During the oral arguments in Supreme Court's hearing on Proposition 8, California's ban on same-sex marriage, Justice Samuel Alito stated to Solicitor General Donald B. Verrilli, Jr.:
But you want us to step in and render a decision based on an assessment of the effects of this institution (same-sex marriage), which is newer than cellphones or the Internet? I mean we -- we are not -- we do not have the ability to see the future.
In order to seemingly maintain the status quo, Alito is suggesting to rule in favor of marriage equality members of the Supreme Court must step out of its traditional role as the body that interprets the Constitution and assume that of a clairvoyant, oracle, soothsayer, or tarot reader.
Can we at least agree that so-called traditional marriage is a phenomenon of Western civilization? Those who oppose marriage equality based on biblical teachings must know that the notion of traditional marriage ends in the 4th chapter of Genesis.
What about the wilted argument that Proposition 8 represents the will of the people? It's true that a majority voted to ban same-sex marriages in California, but the will of the people must stay within framework of the Constitution. Moreover, the state constitution does not trump the federal.
This latter concept was adopted at Appomattox Virginia on April 9, 1865 and was reinforced by the ratification of the 14th Amendment on July 9, 1868.
What is the rational basis to defend the subjectivity of traditional marriage that it requires one be blind to the 14th Amendment's equal protection clause? What is the rational basis for California to maintain three class distinctions, as a result of Proposition 8, when it comes to marriage?
There are those who can marry, divorce, and remarry; there are those could marry, divorce, but cannot remarry; and there are who are denied the aforementioned in totality.
But Alito's reticence seems based on the inability to know the future. Is that the burden of the court?
Alito's concern feels less like a legal consideration as more like the stench of privilege that justifies doing nothing. It is a concern that would have defeated Brown v. Board of Education that struck down the notion of separate but equal; it would have also ruled against Loving v. Virginia that stated bans on interracial marriage were unconstitutional.
Furthermore, Alito is incorrect when he suggests the court is asked to render a decision based on something (same-sex marriage) that is newer than cellphones or the Internet.
Same-gender couples have engaged in relationships that would otherwise be defined as marriage since the beginning of recorded human history. Even that misses the point of what Alito and his colleagues are asked to do.
Alito is offering the strict constructionist perspective that limits a judge to apply the text only as it is spoken. While it is true that same-sex marriage does not appear in the Constitution, I am certain equality appears prominently. Is that not the burden before the court?
The micro issue, in this case same-sex marriage, may indeed be new, but the macro issue is at least 145 years old -- equal protection under the law. Moreover, the Constitution is a macro document.
It is the macro perspective that allows the Constitution the elasticity to evolve with a changing society conveying the same power that it possessed when it was ratified in 1788.
One need only consider those who were originally excluded when the Constitution was approved that are now part of the illustrious "We the People."
Thomas Jefferson wrote in 1820 that slavery was a complex issue and needed to be solved by the next generation. If one reads the 14th Amendment, marriage equality is not a complex issue.
But are we not the next generation?