LEGALESE JUNE 26, 2013
It’s been a couple of hours now since the Supreme Court handed down its decisions on the Defense of Marriage Act and California’s Proposition 8. Do you know what really happened? I don’t, not precisely. I know the court struck down DOMA as unconstitutional, which means that the federal government cannot deny benefits to members of same-sex marriages, although it does not mean that anybody in America can marry somebody of the same sex—that still depends on which state you would like to do it in. And I gather that Prop 8, which outlawed same-sex marriage in California, was declared unconstitutional by a district court, and that the Supreme Court, in refusing to adjudicate it, essentially let that decision stand—plus there was something to do with a circuit court or an appellate court (same thing, no?) not having had jurisdiction, thereby making same-sex marriage once again … legal in California. Or so a bunch of smart lawyers on the Internet tell me. Yay!
My enthusiasm is not insincere. I love that the United States moved a step closer to tolerating and treating equally all of its citizens today. I just wish I could have learned that for myself and have been sure of it. In a democracy, great victories should not require the medium of an elite, priest-like caste of interpreters telling us what just happened. SCOTUSBlog is great, but it should be unnecessary—or, at least, less essential to understanding Supreme Court rulings. (“SCOTUSBlog is shockingly good,” tweeted one of my favorite football writers. “There is no sports equivalent of insight, nuance, readability.” Which is true, but that’s because, in sports, you don’t need a specialized website to tell you who won the game.)
We don’t celebrate or damn Court decisions, because we are not knowledgeable enough to do so. We celebrate or damn what we are told the Court has decided. The hesitant grammar in the New York Times headline this morning spoke volumes: “Decisions Seen As Landmark Victories for Gay Rights,” the paper of record declared. “Seen As”! Could you imagine such ambiguous, tentative headlines to describe decisions by the other branches of government? “Obama’s New Power Plant Regulations Seen As Landmark Victory For Environmentalists.” “House’s Multibillion Food-Stamp Cuts Seen As Landmark Defeat For Poor, Hungry People.” “Re-Election of Barack Obama Seen As Landmark Victory For Democrats.” These nine men and women make rulings based on a highly specialized logical process, with its own jargon and credentialing (in America, anyone can grow up to become president, but to be a Supreme Court justice, please first put yourself through law school). And then we decide how we feel about those rulings based on a different logical process. They and we have arrived at our respective decisions via two completely different sets of metrics. (Maybe the only case in which the justices and the rest of us were operating on the exact same wavelength was Bush v. Gore.)
Take DOMA. Justice Anthony Kennedy—who actually writes in the vernacular to an unusual extent; he is famous for that paean to the “mystery of human life”—spoke for the majority today in finding, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” If you are against DOMA, you probably agree with what Kennedy said. Banning the recognition of same-sex marriage does “disparage and injure” the “personhood and dignity” of members of same-sex marriages! But Kennedy does not care (or does not profess to care) about that personhood and dignity; he only cares that DOMA’s treatment of that personhood and dignity was improperly (under the Fifth Amendment) in conflict with certain states’ treatment of that personhood and dignity. The thing about DOMA that bothers the majority of Americans (which supports same-sex marriage) is not why DOMA was struck down. I think. (Look, just read SCOTUSBlog.)
In junior high, you learn that the federal government is composed of three, coequal branches. But when most voters cannot really hope to grasp the machinations of one of those branches, that branch ceases to be coequal: It becomes less accountable, and therefore more powerful. There is, in other words, something fundamentally unconstitutional about the federal judiciary’s role in our civic life.
That's my impression, anyway, but I can’t be sure—I’m not a lawyer.