One declared the right of same-sex couples to marry and the other portended the end of the military’s absurd policy of “don’t ask, don’t tell.”
The California Supreme Court struck down state laws that had limited marriage to a union between men and women. And, a three-judge panel of the 9th U.S. Circuit Court of Appeals reinstated a suit against the Air Force, declaring that the military cannot discharge people because they are gay.
In the gay marriage case, Chief Justice Ron George wrote for the majority: “In view of … the fundamental constitutional right to form a family relationship, the California Constitution … guarantees this basic civil right to all Californians.”
The ruling gives gay couples the benefits and protections of heterosexual marriage. They can get tax and insurance benefits and the right to family leaves and hospital visits.
An editorial in the San Francisco Chronicle had it right: “Two people who love each other should have the chance to build a life together, raising children, sharing dreams and balancing careers.”
Predictably, the yahoos went berserk from their mental caves. They wailed about the sacredness of marriage, lamented ruination of the culture, decried the end of religious faith, declared that marriage was for procreation, labeled homosexuality as immoral and damned “activist judges.”
Sanctity of marriage? What’s so sacred about marriage if one out of two end in divorce?
In dissent, California Justice Marvin Baxter complained that the majority, unsatisfied “with the pace of democratic change … subtitutes, by judicial fiat, its own social policy views for those expressed by the people themselves.”
But, as Justice Holmes pointed out, courts must act for “the felt necessities” of the times. Chief Justice Warren reinforced that view when he declared that courts must act for fairness and justice.
“Judicial restraint has too often meant judicial abdication of the duty to enforce constitutional guarantees … for too long we have been sweeping under the rug a great many problems basic to American life,” Warren said. “We have failed to face up to them.”
Leaving public affairs up to the people often produces injustice.
Look no farther than California’s “three strikes and you’re out” law. Under this reprehensible legislation enacted by the people, someone goes to prison for life for a third felony even if it is as trivial as stealing a bag of golf clubs.
I.F. Stone rightly noted during the 1960s: “If you give power to the people we’d all be in jail.”
Under the Justice Baxter rationale, it would have been up to the states to outlaw segregation. But without the Supreme Court’s activist role, Alabama and Mississippi still would have apartheid.
The fear here is that a California referendum in November could nullify the humane court decision.
In the federal decision, the court said that the Air Force must prove that Major Margaret Witt’s dismissal farthered the military’s goals of readiness and cohesion.
The court cited the 2003 Supreme Court decision invalidating the Texas anti-sodomy law as an unconstititional intrusion on privacy.
Witt, a flight nurse, was suspended in 2004 after the Air Force learned that she had a relationship with a civilian. Dismissed in 2007, she filed suit.
But a U.S. district court tossed out her case after the military argued that gays are bad for morale and lead to sexual tension. (Some antediluvians in the Pentagon still argue that homosexuality is a mental disorder.)
Writing a concurrence for the appeals court, Judge Ron Gould noted: “When the government attempts to intrude on the personal and private lives of homosexuals, the government must advance an important interest … and the instrusion must be necessary to further that interest.”
An attorney for Witt, James Lobsenz, hailed the appeals court ruling as the beginning of the end for “don’t ask, don’t tell.”
The military policy is so lame. It fires hundreds of highly capable gay and lesbian soldiers and sailors. It spends millions to recruit and train replacements. It turns down college students who are gay while practically enrolling the lame, the halt and the blind for duty in Iraq.
Social progress in this nation is maddeningly slow. It may take centuries before America is truly civilized. At least the courts are nudging the nation toward civilization.
Jake Highton teaches journalism at the University of Nevada, Reno.