An End. A Beginning.
Why the “respectful dissent” isn’t, and how all rights are invented.
On Friday, the Supreme Court of the United States ruled in favor of giving same-sex couples the right to wed in all 50 states.
But what I feel like is that on Friday, five of the nine justices on the Supreme Court of the United States speaking with a single voice ruled in favor of giving same-sex couples the right to wed in all 50 states, while all of the other four justices needed to use this opportunity to remind me that I am not an equal member of their society, and I never will be.
The decision has been made and, barring a Constitutional amendment that redefines what “marriage” means (and I find it hilarious that I get to start using ‘redefine marriage’ now) the die has been cast and it is now the indisputable law of the land.
If two men or two women walk into any government office in any state in the union — even Alabama or Mississippi or Louisiana (where governor Bobby Jindal issued an executive order to reinstate an anti-gay “religious liberty” law that would legalize discrimination based on sexual orientation (and can I say that I am not “oriented to being gay?” I’m just gay) after his own legislature defeated it) — they must be issued a marriage license. They must be afforded the same rights and privileges that every other married couple has been given “since the time of the Aztecs” or was it the Mayans? Or the Incas? Whomever it was that Roberts cited in his dissent, at any rate.
I still haven’t felt the desire to celebrate this, most likely because I have no desire to get married to anyone, male or female, and it is more likely that I will live on Mars as the keyboardist for a Yes cover-band that only plays bar mitzvahs for female Catholic priests before I ever find someone else willing to enter into a permanent relationship with me and my cat.
It is less likely because I am still scared that this is all a dream, that this is all a trick, that this is all some TV fantasy on SyFy and I’m going to discover I am a clone or something and that everything I have come to learn about being gay in America is still true.
In some sense, it is still true. The ruling has opened the idiotic floodgates and every small-minded, wrong-headed, selectively-bigoted asshole who clutches his or her Leviticus passages from the Bible to their breast with the fervor of a true zealot feels obligated if not forcefully required to let the world know that this abomination of justice signals no less than the disintegration of human society.
None of the dissenting Justices would label themselves as “opponents of gay marriage.” If there is a common thread running through all four written dissents, it is that the Supreme Court is stepping over some boundary they seem to have only discovered with this case, wherein making this judgment that clearly, clearly overrules the will of the States (and the people) regardless of whether it is right or wrong (you can probably guess that I believe that discrimination, “the unjust or prejudicial treatment of different categories of people or things,” is wrong on its face) will permanently and horribly alter the face of the country itself for the worse.
Again and again, what I read in each dissent was the legal opinion that it’s okay to discriminate against homosexuals if a majority of the voters in a State agree that it is.
“We the people,” indeed.
Let’s circle back to those four justices whose opinions on legal matters of this sort cannot help than count more then yours, mine, and the zealots — and let’s start at the top with the Chief Justice of the United States and how he put things in his own words, literally.
Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
It seems that the Chief Justice feels like this is an inevitability, but instead he prefers to let those who want to get legally married toil through years more of these debates, and millions in court costs, and endless battles with those who may find the notion of two faggots standing up to say they love each other and please, sir, may we have some marriage “more difficult to accept.”
Yes, by all means, Mr. Roberts, let’s strongly consider those poor unfortunates who can enjoy a life without the doubts of self-worth and the written laws of their own states telling them they are not the same as everyone else while we dismiss the idea that there is a minority lacking those same civil rights. Why give a shit about them, really, when it’s the vast majority we should be concerned with?
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.
No, Mr. Chief Justice, you were correct the first time. Because it is exactly the job of the Supreme Court to decide matters that it has agreed to hear, and to pass judgment on their legal standing within the confines of the Constitution, and define those laws going forward.
It is not, as you would cowardly have it — at least in cases where you are in the minority and you are not removing voting rights for the disenfranchised, or granting corporations the rights of citizens, or redefining monetary political donations as “free speech” — for the court to shrug when it doesn’t want to make waves or do its job and understand that the country needs a push sometimes, even if that push is in a direction that you seem to find distasteful.
Roberts also overtly equates same-sex marriages with polygamy, while in the same paragraph denying that he has done just that:
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any.
This is an obvious nod to the absurd Cats and Dogs argument, being that if we allow two women to marry each other, what’s next, marrying your cat?
This is fodder for the Fox News imbeciles and nothing more. The law does not state or involve anything at all about any other sort of marriage. I, for one, have no objections to polygamy or polyamory or marrying your cat, your lawn mower, or the moon. But one hopes that if Roberts really is so concerned about all the upcoming Supreme Court cases involving such unions, he can think of other interesting examples to include in his predictable objection.
Let’s turn to Justice Alito, now, for some really juicy dance moves.
I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
If you’re reading the same words as I am, maybe you’re reading them the same way that I am: “People like me would like to continue to behave in the bigoted manner we always have, but we would prefer it if you didn’t refer to us as bigots.”
