The Supreme Court evades gay marriage

A judge's job is to judge. That's what we pay judges for— to render impartial judgment on contentious issues that the rest of us are too busy, or too biased, or too obtuse, or too gutless to decide wisely.

This elementary truth occurred to me last week as I watched most of our Supreme Court justices try to wriggle out of performing their jobs— in this case, to vote yea or nay on whether gay couples have a Constitutional right to get married.

"I just wonder if the case was properly granted," said Justice Anthony M. Kennedy.

"Have we ever granted standing to proponents of ballot initiatives?" asked Justice Ruth Bader Ginsburg, similarly seeking refuge in legal technicality.

"Same-sex marriage is very new,"; said Justice Samuel Alito, seeking refuge in social science, "but you want us to step in and render a decision based on the effects of this institution which is newer than cell phones or the Internet? I mean, we do not have the ability to see the future."

"[The plaintiffs] are really no more than a group of five people who feel really strongly that we should vindicate this public interest," said Justice Stephen Breyer, seeking safety in numbers.

"If the issue is letting the states experiment and letting the society have more time to figure out its direction," said Justice Sonia Sotomayor, "why is taking a case now the answer?"

Sued by Rizzo

The justices'; reluctance to decide a case before them reminded me of the one time I appeared in a courtroom as a defendant.

In 1982 Philadelphia's former mayor, Frank Rizzo, filed a libel suit against the Welcomat, the weekly Philadelphia paper that I edited. Rizzo had objected to the publication of an essay that grouped him with Hitler, Mussolini, George Wallace, Joe McCarthy and former Pennsylvania State Senator Milton Street— "all mediocre if not inferior men," wrote free-lance writer Noel Weyrich, "boosted to undeserved prominence by a wave of irrational fear and hatred." Rizzo responded by filing a libel suit for $11 million.

Had anyone else filed such a suit, it would have been thrown out immediately. As the Welcomat argued— in court briefs and in my editor's column— the essay in question constituted an expression of opinion about a public figure. Such expression is absolutely protected by the Constitution, no matter how offensive Rizzo may have found it.

Terrified to rule

But Rizzo cast a long shadow over Philadelphia's judiciary in 1982. He had been mayor from 1972 to 1980, when many of the city's Common Pleas Court judges had been elected. Many of those judges were former prosecutors who had worked with Rizzo before he became mayor, when he was a police officer and commissioner. As judges they could not rule against the law, but they were terrified to rule against Rizzo.

So, for four years we were unable to find a Philadelphia judge who would dismiss the suit on constitutional grounds. Rizzo's bizarre legal contention that the essay was presented as fact, rather than opinion, was deemed at least worthy of debate in a court of law.

When the case finally came up for trial in March 1986, the assigned judge recused— that is, disqualified— himself, explaining that Rizzo had once appointed him to the tax board and that Rizzo had campaigned for him when he ran for office. For nearly two months the case bounced around to other Common Pleas Court judges who similarly found legitimate reasons to recuse themselves.

The Valentine judge

Finally the case wound up in the courtroom of Bernard Goodheart, a judge known to most Philadelphians (if at all) for his appealing surname and his practice (related to his name) of performing courtroom weddings on Valentine's Day. Goodheart too had legitimate reasons to step aside— on both sides of the case, in fact: On the one hand, he had worked with Rizzo as a prosecutor; on the other hand, he had run on an anti-Rizzo ticket in 1975, and his son was a classmate and friend of my daughter's at Germantown Friends School.

On those grounds, Rizzo's lawyer asked Goodheart to recuse himself. But Goodheart declined to so. As best he could, he assured Rizzo's lawyer that he had the highest regard for Rizzo. Then he uttered words that I've never forgotten.

"I did not ask for this case," Judge Goodheart said. "I do not want this case. I wish this case would go away. But this is my job." At last— a judge who understood that his job was to try cases, not to avoid them.

'This is America'

In case you're wondering: Rizzo's lawyer took a day and a half to present his case. When he was done— and before we had presented the case for the defense— Goodheart announced that he would not "do what judges usually do— defer adjudication and go back in my robing room or up to my office." Instead, he dismissed Rizzo's suit then and there.

"My decision is, that which was written by Mr. Weyrich was opinion which was constitutionally protected," he said. " . . . I have my personal feelings about the press in this town, how they have treated judges, how they have treated Mr. Rizzo and others, and I think we who are public figures are in an unfair position. We are defenseless . . . we cannot respond, but this is America . . . We have an open society."

For the blessings of an uncluttered mind— at any level of the judicial system— dear Lord, make us truly grateful.♦


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