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Supreme Court is late to the party

People wait line enter Supreme Court WashingtMonday Oct. 1 2012. The Supreme Court is embarking new term thcould be as

People wait in line to enter the Supreme Court in Washington, Monday, Oct. 1, 2012. The Supreme Court is embarking on a new term that could be as consequential as the last one with the prospect for major rulings about affirmative action, gay marriage and voting rights. (AP Photo/Carolyn Kaster)

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Updated: January 10, 2013 6:33AM



To see how fast the world changes, all you have to do is try to get some film developed, or visit a bookstore. Not so long ago, every drugstore would develop your film. And there were lots of bookstores. No more — things change, sometimes very fast, sometimes issues which only a short time ago felt thorny and complicated and long-lasting just melt away, or seem to.

For instance, the United States Supreme Court announcing Friday that it will take up the issue of gay marriage — ruling on a pair of cases, one in New York, one in California, that go to the heart of the matter — is both dramatic and meaningless.

Dramatic because this is the first time the high court has weighed in on this. And meaningless because the issue has already been decided. To realize that the gay marriage question has been settled, all you have to do is look at the way public opinion breaks down into a direct relationship between age and approval. The younger a person is, the more comfortable they are with the idea of gay marriage. The older a person is, the more likely they are to be uncomfortable with the idea that homosexual citizens should be allowed to marry and form families.

Thus at this point, if nothing were done, the simple progression of time and the passing of the generations would settle the matter, just as cassette tapes have given way to iPods. In a few decades our grandchildren will look back on our current, dwindling prejudices against gay marriage with the same incomprehension we extend toward bigotries of the past — what, Jews couldn’t check into certain hotels? Blacks couldn’t use white restrooms? But grandpa, why?

In that light, the Supreme Court’s decision is not really that significant. If the court finds that California had no constitutional right to limit the freedoms of gay Americans, or, in the New York case, that the federal government is wrong to deny benefits to gay and lesbian couples living in states that permit their marriage, then those who agree will hail the decision and take justifiable comfort in it — particularly if the odious Defense of Marriage Act is struck down — while those who oppose gay marriage will mutter, as they always do, about “activist judges” and continue their opposition.

If the court rules the other way, however, and finds the government can legally create an inferior class of American citizens based on their sexual orientation, and shear them of basic human rights, then those who support freedom will be disappointed, but only temporarily, as the inexorable march will continue, while those who oppose will celebrate, not realizing it is an increasingly rare victory in a war they are certain to lose.

Why am I so sure?

Because I live in the fact-based world. There was no good reason why blacks couldn’t go in the swimming pool. They weren’t bad swimmers. Women, it turned out, could cast ballots just fine. Jews paid their hotel bills like everybody else.

There is no factual basis to keep gays from getting married. They don’t make worse husband or wives, they aren’t inferior parents on any measure. The data just isn’t there.

What is there is ignorance and its handmaiden, fear, cemented in tradition, which had free rein over the centuries but, as we’ve seen so often, wither in the modern world.

I don’t want to suggest that certainty of victory means the court’s decision is trivial. People’s lives hang in the balance, and, as with all social improvements, better now than later, better today than tomorrow.

But this is an issue where the electorate of four states voted last month to do the right thing. That never happened before, and as big a shock as it occurring now might have been, a bigger shock was how nonplussed people were afterward. There was little celebrating, little sputtering, it was just the world assuming the order it is going to have.

Not that homophobia will be eradicated, just as racism is still with us and anti-Semitism and all the other cramped keyholes that some people chose to peer through at this beautiful life. It will always be there, a pathogen, dormant at most times and in most people, breaking out in hideous display on some occasions in a few unfortunates.

The Supreme Court could rule very narrowly, on the question of whether the federal government can refuse to recognize same-sex marriages that states might approve. Or it could examine the broader question of whether such marriages should be legal.

One of the cases is a challenge to Proposition 8, an amendment to the California constitution approved by 52 percent of the voters in 2008. And while the court decision is important, more important is the fact that, if Proposition 8 came to a vote before the California public today, just four years later, it probably wouldn’t pass. The Supreme Court has yet to make its decision, but, like it or not, the decision has already been made.



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