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Op-Ed: Supreme Court Justices Erudite not Just Political Party Pundits

By Karen Edwards     Mar 28, 2013 in Science
All the evidence is in. Now the final analysis begins. So just how did the Court fare with respect to its language, tone and intent when discussing LGBTQ+ rights and other issues?
Overall the Supreme Court of the United States (SCOTUS) deserves high marks indeed after two rather intense days of oral arguments. The SCOTUS justices proved erudite and not just pundits of their respective political parties as some feared.
Edith Schlain Windsor's scoring system is perhaps the best indicator of all when specifically measuring the qualitative language, tone and intent of the legal proceedings on at least that one particular participant.
According to the BBC News; Windsor is quoted outside the Court as saying "The justices were gentle. I didn't feel any hostility."  She also exuberantly added "I think it's going to be good."
Windsor is the executor of the estate of Thea Clara Spyer and as the chief recipient of the estate's holdings Windsor was required by federal law to pay more than $350,000 in US inheritance taxes after the death of her spouse back in 2009.
That sum would not have been levied against the estate if the couple's legal and state endorsed marriage was also officially recognized by the US government as a legitimate marriage.
Presently under the 1996 Defense of Marriage Act (DOMA); a union between one LGBTQ+ person and another of the sane gender even if legally sanctioned by a state in the US union as a marriage is not defined as marriage by the federal government.
Therefore not only are certain rights and privileges usually accorded to legally sanctioned married persons of non-LGBTQ+ and LGBTQ+ opposite gender unions denied to similarly married LGBTQ+ same gender couples by law; certain penalties are exacted inadvertently or otherwise against such married LGBTQ+ same gender couples by default.
LGBTQ+ is a term I recently coined by which we may more precisely, accurately and neutrally describe sentiments of folks towards those identified as lesbian, gay, bisexual, transgender, transexual, third sex, queer or questioning plus those similarly identified under other acronyms elsewhere domestically and in non-European based cultures.
However not all persons germane to the proceedings even when not in attendance left the Court as unscathed as Windsor.
Chief Justice John Roberts ripped US President Barack Obama a new one.
Clearly referencing the President in the United States v. Windsor case; Roberts responded in harsh tones just that once to Court appointed Amicus Curise Vicki Jackson, Esq. "I would have thought your answer would be that the Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution.  And if he has made a determination that executing the law enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statue, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice."
Later, Roberts actually complimented Jackson and thanked her for her contribution. Yet it is a good thing that neither Chief Justice Roberts or President Obama are petty people just human and like each of us subject to temporal displays of human annoyance and frustration not advocates for the holding of grudges.
Also noteworthy from a social science perspective was the Court's less conspicuous but very effective use of the best linguistic descriptors available at the time when discussing LGBTQ+ issues this week.
Alas the Court was not privy to the nomenclature I use here. The term LGBTQ+ with its associated variants of Pro-LGBTQ+, Anti-LGBTQ+ and now Non-LGBTQ+ just made its debut here curtesy of Digital Journal earlier this week.
Instead the Court relied heavily on the terms "same sex" and "homosexual" as its preferred descriptors. These are the popular terms as a social scientist I might have recommended or perhaps the less popular, more neutral "same gender" and "single gender" if I had not recently worked out a new construct and vocabulary based on new insights into the theoretical biases, incendiary undertones and sexist implications still embedded in the prevalent theories regarding the diverse range of sentiments that folks express towards the LGBTQ+ community, behaviors and practices.
I choose to forgo the use of the terms homosexual and same sex even though both are legally and biologically accurate as well as precise in deference to the individual psychology of intersex, transgender, transexual and third sex folks. Also, there is a perceived historical stigma attached to such terms as well as current questions surrounding the primacy of sex in such intimate relations.
The Court should also be commended for its deliberate and repeated use of the term "animus" during both legal proceedings instead of joining and hence perpetuating the confusion and downright bad feelings unnecessarily engendered when using terms such as homophobia, homomisia, and anti-gay as presently defined when describing dissenting support for the LGBTQ+ community, behaviors and practices.
Alas, the same can not be said of all the attorneys litigating the cases. But to these folks credit; these same attorneys struggled valiantly to tackle tough sociological and psychological questions posed to them by the justices that even we who are experts in the field have yet to master.
The rationale behind folks' sentiments whether animus or not does indeed matter legally and bears directly on the legality of DOMA.
The quintessential social science question arising from these legal proceedings, however, came from Justice Anthony Scalia.
He asked "And -- and so there has been this sea change [apparently referring to Congress' as well as the public's attitudes toward LGBTQ+ folks] between now and 1996 [when DOMA was enacted]?
But the treasured social science response eclipsing the very question itself came from Roberta Kaplan, Esq. respondent for Windsor.
"I think with respect to the understanding of gay people and their relationships there has been a sea change. Your honor."
What a difference 12-13 years can make with respect to the research and our understanding which of course is still developing. Learning curves do indeed have exponential areas of growth as well as long periods of stagnation.
Lastly another important take away from a social science perspective has been the importance of different types of jurisprudence.
Most noteworthy; the justices clearly compared and contrasted the law with other fields of knowledge including most notably the social sciences.
The purpose of drawing attention to this type of jurisprudence is to enlighten each field of knowledge by sharing theories, research and practice proven important in advancing essential features of the compared disciplines.
In this particular regards and others; the Supreme Court of the United States did us quite proud.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
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