Skip to main content

Gridlock at the Supreme Court

By Marshall Sonenshine, Special to CNN
updated 10:14 AM EDT, Sat June 29, 2013
Supreme Court Justice Antonin Scalia speaks at the American Enterprise Institute last year. He dissented on ending DOMA.
Supreme Court Justice Antonin Scalia speaks at the American Enterprise Institute last year. He dissented on ending DOMA.
STORY HIGHLIGHTS
  • Marshall Sonenshine: Equality won for same-sex marriage, but it was far from a slam dunk
  • In 1967, court ruled 9-0 in Loving that interracial marriage ban was unconstitutional
  • He says Loving had legal and moral clarity; Windsor case at 5-4 vote was politically charged

Editor's note: Marshall Sonenshine was executive producer of the award-winning HBO film "The Loving Story" about the 1967 interracial marriage Supreme Court case of Loving v Virginia, a key precedent on which Windsor relies. He is a lawyer turned investment banker.

(CNN) -- Champions of equal protection had their day in court -- but it was a highly politicized day in the Supreme Court. Unlike the 1967 interracial marriage case of Loving v. Virginia, the gay rights decision in United States v. Windsor, while also a victory for civil rights, is not a moment of legal clarity or coherence. In court politicization, Windsor is closer to Bush v. Gore.

How cases end matters. The Loving case, at 9-0, was a victory for civil rights wrapped in a moment of Supreme clarity; 5-4 Windsor is a victory wrapped in a Supreme food fight.

Almost a half-century ago, Chief Justice Warren delivered a unanimous decision of the United States Supreme Court, invalidating state laws prohibiting interracial marriage. Sixteen states maintained such laws, including Virginia.

Marshall Sonenshine
Marshall Sonenshine

Loving invalidated laws banning interracial marriage. Windsor invalidated federal law denying benefits to homosexual couples married in states permitting same-sex marriage. A comparison of the two cases reveals how divided and divisive our court is today.

Richard and Mildred Loving were a mixed-race couple validly married in the District of Columbia, who upon returning home to Virginia faced continuing arrest and harassment by local police for violating Virginia's miscegenation laws.

After a decade-long cat-and-mouse game with the local authorities and a parallel odyssey through Virginia courts, the Lovings were vindicated when a unanimous Supreme Court held that state miscegenation laws were unconstitutional since they "rest solely on distinctions drawn according to race" and have "no legitimate overriding purposes independent of invidious racial discrimination which justifies this classification." The court held marriage to be among the "basic civil rights" that no state can infringe. Doctrine was born.

Sullivan: Incredibly long struggle
1 In 10 couples interracial

Several years ago, the documentarian Nancy Buirski asked me to executive produce "The Loving Story," a documentary film chronicling a civil rights story and a love story. HBO co-produced the film. America loved Loving, with its legal and moral clarity. The film was a top performer at the 2011 New York Tribeca Film Festival. HBO began airing it on television on Valentine's Day 2012. This year the film won a Peabody.

Loving v. Virginia was notable for its coherence as the court's resolution of a legal odyssey. Today's legal culture includes conservative judges accusing jurists of partisanship at every turn, even the hardest cases. Call it Supreme Gridlock.

The dissent in Windsor excoriates the majority as "hungry" to grandstand in a case it claims was never properly before the court -- ignoring that Edith Windsor had won a judgment for an estate-tax refund that the U.S. government refused to honor unless the Supreme Court would invalidate the Defense of Marriage Act. Justice Antonin Scalia was wedded to his technicalities and indifferent to Ms. Windsor's equities.

The dissent slams the majority for "rootless and shifting" reasoning and claims the majority views DOMA's supporters as having "hateful hearts," a politicized barb at odds with the muted language with which the majority duly inspected the legislative purpose of DOMA.

Scalia is erudite but dead wrong in claiming, "In the majority's telling, this story is black and white. Hate your neighbors or come along with us." Come again? DOMA said the federal government could declare the validly married same-sex couple next door unqualified for any federal benefits extended to married heterosexual couples. And the court's majority is mongering hate?

Joining the politicized dissent is Justice Samuel Alito: "The family is an ancient and universal human institution" and "changes in family structure and in the popular understanding of marriage and the family can have profound effects." One struggles to rest much on these generalities. Similarly one would struggle to rely much on the broad intonations of the overruled state court judge in Loving:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."

The entire 1967 court could spot poppycock when it saw it. Chief Justice Earl Warren, concerned with precedent more than politics, probably nonetheless had to do some arm twisting to get unanimity, but he got it. In 2013, by contrast, a virulent dissent offers new polemics -- and then accuses the majority of being politicized.

Loving ended with legal and moral clarity. The New York Times headline read, "Justices Upset All Bans on Interracial Marriage, 9-0 Decision Rules." Windsor ended with, well, democracy still working its virulent ways, including at the court, whose members of its right flank were knitting angrily in their chambers. The dissent reaches for judicial temperament but unleashes judicial temper.

