Saturday, March 30, 2013

The Supremes

The Supreme Court heard arguments from two potentially significant cases last week.  One concerned affirmative action right here in Michigan.  The other focused on California's Prop 8 (?) and gay marriages.  I haven't heard much about the Michigan case, but the gay marriage issue seemed to have popped at the seams last week.  There's much I don't understand....

The issue of gay rights (and gay marriages/unions, families, etc.) is complex, but not complex at the same time.  It's a hot-button issue, no doubt.  Why does it, for instance, evoke great emotion and, I dare say, more action than all of the murders, especially of our children, going on in our cities?  Why are people more stoked up about this than, say, abortions?

It seems to me that if two gay people want to get married, what's the problem?  If they are in love and, at least initially going into the relationship, plan a long-term commitment, I don't see why they cannot be legally married.  So what if a religion, but by no means all religions or even all members of any certain religion, is opposed?  Government should not be in the business of enforcing a religious doctrine/belief.  If a religion want to condemn homosexuality and, in that vein, marriage between homosexuals, that's fine.  Those who oppose such unions can find a church that reflects their beliefs.  Those who don't agree with such a church's views can find another religion.  But, should our laws reflect a particular religion's tenets, in effect, legally enforcing a religious doctrine?

I think the argument that kids should be raised by a heterosexual couple because they will be better adjusted kids has been shot down pretty conclusively.  Besides, as some anti-gay marriage proponents have argued, is marriage solely for the purpose of having children?  If so, what if a couple decides not to have kids?  What if they can't have kids because of some physical problems?  Then, should they be required to take an oath that they will have kids?  If they don't take the oath, should we prohibit them from marrying?  Of course not and it's silly to assert so.  And, what about all of the divorced marriages and single-parent families?  Aren't the deleterious effects of them something to consider, more so than how a loving gay couple which wants kids affects children?

Some argue that the people of California have spoken, that the majority rules and Prop 8 reflects the view of the majority.  Well, that's why we have a Constitution and a court system, to prevent tyranny of the majority.  Majority rules in this country, except when the rights of the minority are trampled.  Should we have not abolished slavery?  In the South, the majority, even those who didn't own slaves, didn't favor abolition.  I'd bet, although we didn't have polling in the 1860s, a good/sizable number, likely even a majority, in the North didn't favor abolition of slavery.  Note the draft riots of 1863 and their root causes (of which there were several).

Several comments/questions from the Supremes, too, are troubling.  It was suggested by several (Alito and Sotomayor, perhaps) of them that gay marriage should be allowed to play itself out, that it's too new--newer, one suggested, than technology like computers and cell phones.  That suggests that the Supremes should stick a political finger in the wind and see which way it is blowing and then rule accordingly.  Nope, that's not what the Supreme Court is supposed to do.

Ah, I've lost my train of thought....  I'll be back later.

2 comments:

dgbohr said...

I would argue since the Constitution does not address the subject of marriage, it is not a federal question. They need to tread very lightly lest they thoroughly muck something up that isn't even a federal matter (see the Supreme's greatest hits..."selective incorporation" doctrine, abortion rulings (penumbras, emanations), rulings on religion, etc.).

The notion that we are not allowed to vote on the civil rights of others is mistaken. The Supremes created the "community standards" doctrine as it pertains to pornography. Gun licensing, a holdover of Jim Crow, has been upheld in court decisions. Denying felons the right to vote has been put to referendum. Denying welfare to illegal aliens has been voted on. Affirmative action in education and state contracting are subject to popular vote.

This is not to say it is right the items above should be made subject to the whims and vagaries of politicians-but it is what it is.

The Supremes are not omniscient (Dred Scott, Korematsu, Roe v Wade, Obamacare). Short of an obvious violation of the Constitution, they need to defer to the states.

Ron Marinucci said...

Correct and intelligently stated. "Voting on civil rights" is a touchy and potentially dangerous notion. "Civil rights" are not given by the people, by the Constitution, by the gov't. They are "natural rights." For instance, "the community standards doctrine," (Miller v Cal, I believe) is a very slippery slope.