Saturday, December 8, 2012

Marriage Equality Comes to the Supreme Court.

Yesterday's decision by SCOTUS to grant certiorari in both the Perry case and the Windsor case is noteworthy. Perry is the case that seeks to overturn the ruling in the 9th Circuit that upheld the decision of former Chief Judge Vaughn Walker of California's Eastern District court that California's 2008 Proposition 8 violated the federal Constitution. Windsor is the case out of the 2nd Circuit holding that the 1996 Defense of Marriage Act popularly called DOMA was itself violative of the Fifth Amendment to the Constitution.
These two cases combined constitute a 'perfect storm' of Constitutional dimension. No one other than the nine justices on the Court know which justice voted which way. The writ of certiorari from the Latin 'to make more certain' may be granted by the affirmative vote of four justices of the court. A decision to grant the writ and set a case for briefing, argument and hearing is made 'at conference.' The members of the court meet in secret periodically during any given term in their conference room in the presence only of their consciences. The term of the court runs from the first Monday in October until they finish their business in late June, whether or not that business is in reality finished. The justices themselves determine when their business is finished. It is commonly believed (with no evidence to support that belief) that 'cert' was granted by the affirmative vote of the four 'conservative' justices including the Chief Justice and justices Scalia, Thomas, and Alito and it is commonly believed by court watchers that the four 'liberal' justices along with Justice Anthony Kennedy did not vote for cert. Since the conference was held in secret no one but the nine justices knows for certain and everything else is simply speculation. Not even the legal staffs of the justices know what transpired at conference. All we know is the result. Both cases will be heard and in theory decided before the end of June.
Every partisan in the Nation has predictably announced how happy each is that SCOTUS has decided to take up both Perry and Windsor. I caution restraint in those announcements of support for the action of the justices yesterday at conference. Potentially these cases can be the greatest civil rights cases of the legal careers of both the justices and the lawyers participating in those cases and whose names will forever appear on the briefs and in the case books and in the history books of this Nation. These cases can go down history as the legal equals of Brown vs Board of Education in which a unanimous court outlawed the practice of compelled racial discrimination in our public schools and the other great marriage case Loving vs Virginia which unanimously overturned racial restrictions on marriage in the United States.
A decision of SCOTUS upholding both the 9th circuit decision and the 2nd Circuit decision would mark great progress in the slow struggle to democratize our society and to extend the blessings of liberty that has been undertaken in the 221 years since the adoption of the Constitution. As a partisan in this struggle I must say that I fully support this struggle for what is being called Marriage Equality. I am not going to go into the reasons. Hundreds and perhaps thousands perhaps even tens of thousands of people have already set out those arguments and reasons. What I fear however is that SCOTUS will not advance this struggle for liberty but in fact will craft an opinion in form and substance equal to the opinion written by Chief Justice Roger Taney in Dred Scott vs Sanford decided in 1857 that “negroes”, even those who had been manumitted by their 'owners', were not and could not ever become citizens of this country or of any of the states in which they lived or were present and which was overruled both by the Civil War and the enactment of the Civil War Amendments to the Constitution and of course the case of Plessy vs Ferguson decided in 1896 in an opinion written by Justice Henry Billings Brown holding that compelled separation of the races is somehow equality under the law.
A decision reversing either the Perry case or the Windsor case would destroy our constitutional jurisprudence so painstakingly crafted over the 221 years of our constitutional history and create a constitutional crisis unseen since the secession of the confederate states. In my view it is time to educate the members of the court not just through the briefs filed in these causes but through popular education. There is no doubt that the the justices of the Court read not only the briefs filed but also newspapers and other organs of popular education including I suspect the writings that appear in the blogosphere. There must be a great clamor arising from the People educating the justices including the mossbacks who inhabit the conservative side of the court to the reality of what is at stake in these two cases. Are we marching forward, however slowly is that march, or are we heading back to the days when we created not only classes of citizens but classes of people who in the words of Chief Justice Taney were not and could not be citizens and who were excluded from the benefits civil society and equal protection under the law? SCOTUS is going to answer that question for us, for better or worse, in the next six months.

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