The Supreme Court and same-sex marriage

12.07.12 - 1:27 pm | Tim Redmond |

(114)

IN 2004, the battle began ....

Keep in mind that I'm not a lawyer and the news just broke. But it seems unlikely to me that the US Supreme Court would have taken up two key cases involving same-sex marraige just to rule narrowly on questions like standing. Which means at least four of the nine justices (and it could be a mix of liberal and conservative ones) think the Court should make a defining statement about marriage equality in the United States.

Courts are political. The Supreme Court is supremely political. That's just reality. And ever since Lawrence v. Texas, the Court has been moving toward full acceptance of LGBT people:

The Supreme Court invalidated the Texas law but also went further by explicitly overruling Bowers – the significance of which was not lost on dissenting Justice Antonin Scalia, who presciently complained that the ruling "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples." Indeed it does.

And it's hard to imagine that the Supreme Court could possibly, in 2012, make a broad statement against gay marriage. I just don't see it happening. I think Scalia will fulminate, but a majority of the Court will rule in the spring that lesbian and gay people have a fundamental right to marry.

You read it here first.

UPDATE: HuffPo's legal eagle disagrees with me, saying a pro-same-sex marriage ruling would be too "bold." I think he's wrong; the vast majority of Americans under 40 have no problem with same-sex marriage, and in a few years, anything other than a "bold" decision will look embarassingly dumb.

Comments

Loose federation

The U.S. stopped being that after the Civil War. The whole point of that war is that that level of local decision-making on rights made slavery possible. The second part of that change, of course, was the Civil Rights Movement, in which blacks were re-enfranchised and in which interracial marriage became legal. Are you arguing that these changes should have been left up to the states, too?

Posted by Hortencia on Dec. 09, 2012 @ 10:04 am

Why should any level of

Why should any level of government be able to restrict anyone at any time outside an overwhelmingly compelling governmental or public interest?

Posted by marcos on Dec. 08, 2012 @ 6:36 pm

If that were literally true, we'd have no laws at all

The sole purpose of laws is to restrict individual freedom.

Posted by Guest on Dec. 09, 2012 @ 6:24 am

Restrict individual freedom...

...for the public good.

Posted by Hortencia on Dec. 09, 2012 @ 9:52 am

Yeah but who decides what is the "public good"?

That's a subective notion - you and i may disagree.

The people collectively can decide that and did with Prop 8. Oh wait . .

Posted by Guest on Dec. 09, 2012 @ 4:08 pm

Who decides

The Constitution, as interpreted by the Supreme Court.

Posted by Hortencia on Dec. 10, 2012 @ 12:26 pm

Laws tell the government how

Laws tell the government how it is allowed to operate as well as telling people what they can and can't do.

Posted by marcos on Dec. 09, 2012 @ 7:47 pm

The issue is whether marriage is a fundamental right

Guest, implicit in your comment is that gay adults are equal to children, and that denying a child, or anyone else, a driver's license is equivalent to denying gay adults, or anyone else, a marriage license. Also, implicit in your comment is that there exists at least a rational basis for denying gay adults the right to marry.

It is true that the law can and often does discriminate based on different classes of people and based on different types of rights and privilges. However, at the very least there must be a rational basis for any legal discrimination, and when fundamental rights are involved, (and the trial court held marriage to be a fundamental right) or where suspect classes are involved (e.g. racial classifications), then the reason for discrimination must be a compelling state interest, not merely a rational basis. Furthermore, simple dislike and prejudice toward a group of people has never been held to be a rational basis for discrimination. See the Supreme Court's decision in Romer v. Evans. Many of the supposedly rational arguments for denying gays the right to marry have been discredited and shown to be little more than a cloak for irrational prejudice.

This case will come down to the facts, and I think if the Supreme Court justices choose to be be honest about the facts, then they will rule that marriage between two consenting adults is a fundamental right, and that there is no compelling state interest to deny two gay adults the right to marry.

