During recent oral arguments the justices showed gross ignorance of the subject, its history and the long struggle for gay and lesbian equality.
Justice Alito complained that “same-sex marriage was very new.” He apparently never heard of the Stonewall riots, a series of spontaneous and violent demonstrations in 1969 by gays against a police raid at the Stonewall Inn in New York City’s Greenwich Village.
It was the beginning of the gay liberation movement like the beginning of women’s liberation at Geneva Falls in 1848 and the beginning of black liberation at Selma, Ala., in 1965.
Many justices seemed unaware that the term gay has long been used instead of homosexual. Some spoke of the “sanctity of marriage,” oblivious of the fact that 50 percent of marriages end in divorce. The justices seemed uneasy with the subject, as if the matter was intruding on their “more important duties” of interpreting the law.
The saddest aspect of the oral arguments was the right-wing views of two usual liberals, Justices Ginsburg and Sotomayor. Their queasiness was dumbfounding.
“We let issues perk and so we let racial segregation perk for 56 years from 1898 to 1954,” Sotomayor said. An absurd view. Fifty-six years is much too long to end gross injustice. Sotomayor uttered more nonsense about the states and society needing more time “to figure out” gay marriage.
She too was sleeping like Rip Van Winkle through the whole same-sex marriage controversy. Ginsburg, while approving the Roe decision, has lectured constantly that the abortion issue “moved too far, too fast.” More nonsense from a justice who should know better.
While the reactionary Scalia railed about the “possible destructive effects” of gay couples adopting children, Justice Kennedy noted rightly that “40,000 children in California living with gay parents want their parents to have full recognition and status.” Yet Kennedy wrongly argued for the right of states to regulate marriage. Gay marriage is a constitutional matter, not something that should be made law by political cretins in the states or by backward people.
Public opinion in California decided in Proposition 8 to ban gay marriage. It was a perfect example of the public being so often wrong. Columnist Maureen Dowd of the New York Times zeroed in on the problem: “civil rights should not hinge on the whims of the people.”
Nation columnist Melissa Harris-Perry pointed to another truth: “For decades LGBT (gay, lesbian, bisexual and transgender) people have had families built on commitment, love and parental devotion.” They deserve all the rights of heterosexual couples.
As for the congressional Defense of Marriage Act, it is indefensible. Justice Kagan observed that the act was passed by Congress out of “dislike, animus and fear.”
Whatever the court rules in June, the battle is already won. Respondents to a nationwide poll recently said they approved of gay marriage 58 to 36 percent. The margin was even wider among young people: 81 percent. Even right-wing kook Rush Limbaugh admitted “the issue is lost.”
There never is a “right time” to end discrimination. The time is now, not the delay the Supreme Court promises. As Martin Luther King said: “The arc of the moral universe is long but it bends toward justice.”
Jake Highton is an emeritus journalism professor at the University of Nevada, Reno.