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[ 52 ] June 26, 2013 |

My longer form reaction. Between yesterday’s VRA opinion, the minimally acceptable outcome on the Prop 8 case, and the failure to apply clearly heightened scrutiny in Windsor I’m a little subdued, which isn’t to deny that this is a major victory for civil rights:

In combination, then, these two rulings are a solid base hit for gay and lesbian rights rather than a home run. The Court did not apply heightened scrutiny to sexual orientation or rule state bans on same-sex marriage unconstitutional. But it did indirectly extend same-sex marriage to a state with nearly 40 million residents and ensure that those in same-sex marriages have gained access to the federal benefits they’re entitled to. In the context of the current Court, this kind of incremental progress is worth celebrating, even if a great deal more work remains to be done for gays and lesbians who in a majority of American states are still having their fundamental rights denied.

I also really want someone to leak what went on in the Prop 8 case.

…good point on the standing inconsistencies here. I’ll have more on this tomorrow or Friday, but this Balkin post is really brilliant.

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  1. actor212 says:

    But doesn’t overturning DoMA also overturn the provision where Congress attempted to set aside “full faith and credit” thus de facto forcing gay marriage down the throats of every state?

    • sharculese says:

      That’s section 2. Unaffected by today’s ruling.

      • Anon21 says:

        Section 2 is also redundant, since it’s long been established that the Full Faith and Credit Clause doesn’t require States to recognize “foreign” (re: contracted outside that State) marriage that violate their public policy.

        • chris says:

          How exactly was that established, anyway? It’s plainly inconsistent with the actual text of the Clause.

          • MAJeff says:

            The FFC has a “public policy” exemption. So, if something like a marriage violates the express policy of a state, they may not always be required to recognize it. Used to be the case with interracial marriages; also relates to issues of consanguinity and age of consent. Some marriages contracted in some states aren’t necessarily recognized in some other states.

            • chris says:

              The FFC has a “public policy” exemption.

              In case law, yes. That’s what I was asking about: how did that ever get started when there is no such exception in the Constitution itself?

  2. comptr0ller says:

    If the Brown administration had decided to (even half-heartedly) litigate on behalf of CA voters, would the SCOTUS have been more likely to rule on the merits?

    • Anon21 says:

      If they had actually defended the law, I think the Court would have had no choice but to rule on the merits.

      • sharculese says:

        I never discount Scalia’s ability to reach into his top hat and pull out non-justiciability, but I also don’t see how he gets there without employing the same crank logic that says the Court never had the power to rule on Roe.

        The others? Nope.

      • rea says:

        But note, “the merits” could have been decided more narrowly than on the issue of genreal recognition of gay marriage. We might simply have got a ruling that after California had recognized gay marriage, it could not change it’s mind.

    • Warren Terra says:

      That’s a terrible solution. An argument, however wrong, deserves its day in court, propounded by the best people willing to seriously promote it. If Gov. Brown had sent forth some dude in a literal clown suit to do a Harpo Marx routine on “behalf” of the law’s constitutionality, that would have avoided the Standing issue but would have been unfair to the (terrible) argument of the gay-bashers. More importantly (because, screw the gay-bashers), it would let any other person in the appropriate position of power similarly achieve their desired legislative outcomes by arrogating to themselves the sole right to argue the case in court and then deliberately tanking it – and their efforts at throwing the case might not be so overt as a clown suit, and their enemies might be us rather than the Friends Of Westboro Baptist Church.

      How the same court can on the same day rule on DOMA, which the relevant administration refused to defend in court and so had its defense put forth by other interested parties, and refuse to rule on Prop 8, which likewise, is beyond me.

      More generally, and admittedly speaking as a layperson and someone who only hears of cases making the news, every time I hear of a case decided on “Standing” grounds the outcome seems to be unjust, and sometimes Kafkaesque.

      • sharculese says:

        OTOH, if a state wants to have an initiative system where it’s spelled out that once the law passes, only elected officials get to defend it, fine. I don’t think that’s the best way to do it, but I don’t see a reason to say you can’t do it.

        But that doesn’t appear to be the case here.

      • rea says:

        every time I hear of a case decided on “Standing” grounds the outcome seems to be unjust, and sometimes Kafkaesque.

        That’s true only at the outliers. If you and your wife both agreed to get a divorce, you would not want your mother-in-law to come into court and contest the case, much less some guy from the church down the street.

        • L.M. says:

          But if you really want to screen out non-meritorious claims like that, the best way to do that is to reach the merits.

          • mpowell says:

            I don’t think so. Reaching the merits on an in-laws objection can be a lot more time consuming and expensive than just finding that she doesn’t have standing. Given the cost of interacting with the judicial system, you have to take these things into account.

  3. So the next step is for a same sex married couple, after having their status recognized by their home state and the Federal government, to sue in a state that refuses to recognize their status?

    • Anon21 says:

      Or same-sex partners in, say, Arizona who desire to get married can go sue in federal district court. If the Ninth Circuit strikes down Arizona’s gay marriage ban, you can bet the Brewer administration will take it to SCOTUS, and they will not have any dodge to employ at that point.

      • Warren Terra says:

        Isn’t this federal case already in existence, from Hawai’i? Or was that settled in some other way?

        • Anon21 says:

          Maybe. I don’t know about the various efforts that are underway. The point I was attempting to make is that there is no need for a currently-married couple to challenge a state statute or constitutional provision limiting marriage to opposite-sex couples; an unmarried couple with a desire to be married who are prevented by state law from marrying would also have standing.

        • KaliuaKid says:

          The Baehr case originated in Hawaii back in 1993. In that case, 3 same-sex couples sued for the right to marry. The Hawaii Supreme Court suggested that denying them the right to marry might be sex discrimination and sent it back to the trial court. The State then passed a “reciprocal beneficiaries” law that would make it easier for two people, not otherwise allowed to legally marry, to care for each other. Baehr et. al. then dropped off the radar.

          Sadly (being a Hawaii person) that original opinion from the Hi. S. Ct. got the homophobes into a national uproar and they started passing “defense of marriage” acts all over the country. That lead to the eventual passage of DOMA. I’m still ashamed that we were poised to become the first state to legalize same-sex marriage,(just as we legalized abortion first, well before Roe) but we’re still treading water. Things are looking better, though.

          In 2011 Hawaii’s governor signed a civil union bill giving some protections to same-sex couples. Since January 1, 2013 there has been a bill in the legislature (both House and Senate)legalizing same-sex marriage. It doesn’t look like it will make it to the floor this year, but there are many groups and individuals already active to fight for what’s right. The defeat of DOMA should only make that easier.

          • KaliuaKid says:

            Oh yeah, we do have a suit in the 9th Circuit Court of Appeals. The Governor has argued that the Constitution’s equal protection clause requires same-sex marriage in all states, including Hawaii. The decisions by the Supremes today seem to bolster that argument.

      • efgoldman says:

        ….you can bet the Brewer administration will take it to SCOTUS, and they will not have any dodge to employ at that point.

        Having seen the opinions of the last three days, clearly the SCOTUS wingers can twist themselves into any kind of legal pretzel that does the job.

        • Anon21 says:

          They would really need to make something up on the spot. I’m not saying they don’t have the power, I’m just saying that I confidently predict that they would reach the merits.

    • David Hunt says:

      Or perhaps a married same-sec couple that has moved to a different state will need something that requires recognition of their marriage by their current state of residence. The most likely scenario that I see is the state denying the spouse the authority to make some sort of medical decision when their partner is not able to make that decision themselves. But that’s not the bit that I want to see.

      What I want to see is a couple that’s moved to someplace like Texas wanting to divorce but not being able to because the state won’t recognize their marriage in the first place. Pass the popcorn. I have no idea if divorce law even works like that, or if they could simply file for divorce in the state in which they were married.

  4. Anonymous says:

    Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter! Woe unto them that are wise in their own eyes, and prudent in their own sight! Woe unto them that are mighty to drink wine, and men of strength to mingle strong drink: Which justify the wicked for reward, and take away the righteousness of the righteous from him!Therefore as the fire devoureth the stubble, and the flame consumeth the chaff, so their root shall be as rottenness, and their blossom shall go up as dust: because they have cast away the law of the Lord of hosts, and despised the word of the Holy One of Israel.

    Therefore is the anger of the Lord kindled against his people, and he hath stretched forth his hand against them, and hath smitten them: and the hills did tremble, and their carcases were torn in the midst of the streets. For all this his anger is not turned away, but his hand is stretched out still.
    (Isaiah 5:20-25 KJV)

    • sharculese says:

      Counterpoint: suck it, cretin. Your brand of toxic cowardice is dying out, and there’s nothing you can do about it.

    • Tiny Hermaphrodite, Esq. says:

      Beware of false prophets, who come to you in sheep’s clothing, but inwardly they are ravenous wolves. 16 You will know them by their fruits. Do men gather grapes from thornbushes or figs from thistles? 17 Even so, every good tree bears good fruit, but a bad tree bears bad fruit. 18 A good tree cannot bear bad fruit, nor can a bad tree bear good fruit. 19 Every tree that does not bear good fruit is cut down and thrown into the fire. 20 Therefore by their fruits you will know them.

    • wjts says:

      Ow, my carcass. Curse you, gay marriage!

    • efgoldman says:

      Strange, the copy-pasted passage says nothing about marriage, sexual relations, or pancakes.

    • DrDick says:

      Matthew 25, from your lord and savior, motherfucker:

      41 Then shall he say also unto them on the left hand, Depart from me, ye cursed, into everlasting fire, prepared for the devil and his angels:
      42 For I was an hungred, and ye gave me no meat: I was thirsty, and ye gave me no drink:
      43 I was a stranger, and ye took me not in: naked, and ye clothed me not: sick, and in prison, and ye visited me not.
      44 Then shall they also answer him, saying, Lord, when saw we thee an hungred, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee?
      45 Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not to one of the least of these, ye did it not to me.
      46 And these shall go away into everlasting punishment: but the righteous into life eternal.

      You and all the other rightwing fuckwits serve the antichrist and will burn eternally in hell according to your own prophet.

    • Malaclypse says:

      W@hat is we don’t believe that Bronze-Age mythologies are the best way to organize a society, Jennie? Will there be smitings? Or will you just whine, because your version of god is a whiny-assed titty baby just like you?

    • Hogan says:

      Woe unto them that are mighty to drink wine, and men of strength to mingle strong drink: Which justify the wicked for reward, and take away the righteousness of the righteous from him!

      I want to party with those guys.

    • MAJeff says:

      Where the white women at?

  5. Uncle Kvetch says:

    they have cast away the law of the Lord of hosts, and despised the word of the Holy One of Israel.

    Well, that convinced me. Time to leave my same-sex partner, kill my brother, and marry his widow.

  6. Tiny Hermaphrodite, Esq. says:

    Beware of false prophets, who come to you in sheep’s clothing, but inwardly they are ravenous wolves. You will know them by their fruits. Do men gather grapes from thornbushes or figs from thistles? Even so, every good tree bears good fruit, but a bad tree bears bad fruit. A good tree cannot bear bad fruit, nor can a bad tree bear good fruit. Every tree that does not bear good fruit is cut down and thrown into the fire. Therefore by their fruits you will know them.
    Matthew 7:15-20

  7. David Kaib says:

    You weren’t kidding about the Balkin post. Excellent stuff.

  8. LosGatosCA says:

    IANAL, but I’m interested in how this plays out under the broccoli precedent.

    Or is there something I’m missing?

  9. […] Two Cheers for the Supreme Court on LGBT Rights at The American Prospect gives a little more detail into the background of each case. (Via Lawyers, Guns & Money) […]

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