Posted by Chris on Dec. 07, 2012 @ 3:23 pm

One can argue whether gay marriage is a "right" as this

particular trial opined, or merely a privilege that can be offered or denied on the basis of the will of the people. I'd agree that is one key issue at the heart of the matter.

But it's only one. There is also the issue of sovereignty and States' rights. One's "rights", in certain regards, change when you cross State lines. So SCOTUS will also have to decide whether it will find just for California, or for everywhere. and if the rules for marriage are going to be federalized, then what about the different ages at which you can marry, and the kind of cousin you may wed, both of which currently vary by State.

And again, what about the Federal government? do you really think SCOTUS will rule that gays can file taxes jointly, and bring in foreign spouses? Maybe but I suspect SCOTUS will be very reluctant to get into the business of re-writing laws and extending it's brief.

So SCOTUS could uphold marriage being a right in CA, but demur from applying that to the other 49. They could simply refuse to overturn the Appeals court ruling and leave it at that. Certainly if they elect to honor the federal vision of the founding fathers, then mushing all the States together would seem a brief too far, and a smack in the face of the 70% or so of Americans who don't feel ready for this, at least in their own back yard.

Posted by Guest on Dec. 07, 2012 @ 3:37 pm

That "70%" figure is just as reliable as when it was applied to

Ross Mirkarimi and Lee's attempt to subvert the results of his election to the office of sheriff.

Actually the split in popular opinion is about fifty-fifty -- not that it can be expected to have deterrent effect on the Catholic SCOTUS majority.

Posted by lillipublicans on Dec. 08, 2012 @ 2:31 pm

70% of blacks voted for Prop 8

But why would white liberals take any notice/

Posted by Guest on Dec. 08, 2012 @ 3:11 pm

Of course this simpleton's point is obvious --

and obviously false.

The idea behind it is that blacks and other "out" constituencies can be divided from each other and thus the political forces whose interests are supported by such servile rhetoirc can have a freer hand in their depredations, but the real enemy of gay rights is ignorance, religious dogma and demagoguery -- not to mention the old stupid human trick of self-delusion, as so much of anti-gay hysteria stems from individuals who actively are subliminating their own homo-sexual or bi-sexual longings.

Posted by lillipublicans on Dec. 08, 2012 @ 5:51 pm

Nope, just pointing out that that the same race that went

over 90% for Obama last month went 70% for not allowing gays to marry

Posted by Guest on Dec. 08, 2012 @ 6:18 pm

The intellectual strength of SFBG readers is a bit too great for

you dimwitted platitudes to have any effect, but obviously you are too simple for that to register.

Blacks -- a more socially conservative group than oft-repeated and scurrilous attacks on their ethnicity's reputation would acknowledge -- voted 30 percent in favor of gay marriage. Asians voted 51 percent in favor. Whites slightly less.

No group voted 100% against equal rights for gays and no one group caused Prop 8 to pass -- though if a single group were to be picked on, it'd have to be Mormons.

And blacks voted for Obama in about the same numbers they voted for Gore. Clinton. Dukakis. Mondale. Carter. McGovern. Humphrey.

Deal with it: you are a dimwit and your rhetoric is hardly worth responding to as ineffectual and unintentionally self-effacing as it is.

You no doubt fancy yourself to be a powerful rhetorical force casting progressives into a state of fear, self-loathing, and disarray, but your lick-spittle nonsense has the opposite reaction than you intend.

Posted by lillipublicans on Dec. 08, 2012 @ 6:47 pm

Actually Obama received a much higher

level of support, statistically, than did the other Democrats you mentioned. And in larger numbers. Black turnout made the difference in places like Virginia in 2008 and 2012 and North Carolina in 2008. Blacks are the most Democratic constituency then The Gays and the Jews - but it was the numbers which really put the president over the edge.

Posted by Lucretia Snapples on Dec. 08, 2012 @ 7:43 pm

Lucretia Snapples, aka Troll II, disgusting. racist. liar.

