DOMA and Proposition 8: The perils and benefits of an activist Supreme Court

The Supreme Court rulings on the Defence of Marriage Act and Proposition 8 stand in stark contrast to the day before, and show a split activist court.

The Supreme Court giveth, the Supreme Court taketh away. Just a day after a landmark ruling that rolled the civil rights movement back several decades on race, two more rulings were handed down by that most august of bodies today that roll it several decades forward on gender. One, by denying the right to appeal of a group of supporters of California's Proposition 8, effectively legalised gay marriage in the US's most populous state.

The other, a much more direct – and therefore important – ruling, found a central clause of the hated Defence Of Marriage Act (DOMA), which denied gay couples equal protection under the law, unconstitutional. So while the day before was a bad day for black Americans, yesterday was a great day for gay Americans.

The one anchovy in the trifle was Justice Antonin Scalia, whose enraged dissenting opinion laid into Justice Kennedy's striking-down of DOMA, and who hinted that, while the Court had chosen not to directly address the national constitutionality of a ban on gay marriage in any state – dismissing the Proposition 8 case and sending it back to the 9th Circuit court of California's decision instead – it is inevitable now that one day the Court will take a similar case on merit at some point in the future. He went on grumpily to say that Kennedy was acting with “real cheek” by saying that the constitutionality of gay marriage wasn't up in front of the court yet.

This kind of judicial activism infuriated Scalia. “We have no power to decide this case,” he raged. “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.” This was pretty ironic, actually; just the previous day, Scalia had no such qualms about judicial activism when the court was addressing a conservative issue: he voted enthusiastically to gut the Voting Rights Act – which had been reaffirmed in Congress in 2006 by a huge majority.

It would be wrong to say that hypocrisy about juducial activism is unique to the conservatives on the bench. Justice Ginsberg's anguished dissenting opinion on striking down the Voting Rights Act is in contrast to her full-throated support of Justice Kennedy's majority opinion on DOMA; though she, along with Scalia, voted to send Proposition 8 back to California rather than address its merits there and then it is probably that had they debated the issue she and Scalia would be on different sides. Justice Kennedy is, as usual, the tipping-point between conservatives and liberals on the court – he joined Justice Roberts in voting to strike down the VRA. He is therefore probably the most important Justice.

But Scalia's prediction is probably also correct. The majority opinion by Kennedy on DOMA contains language that will allow for plenty of challenges to the constitutionality of marriage inequality down the line. He said, for example, that DOMA constituted nothing less than a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment, and also that it “humiliates tens of thousands of children now being raised by same-sex couples,” and bases an argument around giving “dignity” to same-sex families. All of these give immediate legal precedent for challenges to state gay-marriage bans. So while this wasn't a day of final victory on marriage equality, it was decisive nonetheless. Sometimes an activist court isn't so bad.

San Francisco's City Hall flies the rainbow flag. Photograph: Getty Images

Nicky Woolf is a writer for the Guardian based in the US. He tweets @NickyWoolf.

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Byron burgers and bacon sandwiches: can any politician get away with eating on camera?

Memo to aspirant world leaders: eating in public is a political minefield.

Miliband’s sandwich. Cameron’s hot dog. Osborne’s burger. The other Miliband’s banana. As well as excellent names for up-and-coming indie bands, these are just a few examples of now infamous food faux pas committed by British politicians.

During his entire mayoral campaign, Sadiq Khan refused to eat anything in public. When journalist Simon Hattenstone met him in his local curry house for the Guardian, the now-mayor didn’t eat a single bite despite “dish after dish” arriving at the table. Who can blame him? Though Ed Miliband had been pictured blunderingly eating a bacon sandwich an entire year earlier, the national furore around the incident had not yet died down. “He can make me look Clooneyesque or make me look like Ed eating a bacon sandwich,” Khan said of the photographer at the time.

Miliband’s bacon sandwich is now so infamous that I need offer no explanation for the event other than those words. There is an entire Wikipedia page dedicated to the photograph of Ed, lips curled and eyes rolling, as he tucks into that fateful sarnie. Yet politicians frequently bite off more than they can chew – why did Ed’s mishap inspire multiple headlines and an entire front page of The Sun?

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“The momentum got behind the bacon sandwich story because he was awkward, it showed him in a light which was true - he was an awkward candidate in that election,” says Paul Baines, a professor of political marketing at Cranfield University. “He didn’t come across right.”

The photograph of Miliband fit neatly within a pre-existing image of the politician – that he was bumbling, incompetent, and unable to take control. Similarly, when David Cameron was pictured eating a hot dog with a knife and fork months later, the story reinforced popular notions of him as a posh, out-of-touch, champagne-swilling old Etonian. Though Oxford-educated, two-kitchen Miliband is nearly as privileged as Cameron, and Brexit-inducing Dave equally as incompetent as Ed, the pictures would not gain the same popularity in reverse. There are many, many less-than-flattering pictures of Cameron eating, but they didn’t fit into a workable narrative.

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No one, for example, focused on the price of Ed’s sandwich. Purchased at New Covenant Garden Market, it was undoubtedly more expensive than Greggs’ £1.75 bacon roll – but no one cared. When George Osborne was pictured eating an £8 Byron burger whilst cutting £11.5 million from the British budget, however, the picture spoke to many. The then-chancellor was forced to explain that “McDonalds doesn't deliver”, although, as it turned out, Byron didn’t either.

“The idea was to try and display him in a good light – here's a guy eating a burger just like everyone else. The only problem was it was a posh burger and of course he didn't look like everyone else because he was spending ten quid on a burger,” explains Baines.

But Dave, Ed, and George are just the latest in a long, long line of politicians who have been mocked for their eating habits. Across the ocean, Donald Trump has been lambasted for liking his steak well done, while in 1976, Gerald Ford was mocked after biting into the inedible corn husk of a tamale. Why then, do politicians not copy Khan, and avoid being pictured around food altogether?

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“Food connects everybody, food is essentially a connection to culture and the 'every person',” explains Baines. “[Nigel] Farage's appearance in the pub has definitely had a positive impact on how he's perceived by a big chunk of the working class electorate which is an important, sizeable group.” Though Cameron, too, has been pictured with pints, his undeniably weird grasp on the glass make the pictures seem inauthentic, compared to Farage whose pints are clearly at home in his hands. In America, Joe Biden managed to capture the same authenticity with an ice-cream cone.

“I think when it comes across badly is when it comes across as inauthentic,” says Baines. “If I were advising, I certainly wouldn't advise Theresa May to be seen in the pub having a pint, that would not shine with her particular character or style. But could Tim Farron come across better in that way? Possibly but it does have to be authentic.”

Food, then, can instantly make a politician seem in or out of touch. This is especially true when food connects to national identity. Tony Blair, for example, publicly claimed his favourite dish was fish and chips despite earlier saying it was fettuccine with olive oil, sundried tomatoes and capers. In the 1980s, Lord Mandelson allegedly mistook mushy peas for guacamole, insulting us all. In the States, you’d be hard pressed to find a politician who hasn’t been pictured with a hot dog, and there are entire articles dedicated to US politicians who eat pizza with a knife and fork. Again, the food fits a narrative – politicians out of touch with the common person.  

Then again, sometimes, just sometimes, no narrative is needed. We’d advise any candidate who seriously wants a shot in the 2017 General Election to not, under any circumstances, be pictured casually feeding a Solero to an unidentified young woman. 

Amelia Tait is a technology and digital culture writer at the New Statesman.

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