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Showing posts with label gay marriage. Show all posts
Showing posts with label gay marriage. Show all posts
Monday, May 23, 2016
Tuesday, October 7, 2014
What the Supreme Court did and didn't decide
http://www.huffingtonpost.com/geoffrey-r-stone/same-sex-marriage-and-the_b_5943352.html
Huffington Post
Same-Sex Marriage and the Dangers of Dawdling
GEOFFREY R. STONE
Edward H. Levi Distinguished Service Professor of Law,
Edward H. Levi Distinguished Service Professor of Law,
University of Chicago
Posted: 10/06/2014 | Updated: 10/07/2014
Yesterday, the Supreme Court DECIDED NOT TO DECIDE any of the pending cases involving the constitutionality of laws denying same-sex couples the freedom to marry. In all of these cases, federal courts of appeals had held the challenged state laws unconstitutional. What does it mean that the Supreme Court declined to review those decisions?
At the outset, it is important to understand that the Supreme Court has discretionary jurisdiction. That is, it selects the cases it will decide. On average, it agrees to decide only about 1 percent of the cases that are presented to it for review. For the Court to agree to hear a case, four of the nine justices must vote to put the case on the Court's docket. If the Court does not agree to hear a case, then the judgment of the lower court stands. In general, the justices vote to consider a case if one of two conditions is met: (1) if the lower courts are divided on the issue, or (2) if the issue is of such importance that it merits the Supreme Court's attention even if there is no division in the lower courts.
Because all of the federal courts of appeals that have considered this issue have agreed that state laws prohibiting same-sex marriage are unconstitutional, the key question is whether the issue is sufficiently important to warrant the Court's attention. No one doubts that the same-sex marriage issue is of that level of importance. Nonetheless, the justices exercised their discretion not to decide the question. Why?
One thing seems clear to almost all observers: In light of the Court's five-to-four decision a little over a year ago in Windsor v United States, in which the Court held the federal Defense of Marriage Act unconstitutional, it is virtually certain that the five justices in the majority in Windsor (Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) would take the next obvious step and hold state laws prohibiting same-sex marriage unconstitutional as well. Indeed, that is why lower federal court judges have been almost unanimous since Windsor in reaching that result.
With that understanding, it is obvious why none of the four dissenters in Windsor(John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito) voted to hear this round of cases. Why would they want the Court to hear the cases when they know full well that the majority would reach the "wrong" result?
But why did the justices who were in the majority in Windsor also vote not to hear these cases? The answer, made clear by Justice Ginsburg in recent interviews, is that they would rather let the issue percolate further in the states and the lower courts so that by the time the Court finally addresses the issue it will be much ado about nothing. Why put the Supreme Court out on a limb, when they don't have to? Why risk a "backlash" against the Court for making a controversial decision when they can just dawdle until it's no longer controversial at all?
Perhaps the best precedent for this sort of behavior was when the Supreme Court delayed thirteen years after its 1954 decision in Brown v. Board of Education, which held "separate-but-equal" racial segregation unconstitutional, before it finally got around to invalidating the most emotionally inflammatory form of racial discrimination -- laws prohibiting interracial marriage. By the time the Court decidedLoving v. Virginia in 1967, "only" 17 states still prohibited interracial marriage.
There are two serious problems with this strategy. First, just as the Court's hesitation on miscegenation meant that thousands of interracial couples could not lawfully marry in many states in the United States, the Court's hesitation here leaves thousands of same-sex couples in states throughout the nation without the opportunity to marry. That is no small cost to those individuals, to their families, and to their dignity.
Second, and even more important, the "inevitable" decision to invalidate all state laws denying same-sex couples the freedom to marry is not, in fact, inevitable. It is all too easy to imagine a scenario in which one of the five justices in the majority in Windsordies before the Court finally takes up the issue, a Republican is elected president in 2016, and the five-to-four majority to protect the right to marriage equality fades into oblivion. Then a new five-to-four majority, including the four dissenters in Windsorand their new companion appointed by, say, President Christie or President Paul or President Cruz, find that there is, after all, no constitutional right to same-sex marriage.
At that point, the tens of thousands of same-sex couples who will marry in the next year or two will find the legality of their marriages suddenly open to question. And going forward, for years to come, supporters of marriage equality will be back to slogging it out, state-by-state, in a long, slow, bitter, and ugly process.
