Sunday, March 31, 2013

The Supreme Court considers Gay Marriage

Happy Easter everyone!  Despite being a lapsed Catholic, I am deeply appreciative of the example that the life of Jesus demonstrates for us; a life of love and tolerance to all people.  Whether you believe he was the son of God or just an advanced spiritual soul who represents the best that humans can achieve, here is hoping that his story continues to inspire the rest of us to be the best person we can be.  (By the way, I just realized that the phrase his story is the word history with a space between his and story.  Makes you go hmmm).

Towards that end, the Supreme Court considered legal arguments this past week on two laws which address gay marriage in America.  The first is related to the challenges to the federal Defense of Marriage Act of 1996, and is a relatively modest one of whether the federal government must provide benefits to same-sex couples married in states that allow such unions. The case did not directly concern whether there is a right to same-sex marriage in other states.  Two federal appeals courts had struck it down, and the court almost always reviews decisions from lower courts invalidating federal laws.  Conventional wisdom held that this "stepping-stone" case would set the stage for the bigger battles ahead. 

But, rather than waiting for a decision in the DOMA challenges, the court also chose to hear the more ambitious case which involves a challenge against California's proposition 8 which bans gays marriage.  This law was struck down by a lower court which, in essence, ruled that the law violated the United States Constitution's guarantees for equal treatment under the law. 

I have more than once stated in past blogs that I believe that gay marriage is the civil rights issue of our generation.  Consequently, I have no doubt that sometime in the future, perhaps as soon as 20 years from now, we will look at all this topic and shake our collective heads out of embarrassment that we allowed such blatant discrimination.  That we behaved so unlike Jesus's teachings dictate.

Curiously, on a recent two hour car ride with my 21 year old son, we discussed the Supreme Courts upcoming ruling on gay marriage.  I expressed the concern that there were too many Catholics on the court and that their decision would reflect their religion as opposed to their interpretation of the law.  He rightfully called me on my prejudice, reminding me that whatever their ruling, the justification would most certainly be based on law, and that, and he was adamant about this point, we must certainly believe that their decision would be based on laws and reason or our faith in the ultimate court of our country would be tainted, if not forever lost.  While I reminded him that past Supreme Court decisions legalizing discrimination based on color were, in fact, upheld, he again, reiterated that even those odious decisions were based on the laws of the time and had reason and logic as a basis, however wrong it appears in the light of history.

So, that being said, how might the Supreme Court rule in this cases.  One interesting bit of dialogue that came from last week's proceedings suggested that perhaps the court decided in haste to rule on same sex marriage, that they should have waited until they ruled on other cases which might establish precedents leading up to the BIG decision.  As I just recently learned, apparently the court's choice of which cases to hear, is determined by four votes.  In other words, a majority does not have to decide to hear a case.  Since the current Supreme Court is composed of 4 conservative justices, 4 liberal justices, and one whose vote swings between the two, Justice Kennedy, it is interesting to wonder which "side" decided to hear the same sex ban case.  Or, did Justice Kennedy himself provide the 4th vote for one side of the other?   Did the conservative justices draft Kennedy in hopes of swinging him now, when popular support of same sex marriage is beginning to become the majority?  In other words, establish a precedent before the issue garners overwhelming popular support.  Or, did the liberal justices approach Kennedy to help establish once and for all that denying marriage to two consenting adults in America is contrary to both our beliefs in the rights of the individual and the those rights as granted by the Constitution itself.  (Since the information specifying who voted to bring this case is not available for public eyes at this time, I find discussion of who may have voted to do so an interesting side light to the case itself).

Anyway, I strayed off topic.  How might the Supreme Court rule?  I think it is a slam dunk that the Court will rule that withholding federal benefits to those married in states that allow gay marriage is unconstitutional.  This will follow other states rights interpretations that have emanated from this Court.
I expect that once ruled, other cases will follow that build on that decision, eventually leading to rulings that disallow any federal law that treats benefits to same sex couples in a way that is different for heterosexual couples, married or not.  Which, hopefully, will eliminate the incredibly unfair treatment that partners and children of same sex relationships experience in areas ranging from medical visitation rights to estate tax laws.

But, the tricky question of whether the Constitution of the United States guarantees the rights of the gay/lesbian community to marry the person they love?  I think this decision will be more of a backhanded decision rather than a straight forward yes.  It is my belief that the Court will decide that states cannot disallow same sex marriage.  Just as there used to be laws against interracial marriage that were ruled to be in violation of the Constitution, the Court will rule that there cannot be laws that rule against same sex unions.  Perhaps this is the same thing, but, legally speaking, the Constitution does not guarantee anyones's right to marry, as far as I am aware, so the ruling must fall on the what you can't do as opposed to what you can. 

That being said, I am not sure that this particular Court will make that ruling now.  I don't think they can rule that marriage discrimination is legal, so there may be some intermediate step that they take.  They may decide that each state can decide the issue for themselves, but that decision might not necessarily be a ban as enacted at the polls but may include the right for a particular states' Supreme Court to rule one way or another.  In other words, bans that are the result by referendum or legistative act must still be upheld by that states' highest court ruling.  A sort of kick the can down the highway approach.

However, should the Court rule against marriage discrimination, and returning to my son's point, there will most likely be a dissenting view of these rulings.  What form will it take?  What laws will be referenced as precedent, what logic employed to fashion a multi-page paper on why these decisions are wrong?

Since I cannot adequately present such a defense, perhaps those reading this post will provide me with some logic.  How does barring same sex marriage make sense legally?  How does allowing same sex marriage violate the reason that laws exist; protection of a country's citizens.  My initial perspective is that such logic will have to reference religion so I am eager to hear dissenting viewpoints on this topic.

In the meantime, here's hoping that the Supreme Court finds the wisdom to make the right decisions in these cases, and if that right choice includes a religious component it will reflect the words of Jesus from the Sermon on the Mount when he offered us the Golden Rule:


In everything, therefore, treat people the same way you want them to treat you.

1 comment:

  1. Joe,
    I'm a bit torn by the issue of gay marriage. On the one hand, I can't think of a strong purely legal argument against it. Everyone should be treated equally under the law unless by your behavior you forfeit your rights.

    On the other hand I think legalizing gay marriage is another step down that slippery slope to social chaos. The same slope we've been on since around the mid to late 60s which has given us high divorce rates, out of wedlock birthrates as high as 70% in some demographics, women in combat, the destruction of over 50 million human beings through abortion... I could go on. Yes, I am a practicing Catholic and I'm certain my background colors my views. It doesn't invalidate them however. To me marriage is a sacred institution and the foundation upon which families are built and strong families are vitally important to the health of our society. Families begin with man and woman pledging themselves to each other. Sometimes this union results in children; sometimes not. But marriage is an institution that has been around at least since the beginning of recorded history and it has always been between man and woman. I think the reason for this is obvious but its late and I probably did a poor job of explaining why.

    I have no personal animosity toward gay people. I lost a fraternity brother whom I cared for very much to HIV and I think about him often. It also saddens me to know that he apparently didn't feel comfortable "coming out of the closet" with his friends until years after we graduated. So, I am sensitive to the plight of gay people. I think homosexuality is a disorder but I'm not sure whether it is genetic or mental in nature.

    Finally, I don't think Jesus had gay marriage in mind when he gave us the golden rule. Homosexuality was punishable by stoning in those days as was prostitution. Both were (are) considered sins. Although Jesus told us to love one another he didn't tell us to endorse sin or make it part of our social structure.
    Bill

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