...and miscreant.

Mondale 1984 91%
Dukakis 1988 85%
Clinton 1992 83%. (7% Perot),
Clinton 1996 83%(4% Perot)
Gore 2000 90% (1% Nader)
Kerry 2004 88%
Obama 2008 93%

http://www.ropercenter.uconn.edu/elections/how_groups_voted/voted_84.html
http://www.ropercenter.uconn.edu/elections/how_groups_voted/voted_88.html
http://www.ropercenter.uconn.edu/elections/how_groups_voted/voted_92.html
http://www.ropercenter.uconn.edu/elections/how_groups_voted/voted_96.html
http://www.ropercenter.uconn.edu/elections/how_groups_voted/voted_00.html
http://www.ropercenter.uconn.edu/elections/how_groups_voted/voted_04.html
http://www.ropercenter.uconn.edu/elections/how_groups_voted/voted_08.html

Troll II you are a disgusting racist miscreant:
http://www.sfbg.com/politics/2012/10/11/gasc%C3%B3ns-challenge-mirkarimi...

Posted by lillipublicans on Dec. 08, 2012 @ 8:13 pm

Much higher support in numbers

and percentage. Obama actually received 96% of the black vote in 2008 - the Roper Center figures are wrong.

Posted by Lucretia Snapples on Dec. 08, 2012 @ 8:39 pm

From Loving v. Virginia (1967), Romer v. Evans (1996) and Am.XIV

The Supreme Court held: 'Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... 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 discrimination. 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.'

And in Romer v. Evans:

'[Colorado Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. '

And, finally, the Fourteenth Amendment:

'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. '

Posted by marcos on Dec. 09, 2012 @ 7:41 pm

The right to marriage

Guest, the Court has said again and again and again that marriage is a fundamental right. The only question is if that right can be denied to same-sex couples.

Posted by Hortencia on Dec. 07, 2012 @ 3:33 pm

Well yes, and different States have decided that differently.

The real question here isn't whether gays should be able to marry in CA - they can if the Courts' verdict is upheld.

The real question is whether California's view should be imposed on other States against the express wishes of their people.

And I see no reason why SCOTUS needs to decide that. Rather they can limit their ruling to the CA decision, and probably should.

Posted by Guest on Dec. 07, 2012 @ 3:50 pm

But they said today...

...they were going to look at the Prop. 8 with reference to the 14th Amendment. That's federal in scope.

You're mistaken about "the real question": "California's view," as passed by the voters, is that marriage is between a man and a woman. A FEDERAL judge determined that to be FEDERALLY unconstitutional.

And the Supreme Court should decide it because Americans should all have the same civil rights, or why have a federal Bill of Rights at all? Did you agree with the Court's decision in Loving v. Virginia, or did that unjustly stomp on states' rights, too?

Posted by Hortencia on Dec. 07, 2012 @ 3:59 pm

Not every "rights" case wins at SCOTUS.

you are pre-judging the very question at issue here i.e. whether it is reasonable that marriage should apply to couple who are not of the same gender. That changes the definition of marriage as well as it's applicability.

Posted by Guest on Dec. 07, 2012 @ 4:30 pm

I'm not "pre-judging"

Several federal judges have said the same thing. You act as though Judge Walker never wrote his tightly reasoned, eloquent opinion. I recommend you go back and do so.

I'm not sure why you write same-sex marriage "changes the definition of marriage as well as it's applicability."

Posted by Hortencia on Dec. 07, 2012 @ 4:55 pm

You are certainly assuming that SCOTUS will agree with you.

That is far from clear, given their past recent rulings.

Posted by Guest on Dec. 07, 2012 @ 5:24 pm

I agree, you cannot trust

I agree, you cannot trust conservatives on anything.

Posted by marcos on Dec. 07, 2012 @ 10:00 pm

"Trust" in that context meaning that the justices will

just happen to agree with you?

Posted by Guest on Dec. 08, 2012 @ 6:47 am

"Trust" that they...

...will deny Americans their rights.

Posted by Hortencia on Dec. 08, 2012 @ 12:54 pm

One can argue there are rights at issue on both sides.

The question here is which are the right rights? That's for SCOTUS to decide. We only have opinions about that.

Posted by Guest on Dec. 08, 2012 @ 1:48 pm

A drivers license issued

in any state is valid in every state. Hopefully, soon marriage licenses for all human, adult couples regardless of sexual orientation will also be legally granted and valid in every state.

Posted by Eddie on Dec. 07, 2012 @ 3:02 pm

Eddie, yes, I have no problem with the reciprocity rules nor

the "full faith and credit" provisions of the Constitution. But those are predicated on the idea that states can make their own rules and laws that may vary from State to State.

So, for instance, marriage laws cary as to the age at which you can marry, and what kind of cousin you can marry. Why not, if the people want that?

There's also the issue that the federal government does not recognize gay marriage, even if States do. That matters for tax, social security and immigration matters.

Posted by Guest on Dec. 07, 2012 @ 3:12 pm

Doubtful. CCW permits that

Doubtful. CCW permits that are valid in some states are not recognized in other states. I don't see why it would be any different considering certain states have bans on same-sex marriage (same as CCW). Every state allows driving and has no bans on driving as long as someone has a legal driver's license.

Posted by Guest on Dec. 07, 2012 @ 11:23 pm

DOMA asserts that one States does not have to accept a

same-sex marriage from another State or, for that matter, another nation. Nor does the federal government accept any same-sex marriage.

I'm not sure how far down this road that SCOTUS wants to go with this difficult issue. They interpret laws; they don't set policy.

If I were Roberts, I'd rule narrowly and throw this back at the various elected bodies. He respects the fact that we are a federation of different jurisdictions rather than a homogenized European-style central oligarchy.

Posted by Guest on Dec. 08, 2012 @ 6:50 am

The United States is

certainly an oligarchy, or perhaps more accurately, a plutocracy.

Posted by Eddie on Dec. 08, 2012 @ 7:50 am

The US is far more democratic than Europe

Many European nations still have monarchs, like the UK, Norway, Belgium ety. Or don't have real constitutions.

Europe doesn't have propositions. They elect a rep and then they make all the decisions.

The french President only faces an election every 7 years. In the UK, the PM elections are every 5 years. We have 4 year cycles and 2 year cycles for the House.

We have elections at 4 levels (national;, state, county, city).

Posted by Guest on Dec. 08, 2012 @ 8:42 am

European representative

European representative democracy is light years more democratic than the US Republic by every measure and the outcomes which have traditionally demonstrated less dissonance between popular opinion and public policy prove this.

The purpose of the US government is to allow the wealthy to carry on with a veneer of popular legitimacy, a veneer, which to quote William S. Burroughs which has been stripped by a propaganda regime which has "vulgarize[d] and falsif[ied] until the bare lie shines through."

This is changing with the EU and ECB adopting a super-state posture that has stripped monetary sovereignty and is now stripping fiscal sovereignty from the individual nations.

Posted by marcos on Dec. 08, 2012 @ 9:10 am

The EU and it's currency are in a huge mess right now

Don't you read the papers? Spain, Greece are failing and the euro is in crisis.

Posted by Guest on Dec. 08, 2012 @ 9:34 am

Look above

and try to see my point as it flies over your head. Real power lies with the owners of the country. The elected officials they pay for do their bidding. Hence, a plutocracy.

Posted by Eddie on Dec. 08, 2012 @ 9:13 am

We have elections regularly

If you don't like the result, there is no point in blaming anyone but yourself.

Posted by Guest on Dec. 08, 2012 @ 9:34 am

Or the Supreme Court...

...in the case of Bush v. Gore.

