Queer Quote: Justice Alito Lies About Gay Marriage

Last week the Supreme Court heard oral arguments in two very important cases involving marriage equality, Hollingsworth v. Perry and United States v. Windsor. The first case is about the Proposition 8, and the fundamental question at stake is about whether there exists a fundamental right to marry for same-sex couples.

Justice Samuel Alito, widely expected to rule against the rights of same-sex couples, said something during the hearing which is today's Queer Quote.

 JUSTICE ALITO: Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we -- we are not -- we do not have the ability to see the future.

Ummm, really? "Traditional marriage has been around for thousand of years"? What does that even mean? This notion that "(traditional) marriage" has been around, unchanged, as a particular idea for thousands of year is a pernicious and resilient flat-out lie. Have you ever heard of the concept of coverture? The idea that marriage has been the same for thousands of years is simply laughable.

And notice how Alito uses the ideas of "the Internet" and "cell phones" as proxies for things which have recently been developed, i.e. not been around for very long. The reality is that the Internet has been around since the 1960s, but most Americans, when they think of (or see) the word "internet" generally think about access to the world wide web, which only achieved critical mass in the mid-1990s. Similarly, Alito deliberately uses the term "cell phones" (which have actually been around since at least the mid 1980s) because most Americans when they hear that term are almost certainly thinking of smartphones (or most likely iPhones) which have only been around since June 2007. But, legal same-sex marriage has been around in the United States since May 17, 2004 and since 2000 in Europe. Alito is deliberately trying to give the impression that legal same-sex marriage is something recent and dangerous.

Interracial marriage was legalized in 1967 with the Loving v. Virginia. Same-sex marriage is vastly more popular now then interracial marriage was then. Was that Court trying to see the future also? It's just an infuriatingly stupid argument, which is probably why Alito made it.

Well, we have until the end of June to see on what side of history Justice Alito will place himself.
Any guesses?

GetEqual: History is Watching The Supreme Court

This is a pretty compelling video from the direct action group GetEqual, basically warning the individual Justices of the United States Supreme Court that they might not want to get on the wrong side of history with their rulings in the Proposition 8 and DOMA cases. GetEqual is calling for nothing short of full federal equality under the law for LGBT citizens, something the Court is unwilling to do in the cases, but substantial progress, such as marriage equality in an additional 9 states and heightened scrutiny paid to laws that discriminate on the basis of sexual orientation  or gender identity are not unlikely results of decisions in Hollingsworth v. Perry and United States v. Windsor.

I'm pretty sure the voice-over is done by my friend Ben Patrick Johnson.

Hat/tip to Joe.My.God

Analyzing This SCOTUS Term To Predict The Next

In today's New York Times reporter Adam Liptak analyzes the just-completed 2011-12 term of the United States Supreme Court and unearths some interesting (and surprising) facts. The Court heard oral arguments in 65 cases and summarily decided 10 other cases without oral argument. That's 75 decisions in which certioari was granted despite getting literally thousands of appeals from all the lower courts in the land.

Chief Justice John Roberts was only 1 percentage point behind Anthony Kennedy, who is widely viewed as the fulcrum around which the nation's highest court pivots around, in the percentage of cases in which they were in the majority (92% to 93%). This number is a widely watched measure as a signifier for the most "powerful" or influential member of the Court.

The court decided 15 cases by 5-to-4 votes, roughly in line with earlier terms. It was also not unusual that two-thirds of those decisions divided along ideological lines, with Justice Kennedy joining either the court’s four more liberal members (Justices Kagan, Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor) or its four more conservative ones (Chief Justice Roberts and Justices Alito, Scalia and Clarence Thomas). 

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Is Kennedy evolving to the left? I guess I'm pretty happy with a 10-point shift towards liberal results instead of his usual 60-40 split between conservative and liberal positions. Maybe it's because he seems to be getting closer to Elena Kagan, since the two voted similarly 83% of the time this term. There are only two pairs of justices who voted similarly more than 90% of the time  (you guessed it!) Antonin Scalia and Clarence Thomas with the other (somewhat surprising) pair being George W. Bush appointees Roberts and  Samuel Alito. I guess "Scalito" is not living up to his reputation to become "a little Scalia" on the Court.
And that's a good thing. As his absolutely unacceptable fit of pique in the Arizona immigration ruling aptly demonstrated, even one Scalia on the Supreme Court is one too many!

You should really read Liptak's entire piece for yourself. There are some big gay rights cases coming up in the 2012-13 term, most likely involving the so-called Defense of Marriage Act (DOMA) and another determining the constitutionality of California's attempt to withdraw marriage rights from same-sex couples by allowing voters to amend the state constitution after California's Supreme Court had ruled such a right exists (2008's Proposition 8). These cases are known as Gill and Perry, respectively. We'll know on the first Monday of October whether the Court will indeed accept these cases for final review (and issue a ruling by this time next year). There are also some very high-stakes cases coming in the new term dealing with race. The Court has already agreed to hear oral arguments in Fisher v. Texas which it could use to completely strike down race-based affirmative action in higher education. In addition, there are several voting rights cases at the federal appellate circuit level, particularly Shelby County, Alabama v. Holder, which will almost certainly reach the Court in the 2012-13 term and could be used to strike down Section 5 of the Voting Rights Act of 1965. It's this provision of federal civil rights legislation which has been instrumental in putting a check on Republican politicians' attempt to suppress the voting rights of Black and Latino voters in states like Florida, Pennsylvania, Texas, Wisconsin and others through enactment of "voter identification" laws.

In the meantime it is useful to analyze last year's term to see if any ideological movement can be discerned which can help predict how the Court will rule in Gill and Perry, though as the ruling upholding the health care reform law demonstrated, accurately predicting how the Court will rule in any particular case is almost impossible!