This scenario may be unlikely, but the five justices who know right now that laws forbidding same-sex couples to marry are unconstitutional should not have left us in this position. This was an unnecessary and, in my view, a reckless risk for them to take.
Posted: 10/06/2014 | Updated: 10/07/2014
Yesterday, the Supreme Court DECIDED NOT TO DECIDE any of the pending cases involving the constitutionality of laws denying same-sex couples the freedom to marry. In all of these cases, federal courts of appeals had held the challenged state laws unconstitutional. What does it mean that the Supreme Court declined to review those decisions?
At the outset, it is important to understand that the Supreme Court has discretionary jurisdiction. That is, it selects the cases it will decide. On average, it agrees to decide only about 1 percent of the cases that are presented to it for review. For the Court to agree to hear a case, four of the nine justices must vote to put the case on the Court's docket. If the Court does not agree to hear a case, then the judgment of the lower court stands. In general, the justices vote to consider a case if one of two conditions is met: (1) if the lower courts are divided on the issue, or (2) if the issue is of such importance that it merits the Supreme Court's attention even if there is no division in the lower courts.
Because all of the federal courts of appeals that have considered this issue have agreed that state laws prohibiting same-sex marriage are unconstitutional, the key question is whether the issue is sufficiently important to warrant the Court's attention. No one doubts that the same-sex marriage issue is of that level of importance. Nonetheless, the justices exercised their discretion not to decide the question. Why?
One thing seems clear to almost all observers: In light of the Court's five-to-four decision a little over a year ago in Windsor v United States, in which the Court held the federal Defense of Marriage Act unconstitutional, it is virtually certain that the five justices in the majority in Windsor (Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) would take the next obvious step and hold state laws prohibiting same-sex marriage unconstitutional as well. Indeed, that is why lower federal court judges have been almost unanimous since Windsor in reaching that result.
With that understanding, it is obvious why none of the four dissenters in Windsor(John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito) voted to hear this round of cases. Why would they want the Court to hear the cases when they know full well that the majority would reach the "wrong" result?
But why did the justices who were in the majority in Windsor also vote not to hear these cases? The answer, made clear by Justice Ginsburg in recent interviews, is that they would rather let the issue percolate further in the states and the lower courts so that by the time the Court finally addresses the issue it will be much ado about nothing. Why put the Supreme Court out on a limb, when they don't have to? Why risk a "backlash" against the Court for making a controversial decision when they can just dawdle until it's no longer controversial at all?
Perhaps the best precedent for this sort of behavior was when the Supreme Court delayed thirteen years after its 1954 decision in Brown v. Board of Education, which held "separate-but-equal" racial segregation unconstitutional, before it finally got around to invalidating the most emotionally inflammatory form of racial discrimination -- laws prohibiting interracial marriage. By the time the Court decidedLoving v. Virginia in 1967, "only" 17 states still prohibited interracial marriage.
There are two serious problems with this strategy. First, just as the Court's hesitation on miscegenation meant that thousands of interracial couples could not lawfully marry in many states in the United States, the Court's hesitation here leaves thousands of same-sex couples in states throughout the nation without the opportunity to marry. That is no small cost to those individuals, to their families, and to their dignity.
Second, and even more important, the "inevitable" decision to invalidate all state laws denying same-sex couples the freedom to marry is not, in fact, inevitable. It is all too easy to imagine a scenario in which one of the five justices in the majority in Windsordies before the Court finally takes up the issue, a Republican is elected president in 2016, and the five-to-four majority to protect the right to marriage equality fades into oblivion. Then a new five-to-four majority, including the four dissenters in Windsorand their new companion appointed by, say, President Christie or President Paul or President Cruz, find that there is, after all, no constitutional right to same-sex marriage.
At that point, the tens of thousands of same-sex couples who will marry in the next year or two will find the legality of their marriages suddenly open to question. And going forward, for years to come, supporters of marriage equality will be back to slogging it out, state-by-state, in a long, slow, bitter, and ugly process.
This scenario may be unlikely, but the five justices who know right now that laws forbidding same-sex couples to marry are unconstitutional should not have left us in this position. This was an unnecessary and, in my view, a reckless risk for them to take.
