THE SUPREME COURT, GAYS,OBAMA, REPUBLICANS AND SOCIETY

This last week saw a fascinating interplay between Lesbian – Gay rights, the Obama administration, the changing mores of society and the Judges of the Supreme Court. It all came about as a result of two interrelated cases on the marriage rights of the group that has now become known by the acronym LGBT, (lesbian, gay, bisexual and transgenders). The first case was the Appeal against the constitutionality of California’s 2008 Proposition 8, where the Californians had narrowly voted down the marriage rights of the LGBT group. The second related to the constitutionality of the United States Congress’s 1996 Defense of Marriage Act (DOMA). The latter restricted marriage to heterosexual couples.

PARTIES TO THE LITIGATION.

The Plaintiffs in both these cases were, as one might expect, members of the LGBT group who had complained that they had been discriminated against by these laws. 

In matters of this nature the defendants are usually the Governmental Administrations, whose responsibility it is to enact the legislation that is being appealed against.  In the Proposition 8 Case, the Arnold Schwarzenegger’s, State of California, declined to defend Proposition 8, as did Obama’s United States of America in the DOMA legislation. The defendants were thus independent parties. ProtectMarriage.com and the Campaign for California Families defended Proposition 8 and the Boehner Republican House of Representatives defended DOMA.

Chief Justice Roberts reflected his displeasure at the Obama administration not defending DOMA. He maintained that Obama was a coward in that he was not even arguing that every State should allow same sex marriage. Judge Scalia was scathing on the failure of the Administrations to defend their laws. He maintained that a “new world” had been created in that Administrations could nullify legislation by failing to defend it. Of course that was patent nonsense as the Court could the rule whatever it saw fit regardless of who the defendants were.

In order to cope with the failure of the Obama to defend the DOMA legislation the Supreme Court took the unusual step and appointed Counsel to argue the case that the Supreme Court should not hear the case at all on the grounds that it had no jurisdiction as DOMA was not being properly defended. The Supreme Court similarly appointed a Law Professor to argue that they should not hear Proposition 8 either.

Jay H. Ell had the distinct impression that Chief Justice Roberts felt manipulated into carrying out Obama’s dirty work in nullifying this legislation.

The Court itself had only itself to blame that it was hearing these cases as at least four Justices agreed to do so the first place. It is more than likely that those accepting the cases were the Conservative Judges as the Federal Appellate Courts had ruled to throw DOMA and Proposition 8 out. Therefore had the Supreme Court elected not to hear the LGBT cases the Appeal Court rulings would have been the law of the land. So the Conservative Judges anger, as to the situation they were in, was misplaced. They obviously had wanted another opportunity to reassess the situation and were now not happy at their decision.

COURT ARGUMENTS

Besides the verbalized anger at even hearing these cases there were sharp interchanges on the constitutionality and merits of the cases.

The general argument by the defendants of the legislation was that they were defending State rights in both cases. An added argument of the defendants was that the principle purpose of marriage was procreation.

An exchange took place clarifying the motive of the legislature for the DOMA legislation. Chief Justice Roberts enquired as to whether there had been any “animus” against homosexuals in the enactment of the legislation. The purpose of this question was to ascertain if there had been that could be reason to strike the law down. The Supreme Court had ruled in 1996 that the moral disapproval of a group was an unconstitutional reason to enact legislation. Counselor Clement for the defendants maintained there was no animus involved. Justice Kagan, who is emerging as the sharpest tool on the bench, quoted from the House of Representative record on DOMA. To Clement’s dismay he learned that Congress had expressed their “collective moral judgment and disapproval of homosexuality” in enacting DOMA.

Justice Kagan also demolished another defendant defense of DOMA. Counselor Clement had argued that the sole purpose of marriage was procreation. Justice Kagan countered if that was so then DOMA should exclude marriages where the couples were over the age of fifty- five years as there was no way that they would be able to procreate.

JUSTICE KENNEDY

However, the most telling arguments would have to come from Justice Kennedy who was emerging as the swing vote. He had a special interest in this issue as in 1996 he authored the opinion that the State of Colorado had acted unconstitutionally by barring homosexuality. He maintained that this was discriminatory. He also in 2003 had authored the reversal of the1984 Supreme Court decision that had given the State a right to violate the homosexuals’ right to privacy.

Kennedy crystallized the issue as being between equal protection of individuals under the Constitution versus the States’ right to legislate. There were powerful arguments that those partners that were unmarried suffered financial harm. This was in fact the basis for the challenge on DOMA, where an individual, who had been in a forty -three year old relationship, was subject to a Federal estate tax bill of over three hundred thousand dollars. Had she been married to her significant other the tax bill would have been nothing. It was revealed that there were eleven hundred Federal Provisions relating to marriage. So it was obvious that failure of the Federal Government to recognize same sex marriage resulted in discrimination. This discrimination ranges from the right to visit a partner in hospital to vast financial disadvantages,

Kennedy who has also been a champion of children’s rights placed emphasis on the appeal of the 40,000 children who are in same sex marriages. He balanced all these statements with the fear that DOMA had intruded too deeply into State rights.

