Up until last week, it seemed pretty clear that marriage equality was on a track of inevitability. Then a federal Court of Appeals decided to buck the trend. In a 2-1 decision, the court reinstated marriage bans in four states: Kentucky, Michigan, Ohio and Tennessee. Now the Supreme Court is forced to face a reality that it didn’t when it refused to weigh in on marriage equality just last month: a split among the federal courts.
The question is, how much does the latest ruling change the landscape? When there was an unbroken string of victories for same-sex couples, it seemed pretty easy to hope that the Supreme Court would bow to the inevitable and make marriage equality a national right. But last week’s ruling injects a note of uncertainty into the equation.
The majority opinion in the four-state case was issued from Land Where Time Stood Still.
To arrive at their ruling, the two majority judges, both appointees of George W. Bush, studiously avoided all of the legal reasoning from the Supreme Court’s Windsor decision, proving once again that legal principles can easily take a back seat to homophobia, if the will is there.
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Instead, the primary legal argument that the justices used was from a one-sentence 1972 Supreme Court decision refusing to hear the case of two men from Minnesota who had sought to marry. (Dissenting Judge Martha Daughtry, who had no problem throwing shade at her colleagues for their stupidity, said that that case was “a legal dead letter” that “lacks only a stake through its heart.”)
The consensus among legal scholars is that the Supreme Court can’t ignore the ruling (the specious reasoning, probably, if you’re in the Scalia/Thomas camp). In fact, on this point, mortal enemies are in agreement, down to the same wording.
“We want a case to go the Untied States Supreme Court as quickly as possible,” said Marc Solomon, national campaign director for Freedom to Marry. “I want this to get before the Supreme Court as soon as possible,” said Brian Brown, president of the National Organization for Marriage.
Obviously, both sides are hoping for a victory. But while the most recent Appeals Court decision might gladden the hearts of the right wing, it doesn’t change the odds in their favor.
Last year’s Supreme Court ruling was sweeping in its language, even if it limited the effect to whatever states chose to decide. But intentionally or not, Justice Anthony Kennedy clearly pointed the way to where this will have to lead. Justice Antonin Scalia, who may be reprehensible but is no dope, made exactly that point in his dissent.
In fact, even the two judges from last week’s ruling admit that they are on the losing side. “From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen,” wrote Jeffrey Sutton and Deborah Cook. Of course, that didn’t stop them from delivering what Judge Daughtry called “an engrossing TED talk” but not a judicial decision.
But in the end, it’s hard to imagine the five justices who struck down DOMA would decide that couples who have already been married are no longer married. That’s particularly true of Kennedy, who, more than any other justice, has eloquently explained why LGBT rights are worthy of legal protection.
Meantime, the tide keeps rolling in. While the attention last week was on the bad ruling, there were two very good ones. Federal courts ruled that marriage equality was the law in Kansas and Missouri. In those states, at least, it’s 2014 and not 1972.
1EqualityUSA
I wondered if the ruling went against marriage equality just so that it can be, once and for all, decided upon by the (current) Supreme Court. Of course, the bigots on the court will twist logic and have their mute pet, Thomas, go along with them, silently, but will it amount to a majority? Perhaps not in this court as it stands today. Ruth Bader Ginsberg may not be around two or three years from now, whether it is due to her pancreatic cancer or retirement, so having the case be heard sooner is to our favor. If they SCOTUS does take away marriages that have already taken place, people will protest, stop paying taxes, coalesce against Republicans so thoroughly, that they will rue the day they chose to be on the wrong side of history. The disruption will rend this country.
Cam
It was only decided by a 3 judge panel not the full court, and interestingly enough the plaintiffs are petitioning to the Supreme Court and not to the Full 6th circuit.
Sounds like they want to get this case up to the high court to get settled once and for all.
Trippy
Good. I’m not a fan of Chief Justice Roberts, but I think he’s inclined to side with equality. It’s his court and, thus, his legacy… so I doubt he’ll want to be remembered as the chief justice who (temporarily) killed equality. That would be akin to being remembered as the chief who permitted slavery or denied women the right to vote. No sane person with an eye on his legacy would want such a thing for his wiki page.
Therefore, I expect a 6-3 decision in favor of marriage equality. And Brian Brown, Porno Pete, Maggie Gallagher, and Tony Perkins can suck my you-know-what.
Roan
The 6th is the most overturned circuit by SCOTUS, so probably not. Check out Ari Ezra Waldman on Twitter for an ongoing analysis. @ariezrawaldman
Check this link for an analysis of why we shouldn’t worry and follow @scotusblog on Twitter.
http://www.scotusblog.com/2014/11/sixth-circuit-the-split-on-same-sex-marriage/
andy_d
@1EqualityUSA: @Cam: @Roan:
Granted this is SPECULATION, but there is also the possibility that SCOTUS may remand back to the circuit requiring an en banc (full court) decision before deciding to accept the case. The rationale being that if the full 6th circuit court overturns the panel decision, then there is consensus among all the circuits which have made decisions so far.
