The Waiting Game

The big same-sex marriage case. We now know it’s coming (arguments in April). We’re pretty sure we know how it’s going to come out (same-sex marriage bans will fall across the nation). And assuming it comes out the way we think it will, when it comes down, sometime in late June, we know it will be a landmark moment in the history of the Supreme Court and the nation.

So we are engaged in a waiting game, a rather remarkable one, I believe. Waiting around for the Supreme Court is a fact of life. It is a deliberate and deliberative institution, so Court-watchers are often reduced to small talk while waiting for the Court to take a case, to hear arguments in a case, and then to decide a case. But usually waiting on a major ruling from the Supreme Court involves some degree of suspense as to that ruling’s outcome. In the long lead-up to Brown v. Board of Education (it was argued twice before the Court), smart money was on a desegregation ruling, but few were overly confident in that prediction. Recent blockbusters such as the Affordable Care Act case were impossible to predict (after oral arguments, many assuredly announced the Affordable Care Act’s days were numbered). But it is hard to recall a case of the magnitude of the upcoming same-sex marriage case in which there was so little uncertainty as to what the Court was going to do.

One roughly parallel case might be the 1967 decision striking down bans on interracial marriage, Loving v. Virginia—the case the upcoming same-sex marriage ruling will join as an iconic statement on the question of marriage equality.

For over a decade following the 1954 Brown decision, the Court carefully avoided directly confronting the question of whether the so-called antimiscegenation statutes violated the Constitution. The issue, the justices felt, was too emotional, a ruling striking down these laws likely further challenging the Court’s legitimacy at a time when it was having trouble enough getting the South to accept school desegregation. But by late 1966, the Court felt the time was right. The civil rights movement had transformed the nation, affecting attitudes and rewriting laws. The Court had struck down Florida’s law prohibiting cohabitation of interracial couples in 1964. The idea of interracial marriage was still overwhelmingly unpopular, but the belief that such marriages should be prohibited by legal sanction was in decline. (A poll in 1965 found public opinion divided on laws prohibiting interracial marriage.)

In April 1966, when the Virginia Supreme Court rebuffed a challenge to the state’s antimiscegenation law, the path to the Supreme Court was set. “The most explosive issue in American race relations may soon plummet into the chambers of the U.S. Supreme Court,” predicted African American journalist Carl Rowan at the time. Interracial marriage was the “emotional Rubicon over which millions of Americans have not yet crossed,” wrote Rowan.

The following October, looking ahead to the upcoming Supreme Court term, New York Times Court reporter Fred P. Graham wrote that if the Court took the case “it is a foregone conclusion” that they would strike the law down as unconstitutional.

On December 12, 1966, the Supreme Court announced it would hear the challenge to Virginia’s antimiscegenation law. “In accepting the appeal,” reported the New York Times, “the Supreme Court set the stage for a historic ruling on the last vestige of ‘Jim Crow’ legislation to survive in the South—the 17 states banning intermarriage between whites and Negroes.”

Unlike the Court’s decision to take up the gay marriage issue, however, the granting of certiorari in the Loving case was not front-page news (the story could be found on p. 40 of the Times, p. 6 of the Washington Post). News reports identified the case as important, but not necessarily transformative. Commentators portrayed the case as a kind of mopping up operation. After years of “expansive use of judicial power,” explained the Times’ Graham, the Court looked to spend a term “tightening nuts and bolts,” and among the bolts that needed tightening was “administer[ing] the coup de grace” to the last segregation laws.

Although the outcome of the Loving case was as predictable as the outcome of the upcoming same-sex marriage case, most commentators simply did not consider Loving to be as significant as what we expect of the same-sex marriage case. Perhaps there are other parallel cases that come closer, but it seems to me that the Court waiting game we’re playing right now is unique.

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