Perhaps it is time for a new documentary, "The Windsor Story." This one too will have a happy ending for the original petitioners, but this time told through the lens of Supreme Gridlock.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Marshall Sonenshine.

ADVERTISEMENT
Part of complete coverage on
updated 8:42 AM EDT, Mon August 18, 2014
The former U.K. prime minister and current U.N. envoy says there are 500 days left to fulfill the Millennium Goals' promise to children.
updated 9:10 AM EDT, Mon August 18, 2014
Julian Zelizer says the left mistrusts Clinton but there are ways she can win support from liberals in 2016
updated 7:49 AM EDT, Tue August 19, 2014
Peter Bergen says the terror group is a huge threat in Iraq but only a potential one in the U.S.
updated 1:34 PM EDT, Sat August 16, 2014
Mark O'Mara says the way cops, media, politicians and protesters have behaved since Michael Brown's shooting shows not all the right people have learned the right lessons
updated 11:23 AM EDT, Sun August 17, 2014
Retired Lt. Gen. Mark Hertling says the American military advisers in Iraq are sizing up what needs to be done and recommending accordingly
updated 3:41 PM EDT, Fri August 15, 2014
Marc Lamont Hill says the President's comments on the Michael Brown shooting ignored its racial implications
updated 5:46 PM EDT, Fri August 15, 2014
Joe Stork says the catastrophe in northern Iraq continues, even though many religious minorities have fled to safety: ISIS forces -- intent on purging them -- still control the area where they lived
updated 6:26 PM EDT, Thu August 14, 2014
Tim Lynch says Pentagon's policy of doling out military weapons to police forces is misguided and dangerous.
updated 9:15 AM EDT, Fri August 15, 2014
S.E. Cupp says millennials want big ideas and rapid change; she talks to one of their number who serves in Congress
updated 7:57 PM EDT, Thu August 14, 2014
Dorothy Brown says the power structure is dominated by whites in a town that is 68% black. Elected officials who sat by silently as chaos erupted after Michael Brown shooting should be voted out of office
updated 7:49 AM EDT, Thu August 14, 2014
Bill Schmitz says the media and other adults should never explain suicide as a means of escaping pain. Robin Williams' tragic death offers a chance to educate about prevention
updated 11:05 AM EDT, Fri August 15, 2014
Nafees Syed says President Obama should renew the quest to eliminate bias in the criminal justice system
updated 4:24 PM EDT, Thu August 14, 2014
Eric Liu says what's unfolded in the Missouri town is a shocking violation of American constitutional rights and should be a wake-up call to all
updated 3:22 PM EDT, Wed August 13, 2014
Neal Gabler says Lauren Bacall, a talent in her own right, will be defined by her marriage with the great actor Humphrey Bogart
updated 6:56 AM EDT, Fri August 15, 2014
Bob Butler says the arrest of two journalists covering the Ferguson story is alarming
updated 4:35 PM EDT, Wed August 13, 2014
Mark O'Mara says we all need to work together to make sure the tension between police and African-Americans doesn't result in more tragedies
updated 4:06 PM EDT, Mon August 18, 2014
Pepper Schwartz asks why young women are so entranced with Kardashian, who's putting together a 352-page book of selfies
updated 7:08 PM EDT, Wed August 13, 2014
Michael Friedman says depression does not discriminate, cannot be bargained with and shows no mercy.
updated 8:51 AM EDT, Tue August 12, 2014
Mary Allen says because of new research and her own therapy, she no longer carries around the fear of her mother, which had turned into a generalized fear of everything
updated 3:59 PM EDT, Tue August 12, 2014
Gilbert Gottfried says the comedian was most at home on the comedy club stage, where he was generous to his fellow stand-up performers
updated 4:54 PM EDT, Tue August 12, 2014
Iris Baez, whose son was killed by an illegal police chokehold, says there must be zero tolerance for police who fatally shoot or otherwise kill unarmed people such as Michael Brown
updated 8:46 AM EDT, Tue August 12, 2014
Maria Cardona says as he seeks a path to the presidency, the Kentucky Senator is running from his past stated positions. But voters are not stupid--and they know how to use the internet
updated 10:19 PM EDT, Tue August 12, 2014
Gene Seymour says the shock at the actor and comedian's death comes from its utter implausibility. For many of us over the last 40 years or so, Robin Williams was an irresistible force of nature that nothing could stop.
updated 3:51 PM EDT, Tue August 12, 2014
Soledad O'Brien says the story of two veterans told in a documentary airing on CNN shows the challenges resulting from post-traumatic stress
updated 11:25 AM EDT, Tue August 12, 2014
LZ Granderson says we must not surrender to apathy about the injustice faced by African Americans
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT