As I read the various arguments made before the US Supreme Court in the two gay marriage cases heard this week, and with Roman Catholic Easter coming up this Sunday, I can’t help but wish we could resurrect my personal legal Jesus, Earl Warren, to replace John Roberts as Chief Justice for awhile. Justice Warren had them all fooled. A diehard Republican Earl Warren was the three-time Governor of California who was the VP Candidate with Thomas Dewey when Harry Truman pulled off the famous upset. When Eisenhower and Nixon were elected in 1952, Ike nominated Warren as Chief Justice in a recess appointment to avoid any fighting over the nomination (see- I told you TeaPartiers that Obama didn’t invent recess appointments!). Justice Warren ended up presiding over one of the most liberal, groundbreaking Supreme Courts in history. Its almost inconceivable that one man could have been the driving force behind so many decisions that still stand as landmarks of Supreme Court jurisprudence. Yes, he had help from some great justices that gave him the votes he needed (Douglas, Brennan, Marshall, etc) and his opinions were never quite as well written as theirs, but as his Wiki page attests,” his strength lay in his public gravitas, his leadership skills and in his firm belief that the Constitution guaranteed natural rights and that the Court had a unique role in protecting those rights.” Read that last sentence again – The Constitution guarantees natural rights.” That belief and his drive led him to direct a court that changed America forever.
The Warren court decided Brown v. Board of Education (in which Warren insisted and fought for unanimity) desegregating American schools. Was there ever a more clear “states-rights-issue” than education? Warren said- who cares about States’ rights if those rights violate the right to Equal Protection under the Constitution? Brown applied to schools, but soon the Court enlarged the concept to other state actions, striking down racial classification in many areas -Warren insisted all of those be unanimous as well. That driving force led Congress to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In Gideon v. Wainwright, the Court held that the Sixth Amendment required that all indigent criminal defendants receive publicly funded counsel. Though he rode to the Governorship of California on his record as a tough prosecutor, he was wary of police abuse. In Miranda v. Arizona required that certain rights of a person interrogated while in police custody be clearly explained, including the right to an attorney (still called the “Miranda warnings”). Mapp v. Ohioprevented prosecutors from using evidence seized in illegal searches. It was the Warren Court that outlawed school prayer in Engle v. Vitale which was as gutsy a decision as the Supreme Court had ever seen at the time. Warren was also behind the Court’s decision in Griswold v. Connecticut which announced to the country that its citizen’s enjoyed “a constitutionally protected right of privacy.” Griswold led directly to Roe v. Wade which was decided after Warren left the bench. Believe it or not I could go on as the Warren Court was behind even more landmark decisions during the 16 years he served on the Big Bench. But you get the picture by now I imagine.
Then you turn and read about all the hemming and hawing occurring before the current Supremes as they decide the greatest civil rights issue currently before them. There are procedural issues in both cases that would allow the justices to skirt the issue. In the California case involving that State’s Proposition 8, the State itself is not appealing the ruling meaning that the activist organization that is might not have standing to do so. In the Federal Defense of Marriage Act case, the Obama administration abandoned its defense of the law but continues to enforce it. House Republicans are now defending DOMA in the courts. So the Court feels like the Executive Branch is leaving it to the them to do the dirty work. Here’s a couple of quotes that show the waffling: Justice Kennedy: “We’re heading into uncharted waters here. We have five years of information to weigh against 2,000 years of history of more.” Alito: “You want us to step in based on the effects of this institution [gay marriage] which is newer than cellphones or the Internet. I mean we do not have the ability to see the future.” Scalia: “I’m curious. When did it become unconstitutional to exclude homosexual couples from marriage. 1791? 1868, when the Fourteenth Amendment was adopted?” Roberts: “I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say, ‘Let’s have this institution, but let’s keep out homosexuals.’ The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.” Sotomayor: “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.”
So we need old Earl right now. We need Earl to tell these folks that denying equal protection to folks on any such a random, irrelevant basis as sexual orientation is wrong under the natural rights and right to privacy guaranteed by our Constitution. We need Earl to remind them of the power of the Court as the ultimate last word in Constitutional interpretation. We need Earl to tell this court that waiting won’t solve anything but make the American public look upon the court as wishy-washy and afraid to act decisively. We need Earl to tell this court that now is the time to put their stamp on this country and let us all move one step closer to the founding principle of this nation: that all men are created equal.