Dave and Ted’s Excellent Adventureby David Pinar on Mar. 25, 2013, under Pol. & Govt.
This week the United States Supreme Court will hear two landmark cases that will will dive into the biggest civil rights issue it has faced in a generation — whether same-sex couples have the right to marry. On Tuesday, the court will hear arguments in a challenge to California’s ban on same-sex marriage, known as Proposition 8. On Wednesday the court will hear arguments challenging The Defense of Marriage Act (DOMA), a federal law passed by a Republican Congress in 1996 and signed into law by Democratic President Bill Clinton. DOMA denies any federal recognition of same-sex marriage and denies them the many federal benefits and rights accorded to married couples. The attorneys making the argument for same-sex marriage are an odd couple: Ted Olson,who represented George W. Bush in Bush v. Gore, and David Boies, who represented Al Gore. While they argued before the Supreme Court against one another back then, in these two cases they are on the same team, and are passionate supporters of the right of anyone to marry the person they love.
While David Boies has long been a champion of liberal causes, he hasn’t been a lifelong liberal. He was president of the Young Republicans club while in college in the 1960s, but says he realized he “was on the wrong side” of the battle for civil rights, in which he soon became deeply involved. He left the party soon after graduation, became a Democrat, and honed his skills on civil-rights litigation and defending civil-rights workers who had been arrested, in Jacksonville, Miss. Boies sees his current advocacy for gay marriage as a natural extension of the civil rights movement of the 60s. “I think this is the most important civil-rights issue in the country now,” says Boies. “There has been enormous progress in women’s rights, and for ethnic minorities, the major group now singled out for discrimination are gays and lesbians.” Mr. Boies argues that the 14th Amendment’s Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. Boise argues:
“The whole purpose of the 14th Amendment was to take away from individual states and their voters the right to discriminate … You can’t just say we’re going to allow every state to wait as long as it wants to recognize basic constitutional rights.”
It’s a powerful argument. This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision which stated that any racial segregation in education is unconstitutional. And it was the basis for Reed v. Reed (1971), where the Supreme Court ruled that laws arbitrarily allowing sex discrimination was unconstitutional.
Ted Olson always was and still is a conservative, and supports same sex marriage from a conservative point of view:
“We’re talking about an effect upon millions of people and the way they live their everyday life and the way they’re treated in their neighborhood, in their schools, in their jobs,” Olson said. “If you are a conservative, how could you be against a relationship in which people who love one another want to publicly state their vows … and engage in a household in which they are committed to one another and become part of the community and accepted like other people?”
Homosexuality, Olson argues, is much like race. It is not a matter of choice. “We are what we are“, he says. He likens the Proposition 8 case to Loving v. Virginia, the 1967 case in which the Supreme Court unanimously struck down a law that made interracial marriage a crime. If a man and woman of different races attempted to marry in the state of Virginia prior to that Supreme Court decision they would have been committing a felony. Today, almost 50 years later after that decision, the child of a mixed race marriage has been elected President of the United States. Twice.
Most legal scholars believe the challenge to DOMA is the most clear cut case and it will me stuck down, by as much as a 6-3 decision, with only Scalia, Alito and Thomas supporting it. Normally it is the job of the Executive Branch and the Solicitor General to defend federal laws. But the Obama Administration (and former President Clinton who signed it into law) oppose the law, saying it is unconstitutional. The lawyer who will argue in support of DOMA is a guy hired by House Republicans and Speaker Boehner. And the Supreme Court has previously ruled that individual lawmakers can’t challenge laws they don’t like. And his argument will be that marriage isn’t a fundamental right, but rather an institution the government created to serve the goal of promoting procreation. Excuse me? I know personally that is completely false. Governments in two different states granted me the legal status of marriage, and I didn’t procreate either time. Both times we decided we would wait to have any children until we were more economically and solidly prepared as a couple for the responsibility of bringing a child into the world, and we chose wisely. And there’s no law against infertile couples from marrying, just like their isn’t any law prohibiting post-menopausal women from marrying. The case challenging DOMA was brought by Edie Windsor, an 83-year-old woman from New York who married Thea Clara Spyer in 2007 after some 40 years together as a couple. When Spyer died in 2009, like most married couples she left her lawful spouse her entire estate. As required by DOMA, the IRS said their 40 year relationship and their status of a legally married couple didn’t exist, and we’re going to tax your inheritance like you just won the Powerball lottery. They sent Ms. Windsor a $363,000 tax bill. Edie Windsor said No, I’m going to stand up for my rights and the rights of millions of others.
The challenge to California’s Proposition 8 outlawing same-sex marriage is more complicated, and their are a couple different possible outcomes. The first is the most simple, that the court upholds Prop 8, saying the Constitution does not trump the ability of California voters to make this decision themselves. While that voters should be able to make their own decisions regarding laws in their own states sounds nice and democratic and all, voters come and go and younger generation voters may have a different opinion than the older generation that passed on. Opinion on whether same-sex marriage is a right vary widely by generations – those under 30 support same sex marriage by a large majority, while a majority of those over 50 oppose it. Already, only four years after Prop 8 passed, polls show a majority would now vote to overturn it. And frankly, voters don’t always get it right. When the Supreme Court struck down laws prohibiting mixed race marriage a majority of voters opposed mixed race marriage. And if the Thirteenth Amendment, which outlawed slavery, had been put to a vote I’m pretty sure a majority of voters in at least 11 states would have voted to overturn it. The second possible outcome, however the court decides, is that the decision applies only to California. That the basis of the Federal Appeals Court which voted to overturn Prop 8. That decision said that the situation was unique to California because gay marriage was already legal in California when Prop 8 was passed. The existing rights people already had were taken away, and the state had no compelling reason to take away those rights. The third possible outcome is that the Supreme Court goes for it all and declares that the Equal Protection clause of the 14th Amendment ensures the right for all couples to marry, in every state, and no state can interfere with that right. And like it did in the Loving v. Virginia which struck down any state laws prohibiting interracial marriage, declares that any state law prohibiting same-sex marriage is unconstitutional.
I’m betting on the latter, because I always bet on America recognizing and reinforcing it’s role as the freest, most equal society the world has ever known. America, land of free, home of the brave, where everyone is equal and enjoys the same rights and privileges. America, land of the excellent adventure.