One Judge, Parts Missing

There’s only one way to explain it. While the rest of the world—or at least the world I know—has gotten over it, there are four or five guys in Washington that still get really jittery when the topic of homosexuality and gay and lesbian issues blows in the room.

Which is why a man whom everybody grants has a fine legal mind said something incredibly stupid. And here it is, courtesy of the New York Times:

He expressed irritation that the case was before the court, saying President Obama’s approach — to enforce the law but not defend it — was a contradiction.

“I don’t see why he doesn’t have the courage of his convictions,” the chief justice said. He said Mr. Obama should have stopped enforcing a statute he viewed as unconstitutional “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’ ”

The White House took umbrage at the remark and said the president was upholding his constitutional duty to execute the laws until the Supreme Court rules otherwise. “There is a responsibility that the administration has to enforce laws that are on the books,” said Josh Earnest, a deputy White House press secretary. “And we’ll do that even for laws that we disagree with, including the Defense of Marriage Act.”

Ahh, Roberts? If the president decided that the two-term limit was unconstitutional and set about running again in 2016, would that be OK? If he decided to stop payments of Social Security, would that be all right?

And by the way, isn’t that what we pay you guys the big money to do? What are you doing up there if you’re not interpreting the law and ruling on constitutionality? Playing checkers, smoking cigars?

Well, what do I know, so I called the family lawyer, and got his take. And John’s reading is that Roberts was peeved, and probably peeved from the day before. Both cases, of course, are screwy. The state of California had no interest in defending the overturning of Proposition 8, so a bunch of archconservatives got in the act. And the big question is—do they have any right to appear before the court? How have they been harmed, which is another way of establishing standing?

That’s pretty much the same deal with DOMA—which Obama and his justice department also declined to defend. But in this case, there’s somebody with standing—an 83 year-old lady who got stuck with a inheritance tax for over $300,000 because her marriage wasn’t recognized. Right, but what about the screwy Republican legislators who hired the lawyers to defend DOMA—what standing do they have?

Short of stomping on the floor and having a nice good hissy fit, Roberts could not be shouting “why me” louder and more petulantly.

At one point, in fact, Roberts suggests that he will walk away from the fight and let the politicians take the heat.

Public opinion has been shifting rapidly over the past decade in favor of gay marriage, and Chief Justice John Roberts suggested that perhaps gays and lesbians don’t need special protection from the court anymore.

“As far as I can tell, political leaders are falling all over themselves to endorse your side of the case,” Roberts told the lawyers who would like to see the Defense of Marriage Act, which defines marriage as between a man and a woman, struck down.

Special protection? Did he really say special protection? Isn’t the DOMA case simply about asking the court to rule on whether the federal government can give benefits to one group of married people but not to another group of married people? What’s special about that?

Oh, and say that I’ve been transferred to Fort Hood, and like a patriotic soldier I go. And then I head for Iraq, where I’m killed. If I’m straight, my wife Dora gets the visit from the two soldiers carrying the folded American flag. If I’m gay, my husband Donald will have to read about it in the newspapers.

You know, I don’t know about anybody else, but seeing the Supreme Court squirm and try to pass the buck is making me crazy. That, of course, is of no consequence to the Supreme Court. What should matter, however, is that a group of people is legally disenfranchised, and suffers real consequences—read harm—as a result of a bigoted piece of legislation. Yeah—I’m married in Massachusetts but not in Puerto Rico. So am I supposed to move to Massachusetts in order to collect Social Security if Raf dies before me?

And does anyone really think that places like Georgia and Mississippi are going to legislate gay marriage on their own? There are states that would still have Jim Crow if not slavery if the courts hadn’t stepped in. We need the Supreme Court to rule on DOMA and on the constitutionality of the 40 states with “defense” of marriage laws.

Put your hand in the center of your back, Chief Justice. Feel that hard thing?

It’s called a backbone.