Whether it’s right or wrong, my tendency when it comes to many political issues or events is to first ask “is it good for gays” rather than “is it good for the country.” Maybe I should put “good for country” before “good for gays” but lately I find it hard to sell out my own interests for the good of my fellow countrymen. Maybe I’m just bitter.
That’s basically the approach I’m taking to the Roberts’ Supreme Court nomination. Good for gays or bad for gays? As with some of other issues, Roberts is something of a cipher when it comes to gay issues. So I was interested in this New Yorker article about how the next configuration of the court will have to deal with gay and lesbian issues. Specifically, how two cases — one concerning military recruitment on college campuses and the other a state constitutional amendment banning same-sex marriage — are going to make it unavoidable that the court will have to take a stand (or take a stand by refusing to take one) on gay and lesbian equality.
After most law schools refused to help military recruiters on their campuses under the policy denounced by Scalia, Congress took another tack. They passed a law saying that if a law school persisted in limiting recruiting by the armed forces, the school would lose federal funding. It is the constitutionality of this law, which is known as the Solomon Amendment, that the Court will decide this fall.
As Supreme Court doctrines go, gay rights is a relatively new one, especially compared with decisions on race and gender. Systematic legal efforts on behalf of gays began only in the nineteen-seventies, and the Justices didn’t address the issue in a substantive way until the eighties. But that is changing. In May, a federal district judge in Nebraska struck down a recent amendment to that state’s constitution which banned gay marriage and civil unions; an appeal of that ruling is pending. The Court will almost certainly be asked to decide whether gay marriages in Massachusetts must be honored by other states. The Solomon Amendment case will be an important clue about which side has the upper hand.
So, in the future, Roberts will very likely be sitting on the court for at least two important decisions in regards to gay & lesbian equality. The article doesn’t offer much in the way of predicting how Roberts is likely to approach either case, except for suggesting that Roberts will likely side with with those who wish to “defer to the needs of the military.” My assumption is that anyone who made it through the Bush administrations vetting progress would have to be — if not outright anti-gay — at least not obviously gay-friendly. So, there’s the likelihood that schools wishing to bar military recruitment — as a matter of opposing discrimination against gays and lesbians in the military — will have to forego federal funding in order to do so.
And what of marriage? It’s long been my thought that the matter of same-sex marriage will probably end up before the Supreme Court before it’s entirely settled. And maybe I’m wrong, but I’d prefer it that way, say, if the court were to rule that same-sex marriages performed in Massachusetts must be recognized by other states. It’s the age old rapid social change vs. moderate social change, and I’ve never subscribed to the idea that slower is better if slower means that some of us have to live with injustice (without remedy, I might add) for longer than we would otherwise. Slower is mostly better for those who favor discrimination, as it allows the status quo — however unjust — to stand for the foreseeable future.
The article doesn’t hint how Roberts will lean when it comes to dealing with same-sex marriage on the Supreme Court. However his recently reported membership in the Federalist Society makes me think that he would leave it to the states. That would mean 50 separate battles over marriage. Ugh.
My take is that the Roberts nomination — however unreadable he is, or how moderate he may turn out to be — is the first step in a pattern we are likely to see more of if/when Bush gets to make another appointment or two, and if he is succeeded by another Republican, and that pattern is one of closing the courts to minorities as a route to seeking justice when it is denied by the majority. In other words, a purely majority-ruled culture, in which those in the minority have little option other than simply to wait for the majority to decide not to discriminate against them or deny their rights any longer.
As much as I would like to think that Roberts will turn around and surprise Bush & Co. on same-sex marriage when the time comes for the court to rule on it, I can’t help seeing his nomination and likely confirmation as one small step down the road to becoming a society in which might — in term of numbers — makes right.