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.”
Yet Jill Filipovic adamantly disagrees with Cole’s take, and asks why even liberal-minded people are effectively encouraging the Court to punt on the issue. Not only is a decision based on fear of negative repercussions dangerous both for civil rights and the credibility of the Court, she argues such unequivocal fear-mongering is unfounded. In the case of Roe v. Wade, for example, the abortion issue was a hot-button topic long before the decision was handed down. Conservative architects of the “New Right” had already adopted the issue in a strategic move to politicize evangelicals and realign the party in the 1970s. “Waiting for public opinion to change before affirming the fundamental constitutional rights of a minority group makes a mockery of the entire concept of fundamental constitutional rights,” writes Filipovic.
When it comes to marriage equality, the needle on public and political opinion has already moved—a shift in perception that’s occurred faster than nearly any other social issue in history. During the public airing of arguments, we witnessed Democrats racing to endorse gay marriage and conservatives inching toward alternate band-aid resolutions such as civil unions. Their political posturing mirrored a national trend: over the past decade, public opinion has steadily grown in support of same-sex marriage, swelling to as high as 70 percent among the millennial generation, according to a survey released this month by the Pew Research Center.
In her Sister Citizen column for this week’s print issue, Melissa Harris-Perry argues that the case is already closed. “Though justice delayed is justice denied, whether the Roberts Court upholds or strikes down these particular provisions seems almost irrelevant given this cultural and political paradigm shift. Marriage equality, the stars seem to be telling us, is just a matter of time.” But what happens to marriage then? Harris-Perry looks at the fundamental differences that marriage equality will make—extending a basic civil right and allowing more Americans to opt into associated economic protections and cultural privileges associated with legal marriages—yet she cautions that the movement should be seeking something bigger than the institution. “It would be tragic to allow marriage equality to destroy or marginalize the pioneering work of queer families who have taught us that family is more complicated and more fulfilling than traditional models of marriage can ever capture.”
With the Supreme Court apparently ready to overturn the Defense of Marriage Act, it is perhaps instructive to recall how divisive the bill was at the time of its passing—not just in the country as a whole, but even in the Nation family. In a revealing exchange of letters in the January 6, 1997, issue, playwrights Tony Kushner and Craig Lucas criticized Washington editor David Corn for overlooking Paul Wellstone’s vote for DOMA in a piece examining the progressive Minnesota senator’s successful 1996 re-election campaign. Kushner and Lucas argued that somehow the “courage and decency” that enabled Wellstone to vote against President Clinton’s welfare “reform” bill the same year had failed him during the vote on DOMA—“this outrageously unconstitutional bit of G.O.P. fag-bashing.” Corn admitted that Wellstone had sacrificed some of his progressive credentials to shore up his populist ones—DOMA enjoyed wide public support—and acknowledged that, ideally, “the goal for Nationites is to marry” (pun presumably intended) the two traditions.
In a quite visionary essay three years earlier, Kushner had argued that even the legalization of same-sex marriage and the admission of gays in the military would not equal the liberation of homosexuals. Rather, such then-hypothetical victories reflected the aims of an essentially conservative politics—not a threat to the inherently unequal, exploitative system of market capitalism itself, which “could certainly accommodate demands for equal rights for homosexuals without danger to itself.” Kushner called for “a socialism of the skin” which would work to cultivate, in the words of another gay socialist playwright, Oscar Wilde, that which is “wonderful, and fascinating, and delightful” in human beings, and to restore “the true pleasure and joy of living.” Kushner argued that this kind of solidarity and struggle, and not merely legal equality, represented “the far horizon of lesbian and gay politics.” Those are words to remember in a time when leading figures in the GOP are recognizing the truth of what Kushner wrote almost twenty years ago: “Capitalism, after all, can absorb a lot.”
For continued analysis and reporting on essential civil rights issues in the United States, check back in regularly with The Nation as we continue to examine the Court’s decisions and the alleged culture wars.
Laura Flanders ponders: What is about the marriage ceremony that makes a critic of the institution get teary-eyed?