Dowd Calls Out SCOTUS: Courting Cowardice

Yes, today's oral arguments in United States v. Windsor were encouraging.  However, if DOMA is struck down, that still leaves millions of LGBT couples - the boyfriend and I included - screwed because we live in states where the Christofascists continue to control or at least intimidate the state legislatures into adopting the Christofascists' anti-gay agenda.  Thus, absent a broad ruling in the Proposition 8 case or less likely in the DOMA case, we will remain third class citizens for the foreseeable future.  Many of us do not have that option.  The real solution is for the Supreme Court to rule that there is a federal constitutional right to gay marriage.  Frankly, the justices are just plain chicken shits who are afraid to do the right thing.  Maureen Dowd calls them out is a column in the New York Times.  Here are excerpts:

As the arguments unfurled in Tuesday’s case on same-sex marriage, the Supreme Court justices sounded more and more cranky.  Things were moving too fast for them. 

How could the nine, cloistered behind velvety rose curtains, marble pillars and archaic customs, possibly assess the potential effects of gay marriage? They’re not psychics, after all.

“Same-sex marriage is very new,” Justice Samuel Alito whinged, noting that “it may turn out to be a good thing; it may turn out not to be a good thing.” If the standard is that marriage always has to be “a good thing,” would heterosexuals pass? 

Swing Justice Anthony Kennedy grumbled about “uncharted waters,” and the fuddy-duddies seemed to be looking for excuses not to make a sweeping ruling. Their questions reflected a unanimous craven impulse: How do we get out of this? This court is plenty bold imposing bad decisions on the country, like anointing W. president or allowing unlimited money to flow covertly into campaigns. But given a chance to make a bold decision putting them on the right, and popular, side of history, they squirm. 

Donald Verrilli Jr., the U.S. solicitor general arguing on the side of same-sex marriage, told the justices, “There is a cost to waiting.” He recalled that the argument by opponents of interracial marriage in Loving v. Virginia in 1967 was to delay because “the social science is still uncertain about how biracial children will fare in this world.”   The wisdom of the Warren court is reflected two miles away, where a biracial child is faring pretty well in his second term in the Oval Office. 

The American Academy of Pediatrics last week announced its support for same-sex marriage, citing evidence that children of gays and lesbians do better when the couples marry. It may take another case, even another court, to legitimize same-sex marriage nationally, but the country has moved on.

Charles Cooper, the lawyer for the proponents of Prop 8, which banned same-sex marriage in California, was tied in knots, failing to articulate any harm that could come from gay marriage and admitting that no other form of discrimination against gay people was justified. His argument, that marriage should be reserved for those who procreate, is ludicrous. Sonia Sotomayor was married and didn’t have kids. Clarence and Ginny Thomas did not have kids. Chief Justice Roberts’s two kids are adopted. Should their marriages have been banned? What about George and Martha Washington? They only procreated a country. 

While Justice Alito can’t see into the future, most Americans can. If this court doesn’t reject bigotry, history will reject this court.

If Chief Justice Roberts worried about the Supreme Court's credibility and stature in the context of the challenge to the Affordable Health Care Act, he ought to be worried that thee Court today is acting very similar to its predecessors who handed down the Dred Scott decision  - which ruled that African-Americans were not citizens, and therefore had no standing to sue in federal court, and that the federal government had no power to regulate slavery in any territory acquired subsequent to the creation of the United States - and Plessy v. Ferguson which upheld state laws mandating racial segregation.  Is this the legacy Roberts wants? He has the chance to avoid this legacy.  But it will take a spine to avoid it.