Anthony Lewis recently passed away – the man who made America actually pay attention to the Supreme Court. Someone had to explain what was going on after the 1954 Brown decision that declared state laws establishing separate public schools for black and white students were unconstitutional, which overturned the 1896 Plessy decision which pretty much allowed state-sponsored segregation. This changed everything and everyone knew a decade or more of trouble would follow, which is what happened, even if there was no vote about any of it and Congress passed no laws desegregating anything until a decade later. Nine guys in black robes turned America upside down, for the better, eventually – which was better them than a hundred guys in white robes with burning crosses trying to do the same, but puzzling. Anthony Lewis finally stepped in to explain how this was a good thing in his 1964 book Gideon’s Trumpet – the story of a petty thief whose fight for legal representation led to Gideon v. Wainwright – where the Supreme Court unanimously ruled that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases for defendants who are unable to afford to pay their own attorneys.
That changed everything too – being poor no longer meant you got screwed by the system, and suddenly there were public defenders, a whole new class of attorneys we all pay for with our tax dollars, so no one is legally defenseless anymore. Public defenders aren’t the sharpest lawyers around, but it was a place to start and it was pretty cool – Henry Fonda played Clarence Earl Gideon in the 1980 television movie of the Lewis book. Two years after the Gideon decision it was Miranda v. Arizona – the ruling that a criminal defendant must be informed of his or her right to consult with an attorney before and during questioning, that they have a basic right against self-incrimination prior to any questioning by police, and the defendant must acknowledge, on record, that he or she understands these rights. Now that’s a staple of every crime show on television – the way the system works – but no one voted for any of this and Congress passed no laws requiring anything of the sort. Nine guys in black robes turned America upside down again, and Anthony Lewis made it his life’s work to explain how the Supreme Court was there to rescue America from itself – to make sure everyone plays fair, using the Constitution as a guide, not what any president decides he wants or what Congress mistakenly decides should be the law.
No one now argues much about these particular decisions, but over time Lewis’ view of an almost heroic Supreme Count passed out of fashion. Conservatives rail about activist judges who somehow make new laws that change everything, when that’s Congress’ job, not theirs. Rick Santorum is still unhappy with Griswold v. Connecticut – the 1965 decision that there was a “right to marital privacy.” There the Supreme Court held that even if the use of contraceptives was illegal in Connecticut, the state police had no right to bust down doors looking for condoms and throwing folks in jail. That was overreach, and that established a general right to privacy only implied in the Constitution, which led directly to the 1973 Roe decision legalizing abortion – until the fetus was viable the government had no business in intervening in anything, as that was a private matter. Griswold was the basis for that decision. The pro-life crowd disagrees, but the worst thing might be what that led to. In 2003 there was Lawrence v. Texas – the Supreme Court rule that the state had no right to bust down doors and arrest two consenting adults engaging in homosexual acts in the privacy of their own home. Those two consenting adults had a right to privacy too. That state’s anti-sodomy laws were struck down. They’d have to be rewritten somehow – even in a state where the majority finds homosexuality a sin and an abomination and a threat to all that is good. Those activist judges had done it again. They’d bypassed the will of the people and the people’s elected representatives.
The whole thing just played out again in the Supreme Court this week with Tuesday’s oral arguments. To summarize, the California Supreme Court had ruled that same-sex marriage was legal, then the voters of California voted for Prop 8 which declared same sex marriage would be now and forever totally illegal, which was challenged in district court and lost, so it remained illegal, and then a circuit court said no, voting that same-sex marriage is illegal is unconstitutional – no one gets to vote on someone else’s basic rights, so it is legal, and the state wouldn’t defend Prop 8 anyway – so others took it to the Supreme Court, but those others may not have standing in the matter at all – and now Californians are sixty-one percent in favor of gay marriage being legal so they’d like a do-over on that Prop 8 thing. The complications of all this were discussed here but it comes down to a situation where the Supreme Court will have to decide if, by popular vote or by state law, a certain class of people can be denied access to the institution of marriage, and all the legal and tax benefits of that institution. The reasoning got a bit baroque, and absurd, with discussion of the true nature of marriage as it relates to fertility and whatnot, and how gays were just… different. Underlying it all is the question of whether marriage is a private matter, whatever its public implications. Gays shouldn’t marry – that ruins everything – or that’s no one else’s business, as in Griswold long ago.
