How We All Lost At The Supreme Court

By Brad Leutwyler
Copyright 29 April 2015

On Tuesday, April 28th 2015, the Supreme Court of the United States heard oral arguments in the same sex marriage cases. The “biggie” was Obergfell v. Hodges. In this case, the legal question was whether or not the Constitution of the United States requires that every state of the Union treat same sex couples the same as they treat opposite sex couples. Mary Bonauto argued in favor of the position that the Constitution does so require. Unfortunately (and I will explain why it is unfortunate shortly), Mary blew it.

Time and again the members of the Court shifted the issue. This allowed for the bulk of the conversation to be dominated by irrelevant chatter about ancient cultures, traditional definitions, gays, other societies, yadda yadda yadda. Here are a few excerpts, followed by the responses Mary Bonauto should have given. (For the full transcript, clicketh here).

Beginning at PAGE 5
CHIEF JUSTICE ROBERTS: No. My question is you’re not seeking to join the institution, you’re seeking to change what the institution is. The fundamental core of the institution is the opposite­ sex relationship and you want to introduce into it a same­sex relationship.
MS. BONAUTO: Two points on that, Your Honor. To the extent that if you’re talking about the fundamental right to marry as a core male­ female institution, I think when we look at the Fourteenth Amendment, we know that it provides enduring guarantees in that what we once viewed as the role of women, or even the role of gay people, is something that has changed in our society….

SHE TOOK THE BAIT…
BONAUTO’s PROPER RESPONSE: The question before the court is whether or not EVERY American is to be treated EQUALLY under the laws of the states. Marriage is both a traditional, religious institution and a LEGAL one that bestows rights and privileges separate and apart from the salvation of souls and holy thumbs up religious institutions give. Allah gives his goodies, society gives others. I am truly stumped as to how you, an educated man, can fail to divorce those two concepts that any school kid could distinguish. Two consenting adults seeking to get married should be able to do it. Otherwise, the law is denying both of them legal rights and privileges merely because one of them had the, to use the court’s own words, “accident of birth,” of being the same gender as their putative spouse. If two men want to get married and one of them gets a sex change, that’s cool with all nine of you and all fifty states. So there is a “keeping your junk” penalty? That makes as much sense as not killing Jar Jar Binks.

In another part, at page 6, she chases another red herring:
JUSTICE KENNEDY: One ­­ one of the problems is when you think about these cases you think about words or cases, and ­­ and the word that keeps coming back to me in this case is ­­ is millennia, plus time. First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it’s been ­­ it was about ­­ about the same time between Brown and Loving as between Lawrence and this case. It’s about 10 years. And so there’s time for the scholars and the commentators and ­­ and the bar and the public to ­­ to engage in it. But still, 10 years is… ­­I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for 8 millennia. And it ­­ it’s very difficult for the Court 9 to say, oh, well, we ­­ we know better.
MS. BONAUTO: Well, I don’t think this is a question of the Court knowing better. When we think about the debate, the place of gay people in our civic society is something that has been contested for more than a century. And in this ­­ in the last century, immigration exclusions, the place of gay people in public employment and Federal service, these are all…

BONAUTO’s PROPER RESPONSE: Which one of you is the Mad Hatter? Have I fallen through the looking glass and into a parallel universe where irrelevant information actually belongs in court? WHO CARES what the ancient friggin’ Persians defined marriage as? Did THEY have a United States Constitution? Did the ancient Jews or French or anyone? HELLS NO! We INVENTED this stuff! We came up with a Constitution. We fought the most deadly and divisive war in this nation’s history in order to secure equal protection under the law for ALL PEOPLE. Gayness ain’t got nothin’ to do with it. It is about American citizens being treated differently under the law, in this case on the basis of their gender, without any rational, non-religious purpose. And I sure as hell hope that you are NOT suggesting that because fixing a pervasive Constitutional violation makes some people uncomfortable we ought to wait a long time to ease people into the change, because that makes you sound like someone more interested in protecting the delicate sensibilities of aristocrats than upholding your sworn obligation to this nation’s Constitution. And for the record, ten years is one percent of a millennium. 10/1000. Drop a zero from each and you get 1/100 or .01. Who did you sleep with to get this job?

One last one, page 12
JUSTICE SCALIA: Well, it was ­­ not all societies banned mixed­race marriages. In fact, not even all States in this country banned. But I don’t know of any — do you know of any society, prior to the Netherlands in 2001, that permitted same­sex marriage?
(irrelevant exchange)…
MS. BONAUTO: I ­­ I am not. I am not.
JUSTICE SCALIA: For mellennia, not a single other society until the Netherlands in 2001, and you’re telling me they were all– ­­ I don’t know what.
MS. BONAUTO: No. What I’m saying is setting– taking that tradition as it is, one still needs ­­the Court still needs a reason to maintain that tradition when it has the effect…
JUSTICE SCALIA: And you’re ­­ you’re asking us to ­– to decide it for this society when no other society until 2001 ever had it. And how many States have– have voted to have same­sex marriage or their legislature or –or by referendum? I think it’s 11, isn’t it?
MS. BONAUTO: Yes. But I would also count the State courts that interpret their Constitutions.
JUSTICE SCALIA: Well, yes, that ­­ the State courts will agree with you. But once again, that’s not the people deciding it. It’s ­­ it’s judges deciding it.

BONAUTO’s PROPER RESPONSE: As respectfully as I can put this, I feel like I’m trying to teach my heavily inbred Cockapoo how my computer works. First off, OTHER NATIONS DO NOT MATTER! No other nation has our Constitution. No other nation has our Fourteenth Amendment. Secondarily, I resent the fact that you are trying to paint this as a bunch of whiners who are asking you to legislate from the bench. I’m sure that your Cubana smoking buddies at the Federalist Society will appreciate your feeble attempt to change the subject, but IT IS YOUR GODDAMNED JOB to declare unconstitutional laws null and void…it was in your new hire packet on day one! If all fifty states required men over forty to be sterilized, you’d be the Speaker of the Housebench and legislate with all of the speed and efficiency of a non-Congress…..But I now get it. Some of you just do not want to do your jobs properly. You’ve got nothing relevant to justify your predetermined, specious, odious position. Well, Justice Scalia, if that is your real name, as you yourself have been saying for decades, if you do not like the Constitution’s mandates, change the Constitution. The Constitution requires that everyone be treated the same under the law. There are laws in many states that violate our society’s highest LEGAL values. They cannot stand. And with all do respect, suck it.

There were a LOAD of other irrelevant side conversation that buried the core issue. That is the unfortunate tragedy here. There was a grand opportunity for the court and counsel to make a clear statement of principle and LEGAL societal values. In stead, conservatives pandered to conservatives, liberals to liberals and the moment was lost.

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