Littwin: And then the justices did nothing, which meant everything
Fair and unbalanced
I think the first time I wrote that it was definitely all over on gay marriage was the day that Antonin Scalia wrote grudgingly, and as a warning, that it would soon be all over on gay marriage.
Or it might have been the night Frank McNulty blocked civil unions at the state legislature, when I said something like he was standing in the way of — and would soon be run over by — that old history train.
I know I wrote it when Hillary Hall, the Boulder clerk and recorder, turned plucky hero and began issuing marriage licenses after deciding that a 10th Circuit ruling gave her the moral and constitutional authority to do so.
Or, well, you get the idea. We’ve known for a while that the day was coming eventually. We’ve known for a shorter while that the day was coming imminently.
Now we know this is the day in Colorado — and for a majority of Americans. On Oct. 6, 2014, the Supreme Court decided the issue by not deciding the issue. They decided not to hear appeals of a long series of Appeals Court decisions making bans of same-sex marriage unconstitutional. Court observers were stunned that the justices gave the issue a pass. But nobody could mistake their intent.
The justices did nothing, which meant everything, and will soon — as soon as a few legalisms are set right — mean same-sex marriage will be legal everywhere in Colorado. (Pueblo Clerk Bo Ortiz is already issuing licenses. Attorney General John Suthers, who has lost and appealed in case after Colorado case, now says he will ask all courts that have issued stays on pro-marriage decisions to lift them. Suthers was the last line of defense, and now he has surrendered. All that’s left is the signing of the papers and the handing over of the sword.)
I hadn’t yet moved here in 1992 when Colorado had its moment of shame as the Hate State. I live here now, though, when House Speaker Mark Ferrandino writes in a fundraising letter that LOVE WINS! and paints the House majority logo in rainbow colors.
Ferrandino told me Monday that he first gave thought to same-sex marriage just after college when he was in his first serious relationship and he knew that, as a gay man, he could not be married. It was a time when gay marriage was a major story — because state after state — including Colorado in 2004 — put one-man-one-woman marriage language into their constitutions. It was one of the infamous wedge issues designed to get Republicans to the polls, and some think it played a key role in getting George W. Bush re-elected.
That’s all history now. And what’s incredible is that history moved so quickly, so quickly and so thoroughly that it could now be a wedge issue for Democrats.
“Four years ago,” Ferrandino said, “we were a long way from marriage. We were fighting to get civil unions, and we were losing. It took three years, and I was so proud to be the speaker when it happened.
“And now, in half the time, a year and a half later, we have marriage equality. It’s amazing.”
The story is amazing. A moral issue — what Scalia still calls “homosexual sodomy” — turns into a fairness issue. A fairness issue becomes a generational issue. A generational issue becomes a familiarity issue. More people come out, some of whom play in the NBA or get drafted by the NFL, and more people see the absurdity of the idea that someone’s marriage has anything to do with your marriage. Gays and lesbians are now the people next door, the neighbor down the block, the people we work with. And here we are.
Two years ago, five states and the District of Columbia had same-sex marriage. After the non-ruling Monday, the number rose to 26 states. Five more states, including Colorado, will join that group quite soon. Nearly 60 percent of Americans will live in states where gay couples enjoy basic civil rights, with many more to come.
No civil rights movement has ever moved with this kind of speed. In 1996, the Gallup poll showed Americans opposing gay marriage by a 68-27 margin. Now, more than half the country supports it. In some polls, it’s high as 60 percent. Among Republicans under the age of 30, the Pew poll has it at 61 percent.
Is it over? Of course it’s over on gay marriage. Some day the Supreme Court will make its ruling, and that will be that for all 50 states.
And, of course, it’s not over. There are fights at the margins, which aren’t really the margins. Someday gays will be a protected group everywhere, becoming just one more group that has faced discrimination from, say, bigoted bakers. Someday, and probably soon, the so-called “religious freedom” laws will be seen in the same way as the anti-gay marriage laws are seen now. The momentum is so great that gay rights, against all odds, will probably be the legacy of the conservative Roberts Court.
This was a day that we’ve known for a while was going to come. Now we know, finally, that the day has arrived.
Mike Littwin writes for the Colorado Independent.
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