Wednesday, March 27, 2013


Narrowness of cases may derail push for GLBT equality

(Wednesday, March 27, 2013.  SCOTUS, Washington, DC)  As the second of two days of oral arguments on cases regarding “gay marriage” have come to an end here, we all might be in the process of learning an advanced lesson in civics.  While public support for the rights of homosexual, bisexual, and transgender Americans is at an all-time high across all demographics, the Supreme Court may not be able to rule on the “merits” of each of the cases argued but rather may be forced to dismiss them due to legal technicalities and the strict criteria the Supreme Court of the United States (SCOTUS) demands of the cases it will or will not hear.  It seems that the two cases presented today and yesterday may not meet the rigorous standards to satisfy the Justices that these cases should have been brought before them at all.

Typically a case that makes its way to the Supreme Court has been fought in lower courts for many years.  Cases that meet the standards the Supreme Court operates by are indeed rare considering how many cases the lower courts from the District, State and Federal levels are argued annually.  Virtually all cases that have the longevity and represent issues that demand new legal precedent as only a ruling in the Supreme Court can provide are matters that apply to a broad segment of the populace or have far reaching ramifications for society.  Often cases languish in the lower courts for years and go through a byzantine labyrinth of appeals, motions, further appeals, rulings, stays, and injunctions only to become trapped in a circuitous route from one judicial level to the next and back again.  And, actually, this is how it should be.  The Supreme Court opts to hear only 40 to 60 cases per session and that is but a miniscule fraction of those they have to choose from.

What has become apparent from the oral arguments and, more importantly from the questions the Justices have posed to the attorneys on each side, is that both of these cases may be too narrowly focused and may not be suitable to be heard by SCOTUS at this point.  The proponents of the matters at hand may have gotten somewhat ahead of themselves.  In their eagerness to have the Supreme Court rule on their cases and address the broader by implication legalities, they may have taken cases that are too weak to survive the rigid scrutiny the Supreme Court is uniquely vested with to render judgment.  This may be a case (actually two cases) where the right war is being waged but these 2 individual battles may not be broad enough.


Borrowing an analogy from partisan elective politics a Party sometimes is in sync with public opinion in the majority of the issues pertinent to that election cycle but, for whatever reasons, they have nominated a sub-par candidate to be their standard bearer.  With anti-Viet Nam War sentiment running high in 1972 the Democratic Party chose Senator George McGovern as their presidential candidate.  His campaign theme of ending the protracted costly unpopular war in Viet Nam was a message that resonated with most voters yet the Senator proved to be a poor candidate, a man not fully up to the challenge of conducting a tough national campaign.  Despite being right on the major issue of the day, McGovern lost in an embarrassing landslide.  Just a quick glance back at the last 50 years of presidential politics and one can see how often this has been the case.

It is becoming clear that the two cases now before the Supreme Court may not be the right cases.  Yes, they each represent the “right thing to do” and the nation is obviously supportive of the core issue which is equality.  Couched in the terms of equal rights it is difficult for most main stream Americans and even those at the fringes to find a reasonable argument to justify denying equal rights to gay and lesbian couples.  After all, they seek nothing more than that – equality.  They want to have all the rights, benefits, responsibilities and burdens under the law afforded to them just as they apply to non-same sex married couples.  They do not want a “second class status” when it comes to marriage.  And they should not have to settle for anything less than the full and absolute extension of the rights and obligations all married couples are party to in America.

Some of the questions posed by the Justices over the course of the oral arguments indicate a split in the Court where, as he has many times before, Justice Kennedy may be the swing vote and therefore the deciding factor.  His line of questioning on Tuesday revealed that he does see some “injury” (in the legal sense) incurred by the children of same sex couples and this single repercussion of withholding the same rights opposite sex married couples enjoy may be his overarching concern. 

But the problem appears to be that the Court does not see these cases as sufficiently meritorious to warrant their consideration.  This could be a setback for the GLBT community but only a temporary one.  Actually of the two cases in question here the case argued today which seeks to repeal the 1996 Defense of Marriage Act seems to be the more sound.  The Justices questions to the litigators on each side of the aisle strongly hinted that they may see that issue possessing just the scantest cloak of constitutionality.  However, the peril inherent in this case is that the Court may simply find the DOMA unconstitutional and divest themselves of authority thereby sending the question back to the states to be decided by public referendums by the voters of each state.  There is some shaky territory between the DOMA which is a federal act and the ability of each state to decide the matter individually.  Left to their own parochial politics and political devices it is possible that each of the 50 states will draft 50 different versions of the DOMA or a bastardized initiative.  This would also be a setback for the “cause” as a whole.


