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By Tom Cushing

Supremes should play the Prop 8 case 'straight'

Uploaded: Mar 27, 2013

The cause of gay rights is a generational thing. That is, if you're over 60, your synapses may have ossified to the point where you can't get past the unfamiliarity of homosexuals (closets were roomier in days past) or a fixation on the prurient. If you are under 30, however, you can't imagine why anyone considers it a big deal: people have blue eyes, green or brown, are left-or-right-handed, gay or straight – all observed out in the open, with an indifferent shrug.

That phenomenon may be the best way to account for the Supreme Court's evident discomfort, confusion and timid search for an easy exit from the Prop 8 case they heard at oral argument yesterday. If they find one, they will further cheapen their legacy, already tarnished by overtly political decisions like Bush v. Gore and Citizens United.

I cut my legal teeth in the time just after bold and principled era of the Warren Court. It was and is a source of professional pride to have come into some affiliation with those jurists who understood their job to interpret the Constitution in a way that would give life to the promise of America, for all Americans. It is not clear to me that they looked for easy outs, or dithered over possible backlashes or unlikely sociological implications of their rulings. I'd like to believe that they "called 'em like they see'd 'em" without fear or favor -- freed, as they were, from periodic electoral accountability, and thus able to go wherever conscience and intellect might lead.

That is in some contrast to the current Court. Even the liberal wing, led by Justice Ginsburg, worries about rulings that get too far out in front of the nation's psyche on any given subject. In talks that augured this week's festivities, she has noted the abortion ruling Roe v. Wade and even the iconic Brown v. Board of Education racial desegregation order as examples that created an enduring backlash. Albeit her concern is that the Supremes not inadvertently set back the progress of such movements as civil rights. I would submit, however, three things: first, she's not in a good position to judge the current state of the national psyche; second, that's her job; and third, this is not one of those cases, anyway.

Nobody gets to be on the Supreme Court without being remarkably accomplished -- brilliant, even. Part of that ability, though, needs to include recognition of the limited view that their lofty cloister affords them. They live in splendid isolation, and are also prisoners of their own generational world view. Only three of the Justices are under 60 (Kagan, Sotomayor and Roberts), and Ginsburg herself is now 80. As above, homosexuality is just not much in their frame of reference. They all have bright young law clerks; we can only hope that the jurists are seeking their counsel here (the clerks might even suggest the possibility of a "frontlash" if the Court falls too far behind the rest of the land, who will, after all have to live with these precedents).

In addition, I do not think that the proper definition of the Court's role says anything about pulling punches when it fears a backlash. In fact, if we want to look to the most shameful blemishes on the Judiciary's record, the Japanese internment approvals stand-out in festering disgrace. Granted the backlash there might have been a wartime constitutional crisis, but the Supreme Court utterly failed to provide equal protection of the law to those citizens, under the 14th Amendment. The Supremes' job is to interpret the Constitution, and let the chips fall where they may – at least then the future battles, inevitable anyway, will be fought from the right side of justice and history.

Maureen Dowd had a great illustration in the NYTimes today that I only wish I'd come up with: what if the Warren-ers had been worried about whether they were getting too far out in front of the country in striking down restrictions on inter-racial marriage in the case of Loving v. Virginia? What if they'd dithered about the ability of bi-racial children to make their way in the world? The re-elected occupant of the White House might have an opinion on that issue.

Finally, even if the backlash concern is ever legitimate, the Prop 8 case is not such an instance. Roe v. Wade violated the most deeply held values of its opponents, who equate abortion with murder. Brown v. Board called-for twelve-years' intimate daily contact with black kids – from white parents who couldn't yet even come to grips with rock-n-roll music. Neither of those factors is present here.

In fact, the Prop 8 case is very similar to the Loving inter-racial marriage case: same-sex marriage implicates only its willing participants, it is a sub-text in a wider struggle, and it even involves the same social institution. There was no particular backlash to Loving, and neither will there be here.

The very bringing of the Prop 8 case had the signal effect of exposing the meager arguments against same-sex marriage – in open court, and subject to cross-examination. The primary expert for the law's defenders recanted his prior opinions, and the Prop 8 forces were left with the weak-link procreation argument to justify the law in terms other than irrational animosity toward a minority. As a participant in many-a-thread on the subject, I can testify that those discussions used to proceed for hundreds of posts, but now tend to die-out after only a few dozen. That also suggests to me that it's over – no backlash to fear around these parts.

There are many ways the Court could, well, come-out on this case; most point to the end of the line for Prop 8, at least in our fair little corner of the globe. But not necessarily – we won't know until June when the Court finally issues its ruling and opinions (there will undoubtedly be several). It seems unlikely that the Court will seize this opportunity to end this particular fundamental, irrational prejudice against a group that will forever be a minority in this land. That's a shame, because that outcome is exactly what Fourteenth Amendment Equal Protection was designed to achieve.

Cliffs Notes version: the Supreme Court is making an easy Prop 8 case difficult, by miss-interpreting its role.