Originally published in Synapse on February 17, 2010.
I am writing this the day after President Obama gave his State of the Union address to Congress. The most refreshing thing about that speech was how blunt he was with everyone in the room. He even called out the Supreme Court. I thought, for once, we might see some signs of life from the justices. In fact, I thought Alito might challenge Obama to a duel right then and there. But no such luck.
Did you notice how the members of the court never clap? Do you think they had a meeting back in the early days of the republic and decided that they would attend the state of the union address each year but would not allow their facial expressions to change and would under no circumstances remove their hands from their laps?
In fact, are we sure it’s really them or did someone just put really, lifelike stone statues in their place? I was hoping that Sotomayor, being the trendy, hip new justice would break away from her colleagues and stand up and cheer at least once. Oh, the bitter taste of disappointment.
But let’s come back to the court in a minute.
After an inexcusable delay, the President finally made a push to end “don’t ask, don’t tell.” This was good, and he should figure out a way to make it happen. However, it was disappointing to not hear a word about the ongoing federal trial here in California challenging Prop 8.
For those who don’t know, in an unexpected pairing, the lawyers from the opposing sides in Bush v. Gore, Ted Olson and David Boies, joined together to challenge California’s Proposition 8 in federal court. Their argument is that it violates the U.S. Constitution’s guarantee of equal protection.
The arguments being made by the proponents of Prop 8 are almost unbelievably weak. Let’s examine a couple of them.
One argument is that marriage between a man and a woman is traditional marriage and we should not mess with tradition. This, of course, fails to recognize the fact that some of the biggest steps forward in our country’s history have come when we realized the need to set aside tradition.
Traditionally, women did not have the right to vote in this country. Traditionally, black people did not have the same rights as white people. Clearly, tradition is no excuse for treating one group of people differently from another.
A second argument is that the State has an interest in promoting procreation and thus should not sanction a union that has no hope of producing children. This came up in a pre-trial hearing and the presiding judge, Judge Walker, made a fantastic point. He told the Prop 8 lawyer that the last marriage he had performed in his courtroom was between a 93-year-old man and an 85-year-old woman. Clearly this union has no chance of producing offspring.
He asked the lawyer if he should not have performed the marriage. The lawyer responded that of course the judge did the right thing, that the marriage will be a source of happiness and comfort for the old couple. He didn’t seem to mind that they wouldn’t be able to procreate and he seemed to miss the hypocrisy of his stance.
Now, with sadness, let’s return to the Taciturn Nine, the honorable justices of the Supreme Court of the United States. You see, Olson and Boies have a fair chance of winning their case. It couldn’t be more obvious that denying gay couples the right to marry violates the Constitution. And if Judge Walker agrees, the case will certainly go on to the 9th circuit court of appeals.
There it will stand a fair chance of succeeding as well since the judges of this court have a reputation for having open minds. But when, inevitably, the case reaches the Supreme Court, we can only assume it will most likely die a painful death.
The court that, 56 years ago, overturned segregation saying that separate was inherently unequal, has lost its way. It is all too likely that the same five justices that Obama called out for overturning campaign finance laws will rule against gay marriage based not on a constitutional argument (it is clear that the constitution is on the side of equal rights) but rather based on an inability to be open-minded as the world changes around them.
If there was ever a metaphor for being out of touch, it was the members of the Supreme Court at the State of the Union address. There they sat, old, mostly white, immobile and stone faced while the room around them churned with emotion.
