NOTE in 2016: I switched my political preference to sanction the term "marriage" for same-gender couples when religious freedom laws emerged after this decision. The vote against the term marriage had been contingent upon same-gender couples availing themselves of very right accorded to 'traditional' married couples. When it became obvious that such justice would not proceed for 'civil unions', justice required that the term "marriage" be applied, with its full cultural approbation, to same-gender couples.
The Supreme Court acts as a Council of Elders for the
Republic in which we live. That does not
imply infallibility but should command our respect. The Supreme Court for over two centuries has
successfully asserted a role of clarifying what the law says under the Constitution. In controversial decisions, some see the
Court as over-reaching while others believe it is protecting the rights of
citizens and States as enumerated and implied under the Constitution.
Either way, what the Supreme Court does is judicial
review to provide checks on the powers of other branches of government and of
aggressive or belligerent majorities.
And, on this day of all days, we ought to be properly grateful to the
nine men and women who serve not us alone but those yet to come. The Decision of U.S. versus Edith Windsor (“Windsor”), which
overturned the key provisions of the Defense of Marriage Act of 1996
(“D.O.M.A.”) conforms to this tradition of deferential goodwill.
Truthfully, I voted against same-sex marriages in a
Maryland referendum in 2012. That
proposition only passed 53-47% in one of the bluest of blue states; gay
marriage is not a ‘gimme’ nor is it a gimmick.
These unions are here to stay. I
would still vote against that proposition, notwithstanding Windsor, were it
held again today. Yet declaring D.O.M.A. to be unconstitutional was “meet and
right so to do” by the Supreme Court.
The Court’s opinion – written by Justice Kennedy on behalf of himself as well as Justices Ginsburg, Kagan, Sotomayor and Breyer – made a compelling, pithy point that, “D.O.M.A. seeks to injure the very class New York [law] seeks to protect….” Further, the split decision (five votes to four) found a common ground in favor of two constructions of the Constitution and precedents consistent with the national charter.
First, the D.O.M.A. law went far beyond a simple definition of marriage to disenfranchise a group of couples from economic rights and political sanctions afforded to other couples in a manner outside of the scope and against the spirit of the Constitution. Second, committed relationships are the proper province of state laws. Contrary to the assertions of this decision being an example of judicial over-reach, Windsor corrected flagrant legislative over-reach and economic discrimination.
Under this decision, states still have latitude to
legislate or regulate marriages. Yet Justice Kennedy stayed in the everyday real-world by stating, “….until recent
years, many citizens had not even considered the possibility that two persons
of the same sex might aspire to occupy the same status and dignity as that of a
man and woman in lawful marriage.” The
argument against expanding traditional definitions of marriage to include gay
unions is actually one that is well thought out.
Though I still agree with the essence of those
arguments, its disturbing application under D.O.M.A. spelled the law’s
demise. Basically the conservative view,
outside of the bullies bloviating across the air-waves, is simple. First, with few exceptions, across millennia
and societies, marriage had meant monogamy between a man and woman, principally
for the creation and socialization of children.
Without the secure transmission of values, civilizations falter.
And we see evidence of that verity, however
unfashionable, to this day. The
statistics are unmistakable: children of broken families and single parent
households, especially boys, tend to run into more behavioral and adjustment problems as adolescents and adults. This may
likely apply to children growing up under same-sex couples. The rub here is that wealthier families with
intact extended family networks often compensate for any real or perceived
deficiency of a non-traditional family unit.
In a nutshell, that is the argument: tradition and
statistics (at least as the latter apply to the more economically stressed and
isolated). Now, anecdotally, same-sex
couples seem largely to be affluent and often nurtured by loving extended
families that are well educated. That is
great. For me, I would like to see a
meeting of minds of the more civil arguments between both sides. Marriage remains a heterosexual monogamous
union while civil unions are available to committed same-sex couples.
That would mean, at least on the national level, absolutely
no discrimination of one status over the other, with equal protection under the
law and equal access to the advantages of being American citizens. While conservatives may object to a mere
semantics game suggested here, I would submit that this compromise balances
respect for the tradition of matrimony – still a sacrament in many people’s
eyes – with fraternal acceptance of all manner of goodwill and righteous
citizenship.
There still remain a couple of house-keeping points
brought to the fore by the dissent of Justice Scalia. First, should the Supreme Court have ruled on
this case at all, since it basically upheld the findings of lower courts? Yes, it should have, as Justice Kennedy
wrote, “relevant prudential factors that counsel against hearing this case are
subject to ‘countervailing considerations [that] may outweigh the concerns
underlying the usual reluctance to exert judicial power.’”
