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04/28/2015

About Chief Justice Roberts' 'closing of debate can close minds' line

by Jeremy Hooper

I've seen several different pro-discrimination activists cite the following comment from Chief Justice John Roberts as being something they can hold out as a sign of hope. Speaking to the pro-equality side (and attorney Mary Bonauto specifically), CJ Roberts said:

"...but if you prevail here, there will be no more debate. I mean, closing of debate can close minds, and ­­it will have a consequence on how this new institution is ­­accepted. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts." [Full transcript]

Jroberts CJ Roberts seems to be implying that a fifty-state ruling would somehow put an asterisk on the win or make it less valid in the minds of some. But I have to say, if this is something anyone sees as a cogent point and reasonable call for restraint, then our national understanding of minority rights and the courts' role in protecting them is in a worse place than even I thought.

Yes, in some ways, a fifty-state US Supreme Court ruling would close the broad political debate on this matter. But let's be very clear here: This has been a *very* robust debate that has played out in every arena of government. On both a state-by-state and national level, the American public has had a chance to see what this notion of marriage equality really looks like, and a consistent (and growing) majority of that public has come to embrace it as a social good.

Second, it's not like this court would take us from no states with marriage equality to a full fifty. No, no—we have nearly forty with marriage equality right now, and every same-sex married couple in this country has full federal rights. Over 70% of Americans now live in a state where same-sex couples can obtain the very same state and federal marriage rights as their heterosexual neighbors. And even though the pushback that is there is loud and tireless, the pushback is actually very minimal. I mean, we now live in an America where gay couples in some of our reddest states can legally marry, and there has been virtually no organized protest to speak of in any of those states. That's precisely because we have had this debate, and even most of those who might prefer a country without same-sex marriage have come to realize that our side has pretty much succeeded at winning what we set out to win.

Also, since when is the closing of a debate an automatically bad thing? The Supreme Court has effectively closed all kinds of debates, including closely linked ones pertaining to marriage. This doesn't mean that the debate is closed in terms of a citizens own home or family; anti-gay parents can and sadly will still forbid their children from bringing a same-sex fiancé to Thanksgiving dinner. But at some point in a lengthy debate's life cycle, we do reach a point where one side's clear and demonstrable case logic prevails over its consistently flailing opposition. I certainly believe we have reached critical mass in this marriage debate, and I believe that we have more than ably won this debate.

And finally and most importantly: Protecting a minority population's rights from majority tyranny is precisely what our courts should do. If state-by-state marriage bans are, in fact, unconstitutional, then it is the US Supreme Court's right and proper role to get them off the books and get them off NOW. That is the justices' job. That is the court's role. We don't leave open a debate just for shits, giggles, and theatrics. This is true even if the side that perpetuated the discrimination maintains a strong majority of public opinion; it's certainly true when lost that and just about everything else they once counted on.

The anti-equality/pro-discrimination movement loves this line of thinking because, frankly, they are one of the most entitled political movements to ever come down the pipe, and they do seem to believe that only they and their version of God get to say when a conversation is over. That is simply untrue. This debate, at least in terms of the conferring of civil marriage rights, will come to a period (or exclamation point?) I expect it will come soon.

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