Tuesday, October 7, 2014

Supreme Court recognizes the obvious

Topper from weddingcollectibles.com
    Give the Supreme Court credit. It didn't drag its feet on this one. On the first day of the term, it took the biggest issue on its agenda and made the right call. In the long run it wouldn't have mattered. Freedom once realized doesn't go back in the jar easily. The arc of history, as Martin Luther King said, bends toward justice. But ruling a different way would have emboldened bigots and hurt a lot of innocent people, and it was refreshing to see a case where the Far Right didn't battle for every inch of ground in their Long March retreat from modern life.

     In 1776, when the Founding Fathers wrote in the Declaration of Independence that “all men are created equal, that they are endowed by their Creator with certain unalienable  Rights, that among these are Life, Liberty and the pursuit of Happiness,” they were not thinking of women. Nor were they thinking about their black slaves.  And they certainly were not thinking of what they would have referred to at the time as “Sodomites” and we now consider “gay.”
     But freedom is a virus that, once released, tends to spread to unexpected places. One by one, those oppressed groups, deemed marginal by God and nature, law and custom, seized that tool of freedom, crafted by white Colonial planters for their own benefit and used to strike off their chains.
     In the first half of the 20th century, women won the vote. In the second half, African-Americans established that they could do anything a white person could.
     And while both of those struggles go on — women still earn 2/3 of what men do; blacks still deal with a system that is separate and unequal — we live in an era of extraordinary progress for gay Americans. In the lifetime of many reading this, we went from a time when the police thought nothing of harassing gays for daring to gather in a bar — New York’s Stonewall riot took place in 1969 — to Monday, when the United States Supreme Court declined to hear five pending same-sex marriage cases, essentially upholding the legality of such marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin.
     There have been many of milestones in this lengthy process, both nationally and locally: Gov. Pat Quinn signing the Illinois gay marriage law last November; couples taking their civil union vows in Millennium Park on June 1, 2011, and on and on.
Wedding cake topper from Wedding Collectibles
     But this court ruling — or precisely, this court declining to get involved, letting the lower court rulings stand — is a truly significant moment because this was really what might have been the last stand, when the accelerated progress that gay American citizens have made could have hit the roadblock of a conservative Supreme Court. It only takes four justices to ask to review the case; four justices obviously didn’t ask.
     One of those milestones was the ruling Sept. 4 by Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, who eviscerated the Indiana and Wisconsin cases in such strong language (the states’ arguments weren’t just rejected, wrote Charles Pierce of Esquire, but “tore into tiny pieces, lit on fire, and fed through a wood chipper”) that even a revanchist blowhard like Justice Anton Scalia would be reluctant to grapple with his white hot logic. Some credit must go to the Chicago judge for his watertight arguments.
     “The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously,” Posner wrote, for the three-judge panel. “The discrimination against same-sex couples is irrational, and therefore unconstitutional ...The harm to homosexuals (and, as we’ll emphasize, to their adopted children) of being denied the right to marry is considerable.
     “Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain...
     “Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.”
     Which is the bedrock of fact at the bottom of all this. Gay couples make no worse spouses, no worse parents, than anybody else, and it is the poisoned fruit of religious bigotry married to ignorant malice to suggest otherwise. Chicago’s great legal thinker, Richard Posner, said it so clearly, if he didn’t convert opponents on the Supreme Court, he made them reluctant to argue the point.

Photo atop blog: signing Illinois gay marriage into law, November, 2013. 

17 comments:

  1. Your columns are always informative and well crafted. They always give me something to think about or rejoice about. Todsy, I'm rejoicing!

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  2. Congratulations on finding an opportunity to call someone a "revanchist." "Revanchist blowhard" is even better.

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  3. Superb column Neil. Beautiful. Thank you.

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  4. I applaud the Supreme Court's lack of decision if for no other reason than it gave Neil the chance to use the word "revanchist". I don't think I've ever seen that word used outside of a North Korean or Eastern European press release. Is it too much to dream that you'll be using "imperialist lackey" or "running dog" on Justice Scalia one day?

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  5. The same Judge Posner who in 1997 said the Constitution did NOT protect gay marriage? Look, I'm thrilled at the progress of gay rights, but the heroes of the movement are the ones who were standing up back when it was unpopular to do so. For example, the brave judges in Iowa who overturned Iowa's gay marriage ban and then lost their jobs when the religious right targeted them in the next election. It's not just judges: it's astounding to hear certain local talk radio hosts who used to call things "faggity" and had drop-in tapes saying "gay" as an insult ready to play at a moments notice (and played several times a day) during the George W. Bush presidency now champion gay rights.