So please do whisper your thoughts in the recesses of your home, in much the same way that gentlemen who prefer gentlemen have had to whisper their love lines to their heart’s desire in the recesses of dark alleys and deserted parks. Because there was nowhere else to whisper them without being beaten up, or kicked in the face, or tied to a barbed wired fence and bludgeoned to death. I’m sorry if my desire to be treated with dignity and respect interferes with your comfort in being able to openly judge me without consequence.
The Justice goes on:
If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.
The “bare majority” he refers to is the five justices he disagrees with. It is again curious, then, that in every other five-to-four decision that the court has decided when he is sitting on the opposite side of that fence, he renders no such trepidation.
Perhaps, instead, he refers to granting a “new right” as something the court has no business doing. Perhaps it is only when they are stripping away rights that the court may comfortably nod sagely from their perches.
If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible.
Note here, again, that Justice Alito, who enjoys the right to marry, and the rights that marriage conveys, seems to have no concept whatsoever that a country wherein marriage rights are divided by state borders makes those who are legally married in one state but not in another more or less prisoners of those boundaries.
This is as curious a definition of “secure the Blessings of Liberty” as I have ever encountered.
Where Alito really gets my gay goat is when he makes it crystal clear that a continued “harsh treatment of gays and lesbians” is an acceptable trade-off if the alternate end-result is the harsh treatment of those who treated them harshly in the first place, and I think we all know to whom he refers.
By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.
Yes. That’s what he actually wrote. You can read it as well as I can. If we allow same-sex marriage counter to the disapproval of those who think same-sex couples should not be given the same legal rights as straight couples, that poor, misunderstood nation of bigoted idiots will be marginalized in the same way that we currently marginalize homosexuals. That, in his opinion, is the real shame.
Thanks, you bigoted idiot.
Justice Clarence Thomas is probably most famous not for what he has done, but for what he hasn’t. The man sits as one of nine members of the Supreme Court deciding cases which can literally change the history of our country, and he has not asked any lawyer a single question during procedures in nine years.
Calling the man incurious is generous. One can only assume that he is either bored with the job and doesn’t really care, that he’s getting crib notes from one of the other conservative justices, or that he’s made up his mind before the arguments even begin and doesn’t give a good goddamn what anyone has to say.
Thomas’s career seems predicated on the theme of stripping the government out of things. He’s against voter rights, he’s against Affirmative Action, he’s against the government stepping in to any situation, even when circumstances are clearly to the detriment of a minority group. He’s back at it again here, decrying the fact that the majority feels empowered to confer rights on a disenfranchised group instead of waiting for the rest of the country to come to grips with the fact that we are not all the same and we are not all treated equally.
Much has already been made of his…I can only charitably call it surprising lamentation comparing the dignity of slavery and internment to upholding the dignity of marriage.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away
Is he actually saying here that even though he would prefer to keep same-sex marriage illegal and deny these relationships any legal or, in fact, moral bearing that we should not, as homosexuals, take any umbrage? Is he saying that, yeah, sure, slavery was something we used to take for granted but those slaves sure were happy so why should it be assumed to be any different for homosexuals?
I can’t even tell. My brain is having a hard time wrapping itself around this one. The logic he is reaching for here is so thin and ridiculous that if this were not written by the same man who volunteered to toss out Affirmative Action, and who felt it necessary to write a concurring opinion to Shelby v. Holder that systematically disassembled the Voting Rights Act — allowing several states to make it legally more difficult for certain United States citizens (the poor ones) to vote — I would not be able to believe it is from a sitting judge, let alone a Supreme Court Justice.
Thomas also revisits the idea that it’s okay if gay people get the shaft if that’s what each State decides. He mentions specifically that in a majority of cases, those who show up at the polls (regardless of the numbers that show up in the popular polls — and why don’t you go vote, you frustrating and annoying lazy-ass liberals?) more often refuse to grant equal rights to gay couples.
The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition of marriage. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.
Firstly, he has the gall to say that having your State tell you that you don’t deserve certain rights is “vindication.”
This has become the common rallying point of the four dissenters. They are all, as a group, super uncomfortable in this case of overruling the conservative Christian fundamentalists who find the mere idea of gay marriage so abhorrent that they would rather inscribe discrimate language into their state constitutions, defining and ratifying their dislike of homosexuals in law.
Thomas finds that he is unmoved by the plight of people whose families will be torn apart because someone’s interpretation of one passage in the Bible means that marriage is one thing only, and it doesn’t involve icky butt sex. He is, to put it bluntly, an asshole.
Finally, and undoubtedly the moment you have all been waiting for, we come to Justice Antonin Scalia.
It was a given that the man, a devout Catholic and someone who is almost euphoric in his dismissal of everyone who isn’t like him, would not be in agreement with an opinion in favor. There was no way on God’s water-parched and over-populated Earth that he would even consider — consider — the idea of same-sex marriage.
The oddest thing to me, though, was not that he avoided displaying his contempt for homosexuals so much as he gleefully displayed his contempt for Justice Kennedy’s writing style in the majority opinion.
