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Supremes should play the Prop 8 case 'straight'

Uploaded: Mar 27, 2013
The cause of gay rights is a generational thing. That is, if you're over 60, your synapses may have ossified to the point where you can't get past the unfamiliarity of homosexuals (closets were roomier in days past) or a fixation on the prurient. If you are under 30, however, you can't imagine why anyone considers it a big deal: people have blue eyes, green or brown, are left-or-right-handed, gay or straight – all observed out in the open, with an indifferent shrug.

That phenomenon may be the best way to account for the Supreme Court's evident discomfort, confusion and timid search for an easy exit from the Prop 8 case they heard at oral argument yesterday. If they find one, they will further cheapen their legacy, already tarnished by overtly political decisions like Bush v. Gore and Citizens United.

I cut my legal teeth in the time just after bold and principled era of the Warren Court. It was and is a source of professional pride to have come into some affiliation with those jurists who understood their job to interpret the Constitution in a way that would give life to the promise of America, for all Americans. It is not clear to me that they looked for easy outs, or dithered over possible backlashes or unlikely sociological implications of their rulings. I'd like to believe that they "called 'em like they see'd 'em" without fear or favor -- freed, as they were, from periodic electoral accountability, and thus able to go wherever conscience and intellect might lead.

That is in some contrast to the current Court. Even the liberal wing, led by Justice Ginsburg, worries about rulings that get too far out in front of the nation's psyche on any given subject. In talks that augured this week's festivities, she has noted the abortion ruling Roe v. Wade and even the iconic Brown v. Board of Education racial desegregation order as examples that created an enduring backlash. Albeit her concern is that the Supremes not inadvertently set back the progress of such movements as civil rights. I would submit, however, three things: first, she's not in a good position to judge the current state of the national psyche; second, that's her job; and third, this is not one of those cases, anyway.

Nobody gets to be on the Supreme Court without being remarkably accomplished -- brilliant, even. Part of that ability, though, needs to include recognition of the limited view that their lofty cloister affords them. They live in splendid isolation, and are also prisoners of their own generational world view. Only three of the Justices are under 60 (Kagan, Sotomayor and Roberts), and Ginsburg herself is now 80. As above, homosexuality is just not much in their frame of reference. They all have bright young law clerks; we can only hope that the jurists are seeking their counsel here (the clerks might even suggest the possibility of a "frontlash" if the Court falls too far behind the rest of the land, who will, after all have to live with these precedents).

In addition, I do not think that the proper definition of the Court's role says anything about pulling punches when it fears a backlash. In fact, if we want to look to the most shameful blemishes on the Judiciary's record, the Japanese internment approvals stand-out in festering disgrace. Granted the backlash there might have been a wartime constitutional crisis, but the Supreme Court utterly failed to provide equal protection of the law to those citizens, under the 14th Amendment. The Supremes' job is to interpret the Constitution, and let the chips fall where they may – at least then the future battles, inevitable anyway, will be fought from the right side of justice and history.

Maureen Dowd had a great illustration in the NYTimes today that I only wish I'd come up with: what if the Warren-ers had been worried about whether they were getting too far out in front of the country in striking down restrictions on inter-racial marriage in the case of Loving v. Virginia? What if they'd dithered about the ability of bi-racial children to make their way in the world? The re-elected occupant of the White House might have an opinion on that issue.

Finally, even if the backlash concern is ever legitimate, the Prop 8 case is not such an instance. Roe v. Wade violated the most deeply held values of its opponents, who equate abortion with murder. Brown v. Board called-for twelve-years' intimate daily contact with black kids – from white parents who couldn't yet even come to grips with rock-n-roll music. Neither of those factors is present here.

In fact, the Prop 8 case is very similar to the Loving inter-racial marriage case: same-sex marriage implicates only its willing participants, it is a sub-text in a wider struggle, and it even involves the same social institution. There was no particular backlash to Loving, and neither will there be here.

