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 8:21 AM EDT, Mon September 1, 2014
Carlos Moreno says atheists, a sizable fraction of Americans, deserve representation in Congress.
updated 12:25 PM EDT, Sun August 31, 2014
Julian Zelizer says Democrats and unions have a long history of mutual support that's on the decline. But in a time of income inequality they need each other more than ever
updated 12:23 AM EDT, Sun August 31, 2014
William McRaven
Peter Bergen says Admiral William McRaven leaves the military with a legacy of strategic thinking about special operations
updated 12:11 PM EDT, Fri August 29, 2014
Leon Aron says the U.S. and Europe can help get Russia out of Ukraine by helping Ukraine win its just war, sharing defense technologies and intelligence
updated 1:24 PM EDT, Fri August 29, 2014
Timothy Stanley the report on widespread child abuse in a British town reveals an institutional betrayal by police, social services and politicians. Negligent officials must face justice
updated 9:06 PM EDT, Fri August 29, 2014
Peter Bergen and David Sterman say a new video of an American suicide bomber shows how Turkey's militant networks are key to jihadists' movement into Syria and Iraq. Turkey must stem the flow
updated 11:54 AM EDT, Mon September 1, 2014
Whitney Barkley says many for-profit colleges deceive students, charge exorbitant tuitions and make false promises
updated 10:34 AM EDT, Fri August 29, 2014
Mark O'Mara says the time has come to decide whether we really want police empowered to shoot those they believe are 'fleeing felons'
updated 10:32 AM EDT, Thu August 28, 2014
Bill Frelick says a tool of rights workers is 'naming and shaming,' ensuring accountability for human rights crimes in conflicts. But what if wrongdoers know no shame?
updated 10:43 PM EDT, Thu August 28, 2014
Jay Parini says, no, a little girl shouldn't fire an Uzi, but none of should have easy access to guns: The Second Amendment was not written to give us such a 'right,' no matter what the NRA says
updated 1:22 PM EDT, Sat August 30, 2014
Terra Ziporyn Snider says many adolescents suffer chronic sleep deprivation, which can indeed lead to safety problems. Would starting school an hour later be so wrong?
updated 9:30 AM EDT, Fri August 29, 2014
Peggy Drexler says after all the celebrity divorces, it's tempting to ask the question. But there are still considerable benefits to getting hitched
updated 2:49 PM EDT, Fri August 29, 2014
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
updated 6:42 PM EDT, Tue August 26, 2014
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
updated 9:21 AM EDT, Wed August 27, 2014
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
updated 9:19 AM EDT, Wed August 27, 2014
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
updated 7:35 PM EDT, Tue August 26, 2014
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
updated 4:53 PM EDT, Tue August 26, 2014
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
updated 3:19 PM EDT, Tue August 26, 2014
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
updated 11:58 AM EDT, Tue August 26, 2014
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
updated 3:50 PM EDT, Mon August 25, 2014
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
updated 4:52 PM EDT, Mon August 25, 2014
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
updated 5:04 PM EDT, Mon August 25, 2014
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
updated 5:45 PM EDT, Fri August 22, 2014
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT