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Diary Of A Supreme Court Justice


a week of serious stress

Received: 13Mar2004

MONDAY: I can see it coming. They are going to ask us to unravel a mess that the states have created. We cannot win. If we rule one way, some will accuse us of legislating from the bench. If we rule the opposite way, we will be labeled as opponents of human rights.

TUESDAY: My predecessors had it easy. When they first ruled on the Constitutional clause "All men are created equal", they decided that the word "men" meant white males. The language about a self evident truth and unalienable Rights didn't cause them to take a broader interpretation. Those were the days.

WEDNESDAY: More recent predecessors, I expect with some reluctance, decided that the word "men" didn't mean "white males" after all; it just meant "males". Apparently, no temptation for a broader interpretation. Amazing! Well, maybe not; after all, it was 136 years ago.

THURSDAY: Even more recent predecessors, perhaps with no reluctance, decided that "men" meant "persons". I would have been proud to be part of that group. I can't conceive of my wife not being able to vote. I guess, in the good old days before 1920, males handled all the deep thought and heavy lifting.

FRIDAY: But now the circus begins. States have passed laws that seem to contradict that interpretation by allowing only certain gender pairs to be eligible for a government-issued certificate. Clearly, if this is the will of the people, the US Constitution needs amending. I sure hope that they do it soon. Otherwise, I can imagine many cases coming before us. As a Boston demonstrator's placard read: "If gay and lesbian people are allowed to have equal rights, then everyone will want them".

SATURDAY: What if one member of a same sex couple, having been refused a marriage license, gets surgically modified to be partner-complementary; how are we going to rule on that one? Would it be easier if the Constitutional clause were amended to: "All heterosexuals are created equal"?

SUNDAY: What if a zealot at some city hall refuses to grant a license to Chris and Andi and demands on-the-spot proof that they are capable of reproduction? How are we going to rule on that invasion of privacy case?