RBG BLISTERS THOSE AGAINST MARRIAGE EQUALITY

During Tuesday’s marriage equality arguments in the Supreme Court, several of the Court’s conservative members suggested that same-sex couples should not be given equal marriage rights because these couples have not enjoyed those rights for most of the past. As Justice Antonin Scalia summed up this argument, “for millennia, not a single society” supported marriage equality, and that somehow exempted same-sex couples from the Constitution’s promise of equal protection of the law.

Not long after her conservative colleagues raised this argument, however, Justice Ruth Bader Ginsburg explained exactly why marriage was long understood to be incompatible with homosexuality in just five sentences:

[Same-sex couples] wouldn't be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn't possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. 

There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn't — wouldn't fit into what marriage was once.

Justice Ginsburg’s point was that, until surprisingly recently, the legal institution of marriage was defined in terms of gender roles. According to Sir William Blackstone, an eighteenth century English jurist whose works are still frequently cited today to explain the common law principles we inherited from our former colonial rulers, “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.” As late as 1887, fully one third of the states did not permit women to control their earnings. And married women could not even withhold consent to sex with their husband until shockingly recently.

Under the common law, “by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband,” and this consent was something “she cannot retract.” The first successful prosecution in the United States of a husband who raped his wife did not occur until the late 1970s.

So American marriage law, and the English law that it was derived from, presumed that the wife was both financially and sexual subservient to the husband. In a world where marriage is defined as a union between a dominant man and a submissive woman, each fulfilling unique gender roles, the case for marriage discrimination is clear. How can both the dominant male role and the submissive female role be carried out in a marital union if the union does not include one man and one woman? This, according to Justice Ginsburg, is why marriage was understood to exclude same-sex couples for so many centuries.

But marriage is no longer bound to antiquated gender roles. And when those gender roles are removed, the case for marriage discrimination breaks down.

Generally speaking, any argument based on "we've always done it this way" seldom works. If "we've always done it this way" – it was some sort of rule we had to follow - we'd still have slavery, women would still not be permitted to vote, businesses could still post "No Irish Need Apply" signs - and yet there would still be separate drinking fountains for different races of people. In fact, it would be difficult to get any new laws passed at all.

NFTOS

Blogger-In-Chief

Roger West

ROBERTS RULE OF ORDER

KU KLUX KOURT ROBERTS COURT

Voting has consequences, far beyond the eight years of a President. Supreme Court justices can reside for eons - the current sitting Supreme beings have proven that law has little relevance to their decisions made - where political ideology takes the forefront rather than case law. Often the case, historically speaking, the Supreme Court is well behind the times.

If Supreme Courts over time are arranged like boxes of chocolates, the Roberts Court defies the myth that you never know what you’re going to get.

The most basic requirement of any Supreme Court decision involving the application of the Constitution is to explain how the Constitution's text and meaning command the result the Court reaches. By that standard, Shelby County v. Holder is a colossal failure. In the majority opinion by Chief Justice Roberts, the Court struck down a core provision of the Voting Rights Act – a statute that has ensured protection of the right to vote for millions of Americans – without ever explaining what provision of the Constitution rendered this iconic, landmark statute unconstitutional.

In an interview with the New York Times’ Adam Liptak, Justice Ruth Bader Ginsburg offered a grim assessment of the Court where she so often finds herself leading a four justice dissent — the Roberts Court is “one of the most activist courts in history.”

As an historic matter, this is a pretty staggering claim. The Supreme Court in 1905 handed down a decision called Lochner v. New York that is now widely taught in American law schools as an example of how judges should never, ever behave. Lochner treated any law improving workplace conditions or helping workers to obtain an adequate wage as constitutionally suspect. And Lochner was hardly an anomalous moment in the Court’s history.

Thirteen years after Lochner the Supreme Court struck down federal child labor laws in a decision that is also widely taught as an example of inexcusable judicial activism. In 1895, the Supreme Court rendered the country virtually powerless against monopolies and other powerful combinations of corporate power, and then it held an income tax on the wealthiest Americans unconstitutional just a few months later. The Supreme Court has, with rare exception, been a largely malign force in American history.

There is, however, one important way in which the Roberts Court is distinguishable from the Courts that decided cases such as Lochner. Laws such as the Sherman Antitrust Act and the first federal ban on child labor arose as lawmakers with struggling with many of the negative side effects of the Industrial Revolution. The birth of the railroad and the dawn of mass production massively improved the American standard of living, but they also enabled monopolists to thrive and they resulted in mass exploitation of the working class. The Supreme Court in this era did not so much tear down established rights as it stood for a status quo that favored capital over labor and the rich over the rest of the nation.

The Roberts Court, by contrast, has actively rolled back existing laws protecting workers, women and people of color. The Nineteenth Century Supreme Court blocked America’s first meaningful efforts at racial equality, but the Roberts Court stole from minority voters rights that they had enjoyed for decades. The Lochner Court strangled basic protections for workers in their crib, but the Roberts Court takes fully matured protections for workers and carves them up a piece at a time. And, while Lochner Era courts acted out in the open, undermining human rights in published opinions. the Roberts Court pushes an alternative, corporate-run arbitration system that operates largely in secret.

None of this is to say that the world we live in now is worse than the world our great-grandparents lived in under the Lochner Court — if the Roberts Court’s goal is to bring us back to this era, they are currently shy at least one vote. Nevertheless, the Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse.

Conservatives like to make fun of decisions that abandon the Constitution in favor of penumbras and emanations, but that is all Chief Justice Roberts offers in the majority of his rulings.

With Roberts over seeing the Supreme Beings, with Scalia and the inept pubic hair conspirator Clearance Thomas on the bench, be scared, be very very scared!

NFTOS

Editor-In-Chief

Roger West