COURT TO GAYS: DON'T ASK US: Alan Hirsch

...Scalia's magnanimity comes free of risk: He knows that gays, a relatively small and historically marginalized group, face a tremendous uphill fight in the political arena. Other judges, too, turn a blind eye to this reality. When the Massachusetts Supreme Judicial Court struck down that state's prohibition of same-sex marriage, Justice Robert J. Cordy chided his colleagues for usurping the role of the legislature and added: "There is no reason to believe that legislative processes are inadequate to effectuate legal changes in response to evolving evidence, social values, and views of fairness on the subject of same-sex relationships."

No reason? One wonders what Justice Cordy thought when, the next year, 11 states amended their constitutions to protect the institution of marriage from feared contamination by same-sex couples. Several of those states went further, denying same-sex couples any of the tangible rights and benefits accompanying marriage. Justices Cordy and Scalia ignore the fact that the deck is stacked against certain minority groups. And they, like President Bush, ignore the historical role of the courts in protecting such groups.

In one of the proudest moments in America's jurisprudential history, the famous "footnote four" in the 1938 case of United States v. Carolene Products, the Supreme Court acknowledged that courts should generally accept results arrived at through the democratic process. But, the Court suggested, there are exceptional circumstances when the Court must subject such results to greater scrutiny. One such circumstance, the Court proposed, is when "prejudice against discrete and insular minorities" mars the political process. ...

A depressing irony in President Bush's State of the Union address has gone unnoticed. In the very next sentence after calling for an amendment to ban same-sex marriage, Bush observed that "a society is measured by how it treats the weak and vulnerable." He was talking about fetuses. Someone should remind the president that the unborn are not the only members of society who cannot defend themselves at the ballot box. And we all should think twice before amending the Constitution to prevent judges from protecting those who, through no fault of their own, cannot protect themselves.

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posted by Eve at 7:05 PM | link

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