The second day of argument was about a more limited question, whether Congress can withhold federal benefits from married same-sex couples, married in those states where it is legal. Some states say they’re married and the federal government says no they’re not. Which is it? Lower courts have said that the Defense of Marriage Act of 1996 is unconstitutional – you really can’t treat legally married gay couples differently from straight ones. Yes, Clinton singed that Defense of Marriage Act that makes no sense, but even Bill Clinton now says it was a terrible mistake, as does every Democrat who voted for the damned thing – but really, one must decide whose definition of marriage has standing here. That’s a puzzle.
This one was a bit easier:
The Supreme Court appeared ready on Wednesday to strike down a central part of a federal law that defines marriage as the union of a man and a woman, as a majority of the justices expressed reservations about the Defense of Marriage Act.
On the second day of intense arguments over the volatile issue of same-sex marriage, Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage, and of questions of the rights of children, to the states.”
That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that recognizes only the marriages of opposite-sex couples for more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, which allow such unions.
If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been thought to be the essence” of state power, which he said was to regulate marriage, divorce and custody.
That’s a punt. They decided this wasn’t about equal-protection principles at all, just the limits of federal power:
Paul D. Clement, who served as solicitor general under President George W. Bush and defending the law on behalf of House Republicans, argued that the federal government was entitled to use a uniform definition of marriage across the nation.
Mr. Clement said countless laws over time had been enacted with the traditional definition of marriage in mind. When Congress approved the 1996 law, he said, it was worried that if one state extended the definition to include same-sex couples, those laws would effectively be changed.
“What Congress says is, ‘Wait a minute,'” Mr. Clement said of what had happened in 1996. “‘Let’s take a timeout here. This is a redefinition of an age-old institution.'”
Justice Elena Kagan wasn’t buying that:
“Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus and so forth?” she asked.
She read a passage from the House record at the time that said the law had been animated by a “collective moral judgment” to “express moral disapproval of homosexuality.”
Mr. Clement responded: “Of course, the House report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach.”
“Just because a couple legislators may have had an improper motive” is irrelevant, Mr. Clement said, adding that the usual question for the court was simply whether the challenged law was supported by a rational justification.
What moral disapproval of homosexuality? The federal government is entitled to use a uniform definition of marriage across the nation. It makes things easier, but that’s what caused the problem in the first place:
Wednesday’s case, United States v. Windsor, No. 12-307, concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor, who was in the courtroom on Wednesday, inherited her property.
Roberta Kaplan, a lawyer for Ms. Windsor, told the justices that the 1996 law had produced “discrimination for the first time in our country’s history against a class of married couples.”
The law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.
Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the contested part of 1996 law.
Those are the kind of problems you run into, and Adam Serwer frames it this way:
Once upon a time, there was an overreaching and intrusive federal government that stuck a woman who lost her spouse with a $300,000 tax bill. Then a group of black-robed heroes who believe in constraining excessive government power saved the day and told the nasty feds they couldn’t do that.
That may sound like a conservative fairy tale. But in this particular story, the widow, Edith Windsor, who lost her partner of more than 40 years in 2009, is a lesbian; thanks to the Defense of Marriage Act, which prohibits the federal government from recognizing her marriage, when her wife died she could not claim a tax benefit afforded married people and was hit with a $363,053 estate tax bill. So when the Supreme Court heard arguments on Wednesday concerning a challenge to DOMA, this was truly a test for the conservative justices, who have been handed an opportunity to demonstrate whether they truly possess a principled opposition to overreaching big government. Yet during oral arguments – which came a day after arguments on the constitutionality of Proposition 8, California’s same-sex marriage ban – it was the Democratic appointees on the court who seemed more eager to ride to Windsor’s rescue and uphold the conservative notion that the federal government cannot infringe on a state’s definition of marriage.
Everything got turned around:
Justice Ruth Bader Ginsburg summed it up this way: DOMA diminishes “what the states say is marriage” by treating same-sex and opposite-sex marriages differently, denying federal benefits and recognition to same-sex marriages performed or recognized in a state. Under DOMA, Ginsburg commented, heterosexual couples were receiving “full marriage” while same-sex couples were getting “skim-milk marriage.”
Sewer also notes this:
Searching for a precedent to justify a federal role in defining marriage, Clement invoked the US government recognition of the marriages of freed slaves during Reconstruction. “In the wake of the Civil War and in Reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the Union,” Clement said. He seemed to be unaware of the irony of citing a federal decision to extend marriage rights to one group in order to justify denying such rights to another group.
Solicitor General Donald Verrilli Jr. and Windsor’s attorney Roberta Kaplan were eager to argue that DOMA violates the Constitution’s guarantee of equal protection under the law, and that laws discriminating on the basis of sexual orientation, similar to laws affecting people on the basis of race or religion, should be subject to a higher standard of legal justification known as “heightened scrutiny.” Despite their efforts, the court stayed glued to the issue of federalism for most of the session. Yet federalism may be enough to overturn the Defense of Marriage Act.
