Prop 8 Supreme Court: Would Alito and Kennedy Demand Data to Legalize Interracial Marriage, Too?

A funny thing happened on the way to equal protection under the law for same-gender couples: the Supreme Court justices tried to throw a monkey wrench into the discussion by saying there wasn't enough data on the impact of same-sex marriage on society in order make a decision on the denial of their civil liberties. That is a funny way to determine equal protection. Rather than apply the law, the justices want to treat same sex marriage as if it was a social experiment.

The justices set up a catch-22 saying that there was not enough data to reach a decision on a scenario that cannot be fully studied because the condition is not allowed in a broad context. In effect the justices attempted to hamstring the proceedings by setting up an impossible scenario. It is extremely difficult to conduct an empirical study that is mutually exclusive and collectively exhaustive if the conditions which you are studying are restricted i.e., banned from occurring. You cannot include factors such as regional and environmental impact if those regions prohibit the experiment and thus the gathering of data.

This is the impossible scenario that Justices Alito, Scalia and Kennedy set up during the oral arguments on Hollingsworth v. Perry, the Proposition 8 case in front of the Supreme Court. The justices basically were trying to find a way to kick the can down the road on deciding the fate of gay marriage in America. It is a cowardly move wrapped in the legal parlance of establishing a) whether gay and lesbians represent a protected class, b) whether the government has a rational basis for allowing a ban on same-sex marriage, c) whether legislation banning same-sex marriage is required to pursue a legitimate government interest, and d) whether restrictions against gay and lesbian marriage pass the test for heightened scrutiny.

Judge Kennedy stated that the court was in "uncharted waters." Judge Alito explained "You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?"

In 2004, Massachusetts was the first state to recognize same sex marriage. How many years of data do Kennedy and Alito require before they feel the landscape has been properly charted? What impact analysis is required for them to feel comfortable restoring the equal rights of American citizens? How comprehensive should the cost-benefit analysis be before they are convinced that American citizens should be afforded equal protection of the law? What should be the return on investment / return on invested capital goal of extending civil liberties to gay and lesbian couples?

Justice Scalia said "We don't prescribe law for the future. We decide what the law is." The law is the Fourteenth Amendment, and Kennedy and Alito fully know that continuing to deny American citizens their full rights under the law is a cost that society cannot continue to bear.

Imagine these scenarios:

- Before we free the slaves we need to see the data on the impact of free slaves on society.

- Before we allow women to vote we need to know what they may vote on.

- Before we decide that separate but equal is illegal we need to see how well separate but equal works.

- Before we rule that interracial marriage is okay, we need to have some studies on the impact of interracial marriage.

- Before we allow equal protection for any of these groups we need to understand the impact to tradition and its norms and mores in society.

Since when has that been the standard for equal protection and civil liberty? I thought injustice for some is injustice for all.

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Frank Hagler

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