Justice Alito introduced the point on Tuesday during oral arguments in Hollingsworth:
The one thing that the parties in this case seem to agree on is that marriage is very important. It’s thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a—a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
But 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? I mean we—we are not—we do not have the ability to see the future.
Or, as Steve Benen put it:
Alito’s argument seems to be one focused on the calendar. Perhaps, the theory goes, millions of Americans can be denied equal rights for an indefinite period of time, and jurists can revisit the issue in the future. At that point, they can ask once more whether or not allowing two consenting adults to get married is “a good thing.”
Remember the fine print in the Declaration of Independence? We have an inalienable right to liberty and the pursuit of happiness, just so long as the specific type of happiness is older than mobile telephones.
I’m not altogether sure what Alito thinks might happen, even if he had “the ability to see the future,” but the larger question seems to be the justice’s willingness to leave marriage rights “for the people.” What’s wrong with that? The answer, I suspect, has something to do with the nature of rights — they are, by definition, opportunities afforded to people that cannot be taken away without due process.
Rights are not supposed to be open to popularity contests. Throughout American history, if all contentious decisions over civil rights were left solely to popular will and the political process, progress would have been very slow, indeed. It’s precisely why Americans have turned to their last available option — the courts — as a way of ensuring their rights are protected.
And Adam Serwer makes the obvious point:
As it happens, the mobile phone, which was invented in 1973, predates Alito’s bachelor’s degree, and the Internet dates back to the 1960s (although the World Wide Web came into being in 1993). And Alito hasn’t always been so reluctant to rule on things “newer than cellphones or the internet.”
Sure, it is a nitpickety list, but some of the examples are worth noting. Military comissions (Hamdan v. Rumsfeld)? Obamacare (NFIB v. Sebelius)? Warrantless wiretapping (Clapper v. Amnesty)? Criminalizing speech (Holder v. Humanitarian Law Project)?
But more important than the hint of desperation about Alito’s question, conservatives seem to love this point. It is laughable to hear them fret that things are moving too fast†. For over twenty years, we have heard heterosupremacists invoking gay marriage. Heather Has Two Mommies on a library shelf? Can’t fire people for being gay? Can’t force medical schools to teach religion instead of science? Oh, dear God, what’s next? Gays will want to get married! We have heard that lament in some form since Oregon and Colorado in 1992, at least, and it seems the one thing keeping gay rights in the public eye is conservatives. All the spectacular changes, such as Vermont in 2000, and Texas in 2003, keep coming about because conservatives keep asking. While three states acknowledged gay marriage at the ballot box last November, it is worth remembering that a fourth, Minnesota, said no to a conservative-sponsored ban. The longer this goes on, the longer conservatives keep people thinking about this issue, the more they’re going to lose.
But that doesn’t matter to conservatives like Michael Ramirez. Over at National Review, Rich Lowry‡ echoes the lament:
If the Defense of Marriage Act is wrongheaded, the solution is simple and will be within reach in a few years if gay marriage continues to win converts — repeal it. And there is nothing wrong with Proposition 8 that California’s voters can’t fix by going to the polls again.
By seeking a shortcut in the courts, supporters of gay marriage want to end debate through judicial fiat.
It’s always too fast for supremacists facing the loss of privilege.
* Of Investors’ Business Daily. Via Cagle Post.
† Health care? The entire legislation process over a year and a half was too fast. Gay marriage? The two-decade arc of the current civil rights discussion apparently is moving too fast to get a decent understanding of the issues. To the other, though, union busting? Eleven hours isn’t fast enough.
‡ Yes, he of the starry-eyed wink factor.