Slate’s Emily Bazelon sees it this way:
That’s the genius of this particular court challenge, United States v. Windsor, as an incremental step toward federal rights for gay couples. The case aligns state sovereignty (a cause close to Kennedy’s heart) with gay couples’ sovereignty over their lives (ditto). On the table today was not a broad proclamation of gay marriage throughout the land – the grander vision that animated, but also could sink, the challenge to California’s ban, which was argued Tuesday. Today, the court focused only on whether Congress has the power to define marriage for the purpose of denying federal benefits to gay couples in the nine states and the District of Columbia that now fully recognize their marriages. Can Congress exclude gay couples whom states have included?
Maybe, or per Lyle Denniston, maybe not:
If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.
That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail.
This was a mess, and someone you wouldn’t expect cut to the chase:
Fox News host Bill O’Reilly on Tuesday said those in favor of equal rights on the issue have a “compelling argument” against religious conservatives.
“The compelling argument is on the side of homosexuals,” O’Reilly said during a segment with Fox colleague Megyn Kelly on the Supreme Court hearings. “That’s where the compelling argument is. We’re Americans. We just want to be treated like everyone else. That’s a compelling argument – and to deny that, you’ve got to have a compelling argument on the other side. And the other side hasn’t been able to do anything but thump the Bible.”
Well, that’s what they do. At the Christian Broadcast Network site you’ll find David Brody offering this:
In the media’s narrative, you would think that homosexuals are the poor souls who have been banished by society like ugly stepchildren and are now rising to overcome incredible odds.
But what about today? Let’s be honest: If you are a conservative evangelical who believes in the biblical definition of traditional marriage then guess what? You are one of the following: An outcast, a bigot, narrow-minded, a “hater” or all of the above. It’s a different type of ridicule but it is still ridicule.
The tables have been turned. Evangelicals are now the ugly stepchild. In our American culture today, you can easily make the argument that it is harder to stand for biblical truth than it is to be a supporter of gay marriage in today’s society.
Don’t believe me? Ask Kirk Cameron or Tim Tebow who both have been endlessly ridiculed for stating mainstream biblical positions on marriage and other topics. How about the comments by Chick-fil-A Founder Dan Cathy? Remember his comments in strong support for traditional marriage? He nearly had his head ripped apart by the mainstream media.
Ed Kilgore tries to set him straight:
He thinks it’s obvious any “Bible-believing evangelical” has to take a stand against marriage equality. I think there’s significant evidence that a lot of conservative evangelical folk consistently confuse the Bible with the patriarchal culture they grew up with, and/or use the Bible to justify utterly secular political positions that have little or nothing to do with the Gospel of Jesus Christ. Maybe I’m wrong and maybe Brody’s right, but then I’m not the one pretending to have a monopoly on truth. Christians who do should not only expect some pushback from those they would cast into the outer darkness, but yes, some ridicule and scorn for their ineffable arrogance and the use of the Lord’s name in vain.
Brody is not alone. See this from Red State’s Erik Erikson:
Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay. We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings. We will see private businesses shut down because they refuse to treat as legitimate that which perverts God’s own established plan.
Also see this from Fox News commentator Todd Starnes:
It’s as if we’re second-class citizens now because we support the traditional, Biblical definition of marriage.
Paul Waldman say wait, guys, people are only disagreeing with you:
The impulse to jam that crown of thorns down on your head is a powerful one in politics. It means you’ve achieved the moral superiority of the victim, and the other side must be the victimizer. The problem is that these folks don’t seem to have much of a grasp on what second-class citizenship actually looks like. Last time I checked, nobody was forbidden to vote because they’re a Christian, or not allowed to eat in their choice of restaurants, or forced to use separate water fountains, or even be forbidden by the state to marry the person of their choice. That’s what second-class citizenship is. Having somebody on television call your views retrograde may not be fun, but it doesn’t make you a second-class citizen.
This is the sort of thing that made Anthony Lewis quite fond of the Supreme Court back in the Warren days. The people are driven by all sorts of odd notions that have nothing to do with fairness, and legislators pass this and that to placate them, and to stay in office, so sometimes the nine guys in black robes – now six men and three women – have to rescue America from itself – to make sure everyone plays fair, using the Constitution as a guide. It’s a thankless job and sometimes they screw up, but someone has to do it. And after these two days of arguments about gay marriage, we’ll see what they come up with, in late June. Someone’s going to be unhappy, but Gideon’s trumpet will blow, more or less.