The Supreme Court has finally run out of road to kick the marriage equality can down. Tacitly acknowledging that the issue can no longer be ignored, the justices have agreed to decide once and for all whether there is a constitutional right to marry.
Specifically, the Court will be answering the questions that it left unanswered with the Windsor ruling two years ago: do states have the right to ban same-sex marriages and can states refuse to recognize marriages from other states? At the time of the Windsor ruling, the justices insisted that they weren’t being asked to address that question, suggesting that it’s each state has the right to make its own choice.
So much has happened in the intervening year and a half that the Windsor ruling seems from a previous decade. We’ve gone from 9 states with marriage equality to 36. Public support for marriage equality keeps growing.
But every case has its risks. As inevitable as the final outcome looks, there’s always a chance that a majority of justices decide that its still too soon to declare marriage equality a federal right, as opposed to one that states can confer.
How about we take this to the next level?
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The case at issue this time around is a ruling from the Sixth Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio and Tennessee. In a 2-1 ruling last November, the Court reinstated marriage bans in those four states. The two majority judges, both appointed by George W. Bush, relied upon a one-sentence ruling from a 1972 Supreme Court ruling involving two Minnesota men who sought to marry. The judges didn’t even bother to refer to the Windsor arguments, which was a remarkable feat of judicial acrobatics.
Could the justices decide that the time isn’t right? After the Windsor ruling, Ruth Bader Ginsburg said that the Court acted “just the way they should have” by not getting ahead of public opinion. That will probably be the question hanging in the air when the Court takes up oral arguments. This is not a famously activist group of judges (at least not on cultural issues) and basically telling the residents of Tuscaloosa that gay couples have the same right to marry as they do to bear arms may be a bit too far even for those sympathetic to the issue.
Still, in the end it only takes five justices to make a majority. Would any of the five who struck down the Defense of Marriage Act get cold feet now? Even Ginsburg isn’t that cautious; she was the first justice to perform a same-sex marriage ceremony.
Moreover, on this single issue, Justice Anthony Kennedy has shown a willingness to be bold. He wrote the majority opinions in the decisions striking down sodomy laws and “special rights” ballot measures. Why he would change his mind now would be hard to imagine.
Still, that doesn’t mean it can’t happen. We’ll have a better sense of what the justices are thinking when they hear oral arguments in the case, like in April. The final decision will likely come down to the wire again at the end of the Court’s term in June. In other words, just in time for the second anniversary of the Windsor ruling.
hyhybt
Even allowing for the generality that the court prefers to wait until there’s a circuit split, is it really credible that the justices who are against marriage would have passed on their only opportunity to stop it in so many states a few months ago? It’s not proof, but it very strongly suggests the other side doesn’t have even four votes. Especially given the stays the court has refused to issue in the meantime.
But still, best not to be TOO optimistic, just in case.
MarionPaige
my understanding is that the motivation for claiming that gay people have a constitutional right to marry was so that one Supreme Court decision would sweep away all opposition in all 50 states. NOW that gay marriage is legal in a number of states, “the constitutional right” argument could backfire in that a decision against could be used to role back gay marriage where it is legal.
Certain people did not want to do a state-by-state battle for gay marriage so they came up with this “constitutional right” argument to go to the Supreme Court.
In general, i know if no reference ever on any discussion / debate the founding fathers may have had about homosexuals. The Constitutional Right argument seems to be a hard sell. I do know that they didn’t consider Blacks equal to Whites and that they allegedly considered Jews to be a race.
However, it would be so sweet if this great grand gay marriage decision did come down and AFER and Reiner were locked out of it all. Justice Grinds Slowly?
MarionPaige
Someone needs to do a movie about the conservative takeover of The Supreme Court (and the federal circuit) in the late 80’s
In the late 80’s, the world saw how The Supreme Court was in fact politically aligned and how long Conservatives were willing to wait for their opportunity to pounce.
