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Pursuit of Happiness: Law or the Way the Wind Blows?

Little Rock      The Supreme Court is front page on hearing several cases that could end discrimination based on sexual orientation in matters of their personal and legal rights to create life bonds based on love.  Former President Bill Clinton came clean with a statement on the eve of the arguments that the Defense of Marriage Act which he signed in 1996 was unconstitutional.  Public opinion seems strongly to favor allowing love to conquer all, including prejudices and governments, and wind is behind the movement and picking up force.

Reading the interview with Supreme Court Justice Ruth Bader Ginsburg in The New Yorker several weeks ago was unsettling.   She seemed to have misgivings about the Supreme Court’s decision in Roe v. Wade because the Court’s decision to protect the rights of women to decide to have an abortion was “ahead” of state action and some popular opinion.  She seemed to be arguing if the Court had decided more narrowly, then it would have given public opinion in the various states time to catch up, so to speak.

Personally, even though we know that virtually all major decisions of the Supreme Court are political acts (trust me, I could send you a list and it would start with Gore v. Bush), I would like the Justices to at least pretend it is all about the law, wouldn’t you?  If it is discrimination based on gender, then say so.  If  it  is a denial of equal protection for those in civil marriages to not have full rights everywhere on a national basis, then say so.  Please don’t tell me an unelected, appointed judge needs to put their finger out in the air on a state by state basis, wet it carefully with pursed lips, and then tell us which way the wind is blowing.  We know about the wind, sister, so tell us about the law.

Although it is rarely builds mass movements, it is important “to speak truth to power,” and surely if that can’t be done at the Supreme Court of the United States, then where can it be done.  On a grace note, ponder long time gay rights political strategist David Mixner’s comment on Clinton’s late life switch, which I found both important, moving, and powerful:

“The purpose of a movement is to change minds, but in some Stalinistic way to punish those who are not ideologically pure.  We created a safe place where he could change his mind.”

The most powerful argument that I have ever heard on this issue, and it was effective enough to get me right then and forever, was a comment made in reference to a friend wishing he had been able to find and live with happiness, whatever that might have been to him, and to have a relationship with someone, anyone, that would bring the kind of happiness that shared love can bring.  Who with an ounce of humanity can deny that to someone?  Certainly no one is this country where the “pursuit of happiness,” even if not its achievement is permanently enshrined in our fundamental principals.  I wish in fact the Supreme Court was willing to make the decision solely on that ground, that all Americans should be guaranteed the same pursuit of happiness without the restraints that others, more frightened and controlling, seemed determined to create under the fiction of law for their own narrow and immoral political gain.