Bruiser Blog

Well, it’s finally here! Marriage equality is getting its day(s) in court! Of course it’s had those days before, but not in the Supreme Court (SCOTUS), the highest court in the land, the one with the final say. The one with the power to help or harm the cause for a long time to come.

What’s going to happen? I wish I knew. From what I’ve read, the Prop 8 ruling is looking shaky. It will almost assuredly come down to Justice Kennedy. And based on his questions and comments thus far, at least one theorist thinks he’s leaning toward upholding it. DOMA is looking a little better though. Probably because it allows the Justices to strike it down in whole or in part based on the idea of States’ Rights, without needing to weigh in on same sex-marriage itself in any substantive way.

And then there’s this analysis, which is a bit hard to follow. I am not a lawyer, but I think both the author and some of the Justices are full of shit, in different ways.

Justice Alito looked for “data” on this “institution which is newer than cell phones.”   Same-sex marriage, he said, might turn out to a “good thing”, or “not”, as Proposition 8 supporters “apparently believe.”  Justice Scalia said that there is no “scientific answer” to the decisive “harm” question at this time.”…

These worries about inadequate “data” might lead the Court to decide one or both of the cases on jurisdictional grounds, including (in Windsor) federalism bases.

What “data”? What “harm question”? A “scientific answer”? What?! If you’re going to insist on data proving that something causes no harm, shouldn’t you have some hypothesis as to what that harm might be? At least some rational idea of what harm it could potentially cause? Oh, hold on.

 [Cooper] succeeded in putting on offer (in my words) the following proposition: gendered marriage laws are justified by the fact – the moral reality – that marriage is gendered.  Redefining marriage as genderless obviously changes the meaning of marriage across our society.  The “harm” of doing that is just the harm that it does to people’s opportunities to know, understand, and to participate in marriage as the gendered relationship that it truly is.

Oh that harm! How did I miss that? [Insert eye roll here]. Fortunately “Cooper’s invitation to consider the moral reality of marriage had no takers.” But that leads me back to my original question. If the Justices didn’t buy this nonsense, what do they think the harm could possibly be? And why are they trying to use that basis in this case? For example, what data did they have telling them that considering corporations as people would not be harmful in Citizens United?

Justice Scalia jumped to a discussion about possible harms to children adopted by same-sex couples.  The Chief Justice took over the theme.

I knew that was coming. Look, child rearing is a red herring, a straw man, a distraction. There is some room for a reasonable person to suspect that a child might be better off with a father and a mother than with two fathers or two mothers. The evidence I’ve seen suggests that isn’t the case, but I can’t say that it’s definitive. But it doesn’t matter either way! Same sex couples have kids now, even in states where they can’t marry or enter civil unions. And many opposite sex couples get married without procreating (and sometimes without any intention or even the possibility of doing so) or adopting. Single people have kids. Child-rearing and marriage are related, sure, but they are distinct issues and should be dealt with as such. Tying them so closely together now does nothing but appeal to the “Won’t someone please think of the children?!” set. This is one of the most pernicious arguments against same sex-marriage, because it’s both fallacious and effective.

I said the author was full of shit, too. Let’s talk about that.

 But Chuck Cooper argued – correctly, in my view – that they are instead reasons to decide against the same-sex marriage claimants on the merits.  Cooper deftly folded the Court’s worries into an argument to let the “roiling” “democratic debate” rock on.  Paul Clement ended his rebuttal argument with this call: “Allow the democratic process to continue.”  Cooper concluded:  “It is an agonizingly difficult . . . political question,” one “properly decided by the people themselves.”

The people should indeed decide this matter for themselves.

Of course the supporters of discrimination would love to let “the people” decide. Since we know that “the people” are really Congress in this case, which is not about to pass a DOMA repeal. One GOP Senator supporting marriage equality is not enough to overcome a filibuster, which has become so routine these days. And then there’s the House.

By this rationale, the Courts should stay out of issues of discrimination entirely and wait for the slow democratic process of laws to do all the work. Never mind the fact that the Constitution promises equal protection under the law and that Supreme Court, not “the people” are the well-established arbiters of what is and is not constitutional. In an ideal world, “the people” would not possess biases and the majority would always do what’s best, even for under-represented minorities. But we’ve seen that’s not the case in the real world, and tyranny of the majority is not just a hypothetical problem, but an exigent one.

The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections.

—Lord Acton, The History of Freedom in Antiquity, 1877