Yesterday as the Court began hearing oral arguments on the first of two cases involving marriage, Justice Alito said “same sex marriage is newer than cellphones and the Internet,”
Today the Court hears the case of Edith Windsor, 83, of New York, who sued to challenge a $363,000 federal estate tax bill after her partner of 44 years, Thea Spyer, died in 2009.
I don’t expect Justice Alito to know the year the first network to independent computer network launched was 1969, four years after Ms. Windsor and Ms. Spyer became partners. Or for him to know off the top of his head that Motorola introduced the first handheld mobile phone in 1973. I would, however, hope Justice Alito and his eight colleagues know gay people have been around, well, since people were invented.
Timing was on Justice Antonin Scalia’s mind, too.
Justice Scalia stated during the oral arguments “I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”
An attorney arguing for same sex marriage responded with rhetorical questions, “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.”
Justice Scalia answered, “It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true.”
There you have it, really. While Justice Scalia raises an interesting, albeit painful, question, he also answers it. Thankfully, our country reached the right decisions on these matters, even though it took too long to do so. Call it evolution, or timing. It doesn’t matter.
For a country where slavery was once legal, where schools were segregated, where women were denied the right to vote and the list of legalized inequality is long; when should the Court rule a law falls short of what is set forth in the Constitution is not a new question.
The answer is simple; the moment we are able to strip away long-held prejudices and recognize a law is unequal. When it comes to to the limitation of legal marriage, that moment has arrived. The question is not one of religion, past practice or timing. It is about equality.
Justice Alito’s statement is wrong and Justice Scalia is focusing on timing when he should be focusing on the rights of individuals.
Cell phones and the legal contracts involving the purchase and operation of them are fairly new. The act of people choosing to pair and spend their lives together is anything but new, and the time has at long last arrived for the Court to evaluate equality when it comes to who can enter the legal contract of marriage.
The concept of human equality is significantly older than the Internet, and while we have had a little trouble living up to the ideal of equality in this country, the new thing before the court is not marriage but whether couples of the same sex will receive the same legal protection those of opposite sex receive when they marry/couple/partner.
Henry David Thoreau said ”It is not desirable to cultivate a respect for the law, so much as for the right.” There have been many laws made and observed in this country that over time have been struck down because they violated an inalienable right. The time to strike laws limiting legal marriage to the opposite sex is now.
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Graham Gillette can be reached at grahamgillette@gmail.com
This entry was first published as a Des Moines Register online essay.
This entry was first published as a Des Moines Register online essay.
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