Next Tuesday, the Supreme Court will hear one of the most eagerly awaited arguments in its history: the claim by same-sex couples to a constitutional right to marry that is enforceable in every state. Though none of the LGBT advocacy groups wants to jinx the outcome with a triumphalist claim that victory is certain, it is difficult to make a convincing case that Justice Anthony Kennedy, the perennial swing vote, will balk at extending his prior gay rights rulings to encompass nationwide access to marriage. Justice Antonin Scalia, his most vocal opponent on the issue, has been predicting the inevitability of such a ruling for 12 years, since the Court struck down a sodomy law as unconstitutional. On this, if nothing else, Justice Scalia seems almost certain to be vindicated.
Even the most intense optimists, however, realize that although the social conservative base is diminishing judicially as well as demographically, it is hardly dead. When the Court announces its ruling, due by the end of the current term in late June, the decision will mark a new baseline for state regulation of sexuality and the family, but the debates will not end.
On the progressive side of the register, one hopes that there will be space for concerns that have been sidelined in the heat of the marriage contests. Prime among them is the need by the great majority of same-sex households, like all other households, for more egalitarian economic policies. Researchers such as Lee Badgett and Gary Gates at UCLA’s Williams Institute have documented with Census data just how urgent those needs are. LGBT households, for example, widely and wrongly believed to be especially affluent, have higher than average poverty rates and would benefit enormously from an increase in the minimum wage. And if one measures anti-gay subordination by its intensity, the greatest attention should turn to transgender and racial minorities and youth (see the work of Bianca Wilson). (Disclosure: I hold the title of Distinguished Scholar at the Williams Institute, but did not work on these studies.)
The opening of marriage to same-sex couples will also clear the way for policy debates about the menu of options for recognition of couples—gay or straight—who choose not to marry. Some states have left civil union or domestic partnership status categories in place after same-sex couples could marry—others have abolished them. Unmarried partners of all orientations will continue to have property and custody fights when relationships end, and courts will still have to decide how much, if any, weight to give marital status in those situations. Will a legal victory for gay marriage be seen as strengthening the principle of choice or the policy of quasi-mandatory marriage?
Meanwhile, social conservatives have already staked a claim to their new political offensive: the effort to broaden the scope of religious exemptions from anti-discrimination laws, so that a range of individuals and entities can deny service to same-sex couples, at least when goods and services are directly related to marriage ceremonies. This effort stumbled badly last year in Arizona and this year in Indiana and Arkansas, when corporate interests forced conservative politicians to back down from adding such provisions to state laws. Corporations fearful of alienating their own demographic holy grail—youth and young adults—in both the labor force and the consumer marketplace proved once again that a rupture between the Tea Party and the Chamber of Commerce is no contest. The smart money is on the money.