This is the best we've got?
March 28, 2013 | The very name, Supreme Court, evokes an image of august and learned jurists asking trenchant questions that lay bare essential legal questions that underlie a case. If that's your notion, the past two days of oral arguments on the California Prop 8 and DOMA cases must surely make the scales fall from your eyes. It's not only Justice who is blind, but several justices as well, groping in the dark for a light switch so they can find their way out.
The Supremes are in a tight spot. They took these two cases, and now they realize what hot potatoes they've got their hands on. There are several justices—the conservative cabal of Roberts, Alito, Scalia, and Thomas—who would dearly love to banish gays and lesbians back into the closet, the far, far, innermost recesses of the closet, but they are also aware of a dramatic shift in public opinion accepting that gays and lesbians should have the same rights as everybody else. They know that if they follow their inner prejudice they will be on the wrong side of history (again!), but if they do what they know is right, scorn and anger will be heaped on them from the far right. What to do? What to do?
Their intense discomfort was obvious in their questioning, referring to "uncharted waters," a "step into the unknown," their inability to "see into the future," and so forth. All this hand-wringing avoided dealing with the real legal issue: unequal treatment under the law. And this caution is all the more laughable when we remember that this is the court that threw precedent and caution to the wind when they gave us Citizens United.
In the Prop 8 case, in particular, the attorney for the Petitioners (the Prop 8 proponents) was shown not to have a case to make. Justice Sotomayor got him to admit that marriage was the only area where he wanted to single out homosexuals:
Sotomayor: Outside of the ... marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? ....
Cooper: Your honor, I cannot.
Later, Justice Kagan zeroed in on the question of harm to heterosexual couples that would result from allowing same-sex couples to marry.
Kagan: What harm you see happening and when and how and — what — harm to the institution of marriage or to opposite-sex couples, how do this cause and effect work?
Cooper: ... we don't believe that's the correct legal question before the court....
Kennedy: Well, then are ... you conceding the point that there is no harm or denigration to traditional opposite-sex marraige couples?
Cooper: No, Your Honor, no. I'm not conceding that.
Kennedy: ... then it seems to me that you should have to address Justice Kagan's question.
Addressing Justice Kagan's question led to arguing that marriage was all about "responsible procreation," which argument was easily demolished by pointing out that many couples get married who cannot or don't want to procreate. Kagan asked if it would be constitutional to refuse marriage licenses to couples who were both over 55, and Cooper replied that it would not be. But he insisted that licensing was nevertheless appropriate because "it is very rare that both couples -- both parties to the couple are infertile." (Hello! Did you take biology in school?) Kagan had the last word:
Kagan: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. (laughter)
This whole procreation argument is just nonsense. The state really doesn't have to encourage procreation. That happens quite naturally and all too often without any encouragement from the state!
Then, again, there was Justice Scalia who once again demonstrated just how big an embarassment he is to the court by perseverating on what he thought was a clever rhetorical question, "I'm curious, when ... did it become unconstitutional to exclude homosexual couples from marriage?" Without an exact date he professed to be utterly unable to decide anything.
Hey, Supremes, What part of unequal don't you understand?
Trying to figure out what the Supreme Court will decide based on oral arguments is utterly impossible. So, we just have to wait a few months until they release their decisions. As my mama used to say, Hope for the best, but expect the worst.
Last updated on May 12, 2016