It appears that the U.S. Supreme Court may be heading for a split decision in the two marriage equality cases it heard last week. Court-watchers — who, like the Kremlin-watchers of yesteryear, keep track of who is standing where — suggest that Congress’ 1996 Defense of Marriage Act could be ruled unconstitutional.
But in a separate case challenging California’s Proposition 8, a 2008 ballot measure that overturned a state Supreme Court decision upholding gay marriage, a majority of justices appeared in punt formation. The justices’ questions during oral arguments Tuesday suggested that a majority believes that the question of a state’s right to ban same-sex marriage is not ripe for decision.
If, when decisions are handed down in June, the high court declines to rule on Prop 8, the question probably would return to status-quo ante: Same-sex marriage legal in nine states, illegal in 41 others. The justices seemed content — nay, eager — to let the political process play itself out.
That surely would be unfair to many people, particularly the two California couples who brought the challenge to Prop 8. It would, however, suggest that the Supreme Court recognizes what a growing majority of the nation does: Marriage equality is here to stay. As in the recognition of other civil rights, some states will be slower to come to grips with that reality than others. Eventually the Supreme Court will have to clear the matter up. This court should do it now. It probably won’t.
Here’s an odd indicator: On Tuesday, the day the court heard the Prop 8 arguments, Anheuser-Busch InBev posted a version of the Human Rights Campaign’s marriage equality logo on the Bud Light Facebook page. Instead of a pink equal sign inside of a red square, AB InBev’s equal sign was two parallel cans of Bud Light inside the red square.
Now maybe it was just a PR ploy, as some Internet critics were screaming. But the world’s largest brewer knows a thing or two about advertising iconography. If it is signing onto the cause, we’d call that a major cultural touchstone.
If it’s more than a PR ploy, AB InBev should mobilize its battalion of lobbyists in Jefferson City, where it gets just about everything it wants. For the 15th year in a row, the Missouri Legislature has before it versions of the “Missouri Non-Discrimination Act”
MONA, as it is known, expands the state’s human rights statutes to cover sexual orientation and gender identity. Right now, believe it or not, in most Missouri communities, employers can fire or otherwise discriminate against employees because of their sexual orientation. Gay, lesbian, bisexual or transgendered persons can be denied housing. They can be refused access to public accommodations and services.
In Missouri, we’re not talking about making it possible for gay couples to marry. We’re talking about making it possible for someone to say, ride a bus, without knowing that he can be kicked off for being gay.
This year, the MONA language is incorporated in both House Bill 615, sponsored by Rep. Stephen Webber, D-Columbia, and Senate Bill 96, sponsored by Sen. Jolie Justus, D-Kansas City. Mr. Webber’s bill has yet to be assigned to a committee. Ms. Justus’ bill was referred to the Judiciary Committee on Jan. 17. There it lies buried.
The Legislature ought to be embarrassed, but that’s impossible. House Speaker Tim Jones, R-Eureka, said last week that passing MONA would be an unfair burden to “job-creators.” Really. He said that.
The people of Missouri ought to be embarrassed. We have told an entire class of people, and continue to tell them, that they’re not entitled to equal protection under the law.
To their credit, a few Republican House members have signed on as cosponsors of Mr. Webber’s bill. Among them is Rep. Kevin Engler of Farmington, who made an appearance last week before supporters of MONA, offering tips on how to lobby his GOP colleagues.
“Some of us are not in tune with the overall marriage issue,” he said. “But even the ones who profess themselves to be right-wing fundamental Christians should be with you on non-discrimination. There’s no place where I can find that we should persecute people.”
Not to pick on Mr. Engler, who has more courage than most of his GOP colleagues. But if the MONA bills ever got to the House or Senate floor for debate, we can just hear conservative lawmakers rolling out their favorite “camel putting its nose under the tent down the slippery slope” arguments. When you start recognizing civil rights, where does it end? If you grant people the right not to be kicked off a bus, don’t you have to grant them other rights, too?
In a key moment in Tuesday’s arguments on Prop 8, Justice Sonia Sotomayor asked a version of that question to Charles J. Cooper, one of the attorneys defending California’s Prop 8 amendment.
“Outside of the marriage context,” the justice asked, “can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits?”
Mr. Cooper replied, “I cannot. I do not have any — anything to offer you in that regard.”
Marriage, he said, and “society’s interest in what we have framed as responsible procreation is — is vital, but ... our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.”
In other words, gay folks, you can have the same rights as everyone else except when it comes to marriage. But not in Missouri.