Her New York Times column is appropriately titled as Courting Cowardice, because she nails several of the Justices on their apparent reluctance to seize or even recognize the historical moment before them.
In between Alito comparing gay marriage's existence to that of the internet and Roberts bloviating about labels on friends, she offers this paragraph starting with Kennedy then nailing the Court:
Swing Justice Anthony Kennedy grumbled about “uncharted waters,” and the fuddy-duddies seemed to be looking for excuses not to make a sweeping ruling. Their questions reflected a unanimous craven impulse: How do we get out of this? This court is plenty bold imposing bad decisions on the country, like anointing W. president or allowing unlimited money to flow covertly into campaigns. But given a chance to make a bold decision putting them on the right, and popular, side of history, they squirm.the right, and popular, side of history
For many of us here, we have long known this is the right and overdue path. We are supported by the increasing support for marriage equality we see from political leaders, from votes around the country in 2012, from polling data, and from professional organizations.
Please keep reading.
Dowd credits Solicitor General Donald Verrilli Jr. with an effective argument I did not hear in the news coverage last night, that
“There is a cost to waiting.” He recalled that the argument by opponents of interracial marriage in Loving v. Virginia in 1967 was to delay because “the social science is still uncertain about how biracial children will fare in this world.”She cites las week's announcement by the American Academy of Pediatrics of its support for same-sex marriage, which "evidence that children of gays and lesbians do better when the couples marry." She herself cites data from the ABC/Post poll that
The wisdom of the Warren court is reflected two miles away, where a biracial child is faring pretty well in his second term in the Oval Office.
that 81 percent of Americans under 30 approve of gay marriage. Every time you blink, another lawmaker comes out of the closet on supporting the issue.And she totally takes apart Charles Cooper's argument about marriage and procreation as ludicrous, noting
Sonia Sotomayor was married and didn’t have kids. Clarence and Ginny Thomas did not have kids. Chief Justice Roberts’s two kids are adopted. Should their marriages have been banned? What about George and Martha Washington? They only procreated a country.One third of the Justices do not fit Cooper's model. Perhaps 1/10 of the nation's population may be gay and not currently guaranteed marriage equality.
There is more, some quite delicious, and well worth considering.
When a political figure or institution becomes the target of late-night comics we know they are in trouble. When elite voices across the country are speaking with a common voice that has moved, it is worth noting.
This is not elite voices saying we need time to wait, say on integration. For those who forget, it was such arguing for waiting that produced one of this nation's most important document, Martin Luther King Jr.'s rightly famous Letter from Birmingham Jail< in which he wrote
We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.He followed that by noting
We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter.At a time when countries around the world are moving to accept marriage equality, including those with whom we are closely tied by military and economic connections, there can be little doubt of the sweep of history. At a time when increasingly the American people and their legislative representatives are moving to approve marriage equality, the reluctance of this Court to step up to the historical moment before them is appalling.
The moment is coming. Perhaps Clarence Thomas will continue to remain vocally silent and Antonin Scalia will continue his rants and ravings, but all of the other Justices surely realize that the moment is nigh upon this country.
The Court dare not uphold Proposition 8. I think that is clear from the words of Kennedy, Roberts, and even Alito.
Dowd reminds us that the gathered crowd outside the Court was largely pro-marriage equality, noting
One woman summed it up nicely in a placard reading “Gays have the right to be as miserable as I make my husband.”She says the only real emotional moment in the Court was Justice Kennedy bringing up the 40,000 children in California living with same-sex parents, with Kennedy citing in response to Charles Cooper the right of those children to have their voices heard.
Above I said "and even Alito." He had wondered whether or not gay marriage might or might not turn out to be a good thing, to which at that point in her column Dowd had written
If the standard is that marriage always has to be “a good thing,” would heterosexuals pass?That is a key observation, as was the sign outside she mentioned. I am reminded of a young lady in one of my classes a few years ago when the issue of same-sex marriage came up. She was the daughter of one of the most prominent African-American ministers in the region, one of those whose preaching was that God made them Adam and Eve, not Adam and Steve. Yet when she spoke up on the issues, she wondered why it was such a big deal, weren't her gay and lesbian friends just as entitled to the pursuit of happiness.
That nails it - that is why it is more appropriate to call it marriage equality. It is an equal rights argument, it is an equal protection argument.
As for poor Sam Alito, who worried that the Justices could not see into the future? He becomes the focal point of Dowd's final, powerful 2-sentence paragraph, with which I will also close:
While Justice Alito can’t see into the future, most Americans can. If this court doesn’t reject bigotry, history will reject this court.Peace,