Littwin: The gay-marriage future is determined

[dropcap]T[/dropcap]he most amazing thing about the same-sex marriage debate is, of course, how quickly it has evolved. There’s no cultural norm — or at least none I can think of — that has ever changed with such speed.

And that’s why it should come as no surprise that the long-anticipated arguments in the Utah gay marriage case seemed so … tired.

And old.

And worn out.

It wasn’t the lawyers’ fault. They argued well. And it wasn’t the judges’ fault. They asked some incisive questions. It’s just that the arguments on same-sex marriage are so much yesterday’s debate, now being decided, according to the polls, in the court of public opinion, particularly among any citizen judges under the age of 40.

[pullquote]If the result in this case is truly a tossup, it adds to the excitement, but only marginally. We know how this story ends. The courts seemed to be catching up with society, and not the other way around. [/pullquote]

The future is determined. It’s the present that’s being adjudicated by the 10th Circuit Court of Appeals.

After the hour-long hearing, it wasn’t clear how Kitchen vs. Herbert would be decided by the three-judge panel when the announcement comes, maybe sometime in June. It looked as if Judge Carlos Lucero, a Clinton appointee, was in favor of upholding the ruling that same-sex marriage should be legal in Utah, of all places. Bush Sr. appointee Judge Paul Kelly seemed to be in opposition. The third, Judge Jerome Holmes, asked tough questions of both sides — although, just to spice things up, it turns out that he is a conservative George W. Bush appointee, but one who was also among the panel of judges that rejected an appeal from Utah to delay the same-sex marriage ruling.

It took 17 days before the Supreme Court would issue a stay, and, in that time, more than 1,000 same-sex couples were married in Utah. It wasn’t the ruling that was so hard to believe — not any more — but that there were 1,000 marriageable gay couples at the ready in red-state Utah.

If the result in this case is truly a tossup — and we may, in fact, have that all wrong — it adds to the excitement, but only marginally. Because it doesn’t really matter who wins. I mean, it matters. It matters to the plaintiffs, and it matters to same-sex couples who want to marry, say, here in Colorado, and it matters to those whose marriages could be upended in Utah, and it matters in determining how and when same-sex marriage finally makes its way to the Supreme Court.

But it doesn’t matter in the long view. We know how this story ends. A case from Oklahoma will be argued before the same judges here next week. There are cases pending in four other circuits. One ruling after another has affirmed gay marriage since the Supreme Court struck down the federal definition of marriage in U.S. v. Windsor. In his dissent, Antonin Scalia predicted the ruling — in which the Court studiously avoided determining the constitutionality of same-sex marriage — had, in effect, decided the issue anyway. He was right.

The courts seemed to be catching up with society, and not the other way around. And yet, it was only six to eight years ago that this was a winning wedge issue for Republicans. It was only a few years ago that liberal Democrats (see: Obama, Barack) were afraid to say they favored gay marriage. It seems like yesterday that gay activists were begging David Boies and Ted Olson not to take on California’s Prop 8. It was just last year that passing civil unions in Colorado was hailed as a landmark achievement.

I haven’t seen a good explanation for how everything changed so rapidly. Somehow, gay rights suddenly caught up with the other civil rights issues, but in one remarkable Carl Lewis-like leap. On the same day Kitchen was being argued, four presidents were in Texas to celebrate the 50-year anniversary of Lyndon Johnson signing the Civil Rights Act. We’ve elected a black president since, but 50 years later, race remains at the center of debate in America.

Much of the Kitchen case was involved with legal technicalities, and with the familiar arguments from Utah about procreation and the “risk” of same-sex parenting. But at the same time, the Utah lawyers had to admit the one study that claimed to show poor results for children in a same-sex marriage had been debunked. Still, attorney Gene Schaerr, arguing for Utah, argued for the need for “parental diversity.” Yes, parental diversity. No one seemed to argue the old argument — about gays and supposed immorality.

Meanwhile, the gay-marriage proponents argued: The only people injured in this debate were same-sex couples who were prevented from being married and, of course, their children who were denied the benefit of married parents.

If the proponents win, you can sum up this debate in a single question asked by Judge Holmes, the supposed swing vote in the case.

“Why does it matter who’s claiming the right?” he asked Schaerr. “It’s a fundamental right, and why does it matter the participants in that enterprise? Why does it matter?”

In his question about fundamental rights, Holmes was referring to Loving vs. Virginia, the famous anti-miscegenation case from 1967. Still, it took 40-some years after Loving before mixed couples could show up in a fast-food commercial without comment.

And today?

Before the arguments began Thursday, Sean Reyes, the Utah attorney general who refused to divulge his personal views on same-sex marriage, approached the plaintiffs and told them that, whatever happened, it wasn’t personal.

But, of course, it is personal. And not just to the plaintiffs.

And that’s how you know, whatever does happen, who will win in the end.