The very bringing of the Prop 8 case had the signal effect of exposing the meager arguments against same-sex marriage – in open court, and subject to cross-examination. The primary expert for the law's defenders recanted his prior opinions, and the Prop 8 forces were left with the weak-link procreation argument to justify the law in terms other than irrational animosity toward a minority. As a participant in many-a-thread on the subject, I can testify that those discussions used to proceed for hundreds of posts, but now tend to die-out after only a few dozen. That also suggests to me that it's over – no backlash to fear around these parts.

There are many ways the Court could, well, come-out on this case; most point to the end of the line for Prop 8, at least in our fair little corner of the globe. But not necessarily – we won't know until June when the Court finally issues its ruling and opinions (there will undoubtedly be several). It seems unlikely that the Court will seize this opportunity to end this particular fundamental, irrational prejudice against a group that will forever be a minority in this land. That's a shame, because that outcome is exactly what Fourteenth Amendment Equal Protection was designed to achieve.

Cliffs Notes version: the Supreme Court is making an easy Prop 8 case difficult, by miss-interpreting its role.

Comments

Posted by B. Good, a resident of Blackhawk,
on Mar 28, 2013 at 6:47 am

Homosexuals can marry according to government standard after Prop 8 is struck down, but what will they want next. Until they corrupt the entire American society they will not be happy. Always whining! Just watch and see.

Although homosexuals will now marry, they will never have the true respect of decent thinking adults.


Posted by Derek, a resident of Danville,
on Mar 28, 2013 at 1:07 pm

Yep. Next thing ya' know, they will be demanding the right to discounted Blackhawk real estate and half off golf club memberships.


Posted by Tom Cushing, a resident of Alamo,
on Mar 28, 2013 at 1:17 pm

BG: I really don't know what 'they' will want next, because I don't know who 'they' are. As far as I know, gays and lesbians are just folks who'd like to be treated under the law like everybody else.

One great fear tactic is to lump an unfamiliar group together, assert they are all the same, and suggest that 'they' have sinister motivations -- Agendas, even. That worked better when gays were closeted, but now that so many are 'out' and self-identifying, it's pretty easy to see that they don't march in lockstep. Just folks. Actual experience often has a way of dispelling fears created by such tactics.

That said, everyone's free hold their own beliefs -- rational or not. It's only when those beliefs get enacted into laws that affect other people that the Constitution's Equal Protection clause requires that we ask the Q: is there at least a rational basis for treating people differently, i.e., excluding some group from forming the fundamental family unit of the society? If not, then individual rights trump majority rule in that case.

So, if you feel the need to disrespect somebody privately, okay. Have at it. But as the saying goes, your right to swing your arms ends at my nose.


Posted by B. Good, a resident of Blackhawk,
on Mar 28, 2013 at 3:04 pm

Tom Cushing must be blind if he cannot distinquish between a homosexual and other normal thinking and acting people. He is often blind to their agenda because one of his own offspring is a homosexual, and he feels that by advocating and defending homosexually, that homosexually may someday be accepted as normal.


Posted by Tom Cushing, a resident of Alamo,
on Mar 28, 2013 at 3:50 pm

You know, BG, writing this blog is a fascinating experience for my whole family.

Let's see -- my daughters are spoken-for, so which of my sons are you referring-to as 'the gay one?' Don't worry, they're grown and flown, and quite secure in their sexuality. I have their permission for this 'outing.' They are as curious as I am to know whether you are blowing smoke.

So, which one -- Bruce or Steve?


Posted by Diane, a resident of Danville,
on Mar 28, 2013 at 7:18 pm

Tom, I always admire your ability to be rational in spite of the mean spirited idiocy that is often demonstrated by those who live in their own private Idaho of "normal thinking." That BG feels he can distinguish one's sexual orientation using his own internal gaydar device (or even that one would have use for such a "talent") would be amusing if his arms reach did, in fact, stop at the collective noses of the LGBT community. Sadly, even those with clear paranoid delusions are allowed to vote and remove the rights of others.

Let's hope the Supreme Court makes quick work of this non-issue.


Posted by Tom Cushing, a resident of Alamo,
on Mar 29, 2013 at 7:26 am

Thanks Diane! Harking back to the 'stats-or-stories' column, you and I have held down this end of the argument on numerous threads over several years, right here on the DX. Your humanizing of the issues by recounting your family's experience lays out the injustice of it in very stark and convincing terms.

