No big fan of MoDo, but she hits it out the park this morning in her op-ed concerning our dysfunctional Supreme Court in general; and what its oral argument over the anti-gay marriage Prop 8 case, Hollingsworth v. Perry, says about its dithering in the particular:
As the arguments unfurled in Tuesday’s case on same-sex marriage, the Supreme Court justices sounded more and more cranky. Things were moving too fast for them. How could the nine, cloistered behind velvety rose curtains, marble pillars and archaic customs, possibly assess the potential effects of gay marriage? They’re not psychics, after all.
Swing Justice Anthony Kennedy grumbled about “uncharted waters,” and the fuddy-duddies seemed to be looking for excuses not to make a sweeping ruling. Their questions reflected a unanimous craven impulse: How do we get out of this? This court is plenty bold imposing bad decisions on the country, like anointing W. president or allowing unlimited money to flow covertly into campaigns. But given a chance to make a bold decision putting them on the right, and popular, side of history, they squirm.es
The CW among legal observers is that the Court will punt this one, probably over the issue of standing. This would leave the broader issue of the right for gays to marry subject to the prevailing mores (i.e. bigotry and varying degrees of enlightenment) of the individual states, at least until a less problematic case is granted cert. (For a more detailed discussion of standing, see e.g. here.) That would mean gay marriage would be legal once again California, leaving the fundamental human right of marriage in national limbo.
MoDo spells out one of the social consequences:
The only emotional moment in court was when Justice Kennedy brought up the possible “legal injury” to 40,000 children in California who live with same-sex parents. “They want their parents to have full recognition and full status,” he told Cooper. “The voice of those children is important in this case, don’t you think?”
Prolly not. Conservatives are all about the fetus, not what happens to it after it leaves the birth canal.
While Justice Alito can’t see into the future, most Americans can. If this court doesn’t reject bigotry, history will reject this court.
Next up: Prop 8’s older sister: DOMA, being argued today. Stay tuned.