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Four Small Men, One Big Decision

interracial couple holding a protest sign that reads, 'Not Long Ago, Our Marriage Was Illegal. Be On The Right Side Of History'
Marriage equality protesters, Washington, D.C., 2013. Photo by Elvert Barnes.

Landmark Supreme Court decisions on the rights of citizens do not occur in a vacuum.

When Brown v. Board of Education was decided in 1954, less than a decade had passed since the defeat of a genocidal Nazi regime that put race at the center of its policies. African-Americans fought bravely in that struggle though, ironically, they frequently did so in segregated units to prevent contact with the white Southerners who wanted nothing to do with them. This policy was incongruous at best, mortifying at worst. President Truman responded by integrating the armed services via executive order in 1948. A few years later, the Supreme Court decided in Brown to overrule more than a half-century of “separate but equal” doctrine that had been previously justified in Plessy v. Ferguson.

Chief Justice Earl Warren fully realized the significance of his action. By most accounts, he worked hard to assemble a 9-0 majority behind it. A united front, he hoped, would lessen resistance by removing the prospect that a future court would turn its back on integration. Maybe it helped, though the resistance was stiff, prolonged and often violent anyway. It would be about two decades before most Americans accepted that schools could and should be integrated, and it took even longer to - mostly - resolve disputes over mandatory busing and other integration strategies. In a few places, these issues still linger. But the idea that we want and deserve an integrated society is, at least in public, today the universal norm.

The broad cultural acceptance of same-sex marriage did not spring from a vacuum either. There was the general movement toward civil rights for minorities, women and other groups who lacked full equality under the law. There was Stonewall, and gay pride marches, and the evolution in popular entertainment that made gay characters acceptable and often beloved. In a mass shift, many gay Americans simply stopped hiding, and allowed their neighbors and co-workers and relatives to see who they were. They took great risks to humanize the issue, to great effect.

But most of all, there was the monumental tragedy of AIDS. So many people, cut down in what should have been the prime of their lives. So many talents lost. So many families disrupted - and so many domestic partners and survivors, trying to manage their lives without the legal protections and benefits that marriage afforded to straight couples in similar circumstances, and with no legal avenue to obtain those protections.

The situation helped inspire me to write a book on financial planning for same-sex couples more than 20 years ago.

So while it is gratifying that the country moved so far, so fast, and that last week’s court decision essentially ratified that movement, it is not truly surprising. We have seen that sort of cultural shift before. We have seen it happen especially swiftly after major societal trauma, such as the Civil War (resulting in the 14th Amendment), a world war (women’s suffrage), another world war (the beginning of the end of segregation), and AIDS.

The real wonder, and sadness, is that four justices have so badly tarnished their respective legacies by stubbornly remaining too small to embrace the lessons of the past several decades.

Justice Antonin Scalia dissented in the Supreme Court’s 2003 decision in Lawrence v. Texas, arguing to leave the decision in Bowers v. Hardwick, upholding laws criminalizing gay sex, in place. He attempted to portray himself as simply a champion of the concept of stare decisis and of the “current social order.” Similarly, in his dissent in last week’s blockbuster Obergefell v. Hodges, Scalia unconvincingly claimed, “The substance of today’s decree is not of immense personal importance to me,” and went on to frame his dissent as a matter of safeguarding “the freedom [of the People] to govern themselves.”

Scalia’s protestations completely fall apart under scrutiny. Consider that then Chief Justice Warren Burger quoted Sir William Blackstone in his concurring opinion in Bowers, characterizing homosexual intercourse as “a crime not fit to be named.” Claiming that opposing the majority in Lawrence, and now in Obergefell, has nothing to do with prejudice against gay Americans is as absurd as claiming a dissent in Brown would have had nothing to do with anti-black racism. Then as now, for Scalia to assert that his position reflected constitutional values rather than an animus toward gay people and their private lives had no credibility at all. Simply saying you are not a bigot doesn’t mean you are not a bigot.

Justice Clarence Thomas is a hypocrite. His own marriage would have been illegal in his native state of Georgia, and his later residence in Virginia, but for Loving v. Virginia, which found marriage to be a fundamental right. Fundamental for him, perhaps, but not for gay people. Loving has been a cornerstone in the legal battle for marriage equality; Thomas, like many opponents, chose to ignore the obvious parallels. Additionally, in his rush to claim that human dignity can neither be given nor taken away by the government, Thomas wrote, “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.” The reasoning is both baffling and repugnant.

Chief Justice John Roberts described the petitioners’ case as having “undeniable appeal;” however, he argued, “Whether same-sex marriage is a good idea should be of no concern to [this Court].” For Roberts not to find a constitutional basis for a right to same-sex marriage is for him to deny the court's finding in Griswold v. Connecticut that Americans have a constitutional right to privacy, in that case meaning married couples’ right to access contraception. It is a right retained under the Constitution, because the government’s powers are enumerated and limited.

When viewed together with the equal protection guarantee of the 14th Amendment, Griswold makes clear that same-sex couples have a right to devote their lives to one another. And when they do, they have a right to expect the same treatment as other couples in similar relationships. The state has no power to withhold that privilege. Courts on the state level have been recognizing these rights ever since Hawaii in 1993. That Roberts can claim there is no compelling legal argument to recognize these unions is at best deliberately obtuse.

Justice Samuel Alito just seems to have missed the boat. He is Roman Catholic and apparently, in his mind, his religious affiliation is enough reason to enforce his church’s traditional line on marriage, notwithstanding the establishment clause of the First Amendment. His argument boiled down to the idea that marriage has been (and presumably still is) “inextricably linked” to procreation and that the Court did not have the right to alter this understanding, despite the obvious fact that marriage is not restricted in any other way to people capable of procreation, let alone to those intending to procreate.

I often find myself in agreement with these conservative judges, but like some other Republicans - not a small number, though none that have to run in a presidential primary - I part company from them here. I read about Stonewall and I lived through the AIDS crisis. I know how important marriage is to any couple that is committed to building a life together.

This is not a situation in which I and people who agree with me picked a goal and looked for some argument in the Constitution to support it. We recognized a basic human condition, and saw in the Constitution the framework for how to address it in a society that is just, and fair, and inclusive, and democratic - but one in which one group’s rights do not depend, as the conservatives would tell you they want it, on another group’s votes.

Too bad we didn’t have an Earl Warren on the court for this one. Gay Americans will end up in the same place anyway, but the Court might not have been so diminished by the shortcomings of four small men.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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