Was he, perhaps, trying so hard to appear fair-minded regarding the idea of same-sex marriage, which his Catholic upbringing must surely view as nothing less than the actual hand of the actual devil (which he has elsewhere confessed his actual belief in) that he aimed his barbs at the other judges rather than have his opinion ridiculed for the collection of superstitious crap that it would no doubt otherwise be?
I have to admit to a personal though begrudging admiration for Scalia’s writing style. It is much like my own, sans the occasional uses of ‘fuck’ or ‘asshole,’ though I must assume that his first draft of this dissent probably contained both of those words — and more besides — in there somewhere.
Even so, the childishness of his response glaringly broadcasts his failure to convince Kennedy to come to his side of the playground and not play with the girls and the gays. It’s a wonder he did not flat out call Kennedy a fag.
Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)
I mean look at that! He uses “Huh?” in a Supreme Court dissent, not to mention the copious parenthetical asides which I was certain I had invented (though I cannot possibly back that up (and it is probably a blatant lie [whatever that means])).
In other passages he mentions hippies, hiding his head in a bag, and the presumed fact that his marriage is constructed of shackles to his freedom. Does that mean that the man still desires to sow some wild oats and feels like gay men and women everywhere were being dealt a bad hand?
I want to zero in on one particular section, which I call The Elitist Court section:
Not surprisingly then, the Federal Judiciary is hardly a cross-section dissenting of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
Yes, California, we are not actually “western,” we are…something else. Perhaps we are super-westernary in the same way that Scalia believes this judgment is super-legislative. At any rate, we “don’t count.”
But that’s a small concern. My larger one is that he is defining all the things that the court members aren’t, while leaving out perhaps the most obvious example and the one which would realize the most dramatic impact from this decision, whichever way it went.
There are no gay Supreme Court justices.
How, then, does he feel perfectly justified (heh) in wagging his finger about the lack of evangelical Christians or “even Protestants?” Because in his estimation, they are the ones getting hurt.
It’s not me he’s concerned with in the smallest amount. He does not care at all about the plight of same-sex couples or their children or families or the impact that a dismissal of this case would have on them. He has no conception — indeed, he wants no conception of that impact on us.
Because he doesn’t care. We have no rights. We do not, or should not, exist. He would be happiest, I think, if we simply went away out of his tightly-controlled world vision and shut the hell up about asking to be treated with dignity and respect.
Dignity and respect are for the Southwestener, the evangelical Christian (no mention of fundamentalist Muslims, which is particularly odd since they tend to behead us or throw us off of buildings), the true westerner, or the Protestant.
None of whom in his mind, I must conclude, are gay.
Why dwell on the negative? Because these dissents will be scrutinized and used for conservative talking points and even legal challenges. If you don’t believe me, look at Texas, whose GOP governor has already received a legal opinion from their state attorney that these “invented rights” — a phrase taken directly from the dissents — have no jurisdiction over the religious objections of any state employee who refuses to issue a marriage license. The state will, in fact, defend such rights in any subsequent court case free of charge.
Every dissent is a dismissal of gay rights. Every one says, in effect, “this is inevitable, it will happen given time, but that time is not yet, and shouldn’t we be more concerned with all the disenfranchised people who will be upset with this decision rather than the people it directly effects?”
Shouldn’t we, as a government, ignore these rights for this class? Shouldn’t we, as a government — even given that this will happen “some day,” and ignoring all those people whose lives are affected right now, today, this minute — shouldn’t we be paying particular attention instead to the vast majority who are uncomfortable with this, who don’t want to be called bigots because they simply want gay and lesbian and bisexual and transexual persons to suffer continued indignity and their own govenment’s distaste and disapproval of their “lifestyle choice?”
These dismissals are not about how “the people” feel, but how certain people feel, the people who hold a prejudice against homosexuals. Isn’t it time we thought about the bigots, for a change? What about their rights?
The reason this has reached the Supreme Court at all has nothing whatsoever to do with the institution of marriage itself, religious or otherwise. It has to do with what this government conveys as additional marriage rights; The right to die with the one you love beside you. The right to pass on the things you worked for together instead of losing them because you are not considered family. The right to insurance benefits. The right for your children to be brought up without continual judgment and harm over who their parents are.
None of these things are provided by any church. They are provided by the government. Which is why it is the government’s job, now, to step in and declare that these unions are valid, and these families are families.
Clearly, this is not over, but not for the reasons each of these dissenting opinions offer. They all want you to believe that the court has overstepped its boundaries and created new rights for people who should not receive them before other people give them to them. They are wringing their hands and gnashing their teeth and shaking their fingers in the direction of the other five justices who offer, in Kennedy’s heartfelt and enlightening opinion, the reasons why human beings should be treated like human beings.
That is not their argument. Rather, they each in their own way (but together) are giving voice to that vast “unempowered” swath of United States citizens who believe with equal fervor that this is not my country, and it is probably not your country.
It is theirs.
I fear they’re not quite done dealing with us yet.