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Opinion: Supreme Court shouldn't fear 'uncharted waters' in Prop. 8 case

Posted by Angela Nelson, Staff  March 26, 2013 03:55 PM

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By Robert Trestan, regional director, Anti-Defamation League New England and Eastern states civil rights counsel

Throughout our nation’s history, laws that disadvantaged or degraded particular groups have been justified by resorting to morality and religion. And time and again, our society has eventually come to see those laws as repugnant, and the religious and moral disapproval justifying them as little more than a means to enshrine the status quo. California’s Proposition 8 is no different.

Like the moral and religious justifications for slavery, segregation, interracial marriage bans, and laws restricting women’s roles in public life, objections to marriage equality are proving ephemeral. Throughout American history, the pattern is clear: Laws that now seem preposterous were defended—and often extolled—in their day on grounds of religious and moral disapproval. This was true of slavery, segregation, interracial marriage and the right of women to vote. It is not surprising that the tide of public opinion has been turning - and the majority’s religious and moral disapproval of marriage equality is receding. As new generations with different experiences arise, LGBT individuals are steadily gaining greater public acceptance.

Judging by the diverse coalition of different faiths who have filed briefs opposing Proposition 8, there are clearly also religious voices that strongly oppose Prop 8. There are religious arguments on both sides of this equation – all the more reason why the Court should not rely on such arguments.

It is difficult to predict what the Supreme Court will do, but if today’s argument is an indication of what to expect in June, the Justices may reject a law that strips Californians of their state right to a civil marriage, and call it a day – leaving much of the country in limbo. That would be a step in the right direction, but would leave considerable uncertainly outside California, and many battles still to be fought.

The ``uncharted waters,’’ that Justice Anthony Kennedy raised during today’s argument should not be feared. Equality for the LGBT community can be found in the “unchartered waters.” Indeed, many of the Supreme Court’s finest hours have come when the Justices have waded into such waters and sought out and reminded us all of the basic principles of equality and fairness that lie at the core of the American experiment. Let’s hope the justices use this case to do that again. Ultimately, we are confident that justice in America means justice for all.

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