “cold feet at the altar.”