Monday, December 10, 2012 at 5:55 AM
Not allowing gays to marry is an even greater violation of the fundamental civil rights all citizens should enjoy than not allowing Blacks to vote.
(“Same-sex Marriages Now Legal in New York,” June 27, 2011)
It is no exaggeration to lament that I have received more hate mail in response to my commentaries on same-sex marriages than any other topic. Particularly disappointing is that the most hateful mail came from fellow Blacks upbraiding me for presuming common cause between the struggle for our civil rights and the struggle gays are now engaged in for theirs.
This is why I was so encouraged when the Supreme Court announced on Friday that it will finally rule on whether states have the right to ban same-sex marriages or whether homosexuals have the same right to marry as heterosexuals, thereby vindicating my presumption.
Of course legal (and political) pundits will be coming out of the woodwork now to tell you which way the Court will rule. But all you need to know is that the same legal principle that compelled the Court to rule in Loving v. Virginia (1967) that Blacks and Whites have a fundamental right to marry each other will compel it to rule that gays have that (equal) right too.
Not to mention that the Court ruled in Lawrence v. Texas (2003) that gays have the right under the Fourteenth Amendment to engage in consensual sexual conduct “as part of the liberty protected” by the Constitution. Clearly the right to engage in that conduct “within the bounds of holy matrimony” is the natural, logical, moral, historical, and cultural extension of that liberty.
In other words, the Constitution as well as the Court’s own precedents should compel it to emulate the unanimous ruling in Loving in favor of same-sex marriages. Unfortunately, the political nature of this Court is such that most pundits are predicting it could rule 5-4 either way depending on how the one (purportedly) centrist justice, Anthony Kennedy, casts his vote.
All the same, I predict the ruling will be 7-2 in favor of same-sex marriages. Not least because – after betraying overt political bias to grant George W. Bush the presidency in Bush v. Gore (2000) – at least two of the four conservative justices will be loath to defy legal reasoning again to further a political/religious agenda in this case.
Far less controversial is how the Court will rule on the constitutionality of the Defense of Marriage Act (DOMA). This Act holds that states that ban same-sex marriages are not obligated to recognize such marriages even if entered into in states where they are legal, which clearly violates the Full Faith and Credit Clause of the Constitution.
I predict the ruling will be 7-2 against it. For clearly, if the Court rules that same-sex marriages are constitutionally protected, all states would be obligated not only to recognize them but also to accord them all of the marital rights, privileges, and benefits traditional marriages enjoy.
Incidentally, this Act is so patently unconstitutional that former President Bill Clinton, who signed it into law (for craven political reasons), has been in the vanguard of those calling for its repeal. More importantly, President Obama has ordered his Solicitor General, the lawyer responsible for defending all federal laws, to not even bother showing up at the Supreme Court to defend this one. Which means that the only people advocating for the Court to uphold the DOMA are Christian Mullahs and their political and legal hired guns.
The Court will hear oral arguments next spring and announce its rulings next summer.