Some decicions aren't as cut and dried as they seem.
Today, my mind was occupied with several things, but the U.S. Supreme court wasn't one of them, until I happened to get several million notifications from Twitter that a decision had been reached in a case which was set to determine whether both homosexual and heterosexual couples would have the same rights to marry in all states in the United States. I checked Facebook as well, and then began doing research...
I read the details of the case, and then the decision of the Court, as presented by Justice Kennedy. I read over the last paragraph a couple times, admiring the beauty of the language. Well written, Kennedy. As stated, the emotion behind the statement is one I can agree with. Those who know me to be a supporter of marriage equality will not be surprised by this. However, being me, I wasn't done.
I then looked over the newsfeed again, saw a bunch of satirical writings regarding the dissenting opinion of Justice Scalia, and decided to go back and read that. Interestingly enough, it was Chief Justice Roberts who penned the official dissent, but there were other individual dissents presented. Scalia's was the only one I chose to plow through, because of the comments I had heard regarding the reason for his separate opinion. Also well written, if a bit snarky at points. I'm not sure I completely agree with his analysis of marriage being a hindrance to freedom of intimacy (which, with his snotty "just ask any hippie", was great fodder for those who wished to write off his opinion entirely), but otherwise? I can agree with him also. Here's why:
Change comes two ways. Either we experience evolution, or there is brought forth revolution. One way allows for a natural, gradual change which can become a part of our life in a peaceful way, or something drastic comes upon us and we either crumble under it or fight back violently. Either way, change is the only constant in life. Now, those who have heard the analogy that the best way to boil a frog is to put him in lukewarm water and raise the temperature by one degree every ten minutes until it's boiling (because apparently this has been proven a technique the frog will not attempt escape from) will argue that not all gradual change is a good thing, and I see the point there. However, we live in a supposed democracy. This means that change should come from the people. This is why the President cannot officially declare war on another nation without permission from Congress, a body of society's duly elected representatives.
Now, to Scalia's valid points:
First, he begins by saying he agrees with Roberts, which I assume to mean that he isn't so hot on the idea of homosexuals being allowed to marry. He is entitled to his opinion, but the beginning of his dissent states that his issue isn't just with who is allowed to get married. No, this statement is about what we just did to the Constitution by allowing a body of only nine, non-representative, appointed rather than elected lawyers (judges are elected lawyers, hence his distinction) to dictate how all states' marriage laws will now be written.
Has anyone else read this? Not the version in the New Yorker or the Onion, but the downloadable PDF file that the justices themselves penned. Go and Google "SCOTUS decision on marriage equality" and find the actual document. It did take me a while to sort through the crap on the internet, but it is out there. Go ahead and page down to Scalia's dissent, which comes after an overview of the arguments, Kennedy's decision and Roberts' counterpoint.
The Court is comprised of nine judges. Three are female, six are male. One is African American, one is Latino (unless Alito is also Latino, which I'm not certain, in which case that would be two Latinos) and the remainder are Caucasian. Sounds sort of representative, right?
This is, at its heart, a soon to be almost-exclusively religious debate, so let's look at the faith of the players involved... three members of the Court, Breyer, Ginsburg and Kagan, are Jewish. The remaining six, Kennedy, Sotomayor, Thomas, Scalia, Roberts and Alito, are all Roman Catholic.
Hmm. So, both the justice who penned the prevailing decision and the author of the main dissent are Catholic. All those of Jewish faith were on the pro side, just for informational purposes.
My next step was to confirm something I already suspected which Scalia alluded to: the majority of the United States citizenry doesn't fit into either of those categories. Never mind for the moment the Muslims, Hindus, Pagans and Atheists who are being not represented and pretty much ignored here. As much as 83 percent of America claims the Christian faith as their own, according to an ABC News poll, but let's go with a Gallup poll, generally regarded as fair and scientific in their search methods... ready?
According to gallup.com, 77 percent of adults over eighteen in all 50 states and the District of Columbia identify as Christian, with 54 percent of them being Protestant or some other form of "non-Catholic" Christian (two percent of that being singled out as Mormon).
This is why the court is non-representative. As someone who is not now nor has ever been Jewish or Catholic, I'm beginning to see Scalia's point here. And then, he brings it back around to demographics of a different nature. There is only one midwesterner on the court. Justice Thomas was born in Georgia and spent a good part of his career in Missouri. Everyone else, without exception, began on either the far east or far west coast, and only one, Breyer, swapped coasts (he was born in Sacremento and served in Massachusetts before his appointment to the high court). Three of them, Ginsburg, Kagan and Sotomayor, grew up in New York City.
Now, the Supreme court is not supposed to be representative. It is appointed, and the job of its members is to be impartial and interpret the law of the land. So, why is this decision a problem? I mean, I personally agree with marriage equality, so why am I going on about this?
Now, to Scalia's other valid point.
There has been a great amount of debate on this issue, as there should be. People have rallied, spoken out and voiced their opinions, and sought to change legislation they believed to be unfair. As it should be. Our country was founded on a person's right to be a part of a self governing society. This landmark decision is not an example of self governing society. It is an example of five people deciding that in this case, the individual states and their governments do not have a right to vote on a law which affects their citizenry. That their duly elected representatives no longer had a say. Whereas there is a part of the Constitution which allows for amendments to be brought forth and voted upon by the states, it appears that wasn't good enough in this case.
Would it mean that change would be slower to come? Yes. Would it mean that not all state marriage laws would read the same? Um... they never did. When my parents wanted to get married in Wisconsin, and my father's West Virginia divorce hadn't been in effect for long enough to suit the state of Wisconsin, they simply got married in Michigan, a state with more exact reciprocity with West Virginia. This isn't new, folks. And this is a huge change. Whether I personally think it's a good idea or not, it should've been done the right way.
We have walked all over states' rights. And that is rarely if EVER a good thing.
