United States v. Gay Marriage: Step forward or strategic misfire?

Same-sex wedding ceremony

Craig Kyzar — Few to none were surprised when the United States Supreme Court finally agreed to review one of the many Defense of


Marriage Act (DOMA) cases put before it during last December’s docket selection conference. The real surprise came in the Court’s decision to double-up on the gay marriage issue with the hearing of a challenge to California’s Proposition 8: a matter with far greater potential to jumpstart the process of sweeping reform. Oddly, no sooner than oral arguments began last week did the Court show its first signs of buyer’s remorse in accepting the latter case at all.

As stated in a previous article, the Court seldom leaps far ahead of national sentiment, especially if it means the possibility of replacing existing legislation in a majority of states with a violently divisive new interpretation of law. That’s what makes this decision, and subsequent backtracking, all the more intriguing.

There are several schools of thought on the Court’s logic for accepting a case with such incendiary potential, including theories of a strategic gaming of the system by each side of the ideological aisle. Add to this the peculiar rapidity with which the Court accepted review of such a relatively young and unformed issue (by Supreme Court standards) and the ultimate result, once the Court hands down its ruling on these two cases in July, is almost assured to be as disappointing as it will be messy.

Regarding the DOMA matter, based on past history and hints revealed during oral arguments, it is possible, if not likely, that the Court will finally strike down this 1996 legislation as unconstitutional either on the grounds that it is discriminatory on its face or – to play it a bit more safely – that the scope of such federal legislation fundamentally impinges on marital and children’s issues historically left in the hands of state law.

Any constitutional analysis must always begin with the simple, yet often misunderstood, reality that the United States Constitution is an instrument not of empowerment, but of restriction. That is to say, any power not directly or implicitly afforded to the federal government by the language of the Constitution shall remain a power delegated to the states.

While the chosen reasoning for striking down DOMA may at first seem semantic, in practice it is anything but. Should the Court dodge the issue of discrimination in favor of a procedural revocation then it misses a tremendous opportunity to crack the armor of legal resistance to universal marriage rights. Should it embrace this reasoning, however, then the case could provide a heartening legal stride forward even though its scope falls far short of any ultimate hopes for national equality. That ambitious goal rests with the case challenging California’s Proposition 8, and that is also where things get most interesting.

The first question to consider in attempting the hazardous pastime of predicting Supreme Court rulings is exactly which four (at least) of the nine justices greenlit the case regarding Proposition 8 in the first place. While it is possible that the Court simply deemed this a review whose time had come, oral arguments brought to light the very real possibility that this case made the docket not at the urging of sympathetic justices but rather as a calculated gamble by their ideological opposites, forcing the issue before the Court while conservative influence on the bench still remains sufficiently high to allow the probability of victory.

If the latter is true, then it is possible that the hurried push by proponents to bring this case could backfire dramatically by providing the conservative base the ideal opportunity to address a hotbed topic while its strength in the Court still remains high and while a strong counter-movement still exists nationwide against absolute marital equality. Perhaps this is exactly why liberal-minded justices spent oral arguments rather obviously seeking an escape hatch. Pinned between a premature review brought by conservative counterparts and the possibility of a ruling that further divides the nation, perhaps the only legitimate option will be to punt the matter back to California’s Ninth Circuit on procedural grounds, leaving the lower courts to sort through the aftermath.

Of course, this is not to say that no good is likely to come from these rulings, however constrictive or expansive they may be. That such a fundamental rights issue still exists in 21^st century America is, in itself, strong evidence that a forward push was long overdue. Religious beliefs and righteous moralism aside, day by day, the public consciousness leans further toward an accepted belief that homosexuality is neither a “choice” nor a characteristic that can bear continued discrimination. And if recent history is any indicator, the dominant ideological position of our nation’s top Court seems poised to change similarly over the coming years.

A modest battle is likely to be won with the striking of DOMA, although it remains to be seen how much progressive ammunition the Court may provide with its decision. And while a ruling striking down Proposition 8 as unconstitutional is not entirely out of the question, its ramifications are likely far too unruly to undertake today. Indeed, it is much more likely that the Court’s majority will turn the case away for lack of legal standing, effectively (and quietly) reinstating the right to gay marriage in California while the war continues its way through the courts.

Perhaps this case symbolizes the last stand by a staunch few seeking the power to roll back progress, or maybe it is further evidence of an irrepressibly rising tide. Either way, we are dealing with a Court that specializes in frustration. As with every major shift in the ideological landscape, we may be in for a long journey… but every step forward is still a step closer to the tolerant nation we ultimately aspire to become.



About the Author

Craig Kyzar is an award-winning journalist and international attorney. After graduating from NYU Law School and enjoying eight years of legal practice in Manhattan, Craig is now heavily involved in nonprofit work dedicated to enhancing children’s literacy skills and connecting economically disadvantaged youth with a life-changing love of reading. When not frolicking in fiction and playing with poetry, Craig’s editorial columns and articles are regularly featured across several news outlets, providing uniquely provocative views on legal, political and humanitarian issues.

Aaron Swartz: A legacy left in our hands

Craig Kyzar — From a tender age, Aaron Swartz was saddled with the expectation of a true pioneer and all the pressures of a contemporary folk hero. His technical-savvy quality made him a dot-com millionaire, while his unwavering commitment to the notion of universally free information elevated him to the ranks of digital demi-god … or virtual villain, depending on one’s perspective. As an Internet enthusiast, his rebellious ascendance makes him a remarkably compelling subject.

