We’ve been waiting years for the U.S. Supreme Court to make a decision about marriage, and now an off-the-cuff comment from Ruth Bader Ginsburg has just provided a hint that the Supreme Court might’ve been waiting for us this whole time. Somehow, marriage equality has turned into a lame chicken-and-egg joke.
Here’s the problem: there are a bunch of marriage cases that are ready for the Supreme Court to take. But the Supreme Court might not want to take it (RBG hinted last week) because all of those cases agree that marriage bans are unconstitutional, and the court would prefer to wait until lower courts disagree with each other.
So far, only one federal judge has upheld a marriage ban since the Windsor decision, and he’s at the bottom of the ladder: a District Court judge. Before that case gets to the U.S. Supreme Court, it has to pass through an appellate court, which could take years.
So if Ginburg’s comment is any indication, the Supreme Court might not take a case for years. Or maybe it will take a case next week! There is literally no way to know what the hell they’re going to do, other than wear robes and look solemn.
Making things even more complicated: some courts (but not all courts) are afraid of stepping on the Supreme Court’s toes, so they’d decided to freeze their marriage lawsuits until the Supreme Court rules. But the Supreme Court might not want to make a decision until those cases advance further. And that means that the whole legal system’s in a traffic jam, waiting for someone to get out of the way and figure out where they’re going.
And that, apparently, is now important issues are settled here in the land of the free.
nospecial
If the court denies cert. to a case they’ve issued a stay in, then the stay will be lifted by the court. By the same measure, if a federal court has stayed its own decision and the case is denied cert. by the Supreme Court, either party is free to ask the federal court to lift its stay, which it obviously would be inclined to do, if it hasn’t already done it on its own.
MarionPaige
so the advice to gay people is to put their lives on hold for another 10 – 15 years until gay marriage is legal in all 50 states? History will show that I was there (on queerlaw) in 1996 suggesting gay family units form llcs. At that time, the mantra was Gay Marriage in Hawaii and the gay marriage fuckwards were yelling “wait till full marriage”. As I’ve said, only a fucking idiot would have dragged their families and partners through the ups, downs and sideways of this fucking gay marriage fiasco (when they could have had A LEGAL PARTNERSHIP via llc law in 1996). The fact that no one is taking advantage of gay marriage where it is legal (relatively speaking) proves that.
MacAdvisor
We can easily have national marriage equality without every obtaining a Supreme Court ruling. We’ve had pro-marriage equality rulings from the 1st, 2nd, 3rd, 4th, 7th, 9th and 10th Circuits. The 9th is about to rule again and I think we can count on a pro-marriage equality ruling from them. The 6th is also about to weigh in and the guesses are it will not be pro-marriage equality, but let’s assume for the moment that it is. That will give use rulings in 1st, 2nd, 3rd, 4th, 6th, 7th, 9th and 10th. All that is left is the 5th and the 11th Circuits. There are already cases head to the 5th circuit (which handles Texas, Louisiana, and Mississippi), so we will hear from them this year. The same is true for the 11th (which handles Florida, Georgia, and Alabama). Once those to Circuits rule and assuming they rule pro-marriage equality, the entire country will have marriage equality. All of the Circuit Courts of Appeal will have ruled on marriage equality not later than the end of next year and perhaps even by the end of this year, assuming the Supremes don’t take up the question. At that point, we have national marriage equality, in all fifty states, and marriage equality is the law of the land without the SCOTUS ever having issued a opinion on point.
If the 5th, 6th, or 11th rule against marriage equality, we will have a circuit split and the Supremes will all-but be forced to settle the dispute. I don’t see how we leave 2015 without national marriage equality, but it might, at worst, drag into 2016, but that’s it. Two years, people, that is the worst realistic case.
Kamuriie
@MarionPaige: You’re a moron.
MarionPaige
re MacAdvisor
In 1996, the mantra was “Full Faith And Credit”, that all 49 states would be FORCED to recoginize gay marriage once Hawaii legalized it.
I’m sure the Queerlaw archives for gay marriage are still on the net somewhere. You can see just how long this PROPAGANDA has been going on. You can also see my posts about llcs to the list, in 1996,
AzLights
Why should I be forced into some “partnership” when I married legally in Canada? I want the dignity and ALL the rights conferred by legal marriage. YOU take a “partnership” if you think it’s so wonderful.
MarionPaige
Canada is selling dignity now? Is by the bottle or the can?
d3clark48
@MarionPaige:
55% of all marriage licenses recently issued by New Mexico were for same-sex couples.
Wikipedia says: Several hundreds to thousands of marriage licenses were issued to same-sex couples in Utah, Michigan, Arkansas, Wisconsin and Indiana between the time their bans were struck down by federal or state courts and when those rulings were stayed.” That doesn’t include the other states that now have SSM like: CT, MA, PA, NY, etc.
California had enough SSMs to stop its declining marriage rate and actually increase it.
So I think your claim that relatively few SSM couples are getting married is unfounded.
