Tuesday, December 11, 2012

Why the Supreme Court is unlikely to vote for equality

I am not happy the SCOTUS took the Prop8 case.  I fear that they will find that states are perfectly entitled to forbid equality (thus upholding Prop8) and we will be sentenced to a long, hard slog through the ballot box, even if they over turn Clause 3 of DOMA.  Here's why I think so:

From the NY Times:
In private correspondence in 1957, Justice Felix Frankfurter said the court was doing all it could to avoid hearing cases that would require giving the nation an answer about whether bans on interracial marriage — anti-miscegenation laws, in the parlance of the day — were constitutional. 
“We twice shunted it away,” Justice Frankfurter wrote to Judge Learned Hand, “and I pray we will be able to do it again without being too brazenly evasive.” 
Judge Hand responded that “I don’t see how you lads can duck it.” 
But Justice Frankfurter was unpersuaded. 
“I shall work, within the limits of judicial decency,” he wrote, “to put off decision on miscegenation as long as I can.” 
The Supreme Court did not strike down laws banning interracial marriage until 1967, inLoving v. Virginia, when 16 states still had them on the books. That was almost two decades after the California Supreme Court in 1948 struck down a law making illegal “all marriages of white persons with Negroes” in Perez v. Sharp. 
It has been just four years since the California Supreme Court, citing Perez, struck down two state laws limiting marriage to a man and a woman. 
“We are in the midst of a major social change,” Justice Carol A. Corrigan wrote in dissent. She said she supported allowing “our gay and lesbian neighbors” to marry. But she said change must come from the political process, not the courts. 
“Societies seldom make such changes smoothly,” Justice Corrigan wrote. “For some the process is frustratingly slow. For others it is jarringly fast.”

1 comment:

JCF said...

SCOTUS still may not grant H8 supporters standing, but if they do, WHAT case are the H8ers going to present? As half-@ssed (being charitable) a one as they did at the lower levels?

Scalia, his every homophobic day, becomes more and more of a Bad Joke. Boies and Olson won't be cowed by him---in fact, going mano-a-mano w/ Scalia will only help BUILD a majority. IMO!

I don't believe H8 will stand. Probably on a technicality, but still.