    As for Posner, I'm just as inclined to believe his opinion was as much a result of his falling out with former friend Anton Scalia than Constitutional outrage over gay marriage bans. I suspect Mr. Steinberg wouldn't think too much of his legal thinking when Posner endorsed the use of torture and warrantless searches of US citizens, the Bush v. Gore decision, the GOP voting rights bans and a host of other decisions (Though he's windsocked on that last one post-Scalia-tiff too).

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    1. Well, 17 years, a man is allowed to revisit a question. I'm not sure what your point is; Posner made some dubious rulings in his very long career erg .... this ruling is negative? Do you hold yourself to that standard, that any mistake you've ever made negates everything you've ever done or will do?

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    2. Mr. Steinberg, I think you're trying to pick a fight. I made two points. First, I said recent support for gay rights is welcome, but the real praise should go to those who were fighting when it wasn't popular, and gave the example of judges who professionally martyred themselves for the sake of gay rights. If Posner had opposed civil rights for blacks in the 1950's and 60's but supported them in the 70's that would be great, but I'd still try to insert the story of Frank Mimis Johnson (if you want to write a column about a judge, I can think of none more worthy).

      And if f I don't write an essay about how bad his record is but just call out some of the most egregious, that becomes "some dubious rulings"? I'm saying I'm skeptical of a man who has been largely hostile to Constitutional civil rights when he writes an opinion that could have come from William Brennan, especially given his off-the-bench history. By your theory a person MUST give Posner the benefit of the doubt because people make mistakes. By the same reasoning none of us should have been skeptical of Anton Scalia and Clarence Thomas, who in Bush vs. Gore took an ultra-expansionist view of the equal protection clause after decades of taking a narrow view of it. Or that President Obama wasn't making a political calculation when he opposed gay marriage when running for senate but supported it just as the zeitgeist on the issue was turning. But not to avoid your question: of course not, but I would also hope I'd be forthright about acknowledging my mistake and uncomfortable with undo praise for my conversion.

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  6. Gee Anon, talk about not looking a gift horse in the mouth....

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    1. I thought I *was* looking a gift horse in the mouth :-) I just think Posner gets a pass from much of the media, much the way they treated John McCain and Chris Christie at times.

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    2. Anon seems to be confusing the players with the umpires.

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  7. dancing in the street to have Posner thrust the stiletto here .. because he's good at it, and wouldn't have bothered unless it was done, over, finished, kaput. Do not bore Judge Posner. Loved seeing the excerpts from his opinion (again). Thanks!

    Ellen

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  8. Good column, aside from trotting out the discredited canard about women earning 2/3 of what men do.

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    1. It's not a canard it's just ... checking ... out-of-date. The figure is now 78 cents, according to that hotbed of lefty propaganda, the Wall Street Journal: http://blogs.wsj.com/numbers/womens-pay-compared-to-mens-from-1960-to-2013-1774/

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  9. I'm not sure what your point is...

    If you're going to keep engaging with this guy, better put that on a macro or something.

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  10. Also: Neil, parts of this column, the second paragraph especially, approached poetry. When you're on, you're really on. Mazel tov.

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    1. Thanks, BS, though I don't know what a macro is. You mean Al? He's a regular, sort of on the Greek Chorus of vinegar side, but generally civil, and I thought he was arguing a canard, and wanted to address it. 1997 was a long time ago, and if you saw what the Supreme Court did today, sometimes rulings seem almost to contradict each other.

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  11. Posner is a jackass though. He should not be praised. His rationale for changing his mind was that since society's views had changed, so too must constitutional rights have changed. That is politics; it is not jurisprudence.
    He is not opposed to state as moral police in marriage either. He counted Roberts statements about polygamy with unproved claims that polygamy (meaning polygyny) is harmful to society. Writing for Slate, Posner opined "polygamy imposes real costs by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women" (It could actually be argued that same sex marriage reduces number of marriageable men as more men than women identify as homosexual.) So the potential for bad means that society can dictate the mating practices of women? "No, lady, you have to marry some poor man because it is not your choice to pick partners or relationship structure!" Though Posner would probably argue that polygamy is not a right only until society decides that it is okay and judges can reinterpret the constitution to include it.

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Thanks for commenting. As soon as I vet your remarks, they'll be posted, assuming they aren't, you know, mean and crazy.