VIEWPOINTS — “The bottom line is that even the moderate justices would be disinclined to require marriage equality today or even three years from now. By then, more states will have recognized same-sex marriages, but it is unlikely they will be anywhere close to a majority. Consider this parallel. In the mid-1950s, when 30 states still had laws barring people of different races from marrying, the liberal Warren Court refused to overturn this blatant race discrimination. The court did not act until 1967, when only 17 states retained such laws. So long as interracial marriage intensely divided the country, the Warren Court was not prepared to insist upon a norm of equality. Would the current moderates on the Roberts Court be any bolder? It’s hard to imagine.
“Perhaps Olson and Boies are hoping that the relatively liberal U.S. Court of Appeals for the 9th Circuit will uphold marriage equality and that the Supreme Court will then duck the case, allowing the appellate ruling to stand. It is not entirely clear, however, that the 9th Circuit itself will go along with such a strategy, because of the expected backlash. Any decision by that court would apply not only to California but also to culturally conservative Idaho and Montana. And even in California, after all, voters banned gay marriage when they passed Proposition 8 in November, the reason for the federal suit in the first place.” —William N. Eskridge Jr. and Darren Spedale arguing Ted Olson and David Boies should quit their federal challenge to Prop 8 [Slate]
After hearing these two talk and present their arguments, I don’t see how they can’t proceed. I don’t think it’s ever a bad time to argue for equal rights as they are clearly spelled out in the 14th Amendment of our Constitution.
The Gay Numbers
Strategic Reality check:
The Roberts Court is a reactionary conservative activist court. The Warren Court was a liberal activist court. This means that the Roberts Court is seeking to role back the advances of the last 75 years (Read up on the Constitution-in-Exile crowd).
Here are two links about the Ricci decision by the Roberts Court seeking to undermine Title VII of the Civil Rights Act of 1964:
Conservative judicial activism is trying to rule by settled race related law. There is almost no chance they are not going to attack any attempts to expand equal protection analysis to include a new suspect class with a heightened scrutiny.
As for the “moderates” arguments it depends too much on the idea that prior case law offers us any insight into how Kennedy would handle a marriage case. Again, the attempts to role back civil rights victories for racial minorities should give you a clue about what you can expect from the court regarding sexual minorities.
As a side note, I wish people would truly understand that Supreme Courts, or courts of final appeals, are often mainly political bodies. By necessity, their decisions grow out politics and idealogy as much as facts or what the law actually says.
You saw that on display with the California Supreme Court. Either way they decided Proposition 8 would have made new law, but the politics required them to write an opinion in which they pretended to not be making new law at all.
“Justice Werdegar, however, at least had the guts to call a spade a spade. She didn’t hide behind the majority’s false argument that California’s law on revision/amendment distinction has always supported the decision to uphold Prop 8. Instead, she wrote her own concurring opinion specifically to point out what the majority hides: that the California Supreme Court had to make new law in order to reach its result of upholding Prop 8.”
This is the core issue with looking at the U.S. S.Ct. as well. You should not assume that just because the case seems legally strong and factually accurate or that because we have two excellent advocate that this will mean anything regarding the idealogically driven, predetermined conclusions that the justices already hold on homsexuality.
Scalia has said as much on several occasion to indicate that he has no intention of doing anything but denying rights. Right now, the court leans toward the reactionary positions of Scalia with Roberts as the chief justice than it does toward the moral arc of history.
All I know is, I’m sick and tired of my well-meaning straight friends saying, “You gals gonna go get married there, too?” every time another state okays gay marriages. I keep telling them, marriage certificates aren’t freakin’ state quarters. We shouldn’t have to collect the whole set. Somebody, PLEASE have the balls (or ovaries) to take this issue to SCOTUS. Soon.
My feeling is we never know unless we try and I still JUST DON’T SEE the huge setback that everyone says could happen. The worst is we get a little egg on our face (which we’re used to) and no nationwide marriage equality decision comes through the Supreme Court. Nothing ventured, nothing gained, but not THAT much lost either.
Wrong question. How many civil rights do we have to have in place to protect us from the retaliation in states that are forced to recognize gay marriage and really don’t want to?
