RIGHT
WAR, WRONG BATTLES ?
JUSTICES
SEEM UNSURE OF JURISDICTION
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.
RIGHT MESSAGE, WRONG MESSENGER
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.
IT’S NOT SPLITTING HAIRS:
EQUALITY
FOR ALL
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.
SUPREME IRONY
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.
AND NOW WE WAIT
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.
TAGS: SUPREME COURT, SCOTUS, CALIFORNIA PROPOSITION 8, DEFENSE OF
MARRIAGE ACT (DOMA), ORAL ARGUMENTS, EQUALITY UNDER THE LAW, SAME SEX MARRIAGE,
EQUAL RIGHTS, GAY/LESBIAN/BISEXUAL/TRANSGENDER (GLBT) COMMUNITY, PUBLIC
SUPPORT, PUBLIC OPINION FAVORS SAME SEX MARRIAGE, COURT UNSURE OF MERITS,
JURISDICTIONAL ISSUES
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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