(This note comes a week in advance, as this space is unavoidably detained next week. LEO readers from back in the day know what I’m talking about.)
The Kentuckiana Pride Festival is next week, the perfect opportunity to colorfully partake in the tremendous spectrum of humanity. We are also within weeks of hearing the Supreme Court’s decision on whether or not to legalize gay marriage in America. In the nearly 240-year history of the United States, this could and should be one of the great steps toward achieving a more perfect union.
The overwhelming expectation is that the Court will rule in favor of same-sex equality for all Americans in all 50 states. Just a decade ago, in the Spring of 2004, not a single state legally recognized the right of gay couples to marry. Today, 37 states and 72 percent of all Americans live in a state that recognizes this right. This has truly been an amazing decade of progress. (Although, looking back, the that it even took a decade is still mind numbing.)
That said, this Court has proven to be unpredictable, and the questions posed by the conservative Justices raise serious concerns for both the outcome of this case and how the Court operates as an institution.
However, the parameters guiding the scope of the Court’s rulings remain somewhat nebulous; balancing between law, politics and a rapidly evolving society. This uncertainty is why we are left, at times, feeling like we just walked into a child’s room to find Crayons and finger paint all over the walls.
During arguments before the Court in the Obergefell v. Hodges case, some of the questions and issues being raised by the Justices were horrifying. In civics class, we are taught that (generally) the Supreme Court interprets the Constitutionality of laws. This is a myth, and if Americans witnessed and really understood the seemingly whimsical manner in which the High Court of the land operates, there would be a national outcry for change.
When considering the issue of same-sex marriage, Justice Kennedy, who is largely seen as the swing vote in this case, raised the philosophical foundation of marriage dating thousands of years back to the origins of human civilization.
Kennedy said that day in court, “This definition [of marriage] has been with us for millennia. It’s very difficult for the Court to say, ‘Oh well, we know better.’”
Actually, Justice Kennedy, if there is even a question in your mind that you and your eight colleagues know better, then you are unfit to serve in your position.
Is this really how decisions are made? I am all for learning from the past, but to base a decision in any way on the cultural traditions and rituals of an ancient civilization is insane. What Justice Kennedy is insinuating is insulting. We do know better than the Kalahari Bushmen of ancient Africa. We are, by definition, a more evolved civilization.
Kennedy might as well argue that we are undermining the sanctity of Fred and Wilma Flintstone’s marriage if we allow Mr. Slate to marry his boyfriend. (Actually, the Flintstone’s had a drive-in movie theater so they too were more evolved than the Kalahari.)
Furthermore, the argument was made that for the Court to decide in favor of same-sex marriage, officially defining marriage for society for the first time, we are not allowing the Court to consider social sciences.
It is reasonable, by itself, to express an apprehension to arrive at a decision before gathering all the facts. What is not acceptable is to use the veil of social science to argue — as other Justices did — that public opinion and allowing voters to decide the fate of the issue is in any way related to how the Court rules on fundamental human rights. In our representative democracy, it is precisely the job of the Supreme Court to determine — to establish and defend — the fundamental rights afforded all Americans. (See the 14th Amendment.)
In all likelihood, the decision affecting the future of millions of Americans is going to come down to one man, Justice Kennedy. It is troubling that the fate of so many rests on the philosophical whims of someone who, at times does not seem to understand the fundamental purpose of his job and admittedly cannot determine if he is better-qualified than millennia-old, Kalahari Bushmen.