Friday, June 26, 2015

A bittersweet victory

Today, almost twelve years after I first addressed the topic in this blog, same-sex marriage became legal in all 50 states.  It is a cause for celebration, but my happiness today is tempered by my fear that Obergefell v. Hodges will become the next Roe v. Wade.  I was really, really hoping that John Roberts would join Anthony Kennedy on the enlightened side of history and make it a 6-3 decision rather than the 5-4 it actually was.  (There was never any hope for Scalia, Alito and Thomas.  Those men are irredeemable social fossils.)  Because the decision was 5-4, the right will for years, maybe decades, rant and rave about judicial activism and how the court needs to be packed with even more right-wing extremists so that we can finally (finally!) roll back social progress and go back to the Good Old Days before those damn liberals stole the country away from good God-fearing folk.

The ranting, of course, has already begun, with John Roberts blazing the trail in his unequivocal and incoherent dissent.  Actually, it's not the unequivocal part that bothers me.  If someone has a good-fath disagreement with government policy, they should give it voice, whether that person is a Supreme Court justice or an untitled citizen.  But if that person is a Supreme Court justice I would expect them to hold themselves to a higher standard, and at the very least base their arguments on actual facts and the actual law.  And John Roberts doesn't.

I don't have time to do an exhaustive analysis of Roberts's dissent, so I'll just point out what I consider to be the two most egregious examples of sloppy thinking.  His closing sentence really steams my clams:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex mar- riage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the oppor- tunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Um, excuse me, Mr. Justice Roberts, but my copy of the Constitution has this in it:
No State shall ... deny to any person within its jurisdiction the equal protection of the laws.
Now, it is arguable (but wrong) that this means that it's perfectly OK to discriminate against gay people because everyone is "equally" allowed to marry someone of the opposite sex.  It is similarly arguable (and equally wrong) that it is perfectly OK to outlaw interracial marriage because everyone is "equally" allowed to marry someone of the same race as themselves.  There was a time not so long ago when the absurdity of the second argument was not self-evident, just as we are now living in a time when the absurdity of the first argument is not yet self-evident (though that will surely happen in good time).  But to say that the Constitution had nothing to do with it, that the five justices who voted on the right side of history just invented the right to marry whoever you fall in love with out of whole cloth, is not just wrong, it's an insult.

The second egregious rhetorical sin that Roberts commits is his invocation of the slippery-slope-towards-polygamy argument while at the same time arguing for one-man-one-woman on historical grounds.  It's unsurprising that a conservative would rewrite history to suit their ideological agenda, but the fact of the matter is that polygamy has been a common and accepted social practice throughout history.  The idea that polygamy is an axiomatic evil, a boogeyman with which to scare the good citizens of the United States into fearing the horrible consequences of today's judicial activism, is an invention of the modern right-wing.  No less a Christian luminary than Martin Luther, founder of the protestant reformation, once wrote:
I confess that I cannot forbid a person to marry several wives, for it does not contradict the Scripture. If a man wishes to marry more than one wife he should be asked whether he is satisfied in his conscience that he may do so in accordance with the word of God. In such a case the civil authority has nothing to do in the matter.
Note that I'm not necessarily staking out a position in favor of legalizing polygamy here the way I staked out my support of gay marriage twelve years ago.  All I am saying is that if you're going to argue one way or the other you should at the very least base your arguments on premises that can't be trivially refuted by reading Wikipedia.  Especially if you are a Supreme Court justice.  That's your job, for fuck's sake.

So, yeah, I'm happy at today's outcome.  But Roberts's dissent is going to be a burr in my saddle for a long time.  Instead of dwelling on it, thought, I think I'll just go have another look at this map.  That has brought a smile to my face every time I've looked at it today.

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