# # #
Saturday, May 17, 2014
The Pocahontas Absurdity
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/pocahontas_argument_against_gay_marriage_officially_the_worst_ever.html
The Worst Argument Ever Made Against Gay Marriage
And that’s saying something.
By David S. Cohen
Lithograph depicting Pocahontas saving the life of Capt. John Smith. Image courtesy Library of Congress
I won’t hide the ball here, so here it is: Gay people should not be able to get married because Pocahontas married John Rolfe.
This argument was actually made in federal court Tuesday, before the judges of the Court of Appeals for the 4th Circuit in Richmond, Virginia. They were hearing a challenge to Virginia’s ban on same-sex marriage. The argument is hands-down the worst argument ever offered against same-sex marriage.
To be sure, it’s a crowded field in this dubious competition. The history of same-sex marriage litigation is replete with offensive, awful, nonsensical arguments from states trying to come up with principled excuses for bigotry. For instance, just this week Kentucky defended its ban on same-sex marriage by saying that denying gay people the right to marry leads to more stable birth rates. (Yes, you read that correctly.) And there’s long been the argument, put forward without laughter, that banning same-sex marriage is necessary because straight people can’t control themselves and thus need a responsible way to raise all those children they will have as a result of all that irresponsible sex they have.
But Tuesday’s Pocahontas argument takes the cake. Let me explain.
One of the many issues in same-sex marriage litigation is whether bans on same-sex marriage violate a person’s constitutional right to marry. Many Supreme Court cases have said there is a fundamental right to marry, so the argument is straightforward that bans on same-sex marriage infringe on that right.
In response, some states try to refute this argument by asserting that there is no general right to marry, but rather there is only a right to marry someone of the opposite sex. They argue that this more narrowly defined right is what is protected by court precedent and by our country’s history and tradition. Same-sex marriage advocates usually respond to that argument by asserting that you can’t define fundamental rights so narrowly. If you did, there wouldn’t have been a fundamental right to marry in Loving v. Virginia, the 1967 Supreme Court case that found Virginia could not prohibit interracial marriage. In Loving, the court held that the Constitution protects a fundamental right to marry. As same-sex marriage advocates point out, the court did not require the Lovings to show that there was a long tradition in our country of protecting a fundamental right of a white man to marry a black woman. If it had required such a showing, they couldn’t have done so, given our country’s racist history of banning interracial marriage.
That brings us to Tuesday’s argument. David Oakley was the attorney representing the local court clerk who denied the plaintiffs a marriage license. He was closing up his argument making this exact point—that there is no deeply rooted tradition in our country of protecting the specific right to same-sex marriage. When he made this point, Judge Roger Gregory jumped in and very sternly said “Same thing was true in Loving. Nobody would have considered interracial marriages in Virginia in the 1920s/30s [to be deeply rooted].”
Which is when Oakley shocked everyone with this horrendous Pocahontas argument. He responded, in full: “There is a history, prior to the Jim Crow era laws, the anti-miscegenation laws. The idea of interracial marriage was not prohibited. It still fit within the fundamental right of marriage, the idea of a man-woman marriage. Before Virginia passed those affirmative anti-miscegenation laws, it might not have been the social norm, but people certainly could have married, and indeed did marry, across racial lines. Pocahontas married John Rolfe in the early 1600s and their marriage wasn’t declared unconstitutional.” (You can listen for yourself here, starting at 12:25.)
To his credit, Oakley did get the last sentence right. Pocahontas did marry John Rolfe on April 5, 1614, almost exactly 400 years ago, and indeed, their marriage was never declared unconstitutional. But beyond the basic factual accuracy of that sentence, Oakley was speaking nonsense. And for so many reasons. After reading this article, you can play a game at home coming up with your own reasons, but here are five that immediately jump out:
1) The argument is legally illogical: No one anywhere, not even the most anti-gay bigot, has claimed that any particular marriages are unconstitutional. Rather, the issue in any marriage case (including Loving) is whether a state violates the Constitution by restricting who can enter a marriage based on race, sex, or sexual orientation. The idea of an individual marriage being declared unconstitutional makes zero sense.
