Sat Dec 8, 2012, 09:41 PM
H2O Man (49,379 posts)
On the USSC
“ ‘Justice is on our side and we won’t stop until equality reaches every corner of our vast country,’ Mr. Griffin said in a statement.”
Chad Griffin; President of Human Rights Campaign
I was pleased to see that the US Supreme Court will be hearing an appeal on the issue of marriage equality, with an opinion anticipated in June of 2013. It seems most likely to me that the Court will support marriage equality in a 5-4 vote. Interestingly, I’m confident that they majority will base their ruling on Amendment 14, while the minority will root their opinions based upon a purposeful misinterpretation of Amendment 1.
Let’s look first to the important section of Amendment 14‘s Section 1:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Marriage is both a civil and human right. “Equal protection” applies clearly to marriage equality. Obviously, our nation has denied both groups and individuals numerous basic rights in the past, and that unpleasant reality applies here. However, the times, they are a’changing. And it seems clear that five of the Justices on the Supreme Court will recognize, and rule upon, this very clear rule of law.
The “state” has no actual interest, in any legal sense, that justifies the denial of marriage equality. In order to claim a valid interest, the state would be required to identify some illegality that could result in that “due process of law” noted in Section 1. Previous USSC decisions -- or Constitutional Law -- has already shut the door on that.
Hence, the opponents of marriage equality -- those who wish to deny other people the very same rights they enjoy -- are reduced to making historically incorrect and religious arguments. In the above quoted/linked article, a church official states:
"The U.S. Supreme Court's decision to hear these cases is a significant moment for our nation. I pray the Court will affirm the fact that the institution of marriage, which is as old as humanity and written in our very nature, is the union of one man and one woman.”
This, of course, brings us to Constitutional Law as it applies to religion:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
There have been on-going disagreements on exactly what the relationship between church and state is, since the founding of the nation. Indeed, for years, this Amendment 1 restriction on government was interpreted as being exclusive to the federal government. Various individual states had laws that favored specific denominations, and restricted the rights of all others.
Even the great concept of a wall between church and state remains debated, and widely misunderstood to this day. While there are people on the political left who mistakenly believe that churches cannot and should not be active in things political at all, there are clearly far, far more on the political right that mistakenly believe that churches have an unlimited role in politics that is justified by their individual beliefs.
Thus, while progressive religious leaders have been involved in socio-political issues, such as the Civil Rights Movement and anti-war movement in the 1960s, they did not violate Amendment 1 in any way. Quite the opposite: those cases that were heard in the federal court system, including in the USSC, often helped give definition to those rights -- as in the case of Uncle Sam vs. Muhammad Ali. Clearly, what these types of cases have in common is that they seek to enhance the right of individuals and groups, in a manner that is legal and causes no harm to others.
The right-wing socio-political advocates of religion, on the other hand, consistently seek to limit the rights of those individuals and groups that do not subscribe to their particular viewpoint. The history of their attempts has never yet been based upon the target groups’ doing damage to anyone. This causes them to rely upon such weak arguments as their “way of life,” which could mean the tradition of restricting non-white people on public buses, or paying females less than males.
When their legal and historical errors are addressed, they then resort to their religious beliefs, which are by definition narrow and exclusionary. It’s a fact that they expect the state to endorse their particular religious beliefs -- as if others do not have an equal right to their own beliefs, or no religious beliefs at all. Sad to say that not only in the past, fundamental civil and human rights have been denied to individuals and groups, based upon corrupt religious rot ….but we can fully expect at least two, and probably four, of today’s Justices to rule in favor of religious intolerance and abuse.
It will be interesting.
10 replies, 790 views
On the USSC (Original post)
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Response to H2O Man (Original post)
Sun Dec 9, 2012, 12:06 PM
bigtree (50,916 posts)
3. I think you got that about right
. . . what's not clear to me is whether the Court is going to make some substantial ruling, or will they narrow an opinion so much that it covers the religion clause and muddies the water for all else.