First Reagan appointees tilted the court to Conservatives. The Supreme Court then placed a civil rights case on its docket and proceeded to try roll back civil rights laws. All across the country, there was this orgy of newly appointed Federal Judges (by Reagan) dismissing all discrimination cases before the court.
There was one “instance” in which a woman who had been in federal court with a sex discrimination suit for a couple of years saw her case dismissed during the orgy of dismissal of discrimination suits. The Woman’s father found out who the judge was, he cornered the judge in his home and shot him dead.
So, tell me again about Gay F-ing Marriage. Tell me again about the Mighty Un-Politicized Supreme Court.
hyhybt
@MarionPaige: have you paid no attention to the gay-related cases the court has handled in the last 20 years or so, or to how many of those Reagan-appointed judges throughout the system have made favorable rulings?
tricky ricky
this is going to be everybody saying gay marriage is constitutional except for scalia and his toady thomas who will throw their usual sh*t fit.
Desert Boy
This will be interesting.
pjm1
@tricky ricky: I hope you are right — a 7-2 decision would be something. My best guess it that it will be a 5-4 decision. Roberts and Alito will say that it should be left to the legislators — thus being able to assert they are continued conservatives. IF Roberts were the swing vote, i wonder how he would vote — maybe he would still vote on the wrong side of history.
hyhybt
I’d be surprised if it’s less than 6-3, on the reasoning that if there were four against, they’d have taken the October batch.
radagastthe3rd
@hyhybt: nah, the court just doesn’t want more flack over another big decision which will be seen as judicial activism. They already have the GOP enraged over DOMA and Obamacare so they wanted to take some time off before dropping this bombshell. It will be 5-4 in favor of gay marriage.
radagastthe3rd
@MarionPaige: court-stacking started back with FDR, not Reagan.
Saint Law
@MarionPaige: I lookit this site after like a zillion years and there you are STILL gibbering against gay marriage.
radagastthe3rd
Based on United States v. Windsor where these same 9 justices found 5-4 that DOMA is unconstitutional, I highly expect another 5-4 decision (exact same votes) to find that laws banning gay marriage are unconstitutional.
The constitutionality of gay marriage is dependent on the 14th amendment. In US v. Windsor, the court decided that restricting marriage to purely hetero unions was a violation of the equal protection clause of the 14th amendment. If you look at the last 100 years of marriage litigation (interracial marriages, sodomy laws, etc.), you will find that the 14th amendment is always the one referred to. The Equal Protection clause of the 14th amendment has consistently been interpreted by the Supreme Court as saying that marriage is a natural right which the government cannot deny to anyone. Since laws banning gay marriage attempt to limit the marriages of a segment of the population, it is therefore discriminating against them.
That’s a brief explanation from a strict constitutionalist (myself). Gay marriage is coming. The DOMA case should have removed all of our worries. It is coming.
MarionPaige
just saw a post about how gay couples might want to take pre-cautions just in case the Supreme Court does not hold gay marriage a constitutional right.
In 1996, I offered gay couples a way to legally protect their relationships in a way that those relationships would be recognized as legal in all 50 states and internationally.
As I’ve asked many times: “who in their right minds would have dragged their families through the great gay marriage slip n slide that is still not over almost 20 YEARS LATER?”
I can honestly say that gay couples who formed LLCs 18 years ago are better off today and have had more stable family lives than gay couples who saddled up for The Great Gay Marriage Propaganda Machine.
tricky ricky
@hyhybt: 7-2 scalia and thomas dissenting. even roberts and alito can’t argue against the legal reasonings of the republican judge who wrote the definitive opinion. it is unassailable.
tricky ricky
@pjm1: roberts has a gay cousin. if they were going to leave it up to the states they would have intervened by now. it is a done deal at this point and they know it.
MarionPaige
hmmmm, just keep in mind that gay marriage activists were just as confident that all 50 states would have to honor one state’s gay marriages under FULL FAITH AND CREDIT.