2) It is absurdly a-historic: Pocahontas married John Rolfe in 1614. The Constitution wasn’t ratified until 1789. The Bill of Rights wasn’t included in the Constitution until 1791. The 14th Amendment didn’t become a part of the Constitution until 1868.* To draw the obvious connection here, even if marriages could be declared unconstitutional (they can’t, see No. 1), there was no Constitution in 1614 and wouldn’t be for another 175 years. Add on that the basis of these same-sex marriage cases is the 14th Amendment, and the relevant constitutional provision regarding the constitutionality of marriage didn’t even exist until 254 years after Pocahontas’ nuptials.
3) It is completely irrelevant: What happened in 1614, when the United States of America didn’t exist, is irrelevant to whether there is a history or tradition in our country of interracial marriage. Soon after the Pocahontas wedding, there was very much a tradition of banning interracial marriage. Play around with the map on the Loving Day website for a minute and you can see that tradition growing and growing throughout our country’s history. In fact, in 1868, when the 14thAmendment was ratified, 32 states banned interracial marriage compared to only 11 states that allowed it. Whether Pocahontas married a white person in 1614 is wholly irrelevant to this clear history.
4) It is even more irrelevant still: If the basis of the clerk’s argument is that there has to be a tradition of protecting the specific type of marriage being sought, then the only way Loving is correct is if there is a specific tradition of protecting the marriage between a white person and a black person (or, even more specifically, a white man and a black woman). Pocahontas’ marrying John Rolfe is simply irrelevant to that inquiry.
5) It ignores Virginia’s unique history: Maryland was the first colony to ban interracial marriage between white people and slaves, but Virginia was the first colony to ban interracial marriage between all white people and all black people (free or slave). It did so in 1691. 1691! And that Virginia ban stayed on the books in one form or another until it was struck down by the Supreme Court in 1967. Over the decades and centuries, almost the entire country joined Virginia, but Virginia had the dubious distinction of being the first. At the time of Loving, Virginia’s history of banning the exact marriage at issue in that case—between a white man and black woman—was the very definition of a deeply rooted tradition.
I won’t hide the ball here, so here it is: Gay people should not be able to get married because Pocahontas married John Rolfe.
This argument was actually made in federal court Tuesday, before the judges of the Court of Appeals for the 4th Circuit in Richmond, Virginia. They were hearing a challenge to Virginia’s ban on same-sex marriage. The argument is hands-down the worst argument ever offered against same-sex marriage.
To be sure, it’s a crowded field in this dubious competition. The history of same-sex marriage litigation is replete with offensive, awful, nonsensical arguments from states trying to come up with principled excuses for bigotry. For instance, just this week Kentucky defended its ban on same-sex marriage by saying that denying gay people the right to marry leads to more stable birth rates. (Yes, you read that correctly.) And there’s long been the argument, put forward without laughter, that banning same-sex marriage is necessary because straight people can’t control themselves and thus need a responsible way to raise all those children they will have as a result of all that irresponsible sex they have.
But Tuesday’s Pocahontas argument takes the cake. Let me explain.
One of the many issues in same-sex marriage litigation is whether bans on same-sex marriage violate a person’s constitutional right to marry. Many Supreme Court cases have said there is a fundamental right to marry, so the argument is straightforward that bans on same-sex marriage infringe on that right.
In response, some states try to refute this argument by asserting that there is no general right to marry, but rather there is only a right to marry someone of the opposite sex. They argue that this more narrowly defined right is what is protected by court precedent and by our country’s history and tradition. Same-sex marriage advocates usually respond to that argument by asserting that you can’t define fundamental rights so narrowly. If you did, there wouldn’t have been a fundamental right to marry in Loving v. Virginia, the 1967 Supreme Court case that found Virginia could not prohibit interracial marriage. In Loving, the court held that the Constitution protects a fundamental right to marry. As same-sex marriage advocates point out, the court did not require the Lovings to show that there was a long tradition in our country of protecting a fundamental right of a white man to marry a black woman. If it had required such a showing, they couldn’t have done so, given our country’s racist history of banning interracial marriage.
That brings us to Tuesday’s argument. David Oakley was the attorney representing the local court clerk who denied the plaintiffs a marriage license. He was closing up his argument making this exact point—that there is no deeply rooted tradition in our country of protecting the specific right to same-sex marriage. When he made this point, Judge Roger Gregory jumped in and very sternly said “Same thing was true in Loving. Nobody would have considered interracial marriages in Virginia in the 1920s/30s [to be deeply rooted].”
