There are far too many political and legal pundits on TV spouting opinions they blithely disavow as soon as those opinions prove either untrendy or dead wrong. And they get away with it because most people today have the intellectual memory of teenage twits.
This is especially dismaying to a commentator like me who puts his reputation on the line with every word he writes every day. Which is why I watched with resigned disgust this morning as pundits were popping up all over TV to offer 20/20 insight on two seminal Supreme Court rulings affecting gay civil rights: (1) California’s ban on same-sex marriages (aka Proposition 8); and (2) the Defense of Marriage Act (aka DOMA).
By contrast, I’m on record not only stating my opinion on both cases, but also predicting how the Court would rule.
Here, for example, is what I wrote just months ago:
I am willing to bet my life savings that the Court will overturn California’s ban and rule DOMA unconstitutional. To do otherwise would make a mockery of the equal protection, liberty, and Full Faith and Credit clauses of the Constitution.
(“Supreme Court Hears Legal Fight for/against Same-Sex Marriage,” The iPINIONS Journal, March 26, 2013)
Specifically on DOMA, I wrote:
This Act is so patently unconstitutional that former President Bill Clinton, who signed it into law (for craven political reasons), has been in the vanguard of those calling for its repeal.
(“Supreme Court to Rule on Same-Sex Marriage,” The iPINIONS Journal, December 10, 2012)
The court ruled:
The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it does now, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
(Huffington Post, June 26, 2013)
This means that the Court has squashed efforts (by conservative political and right-wing Christian groups) to define marriage on a national level as only between one man and one woman. More important, though, it means that couples in same-sex marriages are now entitled to the more than 1000 federal benefits, rights, and protections couples in heterosexual marriages enjoy (including social security benefits, spousal privilege, and inheritance rights – which was at issue in this case).
On same-sex marriages, I wrote:
I believe it is a self-evident truth that not allowing gays to marry is an even greater violation of the fundamental civil rights all citizens should enjoy than not allowing Blacks to vote.
(“Same-Sex Marriage Now Legal in New York,” The iPINIONS Journal, June 27, 2011)
The court ruled:
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to… We decline to do so for the first time here.
(Huffington Post, June 26, 2013)
In other words, for technical reasons, the Court did not even dignify California’s ban on same-sex marriages with a ruling on the merits. It chose instead to allow the state to continue performing such marriages, making California one of 13 states that now allow same-sex marriages.
But this is what we lawyers refer to as a punt. Because even though the Court left in tact the right for same-sex couples to marry in California, it dodged the question of whether they have the same Constitutional right heterosexual couples have to marry in every state in the union.
This is why I find the unbridled celebration among my gay friends today a little bemusing. Not least because I know that if a Court ruling – pursuant to a challenge against the Voting Rights Act of 1965 – meant that Blacks could only vote in 13 of the 50 states, Blacks would be screaming bloody murder, or at the very least, “no justice, no peace.”
That said, it would be remiss of me not to share that I also offered this bit of provocative speculation:
Legal, political, and religious pundits are doing their best to ape sports analysts by offering all kinds of putative insights on how the court will rule. Most notable is speculation that, because conservative Chief Justice John Roberts has a lesbian first cousin, he will side with liberal justices in favor of gay rights in each case.
I agree. Not least because conservatives have a dubious record of abandoning their political and religious convictions whenever it suits their personal interests. Anti-gay Republican Senator Rob Portman of Ohio demonstrated this in dramatic fashion just weeks ago when he suddenly came out in support of same-sex marriage after his son came out as gay.
(“Supreme Court Hears Legal Fight for/against Same-Sex Marriage,” The iPINIONS Journal, March 26, 2013)
Sure enough, it was the conservative Roberts who wrote the opinion striking down Proposition 8, ensuring that same-sex couples in California (including his cousin and her partner) will be allowed to marry.
But the struggle continues elsewhere. And, on second thought, perhaps part of today’s jubilation among my gay friends has to do with finally having the full weight and power of the federal government behind this struggle to make same-sex marriages legal in all of the remaining states….
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* This commentary was originally published yesterday, Wednesday, at 4:40 pm