The Ennead Awards: Nine Justices, Nine Prizes

A same-sex marriage supporter waves a rainbow flag in front of the US Supreme Court on March 26, 2013 in Washington, DC, as t
A same-sex marriage supporter waves a rainbow flag in front of the US Supreme Court on March 26, 2013 in Washington, DC, as the Court takes up the issue of gay marriage. The US Supreme Court on Tuesday heard arguments on the emotionally charged issue of gay marriage as it considers arguments that it should make history and extend equal rights to same-sex couples. Waving US and rainbow flags, hundreds of gay marriage supporters braved the cold to rally outside the court along with a smaller group of opponents, some pushing strollers. Some slept outside in hopes of witnessing the historic hearing. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

Well, folks, as we settle into the long lull between the arguments to the Supreme Court on Prop 8 and the Defense of Marriage Act and the expected decision in late June, allow me to present the First-Ever Ennead Awards. There are -- conveniently -- nine categories, to wit:

Most Willfully Clueless Award:
To Justice Antonin Scalia, for his remarks that sociologists are in disagreement about the effects of gay and lesbian parenting on children. (You can find a text-synched transcript to both arguments here (DOMA) and here (Prop 8).) Okay, they're not. The most one can say is that more evidence would be helpful, but this position is usually taken by those who are trying to avoid the implications of the studies that do exist -- and show that kids do just fine across all measures when raised by same-sex parents. It might be that Scalia was sending out one of his increasingly high-pitched dog whistles to the far right, a sonic treat that was prominently featured during his otherwise-inexplicable excoriation, in a dissenting opinion last year, of the Obama administration for not doing enough to deal with illegal immigration. But it might also be that, once again, the Justice just didn't do his homework.

Best Performance by an Actor in a Fantasy: To Chief Justice John Roberts. When the justices agreed to hear the case, some of us hoped that they would finally take up the issue of whether discrimination based on sexual orientation should be judged by what the Court calls "heightened scrutiny." It doesn't look like the Court's going to do that. In fact, I doubt they're even going to get into the vast equal protection problems at all. And one reason for their declining to do so was voiced by the chief justice, who suggested that gays and lesbians don't need the suspect classification designation that's reserved for groups that lack political power. According to Roberts, the reason same-sex marriage laws have passed is because of our powerful lobbying. Then he added: "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

Okay, this is a valid point (and one I made, in a somewhat different way, in this Slate piece). But here's the much more persuasive response of Roberta Kaplan (representing Edie Windsor, the DOMA plaintiff):

The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost.

[A]nd until 1990 gay people were not allowed to enter this country. So I don't think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous -- I think gay people are far weaker than the women were at the time [the Court found women to be a "suspect class."]

Just to make sure no one else might claim this award, the chief justice also expressed mild incredulity that the 84 senators who voted for DOMA might have been motivated by a dislike of lesbian and gay people. Sustaining this particular fantasy requires ignoring the contribution of our next award winner...

Best Audiobook Reading Performance: To Justice Elena Kagan. Her sparring with Paul Clement, who was trying to defend the indefensible DOMA, was devastating. When Clement kept insisting that the real purpose of DOMA was to ensure uniformity, she confronted him:

JUSTICE KAGAN: Well, is what happened in 1996 -- and I'm going to quote from the House Report here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."

Is that what happened in 1996?

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute.

Yes, it does say that. And yes, you should throw out the law.

The Lactose-Intolerance Award: To Justice Ruth Bader Ginsburg, who delivered this dairy product:

It's -- it's -- as Justice Kennedy said, 1100 statutes [that confer federal advantages], and it affects every area of life. And so he was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

Well, we know what she thinks of DOMA. But I don't want to milk the point any further.

The Billy Preston ("Nothin' from Nothin'") Award: To Justice Stephen Breyer. Always prolix (he had more "air time" than any other justice in both of these arguments) and often entertaining, here's how he explored the somewhat counterintuitive claim that states that give same-sex couples all the same rights as opposite-sex couples, but without the name, have a harder time defending their exclusionary laws than states that fence gay and lesbian couples out completely: "I mean, take a state that really does nothing whatsoever. They have no benefits, no nothing, no nothing."

Anything but that!

Best Performance of 1999: Belatedly awarded to Justice Samuel Alito, who bemoaned the possibility that the Court might be able to find a constitutional right for same-sex couples to marry on the ground that such marriages weren't even as old as cell phones or the Internet. After receiving the award, the justice sped away in a Ford Granada.

The George Burns Award: To the woman playing the "straight man" during the arguments, Justice Sonia Sotomayor. Among her most unfunny but penetrating series of exchanges involved whether any other kind of discrimination against gays and lesbians might be justified. The attorney defending Prop 8, Charles Cooper, couldn't think of any. The exchange reflected how far the nation has moved from the Justice Scalia position, expressed in cases like Romer v. Evans and Lawrence v. Texas that discrimination against gays and lesbians is still as American as apple pie. In Lawrence, for example, he had this to say in dissent:

Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

The exchange between Sotomayor and Cooper also pointed up the need to identify a real harm to society from same-sex marriages. None was identified during two-plus hours of argument.

Most Important Player in a Dramatic Role Award: As always, to Justice Kennedy, who will almost surely be the swing vote in both cases. It looks like he's ready to join with the four sort-of liberals on the Court to strike down DOMA -- but on states' rights grounds, rather than on the basis that DOMA denies equality under the law -- which it ever so plainly does. (Windsor's estate tax bill upon the death of her wife: $363,000; hypothetical husband's bill: $0.) It also looks like he wants Prop 8 gone, but doesn't know quite how to get there. Two quotes, one epigrammatic and one moving:

[To a flabbergasted Charles Cooper]: "And you might address why you think we should take and decide this case." (Really? Now? Over at Slate, I offered a possible reading of this statement.)

[T]here is an immediate legal injury... and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

The Marcel Marceau Lifetime Achievement Award: To Justice Clarence Thomas. 'Nuff said.

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