It's out of our hands now. Oh sure, go ahead and protest, petition, and picket. But now that oral argument is over, marriage equality depends solely on the mood of the nine justices of the Supreme Court.
We'll find out how they feel about the freedom to marry in about two months. (Although with most of them, we can make fairly confident guesses.) In the meantime, we powerless members of the public are faced with a choice: We can either wring our hands and fret, or reassure ourselves that it went well yesterday and try not to stress out too much.
Personally, I prefer option 2.
In case you hate reading, here's a little video I made to get you caught up on the top (and bottom) arguments.
As I've mentioned, Scalia might've messed things up for himself by trying to raise the specter of religious discrimination. Bizarrely, he seemed to want to pretend that the First Amendment doesn't exist and that gay marriage would force ministers to officiate over wicked sinful gay weddings. (Or, conversely, having to give up their ability to issue marriage licenses.)
Obviously, that's dumb. Some states have had marriage equality for more than a decade, and there's been no problem with religious officials being compelled to do anything. Sotomayor seemed to throw up her hands at this silliness and pointed out that antidiscrimination laws have not forced ministers "to do gay marriages."
By bringing the question up, Scalia inadvertently (I assume) took all of the air out of one of the supposed threats of marriage equality. Once the idea came out of his mouth, the other justices and lawyers could quickly dismantle it. So... thanks, Antonin, for that weird little self-defeating maneuver. Hope you're not too lonely up there on your own petard.
And that wasn't the only unexpected cause for celebration yesterday: Breyer and Sotomayor were both delightfully open to the idea that marriage equality is guaranteed by the constitution — it's a "fundamental liberty," i.e., for everyone.
"The right to marriage is... embedded in our constitutional law. It is a fundamental right," said Sotomayor. I knew I liked her ever since I saw her ruthlessly deflate the career ambitions of this princess:
That marriage equality is embedded in the constitution is pretty much exactly the point that the LGBT couples, represented by attorney Mary Bonauto, were trying to make. In other words, we don't want to invent gay marriage; we just want to participate in regular marriage.
Ruth Bader Ginsburg remains the Supreme Court's greatest badass, the Sophia Petrillo of the legal system. She had no patience for the argument from the states that letting gay couples marry devalues the institution for others. "How could that be?" she said. "You're not taking anything away anything from heterosexual couples."
As mentioned in the video, Justice Kennedy is probably going to be the decider here. Although he made some worrisome comments about adhering to tradition, he also perked up when the topic of "dignity" came up.
"Dignity" is Kennedy's word of the day, and has been every single day for the last few decades. He is intensely focused on dignity as a benefit bestowed by law, as crucial as freedom of association or personal privacy. When the attorney for the states started to explain that marriage isn't about affording dignity to relationships, Kennedy seemed to suddenly make up his mind: "I thought that was the whole purpose of marriage," he said.
Well, that and doubling your wardrobe (in the case of gay couples). But sure, yeah, dignity's good too.