Monday, May 18, 2009

Skewed Priorities on Supreme Court Question

Conservatives who will lead the fight against President Barack Obama's judicial nominee (whoever that may be) apparently will focus their questions on the same-sex marriage debate.

Senator Orrin Hatch (R-Ohio) apparently told a reporter for The Washington Post that the do not want to see a ruling akin to Roe v Wade, in which the Court invalidates laws barring states from infringing against the freedom to act in a matter still under dispute or debate.

[In 1973 a seven-justice majority held that a woman had the right to terminate her pregnancy for any reason as long as the fetus was not viable at the time of the abortion. Conservative justices would later vote to uphold restrictions designed to discourage pregnant women. The religious conservatives were pleased and hoped that the justices Ronald Reagan and George H.W. Bush nominated to the Supreme Court would vote to overturn Roe V. Wade, eliminating a woman's right to an abortion and sending the matter back to the states. A narrower 5-4 Supreme Court majority, however, would uphold a woman's right to have an abortion in Planned Parenthood of Southeastern Pennsylvania v Casey (1993).]

Conservatives, as a whole, believe this matter should have been decided at the state level by the legislators who are accountable to the people who vote them into office. They also say Roe denied the people within each state a deliberative political process that ultimately would "legitimize" the decision that was ultimately reached.

Some, and this is what Senator Hatch is alluding to, believe the Supreme Court might once again, shortcut the deliberative process (if it can be described as such) by invalidating laws barring same-sex marriage. President Barack Obama said he would be looking for a justice with "empathy," which the conservatives describe as a code-word for someone who supports affirmative action, amnesty for illegal immigrants, "abortion on demand," and gay marriage while opposing water boarding.

I don't, for a moment, believe gays have the five justices they would need to find a constitutional right to gay marriage and in any event, President Barack Obama will be appointing a moderately liberal to liberal justice to replace a moderately liberal justice, thereby preserving the balance of power on the Court. There were four moderately liberal justices on the Supreme Court before Justice David Souter retires and there in all likelihood will be four moderately liberal justices on the Supreme Court when he is replaced.

The Republicans' decision to focus on the gay marriage issue isn't entirely illogical. It has made the evening news. State courts have granted the right to same-sex marriages in Massachusetts, Iowa, Connecticut, California (overturned by proposition 8), and Hawaii (also overturned by popular vote) while courts in New York and Washington have upheld marital laws which discriminate against gay or bisexual same-sex couples.

State courts in Connecticut, New Jersey, and Vermont have granted same-sex couples civil union status. Thirty states have passed constitutional amendments banning state and local entities from recognizing gay marriages (and in some cases, from recognizing gay unions however they are called). Legislatures in Vermont and New Hampshire voted to extend marital rights to gay couples (marriage was legalized in Vermont and expected once a reformed bill is sent to the governor in New Hampshire).

Watching the conservatives shift their focus from abortion to gay marriage is, however unsettling and not only because I am gay (Yes there is that concern about my rights as well). Their objection to abortion rights is (or is it now "was") grounded, however imperfectly applied, in a liberal tradition dating back to Martin Luther King's civil rights movement.

Many conservatives (and some liberals) genuinely view Roe as the unborn fetuses' Plessy v. Ferguson (actually they have it reversed but that is a separate issue for a another day) because the court, in their view, has granted women the right to deny another person his or her right to life. It sanctions the wanton and unjustified taking of another person's life - murder.

If they believe abortion is infanticide, religious conservatives cannot allow the Republicans to shift their focus from that issue to gay marriage. The former concerns a gross violation of human rights while the latter concerns the choice of familial arrangements between two willful participants. One violates the basic rule needed for any society to function; the other does not.

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