The Moment at Hand,by.Linda.Greenhouse
Two stories appeared on the website of The New York Times within hours of each other early this month. One reported that the drugstore giant CVS had stopped selling tobacco products in its 7,700 stores. The other announced: “Gay Groups to March in St. Patrick’s Day Parade as a Ban Falls.” These two developments had nothing obvious in common beyond their newsworthiness. And yet to anyone who has spent the past couple of decades living on planet Earth, the two stories conveyed the same powerful message: Look how times have changed. What was scarcely imaginable not too many years ago has come to pass...
Boston, home of perhaps the most iconic St. Patrick’s Day parade of all, hasn’t come around yet. It will be 20 years since the Supreme Court ruled unanimously that the South Boston Allied War Veterans Council, the Boston parade’s organizer, had a First Amendment right to exclude people seeking to march under a banner proclaiming their identity as gay, lesbian, and bisexual Irish-Americans.
That decision, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, wasn’t anti-gay. Rather, the court viewed a parade as an expressive activity — Justice David H. Souter’s opinion described a parade organizer as “rather like a composer” who decides what to include in the composition — that can’t be required by the government to include an undesired message. But while the Boston parade organizers stand on their First Amendment rights, which of course is their privilege, they must know that the world is changing around them.
When it comes to gay rights, it’s not as if we need proof of how things have changed in the past 20 years. But anyone looking for proof might put two documents side by side. Both are by the same author, the always interesting, often provocative federal appeals court judge, Richard A. Posner. One, from the mid-1990s, is a review of a book advocating legal acceptance of same-sex marriage by William N. Eskridge Jr., then a law professor at Georgetown University, now at Yale...
It seems odd to say this, because Richard Posner is no Everyman, but there is a sense in which, in his journey from “no” (in his 1992 book “Sex and Reason,”) to “maybe but not yet” to “yes and now,” he is a stand-in for many of us. Twenty years ago, even many well intentioned straight people found same-sex marriage a challenging concept to grasp, if they thought about it at all. Today, it would take an act of will to ignore the fact that as barriers fall, the sum total of human happiness increases and any theoretical downside remains — as the states have found — impossible to articulate convincingly. In an interview published this summer in the American Bar Association’s ABA Journal, Judge Posner mentioned and implicitly disavowed his earlier position on same-sex marriage. “My views have changed about a lot of things,” he said. “You don’t want a judge who takes a position and feels committed to it because he thinks it’s terrible to change one’s mind.”...
So it would come as no great surprise if the Supreme Court takes a pass this term. All my court-watching experience tells me that. But still, it’s hard to resist the sense that there is a moment at hand. You could almost call it a parade.
http://www.nytimes.com/2014/09/17/opinion/the-moment-at-hand.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region®ion=c-column-top-span-region&WT.nav=c-column-top-span-region
