I would highly recommend that everyone listen to today’s audio transcript from the Supreme Court oral arguments regarding the Defense Of Marriage act. This is a once in a lifetime opportunity to hear oral arguments like most of us think of when we think of judges and robes. I think the justices are aware keenly aware of it, since they are making the audio available the same day—which almost never happens. They are dealing with a squishy issue and they know it. So, if you care about how the government works, come n’ get it!
For background, I would also recommend Antonin Scalia’s fascinating book Reading Law. This was the most interesting read, fiction or non, I had all last year. I have my issues with Justice Scalia (frankly I consider him quite the hypocrite) but his intellect and clear description of how he believes the court should work is simply amazing. I think almost any liberal this side of a true socialist would find his arguments eminently reasonable. In other words, he is not Saruman. His message is simple: the Supreme Court does not exist to deal with issues of ‘fairness’ or to judge ‘right and wrong’. The Supreme Court exists to decide the constitutionality of a statute. It is the lower courts that do the work that most of us would call “judging”, that is, deciding what is fair and unfair. The Supreme Court is simply around, to paraphrase John Roberts, to act as procedural umpire. Whether or not they actually live up to that lofty goal is quite debatable. But the goal itself? Makes perfect sense to me. And as such, the overwhelming amount of their work is incredibly legalistic and not particularly interesting. They aren’t there to be interesting. They are there to just make sure that the eyes are dotted and the keys are crossed. In fact, they try to avoid being ‘interesting’ or ‘controversial’ at all costs. Scalia believes that if there isn’t a clear legal answer? It doesn’t belong in front of the Supreme Court because that involves creating law, which is the job of the legislature.
And one more aside, frankly, I am not sure about my personal feelings about gay marriage. I am certain it will be and should be legal. The wisdom of it where it concerns children, is another matter. I mention it because I know full well that instantly brands me as a bigot to a lot of people at the moment. I believe my arguments are reasonable, but I also realise this is like talking about how often kids get nasty illnesses at the christening. It’s true, but this ain’t the appropriate moment. Perhaps in a couple of decades. But for now the Defense of marriage act is clearly going down.
OK, now to the topic at hand. The thing that I find so fascinating about the oral arguments today is just how much all the justices are squirming. They are clearly uncomfortable and that’s a rare thing. They are being asked to do something they do not want to, which as I said, is exactly the kind of thing that most of us think they do: rule on fairness. But they are cornered.
I think they will strike down DOMA because traditionally the States regulate marriage. There is nothing in the Constitution about marriage, so there’s no reason for them to rule. And that avoids all that pesky stuff about ‘fairness.’ Throw it back to the States. Something they love to do whenever possible.
Now gay activists have spoken quite a bit of comparisons with civil rights for African Americans. Which drives me nuts. Slavery, unlike marriage, is in the Constitution. Actually, gay rights are closer to abortion rights; a ‘right’ that is implied and that people feel they deserve, but which was not even dreamed of by the framers.
Now let’s be frank. People want what they want. So people argue for whatever legal rule gets them the desired result. And I would suggest that this is one of the reasons people get fed up with ‘the law’ and ‘government.’ We always see people using the law like a weapon, cherry picking and twisting the rules to fit what they want just as second rate preachers pick the Biblical passage that favours their opinion and ignoring the ones that might challenge them.
So to me? Here’s the really juicy part. As I said, my guess is that the court will strike down DOMA, saying that it is up to each state to regulate marriage. And I think that victory will annoy the heck out of gay-rights activists, who know they don’t have the votes at the present time in the vast majority of states. In other words they are going to have to be patient for another 10 or 15 years. And I’m sorry about that. But here is why I’m going to suggest that this is not altogether a bad thing.
The thing I have noticed about American history is that laws which are enacted by fiat, typically where the court comes in and says “thou shalt!” have a real tough time. The court has a long tradition of weasiliness which stretches back to it’s beginnings where it was fairly common for its decisions to be simply ignored. People forget how utterly powerless the original Supreme Court was. The first several generations of the court struggled very, very hard to avoid making any tough decisions because the realised might be fatal to the Republic was to create rules that would be disobeyed. So they almost never made rules that were unpopular. With age, I now realise that many of their totally crap decisions were made within a context of saving the Republic by behaving in a spineless fashion. They recognised the limits of trying to push the people too far. So the idea of the court laying down deeply unpopular decisions just doesn’t happen all that often. And when it does, you’ve often got real trouble.
I’m going to suggest that the abortion movement may have been better served if Roe v. Wade had not been decided as it was. The constant beatings that the movement has taken over the past 40 years because of that ‘conclusive’ decision have made the lives of countless women who wanted abortions pretty miserable. It may be that a slow and steady approach, as is happening with gay marriage, would have, over time, created a far more uniform, harmonious and consistent set of laws throughout the country. In other words, exactly what I’m seeing now with gay rights. This slow but steady march is advancing the course of gay-rights far more effectively than some law handed down from on high. I am sure that even without any High Court action all 50 states will have equal marriage in the next decade. And if you do that by letting people vote for it you don’t have the decades of backlash with all these nut jobs chipping away in making people miserable defying the law as you’ve had for 150 years with civil rights and over the past 40 with abortion rights.
The question really is, and this is the punchline, do you really believe in democracy? Can you be patient like Martin or Ghandi? Or are you like Malcom? Do you feel that people are often basically crappy and need to be coerced into doing the right thing in spite of themselves?
Antonin Scalia believes that over the long haul democracy works and he has openly stated that he is willing to put up with a good bit of suffering over a long period of years because he believes that, eventually, the people will make the right choice. He freely admits that there will be plenty of suffering and it is certainly not fair. But he really believes in democracy and that means not trying to force people to do things before they’re ready, even if what “the people” want is blatantly unfair.
I think it’s an interesting argument and I’m not sure I can argue with his wisdom. I know that I prefer fairness to patience. And I know I don’t like to see anyone suffer. And I also know that that makes me frequently want to wish that there was a ‘Good Sheriff’ who could just come in and clean up this here town, establishing fairness throughout the land. Above all, I know that asking people to ‘be patient’ is, given my personality, the ne plus ultra of hypocrisy. Nevertheless, the question is, do you believe in slow messy democracy—and the price it demands. Or do you believe in fairness now like a parent with a wayward child.
Because the older I get the more I realize that you can’t have both.