The Supreme Court in Washington. (AP Photo/Evan Vucci)
In case you haven’t noticed, the biggest question facing the Supreme Court when it decides the gay marriage cases this spring has become whether it can rise to the level of LGBT rights ferocity already achieved by American business leaders, moderate Republicans and the Obama administration. By the end of last week, when all the amicus briefs in support of striking down California’s Prop 8 and the Defense of Marriage Act (DOMA) had been filed, support for marriage equality seemed to have been transformed into the new normal—at least outside the confines of the Court.
In fact, judging from the press coverage of the briefs, if the justices don’t rule in favor of gay marriage, it is the Court that will look bad. This perception is an incredible achievement, a brilliant exercise in political framing by the lawyers and legal organizations behind the two cases, who mobilized the amicus show of force. The business brief and the Republican brief, especially, are clearly designed to provide political cover for the Court’s five conservative Justices.
While nothing is certain, there is virtually unanimous agreement among lawyers and law professors that the tougher case for gay rights groups is the challenge to Prop 8 rather than the one to DOMA. The Prop 8 case raises the question of whether all of the forty other state laws banning gay marriage are constitutional, while DOMA implicates only a federal recognition policy that leaves variance in state laws intact.
The best hope for winning Hollingsworth v. Perry, the Prop 8 case, remains either securing a narrow ruling that invalidates only the California law, or persuading the Court that it need not reach the merits at all, relying on the argument that those defending Prop 8 lack the necessary standing because they are private parties that have no authority to enforce it. (The governor and attorney general of California declined to defend the law.) From the beginning, though, the Ted Olson–David Boies strange bedfellows team that brought the case has argued that every law banning gay marriage should be struck down. Even six months ago, that position seemed too radical to attract much support outside the circle of true believers.
Now, however, a ruling of national scope is precisely the outcome endorsed in the brief filed by 100 corporations and in the Republican brief signed by luminaries including former White House officials Ken Duberstein (Reagan chief of staff) and Stephen Hadley (Bush national security adviser); Iraq War hawk Paul Wolfowitz; two chairs of the Council of Economic Advisers under Bush; the former director of the Congressional Budget Office; a Justice Department official from the Nixon Administration; the former chair of the Federal Communications Commission, who is also Colin Powell’s son; and four former Republican governors. And, oh yes, Clint Eastwood.
What happened to make possible this conservative blessing of what had seemed to many like such a radical outcome? Fundamentally, the only change is that the political gestalt has shifted so that what was always a conservative claim—to gain access to the core institution for privatizing a broad range of social functions—is increasingly being endorsed by conservatives. Sooner or later, it had to happen.