The Civil Rights Act came before Loving Vs. Virginia.
13 states have inclusive ENDA laws, 12 have inclusive Hate Crimes Prevention acts. Unleashing marriage in the states that don’t have those too laws is dangerous.
We need to have a Federal ENDA and Hate Crimes Prevention Act in place when the most unwilling of states are finally forced to recognize gay marriage. That way we’ll have a way to fight back.
My issue with the talk of abandoning this case now is it will take that long with our without going to the court now, so why not set our 09 persistence case so by 2022 or 2026 Mississippi Homo’s will have the same rights as Iowans. If you look every struggle went to the court once to be rejected let’s get our first now and let’s let no more time pass. (Bowers V Hardwick in 1987 and then over turned in The Texas sodomy cs of 2003)
“How Many States Must Permit Gay Marriage Before We Take It to SCOTUS?”
According to the 14th Amendment, which will be the argument Messrs. Olson and Boise will use in their suit against Prop 8 in California, the rights of any Americans, regardless of their race, religion, sex or sexual orientation, should never have been a issue to be decided at the ballot box to begin with.
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.
The above is as clear as the nose on our faces. What part of it do the bigots and homophobes not understand. Unfortunately,
the entire judicial system in this country is rigged and up until these two lawyers came along, no one was willing to stand up and decry the fact that this country has not been living up to or supporting our American Constitution and our Bill of Rights for far too long now.
It is time for justice (NOW)and it is time (NOW) for us to step up to bat and demand it. The civil-rights of tax-paying Americans is NOT an issue to be voted on, state-by-state. That position is nothing more than a complete cop-out on behalf of Obama and his disingenuous, bigoted and discriminating administration.
And if I had the opportunity, I would tell him that directly to his face.
@schlukitz: I agree 100% with your post! The time is NOW, RIGHT NOW!
How many states had already desegregated their schools when the Supreme Court ruled on Brown v. Board of Education?
I read a LONG book solely about SSM by William N Eskridge, Jr. He is a fierce advocate for equality. He also is or was a law professor at Georgetown University. If he says to back off, I’d consider it very carefully.
The Gay Numbers
Let’s try this again in caps:THE SUPREME COURT IS A REACTIONARY ACTIVIST COURT THAT WANTS TO ROLE BACK LAWS NOT FORWARD.
Using civil rights sucess shows your ignorance about where THIS court is in its process. That’s why I provided the links. Read them. Read the case laws. Read what these justices are saying. That tells you the chances of us winning this are slim to none with this court. There is less chance of this court finding in our favor than there was for Prop 8 being overturnned. I placed that at 50./50 because I like to be optimistic. The idea that you can read this situation as better chance is false.
Take Rob’s question, the answer is that Brown v. Board of Education was decades in the making. There were multiple cases that preceeded Brown, each of which strategically built up to Brown. In fact, the gay legal organizations are smartly pursuing that strategy at the federal level with the case DADT case and the case designed to overturn clause 3 of DOMA. We do not have to wait decades- we are talking less than a decade. My concern is that if we push through cases like the one brought by Boies, even a year or two before its t ime, we will harm our ability
The NAACP Legal Defense Fund began the strategy decades before Brown v. Board. BUT, most importantly, they argued it in front of the Warren Court-t he same court that said separate but equal is unequal.
I will be blunt- if you don’t see how a bad decision in this case can hurt us, you don’t understand the importance of precedent in legal analysis. Rather than less than a decade with a sound strategy, we would be looking at decades due to the desire to respect precedent weighing down rulings that come subsequent. Again- read the link regarding precedent, judicial restraint and other legal concepts that explains legal thought.
The Gay Numbers
@Jaroslaw: He was my law professor.
I’m tired of Groups like HRC acting like scared little Jr. High kids afraid to try out for a sports team because they may not be good at it.
They need to get off their butts and do something. But then again, their name says it all. They are a gay rights organization that is afriad to have the word GAY in their name. Typical.
