June 12 is the 40th anniversary of the Supreme Court's unanimous decision in the Loving vs. Virginia case that struck down bans on interracial marriages. The law that was struck down was Virginia's "Racial Integrity Act." Sound a lot like today's marriage protection acts? That's the point of this op-ed piece in the Washington Post.
Interracial marriage bans now seem obviously invidious. But go back far enough and the consensus flips. At one point, most everyone thought such bans were legitimate. The same is true of segregated schooling and discrimination against women. It is true of just about everything the Supreme Court has held that the equal protection clause prohibits: At one point, all of these practices were seen as legitimate reflections of the world, not as invidious attempts to impose inequality. When the court held these practices unconstitutional, it was neither enforcing a rule that had existed since 1868 nor creating a new rule. It was recognizing that social attitudes had shifted, and with them the understanding about what is reasonable and what is invidious.
This point connects Loving to current social struggles, most notably the debate over same-sex marriage. Opponents decry the "activist judges" in Massachusetts who struck down that state's same-sex marriage ban and warn that the Supreme Court will someday follow. So it may -- but, if it does, responsibility will not lie primarily with judges.
The past few decades have brought a dramatic change in social attitudes about homosexuality. The American Psychiatric Association, which once classified homosexuality as a mental disease, abandoned that position in 1973. Public opinion polls show an increasing acceptance of homosexuality, and state legislatures are beginning to follow. Restricting the benefits of marriage to opposite-sex couples is increasingly seen as invidious, an inequality inflicted for no good reason.
If the trend continues, this view eventually will find expression at the Supreme Court level, just as it did in Loving. This is not judicial activism. It is how we make the Constitution ours.
The writer of this piece, Kermit Roosevelt, is author of the book "The Myth of Judicial Activism," which is the phrase right-wingers use to describe rulings they don't like, so he's done his homework.
I saw a piece from Tony Perkins of the Family Research Council where he writes that, of course, interracial marriage is fine because it still involves a man and a woman but same-sex marriage is against God's plan. It is obvious, though, that 40 years ago there were Tony Perkins types arguing that interracial marriage was also a violation of God's will. Fortunately over time people grew to learn that was wrong, just as it appears will happen for same-sex unions.
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Ok, there's a few lines in there that really bother me, but one in particular:
ReplyDelete"It was recognizing that social attitudes had shifted, and with them the understanding about what is reasonable and what is invidious."
It's not the function nor the duty of the Supreme Court to do such. The Constitutionally defined duty of the court is to interpret the law. Therefore all decisions made should be based solely on the law and Constitution of the United States, a firm bedrock, not the shifting sands of public opinion.
The body to effect the changes called for by public opinion is the legislature. The Supreme Court is effectively (in a lot of ways) a check on the potentially fickle nature of public opinion, by seeing if the actions driven by that opinion are constitutional.
And as I always say: Article I Section 8 in conjunction with Amendment 10.