You don’t hear much about FULL FAITH AND CREDIT in the gay marriage debate anymore.
tdx3fan
@MarionPaige: You take raving lunatic to an all new form of special don’t you? I think what you are referencing is binding trusts which are not the same as LLCs what-so-ever. What you fail to acknowledge is that even binding trusts and power of attorneys and all that other paperwork (which costs $1000+ dollars to get) is still not as binding and not as well treated in a court as that single piece of paper that comes with a great deal many other rights attached as well.
MarionPaige
would you please explain the llc to me, Mighty White Man?
MarionPaige
I really really hope that gay marriage becomes legal in all 50 states. We can’t advance as a species until these f-king motherf-kers finally are handed this f-king decision.
1EqualityUSA
Then will you shut the fuck up?
jwtraveler
How about a Constitutional right to a job, a home, education, freedom from bullying and violence? I good go for those.
martinbakman
Part of me wants to believe all but Scalia and Uncle Thomas will rule in favor of SS marriage.
MisterDemand
To answer the article’s question: Absolutely not. The four liberals are a slam dunk, and Kennedy was passionately pro-gay rights in his DOMA verdict,; saying exactly hoe DOMA harmed gay people are demoted them to second-class citizens. Roberts will look bad as Chief Justice if he doesn’t jump ship, but it’s not needed. History will be made in June
polarisfashion
@jwtraveler: I would like to add that the right to a minimum wage job that isn’t a poverty level wage. Companies like McDonald’s and Walmart know that they can pay slave wage salaries to their employees because they know their workers will qualify for food stamps and other subsidies. The far right is okay with employers hording their profits, but cry communism if we cry out for better wages!
tdx3fan
@MarionPaige: LLC stands for limited liability corporation. It is basically a way to own a small business without putting yourself out there. Its one step between sole proprietorship and actual corporation. It is mostly used if you want to protect yourself and not sell stocks (since corporations are “publicly” traded companies).
hyhybt
@jar: I have not seen the questions certified by the court
Here you go: “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”
tdx3fan
@jwtraveler: I will never support a constitutional RIGHT to those things. Some people should fail when they do nothing to succeed. I do believe that homing the homeless is a good thing (and in most cases is more cost effective than the opposite), but I will never believe people should be guaranteed the right to a job because it removes all incentive for people to actually work to accomplishing things. The government should have NO obligation to provide jobs for people.
tdx3fan
@MisterDemand: Actually, if you knew your background about Roberts you would know that taking a stand for gay rights would actually be completely inline with his history. He made his name in non-discrimination cases and taking cases that were won in favor of gay people. He has just been mum about that since becoming a justice and then chief justice. However, I think that the Florida appeal refusal document was very telling in that Roberts did not want to hear the appeal.
tdx3fan
@polarisfashion: Those companies pay their employees what they are worth. If you have no experience and no education and have never applied yourself you should not be making $15 a hour regardless of what the living wage is. Our government should not be in the business of forcing our corporations to pay clueless, uneducated, non-dedicated “workers” $15 an hour to start… especially when it would DESTROY small businesses because businesses of that size can honestly not afford to pay that wage.
Harley
@tdx3fan: On the other hand, if a business only wants to pay minimum wage then they should expect only uneducated, untrained, unmotivated individuals to apply. And then Republican governments slash school funding, hand out vouchers for private “for profit” schools, cut teacher salaries and take away collective bargaining thereby guaranteeing a wealth of uneducated, untrained, unmotivated work force. What a circle we weave.
Bauhaus
@tdx3fan:
And there we have it. Your worldview, life philosophy, and why you’re an insufferable twit, all brought to us in one sentence.
“Our government should not be in the business of forcing our corporations to pay clueless, uneducated, non-dedicated “workers” $15 an hour to start…”
btrmale
And then you get idiots like “president want-to-be” Bobby Jendall who has tried his best as governor to run the states back years.
He’s cut funding to all education and spoken against marriage equality.