MacAdvisor
@MarionPaige: While the Full Faith and Credit Clause was the scare attic of the right, the Clause has always had the Public Policy exception, that is the limitations to the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. See Wisconsin v. Pelican Insurance Co., </i?127 U.S. 265. Typically, a state is free to not recognize the marriages performed legally in another state is such a marriage is contrary to the laws of that state. For example, if one can marry at the age of 12 in the State of Disgrace, but the age of consent for marriage in State of Prudence is 16, the State of Prudence can refuse to recognize the marriage of two 13-year olds who married in the State of Disgrace and moved to the State of Prudence. Given the decision in Bowers v. Hardwick, 478 U.S. 186 (1986), I think the Public Policy Exception would have prevented states from recognizing gay marriages that state didn’t want to. That would have been less clear after Romer v. Evans, 517 U.S. 620 (1996), but we didn’t have a definitive ruling until US v. Windsor, 570 U.S. ___ (2013).
pjm1
So, the bottom line is that the Supreme Court will NOT take
up the marriage issue until there is a split in the Federal Circuit Courts.
Currently, there is no split in the Circuits so it should be no surprise when the
Supremes do not take any of the cases.
Judge Posner (a conservative intellectual heavy-weight, and he really is)
of the 7th Circuit ruled earlier this month that the Wisconsin and Indiana bans on same sex
marriage were unconstitutional. He made some powerful arguments that will appeal (pun intended) to
Justice Kennedy and Chief Roberts. On this issue, Judges Scalia and Thomas are pretty much a lost
cause.
1EqualityUSA
May they’re waiting for Ruth Bader Ginsberg to not be able to participate.
passingthru
@d3clark48: It’s not at all about someone who “dragged their families and partners through ups and downs”. Rather, it’s about keeping the movement going forward. Families and partners realize victory with each positive step in the journey. It’s about moving the needle which is an amazing thing. Let’s all get there! MarionPaige doesn’t get it at all and never will. Life is much better than he/she can possibly realize or enjoy. Too bad but there isn’t any value in arguing or trying to explain.
Saint Law
@MarionPaige: “You can also see my posts llcs to the list, in 1996.”
Yes the internetz are fairly humming with all the traffic to those even as we speak.
1EqualityUSA
Visceral is the only way I can describe the disappointment I feel when I see MarionPaige’s moniker come up. I won’t even read her stuff anymore. The last thing I ever read was some tirade with variations of the F-word strewn throughout. It was then that I realized she’s a loon. Now, I can’t stand the name Marion nor Paige. Together, it’s as ugly as the words spit out in haste. (Troll.) Maggie Gallagher has competition. I picture a rock basement, Silence of the Lambs-like, as “Mother” clomps around incessantly in sensible nun-shoes upstairs while MP types her vile spew.
NoCagada
Maybe MARIONPAIGE is really fatass Maggie Gallagher trying to eat her way out of her closet
MarionPaige
if you search (even in the “fucking” gay marriage obsessed New York Times and Washington Post) for “estate planning” or “financial planning” for married heterosexual couples,you will find copious mentions of the terms LLC and Family Limited Partnerships.
Heterosexual couples (who obviously could always marry) were using LLCs along with getting married to the point where the IRS was actively trying to limit their use. AND YET, there was (and is) essentially no mention of the terms LLC or Family LP from the gay marriage fuckwads. AND WHY?
Because the gay marriage fuckwads wanted / want the focus only on gay marriage, even though gay couples could have created family llcs and family limited partnerships as far back as 1996. In other words, the focus of gay marriage hustlers like Rob Reiner and AFER is on THEIR AGENDA, not helping gay people.
But hey, we’re talking about adults. If you are an adult and you think Rob Reiner created AFER to help gay people … you go with that.
1EqualityUSA
MarionPaige settles for second class citizenship and becomes foul mouthed when others don’t drink her LLC koolade. One trick pony law clerk just won’t shut the Hell up. Maggie Gallagher must pay this wipe to try to sway the gay.
Elloreigh
@MacAdvisor: “I don’t see how we leave 2015 without national marriage equality, but it might, at worst, drag into 2016, but that’s it. Two years, people, that is the worst realistic case.”
I respectfully disagree. I remember what a shock and setback the Bowers ruling was. At that time, around half the states had already repealed their sodomy statutes, and several more repealed them following the Bowers ruling. But it was another 17 years before the remaining 13 states had their sodomy statutes overturned by the Lawrence decision, reversing Bowers.
Now take a sober look at where we stand legally concerning same-sex marriage. As of this writing only 19 states recognize same-sex marriage. Worse, most that ban that recognition do so not only by statute, but also through voter-enacted amendments to state constitutions.
Legally speaking, it can be argued that we were in a much better position at the time of Bowers concerning sodomy laws, than we are right now with same-sex marriage equality. Despite the positive elements of the Windsor ruling striking a portion of DOMA, I do not think the Court will be in any hurry to get out in front of the states on this issue.
It is a mistake in my view for the bulk of the effort to obtain marriage equality to be focused on the courts. We need to be doing everything we can to repeal those state amendments. But I also recognize that doing so is a daunting, if not impossible task at this point in time.
MarionPaige
I am proud to go down in history as the lone and loudest voice in the gay community to alert gay people and their families to the fact that they could create family llcs (just like married straights) IN 1996. And, I am also confident that gay famillies that created llcs in 1996 are better off today than the ones stupid enough to buy into the “wait for full gay marriage koolaide”.