SCOTUS Pocus


As I write this, oral arguments about California's Proposition 8 (to ban gay marriage) have ended. Arguments for and against DOMA (The Defense of Marriage Act) are schedule for tomorrow. And Roman Cathlics are in the thick of the action -- in the pulpits, in the pews and on the bench.

I am scared to death at the prospect of gay marriage being in the hands of the Supreme Court's Catholics. Anton Scalia and Clarence Thomas have been weighty denizens of the extreme right edge of the ideological seesaw that is the Supreme Court.  John Roberts (perhaps smarting from his support of the ACA) is not too far inboard of them, and Anthony Kennedy slips further rightward as the years go by. Only Sonia Sotomayor hold down the left end of SCOTUS's Roman Catholic teeter totter. If were only up to the Catholics on the bench, poor Sonia would spend most of her time riding high in the air, as her four co-religionists jam the right edge of the seesaw deep into the playground sand.

Still, it's hard to know what to expect from them in aggregate. Scalia and Thomas will forcefully uphold their Church's views on gay marriage -- law and precedent be damned. (And to think that Americans once worried about JFK taking orders from Rome!) Sotomayor will undoubtedly vote to keep the government from doing the Church's bedroom monitoring. But Kennedy and Thomas are tossups. Their decisions may have more to do with their worries about personality, politics and posterity than about the law.

Oh, how I wish for consistency.

If we want small government, how do we justify it being in the national interest to distinguish between gays and straights? Distinguishing on age is one thing -- we don't want 8-year-olds driving semis down our highways or choking themselves on cigarettes. Distinguishing on education is another -- we don't want Joe or Jane from the corner market doing appendectomies. But what safety (or liberty or other social good) is purchased by keeping gays out of matrimony?

On the other hand, if what we want from society is efficiency, how can we also justify the extra resources needed to monitor peoples' sex lives, or to parse out which life-partners get to see their hospitalized loved ones and which don't? Too much paperwork and administrative hassle.

Finally, if we hope to maintain the wall of separation between church and state, why are we enshrining in law what fundamentally are sectarian teachings about what is natural and what is deviant? Don't we remember what the country was like when religious majorities enjoyed legislative superiority? They compelled those of other faiths to pay their tax to support the main church's clergy!

I am hopeful that the Supreme Court will decide -- on whatever grounds necessary to salve their consciences or soothe their political allies -- that preventing people from marrying is no longer valid as law. There are bigger fish to fry, and more worthwhile threats to our liberties to address.