The Supreme Court and same-sex marriage

12.07.12 - 1:27 pm | Tim Redmond |

(114)

IN 2004, the battle began ....

Keep in mind that I'm not a lawyer and the news just broke. But it seems unlikely to me that the US Supreme Court would have taken up two key cases involving same-sex marraige just to rule narrowly on questions like standing. Which means at least four of the nine justices (and it could be a mix of liberal and conservative ones) think the Court should make a defining statement about marriage equality in the United States.

Courts are political. The Supreme Court is supremely political. That's just reality. And ever since Lawrence v. Texas, the Court has been moving toward full acceptance of LGBT people:

The Supreme Court invalidated the Texas law but also went further by explicitly overruling Bowers – the significance of which was not lost on dissenting Justice Antonin Scalia, who presciently complained that the ruling "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples." Indeed it does.

And it's hard to imagine that the Supreme Court could possibly, in 2012, make a broad statement against gay marriage. I just don't see it happening. I think Scalia will fulminate, but a majority of the Court will rule in the spring that lesbian and gay people have a fundamental right to marry.

You read it here first.

UPDATE: HuffPo's legal eagle disagrees with me, saying a pro-same-sex marriage ruling would be too "bold." I think he's wrong; the vast majority of Americans under 40 have no problem with same-sex marriage, and in a few years, anything other than a "bold" decision will look embarassingly dumb.

Comments

My guess is that SCOTUS will not decide more than they need to

and will consider the issue of whether gays should be able to enjoy the discretionary privileges of marriages a matter for the people to decide, as is usually the case. This is less about rights and more about which classes of people can enjoy privileges.

That said, they may rule more broadly, but it would be unwise to over-ride the thirty or so States that have passed constitutional amendments on this subject.

So I expect a ruling that respects States' rights, and leaves it up to each jurisdiction. That would honor the idea of having separate States at all, and ensure decisions are made at the most local level of our nation - the founding principle of our founding fathers.

I personally like the idea of gays marrying but would not to seek to impose that view on jurisdictions where the majority have a different view.

Posted by Guest on Dec. 07, 2012 @ 1:37 pm

Fundamental rights should

Fundamental rights should never be allowed to be put up for a popular vote, especially when those fundamental rights involve a particular class, and Romer v. Evans laid the groundwork for that.

Posted by marcos on Dec. 07, 2012 @ 1:57 pm

Ah, but that begs the question of whether an institution like

marriage really constitutes a "right", let alone a fundamental civil or human right. One could equally argue, and no doubt many will, that a marriage license is more like a driving license, i.e. a bundle of local privileges that you have to qualify for according to rules set by that local society.

And since SCOTUS is appointed by those we elect, these kinds of decisions are always ultimately decided by the people and the kind of society and institutions that we wish to see.

I'd give the odds as 50/50 if SCOTUS feel they have to rule broadly, but suspect they'll stay narrow. I don't think Roberts is ready to throw States' rights out of the window.

Posted by Guest on Dec. 07, 2012 @ 2:11 pm

I think that the trial court

I think that the trial court concluded and appeals court upheld the finding of fact that marriage is a fundamental right.

Romer v Evans concluded that one cannot pull out a minority for special unfavorable treatment under the law without a compelling state interest.

This is the Supreme Court that plucked Citizens United out of thin air and blew away a century of campaign finance law precedent.

Posted by marcos on Dec. 07, 2012 @ 2:37 pm

Yes but it is exactly that trial decision that will be assessed.

And a marriage license is denied to lots of groups of people e.g., children, those already married, threesomes, animals etc. We're simply debating whether gays are another one of those prohibited categories or not.

Just like a driving license is denied to classes of people e.g. children, the blind, those previously banned for cause, and so on.

And both marriage and driving laws vary by State, meaning that some who qualify in one State may not qualify in another.

Posted by Guest on Dec. 07, 2012 @ 2:45 pm

the fact that

you have to compare gay adults to children and animals to make some kind of non-point is very revealing.

Posted by admin on Dec. 07, 2012 @ 2:54 pm

Not really. With both marriage licenses and driving licenses,

the people have carved out logical exceptions. We don't want blind people driving or threesomes marrying. That rather implies that the people can be trusted to make prudent exceptions to a general rule.

I do not oppose gay marriage. i do oppose federal interference in the ability of States to take into account their own unique situation.

Posted by Guest on Dec. 07, 2012 @ 3:10 pm

Yes, really.

Guest, we live in a constitutional republic, not a confederacy.

States rights are limited. The U.S. Constitution is the ultimate law of the land, and it can and does limit the ability of states to deny individuals certain fundamental rights or to deny certain groups of people rights given to all others. For example, the federal government certainly can "intefere" with a state's ability to pass a law denying African-Americans a right given to others, even if such a law "take[s] into account [the state's] own unique situation."

I place individual rights over states' rights, and in many cases, so does the U.S. Constitution.

Posted by Chris on Dec. 07, 2012 @ 3:29 pm

But that doesn't mean that every "right" has to be federalized.

Again, why should I be bale to marry at 14 in Alabama but 16 in California? What about the rights of 15 year old's in CA?

Should everything be mushed up and federalized because mediocer equivalence is better than the rights of communities and locales to take into account local preferences?

Note here that I am not religious and do not oppose gays marrying if that's OK with the people. My beef here is with a "one size fits all" approach to a country with massive differences in attitude towards this.

I'd also like someone to explain to me why threesomes are being denied the same right?

Posted by Guest on Dec. 07, 2012 @ 3:48 pm

One size fits all

The 14th Amendment, Section 1:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That's why.

Posted by Hortencia on Dec. 07, 2012 @ 4:00 pm

That is what the 14th says. It does not follow that it applies

in all situations. As already noted, threesomes cannot marry, blind people cannot drive, and so on. Exceptions can be carved out where a public interest is thereby served. SCOTUS must decide whether it is or not.

Posted by Guest on Dec. 07, 2012 @ 4:28 pm

What public interest...

...does denying same-sex couples marriage rights serve? Did you read Judge Walker's opinion?

Again, though, bringing inapposite examples like threesomes makes no sense. The fundamental right the Court has applied again and again applies to two people. Blind people and driving is even sillier, since there's no fundamental right to drive.

Posted by Hortencia on Dec. 07, 2012 @ 4:52 pm

You're assuming the result is a slam dunk, and

pre-supposing that you are correct. We don't know that yet because SCOTUS hasn't ruled.

I am simply firnishing some of the arguments that the other side will use, and we will see whether your assessment is correct or a reach too far.

But driving and marriage are both similar - both are privileges bestowed by a State for which a license is issued if and only if you qualify.

Posted by Guest on Dec. 07, 2012 @ 5:21 pm

Privileges vs. rights

No, a drivers license is a privilege. A marriage license is a fundamental right. The Supreme Court has said so over and over again. As such, the government needs a really, really good reason to deny that right to same-sex couples or that denial is unconstitutional.

I'm not assuming anything about how the Court will rule, by the way. Actually, I'm scared the Court won't agree with the lower courts and therefore set gay rights back many years. A loss on Perry would be worse than the Bowers decision.

Posted by Hortencia on Dec. 08, 2012 @ 12:58 pm

I think SCOTUS will be reluctant to rule broadly either way

especially since 5 of the 9 are generally held to be conservative, and they are aware that a clear majority of Americans do not want gays to be able to marry at this time.

We'll see.

Posted by Guest on Dec. 08, 2012 @ 1:50 pm

Majority opinion

Actually, the most recent polls show a slight majority of Americans are in favor of marriage equality. I recommend Googling same-sex marriage poll United States.

But it shouldn't matter. Interracial marriage was supported by a minority when the Court decided Loving. Rights shouldn't be recognized or taken away according to majority opinion.

Posted by Hortencia on Dec. 08, 2012 @ 4:54 pm

Even CA was split 50/50 by Prop 8 and the rest of the US

is much more conservative than CA.

Anyway I'm not arguing that CA can't allow gays to marry if that's what a majority want, only that that doesn't mean that the other 49 are obligated to do the same regardless of local feelings.

Posted by Guest on Dec. 08, 2012 @ 6:17 pm

I realize that's what you're arguing

And I'm arguing that, when it comes to fundamental rights as guaranteed to all Americans in the Bill of Rights, there's no room in these United States for some states to oppress more than others.

