TOMORROW

Summary: The SCOTUS marriage cases will come down tomorrow.  The longer we queerfolk wait, the more fretful we become and the more sleep we lose.  The cottage industry of prognostication is in overdrive, though Justice Ruth Bader Ginsburg rightly notes that those who know aren’t talking and those who are talking don’t know.  It is possible that the Prop 8 case (Hollingsworth v.  Perry) may be DIGged (dismissed as improvidently granted).  If so, will the Court swing for the fences on DOMA, issuing a broad brush ruling that attempts to settle once and for all the issue of queer civil rights in this country?  If marriage prevails, it may be incumbent upon us queerfolk to rewrite much of our vocabulary of relationships.  Tomorrow.  We’ll know tomorrow.

By: Paul S. Marchand

Tomorrow. 

The long-awaited Supreme Court decisions on marriage will come tomorrow, on the last day of the Court’s 2012 Term.

It’s not unreasonable to imagine that all over the country, queerfolk are finding themselves in a state of fretful, ambiguous, sleep-deprived anticipation.

Already, speculation about the possible outcome of the marriage cases has become something of a cottage industry of prognostication.  As Justice Ruth Bader Ginsburg has observed, those who know aren’t talking, and those who are talking don’t know.

Nonetheless, one can feel a certain degree of vindication that a number of mainstream observers and commentators have begun, in recent days, to ventilate the possibility -- one that I had ventilated a number of months ago -- that the Court may dispose of the Proposition 8 case, Hollingsworth v. Perry, by dismissing Hollingsworth’s petition for certiorari as having been “improperly granted,” or DIGging it.  When I suggested that Hollingsworth might be DIGged, a number of non-knowledgeable so-called activists from Palm Springs chastised me rather sharply, and in rather primitive terms.  Having come very late to the cause, these activists did not know whereof they spoke.  That I might thus feel somewhat vindicated is only natural under the circumstances.  Sometimes it’s nice to be right.

And in truth, Dennis Hollingsworth’s bull-in-the-china-shop intrusion into the case represents an almost textbook example of what the law might refer to as “officious intermeddling.”  Hollingsworth had no real stake in the litigation, but he was a termed out Republican State Senator looking for some new cause to which he could nail the colors of his dwindling political future.  He had no demonstrable nexus to the litigation which would have given him any standing to butt in.  If the Court chooses to DIG the case, it may well represent the most expedient solution for a Court whose credibility has come into serious question.

If Hollingsworth is DIGged, the Court might choose to swing for the fences in U.S. v.  Windsor (the DOMA case) and issue a ruling that attempts to settle the vexed issue of same-gender marriage once and for all.  If the Court rules for us, it may well be the queer nation’s Brown v. Board of Education; if the result goes the other way, it may well be our Dred Scott.

Given that the Roberts Court has established something of a reputation for being a reliable right-wing tribunal, today’s decision in Shelby County v. Holder, which effectively gutted the Voting Rights Act, has not surprisingly sent a current of disquiet through much of America’s queer nation; if the court can deliver such a victory to the American right and the GOP on the issue of voting, what might it be prepared to do to America’s queerfolk?

Still, even if the Court upholds DOMA and Prop. 8, the status quo for queer Americans may well remain largely unchanged.  Certainly, an adverse decision will embolden our adversaries in state legislatures, yet there will still remain jurisdictions where marriage equality is a reality.  In blue states, progress toward marriage equality will probably continue as a matter of state law.  In red states, right-wing legislators will no doubt continue their monomaniacal effort to march us right back into the closet and to jam us so far into the back thereof that we may never again see the light of day.

On the other hand, if the Court rules favorably for marriage, it will put America’s queerfolk in the somewhat equivocal position of having to rewrite a large part of our vocabulary of relationships, and of coming to terms with having options millions of us never thought we would have.  If, to a certain extent, we have made a virtue of the crabbed necessity of not having the option of marriage, a pro-marriage holding in either Hollingsworth or U.S. v. Windsor will certainly upset that applecart.

No matter what happens, tomorrow will be a day of change for America’s queer nation.  

I may not sleep well tonight. 

Tomorrow.  We’ll know tomorrow.

-xxx-

PAUL S. MARCHAND is an attorney who lives in practices in Cathedral City, where he served two terms on the city council.  He has been a marriage equality activist for two decades.  The views herein are his own, and are not intended as legal advice.