Marriage Equality and the Supreme Court: What to Make of it All!

 

            For two days this week, proponents and opponents of the rights of gays, lesbians and transgender Americans to be afforded the same marital protections that heterosexual couples enjoy, camped out in front of the United States Supreme Court in our nation’s capital to lend their voices and energy to their side of this most divisive argument. We saw the usual signs being carried, some by children who probably don’t really understand, but have been recruited by their parents and their community to evince intolerance or radical behavior, depending on which side you are on. We heard the talking heads all tell us how useless it is to predict how the court might rule, but they all did it anyway.

            I don’t want to get into the jurisprudential nitty-gritty on the possible outcomes because, quite frankly, I have no idea what the ruling might be and, as with the ruling on the Affordable Care Act, may be something unanticipated by the experts. What I really want to talk about is the tone and manner of the questions posed from the bench, and how they reveal a very deep cavern of woeful ignorance from some of the best educated men in the world. Moreover, why were the questions posed from the women Justices, as well as Justice Kennedy, much more representative of the reality of daily living for same-sex couples?

            First and foremost, is the manner in which, not only Justices Scalia and Alito, but Chief Justice Roberts as well, seemed to fear the newness of same-sex couples falling in love and wanting to get married. Talk about playing to the lowest common denominator! Homosexuality is nothing new. It’s even in the Bible. The only thing that is new about issues of homosexuality, is that in the 21^st century, most Americans have evolved out of their bigotry, which has been church and state sponsored for centuries. This institutionalized “otherness” is really what is at the core of this, as well as many other issues of our time.

            Justices Scalia and Alito expressed a dumbfoundedness regarding timing and history. When did this maliciously institutionalized discrimination become illegal? And what if this experiment doesn’t work out? And isn’t there research out there suggesting that being parented by homosexuals is bad for kids? This argument reminds me of the arguments against biracial marriages in the 1960’s, which went something like this:  We can’t let these people get married because their children will suffer at the hands of the empowered racists in our country. This argument clearly empowers oppressors and bigots, and excuses their malicious and unlawful conduct as a societal norm. I thought America was about empowering freedom, not state-sponsored hatred. Why are we always playing to the lowest common denominator, even in the face of an overwhelming national change of heart on this particular issue?

Justice Roberts seemed reluctant to see the plaintiffs as victims, and seemed to blame the pro-gay lobby for the fact that this case was even before him. Isn’t that kinda like saying to defendants Miranda or Gideon, “Well, you made it this far – all the way to the Supreme Court, so you obviously don’t need any 5^th or 6^th amendment protections because you have evidenced how empowered you are just by getting here. So go back to jail.”  What kind of judicial review is that? As I listened to these questions I was simply astounded at such profound ignorance in such a majestic setting! Which makes it all the more evident that we really need more women and ethnic minorities on every court in the land. I do not include Justice Thomas in the class of ethnic minorities, but more of an “honorary white” man, as that appears to be his desire.

            Justice Kennedy seemed to struggle with some of the same issues as his male counterparts, but asked questions about the children growing up in these families, showing his human side. Justice Kagan essentially proved the unconstitutionality of DOMA (The Defense of Marriage Act) directly from the bench by reading from a congressional report and revealing a clearly impermissible legislative intent. Justice Ginsberg’s “skim milk” marriage comment made it clear that she easily perceived the distinctions between a marriage that was fully recognized by the federal government and one that was not. Justice Sotomayor also evidenced a focus on the practicality of daily living, as well as a keen awareness of how the history of “otherness” plays out in our society.

            I don’t know what this court will do. It certainly has been full of surprises for everyone. I was hoping that Chief Justice Roberts was smart enough to see the handwriting on the wall, and seize this as his Earl Warren moment, when the then-Chief Justice showed us all how to make an about-face when it is appropriate, and just, to do so. But, alas, that does not appear likely.

            One thing we learned for sure is that old white conservative men, including Justice Thomas, don’t know what they don’t know.