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Court Incoherence

Arguments for and against same-sex marriage, currently
being heard in the United States Supreme Court, seem to have reduced the esteemed
justices to a state of quaking incoherence.

Justice Anthony Kennedy, who is probably the swing
vote on a split bench, complains that the justices are entering “uncharted
waters”. 

Well, yes.  It’s
the uncharted waters that the court is normally called upon to navigate, mainly
on behalf of a country divided on the issue at hand.  This same court, albeit with a different –
and arguably more distinguished – cast, once sailed boldly into the unknown
with rulings in the case of Brown vs. Board of Education, a landmark civil
rights ruling, and on Roe vs. Wade, which determined a woman’s right to an
abortion.  

Controversies of this kind are what the court is
supposed to resolve.  Which makes it all
the more mysterious that the bench now seems bemused by the issue of gay
marital rights.

Justice Samuel Alito bemoans the fact that same-sex
marriage “is very new.  It may turn out
to be a good thing; it may turn out not to be a good thing”.  This is hardly the stuff of intrepid sailors.  It gets worse. “But you want us to step in,”
Alito plaints, “and render a decision based on an assessment of the effects of
(gay marriage), which is newer than cell phones or the Internet.  I mean we do not have the ability to see the
future.”

Of course you do. 
You have more; you have the ability to chart the future.  The court didn’t have the ability to see the
future after ruling on the earlier cases either, but clear decisions were
issued, rulings that redefined American society for all time – and by common
consent for the better.

Charles Cooper, the hapless lawyer arguing the case
for a continuation of Proposition 8, California’s statutory ban on same-sex
marriage, suggested that the court “hit the pause button” to give the
“experiment” of gay marriage time to mature. 
What such prevarications are meant to achieve only he can explain.  He won’t be doing any explaining, of course,
because the constituents he represents, including the Roman Catholic Church, don’t
want a pause but a permanent ban.    

If the justices need any guidance on the popular mood,
a recent popular poll found that more than 80 percent of Americans support same-sex
marriage.  If the public has decided, why
can’t the court? 

The learned members should stop whining and reach the
proper decision in the matter of gay rights, as they did all those years ago on
behalf of oppressed blacks and disenfranchised women.

As my teachers were wont to say, “This is not hard,
boy.”

 

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