IT IS SO ORDERED

Equality and the Supreme Court, Rich Paschall

While the Supreme Court decision on gay marriage was expected by some, it was a total shock to others.  Nevertheless, people took to the street to celebrate their activism.  Many had demonstrated in front of the Supreme Court in recent weeks. People carried signs and waved rainbow flags.  Politicians made speeches about what the Supreme Court should do.  There were articles and editorials.  The rhetoric on the topic hit new highs (or lows, depending where you are) and social media exploded with cute (or not so cute) graphics (internet memes) in support of one side or the other.  None of this mattered, nor should it have.

In the Spring of 2013 when two landmark cases were about to be decided (Hollingsworth v. Perry, No. 12-144 and Windsor v. United States, No. 12-307), the Sunday Night Blog offered an opinion on another important case U.S. Supreme Court v. Public Opinion.  The first case dealt with California’s Proposition 8 which eliminated the right of same-sex couples to marry in California.  The court could have side-stepped that one easily, and in a way, they did.  They ruled that those who had brought the case had no legal standing as they were not harmed.  In essence, they told the Ninth Circuit “the appeal to the Ninth Circuit should have been dismissed for lack of jurisdiction” as there was no harm to those who brought the appeal.  Same sex marriage resumed in California.  Interestingly, Judge Kennedy dissented.

In the other case Edie Winsor, whose marriage to Thea Spyer was recognized in the state of New York, found that her marriage was not recognized by the federal government when her partner died.  She lost everything for her lack of being able to inherit from her partner.  This was due to the highly controversial Defense of Marriage Act (DOMA).  It seems the federal government could not declare on one hand that whoever a state recognizes as married is married, and then say it does not apply to all people. DOMA was a clear violation of states’ rights as well as civil rights. Here Judge Kennedy wrote for the 5-4 majority, stating  “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”  While the ruling tossed out DOMA, it left gay marriage to the states.

Taken April 28, day of oral arguments to Supreme Court, CC License
Taken April 28, day of oral arguments to Supreme Court, CC License

In the court of Public Opinion, the people have no standing when it comes to the Supreme Court.  It does not matter how many people show up with rainbow flags or protest signs.  It does not matter how many politicians or activists  make speeches from the court-house steps.  It does not matter how many presidential candidates come out for or against the issue.  In fact, it is likely few candidates actually read the case or the court’s ruling.  The movement of public opinion in favor of gay marriage should actually have nothing to do with the court’s opinion.

The Supreme Court is there to rule on the law as it applies to the Constitution.  They are not there to rule in favor of shifting opinions.  They are not there to write laws.  They are not there to grant new freedoms.  They are there to hear how the case before them is to be considered in light of the law of the land, The United States Constitution.

In the case of Obergefell v. Hodges (14-556), Director Ohio Department of Health and similar cases from three other states, the justices were asked to take on the matter of same-sex marriage as being protected under the Fourteenth Amendment in all states. It became clear that any ruling by the Supreme Court would impact same-sex marriage nation wide.  So the question became, does the 14th Amendment to the United States Constitution mean same-sex marriage should be recognized and legal everywhere?  When the court took on these cases as one, there was no opportunity to side step the issue.  The justices had to decide two fundamental questions.  Does the 14th amendment require states to license same-sex marriages?  Does the 14th amendment require states to recognize those married in other states?

The debate outside was not important to the court case.  The important debate was inside the Supreme Court.  What was said? These debates are not held in secret and in fact, you may hear the oral arguments of question one here and question two here. If you have the time to listen, you will hear the often debated issue of the definition of marriage being raised.  Is the court redefining marriage?

In the end, the court is not changing institutions on us or rewriting the law, they are strictly dealing with the protections of the 14th amendment.  Justice Kennedy again wrote for the 5-4 majority.  His opening line of the decision in fact stresses the law of our land is being upheld: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

But is the court working against the writers of the Constitution?  Do they have the right to offer an opinion that takes away the right to define marriage at the state level?  Are they working within the framework of their assigned duties.  Again, Justice Kennedy for the majority: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

So, they addressed it head on.  Many will celebrate while many, who have not read or considered the legal matters here, will bemoan the state of our nation and the Supreme Court.  Chief among the complainants is the Chief Justice himself: “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”  To call the majority of the justices “five lawyers” shows a level of disrespect this decision is likely to see for decades to come.  The battle for equality will continue.

Author: Rich Paschall

When the Windows Live Spaces were closed and our sites were sent to Word Press, I thought I might actually write a regular column. A couple years ago I finally decided to try out a weekly entry for a year and published something every Sunday as well as a few other dates. I reached that goal and continued on. I hope you find them interesting. They are my Sunday Night Blog. Thanks to the support of Marilyn Armstrong you may find me from time to time on her blog space, SERENDIPITY. Rich Paschall Education: DePaul University, Northeastern Illinois University Employment: Air freight professional

19 thoughts on “IT IS SO ORDERED”

  1. We have had same sex marriage here in New Zealand for some years now. We have a lot of Australians come over here to get married.

    Here is how our parliament works.
    It is not an issue now. Just part of normal life.

    Liked by 2 people

  2. PS MrsA, am sending you a letter written to a right-wing nutjob “religious” TV show. Not by me… it popped up on my FBook timeline. It’s a real hoot, and you may want to share with Rich. 😀

    Liked by 1 person

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