Yep, the Supreme Court found that federally discriminating against same-sex couples who are lawfully married is unconstitutional. A great day for equality under the law, even if there is much unfinished business—38 states representing two-thirds of the population of the country still prohibit same-sex matrimony—before genuine law-based equality becomes a reality for all.
I do, though, want to remind everyone just how “damaging” was Tuesday’s decision on the Voting Rights Act, which was a victory for reactionary forces still hard at work across the land. And I want to remind everyone that whether it is Tea Party-dominated Texas—which will, despite the heroic efforts of a Democratic state senator, eventually severely limit reproductive rights in that state—or other laboratories of intolerance in other cuckoo-conservative jurisdictions, the right-wingers are unrelenting in their pursuit of a reactionary agenda. They won’t quit trying to apply their Iron Age evangelical theology to contemporary governance.
Finally, I want to remind everyone that even though today’s DOMA decision is a winner, those Four Conservatives of the Judicial Apocalypse—Scalia, Thomas, Alito, and Roberts—still wield considerable power on behalf of the reactionaries among us.
Justice Scalia’s dissent in the DOMA case, in which he unbelievably and hypocritically denounced his colleagues in the majority as embracing “black-robed supremacy”—as if he had not embraced such supremacy in the Voting Rights case the day before (not to mention in Bush v. Gore, which “settled” the 2000 presidential election)—is dripping with disdain for what the majority did to DOMA, that is, strike down the Clinton-era law without what the black-robed Scalia claimed was a legitimate reason to do so. He said the majority had expressed,
a desire to place this Court at the center of the Nation’s life.
For better or worse—and there are examples in history representing each extreme—the Supreme Court is sometimes at the center of the Nation’s life. And that center can be a fresh stream of equality and justice and liberty under the law, as Brown v. Board of Education in 1954 or Roe v. Wade in 1973 or today’s DOMA decision demonstrates.
Or at the center of the Nation’s constitutional life can exist a stagnant pool of narrow-minded conservatism, as Dred Scott v. Sandford in 1857 or Plessy v. Ferguson in 1896 or the Voting Rights Act demolition yesterday represents.
And as long as there are four reliable defenders of retrogressive philosophy, of constitutional stagnation, sitting on the Supreme Court—with a sometimes reliable reactionary like Justice Kennedy making a majority—it will be hazardous to have the Court in a position to make monumental declarations about what the law, including constitutional law, finally means.
For that hazard we can thank the folly of the Founders, or their genius, depending on one’s view.
But ultimately it is the people who vote conservatives into high office, and, more important, the people who sit at home and don’t vote at all, who are responsible for the anti-progress we have seen, will see.
Even if today we can, but only for a moment, celebrate.