Many years ago I sat with Justice Scalia at a Catholic prayer breakfast in New York City. As we ate, a waiter approached, leaned into Scalia and handed him a FedEx package. This was suspicious since FedEx does not deliver on Sunday.
Scalia said, “Must be a bomb” and tossed it unopened into the middle of the table where it lay ticking for the length of the morning. Scalia said it was probably some message about a case, probably Roe v. Wade. You got the feeling he gets this kind of thing all the time.
Scalia went on to say that in simpler times, members of the public likely did not know the names of the Supreme Court justices and that is the way it is supposed to be. The Court’s decisions should not be so intrusive into people’s lives that it would occur to them to learn their names let alone lobby them.
The Supreme Court has likely never seen a campaign like the one unfolding around the twin Prop 8 and DOMA cases. One experienced court watcher thought maybe there was a comparable campaign around the Webster and Casey decisions on abortion a quarter century ago but even that is unlikely given the subsequent explosion of new media, Facebook, Twitter and so on.
The avalanche of what flacks call “earned media” is impressive. Over the past month or more there has been a steady drumbeat growing louder and louder about all things “gay.” No gay matter is too trivial to report. Just yesterday it was announced the weekend anchor of the Today show came out as a lesbian. Ten bucks if you know her name without looking.
A front page Style Section story on the day of the Prop 8 hearing is a time line of gay TV and movies,—“Yep, we’ve come a long way”—starting in 1993 with Tom Hanks’s Oscar winning role in the Aids movie Philadelphia all the way to the gay dad in Modern Family today.
Full page ads in the Washington Post announced this week “America’s leading businesses agree: same-sex couples deserve to be treated equally” signed by Morgan Stanley, Verizon, Houghton Mifflin Harcourt, Mars, Google, Amazon, Levi Strauss, Walt Disney, Pfizer, Panasonic and on and on.
It made big news as week by week new political or entertainment celebrities “came out” for homosexual marriage. Clint Eastwood did it. Apparently all has been forgiven for not supporting Barack Obama and comparing him to an empty chair. It was even bigger news when Senator Rob Portman announced his son was homosexual and his previous deeply held religious belief about man-woman marriage was out the window. Sorry God.
On March 20 a group of NFL players and rappers what the Washington Post called “traditional tough guys” announced their support for same-sex marriage and this was dutifully reported nationally.
It made big news on March 21 when the American Academy of Pediatrics announced for the first time their support for homosexual marriage. They cited studies that purport to show that children raised by homosexuals do just as well or better than children raised by moms and dads. Forget that among the 59 studies they cite, none of them, according to Loren Marks of LSU, are considered scientifically rigorous enough to make the case they’re supposed to make.
Then there was the amicus brief by a gaggle of former Republican office holders, “consultants,” and “advisers.” More than 100 of them signed a brief saying, “It is precisely because marriage is so important in producing and protecting strong and stable family structures that amici do not agree that the government can rationally promote the goal of strengthening families by denying civil marriage to same-sex couples.” Do these GOP courtiers really suggest their former bosses, George Bush and Mitt Romney, are irrational?
And let’s not forget Bill Clinton ceremoniously announcing he now opposed the Defense of Marriage Act which he signed 17 years ago, or the slick soft focus campaign commercial Hillary Clinton did for the incredibly wealthy Human Rights Campaign in which she said “Gay rights are human rights and human rights are gay rights.”
You would think this was the only issue before the Court and that the wheels of Constitutional law ground to a halt during the period to deal with “marriage equality.” Bet you didn’t know the Court also dealt water run off, and the use of federal roads by lumberjacks. If they only were about, say, “water run off equality” or the use of roads by gay lumberjacks, folks might have noticed.
It really was not supposed to be this way. The big decisions of America are to be decided not by nine unelected judges but by the people.
Homosexuals compare their struggle to blacks. But no one suggests that blacks were not kept out of the political process and needed relief from the Court. But can anyone say with a straight face that homosexuals are similarly powerless? Has there ever been a 2% minority in this country that has had such political power that they have co-opted all the elite institutions to their cause? They were even able to convince the governments of California and the United States to abrogate their responsibilities to defend laws passed by the people of California and the US Congress.
And the really troublesome aspect to all of this is that all of this is aimed less at the whole court than at one man, the swing vote, Justice Anthony Kennedy. It comes down to one guy. It really was not supposed to be this way.
About that package at the prayer breakfast. It lay there for the whole morning making all of us nervous, particularly after Scalia’s bomb comment. Scalia finished speaking and left the room. A friend grabbed the mysterious package and ripped it open, rather abruptly for many of us. I was so worried it might be a bomb that I memorized the serial number on the package in case I survived the blast. My friend Dino said an Act of Contrition. Turns out it was a petition…on Roe.