SCOTUS has a choice before it in the two marriage equality cases they have agreed to review. Will they follow the logic of  Plessy v Ferguson and its doctrine of “separate but equal” or Brown v Board of Education and a clear declaration of “equal”? Will they choose the logic of Dred Scott v. John Sandford and its “blacks have no citizenship rights” or that of Loving v Virginia and its “states have no discrimination rights”?

In the strict sense, there are a whole host of legal issues involved in the two cases SCOTUS agreed to take up yesterday, including in particular the question of standing: do the parties here actually have the right to present this case? For the record, let us note that in ruling against Dred Scott, the Taney court based their decision squarely on the question of standing:

Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

The answer, said the court in an infamous 7-2 ruling, was “no.” By outlawing slavery, said Taney, states can prohibit private ownership of slaves, but they cannot compel the federal government to accept them as citizens.Thus, Scott did not qualify to bring his case to federal court, and it was dismissed. “Back to slavery for you, Mr. Scott,” said the Taney court.

I can’t help but note the parallel argument being put forward by the defenders of DOMA, as they argue that states are free to grant whatever marriage rights they want to same-sex couples, but they cannot compel the federal government to accept them as married.

When Iowa’s supreme court unanimously struck down their state’s anti-marriage equality laws in Varnum v Brien, Chief Justice Mark Cady wrote a powerful and very readable opinion. He took justifiable pride in his state’s heritage of justice, noting that Iowa and the Iowa courts consistently chose the path of justice well before the federal courts.

As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” This concept is evident in our past cases.

In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, and Coger v. North West. Union Packet Co., we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education. Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois decision to deny women admission to the practice of law, see Bradwell v. Illinois, and twenty five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood. In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the absolute equality of all” persons before the law as “the very foundation principle of our government.” See Coger.

Cady and his colleagues went on, cataloging every argument made by those who opposed marriage equality, and noting the failures of each one to pass legal muster: tradition, raising children, promoting procreation, defending opposite-sex marriage, and conservation of state resources. In the end, every single one was found to be lacking. “Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage.” It was truly a thing of beauty, and the lawyers who will be arguing for equality before SCOTUS would do well to give it some careful attention.

As it was in Iowa, so Vaughn Walker found it to be in his federal courtroom in California. The record of fact in the Prop 8 case is compelling, as Walker gave the defendant-intervenors every opportunity to present and support every possible argument they wanted to make to justify keep marriage licenses out of the hands of same-sex couples, and the more the DIs talked, they more they hung themselves. Their experts were discredited, and their logic was dismissed as illogical. Walker’s lengthy recitation of “findings of fact” is powerful indeed.

In state courts and federal courts, those who preach discrimination have had their arguments dismissed. Now they have their last shot: SCOTUS. Justices of the Supreme Court of the United States have a lifetime appointment, with only two real threats. One is impeachment, and the other is the verdict of history. No justice will be impeached for his or her vote on these two cases, but history is surely waiting to issue its verdict. As Tom Goldstein wrote at SCOTUSblog, “When the decisions are issued in late June, everyone involved will be a hero or a goat.” This is what happens when a truly big case comes along, and the beauty is that each justice gets to decide which one they will be.

Will Clarence Thomas embrace the logic of the State of Virginia in Loving — knowing that this same logic would invalidate his own marriage, if he lived under such a law himself?

Will John Roberts embrace the logic of Scott v Sandford — knowing that this same logic will likely place him in the same part of the pantheon of SCOTUS chief justices as Roger Taney?

I’m looking forward to seeing how they choose.

______

Image by From Sovereign to Serf – Roger Sayles aka Serfs Up! and used under Creative Commons license.