Today the Supreme Court will hear arguments on the constitutionality of Proposition 8, California’s ban on same-sex marriage. And tomorrow it will hear arguments on the Defense of Marriage Act (aka DOMA), a federal law that defines marriage as between one man and one woman. DOMA also holds that states that ban same-sex marriages are not obligated to recognize such marriages or provide any of the thousands of benefits that accrue to heterosexual marriages — even if same-sex marriages are entered into in states where they are legal.
It’s an indication of the Super Bowl-like interest in these cases that spectators began queuing up for a courtroom seat as early as last Thursday.
And legal, political, and religious pundits are doing their best to ape sports analysts by offering all kinds of putative insights on how the court will rule. Most notable is speculation that, because conservative Chief Justice John Roberts has a lesbian first cousin, he will side with liberal justices in favor of gay rights in each case.
I agree. Not least because conservatives have a dubious record of abandoning their political and religious convictions whenever it suits their personal interests. Anti-gay Republican Senator Rob Portman of Ohio demonstrated this in dramatic fashion just weeks ago when he suddenly came out in support of same-sex marriage after his son came out as gay.
Yet, to be fair to Justice Roberts, an August 5, 2005 report by the New York Times makes clear that he has a record of providing pro-bono legal advice to gay activists. Which is why it’s unfortunate that his lesbian first cousin has been giving media interviews letting the world know that she will be seated front and center for arguments as his special guest and insinuating that, based on their relationship alone, “he will do the right thing.” Again, Roberts is no Portman. But, evidently, she’s so desperate for her 15 minutes of fame that she doesn’t care if she undermines his objectivity and credibility. Hell, she’s so vain she probably thinks these cases are just about her….
Yet, ironically, her sideshow could force Roberts to vote against her interest in a misguided attempt to really prove that he’s no Portman (i.e., just another conservative who abandons his legal convictions whenever it suits his personal interest).
All the same, I am willing to bet my life savings that the Court will overturn California’s ban and rule DOMA unconstitutional. To do otherwise would make a mockery of the equal protection, liberty, and Full Faith and Credit clauses of the Constitution.
Mind you, I can see conservative Justices Antonin Scalia and Clarence Thomas torturing legal reasoning to further their political/moral opposition not just to gay marriage but homosexuality itself. But that leaves seven of them to do the right thing, including conservative Justice Anthony Kennedy who has a record of opinions on the Supreme Court that are even more supportive of gay equal rights than Roberts’s pro bono work in private practice.
And, just for the record, it is demonstrably specious to argue that gay civil rights should be determined by state legislatures or referenda. Because if Black civil rights were left to these devices, Blacks would still be sitting in the back of the bus and using separate but (un)equal places of public accommodations. In other words, just as it took Supreme Court decisions to validate equal rights for Blacks, it will take Supreme Court decisions to do the same for gays.
Finally, apropos of having a record in this respect, I have written too many commentaries on these issues to count. But I shall let excerpts from just two of them suffice as my contribution to the babel of punditry masquerading today as informed analyses.
With respect to same-sex marriage:
I believe it is a self-evident truth that not allowing gays to marry is an even greater violation of the fundamental civil/equal rights all citizens should enjoy than not allowing Blacks to vote.
(“Same-Sex Marriage Now Legal in New York,” The iPINIONS Journal, June 27, 2011)
And with respect to DOMA:
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.
(“Supreme Court to Rule on Same-Sex Marriage,” The iPINIONS Journal, December 10, 2012)
Related commentaries:
Same-sex marriage now legal…
Supreme court to rule…
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