Same-Sex Marriage, Supreme Court – It’s Equality, Stupid!


Oh dear. In an article wondering how the new gay rights case before the US Supreme Court will play into John Roberts’s long game, the NYTimes once again has it back to front. They look at outcome and superimpose intent.

I agree Roberts has a long game. The man became Chief Justice when he was 50. He’d be pretty stupid not to have a long game. And no-one accuses Roberts of being stupid. But, contrary to the NY Times, I think his long game is this:

1) To make the Supreme Court more relevant to ordinary Americans. He doesn’t follow polls. But he does believe that the Court should reflect long-term social trends. And reflect, not mold.

2) He is a constitutionalist. In the sense that I understand it. And in the sense which I broadly support. Which means that he believes that it is up to the executive and the legislature to legislate. It is for the court to interpret and apply the constitution, not to be activist.

3) And only the US Constitution. He is a states rightist. If something is within the purview of states, then that is where the impetus should remain.

4) He believes that the primary value contained within the US Constitution and attendant Bill of Rights is that of equality. And that means equality of opportunity, treatment, not equality of outcome. No-one can legislate feeling. No-one can determine how people will react, and therefore how things will turn out. And, as soon as you address one seeming inequality of outcome with a reverse inequality of outcome, then you sow the seeds of new resentment.

Thus it was with Obamacare that Roberts did not suddenly become a liberal overnight. He took the view that Obamacare had been thoroughly debated within the US executive and legislature, and also around all of the states, that there was broad support, and he was not going to allow his Court to stand in the way on a technicality (1, 2 and 3 above).

So it was with DOMA. At the time that his Court ruled against DOMA, he stated words to the effect that it was becoming increasingly clear that states were moving in the direction of not banning same-sex marriage. Some 17 states at that time had moved towards same-sex marriage. From a position when DOMA was made law, when no states were in favor of same-sex marriage. But, there was a way to go before he was convinced the Court needed to make a declaration for the remaining states (1,2 and 3 above).

Now that some 30 states are no longer opposed to same-sex marriage, he feels that it is time to make such a declaration. A declaration which is not about same-sex marriage, but about equality of treatment. Namely, married couples, and especially their children, who have been properly married and adopted in one state, should not be penalized in another. They should receive equal treatment in all states, now that a majority of the states have indicated that they accept the premise requiring equal treatment, namely same-sex marriage (1, 2, 3 and 4 above).

The same is true with campaign financing and affirmative action. I believe that the primary interest of Roberts here is to make his Court less activist (2) and more about equality of treatment (4).

I get the feeling that Roberts feels much the same way as I do about campaign finance. So long as Amendment One remains in force, individuals are entitled to have the state not interfere with their free speech. A political donation is a political statement. Any group of individuals, speaking in a corporate (i.e. as a group) sense, are also entitled to make political statements unhindered by the state. Amendment One guarantees equality of treatment, not equality of outcome. We are not born equal. Some of us are wealthier than others. That’s life. Being permitted the freedom to speak does not entitle one to the ‘freedom’ to pay for a million-dollar political TV ad.

The very fact that this is a long game means that the only person who truly knows what it is is Roberts himself. But, once again, I do believe that the NYTimes is allowing its own political bias willfully to drive its misinterpretation of what I suspect is, at one and the same time, a very simple yet a very subtle long game of Roberts.

Published in: on February 3, 2015 at 6:54 pm  Leave a Comment  

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