Posted by Hortencia on Dec. 08, 2012 @ 12:55 pm

12 years on and you're still bitter about 2000?

Gore lost any which way you look at it. He was a poor candidate and would have been a terrible president.

Posted by Guest on Dec. 09, 2012 @ 6:26 am

Are the World Trade Center buildings still down?

Is Iraq still a basket case? Af-Pak? Are the dead still dead? Are the TRILLIONS still pissed away from the treasury?

Al Gore lost Florida by every concievable measure except if all the votes were counted.

Posted by lillipublicans on Dec. 09, 2012 @ 7:49 am

There was a recount in florida and the result was that Gore

lost by even more votes than he lost by the first time.

Sorry.

Posted by Guest on Dec. 09, 2012 @ 9:13 am

Too late

The recount only occurred after the presidency was safely in Bush's hands, thanks to the Supreme Court.

Posted by Hortencia on Dec. 09, 2012 @ 10:14 am

Gore was a bad candidate.

Although he certainly won the popular vote, and most likely won Florida (don't forget about massive voter suppression there), he was a poor candidate. He should not have run away from Clinton, who was and is still popular despite the Lewinsky "scandal". Gore couldn't even win his home state of Tennessee or Clinton's state of Arkansas.

Posted by Eddie on Dec. 09, 2012 @ 9:09 am

Gore wasn't a bad candidate as much as the corporate media is a

cheating whore -- by which I mean to signify akin to a whore who not only doesn't give full measure but also steals the silverware.

Al and Tipper *were* the real-life characters that inspired the love story, Al Gore *did* create -- not invent! -- the Internet, etc. etc.

Yes, he should not have stepped clear of Bill Clinton.

The fact that he lost Tennessee is a Repug talking point; as a matter of fact he was heir to a completely fading blue-statedness there and the last Democratic senator to be elected there too, if I recall correctly.

And while your point about illegal Repuglican voter "caging" is well taken, if *all* the votes had been counted -- forget about the illegal and stupid "butterfly ballots" that had 35,000 Jewish Americans voting for a nazi third party candidate -- if all the ballots had been counted, then Gore won.

Fairness and Accuracy in Reporting did a story on it, I don't have the link handy, but check it out.

Posted by lillipublicans on Dec. 09, 2012 @ 9:51 am

While it's hard to argue...

...from anything but the most right-wing perspective that Gore would've been a better president than Bush, one's outrage over Bush v. Gore isn't about Gore; it's about the Supreme Court enabling a Republican coup.

Posted by Hortencia on Dec. 09, 2012 @ 9:55 am

Of course, I meant...

..."wouldn't've been a better president than Bush..."

Posted by Hortencia on Dec. 09, 2012 @ 10:13 am

We disagree about a Gore presidency

But it's not about "still being bitter," anymore than being appalled by the Dred Scott decision is. Bush v. Gore was a coup d'etat, no more, no less, and those who forget history, etc. etc.

Posted by Hortencia on Dec. 09, 2012 @ 9:48 am

If Gore had been elected,

I doubt that things would have been much different. Of course, that's all idle speculation.

The Democrats are as equally at ease as the Republicans at instigating aggressive wars. In most recent times, Clinton did Yugoslavia and launched bombs against the aspirin factory in Sudan; Obama escalated the Afghanistan war, has vastly expanded the drone attacks (and deportations of refugees from the USA), attacked Libya, armed the opposition in Syrian and is preparing to attack there...

I just hope that no one here tries to blame Ralph Nader for the current sorry state of affairs.

Now back to the topic.

Posted by Eddie on Dec. 09, 2012 @ 8:56 am

I voted for Nader and Nader brought voters to the polls that

wouldn't have bothered otherwise. As a matter of fact, he brought enough voters in Washington to flip their senate seat which kept the Senate out of Repug hands for two years more.

(Not that it did a whole lot of good, point taken.)

Posted by lillipublicans on Dec. 09, 2012 @ 9:54 am