As is so often the case the pundits, prognosticators and self-righteous, self-appointed guardians of our “American Values” find themselves on the wrong side of public sentiment and the wrong side of history.  No matter what the Supreme Court decides, if they decide anything substantive legally or not, the inevitability of equal rights for same sex couples is undeniable.  Historically in our past we can identify several pivotal, seminal points in time where the public opinion outpaced the laws of our land.  Progress in some of these fundamental issues was a slow, often bloody slog through the mire of prejudice, ignorance, and bigotry.  Opponents of change could readily drape themselves in their own armor of “moral certitude” which proved to be only self-evident to them.  Our history has demonstrated time and time again that justice trumps the demonetization of groups; that truth can overwhelm the shallow, false, and fear-mongering tactics of those standing in the way of progress. 

Looking back we see in stark relief how many sorrowful instances of the “old guard” futilely clinging to their biases and hatred were thwarted by the cresting wave of humanity and our innate sense of justice and equality for all.  Yes, it has been an often rocky road.  The march forward has at times been but a crawl by brave individuals who were the vanguards of a core belief that sought to have our Constitution applicable without exception.  Our courts have sometimes been complicit in denying our “inalienable rights” to some; aggressively contemptuous of the concept of equality under the law at other times.  Yet, despite the obstacles various movements have reached the proverbial “tipping point” and the weight of the collective conscience has prevailed.  And we have become a better nation, a better people because of those leaps of faith.


Our history as a nation is punctuated by times of codified “constitutional”   discrimination, limitation of rights, and even compromised worth as a human being.  Our Supreme Court has some very dark chapters written in to its history.  There were times that the SCOTUS established systematic denial of basic human rights based on their twisted convoluted distortion of our Constitution.  Slavery was the law of the land; “blacks” were not eligible to vote just as women had been denied that right for generations.  Forced integration in the form of “busing”, and in the aftermath of the attack on Pearl Harbor Japanese- Americans were interred in concentration camps.  The Alien and Sedition Act and Dredd Scott are two of the most infamous Supreme Court decisions ever rendered. 

The most recent instance of the Supreme Court rendering a dramatically erroneous judgment was in 2000.  In what will go down in history of one of the worst decisions ever made by SCOTUS, one with such far reaching ramifications that it literally changed the course of history was in Bush v. Gore, 531 U.S. 98 wherein the Court summarily ended the Florida recount of presidential votes and handed the presidency to George W. Bush.  The rest, as they say, is history.  The eight years of the Cheney/Bush Administration will be forever defined by its series of epic failures domestically and internationally.  That single Supreme Court decision, a blatant foray into electoral politics at the highest level virtually arbitrarily determined that George W. Bush should be the President of the United States.  The global repercussions of those dark eight years will reverberate for generations to come.  But that is another story for another time.

There has always been a measure of irony in the often contentious relationship between our Republic and her highest Court.  As is the case in every courtroom in the land when a decision is rendered there is always one party pleased while the other feels defeated. Throughout our history aggrieved parties have looked to the Supreme Court for legal recourse; disenfranchised have sought justice, and many of the most famous cases have set precedent in equality.    Many have chastised the Court for finding constitutional bases for matters that may appear to far exceed that brilliantly written document that is the spine of our society.  Some of been critical of the Court for not being more receptive to their cause, for “interpreting” the merits of their case along the narrowest of constitutional confines.  The SCOTUS has not always reflected public sentiment or even majority opinion but that is as it should be.

Our tripartite system of government with three distinct and separate branches has stood the test of time although there have been moments when it may have appeared to be shaken to its core.  Still, the balance of powers between the Executive, Legislative and Judicial branches works; it is that simple, it does work. 


The oral arguments are over, now we must wait to see what the Justices will decide.  Court observers predict there may be decisions reached and announced sometime in early June.  It will be interesting to see just how this divided Court views the issue of same sex marriage and equal rights for those who seek to become married or have already been married in one of the 8 states that have already legalized such unions.

It would be a shame if these were not the cases that should have been brought before the Court at this time.  That the legality of same sex marriage is inevitable is not the matter; when there will be federal law, federal protection for same sex couples is the looming question at this time.

We can only hope that the merits of these two cases will be considered and that a majority decision will rule against California’s Prop 8 and DOMA.  The time has come.  The majority of Americans see this as central to our core beliefs and to the word and spirit of our Constitution.  Equality for all is as defining a concept for America as any other single virtue.    Let us hope the Court reaches a consensus that affirms our most highly ideals that indeed, all men are created equal and endowed by their Creator with certain inalienable rights.


Tuesday March 26, 2013: California’s Proposition 8: Oral Arguments

Wednesday March 27, 2013: Defense of Marriage Act (DOMA): Oral Arguments

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