The Supreme Court Is Being Weird About Gay Marriage

Are you one of the millions of people who watched the gay marriage victories in the recent election and felt momentarily buoyed by the thought that the rest of the country might not be a sea of frothy ultra-conservative player-haters?

Well prepare to sink back into paranoid worry. The Supreme Court is up to something, postponing again the decision of whether they'll take up gay marriage, probably because they're super busy trying to catch up on Girls before season two begins in January.

It's impossible to say for sure what's going on. The Prop 8 case was purposefully limited to California, so the court may just want a better, broader case to look at gay marriage on — or they could feel that there's only downsides to taking up the issue at all. Think the Obamacare ruling caused a fuss? If they decided on gay marriage for the whole country, they'd have either a country's-worth of conservatives ticked off (haha/uggghh) or a country's-worth of ticked off homos.

Which will make visiting relatives for the holidays extra gawkward. [Gay+awkward.]

Here's what the Supreme Court might do, worrywarts.

Delay as long as possible. It's almost certain that the court will eventually do something, but they could've accepted the case or turned it down as early as September. Clearly they feel there's some set-up to do: the court could fuss with the existing Prop. 8 case to make it national in scope, or wait for a better one. Chief Justice Roberts, who fled to Malta after the Obamacare ruling, is extremely politically conscious-but he wants his court to be authoritative and uncontroversial, too. With the election over, could he feel more comfortable stepping back into the fire? Or maybe the issue will just go away if you ignore it for long enough, like my boyfriend?

Turn down the Prop. 8 case: This is seeming less likely, considering that something is going on behind the scenes. It only takes four justices to decide to hear a case, so either the conservatives or the liberals could force the issue. But, if the court decides to let the previous ruling stand — to not hear the Prop. 8 case — gay marriage would become instantly legal in California, and California only. Marriages could happen within just a few days. That victory would be tempered by the fact that the rest of the country would be resigned to the current weird patchwork of laws remaining for potentially years and years. DOMA could still be overturned, making the patchwork less awful, but ehh.

Accept the case (or another similar one) and make gay marriage legal nationwide. There's some reason for hope here: Justice Anthony Kennedy, who's often considered the court's swing vote, has found for gay rights before — he even wrote the opinions for the two biggest Supreme Court gay rights victories of recent history: Lawrence v. Texas, which made it illegal to criminalize homosexual activities (in 2003! just before I started "experimenting" — thx AK), and Romer v. Evans, which barred states from saying gays couldn't be protected as a minority. And who knows about Chief Justice Roberts, who glitched out on Obamacare in June and has never ruled on gay rights before.

There's also the whole tide of history thing.

Accept the case and rule against gay marriage nationwide. The court is still 5-4 in favor of the conservatives. Gay rights advocates have tried to keep the Supreme Court out of the issue — in fact, Ted Olson and David Boies (the Republican and Democrat star lawyers who teamed up on behalf of gay marriage against Prop. 8 after fighting each other in Bush v. Gore) asked the Supreme Court to not hear the case, preferring a victory in just California to the risk of losing marriage nationwide. It's not hard to see Roberts retrenching with the conservatives after the huge Obamacare backlash, either.

To put things in perspective: after November, nine states and the District of Columbia allow gay marriage. That's 49 million people in the US who can legally marry whomever they want, boy/boy or girl/girl-and another 292 million people who can't, but they're all totally straight so back the F*** off, bro!

Nine old folk could give marriage to everyone, or take it entirely away. No one knows how it will turn out, but one thing's for sure: a lot of nerves are going to be left feeling really raw.


Joel Breuklander is a New Yorker by way of Orange County, California. He writes about queer issues, politics, and books.