Wednesday, March 27, 2013

The slow death of bigotry

As Maureen Dowd and the New York Times editorial page underline, it is long past time for decency in America...


March 26, 2013
Courting Cowardice

As the arguments unfurled in Tuesday’s case on same-sex marriage, the Supreme Court justices sounded more and more cranky.

Things were moving too fast for them.

How could the nine, cloistered behind velvety rose curtains, marble pillars and archaic customs, possibly assess the potential effects of gay marriage? They’re not psychics, after all.
“Same-sex marriage is very new,” Justice Samuel Alito whinged, noting that “it may turn out to be a good thing; it may turn out not to be a good thing.” If the standard is that marriage always has to be “a good thing,” would heterosexuals pass?

“But you want us to step in and render a decision,” Alito continued, “based on an assessment of the effects of this institution, which is newer than cellphones or the Internet? I mean, we do not have the ability to see the future.”

Swing Justice Anthony Kennedy grumbled about “uncharted waters,” and the fuddy-duddies seemed to be looking for excuses not to make a sweeping ruling. Their questions reflected a unanimous craven impulse: How do we get out of this? This court is plenty bold imposing bad decisions on the country, like anointing W. president or allowing unlimited money to flow covertly into campaigns. But given a chance to make a bold decision putting them on the right, and popular, side of history, they squirm.

“Same-sex couples have every other right,” Chief Justice John Roberts said, sounding inane for a big brain. “It’s just about the label in this case.” He continued, “If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend,’ but it changes the definition of what it means to be a friend.”

Donald Verrilli Jr., the U.S. solicitor general arguing on the side of same-sex marriage, told the justices, “There is a cost to waiting.” He recalled that the argument by opponents of interracial marriage in Loving v. Virginia in 1967 was to delay because “the social science is still uncertain about how biracial children will fare in this world.”

The wisdom of the Warren court is reflected two miles away, where a biracial child is faring pretty well in his second term in the Oval Office.

The American Academy of Pediatrics last week announced its support for same-sex marriage, citing evidence that children of gays and lesbians do better when the couples marry. It may take another case, even another court, to legitimize same-sex marriage nationally, but the country has moved on. An ABC/Washington Post poll showed that 81 percent of Americans under 30 approve of gay marriage. Every time you blink, another lawmaker comes out of the closet on supporting the issue.

Charles Cooper, the lawyer for the proponents of Prop 8, which banned same-sex marriage in California, was tied in knots, failing to articulate any harm that could come from gay marriage and admitting that no other form of discrimination against gay people was justified. His argument, that marriage should be reserved for those who procreate, is ludicrous. Sonia Sotomayor was married and didn’t have kids. Clarence and Ginny Thomas did not have kids. Chief Justice Roberts’s two kids are adopted. Should their marriages have been banned? What about George and Martha Washington? They only procreated a country.

As Justice Stephen Breyer pointed out to Cooper, “Couples that aren’t gay but can’t have children get married all the time.”

Justice Elena Kagan wondered if Cooper thought couples over the age of 55 wanting to get married should be refused licenses. Straining to amuse, Justice Antonin Scalia chimed in: “I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, ‘Are you fertile or are you not fertile?’ ”

Scalia didn’t elaborate on his comment in December at Princeton: “If we cannot have moral feeling against homosexuality, can we have it against murder?”

Cooper replied that a 55-year-old man would still be fertile, which was a non sequitur, given that he hails marriage as a bulwark against “irresponsible procreative conduct outside of marriage.”

He said that California should “hit the pause button” while “the experiment” of gay marriage matures. And he urged that we not refocus “the definition of marriage away from the raising of children and to the emotional needs and desires of adults.” Did he miss the last few Me Decades?

The fusty legal discussion inside was a vivid contrast with the lusty rally outside. There were some offensive signs directed at gays, but the vibrant crowd was overwhelmingly pro same-sex marriage. One woman summed it up nicely in a placard reading “Gays have the right to be as miserable as I make my husband.”

The only emotional moment in court was when Justice Kennedy brought up the possible “legal injury” to 40,000 children in California who live with same-sex parents. “They want their parents to have full recognition and full status,” he told Cooper. “The voice of those children is important in this case, don’t you think?”

While Justice Alito can’t see into the future, most Americans can. If this court doesn’t reject bigotry, history will reject this court.


March 26, 2013
The California Marriage Case

Before the Supreme Court justices turned to the merits of the case on Proposition 8, California’s ban on same-sex marriage, they seemed perplexed by a procedural issue: whether the petitioners had legal standing to appeal a lower-court ruling that struck down the ballot measure. Having taken the appeal, they cannot easily decide to avoid the substantive question of whether same-sex couples have a constitutionally protected right to marry in California and elsewhere in the country.

If the court decides the case on the merits, it is hard to imagine that a majority could be swayed by the arguments offered by Charles Cooper, the lawyer for the marriage ban’s supporters. Even if his presentation had been more fluent, there was no way to overcome the incoherence of his position.
The core of Mr. Cooper’s argument was that a ruling allowing same-sex marriage would be “redefining” marriage in a way that undermines the “responsible procreation” of children. Yet California allows same-sex couples to adopt children, and many heterosexual couples who can’t have children get married.
When Justice Sonia Sotomayor asked him if — outside the marriage context — he could “think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens,” he could not. When Justice Elena Kagan asked him to describe “what harm to the institution of marriage or to opposite-sex couples” would occur if same-sex couples were allowed to marry, he failed to provide a single example. He also contended that “debate over whether the age-old definition of marriage should be changed to include same-sex couples” should be left to the states but could not explain why the Constitution would permit this kind of discrimination.

Neither the Federal District Court in California nor the United States Court of Appeals for the Ninth Circuit found any of his arguments persuasive.

By contrast, Theodore Olson, representing the supporters of same-sex marriage, had the benefit of solid logic on his side. Noting the long line of Supreme Court cases that have declared marriage a fundamental right, he argued that society had no rational basis denying same-sex couples the dignity that marriage affords. Justice Antonin Scalia, with his familiar sarcasm, said: “I’m curious. When did it become unconstitutional to exclude homosexual couples from marriage?” Mr. Olson politely answered with two questions: “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

Justice Anthony Kennedy, who may be a swing vote, remarked, “We have five years of information to weigh against 2,000 years of history or more.” But he pointed out to Mr. Cooper, “There are some 40,000 children in California” with same-sex parents and “they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

Solicitor General Donald Verrilli Jr., in support of Mr. Olson’s clients, made a cautious, lawyerly argument that the court should rule that California and the seven other states that allow civil unions equivalent to marriage could not deny same-sex couples the status of marriage — and should leave for another day the broader issue as applied to all other states. But he acknowledged that “waiting is not a neutral act” and that it “imposes real costs.”

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