Tuesday, February 10, 2015

Spoiler Alert

When the U.S. Supreme Court declined to intervene in the Alabama same-sex marriage case and the ban was lifted yesterday, Justice Clarence Thomas wrote a dissent in which he basically said that the Court has already decided to rule in favor of marriage equality when the case comes before them this term.

The dissent by Thomas, joined by Justice Antonin Scalia, accused the other justices of failing to show “the people of Alabama the respect they deserve” by letting the lower court ruling stand while the case is pending before the Supreme Court. He argued that the order reveals the Court’s intention to rule for same-sex marriage.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”

This doesn’t mean that the Court will rule 7-2 in favor of same-sex marriage.  Court watchers believe that Chief Justice John Roberts and Justice Samuel Alito will also side with nay-sayers Scalia and Thomas and that the opinion upholding the lifting of the ban will be written by Anthony Kennedy, who has written several others in support of LGBT rights and whose writings have been cited in briefs in favor of ending the ban.  But by the first of July the ruling will come down and that will be the end of marriage inequality in America.

The reason Justice Thomas spilled the beans in his dissent yesterday was two-fold: to let the world know that he’s still a firm believer in states’ rights over the federal constitution, which, given his background, is a fascinating point of view, and to try to spoil the fun and celebration the pro-gay-marriage folks were going to have on the steps of the Supreme Court next summer.  It’s as if now that the ruling will be a foregone conclusion, he doesn’t want there to be any TV correspondents standing by to read the opinion live over the air to millions of people, hordes of happy couples waving signs and rainbow flags, images of men kissing men and doing other unmentionable things like holding hands right out there in public.  If he can’t uphold the ban on gay marriage, then by God he’s going to rain on the pride parade in front of the Supreme Court.  It’s not jurisprudence, it’s juris-petulance.

But knowing my tribe and knowing the trials and perils that we have gone through these many, many years and the lives that will now be made whole by this ruling, a mean-spirited and retrograde dissent from the two dyspeptic cranks on the court will in no way keep the most fabulous party from happening, all within earshot of Mr. Justice Thomas’s office.

2 barks and woofs on “Spoiler Alert

  1. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”

    True, but hardly for the reasons Justice Thomas thinks.

  2. You just had to slip the word “fabulous” in there, didn’t you?

    This is probably the first time I’ve taken a pronouncement from the right-wing-crank caucus on the Supreme Court as good news.

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