[caption id="attachment_17925" align="alignright" width="254"] Aaron Swartz[/caption]

From a legal viewpoint, however, the Aaron Swartz issue becomes a particularly tough one to navigate. More than anything, this is due to the sharp discrepancy between the need for reasoned legal analysis on one side and the blind desire of many to champion a modern-day Robin Hood on the other. To be very clear, the untimely end of any life, young or old, will always harbor tragedy. But when the act of a single suicide prompts such widespread calls for legal reform, we enter a different realm entirely… and not always for the better.

From the moment word broke of his death on the morning of January 11, many supporters were all too prepared to brand Mr. Swartz a martyr and weaponize his death as an instrument for legal and political reform. Those who had hailed him as a larger-than-life visionary hero just days earlier now absolved him of the very free will exercised in the taking of his own life… preferring instead to frame his final conscious act as that of a defenseless drone, too weak to fight, and effectively killed by the ulterior motives of a vindictive government machine. But why? Have they done so for Aaron’s sake… or for their own?

Should we be angry over the death of Aaron Swartz? Hell yes. In many ways, his persecution seems symptomatic of far deeper fractures in the existing system. But we should also be conscious to honor the memory of a pioneering spirit rather than rendering such a unique mind a mere victim for the sake of a quick political benefit.

In January 2011, Mr. Swartz was arrested and charged with numerous federal violations of the Computer Fraud and Abuse Act (CFAA) – primarily the unauthorized use of a computer used for interstate commerce. His offense: the alleged unauthorized physical entry into an area from which he had been repeatedly forbidden and the use of a self-written computer program capable of downloading massive amounts of copyrighted academic material from the JSTOR database. His stated intent, which never came to pass, was to freely distribute these materials at a later date. By statute, the charges carried a maximum penalty of thirty-five years in prison.

The CFAA has long been criticized as dangerously over-vague in its language, a fact that Swartz’s most vocal supporters have taken to heart. The truth is, while many still argue over their personal perceptions of the relevant facts in this particular case, we will now never know if federal prosecutors would have met their burden before a judge and jury. However, to infer that the prosecutorial pursuit – as overzealous as it might have been – was an unfounded effort to bully an American citizen into submission without merit is, to say the least, without merit.

Did Swartz’s actions amount to violations of federal law warranting a conviction? This is precisely the question that both parties were preparing to argue before the court. Like any other accused, Swartz maintained every right to present evidence in his defense. Indeed, the evidence against him seems dubious, at best. But to turn Swartz’s conscious decision to end his own life, rather than stand tall and fight for his innocence, into a presumption of federal bullying disrespects both the man and the life. Sympathy is one thing, but when we take that sympathy to the extreme and allow ourselves to presume malice from the process itself, then we undermine the entire integrity of the justice system.

Some contend that a thirty-five year prison sentence is inherently disproportionate to Swartz’s alleged crimes … and any court would assuredly agree. While some suggest the extreme penalty is further evidence of coercion, in reality, Swartz never faced anything close to a statutory maximum sentence for his alleged offenses. Statutory maximums will always seem excessive when viewed through the lens of a specific incident, as they are drafted to encompass even the most egregious violations of the law. Such penalties represent the extremes to which the system may permissibly go, only when warranted by the severity of the crime and the underlying circumstances of the accused. Even had Swartz declined the offered plea bargain and defended himself before the court, the minimal monetary value of the goods in question, coupled with his lack of any prior criminal record, would render the possibility of a lengthy sentence virtually nonexistent.

The problem with widespread misinformation to the contrary is that it is always going to be most readily embraced by those who most desperately wish to embrace it. That is to say, those who would rather rail against the machine than trust in the underlying equity of legal principles… those with the strongest commitment to preconceived activist ideals, to the exclusion of rational discourse… those who turn conspiracy theory and government distrust into sport.

The sad truth is we will never know whether the federal prosecution of Aaron Swartz was fair and justified because he did not see it through to the end, as we all desperately wish he had. Federal prosecutors may very well have been over-eager to pursue this matter, and perhaps even to make an example of Swartz by the only means available to them. Their conduct over the course of the trial would have surely been intensely scrutinized in the court of public opinion. But lost in the outrage is one key factor: Swartz was never convicted. Those who seek to decry government wrongdoing in the filing of charges by arguing his ultimate innocence willfully pervert the process out of anger, not logic.

A finding of “not guilty” after trial should be a vindicating symbol of a system that worked, not a bitter implication that the trial itself was without merit from conception. We as individuals are allowed our opinions, but it is the jury that is charged with the facts. Sadly, in this tragic instance, such a jury will never be assembled. Unfortunately, Swartz’s death now ensures that he will never be acquitted either. In the ensuing purgatory, we have all built our own versions of reality, oftentimes devoid of suitable evidentiary support on either side. We have manufactured our own version of an outcome we deem “inevitable”, colored by our own existing prejudices, and used it to further fuel our disdain.

But for those of us who still believe in the immense power of law to equalize men and remedy injustice, even from within, Swartz’s death is perhaps an even greater tragedy. With properly focused scrutiny, United States v. Swartz could have proved a catalyst for long sought computer crime reform. It would not have been easy; real progress seldom is. But it would have been a more fitting legacy to a man whose commitment and vision truly changed the world. In an age of big talk by small people, Aaron Swartz walked the walk. Perhaps it is time we follow his lead… not by polarizing one man as a modern-day martyr but by rallying together around the ideas that made him great.

About the Author

Craig Kyzar is an award-winning journalist and international attorney. After graduating from NYU Law School and enjoying eight years of legal practice in Manhattan, Craig is now heavily involved in nonprofit work dedicated to enhancing children’s literacy skills and connecting economically disadvantaged youth with a life-changing love of reading. When not frolicking in fiction and playing with poetry, Craig’s editorial columns and articles are regularly featured across several news outlets, providing uniquely provocative views on legal, political and humanitarian issues.