It just goes to show you that handicapping Supreme Court decisions based on the justices’ questions and demeanor during oral arguments is a dangerous, unpredictable sport. Remember that the Chief Justice asked only one substantial question during the health care arguments, but he surprised almost everyone by writing a rather forceful decision upholding the law. Justice Kennedy was widely seen as the bellwether on marriage equality, and he provided the fifth vote to recognize that dignity comes in many forms.
The Originalist Triplets from Different Mothers–Scalia, Thomas and Alito–certainly didn’t disappoint their right wing adherents by pointing out to us that laws should be read as written and that if marriage was a right, then why didn’t the nation recognize it until now? Never mind that the country didn’t recognize civil rights for African-Americans for over 100 years after the Civil War, and that was with an amendment specifically crafted to remedy that injustice. Justice Thomas’s career-defining quote about how slaves did not lose their dignity because the government allowed them to be enslaved was not only a jaw-dropping bit of incongruity, but also a shocking misunderstanding of what the word means.
But this is the danger of the originalist doctrine. It presumes to know exactly what the Framers meant not only in their time, but in ours. I’m no legal expert, but I’ve committed my professional life to teaching history and my reading is that those men who gathered in Philadelphia were a bit more flexible on legal interpretations than the originalists give them credit for.
Rather than be shocked at what American society has become, I think they would be pleased, perhaps even giddy, at the idea that we’ve become as multicultural, open, democratic and accepting as we are now. I would be disappointed if Madison, Washington, Hamilton or any of the others came to our century and said that we had completely misread the meaning of their words. After all, they included both the elastic clause and the ability to amend the constitution.
Meanwhile, Scalia, Thomas and Alito (and sometimes Roberts) would roll back civil rights laws and would have us believe that the Fourteenth Amendment, the one that guarantees every citizen equal protection of the law, has nothing to say about guaranteeing LGBT Americans, well, the equal protection of the law. or that four words in the health care law were meant as grenades that would blow it up rather than mechanisms to guarantee that less-well-off Americans could get affordable health care. Scalia especially seems to believe that the only rights that Americans have are the ones granted in 1787. How thoroughly regressive.
It’s worth noting that another group, Confederates, also believed they knew the true meaning of the Republic. They wanted to live in a country that allowed states to decide almost all aspects of public policy, protect slavery and Jim Crow, and to nullify federal laws they didn’t agree with. That’s why they broke away and were almost successful in creating such a country. Their loss still resonates in the south and it’s time to bring that era to a close. We shouldn’t destroy every vestige of it, but it’s past time to take down the flags and statues (and put them in museums where they belong), and to rename some streets. We’ll be a better country for it.
What history will more likely remember is the rock-solid support for humanity and progress that the four liberals–Sotomayor, Breyer, Kagan and Ruth Bader Ginsburg–continue to fight for. Their opinions were subsumed under Kennedy and Roberts, but they should rightly be proud, and thanked, for their steadfast support for the citizens of this country.
As we move forward from last week, we need to remember that many states will be required to recognize marriages, but off the alter those states can continue to discriminate based on sexual orientation and use religious belief as a hammer against full equality. I certainly support religious values, but it’s time to recognize that Biblical prohibitions that discriminate, marginalize and promote hate are…wrong.
Bu that’s a discussion for the future. Right now I’m going to buy some rainbow sherbet, kick back, and celebrate America.
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