Supreme Court pursues pragmatism, not justice in LGBTQ rights

Published: March 27, 2013

The Supreme Court of the United States, if oral arguments heard on Tuesday and Wednesday are an indication, is not likely to expand civil and human rights for LGBTQ Americans in all 50 states.

It reflects pragmatism, not justice.

Polls show increasing support among Americans for marriage equality. Telling Alabama, Mississippi, or Kentucky, however, that they must recognize same-gender marriage might set off a worse reaction than the government banning gun ownership and attempting to confiscate firearms.

The court is probably sensitive to the social and cultural reactions to a 50-state solution. Currently, 38 states ban same-gender marriage. Reality trumps fairness.

In a case heard Tuesday, justices expressed reservations about moving too soon, too fast on permitting marriage for same-gender couples throughout the country. The opinion issued from the bench, probably in mid-summer, likely will be narrow and stay contained to California’s ballot initiative restricting marriage.

Wednesday’s hearing pertained to the Defense of Marriage Act. It carries less socially charged baggage since the issues involve economic benefits, not undermining a so-called sacred institution thus potentially toppling civilization. In comparison, emotions are less intense and more rational.

Economic fairness is less threatening and deals with something as mundane as taxes and paying less of them, which most Americans support.

This does not mean the court will rule the entire act unconstitutional. It is possible the court will narrowly balance limited federal benefits while reserving a determination for a future case regarding what rights the US Constitution guarantees for LGBTQ citizens.

In each case, the court’s cautious approach underscores how social constructs can make justice fickle, illusive, and subjected to social and political pressures. There is injustice when the opinions of a majority determine the rights of those who seem different, especially when their rights would not threaten anyone’s marriage or personal well-being in the ruling majority.

Pure justice does not translate into “what the majority wants, the majority gets.” One of the fundamental hallmarks of justice is protecting the rights of a minority against the tyranny of the majority.

Segregation in the South is one such example. The court determined the white majority could not impose its definition of equal on black and African Americans in the South.

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