Here’s a new strategy for opponents of D.C.’s impending gay marriage law: If you can’t get Congress to intervene, how about the U.S. Supreme Court? This is troubling.
With the law’s implementation approaching the 11th hour, Baptist minister Walter Fauntroy today filed a motion with Chief Justice John Roberts to intervene, and stay the law until voters have a chance to weigh in. (It’s unclear whether Bishop Harry Jackson, who’s tried and failed three times to get D.C.’s Board of Elections to put marriage up to a common vote, is also involved in the appeal.)
This is no small matter. In fact, the situation just became quite dangerous.
With the federal Perry/Prop 8 trial expected to head to the Supreme Court shortly (a relative term in legal speak), the D.C. marriage case gives the Court a preliminary opportunity to have a say in gay marriage. And while a decision from Roberts would be limited in scope — it would merely put the law on hold, but not declare whether the City Council’s passage of gay marriage is legal — if the Court steps in, it it would make clear the justices want voters to decide on issues of marriage discrimination.
And that would be a damning message for Perry, whose entire purpose is to ask the Court to to overturn the will of voters on this very issue.
Not Gonna Happen
I’d bet a month’s pay that the Supreme Court won’t take this appeal. In order to rule in the appellants’ favor, the court would have to rule that the people of D.C. are constitutionally *obliged* to get a vote re: changes in marriage laws. But the people of D.C. are not constitutionally obliged to get a vote re: changes in all laws, so a ruling that they are constitutionally obliged re: marriage laws would constitute an admission that there was something unique about marriage laws — almost certainly that they involved a fundamental constitutional right. But the justices who might want, on a personal preference basis, to see the D.C. marriage law changes defeated will certainly not wish to declare marriage a fundamental right, because the logic of such an admission works in favor of finding a that gays are constitutionally entitled to marriage. And the justices who might want, on a personal preference basis, to see D.C.’s marriage law changes sustained, would not wish to find themselves declaring that marriage laws just involve run-of-the-mill issues. So no one on the Court will want to take this case.
Even if the court does take the case, and does “force” a vote, it doesn’t speak to the issues that are brought up in Perry. I would never attempt to guess what the Roberts/Scalia/Thomas court will do (remember, they instilled Cheney/Bush over the popular vote). But, in the unlikely event that they do “force” this vote, the question in Perry isn’t about what can be voted on, as much as it is, “can one vote to ban same-sex marriage, and not be prejudiced.” So, the answer to DC isn’t necessarily the same as the answer to that posed by Perry.
No. 2 · Dick Mills wrote, “the question in Perry isn’t about what can be voted on, as much as it is, ‘can one vote to ban same-sex marriage, and not be prejudiced.'”
I think it might be a slightly different question. In the Perry versus Schwarzenegger case, we have credible evidence (courtesy of William Tam) that the sponsors of Proposition Eight – the people who filed it and ran the campaign in favor of it – were motivated by animus (prejudice, etc.). So the question is whether that is sufficient (together with putting gays at a disadvantage). This is a rather subtle legal point, so we’ll
have to wait until the judge rules on it to be sure.
Keep in mind that people could have voted for Proposition Eight not out of prejudice, but as a result of being duped by campaign ads claiming that Proposition Eight was necessary to protect children and keep religious freedom. Both arguments were pure BS, of course, but if they managed to fool approximately 2 percent of the voters, that would have been enough to win the election given how close it was.
@Not Gonna Happen: Very intelligent comment. Where are you day to day on this site? One thing is for sure, though: come what may, gay couples will prosper and thrive, regardless of how the meta-macro-legal-mumbo-jumbo ends up.
To the young people who rightly invest so much of their emotional energy into this debate: don’t let it get you down,no matter what.
In the grand scheme of things, it has no relative bearing on your opportunity to thrive as couples — as high divorce rates already prove: The institution itself is a shallow one, whereas the innate drive of a free people to overcome life’s obstacles and thrive, is an immutable one.
@Lady Ga-Gasp: I like your post and positive outlook. It’s very refreshing. I SO get down trying to look to the future, and it’s people like you that keep me optimistic.
You are quite correct. We will thrive as couples, regardless of when we achieve equality. I just long for the day when we can go get hitched in places like here (TN) and not have everything stripped away at a whim.
Great post, Lady.
@Not Gonna Happen: The Supreme Court has already declared marriage a fundamental and constitutional right through Loving and that case with letting prisoners marry and a few others. see the Prop 8 plaintiffs’ written argument:
the issues in Perry (among others) include the animus of the campaign, as previously stated, as well as, determining whether gays and lesbians are a suspect class and discrimination against us is allowed or not. It would not surprise me if SCOTUS stayed marriage in DC but I doubt it will happen. Even if it does, just remember, every defeat builds the case that we are a suspect class–we will eventually overcome!