Meanwhile, My family and I await BG's out-ing of the homosexual in our midst!


Posted by Diane, a resident of Danville,
on Mar 29, 2013 at 1:54 pm

Tom, I appreciate you comments. I do wonder if it is truly helpful for me to discuss my own family when posting on these threads. It gives people like BG the impression that I care about whether people should be able to marry regardless of gender due to the make up of my family.

I believe that whether so many of the hetero couples in my family had serial marriages, or whether my sister was straight rather than a lesbian and in a committed relationship for over 20 years, that I would still fall smack dab on the same side of this issue. Frankly, my sister doesn't even want a shot at marriage and neither does her girlfriend. I think we hetero folks have sullied the whole institution as far as they are concerned. Still, they and I believe that everyone deserves the opportunity to decide who to love and who to marry, if desired.


Posted by Diane, a resident of Danville,
on Apr 1, 2013 at 8:18 am

Tom, methinks you inadvertently outed someone for smoke blowing.


Posted by Tom Cushing, a resident of Alamo,
on Apr 1, 2013 at 9:37 am

Yup -- BG may need to learn the first rule of Shame Club: that your target has to have something to hide.

Gay kids today owe a real debt to the brave souls at Stonewall, and their collective Rosa Parks Moment. If they and countless others hadn't had the courage to come 'out' in a pretty hostile society, it would be even more difficult for younger folks to be themselves, today.

I suppose this is as good a day as any to indicate that my sons Bruce and Steve are fictitious. I was hoping that BG might flip a coin and choose one, but perhaps he's been grounded. Or maybe their names gave away the game. Anyway, both my daughters Were active in the Gay-Straight Alliance in their respective high schools -- a source of parental pride, as it was all Their doing.


Posted by Diane, a resident of Danville,
on Apr 1, 2013 at 3:00 pm

Tom, nicely done. I just wanted to share my pride, with both of my kids being active in the GSA as well. During the days of demonstrating against Prop 8 however, my 12 year old son stayed in the van during a very rainy Saturday at the Livery because he didn't want to get wet. Meanwhile, my husband and I held signs next to an adorable 8 year old with his two moms, who was soaked to the bone and smiling from ear to ear. My son got demerits for that one!

All my best to Bruce and Steve...


Posted by John Brand, a resident of Walnut Creek,
on Apr 3, 2013 at 9:09 am

Ah the lovefest in all its forms. In Redwood City an openly gay teacher proudly flys her rainbow flag and encourages her students to wise up. There IS a bigger agenda. Some have also slanted history by proclaiming some as "gay." Not appropriate. I say bring on the triades--judge no one--nambla just likes 'em young--u r bad to judge!!!!lets have no societal standards at all.


Posted by Citizen Paine, a resident of Danville,
on Apr 3, 2013 at 12:18 pm

Dear Mr. Brand:

If you don't know the difference between a consenting adult and a child (or a pet), then kindly steer clear of elementary schools and dog parks.

Prejudice that masquerades as "standards" is what this case is all about. And if, in your ignorance, you Must pretend that you are protecting children by opposing equal rights of adults to marry, be sure to remind the grieving parents of closeted gay kid suicides of your good intentions. They will surely want to join you on that road.

It gets better, despite the Brands who remain. Web Link


Posted by Brian Cameron, a resident of Danville,
on Apr 3, 2013 at 2:42 pm

Lets not change the definition of marriage that has stood for thousands of years!


Posted by spcwt, a resident of Danville,
on Apr 3, 2013 at 4:54 pm

The only "right" Prop. 8 addresses is the right to use the name "marriage." Civil unions give gays (and anyone else) all the legal rights and privileges afforded to a marriage under California law. So all of Tom's blustering about "equal rights" seems shallow to me. Most people are terribly uninformed about that fact. They think Prop. 8 is about keeping gays apart, forbidding them to be together, suppressing substantive rights, etc. Nothing could be further from the truth.

I've never understood why using the word "marriage" is a big deal to those who don't want gays to use it and those who do. It's just a word. Get over it. If gays want to call their unions a marriage, why not? What right does the government have to tell gays they can't?