Posted by Hortencia on Dec. 09, 2012 @ 9:50 am

Littler arguments

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Posted by Guest on Dec. 09, 2012 @ 11:09 pm

This issue has already been

This issue has already been settled long ago, but the details have not all been worked out yet. If states' rights are supreme, then any state with a majority of white racists can pass a ballot measure stating that black people can be owned as slaves; however, in the course of the Civil War, the Fed asserted that this cannot be allowed. Allowing a homophobic majority to ban gay marriage is the same thing.

Equating a marriage license with a driver's license is ridiculous; in the case of driving, it's clearly in the public interest to prevent unskilled/incapacitated people from piloting 2-ton hunks of metal through crowds of pedestrians at 60 mph. In contrast, marrying whomever you want to marry, or unmarried people of any gender consensually touching each other, dressing up, acting silly, or otherwise expressing themselves sexually or culturally clearly lies within the scope of "life, liberty, and the pursuit of happiness", and as such may not be denied or abridged by the states.

The majority are not guaranteed any right not to be offended by others' behavior; if you want to make sure you're never offended, don't ever leave your house, turn on the TV, radio, or computer, read a book, or talk to anyone.

Posted by Guest on Dec. 09, 2012 @ 8:49 pm

A license is a permit to get

A license is a permit to get married that is valid for a fixed period of time. A couple perfects the marriage and then gets a marriage certificate. Given the bigamy laws, it makes sense to deny a marriage license to someone with an active marriage certificate that they already hold.

It is the marriage certificate like any other contract, not the license, that the constitution explicitly commands each state to mutually recognize.

Posted by marcos on Dec. 07, 2012 @ 3:06 pm

But a marriage license can be denied on various grounds.

Our lawmakers decide what those grounds are, and they are elected, so essentially the people decide. Marriage is an institution and we are entitled to have s ay in what our institutions look like.

Why shouldn't threesomes be allowed to marry? You can make the same arguments for that as you could for gays or bigamists?

Posted by Guest on Dec. 07, 2012 @ 3:21 pm

Threesomes and bigamists

You say you can make the same arguments for them as you can for gays. Beyond the offensiveness of the comment (which, I'm guessing, you didn't intend), it's just not true. Marriage, a union of two people of age according to the laws of their state, has been a fundamental Constitutional right as defined by the Supreme Court, for many decades. The only question is if any state or the federal government has an overriding reason sufficient to deny same-sex couples that right. If not, denying same-sex couples that right violates the 14th Amendment everywhere.

Posted by Hortencia on Dec. 07, 2012 @ 3:41 pm

But again, why only two people?

Marriage used to be defined as being netween two adult people of different sexes and the same race.

Then it was defined as two adult people of different genders and of any race.

Now it might be defined as two adult people of any gender and of any race.

So why not define it as any number of people of any gender of any race?

It's just semantics at that point.

Posted by Guest on Dec. 07, 2012 @ 3:56 pm

Semantics

Not to the people involved in the relationship.

Look, marriage also used to be defined as an economic agreement in which the female party had no rights. Marriage's meaning does change over time. I don't have a problem with that, actually, though it seems you do. Maybe marriages of more than two partners will be legal one day. I don't know and I don't really care. Right now, the fundamental right is for two people to marry. A federal judge has ruled that the 14th Amendment says that right can't be denied if the two people are of the same sex. The Supreme Court will decide if that's correct.

Posted by Hortencia on Dec. 07, 2012 @ 4:58 pm

But you haven't answer the key question here.

If marriage doesn't require the same race or different genders, then why should it require only two persons, or only people not married to others.

If your case is valid then so are those others, even if the court isn't being asked to rule on them yet.

Eventually marriage will be meaningless - just a voluntary alliance between any number of people of any gender or race.

Posted by Guest on Dec. 07, 2012 @ 5:23 pm

I don't know

As I said, maybe these other kinds of arrangements will have legal recognition someday. Laws follow customs. That question isn't before us at the moment.

I really don't think you're meaning to be insulting, but your whole line here implies that same-sex relationships are essentially different from opposite-sex ones in a way that weakens a key aspect of what we call "marriage." Would you care to talk more about that?

