Constitutional Law, Gay, Gay Marriage, Law Schools, SCOTUS, Supreme Court

Law Students Show Themselves As The Smartest People Out On First Street

Yesterday, the Supreme Court heard arguments on California’s Proposition 8. Today, they’re hearing oral arguments about the Defense of Marriage Act. If you didn’t already know that, you’ve reached the wrong website, Brazzers is thataway.

High-profile Supreme Court cases attract large numbers of protesters who congregate on First Street, and yesterday was no different. Honestly, I don’t know why. I guess seeing gay people in drag humping each other makes for good television. I guess filming some dour-looking woman who appears to be locked in a loveless, frumpy marriage is a fine way to establish the “conservative” side of the argument. That stuff may work on your average “I must find out where my people are going so I can lead them” Congressperson. But I’m positive that nine unelected judges appointed for life who think this “institution” of gay people loving each other in committed relationships is “newer than cellphones” don’t give a damn about the shenanigans on the courthouse steps.

If these protests are useful, they’re useful to make a point to the media and those watching from home about the issues at play. Towards that end, a group of five law students staged a protest that really added something to the discussion here that even most talking-head court watchers didn’t bring up. Of course, it’s a point that went way over the heads of at least 90 percent of the television audience…

As we mentioned in Non-Sequiturs last night, five Georgetown Law students staged an unconventional protest yesterday. From the DCist:

And then there were the five law students who weren’t there to argue the merits of striking down California Proposition 8, but to quibble with the Supreme Court itself over the legal procedure the justices will apply in their ruling.

The students, all from the Georgetown University Law Center, are mad that the court will review the arguments in Hollingsworth v. Perry using rational basis, the most lenient form of judicial review in the U.S. court system.

First of all, GULC protesters, I love you. You have used a public demonstration to highlight an overlooked issue, that’s what public demonstrations are for. Henry David Thoreau is smiling up on you. I hope to meet some of you when Lat and I speak at Georgetown (tomorrow, Thursday, at 12:15 p.m., in the gorgeous Hotung 2000 room).

Second, the sentence “And then there were the five law students who weren’t there to argue the merits of striking down California Proposition 8, but to quibble with the Supreme Court itself over the legal procedure the justices will apply in their ruling” is as good an example as any of why we can’t have nice things in America.

I’m not slamming the DCist here, who at least noticed this student protest, I’m slamming the media in general (myself occasionally included). We run around saying, “OMFG, Did Justice Kennedy watch The Birdcage last night? MORE AFTER THE BREAK!” We focus on battles, we focus on ideology, because it works for ratings during Presidential campaigns. But the hard work of governing (or in this case, judging) involves getting down into the muck with issues like tiers of scrutiny.

Here, applying rational basis instead of strict scrutiny is kind of a big deal. Some commentators did note that the phrase “civil rights” didn’t come up during oral argument either. And then you have Scalia’s declaration that prohibiting interracial marriages “became unconstitutional” with the passage of the 14th Amendment, yet apparently not agreeing that prohibiting gay marriage became unconstitutional at the exact same time. You add it all together, and it certainly seems like the Court isn’t viewing this issue as a matter of fundamental civil or human rights.

WHICH SEEMS IMPORTANT TO ME. It seems at least marginally more important than whether or not Justice Kennedy seemed fidgety.

And, to tie the room together, if we’re going to be standing on courthouse steps screaming about something, yelling “Hey, maybe the state should need a really good reason for discriminating against an entire people” at least hits them where they live. It’s at least a legal argument, not a political argument (which should be made across the street at the Capitol, perhaps outside of Saxby Chambliss’s office).

It’s not even that hard to put on a sign. Get some poster-board and write:

Is Not


Law Students Offer Most Obscure Supreme Court Protest [DCist]

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