Supremes: In or Out?

Today, the United States Supreme Court heard oral arguments on the constitutionality of California’s Proposition 8, a law supported by the majority of the people of California. The proposition basically stated that the state would only recognize a legal marriage as a union of a man and a woman. Tomorrow, the Supreme Court will hear oral arguments on a Federal law, the Defense of Marriage Act, a law that denies federal benefits and recognition to same-sex spouses.

While most of us grew to adulthood assuming the Supreme Court was the final arbiter of law, a nine-member embodiment of that blindfolded lady holding the scales of justice in her hand, I doubt that this Court will choose to do anything so breathtaking as offering a cut-and-dried, “this-is-it” type of decision. I believe they will offer written opinions citing a lack of standing to wash their hands of the California problem, and then formulate some rhetorical calisthenics to say it is not their place to make laws and refer it back to Congress. As in the finding on Obamacare, Justice Roberts may even take the opportunity to rewrite it for them. He appears to be good at that.

Americans all have an opinion on these cases and want a decision. The Court finds itself wanting to do nothing, and students of constitutional law all know that the Court does not like to hear a case “before it is ripe for hearing”.

To put the issue in some type of perspective you can look at the works of two popular fantasy writers. George R. R. Martin is the author of The Song of Fire and Ice series.  The HBO series, Game of Thrones is based on this series of novels. He devised two landmasses separated by a sea. One is named Westeros and the other, The Free Cities.  For me, the most striking aspect of this series is that time does not move forward. The people seem to get no more educated about their world, nothing new appears to be invented, and the warriors fight with the same methods for hundreds of years. The people do not seem to progress or change.

J. R. R. Tolkien wrote The Hobbit and The Lord Of The Rings trilogy.  In Tolkien’s Middle Earth, the time moves, although at an elves’ pace. Some people are only a memory and the Hobbits, the seemingly most reticent of heroes are the ones who realize that if they don’t do something, their Shire will be gone. By the last of the trilogy, you are told the “age of Elves is over, and now it is the time of Men”.

Our Supreme Court seems to want to reside in Westeros while in fact they are caught in Middle Earth and things are moving with, or without them. If they choose to do nothing, then our proactive liberal politicians and courts will make their own law, understanding that the final arbiter has chosen to sit it out. The California Attorney General did not even argue for his states’ own law. President Obama has already said he will not enforce the Defense of Marriage Act. This is not Middle Earth. This is the United States. Things move fast here. Are you in, or out?