I’ve been out in the open with my support of the Supreme Court for a long time, even when this hasn’t been a very popular opinion with my peers. But yesterday’s oral arguments about Proposition 8 (and states’ ability to ban same-sex marriage more generally) made me understand why some of my friends might feel kind of “icky” when they think about a bunch of old people in robes deciding things.
I’ve always liked the Supremes because the idea of our laws having some fundamental principles behind them is appealing. Granted we totally blew it for the first many many decades. But I think it’s fair to say that the Court has been out in front of most social issues because of its adherence to the constitution, rather than opinion. Waiting for public opinion to get to 51% has historically been a longer process than getting 9 educated people to say “this discrimination doesn’t look so great, constitutionally speaking.”
So I was disappointed yesterday when so much of the discussion (full audio here) focused on whether the Court (of the constitution) should weigh in on an issue that is still being debated in the court of public opinion. That’s exactly what the Supremes are supposed to do, and really the only thing that makes them cool.
You had Scalia talking about how same-sex marriage is newer than cell phones and the internet (it isn’t), as if a state could pass a law banning women from tweeting and the Court would sit back and say “hey, it’s so new, our hands are tied.” And Kennedy wussing out about how maybe the democratic process should be allowed to play out, because that worked so well with racial segregation.
Fundamentally this is a much simpler case than that. Not easier to decide, just simpler.
Same-sex couples have been getting married for a long time. In open-minded churches and private ceremonies, same-sex couples have been taking vows in front of witnesses, and then living together and having families, for a lot longer than people have had cell-phones (I believe my Mom’s first was in 1985). What they haven’t gotten is legal protections and benefits for those marriages. This is seemingly unequal protection under the law, which is constitutionally guaranteed (as amended).
However, sometimes we say that it’s fine for people to have different benefits under the law. Look at any state’s tax code for one billion examples of how some groups are treated differently with respect to legal benefits. For cases where tech companies get a tax break and cobblers don’t, all a state has to show is that there is a “rational basis” for why the benefits should be distributed unequally, because no one is particularly worried about discrimination against cobblers anymore.
The problem is when laws distribute benefits in a way that seems discriminatory. In these cases there are what are called “protected classes,”* and it’s basically not ok to distribute benefits differently based on these distinctions without some serious legal acrobatics.
*Currently, protected classes include Race, Color, Religion, National origin, Age (40 and over), Sex, Familial status, Disability status, Veteran status, and Genetic information.
All this case is about at its core is whether being gay, lesbian, bi, or trans is something that it’s ok for laws to discriminate based on. Is it something where the state just has to have some kind or rationale (gay parents might have children with lower test scores would probably suffice for the marriage issue, really), or is the GLBT community more of a protected class.
The answer to that seems obvious to me, but I would allow for debate on the issue. It would certainly make the anti side put their cards on the table (as demonstrated in this excellent exchange with Justice Sotomayor). What doesn’t need to be debated in the Supreme Court is the total smokescreen of whether the democratic process has played out yet. The constitution protects minorities from the will of the majority, and we need the Supremes to remember their role in that.
