Saturday, July 04, 2015

210.5 - SCOTUS rules on same-sex marriage

SCOTUS rules on same-sex marriage

Pastor Brooks provides a natural segue, so okay, let's talk about it. You knew I would.

It was Friday, June 26. The crowds were there, waiting, expecting. Inside, the visitor galleries were full, waiting to hear the decision of the Supreme Court in the case known as Obergefell v. Hodges.

Justice Anthony Kennedy, writing for the majority, began to read his opinion. After a short while, the tenor, the direction, of the ruling became clear. The smiles started. The tears started. Word was brought outside, where the smiles and tears could be joined to hugs, kisses, and cheers.

It was happening. It was really happening.

Anthony Kennedy
"No longer may this liberty be denied," Kennedy said, before ending his opinion with these words:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.
And it was done. Bans on the right of same-sex couples to marry are unconstitutional. The "fundamental right to marry," long recognized by the Court, cannot be denied based on the gender of the person you love.

There were, of course, dissents; the decision was 5-4, just as many had predicted. The dissents came from the expected quarters, the Foul Four, with for example John Roberts grousing that the Constitution doesn't contain the words "same-sex marriage" or something, it's not really clear what he's arguing.

John Roberts
Perhaps, at least to me, the weirdest part of his dissent came near the beginning, when in what strikes me as one of the most incoherent legal arguments I've come across, he said that "The fundamental right to marry does not include a right to make a State change its definition of marriage."

Then how do you have a "fundamental right to marry?" How do you have a "fundamental right to marry" if you can only marry someone the state is willing to accept? Do you have a "fundamental right to vote" if you can only vote for officially-approved parties or candidates? Do you have a "fundamental right to speech" if you can only choose from a list of officially-approved sentiments?

Ultimately, it just seems that Roberts doesn't really have an argument and he's saying nothing beyond "Same-sex marriage is kinda icky and the court should just ignore it."

Sam Alito
Sam Alito, for his part, ranted that the majority opinion "will be used to vilify Americans who are unwilling to assent to the new orthodoxy." He noted that the majority compared so-called "traditional marriage laws" to laws that denied equal treatment for African-Americans and women. "The implications of this analogy," he warned in language that should have been illustrated with an image of his face lit from underneath, "will be exploited by those who are determined to stamp out every vestige of dissent." Which actually sounds like he's predicting that anti-LGBT bias will become as unacceptable in polite society as anti-racial bias supposedly is. Oddly, he seems to think that's a bad thing.

And then there was Antonin Scalia, railing about a "threat to democracy," in a dissent that was, like most of his opinions, quite Shakespearean - that is, "a tale told by an idiot, full of sound and fury, signifying nothing."

Antonin Scalia
The caustic brew of vitriol and incoherence stirred up by the Foul Four only serve to put the decision into sharper relief; their fury only serves to show that they know as well as does the majority the importance of what has happened.

Make no mistake: This is an historic decision. This is our generation's Loving v. Virginia, which struck down bans on interracial marriage, a decision decried at the time as a violation of "traditional marriage." This is our Brown v. Board of Education, which banned racial segregation in public schools. This is a decision having real direct impact now and for the future on the human rights of Americans. Obergefell v. Hodges will in the future be referred to as a case that significantly advanced human rights in this country.

This is a decision, even as I said here over and over again and even said other places before I had a here, "on this, justice will come," it's a decision that just a few years ago I did not imagine would come so soon. Indeed, not many years before that I didn't expect would happen in my lifetime.

We have indeed moved very fast on this. According to the Pew Research Center, 10 years ago, in 2005, Americans opposed the rights of same-sex couples to marry by a margin on 53-36 - and that was an improvement from the year before. Now, Pew finds that Americans favor the rights of same-sex couples to marry by a margin on 57-39, a figure that aligns with a CNN/ORC poll finding that 59% of Americans say they agree with the Supreme Court ruling.

This does not, of course, mean the end of the matter. There will be legal questions to be decided, such as the tax-exempt status of religious colleges that refuse to provide housing for same-sex couples while offering it to heterosexual couples.

More immediately, the right wing, like always, is stamping its feet, whining and sniveling about unfair it all is and how they just ain't gonna do it. The states of Louisiana and Mississippi have engaged in stalls, insisting that the Supreme Court ruling doesn't count because it contained no direct order to immediately issue marriage licenses to same-sex couples, while Alabama has gone so far as to suggest that the decision just doesn't apply until its own state Supreme Court rules on the matter.