He’d love it if Louisiana would be a state where no one is educated and all the women are barefoot and pregnant all the time. So there are lots of idiots in the world!
connorlarkin19
Scalia is a raging egoist,e.g. “get over it’ in 2000 Gore Decision, ‘I am an Originalist’ or Scalia’s code for King John’s ‘the law is lin my mouth’ or ‘the law is what I say it is–Scalitos, affirmative action phony sexual abuser SCJ Thomas.
jar
@MarionPaige: The Supreme Court has always been a conservative institution- unfortunately. The Warren court was one brief pro-rights blip in the court’s history. However, it has become radically conservative since the Scalia appointment. (Rehnquist and O’Connor weren’t much better, but they at least had some intellectual honesty.)
To the writer, as for “activist” judges, this court has been the most activist court in its history. Overruling an election is as radical as it can get. And then to have the dishonesty to assert it had no precedential value was even worse.
I have not seen the questions certified by the court, but the issue of states recognizing the marriages of other states (DOMA section 2) is a simple constitutional claim under the full faith and credit clause. The states must recognize the contracts of other states (eg, drivers licenses, marriage licenses, adoptions, etc.). That should be a slam dunk. As for the larger issue of a constitutional right to same sex marriage, I expect the court will punt on this issue once again. The court need only find there is no rational basis for the differential treatment (as they did in the earlier cases) in order to avoid the larger issue. The result, however, would be the same- no bans on same sex marriage.
CharlieM3
@MarionPaige: If gay marriage doesn’t pass in this Supreme Court, then what will come after will make Stonewall look like a popcorn fart.
MarionPaige
hell hath no fury like a tired ass white queen scorned
MarionPaige
where was the fury over the Pinter case in New York? In NYC, you had The State basically using and abusing gay men to force the closure of adult book stores. And, when the city’s true motives behind the arrests of the gay men were revealed, there was no organized storming of city hall.
So, the arrest of gay men on fabricated charges is nowhere near as serious as the freedom to f-king marry?
Danny
For almost 60 years Separate but Equal was the law of the land. In 1954 the SCOTUS reversed that precedent. Of course they can decide whatever they decide. Don’t sweat it. Keep fighting.
MarionPaige
according to lore, Lyndon Johnson set some politicians down who were opposed to The Civil Rights Act of 1964 and he basically told them emphatically that “the law would pass and history would show that it was because of a Southern President”.
People seem to have this misconception that the judges in the Federal Circuit and the Justices on The US Supreme Court are like Lyndon Johnson – i.e., that they see themselves as “bigger men” who are mindful of their public image and their place in history.
Chief Justice Roberts had no problem stepping up to a podium and f-king up the words to the swearing in of The First Black President – while the whole world was watching
hyhybt
@MarionPaige: Anyone can misspeak, or even get the order of memorized lines slightly wrong without changing the meaning. It’s hard even to claim that means he “had no problem with” doing so, and if there’s any possible connection to how he would decide any case whatsoever, you’d have to say what you believe that would be.
1EqualityUSA
Paramedics have a term they use for dorks who panic on scene, “pants-shitter.” Equality is inevitable. Keep it together.
lykeitiz
We are supposed to be global leaders in freedom, yet there are enough religious (and dictator-y) suppressors in this country to make this an ongoing debate. If they don’t vote in our favor, then that’s a pretty sad statement to the whole world.
Oh….and @martinbakman: Uncle Thomas?? ROFL! I can’t believe I’ve never heard that one before!
jwtraveler
@polarisfashion: I agree, but I was referring specifically to rights that are denied to LGBT people, areas where bigots are free to discriminate against LGBT people, things that are much more crucial to life than marriage.
