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New Jersey Employment and Civil Rights Attorney Discusses Supreme Court's Decision in Gay Marriage Rulings and DOMA

July 31, 2013

"New Jersey Employment and Civil Rights Attorney Discusses Supreme Court's Decision in Gay Marriage Rulings and DOMA."

"Or . . . It's the 21st Century, Folks."

I've been blogging on and off about the issue of equal marriage rights for years. As an Employment and Civil Rights Attorney, and as a firm believer in the rule of secular law as derived from the Constitution, I know that legally, factually, philosophically and otherwise, any "objection" to equal marriage is crap. Its crap because such objection cannot logically emerge from a legal analysis, only from a pseudo-religious one, sometimes poorly disguised as "tradition." I have written editorials about it to newspapers, and I have spoken about it repeatedly.

I was beginning to think I might die of old age before I saw equal marriage fully realized in New Jersey. I certainly thought I would die of old age before I saw this the United States Supreme Court do anything right. Yet the U.S. Supreme Court delivered landmark victories for the equal rights movement on Wednesday the 26th day of June.

First, the Court struck down Section 3 of the "DOMA" or "Defensive Marriage Act," signed in 1996 (one of the more disappointing moments in Bill Clinton's Presidential Administration, at least for me). Section 3 of the DOMA had limited the definition of marriage as "between a man and a woman." Obviously, that's a religious issue and a philosophy issue, not a legal issue. Because transgender, gay and lesbian people are people and because they have exactly the same equal protection rights as everyone else does, any law which limits their right to access the secular institution of marriage on the basis of their membership in a protected classification is, by definition, wrong. The Ruling was of course a victory for an embattled President Obama, who correctly and courageously decided about two years ago that his Administration would no longer be bound by the law, nor would it defend the law in Court.

It's a funny thing about the United States Supreme Court. I respect the institution deeply, because it's part of the tripartite division of powers which created our current democracy. Yet I regret deeply the conduct of some of the justices on the Court, given that they hold one of the highest offices on Earth. Back when the Court was stocked with Judges who were then thought to be "conservative," the Judges looked conservative. Today, not so much, in comparison, at least, to the super conservatives represented by Justices Thomas, Scalia and Alito.

For example, Justice Anthony Kennedy - appointed by Ronald Reagan in 1988 (a "Republican" and thus assumedly conservative) - was the author of the Anti-DOMA decision. This was his third major Gay Rights Ruling since 1996. Compared to the super conservatives, he isn't.

The other major ruling concerning equal marriage rights involved the Court not so much doing the "right" thing as not doing the "wrong" thing.

In a separate decision, the Court "punted" on the question of "Proposition 8," a California initiative that would have abandoned and eliminated same sex marriages in California. Instead of speaking in terms of the law being unconstitutional at its core, the Court essentially "ducked" a decision and said that the supporters of the California Law - those who advocated for Proposition 8 - did not have "standing" to appeal a Federal Court District Ruling that had struck it down. By doing so, the Supreme Court let the Lower Court Ruling stand, which found the ban unconstitutional, but it didn't substantively speak, as "the United States Supreme Court," to this particular issue. That will inspire further battles in the future. Thus the ban is unconstitutional now; therefore, same sex marriages can resume in California.

Chief Justice John Roberts, who is clearly a Republican and a conservative, wrote the Proposition 8 Opinion, which did not surprise me. The Ruling reads along procedural lines and spoke not at all to the merits of the fundamental constitutional - and thus societal - issues in play. Yet what really surprised me about this is that there were "conservatives" and "liberals" equally represented in both the majority and the dissent on both of these opinions.

The problem with the decision on Proposition 8 is that it is fine for California same sex couples, but it opens the door to let states continue to try to set their own policies on same sex marriage. That means that there are going continue to be state wide ballot initiatives, legislative battles in each state, and litigation, which costs money and time. The Supreme Court could have saved all this trouble and simply said that the Constitution prevents any state from banning same sex marriage, and be done with it. Since it did not do that, it's guaranteeing what might become in some states, bitter fights.

Why New Jersey has not done the right thing is obvious. Our present Governor and his political allies don't want it done. Will it get done? I have no doubt that it will, in time. But New Jersey is not the United States, nor is it, sadly, California. The United States is fighting a culture war in which those who fear change for its own sake are willing to scream, yell, hate, picket, spend and politically donate to maintain a status quo which can never be maintained in the face of continuing change, and which doesn't need to be maintained.

The United States is changing. More women are graduating college than men. More women are graduating from professional programs than men. More families are "non-traditional" than ever before. That's not a bad thing, because it preserves families and communities. The racial and ethnic make-up of the United States, and the world, is changing. What was acceptable once upon a time now isn't, and what wasn't acceptable once upon a time, is becoming so.

Hatred is not acceptable. It doesn't matter what your religious book says. Gay people will marry. What we all ought to be doing is respecting the institution of marriage as a loving commitment between two people to spend their lives together, raise a family, and contribute to the human condition. That's what marriage is. That's the institution.

Bravo, with some reservation, to a Supreme Court with which I rarely agree.

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