Justices don't want to do what they know is right regarding marriage equality
The Kansas City Star
The Supreme Court last week heard two cases related to marriage equality: California’s Proposition 8 banning same sex marriages and a challenge to the Defense of Marriage Act.
In portions of the proceedings I was able to hear, several justices asked questions and made comments that revealed more about themselves than about the issues before the court.
Justice Roberts opined that the gay community must be wielding a great deal of political power nowadays, otherwise why would so many legislators be coming out (so to speak) in favor of marriage equality. But if the gay community had such incredible political power, would they really need to be in front of a court to get equal protection under the Constitution?
I must have a different view of the purpose of the Court than Justice Roberts. Isn’t the purpose of the Bill of Rights to protect individual rights against a majority that imposes itself unfairly on those who are otherwise without power? Proposition 8 in California was approved by a vote of the majority. The Defense of Marriage Act was passed by Congress and signed by President Clinton.
The fundamental question is whether Proposition 8 and DOMA deprive a group of people of rights guaranteed under the Constitution, in particular, equal protection under the law.
Then there were comments by Justice Scalia suggesting that there is no scientific evidence about the effects of adoption on children. Good grief. There’s a truck load of research on this subject.
If the justices didn’t learn about this research by reading the newspapers, they could learn about it by reading briefs filed with the litigation. And if they didn’t have time to read the briefs before the oral arguments, at least they could ask whether such evidence exists rather than argue that it doesn’t.
Justice Alito worried that this matter of marriage equality is “newer than cell phones.” Well, no, it has been a publicly debated issue since at least the early 1970’s. Justice Alito seemed concerned that this marriage equality thing is just some kind of fad and that we would be well advised to wait a few more decades before deciding if a section of our society should have equal protection under the law.
Justice Kennedy made what was to me the most problematic statement. He commented that marriage equality was “uncharted territory” and that we didn’t know what effects granting such equality would have on society. This seems arguably true, though we do now have several states that have approved same sex marriage, and so far they have not fallen into the sea.
But do Constitutional rights exist because they are for the good of the whole or do they exist because they are just and true. Should we deny marriage equality because of the possibility that granting such would shake up our fantasies about marriage and force us to form a more sophisticated view of relationships?
And if a prospective prediction of negative effects causes us to delay the granting of rights under the Constitution, shouldn’t a retrospective examination of the damage of unfettered rights also result in a repeal of same? For example, should the right to bear arms be restricted if we conclude that tens of thousands of people have been killed because guns are so widely available?
Many commentators have said the Supreme Court is looking for a way to not address the fundamental Constitutional question of equal protection raised in the two cases argued before the court last week.
I can understand why they’d like to punt, but it would the wrong decision. Justice delayed is justice denied. They should make a clear decision. They know what’s right. They just don’t want to do it.