U.S. same sex marriage ruling: Beware Lewis Powell's regret

The late U.S. Supreme Court Justice Lewis Powell once claimed to have never met a gay person.

Awkwardly for Powell, the young law clerk with whom he shared that thought was, in fact, a gay person.

That was in 1986. Since then, a veritable ice age has passed in the evolution of America's thinking about sexual orientation.

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It's unlikely any of the Justices hearing arguments about same sex marriage this week believes that he or she has never met a gay person.

More likely, a majority of them is now ready to take the historic step of finding a constitutional right to same sex marriage — or of at least forcing all states to recognize same sex marriages even if they won't all actually license them.

The Justices are said to be wary of moving ahead of public opinion on controversial moral issues, but in this case they won't be.

They probably know the most recent public opinion poll shows 60 per cent of Americans now support same sex marriage.

Court watchers believe the majority will have the votes of Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Anthony Kennedy, and maybe a sixth vote from Chief Justice John Roberts. 

"The change in people's attitudes on that issue has been enormous," Justice Ginsburg said in an interview earlier this year. "I think that, as more and more people came out and said that 'this is who I am,' the rest of us recognized that they are one of us."

There is certainly evidence for that view. The proportion of Americans who said they know someone gay jumped from 25 per cent in 1985 to 74 per cent by 2000.

But polling that dates back to 1988 shows that support for same sex marriage moved more slowly. For two decades it never got as high as even 40 per cent.

Recall that in the 2004 Presidential election, Republicans were still able to mobilize their base by loudly opposing same sex marriage. Some believe George W. Bush could not have won a second term without Republicans in key states whipping up "gay" marriage hysteria.

Something changed around 2008, because support for same sex marriage suddenly began to spike.

It was right about the time that California became the first jurisdiction ever to revoke a constitutional right to marriage.

The state Supreme Court recognized the right to same sex marriage in May 2008. Then in November a relatively slim majority of Californians — 52 per cent — voted to take that right away in a referendum known as Proposition 8.

Prop 8's sponsors celebrated, but it was all about to backfire on them.

Just as people don't get too excited about freedom of speech until someone tries to take that freedom away, it took Prop 8 to ignite a hot debate about the fairness of shredding California's constitutional right to equal marriage.

Soon Prop 8's backers found themselves in a San Francisco court facing a judge who demanded cold facts of law, not the political theatre and outright lies they'd offered in the Prop 8 campaign, to justify taking away the right of certain adults to marry the people they love.

I was there for the opening of the trial, ready to hear sharp lawyers make arguments that a poor layman such as me wouldn't have had the wits to consider. 

Instead, what I heard was a mean-spirited case that amounted to this:

Same sex marriage threatens traditional marriage. Evidence? None.

Same sex couples are inferior parents. Evidence? None.

Same sex marriage will lead to polygamy. Evidence? None.

There were near-Kafkaesque moments, such as when Judge Vaughn Walker asked the Prop 8 legal team for evidence to support one of their claims and was told, "You don't have to have evidence of this point."

The Prop 8 team lost at trial, lost again on appeal, and again at the U.S. Supreme Court.

Yet here we go again, as more attempts to ban same sex marriage — this time in Kentucky, Michigan, Ohio and Tennessee — have brought the issue back to the Supreme Court.

This time the stakes are enormous. If those who oppose same sex marriage lose, they will have to live with the fact that rather than block it, they had a hand in speeding up the day when it must be recognized by every state in the union.

This is an historic case, and no one knows that better than the Justices who will decide it.

While they consider the shifting attitudes in America, they might also reflect on Lewis Powell, the Justice who once believed he'd never met a gay person.

Powell was the swing vote in Bowers v. Hardwick, the decision that kept Georgia's anti-sodomy laws on the books, effectively criminalizing homosexual sex, until the court reversed it in 2003.

Powell was dead by then, but he lived long enough to admit that he'd missed an important shift in public opinion. And to regret the vote he'd cast in Bowers as a shameful mistake.