On the other hand, I don't understand why gays would want to describe their unions as a marriage. To me, it's like an African American claiming that the only way he can have equal rights under the law is if he is allowed to call himself white. Sorry. You're not white. If you want to be called white, then I suppose you should have that right. But what's wrong with being called African American? Sounds fine to me. But hey, what right do I or the government have to tell you what you can and cannot be called?

The government is also considering DOMA. Now that's where gays have a right to complain. Clearly, gays are getting hosed on immigration rights, social security, federal pensions, etc.

Every once in awhile Tom brings up Citizen's United. Can't let it go, can you Tom? Sorry Tom, it's a fantastic ruling in favor of free speech. And the justices DID call it as they saw it, despite blowback from people like you. The federal government has no right to suppress free speech, particularly political speech. And what are you crying about? It helped your buddy Obama win, didn't it?


Posted by Tom Cushing, a resident of Alamo,
on Apr 4, 2013 at 8:18 am

1 – For anyone who thinks that marriage has been a static concept for thousands of years, you don't know history. Read ANYthing on the subject. It was restricted to same-race couples as recently as 1967, for example, and was also so unbalanced that, as the saying goes, "Husband and Wife are One – and the Husband is The One."

Marriage, like every other social institution, has evolved over time, and will continue to do so.

2 – the "inherent difference" argument confuses the participants with the relationship. It is the love that underlies marriage, the commitment to life together, and the social respect accorded the institution of marriage that are its essence, not the particular identities of bride and groom.

The comparison to race just characterizes the bride and groom, and utterly misses that love, commitment and respect. The plaintiffs in the interracial marriage case didn't ask to both be called "white" – they wanted to be called "married."

So, you can tell the boys from the girls? Good for you, and that's thoroughly irrelevant to the matter-at-hand.

3 – What's in the name "marriage?" Juliet asked the same question. If words didn't matter, she and Romeo could have been married without incident. If words didn't matter, trademark law wouldn't exist, and Chevron's gasoline couldn't command a premium over chemically identical generic fuel ("Techron?" Please). If words didn't matter, you could put Subaru insignia on a Mercedes and not affect its market value. The CA Supremes got it right in the original Marriage cases, circa 2008:

"One of the core elements of this fundamental right [to marry] is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples, while offering same-sex couples only the new and unfamiliar designation of domestic partnership —pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry."

We've tried "separate but equal" in this society. It didn't work out so well.

3 – Finally, I wonder if you realize how demeaning the epithet "get over it" is? It is a very poor substitute for thought, and unworthy of someone who is capable of both actual analysis and human empathy. When you enjoy something that is precious and withhold it from others on the basis of that phrase, you contradict yourself. You attempt to trivialize the thing that obviously isn't trivial to you, and you condescend to those who demand it in equal sum, by placing yourself above them.

Not a good approach, methinks.


Posted by spcwt, a resident of Danville,
on Apr 4, 2013 at 11:51 am

I agree with most of what you're saying Tom. If the government can't show a rational basis for denying gays the right to call their unions a "marriage," then Prop. 8 should be struck down. Prop. 8 supporters' arguments are weak and I would expect Prop. 8 to fall.

I can see how people might view denying the marriage label to gays is akin to a "white's only" sign over a drinking fountain. "Separate but equal" is demeaning. Gays deserve decency and respect from everyone.

Labels have their uses, of course. It's not demeaning to tell a 25 year old that they don't qualify to use the "senior citizen" label. It's generally not demeaning to refer to someone's gender, race, or religion. They're labels, though not all are qualified to use them.

A lot of people have the view that denying the use of the marriage label is demeaning to gays, as if to say their union is less valid than a hetero union. They think forcing everyone to acknowledge their relationships as marriage will create a more just society. I get it. Sounds good to me.

Cassius Clay wants to be known as Muhammad Ali. Who are we to say no?

The Supreme Court ruled 6-3 that everyone has the right to dress up in military uniforms and claim that they won the Medal of Honor, even if they didn't. People have the right to be whoever they want. Don't let anyone tell you otherwise.

So great we finally see eye to eye on an issue, Tom! I think we are really making progress buddy!!


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