"It profits me but little that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life."

--Alexis de Tocqueville, Democracy in America

Tuesday, March 26, 2013

California Prop 8 Oral Argument

Here is the transcript of the Supreme Court oral argument today on the question of whether California's Proposition 8, which defined marriage as being between a man and a woman only, runs afoul of the Equal Protection clause of the Constitution.   The attorney for the petitioners (the anti-gay marriage side), opened his argument on the merits with this point:

The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States. And it does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.

Exactly so.   The arguments of the respondents (the pro-gay marriage side) essentially hinge on characterizing anyone who disagrees with them as irrational bigots, because that's the only way they get to the "heightened scrutiny" under  Constitutional law that would provide a basis for overturning California's Prop 8 or the federal Defense of Marriage Act (DOMA).   It may very well be that many states will decide that gay marriage should be legal and accepted under the law.   It may very well be that many if not most people will come to conclude that gay marriage is socially acceptable.   But it cannot be that any person who feels differently is irrational or bigoted as a matter of law.   To hold that would be to hold that Bill Clinton (who signed DOMA) and every other Democratic politician until very very recently (who opposed gay marriage publicly, regardless of their private beliefs) were acting irrationally and were bigots.  

More to the point, to hold that would be to hold that basic tenets of Catholicism (and, interestingly enough, Islam) are irrational bigotry.

I'll be really blunt:   I don't think that John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito are going to permit the other five members of their Court to label their religion a form of irrational bigotry.   If I were them, I'd put it in exactly those terms and publicly challenge their brethren to put themselves on the record as anti-Catholic. 

I'd also publicly challenge Kennedy and Sotomayor to put themselves on the record as rejecting a fundamental teaching of their own church.   I suspect that they are CINOs (Catholics In Name Only), but then they should stop identifying themselves as such.

None of this should suggest that this isn't a difficult issue, or that I'm not conflicted a bit on it myself.   But that's why it should be worked out in the processes of democracy, not with courts telling half of us we're bigots.

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