@tdx3fan: Yes, I know, you’re probably outraged that rich, gay, white men can’t declare their partners as dependents on federal tax returns or have to pay inheritance taxes on inherited fortunes, but don’t give a shit about whether poor black and Latino people can support themselves and their families. I think that’s the right-wing Christian dogma: Freedom for me, not for thee.
jwtraveler
@tdx3fan: If you run a company, big or small, and can not afford to pay your employees a living wage, then you should not be in business. The mega-corporations and their Republican representatives always use the small businesses as an excuse to hold down wages. The reality is that those mega-corps are bringing in enormous profits while underpaying millions of employees and forcing the taxpayers, who they claim to look out for, to foot the bill for Medicaid, food stamps and other benefits that the companies refuse to provide. You guys don’t want the government to pay for health care for the people, but have no problem with subsidizing the profits of greedy, exploitative corporations. Leave aside ideology; does that make any economic sense?
polarisfashion
@tdx3fan: The minimum wage in countries like Australia and Denmark is more than $15 per hour! They have fast food restaurants and they are doing just fine! Why should my tax dollars pay for low wage workers to get food stamps and housing assistance when the companies are making billions of dollars in profit and hiding it in the Cayman Islands? I agree with jwtraveler, If a company’s business model is so bad that they can’t afford to pay their workers then yes they should go out of business!
dbmyers
@tricky ricky: I think that is a very likely breakdown on this vote . . . at least I hope it is!
Ed
They are going to split this. They will not demand that all states perform Gay Marriage, but they will also demand that all states recognize Gay Marriages performed in states which have fully legalized it. It’s a compromise decision, which may be the best we get for the next few years. I’m saying that based on the rephrased arguments that are evidently “the way they want to hear the issue” for now.
hyhybt
@Ed: why would they do that? And it certainly wouldn’t make the remaining states happy; they’d have to honor as many (or near enough; with full rights available once they get home and even the worst case only a day’s car drive from a marriage state, there would be no reason not to) marriages they find distasteful while also losing out on the money spent on weddings.
MarionPaige
the text for the swearing in of US Presidents is part of the US Constitution. This is why Obama had the swearing in performed properly.
MarionPaige
@Ed:
maybe it will end up being like marriage between first cousins
“Twenty-five states prohibit marriages between first cousins. Six states allow first cousin marriage under certain circumstances, and North Carolina allows first cousin marriage but prohibits double-cousin marriage. States generally recognize marriages of first cousins married in a state where such marriages are legal.”
MarionPaige
@hyhybt: “why would they do that?”
in a NYT article it is claimed that a certain Justice warned in his objection to the court’s decision in Lawrence that a ruling for gay privacy rights would lead to gay marriage. In answer to your question,
it would be “so conservative” for aholes we know hate civil rights to use a gay marriage case to somehow undermine Lawrence. This is why it is generally a bad idea to go running to someone who hates you asking them to make important decisions about your life.
Historically, The States have regulated marriage. There were once laws on what kind of sex was permissible between married couples. We know there are still laws again cousins marrying and against polygamy.
Marriage is asking The State to license your sexual relationship with the most important person in your life, gay marriage is in effect the Polar Opposite of Lawrence (i.e. keeping The State out of your private sexual life)
MarionPaige
The US Supreme Court now has gays before it arguing that Gay People have the right to have The State Regulate/License Their Sexual Relationships (in re marriage), how can that not demand that the court revisit Lawrence? And, why would Justices who were against Lawrence in the first place want to revisit it?
1EqualityUSA
MarionPaige babbled, again, “This is why it is generally a bad idea to go running to someone who hates you asking them to make important decisions about your life.” A pants-shitter, who would rather live as a second-class citizen for the lack of courage and conviction to fight bigotry in the highest court in the land, inserts, “cousins marrying” and “polygamy.” You sound like a NOM-skull, you reason like a NOM-skull, hey, you must be a NOM-skull. Who hired you to try to sway the gay, Focus on the Family, NOM, AFC? Marriage is more than a sexual relationship, it is a contractual agreement, a financial, legally binding arrangement between parties. For you to settle for anything less than what other, popular Americans have, says a lot about your capacity to be courageous. Don’t be a pants-shitter. Equality is inevitable. Now, go back and tell your boss how inept you were at swaying the gay.