With an executive branch paralyzed by a gridlocked congress, the last branch of our government that can possibly do any good is the judicial. Of that branch the highest and most prestigious is the Supreme Court of the United States of America; the last bastion of cool reason and logic. Or so I thought before reading highlights of todays Oral Arguments regarding California’s Proposition 8.
So lets just dive right in, shall we? To begin we have Justice Kennedy wondering aloud if the case actually has standing. Meaning: should they even be hearing this case? Yeah, Justice Kennedy! What group of dumbasses decides what cases you’ll hear anyway?! Oh, right, 4 of yours does. Later Justice Sotomayor asked if they weren’t hearing the case “too soon.” This particular objection drives me insane for 3 reasons. 1) What kind of reasoning is this? I know Sotomayor is new to the job, but her main duty is to decide: “Is a law constitutional or not?” Not how quickly this decision is made, whether or not she feels that the public has discussed it enough, or any other concern. I can just see her wondering “Are we tackling this slavery case too soon?” Our own Chief Justice put it like this, ”Judges are like umpires. Umpires don’t make the rules; they apply them.” 2) There’s this ongoing meme, where if you force people to obey the constitution before they’re ready to do so, it’ll cause backlash, and if we just allow people time they’ll eventually come round to our views. However, as Amanda Marcotte at Slate details, “Such argument has been forwarded in defense of everything from Slavery to bans on abortion. Apparently, all those protesters yelling invective at women entering abortion clinics just wish they were given more time to come around to the idea that women deserve full human rights.” 3) It forces me to agree with Scalia, who answered her question by pointing out that the time for arguing that a case is “too soon” is before the court has agreed to hear the case! Not during the fucking oral arguments. But the hits don’t stop here.
Scalia returns to form when he later drops this doozy of a question to Theodore Olson (who’s arguing against Prop 8), “When did it become unconstitutional to prohibit gays from marrying?” To which Olson replies “There’s no specific date in time. This is an evolutionary cycle.” To which Scalia says this insane bit of english “Well, how am I supposed to know how to decide a case, then if you can’t give me a date when the Constitution changes?” Just stop for a second and enjoy that one. If you can’t tell Scalia the exact moment in time a thing became unconstitutional, he, as a Supreme Court Justice, can’t figure out how to tell if something is constitutional right now. Now I’ll grant that Olson could have summoned a better answer than the one he gave. He could have said it was when the 14th amendment passed with it’s Equal Protection Clause. He could have said it’s always been unconstitutional. He chose the more lawyerly angle and suggested trying to pick a specific point was a fools errand fraught with uncertainty. Yet, by Scalia’s admission, without that specific moment pointed to, he’s apparently unable to read and interpret the current law we have as regards this current case. He just can’t do it!
Not to be out-idioted, Justice Alito stated, “Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect.” Thus he’s unsure he can answer whether Prop 8 is constitutional or not. This brings us back to the issue of standing and introduces the concept of “Burden of Proof”. When Justice Kennedy suggested that this whole case may not have standing he was suggesting that there was no individual harmed by gay marriage. Mr. Cooper (arguing for Prop 8) replied that it was the State itself that was damaged, due to the fact that THE CHILDREN are harmed by it. However, as has been noted, there is no evidence showing children raised in same-sex families are harmed in any way. However, we have Alito here saying that we can’t decide against the discrimination induced by Prop 8 without more info. So, we have a perfect storm of bullshit here. 1) If you’re going to state that something harms THE CHILDREN, and you have no evidence that it does, but instead argue that you don’t have evidence that it doesn’t, you are the one who should be kept from having children. This is the burden of proof. If you make a claim and then use that claim as reason to restrict someones freedoms, YOU HAVE TO BACK IT UP, not demand that the other side prove you wrong. It’s like Carl Sagan’s famous “dragon in my garage” analogy: Because the dragon is invisible, non-corporeal, and breathes heatless fire, you can’t prove he’s not there. Whereas in reality, if you claim to have a dragon in your garage, you have to put up or shut up. You make the claim, you provide the evidence. 2) This argument is circular. By Alito’s estimate gay marriage has been restricted worldwide, till in 2000 the Netherlands legalized it. Therefore, we just don’t have enough info on how it will effect THE CHILDREN. Thus, we can’t decide to overturn the ban on gay marriage. To wit; We’ve banned gay marriage so we have no info on it, and having no info on it, we’re not confident enough to lift the ban. How do we get more info? Lift the ban. Ah, perfect.
I end with this bit from our illustrious Chief Justice. Speaking to those arguing against Prop 8 he says, “It seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?” Basically, the argument being made here is this, Prop 8 says gays are bad for kids; you get no marriage. You show gays are just fine for kids. So, what’s the big deal? Why want marriage? Totally, missing that whole equality thing. Denying equality may not damage kids in same sex families because those families rule so hard that being in one offsets the discrimination. Or maybe it’s that “separate but equal” was rejected long ago, and seeing that the entire case for Prop 8 has been utterly demolished, why not give everyone their fucking equality? Unless our Supreme Court Chief Justice is unaware, unconstitutional laws are harmful.
Thanks for reading.