Apr 29, 2015

Justices' Remarks on Same-Sex Marriage Are Foolish and Ahistorical

American University students at Court, part
of #SCOTUSmarriage! (Freedom to Marry)
Update II: See Hiltzik, Same-sex marriage: Supreme Court Justices don't know much about history.

Update: See Judge Richard Posner's opinion: on "Mindless Tradition," and "Bigotry" that struck down Wisconsin and Indiana's same sex marriage bans.
"This definition [of traditional marriage] has been with us for millennia," [Justice Anthony Kennedy] said. "And it’s very difficult for the court to say, 'Oh, well, we know better.'" (Barnes, Barbash, Washington Post) (Baker, New York Times)

The NYT's Baker notes that several justices echoed Kennedy's expressed concerns in oral argument of Obergefell v. Hodge (Question 1, Oral transcript).

What is troubling is that none of the four statist justices—Scalia, Alito, Thomas and Roberts—expected to rule in favor of states' power to discriminate against individuals' right to simple equality in marriage have a subtle understanding of history on the matter. Thomas was silent during orals, but has demonstrated his abiding hostility towards minorities.

Marriage has changed through history, and across societies. Eighteen counties today have approved the freedom of individuals to marry. (Freedom to Marry) Criminalization of gay marriage "includes most Muslim-majority countries and much of sub-Saharan Africa," (Fisher, Washington Post) and is a mark of authoritarian and totalitarian states.

In the United States "Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court's decision in 1982 when Louisiana's Head and Master Rule was struck down. And no State was allowed to have such a -- such a marriage anymore.  Would that be a choice that a State should be allowed to have?" chided Justice Ginsburg. (pp. 70,71)

In the Dark Ages and Nazi Germany the state sought to abolish gays, citing the unclean nature of gays and lack of usefulness to the state:

"On April 4, 1938, the Gestapo issued a directive indicating that men convicted of homosexuality could be incarcerated in concentration camps. Between 1933 and 1945 the police arrested an estimated 100,000 men as homosexuals. Most of the 50,000 men sentenced by the courts spent time in regular prisons, and between 5,000 and 15,000 were interned in concentration camps. ... The Nazis interned some homosexuals in concentration camps immediately after the seizure of power in January 1933. Those interned came from all areas of German society, and often had only the cause of their imprisonment in common. Some homosexuals were interned under other categories by mistake, and the Nazis purposefully miscategorized some political prisoners as homosexuals. Prisoners marked by pink triangles to signify homosexuality were treated harshly in the camps. According to many survivor accounts, homosexuals were among the most abused groups in the camps." (United States Holocaust Memorial Museum)

As the Dark Ages and Nazi Germany present extreme examples of animus and ignorance, one wonders if those justices foolishly using the universe of all societies through millennia as a justification for not protecting the rights of minorities mean to exclude these nonsensical and obscene states. How about Russia today?

Norman Cohn wrote of the totalitarian phenomenon as "the urge to purify the world through the annihilation of some category of human beings imagined as agents of corruption and incarnations of evil."

When Kennedy asked, "well, we know better," the answer is clear: 'Yes, we do.' Well, most of us do.

Kennedy's confusion is apparent as he is expected to rule in June for the right of Americans to marry because there is no rational basis for the state to deprive Americans from marrying another of the same sex. (Denniston, SCOTUSBlog)

There is only nonsensical hostility and injurious treatment.

Why Kennedy finds this difficult for the Court to state is mystifying.

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