Today, the U.S. Supreme Court heard oral arguments in the case Hollingsworth v. Perry. This case considers how Proposition 8 in California banned same-sex marriage despite the state supreme court rendering it permissible earlier.
Based on the oral arguments, no party (including the justices) seems to agree on what the question is before them. Is the case even properly brought before the court given that the state of California has chosen not to defend Proposition 8?
Is so-called 'traditional' marriage a fundamental right because of presumed opportunities at pro-creation?
Is the denial of marriage rights to non-heterosexuals a violation of due process and the 14th amendment?
There are many questions and it appears how the justices decide which question matters most will best guide them in how then to render a decision.
While we wait for their decision, a few points should be made about the oral arguments and the justices' comments and questions.
First, the fact that several justices on the Supreme Court have claimed that 'same-sex marriage,' as they call, is an 'experiment' that is 'four years old at best,' is ignorant and problematic.
Just turn to the television classic Golden Girls. In the late 1980s the popular show recognized the importance of the issue as Rue McClanahan's character Blanche Devereaux inquired with Estelle Getty's character Sophia Petrillo at the kitchen table about why Blanche's brother wanted to marry a man.
Sophia responded to Blanche's query: "Everyone wants someone to grow old with, and shouldn't everyone have that chance?" (And, clearly that was more than four years ago).
Hence, simply because government (as evidenced by a few states and jurisdictions that extend marriage rights to all) has recently come around to recognize marriage equality does not mean that such unions have not existed for as long as others.
This suggestion from several justices -- liberal and conservative- - alike is emblematic of their willingness to allow discrimination throughout the United States to continue though they have the opportunity to eradicate it now. Should this occur based on legal reasoning that the Prop 8 case before them should not apply to states and jurisdictions other than California, such a decision would evidence a cowardly court not deserving of much high honor.
Second, to argue that the extension of marriage rights to all of humanity is in yet need of further debate to learn of the effects is like unto the court's decision in Plessy v. Ferguson and Brown v. Board of Education. The argument is like unto Plessy because Plessy was in part decided on the basis that, for many, in the 1890s, to conceive of equality for blacks was 'too soon.' The argument is also like unto the Brown decision, because for many, in the 1950s, to not choose equality, after decades of blatant discrimination was increasingly unthinkable.
Obviously the decision in this Hollingsworth v. Perry case is also like unto the Loving v. Virginia case, but the justices and the federal government seem to think it's OK to wait to render a nationwide decision for another case, and they point out that precedent for Loving v. Virginia followed that same path, resulting in Loving v. Virginia. In other words, for many justices and the federal government, Hollingsworth v. Perry is not the same as Loving v. Virginia.
But, if not now, when?
The fact that the government has taken the position to not argue for marriage rights for everyone in all states, but only as it applies to the nine states and Washington, D.C., currently with laws that offer the equal benefits of marriages with or without the word 'marriage' attached, is as cowardice as justices claiming the extension of said rights is in need of further debate, further review of the 'effects,' and further delay as a national mandate until they're apparently more comfortable with it.
The discussion evidenced in the oral arguments is troubling. Liberal and conservative justices alike asked in so many ways, is it time for this case?
To ask 'is it time for equality and to eradicate discrimination?' is a question that should never be asked.
But, since our esteemed justices dared to suggest such questioning, we should help them out and provide them with the 'time-tested' answer they're seeking: The answer is always yes.
To avoid, I dare say, to even hint (as liberal and conservative justices did) at anything else when given the opportunity to eradicate discrimination is another reminder that we have a long, long way to go before we reach that more perfect union.
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