Which is when Oakley shocked everyone with this horrendous Pocahontas argument. He responded, in full: “There is a history, prior to the Jim Crow era laws, the anti-miscegenation laws. The idea of interracial marriage was not prohibited. It still fit within the fundamental right of marriage, the idea of a man-woman marriage. Before Virginia passed those affirmative anti-miscegenation laws, it might not have been the social norm, but people certainly could have married, and indeed did marry, across racial lines. Pocahontas married John Rolfe in the early 1600s and their marriage wasn’t declared unconstitutional.” (You can listen for yourself here, starting at 12:25.)
To his credit, Oakley did get the last sentence right. Pocahontas did marry John Rolfe on April 5, 1614, almost exactly 400 years ago, and indeed, their marriage was never declared unconstitutional. But beyond the basic factual accuracy of that sentence, Oakley was speaking nonsense. And for so many reasons. After reading this article, you can play a game at home coming up with your own reasons, but here are five that immediately jump out:
1) The argument is legally illogical: No one anywhere, not even the most anti-gay bigot, has claimed that any particular marriages are unconstitutional. Rather, the issue in any marriage case (including Loving) is whether a state violates the Constitution by restricting who can enter a marriage based on race, sex, or sexual orientation. The idea of an individual marriage being declared unconstitutional makes zero sense.
2) It is absurdly a-historic: Pocahontas married John Rolfe in 1614. The Constitution wasn’t ratified until 1789. The Bill of Rights wasn’t included in the Constitution until 1791. The 14th Amendment didn’t become a part of the Constitution until 1868.* To draw the obvious connection here, even if marriages could be declared unconstitutional (they can’t, see No. 1), there was no Constitution in 1614 and wouldn’t be for another 175 years. Add on that the basis of these same-sex marriage cases is the 14th Amendment, and the relevant constitutional provision regarding the constitutionality of marriage didn’t even exist until 254 years after Pocahontas’ nuptials.
3) It is completely irrelevant: What happened in 1614, when the United States of America didn’t exist, is irrelevant to whether there is a history or tradition in our country of interracial marriage. Soon after the Pocahontas wedding, there was very much a tradition of banning interracial marriage. Play around with the map on the Loving Day website for a minute and you can see that tradition growing and growing throughout our country’s history. In fact, in 1868, when the 14thAmendment was ratified, 32 states banned interracial marriage compared to only 11 states that allowed it. Whether Pocahontas married a white person in 1614 is wholly irrelevant to this clear history.
4) It is even more irrelevant still: If the basis of the clerk’s argument is that there has to be a tradition of protecting the specific type of marriage being sought, then the only way Loving is correct is if there is a specific tradition of protecting the marriage between a white person and a black person (or, even more specifically, a white man and a black woman). Pocahontas’ marrying John Rolfe is simply irrelevant to that inquiry.
5) It ignores Virginia’s unique history: Maryland was the first colony to ban interracial marriage between white people and slaves, but Virginia was the first colony to ban interracial marriage between all white people and all black people (free or slave). It did so in 1691. 1691! And that Virginia ban stayed on the books in one form or another until it was struck down by the Supreme Court in 1967. Over the decades and centuries, almost the entire country joined Virginia, but Virginia had the dubious distinction of being the first. At the time of Loving, Virginia’s history of banning the exact marriage at issue in that case—between a white man and black woman—was the very definition of a deeply rooted tradition.
# # #
Friday, December 27, 2013
2013: The Year Gay Marriage Won
Even Karl Rove thinks the next GOP presidential candidate might support same-sex marriage
# # #
P.S. The U.S. Constitution provides equal rights for all American citizens. No level of government -- local, state, or national -- can rescind those rights. Since licenses to join together in legal unions are issued by civil authorities, the solution to the controversy should be that all licenses become defined as "civil union" licenses regardless of gender. Anyone who wants to have a religious "marriage" ceremony can then petition her/his church, synagogue, or other house of worship. Enlightened religions will agree, those blinded by ignorance and prejudice won't. There is no gay marriage or straight marriage, just marriage. Problem solved.
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