Posted by Hortencia on Dec. 08, 2012 @ 12:53 pm

Hortencia, but I don't oppose gay marriage and am not christian.

My sole interest is in whether this is a states' rights issue that doesn't need to be federalized by SCOTUS.

So whether same-sex marriage is "equal" to hetero marriage isn't something that concerns me either way. More central government interference does, however.

Posted by Guest on Dec. 08, 2012 @ 1:47 pm

Lines like...

... "Eventually marriage will be meaningless - just a voluntary alliance between any number of people of any gender or race" suggest otherwise. You seem to have ideas about the essential nature of marriage that I'd like to know more about.

Posted by Hortencia on Dec. 08, 2012 @ 2:11 pm

This case lines up decades of

This case lines up decades of marriage precedent with Romer v. Evans.

Olsen and Boies would have a slam dunk before any court that had not squandered its legitimacy with Citizens United.

Posted by marcos on Dec. 08, 2012 @ 2:40 pm

There is some danger that if allow marriage to devolve into

any loose alliance of any number of any kind of people then, yes, it will be largely meaningless.

Posted by Guest on Dec. 08, 2012 @ 3:10 pm

You have yet to make the case...

...that there is any danger of that happening. None of the progress in marriage rights--interracial, same-sex, etc.--does anything to undermine marriage or go toward making it meaningless.

Posted by Hortencia on Dec. 08, 2012 @ 4:50 pm

Anything that dilutes the meaning of marriage like

ignoring gender or the number of parties to a marriage takes away it's meaning. Eventually it becomes a mere group of people with some kind of contract

Posted by Guest on Dec. 08, 2012 @ 6:16 pm

How does "ignoring gender"...

...dilute the meaning of marriage?

Posted by Hortencia on Dec. 09, 2012 @ 9:51 am

I've already explained.

Marriage is moving from being an alliance between two people of the same race and opposite gender, to being an eventual alliance of any number of people of any race or gender.

You might think that is a good thing. But you cannot possibly argue that that isn't loosening the meaning of marriage.

Posted by Guest on Dec. 09, 2012 @ 6:59 pm

Creepy that you included misegenation laws in the timeline of

modern marriage and its loss of meaning to you. I think I speak for others when I indict the wholesomeness of your character over that one.

Posted by lillipublicans on Dec. 09, 2012 @ 7:22 pm

So say you Lil?

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Posted by Guest on Dec. 09, 2012 @ 11:11 pm

Lil/Cummings poetry

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Posted by Guest on Dec. 10, 2012 @ 9:14 pm

No doubt bout it

Posted by Guest on Dec. 11, 2012 @ 12:49 pm

Lil lives

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LILLY!

Posted by Guest on Dec. 11, 2012 @ 8:03 pm

So it goes

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Posted by Guest on Dec. 11, 2012 @ 4:01 pm

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Posted by Guest on Dec. 11, 2012 @ 8:16 pm

Me too

Posted by Guest on Dec. 12, 2012 @ 6:40 am

She'smybaby.

Posted by Guest on Dec. 12, 2012 @ 9:55 pm

New stuff

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Posted by Guest on Dec. 13, 2012 @ 10:01 pm

"Eventually it becomes a mere

"Eventually it becomes a mere group of people with some kind of contract"

Then we could call it a corporation, the most powerful entity ever known, and hopefully the Fed will regulate it.

Posted by Guest on Dec. 09, 2012 @ 8:34 pm

What difference does it make

What difference does it make if government interference is local or federal?

Posted by marcos on Dec. 08, 2012 @ 2:30 pm

All decisions should be as local as possible.

I'd have thought SF's pot nuts and gun control nuts would agree with that.

Posted by Guest on Dec. 08, 2012 @ 3:09 pm

You're kind of arguing against...

...the existence of the United States at all, aren't you?

Posted by Hortencia on Dec. 08, 2012 @ 4:55 pm

No, I'm arguing for what the founding fathers wanted

i.e. the US as a loose federation of autonomous states.

If we had that, SF could ban guns and alloe medical pot, both of which the feds effectively restrict our ability to do.

But of course then Tim etc. are all for local opt-out. But when it comes tog ays marrying, they want the feds to bail them out when the people of CA say no.

Posted by Guest on Dec. 08, 2012 @ 6:19 pm