The two monumental U.S. Supreme Court decisions on gay rights released today establish that, indeed, history is on the side of that cause. The language of the majority ruling striking down the federal Defense of Marriage Act (DOMA) could not have been clearer, establishing LGBT persons as a “protected class” under the “equal protection clause” of the U.S. Constitution, “no less worthy” and undeserving of a law that “disparages and injures” them.
The decisions do not end the LGBT struggle for equal rights, however, any more than, as we were harshly reminded by the same Supreme Court Tuesday, the Voting Rights Act of 1965 did not end racial discrimination at the ballot box.
In the Supreme Court’s second LGBT-related ruling, on the constitutionality of California’s Proposition 8, it punted by dismissing the case for lack of standing on the merits of defenders of the lower court-overturned proposition banning gay marriage. While the result is that gay marriage is now legal in California, it did not extend the “equal protection” criteria to all states.
This writer’s practice is to look for justice on the opposite side of whatever position Justice Antonin Scalia takes on a case, and dating all the way to the Bush V. Gore case of 2000, when Scalia was the decisive vote planting George W. Bush into the White House. My approach has worked.
In fact, I consider Justice Scalia one of the most venal stains on American culture in our lifetimes. He shamelessly holds to a Hobbesian “might makes right” approach to law, insisting that he, by virtue of being a justice, is justified to exercise his power to bend the Constitution to his personal prejudices. In his dissenting DOMA opinion, he wrote, “the Constitution doesn’t forbid the government from enforcing traditional moral and sexual norms.” He voted to reject the Proposition 8 case only because he feared that, if heard by the Supreme Court, it would have resulted in the same “equal protection” affirmation as in the DOMA case, and applicable nationally.
So, “traditional norms” trump “equal protection” in Scalia’s mind, and presumably by the same logic they would have held in earlier cases about slavery, women’s suffrage and interracial marriage at other points in our history.
Scalia’s is the same sentiment expressed by the top legal officer of Virginia, Attorney General Ken Cuccinelli, now running for governor assailing what he calls the “homosexual agenda,” saying, “I cannot support something that I believe brings nothing but self-destruction.”
As with Scalia, in his majority vote removing a key provision of the Voting Rights Act Tuesday, Cuccinelli also has a long record of denouncing the Voting Rights Act, which until Tuesday’s ruling, protected the minority population of Virginia as one state singled out by that law for its long history of prejudice and injustice.
While this week’s rulings are hardly the last word, we are reminded in such a momentous week of the words of Dr. Martin Luther King Jr. in 1962 that “the arc of the moral universe is long but it bends toward justice.” He added, “It does not bend on its own. It bends because each of us in our own ways put our hand on that arc and bend it in the direction of justice.”
Even in the case of the Supreme Court’s regrettable attack on the Voting Rights Act Tuesday, there may be a silver lining, because apart from the states, like Virginia, singled out for protection under that 1965 law, there are new battlegrounds now, bigger ones not included in the original act, where the struggle for progressive values versus reaction now threaten to change voter patterns forever. As happened in California, the huge states of Texas and Florida are on the verge of going Democratic once and for all with the rise of their Hispanic populations.
A younger generation is not going to permit the kind of blatant, racist practices of the past to block that from happening.
This week’s Supreme Court rulings set a stark landscape for the coming battles for justice, but one now accented by a bright rainbow on its horizon.