Brown Gay Al
@rf: I suppose it will reaffirm Baker v Nelson. There is no substantial federal role. So it will refuse to hear it.
Not Gonna Happen
I won’t bore you with the details, but Loving v. Virginia was “about” race primarily, rather than being “about” marriage. Had there been no interracial component, and no interracial bar that did not apply to uniracial couples, there would have been no case. It follows from this analysis that the court wasn’t really calling marriage a fundamental right per se, but only (if anything) a fundamental right in the context of racial distinctions (“fundamental-rights equal protection,” or FREP). Ruling that DC had to allow a plebiscite on gay marriage would problematically (from the POV of virtually every judge on the Court) say either that marriage was a fundamental right even outside of an equal protection (of suspect classes) context, or that marriage laws implicating gays raised FREP concerns because gays are a suspect class. As I say, half the Court wouldn’t want the implications, the other half wouldn’t want the result in this instance. So no case.
You wrote: “It would not surprise me if SCOTUS stayed marriage in DC but I doubt it will happen. Even if it does, just remember, every defeat builds the case that we are a suspect class…” What do you mean?
@Not Gonna Happen: I’m a third year law student and I agree completely. I can’t even begin to imagine what basis the Supreme Court could have to intervene.
I’m not a lawyer but I thought the Supreme Court only took cases that dealt with issues of federal law or the US Constitution.
I live in DC and the courts held that the DC local human rights law prevents any type of referendum that would seek to take away rights from a protected group covered by the human rights law of which gays and lesbians are one.
The case is based on local DC law and has no issue of federal law that I think the Supreme Court would be interested in.
#8 Yes Loving was primarily about race, but the first sentence in the decision says:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival….
@Not Gonna Happen: The Supreme Court’s Loving ruling:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.
The first sentence above where they declare marriage is a basic civil right has nothing to do with race, suspect classes, or minorities. Then they call marriage a “fundamental freedom”, again not tying it to race, suspect classes or minorities. The second sentence continues: “…on so unsupportable a basis as the racial…” which means that race is not the only unsupportable basis, just the one they’re tying to the fact that marriage is a fundamental civil right.
Just a nice little side-note since somebody brought up the Loving v. Virginia case.
This question was asked of Mildred Loving when her approval was requested in the fight for Same Sex Marriage.
“You understand that you’re putting your name behind the idea that two men or two women should have the right to marry each other?”
“I understand it,” Loving said, “and I believe it.”
Whoops, sorry, I meant to include this quote from the Decicion in Loving v. Virginia from the Cheif Justice of the U.S. Supreme Court
“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. “
Mike in Asheville, nee "in Brooklyn"
@No. 10 Tommy
Unfortunately for the citizens of DC, the district is a federal jurisdiction.
@rf: Didn’t our inclusion in hate crimes legislation make us a “Suspect class”?
JUST TO LET U KNOW I AM MARRIED AND THE STATE DEPARTMENT HAD RECOGNIZED ME. WE ARE FROM CANADA AND I GOT MY VISA AS SPOUSE, I AM THE FIRST ONE ON HAVING IT. SO NOT EVERYTHING IS TOO BAD
The supreme court will not touch this. Frankly i dont see why they should bother themselves with this. Contrary to popular belief there are bigger issues than whether two men want legal right to marry.
Its not worth it. 50 states only 5 allow gay marriage. Big deal
@RichardR: No. the legislature and the prez (and their laws) are representatives of the tyranny of the majority. They are not trusted to protect the rights of minorities and don’t decide who is a suspect class even if they single out a specific or suspected minority in law. Enacted laws, like hate crimes, can be used to argue to the courts that a specific group is a suspect class (or not) but the courts decide and then use that decision to scrutinize future legislation.
The word on NBC4 in DC is that the Supreme Court has declined to hear this issue. Not a surprise.
Equality is inevitable.
Although DC isn’t a state it isn’t totally under federal control. The City Council here has the authority to pass its own laws. So DC is governed by local law not federal law. I believe that Congress can invalidate a DC local law if it disagrees but it chose not to do that with the gay marriage law. I never heard the SC can invalidate a DC law just because it disagrees with it.
The Supreme Court did overturn the local DC gun control law, but that was because they said it violated the Second Amendment. I don’t think you can say gay marriage violates any part of the US constitution.
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