If I were one of the Supremes, I would recommend this as there would be no legacy issue as cited above.
sangsue
And yet, the Republicans here say being liberal is a bad thing. There is no such thing as a fiscally conservative, socially liberal Republican politician anymore. Well I hope you’re happy now. Now go, get married to your money.
hyhybt
If there were enough votes on the court to rule against us, they’d have taken those other cases and overturned them, even without a split. The main problem I can see is if a health issue removes a justice on our side, in which case it would be either 5-3 or 4-4. And 4-4 would make an awful mess.
MarionPaige
the mindless insanity of it all. Republican control of the house and senate will affect everything in America EXCEPT gay marriage actvists.
Just days prior to the mid-term elections, the federal circuit gave conservative voters gay marriage “victories” as an incentive to go to the polls. So, it seems probable that MARRIAGE EQUALITY WILL BE SUSTAINED by The Supreme Court just in time to elect a Republican President to go along with a Republican Congress. And,
We have the late 1980’s as an example of how eager the conservatives are to again have a majority on the Supreme Court. Oh,
And then there is the right to be fired from your job because you publicly disclosed that you were gay by marrying someone of the same sex.
Mack
It would be confusing indeed if the Supreme Court ruled against gay marriages since they’ve had several chances at the point to do something. They turn down several cases because they as a whole felt there was no reason to interfere with the Appeals Courts that has ruled.
I see more problems at the State levels than I see with the Supremes. I see the State Legislators passing laws that people can refuse to perform, cater, provide flowers, cakes and so forth in the states that originally banned gay marriages. I see this as the next up hill battle.
MarionPaige
again there is the “lore” that Churchill allowed an english town to be bombed during world war II when he could have ordered an evacuation of the town. The theory is that the allies would have alerted the Germans to the fact that Germany’s military code had been broken had the allies acted on the information they had.
With marriage equality activists there is nothing on the planet in their little fucked up minds that is more important than keeping marriage equality in the news.
Milk
No.
MarionPaige
was there a gay election last night in which the gay community voted to proceed to the Supreme Court at any costs? With marriage equality you have this machine running and it is being driven by people none of us elected, none of us voted for and people none of us have even fucking heard of. Rob Reiner and his wife are AFER.
I’ve been trying to find video of this old comedy routine in which a man is charged with some kind of traffic violation and he wants to just pay the fine but his lawyer won’t hear of it. The man can be seen screaming “Just Pay The Fine!” while he ends up in the electric chair because his lawyer was determined to litigate at any cost.
AFER and the other lawyers driving the marriage equality will be litigating long after all of us are on some island somewhere wearing pink triangles on our shirts.
MarionPaige
finally, there is something so fucking gay about the idea that you can litigate your way to equal protection under the law when you have zero political clout. The role of GAY in national politics is to incite conservative voters – end of story.
unreligious
@Trippy: I would not count on it. He had no problem voting to uphold DOMA
Saint Law
@MarionPaige: Is anyone still reading Paige’s wank?
Geoff B
@Saint Law: It’s good for a few laughs after a couple glasses of wine.
Cam
@MarionPaige: said….”finally, there is something so fucking gay about the idea that you can litigate your way to equal protection under the law when you have zero political clout.”
_________________
Gay marriage is far more popular than interracial marriage was when it was “Litigated”.so maybe you should just calm the hell down. The actual reason there IS a judiciary is the fact that rules and regs which would not be voted on still are needed. Please take a civics class.
Trippy
@MarionPaige: Not sure what pills you’re popping, but you may want to back off on the dosage a bit.
MarionPaige
to paraphrase the Borg: “Sit Back and watch your futures being decided”.
nobody here was a party to the decision to make gay marriage an issue
nobody here was a party to AFER’s deciding to take Prop 8 to The Supreme Court and,
nobody here was a party to the “backroom discussions” about taking the 6th Circuit decision to the Supreme Court
All of these decisions are being made that will affect your lives, the composition of the congress and the supreme court and pretty much all you people can do is sit back and watch.
“Watch Your Futures Disappear!” – The Borg Queen.
erikwm
@MarionPaige: and nobody here is complaining about it except for you.
jwtraveler
In 29 states LGBT people still have no housing or employment rights. Gay rights is not all about gay marriage.
jwtraveler
@MarionPaige: Putting aside all the hatefulness, WHAT THE FUCK DOES THE BOMBING OF COVENTRY (that’s the name of the city you were referring to) HAVE TO DO WITH GAY MARRIAGE? That’s a little nuts, don’t you think?
Harley
@MarionPaige: The Borg said “resistance is futile. You shall be one with the Borg”. I’ve watch Star Trek, every incarnation, and the Borg never said what you are quoting.
MarionPaige
apparently, The Borg Queen’s exact words were either:
1. Watch Your Future’s end. or
2. watch your futures end.
According to one view, since she was only talking to Picard it must be the first one.
Cam
@MarionPaige:
And once again, BJ, Brent, or…wait, it’s Marion this time right….has the goal to completely deflect the topic of conversation away from the actual subject of the post.
Please pick one screename and stick with it.