CSotD: In the matter of Taney v Scalia
Skip to comments
Nick Anderson with a beautiful fit between symbol and trend. The ah-ha moment must have nearly knocked him off his stool.
Save this one for the Pulitzer portfolio, Nick.
The upcoming Supreme Court decisions are not going to be so much a test of gay marriage as of the Supreme Court itself. They have a choice between "Brown v The Board of Education" or "Plessy v Ferguson," and if Scalia wants to go down as the Roger Taney of his era, this will be his moment to stake the claim.
There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. — Antonin Scalia
And if Clarence Thomas votes both against the trends of Loving v Virginia and in favor of allowing civil rights to be put to a referendum, then he truly is the lawn jockey that Emerge Magazine famously put on its cover.
It's unfortunate that Loving v Virginia was argued entirely on the issue of race rather than on the issue of whether a marriage contract that was legally approved in one jurisdiction (the District of Columbia) could be invalidated by another.
If the Court finds that the protections afforded by the 14th Amendment are not applicable to homosexuals, it will force conservatives to recast their arguments of a few decades ago, when they fought against the Equal Rights Amendment on the grounds that it was duplicative and that equal protection on the basis of sex was inherent in the Constitution.
What is more likely is that they will seek precedents (which exist) stating that the marriage "contract" is not the same as contracts over property and other items of value and falls under a separate category. While this will raise a states' rights issue that would argue strongly against DOMA, it could favor upholding California's referendum.
But if precedent were the only determining factor, Plessy v Ferguson would have trumped Brown and several subsequent decisions.
The real precedent here is that, in medieval times, the Church functioned as both religious and civil authority, a dual status that continued up to the Reformation and beyond. Henry VIII's quarrel with the Pope would have been a personal footnote if the Church did not, at the time, still have control over both marriage contracts and the souls of monarchs.
It's a good reason to put a provision in the constitution of a nation stating that you cannot establish a church as the seat of civil authority, but don't expect to hear that matter debated, unless you are listening between the lines, in which case you will certainly hear it come through loud and clear.
In my mind, the sacrament of marriage, as distinct from the contractual aspect, rests on shaky ground. The miracle at Cana, strictly interpreted, would enshrine prolonged drinking as a sacrament, since the marriage was only the setting for a party that Mary didn't want to see come to an end. (And if being marked by a miracle is the determining factor, then fishing should also be a sacrament.)
Rather, the property issues involved in the arrangement were the concern, and while Jesus spoke to the morality of the marriage contract, we have it on good authority that those obligations are strictly temporal.
And if the issue is that heterosexual couples benefit society by producing children, then no civil benefit should accrue to a couple until they have produced a child, or remain when the child is grown and gone.
Or the Supreme Court could simply leave religion out of it entirely and treat it as a civil contract. At that point, it becomes unnecessary to argue all night over who has the right to do what and with which and to whom.
My own prediction?
The Defense of Marriage Act must fall. The justices would have to overlook way too much precedent to rule that the federal government can override states rights in this matter, if they are going to also hold that the restriction is not a violation of civil rights.
Nobody ever brought suit arguing that a state allowed black and white people to sit in the same railroad car, or that a state was allowing mixed couples to marry.
And, prior to the passage of the Women's Suffrage Amendment, there were states that permitted women to vote in state and local elections, but nobody successfully argued that, because women could not vote in federal elections, states could not permit them to vote for school board members or state senators.
For that matter, Jeannette Rankin famously won a seat in the US Congress in 1916, because the federal law at that time only held that women couldn't vote, not that they couldn't serve, on the federal level.
If the court holds that prohibiting same-sex marriage does not violate civil rights, and that states can therefore legislate against the practice, they will have to rule now or in a subsequent case whether a couple legally married in one state can remain married if they move to another state. (Note that divorces granted in Nevada or Mexico were long considered valid in states with more restrictive laws on the matter.)
It's a pity that Dred Scott didn't affirm his freedom while he was still in Wisconsin, but the decision that bears his name didn't rely on his having returned to Louisiana but on the principle that slavery had been enshrined in the Constitution and that people of African descent could not claim the rights of citizens.
My guess is that, if the court rules against homosexual rights, Justice Scalia's subsequent portraits will not look nearly as haggard as Taney's.
But Nick Anderson's cheerful, positive cartoon illuminates the factor that will override an unfavorable decision.
If referenda are how these things are determined, time and the evolving conscience of a decent society will do what the Court would not.
POSTSCRIPT: I am not only not a lawyer, but appear to have proven it here. I stand by all the morality expressed, but here's a more legally well-informed discussion of what these cases will actually decide.
Mike Peterson has posted his "Comic Strip of the Day" column every day since 2010. His opinions are his own, but we welcome comments either agreeing or in opposition.
Comments 6
Comments are closed.