This is why they build courthouses

Posted by Robert Cruickshank on

"Over the holiday weekend, two op-eds appeared in the New York Times and the Washington Post criticizing the Perry v. Schwarzenegger case. The op-eds, by Jonathan Rauch and Jonathan Capehart, have been getting a lot of attention – and even approving words from Maggie Gallagher.

"But are the arguments in these op-eds valid? As I’ll explain, they’re far from it. Both present a deeply flawed assessment of the case itself, the politics of the case, and of the purpose of the judiciary itself.

"First up is Jonathan Rauch, whose op-ed in Saturday’s NYT titled “A ‘Kagan Doctrine’ on Gay Marriage” kicked off the recent debate:

ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when marriage equality comes before the court, as it may soon. What she did say was this:

'The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.'

Ms. Kagan may not have had the freedom to marry in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the marriage equality debate don’t like to hear, but it has the virtue of being right.

"Rauch is guilty of the 'both sides are the same' fallacy, calling those of us who support marriage equality 'absolutists' alongside those who wish to deny equal rights. In Rauch’s mind, our arguments are essentially the same, and 'serious' people like himself should stand apart from this debate entirely – or find some sort of half-solution that doesn’t provide equal rights, but avoids the need to have the necessary debate and battles to achieve equality.

... "Rauch makes it sound like the desire to have the US Supreme Court step in and enforce the Constitution when a state is ignoring it is somehow 'absolutist' or undermines the courts. This is a ridiculous claim which flies in the face of nearly 200 years of judicial precedent. Going all the way back to 1819 and the case McCulloch v. Maryland, the US Supreme Court has held that the Constitution is supreme to state law, with a few exceptions.

... "Rauch claims that the voters have a right to decide these questions, and that courts would be wrong to overstep those concerns. Yet the Supreme Court has already rejected that argument. The mandatory school segregation that was overturned in Brown and the interracial marriage bans that were overturned in Loving were the product of democratically-elected legislatures, and one could credibly argue that they were the expression of the will of the voters (keeping in mind of course than in many Southern states, African Americans were denied the right to vote).

"In fact, when it comes to LGBT rights, the Supreme Court has already ruled that the Constitution trumps the voters. In 1996, the Supreme Court, led by Anthony Kennedy, handed down the Romer v. Evans decision, overturning a constitutional amendment approved by Colorado voters in 1992 that prevented Colorado from doing anything to protect or advance LGBT rights. Kennedy slammed Amendment 2 as being 'unprecedented' and clearly motivated by animus toward LGBT people – one of the main reasons why that very issue has become so important in the Prop 8 trial.

... "Finally, there was Jonathan Capehart’s post at the Washington Post site on Monday, titled Could impending Prop 8 decision doom same-sex marriage? In it, Capehart takes Rauch’s op-ed and uses it as a basis to argue that the entire effort to undermine Prop 8 in the courts is too risky:

Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

"Capehart repeats Rauch’s error in seeing the 'will of the people' as being more important than the US Constitution. But Capehart’s real concern is that a favorable ruling from Judge Walker could spark a backlash that would undermine marriage equality:

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an 'aggressively dismissive ruling' from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.

"Capehart doesn’t assess the alternative, which is to simply let discrimination continue indefinitely. There’s no doubt that risks are involved with the legal strategy. But in a case like this, where Prop 8 is so flagrantly unconstitutional, and with two of the top constitutional lawyers in America – Ted Olson and David Boies – leading the case, it is a risk well worth taking. Again, these are why the federal courts exist – to take cases like this and apply the Constitution to ensure protection of rights.

... "Our movement must be ready for whatever Judge Walker rules, and whatever the Supreme Court ultimately rules. And part of being ready is building the movement and shaping the climate to favor a win. It’s how the Civil Rights Movement overcame the 'go slow' advocates of 'judicial restraint' in the 1950s and 1960s, and it’s what the LGBT rights movement needs to do here in the 2010s."

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