Supreme Court quote of the day

Check out this argument, which was floated by Chief Justice John G. Roberts, Jr. at yesterday’s Supreme Court hearing on same-sex marriage.

I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

It is an interesting approach. And perhaps Justice Roberts will actually write an opinion that (indirectly) provides a path to same-sex marriage via application of sexual discrimination laws.

Whatever it takes.

Ninth Circuit outlaws bans on same-sex marriage (updated)

One day after the Supreme Court declined to hear three appeals of rulings eliminating same-sex marriage bans in three Circuit Courts, the Ninth Circuit has found that same-sex marriage bans in Idaho and Nevada are unconstitutional.

Judge Stephen R. Reinhardt wrote the unanimous three judge ruling:

The lessons of our constitutional history are clear: Inclusion strengthens, rather than weakens, our most important institutions. When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.

In the opinion, Judge Reinhardt has a footnote that is pretty funny. Idaho Governor Butch Otter and the Nevada Coalition to Protect Marriage claimed that equality will make the institution of marriage “more adult-centric and less child-centric.”  In response, Judge Reinhardt offers this footnote:

[Otter] also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs,and rock-and-roll.

Given the Ninth Circuit ruling, it is likely that same-sex marriage bans in Alaska, Arizona and Montana will soon be eliminated as well.

Update: Justice Anthony Kennedy has issued a stay on the application of the 9th Circuit decision as it applies to Idaho.

When he’s right, he’s right

Supreme Court Justice Antonin Scalia, in Unites States v. Windsor:

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

In a few weeks or months, more than 30 states will be required to allow same-sex marriage. At that point, eventual nationwide approval will a fait accompli.

Supreme Court denies review of same-sex marriage cases

This morning, in a surprise move, the United States Supreme Court denied review of all five circuit court same-sex marriage cases on appeal to the Court. All five cases over-ruled various state prohibitions on same-sex marriage.  That means that the stays that were in effect pending the appeals are void and same-sex marriage can proceed in the affected states within the five circuit courts.

From the New York Times:

The move will almost immediately increase the number of states allowing same-sex marriage from 19 to 24, along with the District of Columbia.

The justices had earlier acted to stop same-sex marriages in Utah and Virginia, issuing stays to block appeals court rulings allowing them. Other appeals court decisions had been stayed by the appeals court themselves.

The all but universal consensus from observers of the Supreme Court had been that the stays issued by the justices indicated that the justices wanted the last word before federal courts transformed the landscape for same-sex marriage. But in recent remarks, Justice Ruth Bader Ginsburg said there was no urgency for the court to act until a split emerged in the federal appeals courts, all of whose recent decisions have ruled in favor of same-sex marriage.

So it appears that at least until a Court of Appeals decision supporting state bans on same-sex marriage, the Supreme Court will delay any review on the issue.

More details from ScotusBlog.

Seventh Circuit voids bans on same-sex marriage in Indiana and Wisconsin

Judge Richard A. Posner wrote an opinion in the Seventh Circuit Court of Appeals overruling the bans on same-sex marriage in Indiana and Wisconsin. During oral arguments he was scornful of the the arguments made by the proponents of the ban. And Posner’s opinion was released only nine days after oral argument, in which Posner scoffed at the arguments purporting to support the bans.

Here are some excerpts from the ruling:

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimina- tion is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

* * *

A degree of arbitrariness is inherent in government regu- lation, but when there is no justification for government’s treating a traditionally discriminated-against group signifi- cantly worse than the dominant group in the society, doing so denies equal protection of the laws. One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States. The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Ameri- cans who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; homosexual sex was criminal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals. Because homosexuality is more easily concealed than race, homosexuals did not experience the same economic and educational discrimination, and public humiliation, that African-Americans experienced. But to avoid discrimination and ostracism they had to conceal their homosexuality and so were reluctant to participate openly in homosexual relationships or reveal their homosexuality to the heterosexuals with whom they associated. Most of them stayed “in the closet.” Same-sex marriage was out of the question, even though interracial marriage was legal in most states. Although discrimination against homosexuals has diminished greatly, it remains widespread. It persists in statutory form in Indiana and in Wisconsin’s constitution.

At the very least, “a [discriminatory] law must bear a rational relationship to a legitimate governmental purpose.” Romer v. Evans, supra, 517 U.S. at 635. Indiana’s ban flunks this undemanding test.

* * *

Wisconsin’s remaining argument is that the ban on same- sex marriage is the outcome of a democratic process—the enactment of a constitutional ban by popular vote. But ho- mosexuals are only a small part of the state’s population— 2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.


Richard Posner takes down same-sex marriage opponents

Judge Richard Posner, a conservative judge on the Seventh Circuit Court of Appeals, heard an appeal of successful lower court judicial challenges to same-sex marriage in Indiana and Wisconsin on Tuesday. He repeatedly sought the opponents to same-sex marriages to state a rational reason why same-sex marriage should be disallowed. The state counsels struck out totally with Posner.

