“… Is to Stop Discriminating…”

Supreme Court Chief Justice John Roberts, writing for the majority in Parents Involved in Community School Districts v. Seattle School District No. 1, (2007) wrote, “(t)he way to stop discriminating on basis of race is to stop discriminating on the basis of race.”

Sounds good, doesn’t it? Who says the Supremes are immune to sound bites? If Chief Justice Roberts believes what he wrote, can we fairly extrapolate that he thinks, “the way to stop discriminating on the basis of sexual orientation is to stop discriminating on the basis of sexual orientation”?

Does he believe? Can we extrapolate? Probably not. Mr. Roberts famously told his the US Senate during his confirmation hearings that a judge’s role is to “call balls and strikes and not to pitch or bat.” Once ensconced in his lifetime appointment, the record of his court has been to pitch, bat and push as hard as it can toward the right end of the spectrum. In Lebetter v. Goodyear, Mr. Roberts and company eliminated workers’ ability to sue for race or gender discrimination. In Exxon v. Baker, the court slashed away 90 percent of the damages Exxon had to pay victims for the Valdez spill and in the infamous Citizens United case, allowed corporations to spend freely on elections, giving First Amendment rights to businesses.

All this matters because federal Judge Vaughn Walker ruled yesterday that California’s ban on same-sex marriage is unconstitutional. In his ruling, Judge Walker wrote that the ban “places the forces of law behind stigmas against gays and lesbians,” reinforces the idea that “gays and lesbians are not as good as heterosexuals” and “gay and lesbian relationships do not deserve the full recognition of society.” There is no doubt this case will wind up before Chief Justice Roberts and his colleagues.

Judge Walker’s line of reasoning appeals to the equal protection clause of the Constitution, the same clause Justice Roberts appealed to when he wrote that one stops discriminating by stopping discriminating.

In courtroom, the opponents of same-sex marriage argued that one man and one woman make the best parents. That’s clearly incorrect. One merely needs eyes to see good gay and lesbian parents or bad heterosexual parents. OK, maybe you don’t know any gay and lesbian parents, but don’t try to tell me you don’t know some bad heterosexual parents.

Neither hetero- nor homosexuality automatically confers sanctity or evil on couple. Everyone is about the same when it comes to parenthood –or anything else. Thus, the equal protection clause.

Just for fun, let’s momentarily consider that “who makes the best parents?” argument. Is the raising of children the sole reason for matrimony? If people cannot or choose not to have children – or if two septuagenarians fall in love – should they be denied the opportunity to marry? Of course not. An argument to the contrary is ridiculous on the face of it. Just as the argument that men should not marry men or women marry women.

Sadly, the record of the Roberts court seems to shaping as “decide what outcome pleases right-wing ideologues and then try to find a legal argument to support that outcome.

The bottom line could be corporations are people, but gays and lesbians are not.

© Mark Floegel, 2010

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