Gay Marriage and the Supreme Court

I have spent the last few days pouring over the testimony of the recent Supreme Court case on gay marriage.  It's utterly fascinating to me, like trying to read a game of poker or calling an unexpectedly close contest-what is going to happen?  I don't follow the Supreme Court on a regular basis, I will admit.  While politics is constantly on my radar and I am not one of those people who can't name all nine justices (I can, as well as their political leanings and what president appointed them, though we're in a rare situation where those actually match at the moment), it's hard to follow the Supreme Court justices.  They don't have a C-SPAN, they don't broadcast the hearings-most of the information I learn from them is a result of transcripts or random commencement addresses they give to law schools.

However, when there's a case I am passionate about, I pour through material, and I'm a little staggered by some of the things that I read about the case.  It's worth noting that if the Court was trying to give some sort of hint of how they would vote, it wasn't clear to any observer.  Justice Kennedy (and to a lesser extent, Chief Justice Roberts) is considered the crucial swing vote here, someone who has been a champion for gay rights in multiple court cases before, but he went after both sides pretty intently.  The more liberal justices, it should be noted, also asked some rough questions (particularly Justice Breyer), but legal experts seem to indicate that this is par for the course and not to read too fully into the questions being asked at the trial.

I will say though, that some of the arguments being used in the trial seemed to bother me in a way I wasn't expecting, and since I have a blog, I figured I might as well use this forum to share them.  For starters, the concept of tradition came up so frequently it made me wonder if this was something that should in fact be valued.  Justice Alito pointed out that the concept of gay marriage is newer than cell phones, at least in practice, and he is correct.  The Netherlands was the first country to change marriage from being between a man-and-a-woman, and that was within the past two decades.

However, looking at history, tradition seems to be a horrible reason to continue doing something, particularly if it's the sole reason.  Slavery, the oppression of women, segregation, all are readily available examples of things that we find morally repugnant now and those are just the obvious examples.  The reality is that when tradition is being brought up as an excuse to continue doing something, it's generally due to obstinance on the part of the one complaining-they don't want to move because "this is how it's done," and it seems like the silliness of an old man complaining about new technologies or music.

The other principle argument brought forward, thankfully dismissed by most of the justices (Scalia not as much, and Clarence Thomas is ridiculously silent during these Court proceedings so who knows what he's thinking, though it's usually the same thought-process as Scalia) were about how gay marriage will weaken the heterosexual union.  I have to say this-where is this ridiculousness coming from, and even when gay marriage was unpopular who actually bought this argument?  It's the height of asinine.  Tradition at least has the fear of the unknown on its side, though we could make an argument that there are few consequences here we couldn't see coming, but the disillusion of marriage all-together?  There were random (uncomfortable) hypotheticals brought forward involving polygamous marriage and incestuous marriage during the trial, but those have pretty strong legal and biological ramifications that can keep them from being equated to gay marriage.

The rest, though?  Laughable.  We're going to see a further dissolution of the American family as a result of gay marriage?  Single parent homes and divorce rates were already sky-high before the gays started getting married, and it had nothing to do with Mr. Jones wanting to bang his gym buddy but not having the right to put a ring on his finger.  The reality is that shifting attitudes toward marriage are a result of societal opinions on the subject of divorce and child-rearing, and that has little to do with gay marriage.  If anything, gay marriage is going to help the traditional marriage by getting a new sect of society to aspire toward and engage in the monogamous partner, two-parent home model.  To think otherwise is silly-these people are marching for, begging for, the right to engage in this practice, and you think that is going to hurt your cause?

The final topic I want to discuss is one brought up by Chief Justice Roberts, perhaps in a bid to get Justice Kennedy on his side.  This was a discussion of how this decision, banning gay marriage in a number of states, will close the debate on what is one of the swiftest shifts in American public policy opinion in decades.  There are many who have made the argument that Roe v. Wade actually, in the long-term, hurt the cause of abortion advocates because instead of bringing people over to their side state-by-state, the Supreme Court ruled on legalization of abortion and as a result the pro-life cause has spent the past four decades chipping away at abortion rights, diminishing access to abortion procedures.  From a strategic standpoint, there's a slight amount of credence here-Chief Justice Roberts is indeed correct that people are far more amenable to what happens on a ballot box or a legislative action than to a court decision, even if they voted against that issue personally.  However, Chief Justice Roberts is ignoring the arguments of tradition above here-what would have happened if we had left slavery, segregation, and women's rights to the ballot box?  Yes, some states would have abolished slavery and segregation at the same time as a Supreme Court case, but still others would have waited decades.  Public attitudes might have kept interracial marriage illegal in some states well into the 1980's, decades after the initial decision from the Supreme Court.  In America we don't govern based just on public opinion, but on what the Constitution says should be the case, and the 14th Amendment is pretty much the definition of why we should have gay marriage-that's the main reason we have the Supreme Court, to uphold individual rights that may be oppressed by the many (it's not like a lot of criminal cases make it there-it's almost entirely about things that the legislature hasn't been able to make up its mind upon).  Plus, with things like gerrymandering and limited access to ballot initiatives and the increased fluidity of people who live in multiple states over the span of a relationship, red states will continue to have issue with gay marriage and some states having it and some not.  It's not a risk that anyone in the gay rights or gay marriage movement wants to take here-there's too much confidence that gay marriage and gay rights will continue to be socially accepted to not want to make this leap forward.

And so with those arguments easily negated by an armchair legal opinion, I hope the justices (all nine-I'm still holding out hope for a Brown v. Board of Education situation here) realize that gay marriage should be legal in all fifty states.  It's the legal (and morally) right thing to do.