Slate has outtakes of the oral arguments that should be required reading listening for everyone.

Same-sex marriage quote of the day

[Hillary] Clinton says she didn’t support gay marriage in the 1990s but subsequently changed her mind. When and why she changed her mind is what Gross was trying to get at. Had she changed it by the time she and her husband left the White House? Or when George W Bush endorsed the Federal Marriage Amendment in 2004? Was she still opposed to marriage equality when Massachusetts became the first state to enact it legislatively in the same year? The answers to these questions remain mysterious.

But one thing isn’t mysterious: she was not just another evolving American. She was the second most powerful person in an administration in a critical era for gay rights. And in that era, her husband signed the HIV travel ban into law (it remained on the books for 22 years thereafter), making it the only medical condition ever legislated as a bar to even a tourist entering the US. Clinton also left gay service-members in the lurch, doubling the rate of their discharges from the military, and signed DOMA, the high watermark of anti-gay legislation in American history. Where and when it counted, the Clintons gave critical credibility to the religious right’s jihad against us. And on the day we testified against DOMA in 1996, their Justice Department argued that there were no constitutional problems with DOMA at all (the Supreme Court eventually disagreed).

What I’d like to hear her answer is whether she regrets that period and whether she will ever take responsibility for it. But she got pissed when merely asked how calculated her position on this was.

Andrew Sullivan

And then, there is this:

Finally, you really should read this piece by Conor Friedersdorf.

Hillary Clinton v. Terry Gross

This is a fascinating back-and-forth over same-sex marriage. Terry Gross, host of the NPR interview program “Fresh Air,” yesterday questioned Hillary Clinton as to the evolution of her support of same-sex marriage, and whether it was all a carefully considered political calculation by Clinton. Clinton doesn’t take too kindly to Gross’ questions. And Gross pushes back against Clinton.

Clinton comes off the loser.

Clinton did not support same-sex marriage until 2013. This hardly qualifies as enlightened on the issue and certainly, at least to me, it seems clear that Clinton waited until the coast was clear before coming out publicly in favor of same-sex marriage.  Not a profile in courage and reflective of a strong approach to equal rights.

Over at The Vox, they showed the actual statistics of support for same-sex marriage in 1996 compared to 2014:


Another positive court ruling on same-sex marriage (updated May 21)

This time a US District Court judge ruled that Pennsylvania’s prohibition on same-sex marriage is unconstitutional.

A federal judge Tuesday declared Pennsylvania’s ban on same-sex marriage unconstitutional, the fourth such ruling on a state ban in the past three weeks.

Judge John Jones III ruled in favor of 23 Pennsylvania residents who challenged the law.

“The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional,” he said.

There is an interesting side note in the judge’s decision. He essentially uses Scalia’s opinion in Windsor to reach the result:

As Justice Scalia cogently remarked in his dissent, “if [Windsor] is meant to be an equal-protection opinion, it is a confusing one.” Windsor, 133 S. Ct. at 2706 (Scalia, J., dissenting). Although Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not representative of deferential review. See id. (Scalia, J., dissenting) (observing that “the Court certainly does not apply anything that resembles [the rational-basis] framework” (emphasis omitted)). The Court did not evaluate hypothetical justifications for the law but rather focused on the harm resulting from DOMA, which is inharmonious with deferential review.

By the way, Judge Jones was appointed to the bench by George W. Bush.

Update: Gallup is out with a new survey that shows that support for same-sex marriage in the United States is at an all-time high of 55%. And there is this:


Another court rules in favor of same-sex marriage

Today a US District Court judge has ruled that Oregon cannot prohibit same-sex marriages. And, same-sex marriages there can start today since the judge, Michael McShane, did not impose a stay on his order and it appears that Oregon officials will not file for a stay. This makes 12 trial court rulings in the past several months to affirm the marriage rights of gay couples.

You can read the full opinion here.

Equal rights quote of the day (updated May 11)


— Arkansas Circuit Court Judge Christopher Piazza, ruling Friday that Arkansas’ prohibition on same-sex marriage is unconstitutional. The state is seeking an immediate stay of the decision.

And, also yesterday, Rep. Louie Gohmert (R-TX), compared those who favor same-sex marriage to the Nazis. For one view of this approach, see Godwin’s Law and Reductio ad Hitlerum.

Update: On Saturday, May 11, same-sex weddings began in Arkansas.

Shortly after being issued the state’s first same-sex marriage license, two women were married outside the Carroll County Courthouse in Eureka Springs on Saturday.

A deputy county clerk issued the license on Saturday morning to Kristin Seaton and Jennifer Rambo of Fort Smith — breaking a barrier that state voters put in place with a constitutional amendment 10 years ago.