Saturday, August 7, 2010

Nightmare on First Street NE

I’m not a pessimist by nature.  Just ask my wife or kids.  Yet, when it comes to things political, I subscribe to a corollary to Murphy’s Law – “If there’s anything that’s good for America and her citizens, somehow the Republican Tea Partiers will find a way to obstruct it.”

In a recent post titled Celebrate Victory but Prepare for the Worst, I outlined several scenarios whereby the Roberts Court could overturn the marriage equality gains that were recently won in Federal court in California.  After thinking about this, I discovered another nightmarish scenario that is in the realm of possibility.

Suppose Judge Vaughan Walker’s decision is upheld by the Ninth Circuit (which covers the western states) and is then appealed by the marriage discrimination proponents to the US Supreme Court.   Then, suppose that the Supreme Court refuses to hear the case.  Why would they do this?  There are a couple of reasons:

At least four of the justices (Roberts, Alito, Thomas, and Scalia) are extreme right-wing conservatives.  And I’m sure they are all students of history.  They recognize the parallels between the struggles of African-Americans and those of gays and lesbians, and realize that their personal views are contrary to the inevitable march toward equality for all.  Powerful men (and in this case, they are all men) covet their future legacy, and they don’t want to go down in history as the Dred Scott II court.  So they decide to punt the ball to the next generation.

Six of the justices (the four previously mentioned plus Kennedy and Sotomayor) are Catholic.  Given the church’s virulent opposition to gay rights, by the criteria espoused by the marriage discrimination folks demanding that Judge Walker recuse himself because he is gay, those six Supreme Court justices should recuse themselves also.  Ain’t gonna happen.  But again, this conflict between personally held religious beliefs and the inevitable march of history may also be an impetus for Kennedy and Sotomayor to treat this case like a hot potato.

So what will happen if the Supreme Court declines the Proposition 8 case?  The Ninth Circuit ruling will stand, and marriage equality will be the law of the land in nine western states and the Pacific Territories.  In the rest of the country, equal rights would remain at the whim of the voters in the individual states.  Chances are, the Federal government would opt to recognize gay marriage country wide instead of implementing a geographically-based system for government benefits and services.  Maybe large corporations would do the same.  But for those living outside the Ninth Circuit, equal rights will still elusive.

By the Supreme Court’s rules, a minimum of four justices need to agree to hear a case, even if a five justice majority does not want to hear it.  So it would take six justices to refuse to hear the case and put equal rights into this geographically divided limbo.  You would think this is hardly likely.  But in 2000, rational people thought it was hardly likely that a conservative court would interfere in a State’s Rights issue and meddle with the Florida election.  And up until recently it would have seemed unlikely that the Court would make an irrational determination that a corporation has all the rights but none of the responsibilities of a flesh-and-blood person. 

Tea partiers and those who impose their religious beliefs on others are a mere roadblock in the inexorable march toward equal rights for all.  But I’m pessimistic that the present generation of gays and lesbians will ever be afforded those rights as the long struggle continues.  I would like to be proven wrong.

1 comment:

  1. Let not your heart be troubled (though you may want to cut back on the caffeine). It takes more than one day to override the wishes of a large (though shrinking) majority of the American people by judicial fiat.

    Read Scalia's dissent in the 2003 Lawrence case. He is one of the few that recognized that is the case that legalized gay marriage, though the court was not bold enough to say so at the time. I quote:

    "Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. ... This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court."