by Valerie Verkamp
Landmark assistant editor
Since a June ruling by the U.S. Supreme Court in which a majority of justices held that excluding same-sex couples from the right to marry was in violation of their constitutional right, same-sex marriage has been brought to the forefront, including on the local stage. The Platte County Recorders Office
confirmed this week for The Landmark that a handful of same-sex couples have applied for a marriage license in Platte County.
Mark Graber, PH.D, a guest speaker at Park University's Constitution Day event, said he is inclined to say that marriage equality is progress worth celebrating, but says the landmark ruling deserves merely one-and-a-half cheers.
According to Graber, there are several distinct reasons why Americans, specifically Progressives, should give pause following the notable 5-4 vote.
During 1875 to 1967, he says Congress acted in its capacity to empower the Supreme Court with the authority it has today to interpret law. He says the Supreme Court uses its power in a very interesting way.
Over the past four decades, the rulings handed down by the nine justices on the Supreme Court increasingly represent the interests of the elite, rather than the interest of less fortunate Americans, said Graber. He also argues that the beliefs between these classes are increasingly becoming measurably different.
During 1930 to 1968, there was very little to no difference between the Democrats and Republicans on many hot button issues, including birth control and gun rights, argued Graber.
But on nearly every issue today, Graber said “Democrats are liberals, Republicans are conservatives.”
“Over and over again, the most liberal Republican in Congress is more conservative than the most conservative Democrat in Congress,” he said.
In the late 19th century, Graber said it was commonplace to believe that the courts should to be the voice of the constitution. “Now, we have two ideological parties that believe they are the best voice of the constitution. The gridlock from the opposing side prevents either side from taking the power back or changing the constitutional order,” he said.
In conjunction with the gridlock, he says “the wrong side” comes out ahead. Graber said the court is listening to the “most powerful people.”
He also argued that legal elites in different parties agree with each other more often than they agree with non-lawyers of their own parties.
“It has become part of politics, whether progressive or conservative, where affluent Americans can go out there alone and achieve their goals through the Supreme Court, while those less fortunate must go through ordinary politics without the support of people who would ordinarily be their coalition in politics.”
To change this occurrence, he suggested the poor, people of color, and laborers become a united coalition to become a stronger voice.
“Unlike the 19th Century, we have a permanent divided government. Neither party has gained the control over the national government that enables them to operate the constitution as they see fit. So one result is we have all the institutions of the 20th Century without the politics that make those institutions make sense.”
Another reason Progressives should “temper their enthusiasm” following the ruling of Obergefell v. Hodges, said Graber is the sheer random nature of the Supreme Court.
Graber said law handed down in Supreme Court's rulings is quite random and could have easily turned out another way given a variety of variables. A medical condition that requires a liberal justice to leave the bench while a conservative president is in office and the unpredictability of an election are examples of how random acts significantly impact the Supreme Court and rule of law.
“We can come up with all sorts of reasons why randomness isn't good,” he said.