Well, folks, before the arguments to the Supreme Court on Prop 8 and the Defense of Marriage Act are erased from your memory tapes to make room for “Thrift Shop” (clean version only, please!), we present the First-Ever Ennead Awards. There are — conveniently — nine categories, to wit:
Most Willfully Clueless Award: To Justice Antonin Scalia, for his remarks that sociologists were in disagreement about the effects of gay and lesbian parenting on children. OK, they’re not. The most one can say is that more evidence would be helpful, but this position is usually taken by those who are trying to avoid the implications of the studies that do exist — and show that kids do just fine across all measures when raised by same-sex parents. It might be that Scalia was sending out one of his increasingly high-pitched dog whistles to the far right, a sonic treat that was prominently featured during his otherwise-inexplicable excoriation of the Obama Administration for not doing enough to deal with illegal immigration. But it might also be that, once again, the opera-loving oenophile just didn’t do his homework. As Maureen Dowd pointed out, he didn’t even seem to know how many states have full marriage equality. (He might have just been posing, though.) And last year, he seemed to lament the suggestion that he should actually read the Affordable Care Act before deciding its constitutionality. Try that in your job.
Best Performance by an Actor in a Fantasy: To Chief Justice John Roberts. When the Justices agreed to hear the case, some of us hoped that they would finally take up the issue of whether discrimination based on sexual orientation should be judged by what the Court calls “heightened scrutiny.” It doesn’t look like the Court’s going to do that. In fact, I doubt they’re even going to get into the vast equal protection problems at all. And one reason for their declining to do so was voiced by the Chief Justice, who suggested that gays and lesbians don’t need the suspect classification designation that’s reserved for groups that lack political power. According to Roberts, the reason same-sex marriage laws have passed is because of our powerful lobbying. Then he added:
As far as I can tell, political figures are falling over themselves to endorse your side of the case.
OK, this is a valid point (and one I made, in a somewhat different way, in this Slate piece). But here’s the much more persuasive response of Roberta Kaplan (representing Edie Windsor, the DOMA plaintiff):
The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost.
[A]nd until 1990 gay people were not allowed to enter this country. So I don’t think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous — I think gay people are far weaker than the women were at the time [the Court found women to be a “suspect class.”]
Just to make sure no one else might claim this award, the Chief Justice also expressed mild incredulity that the 84 Senators who voted for DOMA might have been motivated by a dislike of lesbian and gay people. Sustaining this particular fantasy requires ignoring the contribution of our next award winner…[1. Justice Roberts would also have won the "Oops!" Award if the Academy had recognized the category. At one point, he let slip the obvious point that Congress wasn't really concerned with uniformity in enacting DOMA, but in something else: "Do you think Congress has the power to interfere with the [oops!!]…to not adopt the state definition….”]
Best Audiobook Reading Performance: To Justice Elena Kagan. Her sparring with Paul Clement, who was trying to defend the indefensible DOMA, was devastating. When Clement kept insisting that the real purpose of DOMA was to ensure uniformity, she confronted him:
JUSTICE KAGAN: Well, is what happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”
Is that what happened in 1996?
MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.
Yes, it does. And yes, you should.
The Lactose-Intolerance Award: To Justice Ruth Bader Ginsburg, who delivered this dairy product:
It’s — it’s — as Justice Kennedy said, 1100 statutes [that confer federal advantages], and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.
Well, we know what she thinks of DOMA. But I don’t want to milk the point any further.
I mean, take a state that really does nothing whatsoever. They have no benefits, no nothing, no nothing.
Anything but that!
[To a flabbergasted Charles Cooper]: “And you might address why you think we should take and decide this case.” (Really? Now? Over at Slate, I offered a possible reading of this statement.)[T]here is an immediate legal injury…and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?
John Culhane is the co-author of the new book, Same-Sex Legal Kit for Dummies. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law, and is also a contributing writer for Slate.