In Texas, state Attorney General Ken Paxton has told county clerks in the state that they can refuse to issue marriage licenses to same-sex couples if the clerk religiously objects to same-sex marriage because there is no Texas court order to do so. The same, he added, applies to judges and justices of the peace. He even went so far as to say that if a clerk is sued for refusing to issue such a license, "numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights."

This is, of course, a legal question that got resolved long ago: religious convictions do not release you from your obligations as a public official. If your religion burdens your duties, you can't hold that position. Period. One such official, Denton County (Texas) Clerk Juli Luke, acknowledged that fact in response to Paxton's promotion of obstructionism: She said that
same-sex marriage is a contradiction to my faith [but] I took an oath to uphold the law, and my personal belief cannot prevent me from issuing the licenses as required.
Which, again, seems to simple it's hard to imagine the objection.

But of course the right wing doesn't care, they never do when the law or legal principles apply to them.

You know, the right wing that dominates the Texas government seems to be convinced that state law overrules federal law. I wish Texas would just go ahead and secede. I think they'd be surprised how few people who be sorry to see them go.

Most of this opposition is, again, just foot-dragging, just stalling, done as likely for local political reasons as an other, and they will wind up caving.

But what this does point up, as I noted earlier, this is not the end of the matter, not even then, which is why same-sex marriage proponents are still working to try to change the minds of that 40% who are still opposed to justice.

The important fact is, even in the wake of this historic decision, LGBT folks still face legal discrimination in multiple ways across multiple states and, as some of the reactions to Friday's decision make clear, there are still those - more than enough of them - who fear and loath LGBT folks, including, apparently, the US Conference of Catholic Bishops, which called the ruling on same-sex marriage "profoundly immoral and unjust."

And there will continue to be massive doses of panic and pandering, the latter not just from the right. So don't make too much out of the image of the White House: Barack Obama has been a hypocrite on this from the beginning.

Back in the '90s, while running for state office in Illinois, he declared on a candidate's questionnaire that he supported the right of same-sex marriage. But when he burst onto the national stage, where such a position was still unpopular, he said he was against it. As public opinion began to shift, he declared himself against same-sex marriage but in favor of civil unions. As opinion continued to shift, he said he was "evolving" on the issue. Finally, when general opinion had changed enough that it was no longer a serious political liability to support same-sex marriage, then he was all for it.

So don't make too much of this image. But I put it up because I like it, because whoever on the White House staff was responsible for it did a cool thing - and because it portrays the celebration of an historic decision as one undertaken by us as a people, as a nation, as a whole, which is exactly how it should be.

Sources cited in links:


Christopher Vanderhorst said...

The headlines in the USA can now read:

"Gay Marriage - 2 Out of 3 Ain't Bad."

1. Civil marriage = Secular, any sexual orientation, paper marriage and divorce.
2. Spiritual marriage = Religious, any sexual orientation, paper marriage and divorce.
3. Physical marriage = Natural children (inseparable union), heterosexual only, no paper.

Maybe this should be the headline instead, since it works around the World:

"Heterosexual Marriage - 3 for 3"

So much for equality.

Larry E said...

A strange comment, to be sure. If I correctly dig out the well-buried point, it's a claim that opposite-sex "marriage" is somehow "better" than same-sex marriage ("3 for 3" versus "2 out of 3" and "so much for equality") because procreation is through heterosexual sex. Put another way, it's just another attempt to denigrate same-sex unions as inferior to "traditional" ones, this time by doing what the opponents of marriage equality are always claiming advocates do: re-defining marriage.

I will say the attempt, involving three types of "marriage," is at least original - but the logic remains vaporous and the purpose invidious.

Consider the third category, the one about "physical marriage." Does that mean that every time you have heterosexual sex you are "married" to your partner (or, hey, what the heck, partners)? Perhaps not, because it refers to "natural children" so maybe you're just, I dunno, engaged or something rather than "married."

Okay, then, what about those "natural children." Does that mean the cliched "unwed mother" is actually married? There have been cases of lesbian couples having children through artificial insemination of one partner either by a willing donor or an anonymous one. Does "physical marriage" mean that woman is a polygamist, married both to her spouse and the sperm donor?

And then we have the "inseparable union," which if it is to mean anything at all must mean that the bonds, the "union," adoptive parents form with their adopted children are inferior to those parents form with their "natural children." But "inseparable?" I'll grant genetically, but in any way that really counts beyond being at greater risk for a variety of inherited diseases and conditions? Inseparable physically, emotionally, spiritually, financially? Seriously?

Conclusion: This concept of a type of marriage which is by definition available only to heterosexual couples, a concept intended to show that opposite-gender relationships are superior to same-gender relationships, fails miserably.

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