Wherefore art thou, Mr. Chief Justice

Author: Barrett Rainey

As the U.S. Supreme Court wrestles with issues of our sexual differences and their standing in our society, I’m less worried about the ultimate decisions than I am about the connection of the Chief Justice to reality.

There can be little argument DOMA (Defense Of Marriage Act) became a law because of prejudice and bigotry. It was largely born of a narrow belief held by a religious minority which has previously sponsored similar “moral” legislation. Enactment of the California law known as “Prop 8″ came from the same despoiled garden of fear and hatred – and $28 million from the LDS Church. But remarks made by Chief Justice Roberts from the bench during arguments on the two issues seemed to reflect his mental world is one in which no law is created from any soiled motivations.

During general questioning of the DOMA case, Roberts seemed to reject the proposition that Congress could be motivated to create a law – any law – out of discrimination or animus. In fact, during discussion, he and some other Justices appeared ignorant of the roots of DOMA – until Justice Kagan read this part of the law aloud to Solicitor General Verrilli during her questioning.

“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

There were gasps in the room. Then, from the Congressional Record dealing with the committee creation of DOMA, Kagan again quoted:

“…the Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality.”

BOOM! Then silence in the court. After brief subsequent give-and-take between Kagan and Verrilli, Roberts simply said “Thank you” and matters moved on while other Justices wrote lengthy notes to themselves – apparently about what they’d just heard. But not Roberts.

Editor’s Note: Why did so many Justices seem surprised by what Kagan read? Had their law clerks not read all the briefs and summarized for the Court? Didn’t the Justices at least read the law before hearing arguments? Why the hurried note-taking?

Roberts’ personal and judicial history are spotless. There is no doubt of his moral and professional character. But – there is ample evidence of his seeming real world ignorance that less-than-honorable intentions can create bad law. In one case – PICS vs. Seattle School District No. 1 – he wrote “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” He basically dismissed the need for judicial action in the face of demonstrated outright discrimination. His side lost.

Four years ago, in a matter involving a Texas utility discrimination case, he wrote “Things have changed in the South.” He was attempting to argue there was no need for Section 5 of the Voting Rights Act. Again, he was on the losing side. He said much the same thing earlier this month in yet another challenge to the same Voting Rights Act now before the Court.

We often hear of the isolation from the “real” world that comes with living and working in Washington, D.C. for very long. It’s real. I can personally attest. But to find the SCOTUS Chief Justice making repeated references to a world without bigotry, discrimination or other dishonorable motivation for many of our laws is stunning. To have to have the most damning parts of DOMA read to the Court is bad enough. But his reaction was, frankly, embarrassing and alarming. Did he do no research – no preparation?

Whether from legislative ignorance or religious zealotry, we have too many laws on the books – both state and federal – that sprang from diseased roots. The several states currently trying to savage abortion and voting rights will spend millions defending what they’ve done and likely meet with little ultimate success. Just large legal bills to be paid with tax dollars.

The Idaho Legislature has a long history of being a major drain on citizen tax receipts. Year after year, the assembled minions make runs at nullification, trying to tax the untaxable, expressing a swim-upstream mentality that nearly always ends in the legal trash can, tries to take title to all federal lands or some other doomed, cockamamie scheme. Idaho taxpayers can only look to the judicial system to keep things intact. At great expense. Years ago, the Idaho Legislature created the perpetual “Idaho Contract Attorney’s Retirement Fund.” They up the endowment each session.

Congresses – current and past – have been filled with loud, minority voices attempting to codify morality. The 50 legislatures, as well. In far too many instances, the minority has been able to prevail because the majority lacked the intellectual guts to say “NO.” When the subjects were marriage, abortion, sexual orientation or similar social “issues,” many in the majority were shamed into going along. Whether for job retention, cowardice or some other personal flaw. So our courts have spent years wading through these social “thickets” trying to separate wheat from chaff.

Which brings us back to the Chief Justice.

His indication of seeming ignorance of the roots of the DOMA case before the Court – his repeated apparent belief that laws can’t spring from deceit, racial or sexual bigotry or some other anti-social source – his repeated writings that all that’s needed to stop injustice is to stop committing injustice – these are not the judicial thoughts I want to hear from someone in his exalted position.

DOMA will probably go away. Prop 8 will likely be kicked back to the folks in California. But Chief Justice Roberts has a lifetime appointment to the U.S. Supreme Court. At his age – still in his 50’s – he will be there for many years to come. While his conservative legal history is to be admired, his seeming lack of understanding of the world around him is not.

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