Supreme Pleasure

Years from now, it won't be possible to discuss the advances in civil rights for blacks without mentioning Thurgood Marshall. Similarly, Ruth Bader Ginsburg is key to the history of women's rights. But though both of those individuals became Supreme Court justices, it was their work as litigators that gained them that legacy. When it comes to gay rights, it will be a 79-year-old conservative Catholic man, Anthony Kennedy, who will stand tall.

Today's decision in Obergefell v. Hodges is a landmark decision, right up there with Brown v. Board of Education and Roe v. Wade. It will make for sweeping changes in the law, though, as usual, the law is catching up to personal opinion. A gay couple can get married anywhere now, and to judge by personal opinion polls, nobody really cares. There is the specter of the "religious freedom" lawsuits, in which clerks can exercise their religious bigotry to refuse to perform ceremonies, but as long as Kennedy is on the court it is doubtful those will be upheld.

It's been a good week for liberal court-watchers. As noted earlier, the justices ruled that Texas (of all states) can refuse to put the Confederate flag on license plates. Yesterday, the court ruled that the typo in the Affordable Care Act (Seinfeld connoisseurs referred to this as the "moops" case) does not invalidate the law, all but ensuring it's continued existence for some time to come. Today is the cherry on top of the rainbow-colored sundae.

I've never quite understood the opposition to gay marriage. As far as I can see, the only objection is religious, with some bizarre notion that heterosexual marriage is threatened by same-sex marriage. This argument carries absolutely no water, as 36 states already were performing same-sex marriages and civilization did not crumble. Gays have been fucking each other for thousands of years, and heterosexual sex keeps chugging right along. Why the hubbub about whether that tasteful couple down the street are legally married or not?

But the hue and cry from the right today is delicious. There is a pastor who threatened (promised) to immolate himself should the ruling go against him--let me give him the first match. Glenn Beck promises another 10,000 are prepared to die. Are they going to advance on the Stonewall Inn with flamethrowers? I have news for those who think this is the end of times--life will go right on the same as always, only we are now institutionally more tolerant than we were yesterday. And tolerance is a good thing.

Kennedy, the savior of the gay rights movement, has now authored the four key decisions in the court's history on this subject. First came Romer v. Evans, which invalidated a law denying gay people the right to bring discrimination suits. Then came Lawrence v. Texas, which invalidated laws criminalizing gay sex. Last year the ante was upped when he wrote the decision in United States v. Windsor, which threw out the Defense of Marriage Act. Today he completes hitting for the cycle, and strangely becomes the most effective advocate for gay rights in the nation's history. Tear down the Jefferson Davis statues and replace them with Anthony Kennedy.

Of course I don't agree with Kennedy most of the time, but I've found him to be fair over his close to thirty year career. And in social cases, he bends to the left. In fact, according to a chart in the New York Times, this was the most liberal year in Supreme Court decisions since the flower-power days of 1969, when Brennan, Marshall, and Black basically ran the show.

There are still dark pockets on the court. Antonin Scalia has become something like an ogre, living in a cave and throwing out mean, spiteful decisions. His dissent in today's case is something of a temper tantrum. Oh, but to be a fly in the wall of the conference on this case. Did he threaten to hold his breath if he didn't get his way? "The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."

In the ACA dissent, Scalia brought up his "jiggery-pokery" legal theory. Really, the man has completed his transition from mere right-winger to something cooked in a cauldron in Rush Limbaugh's laboratory.

Contrast that hateful bit of sputum to Kennedy's decision, which closes with a paragraph that will be quoted for hundreds of years:

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

I'd rather live in Anthony Kennedys' America rather than Antonin Scalia's.