I just listened to the clip of Chief Justice John Roberts arguing with anti-DOMA lawyer Roberta Kaplan yesterday about whether there should be "heightened scrutiny" for issues relating to gay rights.
I'm not a lawyer, so I can't really argue the legal points on either side. But I'm an educated American and there was no missing the logical problem inherent in Roberts' statements.
Essentially, his argument was that the gay rights movement has gotten so powerful and popular it no longer needs any extra protection. He talked about politicians falling all over themselves to sign on to marriage equality (of course, he ignored the fact that only three Republicans out of 277 in Congress have signed on so far).
Under this logic, almost any group that gathers enough support and strength to make it to the Supreme Court to ask for protection against discrimination is no longer in need of such protection. He was saying, in essence, once you're that powerful, people won't be able to discriminate against you.
Of course, we know that's not even close to the truth.
Every group that has finally won rights, whether it be the Suffragettes or feminists working for women's rights or African Americans fighting for their civil rights, has had to build strength over time and reach a threshold of support that tips it into the consciousness of the American people, the consciousness of our elected officials and the consciousness of the courts. Before a group gets to that tipping point, it is extremely difficult for it to get the legal or legislative remedies it needs to protect the rights of its members.
Even after that point, discrimination is still rampant against members of the group, but there are finally some avenues for fighting that discrimination.
If Roberts were correct, then we would never have needed civil rights legislation because, after all, with all that power Martin Luther King garnered for civil rights, discrimination against African-Americans would be dead: it would be too embarrassing and socially unacceptable for someone to utter racist words, openly refuse to hire a person because of race, or refuse to admit a person to a school or club or restaurant because of race. Yet, discrimination continued long after the court and legislative actions. Yes, over time it has diminished, yet even now, almost half a century after the passage of the civil rights laws, we still see plenty of instances of racial discrimination.
Like so many conservatives, Roberts accuses the gay rights groups of demanding "special" privileges, rights that other non-gay citizens don't have. He completely misses (perhaps purposely) the idea that what is really being asked for is equal rights -- nothing special, just the same opportunities, benefits and responsibilities that any other citizen has. The only special aspect of this is that gay rights groups are asking that the special discrimination, imposed by federal law, be removed.
In general, I'm optimistic about the outcome of this case. It seems to me that Kennedy expressed a fair degree of sympathy with the arguments against DOMA.
But Roberts' arguments worry me greatly in terms what decision might come down on the Voting Rights Act case considered earlier in the term. I think Roberts' logic (or lack thereof) is probably similar in both cases and I fear for our democracy if he and the conservative judges on the Court are able to muster a majority in that case.