While the decision stated that the lack of
‘precedential’ guidance for ninety-four district courts and over a thousand
laws mandated this exertion of judicial power, I would go beyond that to the
underlying purpose of the Constitution itself: to secure the blessing of
liberty for the citizenry. Since the Constitution
is a user’s manual for republican government based on natural law, its aim is
to limit national powers as those specifically delegated to the government by
the governed (i.e., in our case, states
and people).
Those enumerated powers belong to the government for
two reasons: scope and protection of natural rights. Scope is easy to identify. There can only be one foreign policy of the
United States, at least at a time. Most
of the other enumerated powers focus on matters truly national or international
in nature. The protection of natural
rights is a little trickier. Often, such
rights – always open to differing interpretations – are best left to the
states.
On the other hand, there are rights that transcend the
states and transcend people. They are
the natural rights endowed by the Creator as expressed through His nature
manifested on Earth. For the less
religious among us, I suggest re-phrasing this idea as a neo-platonist notion
that there are certain practices, norms, behaviors, etc. that consistently
emerge across time and space. This
persistence of overt behaviors implies an absolute upon which specific
conventions and norms are modelled, if imperfectly.
The beauty of our Constitution is that it
really is a how-to book of the natural law captured in short-hand within the Declaration
of Independence. These inalienable
rights of life, liberty and the pursuit of happiness (i.e., property) are what
the Constitution is designed to protect within a larger scheme of social
and national interaction. When state-level
or popular practices abridge these inalienable rights, without merit in the
eyes of a reasonable and disinterested fellow citizen, the issue is no longer
one for the states.
That explains why – despite brilliant compromises and
articulate Supreme Court opinions – slavery never went away until it was
abolished without exception or mercy.
That is why the dilemma of pro-life versus pro-choice keeps nagging at
us even after the Supreme Court tried to resolve it by reserving such judgments
to the states and protecting an implied right of privacy. In this vein, D.O.M.A. did not resolve this
question of equality for same sex couples; it abridged the rights of gay
Americans. At the least, the right to equal economic benefits.
The other implication of Justice Scalia’s erudite and
articulate dissent with which I disagree was best put forward by my F.B. friend
and, virtual oracle, Dr William Monie Bauer.
Bill and I agree on what Justice Scalia implied – making these cases
piecemeal. We differ on their effect on
the larger society. If the Court had
dismissed the hearing without definitive precedent, every instance of
discrimination against same-sex couples would have to go through a separate
suit.
Dr Bauer is right that the judicial cholesterol would clog the system and the government, finally forcing much-needed reforms of the court system ridding it of its most burdensome dysfunctions. Yet, piecemeal trials would permit people to slow the progress toward eliminating abridgements of natural law in service of a more perfect union. My inarticulate argumentation ought not render inscrutable a fairly straight-forward perversion of justice.
Take the 1954 ‘Brown versus Board of Education’ decision, for example. If Topeka had simply let those black children into the white school before the Supreme Court had rendered a decision, then (under Justice Scalia’s reasoning), the case would have had not standing and been dismissed. What an ingenious way for white supremacists to pursue apartheid: every time a case came close to decision, let a few black kids into the white school.
The at-most dozen or so black children thus admitted
every year to foil a governing precedent would be so small compared to the
white majority that, in areas of overt racial oppression, those children would
probably be out of there soon and, if not, would have so little influence that
“99.9% separate would be inherently unequal.”
In fact, segregation would still be in place today under the precedent
of the ‘Plessy vs Ferguson’ decision of 1896.
The decision to gut D.O.M.A. is a welcome application
of judicial and national power to eradicate a systemic injustice. As for my own feelings about gay unions; that
is irrelevant. Heterosexuality is my
preference, but it ought not be my presumption.
I would suggest to those fond of citing Sodom and Gomorrah, as examples
of the unnatural state and consequences of homosexuality, that they have
overlooked one very important aspect of the larger story that prefigures the
compassion later exemplified in other faiths.
Abraham taught God all about compassion (and, for those who see homosexuality as something sinfully deviant, forgiveness) by haggling Him down to finding one good man in the city limits to get that desert dumpster off the hook. Frankly, I am not one to buy into the forgiveness argument for I see nothing to forgive. The incidence of homosexuality rises with levels of sentience among beings. Additionally, findings suggest that sexual preference is either innate or manifested early in life.
