Taking marriage equality to the US Supreme Court was not something many gay rights advocates wanted to do, not until it was a sure thing, or as close to it as they could imagine, with perhaps the majority of the population already having marriage equality via success in individual states. Despite the huge expense and the stress and hate it would stir up, there were many who thought a new ballot measure in California was a better bet, for instance.
Margaret Talbot reported to that effect in The New Yorker in early 2010:
Plenty of gay-marriage supporters agreed that it was smarter to wait until the movement had been successful in more states — and, possibly, the composition of the Supreme Court had shifted. (During the last year of a second Obama term, Scalia would be eighty-one.)
Talbot says advocates were haunted by the sodomy law decision back in 1986. The upholding of the constitutionality of sodomy laws had impeded legal progress for LGBT equality until it was struck down in 2003, a 17-year span no one thought we could afford to endure.
Part of the bet involved Scalia. He was old, and, boy, did he look unhealthy. If he dropped dead while Obama was in office, we’d have a 5-4 Democrat-appointed majority. Hallelujah!
Indeed, come 2018, God looked down and saw the time had come to remove that hateful man from our Supreme Court and provide President Obama the opportunity to bend the arc of history toward justice a little bit more. Sadly, the Devil had the stronger avatar on earth, and Senate Majority Leader Mitch McConnell refused to seat Obama’s mild-mannered, uncontroversial pick (a pick who’d been approved by Utah’s Orrin Hatch!). Thus we got two Trump picks.
Indeed, come 2018, God looked down and saw the time had come to remove that hateful man from our Supreme Court and provide President Obama the opportunity to bend the arc of history toward justice a little bit more. Sadly, the Devil had the stronger avatar on earth, and Senate Majority Leader Mitch McConnell refused to seat Obama’s mild-mannered, uncontroversial pick (a pick who’d been approved by Utah’s Orrin Hatch!). Thus we got two Trump picks.
Marriage equality did go before the Supreme Court before it was a sure thing — and we won it — in 2015, a too-close 5-4 vote. Scalia still alive and hating. Waiting would have taken us into the Trump era, and likely not worked out well.
source: “A Risky Proposal: is it too soon to petition the Supreme Court on gay marriage?”
by Margaret Talbot
The New Yorker, January 18, 2010, vol. 85 no. 45
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