Do you think the case will be argued on these merits?
Response to bigtree (Reply #3)
Sun Dec 9, 2012, 07:25 PM
H2O Man (49,379 posts)
7. It will almost
definitely a "narrow" ruling ..... the two issues being considered are narrow in scope, and perfect for a positive advance in civil/human rights. And that is actually a very important point: in order to secure the USSC's "swing vote" from Justice Anthony Kennedy, I think that taking the more narrow issues on is a distinct advantage. Kennedy is a strange bird: on a more wide-sweeping case, he could easily go either for or against an advance in individual/group rights. The bigger the issue at hand, I think it's fair to say, the less consistant his record is.
I like this case because it provides a great example of the meaning of the old saying that small doors sometimes open into large rooms. In the next 25 years, our society is going to have to re-define what "family" means, in order for the culture to survive the changing economic realities, among other shifts we are and will experience.
Curious times we live in, eh?
Response to H2O Man (Original post)
Sun Dec 9, 2012, 12:48 PM
Zorra (21,952 posts)
4. Good points. I'm on pins and needles, despite the fact that it seems that there is
really no substantial constitutional legal argument against marriage equality.
Like you said, under the auspices of the Constitution, it appears that everyone (LGBT or straight) simply has the unequivocal right to marry the consenting adult of their choice. End of story.
Even if I were straight, I would be extremely disturbed over the fact that I did not have the right to marry whichever consenting adult that I chose to marry, be they female, male, blue, atheist, whatever, etc. My point here is, the impending decision is relevant to everyone's rights, and not only specifically the rights of LGBT individuals.
The only problem I foresee is 5 conservative justices not having the ability, inherent or otherwise, to make a reasonably objective ruling on this issue. If they rule against equality, they are going to generally be seen as foolish, subjective, and incompetent, and will lose whatever smidgen of respect they have managed to salvage after the SCOTUS electoral debacle of 2000, particularly in the eyes of the majority of those who are knowledgeable in jurisprudence.
Response to Zorra (Reply #4)
Sun Dec 9, 2012, 07:49 PM
H2O Man (49,379 posts)
8. Your response got me
thinking ..... my interest in the law and legal process really began around 1973, when I became acquainted with Rubin "Hurricane" Carter. My library has a good-sized section of various law books that I began collecting in '72; the most recent addition came this past Thursday. And my first two years of college were for paralegal assistance, with a few other law (and law enforcement) classes in later years.
Around the mid-1980s, I became particularly interested in the issues relating to marriage equality. That interest was sparked by a friendship with a women employed in county human services; her office was along the same hallway as mine, and although she worked for a different agency, the populations we served had significant overlap.
Being friends with her -- and we are still as close as twin siblings -- opened my eyes to a depth of discrimination that I had not realized existed. And because of my non-employment work -- which has always focused on social justice -- I had the opportunity to know some very good and capable lawyers. So for the past 25 years, in what is admittedly a small contribution to the Good Fight, I've tried to come up with the best ideas for legal challenges to the too common undemocratic laws and policies on marriage rights.
So it was a blast for my wife and I to travel to Boston this summer, to attend the wedding of the daughter of two of our closest friends. I remember that woman from when she was a little kid, right up through her amazing high school and college basketball career. She often babysat our daughters, and is simply one of the most amazing human beings that I have had the pleasure of encountering in life. And I've known the woman she married, though casually (she lives in Boston, which is a long ways from here!) for several years. Attending the ceremony and reception was great on its own, of course. But it was an even more special time for me, because it signified a real advance in social justice.
I don't think that there will be five in-justices on this. Obviously, I could be wrong. But the two worst rulings in recent times -- Bush and the unlimited corporate buying of elections -- did not surprise me in the least. Both were troubling, of course, but sadly expected. This is a very different circumstance, with very different dynamics. In my opinion, the only real question is if we get a 5-4 decision, or 5-3. The 5-4 is a safer bet, but I think 6-3 is likely.