Marriage Equality And The Injustice Of The Judicial Stay

marriage equality


Lawrence O’Donnell does not like Bill O’Reilly. True, that can be said of a lot of people, including Keith Olbermann, who regularly made “Bill O” his show’s Worst Person In The World, everyone in my Twitter feed, and well, me. But it was Lawrence who called out Bill O’Reilly on The Last Word this week, and in doing so, he taught me something I never knew.

We learned about the Holocaust in seventh grade history. My dad fought in World War II, piloting a plane that dropped bombs on German factories, so I knew a little about the war, but I swear I had never heard about the concentration camps before that seventh grade history class. It was quite a shocking revelation. I read the page over three or four times trying to get my mind around the horror, and to this day, I remember the picture that accompanied that lesson. It was of American soldiers being hugged by skeleton thin men in striped clothing as they came through the gate to one of the camps.

I have always thought that the good American soldiers threw open that gate and everyone was free. End of story. Had I stopped and thought about the logistics of returning hundreds of thousands of displaced people, what Lawrence said on his show to attack Bill O’Reilly’s new book Killing Hitler, might not have come as such a surprise. Lawrence quoted Patton, calling Jews “animals” and saying American guards had taken over for Nazi guards at the camps, but other than that, very little had changed. I admit I had a visceral reaction to the idea of Americans guarding Jewish prisoners. How long did that go on for? How long would that be morally permissible?

My answer was, as short a time as possible.

Whenever an injustice is being corrected, it should always be done in as short a time as possible. and when it isn’t, the delay itself is a second injustice. Think about the aftermath of the Civil War. When slaves became free men, what was the proper amount of time to allow these free men equal rights? The answer should have been, as short a time as possible, but it took 100 years. And every one of those years was a second injustice. Men and women lived their entire lives waiting to be treated as free and equal citizens.

When a child is kidnapped from his parents and recovered a year later living with a couple who thought they had legally adopted him, what amount of time is morally permissible before returning that baby to his biological parents? As short a time as possible. Any delay is a second injustice.

We just witnessed the correction of an injustice when Don’t Ask Don’t Tell was ended. What was the morally acceptable amount of time to allow gay soldiers to collect spousal benefits? As short a time as possible, which is why there was such an outcry over every state that didn’t immediately comply. A same-sex spouse not recognized at her wife’s funeral, could there be a bigger second injustice?

And now, one by one, the states are being told they are in violation of the U.S. Constitution by not allowing their gay and lesbian citizens to marry. What is the morally acceptable time before those couples begin to be recognized? As short a time as possible. Any delay beyond that is a second injustice.

I would argue, we are at that time.

Tomorrow is the First Monday in October – the first day of the new Supreme Court session. If the justices do not announce tomorrow that they will hear a same-sex marriage case this term, I think it is time for all the couples who have won the right to marry in their states to go back to court, and to ask that the stays imposed on those decisions be lifted, because any further delay is a second injustice. Right now, just as in the years after the Civil War, men and women are living their entire lives, waiting to be treated as free and equal citizens – waiting to marry the person they love in states where same-sex marriage bans have been declared illegal.

Supreme Court Justice Antonin Scalia teased an audience this week with the insider information that the Court would take up same-sex marriage “soon”. He even said he knew when, which leads me to believe the justices have internally decided on which case(s) they want to hear. Perhaps it is a case that has not yet been appealed to the Court, which is the only reason I can think of to delay, because for the court to dither now is a second injustice imposed on gay and lesbian couples whose lives are ticking by.

Every Federal Appeals Court decision upholding same-sex marriage rights eventually granted a stay – allowing for the presumption that states deserve to preserve the status quo until the Supreme Court rules. If the Supreme Court does not do that in as short a time as possible – and that means this term – I think every couple waiting on the high court should ask that the stays be lifted. And if they are turned down, they should ask again and again and again. They should argue since the Supreme Court did not choose to weigh in, the presumption should be that the Appeals Courts’ decisions should be implemented. Let the states be the ones waiting on the Supreme Court. Until then, let the citizens enjoy the rights the courts have all ruled they have.

At this point, any delay is a second injustice.


Feature photo via Facebook


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