There had been an expectation that the U.S. Supreme Court would identify today which, if any, of the gay marriage/DOMA appeals that have landed on its doorstep. The expectation turned into additional waiting as the Court remained silent on these cases and those following the case will be waiting with baited breath to see if the Court will show its hand on Monday. In some ways I can understand the Court's hesitation: no matter what it does, factions within America will be unhappy. The Christofascists will rant against judicial tyranny if the Court upholds gay marriage and/or strikes down DOMA. On a longer term, however, if the Court does not uphold a constitutional right to same sex marriage, they risk being viewed by history as being akin to the Justices who ruled against blacks in the infamous ruling in Dred Scott v. Sandford, 60 U.S. 393 (1857), also known as the Dred Scott Decision. For those who do not recall their American history, in the Dred Scott Decision, the Court held that the federal government had no power to regulate slavery in the territories, and that people of African descent (both slave and free) were not protected by the United States Constitution and were not U.S. citizens. In short, with the younger generations being supportive of gay marriage by significant majorities, it is virtually guaranteed that over time any Justice ruling against marriage equality will be viewed by history as a bigoted monster. One has to wonder whether this is the type of legacy far right blow hards like Antonin Scalia to be how they are remembered by posterity. A piece in SCOTUS Blog looks at this dilemma facing the justices. Here are highlights:
These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.
I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
The cases present a profound test of the Justices’ judgment. The plaintiffs’ claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively.
The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.
The painful but sometimes unspoken truth is that seminal Supreme Court rulings sometimes reflect the era in which they were decided. In 2012, it is ridiculous to believe that the government could ban inter-racial marriage. But that was the law in much of the country for most of its history. In fact, it was a serious argument, and there were a number of similar laws on the books, when the Court declared them unconstitutional in 1967 in Loving v. Virginia. Society moved over the course of our history, and so did the Court’s understanding of the Constitution.
[T]he arc of history tilts towards equality and justice, and our society is rapidly but unevenly coming to the judgment that same-sex marriage is just and right. The claims presented by this case would just as inevitably prevail (probably by a wide margin) in the Supreme Court twenty years from now. By then, it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational. Our attitudes are shifting that fast.
Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”.
But the verdict of history cannot decide the legal questions presented by these cases. The cases arrive today, in this moment, before our cultural transition has completed. In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims. But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future. They will have to make a judgment now.
One option that the Court could decide to pursue is to hear none of the cases. This would by default restore same sex marriage to California via the 9th Circuit's ruling and and leave the 1st and 2nd Circuit rulings against DOMA standing, although this latter option would leave potential chaos on a number of issues impacted by DOMA. I'm sure that perhaps four of the Justices may not care if they are viewed as horrible individuals by history. The question becomes whether five Justices do want to be viewed as having been on the right side of history.
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