SOCIETAL CHANGE

All this is taking place in a societal milieu that has within less than a generation or even a decade has given the LGBT group acceptance. If one realizes that in 1970 homosexuality was declared a mental illness by the psychiatrists and as late as 1984 the Supreme Court held a State’s right to invade individuals’ privacy to prosecute consenting adults for sodomy the change in societal attitudes has been dramatic. In fact as recently as 2008 the Californians narrowly voted for the selfsame Proposition 8 that is subject to the current Supreme Court challenge. All the opinion polls show that if the Proposition would be put on the 2014 ballot it would be rejected by a to two to one majority,

Within the space of 2 decades attitudes towards LGBT marriage have changed from about a 20% acceptance to about a 55% acceptance. This acceptance is considered a fundamental issue by the youth, where over 70% believe in same sex marriage. Of particular interest is the statistic that 60% of all people believe that the Federal Government should recognize same sex marriage enacted by States. Polls also that 90% believe that the LGBT group should not be discriminated against. Over 80% believe that same sex marriage will become law.

The Supreme Court Justices had noted this societal change where everyone and several institutions filed amicus briefs in favor of making the legislation unconstitutional. Nearly 200 leading Republicans have done so as well as the military, commercial entities and several non- governmental agencies. According to Chief Justice Roberts politicians were lining up to support the LBGT cause.

WHY.

Why this incredible change in societal attitude? Obviously there are a number of factors. Jay H. Ell believes that the principle one is that more and more LGBTS have come out of the closet. In so doing the society they live in have noted that they come from all walks of life and are no different from anyone else. The public acceptance has grown and grown as more and more people found that they were personally connected to an LGBT person either as family members or as a friend. Even the National Football League has a self - confessed gay. LBGT members formed advocacy groups where they soon became political and economic forces to be reckoned with.

Prominent individuals particularly from the Republican Party recognized LGBT individuals on the basis of having a member of their family being homosexual. This all added to their acceptance.

 Perhaps, the major awareness of their plight became evident as a result of the evolution of their acceptance in the military. First came the, “Don’t ask don’t tell” legislation. This was enacted in 1993. As offensive as this legislation was it prevented the witch-hunt and discrimination against LGBTS in the military unless they openly declared that they were gay. In December 2010 Congress agreed to repeal the act on condition that the President, Secretary of Defense and the Joint Chief of Staff agreed. This they did and in addition a Federal Court declared it unconstitutional and the ban was lifted.

Nine States have now recognized Gay marriage including, Connecticut, Massachusetts, Vermont, Iowa, Maine, Maryland, New York, Washington and New Hampshire as does the District of Columbia.

Politically the movement gained its biggest fillip when President Obama, in 2012, announced that his position had evolved to advocating the legalization of same sex marriage. While the majority of States, thirty in all, have statutes on their books, making same sex marriage illegal there is little doubt that the momentum for countrywide acceptance is growing.

AT THE END OF THE DAY.

What does this all mean? - to quote the most powerful Republican media moguls – not much. Both Rush Limbaugh and Fox’s Bill O’Reilly have told their viewers that the issue of LGBT marriage is lost to the Conservative cause. However, there are a number of constituencies that this issue still impacts. (The fact that the 40% who do not support it are concentrated in certain states, certain areas and in certain groups will make universal acceptance of same sex marriage a long battle).

While no serious observer or legal commentator will ever predict the outcome of Supreme Court decisions on the basis of oral arguments, but as Jay H. Ell is batting a 1000 on Supreme Court Predictions, (Blogs: The Robert’s Supreme Court and Obamacare in April and June 2012), he will venture a prediction. The court will declare that the Californian Proposition 8 is improperly before it. This will mean that that the Federal Circuit opinion that is unconstitutional will stand. With regard to DOMA there will be a 5- 4 opinion in favor of declaring it unconstitutional.

Where does this leave the Republicans especially that Boehner is the nominal defendant of DOMA? Well the Republican Establishment wants this behind them but remember there are about 40% of the Americans are still support DOMA. The problem for the establishment Republicans is that most of that 40% opposing gay marriage are the Republican base that will be deciding the Republican electoral candidates. Those candidates would have no hope in a General Election. So whatever way this goes it is only going to exacerbate the Republican problems.

Obama cannot lose. He has staked out his position in favor of same sex marriage. Even if the Supreme Court rules against DOMA he has not lost anything and history is on his side. This will then become a central issue with the electorate, whom where it matters, on his side.

The Conservative Supreme Court has the most to lose whatever happens. The recent performances of Scalia, in particular, and the normally imperturbable Roberts have not enhanced the legacy, dignity and independence of the court. Alito is not adding much and Thomas has been an intellectual liability ever since the word go. Roberts is also going to live with the fact that the way the wind is blowing Hillary Clinton will be elected President and within 12 years all the geriatrics of both sides will no longer be on the Court and he will be leading a 6 – 3 liberal court.

THE LAST WORD

The irony has not escaped Jay H. Ell that it is the LBGT group that are fighting for the right to marry at the same time that half the heterosexual marriages end in divorce and fewer and fewer heterosexual couples are even bothering to marry in the first place.