Judging the Supreme Court on Same-Sex Marriage

From The Atlantic article “History Won’t Be Kind to the Supreme Court on Same-Sex Marriage” by Andrew Cohen, March 28:

Chief Justice Roberts attributed this “sea change” — nine states now recognize same-sex marriage — not to our society’s natural evolution toward empathy and compassion, not to our growing unease about judging our neighbors, not to the libertarian ideal that all consenting adults should be free to enjoy the benefits of civil rights, but to the “politically powerful” lobby and to “the political force and effectiveness of people representing, supporting your side of the case.”

Many commentators notes the SCOTUS performance in the last two days was weak-kneed, lacked conviction and pandered to popular sentiment and stereotypes.

I, one more gay person who is definitely unimpressed with the conservative block of SCOTUS, was nevertheless stunned by the appalling lack of principled legal argument or discussion among the defending and litigating parties, or, most particularly, by the Justices themselves. As far as I could see from media reporting, completely missing were discussions of life, liberty and the pursuit of happiness, or basic law and  constitutional principles of equal protection and non-discrimination.

Defending parties and some of the justices seemed to be arguing that, well, maybe we ought to let the States decide this — just as the states had decided that with slavery and Jim Crow laws before extraordinary measures had to be taken to stop them.

In Mississippi, it is reportedly still legal for a landlord to evict a gay person, and for an employer to fire a gay person. If this means the states can decide who gets basic civil liberties and how much of them they can get (and it does mean that), then the states are still doling out rights like party favors. Why is anyone waiting for the Supreme Court to put the “all” back into “all men are created equal?”

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