The Supreme Court, Absurdity, and Gay Rights

I'm not happy with the Supreme Court's handling of the two gay rights cases currently before the court. It strikes me that comments made by several of the justices during oral arguments cross the logical boundaries into absurdity—I expect that from the likes of Judges Thomas and Scalia.

However Chief Justice Roberts and Justice Alito made comments that moved them in the direction of the legally absurd. Alito noted that these cases present issues that are so new they don't even predate the use of cell phones and other similar technology. To argue as he then did that these laws are less than five years old (He was referring to the California laws) and therefore shouldn't be touched by the Court is nonsensical, but using that convoluted thinking he clearly doesn't think the cases deserved a hearing.

To be sure the gay rights law is relatively new, but the issues surrounding gay rights are not. Gays have been a part of our collective whole from the beginning, and I'm not aware of any evidence that would indicate that their numbers have increased or decreased over time. Indeed, I would guess that the sexual preference variables have remained pretty constant.

It is true that historically some societies have been more accepting and some more repressive than others. The ancient Greek democracies, for example, were amazingly tolerant of sexual preference variations that included non standard forms of sexual intimacy between same sex couples. Undoubtedly there was nothing in the Greek genes that disposed them to adopt more tolerant attitudes toward matters sexual, but one should not forget that historically their existence predated the Christian religious influences that have brought us so many of these self-righteous, intolerant crusades that give the history of Western Civilization so many repressive epics. And guess what, the current anti gay rights arguments at every level are filled with religious venom.

I'm also not persuaded by the argument that these issues need more time to mature before a proper decision can be made by the Court. In this latter context we are told that the Roe Vs Wade decision would have been more acceptable had it been given more time to mature in lower courts. I don't buy that point of view, that the religious zealots who oppose Roe Vs. Wade would, with the passage of time, have either acquired more gray matter or would have become less prone to intolerant, judgmental behavior.

I view the current cases as pretty simple, members of our big social family are being denied their basic human rights and justice delayed is justice denied!

Next on my list of the legal absurdities ribbing the Court arguments the last couple days was Chief Justice Roberts insistence that this is much ado about nothing, that is it's a mere question of semantics, a labeling issue as it were. . .pitting the word marriage against the words civil union. . .never mind that the Federal Government withholds all kinds of financial and other benefits because of that little semantic detail. It is not therefore a mere matter of mere labeling . . .a rose may be a rose by any other name but marriage by any other name under Federal law is not marriage and is not entitled to the same benefits.

Finally, “Chief Justice Roberts and some of the other more conservative justices expressed irritation that the case was before them at all and said President Obama’s stance – to enforce the law but not defend it – contradicted itself.

“I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.” (NyTimes, Wed, March 27,2013)

I find it nothing short of amazing that the Chief Justice of the Supreme Court would make such a statement. The President of the United States doesn't have the prerogative of enforcing only the laws that he likes or even deems constitutional. To be sure, No one, not a police officer in the street or anybody in a law enforcement position has to like the laws they're charged to uphold; they not hired to like them, their job is to enforce them.

As a teacher of some 40 plus years, I sometimes found my self obligated to enforce rules I didn't like, but that did not in anyway vitiate my responsibility to do so. In the very few instances when I could not have done so, I would have felt obligated to resign or initiate an act of civil disobedience with full knowledge that it might cost me my job.

When the Chief Justice administered the oath of office to our President in January, that oath included the proviso that the President would uphold the laws of the land; it did not include the Chief Justices suggested civil disobedience, “I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional.”

This is not the kind of advice the chief legal officer of the land should be making from the Supreme Court Bench as he did.