CAM – HRC is not afraid to have “GAY” in their name – they realize we are a tiny minority, and that Human Rights encompass Bi’s, trans, Q but to express all that reduces us to nothing more than sexual expression. I’ll refrain from calling you not too bright and assume you’re just upset and you didn’t think of this.
The Gay Numbers – so, is Eskridge gay or just super gay friendly? How was he as a prof? His books are super, easy to read for the layman.
@Jaroslaw: You said..
“CAM – HRC is not afraid to have “GAY” in their name – they realize we are a tiny minority, and that Human Rights encompass Bi’s, trans, Q but to express all that reduces us to nothing more than sexual expression. I’ll refrain from calling you not too bright and assume you’re just upset and you didn’t think of this.”
I didn’t have to “Think of that”…While you’re refraining from calling me “Not Too Bright” you may want to read some of the origional statements that said that using the word gay might put off potential allies and they didn’t want to do that. Please notice that I didn’t try to insult you etc… I just pointed out the info you were missing. You may want to try that in your next post.
CAM – the HRC has been around a long time – what original statements are you referring to? If you’re suggesting what I think you are, I’ll stand by my statement. Reducing people to their sexuality alone and deciding on a name at a time when gay people were considered worse than murderers, well you make the call.
The Gay Numbers
@Jaroslaw: As I remember, he’s gay. But, I am not 100 percent certain.
So to summarize the argument of the “don’t go to court” people:
1) Don’t sue, vote for Democrats.
But that’s just what happened. The Democratic Party now has a filibuster-proof majority in the Senate, an overwhelming majority in the House, and the Presidency.
Yet even with that unprecedented power, the Democrats cannot be bothered to even suspend DADT with an executive order or repeal DOMA.
The Olsen/Boies strategy may or may not work. But the “beg for your rights” strategy of their detractors has already proven a dismal failure.
I agree with all here who believe that the time is now to demand full and equal civil rights that are written into the Constituation….in this case the 14th Amendment, article 1.
For all of those here who say there is danger in this move, you are right, but I see much more danger in allowing straight america to codify into law the second class status that GLBTQ people are. Every day that this bullshit continues is damaging to all of us.
There is also a HUGE danger that the SCOTUS faces if they choose to ignore the very simply worded 14th amendment. They will lose all crediability with the American people as it is very difficult to argue to support the continualtion of different laws for different groups of people. Their reputations will be destroyed and they will ensure that they go down in history as nothing more than political hacks. Sometimes, i’ll bet that these ego driven attorneys give the thought of their legacy as much weight as the cases they are writing about.
Olsen and Boies are my hero’s. Too bad I can’t say the same for others in the democratic or republican parties.
The same-sex marriage issue is starting to feel like an episode of Wheel of Fortune. You know when it is already obvious what the answer to the puzzle is but the person spinning the wheel just keeps guessing letters and you scream “solve the fucking puzzle a’ready!” And you’re just hoping the wheel doesn’t land on Bankrupt.
Wanda Sykes summed it up best when she said, “if you don’t believe in same-sex marriage, then don’t marry someone of the same sex.
Meanwhile, those of you who are so opposed to SSM, should get out of the way of those who would like to be able to get married, if it’s no skin off your ass.
Do you have a problem with that?
#22 obviously a lot of people who are straight and religious have a problem with Gays getting married! That is why people & churches are pouring milliions into this issue.
Apparently they feel civilization will collapse if Gays marry. Go on one of their websites about “saving marriage” and you wouldn’t ask that question.
I of course feel like you do, it is no skin off their ass, many many other issues are far more important (like people having jobs, pensions & health insurance and perhaps keeping the US govt from going broke…) but hey, I’m not a Christee Crazee. But millions are and they vote. Hence the problem.
@ChicagoJimmy: Hello!! Do you even know what the purpose of the 14th amedment was?! The 14th amendment was enacted to allow blacks the right of citizenship. The amendment should be read as it is written and as it was intended. ‘Reading into it’ is what has allowed millions of alien mothers to cross the boarders each year and have anchor babies which cause an enormous strain on federal and state finances.
How far are you willing to take this?! Do you agree with multiple partner marriges, or incest? Not such a big step when you consider ‘reading into it’.
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