I won’t be on the wrong side of history.
One of my favorite legal dramas was Boston Legal. I was a huge fan of James Spader’s Alan Shore and his gifts for elocution. I could generally look forward to any episode taking on oft difficult ethical questions and Shore delivering a rousing, fascinating, and sometimes, dare I say, inspiring speech on the issue.
My favorite of these was in an episode in which Shore was solicited to defend a convicted criminal’s possible right to have his execution commuted in the state of Texas (I think). Shore was warned early on in the episode to never condescend to the court and always use phrases such as “May it please the court.” What ensued was a very entertaining speech in which he pretty much did talk down to the justices while sprinkling lots of MIPtCs. He made an excellent argument and failed miserably as the court refused to commute his client’s execution. The emotional ending featured a defeated Shore watching, pained, as his client was put to death.
When I first heard about the United States Supreme Court’s hearing of arguments over the constitutionality of DOMA, I was quite excited. I assumed that a debate over DOMA’s issues would naturally feature brilliant arguments from both sides and from the justices. I mean, it’s a case before the Supreme Court, after all.
I was wrong.
Here’s the Court’s official audio of the arguments. While I have no legal training, I found myself constantly saying things like, “He’s honestly arguing that? It’s a false equivalency!” or “That’s completely irrelevant,” or “But that designation applies to couples who choose not to have children,” and so on.
Two highlights were this:
Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits? Or imposing burdens on them? Is there any other decision-making that the government could make — denying them a job, not granting them benefits of some sort, any other decision?
–Justice Sotomayor
And this:
We don’t prescribe law for the future. We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?
–Justice Scalie
No, there may not have been a specific date, but that’s irrelevant. Just as the Constitution doesn’t specify laws or powers for every possible legal situation that might occur, yet still maintains local, state, and federal jurisdiction no matter what issue arises, so too, just because gay marriage has not been declared constitutionally guaranteed or unconstitutionally denied doesn’t mean that the people have the right to vote to destroy the plausible marriage rights of same-sex couples.
And he knows that. Fucking jackass.
