Saturday, June 27, 2015

The Obergefell Decision As A Teaching Moment

Some think that this week's Obergefell v. Hodges (2015) Supreme Court decision is a "teaching moment" arising from a great victory. Such a decision by the Supreme Court when considered in a school environment needs significant context and discussion.

Fortunately, it is relatively easy to put it in context by comparing it to Brown v. Board of Education (1954).

In 1954 reporters who observed the Supreme Court in the Brown case were surprised by the 9-0 unanimous decision. Prior to the ruling, there were reports that the court members were sharply divided and might not be able to agree. The attendance of Justice Robert H. Jackson who had suffered a mild heart attack and was not expected to return to the bench until early June 1954 was also a surprise. Perhaps to emphasize the unanimity of the court, Justice Jackson was in his assigned seat when the court convened.

In the 2015 Obergefell case this week the Supreme Court ruled 5-4.

The signficant difference between the Brown and Obergefell decisions with regard to the Supreme Court is clear and can be taught:
  • In Brown even those justices who had reservations about the legal basis for the decision recognized that it was the morally right thing to do.
  • In the Obergefell decision there was barely a majority of the justices who thought it was the right thing to do and the expressions of some of the dissenting justices reflect deeply felt moral outrage at the majority's ruling.
Enforcement of the Brown decision in some places took federal military intervention - it was an extension of the Civil War and Reconstruction. Brown was about American children having a right to the equal protection of the law in order to access the benefits of a somewhat equal education in a public school system regardless of race.  Yet that goal has never been achieved in the nation, not even in California.

Brown required continued legal intervention in all parts of this country to achieve compliance and was replaced with defacto school segregation based upon the "localness" of school districts continuing to this day. Racial discrimination, indeed even hatred, continues also.

Obergefell is about two adults having a right to the equal protection of the law in order to access the benefits arising from a state-issued marriage license. The decision is the right thing to do. But it is not going to make the homophobia go away. The issue couldn't even draw the vote of a sixth justice as the Obamacare ruling did earlier in the week.

Plans are already being made in some parts of the nation to resist same sex marriage because of homophobia, in many cases rising to the level of hatred. Even Obamacare creates anger, as the "conservatives" are already planning their continued efforts to undo the law.

The real teaching opportunity here can be found in the opinions of the four justices dissenting from the Obergefell ruling, both their written legal ones plus their prior and subsequent verbal ones. In the end, could it all be about people wanting to look down upon and wanting to feel superior to others, even to the point of systemically denying access to health care to other "lessor" human beings?

Regarding the Obergefell ruling, don't we need to consider how the institutionalized basis of homophobia evolved, which revered writings advocate that prejudice? And how do you explain that in a public elementary school environment?