Reading the New York Times commentary and analysis of the Supreme Court’s hearing on the Prop 8 case involving California’s same-sex marriage issue, what struck deeper than anything else was the seeming reluctance of the Court to do what it is appointed to do: protect the rights of those United States persons who have been discriminated against, marginalized, or otherwise made to suffer injustice.
While an “all-or-nothing” choice can be frustrating and using the force of law to make a large minority accept a trend that improves the civil rights of thousands instead of ruling on a decision where a large majority has issue with whether the hunting of birds flying over a particular state violates an international treaty, U.S. Supreme Court justices are appointed for just that reason. It has always been my understanding that the Court, because it is the final arbiter of American justice, is supposed to make frustrating, difficult decisions when justice calls for such decisions to be made. What was the majority’s opinion when race was removed from the de facto “definition” of marriage in Loving v. Virginia?
A U.S. President and 118 members of Congress decided to define “marriage” and the distribution of more than 1000 federal benefits that accompany this definition for millions of U.S. citizens. So, is the argument that because we don’t have a 2:1 margin in the country supporting same-sex marriage that we are stuck with this draconian definition that is based on “history,” and that history’s rationale is that the purpose of marriage is procreation? Are we not in 2013 with the Internet and assisted reproductive technology? And, speaking of technology, “newer than cell phones” is an insulting comparison to a relationship with all the hallmarks of a marriage except the label and, more importantly the rights that are afforded that “label.” The cell phone analogy could arguably be found swimming in the ocean of reductio ad absurdum, which is arguably surprising coming from a Justice of the United States Supreme Court.
As Justice Kennedy pointed out, more than 40,000 children in California alone are subjected to the marginalization of their families by a law that has no place in a civil society. The Justice referred to the emotional stigmatization these children face, but what about the financial benefits that the federal government attributes to married couples? If a child is living in a home with same-sex parents who, e.g., cannot take advantage of filing jointly on federal tax returns and discounts provided in medical and other benefits via ERISA and other government agencies, then money is being taken away from that family and, therefore, that child. So while I applaud Justice Kennedy for directing the public’s attention to the children who are adversely affected by the so-called Defense of Marriage Act (DOMA) and its proponents, in my authentically humble opinion, the argument should have and could have gone further than what appears to be a gratuitous tug at the heartstrings.
Becoming a lawyer, I was told and always take to heart that those with great gifts have an equally great responsibility and must not turn away from that responsibility when it calls for making difficult choices, such as whether to provide all U.S. citizens with all of the rights of marriage or no U.S. citizen with a cohesive, civil, and just legal foundation for loving, committed relationships.
